AMJAD ALI SAHITO, J.---This election petition, under section 139 of the Election Act, 2017 read with section 142 of the Election Rules, 2017 (which hereinafter is referred to as "the Act of 2017"), is directed against Notification dated 07.08.2018, issued by respondent No. 1 after the General Elections-2018. Election to Constituency of Provincial Assembly PS-48, Mirpurkhas-II, was held on 25.07.2018 which hereinafter is referred to as "said Constituency"). Petitioner and respondents Nos. 2 to 14 have contested the General Elections-2018 for said constituency. Petitioner obtained 36, 241 votes whereas respondent No.6 obtained 38,097 votes, as such, he/ respondent No.6 was declared as a 'Returned Candidate'.
2. In his election petition, the petitioner has stated that he contested the election on the said Constituency as an independent candidate. He is aggrieved by the conduct on the part of the election functionaries in the said Constituency as well as the Election Rules have been flagrantly violated throughout the poll, as such petitioner reserves his rights to agitate all such grievance concerning polling station wise illegalities committed by the election functionaries to demonstrate the rigging against the petitioner. He alleged that notwith-standing the aforementioned conduct on part of the election functionaries as well as the rigging carried out by and at the behest of respondent No. 6/returned candidate; without prejudice the right of the petitioner to agitate polling wise illegalities committed by the election functionaries as well as by and at the behest of respondent No.6, the petitioner through the instant petition seeks a recount of the votes in the said Constituency. The petitioner has alleged that the R.O. appointed most of., the Presiding Officers, Assistant Presiding Officers and Polling Officers while being in collusion with respondent No.6 to give undue favor to respondent No.6 and loss to the petitioner. He also alleged that after the close of the polls the Presiding Officers of 131 polling stations provided results of count (Form XIV), but did not provide ballot papers account (Form XV). At the time of consolidation of results by R.O. on the basis of tampered form, the petitioner raised an objection, pointed out the position of tampered record sent by the Presiding Officers and requested for recounting but the R.O. illegally consolidated the result of count and furnished the same. In this regard, the petitioner made complaints to various authorities including R.O. Provisional as well as final consolidation of the result by the R.O. is contrary to section 95(2) of the Act, 2017 and rule 80 of the Election Rules, 2017.
An application for the same subject was also moved to the Chief Election Commission of Pakistan but no fruitful result. The petitioner has further contended that there is a pre-requisite condition of 5 % of the total ballots polled or ten thousand, as such, the petitioner moved an application for a recount of the ballot papers and in terms of section 95 of the Act of 2017 the R.O. must allow such application; however, without application of mind and in absolute disregard of the mandatory provisions of the rules and Act of 2017, the application was dismissed without any cogent reason, which ought to have been allowed by operation of law in the facts and circumstances of the instant case. Such order of dismissing the application for a recount of votes was passed on an irrational, unreasonable, disproportional and illegal order, without jurisdiction and contrary to law.
3. The petitioner has further alleged that form-45 either were not given to the agents or somewhere given on plain papers containing the seal of the election commission through containing similar number but signatures whereon are different leading towards an aspect that by forged signatures the agents were kept on hallow hopes of issuance of Form-45; somewhere requirements of Form- 45 have not complied with even thumb impression is missing. He further alleged that out of a total of 131 polling stations, Form-45 of a few polling stations were only supplied to the polling agents of the petitioner on plain paper bearing a stamp of the Election Commission of Pakistan and a sign of a Presiding Officer. Petitioner further contended that as per his polling agents, many spoiled votes were wrongly counted in favour of the candidate of PPP/respondent No.6 despite the protest of the polling agents. At several polling stations, the polling agents of the petitioner were restrained from entering the polling stations at the time of counting of votes which shows the irregularity floating on the face of the record. Later on, when Form-47 being a provisional result was issued, the petitioner transpired that he had received a total of 36,241 votes whereas respondent No.6 had received 38,097 votes. He has alleged that fairness and transparency of the polls should have been ensured in accordance with the provisions of elections laws and under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, but all the relevant provisions have been blatantly brushed aside. Respondent No.6 in league with R.O. has committed corrupt practice and hence his conduct falls within the ambit of section 175 of the Election Act, 2017, therefore, this election showing him as returned candidate is liable to be declared void. The petitioner, therefore, filed an instant election petition with the following prayers:-
(a) Declare that the impugned notification dated 07.08.2018 to the extent of PS-48 Mirpurkhas-II is contrary to law, consequently set aside the same. Or IN THE ALTERNATIVE
(b) Declare that the election of Respondent No. 6 as returned candidate is void and fresh poll are directed to be conducted in the entire constituency.
