Brief facts giving rise to Election Petition No, 126/2013 may be given first. Ch. Ghulam Rasool, Additional District & Sessions Judge, Pindi Bhattian, District Hafizabad was appointed as Returning Officer to conduct General Elections-2013 from Constituency No, NA-103, Hafizabad-II and Constituency No, PP-107, Hafizabad-III. The Returning Officer established 28 combined polling stations for the elections of National Assembly and Provincial Assembly, Punjab from the aforesaid two constituencies. Mian Shahid Hussain and Liaquat Abbas Bhatti besides others contested election for the position of Member, National Assembly from Constituency No, NA-103, Hafizabad-II, whereas, Nighat Intisar, (petitioner) Syed Shoaib Shah Nawaz (returned candidate) and 17 others were the contesting candidates from Constituency No, PP-107, Hafizabad-III. On close of the poll, the Returning Officer declared Liaquat Abbas Bhatti and Syed Shoaib Shah Nawaz as successful from NA-103 and PP-107, Hafizabad respectively. Mian Shahid Hussain, runner up, NA-103 made an application before the Ejection Commission of Pakistan for recounting of votes mainly on the ground that the result of the election favourable to Liaquat Abbas Bhatti had been manipulated.
The Election Commission of Pakistan heard both sides, examined the inspection report and declared the entire election in NA-103, Hafizabad-II to be void. Consequently, re-election from NA- 103 was ordered with an observation:-- The Commission is convinced that it is a fit case where its powers under Section 103-AA should 'lie exercised. The disquieting enormous illegalities committed by gross violation of the provision of the .Act and the rules, which through a summary inquiry, as pointed out earlier, have been discovered without any difficulty, no alternative is left for the Commission but to declare the entire election in NA-103 Hafizabad-II to be void.
The Provincial Election Commissioner through a senior Officer shall get a case registered under Section 89(1) of the Act as well as the enabling provisions of Pakistan Penal Code against District Election Commissioner, Hafizabad and Presiding officers, who failed to seal the bags containing polled votes in NA-103 Hafizabad.
Nighat Intisar, petitioner herein also made a complaint, Ex.P-11 before the Election Commission of Pakistan for recount of polled votes on the basis of serious allegations in line with that of already agitated before the Election Commission of Pakistan qua the election. of NA-103, Hafizabad.. The Election Commission of Pakistan disposed of- the complaint, Ex. P-11 vide order dated 24.05.2013 (Ex.P-12) with an observation that the final result had been notified in the official gazette and the petitioner should seek recourse from the Election Tribunal, if so desired. Hence, the election petition in hand against the election of Syed Shoaib Shah Nawaz, returned candidate on the following grounds:-- I. That PP-107, Hafizabad-III was part of NA-103, Hafizabad and a complaint u/S. 103-AA of the Act, 1976 by Mian Shahid Hussain, runner up from NA-103; Hafizabad before the Election Commission of Pakistan was accepted and re-election was ordered on account of gross illegalities committed in the election process; that the Presiding Officers of combined polling stations for NA-103 and PP-107, Hafizabad were found at fault by the Election Commission of Pakistan vide order dated 10-06-2013; (Ex. P-13) and that for the reasons, which weighed with the Election Commission of Pakistan while declaring the election from NA-103 to be void were also available as grounds of attack against the election of the returned candidate from FP-107.
II. That votes had been cast through impersonation at different polling stations of Constituency No, PP-107; III. That the Presiding Officers and the Returning Officer manipulated results of the election in favour of the returned candidate; IV. That on 12-05-2013 in the morning the petitioner was declared as successful by 9433 votes, but on 13.05.2013 the Returning Officer prepared fictitious results of the count according to which the petitioner and the returned candidate secured 48674 and 52269 votes respectively; V. That at 16 polling stations of the constituency given in Para-7 of the election petition the polling process was stopped at 05.00 PM despite the fact that the Election Commission of Pakistan extended the polling time till 06.00 PM and in this way a large number of voters of the petitioner were deprived of their right of vote; VI. That at 35/40 polling stations, the Presiding Officers did not provide statement of the count to the polling agents of the petitioner; VII. That validly polled votes to the petitioner were excluded from the count.
