' MUHAMMAD NOOR MESKANZAI, J.--- Through this judgment, I propose to dispose of the Election Petition No,8 of 2008 filed by Sardar Yaqoob Khan Nasar, the petitioner, assailing the Notification No,F.2(4)/2008-Cord dated 1st March, 2008 declaring respondent. No,1 Sardar Muhammad Israr Tareen as returned candidate from NA-263, Loralai-Cum-Nusakhail-Cum, Barkhan.
2. Facts relevant for the disposal of instant petition, are that the petitioner and respondents Nos.1 to 10 contested election from NA-263, Loralai-Cum-Musakhail-Cum, Barkhan held on 18th February, 2008. In the said election the respondent No,1 secured/obtained 52818 votes, whereas the petitioner got 34985 votes, as such respondent No,1 was declared as returned candidate from the constituency by a margin of 17833 votes vide Notification No,F.2 (4)/2008-Cord dated 1st March, 2003. The petitioner feeling aggrieved of the result filed an application before Election Commission of Pakistan, which was entertained and ultimately petitioner was directed to approach the Election Tribunal, constituted for the purpose of disposal of election petition of the concerned constituency of Balochistan.
3. Against the order of Election Commission of Pakistan, the petitioner approached the High Court of Balochistan, by way of filing C.P. No,61 of 2008. The same too was dismissed on the ground that Election Tribunal has been constituted, as such the petitioner should approach to the proper forum.
Hence this petition.
4. It is the grievance of the petitioner that out of 280 polling stations, detail whereof is given in Form-XVI, in 23 polling stations the respondent No,1 in-league and connivance of Returning Officer and polling staff committed illegal and corrupt practices. There was a massive rigging owing to misuse of authority, transgressing of powers, exercise of arbitrary actions with mala fide intentions.
It is further alleged that as the respondent No,1 was contesting the election on the ticket of Pakistan Muslim League (Q) "KING PARTY" threatened the Presiding Officers of the polling stations and taken away the ballot boxes and other relevant articles including ballot papers, Counterfoils, under the threats of dire consequences and thereafter with the help and assistance of the security forces by way of massive 'rigging put ballot papers, filled counterfoils by the persons other than the voters and filled ballot boxes with ballot papers and procured the election result in his favour. It is also the case of petitioner that respondent No,1 forcibly took away election material and the polling staff were restrained to act in accordance with law. The petitioner made oral complaint and intimation to the Returning Officer and District Returning Officer followed by written complaint to both the above officeRs, A meeting was also held with Commandant Loralai Scouts, who was apprised of the massive rigging, but as all the Polling Official Staff, i.e. Returning Officer and District Returning Officer and personnel of Security Forces were in-league with the respondent No,1 and were bent upon to get the respondent No,1 successful at all cost. Therefore, the efforts made by the petitioner borne no fruit. The petitioner alleged massive rigging in following 23 Polling Stations:--- S. No.Name and No. of Polling StationVotes cast in favour of respondent No.1Votes cast in favour of petitionerRejected
1. Polling Station No.54 Manzai990 115 -
2. Polling Station No.49 Wahooi36 263 284
3. Polling Station No.59 Nizam Machali439 31 - 4.Polling Station No.48 Banhar484 16 - 5.Polling Station No.22 Primary School Mohla Moin Shah1981 1 11 6.Polling Station No.20 Primary School Killi Raz Muhammad Tareen1762 0 0
7. Polling Station No.21 Primary School Murad Khan Zarkoon1186 0 0 8.Polling Station No.17 Primary School Thathi Killi2368 3 0 9.Polling Station No.23 Primary School Mohla Ismail Tareen2583 0 0 10.Polling Station No.15 Girls Middle School Duki1963 8 0 11.Polling Station No.7 Primary School Killa Jan Muhammad Duki0 0 0 12.Polling Station No.19 Primary School Akhtar Muhammad Tareen1920 0 0 13.Polling Station No.16 Girls Primary School Duki2090 0 0 14.Polling Station No.25 Primary School Jangle Duki136 152 0 15.Polling Station No.13 Primary School Wakam Rabat Salam Baloch1510 16 50 16.Polling Station No.14 Primary School Wakamr Babat1246 3 50 17.Polling Station No.37 Middle School Habib Killa293 86 50 18.Polling Station No.27 Middle School Killi Karim Khan1714 15 0 19.Polling Station No.29 Neechal Subandi Killi Habibullah Karim Khan1852 0 27 20.Polling Station No.30 Primary School Madrassa Killi Karim Khan1629 0 0 21.Polling Station No.18 Zachao Bacha Centre Killi Akbar Khan2395 0 5 22.Polling Station No.28 Girls Primary School Karim Dad Duki0 0 0 23.Polling Station No.31 Primary School Essa Khan Duki2236 0 0 ' Along with petition, the petitioner filed affidav'ts of 38 witnesses.
5. The petition was contested by respondents Nos.1 and 6 by way of filing separate written statements, wherein besides raising certain legal objections qua maintainability of petition, the petition was resisted on factual grounds. It was contended that allegations of mala fide are aimed at conventional mud-slinging by a defeated candidate. The elections were fair, transparent and held peacefully. The election staff after due checking of I.D. Cards issued ballot papers to the voteRs, However, an allegation of Booth capturing was levelled against the petitioner. For the sake of convenience, the Para No,11 of written statement filed by respondent No,1 is reproduced hereinbelow:--- "This para is utterly false and hence denied. The allegations are mala fide and aimed at conventional mud-slinging by a defeated candidate. The election was held quite peacefully. The allegations are nothing but a concoction. Besides, they are vague. The entire story is an afterthought. No such complaint was filed before or received by the Returning Officer as confirmed order dated 26-2-2008 . Passed by the learned Commission. Following table would, on the other hand demonstrate how the petitioner himself polled bogus votes by booth capturing:- S. No.Name and number of polling stationVotes polled by The answering RespondentVotes polled by the petitioner
1. P/S Killi Karim Dad 12 4 1273
2. P/S Faqir Muhammad 24 - 1939
3. P/S Zabto 26 - 908
4. P/S Abdul Majeed 32 - 1148
5. Girls M/S Nasir Abad 35 - 2390
6. Girls P/S Nasir Abad 36 - 2184
7. P/S Jilal Chinna 38 8 2251
8. P/S Safdar Nasir 39 - 977
9. Civil Dispensary Zinda 62 7 384
10. Arba Seen 143 1 245 ' As regards the remaining respondents i.e. Respondents Nos.2, 3, 4, 5, 7, 8, 9 and 10 did not appear, as such were proceeded against ex parte.
6. On filing of the written statement by the respondents No,1 and 6, on 19th December, 2008, the following issues were framed:-
(1) Whether petitioner has lost locus standi to file election petition on account of violating provisions of section 50 of the Representation of the People Act, 1976?
(2) Whether the petition is liable to be dismissed for non-compliance of provisions of sections 54 and 55 of the Act, 1976?
(3) Whether respondent No,1 with connivance of polling staff committed illegal, corrupt and massive rigging in the process of election and procured result in his favour?
(4) Whether in polling stations Killi Tatti Zucha Bucha Centre Akbar Khan and Killi Jan Muhammad ballot papers were issued more than total registered votes and cast?
(5) Whether fake votes were stuffed in polling station Wavy by putting forged thumb-impression and fictitious number of I .D Card?
(6) Whether respondent No,1 casts bogus votes with the connivance of polling staff and security personnel?
(7) Relief ?
7. After framing of the above issues, oetitioner, in order to substantiate the allegations produced following ten P.Ws.:-- ' P.W.1 Abdul Salam, Manager Technical, NADRA deposed that they were provided a list of 25385 Manual I.D Cards and computerized Cards by P.A. To Sardar Yaqoob Khan. Nasar (petitioner) for verification. The said list was sent to NADRA Headquarter, Islamabad. They received result showing verification of 1115 MNIC and CNIC, whereas 24270 MNIC and CNIC could not be verified from NADRA base. He produced verification report along with his letter as Exh.P/1-A and record as Art:/1 containing 176 pages and Art:/2 containing 168 pages.
' In cross-examination he denied the suggestion that he has produced the list, wherein number and names of voters have been mentioned. He further deposed that MINC and CNIC were given to them for verification of genuineness of the same. He also denied that he has filed false verification report at the instance of Muhammad Akram and petitioner.
' P. W.2 Kamal-ud-Din, Assistant Presiding Officer, Wakam Rabat, Polling Station Tehsil, Duki produced the affidavits as Exh.P/2-A. He deposed that the same was got attested from Ayaz Mandokhail, Notary Public. He owned the contents of the affidavit Exh.P/2-A.
' In cross-examination he denied to have made a false statement.
' P.W.3 Allah Noor, Presiding Officer, Polling Station No,30, Primary School, Madrassa Killi Karim Khan produced his affidavit, which bears his signature. He owned the contents of affidavit. In cross- examination, he admitted hat he and petitioner belong to same tribe. He denied the suggestion that he has wrongly stated in Exh.P/3A on account of friendship.
' P.W.4 Muhammad Anwar, Assistant Presiding Officer, Polling Station Mohalla Moeen Shah, produced his affidavit as Exh.P/4- A and certified that the same was executed under his instructions and attested by Mr. Ayaz Mandokhail, Advocate. Besides owning the contents of affidavit, he identified his signature thereon.
' In cross-examination, he stated that the contents of affidavits were narrated by him to the Oath Commissioner/Notary Public. He, stated that he cannot tell the names of the persons for whom forged ballot papers were prepared, stamped and polled. He admitted that he had not filed any application before the Presiding Officer or Retuning Officer with regard to the incident stated in his affidavit. He denied to have made a false statement.
' P.W.5 Muhammad Karim Assistant Presiding Officer, Polling Station Killi Essa Khan, Tehsil Dukki produced his affidavit as Exh.P/5-A duly signed by Oath Commissioner. He identified his signature thereon. He affirmed the contents thereof.
' In cross-examination he admitted that his CNIC bearing No,56301-1076541-7 was issued to him by NADRA. He admitted that signature on his Service Card is in English. Voluntarily stated that he used to sign both in English and Urdu. He denied that the signatures on said affidavit are of some one else. He deposed that he had given in writing to the Returning Officer and also informed the Returning Officer about snatching the ballot papeRs, He did not mention names of person who snatched the ballot papeRs, He stated that he had not resisted when the persons were snatching the ballot papeRs, He denied to have made a false statement.
' P.W.6 Habib Ullah, Polling Officer, Girls Middle School, Killi Duki J.V. Teacher, Killi Noor Muhammad, Killi Karim Dad, Tehsil Duki produced his affidavit duly signed by Oath Commissioner as Exh.P/6-A.
He affirmed the contents of affidavit.
' In cross-examination he stated that total votes of the Polling Station were 2090. He showed ignorance about number of polled votes. He denied that 13/14 ' Ghundas' did not come but only the representative of Muslim League (Q) came there. He stated that persons/Ghundas had beaten them. He did not get himself medically examined. He gave the names of said Ghundas to Asad Khan Presiding Officer of the Polling Station. Voluntarily stated that he was man of Israr Tareen (Respondent No,1). He admitted that he gave the names of the said persons and also stated in his application that those persons belonged to Israr Tareen. He stated that he had not mentioned the name of those persons who were putting the marks/stamps on ballot papeRs, As nobody was ready to listen them, therefore, he did not make a complaint in writing. He further stated that he had not made complaint before the Provincial Election Commissioner or District Returning Officer/Sessions Judge, Loralai or Returning Officer. He denied that he gave the affidavit at the instance of Sardar Muhammad Yaqoob Khan (Petitioner). He also denied that for this purpose Sardar Muhammad Yaqoob has paid the expenses of his affidavit. He denied to have made a false statement.
' P.W.7 Raz Muhammad, petitioner's Polling Agent, Polling Station, Killi Thatti, Killi Duki, produced his affidavit duly signed by him as Exh.P/7-A. He affirmed the contents of the affidavit which were attested by Mr. Ayaz Mandokhail, Notary Public.
' In cross-examination he stated that the Police as well as Frontier Corps personnel were present at the spot, therefore, he did not get registered any F.I.R. Against the persons mentioned by him in the Affidavit. He admitted that he had not submitted any written complaint against those persons. He admitted that he had not examined himself by the medical officer. He showed his torn clothes to the police officials and F.C. Personnel. He admitted that he had not produced his torn clothes to the police officials. He admitted that he is relative of Sardar Yaqoob Khan Nasar, (petitioner). He denied to have made a false statement at the instance of petitioner.
' P.W.8 Samandar Khan,. Assistant Presiding Officer, Killi Essa Khan produced his affidavit duly signed by him as Exh.P/8-A. He affirmed the contents thereof which were attested by Mr. Ayaz Mandokhail, Notary Public.
' In cross-examination he admitted that he is a graduate. He admitted that he had not named the persons belonging to Muslim League (Q) who entered into the polling station. He admitted that he had not registered any case against those persons. He admitted that he had not sent any application/complaint to the Election Commission of Pakistan. The Affidavit was written on 23rd.
The Elections were held on 18th; and he went to the Notary Public on 23rd. He denied that the Assistant Presiding Officer is subordinate and part of election staff, headed by the Chief Election Commissioner of Pakistan. He admitted that he had not registered any F.I.R. About this incident. He admitted that he had not submitted any application to the Returning Officer. He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar, petitioner.
' P.W.9 Muhammad Umar, Polling Agent, Polling Station Killi Akbar Khan Tareen, Duki produced his affidavit duly signed by him as Exh.P.9-A. He affirmed the contents of the same which were attested by Mr. Ayaz Mandokhail, Notary Public.
' In cross-examination he stated that he is a graduate. He was the only polling agent of Sardar Muhammad Yaqoob Khan Nasar. He admitted that that he had no knowledge about the conduct of those persons who entered in the polling booth. He admitted that they themselves told that they belong to Muslim League (Q). He does not know them personally. He admitted that he had not submitted any application against the said persons to the Returning Officer. The personnel deployed at the polling station belonged to Police as well as Frontier Corps. He admitted that he had not made any written complaint to F.C. Authorities at the relevant time. He stated that he went to the police station for lodging the F.I.R. Against those persons, who forcibly entered in the polling station, but no case was registered by the police. He admitted that he had not submitted any application before the higher police authorities; He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar, petitioner.
