1. ' DR. ZAFAR AHMED KHAN SHERWANI, ELECTION TRIBUNAL.---This Petition under section 52 of The Representation of People Act 1976, (the Act) is directed to challenge the election of the Mr. Irfanullah Khan Marwat, the respondent No, 19, (the returned candidate) held on 11-5-2013 for the Provincial Assembly Constituency No,PS-114, Karachi. The petitioner who contested the election on the ticket of Mutheda Quami Movement, (MQM) and polled 30305 votes was the runner up whereas the returned candidate who was the nominee of Muslim League (N) polled 37130 votes.
2. ' Following grounds have been taken by the petitioner in his petition to declare the election of the returned candidate as null and void under section 68(b) and (d) of the Act for the commission of corrupt and illegal practices by him and his workers with his connivance or in alternate the same may be declared as whole void under Section 70 of the Act on account of prevalence of such practices extensively during the election materially affecting the result of the election:--
(1) Disqualification of the returned candidate in terms of Articles 62 and 63 of the Constitution having filed false declaration during the present and the previous election posing himself as a graduate from University of Punjab.
(2) Attack by firing on the petitioner on the polling day at about 5:00 pm by the agents of the returned candidate while he was visiting the Polling Stations No, 85 to 90 situated in Govt. Boys Secondary School, Chanesar Village.
(3) Kidnapping and terrorizing the staff of 24 different polling stations of the constituency by the workers of the returned candidate.
(4) Connivance of the police with the workers of the returned candidate in committing illegal and corrupt practices during the polling resulting massrigging at all the polling stations generally but specially at the polling stations situated in Azam Basti, Chanesar Village, Muslim School Sector 1, Green Belt, Benazir Shaheed School.
3. ' The petitioner has given extensive details of the above grounds and filed a number of documents as well as 2 Digital Versatile/Video Disks (DVDs) and, photographs in support of the allegations.
4. ' The returned candidate too in his detailed written statement has denied vehemently all the allegations being after thought claiming the election as fair, free and transparent and prayed dismissal of the petition. The respondent No, 2, Mr. Ishtiaq Ali also filed his written statement supporting the petitioner's case but the remaining respondents chose to remain absent.
5. ' From the pleadings of the parties this tribunal framed the following Issues including the issue No 1 which has been rephrased:--
(1) Whether the respondent No, 19, the retuned candidate was not graduate and if so whether he was not qualified to be elected as member of provincial assembly being lacking in qualification as provided under Article 62(d),(e ) and (f) of the Constitution of Pakistan?
6. ' Whether the respondent No, 19, the returned candidate with the connivance and help of his companions and agents captured different polling stations and polling booths intimidated and threatened directly to the electors to prevent them from going to the polling stations to cast their votes?
7. ' Whether police officers posted in the constituency on Election Day in collusion with the respondent No, 19 committed the act of capturing of different polling stations?
8. ' Whether the respondent No, 19 committed an illegal practice as mentioned in the petition on the polling day in connivance with the police officials?
9. ' Whether there was prevalence of extensive illegal practice at the election? If so, whether, the election as a whole of the returned candidate, the respondent No, 19 is liable to be declared as void?
10. ' What should the order be?
11. ' On the above issues the petitioner has examined himself and his 26 witnesses whereas the Returned candidate has examined himself only. The tribunal also examined official witnesses namely the Director National Database and Registration Authority (NADRA) Mr. Ghazali Zahid and Mr. Qaboos Aziz in support of the report Exhibit 0-2/2 on thumb verification called for by this tribunal on such application with the consent of both the parties.
12. ' During the course of arguments the learned counsel for the petitioner filed an application, CMA- 15/2014,under sections 33 and 46 of the Act for inspection of counterfoils and ballot papers of the polling stations mentioned therein and argued the same relying upon certain reported cases but since tribunal's order dated 12-12-2013 rejecting his similar application for the detailed reasons is sub-judice in a Constitution Petition in the High Court, therefore, his request cannot be entertained.
13. ' Heard both the learned counsel for the parties and perused the record.
14. FINDINGS & REASONS Issue No, 1: ' Not pressed.
15. Issues Nos. 2, 3 and 4.
16. ' These are the inter-related issues, therefore, require to be discussed together.
