Qaiser Jamal Khan vs Haji Abid Afridi

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

Election Appeal... No.03of..2014

JUDGMENT

Date of hearing: _________________________________ Date of Announcement: 23rd December, 2015 .

Appellant: (Qaiser Jamal Khan) by Qazi Muhammad Anwar, Adv:

Respondent: (Haji Abid Afridi) by M/s Barrister Aitzaz Ahsan and Barrister Gohar Ali Khan, Advocates .

MAZHAR ALAM KHAN MIANKHEL, CJ.- The appellant, Qaiser Jamal Khan, has filed this appeal against the judgment/order dated 05.05.2014 passed by the learned Election Tribunal, D.I.Khan, whereby the election to the National Assembly from constituency No.NA-47, Tribal Area-XII was declared void as a whole, the seat of the said constituency was declared vacant and the Election Commission of Pakistan was directed to hold fresh election in the said constituency in accordance with law. The appellant has prayed that the impugned judgment/order of the learned Election Tribunal, being against the evidence available on record, is

liable to be set aside and the election petition of respondent No.1 be dismissed with costs throughout.

2.Brief facts of the case are that in the general elections 2013, about 40 candidates contested the election to the National Assembly seat from constituency No.NA-47, Tribal Area-XII.

As per result of the election, appellant / Respondent No.1 of Election Petition, Qaiser Jamal Khan (hereinafter called as “the Appellant”) secured highest number of votes i.e. 11328, whereas respondent No.24 herein, Mufti Abdul Shakoor was second in the run having secured 8989 votes. The Respondent No.1 herein / petitioner of Election Petition (hereinafter called as “the Respondent”) was 6th in the run, who secured 3136 votes and respondent No.18 herein (another contesting candidate namely, Kamil Khan Sherani) secured only 18 votes.

The said Kamil Khan Sherani filed an election petition before the Election Commission of Pakistan on the ground that he was candidate of Pashtoon Khwa Milli Awami Party (PMAP); election symbol of ‘tree’ was allotted to his party, and he being candidate of PMAP, had carried out the election

campaign under the said symbol but on the day of election he came to know that instead the symbol of tree, a symbol of ‘corn’ was printed on the ballot papers against his name, therefore, the election has been materially affected by such an illegality. The Election Petition was, however, subsequently withdrawn by Kamil Khan Sherani. In the second round, the Pashtoon Khwa Milli Awami Party filed another election petition on the same ground but that petition too was withdrawn, as they were satisfied with the election.

3.In the third round, the Respondent Haji Abid Afridi filed an election petition, which was entrusted to the Election Tribunal D.I.Khan for disposal. After filing written statement by the contesting candidates, the following issues were framed in the case:-

1)Whether the petitioner has and his Election Petition discloses a cause of action? (OPP)

2)Whether the Petitioner lacks ‘locus standi’ to file this Election Petition? (OPR)

3)Whether this Election Petition is not maintainable under the law due to non-compliance of provisions of

Representation of People Act, 1976 and other relevant laws?(OPR)

4)Whether the affidavits annexed with the Election Petition being forged, fictitious, sham and fraudulent, are not admissible in evidence?(OPR) 5) Whether there was any confusion about allotment of ‘Election Symbol to respondent No.18 due to which a rumor of polling stoppage was spread which disrupted smooth polling and resultantly the whole constituency was disfranchised?(OPP)

6)Whether the rumor of polling stoppage mentioned in issue No.5 was a conspiracy to take illegal advantage of the situation and rig the election and it materially affected the Election Result?(OPP) 7) Whether the ‘Election Results’ were consolidated in absence of petitioner and other contesting candidates?(OPP)

8)Whether the ‘Election Staff’ and the workers of the Returned candidate, with his active connivance, committed corrupt practices and illegal acts to achieve election results in favor of the returned candidate?(OPP)

9)Relief?

The Respondent in support of his petition produced Mohammad Qasim (PW.1), Mohammad Islam (PW.2), Naveed Gul (PW.3), Mohammad Ameen (PW.4), Mohammad Masood (PW.5) and the statement of the Respondent was recorded as

PW.6. Certain documentary evidence was also exhibited by the witnesses.

