' This election petition under section 52 of the Representation of the People Act, 1976 has been filed by Anwar Saifullah Khan, a contesting candidate for election held on 3-2-1997 to the Constituency NA-20 Lakki Marwat Bannu, to question the results of the polling whereby Haji Muhammad Kabir Khan, respondent No,1, was declared the returned candidate. According to unofficial announcement of the results on 4-2-1997, respondent No,1 led by a margin of 747 votes, respondent securing 34948 as against 34201 polled by the petitioner. In the official count made on 17-2-1997, when the result was being consolidated by the Returning Officer, the winning margin of respondent No,1 was reduced to 353 votes when it was found that he had polled 35772 votes and the petitioner 35419 votes. There were 6 other contesting candidates but they legged far behind as the candidate who obtained the third highest number of votes could only poll 6544 votes. All the contesting candidates were impleaded as respondents but only respondent No,1 contested the election petition.
2. The petitioner has in the election petition alleged the commission by respondent No,1 of corrupt and illegal practices in the election and the deliberate failure of the, District Returning Officer and the Returning Officer to comply with the provisions of the laws relating to elections. The incidents of allegations are spread out in 19 paragraphs in the petition. Since the details of these incidents are comprehensively incorporated into the 24 issues that were framed, it will be convenient, for the purpose of knowing the nature of the allegations, to reproduce the materially significant issues:--- ' Issues Number:
(6) Was no polling held and female voters deprived of their right to vote at female polling booth of Polling Station No, 101, Biland Khel because of the collective decision of the elders of the village to this effect, as stated in para. 7 of the written statement?
(7) Was polling at female polling booth of Polling Station No, 102, Shahbaz Khel started after 12.00 noon and stopped at 4.00 p.m. Thus, denying a large number of female voters the right to vote, if so its effect?
(8) Were a number of registered voters as mentioned in para. 10-D of the petition refused ballot papers and, thus, prevented from/deprived of their right to vote, if so, its effect?
(9) Whether a large number of persons in the service of Pakistan had applied for postal ballot but were not issued/did not receive the same till consolidation of result and they presented themselves for vote at the polling stations concerned but were not issued ballot papers and, thus, disenfranchised, if so, its effect?
(10) Whether some registered voters of Polling Station No, 93, Khero Khel Pacca, who were not qualified to nor had applied for issued postal ballot, were refused ballot papers, thus, deprived of their right to vote, if so, its effect?
(12) Whether some persons in service and registered as voters at Polling Station No, 93 had not applied for/issued ballot papers but were refused ballot .Papers when they presented themselves for vote because the words PB were written in the electoral roll against their names and, thus, disenfranchised?
(14) Whether after express close of poll at Polling Station No, 55, Daddiwala, a number of persons were called and they polled their votes, as alleged in para. 10-J of the petition, if so, its effect?
(16) Whether polling at Polling Station No, 47, Wanda Samandi was started late and stopped completely by the Presiding Officer at 2.30 p.m. And voters present inside the Polling Station till about 11.00 p.m. Were not issued ballot papers to poll their votes and, thus, disenfranchised? If so, its effect?
(18) Whether ballot boxes of Polling Station No,68, GMS Mela Shahab Khel were removed by the Presiding Officer at close of poll to some unknown place and votes counted without notice to and in absence of polling agents of the petitioner, if so, its effect?
(20) Whether election material of 31 polling stations as stated in para. 10-N of the petition was not sent to the Returning Officer but dumped at Bannu, remaining in unauthorised possession there and then transported on the following day to Lakki in a conveyance supplied by respondent No,1? If so, its effect?
(21) Whether all the polling bags were unauthorisedly withdrawn by the Returning Officer from the treasury on 15-2-1997, without notice to the candidates and kept with him for more than 8 hours, if so, its effect?
(22) Whether the election material polling record was tampered, during this period? If so, its effect?
(24) Whether the votes polled in favour of petitioner at Polling Station Tajori and Kalakhel were shown less in the unofficial result by the Returning Officer, if so, its effect?
(25) Relief.
'Amongst the issues framed on the preliminary objection raised by respondent No,1 in his written statement the following were of importance:--- ' Issues Number:
(1) Whether the petition, the Annexures and the affidavits filed alongwith it have not been verified as required under Order V, Rule 15, C.P.C. ,if so, its effect?
(3) Whether petition is liable to be dismissed for non-impleadment of various functionaries of the Government Election Authorities/Returning Officers, D.R.Os., P.Os. And A.P.Os. And other election Polling staff?
3. To substantiate his case the petitioner, besides himself appearing as his witness, examined 138 witnesses. Out of these, 34 recorded their statements before this Tribunal whereas 105 female witnesses were examined by Civil Judge, Lakki Marwat, who was issued a commission by the Tribunal On 20-2-1998 to examine female witnesses, numbering 421, whose names and affidavits were filed by the petitioner with the election petition. This order was passed on the application of the petitioner after elaborate arguments were addressed for and against the issuance of the commission. The petitioner as well as the respondent No,1 were represented at the recording of the statements of the witnesses before the Commission. The witnesses were duly cross-examined. No objection has been raised as to the mode of recording of evidence before the Commission. These witnesses have been numbered by the Commission as A-1 to A-105 and shall be referred to by the numbers so ascribed to them.