2. On contest being put, Syed Shoaib Shah Nawaz, returned candidate denied and dismissed all the allegations set up in the election petition. He also raised a few preliminary objections.
3. In the light of counter claims of the petitioner and the returned candidate, they were put on trial on the following issues-
1. Whether the election petition is liable to dismissal on account of defective verification/non verification of the election petition and annexures for the reasons mentioned in preliminary Objections No, 1, 2 and 3 of the written statement? OPR-1
2. Whether the election in dispute is liable to be declared as void and the petitioner is entitled to be declared as successful from PP-107 Hafizabad--III for the reasons stated in the election petition?
OPP
3. Relief
4. Muhammad Auoon Jahangir, son and attorney of Nighat Intisar, petitioner entered the witness box as PW-7 claiming to be her election agent. He furnished details of the illegal and corrupt practices set up in the election petition. The petitioner also got examined PW-1 to PW-6, who claimed to have performed the duty of her polling agents on the polling day.
5. On the other hand, Syed Shoaib Shah Nawaz, returned candidate-(RW-1) owned his affidavit, Ex.
RW-1/A to the effect that the election in question had been conducted in accordance with law in a transparent manner and that no illegality what so ever had been committed in the election process. The returned candidate also narrated some facts beyond his affidavit.
6. The petitioner made an application u/S. 46 of the .Act, 1976 for inspection of election record mainly on the ground that credibility of the election from PP-107, Hafizabad stood tarnished on recount of votes from NA-103, Hafizabad under the order (Ex.P13) of the Election Commission of Pakistan whereby corrupt practices/malpractices/illegal practices committed by all concerned had been exposed. The returned candidate did not oppose petitioner's request for inspection of election record. With the consent of the petitioner and the returned candidate, the request for inspection of election record in terms of Section 46 of the Act, 1976 was allowed. Malik Ghulam Hussain Awan, District & Sessions Judge (R) was appointed as Commission vide Order No, 14 dated 10-12-2014 for inspection of election record at the risk and cost of the petitioner. The Commission inspected the election record of PP-107, Hafizabad in presence of the parties and submitted inspection report. The Commission (TW-1) certified correctness of the inspection report, Ex.TW-1/A.
The returned candidate did not cross-examine the Commission /TW-1.
7. There is no need to read and examine the evidence produced by the parties because both sides accepted the inspection report, (Ex.TW-1/A) and proposed that the election petition maybe decided in the light of said report. I have already observed that the Commission was appointed for inspection of election record as per request of the petitioner at his risk and cost. After submission of inspection report, the returned candidate also accepted the report as correct while making his statement as RW-1. The relevant portion of his statement is reproduced below in verbatim:-- "I accept the report of the Commission and I have no objection if this election petition is decided in the light of the said report".
8. At the time of arguments learned counsel for both the sides did not utter a single word regarding Issue No, 1 as they both chose to have the case decided in the light of inspection report, Ex.TW-1/A. Hence, the Issue No, 1 has become redundant.
9. At trial, learned counsel for the returned candidate made an application for summoning the Returning Officer, Assistant Returning Officer, Presiding Officers and District Treasury Officer as Tribunal witnesses. After inspection of the election record in terms of Section 46 of the Act, 1976 there is no need to summon and examine the aforesaid officials as Tribunal witnesses because the material brought on record is sufficient to arrive at the truth. The returned candidate also made an application with an allegation, that Muhammad Auoon Jahangir; son of the petitioner wrongly claimed to be the election agent of his mother. To my mind, the assertion has lost its importance.
Leaving aside as to whether or not he was election agent of the petitioner, the fact remains that he represented the petitioner at trial of this election dispute as her special attorney. Furthermore, both sides agreed to have the fate of election petition decided on the basis of inspection report Ex.TW1/A. I, therefore, dismiss both the applications.
10.Now, I propose to examine/scrutinize/analyze the inspection report (Ex.TW-1/A) to arrive at the truth.
11.To start with, I judge by comparing the used counterfoils found from the election bags on physical inspection by the Commission (TW-1) with polled ballot papers given in consolidated statement of results of the count (Ex. P-10) drawn up by the Returning Officer. My comparison statement in tabular form is as under:-- {{TABLE}} Sr.# No, of Polling StationsNumber of used counterfoils foundNumber of Total polled votesNumber of Ballot papers given in the from the election bags on physical examination by the commission vide inspection report, Ex. TW-1/Amentioned in consolidated statement of the result of count (Ex.
