1. Petitioner Sardar Sanaullah Zehri and Respondents Nos.3 to 8 contested Election for Membership of Balochistan Assembly from Constituency PB-30 Khuzdar-I, held on 3-2-1997. The petitioner was candidate of Balochistan National Party; whereas Respondent No,3 Abdul Khaliq contested election as a candidate of Jamiat-e-Ulma-e-Islam. As a result whereof Abdul Khaliq, Respondent No,3, was declared as Returned Candidate vide Notification No,F.2(40)/97-Cord(3) issued by Election Commission of Pakistan, published in Gazette of Pakistan dated .17-2-1997 by securing 9179 votes while the petitioner obtained 9051 votes. Petitioner challenged the validity of election of above- mentioned Constituency through this petition with following prayer: (a)To declare the election of Respondent No,3 Abdul Khaliq as void; instead the Petitioner be declared as duly elected Member of the Provincial Assembly of Balochistan from Constituency No,PB-30 Khuzdar-I; (b)to declare the election of polling Stations Nos.32 and 39 as void and order re-election; (c)Any other relief as is deemed fit and proper in the circumstances of the case be also granted with cost of the Petition in the interest of justice."
2. The main ground taken in the petition was that the Polling Stations Nos.32 and 39 namely, Goroo Bidrang and Ab-i-Noghi were changed/shifted by the Presiding Officer to Primary School Meraji Mengal and Madrassa Dar-ulHuda respectively, without any notice to the candidates and voters, hence violated the provisions of section 8(2) of Representation of People, Act, 1976 (hereinafter referred to as the "Act").
3. Except Respondent No,3 Abdul Khaliq none of the respondents contested the petition.
2. Respondent No,3 filed his written statement wherein the claim of petitioner was strongly repudiated.
3. On the basis of pleadings of parties following points for determination/issues were framed on 20- 6-1997:- Whether the Presiding Officer of PB-30 Khuzdar-I, illegally, in disregard and in violation of section 8(2) of the Representation of People Act, 1976 and Notification dated 11-1-1997, as well as without the knowledge of candidates electors/voters and general public shifted Polling Stations namely 'Primary School Guru Bidrang (Comb) and Aabi Noghai' to Primary School Meraji Mengal and Government Primary School Madressa Arbiya Islamia Darul-Huda, if so, whether it has rendered the election of Respondent No,3 as void ?
4. (ii)Whether the Respondent No,3 has procured/induced result of Election of PB-30 Khuzdar-1 by corrupt or illegal practice as provided under section 68 (1) clauses " C & D " of Representation of People Act, 1976, if so, whether the election can be termed as void ?
5. (iii)Whether the petitioner has lost the capacity to pursue the Election Petition after taking oath as Senator on 19-3-1979 ?
6. (iv)Whether the Respondent No,3 is entitled to the special cost ?
7. (v)Relief ?
8. Thereafter the parties were directed to adduce evidence in support of their respective claims.
9. Petitioner produced five witnesses namely, P.W.1 Allah Bakhsh, P.W.2 Buland Khan, P.W.3 Ikram Qadir, P.W.4 Hazoor Bakhsh and P.W.5 Abdui Rehman; whereas in rebuttal Respondent No,3 produced one witness namely, RW-1 Mian Jan Muhammad. Respondent No,3 also got his own statement recorded. After recording evidence the learned counsel appearing for parties advanced their arguments.
10. I have heard M/s Iftikhar Hussain Gelani and Muhammad Riaz Ahmed Advocates for petitioner and Mr. Basharatullah Advocate for respondent No,3.
11. Since rest of the respondents have not contested the petition, as such, were declared ex parte.
12. The petitioner could not prove issue No,2 which was regarding procurement or inducement in the result of election of PB-30 Khuzdar-1 by corrupt or illegal practice by Respondent No,3. Besides, during arguments Mr. Iftikhar Hussain Gelani, Advocate for petitioner did not press this issue, thus, the same is decided in negative.
