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 directed by one of the unreturned candidates (the petitioner) against the election of Syed Fazul Ali Shah, (the returned candidate) from the Sindh Provincial Assembly's constituency No.PS-33 Khairpur-V in the General Election held on 11-5-2013, on the ticket of Pakistan People Party Parliamentarian. The Petitioner was a contesting candidate on the ticket of Pakistan Muslim League (F) and was the runner up. He has prayed that the election of the returned candidate may be declared as void and he, having been secured the second highest votes, may be declared as the returned candidate or in alternate the election may be declared as a whole to be void ordering for the re-poll in the constituency for:--- (i)the returned candidate was not qualified to contest the election and his nomination paper should have been rejected by the Returning Officer because he had amassed wealth beyond known sources of income as he failed to disclose as to how his assets were increased 13 times more than the income he earned from the known resources in order to avoid payment of taxes or he has generated his income through illegal means as he was a member of Parliament and the Chairman of Federal Land Commission during the last 5 years, (ii)the process of poll was massively rigged at 74 polling stations as detailed in the petition by the workers or the returned candidate who had made their polling staff hostage and took control of the ballot-papers and affixed stamps on his symbol, (iii)the local administration was fully involved in his election process since before the election as the caretaker government was not neutral, (iv)the polling staff of different polling stations was changed by Returning Officer a day before the poll at the instance of the returned candidate and persons recommended by him were appointed as polling staff affecting materially the result of the election, (v)the Returning Officer did not call for the petitioner at the time of consolidation of result which has made entire process doubtful, (vi)the returned candidate violated the code of conduct of the Election Commission of Pakistan for the candidates and remained busy in distribution of cards Benazir Income Support Program (BISP) and of Baitul Mal.
2. The returned candidate only filed his written statement and denied all the allegations against him, his workers and election officials and prayed for dismissal of the petition whereas, the other respondents did not contest the petition which proceeded ex parte against them.
3. Out of the pleadings of the parties, the Election Tribunal Sukkur (where the petition was initially filed) framed the following issues:--- (1)Whether the respondent No.1 is guilty of illegal and corrupt practices as mentioned in the memo of petition?
4. (2)Whether bogus votes were cast in favour of respondent No.1 by assigning fake thumb- impressions at the polling stations mentioned in para No.8 of the petition?
5. (3)Whether Polling staff was changed at the Polling Stations mentioned in para No.10 of the petition? If so what is its effect?
6. (4)Whether respondent No.1 has filed false declaration about his assets and income at the time of filling of nomination form and was disqualified to contest Election as per Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan and section 99 of Representation of the People Act, 1976?
7. (5)What should the order be?
8. During the proceeding of the petition this Tribunal, with consent, forwarded counterfoils of used ballot-papers in respect of 91 polling stations (74 polling stations pointed out by the Petitioner and 17 pointed out by the returned candidate), used pictorial electoral rolls and statements of count of these polling stations to the National Database and Registration Authority (NADRA), Islamabad for verification of the thumb-impressions on these counterfoils and pictorial electoral rolls from the biometric data of the voters having the National Identity Cards (NICs) which numbers were mentioned thereon through its Automatic Fingerprints Identification System (AFIS). Such report was submitted by NADRA at Exh.O-1/2 On the above issues both the parties, beside themselves, have examined the following 2 witnesses each respectively:--- (1)Mr. Mehboob Ali, at Exh.P-3 (2)Mr. Gulab Ali at Exh.P-4 (3)Dost Muhammad alias Allah Warrayo, at Exh.R-1, and (4)Muhammad Jumman at Exh.R-2 On behalf of the petitioner 3 official witnesses were also examined, namely, Mr. Abbas Sial, the Assistant Returning Officer at Exh.P-1 who produced counterfoils, pictorial electoral rolls and Forms XIV in respect of 91 polling stations, Deputy Director (Technical) NADRA Mr. Ahmed Waqas Langha at Exh.O-1 who produced the report of NADRA as well as other documents and lastly a witness from the Election Commission of Pakistan Mr. Muhammad Saeed, Deputy Director (Est.) at Exh.O-2 who produced several documents from Exh.O-2/1 to O-2/13 on the point of purchase and supply of magnetized ink by the Election Commission.
9. Heard the learned counsel for the parties and perused the record very carefully.
10. Before starting discussion on the above issues let the legal question raised by the learned counsel for the returned candidate at the outset of his arguments on the maintainability of the election petition under section 63 of the Act, may be decided.
11. The learned counsel contended that the petitioner has not complied with the provisions of section 55 of the Act because he has not only failed to give full particulars of the illegal practices and the illegal acts allegedly committed by the returned candidate during the poll, as required under section 55(1)(b) of the Act, but also failed to verify the petition as provided under section 55(3) of the Act in terms of Order VI, Rule 15, C.P.C. by failing to mention its number of paragraphs which were based on his personal knowledge and which on his belief to be true, therefore, the petitioner has not complied with the provisions of section 55 of the Act entailing dismissal of the petition under section 63 of the Act.
