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