1986 PLP 1257 (CLC)

The onus to prove this issue was heavily on the petitioner. The main allegations in this connection as mentioned in the petition are as follows: ‑-- (1) That the respondent exploited his position ac Member of the District Council and at his instance the petitioner was detained under section 3 of the Maintenance of Public Ordinance. (2) That by exploiting his official position respondent No.l managed to appoint election staff consisting of his relatives or members of his 'Biratheri'. (3) That some coercive methods and undue influence was exercised by respondent No.l in certain areas where he through illegal methods secured 95 per cent votes. (4) That the polling agents of the petitioner were not permitted to perform their duties in connection with certain polling stations mentioned in para. 5(d) of the petition by respondent No.l and his men and that he committed massive rigging and votes for deeds and persons not available were polled. (5) That he aroused religious/ sectarian sentiments of the voters and being a Member of 'Able Hadis' sect asking votes on that score.

6. How far the petitioner has succeeded to prove the above mentioned allegations is to be judged from the quantity and quality of evidence he has led in support of such allegations. He examined Haji Taj Muhammad Khan son of Arsala Khan who has filed his affidavit Exh. P.W.I/1, wherein allegations were made to the effect that massive rigging took place at the instance of respondent No.l with the result that votes on behalf of dead and persons absent were polled and undue influence and coercive methods were used to win the election.

7. In his cross‑examination this witness has clearly stated that he was not in a position to point out the names of dead persons or absentees on whose behalf bogus votes were allegedly polled by other persons. He further stated that his statement in that connection in the 'affidavit is based on hearsay, because at the time of polling he was not present at polling station Hajia Gali. The witness has further admitted in his corss‑examination that he was enrolled as a voter in the Electoral Roll of village Mohri Nikkapah and he had polled his vote there and that Hajia Gali was not his polling station.

8. The other witness namely, Muhammad Sarwar Khan son of Qalandar Khan who appeared as P.W.2 has categorically denied the contents of the affidavit Exh. P.W.2/1 having been shown to have been given by him. He deposed that the said affidavit was neither given by him nor was bearing his thumb impression. The next witness namely, Ajab Khan when produced as P.W.3 deposed that his father's name is Waris Khan and not Mir Dad Khan, whereas the affidavit Exh. P.W.3/1 was by Ajab Khan son of Mir Dad Khan. The witness was accordingly abandoned by the counsel for the petitioner.

9. Sadiq Khan son of Hussain Khan appeared as P.W.4 who admitted the contents of his affidavit Exh.P.W.4/1 as correct. In the said affidavit he has made allegations about massive rigging and corrupt practices during the polling by respondent No.l. In his cross‑examination he stated that the stamp paper for the affidavit was purchased by the petitioner and the affidavit duly written by the petitioner was produced before him which was signed by him. He further admitted that he and the petitioner were co‑accused in a case under section 302/307/148/149 P.P.C. and were tried together. He further admitted that he is a history sheeter of Police Station Nara. In a reply to another question he deposed that he has not mentioned the names of the persons who polled bogus votes and that he did not make any complaint in writing about the polling of bogus votes. Sher Afzal son of Chanan Khan appearing as P.W.5 figs admitted the contents of his affidavit Exh.P.W. 5/1 as correct. In the said affidavit he has alleged that respondent No.1 had exploited his position as Member of the District Council and by exercising his undue influence the polling agents of the petitioner was not allowed, with the result that massive rigging took place.

10. In his cross-examination he has admitted his relationship with the petitioner and has further admitted that his brother was also a candidate for the election of his Constituency but later on he withdrew in favour of the petitioner. When asked about the correctness of his allegations he replied that his friend was a Polling Officer in Hajia Gali and that he told him that votes had been polled by respondent No.1 through corrupt practices.

11. The next witness is Yar Muhammad Khan who was Returning Officer of Constituency NO.P.F-37 Abbottabad-IV. He deposed that the counting of the votes of the said Constituency took place under his supervision in the presence of the representative of the contesting candidates. He further deposed that it was after the counting of votes on the day of polling that Munsif Khan raised an objection that some bogus votes were polled. He deposed that no objection was raised by any of the contesting candidates about any corruption during the polling hours. In his cross-examination the witness deposed that after the counting of votes when the results were available the petitioner raised an objection before him about polling of bogus votes. Chanan Khan son of Sher Khan appearing as P.W.6 has admitted the contents of his affidavit Exh.P.W.6/1 as correct, wherein allegations about polling of bogus votes on behalf of deads and absentees were made.

