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P L D 1986 Quetta 93
Before Muftakhiruddin and Mir Hazar Khan Khoso, JJ
Haji DAD KHAN‑Petitioner
versus
ABDUL RAHIM AND ANOTHER‑Respondents
Constitutional Petition No. 108 of 1984, decided on 10th November, 1985.
‑‑‑ Art. 59‑Thumb‑impression, proof of‑Thumb‑impressions taken in Court to prove bogus person having thumb‑marked ballot papers instead of real voters‑Non‑production of finger print expert, held, would render evidence on thumb‑impressions not worth reliance‑Election.
Amir Khan v. Malik Sher Jan and another P L D 1984 Quetta 146 ; P L D 1982 Quetta 126 ; P L D 1974 S C 139 ; P L D 1983 Quetta 47 ; P L D 1983 Quetta 103 ; P L D 1967 Lah. 763 ; P L D 1971 S C 811 ; P L D 1981 Quetta 15 ; P L D 1975 SC331 ; P L D 1973 S C 236 and P L D 1981 S C 245 ref.
---Rr. 102 & I 10‑Corrupt practice, proof of ‑Contradictory and conflicting evidence, held, would not prove "corrupt practices".
‑‑ S. 110(2)(6)‑Corrupt practice‑Finding of Tribunal based on no material, held, was without lawful authority which could not be sustained.
--Art. I99‑Constitutional jurisdiction, exercise of‑High Court in exercise of constitutional jurisdiction, held, would be reluctant to resolve factual controversy‑Where finding of facts was based on no evidence, or was in disregard to material available on record, same, held, could be set aside.
Irshad Ahmad v. Settlement Authority, Punjab 1981 S C M R 758 rel.
‑‑ Art. 199‑Order based .on no evidence‑Effect‑Setting aside illegal order of Tribunal based on no evidence, held, would foster justice rather than to perpetuate injustice ‑Facts disclosed before Tribunal justified such action of High Court in its constitutional jurisdiction.
Basharatullah for Petitioner.
Ehsan‑ul‑Haq for Respondent No. 1.
Dates of hearing : 28th and 29th October, 1985.
‑This petition is directed against the judgment, dated 19th September, 1984 passed by Election Tribunal, Quetta in Election Petition No. 12 of 1983 whereby, the election of the successful candidate the petitioner from Sambaza Constituency was declared void and fresh election ordered.
2. The facts giving rise to this petition are that the petitioner Dad Khan and respondent Abdul Rahim alongwith two other persons Ibrahim Khan and Muhammad Ismail who are not before us in this petition contested ele::tion for District Council seat from Sambaza Constituency. It is a% erred that due to private settlement two candidates Ibrahim Khan and Muhammad Ismail by not placing their ballot boxes did not contest the election at the tire, of polling. The only contesting candidates remained in field were the petitioner and the respondent No. 1 and they secured Bores as under:
Polling Total votes Votes Votes polled Votes poll
Station. casted. for petitioner for the
respondent.
1. Ahmad Khel 389 51 13 38
2. Sambaza. 367 176 61 115
3. Behlol. 569 185 176 9
4. Gul Kachh 877 750 205 545
5. Samazai/Mulhan 216 50 40 10
According to the official result declared by the Returning Officer the votes secured by the petitioner were 770 and that of the respondent No. 1 were 495. The petitioner ‑as declared successful candidate by the Baluchistan Election Authority vide Annexure 'C'.
3. Being aggrieved and dissatisfied with the above result the said respondent No. 1 challenged it before ,the Election Tribunal on grounds shown herein as under :‑
"(a) That all the 750 votes cast at the polling Station Gul Kachh are bogus and cannot b: counted towards the votes either secured ay the petitioner or the respondent Na. .
(b) That neither any separate polling arrangements for lady votes were made nor any lady voter had come to cast her vote, therefore, all the votes allegedly cast on behalf of the lady voters are also bogus.
(c) That in all about 100 voters had come to cast their votes at Gul Kachh Polling Station but none of them was allowed to even enter the Polling Station.
(d) That a scrutiny and examination by Finger expert would go to prose that all the counter‑foils of 750 Ballot papers at Gul Kachh Polling Station bear the thumb‑impressions of the above mentioned respondent No. 1 and his 9 companions.
(e) That the. percentage of votes allegedly cast at Polling Station compared with other Polling Stations in the entire District‑would also go to prove that the entire polling at Gul Kachh was bogus and illegal.