' P.W.10 Muhammad Anwar, Polling Agent, Killi Akhtar Muhammad, produced his affidavit duly signed by him as Exh.P/10-A. He affirmed the contents of the affidavit which were attested by Mr. Ayaz Mandokhail, Notary Public.
' In cross-examination he stated that he is a matriculate. The name of Presiding Officer was Shah Jehan, who had threatened him to keep silent. He stated that he had not submitted any application to the Returning Officer or the higher authorities but made an oral complaint to the F.C.
Authorities. He stated that he does not know those persons, who entered in the polling station.
Since those persons belonged to the Killi of returned candidate, therefore, he presumed that they are members of Muslim League (Q). He stated that he was abused by the Presiding Officer namely Shah Jehan. He stated that he does not know that Presiding Officer was a teacher or an officer/official of any other Department. He admitted that he did not get himself examined medically, as he was simply slept by those persons. He denied that neither he was present at the polling station; nor any incident took place and he was not beaten by the said persons. He denied to have made a false statement before this Tribunal at the instance of Sardar Yaqoob Khan Nasar.
8. As per the order of this Tribunal, recounting of votes pertaining to 23 Polling Stations was carried out by the Provincial Election Commissioner. So the statement of Provincial Election Commissioner was recorded and the report was produced as Exh.C/1.
9. C.W.1 deposed that he was appointed Commission for recounting the votes by the orders of this Tribunal vide order dated 6-4-2011. Pursuant to notice, the parties appeared and in their presence, the process of recounting was conducted. The learned counsel for respondent No,1 after attending one hearing did not propose to appear. As per instructions of this Tribunal, after notifying the date to the parties he continued the process and completed the same. After completing the process of recounting, he compiled the report and kept the entire recounted material in a bag, which was sealed. He saw the sealed bag, which is the same and intact. He signed all the relevant documents, which he produced as Exh.C/1-A (In the paper-book, the same are marked as G-2, G-1, G-5, 7-C, 13- B, G-6, G-9, G-15, G-13, G-12, G-14, G-16, G-19, G-18, G-22, G-23, G-24, G-7-B, 7-A), Exh.C1/B (In the paper-book, the same are marked as 7-J, 7-F, 7-K, 7-L, 7-M, 7-N, 7-0, 13-A, 13-D), Exh.C-1/C (In the paper-book, the same are marked as 14-B, 14-A, 15-A), Exh.C-1/D (In the paper-book, the same are marked as 15-A, 15-B, 15-C), Exh.C-1/E (In the paper-book, the same are marked as 15-D,16-B, 16A,), Exh.C-1/F (In the paper-book, the same are marked as 16-C, 16-E, 16-F, 16-G, 17-A, 17-B, 17-C), Exh.C- 1/G (In the paper-book,. The same are marked as 18-B, 18-A, 18-C, 18-D), Exh.C-1/H (In the paper- book, the same are marked as 18E, 18-F, 19A), Exh.C-1/I (In the paper-book, the same are marked as 19-B, 19-C,20-A), Exh.C-1/J (In the paper-book, the same are marked as 2-D, 20-G, 20-F, 20-H, 20-I, 21-A), Exh.C-1/K (In the paper-book, the same are marked as 21-C, 21-D, 21-E, 21-F, 21-G, 21-H, 21-I)
Exh.C-1/L (In the paper-book, the same are marked as 22-A, 22-B, 22C), Exh.C-1/M (In the paper- book, the same are marked as 25-A), Exh.C-1/N (In the paper-book, the same are marked as 25-C, 25-D, 25-E, 27-B, 27A, 27-C), Exh.C-1/0 (In the paper-book, the same are marked as 28-A), Exh.C-1/P (In the paper-book, the same are marked as 28-B, 28-C, 28-D, 28-E, 29-A, 29-B), Exh.C-1/Q (In the paper-book, the same contains page pertaining to certificate dated 14th January, 2011), Exh. C-1/R (In the paper-book, the same are marked as 30-A, 30-B, 30-C, 30-D, 31-A), Exh.C-1/S (In the paper- book, the same are marked as 31-B, 37-A, 37-B, 37-C), Exh.C-1/T (In the paper-book, the same are marked as 48-A, 48-C), Exh.C-1/U (In paper-book, the same are marked as 48-B, 49-A), Exh.C-1/V (In the paper-book, the samt are marked as 49-B, 49-C), Exh.C-1/W (In the paper-book, the same are marked as 54-A, 54-B, 59-A) and Exh.C-1/X (In the paper-book, the same are marked as 59-B, 59-C). He has annexed synopsis/commentary, which starts from pages 1 to 109 and thereafter start annexures, which come to Annexure-59-A to 59-C. The conclusions drawn by him are available at the last two pages, -which contain his signatures. While drawing conclusions, he mentioned at Serial No, t the consolidated statement of result of General Election, 2007-2008 and recounting of NA-263 Loralai-cum-Musakhail-cum-Barkhan. Whereas Sheet No,2 is the consolidated statement of result of recounting of Polling Stations Nos. 7, 13, 14, 15, 16, 17, 18,19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 31, 37, 48, 49, 54S and 59 (Total Polling Stations 23). The details are as under:---
(i) Number of counterfoils 26100.
(ii) Number of counterfoils, filled incompletely 4328.
(iii) Number of counterfoils found completely blank 6603 in violation of Clause 'E' of. Subsection (2) of section 33 of Representation of the People Act, 1976.
(iv) Number of counterfoils filled-in partially 13752 in violation of Clause 'E' of subsection (2)of section 33.Of Representation of the People Act, 1976.
(iv)(a) Number of counterfoils with stamp and signature of Presiding Officer 3191.
(v) Number of counterfoils without stamp and signature of Presiding Officer 22224 in violation of Clause 'E' of subsection (2) of section 33 of Representation of the People Act, 1976.
(vi) Number of counterfoils without Serial number of voters 7856 in violation of Clause 'E' of subsection (2) of section 33 of Representation of the People Act, 1976.
(vii) Number of counterfoils without CNIC/MNIC 8115 in violation of Clause 'E' of subsection (2) of section 33 of Representative of Peoples Act, 1976.
(viii) Number of counterfoils found missing in the books 685.
' The valid votes cast in total 23 Polling Stations were 32715, out of which 3260 were declared to be rejected. However, the total number-of votes cast are 35975.
' The details of votes of petitioner and respondent No,1 in Polling Stations Nos. 7, 13 to 23, 25, 27 to 31, 37, 48, 49, 54 and 59 are as under:--- Polling Station No.Number of votes of petitionerNumber of votes Of respondentTo be rejected Total votes (Sardar Muhammad Yaqoob Nasir)No.1 (Sardar Muhammad Israr Tareen)
7 101 924 4 1031 13 14 1742 24 1766 14 Nil 1080 64 1145 15 1 1940 19 1960 16 Nil 2127 28 2155 17 3 2162 225 2394 18 Nil 2279 114 2393 19 Nil 1919 9 1928 20 Nil 1640 112 1752 21 Nil 1180 4 1185 22 1 1678 309 1995 23 Nil 2585 11 2595 25 141 133 30 400 27 16 1703 12 2304 28 Nil 1288 5 2283 29 Nil Nil Nil Nil 30 4 1568 4 1982 31 Nil Nil Nil Nil 37 83 238 62 415 48 16 Nil 1 179 49 244 1907 2180 2180 ' He has given the details of votes cast in favour of petitioner and respondent No,1 in the aforementioned 23 Polling Stations very minutely.
' In cross-examination he stated that the report pertaining to 23 Polling Stations was transmitted to Registrar Election Tribunal by the Presiding Officer. He has not gone through the contents of the report submitted along with bag/materials sent to Registrar Election Tribunal. However, he has given the exact position of the Election bags in his report and the same is comprehensive and detailed in nature. According to his report emerging at page No,2, the polling bags were de-sealed in presence of the parties meaning thereby the polling bags were already sealed and the certificate to this effect is also available in his report. Polling bag pertaining to Polling Station No,13 was sealed, which was de-sealed. He denied that the bag was torn and his report is incorrect. He has mentioned in his report that Polling bags pertaining to Polling Stations Nos.15, 20, 31, 49 and 54 were not sealed. Polling bags pertaining to Polling Stations Nos.16, 17, 18, 19, 22, 25, 25,(sic) 28 and 59 were sealed. He denied that bag pertaining to Polling Station No,25 was not sealed and the same contains two portions. The Election bag pertaining to Polling Station No,29 was torn from one side, which was shown to the parties present there. He denied that except the Polling Stations Nos.21, 23 and 48, rest of the Election bags were not sealed as seals thereof were broken. 'Voluntarily stated that he has annexed the detailed report in this respect with his report, however, he did not intimate this fact to the Tribunal that due to non-sealing of certain bags what he should do. Voluntarily, stated that he was ordered to recount, so he did. He admitted that prior to undertaking the exercise of recounting, he received a written application from the representative of Israr Tareen that the bags in question are not sealed and as such the recounting would not be transparent. Voluntarily stated that he has received the application, which is part of his report. He was not competent to take decision upon such an application, because his job was just to recount. He denied that he indulged in the recounting process, despite the fact that the materials were doubtful, just to favour the petitioner. He denied that he did not recount the votes pertaining to Polling Stations Nos.
23, 25, 27, 28, 29, 30, 31, 37 and .48. He stated that it is not his business to determine that after conducting the Election, the bags were in whose custody. Voluntarily stated that as per the directions of this Tribunal, the bags were already available with the Registrar Election Tribunal, which were entrusted to him and the Registrar Election Tribunal was a member of this process. He has not recommended for taking action against the responsible for non-sealing of some of the election bags. He admitted that legally after lapse of one year, the election materials are liable to be destroyed. Voluntarily stated that all those matters where election petitions are to be filed, the Chief Election Commission issues direction not to destroy the materials till final decision of the petition and he can produce the said directions however for the time being the same is not available with him. He denied that deliberately he is evasive in replying to the questions. He admitted that the Election Commission of Pakistan was not entering the names of the voters in the electoral list without their Identity Cards, however, the names were entered as per directions of Hon'ble Supreme Court of Pakistan in Benazir Bhoto's case. In compliance of the orders passed by this Tribunal, he wrote a letter to NADRA authorities and the said order is annexed with his report. He intimated the contents of report submitted by NADRA authorities to the Election Tribunal. He has not taken any decision on the letter written to NADRA authorities, however, he has placed the same as it is on record and intimated the same to the NADRA authorities. The NADRA authorities did not provide him the verification report regarding the nature of the Cards. He has not stated in his report that the Identity Cards are fictitious or otherwise, as it was not his mandate. He denied that he has tried to distort the spirit of letter No,NADRA/NRC/05/DEL-3914 dated 1st November, 2010. The non- availability of CNIC in the electoral list does not mean that the votes so polled were fictitious. This query was not made by the Election Tribunal and he has not formed any opinion in this respect. He admitted that as per directions of this 'Tribunal, he was required to perform the following duties:--- ' To check the record in comparison with the counterfoils of ballot papers and Identity Cards mentioned in the electoral role.
' He admitted that he has recounted all the 23 bags where the counterfoils or the voter list was not available. Voluntarily stated that he has understood the orders passed by the Tribunal to recount the 23 bags and he has submitted a detailed report. He admitted that the lead of 17833 votes of Israr Tareen was not done away with. Voluntarily stated that determination of validity of votes is not his job. He denied that the materials were managed to produce before him by the petitioner.
Voluntarily stated that the same were produced before him by the Registrar Election Tribunal. He denied that his report is based on nepotism and favouritism, Voluntarily stated that he has got no relationship and terms with either of the parties. He denied that his report is based on tampered and replaced documents. He denied that the report submitted by him is based on mala fides. He denied that his report has been prepared with the connivance and at the assistance of learned counsel for the petitioner. He denied that today he has made a false statement.
' Cross-examination by Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner he admitted that he had been issued commission and performed the duty as Commissioner. He is well- conversant with the Act i.e. Representation of the People Act, 1976 (hereinafter referred to as the RPA, 1976). He is cognizant of the provisions laid down in section 33 of the RPA, 1976, where the procedure for voting has been prescribed. While undertaking the process of recounting, he had gone through these provisions, which of course provide.The base of job. He has followed the procedure in stricto sensu as provided by section 33 of RPA, 1976. He admitted as per the requirements of section 33 of the RPA, 1976, the availability of CNIC or NIC in the process of election with the voter is mandatory. Voluntarily stated that voters lists are prepared on the basis of some other law. Whereas the voters vote, is polled under RPA, 1976. The preparation of voters' list is made in view of Electoral Role Act, 1974, whereas the elections are conducted under RPA, 1976. He admitted that the ballot paper is detached from the counterfoils of ballot paper. Further it was explained that ballot paper book contains two parts; one the counterfoils and the other is ballot paper, but the counterfoils carry number, whereas the ballot paper does not. The counterfoils of ballot paper book is to be filled and checked as per provisions of Section 33 of the RPA, 1976. He has performed his duties entirely on the basis of said Act and directions of the Tribunal. He checked 26100 counterfoils, out of which 685 counterfoils were missing and were not available. He admitted that he has stated in his concluding portion of the report that 22224 votes were without stamp and signature of the Presiding Officer. He admitted that in some of the Polling Stations i.e. Polling Stations Nos.7, 16, 22 and 30, votes were cast twice and thrice. For instance at Polling Station No,16, the following illegal votes in different times were cast:--- ' One vote was cast fifteen times ' 168 votes were cast two times ' 110 votes were cast three times ' 60 votes were cast four times ' His report is summarily, consolidation and self-consideration.
9. Thereafter petitioner himself entered in the witness box and deposed that he had contested the election as a member of PML (N) from NA-263 containing 03 Districts i.e. Loralai, Musa Khail and Barkhan. He has won the elections three times earlier and in the election contested taking action against the responsible for non-sealing of some of the election bags. He admitted that legally after lapse of one year, the election materials are liable to be destroyed. Voluntarily stated that all those matters where election petitions are to be filed, the Chief Election Commission issues direction not to destroy the materials till final decision of the petition and he can produce the said directions however for the time being the same is not available with him. He denied that deliberately he is evasive in replying to the questions. He admitted that the Election Commission of Pakistan was not entering the names of the voters in the electoral list without their Identity Cards, however, the names were entered as per directions of Hon'ble Supreme Court of Pakistan in Benazir Bhoto's case.
