IJAZ UL AHSAN, J.---Through this single judgment mainly recorded in Civil Appeal No, 823 of 2014 (filed by Usman Dar), we propose to decide the listed appeals as both involve common' questions of law and 'facts and arise out of the same impugned judgment of the Election Tribunal, Lahore, dated 25.04.2015.
2. This appeal is directed against a judgment of the Election Tribunal, Lahore, dated 25.04.2014, whereby Election Petition No, 344 of 2013 filed by the appellant against respondent No,1 was dismissed. The appellant was an unsuccessful candidate in the general elections held on 11.05.2013 for a seat in the National Assembly from constituency. NA-110, Sialkot-I. Respondent No,1 was the Returned Candidate, notified as such by the Election Commission of Pakistan (ECP).
3. On 08.09.2013, the appellant filed an election petition under section 52 of the Representation of Peoples Act, 1976 (ROPA) before the Election Commission of Pakistan. It was sent for trial to the Election Tribunal, Lahore. In his petition, the appellant alleged that respondent No,1/Returned Candidate had indulged in corrupt and illegal practices, and his election agents and supporters had offered illegal gratification to the voters as well as the Government Officials to induce the electors to vote for him. They also undertook wide scale rigging in connivance with the Government Officials by impersonating voters and casting bogus votes. It was further alleged that several agents and supporters of the Returned Candidate resorted to violence against voters, harassed and intimidated them, in some instances causing injuries, in order to compel, pressurize and unduly influence them to vote for the Returned Candidate. It was also alleged that voters were transported to and from polling stations in vehicles arranged by respondent No,1 which was violative of the election laws. The appellant also, alleged that votes polled in his favour were counted towards those polled in favour of the Returned Candidate and in some instances votes cast in favour of the appellant were unlawfully excluded from the vote count. In order to substantiate the allegations contained in the election petition, the appellant attached therewith affidavits of 10 of his election agents in various polling stations who also appeared as PW.1 to PW.10 during trial of the election petition.
4. Despite notice, respondents Nos.3 to 10 who were also contesting candidates for the said seat and had been unsuccessful, either did not enter appearance or failed to file their respective written statements. They were accordingly proceeded against ex parte. The record indicates that on conclusion of the trial when the matter was fixed for final arguments, the learned counsel representing respondents Nos.3 to 6 entered appearance and made a verbal request to be transposed as petitioners. However, in view of the fact that the said respondents had not called into question the election through election petitions in terms of section 52 of the ROPA within the prescribed time, nor had they chosen to file their respective replies to the election petition and had also been proceeded against ex parte and that order still held the field, their request was declined.
5. Respondent No,1, who was the Returned Candidate, contested the election petition and submitted a written reply. Out of divergent pleadings of the parties, the Election Tribunal framed the following issues:- i. After consolidation and announcement of the result, theWhether the petitioner failed to comply with the provisions of sections 54 and 55 of the ROPA, if so, its effect? OPR1. ii. Whether the petitioner failed to point out and set up specific instances of corrupt practices in terms of sections 78 and 79 of the ROPA, if so, its effect? OPR1 iii. Whether the illegalities/irregularities/malpractices and corrupt practices set up in the election petition if proved and established with evidence would provide a valid basis to declare the election in question qua respondent No,1 followed by notification declaring him the Returned Candidate void as a whole? OPP iv. Relief.
6. The appellant examined 10 witnesses whose affidavits had also been appended with the election petition. The appellant appeared as PW.11. His examination in chief was recorded but his cross- examination was reserved. Despite multiple opportunities, imposition of costs, and specific warnings, he failed to appear for his cross-examination. As a result, his examination in chief was struck from the record and his right to produce evidence was closed. The appellant also did not produce any material documentary evidence in support of his claim.
7. Respondent No, 1 produced 7 witnesses who deposed in line with the stance taken by him in his reply. At the conclusion of the trial, the Election Tribunal did not find any merit in the Election Petition and dismissed the same, vide the impugned judgment dated 25.04.2014.
8. Dr. Babar Awan, learned Sr. ASC, representing the appellant, submits that his right to produce evidence had unlawfully been closed and the appellant's right to due process guaranteed under Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 had been violated. He maintains that the learned Election Tribunal was not justified in turning down the application of the appellant for recall of the order through which his examination in chief was struck off and his right to produce evidence was closed. He has heavily relied upon the reports of NADRA which according to him support the allegation that the polls were rigged. The learned counsel has further submitted that there were violations of the provisions of Section 33 of the ROPA. Therefore, the election was liable to be declared void. He has argued that NADRA found seals of certain bags containing election material broken, some of the bags were damaged and in the first instance 29 bags were missing, which were subsequently traced and submitted to NADRA for verification of thumb impressions.
According to the learned counsel these facts by themselves constitute sufficient grounds to declare the election void.
9. Mr. Farooq H. Naik, learned Sr. ASC, appearing for respondent No, 1/the Returned Candidate, on the other hand has defended the impugned judgment of the Election Tribunal. He has submitted that the appellant did not produce any evidence to support his allegations of use of corrupt or illegal practices by respondent No,1 either independently or in connivance with government officials or functionaries of the ECP. He has pointed out that elections were held under a caretaker setup and respondent No,1 was in no position to influence functionaries of the Government or the ECP. He has further submitted that only 10 affidavits relating to 9 polling stations were submitted which were identical copies of each other and did not constitute credible, independent or reliable evidence. He has further argued that the appellant has neither challenged the order through which the right of the appellant to produce evidence was closed, nor the order through which the application for modification of the order was rejected. He therefore maintains that having accepted the said orders, the appellant is precluded from claiming the relief that has not even been prayed for in the appeal.
10. With regard to the argument of learned counsel for the appellant qua the reports of NADRA, it was argued that even if votes found to be unverified/unconfirmed/defective by NADRA were deducted from the total number of votes cast in favour of respondent No,1, his lead would still be in excess of 15,000 votes. This shows that the result of the election was not materially affected by reason of unverified/discarded votes. He maintains that this plea is without prejudice to his argument that there is nothing to show that all the unverified/discarded votes were counted towards the tally of respondent No,1 and the same or at least some of them may as well have been included in the tally of the appellant.
11. Learned counsel for respondent No,1 has further pointed out that there is nothing on record to connect respondent No,1 with any corrupt or illegal practice or any violation of section 70 of the ROPA which is evident from the fact that the Returning Officer had deposited intact, all 227 bags containing election material with the District Accounts Office/Treasury, which was duly acknowledged by the concerned officer. He has also pointed out that since all the election material had been, submitted with the Treasury for safe custody, any subsequent damage to it cannot be attributed to or used against respondent No,1 to allege or prove his involvement in any illegal or corrupt practices.
12. We have heard the learned counsel for the parties at considerable length and gone through the record with their assistance. We have straightaway noticed that the appellant did not pursue his petition seriously and diligently. He was the most material witness in the matter and his evidence was pivotal to the proceedings initiated by him. His examination in chief was recorded on 21.02.2014. The record indicates that on the said date, it was a Friday (half day) and therefore, the cross-examination of responders No,1 was reserved till the next date of hearing, which was fixed for 10.03.2014 with consent of learned counsel for both sides. The record further indicates that when the matter come up for hearing on 10.03.2014, the learned counsel for the appellant disclosed to the Election Tribunal that he had gone abroad. His request for adjournment was granted, subject to payment of costs in the sum of Rs,10,000/-. The matter was adjourned to 17.03.2014 with a direction to the appellant to appear for cross-examination. It was recorded in the order sheet that in case the appellant was not available on the next date of hearing for his cross-examination, the law would take its own course without any leniency. When the matter was taken up by the Tribunal on 17.03.2014 the appellant again failed to appear for cross-examination. He did not pay costs imposed by the Tribunal on the previous date of hearing. Instead, his learned counsel requested the learned Election Tribunal to allow his earlier request for the comparison of disputed thumb impressions of voters on the counterfoils with their admitted ones by NADRA. Such request was declined by the Election Tribunal on the ground that the appellant had already been examined and was due to be cross-examined, whereafter the request for comparison of thumb impression could be considered, Therefore, the appellant was directed to appear on 25.03.2014 to face cross- examination.
13. On 25.03.2014, the appellant yet again failed to enter the witness box to face cross-examination in blatant .Disregard of specific, categoric and repeated directions and warnings issued by the Election Tribunal. On the request of the learned counsel for the appellant, the Tribunal granted yet another opportunity to the appellant to present himself for cross-examination, however, with a direction and advice to him to appear and face cross-examination on 31.03.2014. Costs of Rs,10,000/- were imposed on the appellant and he was warned that in the case of his absence on the next date of hearing, he would not be granted any further opportunities. Unfortunately, the appellant did not appear even on 31.03.2014 and a request for adjournment was made, which was declined by the Election Tribunal through a detailed order dated 31.03.2014 (Order No,26) which made reference to all previous orders that had granted opportunities to the appellant to present himself for cross-examination. It is significant to note that the appellant also failed to pay the costs imposed by the Election Tribunal in accordance with law; a fact not specifically denied by the learned counsel appearing for him.
14. In view of the above facts and circumstances, the legal value of the evidence of the appellant needs to be examined. Muhammad Munir, J in his Commentaries on the Law of Evidence has discussed the issue in considerable detail. The following excerpt from his aforesaid treatise is insightful:- "In his examination-in-chief a witness discloses only a part of the necessary facts, not merely because the witness is frequently a partisan of the party calling him, but also and chiefly because his evidence is given only by way of answers to specific questions, and the counsel producing him usually calls for nothing but the facts favourable to his party. If nothing more were done to unveil all the facts known to the witness, his testimony might present half-truths only. Someone must probe for the possible and usual remainder. The best person to do this is the one most vitally interested, namely, the opponent. Cross-examination, then, has for its first utility, the extraction of the remaining qualifying circumstances of the testimony given by the witness in his examination- in-chief "
(wigmore: 1368)
Similarly, Wigmore in his famous treatise Wigmore on Evidence 3rd Edition while commenting on the importance of cross-examination and how it fits into any legal system has stated as follows: For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross- examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and substantiated by that test, has found increasing strength in lengthening experience.
(ss1367 Approved per Wheeler CJ, in Bishop v Copp, 1921, 96 Conn. 157, 114 Atl. 682)
He goes on to emphasize that, "Not even the abuses, the mishandlings, and the puerilities which are so often found associated with cross-examination have availed to nullify its value.
15. In view of the fact that the appellant did not present himself for cross-examination, his examination in chief does not meet the threshold of legal evidence and was rightly struck out. In this regard, reference may usefully be made to The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 58). Even otherwise, the order dated 31.03.2014 has not been assailed before us.
16. We now proceed to examine the election petition and the evidence of PW.1 to PW.10, which is the only evidence produced by the appellant in favour of his petition. The petition was filed under Section 52 of ROPA. Its contents needed to comply with the requirements of section 55 of ROPA.1 2
17. We have gone through the contents of the election petition as well as the affidavits of PWs.1 to 10 in light of the requirements, inter alia, of section 55 ibid. We find that the petition read with the statements of witnesses did not fulfill the mandatory requirements of section 55 of ROPA, in so far as it failed to give detailed and complete particulars of the alleged corrupt or illegal practices or other illegal acts alleged to have been committed by the respondent No,
1. Further, a full statement of the names of the persons accused of corrupt or illegal practices or illegal acts, and the date and place of commission of such acts or practices are not available on record. We have also found that the affidavits of all 10 witnesses are almost completely identical, in that only the names of the deponents vary between them. We find it untenable that the sequence of events at nine different polling stations was exactly the same, down to the small details. In addition, the allegations are vague, generalized and non-specific, and do not meet the requirements specified in section 55 of the ROPA. 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, in so far 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 Hafeezuddin 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 (PLD 1957 SC (Pak.) 91); Mian Jamal Shah v. (1) The Member Election Commission, Government of Pakistan, Lahore, (2) The Returning Officer, Constituency of the National Assembly of Pakistan No,NW-II, Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1); Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 SC 160)".
18. We also note that the appellant made no effort to produce a single elector/voter who may have been harassed, intimidated or bribed by the respondent No,1 as alleged in the petition. No independent evidence of any nature, documentary or otherwise, was produced to substantiate the allegation that respondent No, 1 provided transportation facilities throughout his constituency to bring voters to the polling stations and take them back. No transporter was summoned or examined, nor were their particulars or those of the vehicles allegedly used by them furnished at any stage.
19. A perusal of the contents of the election petition shows that the appellant levelled serious allegations of connivance and biasness on the part of the election staff. Yet not a single member of the election staff, including the Polling Officer or Returning Officer, was summoned or put in the witness stand.
20. Documentary evidence, which could have helped substantiate the allegations of violation of election laws in counting of votes and compilation of result, made in the election petition, is conspicuously absent. The appellant had specifically alleged that the votes cast in his favour had been counted towards the vote count of the Returned Candidate. In this regard, the appellant could have adduced as evidence the statement of count (Form XIV), the ballot paper account (Form XV), and the consolidation of statements of the count (Form XVI). A comparison of the said forms would have shed light on the allegations leveled by the appellant. This was not done, nor was any attempt made to produce the best evidence. Therefore, an adverse inference could validly be drawn against the appellant.
21. Learned counsel for the appellant has made an effort to build his case against respondent No,1 on the basis of the report submitted by NADRA pursuant to orders of this Court dated 19.01.2016. He has vehemently argued that the allegations of illegal and corrupt practices stand established in view of the fact that seals were allegedly found broken, some of the bags containing election material were allegedly found torn/damaged and duplication of votes was also detected, We have considered the argument, but have found it to be misconceived in light of section 70 of the ROPA.
The record available before us demonstrates that after consolidation and announcement of the result, the Returning Officer transmitted the election material, contained in 227 bags, to the District Accounts Office/Treasury for safe custody. The said officer duly received the said material and issued an acknowledgment in writing. If the election material was not properly safeguarded by the concerned Officer(s), the legal consequences for the said dereliction can and should follow against those who were found negligent, careless or deficient in performance of their duties.
However once the election material had been delivered to the ECP or an agency designated by it for safe custody after completion of the election process, consolidation and announcement of the result, the requirements of ROPA stood fulfilled. Any subsequent events could not have materially affected the result of the election so as to form the basis to set aside the election as a whole.
Further, without clear and irrefutable evidence connecting the respondent No.1 to the damage allegedly caused to the record, he cannot be held responsible or proceeded against under section 70 of ROPA. There is not an iota of evidence to connect respondent No,1 with causing damage to the election record after it had been delivered by the Returning Officer for safe custody.
22. As discussed above, the appellant failed to bring on record any credible and legally acceptable evidence to prove the allegations of corrupt and illegal practices on the part of respondent No,1 before or during the election process or while challenge to the same was pending before the competent fora that may have persuaded a Court of law to conclude that corrupt or illegal practices were employed by respondent No, 1 . Further, the appellant failed to prove that the election machinery did not comply with the provisions of the ROPA and the rules framed thereunder, and such non-compliance materially affected the result of the election thereby justifying its declaration as void.
23. We have also examined the reports submitted by NADRA on the basis of an application moved by the appellant which was declined by the Election Tribunal, but which we allowed on the basis of the consent of the learned counsel for both sides. The reports are not conclusive, in view of the fact that a number of thumb impressions could not be verified on account of their poor quality. The report provides no indication in whose favour such votes were cast. It would therefore be neither just nor proper to exclude all such votes from the total number of votes cast in favour of the Returned Candidate in the absence of any evidence that all or how many such votes were cast in his favour. Notwithstanding this legal position, we find that even if we were to exclude all the invalid3 votes from the final count of respondent No,1, he would still remain ahead of the appellant by more than 15000 votes. This fact is illustrated by the following table: "SUMMARY OF TWO NADRA REPORTS NOS.8 AND 23 AND THREE POLLING STATIONS VIZ., 118, 121 AND 132 FOR WHICH NADRA REPORT IS NOT AVAILABLE-
1. Total invalid votes as per NADRA Report No,9 of 2016 pertaining to 198 polling stations are 3498.
2. Total invalid votes as per NADRA Report No,23 of 2016 pertaining to 26 polling stations are 795.
3. Total invalid votes as per Reports No,9 of 2016 and 23 of 2616 supra for 224 PS are 3800.
4. Total votes polled in favour of Khawaja Muhammad Asif in PS Nos.118, 121 and 132 are 1129.
5. Total of Serial No,3 and Serial No,4 is 3800 plus 1129 is 5422.
6. If we subtract invalid votes mentioned in Sr. Nos. 1 and 2 and total votes polled in favour_ of Khawaja Muhammad Asif in PS Nos.118, 121 and 132 which total 5422 from total votes polled in his favour being 92,848, Khawaja Muhammad Asif is still leading by 15853 votes.
SUMMARY {{TABLE}} A Returned Candidate's Total Votes 92848 B Votes subtracted from Returned Candidate's total votes allegedly invalid 5422 C Returned Candidate's remaining votes 87426 D . Unsuccessful Candidate's total votes 71573 E Returned Candidate's Lead by 15853 {{TABLE}} A number of votes could not be verified by the Automatic Fingerprint Identification System (AFIS) owing tar bad quality of finger prints. However, NADRA was able to verify the same through CNIC numbers. As such, these votes cannot be categorized as invalid votes.
24. We therefore find that even if there may have been negligence or inefficiency on the part of the election staff, such acts/omissions did not G occur on account of any act of respondent No,1, Further, the same neither materially affected the result of the election nor substantially contributed to the appellant's loss. It is settled law that the election petitioner who alleges the use of illegal or corrupt practices or rigging has to establish his case on the same standard of proof as a criminal case i,e. Beyond reasonable doubt. Reference may be made to Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak) 91), wherein it was held that "A charge of a corrupt practice is a quasi-criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence on the principles applicable to the trial of criminal charges. One such principle is that in case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person".
25. As already discussed, the quality and nature of evidence produced before the Tribunal fell substantially short of the requirements consistently set by this Court in matters of this nature.
26. As far as Civil Appeal No,947 of 2014 is concerned, the same has been filed by two of the unsuccessful candidates who were arrayed as respondents in the election petition filed by the appellant before the Election Tribunal. They neither filed their respective replies nor contested the matter before the Election Tribunal. They were accordingly proceeded against ex parte. At the conclusion of the trial, their learned counsel appeared before the Tribunal and made a verbal request that the appellants be transposed as petitioners. However, the said request was rightly declined in view of the fact that they had neither called into question the election of respondent No,1 through election petitions in terms of section 52 of the ROPA within the prescribed time nor had they filed their replies to the election petition and had already been proceeded against ex parte.
This order has not been challenged before us. The learned counsel for the appellants has failed to satisfy us regarding the locus standi of the appellants to maintain this appeal. Even otherwise, for the above reasons mainly recorded in Civil Appeal No,823 of 2014, this appeal is also liable to be dismissed on merits.
27. In a democratic state, free, fair and transparent elections are sine qua non for the success of the system. The will of the electorate has to be respected and unless there is irrefutable evidence to show that the election was systematically rigged by a candidate through the use of illegal or corrupt practices, the will of the people cannot and should not be interfered with. Over the past many elections, there have been allegations of pre-poll rigging and the use of illegal and corrupt practices during the process of polling. Such allegations should have resulted in significant changes in the relevant laws as well as the ECP's protocols to address such concerns. In this regard, we are informed that a bipartisan Parliamentary Committee had been constituted to suggest electoral reform. An Inquiry Commission consisting of three Hon'ble Judges of this Court was also constituted to inquire into the allegations of rigging in the General Elections 2013. In its final report dated 22nd July, 2015 the learned Commission pointed out shortcomings in the system and made recommendations to improve the same. However, unfortunately no substantial steps have been taken to address this very important and serious issue which has the potential to threaten the roots of our democratic process and the confidence of the Electorate as well as the candidates in the Electoral process. This Court is sanguine that the Executive and the Legislature will, without further delay, take all necessary steps to fulfill their commitment of electoral reforms that satisfy the mandate of free, fair and transparent elections as enshrined in Article 218(3) of the Constitution.
28. For such reasons, we have dismissed the appeals through our Short Order dated 10.11.2016 which reads as follows:- "We have heard the arguments of learned ASCs for the appellants and respondent No.1 at length.
For the reasons to be recorded separately, both these appeals are dismissed."
52. Election petition.--No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner).
(2) An election petition shall be presented to the Commissioner within forty-five days of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
55. Contents of petition.---(1) Every election petition shall contain
(a) A precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corruptor illegal practice or illegal act and the date and place of the commission of such practice or act: and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely:
(a) that the election of the retuned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or,
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the4 1 2 petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings.
70. Ground for declaring election as a whole void.-The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of
(a) the 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. "It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."