1986 PLP 2063 (CLC)

Date of hearing: 23rd September, 1985. Petitioner who was a candidate in the election of National Assembly from Constituency No. N‑A 186 Karachi has filed this petition challenging the election of respondent No. 4 from the said constituency. The petitioner has prayed that the election of respondent No.4 may be declared as void and the petitioner or any other persons may be declared elected in his place or in the alternative the election as a whole be declared as void and re‑election may be ordered in respect of National Assembly Seat No. NA‑

186. Only respondent No.4 has filed his written statement opposing the petition. Besides raising several preliminary objections as to the maintainability of petition the, respondent No.4 has contended that on merits no case for declaring his election or election as a whole void is made out. On 25th August, 1985 when this petition came up for hearing before me the learned counsel for the respondent stated that the preliminary objection may be heard and determined first. I found from the proceedings already conducted in the case that on 28th April, 1985 the following preliminary issue was framed by the learned predecessor:‑ Whether the election petition can proceed in its present form?

2. However, the above preliminary issue could not be decided as in the meantime the above petition was assigned to me. On 12th September, 1985 when this petition came up for hearing. I heard the petitioner and Mr. Raja Haq Nawaz and Mr. Hassan Akbar learned counsel for respondents 4 and 1 respectively and after hearing them I noticed that in the election petition the election of respondent No.4 is challenged on the solitary ground that one ballot paper was found by the petitioner after few days of the elections from a dried riverine and which according to him rendered the election of respondent No.4 as void or in the alternative on account of that irregularity the election as a whole is liable to be declared as void. This factual aspect alleged by the petitioner that one ballot paper was found outside the polling station after few days of the election was not disputed by the respondents Nos.4 and 1 accordingly inquired from the petitioner if he desired to lead any evidence in support of his petition. The petitioner stated before me that he will only examine himself in support of his petition and does not propose to lead any other evidence. In view of the fact that a very short point was involved for decision in the petition 1 asked the learned counsel for the parties if they would agree for the decision of the petition on merits after recording of evidence instead of hearing it on the preliminary point. Both the parties agreed to it and I accordingly with their consent framed the following three issues:‑ (1) What is the effect of one ballot paper which was found by the petitioner after the declaration of result of election of National Assembly Constituency No. NA 186, Karachi from a dried riverine, on the election of respondent No. 4 and on the election as a whole? (2) Whether the present petition is not maintainable as it contains vague allegations and does not fulfil the requirements of section 55 of the Representation of Peoples Act, 1976? (3) What should the order be?

3. After I framed the Issues the petitioner examined himself and closed his side. Both Mr. Raja Haq Nawaz and Mr. Hasan Akbar also stated that they did not propose to lead any evidence in the case and closed their side. I heard the learned counsel for the respondents and the petitioner thereafter and my findings on the issues framed in the petition are as follows: Issue No. 1.

4. The petitioner has produced the ballot paper as Exh.5/2 which according to him was found in a dried riverine after few days of the declaration of the result of the election. A perusal of this exhibit will show that it was a ballot paper which was issued to some voter as it bears the seal of Election Commissioner and also some initials. It is, however, not alleged anywhere by the petitioner as to who was responsible for taking out this ballot paper outside the polling station. The petitioner contends that discovery of this single ballot paper outside the polling station establishes that there was wholesale rigging in the election which has rendered the election of respondent No.4 as void. However, no such allegation has been made by him in his election petition. It is an admitted position that respondent No.4 who has been declared elected by the Election Commission in the above constituency secured as many as 20, 647 votes as against 559 votes polled by the petitioner. There is no comparison between the number of votes polled by the petitioner and respondent No.4 and there is nothing on the record to show that as a result of taking out of the single ballot paper produced by the petitioner the result of the election could be effected materially in any manner. There is no allegation in the petition that respondent No.4 was responsible for taking out this vote outside the polling station nor it is alleged that any other person acting on behalf of respondent No.4 was responsible for the same. I have already stated that there is substantial difference in the number of votes polled by the petitioner and the respondent No.4 and the fact that one vote was found outside the polling station after the declaration of result is absolutely immaterial in the circumstances of the present case. Although the petitioner has alleged in his evidence that he was expecting to poll at least 80,000 votes but this is absolutely imaginary as out of the total votes cast in the constituency he was able to get only 559 votes while the nearest candidate (Respondent No.5) secured 18,015 votes and lost the election against respondent No.4. The learned counsel for the respondent rightly contended that in view of Rule 22 of the Representation of People (Conduct of Election) Rules, 1977 no significance can be attached to the finding of the ballot paper Exh.5/2 outside the polling station as in such circumstances the Presiding Officer could reject such a ballot paper and refuse to include it in the count. It is not disputed by the petitioner that this ballot paper was excluded from the count of the votes and there appears to be absolutely no illegality committed by the Presiding Officer or the Returning Officer in this behalf. I accordingly hold that the discovery of one ballot paper by the petitioner after the declaration of the result from a dried riverine had no effect at all either on the election of respondent No. 4 or on the election as a whole. Issue No. 1:

5. As I have already reached the conclusion on merits of the case that no case for interference is made out; it is quite unnecessary "decide" the preliminary objections raised by the respondents with regard to maintainability and non‑compliance of the requirements of section 551 of the Representation of the Peoples Act, 1976.

6. As a result of the above discussion I find that there is no merit in this petition which is accordingly dismissed. M . Y . H . Petition dismissed.