' SH. NAJAM-UL-HASAN, J.---Mian Abdul Manan, petitioner as well as Muhammad Ijaz Virk, respondent No,1 and others contested election as candidates for the seat of National Assembly from Constituency N.A. 83, Faisalabad in the General Election held on 18-2-2008. As per result published in the official Gazette of Pakistan vide Notification No, F.2(4)/2008-Cord dated 3-3-2008 issued by the Election Commission of Pakistan, Muhammad Ijaz Virk, respondent No,1 was declared returned candidate against the said seat.
2. Being aggrieved of the result of election declared by the Election Commission of Pakistan, the petitioner filed a petition under section 103-AA of the Representation of the People Act, 1976 before the Election Commission of Pakistan to declare the poll void which was dismissed. Thereafter the petitioner filed Writ Petition No,1707 of 2008 in the Lahore High Court which was dismissed vide order dated 12-3-2008 with the observation that the petitioner has a remedy available to him in the form of an election petition before the Election Tribunal. Hence, this Election Petition under section 52 of the Representation of the People Act, 1976 (hereinafter to be called the Act) assailing the result whereby respondent No,1 was declared returned candidate, on the ground. That massive corrupt and illegal practices were committed by respondent No,1 with the help of local administration; that the petitioner had moved an application to the Returning Officer for recount of the total ballot papers under section 39(6) of the Act which was illegally rejected by the Returning Officer though he was bound under the law to examine the rejected votes before consolidation which he did not do and that respondent No,1 had won the election in connivance with the election staff.
3. Notices were issued by this Tribunal to all the respondents through all possible modes for effecting service upon them. However, only respondent No,1 chose to contest the petition and submitted written statement. Since no one had come forward on behalf of respondents No,2 to 7 to contest this petition, as such the said respondents were proceeded against ex parte. On the divergent pleadings of parties, following issues were framed:--
(1) Whether the respondent No, 1 committed any illegal or corrupt practice and did it materially 'effect or alter the result of the elections? OPP.
(2) Whether the Returning Officer conducted the exercise of recounting of votes in proper and legal manner and if not its effect ? OPP.
(3) Whether the copies of the result were provided to the petitioner as required by law ? OPP.
(4) Whether the petition is within time? OP-Parties.
(5) Whether the result sheets prepared by the Presiding Officer are in consonance with the requirements of law? OPR.
(6) Whether the petitioner's polling agents were expelled from the Polling Stations Nos. 36, 38, 40, 41, 43, 44, 45, 49, 50, 51, 52, 131, 153, 229 and 231 and its effect? OPR.
(7) Relief.
4. In order to prove their respective issues the parties led oral as well as documentary evidence.
5. Riasat Ali entered the witness-box as P.W.1. His affidavit (Mark-A) was filed with the election petition. He owned his affidavit and owned averments of the affidavit in his examination-in-chief.
The witness averred in his affidavit that he was polling agent of the petitioner at Polling Station No,131 in the election in question; that after close of poll at 5-00 p.m. The Presiding Officer collected ballot boxes containing ballot papers for counting; that in the meantime electricity went off on which the Presiding Officer turned out the witness of polling station declaring that counting would be done in the office of Returning Officer. The witness further averred that he informed the petitioner about this fact.
6. Muhammad Farooq, P.W.2 and Zia Iqbal, P.W.4 who were also polling agents of the petitioner respectively at Polling Stations, Nos.49 and 51 sworn affidavits which were filed with the election petition. Both of them also owned their affidavits (Mark-B and D) and owned their averments as examination-in-chief. They also made identical averments in their affidavits as that of P.W.1.