In compliance of the orders passed by this Tribunal, he wrote a letter to NADRA authorities and the said order is annexed with his report. He intimated the contents of report submitted by NADRA authorities to the Election Tribunal. He has not taken any decision on the letter written to NADRA authorities, however, he has placed the same as it is on record and intimated the same to the NADRA authorities. The NADRA authorities did not provide him the verification report regarding the nature of the Cards. He has not stated in his report that the Identity Cards are fictitious or otherwise, as it was not his mandate. He denied that he has tried to distort the spirit of letter No,NADRA/NRC/05/DEL-3914 dated 1st November, 2010. The non-availability of CNIC in the electoral list does not mean that the votes so polled were fictitious. This query was not made by the Election Tribunal and he has not formed any opinion in this respect. He admitted that as per directions of this 'Tribunal, he was required to perform the following duties:--- ' To check the record in comparison with the counterfoils of ballot papers and Identity Cards mentioned in the electoral role. He admitted that he has recounted all the 23 bags where the counterfoils or the voter list was not available. Voluntarily stated that he has understood the orders passed by the Tribunal to recount the 23 bags and he has submitted a detailed report. He admitted that the lead of 17833 votes of Israr Tareen was not done away with. Voluntarily stated that determination of validity of votes is not his job. He denied that the materials were managed to produce before him by the petitioner. Voluntarily stated that the same were produced before him by the Registrar Election Tribunal. He denied that his report is based on nepotism and favouritism, Voluntarily stated that he has got no relationship and terms with either of the parties. He denied that his report is based on tampered and replaced documents. He denied that the report submitted by him is based on mala fides. He denied that his report has been prepared with the connivance and at the assistance of learned permission to file list of witnesses along with their affidavits and to examine the Returning Officer NA-263 as witness. However; the application was rejected, the side of respondent No,1 was closed, except recording his own statement. After passing of above referred order, on 6th May, 2011, the respondent No,1 entered in witness-box and got recorded his own statement
10. Respondent No,1 deposed that he has contested the election for the Seat from the Constituency NA-263 Balochistan. He has won the election with a margin of almost nearly 18000 votes. The election was conducted transparently, smoothly, peacefully and no rigging whatsoever was committed by him or any of his Polling Agents in the polling stations of the constituency. He further stated that no rigging, illegality or malpractice were committed by him or by any of his polling agents with or without connivance of polling staff. All the polling staff including Returning Officers, Presiding Officers were absolutely impartial and they were performing their duties without favouring either of the parties. Sardar Sikandar Jogezai, who was a Minister at that time, is his brother-in-law, he did not exercise his influence nor he favoured any of the parties. The security personnel also performed their duties impartially without favouring any of the parties. He has received only Election Petition containing 10 pages, which has been filed by the petitioner. He received the said petition through post which perhaps bears the stamps of Rs,30/- or 35/-. The petition preferred before this Tribunal contains more pages than ten, which he had received. (It may be noted that respondent No,1 wanted to weigh the petition and for that purpose he at his own without permission of the Tribunal procured Weighing Machine but such a practice cannot be allowed to be adopted). He has deposited the election return of election expenses, whereas the petitioner has not deposited the same. He deposited the same within the stipulated period but the petitioner failed to do so. The allegations containing in the election petition are false, baseless, frivolous and concocted.
' In cross-examination, he showed his inability to recollect the exact number of entire Polling Stations within the constituency wherefrom he had contested the election. He admitted that he had not filed the affidavits of the witnesses sought to be produced by him. Similarly, he had not filed his own affidavit. He was under the impression that he could file the said documents at any stage of the proceedings. He denied to have contested the election on the ticket of PML (Q) but has contested the election on the ticket of Pakistan Muslim League. He denied the suggestion that he has contested the election on the ticket of PML(Q). While filing written statement to the petition he had read over and gone through the contents of paragraph No,11 of the election petition. He has also contested the election in 23 polling stations mentioned in paragraph No,11 of the petition and now read over to him. He was satisfied with the number of votes, which were polled in his favour at these polling stations. He denied the suggestion that every ballot book contains ballot papers and counterfoils. The counterfoils must find mentioning of the Identity Card numbers, the thumb-impression of the voter, the serial number of the voters list, the signature and seal of the Presiding Officer. He denied the suggestion that in all 23 polling stations mentioned in paragraph No,11 of the petition, he extended threats to the Presiding Officer and forcibly taken away the ballot books and other articles including ballet papers, counterfoils and thereafter with the help and assistance of security personnel committed massive rigging, filled the counterfoils by the persons other than the voters and filled the ballet boxes with ballet papers and procured the result in his favour. He denied the suggestion that pursuant to the massive rigging and malpractice, he has secured the votes in these 23 polling stations. He denied the suggestion that Sardar Sikandar Jogezai played an effective role in his election campaign. He also denied the suggestion that he put pressure upon the local administration to favour him. Voluntarily stated that though he visited the constituency but he did not participate in election campaign. He denied the suggestion that he received the election petition with all the annexures therewith. He denied the suggestion that he has not made a separate application either to Chief Election Commissioner of Pakistan or before this Tribunal complaining that the entire annexures of the petition have not been received by him, therefore, he would not like to file the written statement to the petition. He denied the suggestion that a commission was appointed to recount the election materials etc. Pertaining to 23 polling stations mentioned in paragraph No,11 of the petition. His representative participated in the said process to some extent and thereafter he applied for leave, He showed his ignorance that this Tribunal had directed the commission to continue the process of recounting after the service of notice for a given date without break. He denied the suggestion that Sardar Yagoob Khan Nasir i.e. The petitioner has filed the election expenses return within the stipulated period. He denied the suggestion that so far no decision upon the said- allegation of non-filing of election expenses returns within the stipulated period has been made. Voluntarily stated that pursuant to Eighteenth Amendment the Election Commission of Pakistan stands dissolved and his petition is pending. He denied the suggestion that he has prepared bogus and fake ID Cards for his voteRs, He denied the suggestion that votes were polled by his supporters on the basis of fake ID Cards. He denied the suggestion that he has won the election, due to rigging and malpractice in the said 23 polling stations. He denied the suggestion that Sardar Muhammad Yagoob Khan Nasar will win the election if the votes pertaining to these 23 polling stations mentioned in paragraph No,11 of the petition are declared invalid and excluded. Voluntarily stated that he has not calculated the margin. He does not know the definition of recrimination. He denied the suggestion that he has won the election by committing illegal and corrupt practice in the said 23 polling stations referred to in paragraph 11 of the petition with the connivance of polling staff and security personnel. He denied the suggestion that he is aware regarding the report, which has been submitted by the Commission before the Tribunal. He denied the suggestion to have deposed falsely.
11. I have heard Messrs Muhammad Riaz Ahmed, Ayaz Sawati, Advocates for petitioner whereas respondent No,1 was represented Ch. Ali Muhammad, Advocate and Sardar Iqbal Tareen, Advocate appeared for respondent No,6. The learned counsel for the parties addressed the arguments for a couple of days consecutively.
' Learned counsel for petitioner submitted that petitioner has proved his case by producing confidence-inspiring evidence. The evidence produced by the petitioner has not been shaken nor could veracity thereof be doubted. The counsel for respondent No,1 conducted a lengthy cross- examination but the witnesses stuck to their gun and remained firm. It was strenuously urged that the report of commission has fully established the allegations against respondent No, 1.
Respondent No,1 succeeded to hijack the success of petitioner by committing corrupt practice with the connivance of security personnel and other polling staff. Under such circumstances the petitioner is entitled to be declared as returned candidate. Reliance was placed on the judgments reported in 2010 SCMR page 1271. The learned counsel for respondent No,1 vehemently opposed the said contention and submitted as under:---
(i) The petition is hit by the provisions of sections 55( 3) and 54.
(ii) Irrespective of the fact that a Miscellaneous Application No,1455 of 2010 has been dismissed but since now the matter is being decided finally on the basis of evidence, therefore, it is inevitable upon this Tribunal to have a look on the maintainability of petition as contemplated by sections 54 and 55 of the RPA, 1976. It was next contended that the annexures along with petition were not supplied to respondent No,l. The respondent No,1 has invited the attention of this Tribunal by making miscellaneous application and moreover postal receipt attached with the petition also nullifies the statement regarding the provision of annexure. A bulky and voluminous record is appended with the petition and the same could not be transmitted through post by affixing tickets of only Rs,32/33/-. It was further mentioned that even the statement of petitioner himself confirms the stand of respondent No,1 that the annexure have not been sent to respondent No,1. Learned counsel stressed that the mere non-sending of annexures itself constitute a valid ground to justify the dismissal of petition.
(iv) Besides the above legal infirmities in the petitioner's case, the statements of P.Ws. Are not worth consideration, because the affidavits so filed have not been attested as required by law. There is no verification on any affidavit, therefore, in the eye of law no affidavit does exist. Learned counsel urged with vehemence that the affidavits are required to be verified as per Order-VI, Rule 15, C.P.C.
Though the said Rule by itself does not provide the nature of the verification, however, the procedure has been provided in Volume-VI Chapter-12, Rule 15 of High Court Rules and OrdeRs, The verification must bear the date, time and place. It was maintained that section 139, C.P.C. Provides the manner of administration of oath to a deponent. In view of provisions of section 139, C.P.C. Read with Volume-VI Chapter-12 Rule 15 of High Court Rules and Orders, it is crystal clear that the oath so administered by the Notary Public cannot be treated a legal oath nor the same satisfies the requirement provided by Election Laws and the C.P.C. Section 8 of Notary's Ordinance, 1961 refers to High Court Rules and Orders, a collective view of all the referred to legal provision leaves no room for doubt that Notary Public cannot be treated an Oath Commissioner and, therefore, the petition along with annexures are not liable to be taken into consideration.
(v) ' The learned counsel for respondent No,1 took a serious exception to the admissibility of evidence produced by the petitioner qua the commission of rigging or corrupt practice. It was maintained that the entire evidence produced by the petitioner is absolutely silent about the role of Polling/Election Agent, or the returned candidate i.e. Respondent No,1 to have committed the alleged illegal and corrupt practice and that any such act has been committed with the connivance of respondent No,
1. In absence of such an allegation, respondent No,1 cannot be held responsible. None of the witnesses has stated that the Returning Officer was in league with respondent No,
1. So in such view of the matter allegation of corrupt and illegal practice or of massive rigging are of no avail. Though the allegations of Booth capturing and commission of illegal and corrupt practice is there, but no F.I.R. Whatsoever has been lodged by any of the P.Ws.
Inclusive the petitioner. Under such circumstances, it can easily be concluded that petitioner instead of accepting his defeat has managed to call in question the legal success of respondent No,1 by filing an unwarranted and illegal petition.
(vi) Learned counsel seriously attacked upon the report of recounting produced by C.W.1. It was submitted that the report is tainted one and has been procured at the instance of petitioner. This fact can even be confirmed from the reply to a question put to C.W.1 which is as under:--- "I have undertaken the process of recounting in the case titled as "General Abdul Qadir v.
Ehsanullah Reki. It is correct that in that case, there was no order for comparison of Identity Cards with counterfoils of electoral role and I did not prepare such schedule in that case".
(vii) It was next contended that the Para No,5 of C.M.A. No,1534 of 2010 filed by respondent No,1, has not been disputed which too supports the contention of respondent No,l. Process of recounting has been conducted by Joint Provincial Election Commissioner who was not competent to undertake such an exercise. Similarly, no report was prepared by Joint Provincial Election Commissioner nor did he appear as C.W. Conversely C.W.1 has stated that the report has been prepared by him, which stands falsified in the circumstances of the case. Learned counsel maintained that the report submitted by C.W.1 is a hearsay and as such carries no legal sanctity. The material was ordered to be produced before the Tribunal on 24th September, 2009 whereas in view of provisions of subsection (3) of section 44 of RPA, 1976, the material were liable to be destroyed. According to learned counsel for respondent No,1, in view of clear direction contained in subsection (3) of section 44 of RPA, 1976, the process of recounting is illegal and void.
(viii)Learned counsel submitted that the question pertaining to the legality of counterfoils has not been raised nor any issue in this regard has been framed. Since neither any allegation has been made nor any issue has been framed, therefore, no evidence could be produced to support the plea which has been raised for the first time. Exh.P/1-A cannot be looked into as it was not tendered by the author of document.
(ix) The process of recounting was contrary to Art.226 read with section 83 of RPA, 1976. In this regard respondent No,1 filed objection petition on 14th February, 2011. He had also filed written objection dated 17th March, 2010 regarding the nature of material which is still sub judice.
(x) With reference to issue No,1, learned counsel stated that the principle of interpreting the Election Laws is that the same has to be interpreted in favour of returned candidate. The proceedings by the Tribunal are quasi criminal in nature. Every benefit of doubt must be extended to the returned candidate. The election petition is a statutory right only and not a common law right.
(xi) There is clear violation of section 50 read with section 83 of RPA, 1976, therefore, respondent No,1 has filed a recrimination petition which calls for dismissal of petition for non-compliance of section 50 of RPA, 1976.
(xii) Apart from dismissal of C.M:A. No,433 of 2011, in the light of remand order passed by the Hon'ble Supreme Court, the grounds of the petition filed before the Hon'ble Supreme Court are to be considered by the Tribunal while disposing of the matter.
(xiii) While summing up the arguments, the learned counsel for respondent No,1 submitted that the petitioner has utterly failed to produce independent, reasonable and confidence-inspiring evidence. Besides, the flagrant violation of mandatory provisions pertaining to RPA, 1976 read with Notification dated 17th March, 1985 do not entitle, the petitioner to relief.
' Learned counsel for respondent No,1 relied upon the judgments reported in 2008 SCMR 1, PLD 1995 Lah. 98, 1987 MLD 1372, 1986 CLC 1119, 2003 YLR 3039, PLD 1966 E.C. 121, 1986 CLC 2499, 1989 MLD, 4882, 1995 CLC 1426 and 1998 CLC 2033.
