Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 19 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

For hearing of CMA No.62/2018

Date of hearing : 27.11.2018, 13.12.2018, 22.01.2019

and 13.02.2019.

Date of announcement : 24.04.2019.

Mr. Salahuddin Ahmed assisted by Mr. Sheikh Arsalan, Advocates for the petitioner.

Mr. Abdul Sattar Pirzada assisted by M/s Mamoon N. Chaudhry and Deedar Ali M. Chohan, Advocates for respondent No.3.

Mr. Irfan Ahmed Memon, Deputy Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – This application, filed by the petitioner is to be dealt with in priority before the trial commences. This is an application under Article 84 of the Qanun-e-Shahadat Order, 1984 read with Section 151, CPC.

2. Petitioner urged that only a selected group of persons were involved who signed and endorsed their thumb impressions on ‘Forms-45’ as disguised designated officials and, hence, to be dealt with in accordance with law which is possible only once the forensic scrutiny is made by sending all ‘Forms-45’ to impartial forensic agencies / experts / labs.

3. Learned counsel for the petitioner, in support of the application, submits that counting of votes is the most important stage in any election. The present law in terms of Section 90 provides that Presiding Officer of each polling station must count the votes immediately after the polling is completed in presence of the polling agents of the candidates and that the result in terms of Section 90(10) be prepared as ‘Form-45’. This ‘Form-45’ in fact shows all valid votes polled for each candidate as per Section 90(13) and 90(14). The Presiding Officer and Assistant Presiding Officer are required to sign, seal and affix their thumb impressions to make the document complete and authentic. Consequently, this ‘Form-45’ is to be dispatched by Presiding Officer of each polling station to Returning Officer of the constituency, who then consolidates the results of the entire constituency on the basis of ‘Forms-45’ by compiling them.

4. In view of this background, it is the case of the petitioner that a bird eye view of these ‘Forms-45’ (142 in total), reveals not only that the signatures of the designated polling agents are missing, but it shows that only a group of people have in fact prepared or asked to prepare these ‘Forms‑45’. In case, polling agents of candidates have left without signatures, as the case presented by returned candidate, then reasons must have been appended by the Presiding Officers or Assistant Presiding Officers in the shape of an endorsement as to their refusal. It is argued that no count took place at all and no ‘Forms-45’ were prepared by the concerned Presiding Officers, who were in fact appointed by the Election Commission. This contention claimed to have been fortified, as argued, by a common handwriting, which is apparent in all ‘Forms-45’.

5. It is the case of the petitioner that this expert verification and comparison of thumb impressions and handwriting of all 142 ‘Forms-45’ will resolve the controversy to a large extent. It is claimed that since the elections are closed door affairs, therefore, the exact nomenclature and details of the illegal and corrupt practices are not possible and could only be unearthed and unveiled once the scrutiny / verification be conducted in the manner as prayed for.

6. Learned counsel for the petitioner has relied upon the case of Sardar Abdul Hafeez Khan v. Sardar Tahir Khan Loni and 13 others reported in 1999 SCMR 284. He then relied upon the case of Feroze Ahmed Jamali v. Masroor Ahmed Khan Jatoi reported in 2016 SCMR 750 that resort to forensic analysis on account of serious allegation of malpractices was permissible by the Tribunal to verify the election material from an expert i.e. NADRA, who was the relevant authority at that time to adjudged fingerprints etc. Similar analysis were drawn in the cases of Irfanullah Khan Marwat v. M. Abdul Rauf Siddiqui reported in 2017 SCMR 1588 and Aijaz Hussain Jakhrani v. Illahi Bux Soomro and 16 others reported in PLD 2014 Karachi 90.

7. Learned counsel for respondent No.3, returned candidate, on the other hand, submits that application of Article 84 of the Qanun-e-Shahadat Order, 1984 is misconceived as all presumption of truth is attached to an official document in terms of Article 129(e). It is claimed that none of the parties has raised any objection at the time of consolidation process of all ‘Forms-45’, thus, the presumption of truth attached with the issuance of ‘Forms-45’ remains unrebutted at the relevant time. Reliance was placed on the case of Qaisar Ifraheem Saroya v. Returning Officer and 2 others reported in 1995 CLC 917.