7. The petitioner himself entered the witness box as P.W.3. He deposed that he contested election in question from N.A.83 Faisalabad and obtained 55900 votes; that respondent No,1 obtained 56910 votes and thus won the election; that he received result of his election from the Returning Officer on 19-2-2008 at 8-00 a.m i,e, next day after the election and that the Presiding Officers of disputed polling stations did not give result to his polling agents. He, however, stated that except from the disputed polling stations, his election agents received result between 8-00 and 9-00 p.m. He further deposed that despite his efforts he could not get results of the disputed polling stations; that Returning Officer's conduct was mysterious and suspicious because from the adjoining constituencies of N.A. 82, 84 and 85 results were announced by respective Returning Officers at 9- 00 p.m. And since from his constituency which consisted of urban area, no result was announced, therefore, the delay cast doubt on the part of the Returning Officer.
8. In order to substantiate the claim of P.Ws. 1, 2 and 4 about the factum of load-shedding, the petitioner produced S.D.O. Mansoorabad Sub-Division, FESCO (A.W.4) and Muhammad Rashid, S.D.O. Jaranwala Road Sub-Division, Faisalabad (A.W.5). A.W.4 deposed that since election was scheduled to be held on 18-2-2008 as such there was standing order from the higher authorities that no load-shedding was to be done on the said date. The witness, however, disclosed that as per record brought by him there were only three minor tripping on the day of election in question which lasted for nine minutes. The other .D.0 (A. W. 5), however, completely denied load-shedding having taken place on the day in question.
9. Regarding process of election/consolidation proceedings and announcement of result the Returning Officer (A.W.6) was produced but nothing material relating to the issues framed above could be brought on record. Thereafter the petitioner closed his evidence.
10. In rebuttal respondent No,1 entered the witness box as R. W.1. And thereafter closed his evidence.
11. Learned counsel for the election petitioner has contended that respondent No,1 has won the election by adopting massive illegal and corrupt practices in collusion with the election staff and thus the result declaring him returned candidate is liable to be set aside. In support of his contention, the learned counsel has referred to the statements/affidavits of P.Ws. 1, 2 and 4 who averred that no result was provided to them by the Presiding Officers and they were turned out of the polling stations on the pretext that counting would be made in the office of Returning Officer.
The learned counsel further referred to the statement of the petitioner to contend that despite hectic efforts of the petitioner, he could not get result of his election till next day of the election i,e, 19-2-2008 in spite of the fact that results of surrounding constituencies were declared much earlier which cast doubt on the part of the election staff. He went on to say that under section 39(3) of the Representation of the People Act, 1976 the Returning Officer was duty bound to consolidate result on examination of excluded ballot papers and consequences for non-performance of such duty have been mentioned in section 70 of the Mt and since the Returning Officer did not examine the votes excluded from the count by the Presiding Officers before consolidation and did not re-count the entire votes despite application of the petitioner for the purpose, therefore, the election as a whole was liable to be declared , void; that the Returning Officer committed grave mistakes while compiling the result as there were great discrepancies between statements of accounts/Form XIV and Consolidation statement/Form No, XVI as such the illegal and corrupt practice on the part of the election staff was very much clear which vitiate the whole proceedings of election. Learned counsel laid much stress on the point that had the excluded votes which were about 3000 in number, been examined by the Returning Officer the petitioner might have won the election as there was a difference of only 1049 votes between the petitioner and the returned candidate and that the Returning Office did not perform his legal duty as he was in league with respondent No,1 hence the result of respondent No,1 was liable to be set aside. In support of his contentions the learned counsel has relied on Muhammad Naeem and others v. Ashraf Ali and others 2005 SCM R 1130, Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni and 13 others 1999 SCM R 284, Sahibzada Muhammad Nazeer Sultan v. Saima Akhtar Bharwana and others 2007 CLC 778. And Muhammad Ishaq v. The Election Tribunal Senior Civil Judge and others 1984 Law Notes SC 418.