(f) That if the bogus votes shown to have been polled at Polling Station Gul Kachh are excluded from the dotes secured by the petitioner and the respondent No. 1 from the votes secured by them from other polling stations then the petitioner stand selected. The number of votes secured by the petitioner and the respondent No. 1 are respectively 290 and 170.
(g) That the respondent No. 1 and his companion are guilty of corrupt and illegal practices which were, committed by them at Polling Station Gul Kachh.
(h) That the election of the respondent No. 1 has been procured by corrupt and illegal practices, hence, the bogus votes shown to have been secured by respondent No. 1 at Polling Station Gul Kachh are void and cannot be counted in his favour.
(i) That by failing to make separate arrangement for the lady voters. almost half of the Electoral College at Polling Station Gul Kachh has been defranchised.
(j) That as many as 5 votes on behalf of dead persons were exercised by the respondent No. I through his companions as bogus voters. The detail of the dead persons are as under :‑
"(1) Mir Payo son of Muhammad Jon.
(2) Bakai son of Khan Mir.
(3) Amin Jan son of Razak Khan.
(4) Saleh son of Razak Khan.
(5) Doulurzai son of Khonai.
(k) That on facts of the case and the relevant law the election of the respondent No. 1 is void."
4. On contest of the petitioner the learned Tribunal framed the following two issues for consideration : ‑
"(1) Whether the respondent has committed corrupt and illegal practices as mentioned in the petition and has caused the polling of bogus votes, if so to what effect
(2) Relief."
In support of his petition before the Tribunal the respondent examined himself and witness Ghulam Qasim, Polling Officer, Amanullah, Shafiq Ahmad, Presiding Officer, Abdul Razaq, Assistant Presiding Officer, Haji Baz Gul his father and Noor‑ul‑Haq a representative of Returning Officer. On the other hand in rebuttal the petitioner Dad Muhammad examined himself and witnesses Saifullah, Naib‑Tehsildar. Abdullah Khan, Noor‑ul -Haq, Inzar Gul, Hukam Khan and Moosa Kalim.
5. Vide his order, dated l9th September, 1984 the learned Tribunal allowed the petition in the words as follows ;
"I have already discussed that the persons not eligible to vote but casting the vote amounts to illegal practice as given in the definition. In the present case illegal practice was committed by the respondent No. I or his agents or persons representing him at the polling station. In view of this finding, issue No. 1, the election of respondent No. 1 is held void under rule 70 of Baluchistan Local Government (Election) Rules, 1983. After the election is declared void, it is ordered that fresh election should be held for the constituency in question."
Against the above said order the petitioner has come in this petition before us.
6. Mr. Basbaratullah, Advocate appeared for the petitioner and Mr. Ehsan‑ul‑Haq, Advocate appeared for the respondent No. I and nemo for respondent No 2. .
7. In support of his petition Mr. Basharatullah the learned counsel for the petitioner urged
(i) That on no grounds other than enunciated under rule 70 of the Baluchistan Local Government (Election) Rules 1983 (hereafter referred to as the Rules) read with section 110 (amended) of the Local Government Ordinance of 1983 (hereinafter referred to as the Ordinance), the Election could be declared void but the Election Tribunal on extraneous grounds declared it so.
(ii) That there was no material available or the record to establish that the petitioner, bad committed corrupt practice as envisaged under aubsections(2);,and (6) of section 1J0 of the Ordinance.
(iii) That even if the number of female voter counted in favour of the petitioner at polling station were excluded from his count even then under rule 72 he shall still be declared as successful candidate.
8. The learned counsel relied on case of Amir Khan v. Malik Sher Jan and Another (P L D 1984 Quetta 146), where it has been held
"It has been laid down in rule 70(2) of the Baluchistan Local Government (Election) Rules, 1983 that the election of returned candidate shall not be declared void on the ground
"(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed, by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission."
The election of the petitioner could not be declared void as there was no believable independent evidence on record that any malpractice was committed either by the present petitioner or with his connivance by any other person."
On the other hand, repudiating the contentions raised by the learned counsel for the petitioner Mr. Ehsan‑ul‑Haq the learned counsel for the respondent No. 1 contended : .
(i) That the learned Tribunal on the grounds laid down under rule 70 of the Rules read with section 110 of the Ordinance had rightly declared the election void.
