' FAISAL ARAB, J.--- In the last general elections held in the country on 18-2-2008, the respondent No,1 was declared returned candidate from the National Assembly constituency NA-203 Shikarpurcum-Sukkar. He was a candidate of Pakistan Muslim League (Q). The petitioner, who was a candidate of Pakistan People's Party from the same constituency, was runner-up. As per official results declared by the Election Commission, respondent No,1 secured 89,921 votes whereas the petitioner secured 39,123. Besides these two, there were five other candidates in the run but collectively they secured only 300 votes. What mainly prompted the petitioner to challenge the election results in this Election Petition was that out of 173 polling stations of NA-203, the votes count at 47 polling stations was more than 83% of the total registered votes, which according to the petitioner establishes rigging on the part of respondent No,
1. The petitioner therefore prays for annulment of the election result of NA-203 and seeks order of reelection.
2. The allegation of rigging first surfaced when on the election-day i,e, on 18-2-2008 after the vote count was over and consolidation of results was in progress, the petitioner filed an application with the Returning Officer complaining about rigging on the part of respondent No,
1. The main reason for lodging of the complaint was the phenomenal number of votes polled at various polling stations. On the next day of the elections i,e, on 19-2-2008, the petitioner dispatched an application to the Election Commission, complaining of the rigging. On the petitioner's complaint dated 18-2- 2008, the Returning Officer did not find any substance vide his order dated 20-2-2008. The Election Commission however forwarded petitioner's application dated 19-2-2008 to the concerned District Returning Officer Mr. Ghulam Mustafa Mernon to make necessary inquiry into allegations of rigging and submit report. After conducting inquiry, the District Returning Officer submitted his report to the Election Commission on 28-2-2008. In this report, the District Returning Officer took the view that allegations of rigging are substantial and requested the Election Commission to annul the result of 47 disputed polling stations of NA-203 and order re-polling. The Election Commission however, vide its order dated 6-3-2008, turned down the District Returning Officer's request for re-polling on the 47 disputed polling stations on the ground that the petitioner has failed to substantiate his allegations of rigging through any documentary evidence. Aggrieved by the decision of the Election Commission, the petitioner filed the present Election Petition before this Tribunal. The respondent No,1 contested the petition by' filing written statement. This Election Tribunal then framed following issues:---
(1) Whether the petition is liable to be dismissed under section 63 of the Representation of the People Act 1976, for gross and complete failure of the petitioner to comply with the requirements of section 55 of the Act?
(2) Whether the voter turnout on the 47 polling stations, where the respondent No,1 has won by a colossal margin, being more than 83% is normal and acceptable in light of the decisions of the Hon'ble Supreme Court of Pakistan and the Election Commission of Pakistan while functioning as a judicial authority under Section 103-AA of the Representation of People Act 1976?
(3) Whether the Election Commission of Pakistan, while exercising its authority under section 103- AA of the Representation of the People Act 1976, had not rightly rejected the application of the petitioner for re-count and re-poll of voters in the polling stations that raised a concern as to voter turn-out and failed to consider Forms XII, XIII, XIV and Form XV prepared by the Presiding Officer of each polling station?
(4) Whether the Election Commission of Pakistan had erred in merely relying on the report of the.
District Returning Officer and failed to consider. Forms XII, XIII, XIV and Form XV prepared by the Presiding Officer of each polling station?
(5) Whether the result of the present Election Petition would be to disenfranchise respondent No,1 who secured 89,921 votes in the election in comparison to the minimal amount of 39,123 votes secured by the petitioner?
(6) Whether the petition is liable to be dismissed with costs in favour of the respondent No,1?
(7) What should the order be?
3. After framing of the issues with the consent of the parties appointed commissioner to record evidence of the parties. After both the contesting parties adduced their evidence in support of their respective cases, the commissioner submitted the record of the proceedings to this Election Tribunal. As all issues are interconnected the same are taken up together.
