Dr. ZAFAR AHMED KHAN SHERWANI, ELECTION TRIBUNAL.--- This is an election petition under section 52 of the Representation of the People Act, 1976 (the Act) filed by Syed Ghous Ali Shah, a candidate of Pakistan Muslim League (N), (the Petitioner) against Nawab Ali Wassan, of Pakistan Peoples Party Parliamentarian (the returned candidate) challenging his > election from National Assembly's constituency NA-215, Khairpur, held on 11-5-2013 on the ground of commission of illegal and corrupt practices by him during the poll.
2. The petitioner's case in nutshell is that since announcement of the general election the returned candidate had planned commission of corrupt and illegal practices to procure his election and this fact was brought in the notice of the Returning Officer (RO) by way of a complaint against one Mr. Muneer Ahmed Phulpoto DSP/SP who though was posted at Karachi but had come to Khairpur and had been harassing his voters and convincing/influencing them to cast their votes in favour of the returned candidate. In consequence thereof the RO wrote such letter to the Inspector General of Police, Sindh Karachi but to no avail. He has further alleged that on the polling day the returned candidate with his accomplices armed with deadly weapons had been roaming around the polling stations and making aerial firing in order to cause harassment and uneasiness to prevent his (Petitioner's) voters to cast votes. They attacked Abdul Wahab Morejo and killed him injuring Tahir Imtiaz and his other workers, against which an F.I.R. Was lodged. However, the returned candidate could not be arrested as he made his escape good from the anti-terrorism court when his pre- arrest bail was refused. He has also alleged the bogus voting and illegal harassment, wrongful confinement of the polling staff and snatching of the ballot boxes by the returned candidate. He has also alleged that the staff of polling station Malir Pato had also made such complaint. He has also alleged that even at some polling stations the polling staff was in toe with the returned candidate as the ballot boxes were sealed after filling bogus votes having fake thumb marks thereon, which could be verified from NADRA. He has also alleged that the returned candidate and his uncle, Mr. Manzoor Hussain Wassan, an Ex-Home Minister and who was also contesting election from PS-32 had made the entire district administration crippled which was working on their instructions and had shut their eyes against the commission of the illegal practices. He has also mentioned different instances of such acts at different polling stations in the constituency allegedly committed by the said Mr. Manzoor Wassan and the returned candidate. He has also mentioned different violation of the provisions of the Act committed by the Presiding Officers e.g. They had prepared statement of count (Form-XIV) in respect of different polling stations on plain papers against the Rules framed under the Act. Similarly, he was shown to have obtained 444 votes at polling station, GPS Kumb but in the consolidated statement his votes at the said polling station were shown Zero and conversely, at GPS Nawab Wassan, Female and Male he was shown to have obtained Zero and 08 votes against 1051 and 1081 votes of the returned candidate. He has also mentioned that the incharge of his election cell had forwarded such complaints to the relevant authorities but no heed was paid. He has also mentioned that a detailed complaint was made on the next day of the polling to the RO mentioning the details of highhandedness of the returned candidate. He has prayed that the election of the returned candidate may be declared as void on account of commission of corrupt and illegal practices by him and his agents and he (the Petitioner) being the runner up may be declared as elected.
3. The returned candidate has filed his written statement denying all the allegations pleading non- maintainability of the petition and dismissal of the same on the legal and factual grounds as well.
4. On an application moved on behalf of the petitioner counterfoils of the used ballot papers, the used electoral lists and statement of count (form-XIV) of all the polling stations of the constituency were sent to Nationl Database Registration Authority (NADRA) for forensic examination of the thumb impressions of the purported voters available on the counterfoils and used electoral lists. A summary of the NADRA's report, Exh.O-2/3 is reproduced hereunder:--- SUMMARY S.No Description Count of Votes 1 Election material of 253 x Polling Stations as provided by Election Tribunal174,645 2 Counterfoils did not qualify for fingerprint matching27,373 3 Fingerprints successfully authenticated on used counterfoils and ER47291 4 Fingerprints on used counterfoils failing authentication229 5 Fingerprints of bad quality affixed on used counterfoils resultantly NADRA was unable to decipher then due to99,752 non- utilization of proposed ink beside other possibilities.
However, CNIC number mentioned on such counterfoils having bad thumb impressions were valid CNICs.