(ii) That the question advocated by the petitioner involved decision on disputed facts which could not be either probed in or resolved 6y this Court in extraordinary Constitutional Jurisdiction.
(iii) That the polling conducted at Gul Kachh in the attending circumstances was nothing but a farce, therefore, under law and justice the same cannot be upheld as it was rightly declared void by the Election Tribunal.
(iv) That at Gul Kachh Polling Station the petitioner and his companion surrounded the polling station and did not allow the agent of respondent to enter and even . utilized authorities and his agents and set their own men and the cast votes were snatched by their own bands, hence the election was illegal and void.
(v) That no separate arrangement for female voters was arranged for the above said polling station as such no lady appeared and they were deprived .of the right of franchise their votes were cast by their own male members in violation of rules 30 and 34 of the Election Rules,
(vi) That if female votes of the petitioner were excluded from the petitioner's count, he would not gain the top position.
(vii) That the impugned order was passed to foster justice and undo injustice hence it be retained.
9. In support of his contention Mr. Ehsan‑ul‑Haq the learned counsel for respondent has relied upon the cases :
(1) P L D 1982 Quetta 126. (2) P L D 1974 S C 139.
(3) P L D 1983 Quetta 47/103. (4) P L D 1967 Lab. 763.
(5) P L D 1971 S C 811. (6) P L D 1981 Quetta 15.
(7) P L D 1975 S C 331. (8) P L D 1973 S C 236.
(9) P L D 1981 S C 245 .
At the very out set it may be pertinent to observe that the learned Tribunal had declined to accept the other grounds agitated by the respondent No. 1 before it but only on ground of corrupt practice as found to have been committed by the petitioner and his agent declare the Election void. The findings of the learned Tribunal in that respect are as under :‑
"The first point raised on behalf of the petitioner is that the election was not held according to the rules.' No female voter had come to the Polling Station to cast her vote. The unqualified persons had voted on their behalf. This fact is admitted by the witnesses produced by the petitioner and the respondent No. 1. According to them it was agreed between the contesting parties or their agents that the male relations of the female voters will cast the votes on behalf of their related female voters. It was further argued that some persons had forcibly taken the book of the ballot piper from the Election Stag' and even votes on behalf of the male voters were cast by them. In this respect, I have to point out that the petitioner has failed to produce any evidence on this point."
The Advocate for the petitioner has referred to rules 70 and 71 of the Baluchistan Local Government (Election) Rules, 1983. The relevant clauses of rule 70 are c' and 'd' which are as under :‑
(c) the election of the returned candidate has been procured of induced by any corrupt or illegal practice ;
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
He has also referred to rule 70(2)(x) of the same Rules which is as under :‑
(2) (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission ;
It was also argued on behalf of the petitioner that Khial Muhammad and Muhammad Ayub were not his agents. The blank forms for appoint ment of agents were taken by the respondent No. 1 and he bad filled in the names of Khial Muhammad and Muhammad Ayub as agents of the petitioner in those forms. Khial Muhammad and Muhammad Ayub were the material witnesses on this point but they have not been examined by the petitioner or of respondent No. 1. The evidence produced in this respect by the petitioner is not conclusive or satisfactory to prove this fact beyond any reasonable doubt.
It was also argued on behalf of the petitioner that about nine persons on behalf of the respondent No. I were taking the books of ballot papers from the Election Staff, putting their thumb impression on them and they were casting the votes in place of real voters. It was further argued that the counter‑foils of the ball)( papers war: thumb marked by these persons in place of real voters. This fact could have been proved with the evidence of finger Print Expert who after checking the thumb impression on the counter‑foils of the ballot papers could have given the evidence on this point. The thumb‑impression of such persons were taken in Court vide Exh. 3. As the petitioner did not examine the Finger Print Expert and hence, the evidence on this point produced by the petitioner is not worth reliance.
In Ordinance XI of 1983, the Baluchistan Local Government (3rd Amendment) Ordinance 1983 under rule 102, corrupt practice has B been defined. I have gone through this rule and I find that none of the provisions given thereunder are applicable to the facts of this case. He has also referred to rule 1.10 of Ordinance XI of 1983 under which illegal practice has been defined. The sub‑rule (2) of this Rule is as under
(2) votes ; or applies for a ballot paper for voting at an election knowing that he is not qualified for voting or is disqualified from voting ;
He has also referred to sub‑rule (6) which is as under :‑
(6) knowingly induces or procures any person to do any of the aforesaid acts."
