1988 PLP 991 (CLC)

(1) Whether the petitioner has not verified the contents of documents and affidavits attached with the petition in accordance with law, if so, to what effect? (2) Whether the petition is not competent for want of furnishing full particulars as provided by law? (3) Whether respondent No.l has procured his election through illegal and corrupt practices, if so to what effect? (4) Relief . In support of his case the petitioner examined 7 witnesses including himself. Petitioner (PW 1) stated that respondent No.l resorted the illegal and corrupt practices at polling stations No.20 21 and 22 where the votes of dead persons and those who were working abroad were polled by the relatives and friends of respondent No.l. The polling staff at these polling stations was mostly related to respondent No.l. Objections were raised in this connection by his agent but one Munsaf Hussain, Polling Officer, detained him and threatened him with dire consequences Ex.PW 1/1 is his application to the Returning Officer to this effect. Another application Ex.PW 1/2 was addressed to the Election Commissioner of Pakistan. On his application for verification of the dead persons (Ex.PW 1/4), to the Asstt: Director Local Government, Syed Miskeen Shah, Chairman Union Council Serikot, made inquiries on his request. He further stated that the number of votes polled during the election was much higher than the votes polled for the election to the National Assembly and the District Council and that a number of female voters repeatedly cast votes for the absentee voters of the area. In cross‑examination he stated that "I have not named the friends and relatives of Sabir Shah who managed to poll the bogus votes, because the entire village is inhabited by his relatives and friends. I have not mentioned the names of all those persons who appeared and polled bogus votes in favour of respondent No.l or at the instance of respondent No.l" . He further stated that "I did not mention the number of bogus votes polled by the female voters separately. I have not filed the list of the females who had polled bogus votes", And that "the total number of votes rolled on behalf of dead persons according to my information is 253 and those of the absentees about

580. It is incorrect to suggest that even if the votes polled on behalf of the dead and absentees are excluded, respondent No.1 would still be having votes more than that which were polled in my favour". Malik Mohammad Niaz (PW 2) deposed to the affidavits Ex.PW 2/1, Ex. PW 2/2 and Ex.PW 2/3 submitted by him in support of the petitioner wherein he had given the list of a large number of bogus votes polled at the election and also the list of a large number of persons who were either dead or absent at the time of polling. In cross‑examination he denied having executed another affidavit (Ex.RI) dated24‑8‑1985 in favour of respondent No. l wherein the contents of the aforesaid affidavits Exh.PW 2/1, Ex.PW 2/2 and Ex.PW 2/3 were denied. It may be mentioned that the affidavit (EX.RI) was duly proved by the respondent through the evidence of Qaim Khan EAC Abbottabad (RW.1) Amanullah Khan, Advocate, Notary Public (RW 2) and Iqbal Hussain petition Writer (tRW 3) and one Aman Shah (RW). The witness did not disclose his source of information about the persons who were dead or living out of station at the time of election and also failed to show who were the persons who personated the dead and absentee voters. He stated that he did present his objection in writing before the Presiding Officer but in his affidavit (PW 2/1) he averred that he did not dare to offer any objection during the poll. Sayed Miskeen Shah (PW 3), Chairman Union Council Serikot produced the original application of the petitioner (Ex.PW 1/4) which was marked to him by the Asstt: Director Local Government and Rural Development Department. He produced a copy of the death register of Union Council Serikot (PW 3/1) which was prepared on 19‑4‑1985. The said application would show that it pertains to inquiry about the dead