MUHAMMAD AKRAM BALOCH Versus AKBAR ASKANI

MUHAMMAD HASHIM KHAN KAKAR, J.--- Petitioner Muhammad Akram Baloch as well as respondent No.1 Akbar Askani and others contested election as candidates for the seat of Member Provincial Assembly from constituency PB-50 Kech-III (the "Constituency") in the general election held on 11th May, 2013. As per result published in the official Gazette of Pakistan vide notification dated 27th May, 2013 issued by the Election Commission of Pakistan (the "Commission"), Akbar Askani, respondent No.1, was declared as Returned Candidate against the said seat.

2. Being aggrieved of the result of election by the Commission, the petitioner filed a petition under section 103-AA of the Representation of the People Act 1976 (the "Act of 1976") before the Commission to declare the poll void, which was dismissed with the observation that the petitioner has an alternate remedy available to him in the form of an election petition before this Tribunal, hence, this election petition under section 52 of the Act of 1976, assailing the result, whereby respondent No.1 was declared as Returned Candidate, on the ground that massive corrupt and illegal practices were committed by him with the help of district administration.

3. During pendency of the instant election petition and recording the statements of P.W.1 Mubarak Ali, P.W.2 Abdul Waleed, P.W.3 Yar Jan and P.W.4 Sameer, the petitioner moved the instant application with the following player:

"It is prayed that record of Polling Stations Nos.29 and 31 namely Jatjoo and Tulamb may kindly be called for and appropriate direction be made/commission issued testing/ scanning through NADRA to determine whether thumb-marks appended to counterfoil of the votes cast at polling stations Jatjoo and Tulamb were genuine or forged.

It is further prayed that in the interest of justice, learned Tribunal may in addition to Forensic/Scanning test adopt any other procedure for ascertainment of polling at polling station Jatjoo and Tulamb."

4. It is the case of the petitioner that neither poll was held, nor any election staff came at polling stations Jatjoo and Tulamb. The result was fabricated and respondent No.1 was declared as successful and this fact can be verified through National Database and Registration Authority (NADRA), as fingerprints/thumb-impressions are available on the counterfoils of the used ballot papers, which can be tallied with NADRA record.

5. Messrs Muhammad Aslam Chishti and S.A.M. Qaudri, learned counsel for the petitioner, contended that respondent No.1 has won the election by adopting massive illegal and corrupt practices in collusion with the election staff and district administration and, thus, the result, declaring him as a Returned Candidate, is liable to be set aside. As per their contention, neither poll was held, nor an polling staff was preset at polling stations Jatjoo and Tulamb, yet a fabricated result was conveyed to the Returning Officer, that too, on second day of the polling. In support of their contentions, the learned counsel referred to the statements/affidavits of P.Ws.1, 2, 3 and 4, who averred that no poll was held at the aforesaid polling stations. Learned counsel laid much stress on the point that had the votes, allegedly, used at polling stations Jatjoo and Tulamb been examined and excluded from the count by the Returning Officer, the petitioner might have won the election, as there was a difference of only 54 votes between the petitioner and the Returned Candidate and that the Returning Officer did not perform his legal duty, as he was in league with respondent No.1. The learned counsel further submitted that the tangible proof of rigging is also apparent on the face of record from abnormal percentage of votes cast in favour of the successful candidate at the said two polling stations. As per their contention, the Returned Candidate, who contested the election from the said constituency on the ticket of PML-N, has obtained almost 100% of votes at the said polling stations, however, astonishingly, one Mst. Zubaida Jalal, who also contested the election from the said constituency on the ticket of PML-N, has not secured a single vote at the said polling stations. While concluding their arguments, they added that the counterfoils of the total votes, cast in favour of the Returned Candidate, may be called for from the Provincial Election Commissioner or the Returning Officer of the Constituency as well as original used photo voters' list and the statement of count in respect of said two polling stations and may be sent to NADRA for examination of the thumb-impressions on the counterfoils as well as photo voters' list, for which they are ready to deposit the requisite charges of NADRA. They further added that this Tribunal has ample powers within the purview of Article 164 of the Qanun-e-Shahadat Order, 1984 to allow production of any evidence that could have become available because of modern devices and techniques.

