1. DR. ZAFAR AHMED KHAN SHERWANI, ELECTION TRIBUNAL.---This order will dispose of the following 2 issues which were settled by this tribunal on the request of the learned advocate for the respondent No,37 who had contended that since the petitioner has failed to show any cause of action against him in the petition, therefore, the same is liable to be dismissed with costs at its threshold:--
(i) Whether the petitioner has shown any cause of action against respondent No,37?
(ii) What should the Order be?
2. Since the decision on the issues is depending on the contents of the Petition and the documents attached therewith, therefore, no evidence was required thereon.
3. Heard the learned counsel for the parties and perused the record.
4. The brief facts as pleaded in the petition are that the petitioner, an unreturned candidate in the last general election from the constituency No, PS-115, Karachi, has challenged the election of the returned candidate, the respondent No, 37 by way of this Election Petition under section 52 of the Representation of the People Act, 1976, on different grounds, inter alia, the alleged failure of the election machinery to hold the election in free, fair and transparent manner resulting on one hand the loss of lives of innocent citizen on account of bomb blasts in the constituency and the similar threats amongst the voters and on the other hand the mass rigging by the terrorist groups who managed to poll bogus votes at the mass scale. It has been mentioned by the petitioner in the petition that in spite of his complaints to the law enforcing agencies in this regard they failed to take any action against them rather supported the terrorists by taking away four boxes of ballot papers. The terrorists also kidnapped his polling agents and maltreated them miserably. He further submitted that he had held such press conference and moved such applications to the Provincial Election Commissioner on account of which re-polling at six polling stations was held on 8-6-2013.
5. He has prayed, inter alia, to declare the election of the respondent No, 37 as a whole void. Different documents pertaining to this election in support of his allegations have also been produced by the petitioner with the petition.
6. In the written statement filed by the respondent No,37 he has denied all the allegations and pleaded that the same are false and frivolous in order to defame the election commission and other law enforcement agencies.
7. It is necessary to mention here that this respondent earlier, also had moved- an application Order VII Rule 11, C.P.C. Read with under sections 55 and 63 of the Act supra for dismissal of the Petition but the same was dismissed vide order dated 16-8-2013.
8. The learned counsel for respondent No,37 contended that in the entire petition the petitioner has failed to make a single allegation against the respondent No,37 that he had committed any illegal practice during the conduct of the election in the constituency, therefore, the petition is fit to be dismissed as the election of the returned candidate cannot be declared as void as provided under section 68(2) of the Act supra. Hence, when the petitioner has failed to show a cause of action against the respondent No,37 the Petition is liable to be dismissed.
9. On the other hand the learned Counsel for the petitioner contended that since an application of the respondent No,37 under Order VII of 11, C.P.C., as referred to above, has already been dismissed by this tribunal therefore, the same is a proof of the fact that the petitioner has a cause of action to file this petition hence the same cannot be dismissed at this stage until the petitioner is provided an opportunity to prove his allegations in accordance with law. He further contended that the consolidated result sheet of the count furnished by the Presiding Officers in Form-XVI, a copy of which has been produced with the petition vide Page Nos. 53 to 59 undoubtedly shows bogus voting in favour, of the respondent No,37. He pointed out from the entries of this document that the respondent No, 37 has won the election on the basis of votes in his favour at polling stations Nos. 59 to 72 where either he got 100 % votes of the votes polled or the maximum of 100% of the registered votes which were polled. This prima facie shows mass-rigging at these polling stations with the total failure of the persons to comply with the provisions of the Act supra or their connivance and as well as prevalence of extensive illegal practice at the election and if the allegations are proved the same will lead to a declaration of the election as a whole void within the ambit of subsections
(a) and (b) of section 70 of the Act, supra. He further submitted that the petitioner has already moved an application for verification of thumb impressions on the Counterfoils of the used ballot papers to determine whether these thumb impressions were of the genuine registered voters as per data of the NADRA or not. He therefore, contended that this tribunal which has been constituted to ensure that the Election Commission has performed its duty within its mandate as provided in Articles 219 and 220 of the Constitution of Pakistan holding of election honestly, justly, fairly and in accordance with law. He has relied upon the case of Aftab Shahban Mirani reported in PLD 2008 SC
779. In rebuttal the learned counsel for respondent No,37 contended that the arguments submitted by the learned counsel for the petitioner are out of context of the pleadings of the petitioner, therefore have no legal force. He further contended if that respondent No,37 has secured 100% votes at any particular polling station, it cannot be presumed that there was any rigging in the conduct of the election. He lastly contended that the petitioner cannot be allowed to prove an allegation which has not been pleaded in his pleadings therefore, he submitted that the petition is liable to be dismissed at this stage to meet its ultimate fate within the purview of the Act, supra.
10. I have carefully considered the above arguments in the light of the record. As mentioned earlier an application for the dismissal of the petition moved by this. Respondent No,37 has been dismissed, by the Tribunal on 16-8-2013.However, at that time no issue was framed, therefore, the request of the learned Counsel for the respondent No,37 was accepted to frame such issues on the cause of action to determine whether the petition can be proceeded on merit in accordance with the law.
11. In order to determine whether a petitioner has a cause of action to Ale his petition for any relief against any person it is necessary to take into consideration, the bundle of facts pleaded in the petition by the petitioner to come to a certain conclusion that he has a cause of action. In Normee Shafi v. Amjad Shafi PLD 2011 Kar. 416, it has been held that the term cause of action refers to every fact which if traversed it should be necessary for plaintiff in order to support his judgment and which, if not proved, give defendant a right to judgment. Bundle or totality of essential facts is necessary for plaintiff to prove before he succeeds. In this petition the petitioner has made a number of allegations regarding unfair elections and mass rigging at the Polling Stations of his constituency on the Polling day which are to be considered in totality and not separately and therefore, it shows a cause of action. Admittedly the name of the respondent No,37 has not been mentioned in the petition alleging any illegal practice during the polling but it does not mean that the petitioner has no cause of action to file this petition. The fact that the petitioner has prayed for a declaration of the election of the respondent No,37 as a whole void in terms of section 70 of the Act, supra, it was not compulsory for him to plead such allegation regarding illegal practice against him. Reliance is placed on Dr. Sheela B Charle's case,1996 SCM R 1455.
12. The petitioner has produced a copy of consolidated statement of the results of count furnished by the Presiding Officers of the Polling Stations, Form XVI, in respect of the constituency showing amazing and surprising results in favour of the respondent No, 37 at some of the Polling Stations of the constituency as pointed out by the learned Advocate for the petitioner which require a detailed probe and enquiry by this Tribunal before any definite finding is given on the allegations within the mandate of the law. In the similar circumstances as mentioned in Shabhan Meerani's case, supra, when the Election Commission ordered re-polling at different polling stations of the constituency the Supreme Court upheld the decision of the Election Commission on the same principle.
13. In these circumstances, I am of the view .That it cannot be held that the petitioner has failed to show any cause of action to file the petition, therefore, the issue No,1- is decided accordingly.
14. In view of the above finding I hold that the petition will be decided on its own merit and not liable to be dismissed for want of cause of action at this stage.