2014 PLP 293 (CLC)

DR. ZAFAR AHMED KHAN SHERWANI ELECTION TRIBUNAL.

This common order in the above petitions will dispose of applications under section 63 of the Representation of the People Act, 1976 (the Act) moved on behalf of the Respondents (the returned candidates) in their respective petitions for dismissal of the same at this threshold on the grounds that these petitioners have not complied with the provisions of subsections (1)(b) and (3) of section 55 of the Act. Since these petitions as well as the applications are based on the common facts and the law, therefore, with the consent of the learned Counsel for the parties it was decided to pass a common order in all these petitions. Brief facts leading to these applications are as under:

In the last general elections of National and Provincial assemblies in the country held on 11-5-2013 candidates of different political parties and independent candidates contested these elections on the different seats of these assemblies from Karachi. However, during the polling at about 11-30 a.m Jamat-e-Islami (the Jamat) walked out from the process of poll. After the result of these constituencies declaring the applicants/respondents as the returned candidates, the petitioners who had also contested these elections against the returned candidates from their respective constituencies on the tickets of the Jamat have challenged the same through these petitions under section 52 of the Act praying to declare their elections as a whole void under section 70 of the Act. In Election Petition No.16 of the 2013 in respect of PS-118 Karachi, it has been alleged therein that the Election Commission of Pakistan (the Commission) and its functionaries did not fulfil their responsibilities as enshrined in the Constitution of Pakistan to hold free, fair and transparent election because during the election campaign they did not ensure compliance of code of conduct for contesting candidates issued by the Commission against the Muttahida Quomi Movement (MQM) as in spite of several complaints/applications in respect of violations submitted to it by the Jamat and fully highlighted by the electronic and print media no action was taken. The commission itself had declared a number of polling stations in these constituencies (enlisted in the petition) as the most sensitive but no arrangements were made to hold free and fair election. Similarly on the election day, the workers, supporters of MQM with other terrorists, extremists and criminals behaved like owners and trustees of Karachi and created a turmoil like situation in the City and played havoc by committing coercion, threats and illegal pressure forcing and compelling the petitioner to walkout from the polling to save his life as well as of his workers and the Chief Polling Agent. It has also been alleged that the Returning Officer and District Returning Officer appointed non-eligible, raw hand and untrained presiding officers and other polling staff at the polling stations who were not only incompetent but also, partial and inclined towards MQM in violations of section 9 of the Act and the manual of instructions and the hand-book for Returning Officer issued by the Commission. The list of polling stations which was provided to him was also in violation of provisions of section 7(4) and (5) of the Act. The land scape of the polling day as painted in the petition shows very depressing scenario as far as the concept of free and fair election is concerned. The petition depicts that the election material was dispatched 4-5 hours late for the polling at most of the polling stations by the commission's officials which caused late start of the polling but no action was taken by the Returning Officer. Unauthorized persons and strangers worked at the polling stations to conduct the polling in favour of MQM who stamped on its symbol "KITE" at the unauthorized and so called polling stations. The agents workers and activists of MQM had captured large number of polling stations and stuffed ballot boxes with bogus votes of even those persons who were either dead, sick, indoor patients, disabled or out of town. They made the polling staff hostage and snatched ballot-papers, bags and the making stamps and marked on the symbol of the Kite on ballot-papers, without any fear of any legal action. These workers of the returned candidate used the ballot-papers illegally because though having no CNIC but were delivered the ballot-papers without their thumb-impressions. The consolidated statement, Form-XVI, had been prepared by the Returning Officer in violation of section 39 of the Act and merely signed the same without observing the legal formalities. Though the petitioner lodged complaints with Returning Officer and District Returning Officer but to no avail. The Returning Officer without any plausible explanation, who had already prepared consolidated statement (Form-XVI), only signed the same and that too after delay of several days without adopting procedure as laid down in section 39 of the Act. The Presiding Officers and their staff violated the provisions of sections 15 and 16 of the Act and the guidelines issued by the Commission. It has been prayed that since the result of the election has been materially affected by reason of failure of the Commission and its employees to comply with the provisions of the Act and the rules and there was prevalence of extensive corrupt and illegal practice during the election, therefore, election of the returned