12. In his cross-examination the witness has deposed that he is not a voter of any of the polling stations which were mentioned in the affidavit. He further admitted that from start of the polling till the end he remained present at Polling Station Batoini and that the Polling Stations which were mentioned in the affidavit are at a considerable distance from the said Polling Station. He again deposed in the course of his cross-examination that he did not visit any of the Polling Stations mentioned above personally. He admitted that one of the respondents namely, Shahzada appearing in the petition as respondent No.13 is his son and he was also a contesting candidate in that Constituency and that he subsequently withdrew from his election in favour of the petitioner. He further admitted that his nephew had opposed respondent No.1 in the District Council election as well. Syed Wazir Shah, a School Teacher of Primary School Fateh-Abad was produced by the petitioner in order to prove the factum of bogus votes having been polled but the witness did not support the matter and straightaway stated that he had received no complaint from any quarter about the polling of bogus votes etc. and that in fact none had made any complaint in that connection.

13. In the end the petitioner appeared himself in the witness box and repeated the allegations as mentioned in his petition. In his cross-examination he denied his relationship with one Shamrez, his brother-in-law and stated that Shamraz might be the brother--in-law of his brother but he is not his brother-in-law. He further deposed that he did not make any complaint in writing at the time of election when the polling staff was being posted at different polling stations. He admitted the fact that he was convicted under section 307 P.P.C. and was again convicted under section 13 Arms Ordinance.

14. The respondent from the opposite side produced only witness, namely, Dadan Khan of the Education Department who remained Presiding Officer at Polling Station Mohri Badbain in connection with the election in question. He produced the relevant record pertaining to the said Polling Station and mentioned the name of the polling agent of the petitioner in that polling station. He maintained that the polling agent of the petitioner remained present in the polling station throughout the polling hours and all the election formalities were duly witnessed by him and finally signed the documents. He further deposed that there was no disturbance at all throughout during the period at that polling station.

15. When cross-examined the witness deposed that nobody had brought anything to his notice that the votes of deads or voters absent were polled at the said polling station.

16. From the narration of the evidence made above it is abundantly, clear that no evidence worth consideration was produced by the petitioner to establish the above mentioned allegations. No cogent evidence is available on the record that respondent No.1 in fact exploited and misused his position or exploited it to the disadvantage of the petitioner. No doubt the petitioner was detained under the Orders of the District Magistrate under the Maintenance of Public Order Ordinance but there is not an iota of evidence to show or suggest that the action taken was at the instance and connivance of Sardar Haider Zaman respondent No.l. The very action taken against him speaks eloquently by itself about his conduct. No evidence worth consideration is available on the record to show that respondent No.1 managed to appoint election staff according to his own desire or that he exploited his official position and indulged in large scale rigging. Similarly there is no proof available on the record to the effect that votes for the dead and persons absent were polled by other persons. The allegations that respondent No.1 having secured 95 per cent of votes through corrupt practices have also not been established. If the respondent has secured 95 per cent of votes in certain polling stations, then it speaks of his popularity as the allegations of corrupt practices have not been proved. As regards the allegation with regard to the influence of respondent No. 1 as being Ahle Hadis, it has nowhere been proved that he had approached the voters on that score.

17. From the above discussion it is manifestly clear that the allegations about illegal and corrupt practices in procuring the election result in his favour against respondent No.1 are actually the pigment of petitioner's imagination as he has miserably failed to substantiate the allegations so levelled in his petition. The issue fails and is decided against the petitioner. Issues Nos. 2 and 3:

18. These issues were neither pressed nor argued which need no consideration in the light of my finding in connection with issue No.l.

19. In conclusion I hold that this petition must fail on grounds both factual and legal and accordingly the same is dismissed with costs of Rs.1,

000. A . A . Petition dismissed.