' Besides above no other argument was advanced by learned counsel for respondent No, 1.
12. Mr. Muhammad Riaz Ahmed, learned counsel for petitioner while exercising the right to reply stated that the recrimination petition ''must qualify and satisfy the requirement of section 54 of the RPA, 1976 which are absolutely lacking. The petition is required to be filed within 14 days of the commencement of trial, whereas the same does not fulfil this condition as well. Besides inherent defects in the form of recrimination petition, the same was dismissed by this Tribunal vide order dated 24th September, 2010. Similarly, the legality of Exh.P/2-A, Exh.P/3-A and Exh.P/4-A stand decided by the Hon'ble Supreme Court vide judgment dated 30th July, 2010. The annexures were supplied along with the memo. Of petition and the question of non-supply of annexures stands decided on 20th December, 2010- while disposing of C.M.A. No,1195 of 2010. The said order was not assailed before the Hon'ble Supreme Court, as such the same has attained finality, therefore, a close chapter cannot be reopened. The learned counsel stated that as far as the allegation of non- compliarice of section 55(3) RPA, 1976 is concerned, the argument does not find force, for the simple reason that the petition was dismissed by this Tribunal vide order dated 16th November, 2009 for want of compliance of said provision. The order was set aside by the Hon'ble Supreme Court and the matter was directed to be decided on merits, therefore, this chapter as well stands closed and cannot ,be reopened. As far as the process of recounting by Joint Election Commissioner is concerned, the order dated 3rd January, 2011 passed by this Tribunal is clear on the subject that the process of recounting is to be carried out by the Joint Provincial Election Commissioner in case of non- availability of Election Commissioner, Balochistan. The process of recounting was carried out entirely in accordance with law and the report so submitted was not objected to when tendered in evidence. Therefore, at this belated stage no such objection is entertainable. As far as the nature of material in the light of subsection (3) of section 44 of the RPA, 1976, law does not provide any penal consequences. Moreover, the materials were not destroyed by the Election Commission. Under such circumstances, materials were validly taken into consideration and a right course was adopted by the Commission. The learned counsel stated that the report cannot be objected to because the Commission has not decided the validity of votes.
The nature of the counterfoils was not within the knowledge of petitioner, therefore, no particular allegation regarding counterfoils was levelled, however an unambiguous allegation regarding massive rigging, corrupt and illegal practice, which includes the counterfoils and procurement of invalid result by the respondent No,1 in his favour has been clearly levelled in the petition and affidavits filed by the petitioner and his witnesses. Therefore, the Tribunal can legally take notice of all such events, as has been discussed in the report of Provincial Election Commissioner.
13. I have considered the contentions put forth by the learned counsel appearing for the parties and have gone through the record minutely.
14. Prior to dilating upon issues, it will not be irrelevant to mention here that respondent No,1 did not produce any evidence except recording his own statement. Respondent No,1 through C.M.A 1534 of 2011 sought permission to produce evidence but the request was turned down vide order dated 6- 5-2011.
'15. Now I proceed to record my findings on each issue. Since thues Nos.1 and 2 are purely technical in nature and the arguments Nos.I to IV -addressed by learned counsel for respondent No,1 revolve around the said issues, therefore I propose to decide said issues in the light of arguments so addressed.
' ISSUE NO,1.
' Whether petitioner has lost locus standi to file election petition on account of violating provisions of section 50 of the Representation of the People Act, 1976?
' Learned counsel for respondent No,1 vehemently urged that the petition is incompetent for non- filing of return of election expenses. The non-submission of return of election expenses within a stipulated period constitutes a valid ground for the dismissal of petition. To substantiate the arguments, learned counsel placed reliance upon the judgment of Hon'ble Apex Court reported in 2008 SCMR page 1. I have given my anxious thought to the arguments advanced by learned counsel for respondent No,1. The Tribunal while dismissing the petition during the trial acts within the provision of section 63 of the RPA, 1976. For ready reference the same is reproduced hereinbelow:--- 'Dismissal of petition during trial.--- The Tribunal shall dismiss an election petition, if--
(a) the provisions of section 54 or section 55 have not been complied with; or
(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.
16. Bare perusal of section 63 of RPA, 1976 leaves no room for doubt that the provisions of section 50 cannot be pressed into service for the dismissal of election petition. I have gone through the judgment referred to by the learned counsel for respondent No,l. The judgment does not render help to the respondent No,1, because facts of said case are absolutely distinguishable from the case in hand. There is no reference of section 50 of R.P.A, 1976 in the judgment nor the impact of section 50 of R.P.A., 1976 has been discussed therein. In the said case, appellant had contested the election and declared as Returned Candidate but was found disqualified by the Election Tribunal.
Therefore, the facts of said case vary from the instant case. In my humble opinion the provisions of section 50 of R.P.A., 1976 cannot be pressed into service by the Election Tribunal. The provisions of section 50 of the R.P.A, 1976 can only be resorted to by the Chief Election Commissioner. Even if, a person is found to be guilty of an illegal practice for his failure to submit the election return expenses, the order of disqualification can only be made by the Chief Election Commissioner and not by the Election Tribunal, as the powers under section 50 of RPA, 1976 are not exercisable by the Tribunal. By holding the view, I am fortified by the dictum laid down in case Meraj Khalid v. Ashiq Ali Dial reported in 1993 MLD 1911. (Relevant at pages 1919 and 1920). Relevant observations therefrom are reproduced hereinbelow:--- "The contention appears to be misconceived. It is manifestly clear from the above provision that even if a person is convicted of exceeding the limit of election expenses prescribed under section 49 or having failed to submit the return of election expenses under section 50 or is found guilty of any illegal practice (other than the aforementioned, two offences) by a Tribunal it is the Chief Election Commissioner who makes an order for his disqualification and specifies the period for which he is to remain disqualified. This Tribunal cannot exercise under this section the powers vested in Chief Election Commissioner".
' In the light of above discussion, the issue No,1 is resolved in negative and against the respondent No,l.
' Issue No,2. Whether the petition is liable to be dismissed for noncompliance of provisions of sections 54 and 55 of the Act, 1976?
' Respondent No,1 raised objection on maintainability of the petition for want of compliance of sections 54 and 55. It appears at during the course of proceedings C.M.A No,903 of 2009 was moved which culminated in dismissal of petition vide order dated 16-11-2009 on the ground pressed into service by the respondent No,1 in his written statement and the C.M.A. The order of dismissal passed by the Tribunal was assailed before the Hon'ble Supreme Court of Pakistan. The appeal was accepted vide judgment dated 30-7-2010 the case was remanded to this Tribunal. The learned counsel stressed and vehemently urged that despite the findings of Hon'ble Supreme Court on the maintainability of the petition once again this Tribunal has to undertake the same exercise for the reason that earlier the petition was dismissed for want of verification of the pleadings paragraph wise. Now since the petition is being disposed of on the basis of evidence, therefore, once again the question is, to be resolved keeping in view the distinction made by the learned counsel.
' According to learned counsel instant petition is not maintainable at the strength of sections 54 and 55(3) of the RPA, 1976, in this behalf, I am of the firm view that the argument has lost its legal efficacy and worth. It is pertinent to mention here that a meaningful glance over the record reflects that since beginning the learned counsel for respondent No,1 left no stone unturned to get the petition dismissed solely on technical grounds. To achieve this object, learned counsel for respondent No,1 filed about 17 miscellaneous applications, 2/3 CPs before the High Court and a Civil Petition before the Hon'ble Supreme Court. It appears that at one juncture, he succeeded to get the petition dismissed on such a ground vide order dated 16th November, 2009. However, the order passed by this Tribunal was set aside by the Hon'ble Supreme Court vide. Order 30th July, 2010 and case was remanded back.
17. Similarly the contention with regard to strict compliance of section 54 and subsection (3) of section 55 of RPA, 1976 are of no avail. It may be noted that respondent No,1 filed C.M.A No,903 of 2009 before this Tribunal seeking dismissal of petition on the above ground. This Tribunal vide order dated 16th November, 2009 while allowing the application dismissed the petition. The order passed on C.M.A. No,903 of 2009 was challenged before the Hon'ble supreme Court of Pakistan by the petitioner. The Hon'ble apex Court vide judgment dated 30-7-2010 while setting aside order passed by this Tribunal made following observation:--- "Second limb of the arguments of learned counsel for the respondents, particularly, Chaudhary Ali Muhammad, ASC, is his emphasis upon the strict adherence of subsection (3) of section 55 of the Representation of People Act, 1976. A larger Bench of this Court comprising seven Hon'ble Judges had an occasion to examine the question of verifying every schedule or annexure of the petition in the manner laid down in the Code of Civil Procedure according to subsection (3) of section 55 of the People Representation Act, 1976 in the case of lqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) and declined to interfere in the judgment of the Election Tribunal, which has refused to dismiss the Election Petition on the ground of noncompliance of corresponding provision under section 36 of the Senate (Election) Act (LI), 1975. To further elaborate the point involved in this case, it would be appropriate to note than in Zafar lqbal lhagra's case learned Tribunal declined to dismiss the election petition because some of the annexure filed along with it were not verified on oath, holding that annexure have admittedly not been verified on oath but the omission is not fatal as annexure neither go to the root of the allegations nor disclosed any additional allegation of substantive character or furnish better particulars of allegations made in the petition. The view formed by the Tribunal as well as this court is based on the earlier case of S.M. Ayub v. Yousaf Shah (PLD 1967 SC 486).
' As far as arguments of Ch. Ali Muhammad, learned counsel for the respondent relating to non- verifying the documents, which cannot be considered as public documents, as according to him this was mandatory provision of law, it is to be noted that in the application filed by the respondent, objection was raised for non-verifying of the annexure (documents annexed with the petition) which are included both public and private documents and learned Tribunal had not made any distinction in both the categories and accepted the application, consequently the election petition was dismissed but in the judgments, which have been relied upon in the cases of S.M. Ayub and Engineer Zafar lqbal Jhagra, (Supra) there was also no distinction in both kinds of the documents. Thus, the argument in this behalf raised by the learned counsel has no force."
18. As far as the second limb of arguments that the annexures have not been provided to respondent No,
1. Since this argument was agitated to the hilt through Miscellaneous Application No,433 of 2011 and the application was rejected. So in view of the order referred to hereinabove the argument is of no avail, as such stands repelled.
19. I could not persuade myself to subscribe the arguments of learned counsel for respondent No,1.
Any court, Tribunal or authority cannot imagine to re-open a chapter closed by the Apex Court. In view of judgment of the apex Court Issue No,2 is resolved in negative and the petition is found to be maintainable.
ISSUES NOS. 3 and 6.
(3) Whether respondent No,1 with connivance of polling staff committed illegal, corrupt and massive rigging in the process of election and procured result in his favour?
(6) Whether respondent No,1 cast bogus votes with the connivance of polling staff and security personnel?
' Both these issues are to the same effect, therefore, are dilated upon and disposed of together. To resolve these issues, I have (i) the pleadings of parties, (ii) statements of P.Ws. (iii) statement of C.W.1 (iv) report of recounting submitted by C.W.1 pursuant to orders passed by this Tribunal, (v) statement of petitioner and that of respondent. At this juncture it may not be irrelevant to mention here that respondent No,1 while filing written statement did not propose to file his own affidavit, affidavits of witnesses and the list thereof as contemplated by Notification dated 17-3-1985.
Similarly after the settlement of the issues respondent No,1 once again failed to avail the opportunity as provided by the provisions of Order XVI, C.P.C.
20 Petitioner has levelled allegation of commission of illegal and corrupt practice and massive rigging in the process of election in the 23 polling stations mentioned in Para No,11 of petition. To prove the allegation petitioner produced ten P.Ws., besides the statement of C.W.1 and the petitioner.
20. Kamal Din Akhundzada, Assistant Presiding Officer Polling Station No,14, Primary School, Wakam Rabat mentioned in his affidavit that he reached at Polling Station Wakam Rabat exactly at 7:30 a.m. Polling started at 9:00 a.m. And continued till 5:00 p.m. In peaceful atmosphere. At 5-10 p.m.
About 30/40 persons entered in Polling, they wanted to snatch ballot paper from them. Polling staff refused to hand over ballot papers to them. The said persons left the polling 'station, thereafter at 5-15, they closed the polling and started counting. In counting they found that total 68 votes were cast.
Name of candidate Number of votes castNumber of rejected votes Sardar Yaqoob Khan Nasir3 Moulvi Faizullah 6 Sardar Israr Tareen 46 Mir Baz Muhammad Khetran2 11 ' They completed paper work and handed over the same to Presiding Officer. Meanwhile, some persons entered in the polling station. They turned him out from polling station. Only Presiding Officer and force personnel remained in polling station. In the subsequent proceeding, neither he remained present nor the same carry his signature. Whatever proceeding has been conducted, the same is bogus. Later on he heard that 1246 votes have been cast on the basis of stamp and result has been got prepared from Presiding Officer.
22. Samandar Khan, Assistant Presiding Officer Polling Station No,31 Primary School, Killi Essa Khan stated that on 18th February, 2008 exactly at 8-00 a.m. Polling started. Only some votes were cast, when persons belonging to Muslim League (Q) entered. They abused him and took away the ballot box and ballot papeRs, He and all the polling agents were turned out. He refused to go out from polling, whereupon the said persons started him beating. They pushed him out from polling station and threatened him not to re-enter in the polling. He reported to the Force, who replied that the situation is not in their control and directed him that it would be better that he should go to his house. He realizing danger to his life, as such left.
23. Habibullah, Polling Officer Polling Station No,15, Girls Middle School Killi Duki 'stated that he was posted as Polling Officer, Girls Middle School Killi Duki. At 8-00 a.m. Polling started. Till 2-00 p.m.
About 90 votes were cast. At 2-00 p.m., interval for tea and prayer was observed. No sooner at 3-00 p.m. Polling restarted, 30/40 'Ghundas' belonging to Muslim League (Q) entered and manhandled and made hostage the polling agent. They snatched the ballot papers and started stamping the same in their presence. Three persons remained busy in affixing thumb-impression on counterfoils.
They also mentioned fictitious/hypothetical I.D. Card numbeRs, They sought help from Force personnel, who replied that they are helpless before the high-ups.
