1987 PLP 1353 (CLC)

(b) That certain points taken up by the appellant in this appeal were not raised before the learned Election Tribunal and, therefore, they cannot be urged before the High Court in appeal in, the light of:‑-- P L D 1969 Election Tribunal 124 and P L D 1957 S C 301. (c) That factually it is incorrect to say that the number of Polling Stations was increased from 43 to

50. The correct position is that the number of Polling Stations for this constituency was fifty. That position has been clarified by Ch. Taj Muhammad, who has appeared as a witness in this case. When cross‑examined, Mr. Muhammad Taj has categorically stated that he did not remember if the number of the Polling Stations was

43. He did not remember the fact as to how many Polling Stations were increased.

7. We have heard the appellant (himself) and the learned counsel for the respondent No.l Ch. Noor Alam and have perused the record of the case carefully.

8. We feel that no authentic record has been produced regarding the increase of the Polling Stations. The appellant should have produced the certified copy of the list of Polling Stations and then he should have produced the documents concerning the increase of Polling Stations from 43 to

50. Had he done so, we would have considered the point as to whether the number of Polling Stations for this constituency had been increased with or without the consent or express approval of the learned Election Commissioner. We have seen some record which shows that at one time the number of Polling Stations was 43 but later on this number was changed from 43 to

50. But we do not know any thing about the fact as to whether this change was effected by the learned Election Commissioner or by Returning Officer himself. We would have agreed with the appellant about the illegal and unauthorised increase of Polling Stations, had there been some reliable evidence (record) about the fact that this increase of Polling Stations was ordered without the sanction of the Competent Authority (Election Commissioner). As there is no such proof, so we presume that the official acts were done correctly and in accordance with the law and rules. We can presume so in the light of:‑ Section 114 illustration (e) Evidence Act, A I R 1958 Cal. 482 and A I R 1960 All.

453. This point of the appellant was very weighty but, unfortunately, he has not placed any reliable documentary evidence to supplement his point. Therefore we feel sorry that we cannot help him.

9. We are not going to advert to the allegations on malpratices committed during the election because there is no solid proof. In this respect, we are in respectful agreement with the law laid down in PLJ 1973 TRC (Election) 117 (125‑c‑2) which reads as under: " .. ..It was required of the petitioner to have given full particulars of the corrupt practices alleged by him in the petition and then he was further required to strictly prove these allegations. The contention of the learned counsel for the petitioner that it was very difficult for him to prove the exact utterances attributed to the different speakers in the petition and that the petitioner could only prove the purport of their speeches would not prevail. In order to substantiate his allegation of corrupt practices the petitioner had to lead evidence in support thereof and the returned candidate had to be afforded an opportunity to rebut that evidence if he so desired. It is for this reason that it is necessary to give full particulars of the alleged corrupt practices in the election petition and to strictly prove these allegations. The object of pleadings is to bring the parties to an issue. The variance between the pleadings and proof is undesirable and proof must generally accord with the pleas. Neither party to a litigation can be allowed to set up at the hearing an absolutely new and inconsistent case. Whether it was difficult for the petitioner to strictly prove the allegations or not, is irrelevant and he was in law required to substantiate the allegations made by him in the petition. Their Lordships have enunciated the principles governing the trial of election petitions in P L D 1957 S C 91 and observed as under: 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 hypothesis which are consistent with that corrupt practice having not been committed. " The same view was expressed by the Supreme Court of India in the case of N.C. Zeliang v. Aju Newmi and others 1985 P S C 1400 para. 10, which reads as follows:‑-- "We have gone through the judgment of the High Court carefully and what we find is that the High Court has not made any attempt to determine whether there was any legal and acceptable evidence to prove the corrupt practice alleged against the appellant. It is now well settled by a large catena of authorities that a charge under section 123 of the Act must be proved by clear and cogent evidence as a charge for a criminal offence. It is not open to the Court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge beyond a reasonable doubt. The electoral process in the country is an extremely expensive one and by declaring the election of a candidate null and void, the entire process, far as the candidate is concerned, is set at naught resulting in re‑election. Such a course should be adopted only when the allegation of corrupt practice is proved conclusively. In K.M. Mani v. P.J. Antony 1979 2 S C C 221, (1979) J & SCR 70, this Court while referring to a large number of cases observed as follows:‑-- "An allegation regarding the commission of a corrupt practice at an election is a very serious matter not only for the candidate but for the public at large as it relates to the electoral process." In taking that view the trial Court lost sight of the requirement that the allegation regarding the commission of a corrupt practice is in the nature of a quasi‑criminal proceeding which has to be established beyond reasonable doubt and not merely by preponderance of probabilities. In Mahan Singh v. Behnwarlal AIR 1964 SC 1366 (1963) 2 SCWR 263, it has been held that the onus of proving the commission of a corrupt practice is not discharged on proof of mere preponderance of probability as in civil suit, and it must be established beyond reasonable doubt by evidence which is clear and unambiguous. In Saman N. Balakrishana v. George Ferandez (1969) 3 SCC 238 (1969) 3 SCR 603, it has been held that while consent may be inferred from circumstantial evidence, the circumstance must point unerringly to the conclusion and must admit of no other explanation, for a corrupt practice must be proved in the same way as a criminal charge