candidate may be declared as a whole void as provided in section 70 of the Act. The petitioner has annexed copies of different applications, letters written to Commission, the Returning Officer and District Returning Officer by the Jamat, photocopies of News Clippings, F.I.Rs. and also a compact disc(CD). In place of filing affidavits-in-evidence of witnesses with the petition, an application was filed addressed to the Secretary, Election Commission to exempt the petitioner from filing the same. The returned candidate filed his written statement as well as his application under section 63 of the Act, C.M.A. 79 of 2013 praying therein to dismiss the petition on the same ground of non-compliance of section 55(1), (b) and (3) of (the Act). In Election Petition No.23 of 2013, the petitioner has challenged the election of returned candidate from PS-120 Karachi on the same grounds and made the same allegations as mentioned in Election Petition No.16 of 2013, supra, praying therein to declare the election as a whole void under section 70 of the Act. Copies of almost same documents and the CD have also been produced with this petition as its annexures. The returned candidate filed his written statement as well as his application under section 63 of the Act, C.M.A. 73 of 2013 praying therein to dismiss the petition on the same ground of non-compliance of section 55(1), (b) and (3) of (the Act). In Election Petition No.24 of 2013, the petitioner has challenged the election of the returned candidate from PS-116 on the same grounds and allegations as mentioned in Election Petition No.16 of 2013 praying the same that the election of returned candidate may be declared as a whole void on the grounds as mentioned in section 70 of the Act. Similar documents and the CD as produced in Election Petition No.16 of 2013 have been produced with this petition. The returned candidate filed his written statement as well as application under section 63 of the Act, C.M.A. 76 of 2013 praying for dismissal of the petition for non-compliance of section 55(1), (b) and (3) of the Act. This tribunal framed as many as five issues on the basis of the pleadings of the parties. In Election Petition No.25, the petitioner has challenged the election of the returned candidate from PS126 Karachi on the same grounds and on the same allegations as mentioned in Election Petition No.16 praying the same relief to declare his election as a whole void under section 70 of the Act. The returned candidate filed his written statement denying all the allegations and praying therein for dismissal of the petition under section 63 of the Act for the non-compliance of section 55(1) (b) and (3) of the Act. This tribunal has framed five issues from the pleadings of the parties including the legal issue on maintainability of the petition. In Election Petition No.26 of 2013, this petitioner has challenged the election of the returned candidate from PS-118 on the same grounds making the same allegations as made in Election Petition No.16 of 2013 praying for the same to declare the election of returned candidate as a whole void under section 70 of the Act. He produced the same or similar documents as produced in Election Petition No.16 of 2013 as well as the CD. The returned candidate filed his written statement denying all the allegations made in the petition and also filed application under section 63 of the Act, C.M.A. 91 of 2013 for dismissal of the petition for non-compliance of section 55(1)(b) and (3) of the Act. Heard learned counsel for the petitioners and for the returned candidates in each of the petition and perused the record very carefully. Mr. Ubaidur Rehman, the learned counsel for the returned candidate in his Election Petitions Nos.16 and 24 submitted that since the Jamat which nominated the petitioners to contest these elections on its Ticket but latter on during the poll it boycotted the election before completion of the election process, therefore, the petitioner has got no cause of action to challenge the election under section 52 of the Act as the boycott had seized the candidature of the petitioners and none of them would be a "Candidate" within its definition as provided in section 2 (iv) of the Act because candidate means not only the person who was proposed as candidate for or seeking his election as a member of the assemblies but the person who had participated in the entire process for which he was proposed but in this case the petitioners boycotted the process in its middle therefore, they did not remain a candidate within the ambit of section 2(iv) of the Act, therefore, they are not entitled to challenge the election within the provision of section 52 of the Act. He next contended that even otherwise these petitioners have not complied with the mandatory provisions of subsection (1)(b) of section 55 of the Act by not mentioning the full particulars of the corrupt or illegal practices or illegal acts alleged to have been committed by the returned candidates including as full a statement as possible of the names of the parties alleged to have committed such illegal and corrupt practices or illegal acts and date and place of such commission. He further contended that the documents which were filed along with these petitions further disclose separate allegations of commission of such acts against the returned candidates but have not been verified as provided in subsection (3) of section 55 of the Act, therefore, these petitions are liable to be