6. On the contrary, Messrs Amanullah Kanrani and Abdul Sattar Khan, learned counsel for respondent No.1, while controverting the contentions raised by the learned counsel for the petitioner, submitted that the votes, polled in favour of respondent No.1, were cast by the genuine voters and no corrupt or illegal practices were committed during the course of election, however, the low turnout was due to deteriorated law and order situation, prevailing in the Constituency. They further added that the Constituency of Kech is divided into different categories for different considerations/reasons in favour of different candidates, thus, to say that casting of votes in absolute majority at certain polling stations of one constituency in favour of one candidate was "tangible proof of rigging on the face of record", seems to be somewhat conjectural and ill-founded. They further submitted that if such ground is acceptable for certain polling stations, where respondent No.1 had secured abnormal percentage of votes cast, then the same principle would also apply to the other polling stations, where the petitioner has secured abnormal percentage of votes. They, while challenging the jurisdiction of this Tribunal, submitted that this Tribunal cannot define limits of its own jurisdiction and can use only those powers, which are specifically provided in the Act of 1976 and in the garb of interpretation, the Tribunals have no powers to add or omit even a single word from the provisions of law. Since there is no provision in the Act of 1976 regarding authentication of thumb-impressions by NADRA, as such, the relief claimed for cannot be granted. While concluding their arguments, they further added that NADRA did not have the expertise to accurately check all the thumb-impressions, as the magnetic ink had not been used in the voting process. Even otherwise, NADRA's expertise in this regard hardly lead to accurate results or verification, thus, the application, being misconceived and baseless, is liable to be dismissed.

7. At the very outset, before entering into the controversy between the parties, it may be noted that for all legal intents and purposes, this Tribunal enjoys the status of a civil Court, while determining the dispute relating to the rights and liabilities of the parties in their presence on the basis of their respective evidence. I am conscious of the fact that ordinarily, the Tribunal is not always functioning as a "Court", nor is its action always judicial; however, the determining factor is the nature of dispute to be resolved by it. When the Tribunal has to determine a dispute relating to a right or liability, recognized by the Constitution or law, in the presence of the parties, in the light of the evidence produced by them, then it acts judicially and enjoys the status of the Court. While holding this view, I am fortified from the case of Riaz-ul-Haq v. Federation of Pakistan 2013 PLC (C.S.) 1308, relevant portion whereof speaks as under:---

"40. The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a 'Court', nor its action is always judicial; however, the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability, recognized by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially. Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further, such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles. "

8. It may be noted that it is now settled by a long course of discussions of the superior Courts that inspection of ballot papers and counterfoils should be allowed very sparingly and only when it is absolutely essential to determine the controversy between the parties. In the garb of seeking inspection, the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election of the Returned Candidate. The following conditions are imperative before a Tribunal can grant permission for inspection of the ballot papers and counterfoils:---

(i) that it is important to maintain the secrecy of the ballots, which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(ii) that before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(iii) that the discretion conferred on the Court or Tribunal should not be exercised in such a way so as to enable the applicant to indulge in roving inquiry with a view to fishing out materials for declaring the election to be void, and

(iv) that on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Tribunal regarding the truth of the allegations made for a recount, and not for the purposes of fishing out materials.

9. While considering the instant application on the touchstone of the aforementioned criterion, I am of the view that the controversy can be set at rest by referring the counterfoils along with used photo voter's list and statements of count to the NADRA authorities in order to determine as to whether impersonation has been committed as alleged by the petitioner or otherwise. The evidence, so far as produced by the petitioner, would show that serious allegations about rigging the election process have been alleged against respondent No.1 i.e. getting votes of the dead voters, absentees as well as abnormal percentage at polling stations Jatjoo and Tulamb. Keeping in view the nature of the allegations and oral as well as documentary evidence available on record provide reasonable justification for referring the matter to NADRA for forensic examination/scanning of thumb-impressions appended to counterfoils of the used ballot papers by means of biometric system, in order to determine the fate of allegations.

10. At this juncture, however, a question regarding the admissibility of such evidence, as agitated by learned counsel for respondent No.1, arises and Article 164 of the Qanun-e-Shahadat Order, 1984 (the "Order of 1984) furnished a complete answer to the said contention, which reads as under:---

"164. Production of evidence that has become available because of modern devices, etc. In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques."