4. Now what is material in this case to be examined is whether bogus votes have been cast and if yes to what extent? In the evidence it has come on record that originally one Mr. Abdul Ghafoor Kalhoro was appointed Returning Officer of the constituency in question and few days before the election he was replaced with Mr. Aftab Ahmed Boghio at the instance of respondent No,
1. Then before the polling, it came to the knowledge of the petitioner that some ballot-paper books, which were supposed to be in the care and custody of the new Returning Officer Mr. Aftab Ahmed Boghio, have come into the hands of an agent of respondent No,l. On a complaint to District Returning Officer in this regard, these ballot-paper books were recovered and handed over to District Returning Officer. In this regard an F.I.R. Was also lodged. On account of this lapse or favour on the part of the Returning Officer, the District Returning Officer asked the Election Commission to replace Mr. Aftab Ahmed Boghio with some other Returning Officer. Finally, Mr. Qurban Ali Shah Lakiyari was appointed Returning Officer in place of Mr. Aftab Ahmed Boghio two days before the elections. It has also come in evidence that eight days prior to elections, the location of several polling stations were changed by the Election Commission at the instance of respondent No, l. The petitioner in his evidence has also stated that while visiting polling stations on the election-day, he found that voters turnout was small. However, the final tally of vote-count of 47 disputed polling stations of NA-203 bearing numbers: 63, 64, 66, 67, 73, 89, 90, 92, 93, 94, 107, 111, 112, 113, 114, 115, 116, 123, 124, 125, 133, 134, 135, 136, 137, 140, 141, 142, 143, 144, 145, 146, 147, 149, 150, 151, 153, 154, 155, 159, 162, 164, 166, 167, 168, 173 and 174, list of which was produced in evidence as Exh.P-64 show that voting was phenomenal in favour of respondent No,1 who secured 92% of the total votes polled as against 2% polled in favour of the petitioner.
5. Learned counsel for the petitioner Mr. Anwar Mansoor Khan argued that there was a pre-poll rigging in the form of change of Returning Officer as well as change of polling stations just days before the elections, and this was done at the behest of respondent No,1 and then ballot-paper books also found their way into the hands of the agent of respondent No,l. He further argued that in this background of pre-poll rigging, foundation was laid for rigging on the election-day, which came to light in the form of vote-count of 83% of registered votes in 47 disputed polling stations which was in contrast to 40% turnout in other polling stations of the constituency where the petitioner had won. He contended that in view of figures of unbelievable vote- count on 47 disputed polling stations, the Election Commission ought to have ordered re-polling at least on these 47 disputed polling stations as was advised by the District Returning Officer in his inquiry report dated 28-2-2008. Mr. Anwar Mansoor. Khan also submitted that in similar circumstances, re- polling in NA-202 was ordered by the Election Commission which decision was affirmed by the Supreme Court in Aftab Shahban Mirani's case reported in PLD 2008 SC 779.
6. Learned counsel for respondent No,1 Mr. Abdul Sattar Pirzada apart from denying allegations of pre-poll rigging and rigging, on the polling-day basically argued that there are procedural and legal defects in the election petition. He argued that the petition is liable to be dismissed as it does not disclose full particulars of the corrupt or illegal practice nor it contains the names of the parties alleged to have committed corrupt or illegal practices nor it particularize the date, time and place of commission of such illegal acts and corrupt practice and, therefore, the petition is liable to be dismissed on account of non-compliance of requirements of section 55(1)(b) of the Representation of the People Act, 1976. In support of his contention, the learned counsel has relied upon the cases reported in 1986 CLC 2463, 1993 CLC 929 and 1999 CLC 2039. He also contended that along with the memorandum of election petition, documents which were later produced in evidence were not appended and, therefore, the petitioner cannot rely on such document in support of his case. In support of this contention, the learned counsel for respondent No,1 relied upon the cases reported in 1989 CLC 88, 2005 CLC 1493 and PLD 2005 SC 600.
7. In the light of the undisputed facts that in place of Returning Officer Mr. Abdul Ghafoor Kalhoro, Mr. Aftab Ahmed Boghio was appointed at the behest of respondent No,1, and some of the ballot- papers found their way into the hands of the agent of respondent No,1 which were supposed to be in the safe custody of Mr. Boghio and that several polling stations were changed at the behest of respondent No,1 just eight days prior to election day, the effect of phenomenal turnout on 47 disputed polling stations, which the respondent No,1 won with overwhelming majority, is to be examined: Now apart from the petitioner and respondent No,1 there were five other candidates who contested the elections. Therefore, before proceeding to examine vote count of 47 disputed polling stations it may be mentioned that these other five candidates collectively secured only about 300 votes hence the impact of these 300 votes would be insignificant when the impact of vote count secured by the respondent No,1 is examined.
