1986 PLP 2663 (CLC)

3. The election of respondent has been challenged on the grounds that he is not a man of good character. He was convicted by Military Court. He is History Sheet and challaned in so many cases. He is charged for using transport for bringing voters and is guilty of illegal and corrupt practice.

4. The following consent issues were framed on the pleadings of the parties: (1) Whether the petition is maintainable as the allegations contained therein are vague? (2) Whether the respondent No. 1 is not qualified to be elected as being a member of the Provincial Assembly of Sind? (3) Whether respondent No. 1 is guilty of corrupt and illegal practice? (4) Whether Election of the respondent could be declared as void?

5. Petitioner in support of allegations examined eight witnesses. On the other hand respondent examined himself and produced his written statement.

6. Issue No. 1: The allegations in the petition are specific that respondent being of a man of good character was disqualified to contest election. In support of this charge so many documents have been filed. The allegations of illegal practice have also been mentioned in the petition. It has been held in so many cases that Election Petition read as a whole should indicate the purpose for which it has been filed. So that Returned candidate has to be afforded an opportunity to rebut the evidence. On this reference could be made to cases of Muhammad Shafi v. Election Tribunal, BahawaInager District and another P L D 1966 (W.P.) Lah. 755, S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 S C 486 and Bostan Ali Hoti v. Muhammad Hanif Soldiar and others reported in P L D 1978 (Journal)

81. In this petition the contesting candidates and Returning Officers have been joined as respondents. The petition contains parawise statement of the material facts. In my view the provisions of section 54 and 55 of the Act have been complied with, therefore, petition is not liable to be dismissed under section 63 of the Act. It is maintainable.

7. Now, I proceed to next issue regarding disqualification of respondent. Mr. Agha Imdad Ali argued that respondent is test a man of good character as he is History Sheeter and so many Cases have been registered against him. He argued that respondent was convicted for the offences which come under the purview of moral turpitude. He has referred to the cases P L D 1963 Lah. 601, P L D 1984 Lah. 22, A I R 1963 All. 537; A I R 1966 Pub. 393, A I R 1957 Pub. 97 and A I R 1959 All.

71. Mr. Kazi Imam Ali, appearing for the respondent contended that conviction by Military Court is bad in law and in other cases the respondent has not been convicted. He argued that in case of Kubra Shah, he was challaned but was acquitted. It is argued that he being political person was being falsely involved in cases. He has referred to cases reported in P L D 1963 Lah. 601 and 1984 S C M R 1172.

8. The objection (Exh. 15/2) was raised by the petitioner on the nomination paper of the respondent but same was withdrawn and statement of petitioner is at Exh. 15/3. Mir Ikramul Haque S.P., Larkana Exh. 6 has been examined by the petitioner. He has stated that at present Ghulam Hussain (respondent) is not History Sheeter of Larkana. He admits that respondent was History Sheeter of Sabbedro Police Station, Khairpur District but subsequently, his History Sheet was brought to Bakrani Police Station of Larkana in the year 1980. He stated that History Sheet was closed since 20th October, 1984. He has admitted that respondent is respectable good person of the District and during his tenure he did not receive any complaint against him. In para. .3(a) of the petition it is stated that respondent was convicted by. Military Court on 29th August, 1969 for an offence under MLR‑16 of 1969 and was sentenced to undergo R.I. for one year and pay fine of Rs.50,

000. In appeal his sentence and fine were reduced. In support conviction slips Exh. C and C‑1 have been produced. The copies of judgment or depositions have not been filed. In Mian Shahbaz Ahmad v. Haji Muhammad Tarique and others reported in 1985 S C M R 227, it has been observed that conviction by Military Court could not itself lead to any conclusion unless evidence was of the exact nature of allegations levelled and proved against the respondent. It has not been proved that respondent has been convicted for a crime involving moral turpitude as contemplated' by Article 11(1)(g) of the House of Parliament and Provincial Assemblies (Election) Order, 1977. Under section 99(10)(a) of the Representation of People Act, 1977, a person shall be disqualified from being elected as and from being a member of Assembly if he has been on conviction for any offence which in the opinion of the Commissioner involves moral turpitude, sentenced to imprisonment for a term not less than two years unless a period of five years has elapsed since his release. The respondent was convicted in the year 1969. More than 15 years have been passed, therefore, his case does not fall near the purview of this section.

