1. ' This Election Petition under section 52 of the Representation of the People Act, 1976 has been filed by Syed Qurban All Shah, petitioner, against Anis Ahmed Khan respondent No,1 and others calling in question the results from Constituency NA.174, Tharparkar I, the polls whereof were held on the 24th of October, 1990, in which the said respondent No,1 was declared as elected. The petitioner has prayed for a declaration that the election of respondent No,1 is void and the petitioner was duly elected and in the alternative the election as a whole was void.
2. ' The petitioner has alleged a large number of corrupt and illegal practices during the elections and of illegal acts and offences by a number of Government servants, Presiding Officers and Polling Staff as well as the Returning Officer of the Constituency, whereby the Petitioner was deprived of lawful majority of the votes in the election. The petitioner particularly made reference to 2,500 voters who were prevented from casting their votes by wilful, deliberate and unlawful denial of issuance of National Identity Cards to them as per Schedule 'A' to the petition. Besides, it is alleged that 1,062 illegal and unlawful votes were being cast in favour of respondent No,1 by persons who were unlawfully registered as voters at Polling Stations Nos,3 and 5 as per details given in Schedule 'B' to the petition. Furthermore, on the day of poll, in Mirpurkhas, namely Polling Stations Nos, 3, 4, 5, 15 and 30 were completely taken over by the polling agents and workers of respondent No,1 who unlawfully intimidated the Presiding Officers and other staff and snatched away unused ballot papers stuffing them into their ballot boxes. It is averred by the petitioner that after the result had been sent by the respective Presiding Officers to the Returning Officer, the petitioner moved an application on 27-1-1990 under section 39(6) of the Representation of the People Act, 1976 giving details of the said corrupt practices. Subsequently on 29-10-1990 the respondent No,1 also made an application for recount in the entire Constituency to which the petitioner gave his no objection. By order dated 29-10-1990, the Returning Officer in exercise of his power under section 39(6) of the Act allowed the request and directed recount of the votes of the entire Constituency. This recount could not take place as the workers and agents of respondent No,1 resorted to insult, threats and intimidations and prevented the Returning Officer to do so. The Returning Officer however resiled from his previous order of recount and ordered that the request for recount may be made by the petitioner before the Election Commission. The Returning Officer without examining the rejected ballot papers and without notice to the petitioner prepared an illegal statement of count in violation of section 39 of the Act. Lastly, it is alleged by the petitioner that respondent No,1 with the active connivance of the Officers prevented the supplementary list of voters of Taluka Digree to be sent to the polling station for the poll on 24-10-1990 as a result whereof 2,000 lawful registered voters were prevented from exercise of franchise.
3. ' The respondents were duly served. Except respondent No,1 who was elected from the said Constituency no other respondent filed any written statement to the petition.
4. ' Respondent No,1 vehemently denied all the allegations. On the basis of pleadings of the parties the following issues were framed: "(1) Whether any corrupt and illegal practices or any other illegal act was committed during the Election as alleged? If so, what is its effect?
(2) What should be the order of Tribunal?
(3) Whether the Provincial and the District Administration had been geared up to produce the election of respondent No,1? If so, whether the same resulted in a large number of corrupt and illegal practices?
(4) Whether voters have been unlawfully registered as voters at two separate polling stations within Constituency NA.174 Tharparkar I? If so, its effect. Whether those voters cast votes in two different polling stations?
(5) Whether on the day of poll a large number of polling stations in.Mirpurkhas Town inter alia Nos,3,4,5,15 and 30, were completely taken over by the men of the respondent No,1?
(6) Whether after counting of postal ballot papers the R.O. Proceeded to recount the ballots; if so, up to what extent?
(7) Whether the respondent No,1, his workers and agents acted in flagrant violation of law while R.O.
5. Proceeded to recount?
(8) Whether the R.O. Failed to comply with any provisions of law prepared an illegal statement of count, if so, how?
(9) Whether the respondent No,1 with active connivance of the staff of the R.O. And by fraudulent device and controvince, prevented the supplementary list of voters of Taluka Digree as a consequence whereof 2,000 votes were defranchised?"
6. ' Originally there were only first two issues but subsequently by a consent order rest of the issues were added. It will however be convenient to deal with all the issues together as they are so closely connected with one another.
7. ' It is an admitted position that respondent No,1 namely Anis Ahmed Khan did not oppose the request of the petitioner for recounting in the said five polling stations, before the Returning Officer.
8. During the course of proceeding before me he consented for examination of ballot papers excluded from count by Presiding Officer and not examined by the Returning Officer and further for recount of ballot papers which could be carried out as stated earlier vide order dated 29-10-1990 of the Returning Officer. Whether the result of re-counting could have resulted into success of the petitioner or not is a mere guesswo rk keeping in view the fact that the respondent No,1 won the election not by a big margin. Let us see whether such an order is justifiable in view of the facts and circumstances of the case.
9. ' The petitioner Syed Qurban Ali Shah examined himself and produced Abdul Ghafoor (P.W.2)
10. District and Sessions Judge, Mirpurkhas, to produce entire record pertaining to the said NA.174 Tharparkar and also Mr. Zamirul Hasnain Larik (P.W.3) Returning Officer of the said. Constituency.