12. Learned counsel for the petitioner has opposed the above arguments and contended that the petition has been filed in accordance with the law and therefore, the same cannot be dismissed on the alleged legal infirmities.
13. I have carefully considered the above argument in the light of the record and reached to the conclusion that the objections of the learned counsel for the returned candidate on the non- maintainability of the petition under section 63 of the Act is uncalled for as the petitioner has fully complied with the provisions of section 55(1)(b) of the Act by mentioning the full particulars of the illegal, acts allegedly committed by the returned candidate's workers at the 74 polling stations of the constituency by mentioning their names and places where the staff of Election Commission deputed for the poll was made hostage and then took the control of the ballot-papers for marking on the symbol of Arrow to ensure sham success in favour of the returned candidate. A number of other particular in respect of the allegations on the subject which were in his knowledge have been given by him in the petition, therefore, it cannot be argued that the petitioner has failed to comply with the provisions of the section 55(1)(b) of the Act with reference to his mandatory obligation to provide full particulars of illegal practice or illegal acts as far as time, place and the persons who committed the same are concerned, therefore, the petition cannot be dismissed on this point.
14. (Reliance is placed on the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan, 1999 SCMR 284).
15. With regard to the objection of the learned counsel for the returned candidate on verification of the petition it is suffice to observe that the petitioner has verified all the contents of the petition on oath believing the same to be true both to the best of his knowledge and his belief as required under the law and if the paras have not been separated the petitioner cannot be unsuited under section 63 of the Act, 1976 for this technical shortcoming as laid down by the Hon'ble Supreme Court in the case of Molvi Abdul Qadir v. Molvi Abdul Wassay and others, 2010 SCMR 1877. It has been held that the settled question with regard to verifying pleadings notwithstanding numbered paragraphs or pleadings what has been verified on one's own knowledge and what verified upon information received and believed to be true as such provisions of law could not be considered as mandatory as one could verify the paras in pleadings on his own knowledge without verifying any para upon receipt of information as the same were believed to be true.
16. Now after disposing of the legal question on the maintainability of the petition the issues settled by the Tribunal are taken up.
17. ISSUE NO 1.
18. On this issue it was incumbent upon the petitioner to prove the allegations as made in the petition by him. To discharge his burden of proof he has filed his affidavit-in-evidence and the affidavits of Messrs Mehboob Ali and Ghulam Ali. Affidavits-in-evidence of several other witnesses were also filed by him but they were not produced for their cross-examination for the reason best known to him, therefore it can be presumed under Article 129 of the Qanun-e-Shahadat Order, 1984, Illustration (g) that had these witnesses produced they would have been unfavourable to him.
19. The petitioner in his affidavit-in-evidence has mentioned the same facts and the allegations as mentioned by him in his petition with reference to the alleged illegal acts including massive rigging by capturing the polling stations and making hostage of the polling staff during the poll by the workers of the returned candidate at the 74 polling stations, however, there is no corroboration of his testimony through any direct evidence as one of his own or of any other contesting candidates polling agents at these polling stations was examined to depose in his support. The evidence of these polling agents could be the best possible direct testimony on the subject but the petitioner chose to withhold the same without giving any plausible reason. The petitioner has not deposed that he had himself remained present during the polling at any polling station out of these 72 polling stations rather he deposed that he was not even allowed to enter in these polling stations and against that he complained to the Returning Officer on telephone but this statement too, remained uncorroborated as he did not examine the Returning Officer. The testimony of the petitioner will thus amount as hearsay. The evidence of his two witnesses namely Mehboob Ali and Gulab Ali, who were not his polling agents at any polling station but merely his voters at 2 different polling stations of the constituency, is only on the point of harassment to his voters by the police before and during the poll to stop them from voting in favour of the petitioner. These witnesses too have not produced any proof of being the voters at the respective polling stations therefore it is not safe to believe their testimony without corroboration from any independent witness.
20. The learned counsel for the petitioner contended that the allegations made by the petitioner in his affidavit in evidence with regard to doing fake voting after taking control of the 74 polling stations and marking the ballot-papers on the election symbol of the returned candidate were not challenged by way of cross-examination by his counsel, therefore, these allegations stood proved and relied upon the case of Chief Engineer Irrigation Department N.-W.E.P. Peshawar and two others v. Mazhar Hussain and two others reported in PLD 2004 Supreme Court 682, wherein it has been held that if the facts in examination-in-chief were not cross-examined such part of the statement given in examination-in-chief shall be deemed to be admitted and accepted under Article 33 of the Qanun-e-Shahadat Order, 1984. In this regard it may be appreciated that the returned candidate has been denying all such allegations since filing of his written statement which were further reinforced in his affidavit in evidence, therefore in my view until and unless the petitioner independently discharges his burden of proof through tangible evidence no affirmative finding can be recorded by this Tribunal in his favour and as rightly argued by the learned counsel for the returned candidate that the burden of proof that the corrupt and illegal practices were committed during the poll by the returned candidate is to be discharged in the same manner as a criminal charge is to be proved beyond all the reasonable doubts and the petitioner has failed to do so relying upon the case of Muhammad Irfan Khan v. Javed Ahmed Chatari and 20 others 1998 CLC 1241.
