1991 PLP 2093 (CLC)

(b) P.S. 33 Jani Wandh‑10‑30 a.m. (c) P.S. 51 Miranpur‑11‑30 a.m. (d) P.S. 25 Buxlani‑12‑50 p.m.

9. His further grievance is that three polling stations, namely, P.S. 11, P.S. 12 and P.S. 14 were completely sealed off by the police and the voters were driven away by force so that at P.S. 11 only 14 votes were cast out of 1,630, at P.S. 12 only 70 out of 3,517 and at P.S. 14 no vote has been cast out of 947 and thus more than 6,000 voters were disfranchised at these three polling stations. In support he relied on written representation made to the Returning Officer in respect of P. S. 48 Budhani, P.S. 49 hand, P.S. 31‑Saiful Jakhaani and P.S. 42 Sunho Luhar.

10. His next grievance was that no count as required under section 38 of the Act was done by Presiding Officer at Polling Stations 20, 31, 41, 42, 48, 49, 50 and 54 and that all the Presiding Officers with polling bags were taken away by Revenue and Police personnel and at some of these polling stations polling agents of the petitioner were also kidnapped.

11. His next grievance is that at 35 polling stations out of 54, which are not controversial only 10% of the registered votes were cast. According to the petitioner this fact conclusively establishes that the massive police force of some 16,000 personnel was deployed in uniform and plain clothes to prevent the voters from exercising their right of franchise.

12. The respondent, Agha Ghulam Ali Buledi, in his written reply/objections raised three preliminary objections questioning the vires and the powers to be exercised by the C.E.C. under section 103AA of the Act and the existence of Ordinance No.V of 1990 and the powers of C.E:C. to hear the petition, which all were rejected by me by the order dated 13th August, 1991, which ran into four pages.

13. The respondent in a lengthy written reply/objections has controverted each and every averment made in the petition and he has also denied the genuineness of the so‑called Forms XIV photo copies whereof are annexed to the petition. It may be stated that out of the six so‑called forms XIV only two photo copies, relating to P.S. 13 and 32, appear to be on the prescribed pro forma (but original of these have not been produced) and the rest are on plain papers. Mr. Pirzada in his oral submissions and the respondent in his written reply/objections relied on the inspection report of the two Teams constituted by the Chief Election Commissioner pursuant to the request of Mr. Pirzada contained‑in para 8 of his representation dated 26‑5‑1991, to monitor the bye‑election.

14. Except the petition and the annexures, Mr. Pirzada has not placed any other material on record except what is mentioned herein. The averments in the petition though on oath, have been controverted by the respondent in his written reply/objections, which is also on oath. Mr. Pirzada made an application on 2‑7‑1991 for bringing entire election record to Karachi and depositing the same in a suitable strong room under the Federal Institutions. I had rejected this application by a detailed order dated 21st July, 1991, because the same was based on mere apprehension. While dismissing this application, I however, observed that if at the time of hearing of this petition inspection of the polling record was required for any valid reason, then the request made by Mr. Pirzada would be re considered. It may also be pertinent to mention that Mr. Pirzada made an application for the first time on 10‑8‑1991 for summoning the Presiding Officers of polling stations Nos. 13, 28, 32, 36, 42 and 44 to prove Annexures A/1 to A/6. On this application I passed the following order on 13‑8‑1991: "Mr. Pirzada has applied for summoning the six Presiding Officers at polling stations Nos. 13, 28, 32, 36, 42 and

44. Let they be summoned on the next date of hearing provided Mr. Pirzada files affidavits of his polling agents who allegedly received the forms (copies of Annexures A/1 to A/6) from the Presiding Officers of the above polling stations by 20th August, 1991. Thereafter, the aforesaid Presiding Officers will be summoned to appear in person. The traveling expenses of the six Presiding Officers will be deposited by the petitioner before 20th. At the request of Mr. Pirzada and by consent of Mr. Faridi to come up on 24th August, 1991 at 9‑30 a.m."

