TASSADUQ HUSSAIN JILLANI, J.---Ehsanullah Reki appellant and respondents Nos.1 to 8 contested elections for the National Assembly Constituency 271 comprising of 220 polling stations of the following three Districts:
(i) Kharan
(ii) Panjgoor
(iii) Washuk
2. In terms of notification dated 1-3-2008, appellant was declared the returned candidate. This election was challenged by respondent No.1, initially by filing an application under section 103-AA of the Representation of the People Act, 1976 [hereinafter referred to as `the Act] before the Chief Election Commissioner of Pakistan immediately after polling i.e. on 21-2-2008 (elections were held on 18-2-2008) in which he alleged malpractices and rigging at the following polling stations: -- (i)Polling Station No. 86 (ii)Polling Station No. 87 (iii)Polling Station No. 89 (iv)Polling Station No. 90
3. The afore-referred petition was disposed of by the Election Commission of Pakistan on 4-3-2008 with the observation that since election result had been notified an election petition before the Election Tribunal was proper remedy. Respondent No.1 filed election petition before the Election Tribunal on 9-4-2008 and according to him having come to know of malpractices at other places, he added seven more polling stations which are as under: (i)Polling Station No. 83 (ii)Polling Station No. 116 (iii)Polling Station No. 137 (iv)Polling Station No. 138 (v)Polling Station No. 139 (vi)Polling Station No. 140 (vii)Polling Station No. 150
4. On receipt of the written statement from the appellant/defendant, following issues were framed by the Tribunal: (i)Whether the petitioner has availed remedy before Federal High Court, Islamabad, as well as, before Election Commission of Pakistan, if so, to what effect?
(ii)Whether the petitioner has failed to file the list of official witnesses, if so, to what effect?
(iii)Whether the District and Sessions Judge Nushki in his report had exceeded in its jurisdiction in offering the explanation with regard to the merits of the case?
(iv)Whether the petitioner has not raised any objection during the polling period, counting and consolidation of result, if so, to what effect?
(v)Whether the petitioner has not filed affidavit, if so, to what effect?
(vi)Whether the District and Sessions Judge Nushki had spoiled and changed the votes in league of petitioner, as alleged in para No. `F' of the reply?
(vii)Whether the District and Sessions Judge Nushki was allowed to only unseal the ballot boxes and produce the same before the Election Commission of Pakistan, if so, to what effect?
(viii)Whether the annexures having not attested by the competent authority, if so, to what effect?
(ix)Whether the petition has not been verified as required by law, if so, to what effect?
(x)Whether the petitioner and respondent No.1 were candidates in the election of National Assembly's constituency NA-271, comprising of three Districts i.e. Kharan, Panjgoor and Washuk?
(xi)Whether the petitioner and returned candidate (respondent No.1) have obtained 22175 votes and 22856 votes (difference of 681 votes)?
(xii)Whether the petitioner had made a complaint that the result of Polling Stations Nos. 86, 87, 89 and 90 of the constituency has been rigged by illegal practice, bogus voting and tampering of record?
(xiii)Whether one Mir Mujeeb-ur-Rahman Muhammad Hassani (District Nazim of Washuk) and Mir Habib-ur-Rehman Muhammad Hassani candidate of PB-47 having in connivance with returned candidate in procuring the said result?
(xiv)Whether the District Returning Officer Nushki was authorized to de-seal the polling bags in the presence of Returning Officer and taking out of the requisite record, re-seal the same and in this behalf the report was submitted on 28th February, 2008 and the Election Commission has directed for approaching the Tribunal for trial?
(xv)Whether the respondent No.1 in connivance of Polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect?
5. Respondent produced following set of evidence: (i)Respondent Lt. General (Retd.) Abdul Qadir Baloch, himself.
(ii)Syed Anwar Aftab (P.W.1) [District Returning Officer].
(iii)Muhammad Afzal (P.W.2) [Returning Officer NA-271].
(iv)Haji Muhammad Afzal (P.W.3) [Assistant Returning Officer, Washuk Tehsil].
(v)Khurshid Ahmed (P.W.4) [Presiding Officer Jangian (female) Polling Station No. 87].
(vi)Mukhtiar Ahmed (P.W.5) [Assistant Presiding Officer, Killi Khan Muhammad (Jangian Male and Female) (Polling Stations Nos. 86 and 87)].
(vii)Moulvi Abdul Ahad [Polling Agent of Abdul Aziz Baloch candidate of NA-271].
6. The appellant produced following set of evidence to rebut the evidence led by the respondent: (i)Appellant Ehsanullah Reki, himself.
(ii)Kulian Khan (R.W.1) [Candidate NA 271] (iii)Muhammad Ashraf (R.W.2) [Polling Agent of appellant in Polling Station Shahugari (No. 89)] (iv)Hafiz Abdullah (R.W.3).
(v)Noor Ahmed Pirkani (R.W.4)
(vi)Dr. Abdul Samad (R. W. 5) [Presiding Officer Polling Station Shahugari (No.89)] (vii)Syed Abdullah Shah (R. W.6)
(viii)Abdul Aziz (RW7) [Candidate NA 271] (ix)Waseem Ahmed, R. W.8 (x)Waseem Ahmed again appeared as R.W.9.
7. The learned Election Tribunal in terms of its judgment dated 16-7-2009 allowed the election petition and held that it stood proved that the election of the appellant was procured by corrupt and illegal practices and declared the elections of the constituency i.e. N.A. 271 as a whole void with a direction to the Chief Election Commissioner of Pakistan to hold fresh elections. This judgment was challenged both by the appellant (in Civil Appeal No. 945 of 2009) and by the respondent (in Civil Appeal No. 953 of 2009). These appeals were allowed with the consent of the parties and the matter was remanded to the Election Tribunal for decision afresh in terms of judgment dated 15- 10-2009. In accord with the remand order, Mr. Mahboob Anwar, Provincial Election Commissioner, Balolchistan was examined as C.W. 1 and both the parties were allowed to cross examine him. In terms of its findings primarily on Issues Nos. 11, 13 and 15, the learned Election Tribunal allowed the petition, held the election of the appellant as void and declared the respondent to be the returned candidate vide the impugned judgment dated 25-1-2010.
