1. This is an Election Petition under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 52 of the Representation of the Peoples Act, 1976 (hereinafter referred to as the Act), whereby the petitioner has challenged Election of the 1st respondent from PB-8. Qilla Abdullah-I who was declared the Returned Candidate.
2. Brief facts for filing of this petition are that the petitioner along with private respondents contested the Election of Provincial Assembly Baluchistan from PB-8 Qilla Abdullah-I held on 9-10-1993. The petitioner contested Election as a nominee of Pakistan National Party, whereas respondent No.1 was candidate of Pashtoon Khawah Milli Awami Party. As a result of Election, on final counting, the 1st respondent obtained 5054 votes, whereas petitioner got 4451 votes, thus the respondent No.1 was declared as a Returned Candidate. It is to be noted that there were 47 Polling Stations in the said Constituency and according to the petitioner he obtained majority of votes except in 7 Polling Stations, the detail whereof is as under:--- S. No.Name of Polling StationVotes secured by Returned CandidateVotes secured by petitioner 1 Primary School Killi Sharan 263 1
2. Primary School Killi Arambi Kakozai515 3 Primary School Killi Jumma Khan317 3 4 Primary School Killi Goher 329 5 Primary School Killi.Shaista Khan 363 1 6 Primary School Killi Dilsora Karez 478 7 Girls High School Inayatullah Karez195 3 The main allegation levelled by the petitioner is that the Returned Candidate obtained a machine for preparation of bogus Identity Cards, specially of female voters and such Identity Cards were used at large scale in the seven Polling Stations where percentage of female voters was much high (almost about 80% of the total registered votes of .The females). It was further alleged in the petition that some bogus Identity Cards were also taken into possession by the Administrative Authority; but no action was taken in spite of the complaint l; made to that effect. Yet another objection taken by the petitioner -was that several series of Identity Cards have not yet been issued to the people of the abovementioned Constituency or other residents of District Qilla Abdullah but the same have been illegally, used. It was averred by the petitioner that the Returned Candidate got prepared 13000 bogus Identity Cards, to use it in the abovementioned Constituency.
3. The petitioner had informed in writing, the Election Commission of Pakistan, but no action was taken. It was alleged that at Dorazai Polling Station 160 bogus Identity Cards were recovered from one Abdul Bari son of Muhammad Gul and he was also arrested but no action was taken against him. Similarly at Polling Station Primary School Jumma Khan one male voter wearing Burqa was caught red-handed, when he was about to cast a bogus vote at the female booth, who was sentenced at the spot. The petitioner made a complaint in writing to the Election Commission of Pakistan (copies to Election Commissioner, Baluchistan and Incharge Election Cell of Pakistan Army), with a prayer that result of the Constituency be withheld till an enquiry is made into the complaint made by him, however, this too went unheeded.
4. On the Election day only 6 bogus Indentity Cards fell into the hands of agents of the petitioner which have been attached along with the petition. The petitioner approached the Returning Officer for supply of copies of counterfoils of ballot papers used in the Election in order to check the genuineness of the Identity Cards with the record of Registration Officer but of no avail. However, such orders were made by the Election Commission of Pakistan.
5. After when the Election Petition was received by the Office, it was fixed for hearing on 19-12-1993.
6. Thereafter Civil Miscellaneous Applications were filed and 1st respondent filed his written statement. On the basis of pleadings, following issues were framed:---
(1) Whether the petition is not maintainable for the reason that Notification dated 17-10-1993 has not been challenged? Onus on respondent No.1.
(2) Whether copy of petition along with Annexures was despatched to the respondent through registered post acknowledgement due and received by him on 1-12-1993. If so, whether written statement was duly filed within 7 days after receipt of the petition and if not to what effect?
(3) Whether the respondent No.1 won the election on account of corrupt practice bribery, personation, undue influence and threats to the polling staff?
(4) Whether the respondent No.1 used Afghan refugees to cast votes in his favour by using bogus Identity Cards which influenced the whole election of PB-8 Killa Saifullah?
(5) Whether the eldction of the Provincial Assembly PB-8 Killa Saifullah-I was won by the respondent No.1 by widespread use of bogus Identity Cards at Polling Stations Primary School Sharan, Primary School Arambi, Kakozai, Primary School Killi Jumma Khan, Primary School Killi Goher, Primary, School Killi Shaista Khan, Primary School Dilsora Karez and Girls High School karez and Girls School Inayatullah Karez, if so, to what effect?
