IJAZ-UL-AHSAN, J. --- This appeal under Section 67(3) of the Representation of the People Act, 1976
(RoPA) arises out of a judgment of the Election Tribunal Quetta-1 dated 14.04.2014. Through the impugned judgment, an Election Petition filed by the appellant under Section 52 of the RoPA was dismissed.
2. The appellant and fourteen other candidates contested the General Election, 2013 for a seat of the Provincial Assembly of Balochistan from PB-22 Hamai-cum- Sibi held on 11.05.2013. Respondent NO. 1, Abdul Raheem Ziaratwal was declared the Returned Candidate with 4533 votes. The appellant was the Runner Up and had 265 fewer votes.
3.The appellant challenged the election before the Election Tribunal on numerous grounds. Firstly, he alleged that the locations of five polling stations bearing Nos 46 to 50 were shifted without duly informing the general public or obtaining permission from the Election Commission of Pakistan (ECP). Secondly, he alleged that the Respondent No 1 conspired with the polling staff to cast bogus votes. Thirdly, he asserted that the Returning Officers and Deputy Returning Officers were appointed at the behest of Respondent No,
1. Fourthly, he argued that Polling Station No, 45 was attacked and an atmosphere of fear and harassment was created to intimidate and scare away voters. Fifthly, he asserted that the results of 41 out of 51 polling stations were rigged, and there were several violations of Sections 33 and 38 of the RoPA by the Polling Staff, Returning Officers and Deputy Returning Officers.
4.Only Respondent No 1 the Returned' Candidate, contested the election petition.' The rest of the Respondents were proceeded against ex-parte. Respondent No, 1 denied all allegations of rigging, harassm ent and violation of the Election Laws either by himself or at his behest or by the Election Staff.
5. The Tribunal framed five issues for trial. The appellant examined ten witnesses and also personally took the witness stand. The Respondent also appeared as a witness in defence and produced eight other witnesses. After evidence had been closed, the appellant moved two applications; one for the verification of thumb impressions on counterfoils- by NADRA, and the other for recount of votes. The Election Tribunal dismissed both applications and proceeded to dismiss the Election Petition through the impugned judgment. The appellant is aggrieved of the said judgment and appeals to this Court.
6.The learned counsel for the appellant submits , that the Erection Tribunal has misread and mis- appreciated the material available on the record. It has thus arrived at' inaccurate conclusions. He further maintains that the conclusion of the Election Tribunal finds no support in the evidence on record. He submits that the two applications for the verification of thumb impressions on the counterfoils by the NADRA and the recount of ballots were unlawfully rejected. He finally maintains that the difference of votes between the Returned Candidate and the appellant was only 265 votes, and the slim margin by itself warranted grant of the application for recount.
7.We have heard learned counsel for the parties and gone through the record. We note that none of the witnesses produced before the Tribunal supported the allegation of acts on the part of Respondent No, 1 that may have created an atmosphere of fear and harassment to turn away potential electors. There were 51 polling stations in the constituency. The appellant alleged rigging, corrupt and illegal practices in 41 polling stations. Out of the said 41 disputed polling stations, Respondent No, 1 prevailed in only 10. In the remaining 31 polling stations, either the appellant or other candidates secured higher number of votes. We have also gone through the comparative table of votes obtained by the appellant and some of the other candidates prepared by the Tribunal (which has not been disputed by the appellant), We find that even in those polling stations where Respondent No, 1 won there was no apparent or marked abnormality in the number of votes polled in favour of Respondent No, We find that the votes polled were almost evenly divided amongst the candidates.
8.We have also gone through the statements of the witnesses produced by the appellant. We find that they did not adequately support the statements made in their affidavits, contradicted themselves in cross-examination, and did not inspire confidence as to their truthfulness and veracity. It was admitted that despite allegations of illegal and corrupt practices, and dereliction of duty and connivance on the part of the election officials, no written application was filed before any competent authority at any stage. The allegation of casting of bogus votes remained unproved and unsubstantiated by any independent and reliable evidence. None of the election agents of Respondent No, 1 or EC.P officials allegedly involved in rigging or corrupt practices were named or identified. Surprisingly no documentary evidence of any nature to substantiate allegation of shifting of polling stations and appointment of Returning Officers and Deputy Returning Officers at the behest or under the influence of Respondent No, 1 was brought on record.
The appellant admitted in his cross-examination that he did not have any proof of the unauthorized change of election staff, and no written complaint had been filed by him or his polling agents regarding polling of bogus votes or the use of illegal-and corrupt practices in any of. the 41 polling stations. This was despite the fact that admittedly he had polling agents in each of the 41 polling stations.
9.We also notice that despite alleging that rigging, corrupt and illegal practices had been adopted in 41 polling stations, the appellant produced 10 witnesses who collectively accounted for 10 polling stations, while nothing was brought on record regarding the remaining 31 stations.
10.The onus to prove allegations of rigging and the use of corrupt and illegal practices is on the person alleging such practices. The quality of evidence and standard of proof must meet the benchmarks set by this Court by production of positive evidence. In Usman Dar and others v.
Khawaja Muhammad Asif and others (20.17 SCMR 292) we held as follows:--- "Reference may be made to Muhammad Saeed v. Election Petitions Tribunal West Pakistan, etc.
(PLD) 1957 SC (Pak.) 91) wherein it was held that, "The law relating to the trial of elections petition, though volumes have been written on it, insofar as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, where an election is sought to be .set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added- at the trial that the burden of proof of corrupt practices is on the petitioner. that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having, not been committed". Reference may also be made to the case of Hafeezud-Din v. Abdul Razzaq (PLD 2016 Supreme Court 79) in which this Court held that, 'Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged, as held by this Court in the cases reported as Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan. (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLO 1957 SC (Pak.) 91); Mian Jamal Shah v. (1) The Member. Election Commission, Government of Pakistan, Landre, (2) The Returning Officer. Constituency of the Notional Assembly of Pakistan No, NW-ll, Peshawar 11, and' (3) Khan Nasrullah Khan (PLO 1966 SC 1); Khan Muhammad Yusuf Khan Khattak v. S. M. Aytib and 2 others (PLD 1973 SC 160)".
11.On 'the basis of unreliable oral evidence which is unsubstantiated by any credible independent evidence and the absence of documentary evidence, it would be unjust and unfair to unseat a _Returned Candidate and disenfranchise the entire constituency. In our opinion, mere words of the appellant were not enough and the Tribunal had valid reasons and lawful justification to conclude that the-appellant had been unable to establish rigging or use of illegal and corrupt practices.
12.We have also considered the argument of learned counsel for the appellant that the applications for verification of thumb impressions on the counterfoils and 'recount of the ballots should have been granted. In the facts: and circumstances of the case, we are unable to subscribe to the said argument for a number of reasons. Firstly, an order of recount or verification of thumb impressions would only be justified where there is prima facie evidence of rigging and the casting of invalid ballots available on the record. Secondly, the appellant moved these applications. after the evidence of the parties had been closed, apparently, as an afterthought and, in all probability, as an attempt to add some strength to a case which was otherwise standing on a weak evidentiary foundation. Thirdly, it has neither been alleged nor is it evident from the record that any application was made for recount before the competent election authorities in terms of Section 38(5) or Section 39(6) of the RoPA. This further supports our view that the applications in questions were filed as an afterthought and by way of a last ditch effort in the hope of finding some incriminating material. If the appellant wished to get ballots recounted by the Returning Officers, he was required to satisfy the Returning Officers that his request was (i) reasonable, (ii) prima facie there were errors, omission, or flaws in the counting process and (iii) the allegations of impersonation or bogus votes being cast were reported in a timely rnanner through written applications to the competent functionaries.
13. Recounting of ballot papers can only be ordered if the conditions laid down in this behalf are fulfilled and the Returning Officer/Election Tribunal i's satisfied on the basis of material produced before it that the request is reasonable. A recount cannot be granted as a matter of -right on the basis of vague allegations. Further, as held in Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni (1999 SCM R 284) the power to order a recount is to be used sparingly and with circumspection the only object being to ensure a fair and lawful result of the electoral exercise.
Reference may also usefully be made to Kanwer Ijaz Ali v. Irshad All (PLD 1986 SC 483), Jam Madad Ali v. Asghar Ali Junejo (2016 SCM R 251) and Muhammad Ashraf warriach v. Muhammad Nasir Cheema (2016 SCMR 970). There is not an iota of evidence on the record to establish that the Presiding Officers had not counted the votes correctly, the result was not correctly tabulated or valid votes cast in favour of the appellant had been unlawfully rejected. The learned counsel for the appellant half-heartedly attempted to argue that the difference between the two candidates was 265 votes while about 1400 votes' were rejected as invalid which itself furnishes justification to order recount. We find this argument to be without merit: The mere fact that the difference in the number of votes cast for the winning and losing candidate is small is not by itself a justification for recount, especially so where a recount was not claimed at the appropriate stage before the competent forum and no ground to justify such recount was pleaded or established. Further, there was no allegation at any stage that the votes were wrongly counted or tabulated,' the count was not undertaken in the presence of polling agents of the "appellant or copies of the result were not provided to the election agents. In addition, it cannot be stated with any degree of certainty how many votes which were declared invalid were cast in favour of the appellant and how many were cast in favour of the respondent and other contesting candidates.
14.We cannot allow the appellant to go on a fishing expedition in the hope of finding some material that may possibly turn out to be favourable to him in the absence of clear and irrefutable evidence of rigging and the use of illegal and corrupt practices. The candidate who succeeded in an otherwise fair election should be allowed to serve out his tenure without being hounded by frivolous, baseless and unsubstantiated allegations. This constitutes abuse of the process of law and amounts to disrespecting the mandate given to the Returned. Candidate by the electorate.
15.For the afore-noted reasons, we find this appeal to be without merit and accordingly dismiss it.