1986 PLP (2) (MLD)

1. 2. 3. 4. etc. Notice is hereby given that the poll shall be taken the hours Of

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Place

Date

??????????????????????????????????????????????????????? Returning Officer. There is clear non‑compliance of sections 12(7), 15 and 21 of the Representation of the Peoples Act, 1976. The Ballot papers, posters do not contain the particulars as given in the nomination and list of validly nominated candidates is not published in the prescribed manner. In both the relevant sections the word "shall" appears and therefore compliance is mandatory. The Returning officer had no option but to publish list and ballot papers according to particulars as given in the nomination paper. The 'Returning Officer is bound to prepare list of contesting candidates in their names to be arranged in alphabetical order in Urdu as provided under section 21 of the Act. The name of petitioner in the ballot paper appears in the end. Had his name been correctly printed and published, the position could have been otherwise: The Returning Officers are not authorised by law to delete some portion of name or add contrary to the record. Reliance is placed on a case of Ghulam Rasool v. Additional Commissioner, Revenue and another reported in 1983 C L C 2441. In that case ballot‑box of the petitioner was not kept according to alphabetical order as required by rule 31(d) of Punjab Local Council (Election) Rules, 1979. The ballot‑boxes of the District Council, Election were mixed up with those meant for Union Council Election and there was cross‑casting of votes. The election as a whole was declared as void by the Election Tribunal. The order was challenged by way of Constitutional Petition which was dismissed as it was observed at page 2445 as under;‑-- "Since in Urdu alphabetical order comes first and subsequent thereto, therefore, the box of respondent No.2 which according to the learned counsel was placed in the end was not placed in its right and real place. The confusion created in the election by this irregularity committed by the Presiding Officer is apparent from the number of the votes which were cancelled as mentioned in Annexure 'A'. To us, this is a failure on the part of the Presiding Officer to comply with the provisions of the Ordinance Within the meaning of rule 31(d) and alone was sufficient for the declaration of election as a whole to be void." In Election Petition No.4 of 1985, decided by Election Tribunal/Judge of this Court Mr. Justice Saleem Akhtar it was held that on account of misprinting of ballot‑paper had affected the exclusion of the petitioner from the Election, and it is breach of provision of Act and Rules. Mr. Khalid Ishaque, learned counsel for the petitioner has argued that his full name is "Khalid Ishaque". In case somewhere if only "Mr. Khalid" is mentioned nobody will understand if Mr. Khalid Ishaque had appeared. There is force in his arguments. Moreover, this illegality was realised by the Returning Officer and he passed such order and allowed the application of petitioner but no relief could be extended to the petitioner and his name could not be corrected in the ballot‑papers posters. The petitioner made such protest before the proper authorities as soon as he came to know. There may be hundred in name "Muhammad Shafi" in the constituency. In poster published by Election authorities, the full particulars of other candidates are given. For instance first name which appears in poster is "Hafiz Muhammad Taqi and serial‑wise names of other candidates as given in .the poster ballot‑papers are as under:-- (1) Hafiz Muhammad Tadi (2) Haider Ali Moolji (3) Sarwar Sultana.?????? (4) Syed Akbar Ali Pirzada (5) Syed Aleemuddin Ahmed (6) Shaikh Muhammad Zaheeruddin Babar?????? (7) Faizullah Azad (8) Kazi Syed Hamid Hussain Izzat (9) Qaisar Jameel (10) Muhammad Afaq Khan (11) Muhammad Zaki (12) Muhammad Rizwan Akhtar (13) Muhammad Shafi (14) Muhammad Umer This violation of mandatory provisions of Act and Rules not exhibiting proper name of petitioner in ballot‑paper according to alphabetical of Urdu has clearly affected the, result of the election. Now I come to the next question regarding change of ‑Polling Stations. In petition it is averred that on polling day the Polling Stations Nos.53, 63, 64, 65, 66, 67 and 68 were changed without due, notice to the electors or petitioner and due to that change about. 10,000 voters have been de-franchised Mr. Gul Muhammad, Returning Officer Eich.9;. in his evidence had admitted that above Polling Stations were changed but cannot say how many days before the Elections. He has not produced any Notification. He has stated that assignment of voters at each Polling Station was made 20/25 days before the Election and he got voters list about 10 days before the election. The respondent in his written, statement had not disputed the change of Polling Stations but stated that this change if at all had affected all the candidates but nobody came to complain. The relevant section regarding fixing of polling stations is given in section 8 of the Act which is reproduced as under: "

