1. DR. ZAFAR AHMED KHAN SHERWANI (ELECTION TRIBUNAL).--- This election petition, under section 52 of the Representation of the People Act, 1976 (the Act) has been brought by one of the contesting candidates (the Petitioner) challenging the election of Mr. Abdul Hakeem Baloch (the returned candidate) to the National Assembly constituency NA-258 Karachi on the ticket of Pakistan Muslim League (N) who got 52761 votes in the polling held on 11-5-2013. The petitioner himself who contested the election on the ticket of Pakistan People's Party Parliamentarian had polled 36329 votes, therefore stood as a runner-up. He has prayed to declare the election as a whole void under section 70 of the Act as the result of the election has been materially affected on account of prevalence of extensive corrupt and illegal practices at the election and the failure of the election machinery to comply with the provisions of the Act and the rules as:--- (i)the returned candidate and his supporters rigged the election at large scale and stuffed the ballot boxes with the fake ballot-papers after turning out his polling agents from 84 polling stations (mentioned in the paragraph 8 of the petition) including those 12 polling stations detailed in paragraph 10 of the petition where more than 80% turnout was shown in the respective statements of counts, (ii)the Presiding Officers at various polling stations while preparing the Form XIV did not comply with the provisions of the Act and the rules framed thereunder because they did not mention the names and the numbers of the polling stations on the prescribed format or issued without their thumb-impressions.
2. (iii)the Returning Officer committed serious illegalities during the consolidation proceedings in respect of consolidation of statements of counts the votes polled by the petitioner were reduced and the votes polled by the returned candidate were increased (as per details mentioned in paragraph 9 of the petition.)
3. The petitioner has claimed that the rigging committed during the election would surface if counterfoils be screened out from NADRA entailing the declaration of the election as a whole void..
4. The returned candidate in his written statement has denied all the allegations and pleaded non- maintainability of the petition on legal as well as factual grounds. He has pleaded that though the petitioner has made allegations of rigging at different polling stations but at some of them he himself had led, e.g. Polling Stations Nos.4, 5, 10, 12, 13, 15, 17, 19, 22, 23, 30, 32, 43, 66, 82 and 84. He has prayed for dismissal of the petition.
5. The other respondents did not prefer to contest the petition; therefore, the same proceeded ex parte against them.
6. The tribunal framed the following issues:--- (1)Whether the Petition is maintainable in view of the mandatory provisions of Ss.54 and 55 of the Representation of the People Act 1976?
7. (2)Whether the Presiding Officers issued statements of count in violation of section 38 of the Representation of the People Act, 1976 and if yes what is its effect?
8. (3)Whether actual number of votes cast in favour of the petitioner were not shown in the consolidated result at polling station mentioned in paragraph 9 of the petition and if yes what is its effect?
9. (4)Whether the respondent No.1, his agents, supporters or anyone acting on his behalf rigged the polls, if at all?
10. (5)Whether any law and order situation existed on any of the polling station of NA-258, as alleged by the petitioner? If so, its effect on the polls.
11. (6)Whether verification from NADRA is necessary, appropriate and time and cost effective method for a proper adjudication of the instant Petition?
12. (7)What should the order be?
13. Before proceeding further it is necessary to mention that as prayed by the petitioner in the petition and consented by the other side, this tribunal vide letter dated 16th July, 2013 addressed to the Chairman of NADRA enquired about the capacity of the organization to examine the thumb- impressions of the electors available on the counterfoils of the used ballot papers at the polling stations during the poll. This was responded very positively vide letter dated 22nd July, 2013 and suggested that it would be appropriate to verify the thumb-impression available on the photo electoral rolls and examine with electronic fingerprint data held with organization and requested to send counterfoils, photo electoral rolls and the statement of count of these polling stations. This tribunal with the consent of the parties vide its Order dated 1st August, 2013 called for the said material in respect of 47 polling stations as highlighted by the petitioner and sent to NADRA Headquarters, Islamabad vide letter dated 20th August, 2013 for thumb screening to determine whether the thumb-impressions were of elector whose National Identity Card (NIC) numbers were mentioned thereon and authorized the Chairman under section 46 of the Act to open the sealed bags of the said material and then to submit the detailed report in respect of the process and findings. The NADRA through its Director General (Syed Muzzafer Ali) submitted such report on 21-9- 2013 vide letter No.NADRA/42-A(ET)/NWD, dated 15-9-2013 which was accepted without any exception vide Exh.P-2.