17. ' On these issues the case of the petitioner is that the returned candidate and his workers with the connivance of the area police intimidated and threatened his voters by firing and throwing bomb and crackers, they physically manhandled and harassed them as well as polling staff specially of 24 polling stations. He has specifically referred the incident of firing on the Petitioner at Chanesar Village during his visit of the Polling Stations No, 85 to 90 and non-registration of criminal case by the police in spite of his efforts.
18. ' To prove the above allegations the petitioner has examined himself and produced a DVD as exhibit P-4/1 in respect of the incident of firing on him out side the building housing the 6 Polling Stations Nos.85 to 90 at Chanesar Village, which was also played during the evidence before the tribunal.
19. This was prepared by a Cameraman Raees Ahmed, Exhibit P-11 who was accompanying him during the visit. He also produced copies of different applications vide Exhibits P-4/3 to P-4/6. In his support he examined some voters of different polling stations of the constituency in order to prove the allegations of corrupt and illegal acts committed by the workers of the returned candidate at the said polling stations which includes:-- Muhammad Sharif, a voter at Polling Station No, 14, Exhibit P-5.
20. Muhammad Yunis, a voter at Polling Station No, 10, Exhibit P-6.
21. Tariq Mehmood, a voter at Polling Station No, 65,Exhibit P-7.
22. Ms. Kulsoom Yousuf, a voter at PS-85, Exhibit P-8.
23. Iqbal Qureshi, a voter at Polling Station No, 65, Exhibit P-9.
24. Muhammad Akhtar, a voter at Polling Station No, 32, Exhibit P-10.
25. Talib Hussain, a voter at Polling Station No, 83, Exhibit P-12.
26. Jamshed Ali, a voter at Polling Station No, 37, Exhibit P-15.
27. Zulfiqar Ali, a voter at Polling Station No, 69, Exhibit P-16.
28. ' These witnesses have deposed in their affidavits in evidence on the adverse situation at their Polling Stations which they witnessed during their visit of these Polling Stations to cast their votes. It is not necessary to go in detail about the testimony of each of them because the same required corroboration through independent witnesses including at least the Presiding Officers of the said polling stations but except. Kulsoom Yousf, Zulfiqar Ali and Muhammed Younis none is available and therefore it is not safe to believe their testimony.
29. ' The testimony of witness Mohammed Younis is also not of any use as the evidence of the Presiding Officers of this Polling Station. Mr. Abdul Salman Siddiqui is not in corroboration of his evidence. The complaint dated 13-5-2013 filed by him in the office of the District Returning Officer, Exhibit 19/2 depicts nothing like keeping the voters on gun point by the ghundas of the returned candidate and rigging the election by them as deposed by Mohammed Younis in his affidavit in evidence. This complaint only depicts that the polling agent of the returned candidate had been harassing the polling staff who had taken their mobile phones from them on account of which they remained out of contact with their families. This witness rather admitted in his cross-examination that the polling remained peaceful on the polling day because the police and rangers remained present. He did not receive any complaint regarding presence of activists of any political party inside the Polling Station from any corner. This complaint, Exhibit P-19/2 was filed on the third day of the election without any plausible reason for the delay therefore, appears to be after thought.
30. However the evidence of Kulsoom Yousuf which has been corroborated by the Presiding Officers of the 2 Polling Station and other tangible evidence only proves commission of the corrupt and illegal practices at the said Polling Stations Nos.85 but no tangible evidence is brought on record to prove that the returned candidate or his agents with his connivance were instrumental in this regard. Her evidence in detail will be discussed while deciding the next issue.
31. ' From the above discussion it is concluded that the petitioner has failed to bring any tangible evidence through the testimony of independent witnesses having been corroborated by other piece of evidence to prove these issues, therefore he has failed to discharge the burden of proof in this regard. Hence these issues are decided in negative.
