IJAZ-UL-AHSAN, J. --- This appeal arises out of a judgment of the Election Tribunal, Karachi dated 25.07.2014 .(Impugned Judgment) through which an election petition (E.P. No. 3 of 2013) filed by Respondent No. 1 was allowed and the election of the Appellant Ifranullah Khan Marwat to PS-114, Karachi was declared void.
2. The Appellant contested election from the constituency PS-114, Karachi in 2013 and was declared the Returned Candidate after securing 37,130 votes. Respondent No. 1 was the Runner Up with 30,305 votes. The difference between them was 6,826 votes.
3. The Respondent No. 1 filed a petition under Section 52 of the Representation of People Act, 1976
(ROPA) challenging the election of the Appellant. It was inter alia alleged in the election petition that the election of the Appellant was liable to be declared null and void on the basis that he and his workers had engaged in corrupt and illegal practices. It was further alleged that the Appellant harassed and intimidated voters at various Polling Stations and also indulged in rigging. In the alternative, a declaration was sought that the election was void as a whole under Section 70 of the ROPA on account of the afore-noted practices which had materially affected its result. After recording evidence and, with consent of the parties, procuring a report from National Database & Registration Authority (NADRA), the Election Tribunal allowed the petition and declared the election of the Appellant as a whole to be void vide the Impugned Judgment. The Election Tribunal directed that its decision be communicated to the Election Commission of Pakistan for the issuance of a notification under Section 72 of the ROPA.
4. Aggrieved by the Impugned Judgment, the Appellant has preferred this appeal before us.
5. Learned counsel for the Appellant submits that the allegations of corrupt and illegal practices, use of violence, harassm ent and intimidation of electors and polling agents of the Respondent had not been established, and the Election Tribunal had erred in law in allowing the petition. He further submits that non-compliance or partial compliance with the provisions of Section 33(2)(e) of the ROPA does not render the votes polled in favour of the appellant void. He maintains that the provisions of Section 33 of the ROPA are not mandatory and merely directory in nature. He places reliance on Abdul Hafeez Khan v. Muhammad Tahir Khan Loni (1999 SCM R 284) and Muhammad Arif Muhammad Hassani Amanullah (2016 SCM R 1332).
6. The learned counsel further submits that the non-verification of NIC numbers in the presence of compliance with the remaining provisions of Section 33(2)(e). of the ROPA cannot be a per se ground for declaring the election void, and that the election could not have been declared as void only on the basis of the NADRA report. He argues that there was no basis for an inspection of the ballots, and it was ordered only as a "fishing and roving enquiry". He further submits that the production of NIC numbers at the time of voting is merely a requirement to facilitate the election process in case the identity of a voter is challenged. He finally submits that Respondent No. 1 had produced evidence only to the extent of six polling stations where corrupt practices were alleged and were believed by the learned Election Tribunal to have occurred. He points out that the total number of votes polled at the said polling stations was 6,867, out of which 4,242 votes were cast in favour of the Appellant. He contends that even if all voters polled in favour of the Appellant in the said polling stations Were discarded, he would still win by a considerable margin. He therefore maintains that the learned Election Tribunal lost sight of the fact that even if the allegations levelled in the petition were accepted on face value, the election had not been materially affected and could not have been declared void.
7. Learned counsel for the Respondent on the other hand has vigorously defended the Impugned Judgment. He submits that there was overwhelming evidence on record to substantiate the allegations of corrupt and illegal practices, rigging and harassment of voters and the agents of the Respondent by and on behalf of the Appellant. He further maintains that the learned Election Tribunal sent the counterfoils of 92 polling stations to NADRA for verification with the consent of both parties. He has pointed out that according to the NADRA report, which has not seriously been challenged, the aggregate number of invalid votes constituted by out of constituency votes, duplicate votes, used counterfoils without fingerprints, and fingerprints of used counterfoils failing authentication exceeded 18000 votes. He submits that considering that the lead of the Appellant was merely 6826 votes compared to 18000 votes will be presumed to be fake, the result of the election has clearly been materially affected and was liable to be declared void.
8. We have heard learned counsel for the parties and gone through the record with their assistance. Learned counsel for the Appellant has mainly stressed the point that the Respondent had committed corrupt and illegal practices during the election, but had produced evidence relating to such alleged corrupt and illegal practices only to the extent of six polling stations. Since, the total number of votes polled in favour of the Appellant in the said polling stations are significantly fewer than the lead that he obtained against the Respondent in the polling as a whole, the election result had not been materially affected and the appeal was liable to be accepted. He has also attempted to argue that the NADRA report cannot be relied upon to defeat the appellant.
9. The most material question that requires determination is whether, on the basis of the evidence available before us, it can be said that the alleged corrupt and illegal practices on the day of election materially affected the result of the election. It is an admitted fact the lead secured by the appellant was of 6,826 votes, and also that the total number of votes polled in the six polling stations about which direct evidence of illegal and corrupt practices was produced, was 6,867. Out of these 4,242 votes were polled in favour of the Appellant. If we were to restrict ourselves to only considering these facts, and the votes polled in favour of the appellants were excluded, the Appellant would still win by a margin of 2584 votes. However, in our opinion, the matter cannot be confined to six polling stations in view of the fact that there were allegations of rigging, corrupt and illegal practices all over the constituency. In order to resolve the said controversy, with the consent of both sides, the counterfoils were sent to NADRA for verification. A perusal of the NADRA report shows that about 18000 votes were invalid for various reasons and could not have been counted in favour of either side. A summary of the NADRA report is reproduced below:--- Sr.
