P L D 2018 Supreme Court 749 (PLP)

MUSHIR ALAM, J.--Instant Civil Appeal No.369 of 2015 under section 67(3) of the Representation ot People Act, 1976 ("RoPA") arises out of the final decision dated 4.5.2015 rendered by the learned Election Tribunal, Faisalabad (Camp at Lahore), whereby Election Petition No.194 of 2013 filed by the Election petitioner runner-up candidate Mr. Hamid Khan (Respondent No.1 herein) against the returned candidate namely Khawaja Saad Rafique (Appellant herein) was allowed. Learned Election Tribunal, Faisalabad (Camp at Lahore) while returning the finding on pivotal issue No.7 concluded that "the Returning Officer and Polling Staff failed to comply with the provisions of Representation of People Act, 1976 and all the rules and guidelines provided (them) for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold to the satisfaction of the Election Tribunal that the election has been materially affected." Election petition was accepted as a consequence "the election for NA-125, Lahore are hereby declared to be void as a whole, under section 67(1)(d) read with section 70 of the RoPA, 1976". A reference was forwarded to Election Commissioner of Pakistan for further proceedings in accordance with law for conduct of bye-election for NA-125, Lahore.

2. This matter has taken considerable time to ripen, even lengthy arguments for several dates were heard and at the fag end of the case by consent vide order dated 26.1.2016 "available counterfoils of NA-125, Lahore are sent to NADRA for verification of thumb impression with their available electronic database record." NADRA Report dated 2.8.2016 was submitted, considerable time was consumed by the parties to examine the report. When this bench commenced hearing all the learned counsel were cognizant of the fact that decision in the matter may not eventually benefit either side, as no time is left to go to re-poll. However, parties insist that since next elections are right at the corner, it would be just and proper to resolve the controversy one way or the other, before the parties go to next general election.

3. Facts in perspective are necessary to appreciate the contentions of the learned counsel for the parties. Appellant Khawaja Saad Rafique and the runner--up candidate Hamid Khan along with other candidates contested the General Elections, 2013 from NA-125, Lahore-VIII, held on 11.5.2013 the Appellant herein, having secured 1,23,416 votes as against the election petitioner (Mr. Hamid Khan)/Respondent No.1 herein, who bagged 84,495 votes. Appellant by lead of 38,921 votes was declared and notified as the returned candidate.

4. Respondent No.1 herein, being runner-up, challenged the election, essentially on the grounds of corrupt and illegal practice allegedly committed by the returned candidate, other candidates running from Provincial Constituencies of the same beat, his election staff and personnel responsible to conduct elections, who allegedly violated Representation of the Peoples Act 1976 (hereinaftr abbreviated as RoPA) and rules framed thereunder, which according to the learned counsel for the Respondent No.1 had materially affected the result of the election.

5. Election Petition was contested both on technical/legal grounds, as well as on merits. Out of the pleadings of the parties, following issues were struck down: Issues

1. Whether the election petition has been drawn up in utter disregard of the provisions of Sections 54, 55 read with Section 63 of the Representation of the People Act, 1976, and Notification No.F-1 (685-Coord) 16.03:1985, if so, its effect? OPR 1.

2. Whether the documents /annexure relied upon by the petitioner have not been verified in accordance with law, if so, its effect? OPR 1.

3. Whether the petitioner failed to dispatch copies of the election petition and its annexures to all the contesting candidates under registered cover in terms of section 54 (b) ibid and clause 1 of above said Notification, if so, its effect? OPR 1,

4. Whether the petitioner failed to put forward specific instances of malpractices and instead introduced vague and general allegations, if so its effects? OPR 1.

5. Whether the election of the returned candidate has been procured or induced by corrupt or illegal practice? OPP.

6. Whether any corrupt or illegal ,practice has been committed by the returned candidate, or his Election Agent, or by any other person with the connivance of the candidate or his Election Agent? OPP

7. Whether the result of the election has been materially affected for reason of failure of any person to comply with the provisions of the Act or the Rules or by prevalence of extensive corrupt or illegal practice at the election? OPP'

8. If issues 5 to 7, or any of them, is proved in affirmative, then to what relief the petitioner will be entitled to? OPP

6. From the record it appears that initially application for verification of the entire electoral record of the subject constituency, filed by the Election Petitioner was declined vide order date 7.11.2013 (CMA No.2507/15 @ 1452-1459) observing in Para 6 thereof; " .that until and unless the allegation of voting through impersonation or other fraudulent means setup in the Election Petition is substantiated with evidence at trial; no order for or against the request for comparison of thumb impression can be passed because contents of Election Petition cannot be equated with legal evidence and it is the legal evidence only, which provides a legal basis for passing a legal order." From the record it appears that the Application for verification of entire voting record of NA.125 from Electronic database of NADRA was dismissed through detail order dated 25.2.2014 (CMA No.2507/15 @ pages 1468, 1472 Vol. IX) observing in para 8 at page 1471 that "The best option in the circumstances would be to let the petitioner's evidence concluded and if instances of impersonation are apparent from such evidence the petitioner may make fresh request for comparison by physical persons having reliable and sufficient expertise in the science of Finger Print" in Para 9 of the said order it was concluded that "Moreover, before conclusion of Petitioner's evidence such exercise would be premature, as allegation of facts are to be established through primary evidence and, surely, expert evidence can only corroborate primary evidence and not to substitute itself".