32. Issue No 5.
33. ' On this issue the case of the petitioner is that at about 5 pm when he was on the visit of Polling Stations Nos. 85 to 90 situated in a common building of Govt. Boys Secondary School, Chanesar village in his bullet proof vehicle and listening the complaints from the voters about their harassm ent suddenly firing was made on him and was attacked by crackers which could not explode. He saved his life by taking shelter in the sector office of MQM at some distance. On account of firing there was mayhem and chaos amongst the voters and the returned candidate and his men hijacked the election and cast bogus votes. His cameraman Raees who was with him during the visit captured this episode. In support of his case he filed his affidavit in evidence and 'reiterated all the allegations mentioned in the petition that need not to be reproduced for the brevity sake. He also produced the DVD captured by the cameramen Raees Ahmed, applications, Exh P-4/3 to Exh. P-4/7, which were given by him to the authorities in respect of the said incident of firing to get such criminal case registered. In his support he examined 2 Presiding Officers namely Jawed Ahsan, of PS 87, Exh. P 27 and Muhammed Akbar of PS 89, Exh. P-23, the lady voter of Ps 85 Mst. Kulsoom Yousuf, Exh.8, (as referred to in the foregoing discussion) his gunman Shakeel Ahmed, Exh, 17, an advocate Mr. Hafeez-uddin, Exh. P-14 and the Cameraman Raees Ahmed, Exh. P-11. As mentioned above with the consent of both the parties the counterfoils of the used ballot papers and copies of used photo voter lists in respect of all the 92 Polling Stations were also sent to NADRA for verification of the purported thumb impressions of the electors affixed thereon through its Automated Finger Print Identification System (AFIS). The report has been produced by the official witnesses from NADRA, through the official witnesses as mentioned earlier.
34. ' The testimony of the petitioner may be discussed first. The petitioner in his affidavit in evidence vide paragraph 6 has deposed that at about 04:15 P.M. When he was visiting the said Polling Stations Nos.85 to 90 situated in Govt. Boys Secondary school Chanesar village. He was complained by the voters that they had been prevented from casting their votes and the returned candidate and his agents were doing bogus voting, who displayed arms in presence of the S.H.O.
35. Mehmoodabad Ashfaq with his other staff members. The election staff as well as the voters of the petitioner were manhandled. He has specifically alleged against one Ashok and his companions coercing the voters forcibly to cast vote in favour of the returned candidate. On his intervention the Presiding Officer of Polling Station 87, Mr. Javed Ahsan came outside the Polling Station with a bag who was attacked by the men of the returned candidate with fists and kicks and snatched the bag from him and ran away. He further deposed in the affidavit that at the same time there was sudden firing on him but he was saved as his driver drove away his vehicle. The scene of firing was captured by his professional photographer Raees Ahmed who had been hired by him to make movie of his visit of the Polling Stations. He also alleged that during this episode an armed man of the returned candidate threw a ball cracker on his vehicle but the cracker didn't explode. His vehicle was bomb and bullet proof therefore he also remained unhurt. He also deposed that he made his effort to lodge the F.I.R. In respect of the incident and sent such application 'to the S.H.O.
36. Through Rao Shareef Advocate as well as Mr. Hafeez Advocate to Mehmoodabad Police Station on 12-5-2013. Initially police refused to receive the same but finally on 15-5-2013 received it through Mr. Shahid Saeed Bhatti Advocate, however, no F.I.R. Was registered. Copies of such application addressed to the S.H.O. Mehmoodabad in respect of the incident is at Exhibit P-4/7 and the application addressed to District Returning Officer is at Exhibit P-4/3. A DVD prepared by the Cameraman "Mr. Raees Ahmed" was also produced as exhibit P-4/1. The Presiding Officer of one of the said Polling Stations, i.e, PS No, 87 "Mr. Javed Ahsan" in his evidence has corroborated the petitioner to the extent of firing outside the Polling Station and his manhandling at the Polling Station by some unrecognized persons. He has further deposed that on account of the situation at his Polling Station he left the same and reached at the office of the Returning Officer in a police mobile but he was sent back by him at about 10:30 p.m. And joined the counting process of the votes at the olling Station which was being carried out by his staff and finally he prepared the result and delivered the same to the Returning Officer along with an application which is at Exhibit P-27.