24. Muhammad Karim, Assistant Presiding Officer, Polling Station No,31 Killi Essa Khan stated he attended his duty at 7-50 a.m. Male Polling started at 8-00 a.m. He started performing duty there, but the Presiding Officer directed him to perform his duty at Female Polling. He went there. The Presiding Officer handed over a copy of ballot paper pertaining to National Assembly and Provincial Assembly. He found that the ballot box was not available. He enquired about the same, whereupon two ballot boxes pertaining to National Assembly and Provincial Assembly were brought. Both the ballot boxes were already filled. The copies of ballot paper possessed by him were snatched and stamped in his presence.
25. Muhammad Anwar, Polling Agent Polling Station No,19 Primary School Akhtar Muhammad Tareen, Duki stated that Polling started at 8-00 a.m. They stressed for showing the box to them but the Presiding Officer threatened them to keep quiet, it is his job. Thereafter 15/20 persons belonging to Muslim League (Q) entered and started bogus proceedings in their presence. They appealed the Force personnel, who too replied to keep quiet. He requested the Presiding Officer that what is happening. The Presiding Officer abused him and the persons of Muslim League (Q) manhandled and made him hostage. At 5-00 p.m., the Presiding Officer started counting in presence of persons of Muslim League (Q) and after preparing result left along with Force personnel and he also left.
26. Muhammad Anwar, Assistant Presiding Officer, Polling Station No,22 Primary School, Mohalla Moeen Shah, Killi Duki, deposed that he reached at 7-00 a.m. For duty. Polling started at the stipulated time. At 2-00 p.m. Interval for tea and prayer was observed. At 3-00 p.m., polling was again started. A sufficient number of votes were cast. No sooner polling restarted, about 30/35 persons forcibly entered in polling station. Polling staff were assaulted and made hostage. They forcibly took away ballot box, ballot paper and stamp-paper etc. They started stamping in the polling. They also put fictitious thumb-impression and I.D. Card number on the counterfoils. Force personnel remained reticent spectatoRs, All the forged proceedings were carried in his presence.
After 5-00 p.m., they forcibly got counted the votes. He has not signed the counting result.
27. Allah Noor, Presiding Officer Polling Station No30 Primary School, Madrassa Killi Karim Khan stated that he was posted as Presiding Officer, Middle School Karim Khan. He reached for his duty at exact time. He found that amongst polling staff, only four persons were present. He realized that it would be difficult for him to run the polling. The voters started polling the votes. Till 12-00 p.m. 500 votes were cast. Where after the situation deteriorated. All the ballot papers were snatched and with the assistance of FC, the same were stamped. There is overwhelming evidence available on record to prove issues No,3 and 6. The statements of P.Ws., particularly P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.8, who were conducting the election and performing their duties as Polling staff/officials have established the fact that illegal and corrupt practice was committed and massive rigging was done in the following Polling Stations:---
(1) Polling Station No,14 Primary School, Wakam Rabat.
(2) Polling Station No,15 Girls Middle School, Killi Duki.
(3) Polling Station No,17 Primary School, Killi Tatti, Killi Duki.
(4) Polling Station No,18 Zacha Bacha Center, Killi Akbar Khan.
(5) Polling Station No,19 Killi Akhtar Muhammad Tareen, Duki.
(6) Polling Station No,22 Primary School Mohallah Moeen Shah, Killi Duki.
(7) Polling Station No,30 Primary School Madrassa Killi Karim Khan.
(8) Polling Station No,31 Primary School, Killi Essa Khan Nasar, Duki.
' Statements of petitioner and C.W.1 already reproduced hereinabove if perused, the same fully corroborates the statements of P.W.2 to P.W.10. According to the report submitted by C.W.1, it appears that massive rigging was committed, because there is clear violation of section 33 of the Act, 1976. The detail given by C.W.1 fully establishes the allegations of petitioner and corroborates the statements of P.Ws.
28. In such circumstances, I have no hesitation in my mind to conclude that there was a preplan and managed program for the commission of corrupt and illegal practice and massive rigging in the election with connivance of respondent No 1. 2As regards the contention regarding lack of active connivance of respondent No,1 ' in rigging is concerned, I cannot agree with the view point of learned counsel of respondent No,1 for a couple of reasons (1) there is an allegation of illegal and corrupt practice in the petition allegedly committed by the respondent with connivance of Polling staff and Security personnel, (2) the statements of all the witnesses and the result of recounting has established that there was a planned program of massive rigging successfully committed in various Polling Stations,
(9) The statement of Polling staff particularly the Presiding Officer and Assistant Presiding Officer have fully established the commission of illegal and corrupt practice and the massive rigging. To reach to a just conclusion, the question arises, who was the beneficiary? It appears that in all the 23 Polling Stations, where the allegation of illegal and corrupt practice and massive rigging has been levelled beneficiary of the same is the respondent No,1 (ii) the silence of security personnel and the other polling staff leaves no room for doubt that there was a planned and managed program for rigging the election and the object was achieved through the process which was carried out by Booth capturing.
(10) The allegations were well within the knowledge of respondent No,1 but he neither produced a single witness nor did even bother to file his own affidavit in support of the written statement. It is more surprising that despite clear allegation in the written statement regarding the massive rigging and commission of corrupt and illegal practice by the petitioner when respondent No,1 entered into witness box, he did not support his own written statement to such extent. Learned counsel for respondent No,1 when was confronted with the contents of written statement during course of arguments, he replied as under:--- "Written statement is in defence of this petition and has to be looked into for dismissing the election petition.
(11) There is overwhelming evidence coupled with the statement of C.W.1 to prove the fact that there was illegal and corrupt practice and massive rigging in the process of election in 23 polling stations with F connivance of respondent No,1 affecting the validity of a substantial number of votes, which naturally, adversely affects the result of election. Here it will not be out of place to mention that since the presence of person/s belonging to Muslim League (Q) has been admitted and established, therefore, it can easily be concluded that such a massive rigging and illegal practice could not have been committed by a person having no interest in result of the election, therefore, I am fully satisfied that the illegal and corrupt practice has been committed by the representative of Muslim League (Q) -- the supporters of respondent No,1 with the connivance of respondent No,1 and concerned polling staff just to benefit him. Needless to mention here that in such-like matter, the Court has to see the beneficiary of such process shall inevitably be responsible for rigging and commission of illegal and corrupt practice.
' In the light of above discussion and in view of statements of witnesses, Issues. Nos.3 and 6 stand proved, as such; are resolved in affirmative in favour of petitioner against the respondent No, 1.
ISSUE NO,4.
4. Whether in polling stations Killi Zucha Bucha Centre Akbar Khan and Killi Jan Muhammad ballot papers were issued more than total registered votes and cast?
33. The burden of proof of this issue was on petitioner. Petitioner produced 10 P. Ws. Besides recording his own statement and the statement of C.W.1. A perusal of said statements reflect that there is no material available to prove the fact that more ballot papers then the actual registered voters were issued. Therefore, petitioner has failed to prove this issue, which is resolved in negative.
ISSUE NO,5.
5. Whether fake votes were stuffed in Polling Station Wavi by putting forged thumb-impression and fictitious number of I.D. Card?
34. The petitioner has levelled the allegation of massive rigging and corrupt and illegal practice with regard to 23 polling stations. Said allegations find mention in para No,11 of petition but the polling station Wavi does not find mention there. The table of polling station given in said para in its column No,2 describe Wahooi irrespective of mistake of name. In this polling Station respondent No,1 has obtained 36 votes whereas the majority of votes were obtained by the petitioner. The number of rejected votes are more than the votes obtained by any of the candidates. In such view of matter petitioner has not been able to prove issue No,5 which is decided against petitioner.
35. Prior to embarking upon issue No,7, I would like to deal with the arguments by learned counsel for respondents besides the arguments covering Issues Nos.1 and 2. As far as the question of 1.D.
Cards is concerned, according to statement of P.W.1, out of 25385 MNIC and CNIC 1115 I.D. Cards were verified by NADRA Headquarter at Islamabad. Since the person who verified the contents of the document despite availability was not produced, therefore, statement of P.W.1 carries no legal weight. The question of validity or otherwise of I.D. Cards cannot be determined without production of person who issued the Exh.P/1-A. Irrespective of the genuineness or otherwise of I.D. Cards, consequent upon recounting, a substantial number of votes are liable to be discarded, which being invalid are liable to be rejected.
36. As far as objection regarding the report submitted by C.W.1 is concerned, it may not be out of place to mention here that vide order dated 24th September, 2009 recounting was directed to be made. Thereafter, through'C.M.A. No,1534 of 2010 request by the respondent No,1 for review of order was made, which too was turned down. Thereafter a C.P. Was filed, which was also dismissed and ultimately order of recounting was challenged before the Hon'ble apex Court. The Hon'ble apex Court vide order dated 25th February, 2011 disposed of the appeal/petition in the following terms:- "After having heard the'learned counsel on behalf of the parties at length, it is hereby directed that all the objections incorporated in the memorandum of this petition besides any other objection shall be dilated upon and decided by the learned Election Tribunal in accordance with law and on merits. The authenticity and genuineness of the identity card shall be assessed as per law keeping in view of the relevant provisions as enumerated in the Representatibn of People Act, 1976. It has been pointed by Mr. Tariq Mehmood learned ASC for respondents that recounting process has been completed and report furnished to the learned Tribunal which shall be examined after having given proper opportunity of hearing to all concerned. This petition is accordingly disposed of in the above terms."
37. Moreover, the Tribunal vide its order dated 3rd January, 2011, allowed the Joint Provincial Election Commissioner to participate in the process of recount, therefore, the argument that port the report is tainted one or without jurisdiction does not have any force, as such is repelled. The Joint Election Commissioner has participated in the proceeding as per direction of Tribunal vide above referred to order, therefore it cannot be said that there is any illegality in the report nor the report so submitted is beyond the jurisdiction and competence of C.W.1. As far as contents of Para No,5 of C.M.A. No,1534 of 2010 are concerned, firstly the said application has been dismissed and 'secondly the contents of application cannot be treated as a part of pleadings nor the learned counsel for respondent No,1 has succeeded to get an issue framed on such subject, therefore, this contention is also without force, as such is not tenable.
38. As far as the submission of invalidity of recounting process at the touchstone of Article 226 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 83 and 46(1) of RPA, 1976 is concerned, the submissions made by the counsel in this behalf carry no legal weight and are contrary to the record. The process of recounting conducted by the Provincial Election Commissioner is above board and the result of recounting submitted by him is in accordance with law. In this regard I am fortified by the dictum laid down by the Hon'ble apex Court in the case of Ehsanullah Reki v. Lt. General (R) Abdul Qadir Baloch and others judgment reported in 2010 SCMR 1272 (Relevant at page 1286-87) which reads as under:---
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".
39. So in such circumstances, as discussed hereinabove, keeping in view the contents of petition, affidavits, statement of result of recounting, the submissions made by learned counsel looses weight and lacks any legal force, as such stand repelled.
40. The contention regarding provisions of subsection (3) section 44 of RPA, 1976 or effect thereof on the process of recounting, I am unable to subscribe the view for a couple reason (i) according to subsection (3) of section 44 RPA, 1976, the Election Commission of Pakistan shall destroy the election material. Admittedly material produced before the Tribunal were not destroyed by then, for obvious reason that an election petition was pending before the Tribunal, wherein the allegation of rigging was levelled. Secondly, the respondent No,1 could have applied to the Election Commission of Pakistan for getting the material destroyed but he failed to do so. Thirdly the Provincial Election Commissioner in his statement stated that the material was not destroyed as per order of Chief Election Commissioner of Pakistan. Fourthly as per the orders of competent forum, the materials were produced from a lawful custody and a legal exercise was carried out.
Fifthly there is no penal consequence provided in subsection (3) of section 44 of RPA, 1976, therefore, the argument being without substance is turned down.
41. The proposition that the election petitions are treated to be quasi criminal proceedings and the benefit of doubt has to be extended to the returned candidate. Respondent No,1 has not been able to create any doubt or dent in the case of petitioner justifying the dismissal of petition on Such ground. It may not be out of place to mention here that the life of a country like Pakistan vests in the democracy and survival of the democratic institutions. The democracy flourishes when there is a fair, free and transparent election. The parties either through their own force or any mechanism are not allowed to rig or steal the result of an election. The masses must enjoy the fruit of their choice.
42. So far as argument regarding the evidentiary value of P.Ws. On account of non-verification of the affidavit is concerned, I am afraid this argument does not find force nor enjoys the backing of law. Moreover, the argument is highly technical in nature. Ten P.Ws. Entered into witness box and all of them owned and verified the contents of their affidavits after taking oath in accordance with the provisions of Qanun-eShahadat Order, 1984. Therefore, in my humble opinion if at all any irregularity in the nature of administration of oath has been committed, the same will not be of any legal consequences. Apart from the fact that there is no such defect in the affidavits as pointed out by the learned counsel. The statements were recorded by this Tribunal- after due administration of oath and the witnesses were cross-examined, therefore, on such technical basis there will be no reasonable, plausible and justifiable ground to discard their statements on the basis of so-called sheer technicality.
43. Now adverting to citations referred to by learned counsel for respondent No,1, it may be observed that the judgment reported in PLD 1995 page 98 and 1987 MLD 1372 Lahore are inapplicable. The objections upon the nature of administration of oath/attestation of affidavits has already been decided by the Hon'ble Supreme Court vide judgment dated 30th July, 2010, hence in view of judgment passed by the Hon'ble Supreme Court, the referred to judgment does not render any help to respondent No,1.
44. As far as case-law reported in 2003 YLR 3039 jurisdiction is concerned, the facts of said case are distinguishable. In that case no witness performing duty as Polling staff/Polling official filed any affidavit or entered into witness-box. Whereas, in the case in hand various persons who were performing their official duties as Presiding Officer, Assistant Presiding Officer have entered into witness-box. Secondly in that case after process of recounting by the Returning Officer once again request for recounting was made before the Election Tribunal whereas in this case recounting has already been carried out.
45. As far as judgment reported in 1996 CLC 2499 is concerned, the same also does not render any help to respondent No,1 as there are serious allegations of Booth capturing which has been proved.
