ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Election Appeal No.S-40 of 2016

 

Date

               Order with signature of Judge

           

                                                        

                                                            

                     

Dated of hearing:  02-10-2017

 

Date of Judgment:

 

 

Mr. Qurban Ali Malano, Advocate for the petitioners

Mr. Farman Ali Kanasaro, Advocate for respondents No. 5 & 6

Mr. Oshaque Ali Sangi, Assistant Attorney General

            Mr. Zulfiqar Ali Naich, Assistant Advocate general

 

                          

                                    12-09-2014

                                    J U D G M E N T

 

 

Zulfiqar Ahmed Khan J.   This Election Appeal was filed as a Constitutional Petition on 09.12.2016, and when an objection was raised by the office, the same was converted into Election Appeal under Section 54 of the Sindh Local Government Act, 2013 ( S.L.G.O) and heard as such.

2.            The background of the case is that the appellant contested Elections for the seat of Chairman and Vice Chairman in the Local Bodies Election held on 31.10.2015 from the Union Council Sadderji Bhatyoon, Taluka Kingri, District Khairpur. Per counsel, the appellants returned successful as compared to the opposing private respondents No.5 and 6 as per the result announced by the Returning Officer based on the record submitted by the Polling Officer. Court is informed that there were 06 Polling Stations in the said Union Council, however through the impugned judgment dated 01.12.2016, passed by the Election Tribunal for Local Council and IInd Additional District Judge Khairpur through Election Petition No.12/2016 filed by the present private respondents No.5 and 6, the Tribunal “illegally” ordered holding of re-polling at the Polling Station No.4 GGPS Bodli Mahesar. From the memo of the said petition it could be gathered that the petitioners (private respondents No.5 and 6 here)  claimed that they have been returned by securing 1941 Votes as compared to 1786 Votes of the opposing party (present appellants). The learned counsel for the appellants submitted that the said judgment was faulty, based on misreading of evidence as the allegation of rigging was not proved, and while through the said petition, a prayer was made to declare the entire Union Council’s Election null and for holding re-election in the entire Union Council, through the impugned judgment the Tribunal has only passed order for re-polling in one Polling Station, leaving aside the five other Polling Stations.

3.            Since the entire controversy is in relation to result of Election from Polling Station-4 GGPS Bodli Mahesar, this judgment will also focus on the said Polling Station.

4.            It could be seen that the Tribunal framed 04 issues, of which  issue No.2 is of critical significance as it relates to the question of whether the respondents No.5 and 6 (the present appellants) had obtained result of Election in their favour by rigging, corrupt and illegal practice. Interestingly before me are three allegedly original Forms-XI which were also produced before the Tribunal. All of these Forms are dated 31.10.2015 and signed in original by the Presiding Officer Naseer Ahmed who was examined as RW-4 at Ex.47 and who also produced result of the Polling Station-4 GGPS Bodli Mahesar. It could be seen that one of those Forms-XI is produced as Ex.37-E, the second of such Form-XI is produced as Ex.46-D and 3rd is produced as Ex.47-A. Interestingly while admittedly all these three Forms are original and signed by the same Presiding Officer, their contents do not match which caused the instant controversy where per Ex.37-E private respondents obtained 481 Votes as compared to the petitioners who secured 262 Votes whereas through Ex.46-D votes casted in favour of respondents were reduced to 180 while votes casted in favour of the petitioners are shown as 264 while 49 votes are shown as doubtful and were excluded from the count. Through the 3rd Form-XI (Ex. 47-A) Votes casted in favour of the private respondents were reduced  to 180 while those casted in favour of petitioners remained 264, however no votes were excluded from the total count on account of being doubtful.

