Verification and Maintainability of Election Petition

Verification and Maintainability of Election Petition Case Laws Constitutional Law Election Knowledge - Constitutional Law Litigation & Arbitration Solutions - Constitutional Law Supreme Court Verification Mr. Justice Iqbal Hameedur Rahman in his judgment has decided the issue regarding verification and maintainability of election petition in Civil Appeal No. 1002 of 2014.

1. This appeal is directed against the judgment dated 18.7.2014 passed by the learned Election Tribunal, Bahawalpur & D. G. Khan Divisions, Bahawalpur, whereby the election petition filed by Respondent No. 1 bearing number E. P. No. 13/2013 against the Appellant and 17 others was partly accepted and the election of the Appellant was declared as void and re-election ordered.

2. The relevant facts of the matter are that the Appellant and the Respondent contested elections for the seat of NA-176 Muzaffargarh-I in the general election held on 11.05.2013. The Appellant, Sultan Mahmood Hinjra was declared as the returned candidate after securing a total of 87335 votes, whereas Respondent No. 1 secured a total of 74845 votes. Accordingly, the Appellant was notified as the Returned Candidate. The success of the Appellant was challenged by Respondent No. 1 by means of an Election Petition. It was averred in the election petition that the Appellant utilized his influence in the Education Department for the appointment of Presiding and Assistant Presiding Officers favorable to the Appellant and that the objections of Respondent No.1 in this regard were not attended to; the unofficial result of 60 polling stations reflected that the Respondent No.1 had secured 29608 votes whereas the Appellant had secured 9454 votes, thereafter the results stopped coming in, however, the next morning when the unofficial results were announced, the Appellant’s votes had drastically increased to a total of 87,335 and those of the Respondent No.1 were 74,845, as such, it was stated that these results were obtained through the commission of corrupt and illegal practices as during the process of polling and counting of votes, the Presiding Officers and Assistant Presiding Officers committed corrupt and illegal practices in violation of the law.

It was also canvassed in the petition that no notice under Section 39(1) of the Representation of Peoples Act, 1976 (the ROPA, 1976) was issued to the Respondent No.1 by the Returning Officer and that no date, time or place was fixed for the consolidation of the result thereby compelling the Respondent No.1 to submit an application in this regard. It was pleaded that upon receipt of the said application, the Returning Officer (RO) fixed 15.05.2013 as the date of hearing, however, in the absence of the respondent, the learned RO illegally prepared a fictitious final result sheet dated 14.05.2013. It was stated that by relying on this forged and fictitious report and by mentioning incorrect facts in his order, the RO dismissed the said application. With regard to pre-elections disqualification, it was averred in the petition that the appellant knowingly misstated various facts and intentionally omitted/concealed important information in his nomination papers including inter alia the details of assets of his wife and children; that even though the Appellant mentioned that a criminal case bearing number 134/2000 was registered against him, but the same was cancelled pursuant to report of the Anti Corruption Establishment, however, no such report or order was produced before the learned RO.

It was further averred in the petition that the Appellant is a defaulter of payment of Agricultural Income Tax, therefore, he is disqualified from being elected as a member of the National Assembly. In this regard it was stated in the petition that Appellant’s agricultural income was Rs. 4,000,000/- ,Rs. 3,500,000/- and Rs. 4,200,000/- for the years 2010-11, 2011-12 and 2012-13 respectively, however, no tax was paid for the year 2010-11 on account of floods and paid only Rs. 1,950/- each in the year 2011-12 & 2012-13. These admissions prove that he is a defaulter as even on the said declared income, the amount of income tax payable was much more than the one paid by him. The Respondent No.1 also averred in his election petition that the Appellant acquired government land on lease situated in Mouza Parhar Sharqi by making misstatements through deed No. 1793 dated 17.09.1991 and sold half of the same on that very day and the remaining half subsequently. It was contended that the Appellant has no house adjacent to the said government land and as such he misstated when he said that he required the land for extension of his dera. The Respondent No.1 also stated in his petition that the Appellant illegally procured allotment of a plot which was a part of a scheme prepared by the provincial government for the poor and the down trodden. The Respondent No.1 also stated in his petition that the process of the election was rife with instances of corrupt practices, in that, the ballot papers were handed over by the polling staff to the polling agents of the Appellant who marked stamps thereon, fictitious ballot papers were issued to favour the Appellant, the Appellant’s polling agents opened the ballot boxes and started process of counting of votes themselves, during which the polling agents of the Respondent No.1 were not allowed to be present and that to facilitate this, Presiding Officers and Assistant Presiding Officers prepared false reports.

The Respondent No.1 also alleges in his petition that during counting of votes several ballot papers were observed to have not been issued at the concerned polling station, and that after the process of counting was complete, the Presiding Officers did not prepare statement of count in the prescribed form. Additionally, it was urged that the Presiding Officer also did not prepare the prescribed forms showing the number of ballot papers entrusted to him, number of un-issued ballot papers, number of ballot papers taken out from the boxes and counted, number of tendered ballot papers, number of challenged ballot papers and number of spoilt ballot papers and further that at all the polling stations, the Presiding Officers did not give any certified copy of statement of count and the ballot paper account to the polling agents of the Respondent No.1. To substantiate this allegation, it was averred that no statement of count or ballot paper account contains the signature of the polling agents of the Respondent No.1. The Respondent No.1 also averred in his petition that 40,000 bogus ballot papers/votes were added in the record to ensure the success of the Appellant. Further, that Mr. Asghar Ali Pachar Advocate, who appeared before the RO at the time of consolidation of result had not been appointed by Respondent No. 1 as his attorney. While relying on major differences of about 9,900 votes cast for NA-176 and for PP- 251 & PP-253 at the common polling stations of these constituencies, as well as in the unofficial and official results, inasmuch the votes of the Appellant increased but the number of votes of the Respondent No.1 were decreased, as a result the entire election was conducted in an illegal and non transparent manner, and accordingly prayed for the declaration that the election of the Appellant as void and that the Respondent No.1 be declared as returned candidate, or in the alternative, the election as a whole be declared as void.

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