2004 PLP 21 (YLR)

7. On the other hand, respondent No.1 examined himself only as Exh.5. He produced extract from the Manual of Instructions as Exh.5/1 and photocopy of voters final list pertaining to Circle No.5, Charge No.15 as Exh.5/1/1. Learned counsel for respondent No.1 closed his side on the same date viz. 10‑6‑2003.

8. I have heard the arguments advanced by Mr. Fazle Ghani, Advocate appearing on behalf of the petitioner and Mr. Shoa‑un‑Nabi, Advocate for respondent No. 1.

9. Learned counsel for the petitioner contended that the learned Returning Officer vide Notification No.DRO/1364/2002 dated 14‑9‑2002 wrongly included areas namely "Police Complex, Law College" and "Motor Vehicle Office, Saeedabad" in PS‑91, Karachi‑III although the same were falling within PS‑

90. In this respect he referred to Letter No.F.7(2)/2002‑PCO(G) dated 21‑10‑2002 issued by the Deputy Census Commissioner, Karachi wherein the area namely "Police Complex, Law College" and "Motor Vehicle Office, Saeedabad" have been declared as part of Charge No.15. He also referred to a Notification bearing No.F.10(116)/2002 dated 28‑6 2002 according to which Charge No.16 fell in PS‑91, Karachi‑III whereas Charge No. 15 fell in P‑90 Karachi‑II. Learned counsel further contended that according to Census, the area namely Hazara Colony, Gulshan‑e‑Ghazi, Block A & B is the part of Charge No. 15 which pertains to PS‑90, Karachi‑II but the same has wrongly been shown in Charge No.42 which pertains to PS‑91, Karachi‑III. He further contended that the Returning Officer wrongly issued the Certificate appended below the notification. He, therefore, argued that the provisions of section 8 of the Representation of the People Act and the guidelines mentioned in para 15(b) of the Manual of Instructions have been violated. In support of his contentions, he relied upon authorities reported in (i) PLD 1974 Note 93 at p. 143; AIR 1959 Assam 128 and AIR 1954 SC 513 (a).

10. Conversely, learned counsel for respondent No.1 contended that the petition is not maintainable, that the petitioner did not file any complaint or objection in respect of the issue in hand and participated in‑the elections, therefore, by his conduct he was estopped to raise such objection at this stage. It is further contended that the Election Commission invited objections from the general public in respect of delimitation and consequently vide notification dated 14‑9‑2002 included the voter's list of Charge No.42 which, inter alia, consisted‑of area namely Hazara Colony, Gulshan‑e‑Ghazi, Block A & B in PS‑91 to which also no objections were filed by the petitioner. According to respondent No.1, no violation of the Representation of the People Act, 1976 and the relevant rules was committed. He referred to a judgment dated 9‑6‑2003 pronounced in Election Petition No.145 of 2002 relating to PS‑90 and contended that in similar circumstances the petition was dismissed by another Tribunal.

11. In this petition it is an admitted position that Charge No. 15 falls within PS‑90 whereas Charge No. 16 falls within PS‑

91. It is also an admitted position that Charge No.42 falls in PS‑

91. The main controversy which needs to be resolved, revolves around the following two questions/points. The issues are accordingly amalgamated and re‑cast as under:‑‑ (i) Whether the Returning Officer committed any illegality in the delimitation of the constituency PS‑91 Karachi, and violated the provisions of section 8 of the Representation of the People Act, 1976 and the manual? (ii) Whether the election was materially affected and was liable to be declared void as a whole? (iii) What should the order be?

