1. DR. ZAFAR AHMED KHAN SHERWANI (ELECTION TRIBUNAL).--- This election petition under section 52 of the Representation of the People Act, 1976 (the Act) is brought by one of the unreturned candidates (the Petitioner) challenging the election of Mr. Manzoor Hussain Wassan, respondent No.1 (the returned candidate) from PS-32, Khairpur-IV during the general election of the Sindh Provincial Assembly held on 11-5-2013.
2. The petitioner had contested the election on the ticket of Pakistan Muslim League (F) whereas the returned candidate was the ticket holder of Pakistan People Party Parliamentarian (PPPP) who won the election by the margin of 3240 votes from the petitioner. The petitioner has challenged the election on different grounds including the commission of corrupt and illegal practices and illegal acts of rigging by capturing the polling stations and other illegal practices before and during the poll by the returned candidate as well as his eligibility to contest the election of the Assembly in terms of eligibility criteria provided in Article 62 of the Constitution of Pakistan. He has prayed that either the election of the returned candidate may be declared as void and declare him (the petitioner) as the returned candidate being runner up in the election or in alternative the election as a whole may be declared to be void under section 70 of the Act because the election machinery appointed by the Election Commission of Pakistan (ECP) did not fulfil its constitutional obligations and violated the provisions of the Act as well as rules framed thereunder on account of which the election has been materially affected.
3. The returned candidate has denied all the allegations in his writtenstatementandprayedforthedismissalofthepetitionwith costs.
4. The other respondents did not contest the petition, therefore the same proceeded ex parte against them.
5. Out of the pleadings following issues were framed:--- (1)Whether the respondent No.1, the Returned Candidate, had filed false or incorrect declaration regarding payment of loan, taxes, government dues or utility charges or has submitted fair or incorrect statement of assets and liabilities of his own, his spouse or his deponents under section 12 of the Representation of the People Act, 1976 therefore, his election is liable to be declared as void?
6. (2)Whether the Election Petition is not maintainable according to law?
7. (3)Whether the respondent No.1, the Returned Candidate or his agents have wilfully committed illegal practice at different pollingstationsasmentionedinparagraphNo.9ofthe petition?
8. (4)Whether the polling staff of different polling stations were changed by the Returning Officer at the instance of the respondent No.1, the Returned Candidate illegally, if so its effects?
9. (5)Whether the election of the respondent No.1, the Returned Candidate is void and the petitioner is entitled to be declared to have been duly elected?
10. (6)Whether election of the respondent No.1, the Returned Candidate is liable to be declared as a whole to be void?
11. (7)What should the order be?
12. On the above issues the petitioner and the returned candidate examined themselves by way of affidavits in evidence, however, the petitioner in his support also examined 4 witnesses namely Allah Ditta Photo, Payro, and Ali Sher.
13. With the consent of both learned counsel for the parties, this Tribunal called for the verification of thumb-impressions on the counterfoils of used ballot papers and used pictorial electoral rolls in respect of 81 polling stations i.e. 61 polling stations highlighted by the petitioner (the first category of polling stations) and 20 polling stations highlighted by the returned- candidate (the second category of the polling stations) from National Database and Registration Authority (NADRA) through its Automatic Finger Prints Identification System (AFIS) after calling for the same from the Returning Officer Mr. Navid Hussain Kolachi,. The report Exh.0-1 was received from NADRA on 25-2- 2014 and produced by the official witness namely Mr. Ahmed Waqas Langha, Deputy Director NADRA. He also produced different documents including different letters of this Tribunal on the subject. One Mr. Muhammad Saeed, Deputy Director (Estt.), ECP, Islamabad was also examined by this Tribunal on its own accord, vide Exh.0-2 in the circumstance that in the report of NADRA it was mentioned that 22525 thumb-impressions on these counter foils could not be authenticated on account of their bad quality as the magnetized ink approved by the ECP on the proposal of NADRA was not used for obtaining thumb-impressions of the electors on the counterfoils of ballot papers.
14. He produced several documents from Exhs.0-2/1 to 0-2/13 on the process of approval of sample of magnetized ink proposed by NADRA and its purchase from Pakistan Centre for Scientific and Industrial Research (PCSIR).
15. Heard both the learned counsel for the parties and perused the record.
16. ISSUES NOS.1 TO 5, At the outset of his arguments, the learned counsel for the petitioner frankly submitted that in view of the peculiar circumstances of the case he did not want to press the issues Nos.1, 3, 4 and 5 on which the learned counsel for the returned candidate did not press the Issue No.2, therefore, these issues are decided accordingly.
