Mazhar Alam Khan Miankhel, CJ.--Through this single judgment in Election Appeal No, 01-P/2014, we propose to dispose of the connected. Election Appeal No, 02-P/2014 also, as both the appeals arise out of one and the same judgment of the Election Tribunal dated 20.05.2014.
2. The appellants in both the appeals along with 38 others, respondents contested the election to the National Assembly from Constituency No, 39 (Tribal Area-IV Orakzai Agency) held on 11.05.2013.
According to the result notified by the Election Commission of Pakistan, Syed Ghazi Gulab Jamal, appellant in Appeal No, 01-P/2014 (hereinafter called as the appellant) was declared as returned candidate having secured 7922 votes as against Jawad Hussain, appellant in Appeal No, 02-P/2014 (hereinafter called as the respondent), who secured 7726 votes. The respondent questioned the returned candidature-ship of appellant by filing an Election Petition under Section 52 of the Representation of Peoples Act, 1976 on the ground of committing corrupt practices, which was contested by the appellant. The appellant filed an application before the Tribunal for summary dismissal of the Election Petition but the same was rejected; where after the impugned order of the Tribunal was challenged before this Court in Writ Petition No, 3032-P/2003, which too was dismissed on 6.3.2014. The appellant further challenged the impugned orders before the apex Court but withdrew the same, as an issue in this regard was already framed by the Election Tribunal.
3. After filing of the written statement by the appellant, the Election Tribunal framed the following issues in the case:--
1. Whether the election petition, for non compliance of the provision of Section 54 and 55 of the ROPA, 1976 and the rules made thereunder is not maintainable? OPR
2. Whether the petitioner has no locus standi and no cause of action? OPR
3. Whether the election of returned candidate/Respondent No, 1 has been procured by corrupt or illegal practice? (OPP).
4. Whether corrupt practice/illegal practice was committed by the returned candidate or by any other person with the connivance of Respondent No, 1 ? (OPP).
5. Relief.
' The respondent in support of the Election Petition examined Baseer Khan, Political Agent as PW.1, recorded his own statement as PW-2, Khaista Sher (Presiding Officer Polling Station No, 30) CT, Government High School Mushti Bazar (PW.3), Dr. Fazal Hadi, (Presiding Officer Polling Station No, 12)
Medical Officer (PW.4) and Ehtiramul Hag (Presiding Officer Polling Station No, 13) SST (PW.5). The request of respondent to summon P.Ws/Presiding Officers of Polling Station Numbers 6, 28, 31 and 52 as 'Court witnesses' was declined by the Election Tribunal vide order dated 16.04.2014, however, Mahmood Aslam, former Political Agent Orakzai Agency/Returning Officer was summoned and examined as a Court witness.
4. In rebuttal to the stance of respondent, the appellant recorded his solitary statement as RW-1.
The learned Election Tribunal vide judgment/order dated 20.05.2014 partly accepted the election petition and the election results qua Polling Station No, 12 (IDPs Camp Muhammad Khwaja PS-1) and Polling Station No, 13 (IDPs Camp Muhammad Khwaja. PS-2) were set aside. Accordingly, the Election Commission of Pakistan was directed to hold re-polling at the said two Polling Stations in accordance with law and after reexamining 297 rejected votes by the Returning Officer (in presence of the parties/their duly authorized representative), the candidate securing over all maximum votes may be notified as a returned candidate. The ECP Notification No, F.2 (40)/2013- Cord dated 05.06.2013, as to membership of the appellant would be subject to the result of (i) re- poll in the aforesaid two polling stations and (ii) reexamination of the rejected votes by the Returning Officer.
5. The appellant (returned candidate) is aggrieved of the impugned judgment/order of the Election Tribunal to the extent of re-election in the two Polling Stations No, 12 and 13 whereas the respondent (appellant in the connected Appeal) has prayed for modifying the judgment of the Election Tribunal directing the Election Commission to recount the ballot papers of all the Polling Stations especially Polling Stations No, 12 to 17, 19, 24 to 32, 35, 38, 40 to 42 and 47 with a further request that the thumb impressions on the counterfoils be also verified through NADRA.
