Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Hasan Foez Siddique, J.
         And
Zafar Ahmed, J.
Judgment
07.11.2012
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}
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} Md. Afzal Hossain
…Petitioner.
Vs.
Government of Bangladesh and others.
…Respondents.
Constitution of Bangladesh, 1972
Article 102
Local Government (Municipality) Election Rules, 2010
Rule 39
After counting the ballot papers, the respon-dent No. 7 or any other contesting candidates did not take any steps to recount the ballots by filing any application before Presiding Officer of any of Polling Station which they would ordinarily have done if there was any truth in the pleas canvassed by the respondent No. 7 in his election petition and application for recounting of votes which was made after a lapse of seven months from counting of votes. In the absence of any evidence regarding improper counting of votes it is difficult to accept the finding of the tribunal that the factual foundation for inspection and recoun-ting has been established satisfactorily. Court can safely ignore to take notice of allegation which is couched in vague and nebulous manner. The averments made in the petition and the materials brought on record by the respondent No. 7 did not at all proved. Both the tribunals acted unlawfully in passing the order of inspection and recounting of ballot papers. ….(13, 23, 27, 30 & 31)
Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245; Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156; V.S. Achuthanda Vs. P.J. Francis and another reported in AIR 2001 SC page 837; Abdul Latif Bepari Vs. Md. Nurul Islam Howlader reported in 20 BLD (AD)  page 264; Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal  reported in 14 BLD (AD) 77; Ram Sewak Yadav and others Vs. Hussain Kamal Kedwai and others (AIR 1964 S.C.R. 239; Rajnarayon Vs. Indira Nehru Gandi  reported in AIR 1972 S.C. 1302; Suresh Prasad Yadav Vs. Jai Prakash Mishra and others reported in AIR 1975 S.C. 376; Dr. Mohiuddin Khan Alamgir Vs. Government of Bangladesh reported in 62 DLR (AD) 425, ref.
Mr. Yousuf Hossain Humayun with
Mr. Manzill  Murshid
Mr. Abdul Awal, Advocates
—For the petitioner.
Mr. Jamiruddin Sircar,
 Mr. Md. Aminul Hoque, Senior Advocates
With
Mr. Mvi. Mohammad Wahidullah,  Advocate
….For the respondents.
JUDGMENT
Hasan Foez Siddique, J
This Rule Nisi was issued calling upon the respondents to show cause as to why the order dated 29.11.2011 passed by the Election Appellate Tribunal, Jhalukathi in Election App-eal No.06 of 2011 affirming the order dated 01.11.2011 passed by the Election Tribunal, Jhalukathi in Election Petition No.05 of 2011 should not be declared to have been made without lawful authority and are of no legal effect.
2. The relevant facts for the disposal of the Rule, in short, are that the petitioner, respond-ent No. 7 and some others contested in election for the post of Mayor of Jhalukathi Munici-pality held on 24.03.2011. The petitioner was declared elected defeating his nearest rival candidate, the respondent No.7. The respondent No.7 filed election petition before the Election Tribunal, Jhalukathi making following prayers: Ò(K) SvjKvVx †cŠimfvq Bs24/03/2011 Zvwi‡Li †cŠi wbe©vP‡bi 1bs weev`x cªwZc¶ bvwgK wbe©vPbx djvdj evwZj c~e©K Z`¯n‡j AÎ ev`x `iLv¯—Kvix‡K  ‡gqi c‡` wbe©vwPZ g‡g©  †Nvlbvi Av‡`k w`evi| (L) †gvKÏgvi mg¨K LiP weev`xMb cªwZ Av‡`k w`evi| (M) AvBb I BKz¨BwUi weavb g‡Z ev`x `iLv¯—Kvix Avi †h, cªwZKvi cvB‡Z cv‡i Zvnviv I Av‡`k w`evi|Ó
3. The symbols of petitioner and respondent No.7 were “Pine appeal” and “Ship” respecti-vely. The  names of Polling Centres are : 1) Jhalukathi Government College, West Chandk-athi, 2) Bekona Government Primary School, Bekona, 3) Jhalukathi Government Women College, 4) Jhalukathi Government Boys High School, 5) Kutubnagar  Government Primary School, 6) Zilla Parishad Bhaban, Krishnaka-thi, Jhalukathi, 7) Upazila Parishad Milonay-aton (U.T.D.C. Hall), 8) Upazilla Parishad  Officers Club and Library, 9)  Municipal Ideal Government Primary school, 10) Shahi Model Government Primary school, 11) J.B.I. Union High School, Ishanil, 12) Basanda Government Primary School, 13) Kefayet Nagar Governme-nt  Primary School ( New building), 14) Kefay-etnagar Government Primary School (Old buil-ding), 15) Udbodhon Secondary School, 16) Syedunnessa Government Primary School, 17) Halima Moazzam Reg. Primary School and 18) City Kinder Garten Vote Centre.