10. Now I revert to the cases referred to in the petition: (i) F.I. R. registered as Crime No. 427178, Larkana Police Station is regarding murders of Mst. Iqbal and Mst. Zarina. The copies of F.I.R. have been produced with petition. (ii) F.I.R. registered as Crime No.5/82 at Bakrani Police Station. (iii) F.I. R. registered as Crime No. 21/83 at City Police Station, Hyderabad. (iv) F.I.R. of Crime No. 83/84 lodged at P.S. Bakrani. (v) F.I.R. of Crime No. 89/84 lodged at P.S. Bakrani. From the record it appears that out of all these cases respondent was challaned in Crime No. 21/83 for the murder of Kubra Shah but he has been acquitted by the learned Sessions Judge, Hyderabad by judgment, dated 10‑10‑1985. A copy of judgment has been produced as ‑Exh. 15/4. In other four cases his name does not appear as accused in the First Information Report. He was not challaned even. P.W. 5 Perwaiz Exh. 10, Mukhtiarkar Hyderabad has produced confession of Ghulam Hyder and 164, Cr.P.C. statements of Aziza and Syed Sajjad Hassan Shah recorded during the investigation of Kubra Shah case. Accused have been acquitted, therefore, these documents are not relevant. Petitioner in his evidence stated that he never filed any case against the respondent nor he has any grievance against him. Haji Hussain Bux Exh. 11 has stated that respondent and his brothers Nisar Hussain and Iltaf Hussain run Pethari and they provide shelter to other criminals. He has stated that on 1st October, 1984 in a raid, police arrested notorious dacoits Ghulam Mustafa and others from their Otak. His evidence is not supported by any documentary proof. This witness was himself challaned in one murder case.

11. In election cases, the charge is to be proved when requisite standard of evidence as required in a criminal trial is produced. Relying on that principle the respondent is entitled to get benefit of doubt, if any. In Saeed Hussain v. Piyar Ali and 7 others reported in P L D 1976 S C 6 it was held as under:‑ "This brings us to the next contention that the Courts below had erred in law in coming to the conclusion that the allegation of corrupt and illegal practice stood established against the appellant without insisting on the requisite standard of proof as required of a charge in a criminal trial. While agreeing with the proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non‑commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged, we have already referred to the authorities mentioned in this context in the High Court's judgment, namely, Muhammad Saeed's case Mian Jamal Shah's case P L D 1966 S C 1 and Yousuf Khattak's case P L D 1973 S C 9,

12. Issue No. 2: This issue is with regard to corrupt and illegal practice. On this sue petitioner examined Haji Khan Exh. 7, Hamz Ali Exh.8, Karimullah Exh. 9, Bashir Ahmed Exh. 12, Moula Bux Exh.

13. They all have stated in their affidavits in evidence that respondent was using a Bus, a Tractor‑Trailor carrying banners and providing transport to voters from the village. The affidavit‑in‑evidence of all the above witnesses are stereotype. They have not given the number of buses, tractors, etc. The allegations are of general nature. The names of drivers, conductors or voters who came in vehicles do not appear in their statements. Petitioner or his witnesses did not lodge any protest with Presiding Officer, Polling Officers or Returning Officer. Even application was not sent to any authorities. In Jamaluddin Shah v. Abdul Sattar and 10 others reported in P L D 1986 (Journal) 146 it was held that mere vague statement in proof of allegation would not be sufficient to prove the charge. Reference can be made to cases reported in P L D 1986 Jour. 160 P L D 1986 Jour.

66. For the reasons stated above, I hold that corrupt practice not proved against the respondent and he was qualified to contest election. In the result I do not find any merit in the petition and dismiss they same. In the circumstances of the case, parties will bear their own costs. A . A . Election petition dismissed.