6. Learned counsel for the appellant argued that the Election Petition of respondent was not maintainable under Sections 54 and 55 of the Representation of Peoples Act, 1976, as neither any annexure nor schedule was delivered to the appellant nor were the same containing full particulars of any corrupt or illegal practices and only general nature of allegations were leveled for committing corrupt and illegal practices. The learned counsel also questioned the impugned judgment of the Election Tribunal to the extent of re-polling in Polling Stations 'No, 12 and 13 as well as re-examining 297 rejected votes by the Returning Officer in presence of the parties or their duly authorized representatives, as the polling at these polling stations was held in accordance with law and the rules, that ballot papers were counted in presence of the polling agents, polling staff, staff of Pakistan Army and other law enforcing agencies and that Form-XIV in respect of each polling station was prepared in presence of the aforesaid persons where after sealed bags with such statements were handed over to the Returning Officer. The Returning Officer in his statement before the Court has stated that he recounted the ballot papers of Polling Stations No, 12 and 13 on the request of respondent and rejected 2060 ballot papers of the appellant. The said exercise was without any comprehensive written order. The learned counsel also submitted that the respondent has only produced polling officers of the said polling stations and then made a statement that he does not want to produce other witnesses. The learned counsel concluded that for not complying with the provisions of Sections 54 and 55 of the Representation of Peoples Act, 1976 the election petition of the respondent was not maintainable and that the impugned order of the Election Tribunal to the extent of re-polling in Polling Stations No, 12 and 13 is not sustainable' in the eyes of law because for re-polling the Tribunal was required to have justified its decision within the parameters of law. The learned counsel in support of his arguments placed reliance on the cases of Harchand Rai vs. Manga Ram (1986 CLC 985), Muhammad Zahir Shah Khan & others vs. Nasiruddin & others (1986 CLC 2463), Muhammad Shafi vs. Muhammad Usman Khan Noori (1986 MLD 2112), Haji Nannay Khan vs. Muhammad Aslam Mujahid (1986 MLD 2253), Capt. Syed Muhammad Ali vs. The Returning Officer, P.S 89, District Courts, Karachi (1999 CLC 2039), Muhammad Aslam Mujahid vs. Mahmood Ahmad QureshI and 9 others (2003 YLR 3021), Asghar Ali vs Sardar Khan Rajput & another (PLD 1959 SC 91), Khan Muhammad Khan Khattak vs. S.M. Ayub & 2 others (PLD 1973 SC 160), Syed Saeed Hassan vs. Pyar AU & 7 others (PLD 1976 SC 6) and N.C. Zeliang vs. Aju Newmai & others (1985 PSC Cases 1400 Civil).
7. On the other hand, learned counsel for the respondent (appellant in E.P. No, 02-P/2014) submitted that the objections raised by the learned counsel for the appellant have been duly met with by the Election Tribunal. Issue No, 1 regarding non-compliance of the provisions of Sections 54 and 55 of the Representation of Peoples Act, 1976 has been decided against the appellant. According to him, the respondent had moved an application under Section 46 of the Act ibid for recount of the ballot papers of the entire constituency especially Polling Station Nos. 2, 12, 13, 14, 15, 16, 17, 19, 24, 25, 26, 27, 28, 30. 31, 32, 35, 38, 40, 41, 42 and 47 but the said application remained undecided even after the parties had produced their evidence; that the respondent in his election petition as well as application had given full details of the illegalities and irregularities as well as corrupt practices committed during the process of the election and had made specific allegations about bogus and fabricated votes; that the recount of ballots at Polling Stations No, 12 and 13 resulted in rejection of as many as 2060 votes polled by appellant (Respondent No, 1 in the election petition) and as such the recount at remaining polling stations