4. In the election petition, the respondent No.7  brought allegation in the following manner:
Ò¯’vbxq KwZcq ‡bZ…e„›`  1bs  weev`x cªwZc¶‡K wbqv †Kvb fv‡eB AvMv‡bv m¤¢e b‡n Dnv wbwðZ eywS‡Z  cvwiqv Zvnviv wbe©vPbx Kv‡R KZ…©c¶ KZ…©K wb‡qvwRZ Kg©KZ©v Kg©Pvix‡`i  mwnZ †e-AvBbx †hvMmvR‡m _vwKqv SvjKvVx  †cŠimfvi  Bs 24/3/2011 Zvwi‡Li wbe©vP‡b †e-AvBbx I A‰ea cªfve we¯Ívi Kwiqv wewfbœ iKg KvimvwR Kwiqv mKj †fvU †K‡›`ª we‡klfv‡e mš¿vmx ZrciZv Ges AÎ c‡¶i G‡R›U ev mg_©K †fvUvi‡`i‡K bvbvfv‡e fqfxwZ cª`k©b Kwiqv AÎ c‡¶i mg_©bxq †fvUvi‡`i‡K †fvU  †K‡›`ª hvIhvi e¨vcv‡i wej¤^ NUvBqv G‡`i bvgvKi‡b Rvj †fvU cª`vb K‡i| we‡kl Kwiqv wbg¥wjwLZ †fvU †K‡›`ª Zvnv‡`i `Ljxq cªfve LvUvBqv 1bs weev`x cªwZc‡¶i Avbvim gvK©vq  Rvj  †fvU cª`vb Kwi‡Z m¶g nq| we‡klfv‡e D‡j­L¨  †h, ¯^v¶i  Ávbnxb  †fvUvi‡`i e¨vjU  †ccv‡ii gywo‡Z  wUc †`Iqvi weavb _vKv ¯^‡Z¡I ¯^ ¯^ wcªRvBwWs Awdmvi mn  †K‡›`ªi  Ab¨vb¨ miKvix Kg©KZ©v Kg©Pvix‡`i †e-AvBbx fv‡e eva¨ Kwiqv ¯^v¶iÁvb m¤úbœ †fvUvi‡`i wUc †bIqv nBqv‡Q| ¯^v¶iÁvb m¤úbœ †fvUvi‡`i wUc †bIqv D‡Ï‡k¨g~jK Ges 1bs weev`x cªwZc‡¶i gvK©v Avbvi‡m †fvU  msL¨v Ab¨vqAv‡e e„w× Kivq Kvh©vw` nq| GBi“c  †e-AvBbx Kvh©vw` Kwiqv mKj  †K‡›`ªB nBqv _vwK‡jI wbg¥wjwLZ  †fvU  †K›`ª¸‡jv‡Z  we‡klfv‡e D³i“c Ab¨vq I †e-AvBbx Kvh©vw` nBqv‡Q| †K›`ª¸‡jv n‡jv- 1) Dc‡Rjv cwil` (BD wUwWwm nj), 2) Dc‡Rjv cwil` Awdmvm© K¬ve  I jvB‡eªix, Dc‡Rjv cwil` PZ¡i, 3) kvnx g‡Wj miKvix cªv_wgK we`¨vjq, SvjKvVx, 4) †R,we,AvB, BDwbqb nvB¯‹zj, BQvbxj, SvjKvVx, 5) evm›Wv miKvix cªv_wgK we`¨vjq, 6)  wKdvBZbMi miKvix cªv_wgK we`¨vjq (bZzb feb), 7) wKdvBZbMi miKvix cªv_wgK we`¨vjq (cyivZb wØZj feb), 8) nvwjgv  †gvqv‡¾g  †iwRt cªv_wgK we`¨vjq, 9)  D‡×vab gva¨wgK we`¨vjq, 10) wmwU wKÛvi Mv‡W©b, 11) miKvix gwnjv K‡jR| —Dc‡iv³ ‡fvU †K›`ª ¸‡jv‡Z Bmy¨K…Z e¨vjU †ccv‡ii †P‡q †fvU MYbvKvjxb mgq e¨vjU †ccv‡ii msL¨v AwaK nBqv‡Q| Z`ycwi cªvq †fvU †K‡›`ªB AÎ c‡¶i wb‡qvMK…Z G‡R›UMb‡K  †fvU Mªnb I MYbvi mgh bvbv ai‡bi ûgwKi gva¨‡g fqfxwZ †`LvBqv Zvnv‡`i‡K mve©¶wbKfv‡e wbe©vPbx ey‡_ mn MYbvKvjxb mgq Dcw¯nZ _vwK‡Z †`Iqv nq bvB| †fvU MYbvi mgq AÎ ev`x `iLv¯—Kvixi RvnvR gvK©vq e¨vjU 1bs- weev`x cªwZc‡¶i Avbvim gvK©vq e¨vjU ev  †fvU w`evi †`LvBqv 1bs weev`x cªwZc‡¶i mwVK cªvß  †fv‡Ui  †P‡q  †ekx  †fvU  †`Lv‡bv nBqv‡Q—–1 bs weev`x cªwZc‡¶i  †P‡q  ev`xi  ÒRvnvR gvK©vÓ cªZx‡K 8,797wU  †fvU †ekx cªvß nBqv‡Qb| hvnv c~Yt MYbv Kwi‡jB cªgvwbZ nB‡e Ges ev`x SvjKvVx †cŠimfvi  †gqi wnmv‡e weRqx  †NvwlZ nB‡e|Ó
