1. This appeal under Section 67(3) of the Representation of People Act, 1976 (Act) assails the judgment dated 5.3.2014 passed by the learned Election Tribunal, Sukkur, whereby the Tribunal had accepted the election petition of the respondent.
2. The brief facts of the case are:- the appellant and respondent No.1 (respondent) contested for the National Assembly seat NA-202 Shikarpur-I in the general elections conducted on 11.5.2013. The appellant, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 25.5.2013, obtained 54,633 votes whereas the respondent (runner up) secured 53,381 votes, with the differential between the two being 1,252 votes. The respondent challenged the election of the appellant primarily on the grounds that the appellant secured his election by resorting to corrupt and illegal practices, and that a large number of bogus votes were got cast by him. In view of the divergent pleadings of the parties the following issues were framed:
“1. Whether the petition is not maintainable in terms of S. 54 and 55 of Representation of People Act, 1976?
2. Whether Respondent No.1 Returned Candidate committed illegal and corrupt practices in the election process by way of coercive methods, manipulating bogus votes, stuffing the ballot boxes with bogus ballot papers?
3. Whether the Returning Officer and other election staff had acted in violation of provisions of the Representation of Peoples Act, 1976?
4. Whether the Respondent No.1 stuff the bogus votes using all foul means and the ballot papers bears bogus thumb impressions on counter-foils and such report is called from NADRA authorities by referring thumb impressions on the counter-foils, Pictorial Electoral List?
5. Whether free, fair and transparent election is not held in the constituency NA-202 Shikarpur-I?
6. What should the order be?”
The parties led their evidence and after conclusion of the trial the learned Tribunal declared the result of 21 polling stations (it is not necessary to give the number of each polling station) declaring the appellant as the returned candidate as void and ordered re-polling of the said 21 polling stations. It may be pertinent to mention here that during the course of proceedings, the respondent moved an application seeking verification of the counterfoils of the said 21 polling stations and the learned Tribunal through order dated 20.8.2013 allowed such material to be examined by NADRA. The NADRA team upon examination submitted a report to the learned Tribunal (which shall be analyzed later), however it is on the basis of such report that the election was directed to be reconducted in the said 21 polling stations. In this regard it may be mentioned that as the appellant in his appeal against the impugned judgment could not get the interim relief and the election to the 21 polling stations were held in the meantime per the learned Tribunal’s judgment and now on account of the result emerging due to re-election in these polling stations the respondent has been declared to be the returned candidate by a margin of 233 votes. It may also be stated here that the order dated 20.8.2013 through which the verification of the counterfoils by NADRA was directed, was assailed by the appellant through a constitution petition before the learned High Court of Sindh which has been dismissed vide judgment dated 25.3.2015 and no further challenge was made thereto, thus the order has attained finality.
3. As has been stated earlier the learned Tribunal founded its entire decision on the report of NADRA and thus the true attack made by the learned counsel for the appellant qua the said report is not only about its merits but also vis-à-vis the jurisdiction of NADRA to carry out such verification process under the Act and the National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance). The learned counsel further submitted that the learned Tribunal also had no jurisdiction under the law to seek verification of the material of the 21 polling stations.
4. Be that as it may, as mentioned above this appeal came up for hearing earlier and the appellant had asked for interim relief in the form of suspension of the impugned judgment because thereunder the re-election to 21 polling stations was directed to be held but this temporary injunction was refused to the appellant vide order dated 8.4.2014 passed by this Court (we shall analyze the order and the effect thereof in the course of this decision). Learned counsel for the appellant has argued that the election petition filed by the respondent was not verified in accordance with law and it was not supported by a full affidavit as is mandated by the Sindh Chief Court Rules and therefore, such petition was liable to be dismissed summarily as per Section 55 of the Act. It is also submitted that the learned Tribunal has not taken into consideration the oral evidence led by the respondent (election petitioner), thus there was no positive evidence for the purposes of declaring the election as null and void, rather the learned Tribunal has simply relied upon the report of NADRA which according to the learned counsel for the appellant is an invalid report for the following reasons:
a) The absence of the authority of NADRA to either get involved in the process of verification or to provide any expert opinion under the Act;
b) There is no mandate under the NADRA Ordinance enabling NADRA to carry out such kind of a function of verification or opining about the validity or otherwise of the counterfoils or to resolve election disputes;
c) That NADRA did not have the capacity to render a reliable piece of admissible evidence which is above suspicion and beyond reproach on account of which it can be held that such is an expert evidence so as to be made the basis for annulling the election or resolving a dispute therein;
d) That the obtaining of ridges and fingerprints on a piece of paper is totally different from the global model of obtaining fingerprints through a modern device such as live scan fingerprinting.
Learned counsel also referred to the parliamentary proceedings and submitted that the mere fact of non-verification of 60-65% of votes would not result in the automatic conclusion that the said percentage of votes is bogus.
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