dismissed under section 63 of the Act as section 55 of the Act is mandatory in nature providing consequences of dismissal of the petition for such non-compliance. He also contended that the allegations against the Commission are directly related with the returned candidates and therefore it cannot be said that provisions of section 55 would not be attracted. He has relied upon the case of S.M. Ayub, supra, (PLD 1967 SC 486), in support of his arguments that the documents produced with the Petitions are within the parameters of "Annex" as defined therein and therefore required mandatory attestation under Order VI, Rule 15, C.P.C. The learned counsel for the other returned candidates in the remaining election petitions adopted the arguments of Mr. Ubaidur Rehman and contended that these petitions are liable to be dismissed. In reply of the above arguments the learned counsel for the petitioners contended that the petitioners did not boycott the election but due to unabated atrocities which were being committed during the process, the petitioners had walked out from the election in the middle of the day. Moreover, there is no embargo on such petitioners under the Act to challenge the elections of the returned candidates even they had boycotted the polling as they were validly nominated candidates under the Act. To reply the second leg of the arguments on the non-maintainability of his petitions under section 63 of the Act for the alleged non-compliance of subsection (1)(b) of section 55 of the Act, he contended that in his petitions he has sought the relief under section 70 of the Act as the Commission and its officials had failed to comply with the provisions of the Act and the Rules which has materially affected the result of the elections in these constituencies, therefore they were not required to give the details of the corrupt and illegal practice and illegal acts in their petitions within the ambit of section 55 (1)(b) of the Act as provided in Sheela B Charles case (1996 SCMR 1455). However, he contended that the petitioners have specifically made the allegations in their respective petitions in respect of the corrupt and illegal practices and such acts committed by the returned candidates and their party's workers, activists in the entire constituencies, therefore, there was no need to provide any other detail in terms of subsection (1)(b) of section 55 of the Act, as whatever details were in knowledge of the petitioners have been mentioned in the petitions. With regard to the non-verification of the documents produced with the petitions under Order VI, Rule 15, C.P.C. as required under subsection (3) of section 55 of the Act he contended that these documents were not required to be attested as the same were not the annexures within the parameters of "annex" as described in S.M. Ayub's case, supra, therefore, the petition cannot be dismissed. He has relied upon the following cases also:

(1) Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 282. (2) Eng. Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250 (3) Baz Muhammad Khan v. Haji Sher Azam Khan 2011 CLC 1271 (4) Muhammad Yaqoob Khan Nasir v. Sardar Muhammad Israr Tareen 2011 CLC 1649 (5) Hafiz Abdur Rauf Jan v. Bashir Bilour 2004 MLD 244 (6) Syed Muhammad Shah v. Marvi Mazhar 2003 (sic) (7) FREDRIC AZEEM v. WALTER MASIH 1999 YLR 1995 (8) Muhammad Irfan Khan v. Javed Ahmed Chattari 1998 CLC 1241 (9) Ghulam Mustafa v. Akhtar Ali 1986 MLD 2143 The learned Counsel for the returned candidates in rebuttal of the above arguments contended that mere general allegations in respect of the alleged illegal act or corrupt act cannot fulfil the requirements of section 55 of the Act to declare the election as a whole void under section 70, therefore, these petitions are liable to be dismissed. I have carefully considered the above arguments in the light of the record and the case law cited at the bar. On the first contention of the learned Counsel for the returned candidates on the non - maintainability of the petitions on account of the boycott by the Jamat on the polling day it will be suffice to observe that since there is no provision in the Act barring any candidate from challenging the election of any returned candidate from the said constituency if he or his political party had boycotted the election after having been validly nominated to contest the election. Without such a substantive provision in the Act this tribunal can not enforce any disqualification by stretching any existing provision of the Act and take away the legal right as provided to a candidate under the Act. Hence, this tribunal cannot dismiss these petitions on account of the boycott of the election on the polling day by the petitioners or their party. In order to appreciate the other arguments of the learned counsel for the parties it may be appropriate to observe that in a democratic polity like ours the process of choosing of representatives by its people for the purpose to form government through them in terms of the provisions of its constitution and the law is a sacrosanct process which must not be polluted through any misdeed or illegal act of any of its stakeholders. To ensure the maintainability of the purity and the sanctity of this process the Act has provided comprehensive and structured framework starting from the announcement of the elections and their conclusion and then the disposal of the disputes arising out of this process through election petitions by the Special