2019 PLP 61 (SCMR)

IJAZ UL AHSAN, J.

These appeals are directed against an order of the Election Commission of Pakistan ("ECP") dated 05.10.2018. Through the impugned order, the election petitions filed by the Respondents were accepted and election of PB-05, Duki was declared as null and void with a direction for follow up action in this regard.

2. The brief facts necessary for decision of this lis are that General Election for PB-05, Duki was held on 25.07.2018. Sardar Masood Khan Luni, the Appellant was declared the Returned Candidate having secured 13638 votes followed by Sardar Dur Muhammad Nasir and others. Respondent No.8 filed election petitions before the ECP. Directions were issued to the concerned Returning Officers to submit comprehensive reports which stated that there were complaints against at least three Presiding Officers against whom actions had been taken. Further, there were certain polling stations which had been taken over by the parties. Consequently, unreasonably high percentage of votes were cast in favour of the parties which were controlling the polling stations. Such reports were taken on record. It also transpired from the record that FC Troops were attacked pursuant to which FIRs were lodged and the appellant was nominated as an accused in the said FIRs.

3. The Election Tribunal examined the entire record and came to the conclusion that election for PB-05, Duki was not held in a free and fair atmosphere where registered voters were not free to cast their votes in favour of candidates of their choice. From midnight onwards till the day of election FC Personnel were intimidated and attacked regarding which complaints were lodged. At the time of election, polling stations were taken over by the supporters of candidates and in some cases the Presiding Officers took sides and were allegedly involved in handing over ballot paper books to one side or the other. On the basis of the above material, the ECP declared the election null and void.

4. The learned counsel for the appellant has argued that the appellant secured 13638 votes whereas his opponents secured 6887 and 6187 votes respectively. The difference between the Returned Candidate and the Contesting Candidates was substantial. He further submits that no irregularity or illegality was committed by the appellant. In fact, various groups were operating in the area which had no connection with the appellant and whatever little irregularity and illegality was witnessed, the same had no nexus or connection with the appellant. It is further maintained that although the appellant was implicated in three FIRs, he has been granted bail in the same He finally maintains that there are factual errors in the judgment of the Election Tribunal and even if all votes in the polling stations where rigging allegedly took place were to be excluded from the count, the appellant would still easily win over his rivals who fall far short of votes cast in his favour.

5. The learned counsel for the Respondent has supported the impugned judgment.

6. We have heard the learned counsel for the parties and carefully examined the record. It is clear and obvious from the record that the election was not held in a free and fair manner. There were serious law and order lapses at various polling stations which had been taken over by supporters of rival candidates. Further, the ECP found that some of the Presiding Officers had been won over and were taking sides and facilitating rigging. This is evident from the fact that the said Presiding Officers were removed by the ECP and action was taken against them in accordance with law. We also find that there is enough material available on record indicating that a night before the election, FC Troops were attacked and a complaint was lodged by Wing Commander, FC with the competent forum. A number of FIRs were also lodged against the appellant in which admittedly he is on bail. An analysis of the voting pattern undertaken by the ECP also suggested rigging in so far as the percentage of votes allegedly cast in certain polling stations was unreasonably high.

7. It has also been held by the ECP and the said fact has not been contested that ballot paper books were taken away by creating law and order situation and female staff of female polling stations was harassed and intimidated. We are also convinced that there is enough material on record that on the day of election, polling stations were taken over by the parties including the appellant.

8. In the facts and circumstances narrated above, we are in no manner of doubt that election of PB-05, Duki was not held in a peaceful, free and fair manner and there were major violations of the Election Laws which can neither be condoned nor ignored. An election is required to be held in a free, fair and transparent manner, and the electorate must be given an unqualified, free and unconditional choice to vote for the candidates of their choice without fear or intimidation. We are not convinced that election of PB-05, Duki was anywhere near being free, fair and transparent election. Results of such election could neither be considered credible nor do they reflect the will of the people. In view of the material available on record, the ECP had no choice but to declare the election null and void and direct the constituency to elect its representative in accordance with law without fear or intimidation.

9. The learned counsel for the appellant has not been able to point out any illegality, error, flaw or defect in the judgment of the Election Commission that may require interference by this Court in exercise of its powers under section 9(5) of the Elections Act, 2017.

10. For the foregoing reasons, we do not find any merit in these appeals. The same are accordingly dismissed. MWA/M-30/SC Appeal dismissed.