Pakistan Case LawFATEH MUHAMMAD HASNI Versus MUHAMMAD USMAN BADINI
MUHAMMAD AAMIR NAWAZ RANA, J.--- The petitioner has called in question the Notification dated 15.02.2025, whereby the respondent No.1 (Muhammad Usman Badini) was declared as returned candidate by the Election Commission of Pakistan ( ECP ) from the Constituency of NA-260, Chagai-cum-Nushki-cum-Kharan-cum-Washuk. According to Form-48, the total registered voters in NA-260 are 365,595 and in the elections held on 08th February 2024, the voters polled 177,339 votes, out of which valid number of votes were 170,015, whereas invalid votes were 7324.
2.According to Form-49, the petitioner had obtained 35,629 votes whereas the respondent No.1/returned candidate had secured 42,800 votes, so the margin of victory between the respondent No.1/returned candidate and petitioner is 7171 votes .
GIST OF ALLEGATIONS OF PETITIONER:
3.The petitioner has raised several allegations challenging the fairness and transparency of the General Elections held on 8th February, 2024 in Constituency NA-260; per petitioner on polling day, the suspension of internet and cellular services hindered voter access, particularly affecting women, the elderly, and persons with disabilities; this reportedly led to a low turnout; the Returning Officer (RO) delayed announcement of the results and failed to publicly display Form-45 as required. Furthermore, the Returning Officer and District Returning Officer (DRO) allegedly acted in collusion with respondent No.1 (Muhammad Usman Badini); Forms 45, 46, 47, 48, and 49 were allegedly tampered with to favour respondent No.1; the data in these forms did not tally, indicating irregularities and possible forgery; the vote-counting process was allegedly manipulated; petitioner s votes were miscounted or ignored, while bogus and rejected votes were counted in favor of respondent No.1; petitioner s polling agents were forcibly removed from Polling Stations during vote counting and they were denied access to Form-45, and were not allowed to sign it; Forms were later obtained unofficially; due to the vast size of the Constituency (equal in area to Khyber Pakhtunkhwa Province), election staff was inadequately deployed; several polling stations opened 3/4 hours late, further impacting fairness; Presiding Officers allegedly appointed on the recommendation of respondent No.1 deliberately miscounted petitioner s votes in his favour; respondent No.1, assisted by Presiding Officers and Security Personnel, allegedly interfered with the election process, detained Polling Staff, and cast bogus votes; ballot papers cast for the petitioner were reportedly defaced by multiple official stamps to have them rejected; the petitioner s request for recounting of votes was rejected by the Returning Officer without providing any justification, violating the right to fair trial under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ( Constitution ); a significant portion of postal ballots are missing or unaccounted for, raising questions about the integrity of the result; the number of used counterfoils and ballot papers do not match, suggesting that ballot stuffing occurred; the legal requirement of providing Form-45 to Polling Agents or displaying it publicly was not fulfilled, undermining transparency under Article 219 (3) of the Constitution; Consolidated Statement of the Results of the Count (Form-48) and the Final Consolidated Result (Form-49) were prepared without informing or involving the petitioner; in this context an Election Petition was filed before the ECP, but of no result.
4.The petition was contested by the respondent No.1/returned candidate by filing reply, in which legal and factual objections had been taken by him.
5.Out of the pleadings of the parties on 17.05.2024, the following issues were framed:
1. Whether the petitioner has complied with the mandatory provisions of section 142, 143 or 144 of the Elections Act, 2017?
2. Whether the respondent No.1/returned candidate is guilty of illegal and corrupt practices as mentioned in the memo of petition?
3. Whether the result of election has been materially affected due to failure to comply with the provisions of the Elections Act, 2017 and rules framed thereunder?
4. Whether there was prevalence of extensive corrupt and illegal practices at the elections?
5. Whether the allegations levelled by the petitioner in the Election Petition were communicated to the Returning Officer?
6.Whether the petitioner is entitled for the relief claimed for?