P-10) Prepared by the Returning Officerconsolidated statement of the count (Ex. P-10)
Which do not Correspond with the used counterfoils
1. 01 743 785 42
2. 03 464 465 01
3. 04 198 275 77
4. 05 1097 1106 09
5. 07 803 872 69
6. 08 522 527 05
7. 11 454 455 01
8. 12 388 481 93
9. 16 715 804 89
10. 19 Zero 641 641
11. 23 920 991 71
12. 25 Zero 803 803
13. 30 700 752 52
14. 32 15 500 458
15. 33 500 501 01
16. 37 691 701 10
17. 39 426 548 122
18. 40 284 287 03
19. 41 565 569 04
20. 42 1006 1023 1017
21. 43 466 675 209
22. 44 0 476 476
23. 46 958 964 06
24. 48 0 964 964
25. 50 1057 1080 1023
26. 51 709 710 01
27. 52 0 613 613
28. 53 564 452 08
29. 55 614 632 18
30. 56 340 381 41
31. 57 0 928 928
32. 58 694 717 23
33. 59 465 479 14
34. 60 487 628 141
35. 62 0 729 729
36. 63 736 768 32
37. 64 748 749 01
38. 65 1154 1478 321
39. 66 657 694 37
40. 68 428 833 405
41. 69 180 597 417
42. 70 409 564 155
43. 71 Zero 774 774
44. 72 Zero 607 607
45. 73 454 458 04
46. 74 678 680 02
47. 76 496 569 73
48. 78 1038 1154 116
49. 79 561 580 19
50. 80 900 1033 133
51. 81 549 637 88
52. 82 474 478 04
53. 83 671 815 198
54. 84 673 699 26
55. 85 321 473 152
56. 86 651 699 48
57. 87 711 720 09
58. 89 559 670 111
59. 91 1177 877 300
60. 92 508 538 30
61. 94 449 918 469
62. 96 287 338 51
63. 97 737 738 01
64. 98 309 564 255
65. 100 937 996 59
66. 101 47 610 563
67. 103 530 532 02
68. 104 584 1244 660
69. 106 Zero 685 685
70. 107 692 707 15
71. 108 101 863 762
72. 109 997 1008 11
73. 110 475 532 57
74. 111 899 938 39
75. 112 Zero 734 734
76. 113 1068 1073 05
77. 116 911 950 39
78. 117 510 552 42
79. 120 936 945 09
80. 123 700 707 07
81. 124 612 622 10
82. 126 Zero 455 455
83. 127 597 643 46
84. 131 Zero 588 588
85. 132 618 766 148
86. 133 726 729 03
87. 134 699 768 69
88. 135 763 784 21
89. 137 456 461 05
90. 138 770 871 101
91. 139 985 998 13
92. 141 639 835 196
93. 143 748 870 122
94. 146 954 1022 68
95. 147 99 661 562
96. 148 1025 1073 48
97. 150 655 751 96
98. 152 485 593 108
99. 153 379 447 68
100. 154 285 1537 1252 TOTAL 54242 72895 21298 {{TABLE}} The available record does not tell nor learned counsel for the returned candidate could explain at the time-of arguments as to how and on what basis 21298 ballot papers over and above the number of used counterfoils were treated as validly polled votes and made the basis of consolidated statement of the results of the count (Ex.P-10) by the Returning Officer. On the basis of state of election record tabulated to the above effect, it can be inferred that 21298 fake and bogus votes were counted as valid votes towards the vote account of the candidates.
12. Now, I proceed to ascertain as to whether or not the total polled votes given in the consolidated statement of the results of the count (Ex.P-10) were found rom the election bags on physical inspection of the record by the Commission. For facility of reference, I tabulate the figures qua polled votes after combined examination of the consolidated statement of the count (Ex.P-10) and the inspection report, (Ex. TW-1/A) as under:-- {{TABLE}} Sr.# No, of polling stationsTotal validly polled votes as per consolidated statement of the results of the count (Ex. P-10) prepared by the Returning OfficerTotal validly polled votes as found from the election bags on physical inspection of the record by the Commission vide inspection report, Ex.