13. Issue No,3 was framed on the objection raised by Respondent No,3 that since petitioner has been elected as Senator and has already taken oath, therefore, he lost the capacity to pursue this election petition. In this regard Mr. Iftikhar. Hussain Gelani vehemently argued that there is no bar for the petitioner being a Senator to contest the petition. He referred to Article 223 of the Constitution of Islamic Republic of Pakistan, 1973. For the sake of convenience the above Article is re-produced hereinbelow:-Article-223:- (1) No person shall, at the same time, be a member of- (a)both Houses; or (b)a House and a Provincial Assembly; or (c)the Assemblies of two or more Provinces: or (d)a House or a Provincial Assembly in respect of more than one seat.
(2) Nothing in clause (1) shall prevent a person from being a candidate for two or more seats at the same time, whether in the same body or in different bodies, but if he is elected to more than one seat he shall, within a period of thirty days after the declaration of the result for the last such seat, resign all but one of his seats, and if he does not so resign, all the seats to which he has been elected shall become vacant at the expiration of the said period of thirty days except the seat to which he has been elected last or, if he has been elected to more than one seat on the same day, the seat for election to which his nomination was filed last.
14. ' Explanation:--In this clause, 'body' means either House or a Provincial Assembly.
15. (3)A person to whom clause (2) applies shall not take a seat in either House or the Provincial Assembly to which he has been elected until he has resigned all but one of his seats.
16. (4)Subject to clause (2), if a member of either House or of a Provincial Assembly becomes a candidate for a second seat which, in accordance with clause (1), he may not hold concurrently with his first seat, then his first seat shall become vacant as soon as he is elected to the second seat."
17. Bare perusal of above quoted Article reveals that Article 223 of the Constitution places an embargo against a person to be member of two Houses and a House of a Provincial Assembly at the same time. Clause (4) of Article 223 of the Constitution permits a member of either House or of a Provincial Assembly to become a candidate for a second seat which he cannot hold under Clause
(1) of the above-referred Article concurrently. His first seat shall automatically become vacant as soon as he is elected to the second seat. In view of the above there is no force in this contention, as such, this issue is decided against Respondent No,3.
18. Issue No,1 is the issue which resolves the main controversy between the parties. According to Mr. Iftikhar Hussain Gelani, Advocate for petitioner final list of Polling Stations as envisaged under section 8(2) of the Act, was published by District Returning Officer on 11-1-1997. the Polling Station No,32 was notified as Primary School Guru Bidrang (Comb). Polling Station No,39 was notified as Primary School Aahe Noghai. According to him Presiding Officer of Polling Station No,32 has changed/shifted the Polling Station to Primary School Miraji Mengal on the day of polling, without any notice to the candidates and electorate nor it was made public, at a distance of about 4/5 kilometers from, the Polling Station notified by the District Returning Officer. Similarly Polling Station No,39 which was notified as Aabi Noghai was shifted to a school known as "Government Primary School Madressa Arbia Islamia Darul Huda." The act of change of aforementioned Polling Stations was violative to the provisions of section 8 of the Act.
19. He further argued that since voters were not aware of the change of Polling Stations, therefore, only 20 votes out of 693 were polled in Polling Station Miraji Mengal. In the election held in the year 1993, 233 votes were cast in the same Polling Station. Similarly in Polling Station No,39 the ratio of polling was very low which materially affected the result of election. He next contended that Respondent No,3 in para. 4 of his written statement admitted that both the above-mentioned Polling Stations were changed from the original Polling Stations as notified by the District Returning Officer on 11-1- 1997. This fact even has been admitted by the District Returning Officer in his reply furnished before the Election Commission, therefore, the Presiding Officers of Polling Stations Nos.32 and 39 violated the provisions of section 8 of the Act, resultantly election was materially affected by not complying with the provisions of the Act, therefore, under section 70, Clause (1) of the Act, the election of Polling Stations referred to hereinabove are liable to be declared as void and re-polling be ordered.
20. On the other hand, Mr. Basharatullah, Advocate for Respondent No,3 vehemently opposed the petition and contended that in the election petition no allegations were alleged that the election has been procured or induced by any corrupt or illegal practice committed by him or his election agents or by any other person with the connivance of Respondent No,3 whereby the election of Returned Candidate could be declared void as envisaged under sections 68 and 690 the' Act.