8. In support of this appeal, learned counsel for the appellant submitted as under: (i)that the learned Election Tribunal has not decided the case in terns of the consensual remand order passed by this Court inasmuch as in the said order it was specifically directed to allow the Provincial Election Commissioner to appear and tender a report prepared by him with opportunity to both the sides to cross examine him with the rider to decide the issues raised without being influenced in any manner by the earlier decision of the Tribunal. The appellant raised a specific objection to the afore-referred report with reference to section 46(2) of the Act but the said objection has not been decided as mandated in law. Relying on a judgment of this Court in Mian Ejaz Shafi v. Syed Ali Ashraf Shah PLD 1995 SC 43, learned counsel contended that the report submitted by the said Election Commissioner who appeared as C.W. 1 could not be taken into consideration as it was clearly violative of proviso to subsection (2) of section 46 of the Act. That being so he added that finding of Election Tribunal based exclusively on the said report of C.W. 1 cannot stand the test of legal scrutiny; (ii)that the findings of the learned Tribunal with regard to issues Nos. 13 and 15 are not based in evidence tenable in law; (iii)that the evidence led is not credible as it is inconsistent and is not corroborated by any independent evidence; (iv)that finding of the learned Tribunal on Issue No. 15 is based on the testimony of P.W.2 Muhammad Afzal, P.W.4 Khurshid Ahmed, P.W.5 Mukhtiar Ahmed and P.W.6 Maulvi Abdul Ahad. A bare reading of their statements would indicate that they did not prove the allegations of rigging or malpractices; (v)that proceedings in an election petition are quasi criminal proceedings and the evidence led by the respondent did not cross the threshold of proof sufficient to invalidate the elections; (vi)that P.W.6 Moulvi Abdul Ahad is a polling agent of a candidate (Abdul Aziz Baloch) at Polling Station No. 90, Talonk and he made allegations of rigging and malpractices at the said polling station where he was present, but this witness is not worthy of credit for two reasons: first he admits that he did not inform the candidate of which he was the agent and second his testimony was not corroborated by producing the candidate himself and no reason was given for the said omission whatsoever; and (vii)that the respondent failed to prove any rigging during the elections or any malpractice and no evidence was led to connect the appellant with the alleged illegal practices or rigging to warrant a finding that the appellant in any manner connived or indulged in the alleged rigging. The findings recorded with regard to the appellant in this regard are therefore not sustainable.
9. Learned counsel for the appellant did make his submissions with regard to non-verification of petition and the annexures attached with it to bring home the point that verification being a mandatory provision in terms of section 55(3) of the Act, the petition merited dismissal. However, on a court query as to whether he would seriously press this point because in that event, in view of the divergent judgments of this Court, the issue may have to be referred to a larger Bench, learned counsel sought instructions from the appellant (present in Court) and opted not to press this point.
10. Learned counsel for the respondent Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court defended the impugned judgment and contended as follows:
(i) that an election can be called in question under the mandate of Article 225 of the Constitution in accordance with the law. The law can regulate the remedy but it cannot take away the right to contest and to question the elections held;
(ii) that all annexures were duly attested by the respondent-petitioner and non-suiting the respondent-petitioner on this ground would be violative not only of the afore-referred constitutional provision but also Articles 17 and 187 of the' Constitution of Pakistan;
(iii) that the Provincial Election Commissioner in carrying out the exercise of de-sealing the bags and recounting the votes was acting as a Commission (appointed by the Election Tribunal seized of respondent's election petition) in terms of section 46(2) of the Act read with Order XXVI, Rules 1 and 2 of the C.P.C. The report submitted by him pursuant thereto could not be taken exception to;
(iv) that issues Nos. 11 and 13 were decided in favour of respondent-petitioner not merely on the statement of the Provincial Election Commissioner who appeared as C.W.1 but there was overwhelming evidence to the effect that the elections were rigged at various polling stations. The respondent's election was stolen and his lead was converted into defeat;
(v) that the state of affairs prevalent on the polling day is evident from the letter dated 21-2-2008 (Ex.P./2A-IV) from the Returning Officer of the said Constituency (NA-271) wherein he narrated as under:-- That about 5 A.M. undersigned has received results of all polling stations of District Kharan, District Washuk along with results of almost 17 polling stations of District Washuk. Undersigned phoned several times to R.O. P.B-46 Washuk for dispatching the results of remaining polling stations to undersigned but it was brought into undersigned's knowledge that he had not received the results of these polling stations. Further that he was trying to have access with concerned A.R.Os. but till that time whereabout of these A.R.Os. was mysteriously unknown."
(vi) that in the application filed by the respondent- petitioner the very next day of polls i.e. on 19-2- 2008 to the Chief Election Commissioner, he had levelled serious allegation of malpractices at four polling stations and subsequently when respondent found rigging at other polling stations after 19- 2-2008, he added seven more polling stations in the election petition filed before the Tribunal on 9- 4-2008. However, the allegation regarding the consolidated result of Polling Station 86 (Jangian- Male) to the effect that the votes polled in favour of appellant i.e. 46 were converted into 646 by adding digit (6) is borne out first from the reply of the appellant to respondent- petitioner's application before the Election Commissioner wherein he admitted that the afore-referred "addition" was "simply a clerical mistake and does not create any penal consequence";
(vii) that there was no dispute in any of the polling stations of District Kharan or Panjgoor and the issues of rigging are relatable to the polling stations of District Washuk of which the appellant is a resident. He alleged that there is evidence/material to suggest that District Nazim of Washuk who is appellant's brother-in- law was trying to influence the process of polls through rigging and malpractices;
(viii) that the report dated 21-2-2008 (Ex.P/2A-IV) of Muhammad Afzal, Returning Officer who appeared as P.W.2 corroborates the allegations of rigging at that polling station;
(ix) that the Assistant Returning Officer Mukhtiar Ahmad (Polling Station 83, Killi Khan Mohammad)
P.W.5 also corroborated the statement of P.W.2.
Polling Station No. 86 (Jangian Male).
(i) The result count given to the polling agents is without the signatures of the Presiding Officer.
(ii) The Presiding Officer at that polling station specifically accused the District Nazim Washuk a close relation of the appellant of massive rigging.
(iii) As per Ex. PW f /A2 the appellant got 566 votes whereas the total valid ballot papers issued for the said polling station were 67. This is evident from the statement of P.W. as well.
(x) that the recount at the Polling Station 86 was without lawful authority. The recount under section 39(6) of the Act can be carried out only on the direction of the Election Commission of Pakistan or at the asking of the contesting candidates. In the instant case, he contended, there is nothing on record to indicate that the Election Commission had directed recount, the Presiding Officer while appearing as P.W.2 tried to shield himself and justify the act of recount by deposing that he did it on the direction of the Election Commission of Pakistan but there is nothing on record to that effect (at this stage the Court asked Mr. Abdul Hafeez Pirzada, learned counsel for the appellant about the afore-referred issue and in all fairness he admitted that there was no direction of the Election Commission for recount). On the question of recount, under the afore-referred provision, learned counsel relied on the following judgments of this Court: Ch. Muhammad Abdullah v. Ch. Abdul Wakil PLD 1986 SC 487 and Munshi Muhammad v. Election Commission of Pakistan 1991 SCMR 2033.