(6) Relief?
7. After disposal of the Miscellaneous Applications and with consent of the parties a Commission for taking evidence and comparing the counterfoils with the Registers of District Registration Officer, was constituted. Mr. Sakhi Sultan, Advocate was appointed as the Commissioner, but on 19-6-1994 he requested that he be exonerated from carrying out the work assigned to him as he was indisposed. Resultantly, learned District and Sessions Judge was appointed as the Commissioner for Taking Evidence with the following directions:--- "The District Registration Officer, Pishin is directed to personally bring concerned registers regarding identity cards and produce it before the learned District and Sessions Judge at Quetta. Learned District and Sessions Judge in presence of District Registration Officer shall compare the counterfoils of the ballot-papers with the Registers of Identity Cards kept by D.R.O. In order to find out their validity. For the said purpose one representative of each party shall be present during the proceedings before the learned District and Sessions Judge in order to assist him.
8. The learned District and Sessions Judge after comparing the counter--foils with the registers shall submit his report in writing to this Tribunal. In order to do the needful the learned Sessions Judge shall fix a date convenient to him and summon District Registration Officer, Pishin and the representatives of the parties before him on the said date. "
9. The Commissioner for taking evidence, who was appointed with consent of the parties, submitted his report after about one year. Civil Miscellaneous Application No. 19 of 1994 was filed which was also disposed of on 2-10-1994.
10. In order to substantiate the allegations, petitioner Bismillah Khan filed an affidavit, entered the witness-box and was cross-examined. The Returned Candidate was also examined and he produced in rebuttal, 10 witnesses.
11. Heard Mr. Azizullah Memon assisted by Mr. S.A.M. Quadri, Advocate for the petitioner, M/s. Iftikhar Hussain Gillani assisted by Mr. Ehsanulhaq and Mr. Muhammad Zafar for the returned Candidate.
12. The remaining respondents did not contest.
13. With this background; Mr. Memon argued that the Returned Candidate brought a machine to prepare bogus Identity Cards which were widely used by the female voters on these six Polling Stations. A number of such bogus Identity Cards were secured by the Election Officers on duty but no action was taken by them, despite serious objections raised by the Polling Agents of the petitioner. However, the Polling Agents of the petitioner got only six(6) bogus Identity Cards which have been brought on record.
14. This Tribunal appointed a Commissioner for taking evidence in order to find out the number of votes cast on the basis of alleged bogus Identity Cards, after comparing the counterfoils with the original Registers kept by District Registration Officer. The Commissioner submitted his report indicating that 1159 bogus votes have been cast on these six Polling Stations, whereas the difference between the votes of petitioner and Returned Candidate is only 603 votes. Thus, the petitioner can be conveniently declared as a Returned Candidate, after declaring the election of Returned Candidate as void.
15. Learned counsel emphatically urged that the Returned Candidate or his attorney raised no objection whatsoever to the report during the proceedings before the Commissioner nor thereafter. /This ,amounts to implied admission, according to the learned counsel. Even otherwise entire proceedings were conducted in presence of the attorney and counsel for the parties. As such this report is a credible piece of evidence to be taken into consideration by the Tribunal. Reference was made to Order 26, Rule 10, Civil Procedure Code. The Commissioner prepared the pro forma in the beginning of the proceedings, handing over the same to both the parties who raised no objection to the same. Therefore, the report becomes much relevant and pertinent in view of the aforementioned facts and the Same cannot be easily bypassed by the tribunal. In support of his above contentions, reliance was placed on the following authorities:---
(i) PLD 1978 Kar. 316: In this case it was inter alia held that although report of Commissioner is not binding on Court yet such report be treated as evidence. If no objection is filed against the report the Commissioner's evidence cannot be conveniently rejected;
(ii) PLD 1978 Lah. 31: In this case it was held that the report of Commissioner is not a finding but an enquiry for information of Court. Commissioner's report was treated only as evidence and not a decision;
(iii) AIR 1962 Andhara Pardesh 84: It was held that if the proceedings before the Commissioner conducted behind the back of defendants, such report becomes unreliable and examination of the Commission does not cure it;
(iv) PLD 1955 Dacca 15: An observation was made that Court must consider the reasons given in report before rejecting it; '
(v) AIR 1940 PC 3: In this case it was held that it was not safe for a Court to act as expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness.Are unquestioned;
(vi) 1981 CLC 364: '
16. It was decided that report of Local Commissioner is not binding on parties nor Court is obliged to decide dispute in terms thereof. However, if parties give undertaking to be bound by finding of Local Commissioner and agreeing upon the Court finally, position of such Local Commissioner would be of a referee; (Justice Amir-ul-Mulk Mengal, Election Tribunal)
(vii) 1991 MLD 1774: It was held that acceptance of report could be on the basis of rejection of objection to that report or alternately on no objection having been raised at all.
