1986 PLP 2312 (MLD)

17. I have heard Mr. Imam Ali Kazi for the petitioner and Mr. Muhammad Ali Saeed for the respondents.

18. In all there were ten candidates who contested election of National Assembly from Constituency No. NA‑187, Karachi‑West V, but in this election petition none except Muhammad Usman the Returned candidate contested Election Petition. They even did not file written statements though served.

19. I have considered the contentions raised by the learned counsel for the parties. According to Mr. Kazi the ballot boxes containing ballot papers were removed from the "Peels School" Polling Station with the help of Police which affected the result of election. On this petitioner examined as many as seven witnesses in support of this allegation. They all have stated that one policeman and one boy alongwith ballot box were produced before Col. Iqbal at S.M.L.A. Headquarter. They have said that one police constable escaped with another ballot box. Petitioner summoned Lt.‑Col. Iqbal, Brig. Riaz‑ur-Rahman the, then S.M.L.A. and Muhammad Anwar, Returning Officer as his witnesses. It is an admitted position that one policeman, a boy and a ballot box were produced before Lt.‑Col. Iqbal. The matter was investigated. Lt.‑Col. Iqbal has stated that ballot box was empty and he was informed that a private person was lifting a ballot box enquiry Mrs. Saeed Hassan told him that no ballot papers were recovered from the Box. Brig. Riaz‑ur‑Rehman did not order for enquiry and according to him no foul play had taken place and matter was being investigated by the Deputy Commissioner. He heard from the polling staff that ballot box was being removed by the Presiding officer from the Booth as it had a defective lock. Muhammad Amar Ansari, Returning Officer hold enquiry and he was told that one ballot box was in broken condition and it had been replaced when incident took place. He produced report of Presiding Officer Exh 20/17. The contents of the report are as follow: "I, Miss Niaz Akhtar, Presiding Officer, Polling Station No. 50, Government Boys, Secondary School, Sector 5‑B, New Karachi, N .A. 187, certify that at the time of beginning of polling at my station Booth No.4, N.A. 187 (8‑00 a.m. 25‑2‑1985) ballot box's lock was broken and I have changed against my Polling Staff, Polling agents, principal of school concerned and one army and police official. Polling agents have signed a certificate, contained in polling ballot paper /stationery bag which I have submitted to you on 25‑2‑1985, that they were present at the moment and broken/spoilt ballot box was empty at the moment of change of ballot box. Principal of said school and other polling staff is also other witness of that case/mishap. This is for your kind perusal please." The petitioner has not examined Presiding Officer, Polling Officer, his polling Agent of Booth No.4. There were five Polling Stations (Nos. 49 to 53) at "Peela School" . As it appears from the Report of Presiding Officer the incident occurred at Booth No. 4 of Polling Station

50. On perusal of Form RIV Exh. 20/8 it is clear that appellant secured 529 votes while respondent got 607 votes. In all 682 votes were cast. Even otherwise ratio of votes at other Polling Station of "Peela School" is as under:‑-- Petitioner Respondent Total Polling Station No.49 600 97 834 Polling Station No.50 529 67 682 Polling Station No.51 710 110 1001 Polling Station No.52 591 75 785 Polling Station No.53 164 39 265 Other eight candidates got few votes. It is now clear that ballot papers were not removed from the disputed Booth and petitioner secured highest votes at that Polling Station. In my opinion the ballot box was not removed by Police or any other person. The defective ballot box was being changed which created confusion thereby people from the petitioner side took ballot box to S.M.L.A. Headquarter. The Presiding Officer, Returning Officer, Lt.‑Col. Iqbal and the then S.M.L.A. did not support the allegations. The charge has not been proved.

20. Regarding Office at Masjid‑e‑Taha there is only evidence of Muhammad Haroon Exh. 13, not corroborated by any other circumstance. On the other hand respondent examined Moulana Ghulam Fareed, Khatib of Mosque who denied the allegations. There is no documentary evidence in this respect. Muhammad Haroon is not even voter of the constituency. No complaint was lodged before any authority at that time.