(xi) that the dubious conduct of Returning Officer who carried out the recount without being any order of the competent authority to that effect (who remained as P.W..2) is also evident from the letter of the Election Commission of Pakistan to the Provincial Election Commissioner dated 28-2- 2008 (Ex. R1) wherein this aspect was duly taken note of in terms as follows:-- "In view of the apprehension that the Returning Officer for NA-271 Kharan-cum-Washuk-cum- Panjgur, who has been directed to place relevant record of the Constituency before this Commission on the 1st March, 2008 vide Order, dated 23-2-2008 may tamper with the requisite record while de-sealing the polling bags, the District and Sessions Judge, Noshki is authorized to de-seal the relevant bags in presence of the Returning Officer concerned and after 'taking out the requisite record from those bags re-seal them and thereafter, shall personally produce the same before the Election Commission on the 1st March, 2008."
(xii) Making his submissions with regard to the conduct of polls at Polling Station 87 (Government Basic Health Unit Jangian, female), the learned counsel raised following points:
(a) that the result count as reflected in Form XIV a copy of which is given to all the candidates or their agents after the count, is different from the consolidated report. In terms of the former count, the respective votes of the parties were as follows: Appellant532 Respondent03 In the consolidated result of the constituency, the votes cast were as follows: Appellant550 Respondent04 The afore-referred divergence in the count is reflective of irregularities committed in the poll process;
(b) that Form XV indicating the total votes cast valid and invalid was never submitted which is a requirement of law. This is evident from the statement of P.W.4 and the report submitted by CWI;
(c) that P.W.4 (Khurshid Ahmed) did prove P/4B which was Form XIV but he clearly stated that he did not scribe it. This witness made shocking disclosures about the role of Mr. Mujeeb-ur-Rehman, the then District Nazim Washuk who was closely related to the appellant.
(xiii) With regard to Polling Station 89 (Government Primary School Shahogari, combined), learned counsel made following submissions:
(a) A prima facie examination of Ex.R/ 5B shows that this document was tampered with;
(b) the result count issued in terms of Form XIV to the respondent-petitioner and the one officially issued show divergence of result:-- Issued to the AppellantIssued to the Respondent Appellant secured 627Respondent secured 51 Appellant secured 327Respondent secured 51
(c) that on respondent's application under section 103-A of the Act, the Chief Election Commissioner directed the Returning Officer on 23-3-2008 to carry out inspection and submit a detailed report. The said report which was placed on record as Ex.P.W.1, A submitted by the District Returning Officer who was a District and Sessions Judge, glaring malpractices came to light which indicated that there was massive rigging at the polling stations subject matter of this appeal. The Returning Officer appearing as P.W. (Anwar Aftab) proved the report. The report was further corroborated by the report of Provincial Election Commissioner (Ex.C.W.1/A) who carried out the result count as a Commission appointed by the Tribunal;
(d) that the report of the Provincial Election Commissioner can broadly be divided into two parts i.e. one relating to the circumstances and evidence indicating commission of malpractices and second the recount carried out by him. Learned counsel contended that so far as the first part is concerned, the same is unexceptionable, was within the mandate of his lawful authority and the law declared and no exception can be taken to it. However, the second part whereby the Provincial Election Commission after recounting the votes declared certain votes to be invalid may seem to be hit by proviso 1 to section 46 (2) of the Act and this Court may not take that into consideration because no prejudice had been caused to the appellant and the judgment of the Tribunal is sustainable on other grounds as well;
(e) that the Presiding Officer at this polling station was Dr. Abdus Samad. He was working as EDO (Health) under the same District Nazim who is closely related to the appellant.
(xiv) that the result count of Polling Station 90, (Government Primary School Talonk, combined) lost its credibility because of the following:
(a) Mr. Anwar Aftab P.W. 1, District Returning Officer in his detailed report reported that the result count was missing when he opened the record. This report is corroborated by Ex.C.W.1/A (report submitted by Provincial Election Commissioner);
(b) P.W. 1 also found that the report in terms of Forms XIV and XV was missing;
(c) that Moulvi Abdul Ahad, a polling agent of a rival candidate while appearing as P.W.6 gave an affidavit Ex.6/A levelled serious allegations against the District Nazim Washuk;
(d) that the Presiding Officer of the said polling station Syed Abdullah Shah was a Superintendent Agriculture under District Nazim and there is finding of fact against him qua his role in rigging the poll at the said polling station.
(xv) On Polling Station 83 i.e. improvised Hut Killi Muhammad Khan (combined), the Presiding Officer and the Assistant Presiding Officer at this Polling Station were both school teachers. The Assistant Presiding Officer appeared before the Tribunal as A.W.5 and candidly alleged that he and other members of the election commission staff were forcibly taken and bogus votes were cast.
11. Since appellant's learned counsel opted not to press two issues relatable to non-verification of annexures and election petition (Issues Nos. 8 and 9), this Court is left with the following issues necessary for disposal of this appeal:
(i) Issue No.11 Whether the petitioner and returned candidate (respondent No.1) have obtained 22175 votes and 22856 votes (difference of 681 votes)?
(ii) Issue No.13 Whether one Mir Mujeeb-ur-Rahman Muhammad Hassani (District Nazim of Washuk) and Mir Habib ur Rehman Muhammad Hassani candidate of PB-47 having in connivance with returned candidate in procuring the said result?
(iii) Issue No.14 Whether the District Returning Officer Nushki was authorized to de-seal the polling bags in the presence of Returning Officer and taking out of the requisite record, re-seal the same and in this behalf the report was submitted on 28th February, 2008 and the Election Commission has directed for approaching the Tribunal for trial?
(iv) Issue No.15 Whether the respondent No. 1 in connivance of Polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect?
12. The learned Tribunal while deciding Issue No. 11 in favour of the respondent came to the conclusion as under:-- "As per official result the respondent No.1 obtained 22856 votes while the petitioner secured 22175 votes with the difference of 681 votes but on the contrary the consolidated statement of the result after recount in respect of constituency NA-271, Kharan---cum-Punjgoor furnished by the Provincial Election Commissioner, Balochsitan, the petitioner has secured 22137 votes while the respondent No.1 secured 21376 votes. Thus the petitioner has a lead of 761 votes over the respondent No.1. This fact was neither denied by the counsel for the respondent No.1 nor disputed, as a result I am inclined to hold that petitioner has secured more votes than respondent No.1. "
13. On Issue No. 13, the Court mainly relied on the statement of P.W.4 Khurshid Ahmed, Presiding Officer, P.S. Jangian (Female), who not only tendered his affidavit (Ex.P/4- A) but also appeared in Court in support thereof and the statement of P.W.6 Moulvi Abdul Ahad (who also tendered his affidavit Ex.P/6A). He was the polling agent of one candidate at Polling Station NA 271 Talunk Union Council Jangian. The Court found that they are credible because they are natural witnesses and that during cross-examination their credibility could not be shaken.
14. On Issue No. 14, the Court found that the District and Sessions Judge Washuk was duly authorized to de-seal the relevant bags in the presence of Returning Officer concerned as there was a direction received through fax from the Election Commission of Pakistan to do so.