persons only. But the witness had gone a step further and also furnished a long list of those who had gone abroad. In cross‑examination he stated that there are no rules for maintaining list of those persons who were serving abroad or in the country out of station. While preparing the list he did not record the statement of any person because he personally knew all those mentioned in the list who were out of station. He stated that it was not included in his duties to collect information about the persons stationed out of the village but since the application was submitted he thought it proper to make an inquiry; that there are no chowkidars who collect information of deaths and births; that the register is maintained according to the verbal direction issued by the concerned authority and that one Abdur Rehman who is mentioned as having reported the matter was not known to him and the entries in the register were also not in his hand. The information referred to by the witness appears to be based on hearsay. The persons concerned with the preparation of the register or collecting information had not been examined. From the record he also appears to be personally opposed to the contesting respondent. The other witness Wazir Shah (PW 4) deposed to his affidavit (Ex.PW 4/1) wherein he stated that he was the election agent of Mohammad Amin, a contesting candidate, and after making some allegations of bogus voting on the part of respondent No.l, mentioned the names of some absentee voters whose votes have been allegedly cast at the election (while he was in witness‑box I had noted his demeanour and recorded that the witness was not speaking the truth). Firstly, he denied his signature on the certificate given by the polling agents to the Presiding Officer (Ex.PW 4/1‑R1). But later on after great reluctance admitted his signature thereon. S.Manzar Shah (PW.5) proved the contents of his affidavit (Ex PW 5/1) wherein he also made certain allegations about bogus voting at the election and mentioned a list of some absentee voters. In cross‑examination he stated that he had signed the election result of the rival candidate, Mohammad Amin Khan (respondent No.3). He denied having any brother by the name of Muntazir Shah and stated that he himself was enrolled as a voter at S.No 1025 and in that capacity he had been polling his vote at the elections. He further stated that his name is Manazar Shah s/o Zaman Shah and he does not know any person by the name of Muntazir Shah s/o Zaman Shah, a retired Naib‑Subedar from Army (who is recorded as a voter at S.No. 1025). He said that none of his brothers had retired from the army as Naib‑Subedar. He admitted his signature on Ex.PW 4/1‑R 1 but stated that it was blank when his signature was obtained. He further admitted that in the electoral roll against vote No.1025 the name of Muntazir Shah s/o Zaman Shah had been entered but denied that Muntazir Shah is his brother and he had personated him at the elections. He stated that he collected his pension from the Post Office, Haripur but did not know if any person by the name of Muntazir Shah son of Zaman Shah also gets his pension from the said post office. In order to prove that the witness had given false evidence respondent No.l produced Mohammad Ashiq. Assistant Post‑Master, Haripur (RW 9) alongwith the official record who stated that Zaman Shah pensioner had nominated his two sons namely, Muntazir Shah and Manazar Shah to receive his pension in case of his death and produced a copy of the original (Ex. RW 9/1). He also produced the record about Manazar Shah son of Zaman Shah Naib‑SubedAr Pensioner (copy Ex. RW 9/2) and the record regarding Muntazir Shah s/o Zaman Shah who is also receiving his pension as a retired Naib‑Subedar (Ex.RW 9/3). The evidence of the remaining witnesses Mohammad Sadiq (PW 6) and Anser Shah (PW 7) appears to be hearsay. The former admitted that he had learnt from Mohammad Niaz that bogus votes were polled at the election and the latter stated that he heard from some Paish Imam about this fact.