17. According to the counsel, this report lends sufficient corroboration to the allegations made by the petitioner against respondent No.1 that bogus votes were used in six Polling Stations.
18. Besides, a preliminary objection was raised by the petitioner's counsel that the Returned Candidate did not file written statement within prescribed period of 7 days as required by Notification of the Election Commission of Pakistan dated 16-3-1985, therefore, the same cannot be taken into consideration and as such the allegations of the petitioner would go unrebutted. He relied on 1992 CLC 1766. The third argument canvassed before me was general in nature where the learned counsel explained how the bogus Identity Cards have been used and in some cases the female voters have used male votes. It was also pointed out that persons whose names were not entered in the Electoral Roll of these 6 Polling Stations also cast their votes, as is indicated from the Commissioner's Report.
19. On the other hand, the main counsel for Returned Candidate while giving the background of the Election Laws in Pakistan outlined different principles to be ad hered to and explained the Scheme, Policy and Purpose of Election Laws. It was contended that the chief purpose of the entire. Scheme is to maintain secrecy of the ballot. It was next contended that the Act provides Special and Restricted Jurisdiction to the Tribunal.. The third contention raised was that the Act is comprehensive and self-contained, therefore, every provision of it must 'be strictly construed. The fourth contention agitated was that strict standard of proof is required to de-seat an Elected Representative, who has been chosen by the Electorate.
20. As to the jurisdiction it was submitted that the Act provides two kinds of jurisdiction as follows:--- (1)Summary Jurisdiction. ---This jurisdiction starts from filing of nomination papers, objections thereto regarding disqualification of the candidate or any other objection and then filing of appeal, which is provided in sections 14, 38, 39 and 103 of the Act.
21. (2)Plenary jurisdiction. ---This process is initiated by filing an Election Petition before an Election Commission which is competent to scrutinize it and if found validly filed, then to refer it to the Tribunal who takes cognizance under provision of the Act and proceeds there under as provided in Chapter VII of the Act.
22. The learned counsel then explained the scope of enquiry and jurisdiction of the Tribunal under the Act. Reference was made to sections 33 and 34 regarding tendered ballot papers and section 35 challenge of electors etc. Besides, my attention was also drawn to section 104 of the Manual of Instructions issued by the Election Commission of Pakistan, which authorises the Commission to provide procedural guidelines where no provisions exist in the Act. In support of his contentions reliance was placed on PLD 1957 SC 91, PLD 1986 SC 178 and PLD 1989 SC 396.
23. In addition thereto learned counsel submitted that there are three stages where objections can be raised to an elector to cast his vote or if he has so cast his vote about validity of the vote. The first stage is during the polls. The second stage is at the time of counting and then when official counting is made by the Returning Officer.
24. The counsel submitted that if 1159 votes had been found in the challenged ballot papers box as per rule 26(4) then of course, prima facie, the petitioner could argue about the same. But, in fact, even according to the report of the Commissioner for taking evidence only 56 votes were found in the challenged ballot paper box.
25. While criticising the report of the Commissioner, the learned counsel submitted that its validity is doubtful firstly because this is an unauthorised report as it is not mandated by the Tribunal. In this respect the counsel read out order of the Tribunal referring the matter to Commissioner for taking evidence. It was submitted that the Commissioner travelled beyond the mandatory directions, therefore, such report cannot form a sole basis for unseating the Returned Candidate nor his election could be declared void. Reliance was placed on 1983 CLC 272 and PLD 1961 Dacca 65.
