' Sardar Muhammad Salah Gopang, petitioner and respondents Nos.l to 8 contested Election for membership of the Sind Provincial Assembly from Constituency No,P S-Larkana--II. As result' of Poll Sardar Allah Bux Jalbani, respondent No,1 (hereinafter to be referred as respondent) was declared elected as he secured 12,534 votes. The petitioner obtained 12,032 votes.
2. The petitioner has filed this petition under section 52 of the Representation of the Peoples Act, 1976 (hereinafter to be referred as Act) to challenge the validity of election with a prayer to declare the election as void and order petitioner duly elected from the above-said Constituency.
3. The grounds taken in the petition briefly are that:-
(i) Respondent is guilty of illegal and corrupt practice as he used transport and did not allow Polling Agents of the petitioner to sit in the Polling Stations, etc.
(ii) That at the last moment Polling staff was changed from some Polling Stations contrary to the provisions of Act and Rules just to favour the respondent which has materially affected the result of the Election.
(iii) Respondent is a person of bad character, therefore, he was disqualified.
(iv) Returning Officer has acted partially and openly favoured the respondent.
4. None except respondent, a returned candidate contested the petition. He controverted all the allegations in his written statement.
5. On the pleadings of the parties following consent Issues were framed:- (1). Whether the election petition is not maintainable in law for non-compliance with the provisions of section 55 of Representation of Peoples Act, 1976?
(2). Whether the exchange of place of posting of Presiding Officers of P.S. 43 and P.S. 40 amounts to an illegal practice? If so, its effect.
(3). Whether respondent No,1 is guilty of rigging of election and commission of illegal and corrupt practices as alleged?
(4). Whether the election result is bad for being result of faulty counting of ballot papers, as alleged?
(5). Whether the petitioner expressed his satisfaction as to the counting of votes? If so, its effect.
(6). Whether respondent No,1 is a person of bad character and for that reason is not qualified for being member of the Provincial Assembly as such?
(7). What should the order be?
6. Issue No,1 is with regard to maintainability of petition. In the petition all contesting candidates and Returning Officer have been joined as respondents. On perusal of the petition it is clear that precise statement of material facts is given. It is stated for the petitioner that Polling staff was changed, transport was provided in bringing bogus voters, the Polling Agents of petitioner were not allowed, etc. The petitioner has given particulars in order to afford opportunity to A respondent to rebut that evidence. The Election Petition must indicate the purpose for what it is filed. On this reference can be made t cases, Muhammad Shafi v . Election Tribunal, Bahawalnagar District and another PLD 1966 (W.P) Lah. 755, S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 C 486 and Bostan Ali Hoti v. Muhammad Hanif Soldier and others PLD 1978 (Jour.) C 81.
' The requirements of sections 54 and 55 of the Act have been complied with, therefore, petition cannot be dismissed under section 63 of the Act, as such I hold that petition is maintainable.
7. Issues Nos. 2 to 6: I will deal with all the Issues together. With regard to Issues Nos.4 and 5, there is no evidence so far any mistake in counting is concerned. Recounting was ordered and again I allowed the request of the petitioner for inspection of the record but nothing material has come out to affect on the result of election. The Advocate of the petitioner was present at the time of counting and such statement Exh.22/5 is on the record. The charge has not been proved.
8. Issue No,6 is about the disqualification of the respondent. There is-no positive evidence against the respondent which may attract the provisions of disqualification. On the contrary the petitioner himself stated that respondent is Head of Jalbani Tribe and comes from respectable family. He represented Pakistan in U.N.O. As delegate and held elected Office as Chairman District Co- ordination Committee. In my view he was qualified to contest Election of Provincial Assembly.
9. Now I come to Issues Nos.2 and 3. The allegations in the petition are that Election Agents of the petitioner were not allowed to sit in Polling Stations at Masso dero (PS-29), Gul Muhammad Siyal (PS-28), Ratodero Primary School No,II (PS-43) and Ratodero Primary School No,I (PS-45). The Presiding Officers of Polling Station of Primary School No,II Ratodero (PS-43) Muhammad Ibrahim Bhutto and Athar Hussain of Polling Station, Naudero (PS-41) were exchanged on the last moment without permission of Election Commissioner. It is alleged that due to rigging at the above four Polling Stations the respondent got bogus votes cast as much as that 92.2 % votes were shown to have been cast at Polling Station Masso dero.
(ii) That votes of head voters were cast, at Polling Station Massodero and voters were being asked to cast vote again and again. The Assistant Commissioner told the petitioner that word was going on that P.P. Was supporting the petitioner.
(iii) That respondent was using buses for transporting Electors. The Returning Officer rejected about 500 votes of the petitioner.
(iv) That Returning Officer without preparing statement in Form XVII went away and such statement was prepared by Mukhtiarkar Ratodero. Petitioner has shown his grievance with regard to allotment of symbol and levelled some allegations against Returning Officer that he did not allow Election, Agents of the petitioner to inspect ballot papers.
(v) That contrary to law the Polling Station of Massodero was located in the village of respondent.
(vi) That respondent is a notorious bad character of the area.