4. Although a total of 25 issues have been framed not all of them were pressed at the hearing, either because of lack of sufficient evidence or they had no significant bearing on the outcome of the election petition. The ones on which elaborate arguments were advanced are discussed below 4-A. Issues No,6.--This was the most debated issue. It was framed on the allegation of the petitioner that no polling at all was held at the female polling booth of Polling Station No, 101, Buland Khel. Mr. Muhammad Sardar Khan, the learned counsel appearing for the petitioner, with reference to Article 218(3) of the Constitution read with sections 7(4) and 9(1)(2)(3) contended that it was the duty of the Returning Officer to effectively conduct the election, including the appointment and availability of the election staff at all the polling stations. The learned counsel referred to the show- cause notices issued by the Returning Officer to the Polling Staff of Polling Stations No, 101 Buland Khel and 102 Shahbaz Khel, the replies thereto and the order of the Returning Officer (Exs.P.W.1/1 to Ex. P.W. 1/12), and pointed out that no staff at all was either appointed or posted at Polling Station No,101 and thus the Returning Officer has failed to comply with the duty imposed upon him under the law to effectively conduct the election. It was maintained that all these documents were exhibited through Mir Abbas, Superintendent Sessions Court, Lakki Marwat (P.W.1) without any objection and, therefore, the admissibility of these documents in evidence is no longer open to question. Reliance was placed on Abdullah and others v. Abdul Karim (PLD 1968 SC 140) and Gopal Das v. Sri Thakurji (AIR (30) 1943 Privy Council 83). Citing the cases of Muhammad Sadiq v.
Federation of Pakistan (1981 MLD 1), Zerina v. Fatima Bi (PLD 1995 Karachi 388) and Articles 132 and 133 of the Qanun-i-Shahadat Order, 1984. 'The learned counsel maintained that the allegation that no polling staff was sent to Polling Station No,101 stands established because P.W.1 was not cross- examined at all and the petitioner (P.W.34) was not cross-examined on this statement on the point.
It was pointed out that 671 female voters at this polling station were disfranchised, thus materially affecting the result of the election within the meaning of section 70 (a) as the winning margin of respondent No,1 was 353 votes.
5. Qazi Muhammad Anwar, Advocate representing respondent No, 1 submitted that it was in pursuance to the decision of the elders of the area that no polling was held at the female polling booth of Polling station No,
101. With reference to the consolidated statements of the results (Form XVI) produced at the hearing of the arguments the learned counsel argued that in as many 18 feinale polling stations no polling at all was held as no vote was cast in those polling stations which was in accord with the local traditions where men do not allow their womenfolk to go to polling stations. The learned counsel further argued that the submission on behalf of the petitioner regarding the non-availability of the female polling staff of female Polling Station No, 101 is not substantiated as neither the Returning Officer of the constituency nor the Presiding Officer of Polling Station No, 101 have been examined by Me petitioner. Placing reliance upon Saeed Hassan v. Piyar Ali (PLD 1976 SC 6), Muhammad Yousaf Aytub (PLD 1973 SC- 160) and Mohan Singh v. Bhanwarlal (AIR 1964 Madya Pardesh 137) the learned counsel maintained that the standard of proof required to substantiating the allegations in the election petition is to be proved beyond doubt, which the petitioner has failed.
6. The petitioner has in para. 7 of the election petition alleged that no polling had taken place at Polling Station No,101, This has not been denied by respondent No,1 in the corresponding paragraph of his written statement. The respondent has only pleaded that the polling had not taken place on account of the decision of the elders of the village. The burden to show that such a decision was taken obviously lay on the respondent. He has not produced any evidence to prove such an.
Agreement. In his examination-in-chief Respondent No,1 (R.W.1) had stated that since the constituency consists of Pashtoon, female generally at their owft would not got to the, polling station for casting their votes. The witness 'did no make any reference to any agreement by elders of the area as alleged in para. 7 of the parawise replies of the written statement. Thus, the explanation of respondent No,1 regarding non-polling at female booth of Polling Station No, 101 does not stand established. The legality of such an agreement was not touched upon by either of the counsel. However, it is not necessary to go into this question in view of the finding that the agreement has not been proved.