21. He further argued that "illegal practice" has been defined under section 83 of the Act. Petitioner has not leveled any such allegation as prescribed under the aforementioned sections, therefore, this point was not available for the petitioner to be urged. If such relief has not been sought in the petition, the same cannot be granted. In the prayer clause petitioner has sought relief of re-polling only in two Polling Stations which under section 70 of the Act can only be declared void as a whole, therefore, petition is not maintainable. Neither in the petition nor any of his witness had stated that due to shifting or change of Polling Stations result of the election was materially affected in terms of section 70 of the Act. Reliance was placed on PLD 1986 Journal page-146.
22. Mr. Basharatullah further argued that according to the counsel for the petitioner in the election of 1993 the ratio of votes polled were much higher than the votes polled in the present election which was the result of shifting of the Polling Stations. Since record of 1993 election was not placed on record, therefore, cannot be relied upon.
23. In the instant case main question which requires determination is as to whether any provision of the Act was violated by any per son which renders the election void as a whole as provided under section 70 of the Act. In this regard petitioner produced five witnesses, P.W.1 Master Allah Bakhsh, Polling Officer Aabi Noghai, who stated that in the election held on 3-2-1997 he performed his duty as Polling Officer in the Polling Station Aabi Noghai. On the day of polling i,e, 3-2-1997 Naib- Tehsildar asked the Presiding Officer to shift the Polling Station to Primary School Madressa Dar-ul- Huda on his responsibility. He further stated that the Polling Station was shifted to Primary School Dar-ul-Huda about 1-1/2 Kms from Aabi Noghai. In cross-examination he admitted that the old building of Primary School of Aabi Noghai was demolished. The new building where the polling has taken place is about one furlong from the main road and about 1-1/2 Kms from the Madressa Dar- ul-Huda. He further admitted that polling was held in the new building of Primary School Aabi Noghai. No complaint whatsoever was made before the Returning or District Returning Officer regarding the change of Polling Stations.
24. P.W.3 Ikram Qadir filed affidavit with the petition. In his statement he had confirmed the contents of the same. In his affidavit he has stated that he was appointed as Polling Officer at Polling Station Aabi Noghai. On the day of polling, i.e, 3-2-1997 when he reached Government Primary School Aabi Noghai he found the building in dilapidated condition. There ,was no door and windows available in the building. He further stated that the polling was held in Government Madessa Dar-ul-Huda which was at a distance of 1-1/2 Kms away from the Polling Station Primary School Aabi Noghai. In cross examination he stated that the Polling Agent of Sardar Sanaullah Zehri had reached the Polling Station at about 8-30 or 9.00 a.m. The Polling Agents of rest of the candidates were present.
25. He admitted that the condition of building of Primary School was in a dilapidated condition, but still the election could be held there. The distance between the Polling Station Primary School Aabi Noghai and the place where election was held is 5 Kms. He admitted that during the polling Agents of the candidates were present.
26. P.W.5 Abdur Rehman who was Election Agent of Sardar Sanaullah Zehri (petitioner), in the Constituency PB-30 Khuzdar-I, who has also filed his affidavit alongwith the petition. He, in his statement, confirmed the contents of his affidavit where he had stated that due to shifting/changing of Polling Station Nos.32 and 39 the voters could not cast their votes in favour of petitioner as it was done without information or prior notice to the voters or the candidates. The above facts were brought to the notice of the Returning Officer and District Returning Officer, but no action was taken by them. In cross-examination he stated that he had made complaints to the District and Returning Officer in respect of the change/shifting of the Polling Station oral as well as in writing but he did not retain any copy of the same. It was further stated that he had informed the petitioner regarding making complaints but he did not inform the counsel who filed the present petition. He admitted that Guru Bidrang consists of six villages namely, (i) Goroo Bidrang, (ii) Gola Goroo, (iii) Ganz, (iv) Shanzak Goroo, (v) Lop Goroo and (vi) Poking. He admitted that he had arranged his two personal vehicles to provide transport facilities to the voters in that area. On the day of polling more or less he had visited all the Polling Stations of the Constituency. He further stated that since the Polling Stations were changed on the day of polling, therefore, on that day he could not make any complaint. He further admitted that the polling agents of the petitioner did not make any complaint regarding change/shifting of the Polling Station to the District Returning Officer or Returning Officer.