(c) This Honourable court may kindly be pleased to pass order for recount of votes for the entire polling stations comprising 131 polling stations of PS-48 Mirpurkhas-II, Sindh.
(d) That, the mala fide conduct conjointly committed is declared to be corrupt and illegal practice as defined in Chapter X of the Election Act, 2017.
(e) Any other relief which this Honourable Court deems fit may be awarded to the petitioner in the circumstances of the case.
4. In response to notices issued by this Tribunal to the respondents through all possible modes for effecting service upon them, only respondent No.6 being returned candidate has chosen to contest the petition and submitted his written statement, questioning the maintainability of this petition on the ground that the petitioner has not complied with the provision of subsections (1) and (4) of Section 144 of the Act of 2017 . He while denying the averments of memo of petition contended that the election was held according to the Election Act and Election Rules, 2017. Respondent No.6 has denied that he either violated any provision of the Election Act and the Rules or been involved in rigging. The petitioner has failed to give complete particulars of corrupt or illegal practices, including the names of the parties alleged to have committed such corrupt practice or illegal practice along with the date and place of such commission of such practices. He has also failed to submit details of alleged corrupt or illegal practice caused by a returned candidate or his election agent or another person with the connivance of the candidate. He contended that an election of a returned candidate shall not be declared void if the Election Tribunal is satisfied that any corrupt or illegal practice was committed without the consent or connivance of that candidate or his election agent; that the R.O. of PS-48 was a Civil Judge and rudicial Magistrate-I, Mirpurkhas being an independent person and made all appointments of election staff on his own accord and the petitioner neither raised any objection nor ever made any application against such appointment of. election staff. Consolidation of results has been carried out following the provisions of section 95
(2) of the Act of 2017 and rule 80 of the Rules. He contended that it is also unclear as to how the petitioner got to know or rigging if his agents were not available, as such, this establishes the falsity of this allegation; that the petitioner nor his agent made any complaint regarding the casting of bogus votes to the R.O. on the polling day. Respondent No.6 in his written reply prayed for dismissal of instant petition with special costs.
5. Initially, the National Database Regulatory Authority through its Chairman, State Bank of Pakistan, Islamabad was arrayed as respondent No.15; however, respondent No.15 filed an application being M.A No.5778/2018 for deleting its name from the array of the respondents, which was allowed by this Tribunal vide order dated 27.11.2018 and the name of respondent No.15 was deleted from the array of respondents. Respondent No.1 ECP failed to file a written reply as such, debarred from filing its reply. Respondents Nos. 2 to 5 and 7 to 14 chose not to contest despite service of notices, as such, they were declared ex-parte vide order dated 19.11.2018.
6. From the pleadings of parties, the following issues were framed:--
1. Whether the petition is not maintainable under the law?
2. Whether the election and result of the returned candidate/respondent No.6 Syed Zulfiqar Ali Shah for the constituency of PS-48, Mirpurkhas-II, Sindh in the General Elections, 2018 had been procured by corrupt and illegal practices with the help of staff appointed to perform duties thereby committed violations of their official duties?
3. Whether the alleged corrupt and illegal practices have been committed by the returned candidate or his election agent or by any other person with the consent and connivance of the returned candidate?
4. What should the decision be?
7. After framing of issues on 24.04.2021, the petitioner examined his attorney namely Shakir Hussain, who produced copies of the petition and amended petition. Petitioner witnesses namely Waqar Ahmed and Munawar Khan who are stated to be agents of the petitioner were also examined. They produced their affidavits-in-evidence. Thereafter, counsel for the petitioner closed his side of evidence. The contesting respondent No.6/returned candidate Syed Zulfiqar Ali Shah examined himself his affidavit-in-evidence and his counsel closed the side of evidence.