15. From the above order it is clear that time was granted on 13‑8‑1991 at the request of Mr. Pirzada and hearing was adjourned to 24th August, 1991 at 9‑30 a.m. Even upto 24th August, Mr. Pirzada did not deposit the traveling expenses for summoning the Presiding Officers. On 20‑8‑1991 only photo copies of three affidavits out of six polling agents, were filed in the office. However, on 24‑8‑1991 their originals were filed and much after the proceedings of that day were over, the petitioner filed in the office one more affidavit of his polling agent but without any application for accepting the same out of time and without depositing travelling expenses for summoning him. Nonetheless, I extended the time till 25‑8‑1991 for depositing Rs.1,500 as travelling expenses for summoning the three Presiding officers by a detailed order dated 24‑8‑1991. A part of the order dated 24‑8‑1991 is re‑produced below: "(2). I asked Mr. Pirzada whether he wanted to summon these three Presiding Officers after paying their travelling expenses. Mr. Pirzada stated that he has filed affidavits of his polling agents pertaining to P.S. Nos.13, 32 and 44 and the Presiding Officers of these polling stations may be summoned. The aforesaid Presiding Officers will be summoned if their actual travel expenses are deposited by Mr. Pirzada by tomorrow i.e. 25‑8‑1991‑‑2‑30 p.m. Mr. Pirzada will deposit tentatively Rs.1,500." Mr. Pirzada at the hearing produced some photographs in support of his submission that roads were blocked. But mere production of the photographs without evidence as to the place, date and time when they were taken and to whom the vehicles, appearing in the photographs, belonged and the place where they were parked, would not establish anything. Such evidence could be produced by the petitioner in the proceeding of election petition under section 52 of the Representation of the People Acts. However, on that date I heard Mr. Pirzada upto 4‑30 p.m. He insisted on summoning the record consisting of Forms XIV and XV (contained in the polling bags), tick marked list of electoral rolls and the counterfoil of used ballot papers in respect of the following 12 polling stations: (1) PS 20‑Chang, (2) PS 25 Buxlani, (3) PS 31‑Saiful Jakhaani, (4) PS 28‑Amirabad, (5) PS 36‑Nadir Ali Shah, (6) PS 41‑Jaffarabad, (7) PS 42 Sohno Lohar, (8) PS 44‑Allahind Jamali, (9) PS.48 Budhani, (10) PS 49‑Jianrind, (11) PS 50‑Punhoon Bhatti and (12) PS 54‑Ghulab Mari. Mr. Pirzada, however, submitted that if for any reason I was not inclined to summon the record mentioned above, at least he might be granted certified copies of the aforementioned documents. Indeed, I would have myself gone to Jacobabad to inspect the polling record in the interest of justice, had the petitioner made out a case for the same but to do so simply because the petitioner made allegations and failed to apply and obtain copies of the record in time and place the same on the record of the petition, would amount to favouring him which was not possible. However, on 24‑8‑1991 I reserved the order to be announced on 26‑8‑1991. On this date I granted the request for supplying certified copies of the above‑mentioned documents in respect of the 12 polling stations mentioned above. The relevant part of the order may be reproduced below, which reads as under: "(7). Mr. Abdul Hafeez Pirzada, however, submits that if, for any reason, the Chief Election Commissioner is not inclined to summon the record, at least he may be granted certified copies of the documents requested by him, namely, Forms XIV and XV, Tick marked lists of Electoral Rolls and the counterfoil of used ballot papers of the 12 polling stations referred in paragraph No.2 of this order. (8). I would grant the oral request of Mr. Pirzada and direct the Returning Officer to supply him the certified copies of the above‑mentioned documents on payment of requisite cost. The copies shall be supplied without delay. However, the following precautionary measure shall be observed: "(1). The Returning Officer shall issue a notice to all contesting candidates from this constituency of the place, date and time of taking certified photo copies of the documents mentioned hereinbefore. (2). The polling bags containing the documents shall be opened in the presence of such candidates or their authorised representatives as may choose to be present on that occasion, as per notice. (3). After taking copies, the polling bags shall be sealed in the presence of the candidates and/or their authorised representatives, who choose to be present, and deposited in the treasury. (4). The Returning Officer shall make adequate security arrangements for the transportation of polling bags to and from the treasury and also in the premises where copies are taken. (5). The District Returning Officer shall also remain present during the process of taking copies of the documents."