8. Polling station.‑‑(1) The Returning Officer shall, before such time as the Commission may fix, submit to the (District Returning, Officer) a list of polling stations he proposes to provide in a constituency for the purpose of election of a member for that constituency. (2) Subject to the direction of the Commission, the District Returning Officer may make such alterations in the list of polling stations submitted under subsection (1) as he deems necessary and. shall, at least fifteen days before the polling day, publish in the official Gazette the final list of polling stations specifying the electoral area the electors whereof will be entitled to vote at each polling station. (3) The Returning Officer shall establish in each constituency polling stations according to the final list published under subsection (2). (4) No polling station shall be located in any premises which belong to, or are under the control of, any candidate." The District Returning Officer under subsection (2) of section 8 may make such alterations in the list of polling stations submitted under subsection (1) subject to the direction of the Commission but it shall be published at least fifteen days before the polling day. The Returning officer has stated that there was some change in polling stations one week before the election. He has only produced earlier notification, dated 9th February, 1985, the Revised Notification by which change was made has not been produced. From the evidence it is clear that there is non‑compliance of section 8 of the Act. It is also argue that in the Electoral List of the Constituency names of about six thousand voters have been repeated in Electoral List and on several polling stations these double entries have affected the result of election and casting of votes by six thousand on different polling stations will affect the result to the extent of fifteen thousand. In support the petitioner produced documentary evidence and such list is at Annexures 'K' and 'L' showing the same persons are registered voters in the list twice or thrice. From the perusal of list it is clear that names showing father's name address of so many voters are listed in the voters list of the constituency and Annexure 'L' is also clear. Mehboob Ali, Election Officer Exh.8 has produced Electoral List of NA‑188, Karachi‑V West as Exh.8/2. He has also produced copy of extract Exh.8/1, showing name of petitioner as "Dr. Muhammad Shafi Boi Khan". The respondent on this allegation challenged the validity of this point and he filed application under section 29 of the Electoral Roll Act, 1974, Mr. Munirud?din Alvi submitted that Electoral roll cannot be challenged by the. Tribunal. It was decided by the consent that his application will be disposed of while deciding the petition. The validity is not being questioned but it is to be seen if this has materially affected the result of the elections. In my view from these documentary evidence the results of election have materially been affected. In case reported in Rashid Ahmed Rahmani v. Mirza Barkat Ali, P L D 1968 S C 103 it has been held by the Supreme Court that Tribunal in Election Petition can competently go into question of correctness or otherwise of an electoral roll. The relevant observations in the judgment are at page 307/D, reproduced as under: "In the instant case the question is otherwise. The name of respondent Mirza Barkat Ali has been included in the electoral roll not in accordance with law but in clear disregard of the mandatory provisions of sub‑rule (3) of rule

22. Hence, it is not a question of an irregularity which has arisen exclusively out of the manner in which the Registration Officer has performed his duties. Hence, the validity of his action must be judged in relation to the peculiar circumstances of the case. We are alive to the fact that this complaint did not relate to anything done at the polling but was due to official actions antecedent to the polling. Normally, a Tribunal cannot enter into such questions because the electoral roll is conclusive on a Tribunal unless there be some personal disqualification. It is, however, not necessary to enter into the question whether inclusion of the name of Mirza Barkat Ali in violation of sub‑rule (3) of rule 22 could be disregarded as a personal disqualification and whether it was a case of improper acceptance of the nomination paper. It will suffice to say that this is one of the extreme cases where the Tribunal, for justice and fairplay and in public interest, has set aside the election because the Registration Officer in violation of his statutory duty amended the final electoral roll and the authorities concerned declined to exercise their jurisdiction in the matter. In these circumstances, the Tribunal was justified to act in aid of justice to give relief to the appellant. To hold that though the voter has a right to claim that the Registration Officer should perform his statutory duty, yet he has no remedy in the situation that has arisen, would amount to denial .of statutory right to him. Such a proposition cannot be accepted. Apparently the names of thousands of voters are given two or three places in electoral roll of same constituency and such lists were supplied to polling officers and those persons as the case is entitled to cast voters in different Polling Stations of the same constituency therefore, it is clear that there is gross negligence, illegality in corporating the names of some persons twice or thrice in the constituencies. Some times it happens that name of voter appears in different places and different constituency of the country, and voter has an option to cast vote at one place but in the present case there is hardly, justification to include the name of same persons showing same address, particulars to enable them to cast vote at different Polling Stations of the same constituency. The allegation is supported by documentary evidence. Now I come to Issue No.2 regarding disqualification of respondent Afaq Muhammad Khan. In para. 17 of the petition it is stated as under: "