12. Conversely learned counsel for the respondent has argued that not an iota of evidence has been produced by the petitioner to substantiate his allegation qua illegal and corrupt practice on the part of respondent No, 1; that under section 55 (1)(b) of the Act, full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed and the date and place of the commission of such practice or act are required to be given in the petition and are also to be produced at trial but neither the same found mentioned in the petition nor any witness produced by the petitioner at trial uttered a single word regarding any illegal or corrupt practice on the part of the respondent; that if any irregularity has been committed by the election staff the same cannot be attributed to the respondent; that the petitioner produced witnesses none of whom alleged illegal or corrupt practices; that the Returning Officer started examining the rejected votes though on the request of the petitioner but when 40 bags of rejected votes were examined the petitioner himself requested to stop this exercise and to announce the result, hence it cannot be said that the Returning Officer did not examine the excluded votes and even if Returning Officer did not observe the provisions of S.39 of the Act, that itself would not vitiate the election; that the petitioner cannot claim recount of all ballot papers as a matter of right and as per law reasonable ground must have been shown to exist justifying such request which was missing in the application of the petitioner filed before the Returning Officer, as such he has rightly turned down said application of the petitioner for re-count of entire votes; that the petitioner failed to establish that the Returning Officer was in league with respondent No,1 and that the petitioner had candidly conceded that he had no enmity with the Returning Officer; that the petitioner did not raise objection in his application for re-counting before the Returning Officer that there were discrepancies between Form No, XIV and Form No,XVI and as such the same was the result of conspiracy between the election staff and the respondent, therefore, the said allegation is nothing but an afterthought and the election petition is liable to be dismissed with costs being devoid of any merit. Places reliance on Ghulam Qadir Khan v. District & Sessions Judge, Vehari and others 2001 SCM R 237, Mustafeezuddin v. Arshad Mahfooz and 18 others 2004 CLC 687.
13. Before entering into the realm of controversy between the parties I consider it appropriate to mention here that the learned counsel for the petitioner laid much stress on the point that the Returning Officer did not examine the rejected votes before consolidation otherwise the result would have been different. In this respect I have gone through the statement of the Returning Officer (A.W.6) who conceded during cross-examination that on the application of the election petitioner he undertook exercise of examining the rejected votes but the exercise was in progress and about 40 bags were examined when they were found in accordance with the record that the election petitioner himself opted not to continue with the same and requested to announce the result. As per section.39(3) of the Act the Returning Officer was bound to examine ballot papers excluded from the count by the Presiding Officers before consolidating the result of the count and if it was found that any such ballot paper should not have been so excluded, he was required to count it as a ballot paper cast in favour of the contesting candidate for whom the vote had been cast. Although the Returning Officer undertook the exercise of examining the rejected votes but he was not supposed to stop the same on the request of any party rather it was his mandatory duty to examine each excluded vote before consolidation of result. Section 70 of the Act lays down that if result of the election has been materially affected by reason of failure of any person to comply with the provisions of this Act the election would be declared as a whole void. The said provision runs as under:-- "70. Ground for declaring election as a whole void:-- ' The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--
(a) the failure of any person to comply with the provisions of the Act or the rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election.
' Keeping in view this provision of law as also the fact that respondent No,1 won the election by a margin of only 1049 votes whereas the ballot papers excluded from the count were 3059 in number, as such considering the contention of learned counsel for the petitioner weighty that had the Returning Officer examined each and every rejected vote before consolidating the count, the result might have been different, therefore, in order to find out as to whether failure on the part of Retuning Officer to comply with the provisions of the Act has materially affected the result of the election and also to satisfy my conscience that the deserving person should not be deprived as the cost of any negligence on the part of the Returning Officer and moreso because the learned counsel for the petitioner stated at bar that if rejected votes were examined the petitioner would not press other issues, this Tribunal exercising powers under section 46 read with section 64 of the Act requisitioned the election record of N.A.83, Faisalabad vide order dated 16-6-2010 and with the assistance of the Returning Officer in presence of both the parties and their respective learned counsel undertook in court the exercise of examining the ballot papers excluded from count by the Presiding Officers after opening the sealed bags. A minute and careful examination of the rejected (3059) votes divulged in eight valid votes in favour of the petitioner and three valid votes in favour of respondent No,l. During this process I observed that some excluded votes were put in the envelopes meant for spoilt votes while some other were kept in the envelopes meant for tendered/excluded votes, by the election staff. Some rejected/excluded votes were found in their respective sealed bags without being wrapped in any envelope. From two bags election material belonging to the PP 67/68 was recovered whereas mistakenly instead of bag relating to polling station 82 of N.A. 83, a bag relating to N.A.82 has been brought. .A few bags contained particulars of N.A.83, Faisalabad but rejected votes of PP 67/68 were found in the bags. Apart from this, I also observed a difference of 438 spoilt votes which were mentioned in the consolidated statement/Form XVI but were not recovered from the bags. However, in view of the position of the bags noted above, missing of 438 rejected votes is easily understandable. However, for the sake of arguments, even if all these 438 votes are also counted in favour of the petitioner even then the result would not be materially affected and the position would remain the same.