No.Description Count of Votes
1. Voters polled in polling stations whose election material, was received by NADRA92,731 2.Invalid CNIC number mentioned on used counterfoils, this also includes such counterfoils that do not have CNIC mentioned over it.14,234 3.Out of constituency votes found on used counterfoils378 4.Duplicate votes on used counterfoils 792 5.Used counterfoils without fingerprints 581 6.Fingerprints successfully authenticated on used counterfoils and ER10,007
7. Fingerprints of used counterfoils and ER failing authentication3270 8.Fingerprints of bad quality affixed on used counterfoils63,469 10.The NADRA report makes it clear that in the first place, it was sought by the Election Tribunal with the consent of both the parties. The argument of the learned counsel for the appellant that it was fishing and roving inquiry loses its significance. Further, the above table shows that 14,232 votes pad invalid or no NIC numbers mentioned on them. We are therefore justified in presuming that these votes were not genuine and could not have been included in the tally of either party. In addition, a number of votes were found to be out of constituency and duplicated. Likewise, the fingerprints on 3270 counterfoils failed authentication, and would also need to be discarded. Where the genuineness of in excess of 18,000 votes was open to serious doubts, the election had ex facie been materially affected. The learned counsel for the Appellant is clearly not justified in arguing that even if all votes cast in favour of the Appellant in the afore-noted six polling stations were taken out of his tally, he would still win the election.
11.In Muhammad Ibrahim Jatio v. Aftab Shaban Mirani (2016 SCM R 722), this Court was called on to decide on similar facts, and held as follows:--- "From the above, it is sure that excluding 4,549 votes (combined count of votes at serial numbers 2, 3, 4 and 6) which is greater in number than the difference between the total number of votes obtained by the appellant and the respondent i.e. 1,252 votes, would render the election result as being materially affected, and this is the reason which prevailed with the learned Tribunal for holding of fresh elections at 21 polling stations. We are not impressed with the argument of the learned counsel for the appellant that NADRA does not have any expertise in the matter or does not have the capacity or the mandate of the Election Tribunal had not authority to refer the election material to NADRA for the purposes of the dispute."
12.Likewise, in Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi (2016 SCM R 750), this Court held:-- 'We find it useful to mention at the very outset that it Was permissible for the learned Tribunal to seek the examination/verification of the election material from an expert, i.e. NADRA, in order to find out if the provisions of the Act and the rules framed there under have not complied with and then to determine itself whether such non-compliance materially affects the result of the election. In this context, as has been mentioned above, the material of 19 polling stations was sent to NADRA pursuant to the order passed by the learned Tribunal dated 23.8.2013. Before proceeding further with the matter, we would like to highlight that the learned Election Tribunal has given no reason to reject the report of NADRA, but according. to the report, the .summary of which is reproduced above, if is clear and unmistakable that 2,147 used counterfoils out of these polling stations had invalid. NIC numbers (meaning thereby that the said used counterfoils either contained NIC numbers that were never issued by NADRA or had no mention of NIC number thereupon). The mention of such number is the mandatory requirement of the provisions of Section 33 of the Act. As regards 61 used counterfoils the report is that there were no fingerprints/thumb impressions on them, again this is the non-compliance of Section 33 thus the total votes which from the report of NADRA were not issued as per the used counterfoils comes to 2,208 and thus the ballot papers corresponding thereto wore liable to be excluded. With regard to the argument of the learned counsel for the respondent that the.. 2,147 used counterfoils which had invalid NIC numbers were those counterfoils where the correct MC was produced when the voter came to vote and an error was committed while writing the NIC number down, and since this was due to a lapse by the election staff, the benefit or prejudice of such error in writing of the NIC number on the counterfoils should not go to any candidate or in other words the returned candidate should not suffer from the omission and mistake of the election staff, suffice it to say that we cannot say with utmost certainty whether the eligible voter came and brought his correct NIC but the number was written incorrectly, or that an imposer came with a bogus NIC. The fact of the matter stands that a voter has to be properly identified and his correct NIC has to be noted on the counterfoils, which is required by the law, and the above has not been done, which is the non-compliance of the provisions of the Act. According to the provisions of Section 70 of the Act, the result of the election can be declared to be void for non-compliance of the provisions of the Act and the rules made thereunder if the result has been materially affected. Obviously the object of the requiring affixation of thumb impression and to record NIC numbers on the counterfoils is to ensure that the correct voter to whom a ballot paper has been issued casts his vote and subsequently to provide a reference point to find out if any bogus votes have been cast in the election. Therefore in this scenario since the votes to be excluded, i.e. 2,208 (2,147 plus 61 votes) are greater in number than the differential of 1,611 votes between the number of votes secured by the appellant and respondent, this would materially affect the result of the election, thereby bringing the case within the purview of the provisions of Section 70 of the Act, warranting declaration of the election to be void as a whole. This very important and conspicuous aspect of the matter has not been attended to by the learned Tribunal and the impugned judgment is flawed in this respect."