12. The petitioner claims that the polling stations situated in "Police Complex Law College" and "Motor Vehicle Office, Saeedabad" fall within Charge No. 15 which do not come within the constituency PS‑91 from which the petitioner and respondent No.1 contested elections but the same fall within PS‑

91. On the other hand, the plea of respondent No. 1 is that the said polling stations fall within PS‑91 and that Returning Officer has rightly notified so. Likewise the petitioner's plea is that area "Hazara Colony, Gulshan‑e‑Ghazi, Block A & B is not a part of Charge No.42 but it falls within Charge No. 15 and the Returning Officer has wrongly included the same in Charge No.42, whereas respondent No.1 claims that the said area falls within Charge No.42 and the Returning Officer has rightly included the said area in Charge No.42. On this issue, Mr. Muhammad Saghir Rana, Additional District and Sessions Judge, who acted as Returning Officer and issued Notification dated 14‑9‑2002 was examined at the request of the petitioner as Exh.P.2. In his deposition he stated that Polling Stations Nos.5 and 7 were stationed in the Training Law College of Police Complex, while polling stations Nos.8 and 9 were stationed in Motor Vehicle Office situated in Police Complex. He further deposed that Police Complex Saeedabad fell within Charge No.16. He denied the suggestion that the Police Complex Saeedabad does not fall within charge No.

16. He also denied the suggestion that Training Law College and Motor Vehicle Office are situated within territorial jurisdiction of Charge No.

15. Likewise regarding the area namely "Hazara Colony", he deposed that the said area is situated within Charge No.42 and that Charge No.42 is part of PS‑

91. In cross‑examination he stated that the petitioner did not file any objection before him with regard to the fixation of Polling Stations. Mr. Syed Nasir Abbas, Assistant Election Commissioner was also examined at the request of the petitioner as Exh.P.3. He produced Gazette Notification dated 28‑6‑2002 containing list of the Constituencies as Exh.P.3/1 which shows that, inter alia, Charge No.15 falls within PS‑90 whereas Charge No.16‑ falls within PS‑

91. He also produced Notification dated 14th September, 2002 containing final list of Polling Stations as Exhs.P.3/2 and Exh.P.3/3 in respect of PS‑90 and PS‑

91. According to Exh.P.3/3 Police Complex Training Law College and Motor Vehicle Office viz. the disputed areas do fall within Charge No.16. He, showed his inability to say as to whether polling stations Nos. 5, 7, 8 and 9 did fall within Charge‑16 or not. The next witness examined by the petitioner was Khawaja Mazher Jamal, Assistant Census Commissioner, Exh.P.4. He produced original letter issued by Mr. Farooq Ahmed, Deputy Census Commissioner as Exh.P.4/1. He also produced Ammonia Print of the map showing the territory falling within Constituency PS‑91 as Exh.4/2. He also produced photocopy of extract of the said map as Exh. P.4/3. He deposed that areas of Hazara Colony etc. have been shown in the said map to be falling within Charge‑

15. He also deposed that the entire Police Training Complex, Motor Vehicle Office, Saeedabad do fall within the area of Charge‑

15. However, in cross‑examination, he showed his inability to say as to whether Charge‑15 falls within PS‑90 or PS‑

91. It is pertinent to note that under subsection (3) of section 8 of the Representation of the People Act the Returning Officer is not only competent but required to establish in each constituency polling stations according to the final list published under subsection (2) which stipulates publishing in the official Gazette the final list of polling stations specifying the electoral area the electors whereof will be entitled to vote at each polling station. The said list was admittedly published fifteen days before the polling day. Thus the provisions of law were fully complied with. The Returning Officer deposed in clear terms that Police Complex Saeedabad did fall within Charge No.16. He categorically denied the suggestion to the contrary. He also denied the suggestion that Training Law College and Motor Vehicle Office are situated within territorial jurisdiction of Charge No.15. He further deposed that "Hazara Colony" is situates within Charge No.42 and that Charge No.42 is part of PS‑

91. The evidence was based on the Notification dated 14th September, 2002 duly published in the Official Gazette. Thus, the Returning Officer who was examined at the instance of the petitioner, in his evidence controverted the pleas advanced by the petitioner, rather supported the stand taken by the respondent. There is no reason to discard such evidence of the Returning Officer. Besides above, another witness namely Mr. Syed Nasir Abbas who is Assistant Election Commissioner has also produced the same notification dated 14th September, 2002 which supports the case or respondent No.

