1986 PLP 2320 (MLD)

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63. The following are the guidelines which should be kept in view while framing the polling schemes:‑- (a) Plan of the Scheme:‑ (i) The polling scheme of local council elections, 1983, should, as far as possible, be adopted for general elections. (ii) As far as possible, separate polling stations should be provided for male and female voters, subject to the availability of suitable buildings and polling personnel. (iii) Polling schemes for 'each National Assembly constituency and for each Provincial Assembly constituency should be prepared separately by the Deputy Commissioner/Political Agent for all the constituencies (Muslims as well as non‑Muslims) falling under his jurisdiction. (iv) The Polling Stations for a constituency should bear a running serial number so that, when the final list of polling stations is drawn up and notified, each polling station would be identified by its number and name. (v) The electoral areas assigned to each polling station should be mentioned clearly under each polling station. For this purpose, an authentic list of electoral areas falling within each constituency should be obtained by the Deputy Commissioner /Political Agent from the Registration Officers together with a duly signed copy of the electoral roll for each constituency. (vi) The assignment of voters should be correctly shown against each electoral area. These assignments shall have to be further corrected, if fresh entries under section 18 or section 27 of the Electoral Rolls Act, 1974 are made before the date the constituencies are called upon to elect their representatives. (vii) The assignment of voters should clearly show. the break‑up by Muslim male and Muslim female voters as well as not‑Muslim male and non‑Muslim female voters against each electoral area and totals for the polling stations should also be correctly shown. (viii) For the preparation of polling schemes for each constituency, the extent of each constituency notified by the Election Commission on 6th January, 1985 or subsequent Corrigenda issued on 18th January, 1985, should be kept in view. (ix) On the basis of total number of male and female voters, both Muslims and non‑Muslims, assigned to the various polling stations, totals for the constituency should be correctly 'given. (x) In describing a polling station, the abbreviations like "P.S." etc., should be avoided as they can be confused with Police' Station, Primary School etc. Exact description of the name of the building would be necessary. (xi) No polling station should be established outside the limits of the constituency. It will be illegal to do so. (b) Selection of Buildings (i) Care should be taken in the selection of buildings required for the polling stations. They should invariably be housed in public buildings. Preference should be given to school buildings, colleges, rest houses, Dak bungalows, community centres and buildings of Union Councils, Town Committees, Municipal, Committees, Municipal/ Metropolitan Corporations, etc. (ii) No polling station should be housed in a building which is owned by or is in the possession of any individual. It would be illegal to locate the polling station in a building which is owned by or is under the influence of a prospective candidate. The polling station building should be such as is acceptable to most, if not all the candidates. In no case should a police station building or .a. levy post be utilised for this purpose. (iii) The public buildings proposed to be used as polling stations should be spacious, preferably having big compounds, to avoid over‑crowding of voters within their precincts. (iv) The public buildings should not be in a dilapidated condition and in a state of despair. Wherever new buildings have sprung up, they should be utilized, if found suitable. Important:‑-- A prier inspection of the buildings selected to serve as polling stations has been made essential so as to check their suitability for the purpose. This should invariably be done. (v) In case the polling station building has more than one storey, the polling station should preferably be located on the ground floor to avoid inconvenience to the voters." According to approved scheme the Polling Station Hayat Gopang was in Primary School but the Returning Officer got constructed but at the out-skirts of the village, contrary to Notification and Rules. This change was arbitrary and neither notified or approved as no such record has been produced. This was intentionally done to favour the respondents when same request of the petitioner relating to the Polling Station. Massodero was rejected.

26. There are specific allegations of large scale rigging and manipulations, at four Polling Stations in para. 6 of the petition. It is also stated in para. 4, that at the above Polling Stations, the Polling Agents of the petitioner were not allowed at the Polling Stations of Massodero (P.S.29), Gul Muhammad Siyal (P.S.28); Ratodero Primary School No.II (P.S.43) and Ratodero Primary School No.I (PS‑45). On this Returning Officer in his written statement has started that under section 23 of the Representation of Peoples Act, 1976, the person appointed Polling Agent shall be an elector of the Electoral Area and entitled to vote at then Polling Station. He has also given reference of clause 64 of Manual of Instructions, issued by Election Commission. He has also stated as under:‑-- "Admittance of Polling Agents of Polling Stations is the function of Presiding Officer concerned. If it has been done at the Polling Station it is in accordance with the Rules." He has not categorically denied this allegation. The respondent in para. 4 of his written statement stated as under:‑