7. Consequently, Election petitioner, in support of his case examined his Election Agent, Abdul Latif Hanjra as PW-1, (page 12-13 CMA 2527/15 Vol-l) Chaudhry Mehboobul Hassan, Advocate as PW-2, both on 15.3.2014 Shamimur Rehman, Advocate PW.3, Ms. Zainab Lodhi, Polling Agent at PS-98 as PW-4, Rashid Ahmed Khan, Polling Agent at PS-120 PW-5, Ms. Neelam Irshad Sheikh, Polling Agent at PS-06 as PW-6, Begum Tasneem Saadat, Polling Agent at PS-6 as PW-7, Mrs. Iram Akmal, Polling Agent at PS-111 as PW.8 Shoaib Nabi, Polling Agent at PS 110 as PW.9 Dowood Tanveer, Polling Agent at PS-107 PW-10, Mukarram at PS-05 as PW-11 all on 29.3.14. Election Petitioner, Mr. Hamid Khan, was examined on 12.04.2014 as PW-12, (CMA 2507/15 part 1-page 88-95).

8. At the motion of Election petitioner, on 9.5.2014 evidence of official witnesses namely Mrs. Sameera Kousar, P.O at PS 146, was recorded as TW-1, (page 528, CMA 2507/15) Mahammad Javaid Ali, P.O. at PS-145, as TW-2 (page 530; CMA 2507/15) and Mr. Nazir Ahmed Ganjana, the then DRO, Lahore, (page 543 CMA 2507/15) as TW-3. On 17.5:14 evidence of Khalid Mehmood Bhatti, RO for NA 125 as TW-4 (page 545 CMA 2507/15) was recorded. On 28.5.2014 evidence of Justice (R) Riaz Kayani, Member, Election Commission (P) Pakistan, was recorded as TW-5 (pages 551-561 CMA 2507/15, Vol.IV), evidence of Mr. Ishtaq Ahmed Khan, Secretary, Election Commission of Pakistan was completed on 10.5.2014. as TW-6 (pages 562-571 CMA 2507/15).

9. After concluding his evidence, Election petitioner closed his side on 21.6.2014. He made another application for the "examination of entire voting record of NA-125 including CNIC numbers and thumb marks on all the counterfoils," which application was partly allowed vide order 26.6.2014 CMA No. 2507/15 @ 1488-1496, observing that "The Petitioner and his Election Agents have raised a number of complaints against various Presiding Officers and conduct of police at such polling station. However, since limited number of polling agents have appeared in witness box, and no other voter with a grievance, and merely pleadings in the election petition cannot be accepted as substitute of evidence for carrying out the aforesaid exercise of electoral forensic, so in view of aforesaid examination I accept the petitioners' applications partially in following terms." Learned Tribunal then proceeded to appointed three Commissioners, a) One a retired Judge. b) Second, a Technical Commission, having expertise in finger print forensic, to forensically examine marked electoral rolls of seven (7) Polling Stations namely 5, 6, 98, 107, 110, 111 and

120. After receipt of the report of two above referred Commissions, and c). Third Commissioner was proposed to be a Professional from NADRA. The terms of reference for the first Commissioner was set down in paragraph 8(b) (i) to (viii) of the sold order.

10. On 12.7.14. Shaikh Muhammad Tareef, former District and Sessions Judge, was appointed as First Commissioner. Learned Tribunal on 19.7.2014 appointed Dr. Amir Ali Hussain Khan, Project Director NFSA, a Forensic Expert as Second Commissioner for the examination of record of noted seven polling stations of NA-125.

11. First Commissioner, Shaikh Muhammad Tareef, completed the exercise, his report dated 22.9.2014 along with annexures was placed on record as EX-C-1 (CMA No.1904/18 @ 1-159). He was examined on 27.9.2014 as CW-1. Out of 265 Polling Stations in the NA-125, Lahore he received 432 Polling bags which also included bags for the Provincial Assembly. His report was found ambiguous. On the same day, record of five Polling Stations (PS 5, 6, 98, 107 and 110) was forwarded for examination by the Second Technical Commissioner, Dr. Amir Ali Hussain Khan, Project Director, NFSA.

12. Dr. Amir Hussain Khan, Second Technical Commissioner was firstly examined as Tribunal's witness TW-7 on 20.12-2014 (CMA 2507/15 @ 576-577), who produced his report as Ex- TW-7/A in respect of P5-05, 06, 98, 107 and 110 (CMA No. 2507/15 @ 578-798 Vol. V).

13. Dr. Amir Ali Hussain Khan, Project Director, NFSA Islamabad, as Second Technical Commissioner, was examined for the second time on 21.2.2015 as TW-9 (CMA 2507/15 @ 924-925 VoL. VI), he produced his report in respect of two Polling Stations Nos.110 and 111 as TW-9/A (@ 927-928) summary of the opinion/finding is as follows: "The summery of the opinion/findings of the commission is as follows: PS-110 Male Block Code Comparable Thumb Impressions Not comparable Thumb impressioils Total Thumb Impressions 188110401 63 36 99 188110402 178 171 349 188110403 71 104 175 188110404 63 72 135 188110405 83 97 181 Total 459 480 939 The opinion/findings of Counterfoils of PS-110 has already been given to Election Tribunal vide report No.03A0008, Letter No.10/08/2014-NFSA-827 dated 13.11.2014. PS-111 Female Block Code Comparable Thumb Impressions Not comparable Thumb Impressions Total Thumb impression 188110401 35 55 .)-.) 90 309 188110402 64 245 188110403 9 138 147 188110404 4 84 88 188110405 46 104 150 784 Total 158 626 Note: 1. "Comparable" means having enough minutia points and fingerprint pattern for opinion to be identical or otherwise. 2. "Not Comparable" means do not having enough minutia points for opinion to be identical or otherwise.

3. The opinion/result is based on the available facility by manual examination."

14. Mr. Ghazali Zahid, Director, NADRA was also appointed as the Third Commissioner vide order dated 27.9.2014 for analysis and to carry out CNIC verification on electoral material of said Polling Stations.