37. This application depicts the allegations with regard to maltreatment meted out with him by some unrecognized persons who had entered in his room during the poll and manhandled him and confined in a room who also used the election material. The lady staff of the polling staff members were also misbehaved and attendance sheet was torn by them and took away brass seal of the Polling Station including a blue bag containing so le election material. The miscreants also tried to kidnap him but in the meanwhile firing started and he saved his life by getting into a police mobile and reached at the office of the Returning Officer. This application also depicts that he deposited the election material in the office after the election without sealing the same. In his cross- examination he further deposed that at about 10:30 am a crowd had entered in the Polling Station which made aerial firing outside the Polling Station but polling remained continued without any interruption. He also admitted that voters were standing in long queue waiting to cast their votes and all the voters cast their votes peacefully and returned home and no voter made complaint to him about this incident. Similarly, his staff didn't give in writing anything complaining about the polling. He also admitted that he did not make any complaint to the police at the Polling Station with regard to the incident, which has been narrated in the application exhibit P-27. He has admitted that a case on his application exhibit P-27 bearing crime No,139/2013 was registered and he visited the Police Station on 16-5-2013 for his statement. He narrated that when he reached back at his Polling Station at about 10:30 p.m. No member of his poling staff was present and he found 4 ballot boxes which were full of ballot papers which he counted in presence of Rangers and private persons from the general public. He also admitted that he could not give details of the ballot paper books that were snatched from him. He categorically informed during the cross that he remained confined in the room about 3 hours.
38. ' Next is the evidence of witness Ms. Kulsoom Yousuf, the voter at PS 85, Exhibit P-8. She has mentioned in her affidavit in evidence that 04:00 pm when she went to cast her vote she was shocked to see that the voters were being harassed and threatened by the armed men of the returned candidate. At the same time the incident of firing on Mr. Rauf Siddiqui by the ghundas of the returned candidate had taken place but he was saved. Within no time all the voters ran away from the Polling Station and did not come back whereas the ghundas cast the votes in favour of the returned candidate to which she was witness.
39. ' Mr. Raees Ahmed who had prepared the DVD Exhibit P-4/1 produced by the petitioner was examined vide Exhibit. P-11 who has also fully corroborated the petitioner on this point. As mentioned earlier the DVD was played before the tribunal and the witness was cross-examined by the learned counsel for the returned candidate. No doubt during the incident of firing neither any person was seen as injured in the DVD due to the firing nor any culprit who was firing but the vehicle of the Petitioner was visible in the scene having some bullet marks. There were cries at the scene of the incident which could be heard in the DVD.
40. ' Next is the evidence of another Presiding Officer "Muhammad Akbar", Exhibit P-23, of Polling Station No, 89, situated in the same building. He has confirmed that he had given an application to the District Returning Officer regarding the incident which took place at his Polling Station i.e, Exhibit P- 23/1 and verified the contents thereof to be true and correct. In this application, Exhibit P-23/1 he has fully corroborated the evidence of the petitioner as well as of the other Presiding Officer Mr. Javed Ahsan of PS-87 on the point of firing outside the building of these 6 Polling Stations. He has specifically mentioned therein that on that account and the situation at the Polling Station the requirements of the law in respect of the polling could not be fulfilled and the votes were polled without scrutiny which he had reported to the Returning Officer and the Returning Officer undertook that he would send Rangers but they came after much delay. In his cross-examination he has admitted that he did not give any application on the polling day to the Returning Officer but on 14- 5-2013 to the District Returning Officer i.e, Exhibit P-23/1, however he had informed about this to the Returning Officer orally but neither Police nor Rangers visited the Polling Station.
41. ' The petitioner has also examined Mr. Hafeez Ud Din, Advocate, Exhibit P-14 in support of his evidence that he tried to get the F.I.R. Registered in respect of `the incident of firing through him who had delivered such complaint at Police Station Mehmoodabad on 13-5-2013. He has also examined the police constable Shakeel Ahmed, Exhibit P-17, his gunman posted with him and was accompanying him during his visit of these Polling Stations and witnessed the incident. Both of them have fully corroborated the evidence of the petitioner on all aspects relevant to them.
42. ' From the above iota of evidence produced by the petitioner which is fully corroborated on each point of the incident of firing outside the school building namely Govt. Boys Section School, (Combined), Chanasar Village at about 5:00 p.m. During the polling. On account of this though none was injured but a sense of insecurity amongst the voters as evident from the scene of the incident as captured in the DVD by the cameraman was natural. The returned candidate has denied the incident and alleged that the Presiding Officer Javed Ahsan was a worker of the political party of the petitioner i.e, MQM who was with S.P. Chaudhery Muhammad Aslam and in league with him who prepared a bogus complaint and then filed the same on 12-5-2013 on the basis of which a false F.I.R. Was also registered. Similar facts were mentioned by him in his affidavit in evidence, Exhibit R-1. However he has failed to prove the alleged connivance of this Presiding Officer and his political affiliation with the MQM through any tangible evidence.