27. ' P.W.2 Master Buland Khan filed his affidavit with the petition. In his statement he had confirmed the contents of the same wherein he has stated that he was appointed as Assistant Presiding Officer Goroo Bidrang Polling Station. According to him on the instructions of Duty Magistrate the elections were held in Meraji Mengal instead of Goroo Bidrang. The distance between Goroo Bidrang and Meraji Mengal is about 5/6 Kms. He further stated that the Duty Magistrate took the responsibility of change/shifting of the Polling Station. In cross-examination he had stated that he was resident of a place which was at a distance of 200 Kms away from Goroo Bidrang. On account of election, he had first time visited Goroo Bidrang on 3-2-1997. In Goroo Bidrang he had not seen any Primary School building. He further stated that on the day of polling he was told by the Election Agents that where the polling was being held, was not Goroo Bidrang but was Meraji Mengal. He further admitted that the previous elections were held at the same place. The Polling Agent of Sardar Sanaullah Zehri was Mian Jan Mohammad and Hazoor Bakhsh was Polling Agent of Mir Hasil Khan. The Election Agents of the candidates were present at the Polling Station.
28. ' P.W.4 Hazoor Bakhsh filed his affidayit alongwith petition. In his statement he confirmed the contents of the same wherein he had stated that he was appointed as Polling Officer at Goroo Bidrang. He further stated that polling was held in Meraji Mengal instead of Goroo Bidrang which is at a distance of 4 Kms from Goroo Bidrang.. In cross-examination he had stated that Goroo Bidrang is a name of the area as well as place. The building of Primary School Goroo Bidrang was in existence which was situated at Killi Goroo Bidrang. All the Polling Agents were present at Polling Station. During polling Mulla Hazoor Bakhsh, Polling Agent of Sardar Sanaullah raised objection that the polling were being held in Meraji Mengal instead of Goroo Bidrang. He had made oral complaints to the returning as well as to the District Returning Officer in respect of change/shifting of the polling station. He further stated that on 2-2-1997, first time he visted Goroo Bidrang. He alongwith other staff were made stayed in building at Meraji Mengal where on the next day polling was held. He lastly stated that he had sworn the affidavit on the request of one Abdur Rehman Election Agent of Sardar Sanaullah.
29. On the other hand, respondent No,3 Abdul Khalique produced one witness who was Polling Agent of Sardar Sanaullah in Polling Station No,32 Goroo Bidrang. He had sworn an affidavit which was filed alongwith written statement of Respondent No,3. In his affidavit he stated that he was resident of Goroo Bidrang. In winter people of the area mostly migrate to the warmer places such as Shandad Goth (Sindh). Due to non-employment about 100/150 persons have permanently settled down in Khuzdar during 1992/1993. He further stated that percentage of the polling was low due to the above reasons. In his statement he had confirmed the contents of the affidavit. In cross- examination he admitted that the polling was held in Meraji Mengal and he had counted the number of persons who have migrated to Khuzdar. Respondent No,3 has filed his affidavit Wherein he has strongly repudiated the claim of the petitioner. He further, stated that the reasons for low rate of last election was for the reason that in the month of winter most of the people of the area migrate to the warmer places such as Shandad Goth etc; and some of them have shifted to Khuzdar on permanent basis. He admitted that a pacca building of Primary School was constructed which is about I furlong from the main road and close to Madressa Dar-ulHuda. The election was held in the pacca building of Primary School not in Madressa Dar-ul-Huda. The Madressa Dar-ul-Huda is not directly or indirectly under his control. He had denied that the abovementioned two Polling Stations were changed/shifted. According to him the old buildings of both the Primary Schools had been demolished. Instead of those, new pacca buildings of the abovementioned area were constructed to some distance from the buildings. the Polling Stations Nos.32 and 39 were rightly set up in the new building as before. In reply to para. No,7 of the petition, he has stated that the polling areas Mauza Shutrak and Gaz mentioned in the Polling Station Goroo Bidrang has to cross Meraji Mengal to reach Goroo Bidrang. In his statement, he had confirmed the contents of affidavit which he had filed in the Court. In cross-examination he had shown his ignorance that Madressa Dar-ul-Huda is a religious institution, nor he has ever visited the same. He further stated that the percentage of the voting throughout Khuzdar District was low in the election of 1997 for the reasons mentioned above. He denied that the election was held in Madressa Darul- Huda but it was held in new building of Aabi Noghai instead of old building which since has been demolished.