15. Mr. Ghazali Zahid, Director, National Data Base, NADRA, Third Commission was firstly examined on 20.12.2014 as TW-B (page 799 CMA 2507/15 Vol. VI) on 20.12.14. He produced report in respect ol five Polling Stations, (PS Nos..5, 6, 98, 107,110) as EX-TW-8. Summary of his report is as follows (@ page 807): "Summary: S.No. Description Counterfoils Electoral Roll

1. Electio n Material of NA-125 Received from Election Tribunal. 2,542 1,548

2. Invalid NIC number mentioned on used counterfoils. 125 0

3. Duplicate Votes on used countefoils. 6 O

4. Category # 1: Counterfoild comparable but Electoral Roll is not comparable (CF=352, ER=0 (Decided by Commisison # 2) a. Fingerprints successfully authenticated. 1,254 0 b. Fingerprints failed authentication. 14 0 c. BAD Quality Thumb Impressions. 84 0

5. Category # 2: Electoral Roll comparable but counterfoil is not comparable (CF = 0, ER =489) (by Commision # 2). a. No Thumb Impressions on Photo Electoral Roll. 0 10 b. Invalid Silsala Number. 0 2 c. Fingerprints Successfully Authenticated. 0 453 d. Fingerprints failed authentications. 0 0 e. BAD Qaualifyt Thumb Impressions. 0 26

6. Category # 3: Counterfoils and Electoral Roll both are comparable ((CE = 1059, ER = 1059) (Decided by Commission # 2). a. Fingerprint Authenticate don Couterfoil but no thum impression on Photo Electoral Roll. 1 1 b. Fingerprints Successfully Authenticated on Both Counterfoil & Electoral Roll. 978 978 c. Fingerprints Authenticated on Electoral Roll but Couinterfoil Is not readable. 58 58 d. Fingerprints Authenticated on counerfoils but Electoral Roll Is not readable. 17 17 e. Fingerprints Failed authentication. 0 0 f. BAD Quality Thumb Impressions on Countefois & Electoral roll. 5 5

16. Mr. Ghazali Zahid, was examined second time on 28.2.2015 as TW-10 (page 929 CMA 2507/15 Vol. VI), when later electoral material for two P.S 110 and 111 was retrieved and examined by him, he produced report in respect of said two Polling stations as Ex. TW-10/A, Summary of report of said two Polling Stations 110 and 111 reads as follows: "Summary: S.No. Description (ER) (PS-110) (ER) (PS-111) Total 617 603 1 Electoral Material of NA-125 Received from Election Tribunal. 459 158 155 2 Fingerprints Successfully Authenticated. 448 3 Fingerprints failed Authentication 0 0 0

4. Bad Quality thumb Impressions 11 3 14 17 From perusal of two summaries of in all seven Polling Stations (PS-5, 6, 98, 107, 110, 111 and 120) EX-TW-8), and Ex.10-A as reproduced above, in respect of which evidence of corrupt and illegal practice and of impropriety was led, shows that out of total 2542 counterfoils only on 125 counterfoils invalid CNIC numbers were found (which is merely 4.9%) and total 6 duplicate CNIC were detected which when looked at the totality of vote cast and difference between the two rival candidates is hardly of any substantial significance.

18. None of the reports of the Commissioners, were objected to nor, any of the Commissioner was cross-examined by the Election Petitioner/respondent No.1 herein, though Appellant herein filed objections and so also cross-examined the Commissioners.

19. On 30.3.2015, Mr. Saad Rafique, Appellant herein examined himself as RW-1, (CMA 2507/15 @ 1299-1306) and produced Mian Naseer Ahmed as RW-2, and on 4.4.2015 examined Yasin Sohail as RW-3.

20. On 10.3.2015, learned Election Tribunal, decided three applications filed by the election Petitioner i) for verification of entire record of NA-125, and comparison of: thumb marks, ii) for production of entire record and letters to and from Election Commission of Pakistan, DRO, and iii) for direction to Election Commission for examination of polling bags; Learned Tribunal in para 10 thereof; concluded that "report of the first commission deficient in view of the aspects entrusted to him for reply vide order dated 26.6.2014." The Election Tribunal in para-11 concluded and passed the following orders: "Keeping in view the time to be consumed in such exercise again, as well as incurring valuable expenditure afresh, I would like to summon polling bags of 10 polling stations; 5 of each party, to be selected either by consensus of parties, or if there is no consensus, by the Tribunal itself, preferably from polling stations where each party bagged the highest votes. Such bags would be examined by the Tribunal in presence of parties/ counsel, in view of original reference to the Commission dated 26.06,2014 and examination report of such inspection would become part of record."

21. Learned Election Tribunal pursuant to its order dated 13.3.2015 selected following 10 polling stations for examination of record by itself; five polling stations wherefrom Khawaja Saad Rafique succeeded with a big margin and other five polling stations wherefrom Mr. Hamid Khan, the Appellant herein secured highest vote: Polling Stations Hamid Khan. Khawaja Saad Rafique Nos. 30 180 942 32 147 954 46 842 199 ` 98 802 228 112 216 898 120 161 728 191 267 578 193 848 228 194 824 154 195 1220 301

22. Out of above ten Polling Stations PS.98 and PS.120 were already forensically examined. It may further be noted that Rasheed Ahmed, Polling Agent of the Election Petitioner at PS 120, appeared as PW-5, who came forward to depose in respect of corrupt and illegal practice allegedly committed in PS 120, his evidence was discarded by the learned Election Tribunal as noted in Para-45 of the impugned Final Decision. Likewise evidence of one of the two Polling Agents in respect of PS-6, namely Begum, Tasneem (PW 7), was discarded as discussed in paragraph 49 of the Impugned Decision.