17. ISSUE NO. 6.
18. This was the only issue that was vehemently pressed by the learned counsel for the petitioner. He forcefully contended in his oral as well as in written synopsis that it was one of the utmost constitutional obligations of the ECP, as provided in Article 218(3), to hold and conduct free, fair and transparent election in the country. He contended that as held by the honourable Supreme Court in Miss Asma Jellani's Case PLD 1972, Supreme Court, 139 and also by the Lahore High Court in Zia-ur- Rehman v. The State PLD 1972 Lahore 382 that the preamble of the Constitution of Pakistan encapsulate the grundnorm of Pakistan that Pakistan would be a democratic State based on Islamic principles of social justice and its Article 218 is in consonance with thatgrundnorm, the unanimous will of the people of Pakistan. He has also relied upon the case of Imran Khan v. Election Commission of Pakistan reported in PLD 2013 Supreme Court 120 in which the importance of duties and obligations of the ECP have been highlighted holding that there can be no escape from the fact that a free, fair, just and transparent elections is the very heart of our democratic system as envisaged in the Constitution. Such election must not only be held fair and just and in honest manner but also appear to be so in order to inspire confidence of electorate. He has also referred the provisions of sections 103 and 104 of the Act and contended that these provisions are a law unto themselves and carry with them a force equal to if not stronger than any rule or provisions under the Act and if, therefore, there is a violation of any such direction, instruction or exercise of power, section 70 of the Act could be attracted to. He referred the judgment of the Workers Party reported as PLD 2013 Supreme Court 410, and argued that since it has been held therein that the direction issued under sections 103 and 104 of the Act by the ECP while discharging its obligations and duties under Article 218(3) do possess statutory force and are mandatory in nature notwithstanding in pursuance whereof the law(s) Rule(s) have not been amended, therefore, if the ECP had not made any amendment in the provisions of the Act or the Rules framed thereunder to use magnetized ink during the election to obtain the thumb-impression of the elector on the counterfoil before issuing him a ballot-paper to cast his vote and if any violation is made of that instruction then the entire election is to be declared as void under section 70 (a) of the Act as the ECP which had amended the Nomination Form to be filed by the candidates at the time of the election without any amendment made in Rule 3 of the Representation of the People (Conduct of Elections) Rules, 1973but the Supreme Court has held that the ECP was empowered to issue statutory directions under the provisions of sections 103 and 104 of the Act and it will become mandatory for candidate to fulfil all the details mentioned therein. He has emphasized on the provisions of subsections 33 (2) and 33(3) of the Act and contended that these provide a comprehensive procedure for the Presiding Officers to issue ballot paper to the elector and non- compliance of any such provisions would declare the process as a whole void. He then referred the report of NADRA and contended that out of 61307 counterfoils of used ballot papers at 81 polling stations only 28296 thumb-impressions on these counterfoils i.e. 46.15% of the total securitized votes could be authenticated/verified whereas, the unauthenticated/unverified thumb- impressions were 33011 i.e. 53% of the total counterfoils selected for scrutiny and this was on account of the fact that the magnetized ink was not used during the poll by the election staff hence it is manifestly clear that the failure to use magnetized ink has materially affected the result of the election in terms of section 70(a) of the Act and the election ought to be declared as a whole void. He has put his reliance on Jam Mashooq Ali v. Shah Nawaz Junejo, 1996 SCMR 426, Dr. Sheela Bcharles v. Qaisar Ifraeem Soraya, 1996 SCMR 1455 and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284.
19. Conversely, the learned counsel for the returned candidate contended that the petition is liable to be dismissed because firstly, the petitioner has withdrawn all the allegations with regard to corrupt and illegal practice as mentioned in his petition and secondly, he has failed to prove that any provision of the Act or the Rules framed thereunder have been violated, materially affecting the result of the election which is a sine qua non for such relief. Referring the report of NADRA in which it has been reported that out of 61307 counterfoils bearing thumb-impressions 28295 were successfully authenticated and only 248 thumb-impressions failed authentication. Regarding 22525 counterfoils which had bad quality of thumb-impressions which could not be authenticated through AFIS of NADRA because of bad quality of ink used for obtaining thumb-impressions by the election staff he contended that for this the election cannot be invalidated. Similarly, he argued, that 10239 counterfoils were found by NADRA that didn't qualify for fingerprint matching for different reasons and contended that this was out of the purview of NADRA's mandate as given by this Tribunal hence cannot be considered, moreso the petitioner did not plead any such allegation in his petition that the votes were allowed to cast without obtaining thumb-impressions on the counterfoils or on invalid NIC or one NIC number was mentioned in several counterfoils, therefore such evidence was beyond the pleadings. He has relied upon the cases Province of Punjab v. Malik Ibrahim & Sons 2000 SCMR 1172 and Saee through his legal heirs v. Mirza and 7 others, 2000 YLR 1130.