15. Issue No.15 is crucial i.e. whether the respondent No.1 in connivance of polling staff have rigged the election polls and the result thereof as alleged in para number 7 of the petition, if so, to what effect? The Court found that there were six witnesses produced by the respondent to prove the afore-referred issue. The Presiding Officer Jangian (female) candidly stated before the Tribunal that people of the area did not allow the polling agents of the contesting candidates on the gun point to enter the polling station Jangian (female). He made a complaint to the Assistant Returning Officer but he directed him to start the polling. He alleged that the females observing parda cast their votes in absence of agents. About this, he made a complaint to the Assistant Returning Officer and requested the latter to stop the polling/ casting of bogus votes but he again was directed to continue the polling. The witness added that during polling Mir Mujeeb-ur-Rehman Muhammad Hassani, Nazim Washuk (a close relation of the appellant) remained present. The Assistant Returning Officer and the afore-mentioned District Nazim despite his complaints directed him to proceed with the polling process. P.W.5 Mukhtar Ahmad Assistant Presiding Officer, Killi Khan Muhammad Union Council Jangian (Male and Female) submitted that at the said polling station, 126 votes were cast out of which appellant received 37 votes whereas respondent 77 and 07 votes were declared bogus. After the close of polling process and declaration of result, he along with Presiding Officer and Abdul Wahab were going back when they were stopped in the way at Shaho Gari Village at 11-00 p.m. in the night by 5/6 vehicles which carried certain police officials as well.
They were taken to a house, the result which was prepared by him was snatched and torn. They opened the ballot bags and fixed stamps on empty ballot papers and, thumb impression were put by one namely Latif. According to him, the Presiding Officer Jangian was also present. This witness was confronted with his affidavit (Ex. R/2) which gave a different story but he said that the said affidavit was procured under duress in the office of District Nazim. This witness was corroborated by PW6 Moulvi Abdul Ahad who was polling agent of one of the candidates namely Abdul Aziz Baloch at Polling Station Talunk Union Council Jangian. In the graphic narration of the state of affairs at the polling station where he served as an agent which has been discussed in detail by the learned Tribunal, he specifically alleged that when the polling was on, one Aziz Ahmed son of Abdul Khaliq Muhammad Hassani, Mir Abdul Khaliq and Mujeeb-ur-Rehman Muhammad Hassani, Nazim Washuk at Talunk came there and took away Presiding Officer and other polling staff twice.
The polling agent Muhammad Asif and Sher Ahmed were taken away and he deputed two police officials who accompanied the said District Nazim as personal guards and asked those police officials who remained at the doors of the polling station and not allowed any polling agent to enter the polling station. He further alleged that, "Mir Mujeeb-ur-Rehman went into the polling station and took away the ballot papers with him and after few hours came back and we were directed to go home and on our refusal we were forcibly got out from the polling station and started stuffing ballot papers into the boxes. On his protest the Presiding Officer replied that since Mujeeb-ur-Rehman is a powerful person, therefore, he is helpless before him and on his refusal his life would be in danger. He further deposed that at 5:15 p.m. when he offered his prayers entered into the polling station he saw that Presiding Officer himself was stuffing ballot papers into boxes. He further stated that in his presence 49 male and 59 female votes were cast, while in the forged result Habib-ur-Rehman got 449 votes, respondent No.1 got 483 votes and petitioner got 6 votes. When we told the Presiding Officer that genuine votes of Habib-ur-Rehman were 91, Ehsan Reki 100 votes and remaining were fake and stated that we would challenge the same and were ready to deposit the required fee but he refused to accept the fee and he also refused to show us the serial number of the ballot papers used. These witnesses were cross-examined by the counsel for respondent No.1 but nothing was brought on record that they were deposing falsely and favouring petitioner."
16. The learned Tribunal individually discussed the evidence brought on record with regard to the alleged rigging at the following polling stations while deciding Issue No. 15:-- (i)Polling Station 83 improvised Hut Killi Khan Muhammad (combined).
(ii)Polling Station 86 Government Primary School Jungian (Male)
(iii)Polling Station 89 Government Primary School Shahogari (combined).
(iv)Polling Station 90 Government Primary School Talonk (combined).
(v)Polling Station 116 Government Primary School Tagaz Kand (combined).
(vi)Polling Station 137 Government Primary School Garie (combined).
(vii)Polling Station 138 Basic Health Unit Beont (combined).
(viii)Polling Station 139 Improvised Hut Killi Pushtakoo (combined).
(ix)Polling Station 140 Government Primary School Sarahap (combined).
(x)Polling Station 150 Primary School Killi Haji Allah Bux (combined).
17. Having discussed the evidence regarding the aforesaid polling stations, the Tribunal came to the conclusion that the appellant, "with the connivance of polling staff have rigged the election in eleven polling stations. So far the election of remaining polling stations is concerned that cannot be declared void because no allegation of illegal practices, bogus voting and tampering has been raised by the petitioner in his petition, therefore, I am inclined to hold that in view of the consolidated statement of result after the second count the petitioner has secured 22137 votes, deserving to be declared successful candidate.
18. The main plank of the arguments of appellant's learned counsel in assailing the judgment of the learned Tribunal was that it heavily relied on the report of the Provincial Election Commissioner which according to him is against the mandate of proviso to section 46(2) of the Act and the law declared by this Court in Mian Ejaz Shafi v. Syed Ali Ashraf Shah PLD 1995 SC 43. A brief reference to the afore-referred provision would be in order which reads as under:-- Order for production of documents.----(1) A Tribunal may order the opening of packets of counterfoils and certificates or the inspection of any counted ballot papers.
(2) An order under subsection (1) may be made subject to such conditions as to persons, time, place and mode of inspection, production of documents and opening of packets as the Tribunal making the order may think expedient: Provided that in making and carrying into effect an order for the inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid."
19. A close look at the afore-referred provision would indicate that the Tribunal can appoint a Commission and direct opening of packets of counterfoils and certificates or the inspection of any counted ballot papers with a rider that in "carrying into effect an order for inspection of counted ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Tribunal to be invalid." (emphasis is supplied).
20. Subsection (3) of section 46 further provides that the production of a document by the Commission appointed by the Tribunal in terms of subsection (1) of section 46, shall be conclusive evidence that the document relates to the election specified in the order and any endorsement on any ballot papers or packet of ballot papers or documents so produced shall be prima facie that the ballot papers or documents are what the endorsement states them to be." Thus a Commission appointed by the Tribunal has the power not only to carry out the exercise as specified in the section but further the endorsement made on the ballot papers or the connected documents by the said Commission shall have prima facie evidentiary value. The intention of the law maker appears to be that the Commission appointed by the Tribunal can carry out the inspection of counted ballot papers and it shall report the same to the Tribunal, but shall not disclose the invalidity of the counted votes till the Tribunal having examined the report of the Commission and other material, if any, brought in evidence so holds.