5. The election petition was resisted by the present petitioner, the returned candidate.
6. On 26.10.2011 that is, after 7 months of holding election, the respondent No.7 filed an application before the Election Tribunal for recounting votes. The contents of that applica-tion run as follows:
ÒD³  bs  †gvKÏgvwU Dfq c‡¶i m¨¶¨ †Riv mgvß nBqv AvMvgx 30/10/11 ZvwiL avh© Av‡Q| Zvnv‡Z SvjKvwV †cŠimfvi MZ Bs24/3/11 Zvwi‡Li wbe©vPbx 18wU †fvU  †K‡›`ªB †gqi c‡` †fvU MYbvq KviPzwc nBqv‡Q| hvnv‡Z wbe©vPbx djvdj mwVKfv‡e cª¯—Z nqwb| AÎ ev`x  †gqic‡` 11,864wU  †fvU Ges 1bs weev`x 3,067wU  †fvU cªvß nBqv‡Qb g‡g© AÎ c¶ `vex Kwiqv‡Qb|  †fvU MYbvi KviPzwc nIqvq welq AÎ c¶ mv¶x  †Rivi gva¨‡g cªgvb Ki‡Z m¶g Bnqv‡Q| AÎ c‡¶i Av‡e`‡b weÁ Av`vj‡Z 18wU  †fvU  †K‡›`ªi M„nxZ †fv‡Ui e¨vjU Zje Kwiqv Avwbqv‡Qb| weÁ Av`vj‡Zi gva¨‡g †fvU MYbvq AvcwË bvB g‡g© 1bs weev`x ev`xi †Rivq cªKvk Kwiqv‡Qb| ‡gqi c‡`i †fvU MYbvq KviPzwc  Kwiqv ev`xi RvnvR gvK©v cªZx‡K gvÎ 6,337wU †fvU cªvß †`wLqv‡Qb| AÎ ev`x eZ©gvb †gvKÏgvq 1bs weev`xi wbe©vPbx djvdj evwZj c~e©K Zvnv‡K weRqx g‡g© †Nvlbvi cªwZKv‡i eZ©gvb †gvKÏgv `v‡qi Kwiqv‡Qb| †cŠimfv wbe©vPb wewa 2010 Gi 62 wewa †gvZv‡eK weÁ Av`vjZ KZ…©K †fvU MYbv Kwi‡jB ev`xi `vexi mZ¨Zv  cgvwbZ nB‡e| 1bs weev`x Bs 24/10/11 Zvwi‡L `iLv¯— `v‡qi Kwiqv eZ©gvb †gvKÏgvwU hyyw³ZK© ïbvbxi Rb¨ ZvwiL wba©vi‡bi cªv_©bv Kwiqv‡Qb| GgZve¯nvq eZ©gvb   †gvKÏgvwU myô ,wb¯úwË I b¨vq wePv‡ii ¯^v‡_© hyw³ZK© ïbvbx c~‡©e  weÁ Av`vj‡Z msiw¶Z Bs 24/3/11 Zvwi‡L AbywôZ  †cŠi wbe©vP‡bi  18wU  †fvU  †K‡›`ªi  †gqi c‡` †fvU MYbv Kivi Av‡`k †`Iqv Avek¨K| Z`Ab¨_vq AÎ c‡¶i ¶wZi KivY nB‡e|
‡mg‡Z cªv_©bv weÁ Av`vjZ `qv cªKv‡k †cªv³ KviY m`q we‡ePbv KiZt b¨vq wePv‡ii ¯^v‡_© eZ©gvb †gvKÏgvi hyw³ZK© ïbvbxi c~‡e© weMZ Bs 24/3/11 Zvwi‡Li †cŠi wbe©vP‡b 18wU  †fvU  †K‡›`ªi †gqi c‡` †fvU MYbvi Av‡`k `v‡b mywePvi Kivi gwR© nb|Ó
7. The Tribunal by his order dated 01.11. 2011 allowed the said prayer and decided to recount the votes of all the polling centres.