5. This tribunal has framed the following consented issues.
ISSUES
1. Whether the returned candidate in connivance with his uncle Mr. Manzoor Hussain, a Minister of the Provincial Government before the caretaker setup in Province and polling staff committed corrupt and illegal practice during the poll?
What should the order be?
6. On the above issues the petitioner has filed his affidavit in evidence vide exhibit P-1 and produced documents vide exhibits P-1/1 to P-1/6. He has also examined through affidavits in evidence his witnesses namely, Muhammad Khan, Exh.P-2, Mrs. Nawab Khatoon, Exh.P-3, Muhammad Shareef Exh.P-4, Safdar Ali Shah Jahania, Exh.P-5, who has also produced his medical certificate and his photographs showing injuries on different parts of his body, Nawab Khan alias Raju, Exh.P-6, who has also produced his medical certificate as Exh.P-6/1, Mr. Ghulam Shabbir Dayo, Exh.P-7 who has also produced record of registration of complaints and Mr. Karim Bux Kubar, his Chief Polling Agent, Exh. P-8 .
7. In rebuttal, the returned candidate has filed his own affidavit in evidence vide Exh.R-1 and produce the documents vide Exhs.R-1/1 to R-1/3. Besides above, 2 Official witnesses namely Mr. Navid Hussain Kolachi the RO was examined to produce the counterfoils of the used ballot papers.
Used electoral rolls, and Form-XIV in respect of all the polling stations in the constituency for forensic examination by NADRA and Mr. Ahmed Waqas Langah, Deputy Director, NADRA was examined vide Exh.O/2 who has produced the relevant documents as Exh.O-2/1 and Exh.O-2/2 along with the report Exh.O-2/3.
8. I have heard the learned counsel for the parties and perused the record.
9. The learned counsel for the petitioner has contended that it was the duty of the Election Commission of Pakistan (ECP) to organize and conduct the election honestly, justly and fairly in accordance with the law and to guard commission of corrupt and illegal practices as obligated under the Constitution but it failed to perform its functions accordingly. He has contended that the returned candidate along with his supporters and workers was openly resorting to the corrupt practices including arassm ent/intimidation to his voters through aerial and direct firing during which one of his voter namely Abdul Wahab Morijo was killed and several workers were seriously injured. He has further contended that the petitioner has proved his case through direct testimony of his witnesses namely Mst. Nawab Khatoon, Muhammed Shareef and Nawab Khan alias Raju Safdar Ali Shah Jahania, Ghulam Shabbir Dayo, and Kareem Bux. He Has further submitted that one of the important witnesses namely Mukhtar Ahmed had been imprisoned in a false case at the instance of the returned candidate and was not produced by the jail authority on the date of hearing for his evidence before this tribunal on the false pretext that he was also to be produced before the ATC Court Khairpur as he was neither produced there nor before this tribunal and the petitioner has been deprived from his testimony in support of the Petition. He has further submitted that the report of NADRA also supports the allegation of mass rigging for securing the election in favour of the returned candidate as out of the 174,645 counterfoils bearing the thumb impressions of the purported voters only 47,291 could be authenticated as of genuine voters. He has, therefore, prayed that the election of the returned candidate may be declared as void under section 68 of the Act and the petitioner as elected under section 69 thereof. He has relied upon the cases of Anada Bachar v. A.R. Khan PLD 1967 Dacca 362, Abdul Hafeez v. M. Tahir Khan Looni 1999 SCMR 284, Zia-ur-Rehman v. The State PLD 1972 Lah. 382, Imran Khan v. Election Commission of Pakistan PLD 2013, Supreme Court 120, PLD 2013 Supreme Court 410, Jam Mashooq Ali v. Shah Nawaz Junejo 1996, SCMR, 426, Sheela B. Charles v. Qaiserl Fraeem Soraya, 1996, SCMR, 1455, Muhammad Abdul Rauf Siddiqui v. Israr Ahmed Abbasi and others, decided by this tribunal and reported as 2014 SCMR 2432.