21. In Mian Ejaz Shafi v. Syed Ali Ashraf Shah PLD 1995 SC 43, the Court had set aside the order of the Election Tribunal because:-- "------it appears from the impugned decision that the Election Tribunal included in the record report of the Deputy Election Commissioner as Exh.13, and acted upon it in totality without checking or examining the ballot papers, which were invalidated in the recount
5. It, therefore, appears very clearly that after recount 625 votes of the appellant and 29 votes of respondent No.2 were declared invalid by the Deputy Election Commissioner, who had no authority under the law to do so as these votes could be invalidated by the Election Tribunal and for that purpose the Election Tribunal should have called for the sealed bags containing those invalidated votes in order to satisfy itself whether it was properly done or not and, if satisfied, should have declared itself these votes to be invalid."
22. In Sheela Charles v. Qaiser Ifraeem Soraya 1996 SCMR 1455 two unsuccessful candidates had filed election petition and claimed that they were entitled to be elected in place of the fifth returned candidate (there were five minority seats). It was alleged that the mistake/manipulation was committed at the stage of compilation of result and that they had secured more votes which were converted into less. The Election Tribunal directed the Provincial Election Commissioner to recount votes polled at 35 constituencies. The Election Tribunal relying on the report of the recount reversed the election result and declared Qaiser Ifraeem Soraya to be the returned candidate. This was challenged in appeal before this Court and the precise objection raised with regard to the said report of the Commission was that the Tribunal had not afforded any opportunity to the appellants that the recount was not carried out correctly. It was in these circumstances that this Court while setting aside the order of the Tribunal and remanded the case to the Tribunal to provide opportunity to the parties to cross examine the Commission and to lead evidence, it was held as follows:-- "It is needless to mention here that the report of recount by the Commission which was done under the orders of the Court, could not be accepted as gospel truth if it was objected to by the other contesting parties in the case---These objections when read with the earlier objection of Dr. Sheela B Charles raised before the Tribunal at the time of passing of the order for recount by the Tribunal on 9-8-1994, would show that at least Dr. Sheela did not accept the result of recount as correct. In these circumstances, either to have called the person who prepared the report of recount and examined in the court and allowed opportunity to the parties to cross examine the witnesses. The Tribunal could also, on the face of the objections by Dr. Sheela B. Charles, regarding tampering of Form XVI-A, call for the original record of Forms XVI-A and XIV in order to satisfy itself as to the correctness of recount. In the case of Lachman Das v. Servanand and 66 others 1995 SCMR 435 this Court in similar circumstances where the Tribunal had not afforded opportunity to the parties to lead evidence by producing documents, had remanded the case to the Tribunal for re- determination of the issue for allowing the parties to lead evidence if any---We, accordingly, allow both the above appeals partly and remand the cases to the Tribunal with the direction that before accepting the report of the Commission with regard to recount of votes in respect of 17 and 35 constituencies, the parties may be allowed to lead evidence, if any, in support of their respective contentions."
23. In Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCM7t 284, the Election Tribunal in exercise of the powers under section 46(2) of the Act had directed recount and on the basis of the report so submitted by the Commission after recount, it held election result to be invalid and declared the contestant to be the returned candidate. This Court while not interfering with the finding that there were massive irregularities which warranted annulment of the elections, modified the order of the Tribunal and declared the entire elections of the constituency to be void and directed fresh poll. The Court at length dwelt on the parameters of the powers of the Commission appointed under section 46(2) of the Act and how the Tribunal should proceed with the matter observed as follows,-- "We have no doubt that the Tribunal must have been mindful of this mandatory requirement and it was only after it found specific votes to be invalid that the parties were made privy to the conclusion. Another aspect of the matter is that a recount may not always be an absolute or fool proof answer. Three cases from this jurisdiction have contextual relevance, Such are Ejaz Shafi v. Ali Ashraf Shah, PLD 1995 SC 43; Ejaz Shafi v. Ali Ashraf Shah, 1996 SCMR 605 and Iftikhar Hussain v. Ijaz Ahrnad Cheema, 1996 SCMR 943. The first two of these cases involved a recount pertaining to the same election and the same constituency. Initially, the having taken place by an agency other than the Tribunal, the case was remanded by this Court for the Tribunal to undertake that exercise but when that happened and the proposed recount did take place, a number of votes, on account of duplicate markings, were rejected and the election result was reversed. On a repeat appeal to this Court it was found that the double markings hand, probably, occurred after the election had taken place and not at the time the poll was being undertaken. As a result, such discrepancies were discarded and the original result maintained. In the third case, the power of the Tribunal to undertake and examination of interpolations in the election record was recognized. What, therefore, has to be ensured, once powers under section 46(1) and (2) of the Act come to be exercised, is that the jurisdiction is not over-stretched, that there is a prima facie case for a recount, that recount, if allowed, takes place scrupulously, without detracting from secrecy of the ballot and, finally that it can never be ignored that during the passage of time following upon the election and the recount a number of things may happen, having potential to throw up a picture that does not, in fact, correspond with the electoral process but depicts something of a later origin.
To put it differently, the power, though broad and extensive, is to be used sparingly and with circumspection, the only object being to ensure a fair and lawful result of the electoral exercise.
Nothing short of that would serve the object of the legislation."
24. In the judgments of this Court to which reference has been made in the preceding para, the reports of recount by the Provincial Election Commissioner were never declared void per se. The judgments of the Election Tribunals were interfered with only when those were based solely on the recent report submitted by the Commission, without parties given opportunity to cross-examine him and without adverting to the other evidence on record. The facts in the instant case are distinguishable. Admittedly the order passed on 29-4-2009 by the Election Tribunal directing the Provincial Election Commissioner, Balochistan to carry out the recount was passed in the presence of the parties and was repeated on 13-5-2009 again in the presence of the parties and their learned counsel. The Provincial Election Commissioner carried out the exercise of recount on 16th of May 2009 not only in presence of the parties but their learned counsel and the committee constituted by the Provincial Election Commission to carry out the exercise comprised of the following:--
(1) Syed Sultan Bayazeed Deputy Election Commissioner, Balochistan.
(2) Mr. Noor Muhammad Shahwani Deputy Election Commissioner, Kalat Division.
(3) Mr. Muhammad Riaz Assistant Election Commissioner Quetta.
(4) Mr. Waseem Ahmad, Assistant Election Commissioner (HQ).
25. The committee headed by the Provincial Election Commissioner de-sealed the bags, counted the votes and again re-sealed them in the presence of the parties and no objection was raised by any of the parties although they were personally present with regard to de-sealing, recount and resealing of the ballot papers although both the parties along with others, were personally present.
The Committee did recount of the following polling stations: (i)Polling Station No. 83 improvised Hut Killi Khan Muhammad (combined).
(ii)Polling Station No. 86 Government Primary School Jangian (Male).
(iii)Polling Station No. 87 Government Basic Health Unit Jangian. (Female).
(iv)Polling Station No. 89 Government Primary School Shahogari (combined).
(v)Polling Station No. 90 Government Primary School Talonk (combined).
(vi)Polling Station No. 116 Government Primary School Tagaz Kand (combined).
