IN THE HIGH COURT OF SINDH, CIRCUIT COURT, SUKKUR

Election Appeal No.S-01 of 2018

[Allah Bux Khan Almani Vs. Mukhtiar Ahmed Sahito and 3 others]

Date of hearing : 01.06.2018.

Date of Decision : __________

Appellant

[Allah Bux Khan

Almani] : Through Mr. Nisar Ahmed Bhanbhro,

Advocate.

Respondent No.1

[Mukhtiar Ahmed

Sahito] : Through Mr. Manoj Kumar Tejwani, Advocate.

: Mr. Jamshed Ahmed Faiz, Assistant Attorney General.

Case law cited by the Appellant’s counsel.

1) 2016 SCMR page-690

[Asghar Ali Sheikh and another v. Liaquat Ali Jatoi and others]

(Liaquat Ali Jatoi case).

2) 2017 SCMR page-292

[Usman Dar and others v. Khawaja Muhammad Asif and others]

(Usman Dar case).

3) 2016 SCMR page-733

[Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others]

(Akram case).

Case law relied upon by Respondents’ counsel.

1) 2012 SCMR page-280

[State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others]

2) 2010 SCMR page-286

[Muhammad Hussain and others v. Dr. Zahoor Alam]

3) 2013 MLD page-1132

[Engr. Inam Ahmad Osmani v. Federation of Pakistan and others]

(Osman case).

4) PLD 2003 Karachi page-691

[Jehan Khan v. Province of Sindh and others]

(Jehan Khan case).

Other Judicial Precedent.

2007 SCMR page-569

[Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another)

(Foundation case).

Law under discussion : (1). The Constitution of the Islamic Republic

of Pakistan, 1973.

(2) Sindh Local Government Act, 2013

(the “Election Law”),

(3) Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”).

(4). Civil Procedure Code (CPC)

(5). Qanoon-e-Sahadat Order, 1984.

(Evidence Law).

JUDGMENT

Muhammad Faisal Kamal Alam, J: The Appellant is aggrieved of the Judgment dated 12.12.2017 handed down by the learned Election Tribunal in an Election Petition No.35 of 2017, preferred by the present Respondent No.1 (Mukhtiar Ahmed Sahito), who was a runner up and consequently the Election Petition was granted, as a result whereof the present Appellant (Allah Bux Khan Almani), who was earlier notified as the returned Candidate, was unseated and Respondent No.1 was notified as the successful Candidate against the seat of Member District Council, UC-9, Manjuth, Naushero Feroze.

2. The present Appellant, Respondent No.1 and private Respondents No.8 to 12 contested the Local Government Elections held in the year 2015 for the Seat of Member District Council, Union Council Manjuth, Taluka Kandioaro, District Naushero Feroze.

3. Admittedly, after passing of the impugned Judgment, the Respondent No.2-Election Commission of Pakistan has issued a Notification dated 08.01.2018, whereby, the present Respondent No.1 was notified as the Returned Candidate against the Seat of Member District Council, U.C-9, Manjuth, Naushero Feroze, while denotifying the present Appellant. Copy of the Notification dated 08.01.2018 has been produced under the Statement (of 01.06.2018) filed by the learned counsel for the Appellant, as well as with the Counter-Affidavit of present Respondent No.1 (Annexure “P/1”).

4. The Respondent No.1 being the Petitioner of afore mentioned Election Petition, has stated, inter alia, that the present Appellant employed illegal and corrupt practice with the ulterior motives to succeed in the Election. It is submitted that statement of count at Polling Stations GPS Tagar and GPS Sabab Abro (Male) were manipulated, in order to give a lead of two Votes to the present Appellant. It is further averred in the Election Petition that despite making Representation to the official Respondents, the grievance of the present Respondent No.1 was not addressed, while further alleging that the present Respondents No.3, 4 and 5 actively connived with the present Appellant for his success in the above Election. Respondents have filed their respective Written Statements. The present Appellant as Respondent No.7 refuted charges leveled in the Election Petition, while maintaining that the success of present Appellant was genuine and the latter (Appellant) secured more votes than the present Respondent No.1. The Respondent No.7 (present Appellant) has also raised question of maintainability of the Petition. The official Respondent No.2 (Abdul Hameed Tanwir), the Returning Officer has filed his Written Statement and disputed the claim of present Respondent No.1. Similarly, the present Respondent No.4 has also filed his Written Statement and disputed the claim of Respondent No.1. Interestingly, the present Respondents No.5 and 6, who were the Presiding Officers of Polling Station No.2 GPS Tagar and GPS Sabab Abro (Male), filed the supporting Written Statement in favour of the Election Petition preferred by the present Respondent No.1.

5. From the divergent pleadings of the parties, following Issues were framed_

“1. Whether the election petition filed by petitioner Mukhtiar Ahmed Sahito is not maintainable under the law?

2. Whether the returned candidate viz. the respondent No.7 who contested the Local Bodies Election for the Seat of Member of District Council with the petitioner held on 17.12.2015 in collusion with the other respondents and the Polling Personnel of GPS Taggar and Sabab Abro through corrupt and illegal practice defeated the petitioner?