TW-1/ANumber of validly polled votes available in the election bags, which had not been counted towards the vote account of the candidates by the Presiding Officers and the Returning Officer
1. 01 785 781 04
2. 03 465 460 05
3. 04 275 Zero 275
4. 06 698 664 34
5. 07 872 803 69
6. 08 527 179 348
7. 09 472 453 19
8. 10 426 422 04
9. 12 481 466 15
10. 16 804 789 15
11. 17 578 572 06
12. 18 514 469 45
13. 19 641 576 65
14. 25 803 590 213
15. 31 758 757 01
16. 33 501 499 02
17. 34 697 443 254
18. 36 750 749 01
19. 38 642 635 07
20. 39 548 545 03
21. 40 287 285 02
22. 42 1023 1021 02
23. 43 675 672 03
24. 44 476 322 154
25. 45 1242 1194 43
26. 46 964 960 04
27. 47 621 616 05
28. 50 1080 1076 04
29. 56 381 340 41
30. 57 928 444 484
31. 59 479 477 02
32. 61 424 402 22
33. 62 729 727 02
34. 63 768 755 13
35. 66 694 692 02
36. 69 597 579 18
37. 72 607 451 156
38. 73 458 382 76
39. 80 1033 1031 02
40. 83 815 779 36
41. 84 699 676 23
42. 85 473 Zero 473 43 86 699 696 03
44. 92 538 537 01
45. 94 918 704 214
46. 96 338 336 02
47. 98 564 561 03
48. 100 996 975 21
49. 101 610 Zero 610
50. 103 532 523 09
51. 104 1244 Zero 1244
52. 106 685 653 32
53. 109 1008 989 19
54. 111 938 934 04
55. 112 734 718 16
56. 113 1073 1072 01
57. 117 552 550 02
58. 118 621 619 02
59. 119 416 415 01
60. 120 945 942 03
61. 121 634 620 14
62. 124 622 621 01
63. 125 562 572 10
64. 126 455 421 34
65. 127 643 639 04
66. 129 950 948 02
67. 130 437 933 496
68. 132 766 763 03
69. 133 729 727 03
70. 134 768 269 499
71. 137 461 458 03
72. 138 871 830 41
73. 143 870 847 23
74. 145 333 322 11
75. 147 661 659 02
76. 148 1073 1072 01
77. 149 615 406 209
78. 152 593 592 01
79. 153 447 446 01 TOTAL 53294 48102 6492 {{TABLE}} It is manifest from the above said statement that 6492 ballot papers shown by the Returning Officer as validly polled votes in the consolidated statement of the count were/are not available in the election bags. In other words, 6492 votes were counted towards the vote account of the candidates without any basis.
13. Now, I propose to bring on record the number of votes validly polled to the contesting candidates found from the election bags by the Commission (TW-1), which had not been counted towards their vote account by the Returning Officer while consolidating the results:- {{TABLE}} Sr.# No, of polling stationsTotal validly polled votes as per consolidated statement of the results of the count (Ex. P-10) prepared by the Returning OfficerTotal validly polled votes as found from the election bags on physical inspection of the record by the Commission vide inspection report, Ex.