2. Respondent No.l appeared as RW 5 and refuted the allegations made in the evidence produced by the petitioner. He stated that he was summoned from Islamic University, Islamabad by the majority of ";is Tribe to contest the election; that he received majority of votes in the aforesaid polling stations as he belonged to that area and did untiring work; that his father commands a respectable position in the Ilaqa and that is why he got majority of votes. However, no question was put to him about the illegal and corrupt practices allegedly committed by him as mentioned in the election petition. The evidence of Mohammad Iqbal (RW 6), Miskeen Shah (RW 7) and Ali Haider (RW 8) is consistent on the point that the election was fair and free from any malpractice; that no corrupt or illegal practice was committed by respondent No.l or his agents or supporters. After having considered the evidence adduced by the parties I proceed to deal with the issues framed in the case. The election petition itself is duly verified but the Annexures and affidavits attached thereto are admittedly not verified in accordance with the provisions of the Civil Procedure Code. On behalf of respondent No.l it is contended that since the affidavits and documents attached with the election petition have not been verified as provided under section 55 (3) of the Representation of People Act 1976, the election petition was liable to be rejected. From the perusal of the affidavits and the documents annexed to the election petition it appears that no additional allegations of a substantive character have been made therein. The annexures have been produced as a supporting A evidence of corrupt and illegal practices mentioned in the election petition. The annexures consist of consolidated statements of the result of the count and result of the election, some applications complaints to the Election Authorities and the affidavits of the witnesses. In S.M. Ayub v. S. Yousaf Shah and others (P L D 1967 SC 486) it was held that: "By 'schedule or annex' mentioned in subsection (3) of Section 59 of the Act (VII of 1964) is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite party, or at least furnishes better particulars of the allegation made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in 'the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of "shedule or annex", mentioned in subsection (3) of Section

59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds." Taking this view of the matter the objection raised on behalf of respondent No.l being without any merit is repelled. This issue stands decided in favour of the petitioner. Both the issues are inter‑connected and, therefore, taken up for discussion together. In the election petition the averments made are that respondent No.l had resorted to illegal and corrupt practice and undue influence at polling stations Nos.20, 21 and 22 of village Serikot; that 87$ votes were cast in this election while during the election to the National Assembly and District Council, less number of votes were polled; that a large number of bogus votes were cast of dead persons and those who were out of station and the voters were also pursuaded to refrain from voting in favour of the petitioner on the ground that he did not belong to the brotherhood of 'Mashwani' Tribe i.e. the tribe of respondent No.l and that the procedure laid down in the rules was not adopted and the ink supplied by the Election Commission was not used on the thumb of the voters. It may be mentioned that under the Provisions of section 55 of the Representation of People Act 1976, illegal or corrupt practices should be proved by clear, cogent and convincing evidence free from any reasonable doubt. The burden of proof is upon the petitioner who challenges the election on such grounds and the evidence in proof of such practice must be confined to the charges or instances mentioned in the petition and, further, full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act must B specifically be mentioned in the election petition. Keeping in view this requirement of law it is clear that in the election petition general allegations have been made but no particular instance giving the name, the place and the person who did it with the connivance or at the instance of respondent No.l has been given. No particulars in precise and clear terms concerning the alleged commission of illegal acts and corrupt practices with names and particulars of the persons concerned have been given. Similarly no list of dead persons or absentee voters was attached with the petition. In Election ,Tribunall West Pakistan v. Mohammad Saeed (P L D 1957 SC (Pak.) 91) it was observed: "The law relating to the trial of elections petition, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial; that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed. " Not only that no particulars as required by Section 55 of the Act have been given, the evidence adduced in support of the election petition is also not convincing. The evidence produced by the petitioner referred to above does not inspire confidence and therefore cannot be relied upon. The contention that since less number of votes was polled during the other elections from this Constituency an inference may be drawn that rigging must have taken place in the present election cannot prevail. The contention on behalf of respondent No.l is that at Polling Station No.14 of Ladar‑Tang, the native area of Mohammad Amin contesting respondent, the registered votes are 2204 out of which 2,110 votes were polled and Mohammad Amin secured 1,825 votes; the petitioner got 22 and respondent No.l only 4 votes. Similarly at polling station No.15 of village Kalingar the total recorded votes are 1529 out of which 1189 votes were polled and Khushi Mohammad respondent who belonged to Kalingar secured 1105 votes. The argument is that respondent No.l got majority of votes at polling stations Nos. 20, 21 