Through this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners seek setting aside of judgment dated 1-7-3002 passed by respondent No. 1 by which the election petition filed, by respondents Nos.2 and 3 has been accepted and thereby the notification whereby petitioners were declared as Nazim and Naib Nazim has been set aside.
2. The brief facts of the case are that the petitioners and respondents Nos. 2 to 11 (five panels) had contested the election for the seat of Nazim and Naib Nazim from Union Council No.272, Faisalabad.
The petitioners were declared as successful and were duly notified. Respondents Nos.2 and 3 filed election petition whereupon the petitioners were summoned who denied the allegations and the controversial pleadings of the parties necessitated the framing of the following issues:--
(1) Whether election petition is pre-- mature? OPR
(2) Whether annexures attached with the election petition are not verified in accordance with law, if so, its effect? OPR
(3) Whether the contents of the election petition do not disclose any corrupt practice, if so, its effect? OPR
(4) Whether the respondents Nos. 1 and 2 have committed illegality and corrupt practices at the time of polling and criminal case was also registered against them in this regard and illegality committed by respondents Nos. 1 and 2 has materially effected the result of case, if so, its effect?
OPA.
(5) Relief.
Both the parties led their evidence in support of their respective contentions. The learned Election Tribunal vide judgment e dated 1-7-2002 while deciding Issues Nos.3 and 4 jointly, accepted the election petition, declared the whole election as null and void and ordered for re-election.
3. Learned counsel for the petitioners has argued that issue was framed that whether the election petition and the annexures attached with it were verified in accordance with law or not. This issue was not properly attended to by the learned Election Tribunal/respondent No.1 and has only been decided having not been pressed due to the judgment relied upon by the other parties. It is also contended that in spite of the fact that this issue was not pressed, this Court can take into consideration that the non-verification of the election petition and the annexures is sufficient to dismiss the election petition. Relies upon judgment of this Court reported in Malik Muhammad Afzal Awan v. Election Tribunal (2002 YLR 1395). It is also contended that the election cannot be set aside merely that some festivities () had taken place at the polling station unless it is proved that "Halla Gulla" had materially affected the election. He also relied on "1997 CLC 1716"; "1994 CLC page 1366"; "1996 SCMR page 1455"; "PLD 1983 Lahore 778" and " 1999 MLD page 2793". It is further contended that only 45 ballot papers were found torn by the Election Tribunal and in such circumstances if all the 45 ballot papers are counted in favour of respondents Nos.2 and 3, even then they cannot succeed as the lead of the petitioners is of 65 votes. It is further contended that the allegations against the petitioners were levelled by the complainant/Presiding Officer but in the cross-examination she has not supported and has only stated that she had signed the F.I.R. On the asking of the police. In such circumstances the allegations are false and the impugned judgment is based on conjectures and surmises which is liable to be set aside.
4. Ch. Muhammad Khan, Advocate, learned counsel appearing on behalf of respondents Nos.2 and 3 opposes this petition on the ground that it is not an appeal, but is a petition under Article 199 of the, Constitution of the Islamic Republic of Pakistan, 1973 and re-appraisal of evidence is not permissible while deciding writ petition. It is also contended that the learned counsel for the petitioners has failed to show any illegality patent on the face of the record of misreading of the evidence hence this writ petition is liable to be dismissed. It is also contended that sufficient material has been brought on the record that due to "Halla Gulla" the elections remained stopped at two ladies polling stations from 11-00 a.m. To 4-00 p.m. And voters had gone back to their homes and due to the terror so created the ladies voters had avoided to approach the polling stations for casting their votes. It is also contended that the torn ballot papers were taken into possession by the police which are more than 100 in number and it is sufficient to show that no sanctity was attached to such polling process, which remained suspended for five hours, hence the learned Election Tribunal has rightly accepted the election petition and set aside the election.