Tribunals. The purpose of the disposal of the election disputes in speedy manner in accordance with the law as provided in the Act is only to allow the true elected representatives to invest their energy and time in the legislative business for the welfare of the people of their constituencies in place of wasting their time in protracted litigation. For this purpose section 63 of the Act provides that if an election petitioner does not fulfil its provisions of sections 54 and 55 such petitions must be thrown out even at the threshold (without going into the process of regular trial) and it is the responsibility of the tribunal so constituted under the Act for the disposal of such petitions to ensure their compliance in the letter and spirit so that the sword of Damocles may not remain hanging over the heads of a true representative unnecessary without point or purpose. The legislature has enacted section 55 of the Act with the sole purpose to safeguard the interest of people in their truly elected representatives from the unscrupulous litigation by challenging the result of an election by making it incumbent upon an election petitioner to provide all the details, as far as possible for him, with regard to the illegal practice or the illegal act allegedly committed by the returned candidate or its workers or agents and also the place and the time of commission of such practices and acts and to verify these allegations on oath in order to take the responsibility of penal consequences in case the allegations are found false. This requirement of verification on oath has further been extended even for those documents which have been annexed with the petition by the election petitioner which disclose further allegations with regard to corrupt or illegal practices or such acts which are either separate or in addition to the allegations made in the petition or complements them so that an election of a returned candidate may not be challenged in cursory manner and without taking responsibility of making false allegations as provided in subsections(1)(b) and (3) of section 55 of the Act. The case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni (1999 SCMR 284) provides a guideline as to what is expected from an election petitioner and what from an election tribunal when such question is raised in an election petition during its trial before such tribunal. It has been held that

"While the rule as to specific pleadings is invocable in election petitions, such as discernible from section 55 read with sections 78 and 83 of the Act is necessarily confined to corrupt or illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should reasonably, have known. Many, an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practice coming to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of the Tribunal to come to his aid in virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election, should unjustifiably be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected." The provisions of section 55 subsections (1)(b) are to be read keeping in view the above dictum laid down by the Hon'ble Supreme Court. The details as required under the above provisions are to be provided by the election petitioner should be those which are or should have been in his knowledge and once he fulfils this legal obligation then for the rest the responsibility is of the Tribunal to come to his aid in view of the jurisdiction of a Civil Court vested in the Tribunal, as provided in section 64 of the Act. Now let us examine whether these petitioners have provided those particulars of the illegal practices or illegal acts which they in ordinary course should be in knowledge or should have been brought in their knowledge. But surprisingly in spite of very serious allegations of all sorts against the returned candidates and the commission too right from the announcement of the election till the consolidation of result in the petitions but in an evasive manner without giving any detail about the polling stations where such illegal acts or illegal practices were committed and who were the witnesses of such acts or practices. It has not been even mentioned specifically that these alleged illegal acts were committed at all polling stations of all these constituencies. Similarly, on one hand it has been alleged that the election material was dispatched at the polling stations from 1-1/2 to 4-5 hours late but it was not mentioned about the location and description of these polling stations and how they came to know about this when they had already boycotted the election and left the polling stations. No affidavit in evidence of any polling agent of these petitioners was attached with their petitions in support of these allegations. Further, it has been alleged in the petitions that the Returning Officers handed over the election material to un-authorized and strangers who misused the same in favour of returned candidates by stamping the ballot-papers on Kite and filled the ballot boxes at the unauthorized and so-called polling stations but again the locations of such unauthorized polling stations within the constituencies was not mentioned and also the details of those un-authorized persons to whom the election material was handed over to use the same in favour of the returned candidates and how they came to know about this and what action was taken by them to stop this appears to have been left for the reasons best known to them. They were also required to