As against that, the Appellant recorded his solitary statement in rebuttal to the allegation of the Respondent as RW-

1.He also placed on record certain documents in support of his assertions. The learned Election Tribunal after appraisal of the evidence available on record and hearing the learned counsel for both the sides accepted the election petition, as stated above.

4.Qazi Muhammad Anwar, learned counsel for the Appellant submitted that Kamil Khan Sherani was not a candidate of the PMAP and this was the reason that he was not allotted the symbol of ‘tree’ and instead the symbol of ‘corn’ was allotted to him for contesting the election as an independent candidate; that the date of allotment for symbols was 19.04.2013 and till that the said Kamil Khan Sherani was not issued any ticket by the PMAP, which fact is duly established from the letter written by the Returning Officer to the Election Commission of Pakistan as well as the statements of the Reader of Returning Officer to the effect that someone subsequently

managed to place on file the party ticket in favor of Kamil Khan Sherani; that even if the said party ticket is perused, it would reveal that certain important spaces including the date therein are blank; that the Respondent has utterly failed to lead any evidence regarding the issuance of symbol of tree to Kamil Khan under the Allocation of Symbols Order, 2002; that the aggrieved person was Kamil Khan Sherani, who withdrew his election petition, whereafter the PMAP also withdrew their election petition and never agitated the matter further, therefore, the Respondent was not an aggrieved person to file the instant election petition; that Kamil Khan Sherani was not produced before the Election Tribunal and the witnesses produced by Respondent have never stated that even a single voter of any candidate did not unable to cast his vote because of the said reason. The learned counsel lastly submitted that the Election Tribunal has wrongly placed reliance on the case of Maulana Zakariya vs. Muhammad Ali and others (1988 SCMR 105), as the facts of the instant case are altogether different from the facts of Maulana Zakariya’s case, therefore, the impugned

judgment / order of the Election Tribunal may be set aside and the election petition of the Respondent be dismissed.

5.As against that, Mr. Aitezaz Ahsan, learned counsel for the Respondent, in reply to the submissions of the learned counsel for the Appellant, referred to the nomination papers of Kamil Khan Sherani (Exh.PW-6/3), wherein he has shown his affiliation with Pashtoon Khwa Milli Awami Party and the Certificate of the PMAP under Section 20-A of the Representation of People Act, 1976 shows that Kamil Khan was their candidate from constituency No.NA-47. According to him, as per Checklist for the Scrutiny of Nomination Papers at S.No.13 regarding Party Affiliation, PMAP has been written and that all these acts were done much before the date of allotment of symbols; that the documents (applications) at Page 148 to 150 on the appeal file were never tendered in evidence nor any issue was framed thereon and these were annexed for the first time with the appeal, which legally cannot be considered and looked into at this stage having no evidentiary value; that as per posters, available on record, the Respondent had carried out his election

campaign from the platform of PMAP, so he should have been given the symbol of ‘tree’ on the ballot papers, which was the election symbol of PMAP; that the people in FATA area, where the literacy rate is very low, go to cast their votes to the symbol, therefore, if the symbol is not there, it cannot be said that the election has been conducted in the constituency in accordance with law; that after the election, Kamil Khan Sherani submitted two applications to the Returning Officer, wherein the said illegality was pointed out; that it does not matter much, whether the election petitions filed by Kamil Sherani and the PMAP were withdrawn, but one thing is very much clear from it that he was the candidate of PMAP and that the Appellant now wants to establish his case on the said three documents brought by him for the first time, which he cannot. The learned counsel thus concluded that the Election Tribunal has rightly held the election of this Constituency as a whole void and no valid exception could be taken to the well reasoned judgment/order of the Election Tribunal, thus, the appeal being without any merit is liable to be dismissed.