was all the more necessary but the learned Election Tribunal has failed to appreciate this aspect of the case as there was a difference of 196 votes only; that when the Election Tribunal itself has come to the conclusion that illegalities and irregularities had been committed during the course of election; thus ordering re-poll at two polling stations and recount of the rejected votes is not a fair decision and in the circumstances and material on record the Election Tribunal should have ordered the re-count of the whole ballots cast in the election. The learned counsel concluded that under Section 70 of the Act, if the election is declared as void then the whole election would be declared as such and not in parts. The learned counsel thus prayed for modifying the impugned judgment of the Election Tribunal and recount of the ballot papers cast at all the polling stations and that the election of appellant (Respondent No, 1) be set aside and the respondent (appellant in E.P. No, 2-P/2014) be declared as elected candidate from National Assembly Constituency No, 39 (Tribal Area-IV Orakzai Agency). The learned counsel placed reliance on the cases of Shradha Devi vs. Krishna Chandra Pant & others (AIR 1982 SC 1569), Sheikh Iftikhar-ud-Din and another vs. District Judge, Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others (2002 SCMR 1523), Malik Irshad Hussain and another vs. Muhammad Ashraf Nagra and 12 others (2003 YLR 812), Sahibzada Muhammad Nazeer Sultan vs. Saima Akhtar Bharwana and others (PLD 2007 Lahore 141) and Mehr Khaliq Yar Khan vs. Ch.Ghayas Ahmad Mela and others (2011 CLC 1515).
8. Learned counsel for the parties were heard and record of the case was perused.
9. So far as the preliminary objection raised by the appellant for dismissal of the Election Petition under Section 63 of the Act is concerned, it may be mentioned that such an objection was ruled out by the Election Tribunal in the initial stage of proceedings. The said order was challenged by the appellant by filing W.P. No, 3032-P/2013. The objection of the appellant was found not sustainable in Para. 19 of the judgment of this Court dated 06.03.2014, which reads as under: "The plain reading of Section 54(b) of the Act ibid would make it clear that copy of the election petition be personally or by registered post be served on each of the respondent. Failure to comply with this requirement of law would lead to the dismissal of election petition under Section 63(a) of the Act ibid. This penal clause in Section 63(a) of the Act ibid makes-its compliance necessary and mandatory. Provisions of Section 54(b) of the Act ibid don't refer to sending of the schedule and annexure to the respondents. It is the requirement, provided under Rule 1 of 1985, which lays down the procedure before the Tribunal and though word 'shall' has been used but its non-compliance doesn't refer to any penal provision and this alone will be sufficient to hold that it is directory in nature. By refusing summary dismissal, the learned Tribunal has exercised ifs jurisdiction strictly in accordance with the settled law and this would never invite any interference by this Court and this Writ Petition No, 2032-P/2013 is liable to dismissal."
' The said point was again considered by the Election Tribunal in its impugned judgment dated 20.05.2014 in the light of the judgment of the august Supreme Court of Pakistan, reported as Sardar Abdul Hafeez Khan vs. Sardar Muhammad Tahir Khan Lone & 13 others (1999 SCMR 284). The Election Petition was found having comprehensively incorporated the details of the allegations in Paragraphs A to J, which revealed that the grievance of the petition with regard to failure of the election functionaries to comply with the 'Act' and the rules have pleaded with sufficient particularity so as to constitute due compliance of the provisions of Section 55(1)(b) of the Act. This Court has also expressed its view about the point in question and, therefore, will hold the same view in the facts and circumstances of the instant case.