17. That the returned candidate namely respondent No.10 secured his election through, malpractices and misrepresentations, which are as under: ‑ (i) during the election he held himself' out as Champion of the persons who identified themselves as belonging to the Community of Biharies coming from region known as Bihar, and repatriated from former East Pakistan. This was in contravention of the prohibition under, section 58, of Senate (Election) Rules, 1975 against contesting the election sectarian, linguistic and regional basis. (ii) secondly for the reason that he suppressed the fact that he was not qualified to be nominated as a candidate for the election of National Assembly or to be a member of the said Assembly in terms of section 99 of the Representation of? Peoples Act, .1976. It is submitted that the respondent No.10 was convicted under section 147/148/149/307/332/427 in case No.129 of 1979 on 2‑10‑1979 and was sentenced by the Summary Military Court M .P. A. Hostel Karachi which was presided by Major Saeed. It is submitted that the returned candidate also made a false statement on oath in his nomination papers by suppressing the fact that he is not subject to any disqualification for being elected as member of the National Assembly. Swearing of false affidavit also renders the respondent No. 10 as disqualified for being elected as a member of National Assembly." In support press cutting from Daily "Jasarat", dated 1‑10‑1983 Annexure "P" to petition has been produced showing that respondent was convicted on the charges of burning Pakistan National Flag at the Mazar of Quaid‑i‑Azam. The respondent in reply to para. 17(i)(ii) of the petition stated in his written statement as under:‑