6.Arguments of the learned counsel for the parties were heard and record of the case was perused. Perusal of the record would reveal that most crucial issues in the case, on which the Election Tribunal accepted the Election Petition of the Respondent, are issues No. 5 and 6, under which, it was held that Kamil Khan Sherani was contesting the election on the political party ticket and that symbol of “Pashtoonkhwa Milli Awami Party” was ‘tree’ and not ‘corn’. It was also found that the rumor of printing the wrong symbol created confusion which disrupted the smooth polling and resultantly the whole constituency was disfranchised because many voters left the polling station without casting their votes.

7.The learned Election Tribunal while holding so placed reliance on the nomination papers of Kamil Khan Sherani, the Certificate issued by the Chairman of the PMAP under Section 20-A of the Representation of People Act, 1976 and the Check List for the Scrutiny of nomination papers. A look at the nomination papers, Exh.PW6/3, of Kamil Khan Sherani (respondent No.18) would reveal that though the declaration of

the candidate regarding his party affiliation PMAP has been submitted before the Returning Officer but provisions of Section 20-A of the Act of 1976 were not fully complied with as the certificate of the party was not annexed with the nomination papers. This very fact has been established by the letter of the Returning Officer dated 04.06.2013 to the Secretary, Election Commission of Pakistan in compliance of the Election Commission of Pakistan order dated 30.05.2013. This would not be out of place to mention here that the Respondent, in his statement as PW-6, refers to the order dated 30.05.2013 of the Election Commission of Pakistan but, by concealing further development, which goes against his interest says, that the Returning Officer did not submit any reply. For ready reference the relevant lines of his statement are reproduced below:- The letter would further reflect that till 19.04.2013, the said candidate (respondent No.18) failed to produce his party ticket,

therefore, instead of party symbol i.e. “tree”, a symbol of “corn” was allocated to him as an independent candidate. This letter is self-explanatory. After submission of this letter, the executive member of the PMAP also withdrew his Election / Objection Petition before Election Commission of Pakistan. This letter alongwith explanatory statement of the Reader of the Additional Commissioner / Returning Officer supported by his affidavit are the three documents, regarding which, the learned counsel for the respondent raised objection regarding their admissibility that the same were not tendered in evidence and, for the first time, have been brought on record alongwith memo of appeal, which legally cannot be considered / looked into at this stage. Yes, the law is very much clear in this regard that the document not tendered and exhibited during evidence cannot be brought on the record and cannot be looked into but, it is not a hard and fast rule of law of evidence. If a public document, brought on the record from proper custody and authenticity of which, is not doubtful, can well be looked into by the Court just to arrive at a just and right conclusion. These documents, no doubt, were not

part and parcel of the record of Election Tribunal and have been placed on the record for the first time but the same are public documents and authenticity of which cannot be doubted as the same are the outcome of the Objection Petition of Member, Executive Body of PMAP before the Election Commission of Pakistan and, in view of the order of the Election Commission of Pakistan, the letter dated 04.06.2013 was sent to the Secretary Election Commission of Pakistan by the then District Returning Officer / Returning Officer NA-47. For facility of reference, the relevant portion of the said letter is reproduced herein below:- “It is brought to your kind notice that I was appointed District Returning Officer and Returning Officer for NA 47. The aforesaid candidate neither produced himself nor through Agent his party ticket up to 19/04/2013, and he did not submit any application for allocation of symbol. So symbol of independent candidate “CORN” was allocated to him. On 05/05/2013, I was replaced by Additional Deputy Commissioner Bannu as Returning Officer and Deputy Commissioner Bannu as District Returning Officer for NA-47. On the same day all the files were handed over to them. On 11.05.2013 on the day of Election Deputy Commissioner Bannu contacted me and informed

me about the above matter. I came and give him statement in his office (attached) about the facts, but the Deputy Commissioner Bannu has not mentioned my statement in his report, I came to know about his party ticket on 11/05/2013. It is not in my knowledge that when and by whom he has placed his party ticket in his file.”

Besides, these documents, available on appeal file (at Pages 148 to 150) were issued and attested by the Election Commission of Pakistan. Importance of these documents can be adjudged from the fact that the respondent, himself, tried to conceal these documents. (relevant part of his examination-in-chief reproduced above).