21. In view of the above discussion it is held that the petitioner has failed to prove the issue and same is decided in negative.
22. ISSUE NO 3.
23. On this issue also the petitioner has failed to produce any iota of evidence as neither any documentary evidence including the official record was produced by him nor the official witness on this point that any particular official was changed abruptly before the election day by the Returning Officer in violation of the Act or the Rules framed thereunder. He has only deposed in his affidavit-in-evidence that polling staff at different 18 polling stations named therein was changed a day before the polling at the instance of the returned candidate and the persons recommended by him were appointed as Presiding Officers, Assistant Presiding Officers and Poling Officers without any reason and that huge number of impartial polling personnel were removed from the election duty. This allegation was required to be proved through documentary evidence from the official record of the Returning Officer but no effort was made and even surprisingly, the petitioner has not given a single name of polling staff that was changed, therefore, his scanty oral evidence is not sufficient to prove the issue which is also decided in negative.
24. ISSUE NO 4.
25. On this issue, the case of the petitioner is that returned candidate filed his nomination paper from this constituency before the Returning Officer in the prescribed form showing his assets and liabilities in the relevant columns but did not provide any justification or resources for his increased income during the last four years which is a proof that he has amassed wealth through illegal means, therefore, he lacked the qualifications in terms of Article 62 of the Constitution of Pakistan for be a Member of the Provincial Assembly. He has made the same allegations in his affidavit in evidence and produced a certified copy of the nomination form filed by the returned candidate as Exh.P-2/1. The returned candidate in his affidavit in evidence denied the allegations and stated that at the time of scrutiny of the nomination papers by the Returning Officer none had filed any objection to his nomination challenging his eligibility, therefore, his form was accepted. He has further deposed that the increase in his income was on account of the fact that his father had expired from whom he had inherited the property. Moreover, the income also increased on account of his monthly salary that he had received as Member of National Assembly during the last five years, and the property purchased by him was from his own resources, he has paid all the taxes honestly.
26. The learned counsel for the petitioner has argued that the returned candidate's nomination, papers itself shows anomalies in income and expenditures as the same did not show that he had paid motor vehicle taxes on the two vehicles owned by him which he was using, therefore, he was not qualified to be elected as a member of the Provincial Assembly for want of qualification as provided under Article 62(f) of the Constitution of Pakistan and section 99 of the Act and his election is therefore, required to be declared as null and void. The learned counsel for the returned candidate in his argument has denied the above arguments and contended that since the assets of the returned candidate were increased on account of inheritance from his deceased father and the same cannot be subject to any scrutiny under the election laws. He has relied upon the case of Ghazanfar Ali v. Noor Muhammad and others PLD 2011 Lahore 11.
27. I have carefully considered the above arguments in the light of the record and reached the conclusion that the petitioner's allegation against the returned candidate with regard to his ineligibility to contest the election for lacking any of the qualifications as provided under Article 62(f) of the Constitution of Pakistan read with section 99(1)(f) of the Act was very specific and required to be proved through tangible evidence. But the petitioner has failed to bring any material on record on the basis of which it can be held that the returned candidate was not qualified to be elected as a member of an Assembly being not sagacious, righteous and non-profligate and honest and Ameen. His declaration of assets as made in the nomination form is on record and no material against that has been produced by the petitioner to contradict it and to prove that his solemn verification of assets at the end of his nomination form, Exh.P-2/1 was false. Mere allegation that the returned candidate has amassed wealth through unknown sources is not sufficient in this regard, therefore, this issue is also decided in negative.
28. ISSUE NO. 2 This is the issue which the petitioner has mainly highlighted in his petition. On this, the case of the petitioner is that the returned candidate and his workers had committed immense bogus voting by getting control of the 74 polling stations and ballot-papers. These allegations have been mentioned in the petition as well as in his affidavit-in-evidence. He has further alleged therein that the workers of the returned candidate had affixed stamps on the election symbol of the returned candidate at large scale to ensure sham success and this fact could be ascertained through thumb-impressions verification process by screening the same by NADRA.
29. The returned candidate who had emphatically denied this allegation in his written statement but acceded to the request of verification as both the learned counsel for the parties voluntarily proposed that not only the counterfoils of these 74 polling station but also of 17 other polling stations of Taluka Naara from where the petitioner got majority of the votes be also screened out.