file affidavits of evidence of their witnesses in support of these allegations with their petitions as required under Clause 1 of the Notification issued by the ECP under section 62 of the Act providing procedure of trial of the election petition but none has been filed and that too without any reason. The petitioners have further alleged that the Returning Officer and District Returning Officers had been continuously changing the polling stations till the night of the polling date but not a single polling station has been mentioned which was so changed in violation of provisions of the Act or the Rules. They have also alleged that the miscreants/activists of the returned candidates kidnapped the polling personnel at various polling stations and made them hostage and then snatched the ballot-papers, ballot boxes but again failed to give any name of any polling personnel or details of polling stations where these incidents had taken place. Prima facie these details should have been in the knowledge of the petitioners in ordinary course, therefore, they were legally bound to provide the same in compliance with section 55(1)(b) of the Act. It is very disturbing to note that these petitioners on one hand have made bald allegation that Returning Officers had already filled the Consolidated Statements of Count (Form-XVI) in respect of their respective constituencies even before the results and merely signed the same but on the other hand alleged that they signed them after the delay of so many days without adopting the procedure laid down in section 39 of the Act. It is logically unacceptable that when they had already filled these statements why they would delay in signing them. However, when the petitioners had boycotted the election how they came to know about this. The petitioners must have provided few details in this regard before making such wild rather naked allegations against the senior officers of an institution which is involved in this cumbersome process not only because of its capabilities but also for the confidence of people they depose in it. It is clear from what has been mentioned above that the contents of these petitions clearly show that the allegations made in these petitions lack elementary details which were required to be provided by the petitioners under the above provisions of the Act, before this tribunal may come for their rescue for the purpose of detailed enquiry. Until and unless, the basic criteria are fulfilled by the petitioners in providing the details of corrupt and illegal practices and illegal acts in compliance with the provisions of subsection (1)(b) of section 55 of the Act their case would come within the mischief of section 63 of the Act. It was contended by the learned Counsel for the petitioners that since these petitions are under subsection (1) of section 70 of the Act for non-compliance of the provisions of law by the commission, therefore subsection (1)(b) of section 55 of the Act would not be attracted as held in the case of Shella B Charles, supra. I am afraid, I cannot agree with this proposition. Although in a petition under the above provisions it is not compulsory that there should be an allegation of corrupt and illegal act for the relief under section 70 of the Act as was in Shella B. Charles case, supra in which the question of miscalculation of votes by the Returning Officer was only raised, but if such allegations are levelled for the relief under section 70 of the Act then these details must be provided by the petitioner within the ambit of section 55(1)(b) of the Act. As far as, the attestation of the documents attached with the petitions in terms of subsection (3) of section 55 of the Act is concerned I am clear in my mind that all those documents attached with an election petition which provide additional allegations of illegal acts or illegal practices or complements these allegations then these documents come within the definition of "Annex" as provided in this Subsection. Reliance as placed on S.M. Ayoob's Case (PLD 1967 SC, page 486). On careful examination of the documents annexed to the petition as Annexures A, C, C-1, C-2, C-3, C4, C-5,C-6 and C-7 which are copies of different applications and letters written to the Commission and its functionaries mentioning different allegations which have not been mentioned in the petitions are annexes within the parameter given in S.M. Ayoob's case, supra, but the same have neither been signed by the petitioners nor verified in terms of provisions of subsection (3) of section 55 of the Act. Hence the petitions have also not complied with the provisions of subsection (3) of section 55 of the Act. None of the cases cited by the learned Counsel for the petitioner are in support of his contention that if an election petition is filed under section 70 of the Act on the ground of non-compliance of the law and the Rules by the Commission or its functionaries including the ground of illegal and corrupt practices and illegal acts, then too section 55(1) (b) of the Act will not be attracted. It is, therefore, not necessary to discuss each and every case for the sake of brevity. The upshot of above discussion is that all the above petitions are not in compliance with the mandatory provisions of subsections (1)(b) and (3) of section 55 of Act, therefore, the applications under section 63 of the Act are to be allowed and the petitions are liable to be dismissed with costs. Order accordingly. MWA/M-1/K Petition dismissed.