16. Copies of this order were supplied to the counsel for the petitioner as well as the respondent. Arrangements were made for supplying the certified copies of the documents without delay. In this connection two Fax messages dated 28th and 29th August, 1991 and a telegram dated 28th August, 1991 which were received from the Returning Officer may be re‑produced here. Fax message dated 28‑8‑1991 reads as under: "In compliance to the order dated 26‑8‑1991 of Honourable Chief Election Commissioner of Pakistan, the notices were issued to all the candidates, to attend the office of undersigned at 2‑00 p.m. today. Notices were sent to the A.D.M. Jacobabad for immediate service. Mr. Agha Ghulam Ali Khan Buledi, Sardar Hamidullah Khan Buledi and Mr. Fazal Haque Buledi attended. District Magistrate and Superintendent of Police were requested for security arrangements. One SIP Abdul Karim of Jacobabad police appeared alongwith police contingency. District Magistrate was further requested to direct the Treasury Officer, Jacobabad to remain present in his office till further orders in order to make arrangements of withdrawal of the election material through Mr. Ali Sher Habibani, Assistant Returning Officer. Mr. Pirzada was contacted at his Karachi office and such message was given to his partner Mr. Rana informing him to attend the office of undersigned at 2‑00 p.m. today. Till 3‑00 P.M. none candidate including Mr. Abdul Hafeez Pirzada nor his authorised representatives were appeared except above three candidates nor any body deposited the costs for certified copies, even none candidate has sent any intimation for his non‑appearance. Since Mr. Pirzada has not attended uptil 3‑00 p.m., therefore, required election material has not been withdrawn from the strong room of the Treasury Office. Mr. Ali Sher Habibani, Assistant Returning Officer was present. Further orders are solicited." Telegraphic message dated 28‑8‑1991 reads as under: "From: RETURNING OFFICER PS‑14 JACOBABAD‑V TO MR. ABDUL HAFIZ PIRZADA 419‑CLIFTON CENTRE, KDA SCHEME N0.22 KAHKISHAN KARACHI. PROCEEDINS TO OBTAIN TRUE COPIES BY YOU WERE FIXED TODAY AT 2‑00 P.M. WAITED FOR YOU TILL 3‑00 P.M., YOU OR ANY OF YOUR AUTHORISED AGENT FAILED TO ATTEND THOUCH SUCH NOTICE WAS ISSUED. ALSO YOU WERE INFORMED ON PHONE THROUGH YOUR PARTNER MR. RANA. AGAIN THE SAME PROCEEDINGS ARE FIXED AT ELEVEN (11) ON 29‑8‑1991 IN MY OFFICE YOU ARE TO ATTEND PERSONALLY OR THROUGH AUTHORISED AGENT. SUCH PHONE MESSAGE IS ALSO SENT TO YOU." The Fax message dated 29‑8‑1991 reads as under: "The proceedings of inspection and to obtain the certified copies of the documents of 12 polling stations was fixed at 11‑00 a.m. today. All the candidates have been informed on Telephone through Addl. District Magistrate Jacobabad, required security measures and availability of the Treasury staff was confirmed through District Magistrate and Superintendent of Police Jacobabad. Mr. Abdul Hafeez Pirzada was informed on telephone through Mr. Ali Sher Habibani, Assistant Returning Officer at about 7‑00 p.m. on 28‑8‑1991. Till 12‑00 noon only Agha Ghulam Ali Khan Buledi candidate attended, rest of the candidates including Mr. Abdul Hafeez Pirzada did not attend either personally or through their authrorised representatives, though all the required arrangements for the inspection and obtaining of the certified copies of the documents of specified 12 polling stations have been made including at least 15 photostat copying machines in order to meet out the shortage of the time and to complete the task within time. Further orders are solicited."

17. It may be mentioned that the hearing of the case was adjourned to 30th August, 1991 but before the order was passed, it was pointed out that 30th was a Friday and, therefore, it was ante‑dated to 29th when the learned Advocates for the petitioner placed a statement, making certain grievances, on record which in concluding para states as follows: "In view of what has been stated above, it is apparent that entire petition has been rendered infructuous by failure to exercise jurisdiction as required by the law and Constitution and therefore' the petitioner has nothing further to submit beyond what is stated hereinabove?

18. Since Mr. Sharf Faridi was not heard in reply to the arguments advanced by Mr. Pirzada, he was heard on 29‑8‑1991 in the presence of the counsel of the petitioner.

19. In view of what is stated above, I do not consider it necessary to deal with each and every allegation made in the statement placed on record. However, I may state that under section 44 of the Act, the petitioner could obtain certified copies of the documents. This he could do immediately after the result of election was notified on 2‑7‑1991 and should have produced the same alongwith his petition or even thereafter. It will be seen that the petitioner for the first time orally requested for supply of these copies on 24‑8‑1991, which oral request was granted by the order dated 26‑8‑1991. So far as the Election Commission and the Returning Officer are concerned, all necessary steps were taken to supply him the required copies without delay, so much so that 15 photo copying machines were arranged and security arrangements were also made. It may be mentioned that whenever the Commission granted inspection of the documents or passed order for supply of the documents, it has always imposed those conditions mentioned hereinbefore in order to ensure security of the polling record. Therefore, the petitioner could not throw any blame on the Election Commission or the Returning Officer. If the petitioner was really interested in obtaining copies even at this late stage, he should have vigorously pursued the matter and, at least, should have deposited some amount towards the cost of copies, which he failed to do so.