10. The petitioner produced his Election Petition as Exh.6/1 alongwith annexures and affidavit in evidence as Exh.6/2 in which he supported the allegations and grounds taken in the petition. In his cross-examination he has stated that respondent is Head of Jalbani Tribe and he is not in a position to attack on his character. He has stated that he lodged protest with Assistant Commissioner/Returning Officer and Mukhtiarkar Ratodero. He belongs to village Hayat Khan Gopang and stated that there were Polling Stations in the villages of other candidates.
11. Abdur Rehman Gopang Exh.7/1 was Chief Polling Agent of the petitioner. He in his affidavit has fully testified the version as given in the petition. He has repeated the allegations of corrupt practice, change of Presiding Officers, rigging, disqualification of respondent and grievances against the Returning Officer. He in his cross-examination stated that he made complaint in writing to Mukhtiarkar Ratodero. He admitted that he was present at the time of recounting. He stated that he has not given the Bus numbers used by the respondent.
12. Witnesses of the petitioner namely, Gulsher Exh.8/1, Wajid Ali Exh.10/1, Din Muhammad Exh.11/1 and Nazar Hussain Exh.12/1 have) stated in their afflavits-in-evidence that they are voters of the Constituency No,PS-32, Larkana. The Polling Agents of Sardar Muhammad Saleh Gopang were not allowed to function on the ground that they are not electors from the same electoral area and that large scale rigging was done during the polls at the instance of Sardar Allah Bux and Assistant Commissioner Ratodero. The same voters were being asked to cast their votes again and again, the respondent is bad character, the buses were used by him, the votes of dead voters were cast and on ballot papers thumb-impressio.Rs were affixed with cloth wrapped round the thumb. Their evidence is common. They have been cross-examined mostly on the points as to how their affidavits were taken. Their evidence has not been challenged on allegations against Returning Officer and respondent.
13. The affidavit of Lal Muhammad Exh.10/1 was filed alongwith petition in which he stat,d that large scale rigging -vas done during the Polls at the instance of Sardar Allah Bux Jalbani and Assistant Commissioner. He reiterated the allegations as given by other witnesses whose evidence is summarized in para. 12 of this order. When Lal Muhammad appeared before Tribunal for cross- examination, he produced his affidavit Exh.10/1 and admitted the contents to be correct. He was cross-examined by the Advocate of the respondent. He stated that he was Polling Agent of petitioner at Arzi Bhutto Polling Station where he arranged lunch for Polling staff as they were his friends. He on his own accord got the affiavit repared and handed over to the petitioner. He was shown another affidavit by Advocate of the respondent. He admitted to have given that affects it which was produced as Exh.10/2. The petitioner's Advocate objected to the production of this second affidavit on the ground that it was not filed with written statement. Lal Muhammad stated that contents of his second affidavit Exh.10/2 are not correct as it was obtained under threat of police.
14. Respondent Sardar Allah Bux Jalbani in his written statement Exh.16/1 denied all the allegations.
In reply to para. 5 of the petition with regard to, exchange of Polling Officers, he stated that it is for the Returning Officer to clarify. He has not denied so far pars 6 of the petition is concerned but stated that percentage of votes cast at Polling Station (that Polling Station is Massodero, village of respondent) mentioned in this paragraph is not commented 'upon as it is a matter of record. He has not denied the allegation that 92.9% votes were cast at Massodero Polling Station. In reply to paragraph No,18 of the petition he stated in his written statement at paragraph No,11 that contents as framed are incorrect and denied, the petitioner is put to strict proof to the contents of this paragraph. He stated that he is respectable person and has blotless character. He is Chairman of District Coordination Committee, Larkana, was Member of Federal Council and Delegate of Pakistan to U.N.O. And China.
15. Respondent examined Abdul Khaliq Exh.17/1, the Election Agent, Lal Bux Exh.18/1, Taj Muhammad Exh.19/1-Fazal Muhammad Exh.20/1, Polling Agent. Abdul Khaliq has refused the allegations of the petitioner as given in the petition. He in paragraph No,6 of the affidavit has not commented on the percentage of votes cast at Massodero. He is paternal-uncle of father of the respondent. He has admitted that Returning Officer rejected some votes of petitioner as well as of respondent which bore the smudged marks of the thumb. He did not remember if agents of petitioner of Polling Stations at Massodero, Gul Muhammad Siyal, Ratodero Primary Schools Nos.1 and 2 were not allowed to sit and also did not remember if Aslam Sanwlo and Ghulam Kadir Bhutto were rounded up by respondent on 15-2-1986 two days before the date of hearing of this case. The evidence of remaining witnesses is that Polling Agents of petitioner are present and they did not raise any objection to the conduct of Election. They have stated that conduct of staff during the polls at Polling Station in general was fair and impartial. Lal Bux has admitted that Liaquat Jalbani, brother of respondent is Chairman of Ratodero Municipality.