8. Learned counsel for the petitioner while reiterating the contents of the petition mainly contended that all the requisite provisions of the Act, 2017 have been complied with, the petitioner has also filed an affidavit of personal service swearing on oath that he has personally sent complete copies of the petition along with all the annexures, list of witnesses and documentary evidence to all the respondents, TCS receipts of the same have been attached with the memo of the petition; despite that the petitioner has also provided a complete copy of the petition along with all the annexures to the respondent No.3. He has further contended that grave illegality and irregularity has been committed during the election process, as such, the entire process suffers from illegal and corrupt practices. He has contended that the polling agents of the petitioner were thrown from the polling stations and form-45 were not provided to them. He has further contended that during the counting of results at various polling stations, the agents were not allowed in the counting process; however, the result was announced late on the next day of the poll. He has also contended that figures of votes in respect of spoiled, rejected, canceled, cast and unused ballot papers do not match with the total provided ballot papers at various polling stations, which clearly shows that the polling staff having nexus with returned candidate/Grand Democratic Alliance, who have knowingly made illegal and corrupt practice. Forms-45 and 46 do not match each other. He has further contended that though there was the difference of only 923 votes in between the votes obtained by petitioner and returned candidate, which becomes 0.6%; even, the application for recounting made by the petitioner before R.O. within time was not considered though the R.O. is bound to make recounting in case the difference of votes less than 5% polled in the constituency or ten thousand votes. Learned counsel has further contended that the returned candidate in his evidence has also admitted the mistakes that occurred in the figures in Form-45 and Form-46. He has contended that the result of the election is procured in favour of returned candidate by corrupt and illegal practices with the conveyance of Presiding Officer and polling officer and in contravention of mandatory provisions of the Election Act and Rules, 2017. He, therefore, prayed that the election of respondent No.3 be declared as void and consequently, an entire fresh poll be conducted or at least fresh polling on polling station Nos.9, 12, 37, 38, 44, 45, 95, 96, 97, 99, 101 and 122 may be ordered coupled with recounting of the votes. In support of his contentions, he has relied upon the decision in the cases reported as 1969 SCMR 189, 2001 SCMR 1700, 2004 SCMR 244, PLD 2018 (sic) 735, 1987 MLD 37, 1986 CLC 2499, 2020 YLR 2031 and 2020 YLR 132.
9. Conversely, learned counsel appearing on behalf of respondent No.6 while rebutting the arguments of learned counsel for the petitioner has contended that no illegality or irregularity was made during the process of the poll and the entire poll was conducted peacefully in the presence of law enforcing agencies, which were deployed on all the polling stations. He further contended entire polling process was supervised through CCTV cameras, thus, no question of rigging or procuring results through corrupt and illegal practices arises; however, if any inconsistency as alleged by the petitioner in Form Nos.45, 46, etc. is made, on such ground whole election process cannot be questioned; such discrepancies could be due to lack of expertise of the polling staff. The application for recounting of votes by the petitioner was moved after the consolidation of result, as such, the learned R.O. has rightly dismissed the same by a speaking order. He has further contended that the petitioner has failed to bring on record any complaint concerning his allegation during the poll, as such, the allegation levelled by the petitioner are nothing but baseless and forged; that an attorney cannot file an election petition on behalf of the petitioner; that the full particulars of the alleged corrupt or illegal practices have not been provided in the petition; that the burden to prove illegal and corrupt practices lies on petitioner; that the allegations of corrupt or illegal practice are based on mere presumptions and assumptions, which in the eyes of law are unwarranted. He, therefore, prayed that the petition being not maintainable is liable to be dismissed with special costs. In support of his contentions, he has relied upon the judgment passed in the case reported as PLD 2020 Supreme Court 718, 2021 SCMR 85, 2017 SCMR 292, PLD 2016 SC 79, PLD 1957 SC 91, PLD 2016 SC 97, 2018 SCMR 93 and PLD 2017 SC 684.