7. Having held that no polling at all had taken place at the female booth of Polling Station No,101, the next question that requires determination is whether any polling staff was at all deputed to, or provided for the said polling booth. The District and Sessions Judge, Bannu was appointed as the District Returning Officer, Lakki Marwat whereas Mr. Subhan Sher, Additional District and Sessions Judge was the Returning Officer for the Constituency. It is in this background that the petitioner examined Mir Abbas, Superintendent Sessions Court Lakki Marwat, and got exhibited through him the show-cause notice issued by the District Returning Officer to the various polling staff of Polling Stations No,101 and 102. Exh. P.W. 1/1 is a show-cause notice dated 13-2-1997 issued to 9 female teachers requiring them to explain as to why they had failed to perform their duties at Polling Station No, 101 Buland Khel and Polling Station No, 102 Veterinary Hospital Shahbaz Khel. The names of the defaulting staff were Farzana Tabassum, Imtiaz Bukhari, Surriya Begum, Neelofar, Nisa, Maimoona Alam, Zaitoon Bibi, Naseem Akhtar, Bushra Bibi and Yasmin Khan. A separate show- cause notice (Exh. PW. 1/2) was also issued on the same date to Mst. Saeeda Sultana for not performing her duty as Presiding Officer at Polling Station No, 102 (Shahbaz Khel). In her reply (Exh.
P.W 1/3) Farzana Tabassum explained that she was posted at two different polling stations namely Wanda Aurangzeb and Shahbaz Khel and that it was after consultation with the Returning Officer that she performed her duties at polling station Wanda Aurangzeb. A Certificate to that effect of the Presiding Officer of Polling Station Wanda Aurangzeb was also attached with the reply.
Maimona Alam in her reply Ex. P.W. 1/4 stated that it was on the orders of the Returning Officer that she performed duty at Girls Primary School Nader Khel instead of Poling Station No,102 (Shahbaz Khel). Zakira Bibi responded in her reply Exh. P.W.1/5 that she was posted at Polling Station No, 102, where polling could not start till noon because there was no Presiding Officer and polling commenced only when Mehrun Nisa (P.W.4) was brought in as Presiding Officer. Mrs. Yasmin Khan denied having received any order for performing election duty (Exh. P.W. 1/6). Similarly, Surraya Begum in her reply Exh.P.W. 1/6-A stated that she had not received any duty order as Assistant Presiding Officer at Polling Station No, 101, Saeeda Sultana to whom a separate show-cause notice was issued denied receiving any duty order as Presiding Officer of Polling Station No,102. Similar denials were made in their replies to the show-cause notices by Imtiaz Bukhari (Exh. P.W 1/8), Mrs. Saeeda Sultana (Exh. P.W. 1/9) and Naseem Akhtar (Ex. P.W. 1/10). Report Ex. PW. 1/12 was prepared by the Reader of the Sessions Judge based on the replies to the show-cause notices. The District and Sessions Judge on 29-3-1997 withdrew the show-cause notices (Exh. P.W. 1/11) after he found the replies satisfactory.
8. Reference to the show-cause notices, replies thereto and the eventual withdrawal of the show- cause notices was made by the learned counsel for the petitioner to show that no staff was deputed to Poling Station No, 101 Buland Khel. The above documents were exhibited through the Superintendent of the Sessions Court Lakki Marwat (P;W.1) without any objection and the witness was also not cross-examined. Out of the 9 female staff issued with show-cause notice, 3 were supposed to conduct polls at Polling Station No, 101 and the remaining six at Polling Station No, 102.
According to the report of the Reader to the District and Sessions Judge, Lakki, the District Returning Officer (Exh.P.W. 1/12) 1, on the basis of which the shows-cause notices were withdrawn, 4 female polling staff were deputed for Polling Station No,101. The fourth to whom show cause notice was not issued is Ba.Shir-un-Nisa. Of the four polling staff, Surraya Begum and Neelofar Nisa were the Assistant Presiding Officers of the Female Polling Booth and Bashir-un-Nisa and Yasmin Khan were assigned the task of Poling Officers. The polling station being combined for male and female, one Dilawar Khan was the Presiding Officer. Of the 3 female staff to whom show-cause notice was issued two of them, Surraya Begum and Yasmin Khan, submitted their .Replies in which they conceded their absence but explained that they had not received any order for performing election duty. The show cause notice against the two was withdrawn. Neelofar Nisa, according to Exh. P.W. 1/12 had not tendered any explanation but there is nothing on the file to show that any action was taken against her. The show-cause notice had been issued after it was found that the 3 female staff were not present at the polling station. The explanation furnished by the staff for their absence would not by itself be sufficient to establish that they had not received any duty order unless the female staff was examined staff. How, ever, the explanation tendered by them was found satisfactory by the District Returning Officer and the show-cause notice was withdrawn by order dated 29-3-1997 (Exh. P.W. 1/11). This is an official document and, therefore, the contents of it are admissible in evidence. Copies of Ex. P.W. 1/11 were sent inter alia to the Provincial Election Commission as well as the Divisional Director Eduction (Female) with the remarks to the latter that action be not taken against the officials. The inquiries seem to have been made after reports were received that no polling staff was available at Polling Station No,
101. Regardless of whether the explanation tendered by the female staff was true or not the issuance of show-cause notice itself is sufficient to show that the 3 female staff had not reported to the polling station for duty. Bashir-un- Nisa was probably the only polling staff who had turned up. In the letter written by Dilawar Khan, the Presiding Officer of the polling station, to the district Returning Officer (Exh. P.W. 17/3), which was annexed with the application Exh. P.W. 17/2 of the petitioner to the Chief Election Commissioner for re-polling, it was stated that Bashir-un-Nisa, the Polling Officer was the only polling staff, who had come to the polling station and consequently the polling could not be held at the female polling booth. These two documents were exhibited through Gul Akbar Khan, Deputy Election Commissioner ( P.W.17) who had brought the relevant record from the office of the Election Commission of Pakistan. Obviously, if the two Assistant Presiding Officers and the other polling officers were absent, one polling officer was neither in a position nor empowered, in the absence of Assistant Presiding Officer, to conduct polls.