8. It is argued that the requirement of law insofar as officers conducting the election are concerned, are usually taken as directory and so far as requirement that concerns with the voters, are usually taken as mandatory. Reliance was placed on the case of Syed Mukhtar Hussain Shah v. Wasim Sajjad and others reported in PLD 1986 SC 178. He claims that the Elections Act, 2017 and Rules framed thereunder clarify that no provision under which the prayers sought in the application under reference can be granted is in existence and, hence, its conspicuous absence in main statue is significant. It is argued that in the circumstances, the prayer sought in the application under reference cannot conceivably be granted on the basis of unreliable and oral evidence, which is unsubstantiated by any credible / dependent documentary evidence. He further argued that alleged tempering of ‘Forms-45’ was not established to have been conducted at the behest of respondent No.3 and, hence, it is only a futile attempt to pursue it. It is, thus, claimed to be an afterthought and amounts to shooting in the dark without any favourable result.

9. Heard learned counsel and perused record.

10. The trial in the instant petition commenced from the date of the framing of issues and since through another order this petition was maintained, the trial in terms of Section 148 of the Elections Act, 2017 triggered. Section 148 requires that subject to the Elections Act, 2017 and the Rules, the trial of an election petition, shall as nearly as possible be in accordance with the procedure applicable under Code of Civil Procedure, 1908 to the trial of Suits and the Qanun-e-Shahadat Order, 1984. The Election Act required expeditious disposal but that expeditious disposal does not mean that any burden sought to be discharged by a party which may require an examination or scrutiny, verification, forensic examination be overlooked or discouraged under the garb of expeditious disposal. Expeditious disposal means that no inordinate delay be a part of the trial but will not eliminate the time required for a fair trial. Petitioner is already saddled with insurmountable burden which is to be discharged not in isolation i.e. against one party / officials but in collusion with the returned candidate.

11. In the subject statute, substantive law, in terms of matter of discharging the burden has played a cruel role but proceedings in search of facts should not be. In pursuit of discharging the burden casted upon him by statute, the petitioner may endeavor every effort to establish the alleged illegal and corrupt practice. Even if number of votes discarded are less than the winning margin, the illegal and corrupt practice, if established as required, could declare the election null and void wholly or partially, depending upon circumstances of the case and, hence, the number of discarded votes not always matters while unveiling the illegal and corrupt practice.

12. Let us now examine the application, which is under consideration. Through the application, the petitioner seeks forensic tests and verification to ascertain that the designated Presiding Officers and Assistant Presiding Officers have in fact signed and endorsed their thumb impressions on ‘Forms-45’ and so also to verify the handwriting on the same to determine that in fact these ‘Forms-45’ were prepared by the designated Presiding Officers and Assistant Presiding Officers or were prepared by a handful set of persons who were not designated. This scrutiny under the circumstances matters. No doubt, another recourse available is a recounting of the votes by which mechanism the object as to who obtained more votes could be achieved, but this is not the only object as it could only be an eyewash. No doubt counting of votes is an important stage in election process but before that is the importance of a vote itself.

13. Perusal of ‘Forms-45’ reveals that apart from the valid votes counted in favour of the parties, there are number of votes excluded from the count in terms of Section 90(4)(c). The reasons of invalidating those votes have not been assigned in the form, however, one of the reason, that has been consistently argued, is an issue of “double stamps”. Scrutiny of double stamp rejection in isolation may not be fruitful. It need corroborative evidence as well. The Tribunal at the time of trial cannot ignore the allegation that all or some of the polling agents have been ousted at the time of count and, hence, this allegation that some of the persons in fact signed ‘Forms-45’ gained strength as to why this isolation was required. This Tribunal is not making an attempt in reaching the conclusion that the counting was done in isolation, but this Tribunal at the stage of trial is in probe of a nexus between double stamped votes and preparation of ‘Form-45’ by a group of selected persons, as the case presented. It may or may not have nexus but at present it is premature statement. In terms of Section 158 of the Elections Act, 2017, the Election Tribunal may declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of (a) failure to comply with the provisions of this Act or the Rules in connivance with the returned candidate; the prevalence of extensive corrupt or illegal practices at the election. The connivance need not to be specific and/or apparent; it could be implied, disguised and hidden and once a person is able to prove the violation of Section 90, which violation may favour any of the contesting respondent who may be a returned candidate, then the connivance may not be difficult to be unveiled. This scrutiny cannot be refused on the ground that the petitioner is required to prove the connivance first. The petitioner is in process of proving the violation and the connivance and the Tribunal cannot preempt that since the burden is insurmountable, therefore, it is a futile attempt. The petitioner should be given a fair opportunity to prove and discharge the burden that the statue has required. Presumption of truth is attached to an official document as long as false is not unveiled through evidence. In response to arguments of respondent that main statue does not support this scrutiny, the statue does not provide a mechanism on the basis of which the forensic scrutiny is to be done. It is apparent that such process is governed by Qanun-e-Shahadat and not by Elections Act, 2017. It is a trial of offence levelled against returned candidate and a choice of method to establish such illegal and corrupt practice cannot be enforced upon petitioner.