8. In the 47 disputed polling stations the number of registered voters for February, 2008 elections was 74084. The total number of votes polled in these 47 polling stations was 61996. In other words turnout was 83.68% as compared to about 40% in the remaining undisputed polling stations. Then out of total of 61996 votes that were polled in these 47 disputed polling stations, respondent No,1 secured 57190 votes whereas the petitioner secured only 1294 votes. This means that respondent No,1 secured 92.24% and the petitioner secured only 2% of the total number of votes polled at these 47 disputed polling stations. The respondent No,1 won election with huge margin when there is no denying the fact that there was huge sympathy vote polled in favour of the leader of Pakistan People's Party, Mohtarma Banazir Bhutto who was assassinated during election campaign on 27- 12-2007. The existence of sympathy vote was also acknowledged by the respondent No,l's advocate while cross-examining the petitioner. In the light of these facts when the voter turnout at 47 disputed polling stations is compared with the undisputed polling stations one cannot rule out that fair, just and transparent polling has not taken place at 47 disputed polling stations. In this background one cannot loose sight of the fact that few days before the elections, ballot-paper books found their way into the hands of the agent of respondent No,1 which could have been easily utilized to print bogus ballot-papers using same paper and printing design. Election Commission should have taken excessive voter turnout in consideration, acted on the advice of the District Returning Officer as contained in his inquiry report dated 28-2-2008 and promptly ordered re- polling on the 47 controversial polling stations. The Election Commission however did not accept the inquiry report on the ground that petitioner failed to substantiate his allegation of rigging before the District Returning Officer through any documentary evidence.
9. On a complaint of rigging made by a candidate, a tentative assessment of the material available before the Election Commission might be sufficient to decide correctness of the allegation and the Election Commission may order re-polling on all or some of the polling stations of a constituency. Where the final results show massive voter turnout on certain polling stations in contrast to other polling stations and only one candidate secures overwhelming number of votes then the Election Commission on the basis of material before it can summarily reach the conclusion that rigging has taken place and can promptly order re-polling. In the case-reported in PLD 2008 SC 779 which was cited by the counsel for the appellant it was held at pages 814 and onwards as follows : "..The Commission under section 103-AA of Representation of the People Act, 1976, without undertaking the exercise of adjudication of the complaint as an election petition or holding a regular inquiry, can declare election wholly or partially void in a constituency in case of grave illegality or violation of rules which is brought to its notice during the process of election. There is no bar for a defeated candidate to raise such a ground in the election petition but mere fact that the remedy of election petition can be availed at a subsequent stage and ground of grave illegality and violation of rules which resulted in illegal and corrupt practices are also adjudicateable before Election Tribunal in an election petition, may not debar the Election Commission to exercise powers under section 103-AA of the Representation of the People Act, 1976. The contention of the learned counsel for the respondent that if on the basis of ground mentioned in the application under section 103-AA, remedy of election petition can be availed, the Commission must not exercise the powers and interfere in the matter during the election, being beyond the wisdom of law, has no substance to be dilated upon. The Election Commission of Pakistan in discharge of its constitutional duty has to make all arrangements for the elections of National and Provincial Assemblies at 'all stages. The function of Election Commission before the start of election process is only of ministerial nature and after the start of process, it is the duty of Election Commission to ensure that the election is conducted honestly, justly, fairly and in accordance with law, therefore, the Commission has to take all necessary steps and measures to ensure that the election is transparent in all respects and if in the process of election any illegality is committed or violation of law or rules is brought to its notice which may have material effect on the result of the election, the Commission will certainly undo such illegal acts and violation of law or rules in the interest of fair election. The Commission may not necessarily entertain a complaint on the grounds which can be raised in the election petition but mere fact that the ground taken in an application under section 103-AA of Act, 1976, can be raised in the election petition, is not a valid reason to curtail or reduce the power of Commission to the extent of only issue instructions and guidance to the concerned authorities in the process of election. The narrow interpretation of the above provisions of law in respect of power of Election Commission would virtually render these provisions as redundant and defeat the very purpose of law. The power of the Commission is not confined only to the extent of ministerial and administrative job of election rather the Commission also has to ensure free, fair and transparent election in terms of Articles 218 and 219 of the Constitution and consequently, the provision of section 103 and 103 AA have to be given effect in letter and spirit which empowers the Commission to supervise and ensure the conduct of election fairly, honestly, justly and in accordance with law. The different interpretation may make redundant these provisions and this is settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of law rather in the wisdom of legislature in case of any conflict of two provisions; the rules of harmonious interpretation is followed. The reference may be made to the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and relevant part of the judgment is read as under:--- "Where there is conflict between the two provisions, the entire provisions of the Constitution are required to be read as a whole, and the basic features of the Constitution take into consideration."