In view of these election rules; it was argued on behalf of the petitioner that the vote and the persons who had voted for the female voters were not qualified for voting and even they were disqualified from voting. As such the petition is covered by rule 70 of the Baluchistan Local Government (Election) Rules 1983.
It was argued on behalf of the respondent No. 1 that the definitions as given under rules 102 and 110 in Ordinance XI of 1983 should be kept in view while deciding the petition. He has also argued that these definitions are not applicable to this election petition‑ He has, also argued that the allegations in paras. 6, 7, 8, 9, 11. and 13 of the petition should be considered while deciding the petition. Here I may point out that in para. No 7 of the election petition it is specifically stated that no lady vote[ had come to the Polling Station Gut Kachh to cast her vote. The voters list Exh. P/4 has been produced by Noor‑ul‑Haq Exh. 10 in which even the names of the female voters have been marked which clearly show that the votes of the female voters were cast in the election. It was argued on behalf of the respondent No. 1 that the votes of the female voters may be excluded from counting and thereafter. the result of the election be decided. According to him under rules 70 and 71 of the Baluchistan Local Ordinance (Election) 1983, there are no grounds for disturbing the election. He has referred to section 19 of West Pakistan General Clauses Act 1956 which is regarding construction of orders to issue under enactments which is as under :‑
"Whereby any West Pakistan Act, a power to issue any notification, order, scheme, ruler form, or bye‑law is conferred, then, expres sion used in the notification, order, scheme, rule, form or bye‑law ball unless there is anything repugnant in the subject or context have the same respective meanings as in the Act conferring the power."
During the course of arguments, he had referred to para. 8 of the election petition which is as under : .
"That all the 750 votes carted in Polling Station Gut Kachh were bolus. In fact no voter was allowed to' enter the polling station and even otherwise the total number of voters who had come to this polling station were about 100."
These allegations have not been proved with evidence produced by. the' petitioner. The evidence on this point is contradictory and conflicting with each other and as such it cannot be relied upon implicitly.
The Advocate for the petitioner has referred to rule 34 of Baluchistan Local ‑Government (Election). Rules 1983 which is regarding the voting procedure. Its clauses' E and F' of sub‑rule (1) have been referred, which are as under :‑
(e) the ballot papers, shall on its back be signed by the Presiding Officer or the Assistant Presiding Officer ; and
(f) the number of the voter on the electoral roll shall be endorsed on the counterfoils by the Presiding Officer who shall sign it and also obtain thereon the thumb‑impression of the voter.
As I have Pointed out. above the counter‑foils of some of the votes are not signed by the Presiding Officer as noted down by me, on Exh. 15. He has also referred to rule 40(4) (a) which is regarding excluding the invalid votes from the counting which do not bear the signature of the Presiding Officer.
10. In view of such position the main point that needs consideration of this Court is regarding the findings of the learned Election Tribunal whether any corrupt practice was committed by the petitioner or his agent or any other person representing him at the Polling Station Gul Kachh. In that context, it would be pertinent to reproduce rule 70 of the Rules and section 110 of the Ordinance which have been monotoneously referred and relied upon before us by both the learned counsel for the parties
"70. Ground for declaring election of returned candidate void.‑‑(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that
(a) the nomination of the returned candidate was invalid, or
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from being elected as a member, or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ;
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any, other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed, by or with the consent or connivance of that candidate or his election agent and
that candidate and the election agent took all reasonable precaution to prevent its commission ; or
(b) that any of the other contesting candidate was, on the nomination day, not qualified for or was disqualified from being elected as a member."
"110. Illegal practice.‑A person is guilty of illegal practice if be (1) obtains or procures ; attempts to obtain or procure, the assistance of any officer or official of the Federal Government. Provincial Government or the Local Authority to further or hinder the election of a candidate ;
(2) votes or applies for a ballot paper for voting at an election knowing that he is not qualified for voting or is disqualified from voting ;
(3) votes or applies for a ballot paper for voting at one polling station for the same election for more than once‑ in the same polling station ; '
(4) votes or applies for a ballot paper for voting at more than one polling station for the same election or in more than one ward in the course of the same election ; '
(5) removes a ballot paper or a ballot box from a polling station or destroys, damages or tampers with a ballot box used at a polling station ;
(6) knowingly induces or procures any person to do any of the aforesaid acts ; and
(7) fails to provide statement of election expenses as may be prescribed."