26. Besides, the learned counsel argued that the Commissioner has not been produced as witness in order to clarify glaring contradictions in the report. .The counsel took me to different observations made by the Commissioner and submitted that those were factually wrong and totally incorrect in view of the documentary evidence as, for example, in many cases voters appeared in the list where he polled his vote, but the Commissioner has stated that his name did not appear in the Electoral Roll.
27. As to wrong entries in the counterfoils, the learned counsel submitted that it may be a bona fide mistake on the part of Presiding Officer and the Returned Candidate has nothing to do with it nor any Election Agent or Polling Agent was associated in any manner with such wrong entries if at all done by the Presiding Officer. Thus, there is no connivance of the Returned Candidate with such clerical mistakes. Hence he could not be disentitled to be elected.
28. Lastly while giving reply of Mr. Memon as regards- preliminary objection to the effect that written statement was not filed within 7 days as prescribed by the Notification of Election Commission of Pakistan, the counsel stressed that there is no penal clause, therefore, the objection cannot be sustained. Furthermore, it was argued that one order is passed and written statement is allowed to be brought on record, then the same cannot be kept out of consideration without strong reasons.
29. To fortify these contentions reference was made to 1990 CLC 1078, 1989 CLC 1883 + 625 and PLD 1991 Kar. 299.
30. I have given my anxious consideration to the arguments so advanced. At the very outset it may be pointed out thai Article 225 of the Constitution of Islamic Republic of Pakistan prescribes forum and jurisdiction regarding election dispute. It lays down that election to a House or a Provincial Assembly shall not be called in question except by an Election Petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The Majlis-e- Shoora has passed such Act known as 'People' Representation Act of 1976. Thus, the Tribunal under the said Act has got exclusive jurisdiction to decide about an Election Petition or an Election Dispute. It appears that besides the Tribunal, no other forum except petition under section 103 to the Election Commission has been provided to challenge Election of a Member to a House or a Provincial Assembly. The object of the Act is to provide a forum for smooth conduct of Elections of the House or the Provincial Assembly and to guard against corrupt and illegal practices or other offences at or in connection with such Elections and . For the determination of doubts and disputes arising out of it or in connection with such Elections and other matters arising out of and connected therewith. This object may be found in the preamble of the Act.
31. The right of franchise is exercised by way of casting a vote by an elector. It is the expression of will of a voter in favour of a candidate, or in some cases his political party. The Act, in fact, is intended that the. Voter should not be influenced by extraneous considerations so that he may cast his vote in a free and fair manner and the corrupt or illegal practices should not be allowed to influence the result of the will of electorate. In a -nascent democracy like ours, emphasis has been laid to transparency of election process, so that fairness of an election is ensured. Undoubtedly secrecy of ballot is of paramount importance as laid down in Article 226 of the Constitution, but simultaneously. The sanctity of vote and the fairness of election process has also been `safeguarded by the Act. This jurisdiction has been exclusively vested upon a Tribunal constituted under the Act or the Election Commission in certain cases as provided under the Act. There is no cavil that the Act provides a special procedure but to say that the jurisdiction of the Tribunal is restricted cannot be readily accepted. It extends to ensure that no corrupt practice or illegality has been committed during conduct of Election so as to guard against corrupt and illegal practices and other offences in connection with such elections. The jurisdiction of the Tribunal cannot be restricted only to a section here or there to exclusion of other sections. Rather it covers all provisions as contained in the Act. I do not find, much force in the contention of Mr. Gailani that.
32. Tribunal could exclude only such votes which are mentioned in section 38 of the Act and no other.
33. Subsection 4(c) of section 38 may be reproduced as under:--,- Section 38. Proceedings at the close of poll.--- (1). . . . . . . . . . . . . .
34. (2)
35. (3)
36. (4)The Presiding Officer shall---
(a) open the used ballot box or ballot' boxes and count the entire lot of ballot papers taken out therefrom;
(b) open the packet bearing the label "Challenged Ballot Papers" and count them;
(c) count in such manner as may be prescribed, the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear--
(i) no official mark and signature of the Presiding Officer;
(ii) any writing or any mark other than the official mark, the signature of the Presiding Officer and the prescribed mark or to which a piece of paper or any other object of any kind has been attached;
(iii) no prescribed mark to indicate the contesting candidate for whom the elector has voted; or
(iv) any mark from which it is not clear for whom the elector has voted: Provided that a ballot paper shall be deemed to have been marked in favour of a candidate if the whole or more than half of the area of the prescribed mark appears clearly within the space containing the name and symbol of that candidate and, where the prescribed mark is divided equally between two such spaces, the ballot paper shall be deemed invalid.