14. Now coming to the issues. The petitioner has examined himself through his affidavit-in-evidence and produced different documents from Exhs.P-1/1 to P-1/42 that include copies of statements of count in respect of different polling stations supplied to his agents and examined Presiding Officers namely Mr. Muhammad Tahir, of Polling Station No.97 as Exh.O-1, Mr. Jan Muhammad of Poling Station No.260 as Exh.O-2, Mr. Muhammad Akbar of Polling Station No 261 as Exh.O-3, Mr. Mukhtar Ahmed of Polling Station No.231 as Exh.O-4. He also examined the Assistant Returning Officer Mr. Abdul Qayoom as Exh.O and the Ex-Officio Returning Officer Mr. Jawed Baloch. They have also produced a number of documents including counterfoils of the 47 polling stations, statements of count and pictorial electoral rolls in the sealed bags.
15. In rebuttal the returned candidate examined himself.
16. Heard the learned counsel for the parties and perused the record.
17. FINDINGS AND REASONS.
18. ISSUES NOs.1 and 6 Not pressed.
19. ISSUE NO.5 On this issue, the petitioner has stated in his affidavit-in-evidence that there were his serious security concerns because of location of all the 287 polling stations in the constituency, therefore, he wrote a letter dated 7th May, 2013 to Chief Election Commissioner and its copies to several other election officials praying therein to provide adequate security arrangement at these polling stations but to no avail which not only affected the conduct of general elections but also paved the way to the returned candidate and his supporters to rig the election at large scale. However, when he was cross-examined by the learned counsel for the returned candidate he frankly admitted that the Election Commission did not declare any polling station of the constituency as a sensitive.
20. He also admitted that in the entire constituency not even a single incident of baton-charge by the police had taken place and ultimately he had to admit that overall situation in the constituency was so conducive that made it possible to conduct the polling throughout the day without any hindrance. Though he showed his concern on the appointment of insufficient security staff at the polling stations but failed to point out any single unpleasant incident in the constituency on the polling day. Undoubtedly there were few incidents of bomb explosions in the City on that day but none within this constituency, therefore, a large turnout of the voters was seen in the constituency as evident from the total turnout of 177806 voters. He has, therefore, failed to produce any tangible evidence to prove his case on this issue in the light of the allegations made in the petition. For these reasons this issue is decided in negative.
21. ISSUE NO.3 On this issue, the admitted position is that there are several statements of count (Form-XIV) in respect of different polling stations showing the votes polled by the petitioner but the same were either not mentioned in the consolidation statement of the result of the count furnished by the Presiding Officers (Form-XVI) Exh.P-1/2, or shown less. The learned counsel for the returned candidate admitted the above position but contended that similar was the situation with the returned candidate whose votes were left from mentioning in the consolidated statement, Exh.P- 1/2. The details of such polling stations and the figures of such votes need not to be mentioned in view of the fact that both learned counsel for the parties admitted that the petitioner's votes were reduced to 36325 from 38401 votes whereas, the votes of the returned candidate were reduced to 52761 from 57201. In view of this admitted position, the issue is decided accordingly. However on account of increase of votes in favour of both the parties this has no effects on the overall result of the election.
22. ISSUES NO.2 AND 4.
23. On these issues the case of the petitioner is that the returned candidate with the connivance of his workers and the Presiding Officers of 84 polling stations committed the rigging during the poll and these Presiding Officers failed to comply with the provisions of section 38 of the Act as they did not exclude from the count the ballot papers which were in violation of these provisions. The petitioner has relied upon the report of NADRA, Exh.P-2 in respect of the counterfoils of 47 polling stations as referred to above as well as inspection report of this tribunal on these counterfoils in support of these issues.
24. The learned counsel for the petitioner contended that NADRA's report provides that:--- He also contended that this report has been corroborated by the inspection report of this tribunal on these 32865 counterfoils during that 8743 counterfoils were in sheer violation of section 33(2)(e) of the Act as on most of them official mark or the signatures of the Presiding Officers were missing and on many of them even thumb-impressions of the electors or even NIC numbers were not mentioned which proves not only rigging during the poll on one hand but non-compliance of the provisions of the Act by the Presiding Officers on the other hand hence, the election is liable to be declared as a whole void having been materially affected. Conversely, the learned counsel for the returned candidate contended that there is no evidence on record to hold that there was any rigging at any polling station of the constituency because the petitioner has failed to produce any tangible evidence in this regard and mere his solitary assertion is not sufficient to prove the same.