30. Since the District Returning Officer and Returning Officers were made respondents Nos.1 and 2 respectively in the petition, as such, they were directed to file their written statements. In their written statements both of them have denied the allegations of shifting/changing the Polling Station. Nor any such complaints were made by anybody, i,e, Elections Agents, Polling Agents or any Officer in this behalf. Respondent No,l District Returning Officer in reply made request that neither any specific allegations have been alleged against him nor any relief has been sought, therefore, he be exonerated. Respondent No,2 Returning Officer stated that near the Polling Stations mentioned hereinabove control rooms were set up. No complaints have been received by him. He further stated that the Presiding Officers have submitted their reports and denied the allegations of shifting the Polling Stations from their original places.
31. ' As it has been observed above that the main question which requires determination in the present case is whether any provision of the act was violated by any person, by not complying the same result of the election was materially affected which vitiates the election as a whole. The relevant provision of the Act which will govern the question are reproduced as under:- ' Section 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.
32. Section-70 requires three conditions for declaring an election as a whole void: (i)noncompliance with the provisions of the Act; (ii)procurement of the result of election by corrupt or illegal practice;
(iii) for the above reasons the election was materially affected; Section 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 election of a member for that constituency;
(2) Subject to the direction of the Commissions, 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) A polling station shall be situated in a Government building, for a constituency and, where no Government building is available for the purpose, and improvised polling station shall be set up on a public property ; Provided that no polling station shall be located in any premises which belong to, or are under the direct or indirect control of any candidate;"
33. Section-8 provides that Returning Officer according to the time fixed by the Election Commission submits a list of Polling Stations where he proposed to provide in a Constituency for the purpose of election of a member for the Constituency.
34. Clause-2 reads that subject to the directions of the Commission, the District Returning Officer may make alteration in the list submitted by the Returning Officer if he deems necessary publish in the official gazette the final list of Polling Stations specifying the electoral area, the voters who are entitled to vote for each Polling Station, 15 days before the day of Polling. Once the final list of Polling Stations has been published then no further alteration can be made. The second essential of this provision indicates that the final list should be published 15 days prior to the election day. The third requirement is that the electoral area should be specified so that the voters should know where they can cast their votes.
35. The allegation of the petitioner is that on the day of polling the Presiding Officer of Polling Stations Nos.32 Goroo Bidrang and 39 namely Aabi Noghai were shifted by the Presiding Officer without any notice to the candidates and information to the voter, as such, they were deprived of exercising their right of vote. Therefore, the Presiding Officer has violated section 8 of the Act, resultantly, the election of at least two Polling Stations were materially affected. As such the election should be declared void under section 70 of the Act.
36. It may be seen that the petitioner to substantiate the contentions raised in the petition produced 5 witnesses. The summary of their evidence has already been discussed hereinabove.
37. Now I would like to discuss both the Polling Stations separately. Admittedly, in the election held on 3rd February, 1997 only 20 votes out of 692 were cast in the Polling Station Goroo Bidrang. In that respect P.W.2 Buland Khan got his statement recorded. According to him he has not seen any Primary School building in Goroo Bidrang. He further stated that previous election was held in the present building. He was told by the Election Agents that instead of Goroo Bidrang the election was being held in Meraji Mengal. The Presiding Officer had shifted the Polling Station on the undertaking of Duty Magistrate. Neither the Presiding Officer was made party nor he was produced as witness.
38. The Duty Magistrate does not figure in the election process. If still there was any allegation that the Polling Stations were shifted due to pressure of the local administration the Duty Magistrate should have been produced as a witness. Over and above, no allegation has been alleged that less votes were cast in the particular Polling Station due to change/shifting of the Polling Station which materially affected the election.
39. P.W.4 Hazoor Bakhsh was appointed as Polling Officer at Goroo Bidrang. According to him the Polling was held in Meraji Mengal instead of Goroo Bidrang. The distance between the two places is 4 Kms. He further stated that he alongwith Polling Staff had gone to Goroo Bidrang. According to him the Primary School where the Polling Agent Mulla Hazoor Bakhsh raised objection that the polling was being held in Meraji Mengal instead of Goroo Bidrang situated at a distance of 5 Kms.