9. It was the petitioner's stand right from 4-2-1997, as is evident from Exh. P.W 17/1, a complaint made by him to the Returning Officer and the District Returning Officer with copy to the Chief Election Commissioner of Pakistan, that polling had not been held at Polling Station No, 101 on account of absence of female polling staff. Request was made for re-polling at Polling Stations Nos.
101 and 102. The same request was repeated in his application made on 6-2-1997 (Exh. P.W. 17/2) with the additional request that votes be re-counted. That request was granted but re-polling was not ordered. In his testimony before this court the petitioner reiterated that no female polling staff was available at the said polling station and that 671 registered female voters attached to the polling booth were disfranchised. His this allegation was not questioned in cross-examination. The only cross-examination relating to polling station No, 101 was regarding his non-mention in Exh. PW.
17/1. The number of voters disfranchised and the number who had come to the polling station but unable to poll their votes because of the absence of female polling staff. As far as the number of the female registered voters at polling station No, 101 the figure 671 is confirmed by Gul Akbar Khan, the Deputy Election Commissioner (PW 5). This witness was examined twice, the second time as P.W.17 on behalf of the Election Commissions of Pakistan. Respondent No, 1, in his testimony before this Tribunal, did not explicitly deny the absence of the polling staff at polling station No, 101 but, with obvious reference to the allegation, in his examination-in-chief had stated that on the date of election he had not come across any complaint that for a particular polling station polling staff was not provided. The petitioner's stand regarding non availability of the polling staff at the said polling station taken immediately after the polls and his being not cross-examined on this stand at the trial lends further support that the female polling staff were not provided to conduct polling at female polling booth of Polling Station No, 101.
10. The petitioner examined 82 female registered voters of polling station No,101. They were examined by Civil Judge, Lakki Marwat, Mr. Safeer Qaiser Malik, to whom commission was issued on 20-2-1998. These witnesses have been numbered A-1 to A-82. It is not only cumbersome but unnecessary to comment upon the testimony of each of these witnesses because they have reiterated the contents of the affidavits given by them and filed with the election petition, which is more or less to the same effect and the cross-examination of the witnesses is materially on the same lines. A general comment on their testimony would, therefore, suffice. In the affidavits as well as in the examination in chief or these witnesses had alleged that they had gone to the polling station and because there was no female staff available they returned home without casting their votes. The time they went to the polling station and the period spent their before disappointedly returning home varies with each witness. Some had gone in the morning, other in the afternoon.
Some of them had spent 2 or 3 hours before returning home while others stayed right upto the end when the polling time was over at 4 p.m. Almost all the witnesses stated in their cross-examination that they were illiterate. That also accounts for their ignorance, when cross-examined, of the registered number of their votes, the meaning of the word "booth", referred to in their affidavits and that they could not distinguish their affidavits from the others. When cross-examined regarding the execution of the affidavits, they all candidly admitted that the affidavit had already been written for them by the male members of their family and that they had thereafter, thumb-impressed the same. This does not affect the evidential value of their testimony as they had reiterated the contents of the affidavit when examined on Oath by the Civil Judge. As regards their answers regarding the number of votes and distinction between the affidavits the witnesses being illiterate were not expected to respond positively to these questions. Suggestion in cross-examination that male members of some of the witnesses were employed by the petitioner or his brothers were denied. In fact quite a few witnesses, when asked, stated that they did not know the petitioner.
Nothing in the cross-examination could be elicited to create, doubt that they had not gone to the polling station on the day or to show that the polling staff was available to conduct the polls. When asked of some of the witnesses by the cross-examiner, it was denied that there was any decision by the elders of the area that female would not cast their votes. It was at the same time admitted that the women would abide by a decision by the elders prohibiting them for voting. The testimony of the witnesses is straightforward and despite being illiterate villagers, they successfully withstood the test of cross-examination. There is no reason to disbelieve their allegation that no polling staff was available at the female booth, of Polling Station No, 101.
11. From the above discussion it has been amply established that no polling at female booth of Polling Station No, 101 was held because there was no female staff provided to conduct the polling.
The effect of this lapse would be examined later while discussing issue No, 25, relating to relief.
