' MUHAMMAD NOOR MESKANZAI, J.---Through this judgment, I propose to decide Election Petition No,1 of 2009 filed by petitioner. The petitioner has called in question the candidature of the respondent No,1 as returned candidate on the seat reserved for women (Senate).
2. The facts, in brief, are that the election for the seat reserved for women (Senate) from the Province of Balochistan was held on 4th March, 2009. The petitioner contested the said election on the ticket of PML (Q). The respondents Nos.! To 11 also contested the election for the seats reserved for women. Out of the total MPAs i.e, 65, 63 MPAs participated to cast their vote. It is further averred in the petition that at the time of close of the poll and on counting of the votes by the Returning Officer/Provincial Election Commissioner, Balochistan, Quetta, number of votes which were polled in favour of the petitioner, were counted in favour of Mst. Kalsoom Parveen (respondent No,!). The petitioner objected to the same, but the Returning Officer did not accede to her objection. The petitioner, in her petition further alleged as follows:--
(i) The each voter has not cast one transferable vote but more than two votes, which is violation of the Election Laws.
(ii) The polling has not been conducted by secret ballot.
(iii) Returning Officer has not counted votes in the prescribed manner as contemplated under the Election Laws.
(iv) The Election of the Returned Candidate has been procured and induced by corrupt and illegal practice.
(v) The corrupt and illegal practice has been committed by the Returned Candidate along with Returning Officer with the connivance of respondent No,1 and the election staff.
(vi) Extensive, corrupt and illegal practice has been committed by the returned candidate with the connivance of Returning Officer and election staff.
3. The petitioner stated that the Presiding Officer without counting the votes in presence of the petitioner announced that Pari Gul Agha has been succeeded as Returned Candidate. The petitioner requested the Returning Officer to show the votes counted in favour of respondent No,1 in presence of the voters but the Returning Officer refused to do so. Under such circumstances the petitioner went to the office of the Returning Officer, where she raised hue and cry that the proceedings in counting of the votes and declaring the respondent No,1 (Kalsoom Parveen) as returned candidate was/is highly illegal, unlawful caused grave miscarriage of justice by depriving the petitioner of her legal and lawful rights. Thereafter the petitioner filed election appeal before the Chief Election Commissioner Pakistan under section/ 32 of the Senate (Election) Act, 1975 which was dismissed with the observation that the appellant may file election petition. Thereafter the notification for successful Returned Candidate i.e, the respondent No,1 was also notified. The petitioner averred in her petition that the respondent No,1 with the connivance of Returning Officer, arranged and procured votes in her favour by corrupt and illegal practice. The petitioner objected on the illegal practice of the Returning Officer, but she was thrown out of the office by the Returning Officer. Hence this petition.
4. The respondent No,1, while filing written statement raised the following legal objections:--
(A) That the petition has been filed on imaginary grounds, as such, not maintainable.
(B) That the petition is hit by section 32(6) of Senate (Election) Act, 1975, as such, liable to be rejected.
(C) That the petition suffers from misjoinder of parties in violation of section 35 of Senate (Election) Act 1975, as such, liable to be amended.
' On merit also the claim of petitioner was denied by respondent No,l.
5. After filing of written statement following issues were framed on 3-7-2009:--
(1) Whether the petition is not maintainable under section 32(6) of the Senate (Election) Act, 1975 in view of preliminary objection 'B' of the written statement?
(2) Whether the polling has not been conducted by secret ballot, if so, to what effect?
(3) Whether election of respondent No,1 was result of corrupt and illegal practice?
(4) Whether the votes were not counted by the Returning Officer in accordance with law and rules?
(5) Whether petitioner is entitled to the relief claimed for?
(6) Relief?
6. After framing of the issues, a request for disposal of legal issues was made. The request for the disposal of legal issue first was turned down.
7. Prior to embarking upon the facts and evidence, it would be proper to dilate upon the Civil Miscellaneous Application dated 1-10-2010 filed by the learned counsel for the petitioner for summoning the witness Sona Khan Returning Officer. It is important to note that P.W.3 was produced on 15-1-2010. Thereafter, after a couple of hearings petitioner got recorded her statement on 6-4-2010, i.e, almost after three months, in the intervening period no P.Ws. Could be produced by the petitioner. On 1-10-2010 the petitioner moved an application for summoning the witness namely Sona Khan along with the record. The application was contested by the respondent No,1. I have given my anxious considerations to the submissions made by the learned counsel and have perused the record. The name of Sona Khan does not appear in the list of witnesses, the last P.W. i.e, P.W.3 was examined on 15-1-2010. Petitioner has filed the instant petition in year 2009. No explanation for such delay has been offered. In my considered opinion the application is just an attempt to cause delay and further linger on the case. Application smacks mala fide, and lacks substance, as such is dismissed.
' Petitioner in order to prove her case examined three witnesses i.e, P.W.1 Muhammad Nawaz Qazi, P.W.2 Sadia wife of Abdullah, P.W.3 Noor Jahan Panezai and also recorded her own statement.
Respondent did not adduce any witness in her defence, however, recorded her own statement.
After recording the statements of parties the arguments of learned counsel for the parties were heard.
9. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner submitted that the election in question were not conducted in fair and transparent manner. The votes of petitioner were counted for respondent, after the counting process initially the Returning Officer declared the petitioner as Returned Candidate, but thereafter suddenly the respondent No,1 was declared as Returned Candidate. The moment petitioner was declared successful, respondent No,1 contacted to the Returning Officer on mobile phone and she was asked to remain calm and satisfied. After negotiation with respondent No,1, the respondent No,12 changed the result. The corrupt and illegal practice in the process of election was committed by the Returning Officer with connivance of respondent No,1, therefore, the election is liable to be declared void and the notification be cancelled.
10. Mr. Kamran Murtaza, learned counsel for respondent No,1 vehemently opposed the arguments so advanced by the learned counsel for petitioner. It was contended that petitioner has failed to produce any evidence in support of her petition. The statements of P.Ws.. Are contradictory to each other. The learned counsel requested for dismissal of petition.
11. In the light of evidence of the parties I propose to decide the issues:-- Issue No, 1 .
' Whether the petition is not maintainable under section 32 (6) of the Senate (Election) Act, 1975 in view of preliminary objection 'B' of the written statement?
' The learned counsel for respondent No,1 did not address arguments on this issue, even otherwise the request for recounting of votes if turned down, that by itself cannot create a bar for maintaining election petition. So issue No,1 is resolved in favour of petitioner and against the respondents.
' Issue No,2.
' Whether the polling has not been conducted by secret ballot, if so, to what effect?
' As far as issue No,2 is concerned, the P.Ws. Produced by the petitioner are absolutely silent. All the three P.Ws. Have filed their affidavits. The perusal of affidavits reflect that there is not an iota of statement to such effect. Legally every fact alleged by a party is required to be proved by production of solid evidence, but petitioner has failed to B produce evidence to prove this issue.
Therefore, Issue No,2 is resolved in negative.
' Issue No,3.
' Whether election of respondent No,1 was result of corrupt and illegal practice?
' The evidence produced by the petitioner is silent in this connection. This issue is factual as well as legal. As far as factual respect is concerned, the P.Ws. Produced by the petitioner has not proved the allegation. The P.Ws. Have stated that election was over. Counting started and petitioner was declared Returned Candidate and thereafter respondent No,1 was declared as Returned Candidate. P.Ws. Further stated that after declaring the petitioner as Returned Candidate the respondent. No,1 contacted to the Returning Officer and she was assured of her success. The cross reflects that the story narrated by the P.Ws. Is self-contradictory; for instance P.W.3. In reply to questions stated that I did not see Sono Khan to attend a call on account of rush of persons, as he was invisible. It is correct to suggest that till the counting of last vote no one can say with certainty who is going to win. It is correct to suggest that when Agha Pan Gul Syeda was congratulated by the persons present there, by that time, total votes were not counted. It is correct to suggest that when the whole counting was concluded then the Returning Officer declared Kalsoom Parween as returned candidate. The statement of P.W.3 is quite important because she was contesting the election of Senate. So under such circumstances the factual aspect of issue could not be established by the petitioner. As far as the legal aspect of issue is concerned, the pre request for nullification of an election on such ground is that the corrupt and illegal practice must have been committed by the official respondent or Presiding/Returning Officer with the connivance of returned candidate. All the P.Ws. Produced by the petitioner has not uttered a single word nor there is a sentence to this effect that corrupt and illegal practice, if any, has been committed by respondent No,12 with the connivance of respondent No,1. The law lays much emphasis in this regard. For ready reference section 49 subsection (2) of Senate (Election) Act, 1975 is reproduced hereunder:-- "(2) The election of a returned candidate shall not be declared void on the ground-
(a) that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate and that the candidate took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidate was, on the nomination day, not qualified for, or was disqualified from, being elected as a member"
' Keeping in view the nature of statement of P.Ws. And the legal requirement Issue No,3 could not be proved as such is resolved in negative.
Issue No,4.
' Whether the votes were not counted by the Returning Officer in accordance with law and rules?
' As far as issue No,4 is concerned, the statements of P.Ws. Do not state that how and which law was violated, what irregularity was committed by the Returning Officer. Even all the P.Ws. Do not know the manner of counting the vote for Senate Election, nor the petitioner herself is well familiar with the procedure and method of counting the votes. Even in this regard the contents of petition are self destructive for instance in Para No,5 petitioner claims that "on counting of the votes by the Returning Officer/Provincial Election Commissioner, Balochistan, Quetta, number of votes, which were polled in favour of the petitioner were counted in favour of another candidate namely Mst.
Kalsoom Parveen (Respondent No,1 " Whereas in Para No,6 factually it is Para No,7, which is reproduced herein under:-- ' That on the close of the Polling and without counting the votes in presence of the petitioner, the Returning Officer announced that Pari Gul Agha has been succeeded as Returned. Candidate from a women reserved seat, thereafter, the respondent No,1 slipped from the Polling place and came out of the building. She contacted on mobile, phone with the Returning Officer, as to what happened then the Returning Officer told her; you should not bother about, result will be in your favour."
' So the petitioner failed to prove this issue as well, hence issue No,4 is also resolved in negative.
Issues Nos. 5 and 6 ' Whether petitioner is entitled to the relief claimed for? Relief?
' Issues Nos.5 and 6 are similar in nature and to the same effect, hence, are disposed of jointly.
Since all the material issues have been decided against the petitioner, therefore, both the Issues Nos.5 and 6 are also decided in negative by holding that the petitioner is not entitled to the relief prayed for.
12. In the light of above discussion, petitioner has not been able to prove her case, therefore, petition is dismissed. Parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.