Secondly pursuant to the process of recounting carried out by the Provincial Election Commissioner it has been established on record that a reasonable and substantial numbers of counterfoils have been found in flagrant violation of Clause 'E' of subsection (2) of section 33 of RPA, 1976.
46. Similarly judgment reported in 1989 MLD page 4882 does not help the respondent No,1 as the violation Clause 'E" of subsection (2) of section 33 is fatal in nature. There is absolute failure on the part of respective Polling officials in compliance with the mandatory provisions and non- compliance is not incidental but an intentional act which cannot be ignored.
47. So far the judgment reported in 1995 CLC 1426 is concerned, the same is also to the same effect and the principle considered therein is on the same footing, therefore, respondent No, cannot be benefited.
' Issue No,7. Relief ?
' This issue cannot be decided effectively without bearing in mind the outcome of recounting. For sake of convenience, let reproduce the substance of report:--- S. No.Polling Station No.Vote cast in favour of petitionerVote cast in favour of respondentRejected votesInspection Comments/remarks of P.E.C.
1 7 101 920 4 The bag was opened and 11 books (S.No.007001 to 08100) of ballot papers were found therein. On checking the counterfoils, it was found that from S.No.007001 to 008100 no stamp and signature of Presiding Officer was found. Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976. From S. No.007934 to 008000 were found unused ballot papers 190 CNICs/MNICs numbers were "Tally" with the Electoral Rolls. 637 CNICs/MNICs were found NOT TALLY' with the Electoral Rolls. 190 CNICs still to be verified by NADRA.
2 13 14 1742 27 The bag was de-sealed and all the documents taken out of the bag were shown to all the participants and it was revealed that there was no filled-in counterfoil found in the Polling Bag. Besides, statement of count and ballot paper account were also not found in the Polling Bag.
One book containing ballot papers from S.No.015101 to 015200 was found in the bag in which ballot papers from S. No.015101 to 015107 were found used and counterfoils of these ballot papers were filled in, whereas from S.No.015108 to 01520D were found intact. A handwriting paper showing S.No of ballot papers from 015001 to 015600 was found in the bag, no signature and stamp of Presiding Officer or Polling Officer or Assistant Presiding Officer was found on this paper. 16 ballot papers marked in favour of Yaqoob Khan Nasar (petitioner) out of which 2 were without stamp and signature of Presiding Officer. 1766 ballot papers were marked in favour of Sardar Israr Tareen (respondent No.1) out of which 1742 were found valid, whereas B ballot papers were not stamped by the P.O/A.P.O. I was double marked and 15 ballot papers were not marked in favour of any candidate. Total 93 ballot papers were found unused in the bag, whereas 1780 ballot papers were issued to the Polling Station.
3 14 Nil 1080 64 The bag was de-sealed. All documents taken out of the bag were shown to all the participants and it was revealed that statement of count and ballot paper account and marked copy of Electoral Roll were not found/available in the polling bag. In total there were 11 books of counterfoils found in the polling bag from which ballot papers were detached, whereas two books of ballot papers were found intact and one book from S.No.17369 to 17400 were also found intact and ballot papers were attached with the counterfoils. On checking counterfoils from S. No.016901 to 018000, no stamp and signature of Presiding Officer was found on any counterfoil: Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976.
From S.No.017801 to 017920 and 17972 to 18000 stamp and signature of Presiding Officer was found. From S.No.017921 to 018000 no stamp and signature found on any counterfoil. From S.No.018001 to 018200 no stamp and signature found on any counterfoil. Violation of Clause-E of subsection
(2) of section 33 of RPA, 1979.
From S.No.018201 to 018300 from S. No.018240 241 229 239 stamp and signature found on counterfoil rest were blank. Violation of Clause-E of subsection (2) of section 33 of RPA, 1976.
4 15 1 1940 19 The bag was opened (as the bag was found not sealed) and all documents taken out of the bag were shown to all the participants that Ballot paper account was found in the polling bag. No statement of count was found in the Polling, Bag. No marked copies of Electoral- Rolls were found present in the Polling Bag. A certificate showing items found therein is at Annexure-15-B. 20 books of ballot papers bearing S.No.00184 to 00203 were issued to the Polling Station as per ballot paper account found in the polling bag. No unused ballot paper was found in the polling bag. The counterfoils from S.No.18701 to 18800 and 18901 to 19000 were found unfilled.
Whereas in counterfoils No.18601 to 18700 it was found that no Serial number of voter was filled in whole counterfoil, whereas from S.No.18620 to 18700 was found totally blank. In counterfoil No.18801 to 18900 it was found that from 18862 to 1800 was totally blank. In counterfoil No.18501 to 18600, it was found that from counterfoil No.18561 to 18600 was totally blank. These counterfoils could not be compared with the electoral rolls as marked copies of electoral rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter/number written on the counterfoils could not be compared.
Subsection (12) of section 38 of RPA, 1979. On checking the counterfoils it was found that from S.No.018301- 108400, 018401-018500, 019001-019100, 019201- 019300, 019101-019200, 019501-019600, 019401- 019500 and 019301-019400 no stamp and signature of Presiding Officer on any counterfoil was found.
(Violation of Clause-E of subsection (2) of section 33 of RPA, 1976. Counterfoils Nos.018701-018800, 019601- 019700, 019701-019800, 020001-020100 and 020101- 020200 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoils could not be compared.
(Subsection (12) of section 38 of RPA, 1976. On checking the counterfoils it was found that from S.No.018701- 018800, 019601-019700, 019701-019800, 020001- 020100 and 020101-020200 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976.
On checking it was found that from S.No.018901 to 020300 no stamp and signature of Presiding Officer was found on any counterfoil.
5 16 Nil 2127 28 The bag was de-sealed. In total 21 books of counterfoils were found in the bag.
Statement of count and marked copies of Electoral Rolls were found available in the bag. Whereas, ballot paper account was not found in the bag. The counterfoils from S.No.020301 to 022400 were checked but no stamp and signature of Presiding Officer were found on these counterfoils. 260 CNICs/MNICs were found "TALLY" with the Electoral Rolls.1528 CNICs/MNICs were found not "TALLY" with the Electoral Rolls. 260 CNICs/MNICs still to be verified.
6 17 3 2162 225 The bag was de-sealed. No ballot paper account, statement count, marked copies of Electoral Rolls, counterfoil of used/unused ballot papers and unused ballot paper was found in the polling bag (Annexure 17-A). Marked ballot papers were found available in the bag which were segregated as well counted in favour of contesting candidate. A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot papers is at Annexure-17-B.
7 18 Nil 2279 4 The bag was de-sealed. All the marked papers were segregated and recounting process was carried out. No ballot paper account, no marked copies of Electoral Rolls, no counterfoil of used/unused ballot papers and unused ballot paper was found in the polling bag. Marked ballot papers were found available in the bag, which were segregated as well as counted in favour of contesting candidateA consolidated statement showing total number of valid votes, to be rejected and' a total votes polled along with detail of counterfoils, marked, unmarked ballot paper is at Annexure 18-C.
8 19 Nil 1919 9 The bag was de-sealed.
Marked copies of Electoral Rolls were not found in the polling bag, whereas ballot paper account, statement of count and counterfoils of ballot papers along with marked ballot papers were retrieved from the Polling bag. In total, there were 20 books of counterfoils found in the polling bag from S.No.027201 to 029200. There were 1920 ballot papers found used/detached from counterfoils whereas 80 ballot papers were found spoilt. From counterfoils No.027301-027400, 027801- 027900, 028401-028500, 028501-028600, 028701- 028800, 028801-028900, 027901-028300, 028001- 028100, 028101- 028200 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared. subsection (12) of section 38 of RPA, 1976.
On checking counterfoils from S.No.027301-027400, 027801-027900, 028401- 028500, 028501-028600, 028701-028800, 028801- 028900, 027901- 028000,028001-028100 and 028101-028200 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA,976.
From S.No.027301-027400, 027801-027900, 028401- 028500, 028501-028600, 028701-028800, 028801- 028900, 027901-028000, 028001-028100 and 028101- 028200 CNICs/MNICs numbers were not written (Violation of clause-E of subsection (2) of section 33 of RPA,1976).
From S.No.027301-027400, 027801-027900, 028401- 028500, 028501-028600, 028701-028800, 028801- 028900, 027801-028000, 028001-028100 and 028101- 028200 thumb-impression was not found. (Violation of section 33 of RPA, 1976).
From S.No.027301-027400, 027801-027900, 028401- 028500, 028501-028600, 028701-028800, 028801- 028900, 027901-028000, 028001-028100 and 028101- 028200 part of election area was not written. (Violation of S.33 of RPA, 1976).
From 027301-027400, 027801-027900, 028401- 028500, 028501-028600, 028701-028800, 028801- 028900, 027901-028000, 028001-028100 and 028101- 028200. S.No. of voter in the Electoral Roll was not found written. (Violation of Clause- E of subsection (2) of section 33 of RPA, 1976. All counterfoils were blank.
Counterfoils No.027401 to 027500 could not be compared with the Electoral Rolls as marked copies of Electoral Roll was not retrieved from the Electoral Roll hence CNIC/MNIC number and voter number written on the counterfoils could not be compared.
(subsection (12) of section 38 o1 RPA, 1976.
On checking, the counterfoils it was found that from S.No.027401 to 028200 no stamp and signature of Presiding Officer on any. counterfoil.
From S. No.028201 to 028400, 028601-028700 stamp and signature of Presiding Officer was found. (Clause-E of subsection 2 of section 33 of RYA, 1976).
9 20 Nil 1640 112 The bag of Polling Station No.20 was brought for recounting. It was brought in the notice of all participants that the bag was not sealed.
Marked copies of Electoral Rolls and ballot paper account were not found in the polling bag. The counterfoils of Polling Station No.20 were checked and the numbers/status were noted.
From counterfoils No.029401-029500, 029501- 029600, 029601- 029700, 029701-029800, 029801- 029900, 030001-030100, 030101-030200, 030201- 030300, 030301-030400, 30401-030499, 030501- 030600, 030601-030700, 030701-030800 and 030901- 031000 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared subsection (12) of section 38 of RPA, 1976.
On checking counterfoils from S.No.029401-029500, 029501-029600, 029601- 029700, 029701-029800, 029801-029900, 030001- 030100, 030101-030200, 030201-030300, 030301- 030400, 030401-030499, 030501-030600, 030601- 030700, 030701-030800 and 030901-031000 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
From S.No.029401-029500, 029501-029600, 029601- 029700, 029701-029800, 029801-029900, 030001- 030100, 030101-030200, 030201-030300,030301- 030400, 30401-030499, 030501-030600, 030601- 030700, 030701-030800 and 030901-031000 CNICs/MNICs numbers were not written.
(Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
From S. No.029401-029500, 029501-029600, 029601- 029700, 029701- 029800, 029801-029900, 030001- 030100, 030101-030200, 030201-030300, 030301- 030400, 030401-030499, 030501-030600, 030601- 030700, 030701-030800 and 030901-031000 part of Electoral Area was not written. (Violation of section 33 of RPA, 1976).
From S.No.029401-029500, 029501-029600, 029601- '029700, 029701-029800, 029801-029900, 030001- 030100, 030101-030200, 030201-30300, 030301- 030400, 030401-030499, 030501-030600, 030601- 030700, 030701-030800, And 030901-031000 S.No. of voter, in the Electoral Roll wits not found written. (Violation of Clause-E of subsection (2) of Section 33 of RPA, 1976).
All counterfoils were blank.
Counterfoils No.029201 to 029400, 029901-030000, 030801-030900 could not be compared with the Electoral Rolls as marked copies of Electoral Roll was not .retrieved from the Electoral Roll hence CNIC/MNIC number and voter number written on the counterfoils could not be compared.
(Subsection (12) of Section 38 of RPA, 1976.
On checking, the counterfoils it was found That from S.No.029401- 029500, 029501-029600, 029601-029700, 029701- 029800, 029801-029900, 030001-030100, 030101- 030200, 030201-030300, 030301-030400, 030401- 030499, 030501-030600, 030601-030700, 030701- 030800 and 030901-031000 no stamp and signature of Presiding Officer on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
On checking fromS.No.029201-029400, 029901-030000, 030801- 030900 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection 2 of section 33 of RPA, 1976).
10 21 Nil 1180 4 The bag was brought for recounting and de-sealed.
Marked copies of Electoral Rolls statement of count and ballot paper account were not found present in the bag. In total there were 13 books of ballot papers issued as per ballot paper account retrieved from the Bag. One book of unused ballot papers containing 86 ballot papers was retrieved from the polling bag. From counterfoils No.031001 to 031199 (one missing), 031201 to 031999 (one missing), 32001 to 032200 were checked and CNICs/MNICs numbers were noted and compared with Electoral Roll found in the bag. 847 CNICs/MNICs were found "TALLY" and 353 CNICs/MNICs were found not "TALLY" with the Electoral Roll.
On checking counterfoils from S.No.031001 to 031199 (one missing), 031201 to 031999 (one missing), 032001 to 032200, 032201 to 032300 no stamp and signature of Presiding Officer was found on any counterfoil.
(Violation of Clause-E of subsection (2) of section 33 of RPA,1976.247 Serial number of voter was found written twice.52 Serial number of voter was found written thrice.04 Serial number of voter was found four times.01 Serial number of voter was found five times. In S. No.032201 to 032213.
5 Serial number of voter was found written twice.5 Serial number of voter was found written twice.01 Serial number of voter was found four times.
11 22 1 1678 309 The bag was brought for recounting and de-sealed.
No marked copies of Electoral Rolls were found in the polling bag, however statement of count and ballot paper account present in the bag. In total, there were 20 books of ballot papers from S.No.032301 to 034300 issued to the polling station. In total 20 books of counterfoils of ballot papers were checked. Today and counterfoils from No.032301 to 034300 were noted. No unused ballot paper was found in the bag. From counterfoils Nos.032401 to 032600, 034001 to 034300 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared. Subsection (12) of section 38 of RPA,1976.
On checking counterfoils from S.No.032401 to 032600, 034001 to 034300, 032301- 032400, 032601-032700, 032701-032800, 032801- 032899, 033001- 033099, 033101-033200, 032901- 033000, 033201-033300, 033301-033400, 033401 to 033600, 033601 to 034000, no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976).
