MR. JUSTICE (RETD.) NAIMUDDIN, CHIEF ELECTION COMMISSIONER::---This is an application under section 103AA of the Representation of People Act, 1976 etc., filed by Mian Khursheed Mehmood Kasuri, a candidate, who contested the election from Constituency No. NA-106 Kasur-I Section 103AA reads as follows:-- "103AA.Power of Commissioner to declare a poll void.--(l) Notwithstanding anything contained in this Act, it, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the power conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure."
2. The petitioner in the application has prayed that:--
(a) The Election Commission may hold a summary enquiry into the conduct of poll and unauthorised tampering with the ballot papers by the functionaries charged with the duties to organize and conduct the elections and after declaring the poll as void on account of these "shocking and stunning illegalities" and ordering fresh poll.
(b) Until completion of the enquiry this Honourable Commission may kindly suspend publication of the Notification in the official Gazette of results from this Constituency. This prayer has become infructuous as the Notification has already been published in the official Gazette.
3. The facts giving rise to this petition as stated in the application are as follows:--
(1) That according to the initial announcement made by all the concerned agencies including the Press, the petitioner had won election from this Constituency but in the small hours of the morning his victory was shown as defeat and it was declared that he lost by a margin of 7,000 votes.
(2) That certain acts of omissions and commissions by the persons responsible for conduct of election have rendered the poll in the Constituency as totally violative of law. Some of which are stated as under:--
(i) That the respondent No.2 is an officer closely related (brother-in-law) to Mian Manzoor Ahmed Wattoo. He had earned notoriety in the last Local Council Elections which are noted on his service record. The District .Administration, particularly respondent No.3 (Deputy Commissioner, Kasur) is learnt to have recommended his transfer in line with the policy of the care-takers because he was to perform a sensitive duty of holding in his custody the ballot papers as incharge of the Treasury.
All Officers except respondent No.2 were transferred. It is learnt on good authority that despite two forceful notes by the District Administration the Provincial Administration, for reasons best known to them, did not transfer the aforesaid officer.
(ii) That the said officer was entrusted with the custody of ballot papers. Apparent attempts were made to take out the ballot papers on the, afternoon of 3rd of October, 1993, and in any case they were taken out by the Returning Officer respondent No.l on 4th morning thereby keeping the ballot papers in his unauthorised custody for nearly 48 hours before commencement of polls. Such a practice, besides being inconsistent with other places tells upon the claims of transparency of elections and the possibility of pilferage or leakage and delivering of these ballot papers into wrong hands could not be ruled out. The Petitioner raised this issue at all levels and informed the authorities charged with the duty to monitor transparency of elections. The allegations of the petitioner that the votes had been taken out of the treasury on the morning of 4th October have been found correct. No action has been taken by the authorities for the reason that the person taking the ballot papers was nobody except the Returning Officer himself. Even this allegation has not been found incorrect that attempts were made to take out the ballot papers on the afternoon of 3rd October, 1993.
(iii) That a bare perusal of the consolidated statement in Form-16 would reveal that in those polling stations which were and away from the urban access, respondent No.4 indulged in open/massive rigging resulting in inconsistent voting pattern. There are polling stations where the petitioner has been shown to have polled less than 10 votes which run contrary to the overall voting pattern in whole of the country between the two main contestants i.e. Pakistan Muslim League and the Pakistan Peoples Party.
4. Petitioner's further grievance is that he approached the Returning Officer with a request to permit the recounting of ballot papers and inspection of the record but he did not permit to open any bag except the one pertaining to the counterfoils of Polling Station No.96. The Petitioner has also alleged that the Returning Officer also did not abide by the subsection (3) of section 39 inasmuch as he refused to open and count excluded votes.
5. The comments of the Returning Officer were invited who stated as follows:-- "Para. No.l. It is correct that the petitioner contested the election.
The second part of the para is incorrect and denied. The undersigned never made any announcement about the success of the petitioner from this Constituency. The statements of count of 177 polling stations of the Constituency were received by the undersigned till late night and after tabulation it was found that 37,481 votes had been polled in favour of the petitioner whereas 46,255 votes had been polled in favour of respondent No.4. Therefore, on 7-10-1993 at 3-30 A.M., Mr. Abid Hussain Bukhari, Deputy Election Commissioner, Lahore Division was conveyed the said result over Telephone.
"Para. No.2. It is incorrect and denied No illegality has been committed in holding of the election of the constituency.
(i)It does not concern the undersigned.