37. In fact, there are other provisions particularly section 68 which prescribes grounds for declaring election of Returned-Candidate void, and it is, for the sake of convenience, reproduced as under:-- - Section 68. Ground for declaring Election of Returned Candidate void.-=-(l) The Tribunal shall declare the Election of the Returned Candidate to be void if it is satisfied that---
(a) the nomination of the Returned Candidate was invalid; or
(b) the Returned Candidate was not on the nomination day, qualified or was disqualified from, being elected as a member;
(c) the election of the Returned Candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the Returned Candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
38. (2).....
39. From bare perusal of section 68(d) it becomes evidently clear that the Tribunal is competent to declare the Election of the Returned Candidate to be void, if it is satisfied that a corrupt or illegal practice has been committed by, the Returned Candidate or his election agent or by any other person with the connivance of the candidate or his election agent. However, there is substance in the arguments that such jurisdiction has to be exercised within the four corners and ambit of the Act and no other ground can be imported.
40. I have already reproduced the issues. Issue No.1 was framed on the preliminary objection that Notification dated 17-10-1993 has not been challenged, therefore, the petition is not maintainable.
41. But during arguments the counsel for the respondent did not say a word in support of this objection. It appears that this objection had been raised in a Luke-warm manner and was not pressed. This otherwise being a technical nature, the petition cannot .Be dismissed on this ground particularly when from perusal of the entire petition it appears that the petitioner has challenged the election. Issue No.2 was again a preliminary issue that petition along with annexures was not despatched to the respondent through registered post acknowledgement due, which was received by respondent on 1-2-1993, but the written statement was filed beyond 7 days. But I will deal with this issue at the later stage of the judgment. Issue No.3, Issue No.4 and Issue No.5 are all in respect of the allegations that election was won on account of corrupt practice, bribery, personation un due influence and threats to Polling Staff. It was alleged that Afghan refugees were used by Returned Candidate to cast votes in his favour by using bogus Identity Cards on 6 Polling Stations as named hereinabove. I, therefore, dispose of three issues together.
42. The petitioner filed affidavits of Mst. Bibi Aisha who was his Polling Agent at Girls High School Inayatullah Karez. Abdul Qayyum who was Polling Agent at Killi Muhammad Khan Primary. School Faizullah his Polling Agent at Killi Shaista Khan, Muhammad Shafiq his Polling Agent at Primary School Sharan, Gul Ghutai his Polling Agent at Polling Station Killi Habibzai, Gul Makai his Polling Agent at Polling Station Civil Dispensary Kalak, Farzana, Marina, Rehmat, Gul Bushra, Miss Rehana, Naimatullah, Rafiullah, Liaquat Ali, Amanullah, Aman Khan, Bibi Naseema and Muhammad Shafiq.
43. But none of these witnesses was produced for cross-examination before the Tribunal.
44. Besides, affidavits of Muhammad Ismail, Wali Jan and Shahabuddin were also filed who claim to be appointed by Human Rights Commission to watch election of PB-8 Killa Abdullah-I but they were not produced for cross---examination.
45. Thus, in support of the petition, the petitioner produced no witnesses except examining himself in support of the allegations made in the petition. He filed his detailed affidavit and was cross- examined by the counsel of respondent No. 1.
46. In cross-examination the petitioner stated inter alia as follows:--- "On each of the 6 Polling Stations, my Polling Agents in the start challenged 4/5 votes, but thereafter they were not: allowed to, do so. For challenged votes, fee had been deposited. I do not know how many fee had been deposited. I cannot approximately tell how many votes had been challenged in all. My agents were not permitted/allowed to challenge votes -of the other candidates including respondent No. 1 . . . .
47. I cannot say any of the Polling Agents of any other candidate had challenged votes at these 6 Polling Stations. It is correct that no written complaint was filed to any of the Election Officer .