12 23 Nil 2585 11 The bag was brought for recounting and de-sealed.
Marked. copies of Electoral Rolls were not retrieved from bag. One book of ballot paper was found unused/intact and the ballot papers were found attached with the counterfoils of the ballot papers. However, 20 books of counterfoils of ballot papers were found used, which contain S.No.034701 to 035201, 035301 to 036600, the counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared.
Subsection (12) of section 38 of RPA, 1976.
On checking counterfoils from S.No.034701 to 035201, 035301 to 036600 no stamp and signature of Presiding Officer was round on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
From S.No.034301 to 034400, counterfoils could not be compared with the Electoral Roll as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared.
Subsection (12) of Section 38 of RPA, 1976.
From S.No.034301 to 034400, 034401-034499, 034501- 034600, 034601- 034700, 035201-035300, 035501- 035600,036401- 036500, 036601-036700, 036701- 036800, 036901-037000, no stamp and signature of Presiding Officer was found on any counterfoil. (violation of Clause-E of subsection
(2) of section 33 of RPA, 1976).
13 25 141 133 13 he bag was brought for recounting and de-sealed.
No ballot paper account, statement count marked copies of ballot paper were found in the polling bag, there were 21 books of ballot papers from S.No.039401 to 041500 were found unused/intact and ballot papers were found attached to the counterfoils.
Four books of counterfoils were found used from S.No.039001 to 039400, the counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared subsection (12) of section 38 of RPA, 1976. On checking counterfoils from S. No.034701 to 035201, 035301 to 036600 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
From S.No.034301 to 034400, counterfoils could not be compared with the Electoral Roll as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared.
Subsection (12) of section 38 of RPA, 1976.
From S.No.034301 to 034400, 034401-034499, 034501- 034600, 034601- 034700, 035201-035300, 035501- 035600,036401- 036500, 036601-036700, 036701- 036800, 036901- 037000, no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection 2), of section 33 of RPA, 1976).
14 27 16 1703 12 The bag was brought for recounting and de-sealed.
Statement of count of NA- 263 was not found in the polling bag, however, statement of count of PB-14 was kept in the bag by the Presiding Officer mistakenly no marked copies of Electoral Roll were retrieved from the bag. Besides, no unused ballot paper was found in the bag. The ballot papers of this polling station were checked and counted and statement thereof prepared. A consolidated statement showing total number of valid votes to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot papers is at Annexure 27-A.
15 28 Nil 1288 5 The bag was brought for recounting and de-sealed.
No ballot paper account.
Unused ballot paper and marked copies of Electoral Rolls were not found in the polling bag. Statement of count and counterfoils of used/unused ballot papers were found in the bag., From S.No.045001 to 045400, 046401-046600, 046801 to 047300. The counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number voter number written in the counterfoil could not be compared. Subsection (12) of section 38 of RPA, 1976.
On checking counterfoils from S.No.045001 to 045200, 046501-046600, 045201 to 045400, 046401- 046500, 046801-046900, 046901-047000, 047001 to 047300 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976.
From S.No.045401 to045800.
The counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared. Subsection (12) of section 38 of RPA, 1976.
From S. No.045401 to 045800 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976).
From S.No.044901 to 0450011.
The counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared. Subsection (12) of section 38 of RPA, 1976.
On checking, the counterfoils it was found that from S.No.044901 to 045000 no stamp and signature of Presiding Officer on any counterfoil. From S.No.045801-048900, 045901 to 046399. The counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared.
Subsection (12) of section 38 of RPA, 1976. From S.No.045801-045900, 045901 to 046399 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976.
From counterfoil No.046601 to 046800. The counterfoils could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNIC/MNIC number and voter number written on the counterfoil could not be compared. Subsection (12) of section, 38 of RPA, 1976.
From counterfoil No.046601 to 046800,. No stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot paper is at Annexure 28-C.
16 29 The bag was brought for counting, which was sealed, but torn from one side. The bag was de-sealed. On opening the bag it was found that no ballot paper account was found in the polling bag, no statement of count of NA-263 was found in the polling bag, however, statement of count of PB-14 was kept in the bag. No marked copies of Electoral Rolls, no counterfoils of used/unused ballot papers, no unused ballot paper was found in the Polling Bag.
However, some envelopes marked as NA-263 were found, however, these envelopes were empty.
Besides other empty envelopes and forms such as XIII, challenged votes list, XII, declaration form etc. were found unused blank/empty. Certificate at Annexure 29-B.
17 30 4 1568 4 The bag was brought for recounting, which opened.
Ballot paper account was found in the bag. Electoral Rolls were found but not marked. No statement of count and unused ballot paper were found present in the bag. From S.No.049701- 049800, 049901 to 050700, 050801 to 050999 (one missing). 051001 to 051200 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that 17 CNICs/MNICs were found "TALLY" and 1284 CNICs/MNICs were found NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot Nil. Still to be verified =16. On checking counterfoils from S.No.049701 to 050700, 050801 to 050999 (one missing), 031001 to 051200 no stamp and signature of Presiding Officer was found on any counterfoil. (Violation of Clause-E of subsection
(2) of section 33 of RPA, 1976).
198 Serial number of voter was found written twice.63 Serial number of voter was found written thrice.27 Serial number of voter was found written four times.7 Serial number of voter was found written five times.
5 Serial number of voter was found written six times.1 Serial number of voter was found written seven times.
Counterfoil from S.No.049801-049900 (not registered) and 050701- 050800. The counterfoils S.No.049801-049900 (not registered) and 050701- 050800 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALL" with the Election 1 Rolls. 39 CNICs/MNICs were found "NOT TALLY" with the Electoral Roll.
On checking the counterfoils it was found that from S.No.049801- 049900 and 050701- 050800.
12. Serial number of voter was found written twice.4. Serial number of voter was found written thrice.1. Serial number of voter was found times.
Counterfoil written from No.049601-049700 five S. was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that 1- CNICs/MNICs were found "TALLY" whereas 88 CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot = Nil. Still to be verified=1. On checking the counterfoils, it was found that from S.No.049601- 049700 no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause E of subsection (2) of section 33 of RPA,1976).
14. serial number of voter was found written twice.3. serial number of voter was found thrice. Counterfoils from S.No.051301 to 051500 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that 0- CNICs/MNICs were found "TALLY" whereas 197- CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot And informed that 0-were verified. On checking the counterfoils, it was found that from S.No.051301 to 051500 no stamp and signature of Presiding Officer on any counterfoil. (Violation of Clause E of subsection (2) of section 33 of RPA,1976).49. serial number of voter was found written twice.16. serial number of voter was found written thrice.5. serial number of voter was found.
Written four times.5. serial number of voter was found written five times.2. serial number of voter was found written six times. Counterfoil No.051201-051300 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in, the bag. It was found that 0- CNICs/MNICs were found "TALLY" with the Electoral Rolls 99 CNICs/MNICs were found "NOT TALLY" with the Electoral Roll. The CNICs found "TALLY" were checked by the NADRA representative on the spot and informed that 0-were verified.
(Clause-C of subsection (2) of section 33 of RPA, 1976).On checking the counterfoils, it was found that from S.No.051201- 051300no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause E of subsection (2) of section 33 of RPA, 1976).23. serial number of voter was found written twice.7. serial number of voter was found written thrice.4. serial number of voter was found written four times.2. serial number of voter was found written five times.
1 serial number of voter was found written six times.1 serial number of voter was found written seven times.1 serial number of voter was found written eight times.
Counterfoils from S.No.051507 to 051600 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALLY" with the Electoral Rolls. No. 1 CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot and informed that no counterfoil was verified.
(Clause-C of subsection (2) of section 33 of RPA, 1976).
On checking the counterfoils, it was found that from S.No.051201- 051300no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause E of subsection (2) of section 33 of RPA, 1976).
23. serial number of voter was found written twice.
7. serial number of voter was found written twice.
4. serial number of voter was found written twice.
2. serial number of voter was found written twice.
1 serial number of voter was found written twice.
1 serial number of voter was found written twice.
1 serial number of voter was found written twice.
Counterfoils from S.No.051601-051700 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALLY" with the electoral Rolls. 100 CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot and informed that no counterfoil was verified.
(Clause-C of subsection (2) of section 33 of RPA, 1976).
On checking the counterfoils, it was found that from S.No.051507- 051600 no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause E of subsection (2) of section 33 of RPA, 1976).
Counterfoils from S.No.051601-051700 was checked and CNICs/MNICs numbers were noted and compared with the Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALLY" with the electoral Rolls. 100 CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls. The CNICs found "TALLY" were checked by the NADRA representative on the spot and informed that no counterfoil was verified.
(Clause-C of subsection (2) of section 33 of RPA, 1976).
On checking the counterfoils, it was found that from S.No.051600- 051700 no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause E of subsection (2) of section 33 of RPA, 1976).
25 serial number of voter was found written twice.4 serial number of voter was found written there. A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with/detail of counterfoils, manned, unmarked ballot papers is at Annexure-30-C.
The total number of CNICs/MNICs found "TALLY"/ NOT TALLY"/verified/ not verified in respect of Polling Station No.30 is as under:-- CNICs/MNICs were found "TALLY" with the Electoral Rolls =18 CNICs/MNICs were found "NOT TALLY" with the Electoral Rolls = 1807. CNICs found "TALLY" verified by NADRA representative on the spot O. Still to be verified 18.
18 31 83 283 62 The bag was brought for recounting and was not sealed. Ballot paper account was found in the Polling bag that shows that 24 books of ballot papers from S.No.051701 to 054100 were issued to Polling Station.
Only one counterfoil from S.No.054001 to 054100 was found in the bag in which 5 columns were filled-in but no stamp and signature of presiding Officer was found.
One book from S.No.051701 to 051800 was found in the polling bag in which ballot papers from S.No.051744 to 051800 were found unused/intact and attached to the counterfoil. Whereas, from S.No.051701 to 051743 ballot papers were detached and 4 columns of counterfoils were filled-in besides, statement of count of NA-263 and Electoral Rolls were found in the Polling bag that was partially marked. Furthermore, ballot papers account and spoilt ballot papers of PB-14 were also found in the bag. No marked ballot papers in favour of any candidate were found in the bag and other empty envelopes/ forms along with stationary items were also found in the bag. Certificate at Annexure-31-A.
The counterfoils from S.No.0054001-054100 were checked and CNICs/MNICs Numbers were noted and compared with Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALLY" with the Electoral Rolls were found "NOT TALLY" with the Electoral Rolls. The CNICs found tally were checked by the NADRA representative on the spot and informed that no number verified. Violation of Clause-E of subsection (2) of section 33 of RPA, 1976.
On checking, the counterfoils it was found that from S.No.054001- 054100 no stamp and signature of Presiding Officer on any counterfoil.
The counterfoils from S.No.051701-051800 was checked and CNICs/MNICs numbers were noted and compared with Electoral Rolls found in the bag. It was found that no CNICs/MNICs were found "TALLY" with the Electoral Rolls were found "NOT. TALLY" with the'
Electoral Rolls. The CNICs found tally were checked by the NADRA representative on the spot and informed that no number verified. Violation of Clause-C of subsection
(2) of section 33 of RPA,'
1976.
On checking, the counterfoils it was found that from S.No.051701- 050740 no stamp and signature of Presiding Officer on any counterfoil.
(violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
19 37 83 238 62 The bag was brought for recounting and was opened it was not sealed. On Opening the bag, it was found that no ballot paper account, statement of count of NA-263 and no marked copies of Electoral Rolls were present in the bag. Only 6 counterfoils of S.No.064301 to 064400, 064401-064600, 064101= 064200, 064223- 064300 and 065101-065200 were found in the bag, which were partially filled.
On counterfoil number 064101-064200, 13 ballot papers were issued, whereas 87 ballot papers were found attached with the counterfoils unused/intact.
On Book No.064223-064311 23 counterfoils were found missing and from S. No.065098-065100, unused ballot papers were found attached with the counterfoil.
The counterfoils from S.No.064001-064600, 064101- 064200 064223-064300, 065001-065100, 064301- 064400, 065101-065200 could not be compared with the Electoral Rolls were not retrieved from the Electoral Roll, hence CNICs/MNICs number and voter number written on the counterfoils could not be compared (subsection (12) of section 38 of RPA, 1976).
On checking, the counterfoils it was found that from S.No.064001 to 064600, 064101-064113, 064223- 064300, 065001- 065100, 064301-064400, 065101-065200no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
20 48 16 0 1 The bag was brought for recounting and was opened.
Ballot paper account was found in the polling bag but was incomplete and incorrect. Statement of count of NA-263 was also found present in the polling bag. Whereas no marked copies of Electoral Rolls were found in the polling bag.
One book from S.No.083001- 083100 was found' unused and ballot papers were found attached with the counterfoils. There were 7 books of counterfoils from S.No.082501 to 083300 were found in the bag and counterfoils thereof were partially filled. Certificate at Annexure 48-A.
The counterfoils from S.No.082501-083200, 083201-083300, 083001- 083100, could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNICs/MNICs number and voter number written on the counterfoils could not be compared (subsection (12) of section 38 of RPA, 1976.
On checking, the counterfoils it was found that' from S.No.082501- 083200, 082501-083300, 083001-083100, no stamp and signature of Presiding Officer on counterfoil.
(Violation of Clause-E of subsection (2) of section 33 of RPA, 1976.
The statement of count found in the bag showed that 484 ballot papers were marked in favour of Sardar Israr Tareen but on opening the bag no marked ballot paper in favour of Sardar Israr Tareen was found.
A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot paper is at Annexure-48-B.
21 48 244 1907 2180 The bag was brought for recounting and was opened.
It was not sealed. Ballot paper account was found in the polling bag that shows that 26 books of ballot papers from S.No.083301 to 085900 were issued to the polling station. No Statement of count of NA- 263 marked copies of Electoral Rolls were found in the polling bag, whereas ballot piper account was retrieved from the bag that shows that 26 books were issued to the Polling station.
