1. RANA ZAHID MAHMOOD (ELECTION TRIBUNAL).--- An election petition is pending adjudication in this Tribunal filed by Jahangir Khan Tareen petitioner challenging the success of Muhammad Siddique Khan Baloch respondent No.1, the returned candidate in the General Elections held on 11- 5-2013 for Constituency No.NA-154-Lodhran-1 on the allegation of corruption and corrupt practices allegedly employed by and on behalf of respondent No.1 by his supporters in connivance and collusion with the Presiding Officers and the polling staff apart from challenging his qualification as validly nominated candidate due to fake and bogus educational qualifications. After the appearance of the respondent No.1 in this case in answer to the notice issued to him, he filed written reply to the election petition controverting and refuting allegations levelled against him by the petitioner. Issues were then framed out of the pleadings of the parties. Petitioner was then directed to produce evidence. The petitioner then produced 14 P.Ws. in support of the allegations and then the petitioner himself appeared as his own witness on 20-5-2014 when his examination- in-chief was recorded and cross-examination has been reserved on his statement by the learned counsel for respondent No.1 as Mr. Abdul Hafeez Pirzada Senior Advocate learned counsel for petitioner requested the Tribunal to take up the application of the petitioner originally filed with the election petition with the request to send the ballot-paper counterfoils and the voters list to NADRA authorities for verification and comparison of thumb-impressions with the identity cards of the voters as it was alleged in the petition itself that fake and bogus votes were cast without production of national identity cards in connivance with the Presiding Officers and the polling staff at large scale and on a very big number of polling stations.
2. 2.The learned counsel for petitioner then submitted in support of the allegations with reference to Para-B of the prayer to the election petition appearing at page No. 50 of the election petition that since specific prayer has already been made on the basis of the contents of the election petition in the relevant paragraphs and a separate application in support thereof was already filed with the filing of election petition before the Election Commission of Pakistan on 3-7-2013 therefore submitted that it cannot be said that the submission in this regard is an afterthought or something novel. He submitted that he has carefully gone through an order passed by this Tribunal in case of Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others, an election petition pending adjudication in this Tribunal wherein an application filed by the election petitioner in said case for referring the matter for verification and comparison of thumb-impressions of counterfoils of ballot papers and voters list to NADRA authorities has been turned down vide order dated 12-5-2014 and submitted that this Tribunal observed in said case that in the prayer of said election petition there was no request for verification and comparison of thumb-impressions by NADRA Authorities and the prayer was confined only to the extent of recounting of votes, thus submitted that there is a sharp contrast between the two petitions as in the instant petition the petitioner has taken said stance right from day one and as stated above separate application in support thereof and the main prayer which is split into many paras and the relevant split portion is embodied in Para-B of the prayer therefore submitted that the previous order of this Tribunal in no way debars it from passing appropriate order or allowing his application in this regard. Submitted that there is no estoppel against interim and introductory order. The learned counsel further submitted that specific issue in this regard as issue No.15 is already cast and submitted that the report of NADRA Authorities would not be conclusive per se and would be subject to scrutiny and judicial determination thereof by this Tribunal and said determination shall be final. He thus submitted that the report of the NADRA Authorities would simply be a step in furtherance of evidence to be produced by the petitioner and no more. He submitted that Issue No.16 which is a connected issue with Issue No.15, on 58 polling stations the description of which is specifically mentioned in Issue No.16, it was found that ballot-papers account on the Form No.XV was not duly filled, completed and filed under the provisions of The Representation of the People Act, 1976 and Rules of 1977 on the subject. He submitted that as per report of the Regional Election Commissioner who appeared in this Tribunal as P.W.11 and his report has already been exhibited as Exh-P-13 with his signature thereon as Exh-P-13/1, the exhibited report perusal prima facie shows that on numerous polling stations the counterfoils of the ballot-papers were found without thumb- impression and the entries of number of CNIC of the voters while there were other glaring irregularities as well which prima facie require the allowing of the application of the petitioner and submitted that on more than 39,000 ballot-papers there were no signatures or thumb-impressions of the Presiding Officers. He submitted that it has never been that there is 100% turn out of the voters ever in the history of the elections anywhere in Pakistan and the total number of registered voters in the constituency were 3,70,150 while the District Returning Officer requisitioned a total number of 3,85,400 ballot-papers from the Election Commission of Pakistan which itself casts doubt on requisitioning of said excess 15,250 ballot-papers by the District Returning Officer and submitted that immediately after the election the petitioner filed an application to the Election Commission of Pakistan against the corruption and corrupt practices adopted by the respondent No.1 and the Election Commission of Pakistan then was pleased to pass order for recounting of votes vide order dated 18-5-2013 by the DRO in the presence of ROs, the Presiding Officers and the Regional Election Commissioner who appeared as P.W.11 before this Tribunal was directed to be associated with the recounting process as "observer" and submitted that the report of the DRO as stated above supports the allegations made by the petitioner in election petition. The learned counsel submitted that his case is squarely distinguishable from the case of Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others wherein a request by the election petitioner to send the matter to NADRA Authorities has been turned down and submitted that said order in no way is a lawful obstacle in the way of petitioner to claim the verification and comparison of thumb-impressions by NADRA. Submitted that to clinch the controversy, said exercise is permissible under the law and referred to an unattested copy of an order passed by The Election Tribunal Sukkur vide order dated 1-8-2013 in the case of Khalid Ahmed Lund v. Ali Gohar Khan Mahar and others and submitted that there are various instances where other learned Tribunals functional in the country in their respective spheres have passed orders for verification and comparison of thumb-impressions with counterfoils of the ballot papers in view of the allegations so levelled in the election petitions therefore submitted that allowing of the application would enable the Tribunal with further evidence of the petitioner in this regard to support his case.