21. Two cases were registered at New Karachi Police Station on 15‑2‑1985 and 24‑2‑1985. Gul Hassan, S.H.O. New Karachi Exh. 15 has been examined. From his evidence it is not clear that cases were not challaned. Petitioner has produced copies of F.I.Rs. only. He has not furnished copies of challans. Complainants in both the cases are Aijaz Ahmad and Jamil Ahmad. They have not been examined by the petitioner. The First Information Report is not a substantive piece of evidence.

22. On charge of printing of pamphlets Ashfaque Ahmed has been examined. His evidence is that pamphlets were printed from his press by Qayoom and other person but Qayoom has not been examined. There is no evidence against respondent that he got the pamphlets printed.

23. Khadi Hussain and Mussarat have been examined on the allegations that they were not allowed to cast votes at Constituency No. NA‑

187. The Polling Agent of the petitioner and the worker of the petitioner have not been examined to support their evidence. I do not consider this uncorroborated oral evidence sufficient to prove the charge.' Moreover the Returning Officer has stated that "Goharabad" area was included in the Constituency No. NA‑187, Karachi‑West V, at the request of the petitioner. The result of Polling Stations of the above area has not materially affected the election of the petition.

24. One of the grievances of the petitioner is that his Polling Agents were not allowed to sit in Booths. On this charge not a single Polling Agent has been examined. Petitioner has .not given name of Polling Station where such incident took place. He has not summoned any Polling Officer, Assistant Polling Officer or Presiding Officer, nor any question was put to Returning Officer with regard to this allegation who was examined by the petitioner. The allegations against Army, Police, Election Staff have not been proved.

25. There should be positive evidence on corrupt and illegal practice. On this I refer to a case of Syed Saeed Hassan v. Piar Ali Allana and 7 others, reported in P L D 1976 S C 6, where it has been held that the matter of corrupt or illegal practice must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non‑commission of corrupt practice and benefit of doubt must go to they person against whom a corrupt or illegal practice is alleged. In Fawad Khan v. Inshallah and others reported in P L D 1986 Jour. 22, it was held that election could not be set aside because of irregularity on the part of Election Official. The petitioner must prove: that such irregularity had materially affected result of the election. There are number of reported cases where this view has been reiterated. I have come to the conclusion that charges of illegal and corrupt practice have not been proved. There are no violations of the provisions of the Act or Rules in conduct of Election.

26. The last issue No.3 is regarding maintainability of petition. The case of respondent is that allegations made in the petition are vague therefore petition is liable to be dismissed under section 62. of the Act. On the perusal of the petition it is clear that petitioner has given precise statement of material facts and same particulars of corrupt o illegal practice as contemplated under section 55 of the Act. The petitioner has joined all contesting candidates as respondents in the petition. On this I refer to a case S.M. Ayub v. Syed Yousuf Shah and others reported in P L D 1967 S C 486, wherein it has been held that there is nothing in the Act to give countenance to the contention that even a single defect in the petition in respect of paragraph would justify its being thrown out as a whole. In Bostan Ali v. Muhammad Hanif Soldier and others reported in P L D 1978 Jour. 81, it has been held by Supreme Court as under:‑ "We have perused the election petition and we are of the view that although the particulars of each and every corrupt and illegal practice have not been given in minute details but the election petition read as a whole indicates the purpose for which it was filed and gives so much of the details as may reasonably be considered necessary for entertaining and trying the same. The objection raised in this regard is devoid of force and is therefore, repelled. Therefore, the provisions of sections 54 and 55 of the Act have been complied with. For the reasons stated above and in result of my findings on issues Nos. 1 and 2, I find no force in this petition as such I dismiss the same with no order as to costs. A.A. Petition dismissed.