12. Issue No 7.-This issue, which follows issue No, 6, in sequence and in importance, relates to the late commencement of polling at female polling station No, 102, Veterinary Hospital Shahbaz Khel.
The petitioner has alleged that on account of non-availabifity of polling staff at this Polling station, staff from another polling station were brought at around mid-day with the result that a number of female/voters returned without casting their votes and that a number of voters who were present in the premises of polling station at the close of the polls were not allowed to vote. Thus, the first question that calls for determination is "whether the polls started late. To prove this, the petitioner primarily depended on the statement of P.W. 4 Mrs. Mehrun Nisa, Assistant Sub-Divisional Education Officer' (Female) Lakki Marwat, who was posted as Presiding Officer, Polling Station Girls Middle School Daro Khel, but because polling did not take place at that polling station on account of decision of the elders of the area, she alongwith other staff were taken to polling station No, 102, to conduct the polls. She had given an affidavit Exh. P.W. 4/1 to that' effect and the contents of which she reaffirmed in her testimony before the Tribunal. She had stated that a Judge had personally come to fetch her from polling station Daro kthel at about 12, 0' Clock. When questioned in cross- examination, she expressed her ignorance about the name of the Judge. Probably it was Returning Officer who may have received complaint about the absence of polling staff at Polling Station No,
102. The witness stated, again in cross-examination, that the distance between Daro Khel and Shahbaz Khel was about 30 kilometers and it took them about 30 to 35 minutes to reach Shahbaz Khel. She said, that they reached polling station No, 102 at about 1 p.m. And straight away started the polling. The witness disclosed in cross-examination that no female polling staff was present at polling station No, 102 when they arrived there.
13: While discussing issue No, 6, it was noted with reference to Exh..P.W1/1 and Exh. 1/2 that show- cause notices were issued to 10 female staff for their absence from duty from polling stations Nos.
101 and 102. Six of them were posted at polling station No,. 102, including Mrs. Saeeda Sultana, appointed as Presiding Officer of the Polling Station, to whom a separate show-cause notice Exh.
P.W. 1/2 was issued. Her explanation that she had not received any duty order was accepted as correct by the District Returning Officer through Exh.P.W. 1/11 and Exh. P.W. 1/12. The explanation furnished by the remaining polling staff that either they were not given duty orders or were posted at two different polling stations was also accepted by the District Returning Officer. The show- cause notices and their eventual withdrawal by the District Returning Officer. The show-cause notices and their eventual withdrawal by the District Returning Officer supports the testimony of P.W. 4 and there was no polling staff available at polling station No,102 to conduct the polls and, therefore, P.W.4 and other staff were brought in from other polling stations.
14. The petitioner had produced 18 female witnesses, examined as A.W.83 to A.W.100 by the Local Commissioner to testify that they were registered voters at polling station No, 102 and had gone to the polling station in the morning to poll their votes but returned without exercising their right of franchise because of the total absence of staff at the polling station. All these witnesses had affirmed the contents of the affidavit executed by them and filed by the petitioner with his election petition. The tenor of their examination-inchief as well as the line of cross-examination is very similar, if not identical. In fact the questions put to them by the cross-examiner were almost the same that were asked of A.W. 1 to A.W.82 referred to above while discussing issue No,6. To avoid repetition the line of cross-examination is not re-stated here. It may be noted that like A.W.1 to A.W.100 the veracity of the testimony of these witnesses is free from doubt. The testimony of P.W.4, supported by Exh. P.W: 1/11 and Exh. P.W. 1/12 and further corroborated by the testimony of A.W.83 to A.W.100 is sufficient to establish that no polling at polling station No, 102 had taken place until mid- day on account of absence of the polling staff purportedly posted at the polling station. Another related question that arises, and for which no explanation can be found in the evidence, is as to how, and by whom, was the election material relating to polling station No, 102 entrusted to P.W.4 when according to the rules the election material ought to have been in the custody of the Presiding Officer, who in this case was supposed to be Mrs. Saeeda Sultana, who had not received duty orders and obviously neither went for training nor entrusted with the election material.
15. The second limb of issue No,7 is the allegation that a number of voters who had not tasted their votes were present within the premises of polling station No 102 at the closing time of the polls at 4 p.m. But the polling was stopped and the voters present were deprived of their rights to cast their votes. In support of this allegation the statement of P.W. 4 Mrs. Mehrun Nisa, the lady who presided polling station No, 102 was relied upon. She had in her examination-in-chief, the contents of which are incorporated in her affidavit ,Exh. P.W,4/1, stated that a large number of women were deprived of their rights of vote because of the closing of polls at 4 p.m During her cross-examination, she became more specific about the number when she stated that there were as many women waiting to cast their votes as were present when she first arrived at the polling station. That is, 300/400 voters, she says that the polling was stopped by the army personnel despite her protest to allow the women present to cast their votes.. In response to a question as to how did she know the number of voters present at the close of the polls, she stated that she personally came out to survey the situation. She, however, conceded that she did not make any complaint to the Returning Officer about the closing of the polls when she delivered the results of the polls that evening. To corroborate the accusation, the petitioner produced 5 witnesses, A.W. 101 to A.W.