and 22 of village Serikot because he belonged to that village and had the benefit of his ancestors being scion of the Tribe which inhabited this area. He is also held in high esteem and respect due to his personal qualifications and also due to his father who is not only a spirtual head but also the head of the Tribe known as 'Mashwani'. It may further be mentioned that in the election petition it is nowhere mentioned that the counterfoils and record of the polling station No.22 revealed that only 1200 ballot‑papers were issued by the polling staff but 1410 votes were found polled. Similarly it is not mentioned that the counterfoils of some of the ballot‑papers did not bear the official stamp and signatures of the officials concerned. However, the record shows that on the request of the learned counsel for the petitioner on 26‑4‑1986 the Election Officer was summoned alongwith the relevant record. On 17‑5‑1986 the learned counsel for the parties agreed that the counterfoils of the bellot papers mentioned in C.M. No.6/86 and CM No.7/86 may be produced for inspection of the Tribunal. The Election Officer was issued directions accordingly. But this order was not pressed subsequently and the learned counsel for the parties on 14‑6‑1986 agreed that the C.M. No.6/86 should be considered at proper time and counterfoils of the ballot‑papers mentioned in CM No.7/86 should be allowed to be examined by them in the election office in presence of their clients to verify the contents thereof. Necessary direction was therefore issued to the Election Officer in this regard. The record shows that subsequent to the inspection of the counterfoils of ballot‑papers no steps were taken for producing the concerned official alongwith the relevant record to support the allegations made by the petitioner. The Presiding Officer was never cited as a witness alongwith the counterfoils to challenge the authenticity of record kept by him. It may also be mentioned that the list prepared by S. Miskeen Shah (PW 3) of the dead and absentee voters never formed part of the annexures attached to the election petition nor any such details were given in the election petition. Similarly, the particulars of the voters who allegedly personated them had not been given. It was pertinent for the petitioner to establish by cogent evidence the absence of each individual voter whose vote had been allegedly cast at the election and further that who had personated him with further proof that it was done with the connivance D or at the instance of respondent No.l. There is also nothing in the evidence that the polling agents of the petitioner had ever raised any such objection during the polling or challenged any vote. It is not the case of the petitioner that any 'challenged votes list' or 'tendered votes list' was ever prepared by the Presiding Officer concerning polling stations 20, 21 and 22 of village Serikot. On 19‑2‑1987 when the case was taken up for argument the learned counsel for the parties stated that they do not press various applications placed on the file and the case should be decided on the existing record. Thus the allegations made by the petitioner in C.M. No.7/86 remained unsubstantiated. In CM No.6/86 request is made that the counterfoils of about 24 ballot papers may be sent for comparison to the Finger‑print Expert. It is considered that no useful purpose would be served .by resorting to this exercise because even if the said 24 votes are deducted from the total votes obtained by respondent No.l the result of the election is not thereby affected. It is evident that respondent No.l had won the election by a majority of 1428 votes. The petitioner as a witness said that the total number of votes polled on behalf of dead persons was 253 and those of absentee voters was

580. Even if this statement is taken to be correct it would have no bearing on the result of the election, for, if the aforesaid 833 votes are deducted from the excess votes of 1428 obtained by respondent No.l he would still retain his lead against the petitioner by 595 votes. Regarding the objection that at polling station No.22 only 1,200 ballot papers were issued but 1,410 votes were found polled, reference with advantage can be made to the case Abdus Sattar Rana v. S.M. Zubairi and another (P L D 1968 SC 331) wherein it was observed that; "The responsibility for the excess votes being found in the ballot boxes, in the absence of any evidence .to that effect, cannot be laid at the door of the appellant. It is an open possibility that the respondent or his agent may have manoeuvred to get these excess votes introduced into the ballot boxes just to spoil the election. The other possibility is that these 78 excess votes may have been actually issued but the officials concerned may have omitted to tick mark the corresponding entries in the Voters' lists. These extra votes should not be counted, but even if they are wholly deducted from the votes obtained by the appellant, he would still be leading the respondent by 13 votes. He himself not being the guilty party there is no question of his being disqualified on the ground of commission of a corrupt practice by him. If some person or persons unknown, are responsible for these excess votes being introduced into the ballot‑boxes, that should not prejudice the appellant's case who had a clear majority over the respondent, after exclusion of the excess votes, from the count. If the election is set aside without a clear finding based on evidence that the result of the election had been materially affected, it would amount to disenfranchising the genuine voters who had apparently favoured the appellant as compared with the respondent." For the reasons stated above issue No.2 is answered against the petitioner and issue No.3 in favour of respondent No.l In the result the election petition being without any merit is accordingly dismissed with no order as to costs. A . A . /30/ E Petition dismissed.