20. The above contentions of the learned counsel for the parties are to be appreciated in the backdrop of the report of NADRA, Exh.0-1, in respect of thumb-impressions-on the counterfoils of the ballot- papers used at both the categories of polling stations. Both the parties have not disputed on the findings of NADRA that out of 61307 counterfoils bearing thumb-impressions only 28295 could be authenticated/verified through AFIS as of the genuine voters whose NIC numbers were mentioned thereon, and only 248 failed such authentication, whereas 22525 thumb-impressions failed authentication on account of their bad quality and 10239 were not processed on account of different reasons (invalid NIC numbers, 8879, Exh.0-1/4, having no thumb-impressions, 292, Exh.0- 1/5,and use of one NIC number on more than one counterfoil, 1068, Exh.0-1/6). The arguments of the learned counsel for the petitioner are that since only 46.1% of the total valid votes could be authenticate/verified by NADRA on account of use of unapproved quality of ink (non-magnetized) by the election machinery in the process of taking thumb-impressions of the electors before issuing ballot-paper to them at the time of poll as required under section 33 of the Act, therefore the result of the election has been materially affected in terms ofsection 70(a) of the Act-and required to be declared as a whole void. I am afraid, I am unable to convince myself with these arguments because although undisputedly as apparent from the evidence of the witness from the ECP, Mr. Saeed that ECP had approved the use of magnetized ink during the poll as per sample approved by NADRA and the same quality of ink was purchased from PCSIR and supplied to the election officials at the polling stations but NADRA's report is that the ink used during the process was either not magnetized or deficit of such properties as approved by the ECP on its proposal resulting the huge number of thumb-impressions of bad quality which could not be authenticated through it AFIS. As per his evidence the ECP has not yet made any probe in this regard after coming to know about the report of NADRA on this question. Now the question is even if it is admitted, for the sake of arguments, that the said quality of ink as approved by the ECP was not used then whether this Tribunal declaring the election as a whole void can invalidate the entire process. My answer will be in negative in view of the ratio laid down by the Hon'ble Supreme Court in Abdul Hafeez Khan case, supra, in which it has been held that:--- "Whereas election laws concerning voters are mandatory, such so far as the officers conducting the elections are concerned are usually directory. Two things, however, have to be noted now.
21. 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 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. Secondly, while, upon the invocation of the for going 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.
22. Relevant to 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."
23. Applying the above rule as laid down by the Hon'ble Supreme Court, if the officials of the FCP have not used the approved ink in compliance of any of its direction during the process as required under the provisions of section 33 of the Act there is no violation of any mandatory provisions of the law on the basis of that it cannot be held that the result of the election has been materially affected within the parameters of section 70(a) of the Act as substantial compliance of these provisions of section 33 of the Act has been made as admittedly the counterfoils having thumb- impressions which could not be authenticated were bearing tie NICs numbers of the genuine voters and no evidence was brought to the effect that they had no electoral numbers of the electors on the electoral rolls or the official marks and signatures of the Presiding Officers and until and unless there is any tangible evidence to the effect that these thumb-impressions were not of these voters no finding adverse to their validity can be given specially keeping in view the provisions of Article 129 Illustration (e)of the Qanun-e-Shahadat Order, 1984.
24. Now come to 10239 counterfoils in the entire constituency which could not be processed by NADRA.
25. In my view when the entire polling process was peaceful and was in accordance with law in presence of the election agents of all the contesting candidates then there should have been no occasion for the election staff to allow these voters to cast their votes without obtaining thumb- impressions or intentionally mention in invalid NIC numbers or one NIC number on more than one counterfoil except election human error or lack of training or experience on the part of the officials.
26. Had there been bogus voting at these polling stations there would have been such complaints and the allegations would have been pressed before the Tribunal but since the same have been nullified by the petitioner himself by withdrawing these allegations it cannot be held that these were invalid votes specially keeping in view hat the petitionerhas not sought audit of the ballot papers used at these polling station under section 46 of the Act which means that there is no dispute with regard to the legal validity of the votes obtained by the returned candidate. These counterfoils only reflect the compliance of the requirements of the provisions of section 33 of the Act, which are relating to the officials conducting the election hence directory in nature, and the substantial compliance thereof prove that the election has not been materially affected within the parameters of section 70(a) of the Act. The case of Dr. Sheela B. Charles, supra is altogether on different facts and the law whereas in the case of Jam Mashooq Ali, supra, the election as a whole was declared void because the voters of the constituency in abundant number were disfranchised on account of illegal cancellation of their NICs by the relevant authority materially affecting the election but in this case no such question is in issue, hence this case is also not relevant.
27. In view of the above discussion it is clear that the petitioner has failed to satisfy this Tribunal that the result of the election has, been materially affected by reason of the failure of any person to comply with the provisions of the Act or the rules as provided in section 70(a) of the Act. The issue is, therefore, decided accordingly.
28. ISSUE NO.7.
29. Due to the findings on Issues Nos.1 to 6, the petition entails its dismissal under section 67 of the Act with costs. Order accordingly.