25. He further contended that the polling agents of the petitioner have not come before the tribunal to give evidence to support him though their affidavits in evidence were filed, therefore, as provided under Article 129illustration (g) of the Qanun-e-Shahadat Order, 1984 this tribunal can draw an adverse presumption. He has relied upon the case of Messer Habib Bank Ltd. v. Inamur Rehman 1991 CLC 1713 and Qamarul Hasan v. United Bank Limited, 1990 MLD 276.He also contended that it was duty of the petitioner to substantially plead in his petition the corrupt or illegal practices committed by the returned candidate but no such allegation was made in his pleadings, therefore, this tribunal should not consider any evidence brought by the petitioner on record. In support of his contention he has relied upon case of Mir Nabi Baksh Khan v. The Election Petition Tribunalsreported as PLD 1957 Supreme Court page 301, Lala Hem Chand v. Lala Peary Lal and others AIR (29) 1942 PC 64, Mst. Jana Bai v. Mst. Ghulshan and others 1984 CLC 1061, Province of Punjab through Chief Secretary v. Malik Ebrahim and Sons 2000 SCMR 1172.
26. In rebuttal, the learned counsel for the petitioner submitted that the petitioner has made detailed allegations regarding committing illegal practice vide Paras8 and 9 of the petition and this tribunal can decide the issue irrespective of whether any specific issue was framed or not and relied upon the case of Syed Fakhar Imamv. Muhammad Raza Hayat Miraj 2009 CLC 1.
27. There cannot be any cavil with regard to the proposition that if any specific allegation is not made in the pleadings of the parties and no such issue is framed then of course the parties cannot be allowed to lead evidence on such allegation as held in the cases relied upon by the learned counsel for the returned candidate, however, in this petition the allegation of rigging by the returned candidate with the help of different persons has been specifically made by the petitioner in his petition in its para 8 on which there is such specific issue therefore the contentions of the learned counsel for the returned candidate are misplaced and need no further discussion.
28. However, the question is whether the allegation of rigging as pleaded in the said para has been proved or not. The answer is in negative because no tangible evidence in support of the allegation has been produced including those 5 witnesses whose affidavits in evidence were filed by the petitioner which could also be the best evidence in support of these allegations but were not produced for their cross-examination for the reasons best known to him. Hence it can be presumed that evidence of these 5 witnesses if produced would have been unfavourable to him as held in the cases of Messrs Habib Bank Ltd v. Inamur Rehman, 1991 CLC 1713 and Qamarul Hasan v.
29. United Bank Limited1990MLD276thatitcanbepresumedbyacourt under Article 129, Illustration (g) of the Qanun-e-Shahadat, Order, 1894 that evidence which could be but was not produced would, if produced, be unfavourable to the person who had withheld the same.
30. Now coming to the violations of sections 38 and 33(2)(e) of the Act by the Presiding Officers. The evidence produced by the petitioner supports his allegation that the Presiding Officers of several Polling Stations did not prepare the statement of count as provided insubsection (9) of section 38 in the prescribed Form XIV as provided under Rule 24 of the Representation of the People (Conduct of Election) Rules, 1977 as these statements of count, vide Exh.O-2/1 and Exh.O-2/8 in respect of Polling Stations Nos.17 and 18, respectively, are on the plain papers in place of the prescribed Form XIV. It may also be observed that there are other discrepancies also in those statements of count of different polling stations produced by the Assistant Returning Officers from Exh.O-1/2 to Exh.O-1/16 which are though on the prescribed Form-XIV but in some the Presiding Officers have not mentioned the votes of all the contesting candidate including the petitioner and in some they have not provided their thumb-impressions and in some their names. The effects of these discrepancies on the election will be discussed while discussing on the non-compliance of section 33(2)(e) of the Act to see whether or not on account of these discrepancies the result of the election has been materially affected as provided under section 70 (b) of the Act.
