2003 PLP 1224 (CLC)

3. Whether the results were correctly consolidated by the Returning Officer on 12-10-2002, particularly the votes shown to have secured by the respondent No.2 from Polling Station No.31 of the Constituency?

4. Whether the respondent No.2 had secured 377 votes from Polling Station No31, which the Returning Officer has failed to incorporate in Form XVI on 12-10-2002, if so its effect?

5. Whether the petitioner has secured 190 votes from Polling Station No.40, which the Returning Officer has failed to include in the consolidation statement in Form XVII?

6. Whether the respondent No.2 has secured 167 votes instead of 169 from Polling Station No.21 and same has been wrongly incorporated in the consolidation of results in Form XVII?

7. Whether the respondent No.2 has secured 22 votes instead of 28 from Polling Station No.57 as per the Consolidation Result mentioned in Form XVII?

8. Whether the Returning Officer had violated the provisions of section 39(4) of the Representation of the People Act, 1976, by avoiding to serve the petitioner before Consolidation of the Result? If so, its effect?

9. Whether the votes of the petitioner were spoiled/damaged deliberately by the Returning Officer and his staff in collusion with respondent No.2? If so, its effect?

10. Whether the Returning Officer has rigged the election by counting invalid /rejected votes polled in Polling Stations No.4, 5, 8, 9, 15, 16, 17, 18, 19, 21, 23, 30, 31, 32 and 33 in favour of the respondent No.2? If so, its effect?

11. Whether the Returning Officer has re-opened the Ballot Box without prior notice to the petitioner and manipulated the result sheet by adding wrong/incorrect figures of votes of the respondent No.2 in the Consolidated Statement in Form XVII?

12. What should the order be?

4. The, petitioner examined himself and was cross-examined at length by the learned counsel for respondent No.1. The petitioner in his evidence has produced complaint, consolidation of results and application for re-poll besides statements of count of different Polling Stations.

5. The respondent No.2, Syed Shakir Ali, examined himself and was cross-examined at length by the petitioner's counsel. He has produced Form XVII reflecting that he was declared as returned candidate. Besides results of Form XVII, the returned candidate has also produced documents which included application under section 39(6)(a) of the Representation of the People Act, 1976, addressed to the Returning Officer praying therein that the consolidated result be rectified by adding the correct number of votes of 377 which he has secured from Polling Station No.31 as according to him, in the consolidated results, he was wrongly shown to have secured only 3 votes instead of 377 votes. The respondent No.2 has also produced the statements of count of different Polling Stations signed by the Presiding Officer. After conclusion of the evidence produced by parties two applications, one under Order XVI rules 2 and 3 read with section 15, C.P.C. (C.M.A. No.3257 of 2002) and the other application under section 52(2), of the Peoples Representation Act, 1976 (C.M.A. No.3069 of 2002) were made by the petitioner. On 30-12-2002 both the applications were heard and by order dated 30-12-2002 the application under Order XVI rules 2 and 3 read with section 151, C.P.C. was dismissed, inter alia, on the ground that the petitioner has failed to bring on record any material warranting summoning of the official witnesses besides the fact that the application was made after the parties have concluded evidence, however, the application for re-count was allowed to the extent that the Joint Election Commissioner Sindh Karachi, Sindh, would scrutinize the ballot papers of Polling Stations Nos. 21, 31, 40, 57 and 59 of PS-112, Karach South (XIV) and shall re-count the votes in present of the contesting parties and or their representatives.

6. On 6-2-2002 the 're-counting' was carried out in compliance with the orders passed on 30-12-2002 and the report was submitted by the learned Joint Provincial Election Commissioner, Karachi, Sindh. The votes which were objected to by the parties before the learned Joint Election Commissioner which were kept in a separate envelope. I had examined these votes on 10-2-2003 and decided the issues of validity of these votes. On re-count the petitioner was found to have secured in all 10186 votes whereas the respondent No.2 has secured 10277 votes.

7. Khawaja Sharful Islam has made a further application after re?count praying therein that the re-count be ordered for the remaining Polling Stations of the constituency. This application was opposed by the learned counsel for the respondent No.2, inter alia, on the ground that the application has been made without any justification and is not maintainable in law.

8. Decision on the application C.M.A. No.584 of 2003 for re-count made by Mr. Khawaja Sharful Islam would amount to deciding the whole petition. Therefore, by consent of the learned counsel, I have heard the final arguments on the petition.

9. It has been argued by Mr. Khawaja Sharful Islam that statement made by the petitioner in his affidavit-in-evidence Exh.2, has not been challenged in cross-examination and, therefore, the contents of Exh.2 stand proved against the respondent No.2. He submitted that the petitioner was aggrieved on the election day by the rigging committed by the agents of the respondent No.2 in connivance with the Presiding Officers of different Polling Stations, which fact was reflected in the memo, of, petition as well as in the affidavit-in-evidence of the petitioner. It has been admitted by the petitioner in his evidence that during election time and immediately thereafter when the elections were over the petitioner did not lodge written complaint with any forum either for rigging or otherwise of the alleged corrupt practice committed by the agents of the respondent No.2 in connivance with the election authorities. Even the contents of the first complaint of the petitioner Exh.5 which is of 16-10-2002 does not disclose that the agents of the respondent No.2 had committed the alleged corrupt practice except that the conduct of Returning Officer was questioned that too was confined to the consolidation of results and nothing beyond. It is contended by the learned counsel for the petitioner that subsequent to the result of the re?count based on the reports of the Joint Election Commissioner substantiate that the rigging has taken place in the entire constituency and, therefore, the re-count of the remaining Polling Stations of the constituency must be undertaken. He relies upon the result of re-count undertaken by the election authorities pursuant to the order passed by this Tribunal on 30-12-2002.