TW-1/ANumber of validly polled votes available in the election bags, which had not been counted towards the vote account of the candidates by the Presiding Officers and the Returning Officer
1. 05 1106 1108 02
2. 11 455 456 01
3. 13 1043 1054 11
4. 14 661 664 03
5. 15 638 642 04
6. 20 1000 1009 09
7. 22 785 786 01
8. 23 991 1016 25
9. 26 875 891 16
10. 27 898 1160 262
11. 28 793 1041 248
12. 29 727 729 02
13. 30 752 757 05
14. 32 500 508 08
15. 35 696 722 26
16. 37 701 702 01
17. 48 964 965 01
18. 51 710 713 03
19. 52 613 682 69
20. 53 572 573 01
21. 54 857 913 56
22. 58 717 719 02
23. 60 628 634 06
24. 64 749 764 15
25. 65 1478 1526 48
26. 67 447 482 35
27. 68 833 836 03
28. 70 564 577 13
29. 74 680 681 01
30. 75 688 714 26
31. 76 569 580 11
32. 78 1154 1172 18
33. 79 580 584 04
34. 81 637 642 05
35. 87 720 723 03
36. 89 60 688 628
37. 91 1177 1178 01
38. 93 647 650 03
39. 95 770 792 22
40. 99 1199 1209 10
41. 107 707 710 03
42. 108 863 882 19 43 110 532 566 34
44. 114 540 543 03
45. 115 674 676 02
46. 116 650 919 269
47. 122 593 621 28
48. 123 707 718 11
49. 131 588 852 237
50. 135 784 786 02
51. 139 998 1001 03
52. 140 522 5424 02
53. 141 538 572 34
54. 142 1262 1263 01
55. 150 751 759 08
56. 154 1537 1562 25 TOTAL 42930 45169 2284 {{TABLE}} It is evident from the tabulated statement based on record that 2284 valid votes had not been counted towards the vote account of the contesting candidates. Hence, it can be said that either the officers assigned the task of preparing and consolidating the results of the count did not attach required importance to the job or they excluded 2284 votes from the count for some extraneous consideration.
14. A bare perusal of Section 39(3) of the Act, 1976 would show that after having received the election bags, statements of the Account in form XIV and ballot paper account in form XV from all the Presiding Officers, the Returning Officer is required to examine the ballot papers excluded from the count by the Presiding Officers before consolidating the results of the count and if he finds that such ballot paper should not have been excluded from the count, he counts it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast in his opinion. On consideration of the rival stands regarding the rejected votes, which had been excluded from the count by the Returning Officer, it is must to tabulate them in the light of consolidated statement of the results of the count (Ex.P-10) and the inspection report, (Ex.TW-1/A) to form record based opinion qua the rejected votes so that it could be ascertained as to whether or not the Returning officer discharged his obligations in terms of Section 39(3) of the Act, 1976:-- {{TABLE}} Sr.# No, of polling stationsTotal rejected votes as per consolidated statement of the results of the count (Ex. P-10) prepared by the Returning OfficerNumber of rejected votes found from the packets of rejected votes on physical inspection of the election by the Commission vide inspection report; Ex.
TW-1/ADifference between consolidated statement of results of the Court and Number of rejected votes found from the packets of rejected votes
1. 03 16 09 07
2. 04 22 Zero 22
3. 05 17 16 01
4. 07 9 16 03
5. 08 21 Zero 21
6. 09 15 Zero 15
7. 10 26 24 02
8. 16 35 29 06
9. 32 26 24 02
10. 34 31 29 02
11. 36 23 21 02
12. 38 49 43 06
13. 39 04 Zero 04
14. 42 29 24 05
15. 43 23 19 04
16. 44 27 Zero 27
17. 46 28 26 02
18. 47 10 08 02
19. 49 05 Zero 05
20. 50 21 16 05
21. 52 28 18 10
22. 61 33 26 07
23. 62 52 47 05
24. 63 31 18 13
25. 69 27 Zero 27
26. 70 25 21 04
27. 71 24 22 02
28. 72 11 Zero 11
29. 80 10 Zero 10
30. 83 13 10 03
31. 84 21 Zero 21
32. 85 28 Zero 28
33. 86 23 21 02
34. 88 15 14 01
35. 89 57 43 14
36. 92 18 17 01
37. 94 31 18 13
38. 95 25 24 01
39. 96 15 13 02
40. 97 42 38 04
41. 100 20 Zero 20
42. 104 10 Zero 10 43 111 46 40 06
44. 112 17 Zero 17
45. 113 24 22 02
46. 116 54 23 31
47. 119 12 11 01
48. 120 36 22 14
49. 126 32 Zero 32
50. 127 17 14 03
51. 129 01 11 10
52. 138 38 27 11
53. 141 39 Zero 39
54. 143 24 Zero 24
55. 145 11 Zero 11
56. 152 15 14 01 TOTAL 1373 838 554 {{TABLE}} It is a matter of record that 554 votes excluded from the count by the Returning Officer in terms of Section 39(3) of the Act, 1976 do not exist. It was the Returning officer, who re-sealed the election bags after examination of the rejected votes u/k 39 of the Act, 1976 and then got them deposited with the District Treasury under double lock. A serious question could not be answered by learned counsel for the petitioner and the returned candidate as to who took away 554 rejected votes, which had been examined by the Returning Officer u/S. 39(3) of the Act. In the circumstances, it has become necessary to bring on record polling station wise rejected votes found by the.