11. The learned counsel for the petitioner has contended that on facts disclosed by the respondent No. 1 in his petition and evidence produced by him before the Election' Tribunal do not make out a case so as to fall within the mischief of rule 70 of the Election Rules read with sub sections (2) and (6) of section. 110 of the Ordinance. The learned counsel complained that though the respondent No. 1 had failed to establish that corrupt practice had been committed by or with the consent or connivance of the petitioner or his election agent or any person representing him yet the learned Tribunal, declared the Election void. In reply, Mr. Ehsan- ul‑Haq Advocate the ‑learned counsel for the respondent stressed that on face of it the petitioner's act falls within the ambit of subsection (2) read with section 6 of section 110 of the Ordinance and he is guilty of illegal practice as his agent knowingly had induced males instead of female voters to vote or apply for ballot paper for voting in the election knowing that they were not qualified for voting.
12. Whereas Mr. Basharatullah the learned counsel for the petitioner reiterated that even the evidence relied upon by the respondent does not prove that the petitioner or his agents had enduced the male voters to votes or apply for ballot paper for voting him at the above said polling station.
13. The learned counsel for respondent No. I further vehemently contended that there was sufficient evidence on record to connect the petitioner with such connivance as according to him his agents in absence of female vote had consented for getting recorded their votes by their own male members. In that context, he relied on the statement of the petitioner which reads as under :‑
"There was no separate arrangement for the female voters and hence, it was settled between my agents and the agents of the petitioner that the fathers or husband of the female voters will cast votes on their behalf."
This evidence by itself does not indicate that the petitioner or his agent had connived‑at for inducing or procuring such votes of females through their males as defined under subsections (2) and (6) of section 110. Besides according to the statement of witnesses the agent of the respondent had also consented to such settlement. No other evidence was produced by the respondent to support his contention.
14. Indeed there was no material available before the Election Tribunal for having reached to the conclusion that the petitioner or his agent or person representing him at the polling station had committed the illegal practice as given in the definition hereinabove. In view of such facts, it cannot be imagined for a moment that decision of the learned Tribunal;. based on the material available on the record, hence, we are not inclined to sustain the order as having been passed with lawful authority.
15. Reverting to the second preliminary ground of the learned counsel for the respondent No. 1 that facts involved in the petition requires probe into factual controversy, which the High Court in its Constitutional Jurisdiction is incompetent is devoid of, force. It has been well established by now that though the High Court in exercise of writ jurisdiction may be reluctant to resolve factual controversy, yet if the finding of facts of the subordinate Tribunal are based on no evidence, whatsoever, or proceeds in disregard to the material available on the record then its order could be set aside. In that context our views get support from the proposition enunciated in case of Irshad Ahmad v. Settlement Authority Punjab (1981 S C M R 758), wherein it has been held :‑
"There was no legal impediment in the way of the learned Judge in the High Court interfering with a finding of a fact recorded by the Deputy Settlement Commissioner which was clearly against the material on record. It is well‑established that ordinarily a finding of fact will not be interfered with by the High Court in the exercise of its writ jurisdiction, but if the finding is not based on any evidence whatsoever, or proceeds in disregard of material evidence, then it can be set aside."
In the petition., we have not probed into any question of fact on which. there was any dispute between the parties but have decided the petition on the facts admitted or relied upon by the respondent No. 1 himself.. It may be observed that the impugned order passed by t to Election Tribunal is based on no evidence and the facts disclosed by the respon dent No. 1 do not support his contention on the contrary‑strengthens they stand of the petitioner.
16. The setting aside the illegal order of the Election Tribunal in the attending circumstances of the case in the hand as set hereinabove, would foster justice rather than to perpetuate injustice as contended by the learned counsel for the respondent No. 1. In that respect the objection pleaded by the learned counsel for the respondent has no force.
17. The learned counsel for the respondent No. 1 had placed reliance on the citations referred hereinabove, but in our view, they have . no relevancy with the facts of the case nor in any way support his objections.
18. In view of our discussion hereinabove, we set aside the order dated 19th September, 1984 of the Election Tribunal and decline the same as having been passed without lawful authority and of no legal effect.
In the circumstances, the parties are, left to bear their own costs.
A. A. Petition allowed.
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