10. The learned Assistant Attorney General for Pakistan and Law Officer of the Election Commission of Pakistan have contended that the election was conducted peacefully and no illegal practices or procurement of results with the connivance of officials or in contravention of mandatory provisions of the Act of 2017 was made.
11. Heard and perused the material available on record with the able, assistance of counsel appearing on behalf of respective parties.
12. Issue No. 1 relates to the maintainability of the instant petition. Learned counsel for respondent No.6 contended that an attorney cannot file the petition on behalf of the petitioner. He has further contended that the petitioner has also failed to verify the petition as per subsection (4) of section 144 of the Act of 2017. He, therefore, submits that the petition is not maintainable. On the other hand, learned counsel for the petitioner has contended that all the provisions of the Act, 2017 have been complied with and the verification of the petition has been made following the law. So far presentation of the petition through the attorney is concerned, it would be sufficient to say that as per clause (a) (ii) of subsection (2) of section 142 of the Act of 2017 permits the petitioner to present a petition by an authorized person. Further, the petition cannot be dismissed at this stage on the point of maintainability as the order in this regard could have been passed at the earliest before the issuance of notice to the respondents. Subsection (1) of section 145 of the Election Act, 2017 provides that if any provision of section 142, 143, or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition; whereas its subsection (2) says that if an election petition is not rejected under subsection (1), the Election Tribunal shall issue notice to each of the respondents through all certain modes. It is an admitted position that at the time of filing this petition, it was not summarily rejected by this. Tribunal and the notices were issued; the written statement was filed and issues were framed; evidence of the parties has been recorded. The main scope for rejection of petition is at the earliest stage and if both subsections (1) and (2) of section 145 of the Election Act, 2017 are read together, then it would be clear that such chapter for rejection of election petition in the circumstances of an instant petition becomes closed after issuance of notice to the respondents. Moreso, vide order dated 13.3.2021, amendment of the petition to the extent of verification on oath was allowed and nothing is available on record as to whether the said order was challenged and findings of this Tribunal were reversed. As such, the petition is maintainable and this issue is answered in favour of the petitioner.
13. Issue No.2. On this issue, it is to be determined as to whether the result of the returned candidate/respondent No.6 has been procured by corrupt and illegal practice with the help of staff appointed to perform duties thereby committing violations of their official duties. In this regard, the petitioner has examined his attorney Shakir Hussain, who deposed that "near about 1800 is difference of votes in between the votes obtained by the petitioner and returned candidate, as such, I am requesting that fresh poll may be conducted. The news was also played on 'Geo News Channel'." During cross-examination, he admitted that "It is correct to suggest that I have not produced documents which suggest that election was not conducted free, fair and impartial. It is correct to suggest that in my evidence, I have not disclosed the name of any person/ government official who interfered in the election process. It is correct to suggest that in my evidence, I have not disclosed time, place and polling station in which election was conducted free, fair and impartial. It is incorrect to suggest that the entire petition is based upon hearsay evidence, however, on some polling stations the voters of the petitioner Syed Ali Nawaz Shah were not allowed to cast their votes. It is correct to suggest that in my evidence, I have not disclosed the numbers of polling stations, in which any voter was stopped for casting his votes."
14. PW Waqar Ahmed in his evidence stated that he was appointed as a polling agent. However, during cross-examination, this witness has admitted that "It is correct to suggest that I have not produced the agentnama in my affidavit-in-evidence or in evidence to believe that I was appointed as agent at polling station Makhan Samo; however, I do not know the number and name of said polling station. It is correct to suggest that I have not produced any document which shows or suggests that the election was not conducted free, fair and impartial. The Presiding Officer of polling station Makhan Samo was involved in rigging. It is correct to suggest that have not filed any application to the R.O. Army personnel or Ranger personnel. It is correct to suggest that Ranger Personnel were also appointed in election duties. Orally we have been informed about the announcement of result; however, I have not received Form-45. It is correct to suggest that in my affidavit-in-evidence, it is not written that I have not received Form-45. It is correct to suggest that I have not appeared before R.O. in order to file any application about the involvement of Presiding Officers in rigging at polling stations and not allowing the voters of the petitioner."