105. All of them stated that they and a large number of women present at the polling station were not allowed to poll their votes after 4 p.m. Despite the request made by the polling staff to the army personnel.
16. The evidence of the petitioner does not show as to how many voters waiting to cast their votes within the premises of the polling station were deprived of the right of franchies. P.W.4 did not give any number in. Her affidavit and her statement in cross-examination that there were 300/400 women present in the premises of the polling station at 4 P.M does not categorically prove that all the women present were waiting to cast their votes. They may have been the supporters of the candidates and friends or relation of the supporters who had already cast their votes. Only 5 witnesses have been produced who testified that they were not allowed to cast their votes. P.W.4 though the Presiding Officer had not made any written complaint to either the Returning Officer or the District Returning Officer about the closing of the polls. Thus, it is not proved that any female voter present in the premises of the polling station at 4 p.m were not allowed to cast their votes.
Therefore the issue to the extent that the polling had started late at mid-day is decided in favour of the petitioner whereas the second part of the issue of disfranchisement of women voters present at 4 p.m' at the polling station is decided against the petitioner. The effect of late commencement of the polling on the results of the election would be examined later while discussing issue No,25 relating to relief.
17. Issues Nos. 8, 9, 10 and 12.--These issues are decided together as the allegations involved therein are of similar nature. The allegations which gave rise to the claming of theie issues are to the effect that some voters who were not in the service of Pakistan or were in such service but had not applied for postal ballot papers were deprived of their votes because when they presented themselves the letters P.B (postal ballot) were written against their names in the electoral rolls. That some government servants who were assigned election duties were wrongfully not issued postal ballots and therefore deprived of their right to cast their votes. To substantiate these allegations, the petitioner examined a number of witnesses namely, P.W. 7 to P.W. 16 and P.W. 18 to P.W.
31. However, in the cases where the witnesses were not issued ballot papers because the letters P.13.. Had been written against their names the petitioner neither produced the official Electoral Rolls where such entry was made nor examined the concerned Returning Officer to confirm the allegation made by the witnesses. Similarly the petitioner failed to examine the Returning Officer who allegedly refused or failed to issue the postal ballots to those Government servants who had applied for them. Mere verbal allegation is not sufficient to establish the petitioner's allegations involved in these issues. All these issues are therefore decided in the negative.
18. Issue No, 14.---The petitioner examined P.W Mashal Khan in support of his accusation that after the polling had stopped at 4 p.m Polling Station .No, 55, Daddiwala and no one was present within the premises of the polling station yet polling was resumed at 4.20 p.m. This witness was posted Assistant Presiding Officer of the polling station. In his examination-in-chief he has alleged that the Presiding Officer had announced through loudspeaker in the nearby mosque that the polling had closed, but 10 minutes later, after the presiding officer was instructed by the Returning Officer on phone, he made another announcement for resumption of the polling. The polling agents, it is stated, objected to the resumption. The witness disclosed that 19/20 votes were polled after the resumption of the polls, in cross-examination he conceded that the count had not started when the polling was resumed. When asked in cross-examination, he denied that he was a political supporter of the petitioner.
19. No written complaint was made by the polling agent of the petitioner regarding the resumption of the polls nor did the polling agent recorded the names of the 19/20 voters who allegedly polled their votes on resumption of the polls, in fact the petitioner's polling agent present at the polling station has not been examined. Thus, bare verbal allegation of the Assistant Presiding Officer is insufficient to establish that the polling had resumed after the close. In reexamination this witness has testified that after the first announcement was made on the loudspeaker, he had come out of the polling booth and saw that there were no voter present in the premise waiting to cast their votes. Unless instructed by the presiding Officer, which is not claimed by the witness, there was no occasion for him to have come out to verify the presence of voters waiting to cast their votes. This issue has not been proved by the petitioner and is therefore decided in the negative.
20. Issues No 21 and 22.--The petitioner had alleged in para. 10(0) of the election petition that the Returning Officer for the purpose of re-count had withdrawn from the treasury all the polling bags without authority and had kept the same with him for more than 8 hours without any notice to the petitioner regarding the withdrawal and that during this period the Returning Officer had tampered with the election material and the polling record. To prove this accusation, the petitioner examined the District Accounts Officer Lakki Marwat (P.W.2). The witness admitted that 12 polling bags containing ballot papers were sent to the Returning Officer under the Army escort after a memo.
Exh. P.W 2/1 dated 15-2-1997 was sent by the Returning officer. The bags were received by the Returning Office on the same day at 2 p.m. The acknowledgement receipt whereof is Exh. P.W. 2/2.