10. The Returning Officer Mahmood Aslam (Political Agent), who had actually conducted the election, was summoned by the Election Tribunal as a Court witness. As per his statement, 1690 votes were polled at Polling Station No, 12 and 1859 votes at Polling Station No, 13, according to Form-XIV submitted by the Presiding Officers. On 12.05.2013, concerns were shown by various sources including contesting candidates about polling results of the above 02 polling stations and an application for recount was also received. Taking a notice of concerns and recount application, it was decided to recount the polled votes in the light of authority under Section 39 of Representation of People Act, 1976, in presence of the contesting candidates, their representatives, monitoring team officers and other officer of various departments of Orakzai Agency. On 13.05.2013 about 11.00 a.m. During recounting of ballot papers of the above two polling stations, it was noticed by all participants that the ballot papers were marked at multiple symbols in books form which clearly reflected that all of them were fakely marked by someone. The learned Election Tribunal found that according to the Result of Count on Form-XVII (copy Ex.PW.2/2), 297 votes were reportedly rejected by the Presiding Officers in the remaining Polling Stations but the Returning Officer did not specifically deny the contention of the petitioner regarding his omission to inspect and count the rejected ballot papers at the time of consolidation of results in terms of Section 39(3) of the Act. It was thus established that not only corrupt and illegal practices were committed in Polling Stations No, 12 and 13 but the rejected votes in other Polling Stations were also not scrutinized by the Returning Officer by exercising his powers under Section 39(3) of the Representation of People Act, 1976 and Rule-26 of the Representation of People (Conduct of Elections) Rules, 1977, as the returned candidate has won the election with the margin of 196 votes only. There is thus no force in the argument of the learned counsel for the appellant that the impugned judgment of the Election Tribunal for re-polling in Polling Stations No, 12 and 13 as well as recount of, the rejected votes is suffering from any patent illegality apparent from the record.
10. The respondent (election petitioner) in support of his election petition produced the Presiding Officers of Polling Stations No, 12, 13 and 30. PW-3 Khaista Sher was the Presiding Officer in Polling Station No,
30. He in reply to a Court question stated that the figure "30" was inadvertently written by him in count of votes of female voters, which on recount were 300; hence the same was corrected and he duly initialed the same. PW-4 Dr. Fazle-Hadi was Presiding. Officer of Polling Station No,
12. He in his cross-examination admitted the change of words in Column No, 6 of FormXIV and stated that he had also not thumb impressed the said Form. He was also not in a position to answer the Court question about encircling the total number of votes in Form-XIV and the word "rejected" written there against. PW-5 Ihteramul Haq was the Presiding Officer of Polling Station No,
13. He in his cross-examination admitted that in Form-XIV (Ex.PW5/1) the figure "73" was inadvertently written, which in fact was to be written as "737" but he omitted to write figure '7' with it.
The respondent (election petitioner) in his statement admitted that he in support of his election petition and the allegations contained therein did not append the affidavits of any voter, polling agent or polling staff and that except the names of Presiding Officers, the names of no other witness was mentioned in his list of witnesses. The above deposition of the two Presiding Officers of Polling Stations No, 12 and 13, if are seen in the . Light of the statement of Returning Officer (CW-1) would lead one to the conclusion that some rigging had taken place therein. As per statement of the Returning Officer (CW-1) on receipt of information that the Presiding Officers Muhammad Khawaja Camp were busy in the backside of his office doing something with the polling bags, he decided to open the bags in the presence of concerned staff and parties due to complaints of changing the results.
11. Except the aforesaid evidence, the election petitioner has produced no other convincing evidence with regard to any corrupt or illegal practices in other polling stations either committed by the returned candidate or any other contesting party to the election. The respondent, under the law, was supposed to have led evidence in support of his allegations to justify his prayer with regard to reelection or recount in the entire constituency. It was his burden to prove his case. He throughout the post election process remained confined to three Polling Stations i,e, Polling Stations No, 12, 13, 30 and the evidence so produced by him is also with regard to these Polling Stations. So, we cannot go beyond his evidence.