16. Seerat Asghar Exh.22, Assistant Commissioner Ratodero was Returning Officer of Constituency No,PS-32, Larkana II. He filed his written statement. He was not contesting this Election Petition but was summoned at the written request of petitioner and has been examined. He produced his written statement as Exh.22/1. He in his written statement has denied the allegations made against him in the petition. He stated before the Tribunal that he prepared Polling Scheme of PS-32 Larkana-II, 15 days before the Polling which included location of Polling Stations as well as names of Polling Staff and on 27-2-1985 (one day before Polls) he ordered exchange of Presiding Officers, of Polling Stations of Primary School No,2 Ratodero and Naudero with prior approval of District Returning Officer. He explained that approval of Election Commission was not obtained because according to clause 78 of Manual of instructions issued by the Commission the change could be made at the last moment. He admitted that petitioner verbally requested him to change Polling Station from Massodero but he turned down his request on the ground that there is no proper place where Polling Station could be arranged and six Polling Stations were already situated in villages of other candidates including the petitioner. He has admitted that Polling Station at Hayat Gopang (the village of petitioner) was arranged in a katcha but on the outskirts of the village. He admitted that there was Primary School in Hayat Gopang but it was in Otaq of petitioner, therefore, but was constructed. He, produced original Form XVII Exh.22/2 signed by him. He admitted that Form XVII Exh.6-B is signed by Mr. Khalid, Mukhtiarkar Ratodero. He stated that recounting was made at the request of the petitioner in his presence and in presence of his Advocate and they signed statements Exhs.6/3 and 6/4. He stated that record was inspected under order of the Tribunal. He prepared such report and produced it alongwith ballot papers. He also produced affidavit of Sikandar Ali Election Agent of other defeated candidate Gada Hussain Mehar alongwith his written statement (this witness was not summoned by any party). He has also produced consolidated statement of results as Exh.22/3.
17. I have heard Mr. M.A. Rashed for the petitioner and Mr. A.Q. Halepota for the respondent. Both the counsel have also submitted written arguments.
18. In the first instance, I would deal with the allegation with regard to change of Presiding Officers. It is admitted by the Assistant Returning Officer that he exchanged Presiding Officers of Polling Stations, Primary School, Ratodero-II (PS-43) and Primary School, Naudero (PS-40) on 27th February, 1985. He produced order Exhs.6/5. The order is reproduced as under:- "In partial modification of the Polling Scheme for PS 32 Larkana-II, I hereby direct that the Presiding Officers of Polling Station No,40-Primary School I near Fish Market Naudero Mr. Athar Mirza Lecturer Government College Ratodero and that of Polling Station No,46-Primary School-II Ratodero Mr. Muhammad Ibrahim Bhutto Agriculture Officer Tatodero should exchange their post.
' This exchange is being done for smooth running of both the Polling Stations.
' The District Returning Officer Larkana has been pleased to accord sanction."
19. The appointment of Presiding Officers and Polling Officers is governed under section 9 of the Representation of Peoples Act, 1976. The relevant section as a whole is as follows: "Section 9, subsection (1).--A Returning Officer shall appoint for each polling station a Presiding Officer and such number of Assistant Presiding Officers and polling Officers to assist the Presiding Officer as the Returning Officer may consider necessary. Provided that a person who is, or has at any time been, in the employment of any candidate shall not be appointed as a Presiding Officer, Assistant Presiding Officer or Polling Officer.
(2) A list of such Presiding Officers and polling officers shall be submitted to (District Returning Officer) at least fifteen days before the polling day for its approval and no change in the personnel shall be made except with the approval of the Commission.
(3) A Presiding Officer shall conduct the poll in accordance with the provisions of this Act and the rules, shall be responsible for maintaining order at the polling station and shall report to the Returning officer any fact or incident which may, in his opinion, affect the fairness of the poll: Provided that, during the course of the poll, the Presiding Officer may entrust such of his functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty of such Assistant Presiding Officer to perform the functions so entrusted.
(4) The Returning Officer shall authorise one of the Assistant Presiding Officers to act in place of the Presiding Officer if the Presiding Officer is, at any time during the poll, by reason of illness or other cause, not present at the polling station, or is unable to perform his functions; and any absence of the Presiding Officer, and the reason, therefore, shall, as soon as possible after the close of the poll, be reported to the Returning Officer.
(5) The Returning Officer may, at any time during the poll, for reasons to be recorded in writing, suspend any Presiding Officer, Assistant Presiding Officer or Polling Officer and make such arrangements as he may consider necessary for the performance of the functions of the officer so suspended."
Under subsection (2) of the above section list of Presiding Officers and Polling Officers shall be submitted to the District Returning Officer at least fifteen days before the Polling day for its approval and n change in the personnel shall be made except with the approval of the Commission. The change is only authorised during the Poll by reasonC of illness of the such staff or other cause. The Returning Officer could suspend any Presiding Officer for the reasons to be recorded. In the present case Presiding Officers were changed without assigning any reasons. The Returning Officer, could not give reasons for such change before Tribunal also the law is clear that any change before the Polling day requires the approval of Commission.