1. So far as the evidence of Khawaja Mazher Jamal, Assistant Census Commissioner is concerned, although he has deposed that Hazara Colony which is the disputed area falls within Charge‑15, but the perusal of the map Exh.4/2 reveals that the area of Gulshan‑e‑Ghazi has been shown to be falling in Charge‑

42. The said Hazara Colony is a part of Gulshan‑e‑Ghazi which is evident even from the contents of the petition as well as the affidavit in evidence of the petitioner. In para. 9 of the Affidavit of Evidence the petitioner has stated, "Hazara Colony, Gulshan‑e‑Ghazi, Block A & B is a part of Charge 15". However, Motor Police Training Centre has been shown in Charge 15 in the said map. As a matter of fact, the Census Ordinance; 1959 (Ordinance X of 1959) was promulgated to provide for the taking, from time to time of Census for Pakistan and for obtaining certain information with respect to the population of the country authorizing its different functionaries to collect the date for the aforesaid purposes. The Census Ordinance, in no way, could restrict the' exercise of powers by the Election Authorities or for that matter the powers of the Returning Officers. Never theless, section 10 of the said Ordinance provides a bar to the admissibility as evidence of any entry in book, register or record maintained in the Census Department, in any civil proceedings. Petitioner failed to point out any legal provision to show that the Returning Officer was legally obliged to follow the delimitation done by the Census Department before finalizing the list of the Polling Stations, nor did such provision seem to be existing. It is an admitted position that the petitioner did not file objections against the issuance of the Notification No.DRO/1364/2002 dated 14‑9‑2002 pertaining to setting up of the polling stations and did not challenge the issuance of the said Notification which was duly published in the Official Gazette. In view of above, this issue is answered in negative. In the petition the petitioner has prayed for declaring the election as a whole void. The ground for declaring the elections as a whole void has been provided in section 70 of the Representation of the People Act, 1976 which reads as under:‑‑ "

70. Ground for declaring election as 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." The perusal of the above provision of law makes it obligatory to declare the election on the basis of grounds mentioned therein, subject however, that "result of election has been materially affected. In PLD 1967 Lahore 722 the term "materially affected" came to be discussed by a Division Bench of Lahore High Court and it was observed as under:‑‑ "The condition specified in rule 36(1‑A) Electoral College Rules, 1964 for declaring an election as a whole to be void is that the result of the election should have been materially affected by reason of the failure of any person to comply with or contravention of any provision of the Act or the Rules. The guiding principle for the Election Tribunal to deal with election matters is contained in this rule and the power given to the Election Tribunal is not unguided or uncontrolled but is restricted to the conditions mentioned. The intention of the rule is that an election is to be set aside only in case the result of the election is materially affected by reason of violation or contravention of the Act and the Rules. The tribunal cannot proceed to punish a candidate by declaring his election as void if it merely finds that some irregularity or corrupt practice has been committed during the election by him or at his instance or with his knowledge." Similar view was taken by the Honourable Supreme Court in PLD 1968 SC 331 and by another Division Bench of Lahore High Court in PLD 1966 (W.P.) Lahore

839. The plea of respondent No.1 is that in the disputed areas the petitioner has secured the highest number of votes, therefore, the results have not been materially affected even if it be assumed that the said area which was not part of PS 16 has wrongly been included therein. The burden to prove that results of election have been materially affected lies on the shoulder of .the petitioner. However, the petitioner has not been able to produce any material to show that by such defect, allegedly committed by the Returning Officer, the results of the election have been materially affected. In his cross‑examination the petitioner was put a specific question in this respect and the petitioner's reply was, "I cannot say whether I obtained highest number of votes in Polling Station, 5, 7, 8 and 9". The evidence brought on record, tested on the touchstone of the provisions of the Statute and the case‑law referred hereinabove, leads to the conclusion that solid, irretrievable and concrete material was not available to hold that the election was materially effected rendering the same liable to be declared void. In this view of the matter, this issue is also answered in negative. In view of the above findings, the petition is dismissed. However, there will be no order as to costs. H.B.T./8/Elec. Petition dismissed.