' SYED SAKHI HUSSAIN BOKHARI, J.--- Asif Manzoor Mohal (petitioner) has prayed for declaration for the election result of returned candidate (Muhammad Yar Mamoonka, respondent No,1) to be void.
2. Relevant facts for the disposal of this petition are that petitioner and respondents Nos.1 to 5 contested the election for the seat of Provincial Assembly (P.P.280 Bahawalnagar-IV) which was held on 10-10-2002. Respondent No,1 has been declared as returned candidate from the said constituency with a margin of 1237 votes and notification was accordingly issued. It is the case of petitioner that respondent No,1 committed illegal and corrupt practices in collusion with polling staff which has materially affected the election result. He maintains that he obtained highest number of votes as compared to the votes cast in favour of other candidates but Returning Officer in illegal and arbitrary manner with mala fide intention, prepared result on the basis of wrong calculation of figures and declared respondent No,1 as returned candidate. The polling stations were duly notified vide gazetted Notification dated 10-9-2002 and Government Primary School Qadirpur and notified as Polling Station comprising two areas (Amin Abad and Kanwarpura) having total number of 1085 votes. He adds that at the behest of respondent No,1 in an illegal and arbitrary manner and in flagrant violation of the polling scheme, polling station was shifted to a place three miles away in a building which was not duly notified, therefore, petitioner and voters of the area were not aware about the shifting of the polling station. The Returning Officer did not issue notice to the contesting candidates, particularly, the petitioner or his election agents for consolidation of results of the count of 109 polling stations, furnished by Presiding Officers, hence, violated provisions of section 39 of the Act. The petitioner asserts that consolidated statement of result of count was prepared with mala fide intention and calculation of total number of votes polled in favour of respondent No,1, is incorrect as having been recorded in excess. The Returning Officer failed to open packets containing 1916 ballot-papers which were excluded from the count of violation of section 39 of the Act, read with Rule 26(2-9), of the Representation of the People (Conduct of Election) Rules, 1977, therefore, election result has been materially affected. The election agents of the petitioner, sent a complaint to the Chief Election Commissioner requesting him to issue direction to Returning Officer for recounting of votes and consolidation of election result in accordance with provisions of section 39 and report was called but the same was deliberately delayed by Returning Officer and he notified respondent No,1 as returned candidate.
Respondent No,1 in collusion with District Administration and Government Functionaries lodged false F.I.Rs, in respect of different villages, where polling was stopped for several hours and voters could not exercise their right of franchise.
3. Notices were issued to respondents but respondents Nos.2 to 5 did not appear despite service, therefore, they were proceeded against ex parte. However, respondent No,1 mentioned in reply that petitioner has not given full particulars of the alleged corruption or illegal practice. He further mentioned that Returning Officer consolidated the result correctly and Presiding Officers counted the votes in accordance with law. He, has not committed any illegal or corrupt practice and allegations are false and baseless. The polling staff conducted the election fairly and there was no collusion between respondent No,1 and polling staff. There is a difference of 1237 votes according to the record. Neither polling scheme was changed nor any new polling station was established. The Returning Officer issued notices to all contesting candidates including petitioner for consolidation of result on 12-10-2002. On the pleadings of the parties, following issues were framed:-- "(1) Whether the petition is liable to be dismissed due to misjoinder and non-joinder of parties?
OPR-I
(2) Whether this petition is liable to be dismissed in view of preliminary objection No,2? OPR
(3) Whether respondent No,1 obtained result of election through malpractice? OPA
(4) Relief."
The parties adduced evidence in support of their respective claims. The petitioner examined six witnesses in support of his case, whereas, respondent No,1 produced seven witnesses.
4. Heard. Record perused. Issue No,1
5. This issue is based on the objection that Returning Officer and polling staff have not been made party. According to law, misjoinnder or non-joinder of the parties is not fatal. Even otherwise, according to section 54 of the Act, the contesting candidates are the only necessary parties to the election petition. Moreover, learned counsel for the respondent has not pressed this issue. As such, this issue is decided against the respondent.