' It is argued by the learned counsel for the respondent that in clause 80 of the Manual of Instructions for the guidlines of District Returning Officers and Returning Officers, the change of personnel at the last ,moment could be effected and it is contended that approval of Returning Officer was obtained. I have gone through Manual. First of all these guidelines cannot overrule the provisions of the Act and Rules. The relevant clauses of this Manual with regard to approval of Polling Personnel are 77 to 80 which are reproduced as follows:- "The list of Presiding Officers/Assistant Presiding Officer's and Polling Officers for the National Assembly as well as the Provincial Assemblies elections should be sent by the Returning Officer in duplicate to the District Returning Officer concerned by the 25-1-1985 positively. A legible copy of the list of polling personnel will be supplied by the District Returning Officer to the Provincial Election Commissioner immediately on its receipt from the Returning Officer. In order to avoid accordal of approval to the appointment of polling personnel too close to the polling day, it is considered advisable to issue appointment orders of polling staff sufficiently in advance of the date of the poll.
' Approval to the appointment of polling personnel for each polling station will be conveyed to the Returning Officers by the District Returning Officer well before the prescribed period.
' The polling staff, once approve by the District Returning Officer, should in no case be charted, except in case of serious illness, and in that case also staff from the reserve, for which approval has previously been obtained, should only be appointed and not from outside the approved list. Such replacement should invariably be reported to District Returning Officer at once.
' Change of personnel at the last moment can create misgivings. Such changes have to be avoided at all costs. If at all a change somewhere becomes necessary, the circumstances necessitating a change should at once be reported to the District Returning Officer and his approval obtained."
' With regard to this allegation the Returning Officer in para. 4 of the written statement stated as under:- "The allegation alleged in para. No,5 is vehemently denied, as order for such partial modification was not issued on 28th "The allegation alleged in para. No,5 is vehemently denied, as order for such partial modification was not issued on 28th February, 1985 but this order was made after obtaining approval of the District Returning Officer on 27th February, 1985. This order was delivered to the concerned Presiding Officers on 17th February, 1985. Their signatures were obtained on Office Copy of Order No,Elec/263, dated 27-2-1985. Its photocopy is attached herewith as Annexure 'A'. The approval order of the District Returning Officer was obtained on the same date."
20.Now it is clear that prior approval of the change of Presiding Officer one day before the Poll was without approval of Election Commission in violation of subsection (2) of section 9 of the Act as 'no change in the personnel shall be made except with the approval of Commission". The case is not covered by other subsections as this change was not done on the day of polling. The discretion is only vested in case of unavoidable circumstances on the polling day not otherwise.
(ii) the reasons for exchange are not cogent.
(iii) the written approval of the District Returning Officer is not produced.
21. This safeguard in the Act has been provided to ensure the free and fair election because it has been experienced that whatever rigging is done it has always come from the polling staff and anxiety of ever candidate in the election is to have polling staff of his own choice. The Returning Officer has not given justification in his written statement for such change. It is also clear in the Manual of Instructions that change of personnel at the last moment can create misgivings and such changes have to be avoided. I have, therefore, no hesitation in holding that change was not warranted. It was in violation of Act, Rules an. Instructions with mala fide.
22. The next grievance of the petitioner is that at "Massodero" Polling Station 92.2% votes were cast.
The Returning Officer in reply to this change stated as under in para. 5 of the written statement:- "The allegation of the petition in para. No,6 to the petition is categorically denied so far as the charge of rigging is concerned."
' The respondent in his written statement on this stated as under:- "The contents of paragraph 6 as framed, are incorrect and hence denied. The contents of the said paragraph are vague and no particulars of any alleged illegality have been given. It is submitted that the percentage of votes cast at Polling Station mentioned in this paragraph is not commented upon as it is matter of record."
23. According to clause 63 (c) of Manual of Instructions the number of voters were assigned to each Polling Station. The formula as give in above clause is as follows: - "(i) The total number of voters assigned to a polling station with maximum number of four booths should not normally exceed 1,200 electors. Slight variation has, however, been permitted so that electors of complete electoral area are able to cast their votes at the same polling station. But in no case the assignment of elector to a polling station should exceed 1,500 with slight marginal adjustments.
(ii) In sparsely populated areas, assignment of electors to polling stations should be further reduced, if necessary,, keeping in view the distances involved and convenience of voters.
(iii) Each polling station will normally have three to four booths: each booth having to handle about 300 to 400 electors. An exception can, however, be made in case of sparsely populated areas where polling stations may be established with '1, 2 or 3 booths only, depending on the number of electors.
(iv) In case of an electoral area, especially in big cities having more than two thousand electors, it will be advisable to have two or more polling stations with distinct bifurcation of the electoral areas served by each polling'station. The rolls prepared by two or more enumerators of the contiguous areas should relate to a polling station, taking care that the number of electors does not exceed two thousand. In urban areas where the enumerator's roll within the electoral area may not have been distinctly kept in view, care may be taken to see that streets and Mohallahs are not bifurcated. Where such bifurcation is inevitable, the name of the streets/Mohallahs or the roads should be clearly mentioned with suitable land marks ordinarily known to the electors. The bifurcation in such cases must be done keeping in view the fact that full pages of the electoral rolls are used at such polling station. This will avoid wastage of copies of the electoral rolls.
(v) It should be ensured that female electors of a particular electoral area are assigned to the same polling station to which their men-folk have been assigned, but separate female and male entrances and separate booths for male and female electors should be arranged. In urban areas especially, where the number of electors in a ward is sufficiently large, it should be ensured that both male and female electors of the same Mohallah or street are assigned to the same polling station."