15. PW Munawar Khan was also examined, who produced his affidavit-in-evidence. During the cross-examination, he deposed that "I do not know the name of polling station where I was appointed as polling agent by the petitioner; however, it was in Government School Jhaloori. It is correct to suggest that I have not produced any agentnama which could suggest that I was appointed on the said polling station. I do not know the name of Presiding Officer, who was involved in rigging in the process of polling and involved by casting fake votes. It is correct to suggest that I have not filed any application to the Presiding Officer, R.O. or any other person, who was performing election duties at said polling station. Army personnel and Ranger personnel were posted for the election duties at the said polling station. It is correct to suggest that I had not appeared before the R.O. for the said complaint. It is correct to suggest that R.O. who was biased against us and rejected the ballot papers having symbol of Arrow. It is incorrect to suggest that I was not appointed agent of the petitioner at any polling station of constituency PS-48."
16. Respondent No. 6 / returned candidate during his evidence has produced his affidavit-in- evidence. He deposed that he has secured about 38000 votes and the petitioner obtained about 36000 votes. There was a difference of about 2000 votes in between the votes obtained by him and secured by the petitioner. The Army Personnel were deputed inside and outside of the polling stations. The returned candidate was cross-examined by the counsel for the petitioner, in which he deposed that; "It is correct to suggest that I have not read over the contents of petition, however, my counsel has read over the contents of petition. It is correct to suggest that specifically I have not denied the contentions in the memo of petition and affidavit-in-evidence. It is correct to suggest that I could not say that what is written in para-3 of my affidavit-in-evidence including paras Nos. 1, 2, 4 and 5. 11 is correct to suggest that 1 have secured 38112 votes while petitioner All Nawaz Shah secured 36271 votes and there is difference of 1841 votes. It is correct to suggest that petitioner Ali Nawaz has moved application for recount of votes. Voluntarily says that after consolidation of result, he has moved application then R.O. has no powers to order for recount of votes. The application was moved by the petitioner after 03/04 days of the announcement of result. It is correct to suggest that after filing of application by the petitioner the notice was issued by the R.O. as such, my counsel appeared before the R.O. who has filed the objections on that application before the R.O. Voluntarily says that application for recounting of the votes was dismissed. I cannot say whether it is written in the order about the consolidation of the result in the order passed by the R.O. I do not know about the contention of subsection (5) of section 95 of the Election Act, 2017. It is correct to suggest that if there is difference of 10,000/- (ten thousand) or 5% in the votes, the R.O. has to pass the order for recounting of votes. It is incorrect to suggest that under my compulsion the R.O. has dismissed the application filed by the petitioner for recounting of the votes. It is incorrect to suggest that under my pressure and others by making illegal practice the R.O. has dismissed the application for recounting of ballot papers. It is incorrect to suggest that news was flashed on Geo TV that petitioner Ali Nawaz has won the election...It is incorrect to suggest that the application was moved by the petitioner before the Election Commission of Pakistan and I have contested the same and by adopting foul methods, it was not proceeded there."
17. A vigilant look at the entire evidence reveals that the version of the petitioner concerning procurement of the result through corrupt and illegal practices has not been supported by their testimonies or through any documentary evidence. The petitioner has to bring on record documentary proof or corroborative pieces of evidence; however, neither he has brought on record any document showing such illegal practice or evidence which supports him. Even the main contention of the petitioner is that forms-45 were not provided to them but no such written complaint was made at the relevant time nor has been brought on record: The petitioner has also failed to establish that the result of the returned candidate/respondent No.6 had been procured with the support of the presiding officers or other polling staff in any illegal manner through direct or circumstantial evidence. It is necessary for the petitioner that he should completely bring on record convincing evidence; however, the evidence brought on record by the petitioner is neither of such values, based on which, the election of the entire or at some polling stations of the constituency could be declared as void. The personnel of enforcing agencies were deployed on the polling stations but no misfortune occurred during the process of voting as nothing is available in this regard. Full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed such corrupt or illegal practice or illegal act and the date and place of commission of such practice or act are mandatory requirements to be established but it is lacking in the instant petition. Even though, if any lapse is committed by the polling staff due to lack of proper skill and adequate knowledge or expertise, such lapse on part of the polling staff cannot be termed as 'illegal practice'. The petitioner's witnesses have not produced agentnamas of the election agent or polling agents who were appointed for the petitioner under sections 76 and 77 of the Act, 2017 to show their name, father's name and address who are examined in the instant petition to strengthen their claim that the presiding officers have not provided Forms-, 45 to them.
