MUHAMMAD HASHIM KHAN KAKAR , J--- Mujeeb-ur-Rehman Muhammad Hassani, the petitioner herein, through this petition under Section 139 of the Election Act, 2017 (hereinafter referred to as the "Act of 2017") has called in question the validity of the elections of PB-41 W ashuk, after losing the same.
2. The facts in brief giving rise to this petition are that the petitioner Mujeeb-ur-Rehman Muhammad Hassani (the "petitioner ") Zabid Ali (the "respondent "), being candidates of Balochistan Awami Party ("BAP ") and Jamiat-e- Ullama Islam ("JUl") and respondents No. 3 to 15, contested the general elections to the seat of Baluchistan Provincial Assembly PB-41. Washuk, held on 5th July, 2018. The petitioner has secured 12588 votes; whereas, the respondent has obtained 12807 votes, with the differential between the two being 219 in the first round of election.
The rest of the respondents, however , secured insignificant, number of votes. The respondent despite having been polled the highest number of votes among the contesting candidates could not be declared a returned candidate due to litigation between the parties.
3. The petitioner being aggrieved, filed the instant petition before this Tribunal, challenging the election of respondent mainly on the following grounds:--
(i) After closure of balloting. during the course of counting, the polling agents of petitioner were expelled from the concerned polling stations and Forms-45 were prepared in their absence:
(ii) Without electricity at some polling stations. balloting did remain in progress till late night;
(iii) The election workers of respondent extended threats to the voters and polling officers to join them and they were neither allowed to enter polling stations nor ;provided them Forms-45;
(iv) The election workers of the respondent found harassing the voters of petitioner by not allowing them to enter the polling stations rather they cast bogus votes in favour of respondent and converted the obvious win of the petitioner into defeat: and
(v) The election was manipulated and procured by the respondent through coercion and in connivance with the election staf f and thus election has been materially af fected which should he declared void,
4. Except the returned candidate. the other respondents did not put in appearance, though they were duly served and, therefore, were proceeded against ex parte.
5. The respondent filed his written statement, denying and refuting the various averments made in the petition. The divergent pleadings of the parties gave birth to the following issues:--
(1) Whether the petition is hit by the principle of estoppel?
(2) Whether the petition is not maintainable in view of the provisions of Section 144 of the Elections Act, 2017?
(3) Whether the respondent No. 2 has committed corrupt, practices and illegal acts on the day of polling i.e. 25.07.2018 and 07.10.2018, if so, to what extent?
(4) Whether the petitioner is entitled for the relief claimed for?
(5) Relief?
6. The petitioner . besides recording his own statement, produced and examined as many as ten witnesses. They all have stated in their affidavits-in-evidence that the success/election of respondent is the - result of corrupt and illegal practices. On the contrary , the respondent did not produce a single witness and only recorded his own statement.
7. Keeping in view the checkered history of the instant matter , it would be advantageous to state here a short brief of the matter in hand. After holding of the general elections on 25th July, 2018, an application for recounting of votes was moved on 27.07.2018 by the petitioner , which was rejected by the Returning Officer ("RO") by means of order dated 28th July , 2018, which reads as under:-- "The application moved by the candidate namely Mujeeb-ur -Rehman, wherein, he requested for the recount 40 votes cast in all polling stations in the constituency . As per Section 95(5) of Elections Act, 2017, it is not in the domain of the R.O. to recount the votes of the entire constituency; hence, the application in hand is thereby rejected."
8. Since, the Forms-45 of polling stations No. 44 and 45 were not included in the final consolidated statement by the RO, as such, the petitioner approached the Election Commission of Pakistan (the "Commission ") by means of filling a petition under Section 95(6), which was dismissed on 01.08.2018, with the following observation:-- "1 am directed to refer to the subject noted above, to convey that since the consolidation has been completed in PB-41, Washuk and Form-49 has been received, therefore, the applicant/petitione r may approach the appropriate forum through an election petition, if so desired"
9. The petitioner , being still dissatisfied tiled Constitutional Petition No. 1013/2018 before the Hon'ble High Court of Baluchistan, Quetta, which also met the same fate, vide order dated 15.08.20 18. The petitioner , once again, approached the Commission by means of filing a petition, which was clubbed, with the petition filed by one Muhammad Hanif, a candidate from NA-270, and the same were disposed of by the Commission through a common order , dated 1 1.9.2018, relevant part whereof reads as under:- "Accordingly , for the reasons noted above-both the petitions are disposed of in terms of different results were prepared by Returning Officer of NA-270 and PB-41. The Returning Officer , NA-270 include the result of same polling station i.e. 108 and 109 in the count but Returning Officer of PB-41 excluded the count of polling station Nos. 44 and 45 though the Presiding Officers and Assistant Presiding Officers were same, who submitted same result on form 45 and conducted poll in the same building. Thus, to resolve the controversy , we have no alternate except to pass an order of holding fresh poll at Polling Stations No. 44, 45 of PB-41 and. Polling Stations No. 108 and 109 of NA-270. As for as the polling station Nos. 107 and 244 of National Assembly are concerned, learned counsel for the petitioner could not provide any such material evidence to substantiate that any illegality was committed or to undermine the validity of election. Office to take follow-up action forthwith.
