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SYED KHALIQ SHAH versus ABDUL RAHEEM ZIARATWAL

70 Section 70 (b) ??? Selection of the seat of the Provincial Assembly on the basis of completely invalidating the election un Accusations of fraud and corruption or illegal proceedings on the basis of unreliable oral evidence document Absence of documentary evidence - effect question The constituencies under discussion yesterday included 51 polling stations and runner-up candidates (appellant) accused of fraud, corruption and illegal practices in 41 polling stations - out of the 41 contentious polling stations mentioned, only 10 retired candidates prevail. In the remaining 31 polling stations, either the runner-up candidate or the other candidate received the maximum number of votes. Received Votes - The comparative table of votes obtained by the runner-up candidate and some of the other candidates showed that there was no clear or marked difference in the number of votes in the polling stations where the returning candidate won. Was not Polling led voting in favor of the returning candidate was almost evenly distributed among the candidates statements Review of the statements The witnesses presented by the runner-up candidate showed that they had given in their affidavits Statements were not properly supported, contradicted themselves and did not affect their confidence in the truth and truth. Despite allegations of illegal and corrupt practices, and from duty and collusion by election officials. , At no stage was a written request filed before any authorized authority b Accused of the votes cast by any independent and reliable evidence unverified and definitely. Candidates or Election Commission officials

PLD 2017 Supreme Court 684

Present: Gulzar Ahmed,

Maqbool Baqar and Ijaz ul Ahsan, JJ

Syed KHALIQ SHAH—Appellant

versus

ABDUL RAHEEM ZIARATWAL and others—Respondents

Civil Appeal No. 13-Q of 2014, decided on 18th May, 2017. (Ijaz ul Ahsan, J)

(Against judgment dated 14.04.2014 of the Election Tribunal, Quetta-I passed in E.P. No. 67 of 2013)

(a) Representation of the People Act (LXXXV of 1976)—

—S. 70(b)—Ground for declaring election as a whole void—Election for seat of Provincial Assembly—Allegations of rigging and corrupt or illegal practices based on unreliable oral evidence—Absence of documentary evidence—Effect—Constituency in question contained a total of 51 polling stations and the runner-up candidate (apellant) alleged rigging, corrupt and illegal practices in 41 polling stations— Out of the said 41 disputed polling stations, returned-candidate prevailed in only 10—In the remaining 31 polling stations, either the runner-up candidate or other candidates secured higher number of votes—Comparative table of votes obtained by the runner-up candidate and some of the other candidates showed that even in those polling stations where returned-candidate won there was no apparent or marked abnormality in the number of votes polled in favour of the returned-candidate—Votes polled were almost evenly divided amongst the candidates—Perusal of statements of the witnesses produced by the runner-up candidate showed that they did not adequately support the statements made in their affidavits, contradicted themselves in cross-examination, and did not inspire confidence as to their truthfulness and veracity—Despite allegations of illegal and corrupt practices, and dereliction of duty and connivance on the part of the election officials, no written application was filed before any competent authority at any stage—Allegation of casting of bogus votes remained unproved and unsubstantiated by any independent and reliable evidence—None of the election agents of returned-candidate or the Election Commission officials allegedly involved in rigging or corrupt practices were named or identified—No documentary evidence of any nature to substantiate allegation of shifting of polling stations and appointment of Returning Officers and Deputy Returning Officers at the behest or under the influence of returned-candidate was brought on record—Runner-up candidate admitted in his cross-examination that he did not have any proof of the unauthorized change of election staff, and no written complaint had been filed by him or his polling agents regarding polling of bogus votes or the use of illegal and corrupt practices in any of the disputed 41 polling stations, despite the fact that he admittedly had polling agents in each of the said polling stations—On the basis of unreliable oral evidence which was unsubstantiated by any credible independent evidence and in the absence of documentary evidence, it would be unjust and unfair to unseat a returned candidate and disenfranchise the entire constituency—Appeal was dismissed accordingly. [pp* 688, 690] A, B & D

Vol. LXIX

(b) Representation of the People Act (LXXXV of 1976)—

____S. 70(b)—Ground for declaring election as a whole void—

Allegations of rigging and the use of corrput and illegal practices— Burden of proof—Onus to prove such allegations was on the person alleging such practices, [p. 689] C

(c) Representation of the People Act (LXXXV of 1976)—

—Ss. 38(S)(b) & 39(6)(a)—Election petition—Application for verification of thumb impressions on the counterfoils and recount of the ballots—Scope—Order of recount or verification of thumb impressions would only be justified where there was prima facie evidence of rigging and the casting of invalid ballots available on the record, [p. 690] E

(d) Representation of the People Act (LXXXV of 1976)—

—Ss. 38(5)(b) & 39(6)(a)—Election petition—Application for recount of the ballots—Pre-requisites and principles—Where the runner-up candidate/election petitioner wished to get ballots recounted by the Returning Officer, he was required to satisfy the Returning Officer that his request was, firstly, reasonable; secondly, prima facie there were errors, omission or flaws in the counting process and, thirdly, the allegations of impersonation or bogus votes being cast were reported in a timely manner through written applications to the competent functionaries—Recounting of ballot papers could only be ordered if the conditions laid down in such behalf were fulfilled and the Returning Officer/Election Tribunal was satisfied on the basis of material produced before it that the request was reasonable—Recount could not be granted as a matter of right on the basis of vague allegations— Power to order a recount was to be used sparingly and with circumspection, the only object being to ensure a fair and lawful result of the electoral exercise, [pp. 690, 691] F & G

Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni 1999 SCMR 284; Kanwar Ijaz Ali v. Irshad Ali PLD 1986 SC 483; Jam Madad Ali v.Asghar Ali Junejo 2016 SCMR 251 and Muhammad Ashraf Warraich v. Muhammad Nasir Cheema 2016 SCMR 998 ref.

(e) Representation of the People Act (LXXXV of 1976)—

----Ss. 38(5)(b) & 39(6)(a)—Election petition—Application for recount

of the ballots—Grounds—Mere fact that the difference in the number of voles cast for the winning and losing candidate was small was not by itself a justification for recount, especially so where a recount was not claimed at the appropriate stage before the competent-forum and no ground to justify such recount was pleaded or established, [p. 691] H

Kamran Murtaza, Advocate Supreme Court for Appellant.

Hadi Shakil Ahmed, Advocate Supreme Court for Respondent No.l. * * .

Date of hearing: 18th May, 2017.

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