30. These counterfoils as well as pictorial electoral rolls and statements of Count of these polling stations were called for from the Returning Officer of PS-33. The same were produced by Mr. Abbas Sial, the Assistant Returning Officer.
31. This material was forwarded to NADRA in 91 separate sealed bags as submitted by Returning Officer, for the thumb-impression verification vide letter of this Tribunal dated: 12th October, 2013, Exhibit O-1/1 in terms of earlier letter of confirmation by the Chairman NADRA through Director- General (NDW) dated; 22nd July, 2013 in response to the Tribunal's letter 16th July, 2013 wherein NADRA authority had confirmed its capability and capacity to examine the thumb-impressions available on the pictorial electoral rolls and the counterfoils of the used ballot-papers though AFIS on usual cost. NADRA has submitted its report through its Deputy Director, Technical (RHO) Karachi, Mr. Ahmed Waqas Langha on 1st March, 2013 vide report Exhibit O-1/2.
32. As per report the total No. of counterfoils received by NADRA for the examination through its AFIS were 65511 but out of them 12818 counterfoils did not qualify for fingerprint matching, and on 23356 counterfoils the fingerprints were of bad quality and did not pass through the test. Out of the remaining counterfoils thumb-impressions on 29219 counterfoils were successfully authenticated.
33. However, 118 thumb-impressions on these counterfoils failed authentication. Specimens of these counterfoils were also submitted as well as the details of the NICs numbers on these counterfoils that passed authentication test.
34. NADRA was also asked by the Tribunal to provide details of those 12818 counterfoils that didn't qualify for the fingerprint matching as the same were either having no thumb-impression or invalid NIC number was mentioned thereon or one NIC number was mentioned on multiple counterfoils.
35. These details were provided by NADRA vide Exhibits O-1/7, O-1/8 and O-1/9. NADRA has also sent back the material examined by it in 17 sealed cartons which were produced as Article 1 to Article 17, out of them 7 cartons were containing those counterfoils which did not qualify for the AFIS examination.
36. On this report the learned counsel for the returned candidate filed his objections to the effect that the said report is not confidence- inspiring and has no evidentiary value. With regard to 12818 counterfoils which did not qualify for AFIS examination it has been mentioned that the same did not fall within the purview of NADRA's mandate of thumb verifications. Similarly it has been mentioned in the objections that the Election Commission and its staff were responsible for the bad quality of thumb-impressions on high numbers of such counterfoils and pictorial electoral rolls for which the returned candidate was not responsible. Due to the above objections, Mr. Ahmed Waqas Langa, Deputy Director Technical, NADRA, was examined by this Tribunal to produce the report and other documents in accordance with the law. He was cross-examined by the learned counsel for the returned candidate only.
37. Since it was mentioned in the NADRA's report that 23356 counterfoils were bearing thumb- impression of bad quality which couldn't be analyzed and similarly the thumb-impressions on the used pictorial electoral rolls were also not examined on account of their bad quality and other reasons including that the magnetized ink and inkpads (having specific properties) which were proposed by NADRA for their use during poll were either not used or they were having no such properties which were suggested by it, therefore, on the application of the petitioner this Tribunal also examined a witness from Election Commission of Pakistan, (the ECP) on the point whether the use of magnetized ink was proposed by NADRA for obtaining thumb-impressions of the electors on the counterfoils and pictorial electoral rolls during the poll and whether the same was approved by the ECP and purchased for its use and if the same was purchased whether it was used at the polling stations during the poll for this purpose. The secretary, ECP was asked by this Tribunal to produce such record through its witness before this Tribunal. On this one Mr. Muhammad Saeed, Deputy Director, Establishment, ECP, Islamabad, was examined vide Exhibit O-2 who also produced the relevant report in respect of approval of the ECP regarding use of magnetized ink and the inkpad during the poll of General Election held in 2013, the proposal of NADRA in respect of magnetized ink and inkpad and the properties of the magnetized ink that was to be used during the poll, the approval of the ECP in respect of the said proposal, purchase of the said ink from Pakistan Council of Scientific and Industrial Research (PCSIR) Islamabad and the supply of the magnetized ink by PCSIR at all the provincial HQs for further transmission to the District Returning Officers and Polling Stations. These documents are at Exhibits O-2/1 to O-2/13.
