1. This election petition has been preferred by the petitioner under section 52 of the Representation of the People Act, 1976 (hereinafter referred to as the Act).
2. Briefly the facts are that the General Elections for the National Assembly of Pakistan were held on 6-10-1993 and the present petitioner, and respondents Nos. l, 3 to 20 were candidates from the National Assembly Constituency No. NA-181, Sanghar-II. After the elections, the results were declared whereby the respondent No.1 was declared duly elected candidate from the said constituency having secured 50,537 votes whereas the present petitioner was runner-up having secured 45121 votes. The other candidates secured a much lesser number of votes. The election of the present respondent No.1 is challenged on the grounds that the respondent No.1 was indebted to the Banks having secured a loan of more than rupees one million for which he did not submit proper declaration with his nomination paper and, therefore, he could not have been declared as a candidate for the said election. The other grounds urged by the petitioner are that the authorities had ordered deletion of certain votes from the voters' list as the said voters had been falsely enrolled while the authorities also ordered additions of certain voters in the list whose names were deliberately avoided to be so entered. It was also urged that the Returning Officer as well as the entire election officials staff were working under the influence of respondent No.1 who was the son of the previous Chief Minister of Sindh and they declined to give postal ballot papers to the voters.
3. Lastly, it was also urged that at certain polling stations the voters having their National Identity Cards in the series beginning with letters E&C were not allowed to cast their votes. As against this, the respondent No.1 the only respondent to contest this petition, has denied the above contentions and has submitted that the elections were fairly held and also that the preseen petition is not maintainable. On the above submissions of the parties they were permitted to lead the evidence.
4. The petitioner examined himself (Exh.18) and also filed affidavit-in-evidence of his witnesses who were mostly Presiding and Polling Officers as Exhs.1 to 16. The petitioner also examined the Returning Officer, Muhammad Javed Alam as Exh.17. The petitioner then closed his side. The respondent No.1 examined two witnesses namely, Anwer Ali Shaikh and Faiz Muhammad as Exhs..19 and 20. He then examined his attorney Khalid Shah as Exh.21. All the witnesses were cross- examined by the other side.
5. I have heard the arguments of the learned counsel for the parties. The first point raised by the learned counsel for the petitioner is that in the present case the respondent No.1 could not be eligible to contest the present elections as he was indebted to the Banks to the tune of more than rupees one million and also that he had not made proper declaration in his nomination form. He has referred to the provisions of section 12 of the Act. Section 1212) of the Act provides that every nomination shall be made and shall contain the declarations as mentioned in sub-clauses there under. Sub-clauses (iii) and (iv) read as under--- (iii)a declaration that an amount of loan, as may be prescribed, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid, does not remain unpaid for more than one year from the due date; and
(iv) a declaration that no loan, the amount of which may be prescribed obtained by him, his spouse or dependent or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid.
6. The word "mainly owned" has been explained in sub-clause (7) of section 12 of the Act to mean ownership of 51 per cent or more shares in the business concern. From this, learned counsel has argued that the present respondent No. 1 is owner of Haider Cotton Ginning and Pressing Factory of Jam Nawaz Ali Village and that there is a loan of about Rs.26 millions outstanding against the said factory. He has referred to the nomination form and undertaking produced through Returning Officer. Nomination form is Exh.17-A while the undertaking is Exh.17-B. A perusal of second page of Nomination form will show that such printed declaration is contained therein and this bears the signature of the respondent No.1. The undertaking E.17-B would, of course, show that this undertaking was not filed with the nomination paper and also that this undertaking does not bear any date. From this, learned counsel has submitted that admittedly this was given after 29-8-1993, the last date of filing of the nomination paper and, therefore, the inference against the respondent No.1. I cannot agree with the contention of the learned counsel in view of the statement of Returning Officer Muhammad Javed Alam Exh.17 who in his cross---examination has stated that complete nomination form was submitted and that the undertaking was received by him before acceptance of the nomination form. However, it is an admitted position that no objection in this respect was raised by the petitioner at the time of scrutiny of the nomination form nor the acceptance of the nomination .Form was challenged in appeal. It may further be observed that the respondent No. I has produced a Partnership Deed with regard to the above said factory as Exh.21-C which shows that respondent No.1 has only 10 paisa share in the said factory and, therefore, the same would not fall within the definition of "mainly owned". The-learned counsel for the respondent No.1 has argued from this that the petitioner is estopped from challenging the acceptance of the nomination paper at this stage. He has placed reliance on the following cases:
(1) Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and. Others 1994 SCM R 1299;
(2) Uman Hayet Lalika v. Naiad. Muhammad Gondal 1994 CLC 58;
(3) Ch. Muhammad Aslam Kaira r. Returning Officer, PP-96, Gujrat-6 1994 M LD 424; and
(4) Shabbir Ahmad v. Syed AlcNtm. Kussain Rizvi 1994 M LD 447.
7. I have no hesitation in accepting the above contention of the learned counsel on this point.
8. Accordingly hold that the petitioner is estopped from challenging the acceptance of the rZomination form of the petitioner at this stage.
9. The learned counsel for the petitioner has then argued that it is admitted position that the existing voters' lists were revised before the holding of the present election and certain votes were deleted from the said lists as having been falsely enrolled whereas certain number of votes were added. It.