11. A plain reading of the aforementioned provision of law clearly manifests that the Courts are authorized to allow producing evidence that may have become available because of modern devices or techniques in such cases as it may consider appropriate. Computer technology being a modern device is well within the ambit of Article 164 of the Order of 1984.

12. There is no difficulty to resolve the controversy regarding admissibility of the proposed evidence in respect of authentication of thumb impression by the NADRA authorities. This can be better understood by referring the meanings of the words 'document', 'evidence', 'electronic record' and 'data', which read as under:---

(a) "Document": Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, for the purposes of recording that matter;

(b) "Evidence": includes

(i) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence, and

(ii) all documents produced for the inspection of the court; such documents are called documentary evidence.

(c) "Electronic Record" Electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche. d) "Data": Data means a representation of information, knowledge, facts, concepts or instructions, which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

13. From the combined study of the aforesaid definitions, it can easily be inferred that documentary evidence is usually such as could be put down on paper, certificates, executed deeds, photographs, maps, caricatures etc. However, there can be no limit to the forms in which documentary evidence exists. Whether the report of NADRA, regarding the thumb scanning, can be produced in evidence. obviously the answer is 'yes' for the reason that under Article 2 (b) of the Order of 1984, any substance, on which matter has been expressed or described by means of letters, figures or marks, or by more than one of these means, intended to be used, or which may be used, can be considered as a document, provided that the purpose of such expression or description is to record the matter. Similarly, electronic records mean data, record or data generated, image or sound stored, received or sent in an electronic form or microfilms or computer generated microfiche. Thus, an electronic record can safely be considered as a document, because matter is recorded on the computer as bits and byes, which are the digital equivalent of figures or marks, therefore, any document produced by a computer can be produced as evidence so long as it could be shown that the computer was functioning properly and was not misused. The computer record in such cases can he admitted as evidence. The question of admissibility of computer record was attended by Hon'ble Lahore High Court, Lahore in the case of Raja Muhammad Nasir v. Mehmood Shaukat Bhatti PLD 2003 Lahore 213, wherein, while dealing with section 164 of the Order of 1984, a reference was also made to the Halsbury's Laws of England, 4th Edn., para.59, which reads as under:---

"In any civil proceedings a statement contained in a document produced by a Computer is, subject to rules of Court, admissible as evidence of any fact, stated in it of which direct oral evidence would be admissible if; (1) the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period whether for profit or not, by anybody, whether corporate or not, or by any individual; (2) over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (3) throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and (4) the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities."

14. Even otherwise, it is the case of the petitioner that no polling was held at polling stations Tulamb and Jatjoo and bogus votes were cast on the said polling stations by respondent No.1. Whether bogus votes were cast or not, is a question of fact in issue, which could be proved through documentary as well as oral evidence and the application on the basis of which verification of thumb-impressions has been sought from NADRA would certainly constitute documentary evidence.

15. Similarly, the contention of the learned counsel for respondent No.1 that the prayer cannot be granted because by moving instant application, it seems that the petitioner has made an attempt to establish/introduce altogether a new case, I am not impressed by the said contention for the simple reason that in the case of alleged illegal and corrupt practices, the petitioner can seek the aid of the Tribunal by virtue of the jurisdiction of a civil Court residing in it as extended by section 64 of the Act of 1976. In this respect, reference can be made to the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni, 1999 SCMR 284, the relevant portion whereof reads as under:---

"While the rule as to specific pleadings is invokable in election petitions, such, as discernible from section 55 read with sections 78 and 83 of the Act, is necessarily confined to corrupt or illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should reasonably have known. Many an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of the Tribunal to come to his aid in virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiable be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected. The rule pertaining to non-compliance of the applicable provisions of law by the officers and staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving non-compliance with the provisions of the Act and the Rules the allegations can be only as much detailed as is plausible in the given circumstances of a case. To that extent, keeping in view the brevity and preciseness enjoined by section 55(1)(a), the petition seems to have satisfied such requirements as there may have been."