6. Thereafter, the parties were directed to produce evidence in support of their respective contentions. The petitioner produced twelve (12) witnesses and recorded his own statement, whereas the respondent No.1/returned candidate opted just to record his statement, thereafter vide order dated 10.10.2024, C.M.A. No. 358 of 2024 filed by the petitioner for recounting of votes was allowed and the votes of all the Polling Stations of NA-260 were directed to be counted.
REPORT REGARDING RECOUNTING OF VOTES OF ALL THE POLLING STATIONS OF NA-260:
7.Vide detail order dated 10.10.2024, the application (C.M.A. No. 358/2024) filed by the petitioner for recounting of votes of all the Polling Stations of NA-260 was allowed. The petitioner subsequently filed another application (C.M.A. No. 1708/2024) and alleged that he has reservations against the Returning Officer who is going to recount the votes. The petitioner requested that the votes of all the Polling Stations of NA-260 be recounted at Quetta on the grounds that law-and-order situation in Kharan is not peaceful and there is serious apprehension of dispute between the parties at Kharan. Considering the attending circumstances of the case, vide order dated 31.10.2024, the said application was partly allowed and order dated 10.10.2024 was modified in the following terms:
7. Considering the attending circumstances of the case, without dilating upon the allegations levelled by the applicant/petitioner, in order to ensure transparency, the order dated 10.10.2024 passed by this Tribunal in C.M.A. No. 358/2024 is hereby modified to the following effect:
v. The Provincial Election Commissioner Balochistan is further directed to appoint the representative of Election Commission of Pakistan who shall be present during the recounting process and shall assist the Commission .
In pursuance of the above order, on 04.11.2024 the ECP provided the list of following three officers:
S.#
Name
Designation
1.
Mr. Abdul Jabbar Baloch (BCS/B-19)
Project Director, Balochistan Livelihood and Entrepreneurship Program
2.
Mr. Muhammad Anwar Kakar (BSS/B-18)
Additional Deputy Commissioner (G), Quetta
3.
Mr. Muhammad Waqar (BCS/B-18)
Additional Deputy Commissioner (R), Quetta.
On 05.11.2024, the Tribunal appointed Mr. Muhammad Waqar (BCS/B-18), Additional Deputy Commissioner (Revenue) Quetta as the Commission for recounting of votes. The Commission started recounting process and thereafter on 28.02.2025 submitted the report which was taken on record as Ex-T/A-1 to Ex-T/A-46. On 10.03.2025, learned counsel for the petitioner did not opt to cross-examine the Commission, rather filed written objections upon the report i.e. Ex-T/A-1 to Ex-T/A-46 and relied upon his written objections. The respondent No.1/returned candidate filed objections and counter objections upon the report.
8.The report (Ex-T/A-1 to Ex-T/A-46) submitted by the Commission transpires that the petitioner obtained 24,688 votes, whereas the respondent No.1/returned candidate obtained 40,046 votes, so now there is difference of 15,358 votes; as per Form-49 there was difference of 7,171 votes, so the margin of victory of respondent No.1/returned candidate has increased from 7171 to that of 15358 .
ARGUMENTS OF LEARNED COUNSEL FOR THE PARTIES:
9.Learned counsel for the petitioner mainly contended that the election in NA-260 were neither fair nor transparent, rather massive rigging had taken place. Per learned counsel, the report of the recounting submitted by the Commission vindicates the stance of the petitioner, as according to report, number of bags were not properly sealed or found torn; considering these illegalities and irregularities, no sanctity could be given to the election process through which the respondent No.1 has been declared as returned candidate. Per learned counsel through evidence of Election Agents, Polling Agents and Voters, the petitioner had proved that massive rigging had taken place in all the Polling Stations of NA-260, therefore, according to learned counsel for the petitioner, the petitioner is entitled for the relief claimed for.