8. Against which the present petitioner preferred appeal before the Election Appellate Tribunal, who by his order dated 29.11.2011, dismissed the appeal and upheld the order of the Election Tribunal. Then this petitioner moved the application in this Court and obtained the present Rule.
9. Mr. Manzill Murshed, the learned Advoc-ate appearing on behalf of the petitioner, submits that the respondent No.7 in his evidence hopelessly failed to establish the foundation to reopen the ballot papers. He submits that subsequent after counting the votes the respondent No. 7 did not take any steps to recount the ballots by filing any application before the Presiding Officer or Returning officer. Mr. Abdul Awal, another learned Advocate for the petitioner, submits that the allegations brought by the respondent No.7 are quashi criminal in character so the allegations must be sufficiently clear and precise to bring home the charges to the candidates which are absolutely absent in this case. He submits that the respondent No.7 failed to produce trustworthy materials in support of the allegations made for a re-count enabling the Tribunal to record a satisfaction of a prima-facie case for re-opening the ballot bags.  He submits that the ballot is sacrosanct and the same can not be violated merely for asking on vague and indefinite allegations.
10. Mr. Jamiruddin Sircar, the learned Senior Counsel along with Mr. Md. Aminul Houqe, the learned Senior Counsel, and Mr. Moulovi Wahidullah, the learned Advocate, appearing on behalf of the respondent No. 7 submits that in his evidence the writ petitioner admitted that he has no objection to recount the votes.  He submits that the writ petition is not maint-ainable in view of the fact that the orders of the Tribunals are not coram non-judice or malice in law. He further submits that both the Tribunals below concurrently held that the respondent No.7 has been able to establish the factual foundations to reopen the ballot papers and there are adequate materials before the Tribunal to be satisfied that counting was not made properly. There is no error of law in the orders of the Tribunals which calls for any interference by this Writ Court.
11. We have heard the learned Advocates for both the parties, perused the writ petition, affidavit-in-opposition filed on behalf of the respondent No.7, annexures and other materials on record.
12. Election for the post of Mayor of Jhalo-kati Municipality was held on 24.03.2011. The present petitioner, the respondent No.7 and others contested the said election. After counting the votes, the Returning Officer declared the result of the election. The petiti-oner obtained 8,096 votes and the respondent No.7 got 6,337 votes. The petitioner was declared elected as Mayor of Jhalukhati Municipality which was published in the official gazette. The respondent No.7 filed election  petition for declaration that he  is the elected Mayor of Jhalokathi Municipality  and result declaring the petitioner as Mayor is void. The respondent no.7 adduced 10 witnes-ses in support of his case. On the other hand, the petitioner adduced 9 witnesses. At that stage, the respondent No.7 filed application for recounting the votes of all centres. The election Tribunal allowed that application. Election Appellate Tribunal affirmed that order.
13. An election enquiry is in nature of a quashi criminal trial. The standard required is rigorous.  The election petitioner is virtually in the position of a prosecutor. It is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture. The election petition must contain a concise statement of material facts and must setforth full particulars of the corrupt practice. Since onus to prove corrupt practices lies entirely on the Election petitioner the material facts in regard to corrupt practices should be pleaded with exactitude and precision and like wise should be pleaded basic facts contributing the ingredients of that particular corrupt practice. Here election was held on 24.03.2011, Election Petition was filed on 18.04.2011. The respondent no.7 filed application for recounting of votes on 26.10.2011, that is, after 07 months of counting votes. There is specific provision in the law itself to recount the ballot papers. Rule 39(2) of the Local Government (Municipality) Election Rules, 2010 provided the   provisions of recounting of votes which run as follows:
“39(2) wcªRvBwWs Awdmvi wbg¥wjwLZ †¶‡Î c~Yivq †fvU MYbv Kwi‡Z cvwi‡eb-
(K) cª‡qvR‡b, ¯^xq D‡Ï‡M; ev
(L)  †Kvb cªwZØ›`¡x cªv_x©i ev wbe©vPbx G‡R‡›Ui ev †cvwjs G‡R‡›Ui mywbw`©ó wjwLZ Av‡e`‡bi †cªw¶‡Z, hw` Zvnvi wbKU Av‡e`bwU hyw³hy³ ewjqv we‡ewPZ nq|Ó
14. We do not find anything in the election petition or in the evidence or in the application for recounting the votes filed before the Election Tribunal that either the respondent No.7 or his Election agent or his polling agents made any prayer to the Presiding Officer for recounting votes. That provision has been enacted as statutory checks and effective safe-guards against trickery, mistakes and fraud in counting. The election petitioner cannot be permitted to make out a case for re-counting ballot papers on a ground for which there is no foundation laid by him.