14. Now I come to the issues framed in this petition and the evidence led by the parties. The petitioner pleaded that the respondent No,1 won the election on the basis of massive illegal and corrupt practices. Under section 5541)(b) of the Act where a person alleges illegal and corrupt practices, he has to provide full particulars of said corrupt or illegal practice or illegal act which he alleges to have taken place and also to mention the name of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act. Burden to prove this issue heavily lay on the petitioner to establish allegation of illegal and corrupt practices beyond shadow of doubt giving their full particulars.
' The petitioner produced P.Ws 1,2 and 3 who were allegedly his election agents respectively at Polling Stations Hassan Pura, Ashraf Pura and Data Park. All three of them submitted their affidavits in which they averred that after voting process was over, the Presiding Officers started collecting ballot boxes for counting ballot papers when suddenly electricity went off and they were turned out from the polling stations on the ground that counting will be made in the office of Returning Officer.
The petitioner also stated that his polling agents were not given the result of count by the Presiding Officers. One thing is, therefore, clear that the petitioner did not raise any objection regarding polling of the votes and according to him the problem started when the result was being compiled by the Presiding Officers when according to P.Ws 1, 2 and 4 suddenly light went off. To substantiate their averments/assertions about the electricity break down, the petitioner produced S.D.Os of the respective FESCO Sub-Division as A.Ws 4 and 5. The said witnesses brought record of their respective Sub-Divisions. According to A.W.4 Polling Stations Ashraf Pura and Data Park fall in Sub- Division Mansoorabad of FESCO. According to the record brought by this witness there was tripping in the electricity on 18-2-2008 from 10-44 a.m to 10-47 a.m in Hajvery Park Feeder, 3-22 p.m to 3-25 p.m. In the Farooqabad Feeder and from 4-46 p.m to 4-49 p.m. In Mansoorabad Feeder. The witness, however, explained that it was an accidental tripping and not scheduled as there was standing order from the higher authorities that because of election no load-shedding was to be done on 18-2-2008. During corssexamination this witness disclosed that the tripping was in day time and in all lasted for nine minutes. A.W.5 stated that Hassan Pura and Himat Pura, Faisalabad fell in Sub-Division Jaranwala Road of FESCO. He, after going through the relevant record declared that there was no interruption of power supply at all on 18-2-2008 in the said Sub-Division. In view of this documentary proof, the assertion of P.Ws. 1, 2 and 4 that there was electric break down after 5-00 p.m. In their polling stations on the relevant day falls to the ground. The petitioner stated in examination-in-chief that he received the result from the Returning Officer on 19-2-2008 after 8-00 a.m. He stated that he waited till 2 to 3 a.m. Before the Returning Officer for results and the R.0 kept on telling him that result was being gathered and sent massages on wireless. He also stated that the Presiding Officers of the disputed polling stations did not provide result to his election agents.