23. On examination of record of the above noted 10 (ten) polling stations for NA-125 learned Tribunal concluded (CMA 2507/15 at pages 932 to 956 Vol.VI) "This Tribunal has recorded visual finding pertaining to examination of available record of selected polling stations, Since the case has entered into final round, and trial is likely be concluded shortly, so this Tribunal finds, no legal or factual necessity to record finding or deduction subsequent to inspection of such record. On all martial aspects, the parties would be heard, along with merits of the main case, before the final decision".

24. Election Tribunal, after hearing learned counsel for the parties, recorded finding on legal issues Nos.1 and 2 together, whereby it was concluded in para-26 thereof "as such these objections being devoid of substance are repelled, and issues Nos.1 and 2 are decided in negative". Issue No.3 was "decided in negative". Issue No.4 again as to the pleading and the form of the petition was decided in negative.

25. Issues Nos.5 and 6 being material (

5. Whether the election of the returned candidate has been procured or induced by corrupt or illegal practice? OPP and

6. Whether any corrupt or illegal practice has been committed by the returned candidate, or his Election Agent, or by any other person with the connivance of the candidate or his Election Agent? OPP), Learned Tribunal recorded extensive arguments and gave detail finding on much contested issues finding on both the issue runs from paragraphs 29 to 110 of the impugned decision, the learned Tribunal thread-bare discussed entire evidence adduced by the parties. Summary of allegation raised by the Election Petitioner/Respondent No.1 was encapsulated in paragraph 30 (1 to xiv) and Summary of illegalities and irregularities as claimed by main Election Agent Abdul Latif Hanjra (PW-1) is summarized in Para 31 (i) to (ix) raising all conceivable allegations, which are mere repetition of allegation made by the Election Petitioner in his pleadings and amplified in his deposition. Each of the substanotive allegations were independently examined in paragraphs-85 to 110 of the impugned decision and discarded, final conclusion on issues Nos.5 and 6 was drawn in paragraph 110 of the impugned decision as follows: "

110. The pleas of 100% voting, go slow policy, taking over polling stations by respondent No.1, tampering of ballot boxes etc. have been discussed above which could not be established. In view of all the aforesaid circumstances and the evidence examined, it is held that the petitioner failed to discharge onus of either of these issues, which are hereby decided in negative.

26. Coming to brass task issue No.7 "whether the result of the election has been materially affected for reason of the failure of any person to comply with the provisions of the RoPA, 1976 or the rulcs or by prevalence of extensive corrupt or illegal practice at the election." Learned Election Tribunal summing up the finding on said issue in paras-147 to 149 held that election has been materially affected and thus issue was decided in affirmative:

147. It is to be recalled that on the basis of evidence produced by the petitioner, only 7 polling stations were selected for forensic analysis. Complete record of all the 7 polling stations was however not found, and the available, record was examined by the Second and Third Commissions. It appears that over 50% of thumb impressions examined by the Second Commission, were not found technically comparable. Reasons could be accidental or intentional, or partly accidental and partly intentional, but no relevant evidence is available on record for detemination of causes of so much bad thumb impressions on counterfoils and electoral rolls. It is also to be noticed that taking healthy thumb impressions for subsequent forensic analysis, is a skilled job. Polling personnel selected from various civil departments, having no proficiency in taking thumb impressions, may not be blamed for such neglect, especially when they had very short time for each voter and they had to take hundreds of thumb impressions in limited polling time. It would be appropriate that in future, instead of ink impressions, digital thumb impressions be recorded, possibly linking the exercise with electronic voting. However, some instances of fake voting and double voting were also indicated in such reports by the third commission.

148. I may conclude that the R.O. failed to perform his duty by not preparing list of polling personnel himself, for not getting the same approved at least 15 days before the polls, by making changes in the list of polling personnel which was used to appointments of staff just a few days before the polls and without permission of the ECP, by not providing correct electoral rolls at P.S. 145, 146 for two booths and resulting into depriving voters of such booths in a large number, by receiving the statements of counts from Presiding Officers without their signatures and thumb impressions, by preparing the consolidated statement (final result) without opening the polling bags and without scrutiny of ballot papers excluded from count as well as the challenged votes, and by consigning to the Treasury incomplete polling bags which even lacked ballot papers, counterfoils and electoral rolls at some stations. I am also convinced that Presiding Officers generally were negligent in due performance of their duties and even statements of counts were not prepared in accordance with laws and ballot papers were put into polling bags without sealing on envelops and by mixing records of national and provincial constituencies.

149. The Returning Officer also acted unlawfully by refusing the opening of polling bags for examination of excluded ballot papers and challenged ballot papers and also, he demonstrated no responsibility in selection of polling personnel, rather he has conceded that he had no role in such exercise and details of polling personnel were prepared by Election Cell in the Office of the District Returning Officer and such data was just fed into computer. All these facts and reports of the Commissions and forensic experts lead me to the conclusion that the Returning Officer and the polling staff failed to comply with the provisions of the Representation of the People Act and all the rules and guidelines provided them for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold that to the satisfaction of the Tribunal the election has been materially affected, and thus this issue is decided in affirmative".

27. Consequently, issue No.8 (if issues Nos.5 to 7 or any of them is proved in affirmative, then to what relief the petitioner will be entitled to? OPP), was also decided in affirmative. Election Petition was accepted and, the election for NA-125, Lahore VIII were declared to be void as a whole under section 67(1)(d) read with section 70 of the Representation of the People Act, 1976.