The emphasis of the learned counsel for the respondent that the Election Commission, without holding proper inquiry could not exercise powers, under section 103-AA of the Act to declare the election of a constituency as a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under section 103-AA of the Act in the manner provided therein and not beyond that, but the plain reading of section 103-AA of she Act would show that meaning of expression "in the constituency void" is not only referable to the whole constituency rather its true import is election in the constituency as a whole or at one or more polling stations. It was held in Abdul Hamid Khan Achakzai v. Election Commission of Pakistan 1989 CLC 1833 as under: "Election commission's jurisdiction for declaring election of the whole constituency as void would depend on being satisfied about the exercise of grave illegalities or serious violation of the provisions of the Act LXXXV of 1976 or Election Rules in the conduct of polls in any constituency."
' It was further held that:- "No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103-AA but such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation."
' In view of above discussion we hold that Chapter X as well as sections 103 and 103-AA of Representation of the People Act, 1976 are entirely independent to section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under section 103-AA of 1976 Act before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict.
' The careful examination of complaint would suggest that the illegalities and irregularities committed in the election were grave in nature which may have materially affected the result. The conclusive evidence and proof of facts regarding illegal and corrupt practices is not the requirement of law for exercise of powers by the Commission under section 103-AA of the ' Representation of the People Act, 1976 rather the Commission if on the basis of tentative assessment of the material available before it is satisfied regarding the correctness of the allegation, may pass such an order as is deemed proper in the circumstances of the case.
' The perusal of complaint, reveals that petitioner sought interference of Commission mainly on the basis of following three grounds:---
(a) A day before the election, Returning Officer transferred.Polling officers of 17 polling stations without permission of Election Commission;
(b) The ratio of vote on polling stations of Katcha areas including women polling stations was unnatural; and
(c) The women polling staff was not available at certain polling stations which resulted in bogus voting of women on these polling stations.
' The Election Commission of Pakistan, in the light of facts supplied by the petitioner in the complaint and the subsequent application moved by him as well as the reports obtained from the Returning and District Returning Officer and keeping in view the ratio of votes secured by the petitioner at 171 polling stations with large difference of ratio at disputed polling stations of Katcha areas and other relevant material in support of the allegation of unfair and unjust election, proceeded to pass the order of re-poll at 18 polling stations to ensure the fair, just and honest election in accordance with law. The Returning Officer and the District Returning Officer have not controverted the transfer of polling staff at, 17 polling stations, on 17-2-2008 therefore, notwithstanding the fact that in the complaint, on the details of only one polling station was supplied, the large scale of transfer of polling officers by the Returning Officer without information and knowledge of District Returning Officer or intimation of the Election Commission, was grave illegality. This is mandatory under section 9(2) of Act, 1976, that Returning Officer at least 15 days prior to the day or poll cannot change the polling staff without permission of the Commission and departure thereto, has serious consequence reflecting upon the transparent, fair, just and honest conduct of election which may impair the result. This is also noticeable that women polling staff was not provided at women polling station but still women votes were polled with the same ratio of the votes which were polled at male polling stations. The excuse for non-availability of women polling staff was that it was not possible for female to discharge duty in the area due to security reasons but at the same time without any scrutiny, women votes polled their votes and consequently, this contradiction would sufficiently suggest that at the women polling bogus votes were polled in absence of women polling staff. In view of the transfer of polling staff one day before the poll and, difference of ratio of votes secured by the parties at 171 polling stations and at the polling stations of Katcha area, where re poll had been ordered, coupled with the fact that women polling staff was not available, would be the strong evidence and circumstances to show unfair and unjust election at certain polling stations of the constituency and change of result in artificial manner. In these circumstances, the Commission was neither required to record evidence nor hold a regular inquiry rather could conveniently proceed to declare the election void at these polling stations and direct for partial re-poll in discharge of its constitutional duty of holding transparent elections. In the light of the above features of the case, the High Court, in exercise of its constitutional jurisdiction, was not supposed to substitute its .Opinion with the opinion formed by Election Commission on the basis of material available before it and we having considered the matter in detail, have not been able to find that order passed by the Election Commission of Pakistan was not suffering from any jurisdictional defect nor was coram non judice or mala fide to be justifiably interfered by the High Court in its constitutional jurisdiction.