48. I came to know that the Returned Candidate had a machine to forge 'Identity Cards but I cannot give the name of any person who extended such information. Voluntarily stated that this information was brought to the notice of the District Registration Officer and other Officers. No such machine was recovered by the authorities ..........
49. I have not stated in my petition that a voter cast twice votes at any Polling Station nor have I stated that voters of the other areas or the Constituency have cast their votes in these Polling Stations .........
50. Similarly about challenged votes the petitioner stated in cross-examination as under:--- "It is correct that only 1 vote had been challenged on Jumma Khan Polling Station. So also on Polling' Station' Killi Goher 36 'votes were challenged. In Killi Shaista Khan Polling Station 2 votes, of Qahar Wadan were challenged. In Dilsohra one vote had been challenged. In Kakozai Polling Station 13 votes had been challenged. "
51. This is the only piece of evidence produced in support of the allegations made in the petition about voting on the basis of bogus Identity Cards.
52. It is now well-settled being a Special Law the provisions of the Act are to be construed strictly.
53. Section 68'~f the Act lays down grounds for declaring election of a Returned Candidate void.
54. Clause 68(d) provides that if corrupt or illegal practice has been committed by the Returned Candidate or his Election Agent or by any other person with the connivance of the candidate or his Election Agent, it would render his election void or as laid down in clause (c) if the election of the Returned Candidate has been procured or induced by a corrupt or illegal practice then the election would be declared void. In order to prove the same the petitioner filed his own affidavit and faced cross---examination. Therefore, his statement has to be thoroughly scrutinised. First of all, he himself admitted in cross-examination that he gathered this information generally that the Returned Candidate had brought a machine for preparing bogus Identity Cards. He has not seen the machine himself, nor the machine has been recovered. There is no evidence except a bald statement that by the said machine 13000 bogus Identity Cards were prepared. So also the total number of votes cast perhaps is less than 13000 votes, out of which the petitioner obtained 4451 votes. According to the statement of petitioner, if it is believed to be true, in all 53 votes were challenged.
55. Similarly in cross-examination he stated that on Darozai Polling Station the Staff recovered 140 bogus Identity Cards from one Mst. Anjum Ara (who was the Polling Agent of Returned Candidate) and from one Abdul Bari 160 bogus Identity Cards were recovered and-he was arrested by the Polling Staff. If we include these bogus Identity Cards which were taken by the Staff before casting of votes, the number comes to 300; whereas the difference of votes is 603.
56. Next comes the question that Polling Agents of the petitioner were not allowed by the Polling Agents of the Returned Candidate to challenge votes. To substantiate all these allegations the natural witnesses could be Polling Agents who were not produced in evidence. Although their affidavits were filed but they were not produced as a witness to face cross-examination. Similarly none of the Polling Staff was produced in support of the allegations as rightly pointed out by the counsel of the Returned Candidate.
57. Moreover, there were not only two candidates but several candidates in this Constituency. Nothing was brought on record that the Polling Agents of any of other contesting candidates challenged or raised objection, that votes were cast, using bogus Identity Cards.
58. Furthermore, in his statement the petitioner deposed that one person was arrested with certain bogus Identity Cards while he was casting a bogus vote and he was convicted on the spot by the staff. This shows that the Polling Staff did not allow any voter to cast a bogus vote.
59. The main argument advanced by the counsel for the petitioner was the report of the Commissioner for taking evidence; who found 1159 votes had been cast by bogus way. From perusal of report it appears that the Commissioner took pains in comparing several counterfoils and prepared a bulky and huge file thus concluding that 1159 votes on these Polling Stations were not validly cast.
60. Although respondent No.1 did not file any written objection before Commissioner but on 24-9-1995 an objection petition on the report of Local Commissioner was filed, but it was not allowed.
61. Be that as it may, the counsel for Returned Candidate challenged the report of the Commissioner for taking evidence on three grounds, which have already been mentioned. Firstly that report was factually wrong. Secondly that the Commissioner was not examined as a witness to explain about the contradictions in the report with documentary evidence which form basis of such report and thirdly that (he Commissioner travelled beyond his scope of reference as mandated by the Tribunal. I now proceed to determine question whether the report is factually wrong or otherwise.