10. Conversely, the learned counsel for the returned candidate has contended that evidence produced by the petitioner is insufficient to prove the issue and challenged the veracity of the witnesses Safdar. Ali Shah and Nawab Khan alias Raju. He has contended that firstly they have not deposed against the returned candidate and secondly the medical certificates, Exhs.P-5/1 and P- 6/1 in respect of their injuries allegedly caused by one Munawar Wassan were not proved in accordance with the law as the Medical Officer who had issued these certificates was not examined. Similarly, he has contended that the photographs of injuries produced in the evidence by Safdar Ali Shah cannot be relied upon as the photographer who had made these photographs was not examined. With regard to the evidence of the witness Mst. Nawab Khatoon he has contended that she has not deposed a single word against the returned candidate and specially that she had been deprived from her right of vote on account of the alleged firing at the polling station where she went to cast her vote. Similarly, he contended, that the evidence of Ghulam Shabbir Dayo who has claimed to have supervised the complaint Centre on behalf of the petitioner, is also of no use as neither his signature was appearing on the register of complaints, Exh.P-4/1 to show that he had personally received these complaints on the polling day nor even the signatures of such complainants were available to prove the complaints. He has referred the provisions of Article 78 and Articles 85 to 89 of the Qanun-e-Shahadat Order, 1984 and contended that the documents produced by the Petitioner during his evidence which were not the public documents could not be relied upon as their authors were not produced. He, however, has accepted the NADRA's report, Exh.O-2/3 and contended that the same did not prove any bogus voting as out of 174645 counterfoils examined by NADRA only 22 thumb-impressions of the purported voters could not be authenticated therefore, the petitioner has failed to prove the allegation of bogus voting and his petition is liable to be dismissed. He has relied upon the reported cases of Haji Attaullah Baloch v. Asadullah Baloch, 2012 CLC 469, Muhammad Sadiq v. Allah Ditta, 2012 CLC 495, Muhammad Yusuf Khan Khattak v. S.M. Ayub, PLD 1973 Supreme Court 160, Hoshang and others v. Dr. Eddie P. Bharcucha, PLD 1973 Supreme Court 206, Muhammad Hussain Mehanti v.
Abdul Rashid Godil, 2014 CLC 293, Mir Shahnawaz Khan v. Manzoor Hussain Wassan 2014 CLC 1042, Ch. Allah Ditta v. Muhammad Azeem Bhatti 2014 CLC 1051, Abdul Raja Razzak v. Abdul Hakeem Baloch, 2014 CLC 574, Messrs Lahore Electric Supply Co. Ltd. v. Province of Punjab, 2014 CLC 590 and Syed Mashooq Mohiuddin Shah v. Syed Fazal Ali Shah 2014 CLC 1181.
11. I have carefully considered the above arguments in the light of the record.
12. There is a well known maxim "Judicis est judicare secundum allegata et probota" .(A judge ought to decide according to the allegations and proofs). Here the issue raised in the petition is based on the petitioner's allegations on bogus voting as provided in section 83 of the Act tinder the definition of Illegal Practice and undue influence as well as to cause or attempt to cause any person present at the polling station to depart without voting by the returned candidate and other persons on his behalf within the definition of corrupt practice as provided in section 78(2) and (6) of the Act. On the allegation of bogus voting there is no direct evidence on record produced by the petitioner as his major reliance in his petition was on the forensic examination of the counterfoils of the ballot papers used at the polling stations during the poll bearing thumb-impressions of the putported voters and therefore had applied to send the said material to NADRA. Such application was allowed accordingly. But the NADRA's report is inconsequential as a vast number of these counterfoils (99752 out of 174654) were found bearing thumb impression of bad quality, which could not be processed through its Automatic Finger Print Identification System. (Reference, summary of the report Exh.O-2/3). Therefore, the petitioner has not proved the charge of commission of illegal practice.
13. On the allegation of undue influence before the poll by a DSP Munir Ahmed Phulpoto, the Petitioner has filed his affidavit in evidence in which he has repeated almost all the allegations including this as made in his petition, which have been mentioned in the foregoing para No,2, therefore, need not to be reiterated. Besides his oral evidence he has produced a certified copy of his application dated 30-4-2013 submitted to the RO and said to have been forwarded by him to the I.-G. Police Sindh through his letter, dated 1-5-2013, Exh.P-1/1. In this application the petitioner has alleged that though the DSP was posted in Karachi but he was openly harassing and forcing the voters to remove flags of PML(N) and to vote for the PPP candidate. Admittedly no action was initiated by the I.-G. Police including an enquiry to determine its veracity. The returned candidate in his evidence has denied the allegation and deposed very specifically about his ignorance in respect thereof. Hence the petitioner was required to bring some additional evidence to corroborate his allegations but he failed to do so. Out of his 7 witnesses none of them is on this point. He himself even did not take any interest for its disposal to show his seriousness about the issue as he even did not confirm from the IG police about its receipt in his office and any action thereon. Even he did not opt to prove that his application had been actually dispatched to the I.-G.