28. Khawaja Haris Ahmad, learned Sr. ASC oppearing on behalf of the appellants has taken serious exception to the finding and conclusion drawn by the learned Election Tribunal on issues Nos. 7 and

8. It was urged that out of the total 265 Polling Stations in NA-125, Lahore-VIII during trial only seven Polling Stations (i.e. 2.64%) were selected for examination by no less than three commissioners, including Technical and Forensic Analysis by experts, no substantive discrepancy was found to draw conclusion that results of the election were materially affected. Secondly it was urged that record of ten polling stations was also scrutinized by the learned Election Tribunal itself and it cannot be said that any discrepancy of the nature or magnitude surfaced that could lead to draw a conclusion that the result of election was "materially affected". It was argued that difference of about 38921-votes is enormous and minor discrepancy of even couple hundreds of vote does not affect the election result as observed by the learned Election Tribunal in para-149 reproduced above.

29. It was further argued that learned Election Tribunal (in para 149) was influenced by the arguments of the election petitioner that the election staff was changed in violation of provision of section 9(2) of RoPA. Khawaja Haris, learned ASC for the appellants contended that the election staff was changed at the behest of the election petitioner, no exception to such course adopted at the behest of Election Petitioner could be taken. Learned ASC for the appellants has drawn our attention to the deposition of the official witness District Returning Officer who appeared as TW-3, (2507/15 @ 543-544 Vol. IV) in his cross-examination admitted that "Petitioner had come to me 3-4 days prior to the polling day along with an application, it is correct that the Petitioner had requested that Polling Personnel not to be taken from LDA and PHA ." Volunteered on such request we had relieved PO's from LDA, PHA, TEPA, WASA. DRO categorically deposed "I had not received any written complaint about rigging or misconduct on the polling day about NA-125, volunteers I also had not received any oral complaint." It was argued by Khawaja Hairs, ASC for appellants that change of the Presiding Officer had no effect on the merits of the results though particularly there is no adverse finding recorded by the learned Election Tribunal, it was therefore, argued that if at all total votes impact between the appellant and the runner-up is barely 1223 votes and if these votes are even given to the appellant then the difference of over 38,000 votes cannot be bridged. It was further urged that much arguments have been raised on wrong noting and questioning the veracity of Form-14 and Form

16. It is urged that issue as to the missing Form-14 was neither raised in election petition nor such case was put up to the Returning Officer who appeared as TW-4 therefore, if at all, conclusion drawn by the learned Election Tribunal is based on assumption and supposition. No evidence was led by the Election appellant as to any illegal practice that may form basis of "materially affect" the result within the contemplation of section 67(1)(d) read with section 70 of the RoPA, 1976.

30. Mian Muhammad Hussain, learned ASC appearing on behalf of the respondents with vehemence supported the impugned judgment. According to him the consolidated counts of the result as contained in Form-16 reflects the result given by the Presiding Officer in Form-14; which is mandated in terms of section 38 of the RoPA, 1976. It was argued that the signature of the Presiding Officer on Form-14 was missing which has seriously adverse impact on the final result of the election. It was next contended that 19 candidates participated in the election, name of the most of these candidates were not contained in Form-14 as mandated under section 38 of the RoPA, 1976 and such defect is not curable. According to the learned counsel there is a discrepancy in total number of votes recorded as per Form-14 and Form-16 in 40 polling stations and difference in votes is 3031, which has also materially affected the result. It was urged that the result is maneuvered and obtained in connivance with the Presiding Officer and other Staff of the Election Commission who were entrusted to hold free and fair elections, which objective as mandated by the Constitution, were not adhered to. Learned counsel for the respondents has filed large number of tabulated statements to show each and every discrepancy in Form-14 and Form-16.

31. We appreciate that Mian Muhammad Hussain has very ably put forth his case and took us through cumbersome record meticulously. Elections of NA-125 were set at naught by the learned Election Tribunal inter-alia finding fault with the Returning Officer, Khalid Mehmood Bhatti, examined as Tribunal Witness TW-4. Analyzing paragraphs 148 and 149, of the impugned decision of the learned Tribunal it appears that lapses/shortcoming that were identified to annul the election, are as follows: a) failed to perform his duty by not preparing list of polling personnel himself, for not getting the same approved at least 15 days before the polls, by making changes in the list of polling personnel which was used to appointments of staff, just a few days before the polls and without permission of the ECP: b) by not providing correct electoral rolls at P.S. 145, 146 for two booths and resulting into depriving voters of such booths in a large number, c). by receiving the statements of counts from Presiding Officers without their signatures and thumb impressions, d) by preparing the consolidated statement (final result) without opening the polling bags and without scrutiny of ballot papers excluded from count as well as the challenged votes, and e) by consigning to the Treasury incomplete polling bags which even lacked ballot papers, counterfoils and electoral rolls at some stations. I am also convinced that f) Presiding Officers generally were negligent in due performance of their duties and even statements of counts were not prepared in accordance with laws and ballot papers were put into polling bags without sealing on envelops and by mixing records of national and provincial constituencies. g) The Returning Officer also acted unlawfully by refusing the opening of polling bags for examination of excluded ballot papers and challenged ballot papers and h) also, he demonstrated no responsibility in selection of polling personnel, rather he has conceded that he had no role in such exercise and details of polling personnel were prepared by Election Cell in the Office of the District Returning Officer and such data was just fed into computer. " .. All these facts and reports of the Commissions and forensic experts lead me to the conclusion that the Returning Officer and the polling staff failed to comply with the provisions of Representation of the People Act and all the rules and guidelines provided them for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold that to the satisfaction of the Tribunal the election has been materially affected, and thus this issue is decided in affirmative".

