1. Through this single judgment, we intend to decide the listed Civil Appeal No.1169 of 2014, filed by Ch. Muhammad Ashraf Warraich, and Civil Appeal No.1192 of 2014, filed by Muhammad Nisar Cheema.
2. Muhammad Ashraf Cheema, also Respondent No.1 in Civil Appeal No.1192 of 2014 (hereinafter referred to as the ‘Returned Candidate’), has been non-seated by the learned Election Tribunal, Lahore, vide the impugned decision dated 05.08.2014 and at the same time it directed the Election Commission of Pakistan to take necessary steps for holding Bye-Elections in 33 polling stations of the Constituency of PP-97, Gujranwala. Second mentioned Appeal has been filed by Muhammad Nasir Cheema, who is Respondent No.1 in first mentioned Civil Appeal, (hereinafter referred to as the ‘Election Petitioner’), is also aggrieved by the portion of the same impugned decision, declining to declare him elected member from the said constituency, has prayed for modification of the impugned decision of the Election Tribunal to such an extent.
3. Briefly stated the facts appear to be that the elections for Provincial Assembly for Constituency PP-97, Gujranwala-VII, comprising 120 polling stations were held along with general elections throughout the Province of Punjab on 11.05.2013. Both the contestants along with 28 other candidates contested for the Constituency, official result of the election was declared on 13.06.2013 (Ex.PW.33/H). As a result of the count in form XVI, first three candidates secured votes as follows:
i. Ch. Muhammad Ashraf Warraich, Returned candidate secured……………..29,756 votes;
ii. Muhammad Nasir Cheema Election Petitioner secured ……………………..22, 335 votes;
iii. Ghulam Sarwar Resp.No.25/Runner up secured……………………………..23, 871 votes.
4. None other than the Election Petitioner, Muhammad Nasir Cheema challenged the election through Election Petition No.226 of 2013 essentially on the ground summarized in the impugned decision of the Election Tribunal as follows:
“Ground of Attack No. 1: That the petitioner defeated all his political rivals including the returned candidate and the runner up at 33 polling stations of the Constituency fully particularized in the statement, Ex.PW-33/E; that his polling agents received copies of statements of the count in form XIV regarding said 33 polling stations from the Presiding Officers and passed on to the petitioner, according to which the petitioner secured 26,769 votes whereas the returned candidate obtained 25,473 votes and that the Returning Officer tempered with the statements of the count in form XIV and reduced the votes polled to the petitioner from 26,769 to 22,335.
Ground of Attack No. 2: That the General Election-2013 from Constituency No.PP-97, Gujranwala-VII was not conducted in accordance with delimitation of the constituencies approved and notified under the Delimitation of Constituencies Act, 1974; that according to notified delimitation of constituencies vide notification dated 28th June, 2002 and notification dated 08th April, 2013, Gujranwala Cantt. was included in Constituency No.PP-96-Gujranwla, that villages Baddoke, Hardo Amin Pur, Bhaghat Garh and Dhippha were made part of Constituency No.PP-97 by the District Returning Officer through poling scheme despite the fact that the above said villages being located within the territorial limits of Cantonment, Gujranwala should have been made part of Constituency No.PP-96, Gujranwala and that the election held on 11.05.2013 at the polling stations of aforesaid villages under the said polling scheme being offensive to the notified delimitation of constituencies, was null and void.”
5. However, serious challenge before this Court was confined to first mentioned ground. From the record, it is evident that Election Petitioner and the Returned Candidate participated in the in the proceedings and other contesting candidate were proceeded against ex-parte.
6. After exchange of the pleadings, the learned Election Tribunal framed the issues as follows:
“1. Whether the election petition is actuated by bad faith, if so its effect? OPR 1
2. Whether the election petition is hit by the provisions contained in section 55(1)(B) of the Representation of People Act 1976? OPR 1
3. Whether the petitioner is estopped by his conduct to file this petition? OPR 1
4. What is effect of preliminary objections number A to D and F of the written statement? OPR 1
5. Whether the election of respondent No.1 is liable to be declared as void and the petitioner is entitled to be declared as Returned Candidate for the reasons mentioned in the election petition? OPR 1
7. Issues No.1 to 4 were not contested by the Returned Candidate, therefore, were decided in favour of the Election Petitioner. Issue No.5, being pivotal, was seriously contested by the disputants. Since burden to prove subject issue was on the Election Petitioner, he examined himself as RW.33 and produced his 30 polling agents, (PW-1 to PW-32) who supported his case that they had collected the copies of statements of count in form XIV issued by the Presiding Officers of their respective polling stations. He produced consolidated result of 33 polling stations Ex.P-33/E (available at pages 316 to 319 of CA #1169/2014) which shows total vote casted in his favour whereby he secured 26,769 votes as against 25,473 votes polled by the Returned Candidate. The Election Petitioner produced the count of form XIV of all the 33 polling stations himself and through his witnesses at trial. The Returned Candidate (RW-33) examined 32 out of 33 Presiding Officers (RW1-RW32) from the disputed polling stations. He and his witnesses produced copies of the statements of the vote counts in form XIV.
8. It was noted by the learned Election Tribunal that the statements of the count in form XIV as relied upon by the Returned Candidate falls to the ground, if the statement of the count adduced by the Election Petitioner is taken into consideration. Conversely, if the result of the vote counts relied upon by the Runner Up is taken as true, the Election of Returned Candidate will not be open to any exceptions.
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