Even, witness Waqar Ahmed in his evidence, during cross-examination has admitted that he has not filed any application to the R.O. Army personnel or Ranger personnel.
18. In the instant petition, allegations of corrupt practices have been levelled, which are required to be proved by leading evidence that the result of the returned candidate had been obtained the assistance of polling personnel. From the perusal of the evidence of the attorney of the petitioner, it appears that he has not disclosed specifically about rigging allegedly held in the polling stations nor was able to give any number of the polling station. Further, nothing has come on record' as to whether any mishap occurred during the process of voting as nothing in this regard was reported on the day of the poll; and, the petitioner failed to nominate any of the polling staff in league with the returned candidate or produced any documentary evidence strengthening his version with any solid or tangible evidence. In this regard, it is also noted that the stance taken by the petitioner in the election petition appears to be non-specific, unclear and common in nature as it is significant to state that the rules of proof for the grounds alleging the persons appointed for the polling process being guilty of the violation of their official duties are quite strict and stern and the claim must be extremely proved through corroborative evidence without accepting any supposition and if there is any doubt, the benefit must go in favour of a person against whom the allegation of corrupt or illegal practices are levelled. The petitioner failed to prove the burden on such allegations during the trial of the case. Issue No.2 is, therefore, answered in negative.
19. Issue No.3. In the instant petition, allegations of corrupt practices have been levelled, which are required to be proved by leading evidence that the returned candidate had obtained the assistance of polling personnel for the furtherance of prospects of his election. Nothing has been proved on record from the statements of the witnesses that the respondent No.3/returned candidate had taken the assistance of the polling personnel in his election. It is also well-settled law that the charge of corrupt practice is to be proved like a criminal charge and the standard of proof as required in a criminal case, is to be applied in testing of evidence of corrupt practice in the election petition. The allegations of corrupt practice are required to be established by clinching and unimpeachable evidence. Unless there is cogent evidence to take the case beyond a reasonable doubt, the election of a returned candidate cannot be set aside. There are mere allegations of corrupt practice without substance, which may only create doubt, but the charge of corrupt practice cannot be proved on mere suspicion or doubt without giving date and time at a specific place/polling station as it is lacking in the instant matter. The requirement of proof of corrupt practice is higher and is confined to strict legal evidence. A penalty has been provided to a person being guilty of offences of corrupt and illegal practices under sections 174 and 183 of the Act, 2017, therefore, such charge must be proved with strong and convincing evidence. For the sake of convenience, I would like to reproduce relevant sections of the Act, 2017 as under:-
174. Penalty for corrupt practice.---Any person guilty of the offence of corrupt practice shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to one hundred thousand rupees or with both.
183. Penalty for illegal practice.---A person guilty of the offence of illegal practice shall be punishable with imprisonment for a term which may extend to two years or with a fine which may extend to one hundred thousand rupees or with both.
20. No doubt the commission of corrupt practice by the returned candidate or his agent can be a ground for setting aside the election, in case any corrupt practice is committed by the returned candidate or his election agent, the election is void without any further condition being fulfilled.