20. On merits the petitioner has raised a factual controversy which could be gone into only in an election petition under section 52 of the Representation of the People Act, as all the allegations made in the petition have been controverted on Oath by the respondent.

21. Now, reverting to the allegations made in the petition I may state, firstly, that the petitioner failed to summon the Presiding Officers on account of his failure to comply with the orders dated 13‑8‑1991 and 24‑8‑1991 by failing to file affidavits of three polling agents and by failing to deposit the travelling expenses of the Presiding Officers. Even otherwise, he has not filed the originals of Annexures A‑1 to A‑3 and A‑5 to A‑6 all of which, including A‑4, have been termed by the respondent as "not genuine" and he has claimed strict proof thereof. Therefore, there is no illegality patent on the face of the record in this regard. At the six polling stations in question in Form XIV, photo copy of each of which has been sent by the Returning Officer duly countersigned, the number of votes secured by petitioner are the same as shown in the Consolidation Statement (Form XVI). There is presumption that official acts have been regularly performed, which has not been rebutted by the petitioner in any manner. Indeed photo copies of Form XIV annexed to the petition as Annexures A/2, A/4, A/5 and A/6 are not even in prescribed pro forma. It is not the case of the petitioner that he or his polling agents were supplied the copies of Form XIV in respect of these polling stations in prescribed pro forma.

22. Taking up the allegation that the agents of Mr. Buledi completely blocked and cut off the approaches to the four polling stations and prevented the polling agents from reaching the polling stations, it may be stated that these polling stations were visited by Inspection Team No.II appointed by the C.E.C. to monitor the election. Their report regarding these four polling stations shows the time of their visit and votes cast at that time. A comparison of report with the number of votes shown in Form XIV, which shows the votes cast at the end of the polling at 5‑00 P.M. confirms that there was no inflation of votes. The statement reads as under: No. of Votes Votes Polled S.No. P.S. No. Time Polled by that time According To Form XIV

(1) PS‑25 4‑55 p.m. 607 614 (2) PS‑33 2‑50 p.m. 574 890 (3) PS‑41 3‑50 p.m. 1100 1330 (4) PS‑51 4‑30 p.m. 655 660

23. In any case, this controversy cannot be resolved in summary proceedings like the one in hand. It cannot therefore, be said that there is any illegality patent on the face of the record.

24. As regards the grievance that three polling stations, namely, No.11, 12 and 14, were completely sealed off by police and voters were driven away, it may be stated that the low turn‑out or no voting will not ipso facto prove the allegation. Evidence is required for this purpose. The petitioner in support of the allegations has not even filed affidavit of any voter that he was prevented from voting by the police or anybody else. Nor he has filed affidavit of any person who saw the police or anybody else, driving away the voters. Indeed, these three polling stations were visited by Team‑I appointed by the Chief Election Commissioner to monitor the bye‑election in the company of the representative of the petitioner, Senator Syed Abdullah Shah, as well as candidate Syed Anwar Ali Shah. Regarding P.S. 11, Syed Abdullah Shah made endorsement on the Inspection Team's report "No complaint till 9‑00 a.m." when the polling station was visited. Regarding Polling Station No.12 the team visited it at 8‑30 a.m. and no vote was cast until then and the statement is signed by Syed Abdullah Shah as well as Syed Anwar Ali Shah, a contesting candidate. The polling agent of the petitioner did not make any grievance that any voter was being driven away or prevented from voting. P.S. 14 was visited at 11‑05 a.m. Till then no vote was cast but Syed Abdullah Shah appears to have made the endorsement on the report "all well till 11‑05 a.m.". Therefore, it would be safe to conclude from the above remarks by Syed Abdullah Shah, the representative of the petitioner, that the polling agents of the petitioner had no such grievance which is now made. It may be stated that in 1990 General Elections at polling stations Nos. 11, 12 and 14, Mr. Buledi polled 236, 1,346 and 1,106 votes, respectively, while P.DA. candidate Mr. Shahliani polled 65, 25 and 195 votes, respectively, if the turn‑out of the voters was very low, it seems to be to the disadvantage of Mr. Buledi. There may be many reasons for this low turn‑out but if I state those, I will be travelling in the realm of conjecture. Suffice it would be to say that without evidence of any voter that he was prevented from voting, low turn‑out of voters would not establish that grave illegality was committed. Incidentally, I may mention that in the General Elections of 1990, in NA 25‑Dir not a single vote, out of 6,603 votes, was cast at six polling stations. But in that case the prayer of the petitioner for re‑poll at those polling stations was rejected by the Commission by the order dated 15‑12 1990. It may be pertinent to reproduce para 13 of the order by which that petition was dismissed. It reads as follows:‑