38. The learned counsel for the petitioner has argued that out of 65511 counterfoils which were sent to NADRA for forensic examination only 29219 could be verified whereas the remaining counterfoils could not be verified for different reasons which is a proof of the fact that bogus voting had taken place at these polling stations and the election process was sham which cannot be relied upon for the purpose of fair and transparent process for declaring any person as an elected representative of the people of PS-33 Khairpur under the Act, therefore, the election of the returned candidate is liable to be declared as void declaring the petitioner as a returned candidate. He has alternatively contended that this Tribunal may declare the election as a whole void under section 70 of the Act as the two conditions that required to be fulfilled before such declaration i.e. firstly that any person has failed to comply with the provisions of the Act or the rules framed thereunder or extensive corrupt or illegal practices had prevailed in the election and; Secondly, on that account the election has been materially affected and in this case on account of mass rigging by the returned candidate so also on account of non-compliance of the provisions of section 33 of the Act, the election has been materially affected and may be declared as whole void. He has relied upon the case of Anwar Saifullah Khan v. Haji Muhammad Kabir Khan, 2000 MLD 46, Asif Manzoor Mohal v.
39. Muhammad Yaar Mamoonka and 4 others, 2007 CLC 368, Sayidzada Muhammad Nazeer Sultan v.
40. Saima Akhtar Bharwana and others PLD 2007 Lahore 141, Sardar Muhammad Saleh Gopang v.
41. Sardar Allah Buksh Jalbani, 1986 MLD 2320 and Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Looni and 13 others, 1999 SCMR 284.
42. On the other hand the learned counsel for the returned candidate contended that out of the total counterfoils which were examined by NADRA having thumb-impressions of voters only 118 thumb- impressions failed authentication, therefore, the report of the NADRA doesn't support the petitioner's allegation that there was rigging during the election process which is a sacrosanct process under the law and the result thereof cannot be declared as void. He contended that there is nothing in the report that the thumb-impressions of the bad quality were not of the genuine voters because they couldn't be verified on account of the quality of the ink used for obtaining these thumb-impressions which was either not magnetized or was not having any such properties that had been proposed by NADRA and approved by the ECP for which the returned candidate can't be blamed and the result of the election cannot be overturned on the basis of mere assumption, conjectures and surmises. In respect of 12818 counterfoils which did not qualify for fingerprint matching for different reasons as mentioned above he submitted that there was no such allegation in the petition and that NADRA was not directed by this Tribunal to segregate these counterfoils, therefore, NADRA has travelled beyond its mandate under section 46 of the Act and this report cannot be taken into consideration.
43. I have carefully considered the above argument in the light of the record.
44. The petitioner in his petition as well as in his affidavit in evidence has alleged mass rigging at 74 Polling Stations from where the returned candidate got lead over him. These polling stations were mentioned in the petition. The returned candidate has also alleged similar type of rigging at 17 polling stations of Taluka Nara from where petitioner got majority of votes and therefore with the consent of the parties and their advocates the counterfoils of the used ballot-papers in respect of these 91 polling stations as well as used pictorial electoral rolls and statements of count (Form XIV) were forwarded to NADRA for verification of thumb-impressions of the voters thereon obtained by the Presiding Officers before handing over the ballot-papers to them to cast their votes in terms of section 33 of the Act. NADRA had such technology and capacity to verify these thumb-impressions from the bio-metric data available with it in respect of National Identity Cards issued by it to the citizen of Pakistan.
45. It has been mentioned in the report, Exh.O-1/1, that NADRA is the only statutory authority established under section 3 of the National Database and Registration Authority Ordinance, 2000 and issuance of National Identity Cards to the citizen of Pakistan is its statutorily mandate under sections 9 and 10 of NADRA Ordinance and particulars furnished by every citizen are required to be duly attested under NADRA (Application for NIC) Regulations, 2002. Similarly registration with NADRA is mandatory for every citizen and violation of this legal duty along with provision of false particulars and false attestation/verification are punishable offences under section 30 of NADRA Ordinance.
46. The data acquired by NADRA from citizens at the time of their registration includes their fingerprints which together constitutes the citizen database as provided in section 7(a) of the NADRA Ordinance. The particulars contained in the NIC of the citizen, as saved in and extracted from the Citizen Database has evidentiary value under section 19(4) of the NADRA Ordinance as proof of identity of the citizen as established from the contents of NIC which includes, inter alia, fingerprints/the thumb-impressions.
47. In this report, Exhibit O-1/2, NADRA has provided details with regard to the process of thumb verification it carried out and it is mentioned, inter alia, that on the receipt of the election material from the Tribunal the same is scanned and loaded into a database to preserve it in electronic form.
48. This operation was performed using auto feed high-speed scanners at the desired image quality of 400 dpi. After the scanning the digitization operation commenced wherein NIC No. was captured and fingerprints/thumb-impressions were electronically extracted from scanned images and then as the third step fingerprints/thumb-impression were sent to AFIS of NADRA for authentication/verification against their respective record held against their NICs. AFIS is a software solution/system which has capability to accurately compare to match fingerprint/thumb-impression and verify their authenticity. This process has three logical conclusions i.e. (A)Fingerprints passed authentication (B)Fingerprint has failed authentication.
49. (C)Finger prints are of bad quality and cannot be compared through AFIS.