12. As stated above, the respondent/Election Petitioner himself appeared as a witness as PW-2 in support of his Election Petition before the Tribunal. His statement if seen on the touchstone of burden of proof, then one can hold without any hesitation in mind that he failed to discharge the burden. He has admitted in cross-examination that he neither mentioned the names of his Polling C Agents nor produced anyone of them as a witness before the Tribunal in support of his stance which, no doubt, 'would have been a best evidence in support of his case. He refers to cuttings on forms-XIV and XV in cross-examination as a proof of illegalities and corrupt practices and the learned counsel for Respondent/Election Petitioner referred to many such forms, copies of which were annexed with his Election Appeal No, 02 of 2014. But perusal of the same would reveal that such cutting could only be considered as human errors rectified by the concerned officer with his initials. Presiding Officer of Polling Station No, 30 has explained this position in his statement as PW.3 and copy of the said form XIV confirms the same. In the said Polling Station nothing of the sort was referred to which could be termed as illegal or corrupt practice. So, the only material brought on the record regarding Polling Station Nos. 12 and 13, which could be termed as corrupt practice as defined in Section 78 and illegal practice as defined in Section 83 of the Representation of Peoples Act, 1976 was by the Returning Officer, who was examined as a Court witness and not by the Presiding Officers of the said. Polling Stations, who appeared as respondent witness as PW.4 and PW.5 respectively. So, in view of the above discussion nothing could be said that the Election Tribunal has exercised his jurisdiction against the law or any illegal or misuse of authority was committed by the Election Tribunal in view of the verdict of the apex Court in the case reported as Sardar Abdul Hafeez Khan vs. Sardar Muhammad Tahir Khan Lone & 13 others (1999 SCMR 284).
13. Re-polling or re-count in the entire constituency cannot be ordered by mere allegations without any cogent and valid proof. Reliance can be placed on the case of Dr. Raja Aamer Zaman vs. Omar Ayub Khan (2015 SCMR 890), wherein their lordships have observed as under: Ss. 67, 68 & 70--Power of Electioh Tribunal to declare an election as a whole void-Scope-Non- compliance with provisions of Representation of the People Act, 1976, and Rules framed thereunder by the election staff at some of the polling stations--Effect--Election Tribunal ordering re-polling in the said polling stations but not declaring election as whole void---Legality--Contention of appellant (returned candidate) that, if the Election Tribunal found that there had been a failure to comply with the provisions of Representation of the People Act, 1976, and the Rules framed thereunder during the election process, then under Ss. 67 & 70 of the said Act, Tribunal had to declare the entire election process as void and directed a re-poll for the entire constituency rather than ordering a re-poll in seven polling stations--Validity--Where the failure to comply with the mandatory requirements of the provision of Representation of the People Act, 1976, with regards to the electoral process was limited to a few identifiable polling stations, it was the result of such polling stations which alone stood vitiated and the election conducted in the remaining polling stations, was not contaminated--Where isolating the result of such polling stations in question did not materially affect the result of the election, as a whole, no order of invalidating the election (as a whole) would be called for---However, if the votes cast at the isolated polling stations, where the electoral process had been proved to be vitiated, were excluded from the total tally and as a consequence thereof the originally losing candidate emerged as the victor; then, perhaps it may be appropriate for the Tribunal to declare such a candidate as the returned candidate for the constituency--After excluding results of the contentious seven polling stations in the present case from the final tally of appellant and respondent, it was a mathematical certainty that respondent secured more votes than the. Appellant in the remaining 430 polling stations--Pursuant to the impugned judgment of the Election Tribunal, a re-poll was carried out in the seven polling stations and as a consequence of such a re-poll, respondent secured more votes than the appellant, and was entitled to be declared, as a returned candidate from the constituency--With such a result not only the purpose of the law stood achieved but also the will of electors of the constituency had found its true expression--Impugned judgment of Election Tribunal did not call for any interference-- Appeal was dismissed accordingly.
14. Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not, per se, give rise to a presumption that there was an irregularity or illegality in the counting of votes. In the first instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence. The onus to prove the allegation of irregularity, impropriety or illegality in the election process, on the part of the Election Officer, is on the election petitioner but he has failed to bring on record any such evidence. Merely because some serious allegations have been made in the election petition, it would not be proper to order recount of the entire votes in the Constituency on the premise that no prejudice would be caused to the returned candidate. The case law referred to by both the learned counsel for the parties, in the circumstances of the case, are not applicable; hence not relied upon. The well reasoned judgment of the learned Election Tribunal is thus not open to any exception in the appellate jurisdiction of this Court.
15. So, in this view of the matter, this Court finds that both the Election Appeals are without any merit, which are dismissed and the judgment of the Election Tribunal is hereby upheld.