(vii)Polling Station No. 137 Government Primary School Gariee (combined).
(viii)Polling Station No. 138 Basic Health Unit Beont (combined).
(ix)Polling Station No. 139 Improvised Hut Killi Pushtakoo (combined).
(x)Polling Station No. 140 Government Primary School Sarahap (combined).
(xi)Polling Station No. 150 Primary School Killi Haji Allah Bux (combined).
The Provincial Election Commissioner not only carried out recount but made observations with regard to polling bags of each of the afore-referred polling stations. The polling station wise break up of the report is as under:-- Polling Station No.Vote Cast in favour of AppellantVote cast in Favour of RespondentRejected VotesInspection comments/Remarks of P.E.C.
83 312 76 6 The polling bag was opened and it was found that the Ballot Paper Account (Form XV), statement of the Count (Form XIV) and Marked Copies of Electoral Rolls were not present in the Polling Bag, out of these 92 Ballot Papers were un-issued. Total 408 Ballot Papers were detached from Counterfoils and 8 Ballot Papers were missing in the Polling Bag. On checking the Counterfoils of Ballot Papers, it was found that 268 counterfoils were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars of Counterfoil which is violation of subsection (2) of section 33 of Representation of the People Act, 1976.
86 324 0 256 In the polling bag of Polling Station No. 86, the statement of the Count (Form XIV), Ballot Paper Account (Form XV) were not found present, whereas Marked Copies of Electoral Rolls were found in the Polling Bag on which 266 number of voters were marked. It was observed that the Ballot Papers marked in the favour of candidates were not sealed in different envelops whereas they were tied up together. These ballot papers were shown one by one to all the parties/candidates present in the Recounting. In total, there were 900 Ballot Papers found in the Polling Bag, out of these 246 Ballot papers were un-issued and found intact. Total 654 Ballot Papers were detached from Counterfoils. During recounting in respect of said polling station total 256 ballot papers have been rejected, whereas 20 ballot papers were already rejected by the PO. Besides 54 ballot papers were found missing in the bag. The Counterfoils of Ballot Papers were checked. It was observed that 600 counterfoils were unfilled and the PO concerned did not mark the official Code Mark stamp and signature of the PO were missing or the counterfoils were left blank and no particular of voters were filled in, which is violation of subsection (2) of section 33 of the Representation of the People Act, 1976.
87 238 0 294 The Polling Bag was opened in the presence of all the candidates/parties except the Respondent viz Mr. Ehsanullah Reki and his Counsel, who filed an application in this regard, which is at annexure "B". The Ballot Paper Account (Form XV) and statement of the count Form XIV were not found, whereas Marked Copies of Electoral Rolls were found present on which 532 votes were marked.
N.P. Total 567 Ballot Papers were detached form Counterfoil and it was found that 17 votes were not stamped with official Code and 277 Ballot Papers were without signature of PO/APO. 35 Ballot Papers were found missing in the bag.On checking the Counterfoils of Ballot Papers, it was found that 100 Counterfoils were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars on Counterfoil, which is violation of sub- section (2) of section 33 of Representation of People Act, 1976.
89 516 51 18 The Polling Bag of Polling Station No. 89 was opened and it was found that the statement of the Count (Form XIV) Ballot Paper Account Form XV were not present, whereas Marked Copies of Electoral Roll were found in the Polling Bag on which 398 number of voters were marked.Total 699 Ballot Papers were detached from Counterfoil and 580 Ballot Papers were found valid. Challenged Ballot Paper was also present in the Polling Bag and 18 votes were not stamped with official Code Mark, hence were rejected, and 97 Ballot Papers were missing in the Polling Bag.On checking the Counterfoils of Ballot Papers, it was found that 360 Counterfoils were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars on Counterfoils which is violation of sub- section (2) of section 33 of Representation of People Act, 1976.
90 483 6 5 The Polling Bag of Polling Station No. 90 was opened and it was found that the Statement of the Count (Form XIV) and Ballot Paper Account Form XV were not found present, whereas Marked Copies of Electoral Rolls were found in the Polling Bag on which 308 numbers of voters were marked. Total 500 Ballot Papers were detached from Counterfoils and it was found that 143 Ballot Papers were not stamped with official Code Mark. Total number of Ballot Papers rejected on the Polling Station was 5 whereas 4 Ballot Papers were missing in the Polling Bag.On checking the Counterfoils of Ballot Papers, it was found that 500 Counterfoils were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars through thumb impressions were found on the Counterfoils which is violation of subsection (2) of section 33 of Representation of the People Act, 1973.
116 179 *4510 31 The Polling Bag of Polling Station No.116 was opened and it was found that 275 Ballot Papers were marked on the Master Copies of Electoral Rolls. Total 274 Ballot Papers were detached from Counterfoil and it was found that on 45 Ballot Papers there were not official Code Mark and signature of PO/APO were found or in case of few Ballot Papers only a line of official code mark could be seen and it could not be assumed that this mark is from the official Code Mark or any other thing, therefore these 45 votes were neither rejected nor included in valid Ballot Papers as the status of these Ballot Papers were disputed/ambiguous. Total number of votes rejected on the Polling Station was
31. On checking the Counterfoils of Ballot Papers, it was found that 274 Counterfoils ,were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars of Counterfoils that is violation of subsection (2) of section 33 of Representation of the People Act, 1976.
137 331 48 32 The Polling Bag of Polling Station No. 137 was opened and it was found that 351 voters were marked on the Electoral Rolls.
Total 453 Ballot Papers were detached from Counterfoil and it was found that 4 Ballot Papers were not stamped with official Code Mark. 15 Ballot Papers were rejected by the PO. In total, 32 Ballot Papers were rejected, whereas 4 Ballot Papers were found missing in the Polling Bag.On checking the Counterfoils of Ballot Papers, it was found that 36 Counterfoils were unfilled and the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars of Counterfoil which is violation of subsection (2) of section 33 of Representation of the People Act, 1976.
138 311 18 24 In the Polling Bag of Polling Station No. 138, 356 numbers of voters were marked on the Electoral Rolls. Total 407 Ballot Papers were detached from Counterfoil. Whereas no official Code Mark stamp was found on 9 Ballot Papers. Total number of Ballot Papers rejected on the Polling Station was 24.On checking the Counterfoils of Ballot Papers, it was found that 407 Counterfoils were left blank/unfilled, whereas the PO/APO concerned did not mark his official Code Mark, signature or filled in the complete particulars of Counterfoil that is violation of subsection (2) of section 33 of Representation of the People Act, 1976.
139 --- --- --- The Polling Bag of above Polling Station was opened in the presence of all candidates/parties and no Ballot Paper, copies of Electoral Rolls and Ballot Paper Account (Form XIV) was found in the Polling Bag, however Counterfoils of 4 books of used Ballot Papers were found in the Polling Bag. These Counterfoils were checked and it was observed that these were stamped, signed, and filled in by the PO concerned, however the entry on was Left blank. Certificate to this effect was signed by all the candidates/parties enclosed at annexure "C".