' The list of Polling Stations and number of voters at each Polling Station were notified in Government Gazette, dated 12th February, 1985 but Returning Officer in written statement has not referred to list or notification and has given evasive reply.
' Now, I refer to consolidated statement Exh.22/3,produced by the Returning Officer which shows (Sr.21) at Massodero Polling Station 1,052 votes were cast and Polling Station was at Primary School.
The Returning Officer avoided to give correct reply to the allegation though entire record of Polling Scheme is available with the Returning Officer. However, without any doubt it is proved that allegation is correct. The total votes according to. Notification at Massodero were 1,232 and more than 85% votes were cast.
24. It is also alleged by the petitioner in para. No,18 of the petition that contrary to law Polling Station was located in the village of respondent. The reply of respondent is as under:- "The contents of paragraph 18 as framed are incorrect and hence denied and the petitioner is put to strict proof in regard to the contents of this para."
' The Returning Officer stated in para. 16 of the. Written Statement:- "Respondent No,9 did nothing which may be termed contrary to the law. It is submitted that similarly Polling Station Hayat Gopang was located in the village of the petitioner and P.S. Morio Fakir (P.S. No,33) Khairodero (P.S.No,26), Garhi Khuda Bux Bhutto (P.S.No,30), Kot Lal Bux Mahessar (P.S. No,4) were in the home-villages of respondents Nos.3, 4, 5 and 8. As regards the respondents Nos.2 and 6, they were not resident of the constituency. Above all at the time of publication of the Polling Scheme no objection was ever filed by the petitioner within the stipulated period to this effect. It, is, therefore, evident that no partiality was shown while assigning the polling stations."
25. Returning Officer in his cross-examination admitted that petitioner verbally requested him to change Polling Station from Massodero to some other convenient place but he turned down his request as there was no proper place where polling could have been arranged and six Polling Stations were already in the villages of other candidates. He admitted that Polling Station of Hayat Gopang was arranged in Katcha Hut on the outskirts of the village. He has stated that there was Primary School at Hayat Gopang village which was located within the Otaq of the petitioner, therefore, but was constructed. The consolidated list of the Result Exh.22/3 shows that Polling Station (Sr.No,5) notified was at Primary School Hayat. Gopang not in a Hut .On the outskirts of the village. In Notification of 12th February, 1985 the Polling Station Hayat Gopang was to be at Primary School. Section 8 of the Act about Polling Stations is as under:- "8. Polling Stations.--(1) The Returning Officer shall, before such time as the Commission may fix, submit to the District Returning Officer a list of polling stations he proposes to provide in a constituency for the purpose of elections of a member for that constituency.
(2) Subject to the direction of the Commission, the District Returning Officer may make such alterations in the list of polling stations submitted under subsection (1) as he deems necessary and shall, at least fifteen days before the polling day, publish in the official Gazette the final list of polling stations specifying the electoral area the electors whereof will be entitled to vote at each polling station.
(3) The Returning Officer shall establish in each constituency polling stations according to the final list published under subsection (2)
(4) No polling station shall be located in any premises which belong to, or are under the control of, any candidate."
' The guidelines of Polling Scheme are given in clause 63 of the Manual of Instructions which read as follows:- "63. The following are the guidelines which should be kept in view while framing the polling schemes:-
(a) Plan of the Scheme:-
(i) The polling scheme of local council elections, 1983, should, as - far as possible, be adopted for general elections.
(ii) As far as possible, separate polling stations should be provided for male and female voters, subject to the availability of suitable buildings and polling personnel.
(iii) Polling schemes for each National Assembly constituency and for each Provincial Assembly constituency should be prepared separately by the Deputy Commissioner/Political Agent for all the constituencies (Muslims as well as non-Muslims) falling under his jurisdiction.
(iv) The Polling Stations for a constituency should bear a running serial number so that, when the final list of polling stations is drawn up and notified, each polling station would be identified by its number and name.
(v) The electoral areas assigned to each polling station -should be mentioned clearly under each polling station. For this purpose, an authentic list of electoral areas falling within each constituency should be obtained by the Deputy Commissioner/Political Agent from the Registration Officers together with a duly signed copy of the electoral roll for each constituency.
(vi) The assignment of voters should be correctly shown against each electoral area. These assignments shall have to be further corrected, if fresh entries under section 18 or section 27 of the Electoral Rolls Act, 1974 are made before the date the constituencies are called upon to elect their representatives.
(vii) The assignment of voters should clearly show the break-up by Muslim male and Muslim female voters as well as non-Muslim male and non-Muslim female voters against each electoral area and totals for the polling stations should also be correctly shown.
(viii) For the preparation of polling schemes for each constituency, the extent of each constituency notified by the Election Commission on 6th January, 1985 or subsequent Corrigenda issued on 18th January, 1985, should be kept in view.
(ix) On the basis of total number of male and female voters, both Muslims and non-Muslims, assigned to the various polling stations, totals for the constituency should be correctly given.
(x) In describing a polling station, the abbreviations like "P.S." etc., should be avoided as they can be confused with Police Station, Primary School etc. Exact description of the name of the building would be necessary.