Issue No,2
6. The case of respondent is that petitioner has not given detail (full particulars) of corruption and illegal practice, allegedly committed by respondent No,1, therefore, this election petition is liable to be dismissed. This objection is devoid of force. The petitioner has given details of corruption and illegal practice in his petition as well as evidence. As such, this issue is decided against the respondent.
Issue No,3
7. Although by making a formal application a demand was made by the petitioner for recounting of the votes cast at the election, yet learned counsel for the petitioner vide his statement dated 8- 11-2006, has given up that plea and presses for the disposal of election petition on the score of material available on record. Similarly,. Although in the election petition setting aside of the election was sought on account of the alleged prevalence of rioting on certain polling stations, yet the said plea has also been given up.
8. It has been mainly argued that the election in question should be declared as a whole to be void on account of failure of the concerned election authorities to comply with the relevant provisions of the Act and the Rules. This demand is obviously being made by reference to section 70(a) of the Act, according to which. Tribunal shall declare the election as a whole to be void if it is satisfied that the result has been materially affected. This quite clearly means that if result of election was not materially affected then the said declaration in accordance with the said provisions cannot be made by Tribunal. So, therefore, for the resolution of crucial point it becomes necessary to see whether the result of the election in the instant case was materially affected by violation of the law as canvassed on behalf of the petitioner. It has been argued that according to section 7(4) it was the duty of the Returning Officer to do all such acts and things as may be necessary for effectively conducting election in accordance with provisions of Act and Rules. Also that vide section 8(2), subject to the direction of Commission, D.R.O. (District Returning Officer), would make such alteration in the list of polling stations submitted under subsection (1) as he deems necessary and was bound at least 15 days before the polling day to publish in official gazette, the final list of polling stations. The precise objection, raised is that Polling Station No,20 was notified to be established in Government Boys Primary School, Qadirpur but, in fact election was not held at the polling station so notified. Instead of the said polling station polling was admittedly conducted in village Kanwarpura. Syed Imam Ali Shah (R.O.) while appearing as A.W.1, quite surprisingly could not say where the election was, in fact, held. It is in the statement of R.W.7 (respondent No,1) that the election was not conducted at the polling station notified by District Returning Officer but at the makeshift polling station abruptly established at Kanwarpura. The shifting so made in the venue of polling station, was thus in utter violation and disregard of the polling scheme as notified by D.R.O.
And hence, it was not at all open to the R.O. Or the election staff subordinate to him to shift the polling station to any other venue. This was quite clearly illegal and there can be no question of condoning the said illegality.
9. Likewise, it was obligatory for R.O. To examine the rejected ballot-papers at the time of consolidating the results of the count. Giving evidence as A.W.1, Syed Imam Ali Shah (R.O.) states in examination-in-chief that he had not examined the rejected votes at the time of consolidating the results of the count. Had the illegality so committed not materially affected the result of election, it could have been easily ignored. But in the instant case, the position is totally different. The total number of rejected votes stood at 1916, whereas, respondent was declared to be the returned candidate by a margin of 1237 votes, therefore, it is a clear cut case where the result of election has been materially affected on account of the illegality in the process of election on the part of R.O.
Even though, it may not be possible for this Tribunal to render any decision as against the respondent in accordance with the provisions contained in section 68 of the Act, yet it is not possible to uphold the election in view of the mandate of section 70(a) of the Act, according to which, this Tribunal has not been left with any alternative, except to declare the election as a whole to be void, if it is satisfied that the result of election has been materially affected. For what has been discussed, I am of the considered opinion that non-compliance and violation of statutory provisions of Act and Rules, mentioned above, has rendered the election as a whole to be void. So, Issue No,3 is decided in favour of petitioner.
10. The upshot of the above discussion is that this election petition is accepted; election in PP-280- BWN-IV is declared as a whole to be void. Consequently, fresh election may be held in this constituency in accordance with law. No order as to costs.