13.Learned counsel for the Appellant has relied on our holdings in Abdul Hafeez Khan and Muhammad Arif Muhammad Hassani (ibid) to argue that counterfoils having invalid ' NIC numbers or counterfoils with missing NIC numbers cannot be deducted from the votes polled in favour of the Returned Candidate inasmuch as the possibility of a mistake on the part of the polling staff cannot be ruled out.
14. We find these judgments to be distinguishable on facts. In Muhammad Arif Muhammad Hassani (supra), the disputed votes as per the NADRA report came to 941 out of 35,197 votes cast.
The disputed votes were insignificant in comparison to the lead enjoyed by the returned candidates and therefore, we held that the election had not materially been affected. In contrast, the facts of the case before us are much clearer and allegations of corrupt and illegal practices on part of the Appellant on the day of election and the conduct of the polling staff prima facie establish that the result of the election was materially affected by the acts of the Appellant as well as his agents and the election staff.
15.The learned counsel for the Appellant is mistaken in relying on our holding in Abdul Hafeez Khan (supra), because that decision pertains to principles regarding summoning of the record and the powers of the Tribunal to do so. In the case before us, the evidence/counterfoils were sent to the NADRA with the consent of the parties, and the Election Tribunal had sufficient power under the law to do so and in the absence of any objection regarding the veracity of the report, the Appellant cannot at this stage be allowed to retract his consent because the contents of the report are unfavourable to his case.
16.Learned counsel for the Appellant has also laid great emphasis on the point that in the absence of positive evidence of corrupt practice on the part of the Appellant, the election could not have been declared as a whole to be void. He maintains that Respondent No. 1 produced positive evidence only to the extent of six polling stations and even if all the votes cast in his favour in the said polling stations were taken out of his tally, he would still succeed by a considerable margin. He, therefore, maintains that this fact itself shows that result of the election was not materially affected.
17.There is an inherent defect in the argument of the learned counsel because it does not adequately address the NADRA report, which indicates that more than 18,000 votes were invalid.
These votes are substantially in excess of the lead of the Appellant, and the result of the election has clearly been materially affected by reason of these invalid votes. An election can be declared void as a whole if the Election Tribunal is satisfied that the result of an election has been materially affected by the failure of any person to comply with the provisions of the ROPA. Therefore, even if the prevalence of corrupt or illegal practices at the election on the part of the winning candidate is not proven but there has been a failure on the part of any person including the election staff to comply with the provisions of the ROPA, which has demonstrably affected the result, the election can still be declared as a whole to be void. A plain reading of Section 70 of the ROPA shows that two independent grounds are available to the Election Tribunal to declare an election as a whole to be void; (a) failure of any person to comply with the provisions of the Act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. Therefore, even if the prevalence of corrupt and illegal practices was proven only to the extent of six polling stations and not the rest, there was sufficient material on record to show the casting of in excess of 18,000 invalid votes, which may have been attributed to non-compliance with the-provision of the RoPA, and the Election Tribunal had sufficient and adequate powers to declare the election as a whole to be void.
18. We held in Muhammad Siddique Baloch v. Jehangir Khan Tareen (PLO 2016 SC 97):--- "The violations of election law noted in the NADRA's report clearly invalidate 22,216 ballot papers issued to persons contrary to the provision of Section 33 of the ROPA, which are, intended to exclude the possibility of bogus voting, and are therefore mandatory for advancing the mandate expressed in Article 218(3) of the Constitution. On the other hand, the appellant was returned as'
Member National Assembly in the election with a lead of 10,891 votes. Consequently, by adopting the straight forward numerical approach of this Court taken in Raja Ameer Zaman's case (2015 SCM R 890) and also visible in Ehsanullah Reki's case (2010 SCM R 1271), it is patently clear that after adjusting the 22,216 disputed votes against the lead of the appellant, the result of the election is materially affected and his margin of victory is eliminated to a losing difference from the tally of the election petitioner. Equally, on the alternative test adopted by this Court in Jam Mashooq Ali's case (PLC 1996 SC' 426). the widespread scale of the violations of election law committed by the election staff in NA-154, Lodhran-I, makes the pervasiveness of their default to infect the election process as a whole with doubt and suspicion thereby materially affecting the election result."
19.For these reasons, the finding of the learned Election Tribunal that the result of PS-114, Karachi was materially affected on account of failure to comply with the provisions of the ROPA and/or the rules framed there under is upheld. This appeal is found to be without merit and/or accordingly dismissed with costs.
20.The Election Commission of Pakistan shall take all necessary measures to forthwith de-notify the Appellant from being a Member of the Provincial Assembly and shall call upon the voters of the said constituency to elect a person to fill the seat for the constituency before such date as may be specified in the notification and hold fresh election for the constituency in accordance with law.