43. ' The report of NADRA on thumb verification, Exhibit: 0-2/2 in respect of the counterfoils of the used ballot papers at all the 92 Polling Stations provides inter alia that out of total 92,731 counterfoils only 10007 were such counterfoils on which the fingerprints could successfully be authenticated whereas 3270 were the counterfoils on which the fingerprints failed authentication. However 63469 counterfoils were such on which the fingerprints were of bad quality and therefore could not be processed. NADRA has also reported in the same report that the high number of unprocessed counterfoils proved that the magnetized ink proposed to the Election Commission of Pakistan by NADRA during the poll having specific properties as mentioned in the report was not used. Out of the details in respect of 92 Polling Stations the data in respect of said 6 Polling Stations was examined by the tribunal to assess the credibility and genuineness of the process of the poll at these Polling Station keeping in view the evidence of the above witnesses. Following figures as shown in the below table A emerged S. No.Polling Station No.Counter foils Examined by NADRAAuthenticated by NADRA 1 85 1294 76 2 86 1108 63 3 87 922 8 4 88 831 89 5 89 1123 24 6 90 897 198 Total 6175 458 Failed AuthenticationCounter foils Having Bad Quality of Thumb Impression 5 801 29 1004 4 679 8 577 15 750 13 813 74 4624 (Table A showing the data in respect of 6 Polling Stations as per NADRA's report Exhibit: 0-2/2)
44. The remaining counterfoils in respect of these Polling Stations were of doubtful character for having invalid NIC No, or No NIC No or NIC No, of the voters who were having NIC of the area which was not in the constituency.
45. ' The above data shows that out of 6175 counterfoils of these 6 Polling Stations only 458 were authenticated as of the genuine voters of the constituency.
46. ' The data of the same 6 Polling Stations available in Form-XVI available on record prepared by the Returning Officer on the basis of the Forms-XIV is shown in the following table S. No.Polling Station No.Total Registered Votes As per Notified Polling SchemeVotes Obtained by Petitioner Abdul Rauf Siddiqui 1 85 2398 22 2 86 2386 45 3 87 2187 13 4 88 2124 20 5 89 2262 38 6 90 2047 23 Total 13404 161 Votes Obtained by Respondent No.19 Irfan ullah MarwatTotal Votes Obtained By Both the PartiesTotal Votes Polled 713 735 1239 456 501 1099 1037 1050 1424 452 472 830 1002 1040 1348 582 605 927 4242 4403 6867 (Table B showing the data of the 6 Polling Stations as provided in Form-XVI prepared by the Retuning Officer P.S. 114.)
47. ' These 6867 votes polled at these 6 Polling Stations where the extensive corrupt and illegal practices were proving and were polled by all the contesting candidates can not be said to have been polled in free and congenial atmosphere necessary for the free and fair election allowing every elector to cast his or her vote as per his choice to one of the contesting candidates.
48. ' Now the question is that whether the corrupt and illegal practice at these 6 Polling Stations where 6867 votes were polled have materially affected the result of the election within the ambit of section 70(b) of the Act.
49. ' The learned counsel for the petitioner has contended that the term "materially affecting" the result of the election used in section 70 of the Act by legislature means that the tribunal is not called upon to carry out any investigation as to whether the successful candidate was guilty of the illegality and received illegal votes or was it the other way around. He contented that all that is required is to show that due to reception of illegal votes uncertainty or unpredictability had been imported into the result of the election which amounts to materially affecting the election. In support of his arguments he relied upon the case of Ananda Bachar v. A.R. Khan, PLD 1967 Dacca
362. The relevant observations at Page No, 370 and 371 are reproduced hereunder:--
(i) p.370 "In Abdul Quddus Khandker's case (PLD 1966 Dac 604] this court has observed thus:-- 'When a Tribunal is driven to the position where it cannot be decided one way or the other as to what could have been the possible result of the election it must be held that the impugned votes had materially affected the election inasmuch as a cull de sac has been reached with regard to the result.'