The election petitioner must therefore exclude every hypothesis except that of guilt on the part of the returned candidate or his election agent, and the trial Court erred in basing its finding on a mere probability. " It is not necessary to multiply authorities on this point because the law has been fully crystatlised on the subject."

10. We agree with Sardar Muhammad Arif Khan, Advocate, the appellant herein, when he says that when a statute or rule made under the statute requires a thing to be done in a particular manner, then such thing is to be done in accordance with that method or not at all. This principle has been very well laid down in the following authorities:‑-- A I R 1936 PC 253 (2), P L D 1965 Dacca 263, P L D 1965 Kar. 625, P L D 1985 Lah. 76, P L D 1986 Azad J & K

1. But the hurdle in the way of the appellant herein is that no statute or rule has been disregarded or violated in this case.

11. There is no dispute to the broad proposition of law that if a result of an election is materially affected, the Court has to order for fresh election. No authorities are needed for this point, but if some authority is needed, we refer to:‑- P L D 1966 Dacca 604; 1968 S C M R 228, P L D 1968 SC 230, P L D1968S C 331 and 1986 C L C 2052. But it was held in the case of Hidayatullah v. District Judge, Sialkot 1984 C L C 1472 that failure to comply with the provision of relevant Ordinance or Rules will not avoid elections much less instructions would do if the result was not materially affected non‑compliance of para 69 (d), of Manual of Instructions issued for the election to the Local Council in Punjab was held merely an irregularity. In Inayat Ullah Khan v. Capt. (Rtd.) Inayat Ullah Khan P L D 1985 SC (AJ&K) 85, the question of breach of certain rules arose. As no penalty had been envisaged for omission, the signatures of any of relevant authorities on front of the ballot paper did not affect the result of election. So when no penalty is provided for breach of any rule, instruction or law prescribing procedure for holding election, the election was held as valid despite such breach. The following authorities were referred to for the determination of the point:‑

P L D 1966 SC 492, P L D 1966 Lah. 794, P L D 1967 Lah. 699, P L D 1969 Dacca 571, P L D 1971 Lah. 737, P L D 1974 SC 73, P L D 1982 Kar. 872, P L D 1984 Lah. 375, 1984 C L C 1294, 1984 C L C 1472. 12.I would like to reproduce para. 17 from P L D 1977 Jour. 190: "The declaration of the polls as null and void in this case presents no difficulty. Under section 68 of the Act, the election of a returned candidate can be declared void if it is procured or induced by any corrupt or illegal practice, or a corrupt or illegal practice has been committed by a returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. This, in our view, is a case of numerous illegal practices committed by the candidate himself and other with his consent and connivance during the polls. Under section 103‑B which has been newly‑incorporated in the Act, the Commission can declare the polls as null and void if, on the face of the record and such summary evidence as it deems necessary, it finds that the polls in any constituency are vitiated by grave illegalities or the violation of law or the rules. The intent of the law‑giving authority for enacting this provision is manifest which is that the sanctity of the ballot‑box must be preserved in all its purity and acts of grave illegalities during the polls, irrespective of their extent or sweep, and any violation of law, which pollutes the chastity of this very sacred exercise must have the effect of nullifying the polls in order to restore the confidence of the electorate in the sanctity of the process. Any illegal interference with the free exercise of the right of franchise on the part of any section of the electorate, big or small, produces a sense of frustration and painful deprivation which has the contaminating effect of lack of faith in the entire election which is an integrated process in respect of the entire constituency."