3. Whether the impugned result/Gazette Notification issued in favour of returned candidate is based on illegal practice tempering, rigging, manipulation, forged and fabricated, as alleged by petitioner and liable to be declared as null and void?

4. Whether the petitioner is entitled for the relief, as claimed so far?

5. What should the result be?”

6. Mr. Nisar Ahmed Bhanbhro, the learned counsel representing the Appellant has questioned the above Judgment on different grounds. He has argued that the Election Petition itself preferred by present Respondent No.1 was not maintainable as it was not filed in compliance of the afore referred Election Rules 60 to 64. He has further stated that the present Appellant was not given ample opportunity to lead the evidence as the side of the present Appellant was closed. To further substantiate this ground, he has placed reliance on Article 10-A of the Constitution of Islamic Republic of Pakistan. He has argued that the present Respondent No.1, who was admittedly the runner up candidate, could not have declared as a Returned Candidate, as this finding of the learned Election Tribunal is contrary to the Judgment of Hon’ble Apex Court given in Liaquat Jatoi Case (supra).

7. Mr. Manoj Kumar, the learned counsel representing the present Respondent No.1 (who is now a notified Returned Candidate) has fully supported the impugned Judgment while controverting the submissions of the Appellant’s side; the learned counsel for the Respondent No.1 argues, that the present Respondent No.1 has proved his case and the illegal corrupt practice resorted to by the present Appellant since was proven, therefore, the learned Election Tribunal rightly pronounced the Judgment. He has further argued that the present Appellant deliberately avoided to lead the evidence because he has / had no case and this aspect has been clearly highlighted in the order of 24.11.2017 passed by the learned Election Tribunal, whereby, the side of the present Appellant to lead the evidence was closed. He has further argued that conduct of the present Appellant before the proceeding below was always questionable and therefore, he is not entitled to any relief. He has relied upon the case law mentioned in the opening part of this Judgment. He has further cited two Judgments handed down in Osmani and Jehan Khan cases (supra) that non filing of Rejoinder is fatal, because the Respondent No.1 through the learned counsel Mr. Manoj Kumar, has filed a detailed Counter-Affidavit to the main Appeal, but to which no Rejoinder-Affidavit has been filed by the Appellant’s side and therefore, the stance taken by the present Respondent No.1 should be taken as proved.

8. Mr. Jamshed Ahmed Faiz, the learned Assistant Attorney General for Pakistan has not supported the impugned Judgment on the ground that the order dated 07.09.2016 of the learned Election Tribunal with regard to maintainability of the Election Petition preferred by the present Respondent No.1, was not properly decided. He has further argued that notwithstanding the fact, the above said order can be subject to scrutiny by this Court in Appeal in terms of Section 105 of the Civil Procedure Code, 1908.

9. Rival submissions of the learned counsel for the parties have been taken into consideration and record of the case has been examined.

10. The issue with regard to maintainability of the Election Petition should be decided first. Finding of the learned Election Tribunal has been appraised. Earlier, an Application under Rule 64 of the Election Rules, preferred by the present Appellant was dismissed by the Election Tribunal and in the order dated 07.09.2016, it was determined that the Election Petition is maintainable.

11. In addition to the above, the record of the proceeding below has been examined. The Election Petition was filed on 31.03.2016, Affidavit of Service of present Respondent No.1 is also available at page 427 (of R&P), which is of the same date, that is, 31.03.2016. The courier receipt available in the record shows that to different Respondents, including the present Appellant, the Election Petition was sent on 31.03.2016. It means that at the time of filing of the Election Petition, the same was also sent through courier to Respondents, which is one of the modes of service mentioned in Rule 61 of the Election Rules. The Election Petition also contains proper verification clause. Thus, there is no inherent defect in the Petition itself, which is held to be maintainable, therefore, Issue No.1 has been rightly decided through the impugned decision.

12. The Election Tribunal below has decided the remaining Issues on the basis of Issue No.2, which was decided in Affirmative and in favour of present Respondent No.1, primarily on the basis of Written Statements filed by the present official Respondents No.5 and 6 (Jan Muhammad Jessar and Abdul Ghaffar Mallah), respectively, viz. Presiding Officers of the two Polling Stations in question, that is, Polling Station No.2, GPS Tagar and Sabab Abro (Male). These Written Statements admittedly are filed by these two officials in the above Election Petition but without containing a verification paragraph. Although, under Rule 62 of the Election Rules, the mandatory requirement of verification is for the Election Petition, but looking at the nature of proceeding in an Election dispute and the standard of proof required in such matters to succeed in one’s claim, the requirement of verification is also applicable to the Written Statement filed by the Respondents. Secondly, Sub-Rule 3 of Rule 62 of the Election Rules, itself provides as follows_

“(3) Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the code of Civil procedure, 1908, for the verification of pleadings.”