On the same date the bage were sent to the treasury where it was received at 10 p.m. This is evident from Exh. P.W 2/3 and Exh.P.W 2/4. The witness also produced the entries made in the register regarding the deposit and the return of the bage (Exh. P.W. 2/7).
21. The allegation regarding tampering has been made against the Returning Officer and not P.W. 2, the District Accounts Officer who had delivered the bags to the former. The petitioner, however, has not examined the Returning Officer in order to question him regarding tampering with the election material during the eight hours that the bags were kept by him. In fact there is no evidence whatsoever that the Returning Officer had tampered with the record. The allegation is based merely on the petitioner's suspicion that since no notice of the withdrawal of the election material from the treasury was given to him the record might have been tampered with. Thus, in the absence of positive evidence to prove tampering by the Returning officer, the issues are decided against the petitioner.
22. Issues No, 16,18 and 24.---On these and the other remaining issues, of which the burden to prove was on the petitioner, except issue No 25, which is discussed later, no evidence was led by the petitioner. Rather these issues were no pressed at the hearing of the arguments. They are, therefore, decided against the petitioner.
23. Issue No, 1.---This issue is based on the preliminary objection made by respondent No, 1 in his written statement and, therefore, the burden was on him to prove. This issue is based on the objection that the election petition, the annexures and the affidavits filed with it were not verified in accordance with Order VI Rule 15. It was stated in the written statement that the election petition is liable to be dismissed under section 63(a) read with section 55 (3) of the Representation of the People Act. 1976 (hereinafter called as the "Act") for non-verification in the manner laid down in C.P.C., namely, Order VI, Rule 15. The election petition has been duly verified on Oath. As for the verification of schedule and annexures are concerned the august Supreme Court in the case of S.M Ayub v. Syed Yousaf Shah (PLD 1976 SC 486) had held that their verification by the petitioner is essential only if additional allegations of substantial character against the opposite party are made. In the present case the Annexures and the affidavits filed with the petition does not make any allegation in addition to the one already made in the petition. This issue is decided in the negative.
24. Issue No,3.---This issue has framed on the objection on behalf of respondent No, 1 that by non- implement of the District Returning Officer, Returning Officer and the Presiding Officer and other election staff the election petition is liable to be dismissed. This legal objection has no foundation because under section 54 of the Act the petitioner is to implead as respondent in the election petition the contesting candidate and the candidate against whom there is any allegation of corrupt or illegal practice. The petitioner has arrayed all the contesting candidates as respondents and has not made any allegation of corrupt and illegal practice against candidates not already impleaded as respondents. This issue is therefore decided against respondent No,1 .
25. Issue No, 25.---Only two issues namely issues Nos. 6 and 7 the latter partially, are decided in favour of the petitioner. The effects of these determinations are discussed together in order to examine their separate and combined effect on the election result as the contention on behalf of the petitioner is that it should result in declaration of the election as a whole void under section 67(d). Before discussing the effects of the findings on the two issues and the relief, if any, that can be granted to the petitioner it will be appropriate to examine the legal controversies involved in the light of the arguments advanced by the counsel for the parties.
26. The learned counsel for the petitioner had pointed out that under Article /18(3) it was the duty of the Election Commission to organise and conduct the election and to make arrangements necessary for the honest, just and fair conduct of the election in accordance with law. That it was in the light of this constitutional duty that the law, i.e section 7 (4) of the Representation of the People Act, 1976 further casts a duty on the Returning Officer "to do all such acts and thing as may be necessary for effectively conducting election in accordance with the provision of the Act and the Rules ". It was argued that by not appointing polling staff at Polling Station No, 101 (issue No 6) the Returning Officer had violated section 9 (1) of he Act and the commencement of polling at Polling Station No, 102 at mid-day (issue No 7) violated section 26 of the Act, which provides minimum of 8 hours of polling. The learned counsel for the petitioner, therefore, argued that since these violations materially affected the result of the election, it be declared as a whole void under section 70 (a) of the Act. As regards the burden of proof and the effect on the result of the late commencement of polling at the particular polling station the learned counsel relied upon two election cases decided by Election Tribunals in India, namely Sudhansu Sekhar v. Satyendra Nath Dasu (volume IV page 73) and Kandasami Kandar v. Subramania Goundar and others (volume v. Page 156). Reference was also made to Jam Mashooq Ali Shah Nawaz Junejo (1996 SCMR 1426) in which the august Supreme Court of Pakistan has upheld the decision of the Election Tribunal Sindh reported in 1996 MLD 1608 wherein the election as a whole was declared void because of failure to comply with the Election Laws and Rules.
27. The learned counsel representing respondent No, 1 had argued that the election cannot be declared void until the petitioner proves the allegation of illegal and corrupt practices beyond reasonable doubt. Reliance was placed on Muhammad Yousaf Khan Khattak v. S.M Ayub and others (PLD 1973 SC 160), Syed Saeed Hassan v. Pyar Ali and others (PLD 1976 SC 6) and Mohan Singh v. Bhanwarlal (AIR 1964 Madhya Pradesh 136).