Commission (TW-1), which had not been excluded from the count by the Returning Officer despite so called examination u/S. 39(3) of the Act:-- {{TABLE}} Sr.# No, of polling stationsNumber of rejected votes mentioned in the consolidated, statement of the results of the count prepared by the RONumber of rejected votes found from the election bags by the Commission TW-1 on physical examination of the election recordDifference
1. 11 16 18 02
2. 12 11 420 409
3. 13 Zero 31 31
4. 14 27 44 17
5. 15 12 21 09
6. 18 05 10 05
7. 20 06 17 11
8. 21 Zero 32 32
9. 22 Zero 02 02
10. 23 Zero 33 33
11. 25 Zero 34 34
12. 26 23 41 18
13. 27 02 09 07
14. 28 11 39 28
15. 29 16 17 01
16. 31 19 33 14
17. 33 02 05 03
18. 35 Zero 24 24
19. 37 76 80 04
20. 38 49 54 05
21. 53 31 33 02
22. 54 Zero 40 40
23. 56 Zero 26 26
24. 60 25 36 11
25. 64 30 39 09
26. 65 Zero 46 46
27. 67 Zero 41 41
28. 68 10 74 64
29. 73 12 13 01
30. 74 26 27 01
31. 75 Zero 25 25
32. 76 03 15 12
33. 78 31 53 22
34. 81 Zero 07 07
35. 99 Zero 11 11
36. 106 10 59 49
37. 108 Zero 30 30
38. 109 11 14 03
39. 110 Zero 42 42
40. 121 18 19 01
41. 122 Zero 28 28
42. 123 26 38 12 43 124 22 23 01
44. 125 15 25 10
45. 130 11 25 14
46. 131 08 11 03
47. 132 28 29 01
48. 133 23 24 01
49. 134 Zero 32 32
50. 137 08 09 01
51. 140 01 23 02
52. 149 Zero 36 36
53. 150 Zero 11 11
54. 154 03 42 39 TOTAL 647 19780 1322 {{TABLE}} Here I must say that if the Returning Officer had opened the packets of rejected votes while consolidating the results in terms of Section 39(3) of the Act, 1976 1322 rejected votes would not have escaped his notice. Furthermore, on recount the Commission rejected and excluded 1118 votes from the count, which had wrongly been counted towards the vote account of the contesting candidates. The bad state of record regarding the rejected votes tabulated above provides a basis to conclude without any fear of contradiction that the Returning Officer completely and miserably failed to discharge the obligation cast on him by Section 39(3) of the Act, 1976.
15. Section 38(10) of the Act, 1976 read with Rule '25 (conduct of Election) Rules, 1977 demand that the Presiding. Officers shall prepare in the form XV a ballot paper account showing separately: (a)the number of ballot" papers entrusted to him; (b)the number of un-issued ballot papers; (c)the number of ballot papers taken out of the ballot box or boxes and counted; (d)the number of tendered ballot papers; (e)the number of challenged ballot papers; and (f)the number of spoilt ballot papers.
The only philosophy behind preparation of ballot papers account to the above effect is that the Presiding Officers should be made accountable for each and every ballot paper entrusted to him by the Returning Officer. In the case in hand the Presiding Officers of the following polling stations did not submit ballot papers account on form XV before the Returning Officer.
Polling stations number:- " 8, 18, 19, 20, 21, 22, 23, 25, 27, 28, 38, 39, 43, 44, 45, 47, 51, 55, 57, 59, 63, 66, 72, 73, 74, 82, 84, 92, 94, 95, 96, 101, 104, 106, 107, 108, 110, 116, 125, 131, 134, 141 and 142."
It is painful to note that the Returning Officer did not take any action against the Presiding Officers of aforesaid polling stations. Without perusing the ballot papers account of aforesaid polling stations it cannot be said with certainty as to whether the ballot papers made over to the Presiding Officers by the Returning Officer were validly used or misappropriated. Shocking aspect of the matter is that the election process was concluded in a slip shod manner by the Presiding Officers without any objection from the Retuning Officer, who was supposed to keep them under his direct/close/constant watch to ensure transparency and credibility of the election.