"That the contents of paragraph 4, as framed are incorrect and hence denied. It is in accordance with Article No.64 of the Manual of Instructions for the Guidance of Presiding Officers and Assistant Presiding Officers." The respondent and Returning Officer have not stated that Polling Agents of the petitioner were present at the Polling Stations. It is not believable that a person who is contesting Provincial Assembly Election cannot find a Elector from the constituency to act as his Agent when petitioner and respondent had a tough close fight in the election. The Returning Officer alongwith written statement has filed affidavit of one Sikandar Ali, Section Agent of another defeated candidate, Gada Hussain Mahessar in his support that Election was fair and Polling Agents of that candidate were appointed to show justification that election was conducted in accordance with law. This affidavit was sworn before Assistant Mukhtiarkar Ratodero. The witness was not produced for cross‑examination. Being a responsible Government Servant as Assistant Commissioner and S.D.M. of the area has no justification to file affidavit) of other candidates. It appears that he was in touch with private candidates. The respondent has not summoned any Agent of other defeated candidate but Assistant Commissioner has filed affidavit on this pertinent point. He should have in all fairness called report from Presiding Officer concerned and submitted with his written statement, which he has not done. Under subsection (4) of the Act it shall be the duty of a Returning Officer to do all such acts and things as may be necessary for effectively conducting the election in accordance with the provisions of this Act and Rules. Abdul Khaliq Exh.17, paternal‑uncle of respondent and his Election Agent in his affidavit stated in para.8 that at the Polling Station mentioned in paraghraph 8 of the Petition, the Polling Agents of the petitioner who are residents of locality were present and they did not challenge the votes. When cross‑examined he stated that tie did not remember if Polling Agents of the Petitioner at Massodero, Gul Muhammad Siyal, Ratodero Primary Schools Nos.1 and 2 were not allowed. He in para.2 of the affidavit stated that as Election Agent of the respondent he visited all Polling Stations. He has not denied the allegations of para. 4 of the petition but stated that allegation with regard to conduct of election are denied.

27. Another legal point taken in the petition is that Returning Officer prepared the consolidated statement of the results and disappeared without preparing the statement in Form XVII and he could not be traced. Consequently Mukhtiarkar Ratodero had to sign the statement in Form XVII. In support photostat copy of Form XVII Exh.6‑B signed by Mukhtiarkar Ratodero as Returning Officer has been produced. The respondent denied these allegations and stated that at the request of petitioner votes were recounted to which petitioner expressed his complete satisfaction. The Returning officer in reply to this charge stated as under in para. 11 of his written statement:‑- "11‑‑The charge levelled in para. 12 is denied." He has produced photo copy of Form XVII Exh.22/2 with the written statement. He has explained as to how Form XVII annexed to the petition and produced by the petitioner was signed by the Mukhtiarkar. It is not a copy but it is original one. When confronted he admitted that Form XVII Exh.6‑B was issued by Mr. Khalid who was Assistant Returning Officer and Mukhtiarkar Ratodero. He produced consolidated statement Exh.22/3. In this context two documents Exh.6/13 and Exh.22/3 are on record. Both are not denied. The charge is that Returning Officer disappeared and consolidation of result was done by Mukhtiarkar Ratodero contrary to the sections 39 and 42 of the Act and rule 28 of the Representation of Peoples (Conduct of Election) Rules, 1977. Rule 28 is reproduced as under:‑ "

28. Result of the count.‑‑(1) The result submitted to the Commission by the Returning Officer under subsection (1) of section 42 shall be in Form XVII. (2) The consolidated statement prepared under sub‑rule (1) of rule 26 by the Returning Officer together with the result of count referred to in sub‑rule (1) shall be sent to the Commission immediately after the count for declaration of the result and publication of the name of the returned candidate in the official Gazette. The Record from Election Commission was called which shows that Form XVII was sent to the Commission under signature of M. Khalid (Returning Officer, PS‑32‑ Larkana-II). It is regretted that statement of Returning Officer before Tribunal is incorrect and Form XVII produced before the Tribunal was subsequently prepared and filed.