13. As regards the version of the appellant that Muhammad Nazir (P.W.4), who was the agent of the appellant herein at Thapnala, was thrown out from the Polling Station and then kept under illegal confinement till 5 p.m., it is not fully supported by his agent, Muhammad Nazir, who has deposed that he left the Polling Station to lodge a complaint in the Police Station, or if possible, to inform the appellant. He has stated that two persons Ch. Tufail and Khadim Shah alongwith two other persons took him to the residence of Changar, where he was confined till 5 p.m. We think that the learned Election Tribunal has rightly held that Muhammad Nazir voluntarily left the Polling Station and, therefore, the respondent No.l did not play any part so far as his confinement is concerned. The version of Muhammad Nazir does not inspire confidence so far as his detention by the respondent No.l is concerned. There are contradictory statements of Sardar Muhammad Arif Khan and Muhammad Nasir and we can say: Ch. Noor Alam is a Gujjar by Caste and it is in the evidence that the voters of Thapnala are mostly Gujjars, who had voted in his favour due to the tribe affiliations.

14. As regards to the point of connivance and collusion by the Returning Officer with respondent No.l., reliance was placed on Exh. P.12, which shows that the number of Polling Stations had been increased to 50, although originally the number of Polling Stations was

43. This ground was not taken up in the election petition and therefore, the learned Election Tribunal declined to go into this question. Shakespeare has well‑said:‑ "There is a tide in the affairs of men, which taken at the flood leads on to fortune omitted, all the voyage or life bound in shallows and in miseries". Sardar Muhammad Arif Khan did not take the objection at the proper time. He has missed the tide and now weeps for his "Adonais". However, as it was a law point. So we have considered this point and have given our verdict that we are not in a position to hold that this increase of Polling Stations was done by the Returning Officer himself without the consent and approval of the Election Commissioner because there is no proof on the file of the Election Tribunal that the consent or approval of the Election Commissioner was not obtained by the Returning Officer. However, the view that when a ground is not taken in the election petition, then that ground cannot be allowed to be taken or considered, finds support from P L D 1969 SC 5 (13) E which says:

"We have already noticed that the learned Judges found that the allegation that the respondent No.l did not possess the necessary age qualification for election was not made in the original election petition and the petition for amendment in this regard was filed after the period of limitation. The result of the election was published in the Dacca Gazette, Extraordinary, on the 11th November, 1964. The petition for amendment was filed on the 22nd January, 1965. Sub‑rule (1) of rule 35 of the Rules lays down that an election petition shall be presented within 30 days next after the publication of the result under subsection (2) of section 45 by the Returning Officer in the Official Gazette. The petition for amendment which contained a new allegation was filed after the period of limitation. It could not be entertained and the Tribunal was not justified in going into the allegation contained in the same. The facts that the allegation related to the want of a constitutional qualification and the allegation was gone into by the Tribunal will not make any difference in this case."

15. Ordinarily, the High Court does not interfere in a Tribunal's findings unless some provision of law of rule has been violated. In Election cases, the standard of proof required to prove a malpractice or corruption is required as in a criminal case and is to be proved beyond any reasonable doubt. We think that even in this part of the 20th century, unfortunately the ties of tribe and kinship play a dominant role during the elections, and, therefore, the appellant despite his good virtues and qualifications was not able to get more votes then those of the respondent No .l. The appellant is an Advocate and well‑read person and he does not believe that every thing is fair in love war and politics. He should have been in the Jamaite Islami but he chose in his wisdom the Tehrike Amal Party but he failed to appreciate what Allama Iqbal said.