"Regarding Case No.129 of 1979 as cited by the petitioner, it is submitted that purely on political grounds a sort of proceedings in the name of this respondent was some how conducted by the Martial Law Authorities completely flouting the recognized principles of justice and equity, which are strictly adhered too in the administration of justice. Consequently, the respondent was tried without recognized/due process of law purely on political grounds, wherein the respondent No.10 was not allowed to engage his counsel and to lead his evidence in the usual/normal course of things in the domain of administration of justice, hence the said conviction by the said Summary' Military Court was in conflict with the principles of "natural justice",' hence, the said conviction was bad in the eye of law, even otherwise the citation of so‑called conviction was neither recorded in writing nor communicated to the' respondent No.10, hence, among other things the whole proceedings including the said conviction was suffering from clear legal infirmity,... not maintainable in the eyes of law. This contention is further strengthened from, the fact that the present respondent ‑No.10 feeling exceedingly aggrieved party knocked at the door of justice before the superior Court recognized in law, i.e. the High Court of Sind which was graciously' pleased to stop the proceedings and in this way greatly rescued the respondent No.10 which‑upheld the cause of justice." In his cross‑examination, he stated that he do not know if any F.I.R. under ‑sections 147, 148, 149, 307, 332 and 427, P.P.C. was registered, against him at Brigade Police. He admitted that he was taken to Summary Military Court for 20 times and was not informed about any conviction by Military Court. He has denied to have engaged Messrs Aniz‑ur‑Rahman and Dewan Wirasat to question the legality of his trial and conviction by Military Court but he engaged the counsel to question his legal detention. He was shown copy of Constitutional Petition Exh.13/2 No. D‑1643 of 1979. He has disowned the‑contents of the petition and stated that he signed Vakalatnama only. He has stated that he has not seen F.I.R. of Crime No.129 of 1979, personally but admitted that case proceeded against him and he was convicted and that conviction is bad in law. He has denied to have filed another Constitutional Petition. He stated that he has been working for repatriation of Pakistani stranded in Bangladesh. He has owned the statement given by him and published in "Jisarat" and produced cutting Exh.13/4. The allegations in F.I.R. are that‑ accused attempted to pull down the National Flag of Pakistan and hoist black flag. These allegations are of serious nature. The respondent challenged his conviction in Constitutional Petition No. D‑1643 of 1979 and it has been mentioned in the petition that respondent and others were convicted and sentenced to nine months, RA. with five stripes by judgment, dated 2‑10‑1979 (Para. No.9 of the petition). Certified copy of the petition Exh. ‑1.3/2 has been produced through respondent. The petition was dismissed on 1‑3‑1982 due to non?-appearance of respondents and their counsel. The judgment of Military Court has not been produced but respondent in his written statement stated that he was tried without recognised process of law and he was not allowed to engage counsel, but stated that he moved High Court and proceedings were stopped. He in his written statement has only challenged, the proceedings before Military Court. He has not specifically refuted the allegations made against him in the F.I.R. Exh.13/1‑A. In Constitutional petition he has stated that he was convicted and such conviction was challenged from the written statement and Constitutional Petition No. D‑1643 of 1979 it is clear that in the first instance another, petition the proceedings were stopped by High Court and after conviction the Petition No. D‑1643 of 1979 was filed. In evidence he has stated that he was not aware about any F.I.R. He has categorically stated before Tribunal that he was neither tried nor convicted by the Summary Military Court and not engaged Messrs Anisur Rahman and Dewan Wirasat, Advocates to question the legality of his trial and conviction by the Military Court. When his attention was drawn to written statement and it was read over to him in Court. He admitted the contents to be? correct. From para. 5 of the petition' it appears that Dewan Wirasat Hassan Khan, Advocate did appear for resp6ndent in Summary Military court but this fact has been denied by the respondent. All the statements are on oath are self‑contradictory. Whenever, any client signs Vakalatnama, the Advocate has to appear, draft petition on the instructions of his client. The respondent has not given straightforward evidence even before Tribunal. Under Article 10(1)(g) of the House of Parliament and Provincial Assembly (Election) Order, 1977 a person shall not be qualified to be elected as member of Provincial Assembly unless he has not been convicted for a crime involving moral turpitude or for giving false evidence. The moral turpitude as defined in case of Saudagar Ali v. Chairman District Council Multan, reported in P L D 1963 Lah. 601 as under: "Anything done contrary to justice, honesty, principle, or good morals; an act of business, vileness, or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man. (Quotation from Ramanatha Myer's Law Laxicon). Moral turpitude has been discussed at length in judgment of Election Petition 52 of 1985, decided on 30‑6‑1986. In this case one of the charges against respondent was that he alongwith others attempted to remove "Pakistan National Flag" and hoist Black‑flag at the Quaid‑e‑Azam's Nazar. He was found guilty and was convicted. Respondent in his written statement has admitted his conviction. He challenged, the decision in High Court and did not appear and petition was dismissed on 1‑3‑1982. In this case there is no reason to disbelieve the version of complainant as no enmity has been alleged with witnesses in written statement or while giving evidence. All that is argued that convicted by Military Court is bad id law. All the cases filed under M.L.O. or referred to Military Courts were not necessarily to be false. Respondent as it appears from the record did not file any appeal as provided under rules or Martial Law Regulations. His constitutional petition was dismissed. It 'is stated in the Ground No.16 of the Constitutional Petition Exh.13/2, the witness namely Munawar Ali Khan is a Lehchmen of police and Ground No.10 stated that names of high officials of Police, and S.D.M. were cited as witnesses but none of them was examined. It is clear that during trial private person like Munawar Ali Khan and others were examined, in spite of that respondent has not summoned a single witness, in his defence before Tribunal.? F.I.R. shows that some policemen were injured. The F. I. R. is reproduced as under:

??? "IN THE COURT OF ILAQA MAGISTRATE COURT, No.7, EAST, KARACHI. No.129 of 1979 BRIGADE P.S. DISTRICT KARACHI. 14‑8‑1979 at 10‑15 Hours.