40. On 2-2-1997 he alongwith Polling Staff were made stayed in the building where on the next day elections were held.
41. No allegations that the voters were deprived to exercise their right of votes due to change/shift of the Polling Station. He has admitted that one day prior to the election he had visited the Goroo Bidrang. It is obvious that the people of the village Goroo Bidrang had come to know that the polling was not being held in that building. According to the notification the voters of only that village consist of 190 voters. Nothing was brought on record that they were prevented to cast their votes. The above witness has wrongly mentioned that the polling Agent of the petitioner was Hazoor Bakhsh who raised objection. On the contrary Mian Jan Mohammad was the Polling Agent of Sardar Sana Ullah Zehri who had not supported the plea of the petitioner. According to him being winter season most of the people migrate to warmer places. He was produced by Respondent No,3 in his defence. No specific allegation has been alleged that due to change/shifting of the Polling Stations the election has materially been affected.
42. ' P.W.5 Abdur Rehman was Election Agent of the petitioner for the whole Constituency. According to him the polling Station of Goroo Bidrang consisted of six villages. He arranged two vehicles in contravention of the law for providing facility to the voters of the petitioner in the above six villages.
43. All the witnesses admitted that on the day of polling, the Polling Agents of the petitioner were present. According to the Election Agent none of the Agents made any complaint to the Presiding Officer nor to the Returning Officer. According to him he had made oral as well as written statements which he could not produce as he did not retain any copy thereof. It is at least beyond my comprehension that the election Agent arranged two vehicles for transporting the voters from the villages to the Polling Station. The vehicles were plying right from morning till the closing of the Polling but he could not transport more than 20 voters. It has also come on record that the previous election was held in Meraji Mengal instead of village Goroo Bidrang. Goroo Bidrang is not only a name of place but the whole area is called Goroo Bidrang. Similarly the polling was held in a Government building of Madressa Dar-ul-Huda. According to the witness as discussed above, the building of Aabi Noghai had been demolished and the polling was held in Government Primary School building Madressa Darul-Huda.
44. P.W.1 Master Allah Bakhsh has further confirmed that instead of old building new building of Primary School was constructed where the polling was held which is about 1-1/2 kms away from the old building. P.W.3 Ikram Qadir also admitted that the old building of Primary School was in a dilapidated condition. According to evidence produced by the parties leads me to conclude that both the buildings of Primary Schools were in dilapidated condition, therefore, in place of old building the polling were held in new building. No mala fide has been alleged against the Presiding Officers or Returning Officer in respect of any change/shifting the Polling Stations nor any allegation of corruption or corrupt practice was alleged against Respondent No,3. Neither the petitioner nor the witnesses have leveled any allegation that the Polling Stations were shifted with the conivance of the Respondent No,3 or by the Presiding Officers with some mala fide intention or ulterior motives to cause serious prejudice to the petitioner. None of the voter of the area came forward that they were deprived of their right of vote which has been guaranteed by the law and the Constitution, therefore, petitioner could not prove failure of any person to comply with any provisions of the Act or the Rules there under nor by not complying provisions of the Act the election was materially affected.
45. Adverting to the contentions of Mr. Iftikhar Hussain Gelani that in Polling Station No,32 Goroo Bidrang out of 692 votes only 20 votes were polled The percentage is only 2.8% whereas in Polling Station No,39 namely Noghai percentage was 13.4%.
46. In reply to that a list of some of the Polling Stations was provided by Mr. Basharatullah which fact was not controverted by the other side. For further verification I have called for the consolidation of result of the constituency from the Office of Provincial Election Commission Quetta are as under:- S.No. Name of Polling StationNumber of Polling StationsTotal Number of Votes.Votes WithCast P.C.
1. Primary School Hader Kash4 1826 128 7%
2. School Hala Chakol20 1767 37 2%
3. Primary School Karez Sasool33 1084 63 5.81%
4. School Dado 45 752 39 5.18%
5. Improvised Dobey46 1486 28 1.88%
6. Improvised Mari Bhit48 777 47 6.04%
7. Improvised Rar 481 562 73 02%
8. Improvised Ham Gangi49 948 14 1.476%
9. Goroo Bidrang 32 693 20 2.8% 10.Aabi Noghai39 2474 333 13.45% It may be seen that in some Polling Stations mentioned above the percentage was even less then the Polling Station Nos.32 and 39, allegedly the people were defranchised by shifting the Polling Stations from the places notified by the District Returning Officer.
