Requirements for Soliciting Declaration as Elected Candidate in Election Petition

Requirements for Soliciting Declaration as Elected Candidate in Election Petition Alternate Returned Candidate Case Laws Civil Law Election Knowledge - Civil Law Litigation & Arbitration Principle - Throw Away Votes Solutions - Civil Law Supreme Court Mr. Justice Mian Saqib Nisar in his judgment has decided the issue regarding legal requirements for soliciting declaration as elected candidate in election petition in Civil Appeals No. 1611 of 2014 etc.

1. These appeals under Section 67(3) of the Representation of People Act, 1976 (the Act) have been filed against the judgment of the learned Election Tribunal, Karachi dated 19.11.2014 whereby the election of respondent No.2 (returned candidate) was set aside and respondent No.1/election petitioner (runner up) was declared to be duly elected.

2. The brief facts of the case (for the sake of convenience, we will be using C.A.1611/2014 as our reference point) are:- the appellant, respondent No.1 (respondent) and pro-forma respondents contested the general elections held on 11.5.2013 for the Provincial Assembly Constituency PS-76 Dadu-III. Respondent No.2, who obtained 56,938 votes was declared to be the returned candidate by the Election Commission of Pakistan (ECP) vide notification dated 22.05.2013, while the respondent, who secured 22,803 votes, was the runner up, and the appellant, also one of the contesting candidates, bagged 95 votes. The difference between the number of votes obtained by respondent No.2 (returned candidate) and the respondent (runner up) is 34,135 votes. The total number of valid votes cast at the election was 81,738, whereas the number of rejected votes was 2,298.

The respondent filed an election petition challenging the elections on the ground that there was widespread rigging and bogus voting at the election, that the election of respondent No.2 had been procured by corrupt and illegal practices and that there was rampant non-compliance of the provisions of the Act and the rules made thereunder, on account of which the election of respondent No.2 be declared as void and that the respondent be declared to have been duly elected, or alternatively that the election be declared void as a whole. After obtaining a reply from respondent No.2 and in view of the divergent pleadings of the parties to the election petition the learned Election Tribunal framed the following issues:

“1. Whether petition is not maintainable? O.P.R.

2. Whether this election petition is time barred? O.P.R.

3. Whether Police personal and unqualified/incompetent polling staff was deployed at the pilling stations at the command of respondent no. 1 and they openly supported the respondent no.1? O.P.P.

4. Whether the notorious criminals before the election and on the election day worked for the respondent No. 1 rigged the election and polled bogus votes at 42 polling stations mentioned in para 7(i) of the petition? O.P.P.

5. Whether Qurban Ali Joyo and Mujeeb Laghari closed polling station number 272 at about 2:30 P.M. took the entire Polling Staff to Zarai Taraqiati Bank, Mehar, there stamped the ballot papers on arrows and supplied the stamped ballot papers to various polling stations and 300/400 ballot papers were recovered from Zarai Taraqiati Bank, Mehar? O.P.P.

6. Whether respondent no. 1 and his associates attacked the Polling Stations number 35,104 and 120, injured the agents, workers of petitioners, took over the control and cast the bogus votes? O.P.P.

7. Whether Presiding Officer illegally rejected/excluded 2294 votes? O.P.P.

8. Whether Presiding Officer of Polling Station number 3 was robbed and all the election material had been taken away by the associate of respondent no. 1? O.P.P.

9. What should the order be?”

Upon giving its findings on various issues, the learned Election Tribunal came to the conclusion that the election of respondent No.2 was procured by corrupt practices and thus declared her election to be void under Section 68 of the Act, and declared the respondent to be duly elected under Section 69 of the Act. We find it expedient to reproduce the conclusion reached by the learned Election Tribunal which reads as follows:

“…On account of the findings on the issues Nos. 3 and 4 in the affirmative which relate to commission of corrupt practices it can be held without any doubt that the election of the returned candidate has been procured by the corrupt practice as defined in Section 78(2) r/w Sec. 81(1)(a) and (b) of the Act… Hence to election of the returned candidate is declared as void as provided in Section 68(1)(c) of the Act. The Petitioner being the runner up and has so claimed to be declared as elected and this tribunal is satisfied that he is entitled to be declared as such under Section 69 of the Act and therefore declared accordingly.”

3. It has been argued by the learned counsel for the appellant that the appellant has no grievance with the setting aside of the elections by the learned Election Tribunal, rather his sole attack against the impugned judgment before us today is that the respondent could not have been automatically declared to be duly elected under Section 69 of the Act, as this has resulted in the disenfranchisement of 56,938 voters. He further stated that the principle of throw away votes would only come into operation if the disqualification of a returned candidate was notorious at the time of polling, which is not the situation in the instant case. In this respect he has relied upon the judgment reported as Sh. Amjad Aziz vs. Haroon Ahtar Khan and 10 others (2004 SCMR 1484). To buttress his arguments, learned counsel for the appellant also submitted that even if the 56,938 votes cast in favour of respondent No. 2 are held to be bogus on the basis that they have been obtained through corrupt and illegal practices (which has been so held in the impugned judgment), since such number of votes (56,938) constitutes approximately 70% of the total votes cast, thus the elections stand to have been materially affected, warranting declaration of the election to be void as a whole under Section 70 of the Act. Therefore in any case, the respondent cannot be automatically declared to be duly elected, rather fresh elections must be held.

4. On the other hand, learned counsel for the respondent, while apprising us of the fact that respondent No. 2 has withdrawn her candidacy, has submitted that once the returned candidate has withdrawn then the respondent being the runner up is the only one left in the field to be declared as duly elected. Learned counsel for the respondent, in order to controvert the submissions of the learned counsel for the appellant regarding the principles of throw away votes and notorious disqualification, stated that the respondent had challenged the election of respondent No. 2 on the ground of corrupt and illegal practices and not that she was liable to be disqualified, and having successfully proved that her 56,938 votes were secured by corrupt practices, such number of votes were essentially not in fact cast in her favour and thus the respondent can most definitely be declared to be duly elected.

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