50. ' We are in agreement with the aforesaid observations for the simple reason that the facts as established by positive evidence lead to a blind ally as to the result of the election. When an uncertainty is imported into the result of an election and the certainty is imported by the illegality that has been proved, namely, by reception of illegal votes, can it be said that the result of the election has not been 'affected' in the sense that it has been rendered uncertainity? It has been observed in the judgment quoted above namely Abdul Quddus Khandker's case: ' When the Tribunal is confronted with a situation which makes it impossible to decide the result of the election, there is no manner of doubt that such a situation materially affects the election. The indecisive nature of the problem has a material and vital effect upon the result of the election in the light of the finding arrived at by the Tribunal."
(ii) pp.370 and 371:- "if the rule had been that a Tribunal shall not declare an election to be void unless it finds that the result of the election has been actually affected, then our answer would have been different from the one we have given above because in such a case it could not be said that the result of the election has been, in fact, affected.
51. ' Then again, if the requirement was to find, affirmatively, whether the successful candidate would have been 'adversely' affected in consequence of the finding arrived at by the Tribunal, the answer would also have been different. If the result of the finding is to make the result of the election unpredictable, the very fact of such uncertainty must be held to have materially 'affected' the election. This appears to be the logic of the situation upon principles that arise out of the requirement of the rule which applies to the parent case.
(iii) p.371:- "The relevant rule does not require, in the case with which we are concerned to investigate as to whether the successful candidate was guilty of the illegality that has been perpetrated, namely, reception of illegal votes. It may be that in the case we have discussed above, it is not proved that the contestant to the election was responsible for the reception of the illegal votes (underlined for emphasis). Nonetheless, illegal votes have been received and the result of such reception is that the election has been materially affected in the sense we have indicated above. In the case discussed above, it is the duty of the Court under the rule quoted above, to pronounce the election to be void when the inevitable result of what has been proved is to import, as a positive fact, an uncertainty into the result of the election, it must be said that the election has been materially 'affected'. "
52. 'He has also relied upon the case of Abdul Hafeez v. Muhammad Tahir Khan Looni, 1999 SCM R 284 in support of his contention that the report of NADRA 0-2/2' which reflects that out of 92731 counterfoils of the used ballot papers in respect of 92 Polling Stations only 29262 thumb impression could be processed out of which only 10,007 thumb impressions were successfully authenticated meaning thereby 19255 counterfoils were found tainted which fact has remained unrebutted which is a prima facie proof that this has materially affected the result of the election and keeping in view the lead of the returned candidate. i.e, only 6,825 votes and therefore the election is fit to be declared as whole void. On the other hand the learned counsel for the returned candidate submitted that the report of NADRA is of no consequence as admittedly the magnetized ink that was required to be used as proposed by NADRA to ECP was not used and therefore the report has no legal value. He further contended that he lead of the petitioner by more than 6000 votes is such that even if few votes are declared invalid the election as a whole cannot be declared as a whole void.
53. ' I have considered the above arguments in the light of record and the case-law as relied upon by the learned counsel for the petitioner and reached to the conclusion that since the petitioner has proved the prevalence of extensive corrupt and illegal practices at the election at the 6 Polling Stations i.e, S.No, 85 to 90 in the constituency where 6867 votes were polled and the report of NADRA, Exh. 0-2/2 shows that 3270 counterfoils of the used ballot papers of all the 92 Polling Stations including 74 of these 6 Polling Stations were such on which thumb impressions failed authentication and since the returned candidate's margin of lead is only 6825 votes is less much than the total of these two (votes polled over these 6 Polling Stations and the invalid votes in respect of 3270 counterfoils that failed authentication), therefore as per ratio laid down in Annda Bachar, Supra, the result of the election has been materially affected within the ambit of section 70(b) of the Act, consequently, the election in the constituency is required to be declared as a whole to be void. The issue is decided accordingly.
54. Issue No 6 'The upshot of the above discussion and the findings is that the Petition is allowed as prayed with costs and the election in PS 114 is declared as a whole to be void.
55. ' This may be communicated to the Election Commission of Pakistan forthwith to issue such notification as provided in section 72 of the Act.
56. Election