Police as he chose not to examine any official from the office of the R.O. Or I.-G. Police. Hence the evidence on this allegation is insufficient for want of corroboration that was strongly needed.
14. Next are the allegations with regard to the commission of the corrupt practices by the returned candidate in connivance with his uncle Mr. Manzoor Wassan, a Minister in the provincial government before the caretaker setup in the province and the polling staff on the polling day On these allegations the petitioner has brought not only his evidence but also primary evidence of the relevant persons. Initially the petitioner had filed affidavits in evidence of in all 11 witnesses in support of these allegations including Tahir Imtiaz Phulpoto, Naseer Ahmed and Mukhtiar Ahmed.
Before further discussion it may mentioned here that admittedly on the election day an incident of murderous assault in the constituency by the miscreants had taken place at evening time in which one Abdul Wahab Nrejo was killed by firing and Tahir Imtiaz Phulpoto, the respondent No,9, and one Mashooq Ali Jagiranai were injured. In such F.I.R. The returned candidate, with his accomplices, was also nominated as the accused, but latter on acquitted for lack of evidence as the injured complainant Tahir Imtiaz Phulpoto and another witness Mashooq Jagirani were declared hostile by the prosecution.
15. Out of 11 witnesses named above including Tahir Imtiaz Phulpoto, the petitioner has produced only 7 witnesses. Out of them the witness Muhammed Khan was declared hostile. Out of the remaining 6 witnesses 2 witnesses namely Messrs Ghulam Shabbir Dayo and Karim Bux Kubar, advocates have deposed on general panicky atmosphere in the constituency on the polling day.
However, the evidence of the remaining. 4 witnesses is very curtail and requires to be discussed in detail.
16. The allegation of firing by the returned candidate and his accomplices throughout the polling day during their visit of the polling stations was made by the petitioner in his petition and reiterated in his affidavit in evidence. In his support he has produced corroborative evidence in respect of such firing at the polling station, Primary School Kot Pull, by producing direct evidence of witness Muhammad Sharif, Exh.P-4, which has further been corroborated by Mst. Nawab Khatoon, Exh.P-3.
Muhammad Sharif has deposed that when he visited the Polling Station Kot Pull to cast his vote he saw the returned candidate with his gang, out of them some were having their faces muffled. They all were armed with deadly weapons. They made aerial firing and caused harassment and terror on account of which the petitioner's voters left the polling station without casting their votes. They then moved to the female booth of the polling station immediately adjacent to the male booth and by show of weapons they created havoc on account of which the female voters finding themselves unsecured left the polling station. In his corroboration Mst. Nawab Khatoon, has deposed that she had gone to the said polling station to cast her vote, but on account of the firing at the polling station at the female booth by the persons having their faces muffled she returned back. Their testimony is fully corroborative with each other in all respect. During their cross-examination nothing has been brought to discredit the same. Mere fact that they were voters of the petitioner cannot be a ground to discard their testimony until and unless there is tangible evidence on the point of their malice or ill will against the returned candidate. They were natural witnesses and not the setup or professional witnesses. In the written statement or even in his affidavit in evidence the returned candidate has not challenged their credibility or veracity while denying therein informally their affidavits in evidence. When he had denied the allegation of the petitioner he too could have bring any material against them to challenge their evidence.
17. On the allegation of undue influence the petitioner's case, as mentioned in the petition as well as in paras 12 and 13 of his affidavit in evidence, was that the returned candidate had caused injuries to his workers by beating severely. On this, besides the evidence of the petitioner there is direct evidence of the 2 witnesses namely Safdar Ali Shah and Nawab Khan alia Raju, his voters. Both of them have very specifically and categorically deposed that they were voters at PS Middle School Mithri and supporters of PML(N). On the polling day when they were at the polling station for exercising their right of vote they were forcibly taken away by the Wassan Party led by Munawar Wassan, (the respondent No 15) armed with deadly weapons, in a vehicle. They were confined for 3 days in a godown behind his bungalow in his village. During that Munnawr Ali Wassan and his men had severely beaten them and then handed over to the Kotdiji Police where they were booked in false cases. Those cases were later on disposed of under "Cancel Class". They have also mentioned in their affidavits in evidence that their F.I.R. Against this was not registered in spite of such order by the court, Khairpur. Both of them have produced medical certificates in support of their oral testimony to prove injuries. Besides this, witness Safdar Ali Shah has also produced his 4 photographs showing physical injuries on his person, Exh.P-5/2-1 to Exh.P-5/2-4. These witnesses were cross-examined by the learned counsel for the returned candidate at length but not a single contradiction in their statements has been brought to discredit their veracity. It was never alleged on behalf of the returned candidate that either the polling station Mithri was not included in the constituency of NA-215 or they were not the voters registered at the said polling station.