5. Rana Muhammad Saleem Akhtar, Advocate, learned counsel for respondents Nos.2 and 3 has also opposed this petition relying on the recovery memo. Prepared by the police, attached with reply to his petition which is sufficient to show that a large number of ballot papers were torn out and it was not safe to declare that the petitioners were elected in fair manner.
6. I have heard the arguments of learned counsel for both the parties and also perused the evidence as also the judgment impugned in this petition. The learned Election Tribunal has given reasons for declaring the election as null and void which are fully supported by the evidence on the record mainly relying upon the statements of the members of the polling staff and the Presiding Officer which itself is sufficient to establish that "Halla Gulla" had started at the polling stations and same also resulted in the registration of the criminal case against the petitioners. The polling was also to be stopped by the polling staff in spite of the fact that the police and the Army Officers were present at the spot but could not control "Halla Gulla". 17 ballot papers in torn position, 38 used ballot papers, 21 ballot papers, 57 ballot papers, 73 ballot papers for the seat of Nazim and Naib Nazim, 61 ballot papers of Muslim women, 40 ballot papers of Kissan women and 54 ballot papers for the seat of General Councillor were recovered by the Investigating Officer from the spot which were taken into possession vide recovery memo. Prepared during investigation of case F.I.R. No.323 dated 31-5-2001 registered under sections 427/379/148/149/506, P.P.C. Read with section 16 of M.P.O.
From the statements of the Presiding Officer and other members of the staff it has been established beyond any doubt that a procession had come at polling station which started "Halla Gulla" and due to the fear and terror created by the said procession the polling staff went inside the room and locked themselves. In the meanwhile Mobile Team came there after half an hour and had taken into possession the ballot boxes which were lying in the Ahata alongwith the ballot papers lying scattered in the Ahata. A.W.3 Anwar Naheed got lodged a case or the basis of which petitioners have been nominated as accused persons and were found responsible for "Halla Gulla".
The statement of A.W.3 is supported by the statements of other witnesses. Similar statements were made by A.W.2, A.W.4 and A.W.5. After the perusal of the statements of these witnesses along with other witnesses P.W.7 Akhtar Bibi and Muhammad Amin P.W.8, it has been established that due to "Halla Gulla" at 11-20 a.m., the people in the Ahata where the ballot boxes were lying had scaled over the walls and after taking into their possession the ballot papers had been torn by them due to which the polling remained stopped till 4-30 p.m. Whereafter it was re-started on the direction of the high officers try the polling staff. It will be relevant to mention here that these polling stations were meant for casting votes by the ladies, majority of which was Pardanasheen and residents of the villages and definitely when due to the creation of the terror and "Halla Gulla" the polling staff had left the polling stations, it cannot be said that even if the polling was restarted the voters had returned to cast their votes in spite of the earlier ugly. Whether the petitioners are responsible for "Halla Gulla" or not it has been established that the voters were not provided free access to cast their votes in an independent and impartial manner but due to terror they had to leave the polling stations. In such circumstances even if the polling re--started is not sufficient to hold that the polling was held in an independent manner specially when number of ballot papers were found scattered which were taken into possession by the police and ballot boxes remained lying in the Ahata unsafe where the people had entered while the polling staff had locked them inside the rooms. In such circumstances the learned Election Tribunal has rightly held that "Halla Gulla" had materially affected the polling as the voters were not provided free access to cast their votes but had to return to their homes and narrow margin of the votes between the petitioners and respondents Nos.2 and 3 was sufficient to declare the election as void and for the re-election to the extent of category of Nazim and Naib Nazim as the petition was only filed to the extent of these two seats. As far as the contention that the election petition was not duly verified, this objection is not sufficient as the petitioners themselves had not pressed this issue before the Election Tribunal.
Secondly the learned counsel for the respondents has shown me the verification made on the election petition and it cannot be said that the election petition was not duly verified.
7. For the foregoing reasons this petition has no merit and is accordingly dismissed.