15. The power vesting in the court seized of a election dispute to order for inspection and recount of the ballot papers has been subject matter  of several decisions of our Apex Court which have by authorities  exposition settled the law thereon.
16. In the case of Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245 their Lordships of the Appellate Division have observed :
“When no written prayer is made before the Presiding Officer for recounting of the ballot papers on the ground of any malpractice and when no objection is raised before the Retu-rning Officer alleging election malpractices, it is to be held that no valid ground for recoun-ting of votes has been made out at the trial.”
17. In the case of Abdul Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156 their Lordships have further observed:
“Election Tribunal in the interest of justice may recount ballot papers for proper resolution of an election dispute. But in order to make out a case for recounting the person who challenges the counting has to prove that at the time of counting of votes by the Presiding officer a contesting candidates or his election agent upon raising specific objection specifically requested the Presiding officer to recount the ballot papers and the same was improperly refused or was not done in accordance with law.
 Before opening the election materials for recounting of ballot papers the Election Tribunal is to satisfy itself positively that those materials have been preserved by the proper authority in accordance with law and the same has also been found intact under proper seal and cover so that no reasonable suspicion can be raised by the interested candidate of any post election tampering with ballot papers or other relevant election materials.”
18. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking for on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only a case being properly made out in that regard. A particular seeking inspection and recount of ballot papers must contain averments which are adequate, clear and specific making a case of improper acceptance or rejection of votes or non-com-pliance with statutory provision in counting.  Vage and general allegation that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. The election petitioner must produce transworthy material in support of the allegations made for a re-count enabling the Court to record a satisfaction of a prima-facie case having been made out for grant of the prayer. The court must come to the conclu-sion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. The power to direct inspection and re-count shall not be exercised by the court to show ind-ulgence to a petitioner who was indulging in a roving enquiry with a view to fish out materials in the hope that the recount if allowed may probably twist the balance of votes in his favour. Aforesaid views have been expressed by the Supreme Court of India in the case of V.S. Achuthanda Vs. P.J. Francis and another reported in AIR 2001 SC page 837. The object of giving particulars of corrupt practices is that the  election petitioner should not be allowed to fish out some possible material at a subsequent stage and the other side should be aware of the case which he has to meet.
19. We have found that there were total 18 pulling stations to cast votes in the election. In election petition the respondent No.7, inter alia, stated : ÒGBi“c †e-AvBbx Kvh©¨w` Kwiqv mKj  †K‡›`ªB nBqv _vwK‡j I wbg¥wjwLZ  †fvU  †K‡›`ª ¸‡jv‡Z we‡kl fv‡e D³i“c Ab¨vq I †e-AvBbx Kvh©vw` nBqv‡Q|Ó  Accordingly he mentioned the names of 11 Polling Stations, that is, the respondent No.7 himself left his allegations against counting of votes in 7 Polling Stations. Those are 1) Jhal-ukathi Government College, West Chandkathi, 2) Bekona Government Primary School, Bekona, 3) Jhalukathi Government Boys High School, 4) Kutubnagar Government Primary School, 5) Zilla Parishad Bhaban, Krishna-kathi, 6) Poura Adorshya Government Primary School and 7) Syadunnessa Government Primary school Polling Centres.   Leaving the allegation of improper counting in respect of those 7 Polling Centres, the respondent No.7 cannot demand recounting of votes of those Centres.