However, in case the corrupt practice is committed by any other person other than the candidate or his election agent, it must be shown that it was committed by him with the consent of the candidate or his election agent. If the corrupt practice is committed in the interest of the returned candidate by an agent, other than his election agent, it is further to be proved that the result of the election in so far as the returned candidate is concerned, has been materially affected. The charge of corrupt practice is quasi-criminal in nature. The allegations relating to the commission of corrupt practice should sufficiently be clear and be stated precisely to afford the person charged a full opportunity of meeting out the same. The charges when put to the issue should be proved by clear, cogent and credible evidence. There would a presumption of innocence be available to the person charged as the charge has to be proved to the standard of proof being the same as in a criminal trial. No doubt the allegations of corrupt practice in the election petition are serious and consequences flowing from the proof of corrupt practice at the election are serious as the onus of establishing the commission of corrupt practice lies upon the persons who allege the same. The onus of proof is not discharged merely on the preponderance of probabilities but the standard of proof is required to be proved like a criminal or quasi-criminal charge, for which credible and reliable evidence is required to prove the charge beyond any reasonable doubt. In the election dispute, it is settled that the burden to prove illegal and corrupt practices lies heavily on the petitioner and that these allegations must be proved with such standard as is required for proving a charge in the criminal trial. It is further settled that in case of doubt arising out of the material placed before the Election Tribunal, its benefits must go to the returned candidate. In the case of Muhammad Saeed v. Election Tribunal, West Pakistan (PLD 1957 SC 91), Hon'ble Supreme Court has 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 laws is be treated, for the propose of evidence, on the principle 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...."
In the case of Hafeezuddin v. Abdul Razzaq (PLD 2016 SC 79), Hon'ble Supreme Court has 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 Metal practices are being alleged."
In the case of Muhammad Siddique Baloch v. Jehangir Khan Tareen (PLD 2016 SC 97), Hon'ble Supreme Court has held that; "15.... In view of the severe consequences following the proof of corrupt and illegal practices in particular by a returned candidate, different pronouncements by this Court adopt a cautious stance towards a defending incumbent of elected office. The earliest case on the subject is Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, etc. (PLD 1957 SC 91) which holds that each ingredient of the misdemeanor of corrupt or illegal practices must be affirmatively proved by direct or circumstantial evidence is to be believed if all responsible hypothesis which are consistent with the non-commission of corrupt or illegal practices have been excluded..."
In the case of Usman Dar v. Khawaja Muhammad Asif (2017 SCMR 292), Hon'ble Supreme Court has held that; "24. --- It is settled law that the election petition 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..."
In the case of Kaliq Shah v. Abdul Raheem Ziaratwal (PLD 2017 SC 684), Hon'ble Supreme Court has held that; "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 the another case of Nawab Ali Wassan v. Ghous Ali Shah (2018 SCMR 87), Hon'ble Supreme Court has held that; "10. .. It may be noted here that in order to successfully challenge an election on the ground that the same was induced through corrupt practices, the petitioner should be conscious of the fact that the charge of corrupt practices is in the nature of a criminal charge and has to be proved beyond any shadow of doubt. The standard of proof required for establishing such charge is the same as it applicable to a criminal charge...."
21. The emphasis is on the material facts which should be in a concise form. The election petition should set forth full' particulars of corrupt practice which is alleged to have been committed. Such particulars should be complete in every respect and when it relates to an allegation of corrupt practice, it should specifically mention the names of the parties, who alleged to have committed such corrupt practice and the date and the place where such corrupt practice was committed.
Meaning thereby, the particulars relating to corrupt practice should not be lacking in any respect.
One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as names of the persons, the nature of the alleged practice indulged in by such person or persons, the place, the date, the time and every other detail relating to alleged corrupt practice. The petitioner cannot simply raise an allegation of corrupt practice and to get away with it he is required to specify corrupt practice in support of the facts so pleaded, as well as, the material particulars.
22. It is also a settled proposition of law that the election results should not lightly be set aside and the will of electorates should ordinarily be respected. Setting aside an election result is a serious matter and it should not be done lightly. The transparency of elections is the core of the democratic system. In case the election is set aside only on the basis of vague allegations of corrupt practices without proving on the basis of evidence, it would be a wrong precedent. The appreciation of evidence for determining the commission of corrupt practice is to be made liberally. It is a mandatory requirement that the election petition is required to contain a concise statement of material facts relied upon by the petitioner by mentioning full particulars of any 'corrupt practice' alleged by the petitioner including the names of the parties alleged to have committed such practice by mentioning date and place of commission of such practice. In case it does not contain the concise statement of material facts and particulars and does not set forth full particulars relating to the alleged corrupt practice in the election petition, the election petition is liable to be dismissed in case it does not furnish the cause of action. The material facts should include the complete chain of material events and the basis in support of the allegations. The material facts mean a composite bundle of facts, which are sufficient for giving the cause of action and must be specifically averred as to how the result of a petitioner has been materially affected.
