1990 PLP 674 (CLC)

6. Issues 1 and 2.‑‑As both these issues are interconnected, therefore, I propose to dispose them of together. This election petition consists of two parts viz., that there were extensive illegal and corrupt practices committed by respondent No.1, therefore, the election may be declared as void qua respondent No.1 or the election as a whole be declared as void and that the petitioner is entitled to be declared as elected instead of respondent No.1. I have gone through the contents of the election petition as well as the written statement filed by respondent No.1. In my view the petitioner has miserably failed to substance his allegation regarding illegal and corrupt practices allegedly committed by respondent No.1 during the aforesaid election. It is matter of common knowledge that registration of votes is not the duty of an individual but is the duty of the Officers/Officials authorised by the Election Commission of Pakistan in this behalf and therefore this allegation of the petitioner is not covered by extensive corrupt practice. Similarly, appointment of Presiding Officers is also not the duty of any individual, it is the duty of election authorities. The petitioner has levelled this general type of allegation without giving any strict proof and without specifying the dead voters, voters out of Pakistan whose votes were allegedly got polled by respondent No.1 in his favour. The petitioner has further failed to pinpoint specifically as to who were those persons who polled the votes of dead persons or those who are out of country. Equally the allegation of the petitioner regarding distribution‑ of arms and ammunition by respondent No.1 has also not been substantiated by any evidence on record‑‑rather it is also a general type of allegation. Same is the position with the other allegations of the petitioner such as use of transport, petrol and holding of public meetings. It is a matter of common knowledge that mosques are not public meetings places.

7. Now I will refer to the statements of the witnesses of the petitioner recorded before this Tribunal. PW 1 is Sifatullah who is the star witness of the petitioner. PW 2 is Itbar Khan who has stated that the supporters of respondent No.1 caught hold of him and confined him in the polling station and then manipulated all the votes and that Jehanzeb, Advocate, rescued him from them. But it is very important to note here that the said Jehanzeb has not been produced by the petitioner is support of the allegation of PW.2. PW3 is Mohammad Saleem, who has stated that his postal ballot paper had gone somewhere and was cast in favour of respondent No.1 Khan Shahzada, P.W. 4, says that votes of Afghan Refugees were polled during the election. P.W. 5 Nadir Khan says that he was Polling Agent of the petitioner in Polling Station Mayar and that votes of those persons were polled who had gone either abroad or were minors. PWs 1 and 2 were examined on 9th of April, 1986 whereafter this Tribunal allowed the petitioner on 30th of April, 1986 to produce further list of witnesses and documents, which was filed accordingly and on 2nd October, 1986 srest of the petitioner's witnesses were examined. PW 6 Falahuddin, who was examined on 31st October, 1986, made a story that his postal ballot paper had been manipulated and someone had cast his vote.P.W. 7 is Mohammad Rasool, who was polling agent of the petitioner in village Shahi Kot and who says that Afghan Refugees and dead persons have voted for respondent No.1. But it is strange to note that although this witness was a polling agent of the petitioner yet he did not catch hold of any Afghan refugee or person casting vote of a dead person. Not a single person has been named by the petitioner throughout in the election petition. Similarly, no vote has been challenged or tendered. Next comes Tahir Shah Khan, P.W.

8. He says that his vote has been polled for respondent No.1. How, when and where, he does not disclose. Mohammad Hashim was examined as P.W. 9 and he stated that he was also polling agent of the petitioner and was also authorised by the petitioner to see the counting of postal ballot papers. But this witness has not pointed out at the time of count that whether any of the postal ballot‑papers has been manipulated, nor such an objection was raised by him although he was a polling agent of the petitioner. Lastly comes the statement of Inamullah Khan, PW 10, son of the petitioner, and Amanufah Khan P.W. 11, petitioner himself. No Presiding Officer, Polling Officer or any independent witness has been produced by the petitioner to corrobrate his above referred serious allegations. After the close of the evidence of the petitioner respondent No.1 recorded his statement as well as statement of P.W. 2 and then closed his evidence without any loss of time.