10.Learned counsel appearing for the respondent No.1/returned candidate, while controverting the contentions raised by learned counsel for the petitioner, submitted that to prove the connivance of the respondent No.1/returned candidate, it was necessary to cast aspersion upon the election process beyond reasonable doubt; per learned counsel since absolutely no proof of connivance of respondent No.1/returned candidate has been produced by the petitioner and the witnesses had submitted stereotype affidavits, therefore no credence can be given to such evidence. Per learned counsel the Commission has also committed illegalities and the objections taken by the petitioner regarding the report of Commission are without any substance; even otherwise, per learned counsel, the margin of victory of the respondent No.1/returned candidate has enhanced from 7171 to 15358 which fact itself, according to learned counsel, is a proof that the respondent No.1/returned candidate had obtained huge number of votes in the General Elections of 2024 but in fact the petitioner used the illegal tactics to reduce the lead of the respondent No.1/returned candidate from 15,358 to 7,171, which fact has been exposed in the recounting process.
11.The Assistant Director (Law) ECP supported the version of the respondent No.1/returned candidate and maintained that the Elections in NA-260 were held in accordance with law and after defeat, the petitioner levelled false allegations.
DETERMINATION:
12.Issue No.1 was framed in view of the legal objection taken by the respondent No.1/returned candidate; scrutiny of record and perusal of Election Petition transpires that substantial compliance of sections 142, 143 and 144 of the Elections Act, 2017 ( Act, 2017 ) (except section 144(1)(b) of the Act, 2017) has been done by the petitioner.
13.Since Issue Nos. 2 to 5 are co-related, therefore they are being discussed and disposed of jointly.
14.The petitioner had levelled allegation of massive rigging in all the Polling Stations of NA-260 i.e. 361 Polling Stations. In Polling Station No.60 i.e. Government Boys Middle School, Killi Haji Bilal Brah-Chah (Middle Section) Combined-I, the petitioner received 636 votes , whereas the respondent No.1/returned candidate received 0 votes , but even then the petitioner has alleged that in this Polling Station massive rigging had taken place, which is absurd and it seems that in order to tarnish the whole election process, the petitioner indiscriminately levelled general allegation of rigging regarding all the Polling Stations of NA-260 including those Polling Stations where the petitioner had obtained higher number of votes. In this regard, Polling Stations Nos.323 and 351 can also be referred where the petitioner received 53 and 38 votes respectively, whereas the respondent No.1/returned candidate received 0 votes . The Polling Station Nos.359, 360 and 361 can also be referred where the petitioner received 117, 324 and 161 votes respectively, and the respondent No.1/returned candidate received 4, 11 and 5 votes respectively.
15.Perusal of evidence of the petitioner s witnesses transpires that not a single witness has mentioned the name of any Polling Staff or any other culprit who had committed rigging in the voting, rather the general allegations, without pointing out the actual culprits, have been levelled. The Polling Agents of the petitioner belonged to the same locality, and it is not possible that they did not know the Polling Agents or the supporters of the rival party who, according to them, were committing rigging.
16.Though the Election Petition was not dismissed in view of the legal objection raised by learned counsel for respondent No.1/returned candidate regarding non-mentioning of full particulars of corrupt and illegal practice, rather the matter was proceeded on merits and all the witnesses were provided full opportunity to go through the test of cross-examination, but even then nothing favourable for petitioner came on record as per requirement of section 144(1) (b) of the Act, 2017. For ready reference, the ibid section is reproduced:
144. Contents of petition. (1) An election petition shall contain
(Emphasis supplied)
17.The general allegation, without naming the actual culprits, creates serious doubts regarding veracity of petitioner s version, as vague allegations cannot be relied upon for the purpose of de-seating the returned candidate, rather the standard of proof required in a criminal case i.e. beyond reasonable doubt is a condition precedent, while analyzing the evidence produced by the petitioner in an Election Petition.