28. Now I come to the result of the disputed Polling Stations. Polling Station Votes secured by petitioner (1) Votes secured by respondent (2) Votes secured by other candidates (3) Invalid Total (4) 1.Massodero. Sr.No. consolidated List 21. 1(One) 1041 5 5 1052 2.Gul Muhammad Siyal (Sr.No.20) 32 691 97 33 853 3.Ratodero I Primary School (Sr.No.45). 195 374 312 37 918 4.Primary School Ratodero‑II (Sr.No.46). 67 172 196 23 458 5.Primary School Hayat Gopang (Sr.No.5). 636 230 239 35 1140 The Polling Station Massodero was in the village of respondent where all the contesting candidates secured five votes whereas petitioner secured one vote and other seven candidates got five votes while respondent secured 1,041 votes. The Polling Station Hayat Gopang was arranged in a hut constructed outside the village. This Polling Station was in the village of petitioner where respondent secured 230 votes nearly one‑third of the petitioner. The clear position is that there was rigging at Massodero. It is unbelievable that a candidate who contested Provincial Assembly Election‑could not secure few votes at one particular Polling Station when‑ the position of votes as appears in the statement Exh.22/3 is contrary and fight was very close. The petitioner secured sufficient number of votes in 49 other Polling Stations. On the other hand Respondent got 230 votes at the village of petitioner when in all the 50 Polling Stations respondent secured sufficient number of votes. At Gut Muhammad Siyal Polling Station petitioner secured 32 votes while respondent 691, Ratodero Primary School‑I petitioner‑195, respondent‑374 and Primary School Ratodero‑II petitioner‑67 and respondent‑

172. All this shows that there was mala fide in change of Polling Staff and, Rigging at Massodero, Gut Muhammad Siyal and Ratodero. It is clear that Returning Officer's attitude as record shows had been hostile to the petitioner and he out and out provided all types of assistance for the benefit of respondent. He acted in violation of provisions of Act and Rules. The legal position is that Election cannot be set aside because of irregularity on part of election officials unless it is found that such an irregularity has materially affected the result of the election.

29. In the present case there was close contest between the petitioner and respondent. There is difference of 502 votes. Had the petitioned secured 252 more votes he could have been declared successful and result had been otherwise. At Massodero where more than 85% vote were cast which not happened in the constituency, even at petitioner's village 66% votes were cast. It is apparent that there was rigging due to absence of Agent of petitioner and so is position at Gul Muhammad Siyal and Ratodero and. Polling Stations where Presiding officers inner changed due to which 676 votes came under dispute and overall situation as discussed above is such that result due to violations of Act and Rules has been 'materially affected.

30. Now I refer case‑law where elections were declared void when due to irregularities and illegalities the results were materially affected. In Mian Riaz Ahmed v. Election Tribunal, Sargodha Division and another P L D 1966 Lah. 839 it was observed:‑-- " . It appears to us that rule 36(1‑A) embodies in congested form no other principle than 'this 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. It follows from the above conclusion that a Tribunal cannot resort to general principle of election law and declare an election of the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of his candidate or his election agent, without a finding that the result has been materially affected: We are not inclined to agree with the respondent's contention that by the mere commission of a corrupt or illegal practice it is intended that the Election Tribunal may declare an election void. It is significant that the Rule provides that the result be "materially affected. These words are not ambiguous, and must be given their natural meaning and effect. It is not necessary, for declaring, an election void that there must be invalidation of so many votes by reason of the breach or violation of the Rules, to reduce the votes before (sic) those of others, but there should be a finding that the violation is of such a scale that it has affected the result It has further been observed:‑

"For the reasons already stated and the conclusions arrived at by the Election Tribunal, we are of the view that order of the Tribunal cannot be interfered with so for as election of the petitioner has been declared void, as the facts found by the Tribunal make out a case of the result having been affected as a result of corrupt and illegal practices; end it is not material that it was not alleged in the election petition that the result was not affected. We would also not grant relief in this discretionary jurisdiction to a person who has been found to have, committed Corrupt and illegal practices. The rule 36 (1‑A) of the Electoral College Rules, 1964 is similar to section 70 of the Act. (ii) In Ameer Abdullah v. Muhammad Yakoob and another reported in P L D 1962 Lah. 722, the same view has been taken. Relevant observations are as under:‑ "The relevant provision of law which governs the present case is section BO (2) of the Electoral College Act, 1964, read with rule 36 (1‑A) of the Electoral College Rules. The power of the lection Tribunal to make such orders as they may think fit is subject to rules made in this behalf. Rule 36 (1‑A) reads as under;