47. Under section 70 of the Act, it is not enough to prove that any provision of the Act was not complied with or some irregularity was committed by Election Staff but it has to be affirmatively provide that by that act the election was materially affected. Neither it can be presumed that by not complying with the provisions the votes of the petitioner would have been increased and similarly the percentage of Respondent No,3 votes have decreased. In this regard the case of "Paokai Haokip v.
48. Rishang and others" reported in AIR 1969 SC 663 (paras. 10 & 11) may be referred. Its relevant paras are reproduced hereinbelow:-- "Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating the Court either positively or even reasonable; that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.
49. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticized by this Court. Witnesses have been brought forward to state that a number of voters did not, vote because of the change of venue or because of firing and that they had decided to vote en block for the election petitioner. This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 votes for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.
50. We cannot therefore, accept the statement even of a headman that the whole village would have voted in favour of one candidate to the exclusion of the others. This conclusion is further fortified if one examines the polling pattern in this election. To begin with, it is wrong for the election petitioner to contend that of the 6726 votes which were not cast, he would have received all of them. The general pattern of polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 votes, only 1,20,008 cast their votes ".
51. As it has been observed hereinabove that only non-compliance of any provision is not enough to declare the election void but it has to be proved that by non-compliance the election was "materially affected". The burden to prove that the result of the election had been materially affected due to non-compliance with the provisions of the Act or Rules there under, is on the person who seeks to challenge the election of the Returned Candidate. In this view I am fortified by the judgment of. Supreme Court of India reported in AIR 1954 SC 513. Relevant part (Paras. 6, 7 and part of para. 9) is reproduced as under:-- "In C.M. Karole v. B.K. Dalvi, Doabia's Election cases Vol. 1 (P.178), the Tribunal held that the onus of proving that the result had been materially affected rests heavily on the petitioner of proving by affirmative evidence that all or a large number of votes would have come to the returned candidate if the person whose nomination had been improperly accepted had not been in the field; The case of -'Jagdish Singh v. Shri Rudra Deolal , Gazette of India (Extraordinary) October 13, 1953 was one under section 100(1)(c) of the Representation of the People Act. It was held that the question should always be decided on the basis of the material on the record and not on mere probabilities. The Tribunal distinguished between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence though it is difficult, that the result had been materially affected.
52. 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."
53. In the instant case, the petitioner neither alleged in his petition nor has produced any evidence that if the above mentioned polling stations were not changed then the voters of the area would have voted for him, as such, the votes secured by the Returned Candidate would have been reduced or the secured votes of the petitioner would have increased. Though the petitioner had filed some affidavits with the petition, but he did not produce them as witness to prove the contentions thereof. In this regard I am fortified by PLD 1986 Journal 22. Relevant para. is re-produced hereinbelow:-- "It is noteworthy that the petitioner had secured 446 votes only whereas the returned candidate polled 11000 votes more than those secured by the petitioner. It, therefore, follows that the result of election was not materially affected when the returned candidate had admittedly secured more than 50% of the total number of votes polled at the relevant constituency. Even the petitioner did not allege in this petition that petitioner's voters had cast their votes in favour of the contesting candidates, or that the number of votes secured by the rival candidates would have been reduced.
54. In the absence of specific averment to that effect, in the election petition and evidence produced in support thereof, it cannot be concluded that the result of election has been materially affected.
55. The election of a returned candidate cannot be set aside because of an irregularity on the part of the election officials unless it is found that such an irregularity has materially affected the result of election.
56. In the instant case, the petitioner could not prove failure of any person to comply with any provision of the Act or the Rules there under nor the prevalence of extensive corrupt or illegal practice at the election materially affecting the result of election. In these circumstances, neither the voters of the constituency who has exercised their right of franchise nor the respondent who had polled highest number of votes can be penalised for the mistake or the negligence of the petitioner, as otherwise it would amount to disenfranchising the genuine voters who had apparently favoured the respondent as compared to petitioner during the election.'