(ii)Contents of the para are misconceived therefore, denied. For conduct of polls on 6-10-1993 all the Returning Officers had to arrange for delivering polling bags to the Presiding Officers of the polling stations on 5-10-1993 from 9-00 A.M. There are 177 polling stations in this Constituency. For preparation of the polling bags which include the assignment of the ballot papers to each polling station and their sealing in small bags and then sealing of the large bag requires at least one day's time. Therefore, along with all other Returning Officers of the Kasur District, the ballot papers in six wooden boxes were delivered to the undersigned for election to NA-106 Kasur-I from the local treasury on 4-10-1993 at about 11-80 A.M. Under the strict supervision and escort of the Army. Major Fazal-ur-Rehman of 2 A.K., Liaison Officer with the undersigned escorted ballot papers from the treasury to my office. The said six wooden boxes were consecutively numbered from 1/6 to 6/6 and were opened by no other person than the Liaison Officer, Major Fazal-ur-Rchman. Serial number of the ballot papers recovered from the said six wooden boxes tallied with the despatch Voucher No.L-5067 dated 30-9-1993 issued by the Printing Corporation of Pakistan Press, Lahore (Copy enclosed) for this Constituency. Ballot papers were thereafter assigned to each polling station according to the number of votes assigned to it and serial number of the ballot papers so assigned were recorded in the packing invoice of each polling station. Thus 247,000 ballot papers were assigned to polling stations of the Constituency in the presence of Major Fazal-ur-Rehman, Liaison Officer. Thereafter the polling bags remained under the guard of the Army and were delivered to the Presiding Officers on 5-10-1993 who were taken to the concerned polling stations from the office of the undersigned under Army escort. Therefore, the possibility of pilferage, leaking or delivering of ballot papers in wrong hands did not arise. The release of ballot papers from the treasury by the Army to the Returning Officers on 4-10-1993 is neither illegal nor against any established norms and procedure.
(iii)Incorrect, denied. No complaint whatsoever was either lodged with any of the Presiding Officers or with the undersigned by the petitioner about the rigging or malpractice by respondent No.4."
6.As regards para 3 of the petition, he stated as follows:-- "The final consolidation of results was fixed on 10-10-1993. The petitioner moved an application for permission to examine the counterfoils and recounting. ,'Petitioner was assisted by his counsel Sh.
Muhammad Akram Advoc4ite, who provided a list of nine polling stations being 123, 156, 1611, 153, 134, 113, 127, 132 and 70 besides Polling Station No.96 and requested that the Polling bags of the said polling stations may be de -sealed. More emphasise, by the petitioner, was laid upon the result of, the Polling Station No.96. A photo copy of Form XIV of Polling Station No.96 was produced before the undersigned wherein the Presiding Officer had reported that from the polling booth No.4 where,: Shafiq Ahmad, Assistant Presiding Officer was performing the election duty, two excess ballot papers were found. It was alleged on behalf of the petitioner that the ballot papers were unauthorisedly removed from the treasury before those were provided to the Returning; Officer and were polled by respondent No.4 at remote area of the constituency and Polling Station No.96 was one of those. Therefore, upon the request of the petitioner polling bag of Polling Station No.96 was desealed and packet supposed to contain counterfoils of the used ballot papers was also deceased. Counterfoils found in the said packet were counted and were found to be 820 in number. It was also found that one counterfoil of ballot papers in Book No. 1300 and one; counterfoil in Book No.1318 were surplus. Therefore, the request c if the petitioner for opening of all the polling bags was declined vide order dated 10-10-1993 by the undersigned. The margin of votes bywhich respondent No.4 was declared successful is 8,763. Therefore, the 'necessity to open all the polling bags for examination of ballot papers excluded from count being 1,377 in all, was not felt necessary.
Even if 1377 ballot papers excluded from the count by the Presiding Officers were, for the sake of argument, presumed to have been polled in favour of the petitioner, the same would not have changed the result.
7. The comments from 'Deputy Commissioner, Kasur (Respondent No.3) were also invited, who in hi:; Comments ;concluded, after replying to various allegations made, that:-- "I am of the view that no gross irregularity or illegality has been committed due to which the said Election could be declared void."
8. The perusal of the provisions of section 103-AA of the Representation of the People Act shows that two conditions must be fulfilled before the jurisdiction of the Election Commission is attracted.
