Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 11 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 15.11.2018.

Date of announcement : 26.11.2018.

Mr. Zafar Ali Eidan Mangi, Advocate for the petitioner.

Mr. Zulfiqar Ali Sangi, Advocates for respondent No.7.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. – This petition was filed by one Hafiz Rabnawaz Chachar son of Haji Alan Chachar being a losing candidate of the constituency PS-05. This petition was filed on 19.09.2018 along with certain documents including affidavits of his witnesses.

2. The office raised objections. Some of them were complied, while the others, as also raised by the returned candidate as well, remained unaddressed. Notices of main petition were issued to the respondents on 28.09.2018, whereas, the objections were deferred. The returned candidate / respondent No.7 filed his reply / written statement along with documents and affidavits of the witnesses. He denied the allegations. He also filed an application under Section 145(1) of the Elections Act, 2017, for the rejection of petition.

3. The issues were framed on 22.10.2018, which are as under:

(i) Whether there was a connivance of respondent No.7 with the officials of the Election Commission, and has resulted in exercise of corrupt and illegal practice rendering the election as null and void?

(ii) Whether the assets have been concealed by the returned candidate at the time of filing nomination papers and statement of assets?

(iii) What should the judgment be?

4. Petitioner, however, failed to lead his own evidence in support of his pleadings, whereas, four witnesses were examined namely Ali Muhammad son of Mashkool Chachar, Muhammad son of Ameer Bux Chachar, Abdul Wahid son of Ali Sher Ghunio and Abdul Sami son of Khawand Bux Mirani.

5. Heard learned counsel and perused the record.

6. Findings are as follows:

Issues No. 1 and 2 - - - - - - - - - - - - - - - - - - - Negative

Issue No. 3 - - - - - - - - - - - - - - - - Petition Dismissed

7. Following are the reasons that have prevailed to record the aforesaid findings:

Issues No.1 and 2

8. Issues No.1 and 2 are common and interlinked and they are being answered together.

9. In the memo of petition, it has been pleaded that respondent No.7 is a habitual land grabber and that in collaboration with the revenue officials, mutated the playground of Government High School in the name of his grandmother and that he is facing enquiries and investigations before Anti-Corruption Establishment and that certain properties were concealed by the returned candidate at the time of filing nomination papers. The petitioner pleaded in the petition that he was responsible for pre-poll rigging by registration of bogus / fake votes well before election process and with the connivance of the election officials of the district got registered twenty thousand (20000) votes of the people residing elsewhere in far-flung areas. In support this contention, as stated above, four private witnesses were examined and they were subjected to cross-examination.

10. The first witness Ali Muhammad son of Mashkool Chachar in support of the above contention has filed the following affidavit:

“ I, Mr. Ali Muhammad, S/O Mashkool caste Chachar, Adult, Muslim, R/O Village Bhannar Taluka Kandhkot, District Kashmore at Kandhkot Sindh having CNIC No. 43103-5040186-9, do hereby state on Oath that I am submitting this statement with free will and without any coercion as under:

1/- That I was the Polling Agent for MMA candidate Rabnawaz S/o Haji Alan at GBS Soomar Jagirani hence am fully conversant with the facts of the case.

2/- That on the evening of 24-07-2018 I was travelling to GBS Soomar Jagirani when I was kidnapped by the men of Mir Abid Khan, the returned candidate and later I was released by them after polling was conducted at approx. 6:00 pm.

3/- That I fully endorse and support the contents of the petition filed by runner-up candidate Rabnawaz S/O Haji Alan in this instant petition. In this regard, I am ready to lead my evidence before this Honourable Court if any when required.

4/- That I say that whatever herein above is stated in affidavit is all true and correct to the best of my knowledge and belief. ”

Whereas, in the cross-examination, he failed to establish that he was appointed as his polling agent and that he has not mentioned the names of the persons who allegedly kidnapped him except one Mir Abid Khan on whose behalf it is alleged that he was kidnapped. He admitted that he has not approached the Court for lodging FIR. He also failed to file the enquiry allegedly conducted by S.S.P. Kashmore. He also stated to have signed the affidavit-in-evidence at Police Station Kandhkot and that he never appeared before any Oath Commissioner.

11. On the same set of evidence, the other witness Muhammad son of Ameer Bux Chachar deposed as under:

“ I, Mr. Muhammad, S/O Ameer Bux caste Chachar, Adult, Muslim, R/O Village Jam Soonharo Chachar Taluka Kandhkot, District Kashmore at Kandhkot Sindh having CNIC No. 43103-1410178-3, do hereby state on Oath that I am submitting this statement with free will and without any coercion as under:

1/- That I was the Polling Agent for MMA candidate Rabnawaz S/o Haji Alan at GBS Soomar Jagirani hence am fully conversant with the facts of the case.

4/- That I say that whatever herein above is stated in affidavit is all true and correct to the best of my knowledge and belief. ”

However, he also failed to file any letter authorizing him to be the agent of petitioner / candidate as well as the names of persons who allegedly kidnaped him on behalf of returned candidate. He also disclosed to have endorsed his thumb impression over the affidavit-in-evidence at the Police Station where they allegedly lodged complaint against accused, however, no complaint was exhibited. The earlier witness namely Ali Muhammad has not disclosed if anyone was travelling along with him, whereas, this witness namely Muhammad disclosed that there were two more persons namely Rabnawaz and Khushi Muhammad, who were travelling with them. Khushi Muhammad did not examine himself in support of the petitioner’s case.