31. On non-compliance of section 32(2)(e) reliance of the petitioner's counsel was on the report of NADRA, Exh.P-2 as well as of this tribunal. Before discussing his arguments it may be mentioned here that since beginning the main reliance of the petitioner in support of his allegation of fake voting in the constituency and non-compliance of the provisions of the Act was on the screening of the thumb-impressions of the electors on the counterfoils of the used ballot-papers by NADRA, (as mentioned in his petition) perhaps for the valid reason that this organization is a statutory authority established under section 3 of the National Database and Registration Ordinance, 2000 (NADRA Ordinance of 2000) and the registration of citizens of Pakistan through acquisition of their data including fingerprints which include thumb-impressions and issuance of National Identity Card to the citizen is its statutory mandate under sections 9 and 10 of NADRA Ordinance, 2000. This organization has also been working with the Election Commission to ensure free, fair and transparent election and has coordinated with it since before the announcement of the general election while the Election Commission was in the process of preparing the pictorial Electoral Rolls by providing such data of the NIC holders. Undisputedly this authority is the lawful custodian of the entire required data of fingerprints called as citizen Data-base under section 7(9) of the NADRA Ordinance, 2000. Section 33(2)(e) of the Act provides, inter alia, that the Presiding Officer of a polling station before issuing a ballot-paper shall obtain on its counterfoil thumb-impression of the elector and to record the NIC number of the said elector as available on the electoral roll for that polling station. Therefore, if the thumb-impression which is available on the counterfoil of a used ballot-papers is compared through any electronic process with the thumb-impression available in the data warehouse of NADRA of the of that person whose NIC number has been mentioned thereon from the electoral list then it can be proved on the basis of such examination of the doubtful counterfoils to establish whether the voting process was polluted with the sham voting or not. For this purpose the NADRA was asked to enter into such an hectic exercise keeping in view very large number of such counterfoils after having been received such confirmation about its such capacity in the form of its Automatic Finger Print Identification System (AFIS), a software solution/system which has capability to accurately compare/match fingerprints/thumb- impressions and verify their authenticity. At the time of such confirmation no issue was raised by NADRA that these thumb-impressions must be of a specific standard vis-a-vis the properties and the standard of the ink or the inkpad used for obtaining these thumb-impressions either on counterfoils or on the electoral roll by the Presiding Officers as proposed by it and approved by the Election Commission. However, when this task was performed by NADRA in respect of the counterfoils of 32865 of 47 polling stations and other material on the direction of this tribunal its report was very inclusive because 23432 counterfoils remained unprocessed for the bad quality of thumb-impressions on these counterfoils and pictorial electoral rollsforits proposal to the Election Commission of Pakistan regarding certain-features of the ink to be used for obtaining fingerprints at the time of issuance of ballot-paper, i.e. (a)Ink should be fast dry.
32. (b)By overlapping of paper, it should not lose its original shape.
33. (c)Ink should be skin friendly.
34. (d)Easy to extract data.
35. (e)Viscosity, surface tension, specific gravity and shade on paper should be controlled.
36. (f)Inkpad should be used that provides constant flow of ink, should create high quality and non- smear/clumping impressions.
37. (g)Inkpad should have good quality absorbent material saturated with ink to transfer ink evenly to a thumb.
38. (h)On applying stress on absorbent material, there should be zero deformation in shape, was accepted and it seemed that the ink used during polling did not possess above-mentioned properties.
39. Similarly, though on the request of NADRA the used pictorial electoral rolls of these polling stations bearing the purported thumb-impressions of the electors were sent to it for their similar verification but it reported that all fingerprints on these electoral rolls could not be processed through AFIS due to bad quality of fingerprints for the same reasons as mentioned above and:--- (a)Excessive ink used while affixing fingerprint.
40. (b)Fingerprints being affixed on both front and backsides of each page of electoral rolls making the excessively used ink permeate through the page to the other side thereof thereby mixing the fingerprint on both sides of a page of electoral roll.
41. (c)Fingerprints were also sometimes found crossed/cut out by a line drawn by polling staff while marking the electoral roll.
42. It only gave conclusive finding with regard to 53 counterfoils that failed the authentication test and 2475 counterfoils that successfully matched the fingerprints with of that NIC holders whose numbers were mentioned thereon. Surprisingly, the report further reveals that NADRA found 4680 counterfoils having invalid NIC numbers, 435 out of constituency votes, 1404 duplicate voters on used counterfoils and 386 used counterfoils without fingerprints though no such task was assigned to it by the tribunal. It has been rightly argued by the learned counsel that this tribunal cannot rely upon the same.
43. The report of this tribunal prepared after the inspection of 32865 counterfoils of these 47 polling stations in presence of the counsel for the parties showed 8743 such counterfoils which were not in compliance with section 33(2)(e) of the Act because on most of them neither the official marks nor the signatures of the Presiding Officers were found and on the remaining even there was no thumb-impression of the elector hence the same have been categorized as defective in the report with the consent of both the parties.
44. Now, coming to the effects of these reports i.e. one of NADRA, Exh.P-2, and the other, of this tribunal.
45. These reports are in respect of counterfoils but not in respect of the ballot papers which were marked in favour of the returned candidate. The report of NADRA shows that there were 53 such counterfoils on which the thumb-impressions available thereon were not of the electors who were registered as voters in the constituency at these polling stations but ballot papers were issued to them whereas as per inspection report of the tribunal 8743 were such counterfoils which do not show the fulfilment of requirements of section 32(2)(e) of the Act. There is nothing on the record that all of the ballot papers in respect of these counterfoils were marked in favour of the returned candidate, therefore such number of votes cannot be outrightly deducted from his votes. Neither the petitioner made any application for inspection of the ballot-papers in respect of these 47 polling stations to bring any such evidence nor there is any other tangible evidence to say that these were the votes which were cast in favour of the returned candidate. Hence there will be no plausible reason to deduct these votes from the votes of the returned candidate.