These are the detailed reasons of our short order of even date."
10. The afore mentioned order , passed by the Commission, was challenged before the Hon'ble apex Court by the parties while filing Civil Appeals No. 1093, 1101 and 1102 of 2018, which were rejected, vide order dated 01.10.2018, which reads as under:--- "The reasons recorded by the learned Election Commission of Pakistan for re poll of Polling Stations No. 44 and 45 with respect to PB-4 I and NA-270 are absolutely apt and cogent and in accordanc e with the jurisdictional authority vested with it. No illegality has been pointed out in the impugned judgment warra nting interference by this Court.
Dismissed accordingly ."
11. In view of the judgment, passed by the Commission, re-polling was held on 07.10.2018 at polling stations No. 44 and 45 and as a result of fresh electio ns, the respondent, Zabid Ali, once again succeeded to maintain his lead, as such, he was declared as a returned candidate by securing 13040 votes as against that of petitioner , who obtained 12705 votes, vide Notification No. F.2(37)/2018-Cord(1)., dated 15th October , 2018, hence the instant petition.
12. I have heard learned counsel for the parties and also perused the available record with their valuable assistance. After going through the available record, it has straightaway been observed that the petitioner has failed to prove his case against the respo ndent as the alleged allegations do not qualify the legal test laid down by Section 144 sub-section (1)(b) of the Elections Act, 2017, which reads as under:-- "144. 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."
13. Minute perusal of the allegations mentioned in the election petition as well as in their affidavits-in-evidence would show that the petitioner has badly failed to put forward full particulars of corru pt and illegal practices or, other illegal acts alleged to have been committed by the respondent and his supporters. Similarly , the petition is completely silent regarding the names of those persons, who allegedly committed corrupt or illegal practices. The affidavits-in-evidence, filed by the witnesses, also do not purport the names of those persons, who allegedly committed corrupt or illegal practices during the course of election. Instead of providing full particulars of the corrupt and illegal practices, allegedly committed during the election process, the petitioner has relied on vague and general allegations.
14. Similarly , the petitioner has annexed as many as sixteen affidavits-in-evidence with the petition but the same do not fulfill the mandatory requirements of Section 144 of the Act of 2017 insofar 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 respondent and his supporters. The typed affidavits-in-evidence of all the witnesses are almost stereotype and completely identical in all respects including minor details. The same being verbatim copies of each other seem to be prepared subsequently just to create a ground for de-seating the respondent.
15. It would also be interesting to observe that the previous pleadings of the petitioner would show and suggest to believe that the election, conducted on 25th July, 2018 in the whole constituency i.e. PB-41, was not disputed by the petitioner and his claim was only in respect of including the counts of polling stations No. 44 and 45 in the consolidated statement.
16. It is also surprising to observe that the petitioner while recording his stateme nt before this Tribunal has not uttered a single word in respect of alleged corrupt practices and illegal acts either committed by the respondent, his election agent or supporters. Thus, the allegations in respect of corrupt practices and illegal acts, seemed to be baseless, concocted and un-proved.
17. So far as the prayer of petitioner for re-counting of votes is concerned, it would be relevant to state that in this regard the petitioner's witnesses have deposed that the supporters of respondent were casting bogus votes but it is very strange and astonishing to observe that no objection whatsoever in nature was raised by them during the course of election despite the fact that under Section 86 of the Act of 2017, and the Code of Conduct, issued by the Commission, after consultation with all the stakeholders, they were authorized to do so after, depositing the required fee of Rs. 100/- with the concerned Officers. It would also suffice to add here that during the Course of election, number of personnel of law enforcing agencies were deployed at every polling station for maintaining law and order situation. The witnesses have admitted in their that they did not file any written complaint either with the Police, Army officials or the Commission with regard to their expulsion, harassment or casting of bogus votes. The petitioner has also failed to produce and examine any witness, who claimed to be deprived from casting his vote by the supporters of respondent. The petitioner has alleged rigging at 27 polling stations. but only 10 polling agents were examined and no evidence was led with regard to the corrupt practices allege dly committed-- at the remaining 17 polling stations.