18. The argument of the learned counsel for the returned candidate that since the medical officer who had issued the medical certificates in respect of the injuries on the person of these 2 witnesses was not examined therefore they have failed to prove the injuries is untenable because of the unrebuttable direct evidence of these injured. On the other hand there is no plausible reason as to why the returned candidate has not brought any evidence to rebut the same though he too, could examine the said Medical Officer in rebuttal. He has even not denied the said injuries either in his written statement or in his affidavit in evidence.
19. The nexus between the returned candidate; Munnawr Ali Wassan and Manzoor Ali Wassan, a former Home Minister in the cabinet of the province of Sindh is evident from the blood relationship amongst them as admitted by the returned candidate himself during his cross. Munawar Ali Wassan who was the gang leader during the incident, also appears to be the same person who has been mentioned at Sr. No,15 of the array of the respondents in this petition being one of the contesting candidate. He has never appeared before the tribunal, to deny the allegation, therefore it is proved that he was an active member of the party on behalf of the returned candidate who committed the above act in connivance with the returned candidate.
20. Now it is to be determined whether the above acts of the returned candidate come within the parameters of corrupt practice keeping in view the requirement of the provisions of section 68 of the Act, which provides that the election tribunal shall declare the election of returned candidate as void if it is satisfied, inter alia, that a corrupt practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. Section 78 of the Act exhaustively defines "corrupt practice". For the sake of brevity, only the relevant clauses thereof are reproduced hereunder:--- Section 78. Corrupt Practice,- A person is guilty of corrupt practice if he---
(1) ........................
(2) guilty of briery, personation or undue influence,
(3) .......................
(4) ...................
(5) ...............
(6) causes or attempts to cause any person present and waiting to vote at the polling stations to depart without voting.
Whereas the term Undue Influence as mentioned in subsection (2) above has been defined in section 81 of the Act as under-- "A person is guilty of undue influence, if he.
(1) in order to induce or compel any person to vote or refrain from voting or to offer himself as candidate, or to withdraw his candidature at on election, directly or indirectly, by himself or by any other person on his behalf--
(a) makes or threatens to make use of any force, violence or restraint,
(b) inflicts or threatens to inflict any injury, damage or loss,
(c) ............................
(d) .............................
21. The tangible evidence, as discussed above keeping in view the aforesaid provisions thus, leads to the irresistible conclusion that the returned candidate has committed the corrupt practice within the contemplations of section 78 of the Act because he himself was seen firing at the Polling Station Kot Pull to deter the voters of the petitioner from exercising their right of vote, whereas Mr. Munawar Wasan, his close relative, with his unidentified accomplices abducted, maltreated and illegally confined the 'voters to refrain from voting. On the basis of concrete evidence there is also no doubt that the returned candidate was an influential person being a relative of Mr. Manzoor Hussain Wassan, an Ex-Home Minister in the previous Government of Sindh prior to the caretaker setup in the province when Mr. Qaim Ali Shah was the Chief Minister and was also one of the contesting candidates for the Provincial Assembly's Constituency, PS 29 from the same area that leaves no room to accept the arguments of the learned counsel for the returned candidate that the commission of these illegal acts could be reported to the Police by getting registered such F.I.R.
By these witnesses. The well-known bias of the local police in favour of influential persons of the locality like the returned candidate does not permit to discard the very concrete evidence in support of such illegal acts within the parameters of corrupt practices. The case-law relied upon by the learned counsel for the returned candidate is also altogether on different issues with no nexus with this case and for the brevity sake need not to be discussed.
ISSUE NO 2,
22. Due to the findings on Issue No,1 that the corrupt practice has been committed by the returned candidate as well as by Munawar Wasan with his connivance therefore, the election of the returned candidate is declared void under section 68(d) of the Act and the petitioner being the runner up is declared as elected under section 69 of the Act. This election petition is, therefore, allowed in the above terms with costs. The ECP may be informed accordingly.