"

13. However, the report submitted by the District Returning Officer dated 31‑10‑1990 is relevant which may be reproduced as under:‑

On the remaining Polling Stations of Tehsil Lai Qila, the polling did take place but the out‑turn of voters was low as compared to the other polling stations in the Constituency. However, it is incorrect to say that there was any pressure on the voters from the opposite party or candidate. The polling staff remained available for duty on the polling stations throughout the day on 24‑10‑1990. No complaint on the polling day was received regarding any irregularity occurred in the polling process or harassment to the voters. 1 also have visited some of the Polling Stations i.e. Govt. Primary School Shadas, Govt. Primary School Kotkay, Govt. Primary School Lal Qila and Govt. High School and no unpleasant incident was noticed or reported. Necessary security arrangements have been made in the area. The factual position for non‑participation of the voters at certain polling stations and low turn‑out of the voters on other polling stations in Lail Qila Tehsil was that a `Shariat Mahaz' had been established some 7/8 months back in Tehsil Lal Qila under the Chairmanship of Moulvi Subi Muhammad, Darul Uloom Illaqa Maidan, Tehsil Lal Qila, District Dir and on the appeal of this `Mahaz' most of the people did not participate in the election at certain polling stations. A pamphlet of this `Shariat Mahaz' is sent herewith for ready reference and perusal. Besides this another report was submitted by the Returning Officer to the Provincial Election Commissioner N.‑W.F.P. wherein the Returning Officer submitted that on the vigorous appeal by Shariat Mahaz on six polling stations no voter cast any vote and on remaining polling stations of Tehsil Lai Qila restricted voters came to cast their votes. However, the election staff remained on duty throughout the day. It was further submitted by Returning Officer as under: No unpleasant incident was noticed or reported. No complaint whatsoever regarding any irregularity in the election process or harassment to the voters was received either orally or in black and white from any candidate, voter, Presiding Officer etc." At the polling stations in question, arrangements made by the Election Commissioner are not in question.

25. As regards the submission that specific allegations were made in respect of polling stations Budhani, Jian, Saiful Jakhraani and Sohno Lohar, it may be stated that mere representation would not establish the allegations contained therein without proof. Moreover, the respondent has controverted the allegations on Oath.

26. The allegation that 10,000 bogus votes were cast in favour of Mr. Buledi has been controverted by the respondent. However, at these polling stations the total votes cast in favour of Mr. Buledi were 7,

277. The allegation of stamping 10,000 ballot papers at these 8 polling stations stands belied by the record.

27. Regarding the allegation that at 35 polling stations out of 54, which are h not in controversy only 10 per cent of the registered votes has been cast, it may be stated that voting in our country is not compulsory. Unless the voters are motivated by the candidate, they do not take the trouble of going to polls. Normally, the candidates have their own area of influence in tile constituency and accordingly they get more votes in their area and other candidates may not get as many votes and if voters are not interested in all or any candidate, they would not take the trouble of going to and standing in queue and casting their votes, particularly in hot season.

28. An oral grievance was made by Mr. Pirzada that at 12 polling stations the percentage is very high, it may be stated that the percentage of votes cast in this election is comparatively not as high as in the General Elections. My office has prepared a Chart from the official record which shows the number of votes cast in the 1990 General Elections, votes cast in the re-poll and votes cast in the present bye‑election in respect of the 12 polling stations which establishes the above point and which shows the pattern of the voting. The Chart reads as under: From the statement at pages 28 and 29 it will be seen that even in the 1990 elections, out of these 12 polling stations, in some polling stations as high as 94 per cent votes were cast and in one polling station as low as 12 per cent votes were cast which were not subject‑matter of any controversy then. Only 2 out of these 12 polling stations, namely, 28 and 41, were in controversy but this time at these two polling stations only 55 and 48 per cent votes have been cast respectively.

29. Since I did not find any sufficient material on the record of this petition on the basis of which I could hold that grave illegalities were committed, I dismiss this petition. AA./62/E Election petition rejected.