(xi) No polling station should be established outside the limits of the constituency. It will be illegal to do so.
(b) Selection of Buildings
(i) Care should be taken in the selection of buildings required for the polling stations. They should invariably be housed in public buildings. Preference should be given to school buildings, colleges, rest houses, Dak bungalows, community centres and buildings of Union Councils, Town Committees, Municipal, Committees, Municipal/ Metropolitan Corporations, etc.
(ii) No polling station should be housed in a building which is owned by or is in the possession of any individual. It would be illegal to locate the polling station in a building which is owned by or is under the influence of a prospective candidate. The polling station building should be such as is acceptable to most, if not all the candidates. In no case should a police station building or a levy post be utilized for this purpose.
(iii) The public buildings proposed to be used as polling stations should be spacious, preferably having big compounds, to avoid over-crowding of voters within their precincts.
(iv) The public buildings should not be in a dilapidated condition and in a state of despair.
Wherever new buildings have sprung up, they should be utilized, if found suitable.
' Important : - ' A prior inspection of the buildings selected to se' re as polling stations has been made essential so as to check the it suitability for the purpose. This should invariably be done.
(v) In case the polling station building has more than one storey, the polling station should preferably be located on the ground floor to avoid inconvenience to the voters."
According to approved scheme the Polling Station Hayat Gopang was in Primary School but the Returning Officer got constructed but at the out-skirts of the village, contrary to Notification and Rules. This change was arbitrary and neither notified or approved as no such record has been produced. This was intentionally done to favour the respondents when same request of the petitioner relating to the Polling Station. Massodero was rejected.
26. There are specific allegations of large scale rigging and manipulations, at four Polling Stations in para. 6 of the petition. It is also stated in para. 4, that at the above Polling Stations, the Polling Agents of the petitioner were not allowed at the Polling Stations of Massodero (P.S.29), Gul Muhammad Siyal (P.S.28), Ratodero Primary School No,II (P.s.43) and Ratodero Primary School No,I (PS-45). On this Returning Officer in his written statement has stated that under section 23 of the Representation of Peoples Act, 1976, the person appointed Polling Agent shall be an elector of the Electoral Area and entitled to vote at the Polling Station. He has also given reference of clause 64 of Manual of Instructions, issued by Election Commission. He has also stated as under:- "Admittance of Polling Agents of Polling Stations is the function of Presiding Officer concerned. If it has been done at the Polling Station it is in accordance with the Rules."
' He has not categorically denied this allegation. The respondent in para. 4 of his written statement stated as under: - "That the contents of paragraph 4, as framed are incorrect and hence denied. It is in accordance with Article No,64 of the Manual of Instructions for the Guidance of Presiding Officers and Assistant Presiding Officers."
' The respondent and Returning Officer have not stated that Polling Agents of the petitioner were present at the Polling Stations. It is not believable that a person who is contesting Provincial Assembly Election cannot find a Elector from the constituency to act as his Agent when petitioner and respondent had a tough close fight in the election. The Returning Officer alongwith written statement has filed affidavit of one Sikandar Ali, Election Agent of another defeated candidate, Gada Hussain Mahessar in his support that Election was fair and Polling Agents of that candidate were appointed to show justification that election was conducted in accordance with law. This affidavit was sworn before Assistant Mukhtiarkar Ratodero. The witness was not produced for cross-examination. Being a responsible Government Servant as Assistant Commissioner and S.D.M.
Of the area has no justification to file affidavit of other candidates. It appears that he was in touch with private candidates. The respondent has not summoned any Agent of other defeated candidate but Assistant Commissioner has filed affidavit on this pertinent point. He should have in all fairness called report from Presiding Officer concerned and submitted with his written statement, which he has not done. Under subsection (4) of the Act it shall be the duty of a Returning Officer to do all such acts and things as may b necessary for affectively conducting the election in accordance with the provisions of this Act and Rules. Abdul Khaliq Exh.17, paternal-uncl of respondent and his Election Agent in his affidavit stated in para.8 that at the Polling Station mentioned in paraghraph 8 of the Petition, the Polling Agents of the petitioner who are residents of locality were present and they did not challenge the votes. When across-examined he stated that he did not remember if Polling Agents of the Petitioner at Massodero, Gul Muhammad Siyal, Ratodero Primary Schools Nos.1 and 2 were not allowed. He in para.2 of the affidavit stated that as Election Agent of the respondent he visited all Polling Stations. He has not denied the allegations of para.4 of the petition but stated that allegation with regard to conduct of election are denied.
27. Another legal point taken in the petition is that Returning Officer prepared the consolidated statement of the results and disappeared without preparing the statement in Form XVII and he could not be traced. Consequently Mukhtiarkar Ratodero had to sign the statement in Form XVII. In support photostat copy of Form XVII Exh.6-B signed by Mukhtiarkar Ratodero as Returning Officer has been produced.
' The respondent denied these allegations and stated that at the request of petitioner votes were recounted to which petitioner expressed his complete satisfaction. The Returning officer in reply to this charge stated as under in para. 11 of his written statement:- "11--The charge levelled in para. 12 is denied."
