Re-Election in 37 Polling Stations of Sindh Provincial Assembly

Re-Election in 37 Polling Stations of Sindh Provincial Assembly Case Laws Civil Law Differed with Earlier Court View Election Interpretation of Statutes Knowledge - Civil Law Litigation & Arbitration Omne Majus Continet In Se Minus - The Greater Contains The Less Principle of Severability Solutions - Civil Law Supreme Court Verification Mr. Justice Sh. Azmat Saeed in his judgment has decided the issue regarding re-election in 37 Polling Stations of Sindh Provincial Assembly in Civil Appeal No. 294 of 2015.

1. This Civil Appeal under Section 67(3) of the Representation of the People Act, 1976 (ROPA), is directed against the judgment dated 10.04.2015, passed by the learned Election Tribunal, Hyderabad, whereby Election Petition bearing No.341 of 2013, filed by Respondent No.1 was allowed and reelection in 37 Polling Stations of the Sindh Provincial Assembly Seat No.PS-59-Badin (V), was directed to be held.

2. The brief facts necessary for the adjudication of lis at hand are that in the General Elections held on the 11th of May, 2013, the Appellant and Respondents No. 1 to 12 contested for the Seat for the Provincial Assembly of the Province of Sindh from Constituency PS-59 Badin (V). After the elections, the Appellant was declared and notified as a Returned Candidate, having secured 38,315 votes, while Respondent No.1 was the runner up, securing 36,960 votes. The Appellant had lead of 1355 votes. Respondent No.1 challenged the said election through Election Petition No.341 of 2013, which was entrusted for adjudication to the learned Election Tribunal, Hyderabad. It was the case of Respondent No.1 that in the General Elections of 2008, there were only 97 Polling Stations, while with mala fide intention the number of Polling Stations were increased to 120 and most of such additional Polling Stations were established in the areas where the Appellant had influence. It was contended that in several identified Polling Stations, despite applications filed by Respondent No.1, neither the Police nor the Rangers were deployed and only Pakistan Qomi Razakars were posted and such Pakistan Qomi Razakars in connivance with the polling staff not only permitted but participated in the harassment of voters by the Armed supporters of the Appellant and also facilitated in casting of bogus votes thereat and thereby rigged the elections to the benefit of the Appellant. Pursuant to notice, the present Appellant entered appearance and contested the Election Petition by filing a written statement, denying the allegations made therein. Furthermore, objections were taken regarding the very maintainability of the Election Petition, inter alia, on the ground that the mandatory provisions of Section 55(3) of the ROPA read with Order VI Rule 15 CPC with regard to the verification of the Election Petition had not been complied with.

3. On the divergent pleadings of the parties, issues were framed. Whereafter, the contesting parties i.e. the Appellant and Respondent No.1 produced their respective oral as well as documentary evidence. Both the Appellant and Respondent No.1 entered the witness box and were subjected to cross-examination. During the pendency of the Election Petition, Respondent No.1 filed an application before the learned Election Tribunal purportedly under Section 84 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order of 1984) seeking verification by National and Database Registration Authority (NADRA) of thumb impression of the voters on the counterfoils of the Ballot Papers of 37 specified Polling Stations. The said application was allowed by the learned Election Tribunal, Hyderabad, vide Order dated 23.10.2014. Pursuant to the said Order, the requisite election material was made available to NADRA. Whereafter, a Report (Exh.E/1) was received through Mr. Maqsood Ali, Manager, NADRA, who appeared as PW-4 and was subjected to crossexamination by the present Appellant. On the conclusion of the trial, after hearing the counsel for the parties, the Election Tribunal vide the judgment impugned dated 10.04.2015 allowed the Election Petition declaring the election at 37 Polling Stations as void due to illegal practices having been committed and it was directed that the Appellant be de-notified and re-election be held in the said 37 Polling Stations.

4. It was contended by the learned counsel for the Appellant that the Election Petition filed by Respondent No.1, on the face of it, was not verified in terms of Order VI Rule 15 CPC, thereby the mandatory requirements of Section 55(3) of ROPA were not complied with, hence, the said Election Petition was not maintainable and ought to have been summarily dismissed. It is also contended that the application purportedly under Section 84 of the Order of 1984, filed by Respondent No.1 was illegally allowed by the learned Election Tribunal, as recounting and reexamining of the Ballot Papers and the election material, including counterfoils and Electoral Lists cannot be allowed as a matter of course. Applications, in this behalf, can only be entertained, if sufficient material has been brought on the record through cogent evidence to justify such a course of action. In the instant case, it was contended that the matter was referred to NADRA for verification of the thumb impressions without any legal or factual basis. It is added that the process of verification allegedly carried out by NADRA was conducted behind the back of the Appellant who was neither summoned nor associated with the said process, hence, such Report could not have been relied upon by the learned Election Tribunal.

It is further added that the said Report was produced by PW-4 (Maqsood Ali), who admittedly was not the author of such Report nor personally conducted the verification of the thumb impressions on the counterfoils of the Ballot Papers. Hence, such Report was not only inadmissible in evidence but could also not be relied upon by the learned Election Tribunal as a basis of passing the impugned judgment, which is therefore, not sustainable in law. It is contended that the allegations made in the Election Petition were not proved through cogent evidence, especially as Respondent No.1 did not file an affidavit-inevidence in support thereof. The learned Election Tribunal, it is contended, illegally permitted Respondent No. 1 to produce his Election Petition as evidence. Pleadings are not a substitute for substantive evidence. The learned counsel for the Appellant in support of his contentions relied upon the judgments in the cases, reported as (1) Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional Sessions Judge, Karachi and Returning Officer, Karachi West-I and 12 others (1996 SCMR 605), (2) Lt. Col. (Retd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585) and (3) Bhabhi v. Sheo Govind and others (AIR 1975 SC 2117).

5. The learned counsel for Respondent No. 1 controverted the contentions raised on behalf of the Appellant by contending that the Election Petition was duly verified and was compliant with the requirements of Section 55(3) of ROPA, as interpreted by this Court and the issue, in this behalf, has been adjudicated upon by the learned Election Tribunal in accordance with law. It is added that sufficient material was available on record to justify the referral to NADRA for verification of the thumb impressions on the counterfoils of the Ballot Papers. It is further added that according to the Report of NADRA, which is a neutral body, endowed with the statutory duty and requisite expertise to effect such verification, it is clear and obvious that more than five thousand votes were counted in the final tally, which were bogus and invalid and the lead of the Appellant is less than such invalid and bogus votes. Consequently, the learned Election Tribunal by way of the impugned judgment has rightly ordered a re-poll in the said 37 Polling Stations in respect whereof NADRA had submitted its Report. In support of his contentions, the learned counsel for Respondent No.1 relied upon the judgments in the cases, reported as (1) Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), (2) Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600), (3) Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426) and (4) Muhammad Akram and another v. Mst. Farida Bibi and others (2007 SCMR 1719).

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