18. It may be stated that the purpose of a recount/inspection is to verify and determine the authenticity and truthfulness- of the allegations on the basis whereof the election result is challenged, how ever in order to secure the sanctity of the election result and with a view not to encourage the loosing candidates to attempt and to frustrate the will of the people, a conscio us effort is to be made that it is only in the circumstances, which clearly justify , rather demand a recount/inspection, the recount is allowed. Undoubtedly , the Tribunal while seized of the election petition is vested with the power to order recount. however , such power is to he exercised on the basis of some Material prima facie establishing illegalities, corrupt practices and illegal acts during the process of election. A party is not entitled to claim recount of votes as a matter of right and it into be shown that there had been improper 'reception, refusal or rejection of votes, corrupt practices and illegal acts. The inspection or recount of ballot papers cannot be granted to support vague pleas made in the petition and not supported by the material facts or to fish out evidence to support such pleas, however , the Tribunal can grant such permission for inspection of ballot papers, subject to fulfilment at least of the following conditions:--
(i) that for setting aside an election of a returned candidate, the petition shall conta in an adequate statement of the material facts on which the petitioner relies in support of his case;
(ii) that the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary;
(iii) that it should also be kept in mind that the secrecy of the ballot should not be violated on the basis of frivolous, vague and totally unfounded allegations and that the primary object should be to do full justice in the matter;
(iv) that the Tribunal must be prima facie satisfied on the material produced before it regarding the truth of the allegations made for inspection/recounting; and
(v) that the discretion conferred on the Tribunal should not be exercised in such a way so as to enable the petitioner to indulge in a roving enquiry with a view to fist election to be void.
19. While considering the instant case on the touchstone of the said settled principl es of law. I am of the considered view that the petitioner has not been able to make out a case for inspection/recounting, for the reasons; firstly , not a single document has been produced to establish that any written complaint was made by the petitioner , his election agent or polling agents regarding the corrupt practices or illegal acts committed by the respondent; secondly , not a single doubtful -vote was challenged by the polling agents of petitioner on the day of election;' thirdly , merely because some serious allegations have been made in the election petition, it would not be proper to order inspection/recounting of the voters of about 100 polling stations on the promise that no prejudice would be caused to the returned candidate; fourthly , though, the respondent was required to be declared a returned candidate after the elections, held on 25th July, 2018 on account of his lead, however , due to the corrupt practices and illegal acts committed by the petitioner at polling station Nos. 44 and 45 with the help of state missionary , re-polling was held and the respondent again maintained his lead; fifthly , request of petitioner for re-counting of votes was not entertained by all the forums i.e. the Returning Officer, the Commission, the Hon'ble High Court as well as the apex Court in the first round of litigation, therefore, it becomes a past and closed transaction and re-agitating of the said claim at this stage is unjustified and finally . ordering recounting of the total votes after a period of about 4/5 months of the elections, in absence of evidence regarding the safe custody of election materials, would serve no purpose.
20. Reverting to the next contention of Arbab Muhammad Tahir, learned counsel for the petitioner , regarding non- casting of a single vote at polling station No. 45, it would be relevant to state here that general elections have become a major factor in stabilization and democratization despite all risks and problems, they entail, however , holding of general elections in Pakistan, particularly , in Baluchistan was a tight rope walk between war and peace, stability and instability on, account of the reason of worst law and order situation prevailing in this part of the country , especially at Makran and Darkhashan Divisions. It is evident from the record that as per statement of the Presiding Officer of polling station No 45, no vote was cast at the said polling station on 25th July, 2018 due to fear and panic of terrorists. The non-casting of votes at polling station-45 cannot be attributed to the respondent nor his election can be declared void on this ground.
The onus to prove the, factual controversy of corrupt and illegal practices, alleged to have been committed during the election process, was upon the petitioner . He did not successfully prove the issue of corrupt practices.
Resultantly , the election petition, moved by the petitioner , is found to be baseless and unproved, consequently , is dismissed, with no order as to cost.