50. In its findings it has been mentioned that the election material of 91 polling stations was received and the above process was carried out. As a result 29219 thumb-impressions were authenticated by AFIS, 118 votes failed authentication. In respect of 23356 fingerprints of bad quality it has been mentioned that these used counterfoils could not be processed due to poor quality of fingerprints because NADRA had proposed to the ECP certain features of the ink to be used for capturing finger prints at the time of issuance of ballot-papers and the ink should have five properties mentioned in the report and the inkpad should be used that provides constant flow of ink, should create high quality and non-smear and clumping impressions and other qualities, therefore it seems that these mentioned qualities were not possessed by the ink used during the polling. These as well as others mentioned in the report were the reasons for non-verification of thumb-impressions on the pictorial electoral rolls used at these polling stations that were bearing thumb-impressions of the voters.12818 counterfoils did not qualify for fingerprint matching as they were not falling within the purview of this analysis for to numerous reasons.
51. The above evidence in respect of competence of NADRA with regard to examination of thumb- impression of electors on these counterfoils and the efficiency of AFIS for this purpose has remained undisputed by both the parties, therefore the same cannot be discarded on any point except on the point of magnetized ink and for this purpose it is necessary to determine whether ECP had decided to use magnetized ink during the election process at the time of polling to extract thumb-impression of the voters and whether the NADRA had proposed such ink as per above report having the same properties mentioned therein and whether Election Commission had approved the proposal of purchase of the ink and did provide the same to the election staff for its use during the poll for the said purpose. In this regard the Deputy Director ECP, Mr. Muhammad Saeed was examined. He was the relevant official of the Election Commission who was responsible for handling the entire process from approval to the purchase of magnetized ink and magnetized inkpads by the ECP. He has produced the minutes of the meetings of ECP dated: 27th September, 2011 which was presided over by the then Chief Election Commissioner, Mr. Justice (R) Hamid Ali Mirza during which it was decided vide "Item No. (II) of the agenda of the meeting "that the Commission approved the proposal regarding obtaining thumb-impressions in magnetized ink in the space to be provided for the purpose for the electoral roll against the photograph of the voter.
52. The Commission directed the officer to develop a proposal for amendment for the relevant provision of law regarding use of magnetized ink instead of normal ink and for obtaining thumb- impression on the space provided on the new roll before issuance of ballot-papers to the elector by Presiding Officers. Besides, proposal be made for amending the relevant rules accordingly after legislation is done by the parliament in the law". On the basis of above decision and in reply of a letter of the Election Commission of Pakistan, The DG NDW, NADRA Syed Muzaffar Ali vide his letter dated: 12th September, 2012 informed to Mr. Muhammad Saeed, Deputy Director (GS), (the Witness), that "with reference to the letter No.F4(6/2012-GS dated: 10th September, 2012 the sample "B" looks much closure to desire specification(comparison result shown in Annex-A) Following points were observed.
53. (1)Fast Dry Sample magnetic ink is a fast dry solution.
54. (2)Retains original shape By overlapping of paper it retains its original value of shape.
55. (3)Quality Impression Quality/figure impression taken through this ink is better than others.
56. (4)Non-Delible The sample magnetic ink is not water resistant (The stain disappears from skin after washing fingers)
57. Conclusion: Sample "B" is recommended for use in electoral process unless Election Commission of Pakistan doesn't intend to use indelible ink in inkpads".
58. Mr. Muhammad Saeed has admitted in his evidence that this sample was approved by ECP and such intimation was conveyed by him through Director-General, PCSIR vide letter dated: 28th February, 2013and 2nd March, 2013, at Exhibits O-2/2 and O-2/3. He further deposed that a meeting was held in the ECP in which DG, NADRA Syed Muzaffar Ali, Dr. Nighat Afzaal, Chief Scientific Officer of PCSIR and Additional Secretary, ECP participated. A letter dated: 22 February, 2013 written to the DG, PCSIR Lab. by him in this regard is at Exhibit O-2/4. He further admitted that a note was put up after the meeting to the ECP by Mr. Shaukat Hussain, Assistant Director, (GS) in respect of the meeting and Additional Sec, ECP who had presided over the said meeting had mentioned in the note that "the Sample 1 of PCSIR is as per NADRA Sample B stands approved" which note was approved by Secretary, ECP as well as the Chief Election Commissioner and the members of the Election Commission of Pakistan, the note is at Exhibit O-2/5. It has come in his evidence that the order to supply the magnetized ink as per sample of the PCSIR was placed to DG PCSIR on 1st March, 2013 to provide the magnetized ink as well as indelible ink for the use in the conduct of General Election 2013 vide supply order Exhibit O-2/6. He also produced specification of magnetized ink provided by the PCSIR as Exhibit O-2/7 in the meeting dated: 25th March, 2013 a decision was taken, regarding purchase of inkpads casing from "MARCO" as Exhibit O-2/8. All the Provincial Election Commissioners were informed by him through letter Exhibit O-2/9, wherein they were directed to use magnetized ink as per details mentioned therein. The Deputy Director, Election Commission Sindh Karachi, vide his letter Exhibit O-2/10 circulated this direction to all the Returning Officers and District Returning Officers. All the details in this regard has been mentioned by the witness, Mr. Muhammad Saeed in a note, a copy of which is at Exhibit O-2/11. He has also produced his letter dated: 27th August, 2013, Exhibit O-2/13 in which the DG PCSIR was informed that huge quantity of magnetized ink stamp pads would be required for general election and the good quality inkpads with essential characteristics after approval of NADRA would be manufactured by PCSIR Lab., Karachi.