20. In the case of Abdul Latif Bepari Vs. Md. Nurul Islam Howlader reported in 20 BLD (AD) page 264 their Lordships of the Appellate Division have observed that recounting is not to be granted as a matter of course. It is only to be allowed when the tribunal is satisfied on the basis of evidence before it that recounting is indispensably necessary for complete and effectual justice. Similar views have been expressed by their Lordships in the case Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal reported in 14 BLD (AD) 77 observing that the Election Tribunal has power to order for recounting of the ballots when it finds that there exists a factual  foundations for the same and it is necessary for a proper decision in the case. In the case in hand, the Election Tribunal has, inter alia, observed :
ÒD³ gvgjvi ivq Abyaveb KiZt AÎ U«vBey¨bvj g‡b K‡ib †h, AÎ wbe©vPbx `iLv‡¯—cªv_x© c¶ mywbw`©ófv‡e SvjKvwV  †cŠimfv wbe©Pv‡b 2011 Gi 18wU  †fvU  †K‡›`ª  †gqi c‡`  †fvU MYbvq  KviPywc  Kiv nBqv‡Q , cªv_x©i  ÒRvnvR gvKv©Ó cªZx‡K cªvß †fvU evwZj  †fv‡Ui  mv‡_ Ges 1bs cªwZc‡¶i ÒAvbvimÓ cªZx‡Ki mwnZ wgjvBqv MYbv Kiv nBqv‡Q, wbe©vPbx Kv‡h© RwoZ miKvix Kg©KZ©v- Kg©Pvixi gva¨‡g  †fvU RvwjqvwZ Kiv nBqv‡Q, Bmy¨K…Z e¨vjU  †ccv‡i PvB‡Z †fvU MYbv Kv‡j e¨vjU †ccv‡ii msL¨v AwaK nBqv‡Q, 1bs cªwZc‡¶i cªvß  †fv‡Ui PvB‡Z  †ekx †fvU †`Lv‡bv  nBqv‡Q g‡g© Awf‡hvM Avbqb Kwiqv Ges Zrg‡g© mv¶¨ cª`vb Kwiqv bvwjkx †cŠi wbe©vP‡b e¨vjU  †ccvi, gywocÎ cwi`k©b Ges  †gqi c‡` cª`Ë  †fvU c~bt MYbvi wel‡q AÎ U«vBey¨bvj KZ…©K Av‡`k cªPv‡ii h_vh_ wfwË m„wó Kwiqv‡Qb|Ó
Now, let us see whether the finding of the Tribunal to the effect:  Ò†fvU c~Yt MYbvi wel‡q AÎ UªvBey¨bvj KZ…©K Av‡`k cªPv‡ii h_vh_ wfwË m„wó Kwiqv‡Qb|Ó is based on evidence and other materials on record or not. Earlier we have quoted the relevant portion of the election petition and the application for recounting of ballot papers. Where the election petitioners seeks to prove charge purely partisan  evidence consisting of his workers, agents, supporters and friends, the court would have to approach the evidence with great care and cautious  scrutiny and circumspection.  Now let us see the evidence of the respondent No.7, the election petitioner.
21. In support of his case the election petitioner examined 10 witnesses out of them witness No. 1 is the election petitioner himself. In his evidence  he,  inter alia, said:  Òwbe©vP‡b mwVKfv‡e †fvU MYbv Kiv nq bvB| —— wbe©vP‡b e¨eüZ e¨vjK c~Yt MYbv Kiv nB‡j Avgvi `vex cªgvwbZ n‡e|Ó
22. Ptr. W. 2 Md. Monirul Islam son of the election petitioner Liakat Ali, who was the chief election agent. He brought allegation in respect of J.B.I. Ishanil Polling Centre. He, inter alia, said ,:
Ò†fvU MYbv mwVK nq bvB Ges †fvUvi‡`i cª`Ë †fvU  †gvZv‡eK djvdj cª¯—yZ nq bvB| Ó In cross examination he said ,
Òwbe©vP‡bi mgq Gm.wc. I i¨ve wQj| wbe©vP‡b Dchy³ msL¨K cywjk m`m¨ wQj| †Kvb  †Kvb G‡R›U‡K  †K›`ª n‡Z  ‡ei K‡i  †`Iqv n‡q‡Q Zv Rvwb bv| Ó
Ptr. W. 3 Kochi Begum was a polling agent of the election petitioner at Syed Halima Moazzem Mir School Polling Centre. In her cross examination she said “MYbvKv‡j RvnvR gvK©vi  e¨vjU  †ekx wQj| wKš— RvnvR gvK©vi e¨vjU Ab¨ e¨vj‡Ui mv‡_ wgkv‡bv n‡j Avwg evav †`B| ZLb Avgv‡K †ei K‡i  †`q|Ó
In cross examination she has said, ÒAvwg †kl ch©š—  wQjvg bv|Ó —- Avwg 8.30 Uvq  †fvU  †K‡›`ª Xz‡KwQ| Abygvb 3.30 Uvq †ei n‡qwQ|Ó That is, before concluding the votes she left the polling centre.