32. From the record and examination of the Election Petition, it is noted that the Election Petitioner in Paragraph 6 has detailed the corrupt and illegal practice specifically in sub-paras j, k, l, m, n, o, p and q and such is attributed on the strength of information gathered from his Polling Agents of seven (7) Polling Stations Nos. 102, 190, 5, 191, 6, 98, and 120, however Polling Agents only from PS Nos. 5, 6, 98 and 120 were examined, evidence of Polling Agent Rashid Ahmed Khan (PW-5) who deposed in respect of PS 120 was discarded by the Election Tribunal beside Polling Agents from PS 111 (PW-8), 110 (PW-9) and 107 (PW-10), admitted in cross-examination that they "had not made any complaint to any officer or authority about the allegation of corrupt did not make any allegation contained in my Affidavit" (Pages 49, 54, CMA 2507/15) in said Polling Stations. No voters from entire constituency was examined to substantiate the allegation of corrupt and illegal practice.

33. Assumption of the learned Election Tribunal that correct electoral rolls as PS 145 and 146 for two booths were not provided that deprived voter of such booths in large number, is concerned. Such assumption is clearly dispelled by the observation of the learned Tribunal contained in paragraph 66, while discussing evidence of DRO and RO "Presiding Officer of PS 145 informed him at about 8.30-AM that the list of PS 145 and 146 were interchanged, as both the polling station were situated in the same premises, whereupon he sent Mr. Tahir, ARO along with electoral list to PS 145 and 146, which were duly delivered and polling had started," In Paragraph 97 of the impugned Decision it was concluded that "No Polling Officer was summoned to confront the allegation of stoppage of polls forcibly at 05:00 PM disfranchising voters or non provision of copy of statement of counts to Polling Agents" Such facts were further affirmed. Even vote counts at PS 146 as against 1147 female votes counts only 330 votes were casted and in PS No.145 out of 1843 only 267 votes were casted, which is not a figure that could be said to have substantially affected the result. And as held in paragraph 105 of the impugned decision "no malicious association between any member of the Election Commission of Pakistan, or Secretary with returned candidate could be established." No voters as noted above, from said PS 145 or 146 was examined to substantiate that any voter was denied right to vote, merely because turn out in the said polling station was less would not be sufficient to impute corrupt and or illegal practice warranting annulment of result.

34. The observation of the learned Election Tribunal, as contained in Paragraph 149 of the impugned decision to, unseat the returned candidate is based on general assumptions sans any tangible evidence. Neither any Polling Agents nor, any Presiding Officer or voter of said Polling Stations as mentioned by the Election Petitioner in his pleading and or amplified in his deposition were examined. Election Petitioner who examined himself as PW-12 is invariably in respect of large number of Polling Stations mentioned by him in his affidavit in evidence, in cross-examination at several places candidly admitted that "I had not made no written complaint to Presiding Officers during such visits... it was further admitted that "it is correct that my polling agents had not made complaints in writing to Mr. Justice Riaz Kiani, volunteered they made complaints verbally" His entire evidence of corrupt and illegal practice is based on hearsay of his Polling Agents, but as noted by the learned Election Tribunal he only chose to put forth only 07 Polling Agents as his witness and out of seven, evidence of one of the Polling Agent, Polling Agent Rashid Ahmed Khan (PW-5) who deposed in respect of PS 120 was discarded by the Election Tribunal. Likewise evidence of Begum Tasneem Sualat (PW-7) who came forward to depose in respect of PS 6, her evidence was not given any credence as noted in Paragraph 49, of the Final Decision impugned herein.

35. Assumption of the learned Election Tribunsl that correct electoral rolls as PS 145 and 146 for two booths was not provided that deprived voter of such booths in large number, is concerned. Such assumption is clearly dispelled by the observation of the learned Tribunal itself as contained in paragraph 66, while discussing evidence of DRO and RO "Presiding Officer of PS 145 informed him at about 8.30 AM that the list of PS 145 ond 146 were interchanged, as both the polling station were situated in the same premises, whereupon he sent Mr. Tahir ARO along with electoral list to PS 145 and 146, which were duly delivered and polling had started." In Paragraph 97 of the impugned Decision it was concluded that "No Polling Officer was summoned to confront the allegation of stoppage of polls forcibly at 5PM disfranchising voters or non-provision of copy of statement of counts to Polling Agents". Even vote counts at PS 146 as against 1147 female votes counts only 330 votes were casted and in PS No.145 out of 1843 only 267 votes were casted, which is not a figure that could be said to have substantially affected the result. And as held in paragraph 105 of the impugned decision "no malicious association between any member of the Election Commission of Pakistan, or Secretary with returned candidate could be established." Even the examination and scrutiny of the ten (10) polling stations as carried out by the learned Election Tribunal as discussed in para 131 shows that in all 1064 or thereabout entries had not contained thumb mark of the voters, though in para 132 of the impugned decision it was concluded that "No evidence though is available on record that the Returned Candidate or any other candidate was responsible for the missing record, or even the invalid statement of count. We also have no evidence on record about any conspiracy or collusion or mala fide on the part of DRO, the RO the polling personnel and Returned Candidate. No proof of illegal gratification or undue influence is received against any member of the polling personnel the RO or the DRO." However, learned Tribunal observed "serious and extensive lapse and negligence were evident at every stage of conduct of election" which observation is unsubstantiated; none of the lapse during the course and or conduct of election were brought on record. Whatever lapse noted was post-election in preservation of the record as highlighted in paras 132 to 137 of the impugned decision.