16. It was observed by me in the case of Ch. Aurangzeb v. Ch Abdur Rashid and others P L D 1986 Azad J & K 1 (2 & 3):‑

"Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election in respect of the returned candidate or as a whole has been materially affected by reason of a failure of any person to comply with or the contravention of any provision of the Act or the Ordinance or these rules. It would, therefore, appear that while determining the nature of the declaration which an Election Tribunal is called upon to give in a particular case it has to consider whether the illegality or the irregularity or corrupt practices has materially affected only the election of the returned candidate or the election as a whole (p. 23) G, As long as the law and the rules of the procedure are followed to a substantial extent to provide for an election of representatives, then the result of the election has to be accepted and it cannot be avoided on the ground that there has been some violation of some provisions of law or irregularity in the procedure unless the result of the election is materially affected by non‑compliance with the law or rules of procedure (p. 23) H. If the election law is substantially complied with in holding and conducting the election and the election is not sham or travesty, then, any non‑compliance with any provision of law or irregularity of procedure would not result in the invalidity of the election, unless the result of the election is materially affected (p. 24) I. Non‑compliance having not materially affected the result, the non‑observance of some provisions of law would not, when election has been held fairly and squarely in which the participants, including the objector had fully participated, annul the election. For an act or omission to act by a public authority, the people cannot be deprived of their rights nor disfranchised, nor their valid and expressed will frustrated (p.25) J Election having been held fairly and squarely, in which the objector participated fully and willingly, the result of the election having, in no case, been materially affected, the objector must accept the result with good grace (p. 25) K." The appellant should remember Mirza Ghalib who said: He should also remember Kashmiri poet Abdul Ahad Azad who well‑said: ‑-- "Do not lose your heart while the autumn winds are blowing. This is the message of new spring. Wait for fresh and read red roses which shall bloom here very soon Girt your loins be cheerful. Let the dead past bury its head, ...................... Act, act in the living present Heart within and God overhead." (An English Poet)

17. Due to the reasons stated above, we are not going to interfere into the judgment of the learned Election Tribunal, which is based on solid reasons. However, the appellant Sardar Muhammad Arif Khan is an advocate and he has raised some substantial questions of law, so we are inclined to remit the whole costs to the tune of Rs.1,

500. A considerable time has elapsed since the elections were held on 15‑5‑1985, so it would be better for the appellant to wait for the time when new election of the Azad Jammu and Kashmir Legislative Assembly are held. He should better reserve his energy and money for that time if he is l keen to be elected as an M . L . A . Under these circumstances, finding no force in this appeal, it is hereby dismissed. The parties shall bear their own costs. Before we part with the case, we would like to make certain observations/suggestions regarding the future elections:‑-- (a) All voters should be asked to come to the Polling Station with their identity cards and no voter should be allowed to cast his/her vote until he/she show his/he identity card; (b) All the returning officers should belong to the judiciary, and belong to a different District and should enjoy a good reputation and all the Polling Officers should be appointed for honest, upright and independent officers or lecturers enjoying very good reputation; (c) The Polling Officers should not belong to the same District in which they are asked to perform their duties as Polling Officers. In other words, no Polling Officer, who is a resident of a certain District, should be appointed as a Polling Officer in his own District; (d) The election scheme should be prepared well in advance to the Elections after due deliberations and once it is prepared, it should not be changed, come what may; (e) The learned Election Commissioner, who is generally a retired Judge of a Superior Court, should not leave important matters to the District Administration and see that the elections are held in a fair and impartial manner and good atmosphere and no malpractices, whatsoever, should be allowed during the elections. The sanctity of a vote should be preserved and no voter should go home without casting his/her vote; (f) We have seen that during the election, some persons use force or resort to show of force as a result of which the supporters (and even the voters) of some candidates go home without casting their votes. When such unnecessary disturbances and fights ensure then the simple and honest voters do not like to cast their votes and go home without using their right of franchise. Therefore, it is highly desirable that law and order situation should be kept under control and even the sticks should not be allowed to be taken near the Polling Stations; (g) There should be more Polling Stations so that the voters should not wait till late hours. Moreover, the small boxes which were supplied during the past elections, are small and we have seen that a ballot‑paper cannot be put in it easily. This wastes the time with the result that the voting becomes a very slow process, and (h) It is a practice to recruit temporary police force for maintaining law and order during the election days. This police force should not be posted in the same area to which it belongs because the persons so recruited, sometimes indulge in malpractices. It is necessary to discontinue this practice and locals should not be posted near the Polling Stations which are near to their homes. S.Q./292/A.H Appeal dismissed