Ptr. W.4  Morsheda Akter Ripa was  polling agent  of the election petitioner at City Kinder Garten Polling centre. In her evidence  she said, ÒD³  †K‡›`ª mwVKfv‡e  †fvU MYbv nq bvB| RvnvR gvK©vq me‡P‡q †ekx †fvU cvq|Ó In cross examination she said- ÒAvgv‡K 3/3.30 Uvq  †fvU  †K›`ª  †_‡K  †ei K‡i w`‡q‡Q| —- wjqvKZ Avjx ZvjyK`vi Avgv‡K mv¶¨ w`‡Z e‡j‡Q| Ó
Ptr. W.5 Md. Jamal Hossain Howlader, in his cross examination, has said, “Avwg †fvU MYbvi mgq wQjvg bv| Ó
Ptr.W. 6 Al-Masum was a polling agent of the election petitioner at Kutubnagar Primary School polling centre. In his evidence he  has said  “ cª_g MYbv mwVK  PjwQj  c‡i wVK nq bvB| ——-XXX  mZ¨ †h, KzZze bMi †K‡›`ª  wjqvKZ ZvjyK`vi  m‡eŸv©PP  †fvU †c‡q‡Q|Ó  It is to be mentioned  here that the petitioner did not bring any  specific allegation of improper counting of ballots of Kutubnagar primary School Polling Centre.
Ptr.W. 7 Enayet Hossain was agent of the election petitioner at Ishanil Polling centre. In his evidence he has said:   ÒAvwg  fq  †c‡q `yBUvi mgq †K›`ª †_‡K P‡j hvB|Ó In his cross examination he said that :
“ —– KLb †fvU Mªnb ïi“ I  †kl n‡q‡Q Zv Rvwb bv|Ó
Ptr.W. 8 Md. Jamal Hossain was a polling agent of the election petitioner at Bikana Polling Centre.  In his cross examination he said : “ KqUvq MYbv ïi“ I  †kl n‡h‡Q Zv ej‡Z cvi‡ev bv| †fvU MYbvi †kl ch©š— wQjvg bv |Ó   In  election petition the respondent No.7 did not bring any specific  allegation in respect of  improper counting of ballots of Bikana Primary School Centre.
Ptr.W. 9 Md. Alamgir Hossain Khan was a polling agent of Abu Zahid at Kutubpur Primary School Polling Centre. In his evidence he has said, “Avwg †fvU MYbv Kv‡j †K‡›`ª _vK‡Z cvwi bvB|Ó There is no specific allegation in the petition in respect of improper counting of votes at Kutubnagar School Centre in election petition.
Ptr.W. 10 Md. Sohag Howlader supporter of the election petitioner and voter of Ward No. 3  of the Zilla Parishad Polling centre. In his cross examination he has said,  “Avwg  †fvU MYbvi mgq wQjvg bv| Ó He has said about Zilla Parishad Polling Centre but in election petition the respondent No.7 left the allegation of improper counting of said centre.
23. None of the witnesses deposed a single word regarding improper counting of votes in respect of rest 12 polling Centres. In absence of any evidence regarding improper counting votes it is difficult to accept the finding of the tribunal that the factual foundation for inspec-tion and recounting has been established satis-factory. The evidence should be realistically and pragmatically viewed avoiding mere doct-rinaire approach.
24. It has been consistent practice of this court not to interfere with the findings on question of facts unless there is some grave or palpable error in the application of evidence on the basis of which the findings were arrived.
25. In the instant case the allegation in the election petition and application for recounting are vague and those do not contain adequate statements of the material facts. In the case of Ram Sewak Yadav and others Vs. Hussain Kamal Kedwai and others (AIR 1964 S.C.R. 239) Supreme Court of India held that an order for inspection would not be granted as a matter of course. That having regard to the insistence  upon the secrecy of the ballot papers, the court would not be justified in granting an order for inspection only where the petition for setting aside an election contains an adequate state-ment of facts on which the petitioner relies in support of his case and it is necessary to decide the dispute and to do complete justice between the parties.  An order for inspection of ballot papers would not be granted to support vague pleas made in the petition not reported by material facts or to fish out evidence to support such pleas.   Mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. In the case of Rajnarayon Vs. Indira Nehru Gandi  reported in AIR 1972 S.C. 1302  it has been observed that an election petition shall set fourth  full particulars of any corrupt practice that the petitioner alleges, including as full or statements as possible of the names of that parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.
26. In the case  of Suresh Prasad Yadav Vs. Jai Prakash Mishra and others reported in AIR 1975 S.C. 376 Indian Supreme Court further held: “The Court would be justified in ordering a recount of the ballot papers only where:
(i) the election petition contains an adequate statement of all the materials facts on which the allegations of irregularity or illegality in counting are founded;
(ii) On the basis of evidence adduced such allegation are prima-facie established, affo-rding a good for believing that there has been a mistake in counting; and
(iii) That Court trying the petition is prima-facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
27. In absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground. Court can safely ignore to take notice of allegation which is couched in vague and nebulous manner.