8. It is the case of the petitioner that there were extensive illegal and corrupt practices committed by respondent No.1 during the entire process of the election. This objection is governed by section 70 of the Representation the of People Act, 1976. The first and foremost thing in such like cases is that the burden of proof lies on the person who alleges illegal and corrupt practices. It is a case of quasi‑criminal nature and strict proof is necessary. On this view of the matter I get support from the pronouncement of the superior Courts delivered in Mohammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Mohammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (P L D 1957 Supreme Court 91). Syed Saeed Hassan v. B Pyar Ali and 7 others (P L D 1976 Supreme Court 6), Sher Bahadur Khan alias Malik Bahadur Khan v. Abdul Samad Khan and 14 others P L D 1975 Peshawar 124), Mohammad Amin and 4 others v. Shujat Ali Khan and another (P L D 1986 Journal 66) and Jamaluddin Shah v. Abdul Sattar and 13 others (P L D 1986 Journal 146). All these authorities are specific on the point that illegal and corrupt practice should be proved by cogent evidence which is not the case of the petitioner. In spite of producing a number of witnesses in support of the assertions and allegations contained in the petition the petitioner has miserably failed to prove any of extensive illegal or corrupt practices in the entire process of the election. Under section 70 of the Representation of the People Act, 1976 the election as a whole is to be declared void if the result of an election had been materially affected by reason of extensive illegal and corrupt practices. Section 68 of the Act runs as follows:‑‑ "The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that‑‑ (a) xxxxxxxxxxxxx (b) xxxxxxxxxxxxx (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice." By reading the present petition I am of the view that it is covered under section 70 of the Act because in section 68 "the result is materially affected" is not mentioned whereas in section 70 there are two things: (1) result is materially affected. (2) extensive corrupt and illegal practice. Section 68 of the Act provides as under:‑ (1) ............................ (2) Any of the illegal and corrupt practice. In this context reliance has been placed on the word "any". Law says that if any corrupt and illegal practice is alleged against a candidate then it is necessary to prove that such illegal or corrupt practice has been committed with the connivance of such candidate. Strict proof is, therefore, required for illegal and corrupt practices. As such, the petitioner was required to prove his case under section 70 of the Act which he has failed to do.

9. Now once again I will revert to the statements of the petitioner's witnesses. The gist of the statement of Sifatullah, PW 1, a Polling Agent of the petitioner, is that he has been forcibly confined in a room. Jahanzeb came there. Many people were present there but not a single witness to this effect has been produced by the petitioner. The said Jehanzeb has also not been produced to corroborate his statement who had allegedly rescued the witness from the confinement. Similarly, Polling Officer of Polling Station Kotkey has .also not been examined in this regard. In his cross‑examination Sifatullah has stated that he did not lodge any complaint in writing. It is important to note that Asstt. Commissioner Wari has also not been examined by the petitioner but PW 1 has said that a written complaint was given by him to the A.C. Wari. PW 2 Itbar Khan is a highly interested witness. He has stated that he has not signed the result of the polling whereas it is the case of respondent No.1 that he has signed it. The petitioner was required to prove by cogent evidence that he had not' signed the result of the polling, otherwise the benefit would go to respondent No.1. In cross‑examination this witness says that a complaint was lodged orally with A.C. Wari while PW 1 says that the complaint was lodged in writing with A.C. Wari. Once again at the cost of repetition Jehanzeb, Advocate, went to A.C. Wari alongwith PWs and then to Peshawar for attesting affidavits. This Jehanzeb has also rescued him from the clutches of respondent No.1 but strangely enough the said Jehanzeb has not been produced in support of all these allegations. PWs 1 and 2 are the star witnesses of the petitioner. Azizur Rehman alias Katpatay Khan, respondent No.3 herein, was also a contesting candidate during the election but he has not given anything in writing to justify the story advanced by the PWs. These PWs have not proved that extensive illegal and corrupt practices were committed by respondent No.1 during the entire process of election. After submitting supplementary list of witnesses by the petitioner, PW 3 Mohammad Saleem, has given another version of the extensive corrupt practices. He has said that one Mehmood Khan informed him that his vote had been polled. But he failed to say in his statement as to who had polled his vote, how and why he is entitled to receive his postal ballot paper, the said postal ballot paper was forged by whom and polled by whom. PW 4 Khan Shahzada has not named a single Afghan refugee or a single voter saying that he was compelled by force to cast his vote in favour of respondent No.1. It is important to note that in his affidavit this witness has not disclosed the fact that he was the election agent of the petitioner. PW Nadir Khan was admittedly the Polling Agent of the petitioner, so he is an interested witness. For the sake of argument this witness has not stated that who was the election campaign incharge, not a single vote had been challenged by him although he was a polling agent of the petitioner. In my view this witness has not actually performed his duties of a polling agent if his assertions in the affidavit are admitted to be correct because he has clearly stated in his statement that he had not challenged any vote in writing. Statement of PW6 Falahuddin is also of the same nature as given by Muhammad Saleem, PW 3 who is his co‑villager. He does not say anything as to who had polled bogus votes. He also does not make any allegation against respondent No.1 in his affidavit. Mohammad Rasool Khan, PW7, has not made any allegations against respondent No.1. There is a procedure for casting votes in an election. Besides the agent of respondent No.1 there was agent of another contesting candidate, Presiding Officer and Polling Officer on the day of the election. Thus a general allegation that Afghan refugees came and cast votes is not acceptable in the circumstances of the case. Similar is the situation with the statements of PWs 8 and