3. The learned counsel submitted that the report of the NADRA would not be the end of the case as report shall be subject to objections by the parties and further proceedings in this regard in view of the provisions of Qanun-e-Shahadat Order, 1984 and would not shut the door on the respondent No.1 to controvert the evidence by leading evidence in defence. He also made reference to Rule No.10 of procedure for adjudication of election petitions vide Notification dated 16-3-1985 which permits allowing of interim relief. He submitted therefore that the application filed by him may be allowed.
4. 3.The learned counsel for respondent No.1, the returned candidate has vehemently opposed the contentions and submitted that firstly this Tribunal is debarred/estopped from passing any order contrary to the order passed by it on 12-5-2014 in the case titled as Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others, wherein a similar request has been turned down by this Tribunal on the ground that it would amount to cutting the throat of the opposite party i.e. the returned candidate without providing him opportunity to controvert the evidence produced by the petitioner and secondly with reference to the case-law reported as 1998 CLC page 612 in case of Sardar Muhammad Abdullah Khan Tahir v. Sahibzada Muhammad Khan Abbasi and 4 others where interim relief was held not to be allowed if same was likely to cause greater inconvenience and irreparable loss to the respondent and also would tantamount to granting relief prayed in the main petition itself before conclusion of the trial. He thus submitted that he relies upon the order passed by this Tribunal which is applicable to the application under discussion on all fours and submitted that in the instant case as well no preliminary issue in this regard has been claimed by the election petitioner and submitted that the allowing of the application would amount to jumping to the conclusion without due trial. The learned counsel submitted with great emphasis with reference to section 55(1)(b) of The Representation of the People Act, 1976 that details of corruption and corrupt practices with date, time and place are since specifically lacking in the election petition therefore Issue No.15 does not cater the request made by the election petitioner and submitted that instead Issue No.26 got cast by him is specifically in the context of non-observance of mandatory provisions of section 55 of the Act, 1976 and as such no direction can be issued for verification of thumb-impressions by the NADRA Authorities in the absence of any evidence by the petitioner with respect to different polling stations which lack mention in the election petition. The learned counsel submitted that the petitioner has almost exhausted his evidence and has produced 14 P.Ws. and has got recorded his examination-in-chief on 20-5-2014 and for cross-examination on his statement has sought time of few days due to his medical checkup at London already scheduled when request for taking up this application was abruptly made by the learned counsel for petitioner. Submitted that earlier as well the petitioner had requested this Tribunal to take up this application vide order dated. 12-12-2013 however the Tribunal observed that application shall be taken into consideration after the parties lead evidence to resolve the factual controversies involved therein and the decision on the application at that stage was held to be premature, would also pre-empt the decision on merits before the production of evidence by the parties. He therefore submitted that in view of the said observation as well the Tribunal cannot take up this application for decision neither the same can be allowed.
5. He therefore submitted that application may be deferred to be taken up after the parties produce their whole of the evidence.
6. 4.Arguments heard, record perused.