However, he did not mention that he made any complaint to the Returning Officer regarding the said alleged misconduct of the presiding officers till announcement of result. He disclosed that the conduct of the Returning Officer was mysterious and suspicious. He, however, did not point out any particular instance establishing his assertion. He further deposed that the delay in announcement of result cast doubt. This assertion/apprehension of the petitioner was not supported by any other oral/documentary evidence.
The general and sweeping allegations of corrupt and illegal practice which are not corroborated by other pieces of evidence are nothing but bald and vague assertions which cannot be given any weight. The petitioner neither pointed out any illegal or corrupt practice on the part of respondent No,1 nor pointed any place or time where any alleged corrupt act took place. Therefore, in my view the petitioner has miserably failed to prove this issue and the same is decided against him and in favour of respondent No, 1.
15. The next issue requiring determination by this Tribunal was as to whether the Returning Officer conducted the exercise of recounting of votes in proper and legal manner and if not its effect?
Burden to prove this issue was also on the petitioner. The petitioner stated that he had made application (Exh. A.W.3/1) to the Returning Officer for recounting of the entire votes as also to examine the rejected votes but the same was turned down to the extent of recounting of entire votes whereas partial examination of rejected votes was done.
16. I have gone through the application of the petitioner. It carries two prayers i,e, (i) to recount all the ballot papers and (ii) to examine the rejected votes. The first part of the prayer relates to section 39(6) of the Act, 1976 according to which the Returning Officer may recount the ballot papers upon the request of, or challenge in writing by or on behalf of any contesting candidate if he is satisfied that the request or the challenge is reasonable. Although the petitioner submitted application (Exh. AW.3/1) for re-count of the entire votes but he did not justify his claim with cogent reasons and only alleged that since a lot of valid votes of the petitioner had wrongly been rejected and the Presiding Officers had committed irregularities, hence recounting was necessary. The Returning Officer did not feel satisfied with the reasoning advanced by the petitioner and as such he turned down request of the petitioner for recount of the entire votes. If the petitioner wanted to have the entire votes recounted by the Returning Officer he must have satisfied that his request was reasonable. Vague allegations not containing adequate statement of material facts cannot be considered as grounds for recounting which cannot be granted as a matter of right. The petitioner did not lead any evidence to establish that the Presiding Officers had not counted the votes correctly or that double votes had been counted or even that valid votes of the petitioner had been rejected. So far as second part of the prayer regarding examination of rejected votes is concerned the same relate to section 39(3) of the Act and has been dealt with by me in detail in the preceding paragraph. However, it may be reiterated at the cost of repetition that the exercise of examining the rejected votes by this Tribunal resulted into a difference of only 438 votes between Form No,XVI and the actual rejected votes recovered from the bags and out of 3059 rejected votes only eight valid votes of the petitioner and three valid votes of respondent No,1 were recovered. Even if presuming that all these 438 votes belonged to the petitioner are counted in his favour, even then the result would be same. Hence, this issue is not decided in favour of the petitioner. I may add here that during examination of rejected votes I have observed that the Presiding Officers/election staff had taken extra ordinary care and caution in excluding the rejected votes from count.
17. The result of the election was published in official Gazette on 3-3-2008 and the petitioner filed the instant petition before the Election Commission of Pakistan on 10-4-2008. As per section 52(2) of the Act an election petition is to be presented to the Commissioner within forty five days of the publication in the official gazette of the name of the returned candidate. Hence it is declared that the election petition was filed within time.
18. Rest of the issues was not seriously contested by the learned counsel for the petitioner nor evidence led on these issues. Hence the same are deemed to be not pressed.
19. The net result of the above discussions and observations is that this petition fails and is hereby dismissed. There shall be, however, no order as to cost.
20. It may be mentioned here that after exercise of examination of excluded votes was undertaken in presence of the parties, the petitioner filed C.M No,2 of 2010. In view of my observations on Issues No,1 and 2, this C.M. Is also dismissed.
21. The election record relating to 'Constituency N.A. 83, Faisalabad requisitioned and retained by this Tribunal may be deposited back in the concerned quarter forthwith.