16. It is not in dispute that the Retuning Officer did not the polled votes and instead drew the consolidated statement of the results of the count on the basis of statements of the count in form XIV furnished by the Presiding Officers. Under Section 39(3) of the Act, 1976 the Retuning Officer was under legal obligation to examine the rejected votes only while consolidating the results. In this view of the matter the consolidated statement of the results of the count should have been drawn up by the Returning Officer in line with the statement of the count in form XIV excepting the rejected votes. It is not understandable as to how the consolidated statement of the results of the count was prepared by the Retuning Officer contrary to the statements of the count in form XIV, particularly when he did not recount the votes. The consolidated statement of the count by the Returning Officer does not reconcile with the statements of the count in form XIV of the following polling stations.
Polling stations number:- 1, 2, 3, 9, 10, 12, 13, 16, 26, 29, 30, 31, 32, 33, 34, 35, 41, 42, 46, 48, 49, 50, 52, 53, 54, 58, 60, 61, 62, 64, 65, 70, 71, 72, 73, 75, 76, 78, 79, 80, 81, 83, 86, 87, 88, 89, 93, 94, 96, 97, 98, 99, 100, 102, 109, 112, 114, 115, 122, 130, 135, 144, 147, 148 and 154." .
17. The statements of the count in form XIV of the, following polling stations were/are not available despite the fact that the Returning Officer claimed to have prepared consolidated statement in form XVI on the basis of statements in form XIV:-- Polling stations number:- "4, 6, 7, 18, 19, 20, 21, 22, 23, 25, 28, 37, 38, 39, 43, 44, 45, 47, 51, 55, 56, 57, 59, 63, 66, 67, 68, 69, 74, 82, 84, 91, 92, 95, 101, 103, 104, 107,108,110,116,125,131,133,134, 137, 141, 143 and 145."
I fail to understand as to how the Returning Officer consolidated, result of the count about the aforesaid polling stations in absence of the statements of the count in form XIV. For the sake of arguments if it is believed that at relevant time the statements of the count in form XIV touching aforesaid polling stations were available with the Returning Officer, even then the available record does not tell as to who took them away despite deposit of the election record in the District Treasury under double lock by the Returning Officer. Valuable election record on the basis of which the Returning Officer drew tip consolidated statement of the results of the count is missing. In absence of the statements of the count in form XIV regarding the aforesaid polling stations no sanctity could be attached to the consolidated statement of the results of the count on the basis of which Respondent No, 1 - was notified as the returned candidate.
18. Through his consolidated statement of the results of the count (Ex.P-10) the Returning Officer claimed that he received 154 polling bags of the Constituency No, PP-107, Hafizabad from the Presiding Officers. He allegedly deposited the said. 154 election bags with the District Treasury, Hafizabad, for safe custody under double lock. At the time of inspection of election record by the Commission the polling bags of polling stations No, 90, 105 and 136 were missing. According to consolidated statement of the count (Ex. P-10) 772, 1126 and 643 votes were polled at polling stations No, 90, 105 and 136 respectively. The Returning. Officer allegedly deposited the said three bags with the District Treasury, Hafizabad alongwith the other bags. Till date no action what so ever has been taken against, any one for the loss of record despite the fact that prima facie an offense under Section 409, PPC besides the penal provisions of Election laws has been committed. At the time of inspection of record by the Commission (TW-1) .429 polled ballot papers of polling station No, 90 out of total 772 polled votes were found from the polling bag of polling station No, 130.
Likewise, the polling bags of Polling Stations No, 77 and 151 did not contain relevant election record of the election in question. All concerned are unable to say as to who committed the mischief.
19. It would not be out of place to mention here that a sizeable number of used counterfoils of the following polling 1. stations were found without stamp and signatures of the issuing officers:-- {{TABLE}} Sr.# No of polling StationsNumber of used counterfoils without stamp and signature.