28. The case law cited by the learned counsel for respondent No,1 all relate to allegation against the returned candidate of corrupt and illegal practices, and it has been consistently held that these allegations are to be established beyond reasonable doubt. However, the petitioner has not urged illegal and corrupt practice by the returned candidate, or for that matter by anybody else on behalf of the returned candidate, but has prayed that on account of non-observance of the statutory provision relating to elections that election result has been materially affected. In the case of Kandasami Kandar, referred to above, it was laid down that under Indian Law, the burden of proving that election result has been materially .Affected on account of non-compliance with the rules is on the petitioner and that the burden is discharged only by establishing circumstances and facts justifying the probability or inference that the balance might well have been titled. This was a case where the polling started late at 1 p.m. And continued till the close at 5 p.m. Although all voters inside the enclosure were allowed to cast their vote, it was held that since the ling time was less than the minimum statutory 8 hours it had affected the election because the 8 hours poll was based upon the principle that the electors should have a fair opportunity of casting their votes. On the question of materially affecting the result of the election, the Tribunal held that where the number of voters left out is so large that if whole or substantial portion thereof could have titled the result of the election if the same was taken into account in favour of the petitioner, it would be proper to set aside the election. Rather than embark upon an unsafe inquiry largely based on guess work as to the probable trend of the voting. So also in Sudhansu Sekhar' s case the Tribunal declared the election void when the non-observance of polling materially affected the result of the election.
29. Though the judgment of the Election Tribunal in India has only pursuasive authority, I am inclined to follow the reason given in the two judgments. The Supreme Court of Pakistan has also under somewhat similar circumstances in the case of Jam Mashooq Ali v. Shah Nawaz Junejo, (ibid), upheld the decision of the Election Tribunal Sindh whereby election as a whole was declared void because inter alia unamended Electoral Rolls were initially supplied to the Presiding Officers and the amended Electoral Rolls were supplied at I p.m. And electors with certain identity cards were disallowed to vote. The Supreme Court of Pakistan observed that though the Returning Officer had later issued instructions to the Presiding Officers to allow such electors to cast their votes but because the instructions were issued late in the afternoon, the electors must have left the polling stations without casting their votes. In this case, though the winning margin of the returned candidate was more than 5000 votes, the election as a whole was declared void.
30. Section 70 of the Act, mentions the ground for declaring election as a whole void.
"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."
According to the above provisions, two conditions must be fulfilled before an election can be declared as a whole void. Firstly, that any person has failed to comply with the provisions of the Act and the rules framed there under A or extensive corrupt or illegal practice prevailed in the election and secondly, on account of such failure or corruption the election has been materially affected.
We are here only concerned with section 70 (a) of the Act.
31. Section 7(4) of the Act casts a general duty on the Returning Officer to do all that is necessary for effectively conducting the election in accordance with the provision of the Act and the Rules.
Section 9(1) enjoins upon the Returning. Officer to appoint for every polling station a Presiding Officer and such number of Presiding Officers and Polling Officers as may be considered necessary.
The failure of the Returning Officer to appoint Asstt. Presiding Officers and Polling officers at female booth of Polling Station No, 101, Buland Khel as discussed in para. 4-A above amounts to failure of the Returning Officer to comply with the mandatory provision of section 9(1) of the Act. Section 26 of the Act provides that the Election Commission shall fix not less than 8 hours for the holding of the polls, in the election in question,. 9 hours were fixed for polling starting from 7 a.m. However, polling at polling station No 102, Shahbaz Khel started at around 123 Noon, thus leaving 4 hours for the polls.
This late commencement of polling as discussed in issue No, 7 above was the result of non- availability of polling staff at the said polling station where polling staff had to be brought from another polling station. The Returning Officer has, thus, failed in his duty under section 7(4) to effectively conduct the election. The First Requirement under section 70 (a) for declaring election vide stands established as the Returning Officer has failed to comply with the provision of the Act.
32. The second condition is whether the result of the election has been materially affected.
Respondent No,1 had polled against 35201 whereas the petitioner 35219. The difference, therefore, was of 353 votes. At Polling Station No,101, 671 female voters were deprived of their right to cast their votes. This alone materially affected the result of the election. The registered voters at Polling Station No,102 were 1171, out of a total of 409 votes were polled, 276 in favour of the petitioner and 86 in favour of respondent No, 1 . It cannot be said that all those who did not cast their votes would have turned up for the polls. However, since more than 700 voters had not cast their votes there was a probability that had the polling started on time substantial number of additional voters may have cast their votes. The failure of the Returning Officer not to provide polling staff for only 4 out, of 9 hours of polling has also materially affected the election result.
33. For reasons aforestated, the election is allowed in terms of section 70(a) of the Representation of the People Act, 1976. Consequently the election as a whole is declared void. The files be returned to the Election Commission of Pakistan with the advice to hold fresh election in Constituency No,NA-20 Lakki Marwat, Bannu.
Election .