So, just to arrive at a right conclusion, there is no legal harm to look into / consider such like important documents. This was the reply by the Returning Officer, which compelled the Executive Member, PMAP to withdraw his Objection Petition before the Election Commission of Pakistan. Since the provisions of CPC are not applicable in stricto-senso to the proceedings before the Election Tribunal or Appellate Forum under the election laws, such important documents cannot be left to go unnoticed mere on the plea that the same were not tendered / exhibited in

evidence. For safe administration of justice, Court can, itself, look into / consider such documents.

8.The entire edifice of the respondent, in his Election Petition, is regarding non-allocation of reserved symbol of political party to Kamil Khan Sherani, which has directly affected the entire election and most of the electors throughout the election day remained confused and the general view, which prevailed that day was that there would be re-election for the above said reason and for that matter, they did not cast their votes. He also tried to make out a case that his voters too, were unable to cast their votes. But, perusal of his entire evidence would reveal that he badly failed to lead any positive and direct evidence in this regard. Had it been the real fact, then it would have been the case of Kamil Khan Sherani, respondent No.18, who initially filed an election / objection petition before the Election Commission of Pakistan and thereafter unconditionally withdrew the same without assigning any reason for which he faced disciplinary action in the shape of show cause notice by the party and then one of the Member, Executive Committee

filed similar objection petition before the Election Commission of Pakistan, which too was unconditionally withdrawn after receipt of reply / report by the Returning Officer dated 04.06.2013. When such objections were unconditionally withdrawn, then it means that there was no objection / grievance by the actual person, who was allegedly the affected person. He while realizing the actual situation, straightaway backed out. So, we have to see that how and to what extent, the respondent or the entire election has been affected for that matter and, if the entire election is not affected, then whether such plea of wrong allocation of election symbol to respondent No.18 would affect the interest / cause of respondent.

Perusal of entire evidence led by the respondent would reflect that he badly failed to establish this fact that entire election was affected due wrong allocation of symbol to respondent No.18. There is not a single report / complaint, officially or privately, made on the election’s day, regarding the said issue. Even not a single person, who, himself failed to cast his vote or who reported the said event to any of the Presiding

Officers or the Election Commission of Pakistan. So, mere allegations levelled by the respondent or his witnesses cannot be held to be sufficient to hold that the election process was affected that day.

Finding of the Election Tribunal, in this regard, that the very ballot paper was not in the prescribed form as required under Rule 11 of Representation of People (Conduct of Election) Rules, 1977 will have no force at all. The symbol of “Corn” was allocated to the said Kamil Khan Sherani on 19.04.2013 as an independent candidate on his failure to produce the party ticket till last date. Besides, he, after 19.04.2013, did not file any objection for non-allocation of Reserved Symbol of his political party to Retuning Officer or Election Commission of Pakistan.

The respondent, in this regard, cannot be allowed to get benefits of his shortcomings, specially when, the election process went smoothly throughout the election day. So, in the given situation, we can safely hold that the nomination paper, so printed, carrying the symbol of “Corn” for Kamil Khan Sherani was

strictly in accordance with Rule 11 of the Representation of the People (Conduct of Election Rules), 1977.

9.Now comes the question that how this wrong allocation of symbol has affected the election of respondent. Tenor of his entire evidence would reflect that polling continued throughout the constituency without any such complaint by any of the Presiding Officer to Returning Officer. There is no direct evidence of the respondent, which could even create a doubt in the mind of this Court that voters of the respondent left the polling stations without casting their votes because of the above said reasons. The respondent secured his votes, as per his allocated symbol and stood 6th in the run. The respondent kept on visiting different poling stations throughout the election’s day and even he did not file any such compliant that his voters have left the polling station because of said reason at any of the polling stations. So mere his allegations without any solid evidence would, in no way, be sufficient to declare the entire election of the constituency as illegal and unlawful.

10.Accordingly, the appeal is accepted and the impugned judgment/order dated 05.05.2014 of the Election Tribunal is hereby set aside with no order as to costs.

Announced

CHIEF JUSTICE

JUDGE

A.Mateen