62. The counsel for the petitioner pointed out names of several voters who were duly registered in the same constituency. However, in some cases there were clerical mistakes of a 'point' or so. Both the parties were given a chance to work out by tabulation about the nature of invalid votes. The petitioner in his affidavit, has given following details:--- "(1)Objection to the extent that voters are residents of another electoral area and their names are not indicated in Voters' List of 6 polling stations, i.e. Dilsora Karez, Sherin, Gohar Shaista Khan, Armbi Kakozai-Jumma Khan: 589 Explanation.---Commissioner. Came to know about above from the forms/record of N.I.C. From which it appears that N.I.C. Have been issued for another electoral area. Reason Bogus Identity Card.
63. (2)Objection to the extent that the voters are residents of other electoral areas according to RG 1 form (N.I.C.) S. No. Of voter indicated in the voters' list of their N.I.C. Address Polling Station: 84 Explanation. ---In 1989 those persons whose names were entered in voters' list were supposed to get N.I. Cards by producing Serial Number etc. Of voters' list and accordingly N.I.C. Were issued to such persons R.G. 1 from serial number of voters' list is mentioned according to which they are not of electoral area of constituency. They used bogus N.I.C. And voted in above six polling stations.
(3) Objection to the extent that numbers of N.I. Cards allotted but not yet been issued (allotted in B form and could have been issued when children become 18 years of age). Bogus Cards with bogus numbers yet not issued by Registration Officer: 73
(4) Objection to the extent that voters are residents of another electoral area and other polling stations and their names appear in the voters' list of their N..I.C. Address Polling Stations: 295 Explanation. ---Ballot paper ---N.I.C. Number, Seen---Registration Officer took out form---came to khow that N.I.C. Issued in the name- of Mr. Raza son of Wali, resident of Habibzai but vote cast by a female voter in Arambi Kakozai-
(5) Objection to the extent that N.I.C. Used twice: 39
(6) N.I.C. Pertain to other Jistricts Loralai, Quetta, Karachi etc.- Therefore, should not be tallied as Olt issued from Pishin District: 79 Total bogus votes cast by utilizing bogus Identity Cards at six Polling Stations1159 Lead of respondent No.1,603 Lead of deponent.556 However, when we compared electoral roll, it was found that the number of votes declared invalid by the Commissioner on the ground that the voters' names were not enlisted in the electoral roll of this area were found factually wrong. An attempt was made by the Petitioner counsel that these voters have cast their votes by personation, but no proof was produced to the said effect.
64. The Returned Candidate has also filed electoral roll of each of these 6 Polling Stations by tick- marking voters' name which, in fact,' were entered but the Commissioner wrongly concluded that these were not entered in the electoral roll of respective Polling Stations These were placed on record at the time of arguments. Thus the Returned Candidate successfully substantiated the arguments that total number of 589 votes which were declared as bogus by the Commissioner were, in fact, not bogus votes. Similarly 84 votes which were declared bogus on the ground triat such voters are residents of other electoral areas were not proved through evidence. From minute perusal of the record it appears that only 73 votes plus 39 votes have been cast where the N.I.C: of such p voters is either doubtful or used twice. 79 votes are such where N.I.C. Has been issued from Loralai, Quetta, Karachi etc., but there is no law that the voters whose names are registered in a particular Constituency cannot get N.I.C. From other areas. Besides, I found sufficient force in the contention of Mr. Gillani that not an iota of evidence has been produced to support of the contention that these bogus votes were cast I n favour of the Returned Candidate or in connivance of the Returned Candidate. There is no proof on record that the ' Returned Candidate had brought a machine to forge N.I.Cs. I have already mentioned that about 53 votes were challenged on these Polling Stations and even if we deduct such votes as v/ell as 73 + 39 (112) votes, it will hardly have any material effect on the result of election, irrespective of the fact whether these votes were used in favour of the returned Candidate or not.
65. It is now well-settled- that onus was on the petitioner to prove that any bogus vote has been cast by any voter on .The basis of forged N.I.C. And to further prove that it was with connivance of the Returned Candidate. But the petitioner failed to prove the same. The learned counsel for the, petitioner mainly, rather exclusively depended on the report of the Commissioner for taking evidence which was factually wrong.