1. Date and time of Report: (Report No. 14).' 14‑8‑1979 at 1230

2. Residence of Informant: State through Ch. Muhammad Ashraf Inspector, S.H.O Brigade, Karachi.

3. Offence under section: 147/148/149/307/332/ 427 P.P.C. CMLR.6/10, 5‑13‑33, 5, 10 Mazar Quaid‑e‑Azam Protection and Main?tenance Ordinance.

4. Place of occurrence: Compound Mazer Quaid?-e‑Azam one mile towards North.

5. Investigation Officer: Inspector Ch. Muhammad? Ashraf S.H.O. will investigate.

6. Date of despatch from P.S. 14‑8‑1979 At this time H.C. Hyder Raza No.818 brought statement under section 154, Cr.P.C. from Mr. Choudhary Ashraf, Inspector S.H.O. for registration of a case. Copy of the statement is as under:‑-- Statement under section 154, Cr.P.C. of Ch. Muhammad Ashraf Inspector S.H.O. Inspector Ch. Muhammad Ashraf Khan alongwith officers and Servants P.S. Brigade, S.I. Muhammad Ayoob Bhatti, S.I. Muhammad Hussain of P.S. Ferozabad and Platoon of Sindh Constabulary F.C. Company, in connection with arrangements of celebration of Pakistan Day was present at Mazar Quaid‑i‑Azam. At about 10‑15 a.m. S.I. Jamil‑ur‑Renman of Traffic Branch came and informed that Biharis and other people on the Western Main Gate of Mazar Quaid‑i‑Azam are pelting stones on the western side of M.A. Jinnah Road and are stopping the traffic. On this information I, S.H.O. deputed S.I. Muhammad Ayoob, S.I. Ch. Muhammad Hussain and servants of Police Station and Platoon of F.C. Company to the above place of occurrence. After they reach there they also face stone pelting as a result of which S.I. Muhammad Ayoob Bhatti, Constable Rounaq. Ali 10090, Muhammad Saddique 2069, Muhammad Nawaz 2441, Muhammad Saleman 10370 were injured. In course of pelting stone about 1,500 to 2,000 rioters who were armed with Lathis, stones and some explosive substance came inside of Mazar of Quaid‑i‑Azam and in front of them their leaders had banners in their hands. On the banners slogan was that unless the stranded Pakistanis in Bengladesh repatriated there will be no complete ideology of Pakistan and Nizam‑e‑Mustafa. They were raising slogans, Long March Welcome Welcome and pelting stones. They came in the presence of A.S.P. Ferozabad, S.D.M. Central, Servants, Officers Police servants, sufficient members of public, tried to make them understand but they become more rude and continued firing and stoning reached near Pakistani Flag and having factional black Flag with them Pakistani Flag and tried to bring down the Pakistan flag and rise the black flag. But on the warning given to them not to do so. They were being informed that their action is against law and they were asked to disburse but they became more rowdy and pelting stones they reached the police truck and the front glass of Government Truck No.PRB 5694/6532 R .I. G. was broken and I.S . H.O. myself and servant Khan Afsar 1457, Khawaja Muhammad 3580, Ghulam Qasim 1928, P.C. Muhammad Iqbal 4057, of Ferozabad P . S . , P.C.' Gulan 227 Platoon P.S. Ghulam Khan, Noorul Rehman Platoon No.227 Hakim Khan 697, P.C. Mir Muhammad????????? 616, Muhammad Bux 1309, Muhammad Shaban 852 were injured. Due to such condition and injuries and loss of properties on the order of S.D.M. Aftab Ahmed Qureshi 26 Tear Gas Shell, 3 hand‑granades, 20 cartridges of .303 rifle were fired due to which unlawful assembly people and Rioters were disbursed and scattered in groups towards M.A. Jinnah Road, streets of Soldier Bazar and Jamshed Quarters police stations. Out of the rioters 12 persons namely Pervez ?? Shehzad S 30 Muhammad Yaseen, (2), Syed Ijaz Hussain son of Muzaffarul Hassan, (3), Ijaz Muhammad son of Mukhtar Ahmed, (4), Muhammad Hafeez son of Muhammad Lateef, (5), Fayaz ?L' Hussain son of Inayatullah, (6), Aftab Allam son of Muhammad? Subhan, (7), Abdul Hamid son of Bashir Ahmed, (8), Abdul Aleem son of Rashid, (9), Imdad Hussain son of Deen Muhammad, (10), Muneer Ahmed son of Muhammad Sharif, (11) and Allahbachay son of Ghulam Rasool (12). Saleemuddin son of Shamshuddin were arrested in the presence of Jamaluddin, Munawar Ali Khan, Chowkidar Abdul Sattar, through police servants present. Leaders of absconder rioters, were in front Afaq Habib Hashmi etc. can be identified by me and my servants and witnesses on seeing them. The act of the above accused falls under section 147/148/149/307, P.P.C. and C.M.L.R. 3‑13‑