59. During the cross-examination by the Tribunal he has admitted that the ECP was in the knowledge of the fact that the NADRA has reported after verification of thumb-impressions on the counterfoils to this Tribunal that the magnetized ink was not used for the purpose of obtaining thumb- impression of the votes by the Presiding Officers on the counterfoils during the polls. He has also admitted that no inquiry has been held by the Election Commission of Pakistan to confirm whether the PCSIR had supplied the magnetized ink and the inkpad as per sample approved by NADRA and purchased by the ECP. He has also admitted that no standard operating procedure (SOP) was issued by the Election Commission of Pakistan before the poll to ensure that PCSIR had supplied the magnetized ink as per approved quality at the time of bulk supply to the Provincial Election Commissioners including Sindh and that there was no random checking of the magnetized ink by the Provincial Election Commissioner with regards to is quality to ensure the supply was in accordance with the approved sample by the ECP. He has further admitted that no inquiry was held by the ECP from PCSIR that whether it had supplied the magnetized and the inkpads to the Provincials Election Commissioners in accordance of the approved sample of such ink by the ECP.
60. He has also admitted that NADRA through Syed Muzzafar Ali, DG NDW was not informed in respect of the note dated: 27-2-2013 Exhibit O-2/5 in which Mr. Afzal Khan Additional Secretary, ECP had mentioned that Sample 1 of PCSIR was as per NADRA Sample "B" stood approved. He has also admitted that minutes of the meetings dated: 27th February, 2013 chaired by Mr. Afzaal Additional Secretary, ECP were not prepared. Here an important question remained unanswered as to how the two samples of the magnetized ink i.e. one approved by NADRA and the other suggested by PCSIR were compared and approved to be the same.
61. The above evidence however proves that the ECP had approved a sample of the magnetized ink as per proposal of NADRA but there is no proof that the PCSIR had supplied the ink in accordance with that sample and the ECP has not held any probe in this regard to determine the actual facts. The election petitioner was relying heavily upon the process of forensic verification of thumb- impressions through NADRA but NADRA has been unable to verify huge number of such thumb- impressions because of the their bad quality on account of the ink used during the poll for this purpose which was either not at all magnetized or it was having no such properties as approved by the ECP on the recommendations of NADRA. Had there been use of magnetized ink during the poll process the situation would have been different with regard to the verification. Therefore, it can be held that public revenue spent by the ECP on this head has been lost and the desired credibility on the verification process of thumb-impression could not be achieved that could be an effective deterrent against bogus voting in the future elections. This Tribunal is of the view that the ECP can still hold an enquiry on the subject to determine the actual facts and to bring the culprits before the court of law.
62. Now coming to findings given in the report of NADRA. 65511 counterfoils which were sent to NADRA were of the ballot-papers used at 91 polling stations which include 74 polling stations highlighted by the petitioner (First category) and 17 polling stations highlighted by the respondent No.1 (Second category), Out of them only 29219 have been verified as of the genuine voters whose NIC numbers were mentioned on the counterfoils. These figures are in respect of both categories of polling stations. The first category of the polling stations comprises from Polling Station No.1 to Polling Station No.110 whereas the second category of polling stations in Taluka Nara comprises from Polling Stations No.111 to Polling Station No.127. On the basis the counterfoils' serial Nos. in respect of those 12818 counterfoils which did not qualify for thumb-impressions verification on account of multiple CNIC, Invalid CNIC and without fingerprints one will find that in the first category of polling stations the multiple CNIC bearing counterfoils were 480 out of 1322 such counterfoils whereas the remaining 842 counterfoils were in respect of 2nd category of polling stations, similarly the counterfoils having invalid CNIC Nos. were in all 11323 counterfoils out of which 8683 counterfoils were in respect of lst category of polling stations whereas the remaining 2640 were from the 2nd category. Similarly, out of total 173 counterfoils that were having no thumb-impressions, 130 counterfoils were from 1st category of polling station and the 43 were from the 2nd category. These figures have been tabulated from Exhs.O-1/7 to O-1/9.