16. So far as the contention of learned counsel in respect of secrecy of ballot papers is concerned, undoubtedly, the principle of "secrecy of ballot" cannot be denied in view of Article 226 of the Constitution of Islamic Republic of Pakistan 1973 (the "Constitution"), which is an indispensable adjunct of free and fair elections. The Act of 1976 assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. But this right of the voter is not absolute. It must yield to the principle of "purity of election" in larger public interest. In fact, secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a reasonable citizen of this country to ensure free and fair election. Even otherwise, it is a case of referring the counterfoils along with used photo voters' list along with statements of count to NADRA authorities for the purposes of thumb-impressions in order to determine as to whether the votes were cast by the genuine voters or impersonation was committed. Thus, no question of secrecy of ballot arises at all in the peculiar circumstances of the case.

17. Reverting to the last contention of learned counsel for respondent No.1 that the principle of "tangible proof of rigging on the face of record", I am in agreement with learned counsel that both the parties have come forward with the same allegations against each other. In such view of the matter, it would not be appropriate to refer the votes of only Jatjoo and Tulamb polling stations to the NADRA authorities for thumb authentication, as Shakespeare has said "everything is fair in love and war" and the petitioner could not be presumed to be as virtuous as Caesar's wife so as to be completely above board. So, the equity demands to refer the counterfoils along with photo voters' list and statements of count of the whole constituency, particularly when respondent No.2 has also filed a Recrimination within the meaning of section 67 of the Act of 1976.

18. It would not be out of place to mention here that technological innovations, particularly biometric system, have made bogus voting very difficult if not impossible in Pakistan. The electoral list used in 2008's General Elections contained over 37 million bogus votes, which comes to around 45% of 81 million registered voters. Since the turnout in Pakistan is between 32 and 36%, as such, such fact alone made the whole process of election 2008 questionable. After taking a serious notice by Hon'ble Supreme Court of Pakistan, election authorities with collaboration of NADRA authorities have compiled computerized electoral rolls with voters' pictures with intention to make possible the holding of fair and free elections in future. Biometrics is the science of measuring physical properties of living beings and is the automated recognition of individuals based on their behavioral and biological characteristics. The NADRA is already in possession of biometric data i.e. biometric template, stored in a biometric enrolment data base and can easily compare the actual biometric features i.e. thumb-impression of the voter appended on the counterfoil with the biometric features already stored for the purposes of comparison in the biometric enrolment database.

19. In view of the aforesaid discussion, I am satisfied that the allegations provide a reasonable justification for referring the counterfoils along with photo voters' list and statements of count to the NADRA authorities for examination through process of biometric examination/scanning of thumb-marks appended to counterfoils of the ballot papers.

20. It is also worth-mentioning that by accepting this application, no harm or prejudice would be caused to either party, rather it would be beneficial for all those who believe in fair and impartial election, fair play and equity. Needless to observe that the petitioner as well as the respondents would be at liberty to file objections, if any, to the report of NADRA on examination and scanning of votes and if such objections are raised, the same would be considered by this Tribunal in accordance with law, after providing an opportunity of being heard to the parties and allowing them to lead evidence in support of their respective contentions, if so desired, before final disposal of the election petition. The Returning Officer of the Constituency i.e. PB-50 Kech-III is directed to produce the counterfoils, photo voters' lists and statement of counts of all those polling stations, where the votes were cast on 31st December, 2013 at 9:00 a.m. in sealed envelopes. The petitioner shall deposit the requisite fee of NADRA @ Rs.10 (Rupees ten) per fingerprint authentication as service charges through bank draft in favour of NADRA Headquarters' A/c No.SSD 51009-6, Habib Bank Limited, Foreign Affairs Branch, Islamabad, by or before 31st of this month and to submit the same before this Tribunal for its onward transmission to NADRA along with counterfoils, statement of counts and the used photo voters' lists through its authorized representative. The petitioner shall also deposit a sum of Rs.60,000 (Rupees sixty thousand only), tentatively, towards expenditures and T.A./D.A. allowance for the representative of the Tribunal before Assistant Registrar (Accounts), High Court of Balochistan, Quetta, who shall deposit these papers at NADRA Islamabad for examination and report.

AG/9/Bal. Application accepted.