18.Learned counsel for the petitioner has laid down much emphasis upon the fact that during recounting process it was revealed that certain packets were either unsealed or found torn, therefore, the whole election process in NA-260 had become doubtful and the allegation of extensive rigging stands proved. I have considered this allegation; record demonstrates that after consolidation and announcement of result, the Returning Officer had transmitted the election material to the concerned office of the ECP. If in case, subsequently, the record was not properly handled, then it was obligatory for the petitioner to prove the role of the respondent No.1/returned candidate in this regard and the connivance of the respondent No.1/returned candidate was necessary to be proved in order to attract the penal provisions of the Act, 2017. But neither such effort was made, nor any such evidence was produced which could have proved connivance of the respondent No.1/returned candidate. Section 156(1) of the Act, 2017 specifically caters for this kind of situation. For the facility of reference, the ibid section is reproduced:
156. Ground for declaring election of returned candidate void. (1) The Election Tribunal shall declare the election of the returned candidate to be void if
(Emphasis supplied)
19.The connivance and nexus of the respondent No.1/returned candidate has not been proved by the petitioner in this case, rather, as mentioned above, the general allegations were levelled, and despite re-counting of votes, the lead of the respondent No.1/returned candidate, which was in fact 7,171, had increased to 15,358, therefore, who had committed rigging in order to tarnish the election process is a riddle which cannot be accurately sorted out considering the quality and substance of evidence produced by the petitioner, as there were 23 other contesting candidates excluding petitioner and respondent No.1/returned candidate and every candidate did his level best to win the election.
This aspect of the matter was thoroughly considered by the Honourable Supreme Court in the case titled as Usman Dar v. Khawaja Muhammad Asif 1 , relevant excerpt whereof is reproduced:
21. Learned counsel for the appellant has made an effort to build his case against respondent No.1 on the basis of the report submitted by NADRA pursuant to orders of this Court dated 19.01.2016. He has vehemently argued that the allegations of illegal and corrupt practices stand established in view of the fact that seals were allegedly found broken, some of the bags containing election material were allegedly found torn/damaged and duplication of votes was also detected . We have considered the argument, but have found it to be misconceived in light of section 70 of the ROPA. The record available before us demonstrates that after consolidation and announcement of the result, the Returning Officer transmitted the election material, contained in 227 bags, to the District Accounts Office/Treasury for safe custody. The said officer duly received the said material and issued an acknowledgment in writing. If the election material was not properly safeguarded by the concerned Officer(s), the legal consequences for the said dereliction can and should follow against those who were found negligent, careless or deficient in performance of their duties. However once the election material had been delivered to the ECP or an agency designated by it for safe custody after completion of the election process, consolidation and announcement of the result, the requirements of ROPA stood fulfilled. Any subsequent events could not have materially affected the result of the election so as to form the basis to set aside the election as a whole. Further, without clear and irrefutable evidence connecting the respondent No.1 to the damage allegedly caused to the record, he cannot be held responsible or proceeded against under section 70 of ROPA. There is not an iota of evidence to connect respondent No.1 with causing damage to the election record after it had been delivered by the Returning Officer for safe custody .
(Emphasis supplied)
20.It is trite principle of law that in an Election Petition if the petitioner is not able to produce sufficient evidence to prove his case beyond reasonable doubt, then the benefit of doubt must go to the returned candidate, as the criteria to prove allegations in an Election Petition is strict and stringent and the allegations must be proved absolutely through positive evidence without resorting to inferences. Reliance in this regard is being placed upon the case titled as Syed Hafeezuddin v. Abdul Razzaq 2 , relevant excerpt whereof is reproduced:
--Before we embark upon an analysis of the evidence and a determination about the correctness or otherwise of the findings of the learned Tribunal, it is pertinent to mention that the rules of proof for the grounds challenging the election which are founded on corrupt and illegal practices are quite strict and stringent and the allegations in this regard must be absolutely proved through positive evidence without accepting any inferences and if there is any doubt, the benefit must go to the person against whom corrupt or illegal practices are being alleged .
For the foregoing reasons and after thorough scrutiny of the evidence produced by the petitioner, the Election Petition is held bereft of merits; hence same is dismissed.
JK/100/Bal Petition dismissed.
Judges on this bench
- Muhammad Aamir Nawaz Rana106 judgments