46. Before proceeding further, it may be useful to point out the settled position of law with regard to nature of the provisions of the Act and the Rules framed thereunder as to whether the compliance of the same are mandatory or directory and also the effects of non-compliance of the same have been discussed the Hon'ble Supreme Court of Pakistan in Sardar Abdul Hafeez Khan, 1999 SCMR 284, which was relied upon by both the counsel for the parties in support of their respective pleas. It has been held that election law concerning voters is mandatory so far as the officers conducting the elections is directory. It will be advantageous to reproduce the relevant para from the report as under:--- "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 counterfoil of a ballot paper to bear the number of the elector on the electoral 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.
47. 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 cases 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."
48. It is also necessary to keep in mind another leading case of Muhammad Ali v. Molvi Muhammad Zakaria and others reported as PLD 1986 Journal 167 (also relied upon by both the counsel for the parties) which was upheld by the Hon'ble Supreme Court of Pakistan in the case reported as 1988 SCMR page 105. In this case the election tribunal comprising Justice Saleem Akhtar, (as then his lordship was), after considering plethora of case-law on the subject of "materially affecting" the election provided different circumstances materially affecting the election and election tribunal can declare the same as whole void under section 70 of the Act. These are:--- (1)"Where the number of votes cast in favour of the Returned Candidate procured by illegal practice or corrupt practice or the invalid votes counted in favour of the Returned Candidate can be ascertained and on its exclusion the majority of the Returned Candidate is reduced to less than the votes secured by any other candidate".
49. (2)"Where it is proved that the majority of the Returned Candidate would have been materially reduced if he would not have resorted to illegal or corrupt practice".
50. (3)"Where due to breach of the provision of the Act or rules the purity and fairness of the election is not maintained".
51. (4)"Where the Tribunal is confronted with a situation which makes it impossible to decide the result of the election or the nature of the problem is of indecisive nature".
52. (5)"Where prevalence of excessive illegal practice or corrupt practice is proved to be such nature that it destroys the very purpose of the election and makes it a sham".
53. (6)"Where the secrecy is violated which disturbs the balance".
54. Let the circumstances of the case in hand may be examined to see whether there is any circumstance which fits in any of the above circumstancesinMolviMuhammadZakaria,supra,onaccountof which it can be held that the election has been materially affected therefore the same is liable to be declared as a whole void under section 70 of the Act.
55. In this case, the petitioner has only proved that there was non-compliance of section 38(9) of the Act by the Presiding Officers in respect of 2, polling stations who did not provide the result in the prescribed form XIV and of 33(2)(e) of the Act by the Presiding Officers of 47 Polling Stations in respect of 8743 counterfoils. But since these provisions are directory in nature as held in Sardar Abdul Hafeez Khan's case, supra it cannot be said that the election has been materially affected because of the same specially when the non-compliance was at very few polling stations as compared to total 287 Polling Stations. The petitioner has also failed to prove any number of votes cast in favour of the returned candidate which were procured by illegal act or illegal practice, therefore cannot be excluded from his count. He has also failed to prove that the returned candidate has resorted to any illegal practice or illegalact in obtaining majority of votes. The petitioner has also failed to prove that breach of the provisions of the Act was so pronounced that purity of the election could not be maintained. Similarly, the lead of the returned candidate over the other contesting candidate by 16432 votes cannot be reduced to less than the votes of any other contesting candidate even if the defective counterfoils of the ballot-papers marked in favour of the returned candidate. No other circumstance as, highlighted in the Muhammad Ali's case, is found in favour of the petitioner, therefore, it cannot be held that the result of the election has been materially affected. These issues are, therefore, decided accordingly.
56. Issues No. 7 In view of the findings on the above issues since the petitioner has failed to prove his case within the parameters of section 70 of the Act, therefore, the petition is liable to be dismissed but with no order as to the costs in the circumstances of the case.
57. Order accordingly.
58. 1.Counterfoils of used ballot papers sent to it for the examination of thumb-impressions available thereon32,865 2Invalid NIC number mentioned on used counterfoils 4,680 3.Out of constituency votes found on used counterfoils 435 4.Duplicate voters on used counterfoils 1,404 5.Used counterfoils without fingerprints 386 6.Fingerprints successfully authenticated on used counterfoils 2,475 7.Fingerprints on used counterfoils failing authentication 53 8.Fingerprints of bad quality affixed on used counterfoils 23,432 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.