140 --- --- --- The Polling Bag of above Polling Station was opened in the presence of all the candidates/parties, and nothing was found in the Polling Bag except posters for Polling Station. All the candidates/parties witnessed a certificate to this effect which is at annexure "D".
150 409 18 26 In the polling bag of above Polling Station, statement of the Count Form XIV, Ballot Paper Account Form XV and Counterfoils of used Ballot Papers were not found. Only Marked copies of Electoral Rolls and seven complete unused books of Ballot Papers were present. During Recounting process, 15 Ballot Papers have been rejected as there was no official Code Mark stamp as well as signatures on these Ballot Papers.
11 Ballot Papers already rejected by the PO were found. As such in total 26 Ballot Papers were rejected.
26. In terms of the report submitted (on 21-5-2009) by the Commission, the vote count is as under:- - Appellant: 21376 Respondent: 22137 Respondent's lead:706 votes After the recount report submitted by the Provincial Election Commissioner, the appellant without attributing any mala fides to the Commission or its legality with reference to proviso to section 46(2) of the Act contended through an application (dated 25-5-2009) that during the interregnum there had been massive interpolation of the record and before scrutiny of the result as- per report submitted by the Provincial Election Commissioner, "he be allowed to produce witness" to prove the said interpolation. The learned Tribunal having considered the report of the Commission and the other evidence on record allowed the election petition vide judgment dated 16-7-2009. This was challenged in C.P.L.A. No. 945 of 2009. Surprisingly even in that petition no objection with reference to proviso to section 46(2) of the Act was taken. This Court by a consent order remanded the case to the Election Tribunal with a direction as follows:- "The impugned judgment dated 16-7-2009 passed by the Election Tribunal Balochistan in Election Petition No. 30 of 2008 be set aside and case be remanded to the Tribunal for fresh decision, firstly allowing the Provincial Election Commissioner/ Commission to appear and tender the report prepared by him with opportunity to both the sides to cross-examine the Commission. On the completion of cross-examination the learned Tribunal shall hear the petition in the light of the evidence already produced and shall determine the issues already framed independently and without being influenced in any manner by the earlier decision of the Tribunal."
27. There were three important features of the remand order:
(i) The report submitted by the Provincial Election Commissioner was not declared illegal or void.
Tribunal was directed to examine Provincial Election Commissioner and objection, if any, was allowed to be raised through cross examining the said Provincial Election Commissioner.
(ii) The Tribunal was asked to decide the petition in the light of the evidence "already produced".
(iii) The direction that the Tribunal "shall determine the issues already framed" and no issue with reference to section 46(2) of the Act had been framed.
28. In the facts and circumstances of the case in hand and having considered the law declared in this regard, we are of the view that in remanding the case to the Tribunal in terms as indicated in the preceding Para, this Court took note of appellant's objection to recount and the import of proviso to section 46(2) of the Act and the matter was left to the Tribunal to decide it taking into account the report of the recount submitted by the Commissioner, his statement in Court, other evidence recorded and objections, if any, raised by the appellant. In post remand proceedings, the Provincial Election Commissioner not only appeared as C.W. 1 but was also allowed to be cross- 'examined by the parties. Moreover, the remarks/observations about rigging and malpractices at the 11 polling stations were partly borne out from the statement of P.W. insofar as the four polling stations are concerned (86, 87, 89, 90), by the report of the Returning Officer/Judicial Magistrate NA-271 with regard to Polling Stations Nos. 86 and 87, by P.W.4 Khursheed Ahmad who was Presiding Officer of Polling Station No. 87 Jangian (Female) and the affidavit tendered by him in support of the allegations (Ex.P4/A) that the polling agents of respondent were not allowed to enter the Polling Station and they were threatened. P.W.5 Mukhtiar Ahmad was Assistant Presiding Officer Hut Killi Khan Muhammad levelled serious allegations against the agents and associates of appellant when he said that after the polls when they were going back towards District Washuk, they were stopped at 11-00 p.m. by 5/6 vehicles, he alleged as follows:-- "We were accompanied by police official and we were five polling staff members. The Presiding Officer and I were got down from the vehicle. The police officials were directed to proceed towards city. The Presiding Officer myself and Abdul Wahab were got down from the vehicle and were taken to a house. There were five to six people already present in the said house. There. was one Presiding Officer of the said area present there, while Muhammad Essa Muhammad Hassan Presiding Officer was also present --- They opened the bags and fixed the stamps on empty ballot papers, while the thumbing was made by one person namely Lateef. In those people, who were present at the relevant time, Presiding Officer of Jangian was also accompanied."
29. He was confronted by an earlier affidavit regarding the conduct of poll (Ex.R/2) to which he replied that "I was taken forcibly to District Nazim, where this affidavit was taken forcibly." Moulvi Abdul Ahad who was Polling Agent of one of the candidates (Abdul Aziz Baloch candidate of NA 271) not only gave affidavits (Ex.6A) but also appeared in Court in support thereof.
30. Although statement of P.W. Syed Anwar Aftab who had. carried out the recount of the four polling stations (86, 87, 89, 90) on the - direction of the Election Commission of Pakistan had corroborated yet his recount was objected to by the appellant on the ground that it was carried out in his absence and that during recount he had done interpolation and manipulation thereby reduced his lead. On this specific issue (No.6) was framed i.e. Whether the District and Sessions Judge Nushki had spoiled and changed the votes in league of petitioner, as alleged in para No. `F' of the reply? However no evidence was led on this point by the appellant. He produced R.W. 1 Kulian Khan, Muhammad Ashraf R.W.2, Hafiz Abdullah R.W.3, Noor Ahmed Pirkani R.W.4, Dr. Abdul Samad R.W.5, R.W.6 Syed Abdullah Shah, R.W.7 Abdul Aziz, R.W.8 Waseem Ahmad. R.W.8 Waseem Ahmad (Assistant Election Commissioner Headquarters) again appeared as R.W.9 and while appearing as R.W.9 produced the order of the Election Commission of Pakistan dated 28-2-2008 to the following effect:-- "In view of the apprehension that the Returning Officer for NA-271 Kharan-cum-Washuk-cum- Panjgur, who has been directed to place relevant record of the Constituency before this Commission on the 1st March, 2008 vide Order, dated 23-2-2008 may tamper with the requisite record while de-sealing the polling bags, the District and Sessions Judge, Noshki is authorized to de-seal the relevant bags in presence of the Returning Officer concerned and after taking out the requisite record from those bags reseal them and thereafter, shall personally produce the same before the Election Commission on the 1st March, 2008."
31. Instead of proving Issue No.6 this witness explained the background with reference to the afore- mentioned order of the Election Commission of Pakistan because of which District and Sessions Judge Nashki Anwar Aftab was directed to de-seal the bags in the presence of the Returning Officer and after taking out the requisite record from them re-seal them and thereafter to produce them personally before the Election Commission on 1-3-2008. The exercise carried out by him was a bona fide exercise and no exception could be taken to it.