These are: (i) That there should be grave illegalities or violation of provisions of the Representation of the People Act, 1976 or the rules made thereunder. (ii) The facts apparent on the face of the record must show those grave illegalities or violation of the provisions of the Act or the rules. If these conditions are fulfilled, a summary enquiry, as may be deemed necessary by the Election Commission, can be made.
9. We are of the opinion that the fats of the petition most of which have verbatim reproduced herein before, do not show that our jurisdiction is attracted for reasons, firstly, no gross illegalities or violation of the provisions of the Act or the rules is apparent on thd face of the record, secondly, they cannot even if it is assumed that there are some violation of any provision of Act or rules, be established by a summary enquiry. For example, all allegations made against respondent No.2 can only be established by the leading evidence and even if they are established, how can they bring the case within the purview of section 103AA of the Act. Similarly, the Returning Officer has fully explained in his reply quoted above thus custody of ballot papers with him which explanation prima facie finds our satisfaction. Lastly, after the count the ballot papers,, their counterfoils etc. Are all packed duly and put in bag which is properly sealed. Therefore, in the presence of seal, nobody can tamper it without being detected. As regard the allegation that the consolidated statement in Form XVI would reveal that in those polling stations which were away from an urban access, there was open and massive rigging, it may be stated that in one of the cases, namely, Abdul Hafeez Pirzada v. Agha Ghulam Ali Buledi (1991 CLC 2093) at page 2105 one of us had the opportunity to deal with a similar question and in that case it was observed as follows:-- "23.In any case, this controversy cannot be resolved in. Summary proceedings like the one in hand, It cannot therefore, be said that there is any illegality patent on the face of the record.
24As regards the grievance that three polling stations, namely, No.11l, 12 and 14, were completely sealed off by police and voters were driven away, it may be stated. That the low turn-out or no voting will not ipso facto prove the allegations. Evidence is required for this purpose. The petitioner in support of the allegations has not even filed affidavit of any voter that he was presented from voting by the police or anybody else. Nor he has filed affidavit of any person who saw the police or anybody else, driving away the voters. Indeed these three polling stations were visited by 'Team-I appointed by the Chief Election Commissioner to monitor the bye-election in the company of the representative of the petitioner, Senator Syed Abdullah Shah, as well as candidate Syed Anwar Ali Shah. Regarding P.S.11, Syed Abdullah Shah made endorsement on the Inspection Team's report "No complaint till 9-00 a.m." when the polling station was visited. Regarding Polling Station No.12 the team visited it at 8-30 a.m. And no vote was cast until then and the statement is signed by Syed Abdullah Shah as well as Syed Anwar Ali Shah, a contesting candidate. The polling agent of the petitioner did not make any grievance that any voter was being driven away or prevented from voting. P.S.14 was visited at 11-05 a.m. Till then no vote was cast but Syed Abdullah Shah appears to have made the endorsement on the report "all well till 11-05 a.m.". Therefore, it would be safe to conclude from the above remarks by Syed Abdullah Shah, the representative of the petitioner, that the polling agents of the petitioner had no such grievance which is now made. It may be stated that in 1990 General Elections at polling stations Nos.11, 12 and 14, Mr. Buledi polled 236, 1,346 and 1,106 votes, respectively, while P.D.A. Candidate Mr. Shahliani polled 65, 25 and 195 votes, respectively, if the turn-out of the voters was very low, it seems to be to the disadvantage of Mr. Buledi. There may be any reasons for this low turn-out but if I state those, I will be travelling in the realm of conjecture. Suffice it would be to say that without evidence of any voter that he was prevented from voting, low turn-out of voters would not establish that grave illegality was committed. Incidentally, I may mention that in the General Elections of 1990, in NA 25-Dir not a single vote, out of 6,603 votes, was cast at six polling stations. But in that case the prayer of the petitioner for re-poll at those polling stations was rejected by the Commission by the order dated 15-12-1990 ".
10. Experience has shown that in a constituency where there are 100 to 200 polling stations and several candidates contest the election, each one may have concentration of his voters in areas of certain polling stations and may not have his voters in areas of other polling station, unless one is very strong candidate and have influence in entire constituency. Therefore, this point has no force without evidence of corrupt practice for which evidence can be produced in the proceedings on an election petition.
11. The allegations, we are of opinion, require fullfledged enquiry and evidence to establish the same which can be made only by a Tribunal appointed under section 57 of the said Act, on an election petition filed under section 52 of the said Act. We, therefore, find no valid reasons to declare the poll as void.
M.BA./110-EPoll declared void.