(Underlining to add emphasis)

13. A careful reading of the above provision shows that verification is to be done as required under the Civil Procedure Code, 1908, (CPC). This term ‘pleadings’ in terms of CPC is used for Plaint and Written Statement both, as mentioned of Order VI Rule 1 (of CPC). Although, these two officials have acknowledged that illegal and corrupt practice was resorted to by the present Appellant and the learned Election Tribunal has also reproduced the relevant portion from the respective Written Statements of these two officials, but at the same time it is a settled rule of evidence that unless a person / deponent of a plaint or a Written Statement enters the witness box for examination, his / her pleadings cannot be given an evidentiary value. This has been laid down in various precedents. The Foundation case (ibid) has further clarified this rule and held as follows_

“5. It is a settled law that statement made in the written statement cannot be treated as evidence in the case. See Mst. Khair-un-Nisa’s case PLD 1972 SC 25.”

14. The proper course which the Election Tribunal should have adopted, was to examine these two officials as witnesses; inter alia, due to the fact that even the learned Division Bench in its order of 09.01.2016 passed in C.P. No.D-8044 of 2015, which is available at page-231 (of R&P) of Election Petition No.35 of 2016, has observed that the above named officials were forced to sign the statement of count Form-XI by the present Respondent No.3 (Abdul Hameed Tanwri). Thus, one of the main reasons for giving an Affirmative finding in favour of present Respondent No.1 on the basis of ‘admission’ of above named Respondents No.4 and 5 (officials) is erroneous, and contrary to the settled Rule.

Secondly, proper appraisal of the evidence of other witnesses was not done nor the statements of count in question, is discussed, that is, those Forms-X1 of the above Polling Stations, which were accepted and those which were disputed. The standard of proof in an election matter is higher than that of a civil proceeding, because allegations of a corrupt practice is a quasi criminal charge, as held, by the Hon’ble Apex Court in the reported Judgment of Usman Dar (supra), relied upon by the Appellant’s side, which is relevant and dictum applies to the facts of present case.

15. Thirdly, the reported decision of Liaquat Jatoi case (ibid) is also relevant; through an exhaustive discussion the Apex Court laid down the rule that when a runner up can be declared as a Returned Candidate.

16. The rule of pleadings as mentioned hereinabove will also be applicable to the Written Statement filed by the present Appellant and Respondent No.7 in the proceeding below before the Election Tribunal. The said Written Statement of present Appellant has not been verified on oath and it does not bear any stamp or seal of the duly notified Oath Commissioner, which means that pleadings of Respondent No.1 as Petitioner, which was filed on oath was never disputed by the present Appellant. However, subsequently the present Appellant has filed his Affidavit-in-Evidence containing the verification section as per the present Rules. Therefore, discarding the defence of present Appellant would not be proper because in the aforesaid Rule 61, the adverse consequence is specifically mentioned for the Election Petition filed by the Petitioner and not for Written Statement. The conclusion is that though the Written Statements should also be verified in the same manner as are the Election Petition but in case of irregularity as is in the present case has been subsequently cured by filing a proper Affidavit-in-Evidence.

Although, I do not agree with the contention of the Appellant’s side that his right of fair trial as guaranteed under Article 10-A of the Constitution, was in any way, curtailed or violated during the proceeding below, as he was not allowed to lead the evidence; because after perusal of record of the proceeding below, it is quite clear that the learned Election Tribunal for plausible reasons closed the side of present Appellant to lead the evidence as he was given ample opportunity for leading the same but he himself failed to avail the opportunity. The Article 10-A will be applicable where a person is condemned unheard or an action against a person is taken without resorting to due process of law, but the said Article 10-A will not aid an indolent or a delinquent party who is avoiding to delay the proceeding. At times if a delay is caused in a proceeding then it amounts to impeding the course of justice and the party guilty of such an act, cannot be extended any benefit under Article 10-A.

17. Fourthly, the argument of learned counsel for the Respondent No.1 about non filing of Rejoinder is hardly of any substance, in view of the discussion contained hereinabove. Even if no Rejoinder is filed to the Counter-Affidavit of the present Appeal, it will not change the undisputed factual and legal position, which is floating on the surface and has emerged after a close scrutiny of the impugned Judgment, as the Finding No.2 of the impugned Judgment is contrary to the principle laid down through various judicial pronouncements relating to the evidence.

18. The conclusion of the above discussion is that the finding on Issue No.2 cannot be sustained and so are the other findings, which are dependent on the findings on Issue No.2. The impugned Judgment is set-aside. The case is to be remanded on the following terms_

i). The learned Election Tribunal will decide the matter a fresh on Issues No.2 to 5 as Issue No.1 has already been held to be rightly decided.

ii). The learned Election Tribunal will examine the official Respondents, who have filed their Written Statements.

iii). The evidence already recorded will remain intact and forms part of the proceeding.

iv). Since the case is being remanded on the above terms, therefore, in the interest of justice, the present Appellant will be allowed to lead the evidence but the Election Tribunal will not grant unnecessary adjournments to the Appellant for producing his side of witness(s) and if it appears that the Appellant is avoiding to lead the evidence then the side will be closed forthwith.

v). The learned Election Election Tribunal will announce the Judgment within four weeks from the date of receipt of this order and the entire record of the case.

19. Parties to bear their own costs.

JUDGE

Sukkur,

Dated: _____________

M.Javaid/PA