Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 13 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 29.04.2019.

Mr. Ghulam Shabbir Dayo, Advocate for the petitioner.

Mr. Qurban Ali Malano, Advocate for respondent No.1.

Mr. Muhammad Mehmood Khan Yousfi, Deputy Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – Petitioner has filed this petition under section 139 read with 156 of Elections Act, 2017, primarily raising two grounds for declaring the nomination papers and the elections as null and void.

2. The notices were issued to respondents and respondent No.1, being returned candidate, filed reply. The issues were framed on 31.10.2018, which are as under:-

“ 1. Whether the nomination of the returned candidate was invalid?

2. Whether the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a Member?

3. Whether the election of the returned candidate has been procured or induced by any corrupt or illegal practice?

4. Whether a corrupt or illegal practice has been made by the returned candidate or his election agent or by any other person with the consent or connivance of the candidate or his agent?

5. What should the order be? ”

3. From petitioner’s side Mir Ghalib Hussain Khan examined himself along with one witness namely Mughal Khan and they were subjected to cross-examination whereas Mr. Qurban Ali Malano, learned counsel representing respondent No.1, opted not to lead any evidence.

4. Petitioner in his deposition/evidence has not produced any document as exhibits except an order passed in Election Appeal No.117 of 2018 by the Sukkur Tribunal at Sukkur as Ex.P-1/B.

5. I have heard the learned counsel and perused the material available on record.

6. In support of the contention and grounds raised in the petition, it is urged by the petitioner that the nomination papers of respondent No.1 were incorrectly and wrongly admitted as he failed to qualify the rigors of Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan. It is claimed that on objections filed by one of the contesting candidates who is respondent No.6 here, an additional affidavit was filed disclosing / tempering with record and the Tribunal failed to examine such concealment of facts as he (returned candidate) had not disclosed name of his daughter in his first affidavit, which was later, in the second affidavit revealed as Iqra.

7. The other ground, as raised is corrupt and illegal practices allegedly being exercised by respondent No.1. It is claim that on 25.07.2018 when elections were held, the representatives / polling agents of the petitioner were ousted at the time of counting from most of the polling stations of the constituency and the polling agents were not allowed to witness the counting process. It is claimed that in most of the polling stations counting process was extremely delayed and that the duly signed Form-45 were not provided by the Presiding Officers to the polling agents of the petitioner. In support of this contention petitioner also examined one witness namely Mughal Khan as PW-1.

8. Let us first make the analysis of the cross-examination of the petitioner who claimed to have witnessed these discrepancies which are alleged to be corrupt and illegal. The petitioner however has not been able to place any documentary proof in that regard. Even no document in respect of perjury in the alleged affidavit, which is claimed to have been filed after the objections were raised by respondent No.6, was exhibited. Even the objections of the nature, as highlighted in the petition and affidavit-in-evidence, were not raised by the petitioner and his witness during their evidence. The petitioner and his witness have not raised any objection at any stage till the nomination papers were accepted by the Sukkur Tribunal in Election Appeal No.S-117 of 2018.

9. Furthermore, the witness of the petitioner was neither an authorized representative nor the polling agent of the petitioner at any polling station. He simply claimed to be a witness in the above matter and has not been able to point out any illegal or corrupt practice at any particular polling station with reference to any particular presiding officer or polling staff in collusion with returned candidate. He also claimed to be in relation with the petitioner. The credibility of this witness is ordinary.

10. Insofar as the evidence of the petitioner/the runner-up candidate is concerned, he also admitted that he never raised any objection as far as nomination papers of respondent No.1 are concerned. He claimed to have leveled allegations in respect of polling station No.145 where he got 364 votes whereas returned candidate secured 20 but he failed to point out what corrupt or illegal practice was observed or exercised by the returned candidate in collusion with the official polling staff. He was also not present at the subject polling station and is also not in a position to say whether objections were raised by the returned candidate against Assistant Presiding Officer that she was holding six ballot papers which were snatched by returned candidate from her. He was only informed about such incident as the said polling station was situated near his house. In respect of the said incident an FIR appears to have been lodged bearing No.58 of 2018 by the Returning Officer but it was disposed of in Cancelled Class. The petitioner was not an eye witness of the incident stated above nor any eye witness was produced or summoned. Even the returned officer who lodged the complaint or the Presiding Officer and/or Assistant Presiding Officer were not examined in the case.

11. In the latest enactment of Election Law i.e. Elections Act, 2017, the illegal and corrupt practices of the election officials is to be established not only in isolation but in collusion with returned candidate. In the instant matter petitioner has not been able to examine any eye witness who could said to have seen the incident in his own eyes. It is only hearsay on the basis of which the petitioner and his witness have deposed. Even the affidavit which was claimed to have been filed subsequently at the time of filing nomination paper, disclosing the name of a daughter of respondent No.1 has not been exhibited.

12. It is thus a case which is not seriously contested by petitioner and even the officials around/against whom the story revolve were not summoned or examined by the petitioner to prove his assertion vis-à-vis corrupt and illegal practices. Thus in the absence of any material in support of petitioner’s case or contrary to the order of Sukkur Tribunal whereby nomination papers of returned candidate were accepted, the nomination papers of the returned candidate cannot be invalidated as this Commission is not an appellate authority of an earlier Sukkur Tribunal constituted to scrutinize the nomination papers of the candidates under the law.

13. Upshot of the above discussion is that petitioner has failed to establish any of the issues, the burden of which was upon him, hence the Issues No.1 to 4 above are answered in negative and resultantly Issue No.5 is answered to the effect that instant Election Petition was dismissed along with pending applications vide short order dated 29.04.2019 of which these are the reasons.

J U D G E

Abdul Basit