36. The observation of the learned Election Tribunal as contained in Paragraph 149 of the impugned that the "Returning Officer acted unlawfully by refusing the opening of the polling bags for examination of excluded ballot papers and challenged ballot papers" and such failure bags to decision to unseat the returned candidate, is based on general assumptions sans material evidence to substantiate such bald assumption. Election Petitioner who examined himself as PW-12 in respect of invariably all Polling Stations mentioned by him in his affidavit in evidence, in cross-examination he candidly at several places admitted that "I had not made no written complaint to Presiding Officers during such visits... it was further admitted that "It is correct that my polling agents had not made complaints in writing to Mr. Justice Riaz Kiani volunteered they made complaints verbally." It may be observed that the election Petitioner made allegations of illegal and corrupt practice in paragraph 6 of his election Petition in respect of 80 plus Polling Stations on the basis of purported complaints from his Polling Agents. His entire evidence of corrupt and illegal practice is based on hearsay of his Polling Agents, but as noted by the learned Election Tribunal he only chose to put forth only 8 Polling Agents as his witness and out of eight Polling Agents, evidence of two Polling Agent namely Rashid Ahmed Khan (PW-5) in respect of PS 120 was discarded by the Election Tribunal, evidence of another Polling Agent namely Begum Tasneem Sualat (PW-7) one of the two Polling Agents who came forward to depose in respect of PS-6, her evidence was not creditworthy as noted in Paragraph 49 of the impugned Final Decision.

37. None of the Polling Agents (only eight produced out of 265 Polling Stations, of which two were discarded) made any complaint in writing either to the Election Petitioner as admitted by him in his cross-examination, nor to any Presiding Officer, District Returning Officer and or Election Commissioner. Evidence of the Election Petitioner as regard corrupt and illegal Practice on the part of returned candidate was already threadbare discussed while deciding issues Nos. 5 and 6 and in paragraph 110 of the impugned Decision it was "held that the (Election) Petitioner failed to discharge onus of these issues, which are hereby decided in negative". Out of 265 Polling Stations, Election Petitioner raised allegation of corrupt and illegal practice at the hand of Returned Candidate and RO, DRO ARO and other polling staff, in respect of almost 80 plus Polling Stations whereas Polling Agents in respect of merely 6 Polling Stations (2.26%) were considered worthy of any credence, evidence. Polling Agent PW-5 in respect of PS 120 and PW-7 in respect of PS 6 was discarded by the learned Tribunal as noted in the preceding paragraphs.

38. As regard, discrepancy of vote counts in Form 14 and final Counting is concerned, as claimed by the Election Petitioner is mirrored as follows: Form 14 Form 16 Saad Rafiq 1,23,097 1,23,416 Hamid Khan. 83,190 84,495 Difference/lead 39,907 38,921 There is variation of 893 votes, between vote counts as reflected in Form 14 and Form 16 respectively, whereas margin of victory of return candidate 38,921 per Form 16, a staggering lead and not merely couple of hundred, that may warrant annulment of election. It may be observed that in Form 16 vote count of Election Petitioner increased by 1305 votes whereas that of the returned candidate to 419 votes only. Position in respect of vote count of rejected votes as reflected in Forms 14 and 16 position is as follows: Rejected votes per Form 16 4199 Rejected Votes per Form 14 2709 Difference 1490

39. Whichever, figure is taken into consideration, it cannot be said that the difference is marginal and in case of recount possibility of reversal is insight. The allegation of corrupt and illegal practice or any lapse by the RO, DRO and or PO the course of performance of their duties were not substantiated through any tangible evidence, similar allegations as against the Returned Candidate/Petitioner herein were not established and so recorded while returning finding on issues Nos.5 and 6 in the impugned Final Decision. No evidence was led to suhstantiate that as a consequence, result was materially affected which is sine qua non to attract the penal consequence of such is a result of such as could disturb the ultimate result or materially affect the ultimate outcome of the result. Even the learned Tribunal while attending to allegation of difference of votes count in statements contained in forms as alleged was dispelled and finding as arrived at in para 149 as to conduct of RO "refusing to opening the polling bags" was very well dispelled in para 122 which is reproduced as follows: "Now I may look at the difference in figures vis-a-vis statement of count and the consolidated statement prepared by the R.O. The R.O, has conceded that the Polling bags were not opened and invalid ballot papers were not examined and the final results were based on the figure recorded in statement of counts. I may start with the Preliminary Result Ex-PEE at page 450 prepared by R.O, which shows 19 candidates in contest, all having some votes to their credit. This document shows the number of Rejected Votes as

590. The Consolidated statement prepared by the R.O (pages 334) of report prepared by the Tribunal shows number of rejected votes as 4199. Firstly, if polling bags were not opened, and excluded votes were not examined, number of rejected votes in preliminary and consolidated result should be the same. Secondly until Returning Officer examines an excluded ballot paper and record his finding, either way such ballot paper cannot be considered as rejected or otherwise."

39. In order to examine allegation of rampant corrupt and illegal practice and robbing the mandate of the Election Petitioner, available counterfoil of NA-125 were sent to NADRA for verification to thumb impression with available electronic Database, such exercise was ordered to be carried out without prejudice to the rights of both the parties vide order dated 26.1.2016.

40. NADRA submitted its report dated 2.6.2016, summary of the findings is as follows: "Findings: Election Material not qualified for Fingerprint Verification 9. 7892 counterfoils did not qualify for fingerprint matching due to numerous reasons not falling under the purview of this analysis. It is pertinent to mention that all available information on the counterfoils was used to arrive at the identity of the voter and this includes the NIC and Voters Serial numbers mentioned on the counterfoils. Breakdown of such counterfoils is us follows: a. Invalid CNIC on Counterfoils There were 3,998 used counterfoils where identity of voter could not be established being invalid CNIC number mentioned on counterfoil. Sample of counterfoils having invalid NIC written on them are attached as Annex-A. b. CNIC not mentioned on Counterfoils There were 1,917 used counterfoils which do not have CNIC number mentioned. Sample of such counterfoils where CNIC was not written on them are attached as Annex-B. c. Out of Constituency Votes:, There were 184 used counterfoils belonging to voters which were not registered in this constituency (i.e. NA-125). Scanned images of such used counterfoils attached as Annex-C. d. Duplicate Voters on Counterfoils. There were 398 NIC numbers mentioned on 797 counterfoils being more than once. This information was extracted from capturing NIC number written on used counterfoils. Sample scanned images of such counterfoils are attached as Annex-D. e, Counterfoils without fingerprints 996 used counterfoils were found without having fingerprints on them. Scanned images of such counterfoils are attached as Annex-E. Fingerprints of bad quality