32. We are mindful that the allegations levelled with regard to malpractices at some of the polling stations were such that it was difficult to identify the culprits and one obvious course to follow was to direct fresh polls of the entire constituency. However, we note that there were in all 220 polling stations and the dispute subject matter of this appeal is relatable to 11 polling stations only and with regard to four polling stations the appellant had alleged that in the recount carried out by P.W.1 on the direction of the Election Commission of Pakistan, the former had interpolated in the record, but this could not be proved. The objection of the appellant with regard to the report submitted by C.W.1, the Provincial Election Commissioner after the recount was duly addressed by this Court in remanding the case to the Tribunal. Parties were allowed to cross examine him.
However, nothing adverse was brought in evidence which could discredit the testimony of C.W. and no mala fide was either alleged or could be inferred. We further note that notwithstanding the above even if all the rejected votes in all the eleven polling stations (although appellant had specific objection with regard to four only) are cast in favour of the appellant, the respondent still wins by a margin of 188 votes as is borne out from the break up given in Paras 25 and 26 above.
33. In the afore-referred circumstances, we do not deem it proper to annul the entire election and instead concur with the finding of the Election Tribunal to declare the respondent as a Returned Candidate.
34. Although in deciding issues Nos. 11, 13 and 15 in favour of respondent, the Election Tribunal had mainly relied on the report of C.W.1, yet that by itself would not warrant annulling the order if the same is sustainable on other valid grounds available from a perusal of the evidence on record. This is in line with the well recognized principle of severability enshrined in section 24-A of the General Clauses Act. In State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. 2010 SCMR 121, this Court observed as follows:-- "In our view if the bad reasons are severable from the good ones and are not intertwined or inter- linked, an order passed by an administrative authority may not be quashed if otherwise sustainable on remaining valid grounds. However, the cases involving detention or liberty of citizens fall in a different category as was held in the cases of Government of West Pakistan v.
Haider Bakhsh Jatoi and another PLD 1969 SC 210 and Rafiq Ahmed Sheikh v. The Crown PLD 1951 Lahore 17. In the case of Kh. Ahmed Tariq Rahim v. Federation of Pakistan through the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad PLD 1992 SC 646 at p. 666, involving dissolution of National Assembly, it was observed that it was true that some of the grounds like (c),
(ii) and (e) (iii) might not have been independently sufficient to warrant such an action. They could, however, be invoked, referred to and made use of along with other grounds more relevant like grounds (a) and (b), which by themselves were sufficient to justify the action. In Mohtarama Benazir Bhutto v. The President of Pakistan and others PLD 1998 SC 388 at pages 541 and 542, one of the grounds for dissolution of National Assembly was the appointment of a person as Cabinet Minister against whom criminal cases were pending. It was held that the said ground alone as such might not be sufficient to invoke Article 58(2)(b) of the Constitution to dismiss the Government and dissolve the National Assembly----However, the material produced on that ground could be considered by the President in conjunction with other grounds to arrive at a general finding that the situation had arisen in which Government of Federation could not be carried on in accordance with provisions of the Constitution. In Commissioner Sargodha Division v. Khizar Hayat PLD 1996 SC 793, the order of the Commissioner was upheld by applying the doctrine of severability. In Brig.
(Retd.) F.B. Ali v. The State PLD 1975 SC 706, the charge of conspiracy was found to be wholly irrelevant and inadmissible. Nevertheless, it was held that the whole criminal trial was not vititated on that account. Only the conviction in respect of offence under section 122-A PPC stood vitiated for want of jurisdiction and not the conviction on the charge of attempt to seduce, because, that was within the jurisdiction of the Court Martial to try and there was relevant evidence on which the decision of Court Martial could be based. In Swarn Singh v. State of Punjab and others AIR 1976. SC 232, the Supreme Court of India took the view that where the order of a domestic Tribunal might refer to the several grounds some of which more relevant and existent and the others irrelevant and non-existent, the order would be sustained if the Court was satisfied that the authority would have based the order on the relevant and existent grounds and the exclusion of irrelevant or non- existent grounds could not have affected the ultimate decision. In the case of State of Orrisa and others v. Bidyabhushan Mohapatra AIR 1963 SC 779 at pages 785 and 786, it was observed that since the order of dismissal of a Government servant was not based on charges 1(a) and 1(e) alone, and the other charges were found to be valid, therefore, the same was to be maintained. A similar view was taken in the case of State of Maharashtera v. B.K. Takkamore AIR 1967 SC 1353. In Royal Bank of Canada v. I.R.C. (1972) 1 All E.R. 225 at page 239, a notice was divided into numbered paragraphs dealing with different matters and the attack was made on one or more of such paragraphs, it was observed that such paragraphs should not affect the other paragraphs and that the notice should be good as to the good paragraphs. In Breen v. Amalgamated Engineering Union and others (1971) 2 Q.B. 175, that Court of Appeal took the view that even if one of the reasons for an action was erroneous nevertheless, the decision could be upheld on other two grounds.
Reference may also be made to the cases of Mehar Alvi and Khalid Malik (supra). Similar opinion was expressed in Halsbury's Laws of England, Fourth Edition, Volume 1, paragraph 26 at page 29 and Administrative Law by H. WR. Wade, Sixth Edition at page 338. Even if it was shown that some of the grounds forming basis of the order of cancellation of licence of the Indus Bank were irrelevant or non-existent, the same by themselves would not be sufficient to strike down the order."
35. This Court also examined the evidence on record including the statement of C.W. recorded after the remand with the assistance of learned counsel for the parties. We are of the view that there is sufficient material to uphold the order so far as the return of respondent as a successful candidate is concerned.
36. The tenor of the impugned judgment indicates that the Tribunal did consider the entire evidence on record along with the report submitted by C.W.1. However, coming to the question with regard to the finding vide which the appellant was declared to have committed corrupt and illegal practices with the connivance of his election agent or any other person in terms of section 68(d) of the Act, we find that no credible evidence was led to hold the appellant personally liable for such a finding. Rather the evidence led did indicate that District Nazim Washuk who was appellant's brother-in-law and others did indulge in election malpractices but there was no direct allegation that in any of the alleged illegal transactions, the appellant was present or was personally involved.
Perhaps some of his relations were more loyal than the king. In these circumstances, the findings of the Tribunal in the impugned judgment (on issue No.15) that the appellant in connivance with the polling staff had rigged the elections are not sustainable.
37. For the afore-mentioned reasons, this appeal was partly allowed in terms of our short order dated 22-4-2010 which reads as under: "Having heard learned counsel for the parties at length and for reasons to be recorded later in the judgment, this appeal is partly allowed, the findings with regard to the return of respondent as an elected candidate are upheld. However, the findings that appellant had himself indulged in corrupt and illegal practices are set aside."
M.A.K./E-2/SCAppeal partly allowed.