11. The petitioner was cross-examined at length by Mr.Fazal-e-Ghani Khan, learned counsel for respondent No,1. However, before the deposition of P.W2 and P.W.3 learned counsel for the petitioner MrAbdul Hafeez Pirzada stated that the respondent No,1 had resigned from the said Constituency and was no more interested in these proceedings. This appears to be so as neither respondent No,1 nor his counsel made any appearance afterwards nor any application for adjournment was moved on their behalf Although the seat of NA.174 Tharparkar is stated to be vacant now and fresh bye-election in respect thereof is likely to be held in future on a date to be notified by the Pakistan Election Commission. Mr. Abdul Hafeez Pirzada learned counsel for the petitioner insists that the petition may be heard and decided as a favourable decision would partially vindicate the political setback received by the petitioner.
12. ' First I will deal with the petitioner's two allegations that there were 1,062 illegal voters registered at Polling Stations Nos,3 and 5 and that the respondent No,1 or his men had intimidated the Presiding Officer and snatched away ballot papers fram him and stuffed them into ballot box of respondent No,l. In regard to the former there is no independent evidence either ocular or documentary. The other allegation relates to 300 votes only as per Exh.P.2 but there is nothing in it against the respondent No,1 or his workeRs, The report of the Presiding Officer vide P/3 mentions that only 37 ballot papers were stamped but here too there is no reference to respondent No,1 or his workeRs, ' With regard to the allegation of the petitioner that respondent No,1 with the active connivance of the subordinate staff of the Returning Officer (P.W.3) had fraudulently prevented issuance of the supplementary list of 2,000 voters of Taluka Degree with the result that they were deprived to cast vote, no satisfactory evidence has been brought on record by the petitioner. It is pertinent to note the Returning Officer, P.W.3 nowhere corroborated the petitioner's said allegation although he was examined at length.
13. ' As to the other alleged malpractices of respondent No,1, P.W.3 Zamirul Hasnain Larik, the Returning Officer of the Constituency NA.174 has produced telex being ExhA/2/3 sent by him to the Registrar of High Court of Sindh in which he complained that respondent No,1 had threatened him of dire consequences. In another telex being A/2/5 he complained that on 27-10-1990, the workers of A.P.M.S.O. Had threatened him on telephone. In another telex being A/2/7/dated 30-10-1990 to the Chief Election Commissioner of Pakistan and the Registrar of High Court of Sindh, he once again referred to the threats advanced by the respondent No,1 to him further stating that his life was in danger and requesting that he may be relieved of his duties. Nothing further was shown by the petitioner as to how these threats would adversely affect the election results to the disadvantage of the petitioner or were of such dimensions that would render the entire election null and void.
14. ' Last two grounds relate to non-issuance of 2,500 National Identity Cards to the voters with the result that they were deprived to cast their votes and the failure of the Returning Officer (P.W.3) to consider rejected votes and to consolidate the votes of all the polling stations.
15. ' It was contended by Mr.Abdul Hafeez Pirzada, learned counsel for the petitioner that some 2,500 voters from the Constituency who had applied for issuance of National Identity Cards were deprived to cast vote, on account of conspiracy between respondent No,1 and the District Registrar and Assistant Registrar from the office of Director-General of Registration,Government of Pakistan.
16. The said two officers left their office and there was nobody to deliver National Identy Cards to them.
17. In support referred to Schedule 'A' and Annexure A-1 (Exh.P/1). The former contains full particulars of the allegation and the latter is a certified copy of letter addressed to the District Returning Officer, Tharparkar by the District Registrar that the National Identity Cards would be made ready at the Registration counter on 22-10-1990. In fact P.W.3 Mr.Zamirul Hasnain Larik, the Returning Officer of the Constituency also supported the petitioner in this regard and produced telex A/1 mentioning 360 persons who had appeared before the District Registration Officer and made complaints in writing to the said Returning Officer pages 35-523 of A/1 to the same effect against the said District Registration Officer and other Officers in the Registration Office. The petitioner's allegation that 2,500 voters were deprived to cast their vote because of the non-delivery of National Identity Cards to them despite undertaking by the said District Registrar stands unrebutted and established beyond any doubt although there is nothing to show that he and other officers and staff from the office of Director-General of Registration, Government of Pakistan fell prey to a conspiracy hetched by the respondent No,1. However, the fact remains that A non-delivery of such a large number of National Identity Cards to the said persons could have upset the election results keeping in view that the respondent No,1 won the election by 416 votes only.
18. ' Lastly what is pertinent to note is that P.W.3 Mr.Zamirul Hasnain Lark Returning Officer in his deposition has admitted that he did not examine or consider 872 rejected votes (ExhA/4/1) while he announced final results. In doing so he violated mandatory directions contained in section 39(3) of the Representation of the People Act, 1976 requiring a Returning Officer to examine the ballot paper excluded from the count by the Presiding Officer and to decide if it was rightly excluded or not. It is also amazing to note that the said Returning Officer P.W.3 has also admitted in his deposition that he did not consolidate the votes of all the polling stations as required under section 39(1) of the Representation of the People Act, 1976. This again is a mandatory requirement of law, non- compliance of which wilfully and without reasonable cause may tantamount to breach of official duty within the meaning of section 91 of the said Act which prescribes imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both.
19. The question whether the said non-compliance by the Returning Officer P.W.3 was not wilful or not without reasonable cause is not before me. I will therefore refrain from dilating upon it.
20. ' As a result of overall analysis and observations made above, the election from NA.174, Tharparkar I, held on the 24th of October, 1990 as a whole is declared void. In the circumstances there is no justifiability for recount in the entire Constituency.