In the polling bag, 12 counterfoils of ballot papers were found in the bag from which ballot papers were detached. 4 books of ballot papers bearing S.No.084501 to 084600, 083801 to 083900, 083601 to 083700 and 085201 to 085300 were found in the bag out of which 3 books of ballot papers were marked and found attached with the counterfoils of ballot papers except 1 book bearing S.No.083001- 083100that was found unused and ballot papers were attached with the counterfoils. Certificate at Annexure-49-A.
The counterfoils from S.No.083301-083400, 083501-083600, 083401- 083500, 084101-084200, 085301-085400, 084701- 084800, 085601-085700, 085801-085900, 084901- 085000, 084501-084600, 083801-083900,-83601- 083700, 083901-084000, 084401-084500, 085101- 085200 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNICs/MNICs number and voter number written on the counterfoils could not be compared (subsection (12) of section 38 of RPA,1976).
On checking, the counterfoils it was found that from S.No.083301- 083400, 083501-083600, 083401-083500, 084101- 084200, 085301-085400, 084701-084800, 085601- 085700, 085801-085900, 084901-085000, 084501- 084600, 083801-083900, 083601-083700, 083901- 084000, 084401-084500, 085101-085200 no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause-E of subsection (2) of section 33 of RPA,1976).
22 54 114 947 29 The bag was brought for recounting and was opened.
It was n t sealed. No ballot paper count, statement of count of NA-263 and marked copies of Electoral Rolls were found in the polling bag. There were 9 complete unused books of ballot papers found in the bag from which ballot papers were undetached/intact.
The counterfoils from S. No.092101-092200, 092301- 092400, 092701- 092800, 093201-093300, 093901- 094000, 094101-094200, 092401-092700, 093001- 093100, 093801-093900, 094001-094100, 094201- 094300 could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not. retrieved from the Electoral Rolls, hence CNICs/MNICs number and voter number written on the counterfoils could not be compared (subsection (12) of section 38 of RPA,1976).
On checking, the counterfoils it was found that from S.No.092101- 092200, 092301-092400, 092701-092800, 093201- 093300, 093901-094000, 094101-094200, 092401- 092700, 093001-093100, 093801-093802, 094001- 094100, 094201-094300 no stamp and signature of Presiding Officer on any counterfoil. (Violation of Clause-E of subsection (2) of section 33 of RPA,1976).A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot paper is at Annexure-54-A.
23 59 28 435 10 The bag was brought for recounting and was opened.
The bag was sealed. On Opening the bag, ballot paper account was found in the polling bag showing that 5 books of ballot papers from S.No.099301 to 099800 were issued to the Polling station, statement of count of NA-263. No marked copies of Electoral Rolls and unused books of ballot papers were found in the polling bag, 3 counterfoils bearing S.No.099401 to 099500, 099501 to 099600, 099601 to 099700 were completed blank and ballot papers were detached, besides 46 counterfoils from S.No.099755 to 099800 were also blank. Certificate at Annexure-59-A.
The counterfoils from S.No,099401-099700, 099301-099400, 099701- 099800, could not be compared with the Electoral Rolls as marked copies of Electoral Rolls were not retrieved from the Electoral Rolls, hence CNICs/MNICs number and voter number written on the counterfoils could not be compared (subsection (12) of section 38 of RPA,1976).
On checking, the counterfoils it was found that from S.No.099401- 099700, 099301-099400, 099701-099800, no stamp and signature of Presiding Officer on any counterfoil.
(Violation of Clause-E of subsection (2) of section 33 of RPA, 1976).
A consolidated statement showing total number of valid votes, to be rejected and total votes polled along with detail of counterfoils, marked, unmarked ballot paper is at Annexure-54-B.
48. Petitioner has sought relief of declaring him as returned candidate. As the Issues Nos.3 and 6 have been decided in favour of petitioner and it has been proved by the petitioner that rigging has been committed in the Polling Station No,14 Primary School, Wakam Rabat, Polling Station No,15 Girls Middle School, Killi Duki, Polling Station No,17 Primary School, Killi Tatti, Killi Duki, Polling Station No,18 Zacha Bacha Center, Killi Akbar Khan, Polling Station No,19 Killi Akhtar Muhammad Tareen, Duki, Polling Station No,22 Primary School Mohallah Moeen Shah, Killi Duki, Polling Station No,30 Primary School Madrassa Killi Karim Khan, Polling Station No,31 Primary School, Killi Essa Khan Nasar, Duki.
The report of C.W.1 is quite important. It has been established that the election conducted in said 23 Polling Stations were in utter disregard of provision of Section 33 of the Act, 1976 which has badly affected the result. The said violation cannot be lightly ignored. The perusal of the report reflects that there are 22224 counterfoils which absolutely lack the compliance of section 33 of RPA, 1976.
Under such circumstances I am constrained to declare 22224 votes invalid. By holding the view I am fortified by the dictum laid down in the case of Abdul Hafeez Khan v. Muhammad Tahir Khan Loni and 13 others reported 1999 SCMR 284 (Relevant at pages 295 and 296).
"Tice section is elaborate enough and we may pause only to observe that production of the elector's identity card at the time of seeking the ballot papers is a pivotal fact and that being done the ballot paper to be issued is required to be stamped on its back with the official mark and signed by the Presiding Officer, the Presiding Officer, simultaneously recording on the counterfoil the number of the elector on the electoral roll together with the number of the relevant national identity card. The thumb-impression of the elector is also to be obtained on such counterfoil and the Presiding Officer is there upon to sign it. Correspondingly the voter is to be required to receive a personal mark with indelible ink and the entry relating to him on the electoral roll is to be scored off in token of the issuance of the ballot paper".
' Here it may bear mention that whereas election laws concerning voters are mandatory, such so far as the officers conducting the elections are concerned are usually directory: Mukhtar Hussain Shah v. Wasim Sajjad, PLD 1986 SC 178. Two things, however, have to be noted now. Firstly, where a specific vote as to its validity or invalidity is involved, such may not be invalidated because a requirement of law has not been met, if law, in essentials, has been adhered to. Thus, when a law requires that a ballot paper shall be stamped on its back with the official stamp and signed by the Presiding Officer, the ballot paper may not be invalid if it either bears the official mark or the signature of the Presiding Officer but if both are found to be missing on a given ballot paper, such cannot normally be held to be valid because in that event its very issuance in the ordinary course would become doubtful. Likewise, when law requires the roll, the number of his National identity Card, stamp of the official mark, signature of the Presiding Officer and the thumb-impression of the elector himself, a vote may remain valid if there be a substantial compliance with such requirements but in case that is not so, making it plausibly suspect, the validity of the vote can be questioned with success. Secondly, while, upon the invocation of the foregoing principles, non- compliance with the basic requirements of law pertaining to specific votes, may result either in condonation or invalidity of such votes, in case where the non-compliance is so pronounced as to attract the provisions of section 70 (a) of the Representation of the People Act, 1976, viz, the result of the election is shown to have been materially affected by reason of failure of any person(s) to comply with the provisions of the Act or the rules, the entire election has to be declared void.
Relevant outcome, here lies also the difference between section 70 and its preceding sections namely, 68 and 69, where the challenge is limited to qualification of a candidate or for corrupt or illegal practices, relatable to a candidate, of an identifiable nature or for entitlement of another to be declared elected in which event the electoral exercise can be allowed to stand but the election of the returned candidate may be declared to be void and another, if found to be entitled, declared as elected". B & C".
49. The object behind the provision of section 33 of the Act is to ensure fair, free and transparency of election. The violation thereof undoubtedly leads to contrary view and the departure therefrom would tantamount to make the law ineffective and thus would pave a way for bogus vote. Reliance is placed on the judgment Dr. Hamid Khan Achakzai v. Vehram Khan Achakzai reported in 2000 MLD page 1832 (Relevant page is 1845 "B"). Relevant observation are reproduced hereinbelow:--- "Object of enacting such provision, is to avoid bogus voting, because if these conditions are fulfilled, they will provide a guarantee, that a ballot paper has been handed over by the Presiding Officer to an elector, whose name finds mention in the Electoral Roll of the area. It may be seen that such laws are promulgated with an aim to ensure fair election, amongst the candidates.
Therefore, to achieve the object, it is necessary to comply with each condition laid down by the Statute strictly, because departure from such provision tantamount to make the law ineffective, which would of course pave way for bogus voting. However, substantial compliance of these provisions obviously would be sufficient to meet the object of same, as it has been held by Hon'ble Supreme Court in the case of Sardar Abdul Hafeez Khan."
50. The respondent No,1 has levelled an allegation of corrupt and illegal practice against petitioner by way of Booth capturing against him in his written statement. The said allegations have already been reproduced in Para No,11 (ibid), but while entering into witness-box respondent No,1 did not support his written statement to such extent. Similarly the learned counsel for respondent No, 1 despite specific query did not give weight to said allegation. On reply to the query it was submitted as under:--- "Written statement is in defence of this petition and be looked into for dismissing the election petition."
The position absolutely would have been different, had the respondent No,1 supported his written statement to such an extent. In that occasion naturally I might have directed the parties to go for a fresh election. Since there is allegation of corrupt and illegal practice, restricted to 23 Polling Stations out of 280 and the votes polled in the entire constituency are 142446. Under such circumstances declaration of entire election void will be unjustified. I am of the firm view that remedy lies in discarding and rejecting the invalid votes for flagrant violation of Clause-E of subsection (2) of section 33 of RPA, 1976 and commission of illegal and corrupt practice and massive rigging pertaining to 23 polling stations only.
51. The result of instant petition besides statements of parties and witnesses also rests on the report and statement of .C. W.1. As per report of latter total number of voters assigned to the 23 Polling Stations were 47073. Whereas on recounting it was found that number of total votes polled were 35975. However; while recounting C.W. I was able to find only 26100 counterfoils. Rests of counterfoils were not available in the Polling Bags, therefore; he checked only 26100 counterfoils and submitted his report.
52. While resolving Issues Nos.3 and 6, it has been proved beyond any reasonable doubt that during course of election corrupt and illegal practice by way of massive rigging was committed in the following Polling Stations:-- Polling Station No.14. 1168 votes Polling Station No.15. 2000 votes Polling Station No.17. 2394 votes Polling Station No.18. 2393 votes Polling Station No.19. 2000 votes Polling Station No.22. 1995 votes Polling Station No.27. 2304 votes Total 14254.
' Total number of polled votes in the above stated Polling Stations are 14254, therefore, at first stage I have discarded and declared invalid the said votes, as such; the same are hereby deducted from the total polled votes in 23 Polling Stations.
53. At the second stage it has come on record in the statement of C.W.1 that in following Polling Stations votes were cast more than one time:- S.No. Polling Station No. Number of votes cast more than one time 1 7 138(D)
(6)T)
2(4)
Total: 146 2 16 168(D)
110(T)
64(4)
36(5)
18(6)
12(7)
13(8)
3(9)
2(10)
4(11)
' 3(12)
2(13)
1(14)
1(15)
Total: 435 3 21 252(D)
57(T)
5(4)
1(5)
Total: 315 4 30 341(D)
103(T)
36(4)
16(5)
8(6)
4(7)
1(8)
Total: 509 Total 1405 ' Thus, the above referred 1405 votes cast more than one time in four polling stations are also liable to be deducted from the polled votes, as the same are invalid.
54. Report of recounting and statement of C. W.1 leaves no room for doubt that there is gross and tlagrant violation of Clause 'E' of subsection (2) of section 33 of RPA Act, 1976 as 22224 counterfoils were found without any stamp and signature of Presiding Officer, besides the counterfoils filled incompletely, counterfoils filled in partially etc. There are five columns in counterfoil which required to be filled in simultaneously by the Presiding Officer but during course of recounting various columns were found not filled in. Detail of the same has been given by C.W.1. There is no doubt about invalidity of 22224 (inclusive of deducted votes pertaining to seven polling stations as mentioned in Para 'No,52) votes which deserve to be rejected, as such; are hereby declared invalid and rejected.
55. Pursuant to recount, the valid votes in entire 23 Polling Stations are 3191, because only 3191 counterfoils were found to have been validly filled in. There is no violation of clause 'E' of subsection
(2) of section 33 of the RPA, Act, 1976 qua 3191 counterfoils.
56. I am of the firm view that the valid votes polled in entire 23 Polling Stations are if counted in favour of respondent No, 1 even then respondent No, 1 cannot be declared to have been legally elected as returned candidate. The following break-up will clarify the position.
No. of Polling Station wherein the Entire votesNo. of Polling StationNumber of counterfoils found inNumber of Valid votes polled in 23Number of votes secured b)Number of valid votes in 23Number Of total Votes secured By were Declared invalid/rejected and not counted at alland Number of Votes polled more than one time.utter violation of Clause 'E' subsection
(2) of section 33 of RPA, 1976 polling stations as per the counterfoils found in accordance with law.respondent No.1 excluding 23 polling stations pursuant to recounting. polling stations counted in favour of respondent No.1.respondent No.1 in other as well as 23 polling stations.
Polling Station No.14 Number of Votes declared invalid/rejected is 1807Polling Station No.7.
Number of votes polled more than one time is 146.22224 22224 22343 3191 25534 Polling Station No.15. Number of Votes declared invalid/rejected is 2000Polling Station No.16.
Number of votes polled more than one time is 435.
Polling Station No.17. Number of Votes declared invalid/rejected is 2394.Polling Station No.21.
Number of votes polled more than one time is 315.
Polling Station No.l8. Number of Votes declared invalid/rejected is2393.Polling.
Station No.30.
Number of votes polled more than one time is 509.
Polling Station No.19. Number of Votes declared invalid/rejected is 2000.
Polling Station No.22. Number of Votes declared invalid/rejected is 1995.
Polling Station No.27. Number of Votes declared invalid/rejected is 2304.
57. The perusal of above break up shows that petitioner has obtained more votes i.e. 34985 as compared to respondent No,1, who has secured 25554 votes. Therefore, I am inclined to accept the petition, set aside the Notification No,F.2(4)/2008-Cord dated 1st March, 2008 with the result that the petitioner is declared successful/returned candidate from Constituency NA-263 Loralai-Cum- Musakhail-Cum-Barkhan. The Election Commission of Pakistan is hereby directed to notify the petitioner as returned candidate from said constituency.