9. Next comes Inamullah Khan, PW.10, who in his affidavit has made an allegation against respondent No.1 that he belongs to the defunct‑Jamaat‑e Islami and public meetings were held by him. It is a fact that the elections for National Assembly seats were held on 25th of February, 1985 while for the Provincial Assembly seats the election were held on 28th of February, 1985. There was only two days gap between these two election and the Polling Staff was the same for both these elections because the Election Commission could not change them so easily in such a short time. Furthermore, petitioner has failed to prove on record that he has raised any objection with regard to the appointment of the polling staff for both the elections. No particulars of corrupt, illegal or extensive corrupt practices committed by respondent No.1 are forthcoming in the affidavit of Inamullah Khan. Regarding the point that respondent No.1 belongs to defunct‑Jamaat‑e‑Islami and he has held public meetings, this witness has not given any indication of the village, area of the mosque or of the hujra, particularly the time, the place where respondent'No.l had delivered speeches to the public saying that he (respondent No.1) is a member of Jamaat‑e‑Islami and that people should vote for him. Therefore, in my view affidavit of this witness is also of no avail to the petitioner. Under section 55 of the Act under the heading. "Contents of Petition" full particulars of corrupt practice ought to have been given I F in the election petition. As such, it is the mandatory requirement of an election petition but Inamullah, son of the petitioner, has neither alleged nor specified any l illegal corrupt practice as enumerated and laid down in the provisions of the Act and contained in Chapter 8, which begins from Section 78 to section

83. Lastly, I come to the statement of the petitioner himself. Even from the petition on which the petitioner relies, it does not spell out a case of corrupt practice. Ex. PW 11/2 is the list of persons whose votes were fraudulently polled. This list was prepared at the instance of Itbar Khan and Sifat Khan, PWs. But they have said nothing about it in their affidavits that in fact they had handed over the said list of the petitioner. Similarly, Jehanzeb Advocate, has not been produced. The petitioner relies on the statements of Itbar Khan and Sifat Khan with respect to this document. Further, Ex. PWl/4 is the list of Afghan refugee voters. But in fact under the law no Afghan refugee could be registered as voter. Petitioner should have proved that the said votes mentioned in the list were got polled in the election by respondent No.1 through illegal and corrupt practices. He himself is not the author of the list. The author of the list is the official of the authorised department. All the exhibits are thus not supporting the case of the petitioner. The list, according to the petitioner, was prepared by his polling agents after 15 days of filing of the election petition. The learned counsel for the petitioner as well as petitioner himself miserably failed to substantiate the p allegation that the election of respondent No.1 was procured or induced by any corrupt or illegal practice or that a corrupt or illegal practice has been committed by respondent No.1 or his election agent or by any other person with the connivance of respondent No.1 or his election agent. This being so, both the issues are decided against the petitioner. Relief‑‑On the view of the matter that I take, this petition being without any substance, is hereby dismissed with costs. H .B. T. /40‑E Petition dismissed