1. This appeal under Section 67(3) of the Representation of People Act, 1976 (Act) assai ls the judgment dated 10.1.2014 passed by the learned Election Tribunal, Sukkur, whereby the Tribunal had dismissed the election petition of the appellant.
2. The facts in relation to the instant appeal are:- the appellant and respondent No.1 (respondent) contested the general election of PS-23, Naushahro Feroze-V, District Naushahro Feroze, Sindh. The respondent, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.5.2013, obtained 30,674 votes whereas the appellant (runner up) secured 29,063 votes, with the differential between the two being 1,611 votes. The appellant challenged this election primarily on the grounds (as transpires from the record and also apprised by the learned counsel for the appellant) that a large number of bogus votes were got cast by the respondent, the election was manipulated and procured by him through coercion and in connivance with the election staff; the Returning Officers and the election staff violated the provisions of Sections 33, 38 and 39 of the Act and thus the election has been materially affected which should be declared void. The election petition was contested by the respondent on merits, besides an objection was raised by him that the petition and the annexures are not verified in accordance with law and that the grounds stated therein (petition) are vague and general in nature. Be that as it may, the learned Tribunal framed certain issues which are reproduced as under:
“1. Whether the petition is not maintainable in terms of S. 54 and 55 of the Representation of Peoples 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 the 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 PS-23 Naushero-Feroze-V?
6. What should the order be?”
The parties led their evidence and after conclusion of the trial the election petition was dismissed by the learned Tribunal while holding that the same as well as the annexures were not verified in accordance with law, that full particulars of corrupt and illegal practices were not mentioned in the petition, and that the appellant failed to establish the commission of corrupt and illegal practices. It may be pertinent to mention here that during the course of the proceedings before the learned Tribunal, the appellant had moved an application for the examination and verification of the counterfoils of 19 polling stations with the object to prove that certain votes cast were not as per the mandate of Section 33 (supra) and, therefore, such votes be excluded from the count. Pursuant to the above the learned Tribunal sought the verification of the counterfoils of the said polling stations from NADRA and as per its report 2,417 used counterfoils were declared as invalid, i.e. which either contained NIC numbers which were not issued by NADRA or which did not bear any NIC number whatsoever. Further, 61 used counterfoils were held to be without fingerprints/thumb impressions.
3. Learned counsel for the appellant, while referring to the verification portion of the election petition, submitted that the petition was verified in accordance with the law. Reliance in this regard is placed on the case reported as Moulvi Abdul Qadir and others vs. Moulvi Abdul Wassay and others (2010 SCMR 1877). He further stated that pursuant to an application filed by the respondent under Section 63(a) read with Section 55(3) of the Act the learned Tribunal had put to rest the point of verification vide order dated 23.8.2013 which operated as res judicata when the learned Tribunal earlier gave its opinion on the same issue. With respect to the allegation of non-verification of annexures, learned counsel for the appellant drew our attention to the annexures and submitted that all 146 documents were attested on oath by an Oath Commissioner and have also been signed by the appellant himself. In this respect he further stated that these annexures were exhibited documents and no such objection vis-à-vis non-verification was raised at the time they were received in evidence. Regarding the learned Tribunal’s finding that there were only general allegations of corrupt and illegal practices in the election petition, learned counsel for the appellant while referring to paragraph 6 of the petition argued that the same contained specific and not general allegations. Coming to the evidence led by the appellant regarding proof of corrupt and illegal practices, learned counsel for the appellant stated that the testimony of the appellant himself and two of his polling agents, namely Abdul Latif and Moula Bux contained sufficient proof of the allegations of corrupt and illegal practices. Further, that the complaints made to the Returning Officers and Deputy Returning Officers also constituted sufficient evidence as they went unrebutted.
Learned counsel for the appellant then argued in support of the NADRA report and stated that 2,417 and 61 votes were liable to be excluded from the election result and since the total number of excluded votes (2,478) stands greater than the differential of votes secured by the respondent and appellant, thus the election result would be materially affected, thereby bringing the case within the purview of Section 70 of the Act. He stated that this aspect of the matter has been overlooked by the learned Tribunal and no reasons were given by the learned Tribunal for rejecting such report. Finally it was also argued that five different counts/results had been issued subsequent to which the appellant’s application for recounting was accepted and recounting was ordered which reflected substantial differences between the number of votes in the consolidated result and the number of votes after the recount and this also brings the case within the mischief of Section 70 of the Act.
4. In order to controvert the arguments of the learned counsel for the appellant, learned counsel for the respondent submitted that the NADRA report was only to the extent of verification of thumb impressions of 19 polling stations, and there were no ‘out of constituency’ votes which suggests that there was no bogus voting. With respect to 2,147 used counterfoils which had invalid NIC numbers, learned counsel submits that these are those counterfoils where the correct NIC was produced when the voter came to vote and an error was committed while writing the NIC number down on the counterfoils, and since this was due to a lapse by the election staff, the returned candidate should not be prejudiced by such error/lapse.
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