12. The third witness Abdul Wahid son of Ali Sher Ghunio was examined and he deposed as under:

“ I, Mr. Abdul Wahid, S/O Ali Sher caste Ghunio, Adult, Muslim, R/O Eidgah Mohallah Taluka Kandhkot, District Kashmore at Kandhkot Sindh having CNIC No. 43503-0354347-3, do hereby state on Oath that I am submitting this statement with free will and without any coercion as under:

1/- That I was the Polling Agent for MMA candidate Rabnawaz S/o Haji Alan in GE-2018 at GBS Adarsh hence am fully conversant with the facts of the case.

2/- That on the election day; multiple votes were being cast (sic) at the polling station. Moreover, thumbs were not marked properly. Upon pointing this, the polling staff did not pay any heed. In evening when polling was concluded, the presiding officer pushed me out with help of armed personnel out of polling station.

4/- That I say that whatever herein above is stated in affidavit is all true and correct to the best of my knowledge and belief. ”

This witness also failed to file any letter whereby he was authorized to appear as his agent at the subject polling station. He has failed to give details of those voters who casted multiple votes at the subject polling station. He has agreed to a suggestion that he has not filed any complaint before any authority. He stated to have signed the affidavit-in-evidence in the office of the candidate.

13. The last witness Abdul Sami son of Khawand Bux Mirani also lead evidence, which is as under:

“ I, Mr. Abdul Sami, S/O Khawand Bux caste Mirani, Adult, Muslim, R/O Golimar Taluka Kandhkot, District Kashmore at Kandhkot Sindh having CNIC No. 43103-3515487-1, do hereby state on Oath that I am submitting this statement with free will and without any coercion as under:

1/- That I was the Polling Agent for MMA candidate Rabnawaz S/o Haji Alan in GE-2018 at GBS Mumtazabad hence am fully conversant with the facts of the case.

4/- That I say that whatever herein above is stated in affidavit is all true and correct to the best of my knowledge and belief. ”

He has not filed any authority letter whereby he was appointed as his agent and that he has not filed any complaint of any allegation as raised in para 2 of his affidavit-in-evidence. He also stated to have signed the affidavit-in-evidence in the office of the candidate.

14. With this set of evidence, the petitioner is seeking that the election of the returned candidate be declared as void and that the petitioner being runner-up candidate as elected or in the alternate, declare the election of PS-05 partially void and fresh poll be ordered in one or more polling stations.

15. Four witnesses were examined by the petitioner who failed to lead his own evidence and there is not an iota of evidence that any property was concealed at the time of filing nomination papers. Pleadings should have been supported by impartial witnesses to establish their contention and the petitioner has miserably failed in this regard. The offence in terms of Section 171 of the capturing of the polling station as well as illegal practice in terms of Section 175 is not established or made out. The grounds for declaring the election of the returned candidate as void are disclosed under Section 156 of the Elections Act, 2017. The Tribunal is empowered to declared the election of the returned candidate to be void—

(a) if the nomination of the returned candidate was invalid; or

(b) 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; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the consent or connivance of the candidate or his election agent.

16. Section 156(2) disclosed that if the contravention of the corrupt or illegal practice is proved at the polling station, the Election Tribunal may, while declaring election of the returned candidate void, direct re-poll at the polling station. The Tribunal was further coached with the negative covenant that the election of the returned candidate shall not be declared void on the ground if the Tribunal is satisfied that it was not committed by or with the consent or connivance of the candidate or his election agent and that the election agent took all reasonable precautions to prevent its commission and that any other contesting candidate was, on the nomination day, not qualified for or was disqualified from being elected as a Member. The law as framed couched very heavy burden on the petitioner not only to make out a case within the parameters of the recent Election Act that corrupt practice was exercised but also that it was done in connivance with the returned candidate.

17. Section 167 of the Elections Act, 2017 describes the corrupt practice, Section 170; the undue influence and Section 172; tempering with papers.

18. A person is guilty of offence of corrupt practice if he is guilty of bribery, personation, exercising undue influence, capturing of polling station or polling booth, tempering with papers, and making or publishing a false statement or declaration.

19. A person is guilty of offence of corrupt practice if he calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community, race, caste, bradari, sect or tribe.

20. Similarly, a person is guilty of offence of corrupt practice if he causes or attempts to cause any person present and waiting to vote at the polling station, to depart without voting or contravenes the provisions of Section 132.

21. In the similar way, undue influence is also described under Section 170 of the Elections Act, 2017.

22. The perusal of the pleadings as well as evidence does not at all inspire confidence that the returned candidate was guilty of any corrupt practice or that he used or exercised undue influence as designed under the Elections Act, 2017.

23. The petitioner has failed to examine himself in support of the pleadings and contentions as raised in the petition, hence, the pleadings are absolutely without support of any evidence. The evidence of the two witnesses namely Ali Muhammad son of Mashkool Chachar and Muhammad son of Ameer Bux Chachar is also not confidence inspiring and similarly, the other two witnesses namely Abdul Wahid son of Ali Sher Ghunio and Abdul Sami son of Khawand Bux Mirani, who deposed in respect of multiple votes being casted, have failed to establish that it was ever done as no specific allegation in respect of any official person in collusion with the returned candidate was either raised or established. The redact of the Elections Act, 2017 is such that it coached a heavy burden on the petitioner to prove the allegation within the frame of law i.e. Elections Act, 2017.

24. In view of the above facts and circumstances, both these issues are answered in the negative.

Issue No.3

25. Resultantly, the petition is dismissed with cost of Rs.20,000/- (twenty thousand) to be deposited with the High Court Clinic at Sukkur.

J U D G E

Abdul Basit