5.            A review of these Forms put together shows through Ex.37-E total number of votes 743 are reported to have been casted with zero exclusion, however for the remaining two Forms-XI (Ex.46-D and 47-A) 444 votes are reportedly have been casted but in Ex.46-D, 49 votes are reported to have been excluded while there is no such exclusion in respect of Form-XI produced as Ex.47-A. All of these Forms pertain to the Polling Station-4.     The Trial Court went at length to consider the deposition of the Presiding Office as well as that of the Assistant Commissioner/Returning Officer which are respectively produced as annexure-C and C-1 with the memo of the petition. Since it was the Presiding Officer who produced these three version of Form-XI, the Tribunal took notice of the same and as part of its judgment stated that in the cross-examination the Presiding Officer admitted that the various version of Form-XI were written and signed by him. With regard to the confusion caused by putting wrong title of Polling Station-4 as Union Council Sadderji Bhatyoon rather than GGPS Bodli Mahesar, it was confessed that it was also by mistake. He also confessed in his deposition that no votes were challenged or rejected at the said Polling Station and submitted that those have been shown as doubtful/challenged are not provided by him. On account of these glaring misstatements that he produced different Forms-XI, issue No.2 was dealt with at length and for the reasons provided, the Tribunal reached to the conclusion of allowing re-poling at Polling Station-4 GGPS Bodli Mahesar.

6.            Learned counsel for the private respondents submitted that in fact it was the first of these Form-XI which is produced as Ex.37-E, through which the true statement of Votes casted at Polling Station-4 was given wherein the present appellants secured 262 Votes while 481 Votes were casted in favour of the present respondents No.5 and 6 and on the basis of this Forms-XI, consolidated results were unofficially announced by the Returning Officer as Annexure A-1 where said respondents were declared as returned candidates  having secured 1941 Votes as compared to 1704 votes casted in favour of the present appellants. The remaining Forms-XI, per counsel, are bogus and were subsequently managed by the appellants to have them declared as successful candidates however by rigging, corrupt and illegal practice. In support of his contention the learned counsel for the respondents placed reliance on orders passed in CP No.D-4182, 4183, 4184 and 4216 of 2015 where a Divisional Bench of this Court permitted re-polling. To the contrary learned counsel for the petitioners places reliance on two judgments of the Apex Court rendered in the cases of Muhammad Yaqoob Nadeem Sethi Vs. Muhammad Ilyas Khan and others (2016 SCMR 1632) and Jam Madad Ali Vs. Asghar Ali Junejo and others (2016 SCMR 251). The learned counsel for the petitioners placing reliance on these judgments of Hon’ble Supreme Court attempted to make out the case that best remedy available to the respondents was to have a recount of the ballot papers to determine the authenticity and truthfulness of the votes secured by the private respondents rather than having been rendered a judgment where results of only one Poling Station are declared void and orders are passed for re-polling in that particular Polling Station alone.        

7.            Heard the counsel, reviewed the material on record. It is admitted across the board that more than one Form-XI were signed by the Presiding Officer wherein material errors  as to number of votes casted, number of votes excluded, description of appropriate Polling Station etc could be found. The trial Court after considering the evidence of the Presiding Officer as well as the other material on record passed a fit and a legit order calling upon re-polling at Polling Station-4 GGPS Bodli Mahesar as for other Polling Stations, no such illegality was on record. The option as to re-counting seemingly was also present before the Tribunal which was not permitted on account that since     the appellants who claimed successful on account of “fake” multiple original Form-XI would leave no stone unturned to manage the counter foils etc at the Polling Station thereby rendering any fruitful out come arising out of the exercise of the said re-counting.

8.            To me the order of the Tribunal is based on the proper reading of the evidence who had very adequately and wisely adjudicated the controversy at hand by calling for re-polling at Polling Station-4 GGPS Bodli Mahesar only for which glaring violation are on the surface. I, therefore, have no reasons to interfere with the conclusion reached by the Tribunal and dismissed the instant Appeal as the appellants have failed to bring out any case.

 

                                                                                                        JUDGE

 

                                   

Suleman Khan/PA