63. Now coming to the effects of this report on the result of the election of the said constituency. In this regard it is settled view of the Hon'ble Supreme Court that if substantial compliance of the provisions of section 33 of the Act in respect of counterfoil concerning the officers concluding the elections has been made then such vote cannot he rejected by an Election Tribunal. In this regard the following ratio laid down by the Hon'ble Supreme Court in Abdul Hafeez Khan's case, supra, will be sufficient:--- "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.
64. 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.
65. 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."
66. Here in this case admittedly the petitioner did not opt to apply for the audit of the ballot-papers used at any polling station of the constituency under section 46 of the Act but only the counterfoils of used ballot-papers of 74 polling stations that were sent to NADRA for thumb verification through AFIS along with the counterfoils of ballot-papers of the other 17 polling stations as requested by the returned candidate. Section 33 of the Act prescribes the voting procedure during the poll at a polling station to be adopted by the election officials notified by the Returning Officer. It directs, inter alia, that where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot-paper to him but before that the Presiding Officer is to satisfy himself about the identity of the elector which can only be determined through the identity card provided to the elector by NADRA under the NADRA Ordinance, 2000. After completing the other requirements as provided in section 33 and mentioned in its subsections (2)(b) to (2)(d) the Presiding Officer himself is to fulfil certain requirement as mentioned in subsection 2(e) that he is to record on the counterfoils of the ballot-paper the number of the elector on the electoral roll, the number of the NIC of the elector and to stamp with the official mark, sign it and obtain on it the thumb-impression of the elector. The elector will be refused the issuance of the ballot-paper. If he fails or refuses to produce his Identity Card provided by NADRA or refuses to put his thumb-impression on the counterfoil or his thumb bears traces of its already been used for putting an impression as provided in subsections 33(a) and (c) of the Act.
67. There is no specific allegation on behalf of the petitioner that the Presiding Officers of the 74 polling stations had issued the ballot-papers to the electors without complying with the requirements of section 33 of the Act in respect of counterfoils. If these counterfoils were not having the NIC Nos. of the electors, or the thumb-impressions it could be for many reasons including human error of the Presiding Officers and the petitioner's polling agents at these polling stations could object to it at the time of voting which they did not do and not only the agents of the petitioner but the agents of the other contesting candidates.
68. Since there is no allegation that these 'counterfoils had no stamp with the official mark or signature of the Presiding Officer therefore it cannot be held that substantial compliance of section 33 of the Act has not been made, hence the same have no effect. His allegation was only that fake voting was done at the 74 polling stations by the workers of the returned candidate by capturing and making hostage the election staff at these polling stations and marked the ballot-papers on the symbol of the returned candidate but as held in the previous issues that these allegations could not be proved by the petitioner, therefore, it cannot be said that the genuine voters did not appear at the polling stations highlighted by the petitioner to cast their votes. However, the NADRA's report, Exh.04/2, shows that there were only 118 counterfoils on which the thumb-impressions failed authentication test, whereas 29219 thumb-impression of the electors on these counterfoils used at the total 91 polling stations were successfully authenticated. Out of these, 21518 counterfoils were in respect of the first category of polling stations highlighted by the petitioner and 7701 were the counterfoils of used ballot at the second category of polling stations, Annex. C to Exhibit O-1/2.
69. As mentioned above the report of the NADRA is in respect of the counterfoils of used ballot-papers and not in respect of the ballot-papers used at these polling stations either in favour of the returned candidate or the petitioner.
70. The counterfoils on which there were thumb-impressions of bad quality as found by NADRA cannot be invalidated by this Tribunal because there is no tangible evidence that these thumb- impressions were not of the genuine voters as the NIC Nos. mentioned thereon were of valid voters of the constituency and there was no other discrepancy or violation of section 33 of the Act, therefore, presuming under section 129 of the Qanun-e-Shahadat Order, 1984, illustration (e) it can be held the polling staff had performed their acts in the regular manner and until and unless the petitioner prove otherwise through tangible evidence these votes cannot declared fake because of non-authentication of their thumb-impressions by NADRA on account of the fact magnetized ink was not used and therefore their AFIS system could not recognize them whereas, substantial compliance of the section 33 of the Act was made. In this situation it cannot be held that the result of the election has been materially affected on account of violation of any provision of the Act or the Rules in term of subsection (a) of section 70 of the Act. The issue is therefore decided is negative.
71. ISSUE NO 5.
72. The upshot of the above discussion is that the petitioner has failed to prove any ground taken by him in this petition to declare the election of the returned candidate as void under section 68 or as the election in the constituency as a whole void under section 70 of the Act, therefore the petition is dismissed under section 67 of the Act with costs.
73. In view of the observation made in this judgment regarding an enquiry to be conducted by the ECP on the supply and use of the magnetized ink during the election, a copy of this judgment be forwarded to the Secretary, ECP, Islamabad for his information and necessary action.