57. Their Lordships in the case of "Riaz Ahmed v. Election Tribunal" reported in PLD 1966 (W.P.) Lahore 839 has ruled that "it is significant that the rules provide that the result be 'materially affected'.
58. 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 invlaidation of many votes by reason of breach or violation of 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.
59. As has been contended by petitioner's counsel that the provisions of section 8 of the Act are mandatory in nature as the word "shall" has been used, therefore, according to him when statute provides a procedure for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all. Such statute prohibits doing of thing in any other manner particularly when a set procedure has been laid down for preparing the list of Polling Stations 15 days prior to the polling day. To meet with this proposition of law I would like to quote to the judgments reported in PLD 1987 SC 213 and 1987 SCM R 1987, and Election Tribunal of Balochistan in the case of "Mir Behram Khan Marri v. Nawabzada Mir Gazain" wherein it was held that non-compliance of any provision of the Election laws, ipso facto does not furnish a ground for declaring the election as a whole void. The relevant para of the judgment reported in 1996 CLC 963 (last para) is as under:-- "It is settled principle of law that non-compliance of any provision of the election law, ipso facto does not furnish a ground for declaring the election as a whole void as each case has to be disposed of, on its own merits, keeping in view the material so brought on record. Besides, the election laws are generally directory in nature, therefore, departure from any provision, if it has not caused prejudice, would not be a ground to grant the relief. Reference in this behalf is made to 1987 SCM R 1987 as well as PLD 1987 SC 213. For these reasons I see no force in the contention of learned counsel for the petitioner."
60. Mr. Iftikhar Hussain Gelani further contended that since section 8 of the Act is mandatory in nature as the word "shall" has been used, therefore, it should be given mandatory effect. In this regard it may be noted that subsection (4) of section 8 imposes a condition that Polling Station shall be situated in a Government building. If Government building is not available then the Polling Station shall be set up on a public property. It seems that the Returning Officer before submitting the list of the proposed Polling Stations had not visited the Polling Stations to see whether any Government building was available for holding elections or not. Nor the District Returning Officer had taken pain to visit the proposed Polling Stations before publishing the final list of the Polling Stations.
61. Most probably the list was prepared on the basis of previous record which was available with them.
62. When the Polling Staff first time on the polling day visited the Polling Stations no Government building was either available, if available it was in a dilapidated condition as it has come on record, therefore, the Presiding Officers shifted the Polling Stations to the new school building constructed in the place of old ones.
63. Now, it has to be seen that under the circumstances mentioned hereinabove every provision of the Act is to be given mandatory effect. Honourbale Supreme Court in the case of "Dr. Sher Afgan v.
64. Amir Hayyat and others" (1987 SCM R 1987) has observed that the case of each enactment has to be construed in the light of general object intended to secure the subject-matter and the importance of the provisions and that it can be decided whether enactment is imperative or only directive relevant para reads as under:-- "It may here be observed that we have not come across any rule of interpretation in the text books, nor was any such rule pointed out to us except in the cited cases that every provision in the body of the Act is to be given mandatory effect. On the contrary the text books laid down many tests for determining whether a particular provision in an enactment is mandatory or directory. In this behalf reference may be made to the case of Jamshed Ahmad Khan (supra) paragraphs 9 and 10 in which a quotation from the case of Liverpool Borough Bank v. Turner (1861) 30 LJ Ch. 379) has been reproduced to the effect that no universal rule can be laid down as to whether mandatory enactments shall be construed directory only or obligatory with an implied nullification for disobedience. The case of each enactment has to be construed in the light of the general object intended to be secured, the subject matter and the importance of the provision and then it can be decided whether the enactment is imperative or only directory."
65. Even if it is presumed for the time being that both the Polling Stations were shifted in violation of the provisions of the Act on the following day, i,e, 3-2-1997, then the question for consideration will be whether such breach has materially affected the result of the election. As it has been sufficiently discussed hereinabove that mere breach of any provision of the Act of the Rules, is not sufficient to declare an election void. The petitioner is required to establish (i) that the breach of the provision of the Act has been committed, and (ii) that due to such breach the result of the election has been materially affected. In this regard reference can be made to PLD 1986 Journal 146.
66. In view of the above discussion I do not see any force in the petition which is, therefore, dismissed.
67. However, parties shall bear their own costs.