28. Mr. Aminul Hoque, the learned Counsel for the respondent No. 7 relied on the case of Dr. Mohiuddin Khan Alamgir Vs.  Government of Bangladesh reported in 62 DLR (AD) 425. In the cited case their Lordships have observed:
“In the case of AFM Shah Alam Vs. Mujibul Huq reported in 41 DLR (AD) 68 it was held that in election matters the jurisdiction of the High Court Division cannot be invoked under Article 102 of the Constitution except on a very limited ground of total absence of jurisdiction (coram non-judice) or malice in law for the purpose of interfering with any step in the election process, like, in that case, acceptance of nomination paper. It the present case it is against rejection of nomination paper. No case of coram non-judice or malice in law has been made out so as to attract the jurisdi-ction of the High Court Division under Article 102 of the Constitution.
Whether the writ petition is maint-ainable against any step in the election process stands well  settled in view of the decision reported in the case of AFM Shah Alam Vs. Mujibul Huq reported in 41 DLR (AD) 68, in the case of  Mahmudul Hoque (Md.) Vs. Md. Hedayetullah reported in 48 DLR (AD) 128 and in the case of AKM Moyeedul Islam Vs Bangladesh Election Commission reported in 48 DLR (AD) 208. It is well settled that writ petition under Article 102 is not maintainable against any step in the process of election like acceptance or  rejection of nomination paper of a candidate.”
29. We have no disagreement with the observation of their Lordships of the Appellate Division.  In all those cases the dispute arose regarding acceptance or rejection of nomi-nation paper. But in the instant case the allegation has been brought against the decision of the tribunal regarding recounting of the ballot papers. The issues decided by their Lordships in the cited cases and in the present case is distinguishable. The ratio  decidendi of the cited cases has got any manner of application  in the present case.
30. Prayer for recount in term of Rule 39 (2) of the Local Government (Municipality) Election Rules, 2010 was not made by or on behalf of any of the contesting candidates including the respondent No.7 before the Presiding Officer of any of Polling Station which they would ordinarily have made if there was any truth in the pleas  canvassed by the respondent No.7 in his election petition and application for recounting.
31. On consideration of the pleading, application for recounting the ballot papers and evidence adduced by the respondent No.7 it appears to us that allegation of improper counting of ballot papers and charges of corrupt practice  which are quashi criminal in nature have not been established in the instant case. The allegations brought by the respondent No.7 are  not specific and clear rather those are indefinite and vague. The evidence adduced by the respondent No.7 are unreliable. No definite particulars have been given in the application for inspection as to the illegalities, irregul-arities or improper counting of votes. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in counting.  The reasons are that such an order affects the secrecy of ballots which is under the law is not to be lightly disturbed. The secrecy of ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature.  Our view is that the averments made in the petition and the material brought on record by the respondent No.7 did not make out a case of recount. The allegations of irregularity or improper counting of ballots have not been pleaded  adequately and specifically  and the evidence adduced by the election petitioner regarding  improper counting of ballots each of the Polling Centres   are insufficient  and the allegations are not at all proved. Both the Tribunals acted unlawfully in passing the order of inspection and recounting the ballot papers inasmuch as the respondent No.7 failed to establish the factual foundation of it by adducing sufficient evidence bringing specific allegation of improper counting of each of the Polling Centres.
32. In view of the facts and circumstances of the case we find substance in the Rule.
In the result, the Rule is made absolute. The judgment and order dated 29.11.2011 passed by the Appellate Tribunal, Jhalukathi in Election Appeal No. 06 of 2011 affirming the order dated 01.11.2011 passed by the Electron Tribunal. Jhalukathi in Election Case No. 05 of 2011 are hereby declared to have been made without lawful authority and are of no legal effect and both the orders are set aside.
Ed.
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
Syed Md. Ziaul Karim,  J.
         And
Ashish Ranjan Das, J.
Judgment
04.09.2012 }
}
}
} Kazi Nasir Uddin Babul
…Convict-Appellant.
Vs.
The State
…Respondents.
Arms Act (XI of 1878)
Section 19A and 19 (f)
Code of Criminal Procedure (V of 1998)
Section 103
Evidence Act ( I of 1872)
Section 134
When the FIR named and seizure list witne-sses do not support the prosecution story of recovery of arms, it is unsafe to base conv-iction on the evidence of police personnel. The evidence of police personnel regarding recovery of arms are contradictory when the evidence of seizure list witnesses like Pws. 4, 6 and 7 are consistent and corroborative. So, the prosecution case itself is vulnerable to the credibility. When the court has to act on the solitary evidence of a police witness it calls for corroboration as a rule of prudence. Mere suspicion no conviction can be given. It is a case of no legal evidence.
When the FIR named and seizure list witnesses who were the care-taker, security guard and secretary of the well-fare society of the P.O. do not support the prosecution story of recovery of arms or ammunitions from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case …(35).
The evidence of Police personnels in respect of recovery of arms are not consistent and uniform, but it is contradictory with each other with all material particulars.
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