‑ 'The Tribunal shall declare the election of the returned candidate or 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 the failure of any person to comply with, or the contravention of any provision of the Act or these Rules. The condition specified in this rule for declaring an election as a whole to be void is that the result of the failure of any person to comply with or the contravention of any provision of the Act or the Rules. The guiding principle 'for the Election Tribunal to deal with the election matters is, therefore, contained in the above rule and the power given to the Election Tribunal is not unguided or' uncontrolled but is restricted to the conditions mentioned in rule 36 (1‑A). 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 of 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 have been committed during the election by him or at his instance or with his knowledge. The mere commission of corrupt or illegal practice would not visit him with the consequence of his election having been declared void. It has to be proved before succeeding in having an election set aside that not only a corrupt practice was current but that it .was of such a large scale that it would reasonably be said to have contaminated the entire election." (iii) In Abdul Aziz Kaburaj v. S.A. Chowdhry and another P L D 1966 Dacca 561 it was held that Tribunal must be satisfied that non‑compliance or contravention of any provision of Act and Rules materially affected result of Election. Reference could be made to cases, Abdul Quddus Khandkar v. The Election Tribunal and Additional Deputy Commissioner, Bogra P L D 1966 Dacca 609 wherein it was held:‑- "It is clear from the provisions of rule 36 (1‑A) that a duty has been cast upon the Tribunal to come to a finding whether the result of the election has been materially affected before declaring the election to be void. A finding to the effect that the result of the election has been materially affected is a condition precedent to the declaration of the election as void. Such a finding is the foundation of the jurisdiction to a declaration as stated above and, if the Tribunal finds that what has happened has 'materially affected' the result of the election it is incumbent on it to declare it (the election) to be void. This is mandatory." (iv) In Jan Muhammad v. Collector Jacobabad and others P L D 1963 (W.P). Kar. 433 it was held:‑-- " ..Where a candidate has suffered because of the omission or commission on the part of the Polling Officer himself, the Election Tribunal can give him relief under rule 59 of the Rules. Rule 59 (c) of the Rules contemplates that in the circumstances, as in the present case, the Election Tribunal can declare the election to be void. We do not think that the Election Tribunal has acted beyond the power conferred on him by Rule 59 of the Rules in declaring the Election of petitioner to be void." (v) In Vashist Narain Sharma v. Devchand A I R 1954 S C 513 the Election was challenged on the ground that the nomination paper of one of the defeated candidates was improperly accepted. The question was whether result of election was materially affected. It was observed as under:

‑ "These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate." It was further observed:‑-- "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. " It was further observed:‑

"Where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted, the result is not only materially not affected but not affected at all, but where it is not possible to anticipate the result as in the above‑mentioned cases, we think that the petitioner must discharge the burden of proving that fact and on his failure to do so, the election must be allowed to stand." Besides above authorities on this point a reference can be made to Azhar Hussain Khan v. Election Tribunal Dacca and others 1968 SCMR 228 where election was challenged on the ground that Presiding Officer was close friend of one contesting candidate and he was not impartial. There was margin of few votes. The Election was set aside. The matter went in Supreme Court. It was observed as under:‑-- "It could be argued that the result of the election was not materially affected by the invalidity of only two votes (S.Nos.156 and 248), but the charge in the instant case was that the election as a whole was not conducted fairly by the Presiding Officer who was a close friend of the appellant. The Tribunal had the necessary material before it to came to such a conclusion and in setting aside the election it acted in aid of a fair election." In the light of above case‑law the Tribunal can declare the election as a whole void if it is proved that due to irregularities and illegalities the result of the election has materially been affected in various manners. Section 70 of the Act is reproduced as follows:‑-- "

70. Ground for declaring election as a 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 this Act or rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. "

31. Upshot of discussion on issues Nos.2 and 3 is that due to violation of provisions of Act and Rules, the result of the election has been materially affected and from the documentary evidence it is proved that respondent No.1 is responsible for rigging, malpractice and illegal, acts. The Returning Officer has also failed to conduct election impartially and violated the provisions of Act and Rules. I, therefore, under section 70 (a) (b) of the Representation of Peoples Act, 1976 declare the election of Constituency No.PS‑32 Larkana‑II held on 28th February, 1985 as a whole to be void. A.A. Election petition accepted.