66. The second aspect is whether the statement of the Commissioner could at all be taken into consideration as evidence as regards votes which are declared bogus on the sole ground that the voters were not enlisted as such, in the said electoral area. This is so because it was neither the case of the petitioner in the petition nor it was in the terms of reference. We have already reproduced the term of reference to the Commissioner for taking evidence. The only case as agitated in the election petition was that the Returned Candidate prior to the polls had brought a machine for forging about 13000 N.I.Cs. To be used by voters or Afghan Mohajirs during the polls.
67. Not a single Afghan Mohajir had been caught while casting his vote. As far as 13000 bogus N.LCs. Is concerned except bald statement of the petitioner nothing was brought on record. However, this was the only issue which was very pertinent. In order to resolve this issue matter was referred to Commissioner for taking evidence so as -to compare the counterfoil in presence of District Registration Officer in order to find out whether any bogus Identity Card had been used. As stated hereinabove even according to the own calculation of petitioner and the Commissioner 73 + -39 such votes have been used. If, for the sake of arguments, we include 79 votes where the voters had obtained the N.I.C. From Karachi, Quetta and other places, the total number comes to 191 votes. It is in the knowledge of every citizen that most of the Afghan Refugees have got N.I.C. 'and there is no proof that these N.I.Cs. Were prepared by the Returned Candidate or by the connivance of his Election Agent, therefore, he cannot be held responsible for it. Even otherwise the argument is illogical because in these, 6 Polling Stations total number of votes cast comes about to 2600 whereas the case of the petitioner is that about 13000 bogus N.I.Cs. Were prepared.
68. This all shows that the petitioner's case is based on conjectures and surmises and no proof has been brought before this Tribunal to prove beyond reasonable doubt that the Returned Candidate was responsible for issuing bogus N.I.Cs. To Afghan Mohajirs to cast votes in his favour.
69. Mr. Memon strenuously urged that in these 6 Polling Stations absolute majority of votes were cast in favour of the Returned Candidate and petitioner and other candidates could secure only nominal votes. This hardly provides a basis to declare election of the Returned Candidate as void or that votes were cast using bogus N.I.C.
70. As to the legal objection that the Commissioner acted beyond the scope of reference as mandated by this Tribunal, it is clear that the only task assigned to the Commissioner was to compare counterfoils in order to find out whether any rote has been cast on the basis of bogus Identity Cards. It was not the scope of reference to see whether there was double voting or voters of the other areas had cast their votes because this was not the case of the petitioner at all and no issue had been framed on that count. Thus, the Commissioner clearly travelled beyond the scope of reference and his report, therefore, cannot be taken as a gospel truth as argued by the petitioner's counsel.
71. Now I determine the preliminary objection whether written statement filed beyond 7 days could at all be taken into consideration. In this regard it may be observed that there is no' penal clause that if the written statement was not filed within prescribed period the Tribunal shall not take it into consideration. Mr. Memon relied on 1992 CLC 1766 in which the election petition was dismissed on the ground that the petition was not accompanied by affidavits and list of witnesses. But the distinction is that it has been specifically provided in para. 6 of the notification that witnesses shall not be called whose names are not mentioned in the petition. Para., 6 of the said notification is re-- produced: "No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal."
72. But there is no such penal clause about written statement if not filed within 7 days. Moreover, even if the written statement is not taken into consideration, it will have hardly any bearing on the fate of this petition.
73. Onus was primarily on the petitioner to prove the allegations. He failed to produce a single witness, even his own Polling Agents to substantiate the charge that they were not allowed to challenge votes by Polling Agents of the Returned Candidate. Not only that the petitioner failed to produce his own Polling Agents but he also did not produce a single witness from the Polling Staff to prove this allegation.
74. In short, except his statement, the petitioner did not produce any witness in support of the allegations that it was the Polling Agents of the Returned Candidate who'd id not allow his Polling Agents to challenge the votes which were being cast on the basis of forged N.I.Cs.
75. Thus, the petitioner utterly failed to prove that any corrupt or illegal practice was committed either by the Returned Candidate or his Election Agent or any person with connivance of the Returned Candidate.
76. From the above discussion, I have come to the conclusion that there is no merit in this Election Petition, which is dismissed. However, I pass no orders, as to costs.