10. Excluding not qualified 7,892 counterfoils, the remaining 206,242 election material was processed through AFIS. There were 149,139 used counterfoils which NADRA could not process through AFIS because of insufficient quality of fingerprints for the purpose of automated fingerprint comparison. However, CNIC number mentioned on such counterfoils having poor quality thumb impressions were valid CNICs.

11. Sample scanned images of used counterfoils having bad quality fingerprints are attached as Annex-F. Fingerprint successfully outhenticated

12. Out of remaining 57,103 fingerprints, a total of 57,098 counterfoils were authenticated by AFIS. This means that fingerprint affixed on counterfoil at the time of issuance of ballot paper correctly matched with fingerprint data of registered voter/citizen held with NADRA in Citizen Database.

13. The above includes such 3,189 counterfoils, detail attached as Annex-G, where the CNIC number was derived in conjunction with voter serial number mentioned over counterfoil.

14. Detailed report containing authenticated fingerprints/voters is attached as Annex-H. Fingerprints failing authentication

15. A total of 5 votes failed authentication. This means someone else voted against the NIC number mentioned on the used counterfoil. Scanned Images of fingerprints failing authentication is attached as Annex-I."

41. From above report, it could be seen that even if total number of counterfoils for invalid CNIC, for lack of CNIC number, out of constituency votes duplicate votes on counterfoil, counterfoils, without fingerprints as detailed in para 9(a) to (e) of the report noted above total vote counts which had not qualified for fingerprint matching for numerous reasons was found to be 7892 which is far less than the total lead of 38921 votes of the returned candidate in like situation in the case of Usman Dar and others v. Khawja Muhammad Asif and other (2017 SCMR 292) in paras 24 and 25 at page 305, it was held as follows: 'We therefore find that even if there may have been negligence or inefficiency on the part of the election staff, such acts/omissions did not occur on account of any act of respondent No.1. Further the same neither materially affected the result of the election not substantially contributed to the appellant's loss. It is settled law that the election petitioner who alleges the use of illegal or corrupt practices or rigging has to establish his case on the same standard of proof as a criminal case i.e. beyond reasonable doubt. Reference may be made to Muhammad Saeed v. Election Petitions Tribunal, West Pakistan and others (PLD .1957 SC (Pak) 91), wherein it was held that "A charge of a corrupt practice is a quasi-criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence on the principles applicable to the trial of criminal charges. One such principle is that in case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person".

25. As already discussed, the quality and nature of evidence produced before the Tribunal fell substantially short of the requirements consistently set by this court in matters of this nature."

42. In instant case as well appellant failed to demonstrate illegal or corrupt practice or negligence or inefficiency on the part of election staff of the magnitude that materially affected the result of the election.

43. Conclusion drawn by the learned Tribunal in para 149 based on the conduct of the Election personnel more particularly Returning Officers to arrive at a conclusion that they "failed to comply with the provisions of the Representation of the People Act and all the rules and guidelines provided them for the conduct of polls as well as extensive illegal practices prevailed throughout the constituency, which are more than enough to hold that to the satisfaction of the Tribunal the election has been materially affected, and thus this issue is decided in affirmative."

44. Only for the reasons, that certain lapse on the part of DRO, RO polling personnel came to light is not sufficient to discredit entire exercise of franchise, unless such lapse or violation of law could be, so rampant and of a nature that may materially affect the result of the election within the Contemplation of section 70 of the RoPA, 1976 or rules framed there under or not only shown but also established on record through cogent and tangible evidence. Change of some of polling personnel at the behest of the Election Petitioner (Ex-PG page 19 CMA 2507/15) as admitted and produced by Shamimur Rehman PW.3, is not shown how it. materially affected the result.

45. Prevalence of extensive corrupt or illegal practice per clause (b) of section 70 RoPA, within the contemplation of section 78 (corrupt practice) and section 83 (illegal practice) as assumed by the Tribunal while deciding issues Nos.5 and 6 in para 110 thus drawing, conclusion "that the petitioner failed to discharge onus of either of these issues, which are hereby decided in negative". Likewise, no evidence worthy of credence was led to draw conclusion that extensive illegal practice prevailed throughout the constituency, more particularly when only six (6) out of 265 Polling Agents were examined. No evidence in respect of rest 259 Polling Stations were led before the Tribunal to arrive at such a generic and sweeping conclusion. Accordingly, conclusion drawn by learned tribunal that the election has been materially affected is not substantiated from record, is accordingly set aside. Consequently, finding on issue No.8 in para 150 is uncalled for is set aside, resultantly, appeal is allowed and Election Petition No.194 of 2013 is dismissed. 43(sic). In view of the finding recorded in Civil Appeal No.369 of 2015, Appeals Nos.835 of 2015 and 885 of 2015 stand allowed adverse remarks made against Returning Officer, Khalid Mehmood Bhatti on para. 32 and para 149 of the Impurned Final Decision both dated 4.5.2015 of the learned Election Tribunal in Election Petitions Nos.194 of 2013 and 129 of 2013 respecetively are ordered to be deleted from the said decisions. Appeals stand allowed. MWA/S-29/S Appeals allowed.