(underlining is mine)
10. From the above decision of the Supreme Court it is evident that under sections 103 and 103-AA of Representation of the People Act, 1976 read with section 52 of the Representation of the People Act, 1976, the Election Commission on a complaint lodged by a candidate or his agent or polling staff or any other person, if finds that it would not be possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, may, after holding summary inquiry, declare election in a constituency as a whole void and direct re- A poll in the entire constituency and in case the rigging is confined only to some of the polling stations then it may direct re-poll at such polling stations only. In the present case the above discussed assessment of polling results of 47 polling stations was sufficient to satisfy the Election Commission that fair, just and transparent elections have not taken place in those polling stations.
11. In view of the above I hold that large-scale rigging has been committed on 47 disputed polling stations of National Assembly Constituency NA-203 and hence I hereby declare poll results of polling stations bearing numbers: 63, 64, 66, 67, 73, 89, 90, 92, 93, 94, 107, 111, 112, 113, 114, 115, 116, 123, 124, 125, 133, 134, 135, 136, 137, 140, 141, 142, 143, 144, 145, 146, 147, 149, 150, 151, 153, 154, 155, 159, 162, 164, 166, 167, 168, 173 and 174, list of which was produced in evidence as Exh.P-64, to be void and direct the Election Commission to hold re-polling on these 47 polling stations within the period prescribed by law and after consolidation of the final results of these 47 polling stations with the results of previous results of other undisputed polling stations name of the successful candidate be announced afresh.
12. Before parting with the judgment I may suggest to the Election Commission to consider this for the conduct of future elections. Basically, rigging is done by stuffing the ballot boxes with bogus votes which mostly takes place after the polling is over. If on the polling day, the Election Commission keeps itself abreast with the voters' turnout on each polling station at various intervals, this would help detect bogus voting taking place at a particular polling station. As the polling period is normally from 8 a.m. To 5 p.m., the Election Commission can obtain the number of votes that have been polled at a polling station after every three hours from the start of polling.
Each polling station should dispatch the number of votes polled between 8 a.m. And 11 a.m. Then the number of votes polled between 11 a.m. And 2 p.m. And lastly the number of votes polled between 2 p.m. And 5 or closure of the polling. These three figures of vote-count obtained at three different stages of polling would be relevant in understanding with absolute clarity the genuineness or otherwise of the allegation of stuffing of ballot boxes with bogus votes after the polling is over. In case any candidate has indulged in large scale stuffing of ballot boxes with bogus votes after the closure of polling time with the active connivance of polling staff, then the Election Commission after comparing the figures of voters turnout obtained at three intervals of polling with the final tally of votes would immediately detect the extent and scale of bogus voting. To reach such conclusion, no documentary evidence is required except the comparison of vote- count figures of polling station obtained at three intervals of the polling and the final tally of vote-count at the end of the polling. In case of bogus voting, the final vote-count would never reconcile with the periodical turnout figures of polling obtain by the Commission from time to time on the polling day. The Commission can immediately ordered re-polling without burdening an aggrieved contesting party to establish rigging before Election Tribunal through time consuming process of recording of evidence which may consume two to three years and till then the electorate remain deprived of the their rightful representation in the assembly. Thus, figures of final tally of vote-count and the periodical polling at a particular polling station would by itself serve as evidence to judge rigging, calling for immediate decision on the question whether re-polling is to be ordered or not. In case the discrepancy is only marginal then it may not call for an order of re-polling but huge difference in the two figures which may affect the final result of the entire constituency would certainly call for re-polling.