' He has produced photo copy of Form XVII Exh.22/2 with the written statement. He has explained as to how Form XVII annexed to the petition and produced by the petitioner was signed by the Mukhtiarkar. It is not a copy but it is original one. When confronted he admitted that Form XVII Exh.6-B was issued by Mr. Khalid who was Assistant Returning Officer and Mukhtiarkar Ratodero. He produced consolidated statement Exh.22/3. In this context two documents Exh.6/13 and Exh .22/3 are on record. Both are not denied. The charge is that Returning Officer disappeared and consolidation of result was done by Mukhtiarkar Ratodero contrary to the sections 39 and 42 of the Act and rule 28 of the Representation of Peoples (Conduct of Election) Rules, 1977. Rule 28 is reproduced as under:- "28. Result of the count.--(1) The result submitted to the Commission by the Returning Officer under subsection (1) of section 42 shall be in Form XVII.
(2) The consolidated statement prepared under sub-rule (1) of rule 26 by the Returning Officer together with the result of count referred to in sub-rule (1) shall be sent to the Commission immediately after the count for declaration of the result and publication of the name of the returned candidate in the official Gazette."
The Record from Election Commission was called which shows that Form XVII was sent to the Commission under signature of M. Khalid (Returning Officer, PS-32-Larkana-II). It is regretted that statement of Returning Officer before Tribunal is incorrect and Form XVII produced before the Tribunal was subsequently prepared and filed.
28. Now I come to the result of the disputed Polling Stations.
Polling StationVotes secured by petitioner (1)Votes secured by respondent (2)Votes secured by other candidates (3)Invalid Total (4)
1.Massodero. Sr.No. consolidated List 21.1(One) 1041 5 5 1052 2.Gul Muhammad Siyal (Sr.No.20)32 691 97 33 853 3.Ratodero I Primary School (Sr.No.45).195 374 312 37 918 4.Primary School Ratodero-II (Sr.No.46).67 172 196 23 458 5.Primary School HayatGopang (Sr.No.5).636 230 239 35 1140 ' The Polling Station Massodero was in the village of respondent where all the contesting candidates secured five votes whereas petitioner secured one vote and other seven candidates got five votes while respondent secured 1,041 votes. The Polling Station Hayat Gopang was arranged in a but constructed outside the village. This Polling Station was in the village of petitioner where respondent secured 230 votes nearly one-third of the petitioner. The clear position is that there was rigging at Massodero. It is unbelievable that a candidate who contested Provincial Assembly Election could not secure few votes at one particular Polling Station when the position of votes as appears in the statement Exh.22/3 is contrary and fight was very close. The petitioner secured sufficient number of votes in 49 other Polling Stations. On the other hand Respondent got 230 votes at the village of petitioner when in all the 50 Polling Stations respondent secured sufficient number of votes. At Gul Muhammad Siyal Polling Station petitioner secured 32 votes while respondent 691, Ratodero Primary School-I petitioner-195, respondent-374 and Primary School Ratodero-II petitioner-67 and respondent-172. All this shows that there was mala fide in change of Polling Staff and Rigging at Massodero, Gul Muhammad Siyal and Ratodero. It is clear that Returning Officer's attitude as record shows had been hostile to the petitioner and he out and out provided all types of assistance for the benefit of respondent. He in violation of provisions of Act and Rules. The legal position is that Election cannot be set aside because of irregularity on part of election officials unless it is found that such an irregularity has materially affected the result of the election.
29. In the present case there was close contest between the petitioner and respondent. There is difference of 502 votes. Had the petitioner secured 252 more votes he could have been declared successful and result had been otherwise. At Massodero where more than 85% vote were cast which not happened in the constituency, even at petitioner's village 66% votes were cast. It is apparent that there was rigging du to absence of Agent of petitioner and so is position at Gul Muhammad Siyal and Ratodero and Polling Stations where Presiding Officers were changed due to which 676 votes came under dispute and overall situation as discussed above is such that result due to violations of Act and Rules has been 'materially affected'.
30. Now I refer case-law where elections were declared void when due to irregularities and illegalities the results were materially affected. In Mian Riaz Ahmed v. Election Tribunal, Sargodha Division and another PLD 1966 Lah. 839 it was observed:- ' It appears to us that rule 36(1-A) embodies in congested form no other principle than This that an election is to be set aside only in case the result of the election is materially affected by reason of violation or contravention of the Act and the Rules.
' It follows from the above conclusion that a Tribunal cannot resort to general principle of election law and declare an election of the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of his candidate or his election agent, without a finding that the result has been materially affected. We are not inclined to agree with the respondent's contention that by the mere commission of a corrupt or illegal practice it is intended that the Election Tribunal may declare an election void. It is significant that the Rule provides that the result be "materially affected. These words are not ambiguous, and must be given their natural meaning and effect. It is not necessary, for declaring, an election void that there must be invalidation of so many votes by reason of the breach or violation of the. Rules, to reduce the votes before (sic) those of others, but there should be a finding that the violation is of such a scale that it has affected the result."