1. 01 291
2. 02 453
3. 03 464
4. 04 198
5. 05 519
6. 07 868
7. 09 472
8. 10 382
9. 11 454
10. 13 128
11. 14 756
12. 15 640
13. 16 400
14. 17 578
15. 20 100
16. 21 287
17. 22 739
18. 23 820
19. 24 810
20. 26 445
21. 27 896
22. 28 975
23. 29 727
24. 30 700
25. 31 762
26. 34 697
27. 36 750
28. 37 691
29. 38 323
30. 39 426
31. 40 284
32. 41 356
33. 42 ???
34. 43 266
35. 45 269
36. 46 38
37. 47 621
38. 49 343
39. 50 300
40. 53 07
41. 55 459
42. 58 107
43. 59 465
44. 60 197
45. 61 391
46. 63 736
47. 65 954
48. 66 657
49. 67 462
50. 68 428
51. 70 409
52. 73 454
53. 74 678
54. 75 16
55. 78 04
56. 80 207
57. 81 272
58. 82 09
59. 84 03
60. 86 651
61. 87 421
62. 88 567
63. 91 877
64. 92 100
65. 93 647
66. 94 349
67. 97 200
68. 98 309
69. 99 195
70. 100 937
71. 109 972
72. 110 475
73. 111 221
74. 113 02
75. 115 67
76. 116 270
77. 117 510
78. 118 308
79. 120 709
80. 122 369
81. 123 700
82. 129 27
83. 132 93
84. 134 01
85. 138 479
86. 139 514
87. 141 04
88. 142 384
89. 143 212
90. 144 02
91. 146 159
92. 147 35
93. 148 281
94. 149 240
95. 150 02
96. 154 93 TOTAL 39301 {{TABLE}} Statement showing number of counterfoils which had not been signed by the issuing officers:-- {{TABLE}} Sr.# No, of polling Stations Statement showing number of counterfoils though stamped but not signed.
1. 10 40
2. 20 100
3. 22 48
4. 26 100
5. 38 77
6. 43 21
7. 54 374
8. 56 77
9. 58 05
10. 78 08
11. 79 01
12. 81 120
13. 87 95
14. 92 07
15. 116 308
16. 127 41
17. 138 190 TOTAL 1612 {{TABLE}}
20. When confronted with the state of election record depicted in the preceding paragraphs; learned counsel for the returned candidate attempted to argue that the Commission recounted the 'validly polled votes of the petitioner and the returned candidate as 44599 and 48764 respectively and in this way the returned candidate won the election by 4165 votes. I could not persuade myself to 'attach any importance to the argument for the simple reason that it has been established conclusively beyond any shadow of doubt that the Returning Officer, members of polling staff and the Incharge, District Treasury, Hafizabad failed to discharge the obligations in terms of the provisions of the ROPA, 1976. The relevant portions of the inspection report in tabular form have proved that extensive. corrupt and illegal practices were committed in the election process. This is a text book example of novel election, which had been destroyed at each and every stage Election is a mechanism devised to show the true wishes and will of the people in the matte of choosing their representatives. Under the provisions of the Act, 1976 the result of the election is subject to legal scrutiny by the Election Tribunal to achieve the two ends. First, to ascertain that the true will of the electors 'of the constituency is reflected in the results. Secondly, to ensure that the eligible and qualified representative of the electors could obtain the representation. The primary duty of the Election Tribunal' is to protect unscruplousand safeguard the purity of the Elections so that the elements may not succeed to cheat the electors. In the case in hand it has been proved to my satisfaction that the result of the election favourable to the returned candidate is not the will of the electors of the constituency in the~ true sense at all. am fully justified on the basis of documentary evidence to set aside the election of the returned candidate, which does not reflect the true will of the people. I am not in agreement with the learned counsel for the returned candidate that the Election Tribunal is expected to be slow in, setting aside the result of the election to which presumption of truth is attached. Had the election in question of the returned candidate reflected the true will of the people, the Election Tribunal would have thrown away the election petition with an observation that the will of the people must prevail.
Unfortunately; in the case in hand the electors of the constituency are the. victims of fraud and deception: I. therefore, discard the available election record as well as the election record, which has been misappropriated or stolen.
21.For the aforesaid reasons, I declare the election of the returned candidate from PP-107, Hafizabad-III as a whole to be void.
22.The Election Commission of Pakistan shall take necessary steps for holding bye-election from the constituency in accordance with law.
23.The returned candidate shall bear the cost of election petition as determined and mentioned in the memo of cost: