MUHAMMAD HASHIM KHAN KAKAR, J.---Through this common judgment, I intend to dispose of election petition Nos,12 and 25 of 2018, arising out of one and the same constituency i,e, PB-1 1 Nasirabad-1 (the "Constituency" ).
Petitioners, Muhammad Sadiq Umrani and Mir Shaukat Ali as well as respondent Mir Sikandar Ali Umrani contested election for the seat of Provincial Assembly , Balochistan, from PB-1 1, Naseerabad-1, in the General Elections, held on July 25, 2018. As per result, published in the Official Gazette of Pakistan vide Notification No,F.2(42)/2018-Cord.- dated August 7, 2018, issued by the Election Commission of Pakistan (the "Commission "), respondent Mir Sikandar Ali Umrani was declared as a Returned Candidate from the said constituency .
2. Being aggrieved of the result of election, declared by the Commission, the petitioners filed the instant petitions to declare the election of respondent Mir Sikandar Ali as void; inter-alia, on the grounds that the process of election was rigged by the Returned Candidate and his agents in connivance with the polling staff. The petitioners further pleaded in their petitions that respondent Mir Sikander Ali, who is an influential person, with connivance of the Returning Officer as well as the Presiding Officers of some of the polling stations, maneuvered the results of election in violation of the spirit of free, fair and transparent election. In those polling stations, wherein respondent Mir Sikandar Ali has been shown to be the winner , fake identity cards were used for the purpose of casting bogus votes by the respondent Mir Sikandar Ali and his supporters and fictitious results were prepared in order to win the election.
3. The petitioners also filed petitions under section 9(1) of the Election Act, 2017, before the Commission to declare the poll as void, which were dismissed with the observations that the petitioners can agitate their grievances before this Tribunal. Hence, these election petitions under section 139 of the Act of 2017, assailing the result, whereby respondent Mir Sikandar Ali was declared as Returned Candidate on the ground that massive corrupt and illegal practices were committed by him with the help and connivance of local administration and election staff as stated hereinabove.
4. In response to the notices issued by this Tribunal, the respondent/returned candidate contested the petitions and submitted his written statements separately . On divergent pleadings of the parties, following issues, which are common in both the petitions, were framed: "(1) Whether the respondent No, 2 has committed illegal and corrupt practices on the day of polling i,e, 25.07.2018, if so, to what extent?
(2) Whether the petitioner is entitled for the relief claimed for?
(3) Relief?"
5. In order to prove the respective issues, the parties led oral as well as documen tary evidence. Irshad Ali, Ubaid Ullah, Shabir Ahmed, Imdad Hussain, Zafar Ali, Iltaf Hussain, Ghulam Murtaza, Faizullah, Muhammad Hashim, Muhammad Panah, Shahid Nadeem, Dawood Mamand, Khursid Ahmed and Munir Ahmed entered the witness box. Their affidavits-in-evidence were filed with the election petitions. They owned their affidavits and averments of the affidavits in their examination-in-chief. The witnesses averred in their affidavits that they were voters and polling agents of the petitioners at polling stations Nos, 14, 28, 33, 34, 36, 37, 38, 39, 52 and 77 in the general election 2018; that on the day of polling massive rigging was committed and large number of fake votes were cast; that in violation of section 53 of the Act of 2017, on 22.07.2018 two days prior to polling day, the Presiding Officers of some of the polling stations were altogether changed; that during counting of the votes agents of the petitioners were sent out of the polling stations by force; that Forms-45 were not handed over to the polling agents of the petitioners and that the applications, moved by the petitioners for the purpose of recounting, were dismissed by the Returning Officer without applying judicial mind and justification; that the respondent concealed certain properties and foreign visits at the time of filing his nomination papers, as such, failed to demonstrate himself as an honest person in terms of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution").
Apart from above, the petitioners also got recorded their own statements on oath.
6. In addition to evidence of the petitione rs, Mr. Inayath Ullah, Barech, Judicial Magistrate/Returning Officer was also summoned as a Court witness, who besides producing the whole record of Forms-15, also submitted 'a comprehensive report Ex. C/1-A.
7. Similarly , the Returned Candidate i,e, respondent Mir. Sikandar Ali produced and examined two witnesses i,e, Abdul Qadir , Muhammad Azam and also recorded his statement on oath.
8. Messrs Ishaq. Nasar and Ahsan Rafiq Rana, learned counsel appearing on behalf of the petitioners, contended that the respondent Mir Sikandar Ali Umrani has won the election while adopting massive and illegal corrupt practices in collusion with the District Administration and polling staff, thus, the result, declaring him as a Returned Candidate, is liable to be set aside. In support of their contentions, they have referred to the statements/af fidavits- in-evidence of the petitioners and their witnesses, who averred that bogus votes were cast in favour of the Returned Candidate by his supporters with the help of polling staff. They lastly submitted that the Returning Officer did not perform his legal duties, as he was in league with the respondent Mir Sikandar Ali, hence, his result is liable to be declared as void and requested for declaring the petitioner Mir Muhammad Sadiq Umrani as a Returned Candidate.
9. On the contrary , Mr. Muhammad Amir Rana, representing the respondent Mir Sikandar Ali has argued that no materials have been placed on record by the petitioners, which could warrant interference of this Tribunal. He further submitted that under the law the petitioners were required to give details of the particulars of the alleged corrupt and illegal practices, but they have failed to do so, thus, the petitions are liable to be dismissed.
10. After hearing learned counsel for the parties and going through the available evidence, it has straightaway been observed that the petitioners have failed to prove their cases as the allegations do not qualify the legal test laid down by section 144 subsection (1)(b) of the Elections Act, 2017, which reads as under: "Contents of petition .-(1) An election petition shall contain-
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act."
11. A careful and minute perusal of the allegations mentioned in the election petitions and the above-mentioned provisions of law would show that the petitioners have badly failed to put forwar d full particulars of corrupt and illegal practices or other illegal acts, alleged to have been committed by the Returned Candidate and his supporters. Similarly , the petitions are completely silent regarding the names of those persons, who allegedly committed corrupt or illegal practices. Likewise, the affidavits-in-evidence, filed by the witnesses, also do not purport the names of the person who have allegedly committed corrupt and malpractices during the course of election and the witnesses while recordin g their statements have made dishones t improvement by naming some persons, related to the respondent. A bare perusal of the allegations mentioned in the Election Petitions would show that instead of providing full particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioners have relied upon vague and general allegations. It is also pertinent to mention here that the witnesses in their affidavits-in-evidence have repeated the vague allegations in line with each other word to word. The affidavits-in-evidence are stereotype having blank columns regarding names, parentage and residence of deponents and filled in subsequently . It seems that the affidavits are prepared by one and the same person subsequently just to create concocted and baseless grounds for un-seating the respondent.
12. It would also not be out of place to mention here that in terms of section 156(3)(a) of the Elections Act, 2017, even if any corrupt or illegal practice has been committed and if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent, the election of the returned candidate cannot be declared to be void because very strong, convincing and cogent evidence is required for un-seating a returned candidate. As the petitioners have not been able to prove beyond reasonable doubt that respondent Mir Sikandar Ali or any of his election agents committed any corrupt or illegal practice as such, the petitioners are not entitled to the relief being sought.
13. Similarly as has been observed hereinabove, the affidavits-in-evidence also do not fulfill the mandatory requirements of section 144 of the Elections Act, 2017, in so far as it failed to give details and complete particulars of the alleged corrupt or illegal practices or other illegal acts alleged to have been committed by the returned candidate and his supporters. The typed affidavits-in-evidence of all the witnesses are almost stereotype and completely identical in all respect including minor details and only vary in respect of the names, parentage, profession and residences of the deponents. Although most of the witnesses produced by the petitioners claimed that bogus votes were being polled by the supporters of the respondent, yet it is very strange and astonishing that no objection whatsoever in nature was raised by them at the time of polling despit e the fact that under Section 86 of the Act of 2017, as well as the Code of Conduct, issued by the Commission ,' they were authorized to raise objection on any doubtful voter subject to deposit of Rs,100/- with the concerned Presiding Officer against proper receipt. The allegations, alleged by the petitioners and their witnesses, being vague, generalized and non-specific, do not meet the requirements of section 144 of the Act of 2017.
14. Learned counsel for the petitioner Mir Muhammad Sadiq Umrani further argued that petitioner secured 1767 votes at polling station Nos, 6, 7, 24, 31, 32, 40, 42, 43, 64, 66 and 79 but the same were not counted in his favour while preparing Forms-48/49 and, on the contrary , the votes of respondent were illegally enhanced. In this regard he also placed on record some photo copies of Form-45, as Mark P/8-1 to 13. In this respect, it would be relevant to make a reference to the order dated 31.10.2018, made by this Tribunal, which reads as under: "Mr. Arbab Muhammad Tahir, learned counsel for petitioner pointed out that a number of votes obtained by the petitioner were not included in the statement of count by the learned Returning Officer (RO) in the consolidated result i,e, Form 48, as such, in this regard, he intends to examine some witnesses in order to produce the result (Form 45) of such Polling Stations.
When Mr. Muhammad Aamir Rana, learn ed counsel appearing on behalf of the returned candidate was confronted with the contention raised on behalf of the learned counsel for the petitioner , he frankly conceded that some votes obtained by the petitioner as well as the returned candidate have not been include in the Statement of Count inadvertently and, fairly suggested that he has no objection if the Returning Officer is directed to prepare final result (consolidated result) within the purview of Section 90 of the Elections Act, 2017.
However , in response of the offer learned counsel for the petitioner seeks short adjournment to consult with his client/petitioner ."
15. Though it was a fair offer, made by the learned counsel for the respondent, yet the same was not accepted by the petitioner . Suffice to add here that the petitioner has produced and placed on record Forms-45 of some of the polling stations as Mark P/8-1 to 13 (declared to be fake by the RO) but he has failed to establish the said fact. If, 1767 votes are counted in favour of the petitioner Muhammad Sadiq Umrani, who secured 6978 votes, even then, he cannot be declared as a returned cand idate in view of the consolidated statement of count, prepared and issued by the Returning Officer concerned, as there is difference of about 3000 votes between him and the returned candidate. In such view of the matter ordering recounting of the votes and preparation of fresh consolidated statement by the Returning Of ficer would amount to nothing but a futile activity .
16. As has been stated above, the offer made by the learned counsel for respondent for fresh tabulation of the votes was declined by the petitioner , however , for my own satisfaction, while exercising powers under section 165 of the Act of 2017, the Judicial Magistrate /Returning Officer was also summoned and examined as a Court witness, who besides producing the copies of Forms-45, also submitted a detailed and comprehensive report. In respect of allegations of non-inclusion of valid votes in the final consolidated statement, the report reveals as under: "Contents of Para. No,6 are admitted to the extent that as per Form-15 the petitioner secured 73, 38 and 88 (total 199 votes) in polling stations Nos, 28. 33 and 77 respectively . It may be pointed out here that besides above typographical mistakes the petitioner secured 90 votes in polling station No,89 but inadvertently it is shown as 208 secured votes in Form-45 and Form-48 the same was not mentioned as above. The petitioner did not mention the same in his petition of securing less votes, rather the respondent No,2, in polling station No,89 secured more votes then the petitioner . However again now the Form-45 and Form-48 are compared and updated and following four (4) mistakes have been taken out. Three are already mentioned by petitioner but the 4th one is omitted. The mistake happened due to the reason that the three candidates at 1st, 2nd and 3rd position were adjacent to each other at serial Nos, 29, 30 and 31. It is also pertinent to mention here that the grand total is still the same as it stood on 28th July 2018 in Form-48. The above mistake was clerical and typographical. The old and new secured votes are given below: No, of polling stationMir Sikandar Ali Umrani Mir Shokat Ali Mir Muhammad Sadiq Umrani Old New Old Old New 28 40 158 73 28 40 158 33 40 260 38 33 40 260 77 155 155 88 77 155 155 89 86 86 90 89 86 86 Total 321 659 289 Total 321 659 95 PS Result 10057 10395 5359 95 PS Result10057 10395 It may also be stated that at the time of submission of Form-45 with the replyi ng respondent by the presiding officers, the petitioner did not submit any complaint and kept quiet for the reasons best known to him otherwise his this grievance would have also been redressed The Form-45 of polling station No,89 is annexed herewith for the sake of facility and marked as Annexure-F"
17. Similarly , the report in respect of Forms-45, speaks as under: "The Contents of Para No,7, are totally false and denied. The petitioner on his own made Form-45 and mentioned it in the tables at pages 11 and 13 of the petition which has no nexus with the officia l record. The Form-45 provided by the Presiding Officers to the reply respondent is on record, the same was hand ed over to the petitioner as well as to other contesting candidates. The same was scanned and provided to the Hon'ble. ECP, PEC and every individual if asked. The petitioner made self-made counting without any legal reason. The original Forms-45 of all the 95 Polling Stations have been requisitioned by the Hon'ble ECP vide letter No,F.2(4)12018-Cord dated 28.07.2018, the DEC through letter No,F.4(8)12018-Elec dated 2nd August 2018 and the replying respondent provided the same through letter No,290-93 dated 2nd August 2018 and after receipt in this regard a Certificate is issued by the Assistant Director (Elec) Balochistan Quetta on 4th August 2018. Copies of the same are filed and marked Annexures "G to K". Complete set of scanned certified copies of Forms-45 of 95 Polling Stations is also annexed herewith along with Form-48.
For the sake of facility scanned copies of Form-45 of polling stations Nos, 6, 7, 24, 31, 32, 40, 42, 43, 64, 66, and 79 are enclosed herewith and marked as Annexure "L to V."
18. After coming to the conclusion that it is a case of no evidence to the extent of allegations of corrupt practices and illegal acts on the part of respondent, I take up the third ground of attack against the candidature of respondent that he is a defaulter of the Excise and Taxation Department, and did not mention his fourth wife namely , Kalsoom Sikandar in his nomination paper . The contention is without any substance for the reasons; firstly , the said objections were not raised by the petitioner at the time of scrutiny and secondly , the name of Mst. Kalsoom has inadvertently been mentioned in the family tree of the respondent and the petitioner has admitted during the course of cross-examination that her name has been deleted from the family tree of respo ndent by the National Database and Registration Authority (NADRA). Besides such admission on the part of the petitioner , PW-5. Dawood Momand, Assistant Director , Operation, NADRA has also stated that the name of Mst. Kalsoom has been deleted from the family tree of respondent by producing the fresh family tree of respondent.
19. The learned counsel for petitioner lastly contended that the respondent has failed to list some of the properties as his assets at the time of filing his nomination papers and hence, failed to demonstrate himself as an honest, sagacious and righteous person in terms of Article 62(1)(t) of the Constitution. In this regard he also halfheartedly made an attempt to point out some differences in the nomination form and assets filed with the FBR, as well as non-mentioning in respect of foreign visits. The contention is devoid of force for certain reasons; firstly , the respondent has never visited Japan, though a valid visa was obtained, secondl y, he had annexed the copy of passport with the nomination form, having exit and entry dates; thirdly , the property at Sibi has been mentioned the list of assets. Even otherwise, an omission to declare an asset by an elected member can only be considered material when non-disclosure is meant to conceal a wrongdoing. Mere non-disclosure of an asset ipso facto does not render a person to be dishonest in terms of Article 62(1)(f) of the Constitution. In this respect reference can be made to the cases of "Khawaja Muhammad Asif v. Muhammad Usman Dar", (Civil Petition No,1616 of 2018)" 2018 SCMR 2128 , "Muhammad Hanif Abbasi v. Imran Khan Niazi " (PLD 2018 SC 189) and "Malik Shakeel Awan v.
Sheikh Rasheed Ahmed " (Civil Appeal No,467 of 2015).
For what has been stated above, these petitions, being without any merit, are dismissed, with no order as to cost.