' It has further been observed:- "For the reasons already stated and the conclusions arrived at by the Election Tribunal, we are of the view that order of the Tribunal cannot be interfered with so far as election of the petitioner has been declared void, as the facts found by the Tribunal make out a case of the result having been affected as a result of corrupt and illegal practices, and it is not material that it was not alleged in the election petition that the result was not affected. We would also not grant relief in this discretionary jurisdiction to a person who has been found to have committed corrupt and illegal practices."
' The rule 36 (1-A) of the Electoral College Rules, 1964 is similar to section 70 of the Act.
(ii) In Ameer Abdullah v. Muhammad Yakoob and another reported in PLD 1962 Lah. 722, the same view has been taken. Relevant observations are as under:- "The relevant provision of law which governs the present case is section 60 (2) of the Electoral College Act, 1964, read with rule 36 (1-A) of the Electoral College Rules. The power of the Election Tribunal to make such orders as they may think fit is subject to rules made in this behalf. Rule 36 (1- A) reads as under:- 'The Tribunal shall'declare the election of the returned candidate or 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 the failure of any person to comply with, or the contravention of any provision of the Act or these Rules.'
The condition specified in this rule for declaring an election as a whole to be void is that the result of the failure of any person to comply with or the contravention of any provision of the Act or the Rules. The guiding principle for the Election Tribunal to deal with the election matters is, therefore, contained in the above rule and the power given to the Election Tribunal is not unguided or' uncontrolled but is restricted to the conditions mentioned in rule 36 (1-A). The intention of the rule, is that an election is to be set aside only in case the result of the election is materially affected by reason of violation of contravention of the Act and the Rules. The Tribunal cannot proceed to punish a candidate by declaring his election as void if it merely finds that some irregularity or corrupt practice have been committed during the election by him or at his instance or with his knowledge. The mere commission of corrupt or illegal practice would not visit him with the consequence of his election having been declared void. It has to be proved before succeeding in having an election set aside that not only a corrupt practice was current but that it was of such a large scale that it would reasonably be said to have contaminated the entire election."
(iii) In Abdul Aziz Kaburaj v. S.A. Chowdhry and anither PLD 1966 Dacca 561 it was held that Tribunal must be satisfied that non-compliance or contravention of any provision of Act and Rules materially affected result of Election. Reference could be made to cases, Abdul Quddus Khandkar v.
The Election Tribunal and Additional Deputy Commissioner, Bogra PLD 1966 Dacca 604 wherein it was held:- "It is clear from the provisions of rule 36 (1-A) that a duty has been cast upon the Tribunal to come to a finding whether the result of the election has been materially affected before declaring the election to be void. A finding to the effect that the result of the election has been materially affected is a condition precedent to the declaration of the election as void. Such a finding is the foundation of the jurisdiction to a declaration as stated above and, if the Tribunal finds that what has happened has 'materially affected' the result of the election it is incumbent on it to declare it (the election) to be void. This is mandatory."
(iv) In Jan Muhammad v. Collector Jacobabad and others PLD 1963 (W.P). Kar. 433 it was held:- Where a candidate has suffered because of the omission or commission on the part of the Polling Officer himself, the Election Tribunal can give him relief under rule 59 of the Rules. Rule 59 (c) of the Rule contemplates that in the circumstances, as in the present case, the Election Tribunal can declare the election to be void. We do not think that the Election Tribunal has acted beyond the power conferred on him by Rule 59 of the Rules in declaring the Election of petitioner to be void."
(v) In Vashist Narain Sharma v. Devchand AIR 1954 C 513 the Election was challenged on the ground that the nomination paper of one of the defeated candidates was improperly accepted.
The question was whether result of election was materially affected. It was observed as under: - "These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate."
' It was further observed:- "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate."
' It was further observed:- "Where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all, but where it is not possible to anticipate the result as in the above-mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand."
' Besides above authorities on this point a reference can be made to Azhar Hussain Khan v. Election Tribunal Dacca and others 1968 SCMR 228 where election was challenged on the ground that Presiding Officer was close friend of one contesting candidate and he was not impartial. There was margin of few votes. The Election was set aside. The matter went in Supreme Court. It was observed as under:- "It could be argued that the result of the election was not materially affected by the invalidity of only two votes (S.Nos.156 and 248), but the charge in the instant case was that the election as a whole was not conducted fairly by the Presiding Officer who was a close friend of the appellant. The Tribunal had the necessary material before it to came to such a conclusion and in setting aside the election it acted in aid of a fair election."
' In the light of above case-law the Tribunal can declare the election as a whole void if it is proved that due to irregularities and illegalities the result of the election has materially been affected is various manners. Section 70 of the Act is reproduced as follows:- "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 this Act or rules; or
(b) the prevalence of extensive corrupt or illegal practice at the election."
31. Upshot of discussion on issues Nos.2 and 3 is that due t violation of provisions of Act and Rules, the result of the election has been materially affected and from the documentary evidence it is proved that respondent No,1 is responsible for rigging, malpractice and illegal acts. The Returning Officer has also failed to conduct election impartially and violated the provisions of Act and Rules. I, therefore, under section 70 (a) (b) of the Representation of Peoples Act, 1976 declare the election of Constituency No,PS-32 Larkana-II held on 28th February, 1985 as a whole to be void.
Election .