Requirement of Positive Evidence to Prove Illegal Practices in Election

Requirement of Positive Evidence to Prove Illegal Practices in Election Case Laws Civil Law Election Evidence Knowledge - Civil Law Litigation & Arbitration Solutions - Civil Law Supreme Court Mr. Justice Mian Saqib Nisar in his judgment has decided the issue regarding the requirement of positive evidence to prove illegal practices in Civil Appeal No. 1086 of 2014.

1. This appeal under Section 67(3) of the Representation of People Act, 1976 (the Act) is directed against the judgment of the learned Election Tribunal, Karachi dated 7.8.2014 whereby the election of the appellant (returned candidate) was set aside and the respondent No.1/election petitioner (runner up) was declared to be the returned candidate.

2. The brief facts of the case are:- elections in PS-93 Karachi were held on 11.5.2013 for which twenty-nine candidates contested, including the appellant and respondent No.1 (respondent). The appellant, who was declared a returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.5.2013, obtained 15,432 votes, while the respondent, securing 10,960 votes, was the runner up, and another candidate, namely, Bashir Jan (at third position) scored 9,664 votes. The difference between the number of votes obtained by the appellant and the respondent is 4,472. The respondent filed an election petition on the ground that massive rigging had taken place in the elections and that illegal and corrupt practices were resorted to on account of which the election of the appellant be declared as void and the respondent be accordingly declared as the returned candidate. It may be pertinent to mention here that according to the contents of the election petition, this massive rigging etc. has been alleged and restricted to nine polling stations, i.e. 2, 18, 23, 29, 32, 55, 68, 71 and 77, but subsequently the respondent confined himself to only seven polling stations, i.e. 2, 18, 23, 29, 32, 55 and 68. It may also be added that the case of the respondent was that the Returning Officer and the Presiding Officer of these polling stations manipulated the results. After obtaining a reply from the appellant, the learned Tribunal framed the following issues:

“1. Whether the petition is maintainable in accordance with the law.

2. Whether the petitioner had obtained the votes as mentioned by him in his petition in paragraphs no.15(c) and 15(d)?

3. Whether the Presiding Officers of polling stations no.29, 32, 68, 71 and 77 of the constituency had issued statements of count (Form-XIV) to the petitioner showing his votes as mentioned in paragraph 15(c) of the Petition?

4. Whether the respondent no.1 didn’t obtain the votes at polling station no.2, 18, 23, 29, 32, 55 and 68 of the constituency and consolidated statement of count (Form XVI) issued by the Returning officer in respect of these polling stations is not in accordance with the statements of count (Form XIV) issued by the Presiding Officers of these polling stations?

5. Whether the returning officer had failed to issue notices to the contesting candidates before the consolidation of the result in form XVI in accordance with the law?

6. Whether the Respondent No.1 or his agents have committed any act of illegal practice during the polling?

7. Whether the Presiding Officers of the above mentioned polling stations and the Returning Officer in connivance with each other committed illegal act or illegal practice to support the Respondent no.1 if yes, its effect?

8. Whether the election of the Respondent no.1 (The Returned Candidate) is fit to be declared as void and the petitioner to have been duly elected?

9. What should the order be?”

Upon giving its findings on various issues, the learned Tribunal came to the conclusion that the respondent was not able to prove any illegal and corrupt practice vis-à-vis the noted seven polling stations except polling station No.29. In this context, it may be mentioned that though the case of the respondent is that there was rampant rigging in connection with polling station No.32, this plea of the respondent has been discarded and the respondent has not challenged the finding of the learned Tribunal before this Court (either by cross-objections or even orally). With regard to polling station No.29, suffice it to say that in the said polling station a total of 1,600 votes were cast out of which the appellant procured 1,400 votes while the respondent procured zero votes. The learned Tribunal, on account of the evidence, particularly the statement of Ms. Safia Sultana Malik and Ms. Saeeda Sagheer, the Presiding Officer and the Assistant Presiding Officer respectively of the said polling station, came to the conclusion that Ms. Malik had not counted the votes and committed grave illegalities in preparation of Form-XIV.

3. It has been argued by the learned counsel for the appellant that the difference of votes between the appellant and the respondent is 4,472 and even if 1,400 votes are excluded from the count, which were allegedly not properly and validly counted vis-à-vis polling station No.29, yet the appellant is a winning candidate with a margin of 3,072 votes. It is also argued that there was no evidence produced by the respondent vis-àvis corrupt and illegal practices falling within the provisions of Sections 78 and 83 of the Act. Therefore, on account of lack of such evidence the appellant cannot be prejudiced by declaring him as having procured his election through massive rigging and corrupt and illegal practices.

4. On the contrary, learned counsel for the respondent has at the very outset drawn a distinction between Sections 68 and 69 on the one hand and Section 70 on the other, stating that the question of an election being “materially affected” only relates to the latter section, when considering declaration of an election as a whole void, whereas the former sections pertain to declaration of the election of the returned candidate as void on certain grounds enumerated therein, and in this respect he particularly relied upon Section 68(c) read with Section 68(2)(a), and Section 68(d). Furthermore, he justified and defended the judgment of the learned Tribunal by submitting that from the beginning of election till the counting of votes, there have been violations of law. In this context, it is argued that it was the duty of the Presiding Officer to have counted the votes and prepared the statement of count (Form-XIV) personally which, as per the statement of the Presiding Officer herself as also the Assistant Presiding Officer, was not so done, rather the form was filled up by the Assistant Presiding Officer and this is a glaring illegality which is apparent on the face of the record. It is also stated that the Presiding Officer of polling station No.29 signed the hand-written result and provided it to the polling agents of the respondent, which result is different from that reflected in Form-XIV, which plea is also supported by the Assistant Presiding Officer.

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