10. Is also an admitted position that such list of deleted votes and added votes were issued separately and had to be acted upon during the polling but the same were not supplied to the polling station, and, therefore, the polling had taken place on the basis of the original existing list. From this, the learned counsel has argued that a material illegality has been committed, as a number of people not eligible to cast their votes have got heir votes polled whereas a number of people who were eligible to cast their votes were deprived of their rights. According to the counsel the number of such voters was included in the lists is about 11000. In order to substantiate his contention, he has produced such list of deleted votes as Exh.17/D (93 sheets). He has also placed on record the list showing the number of voters added. The learned counsel has also referred to the evidence. The Returning Officer in his deposition (kxh.17) has stated that the polling scheme is given in Gazette of September 20, 1993 and elections were held under such scheme. He further states that this Gazette does include some additions and deletions of the voters and also that there were a few which were made afterwards and subsequently approved. In the same breath Returning Officer states that he verified that said fact front Election Commission on the date of polling but he does not remember exact time. However, he says that it was about noon time on the date of election. This would certainly show that at least till the noon time when the Returning Officer received the confirmation about deleted and added votes, the election was being conducted on the basis of unamended voters' list. A reference may also be mode to the evidence of the attorney of respondent No.1 who in his cross-examination has admitted that these lists of deleted and added votes were made available at the polling stations at the time when the provincial elections were held and not at the time National Assembly Elections were held. Provincial Assembly Elections were held on 9-10-1993.
11. Thus it is quite cleat that on the date of National Assembly election at-least for a considerable time the polling was conducted on the basis of the original unamended list.
12. The learned counsel for the petitioner has next argued that it is the case t of the petitioner that the voters who had their National Identity Cards beginning with letter E & C were disallowed to cast their votes and that such complaint was made to the Returning Officer. Returning Officer in his evidence has admitted that he had received such complaint that some of the Presiding Officers declined to allow such voters and, therefore, he issued such instructions. He has produced the copy of his instructions as Exh.17-E: He also admits in his E evidence that such instructions were issued after 2-00 p.m. The said constituency is spread over an area of 100 sq. Miles and it would take quite considerable time for getting such instructions to reach every polling station. This fact supports the contention of the learned counsel for the petitioner that number of voters had left the polling stations without casting their votes for this reason.
13. The learned counsel for the petitioner has also argued that it is admitted by the Presiding Officer that he did not include any postal ballot while consolidating the result. He has referred to deposition of the Presiding Officer who states that he has received only four applications on printed pro forma for supplying the postal ballot papers. He also states that he received other 2865 applications on photostat copies of the pro forma forms. The Returning Officer further states that he had only 35-40 postal ballot papers. This would obviously mean that all the applicants who numbered in thousands were not supplied the postal ballot papers and, therefore, were deprived of their right of vote.
14. Mr. Gul Zaman Khan, learned counsel for the respondent No.1 has not been able to controvert the above facts. However, he has submitted that not a single voter has come forward to state that he was not allowed to cast the vote and that the petitioner has not been able to prove the number of voters who were thus deprived of their right of vote. I am afraid that I cannot accept this contention of the learned counsel in view of the admissions of the Returning Officer as well as the attorney of respondent No.1 which would show that incorrect voters' list was used for the purpose of polling and that as discussed above a number of voters were denied their right to cast the vote. This act and omission on the part of the officials conducting the elections and polling has materially affected the results of the election and the election as a whole is to be declared void.
15. The learned counsel for the respondent No.1 has lastly .Argued that Annexures of the election petition have not been verified on oath by the petitioner and, therefore, the very petition would not be maintainable. He has referred to the Notification No.F.I(7)/85-Cord, dated 16-3-1995 which provides that every election petition shall be accompanied by all such documents and affidavits of the witnesses. He has also submitted that all the Annexures are required to be verified as required under the provision of Order 6, rule 15, C.P.C. He has referred to the case of Mir Tariq Mahmood Khan Khetran v. Mir Baz Muhammad Khetran and 12 others 1992 CLC 1766. He has also referred to the case of Peter Johan Sahotra v. The Returning Officer 1995 CLC 687 and has argued that section 55 of the Act requires that very election petition, schedule or Annexures -to that petition shall be signed by petitioner and verified by him .As provided in C.P.C. A perusal of these documents will show that petition is duly signed and verified by the petitioner. Even otherwise it may be observed with regard to documents of which the petitioner himself is not the author cannot be verified by him as the truth of their contents. Even otherwise section 70 of the Act which would be applicable in the present case reads as under:--- "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 the Act or the rules; or (b)the prevalence of extensive corrupt or illegal practice at the election."
16. From the above discussion, it is quite obvious that the results of this election have been materially affected as the proper list of voters has not been enforced and the consequence would be that the election is to be declared void as a whole.
17. The upshot of the above discussion is that I accept this petition and order that the election of the National Assembly. Constituency NA-181, Sanghar---II is declared void as a whole. The copy of the judgment be communicated to the Pakistan Election Commission with advice to hold/arrange fresh elections.
18. Above are the reasons for the short order announced in the Court today.