There should not be any vagueness in the allegations. In case the petitioner does not comply whereof, in such a situation there is a lacking of material facts and particulars election petition can be dismissed. Further, the respondent No. 6 / returned candidate during cross-examination has specifically denied the suggestions put by the counsel for the petitioner as he deposed as under:- "It is incorrect to suggest that there were rumors in the constituency that petitioner Ali Nawaz Shah has won the election but by manipulation I have been declared as returned candidate in the election....It is incorrect to suggest that all above contentions seems to be that by using corrupt and illegal practices, I have secured the election of PS-48 Mirpurkhas-II....It is incorrect to suggest that petitioner Ali Nawaz Shah has secured higher votes from other candidates. It is incorrect to suggest that by manipulating I have won the election."
23. The outcome of the above discussion is that I did not find the alleged corrupt and illegal practices committed by the returned candidate or his election agent or by any other person with the consent and connivance of the returned candidate. Accordingly, this issue is answered in negative.
24. Issue No.4. So far recounting of ballot papers is concerned, petitioner claims that he has filed an application under subsection (5) of Section 95 of the Act, 2017 before Returning Officer stating that the difference in between the votes obtained by him and the returned candidate/respondent No.6 was less than 5%, as such, the Returning Officer should have allowed such application before the consolidation of results. In this regard it is worthwhile to note here that the recounting of ballot papers could only be ordered if the conditions contained under section 95 of the Act, 2017 are fulfilled; the R.O. based on contention/material produced before him is satisfied that the request is reasonable then the application must be allowed and if the R.O. considers that the request so made is unreasonable, in such a case, recounting of votes must be declined. In the instant matter, the petitioner claims that he has preferred application for a recount of the votes to the R.O. but the R.O. instead to recount, consolidated the results. It is a well-settled principle of law that the burden lies upon the complaining party when he asserts certain allegations, must prove the same through strong, corroboratory and documentary evidence. Failure on part of the petitioner to bring on record certain written complaint(s) shows that he has nothing in writing to substantiate his version in this regard even though he had full opportunity to do so. On the contrary, respondent No.6/returned candidate on the suggestive question put by the counsel for the petitioner replied that "It is incorrect to suggest that under my pressure and others by making illegal practice the R.O. has dismissed the application for recounting of ballot papers. This stance of the petitioner is not supported by documentary proof as if the petitioner felt so he should have made an application before the learned District Returning Officer against the R.O., who is also a Judicial Officer. It would also be relevant to mention that the order for recounting of votes is to be made when the R.O. considers the request so made as not unreasonable, but in the instant matter, it is lacking. The petitioner should specify allegations of tampering, manipulation and maneuvering in very clear terms along with the necessary details and prima facie material supporting such allegations as the secrecy of the ballot should not be violated based on frivolous, vague and unfounded allegations and the primary objective should be to do full justice in the matter. This Tribunal is fully mindful while exercising its powers in this regard keeping in mind that recount may not exploit for a roving inquiry to fish out material for reversing the election or for declaring it void. As to prerequisite requirements, I have already discussed above that the petitioner has failed to meet such requirements, which may convince this Tribunal to exercise powers for the recount. In this regard, I am fortified with the decision of the Hon'ble Supreme Court of Pakistan held in the case of 'Jam Madad Ali v. Asghar Ali Junejo and others' [2016 SCMR 251]. In the said judgment the Hon'ble Supreme Court has quoted the decision made by the Supreme Court of India In the case of 'Bhabhi v. Shea Govind and others' [AIR 1975 SC 2117] wherein the criteria for permitting a recount in an election matter had been laid down as under:- "15. Thus on a close and careful consideration of the various authorities of this Court from time to time, it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must conclude that to grant a prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void;"
In the instant petition, the allegations levelled by the petitioner appear to be frivolous, vague and indefinite without support by adequate statements of material facts regarding truth for a recount; as such, this prayer cannot be allowed in absence of pre-requisite requirements.
25. For what has been discussed above, the petitioner has failed to establish its case as prayed; consequently, the instant Election Petition is dismissed with no order as to costs.