10. Qazi Khalid Ali, Advocate for the respondent No.2, on the other hand, teas argued that no material has been placed on record by the petitioner, which could warrant re-count of votes of the entire constituency. He submitted that the petitioner, in law, was required to give details of particulars of the alleged corrupt practice failing which such petition is liable to be dismissed under the provisions of Representation of the People Act, 1976. He has relied upon the case of Sheela B. Charles v. Qaisar Ifraeem Soraya reported in 1996 SCMR 1455.

11. Qazi Khalid Ali submitted that a Returning Officer, in law has the power to correct and or rectify the mistakes crept in the results of elections if such mistake floats on the face of record. He submitted that the Returning Officer while consolidating the results had lawfully corrected the mistake by adding 377 votes from Polling Station No.31, which the respondent No.2 has secured, and were inadvertently shown as 3 votes while consolidating the results. He has relied upon an unreported judgment of a Division Bench of this Court passed in C.P. 1830 of 2000 where their lordships have held that the Returning Officer in law is authorized to correct and or rectify the mistake while consolidating results if such mistake floats on the face of the record.

12. I have heard both the learned counsel and have perused the record. The petitioner has examined himself and has not examined any other witness to substantiate the averments made in his petition as well as in his affidavit-in-evidence. The petitioner has chosen not to produce his polling agents whom he has nominated to look after his interest or any official of the election authority to prove those allegations. Moreover, under section 55 of the Representation of the People Act, 1976, a petitioner is required to plead precise statement of material facts with full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties, alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the, commission of such practice or act. The material facts in terms of section 55, which were required to be pleaded, are missing in the petition. The petitioner has neither pleaded in his petition nor in his affidavit-in-evidence, the instances of the alleged corrupt practice. The petitioner has failed to examine his polling agents who were present at the time of polling or any other person accompanying him during his visit to the Polling Stations to substantiate the alleged corrupt practice against the agents of the respondent No.2 or against the election authorities. The statement in regard to the alleged practice made in the petition as well as in the affidavit-in-evidence was of general nature and, therefore, such a statement on the face of it being general, could hardly be made a ground to declare an election void and or to unseat a returned candidate. The petitioner even has not examined any official of the election authorities against whom he has alleged `corrupt practice'.

13. After conclusion of evidence of the parties and report of re?count, no fresh ground was available to the petitioner's counsel, which could have warranted this Tribunal to order further re-counting of the votes of entire constituency. Mere difference of number in votes after re?count on my order, does not ipso facto be made a sufficient ground to order further re-count of the entire constituency. The order of re-count passed by me on 30-12-2002 was dependent upon the statement of results of the 'different Polling Stations which were produced and in which discrepancies were manifest. The material for passing order of re-count was sufficient to the extent of those Polling Stations but that does not by itself was sufficient for this Tribunal to pass further order of re-count when no further material of any nature has been placed before me. I, therefore, of the firm view that application for, further re-count of the remaining Polling Stations of the constituency was not justifiable, in law, being misconceived merits dismissal. The finings on Issues Nos.1 to 9 are already answered in my orders of re-count passed on 30-12-2002 and 10-2-2003 whereas Issue No.10 is decided in negative and Issue No. 11 requires no finding in view of my order passed on 10-2-2003.

14. I have already discussed that the petitioner has failed to discharge his burden to prove alleged commission of corrupt practices by failing to provide details of particulars in addition to the evidence/material to substantiate the alleged corrupt practices committed by the respondent No.2 and or by his agents in connivance with the election staff. The evidence required to prove corrupt practice must be restricted to the charges or instances mentioned in the petition and the particulars that each ingredient of corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial and that where the evidence is wholly circumstantial, the Tribunal before finding a corrupt practice proved must exclude all reasonable hypothesis which are consistent with the corrupt practice having not been committed. The Hon'ble Supreme Court in number of judgments including the case of Muhammad Saeed v. Election Petitions Tribunal reported in PLD 1957 SC (Pak.) 91 and in another case of Abdul Hafeez Khan v. Muhammad Tahir Khan Loni reported in 1999 SCMR 284, has propounded the above principle. Since there is no evidence produced by the petitioner to prove and or establish corrupt practice against the respondent No.2 or against the election authorities having failed to discharge the onus of corrupt practices before this Tribunal, I, therefore, dismiss this Election Petition with no orders as to costs. S.M.B./M-470/K???????????????????????????????????????????????????????????????????????????????? Petition dismissed.