7. 5.Application under consideration was filed by the petitioner along with the election petition as is evident from the record, the index of the election petition filed by the petitioner shows that it finds mention on Serial No.58 at pages Nos.408 to 413 dated 3-7-2013 when the election petition was filed before the Election Commission of Pakistan. In Para No.5 of said application it is specifically mentioned that approximately 39,677 counterfoils of ballot-papers were without signatures and seal of the concerned Presiding Officers whereas on 220 polling stations, the counterfoils of the ballot papers were without number of the voter of the electoral roles and the number of national identity card of the voters with stamp and official mark and the thumb-impression of the elector are missing and quite a sizable number of the polling stations find mention in said para wherein said statutory observance has not allegedly been made by the Presiding Officers and the polling staff. Petitioner specifically mentioned about said contents of the instant miscellaneous application in Para number 13(V) apart from relying upon the report of the Regional Election Commissioner as "observer" which is also specifically mentioned in Para No.14 of the election petition and marked as Annexure-X to Annexure-X8. Said Regional Election Commissioner had also appeared as P.W.11 and got Exhibited his report as Exh-P-13 and Exh-P-13/1 even if the evidence and statement of the said Regional Election Commissioner in particular and other P.Ws. such as P.Ws.1 to 7 have also been produced by the petitioner in support of said allegations however I have not gone for the evidentiary value of their testimonies including evidentiary value of the testimony of Regional Election Commissioner except that the petitioner has produced them in support of the allegations leveled in the main petition in above said paras and since there is a specific prayer in the election petition itself in Para-B of the same therefore it cannot be said that this request has been made in contravention to the prayer in the main petition as was observed in the case of Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others and order passed by me on 12-5-2014. It therefore cannot be said prima facie that compliance of section 55(1)(b) of said Act has not been made by the petitioner as canvassed by the learned counsel for respondent No.1.
8. 6.I find force in the arguments advance by the learned senior counsel for petitioner that the seeking of report from the NADRA Authorities about the veracity, authenticity and correctness of the thumb-impressions of the electors on the counterfoils of the ballot-papers so used would not finally to which the controversy however would be an indicator and evidence by the petitioner if the same finds favour with the Tribunal to be a report made after analysis of the material placed before it by skillful employment of the modern techniques and devices available with NADRA and final verdict in this regard ball be of the Tribunal itself and the status of the report would be of an evidence of the petitioner produced by him merely like any other evidence. It is also true that the parties would file objections for or against the report and the same would be subject to cross- examination by the opposite side on the person who prepared it.
9. 7.Earlier order passed by me in case of Sheikh Muhammad Tariq Rasheed v. Makhdoom Javed Hussain Hashmi and others since is distinguishable on facts and law therefore is inapplicable to the case in hand as observed earlier that in said case, the main prayer was for recounting of votes and not for verification and comparison of thumb-impressions by NADRA while the application for sending the ballot papers to NADRA Authorities was filed at a subsequent stage while in the instant case the application has been filed along with the election petition right from day one. Specific assertions which are made in the election petition on the controversy in question are also available in the separate application therefore it cannot be said that previous order by this Tribunal is an obstacle in the way of the Tribunal to allow this application. The case-law referred and relied upon in the aforementioned order in no way is a hindrance to allow this application as specific grounds having been taken in the application itself together with separate application and then by producing evidence by the petitioner of P.Ws.1 to 7 and Regional Election Commissioner as P.W.11. I have deliberately not taken into consideration said testimonies except observing that their statements are available on record but the evidentiary value has not been adjudged lest it prejudices either of the parties. Prima facie therefore, I am of the opinion that since born the parties have to lead evidence on their turn and have got statutory right to produce the same in support of the allegations and in case some evidence cannot be produced by them being in the custody of some department or official it can request the Court or Tribunal for summoning the same through an official of the department similarly since the petitioner has specifically agitated said point therefore is within his right to request the Tribunal to refer the matter to the concerned authorities for submission of report after the verification and comparison of thumb-impressions by NADRA.
10. 8.The crux of the above discussion therefore is that application filed by the petitioner for verification and comparison of thumb-impressions by NADRA on the counterfoils of the ballot-papers is allowed. Petitioner is directed to deposit the expenses of the verification and comparison of thumb-impressions by NADRA Authorities according to prescribed fee along with bond of Rs.1 lac to pay more in case further deposit is necessary for the exercise to be undertaken to culminate in report to be furnished before the Tribunal till 5-6-2014. The petitioner is directed to deposit the expenses within 3 day positively. The DRO/learned District and Sessions Judge Lodhran is directed to despatch in sealed form in the presence of one representative the parties each if they opt to be before him the relevant election material of the counterfoils of the ballot-papers along with list of voters so used and scratched by the polling staff after getting it from the treasury to the said authority within 3 days positively. The learned District and Sessions Judge/DRO may obtain the signatures of the representative of each of the party for despatch of said record.