14. In order to find out if the provisions of the Act and the Rules framed thereunder have not been complied, which are mandatory, the scrutiny is inevitable as a first step and then to determine to what extent such non-compliance, either unilaterally or in connivance with the office holder / returned candidate have materially affected the result of the election.

15. In the case of Sardar Abdul Hafeez Khan v. Sardar Tahir Khan Loni and 13 others reported in 1999 SCMR 284, the Bench held that holding free and fair elections is the duty cast by law and the judges must discharge their obligations to the electorate by ensuring that no one is returned to an elected office without having been duly and lawfully elected.

16. In the case of Feroze Ahmed Jamali v. Masroor Ahmed Khan Jatoi reported in 2016 SCMR 750, it was held permissible for the Tribunal to seek examination / verification of the election material from an expert, which at the relevant time, was NADRA.

17. In the case of Irfanullah Khan Marwat v. M. Abdul Rauf Siddiqui reported in 2017 SCMR 1588, the ballot counterfoils were sent for expert verification of thumb impressions and the Apex Court approved the same. The evidence is yet to be recorded and it is necessary for a fair trial that these forensic verifications be made available before cross-examination, so that the connivance, if any, be traced.

18. In the case of Aijaz Hussain Jakhrani v. Illahi Bux Soomro and 16 others reported in PLD 2014 Karachi 90, the Bench held that once such document is ordered to be verified and then brought on record, only then a party may be in a position to decide as to what extent and on what issues oral account of an event or fact is required to be given in evidence, therefore, first recording of oral evidence and then referring it for verification would amount to putting the cart before the horse. The relevant passage is reproduced below:

“ 6. Article 18 of the Qanun-e-Shahadat Order, 1984 provides that evidence may be given in any proceedings of existence or non-existence of fact in issue or such other facts as are relevant. Article 72 of the Qanun-e-Shahadat Order provides that the contents of the document may be proved in evidence. Where the evidence is in the form of public document which a party wants to rely and produce it to prove existence of a fact, onus of which lies upon him, then such party is entitled to seek its production and in case any document is required to be examined by an expert then also a party is entitled to seek opinion of the expert and in this regard may move the Court to order that a document be referred to an expert or Authority whose opinion can be had on the authenticity or otherwise of the document itself or its contents. Article 164 of the Qanun-e-Shahadat Order, 1984 also provides that Court may allow production of any evidence that may become available through modern device.

7. In our view the entire exercise of calling for counterfoils and other polling record and seeking verification of signatures is an exercise which is to be conducted after issues are framed and before evidence is recorded through witnesses. Seeking report from NADRA would by itself constitute documentary evidence which once produced and proved in accordance with law of evidence would give an option to a party not to given oral account of an event or a fact on any particular issue and rely on documentary evidence only. Therefore, to prohibit such documentary evidence from coming on record before witnesses are examined on oath would in fact amount to closing the doors on a party to seek production of documentary evidence at the relevant stage of the proceedings. Before any documents is produced in evidence, it may require verification of its contents either from the concerned authority or through some modern device. Once such document is ordered to be verified and then brought on record only thereafter a party may be in a position decide as to what extent and on what issues oral account of an event or fact is required to be given in evidence. Therefore first ordering recording of oral account of an event or a fact and then decide to verify a documents would amount to putting the cart before the horse. ………… ”

19. In view of the above reasoning, facts and circumstances, I feel it inevitable that the forensic scrutiny of all ‘Forms-45’, as requested for by petitioner, for a fair trial be made and the Election Commission, who have failed to assist this Tribunal from the date they were served, shall submit all original ‘Forms-45’ to National Forensic Science Agency, Islamabad whose address be provided by the petitioner, for a forensic examination of the signatures, handwriting and thumb impressions etc. of the Presiding Officers and/or Assistant Presiding Officers and in case the National Forensic Science Agency, Islamabad need any assistance in this regard from designated officials including but not limited to NADRA’s office, they are at liberty to. This entire process of forensic scrutiny shall not take more than six (06) weeks with report to the Court directly. The Forensic Agency may compare from all ‘Forms-45’ submitted to this Court with the ‘Forms-45’ to be submitted by Election Commission with the assistance of parties and/or Advocates before proceeding further.

20. The application as such is allowed. As far as the main petition is concerns, adjourned till the report of the Forensic Agency is filed.

J U D G E

Abdul Basit