33. The above statement therefore, is sent for registration of the case through Hyder Raza H .C . After registration copy of ' F.I.R. alongwith original statement be sent to me. I, S.H.O. is busy with investigation. (Sd.) Ch. Muhammad Ashraf Inspector, S.H.O..14‑8‑1979. Police Steps. I, A.S.I. Muhammad Ghous verify that the above statement is recorded word by word from the statement offence appears to have been committed under section 147/148/149/307/‑327, P.P.C. and C.M.L.R. No.3, 13, 33, 5‑10‑13, Martial Law and Protential Ordinance. Therefore, case against the above accused is registered. Copy of F. I. R. and original statement sent to S.H.O. Ch. Muhammad Ashraf for further investigation. Sd/‑ A.S.I Muhammad Ghous P.S. Brigade." The case against respondent and others had been proved and? they were convicted by Summary Military Court which reached to its finality. The Constitutions Petition No.D‑1643 of 1979 filed on 3rd October, 1979 was dismissed on 1‑3‑1982. The conviction remained unchallenged. Moreover, in the present position the convictions by Military Courts have been given protection under Article 270‑A of the Constitution. The Article has been incorporated in the Constitution by the present National Assembly to which the respondent is member. Normally in criminal Courts the persons who are convicted for murder, dacoity, robbery, Zina and other such offence have been considered to be guilty of moral turpitude. The "National Flag" is a symbol of country and it is respected more than anything. The respect of the Nation is involved with "National Flag". During the war, when "National Flag" of any country is brought down it amounts to defeat of that country therefore, before me whoever tries to bring down the Pakistan Flag is more than a criminal. The unfortunate aspect in this country is that whenever any demand reasonable or unreasonable is made by some people and. that is not met because of some circumstances they star maligning the country and start speaking against Pakistan. It is against the law conscious, moral and character. I have no hesitation in coming to the conclusion that respondent's case comes under the "Moral Turpitude" and he was disqualified to contest election of National Assembly. Under Article 10(1)(g) of the House of Parliament and Provincial Assemblies (Election Order), 1977 there is no embargo about quantum of sentence or lapse of time between sentence and election. This is an independent section which provides qualification and dis?qualification. The section 10(l)(a) to (h) is reproduced as under:‑-- "

10. Qualifications and disqualifications for membership of Parliament. ‑(i) A person shall not be qualified to be elected or c amen as member of Parliament unless: (a) he is a citizen of Pakistan; (b) he is, in the case of the National Assembly, not less than twenty‑five years of age and is enrolled as a voter in any electoral roll for election to a Muslim seat or a non‑Muslim seat, as the case may be, in that Assembly; (c) he is, in the case of the Senate, not less than thirty years of age and is enrolled `as a voter in any area in a Province or, as the case may be, the Federal Capital or the Federally Administered Tribal Areas, from where he seeks membership: (d) he is of good character and is not commonly known as one who violates Islamic Injunction; (e) he has adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins; (f) he is sagacious, righteous and not profligate and honest and Ameen; (g) he has not been convicted for crime involving moral turpitude or for giving false evidence; and (h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the Ideology of Pakistan: Provided that the disqualifications specified in paragraphs (d) and (e) shall not apply to a person who is a non‑Muslim, but such a person shall have a good moral reputation. Moreover, in evidence the respondent tried to deviate from the contents of written statement, Constitution petition and made contradictory statements. He is stated to be Advocate himself. His evidence is not convincing and I do not like to add any thing more as very thing is on record and I have discussed above. Issues Nos. 3 and 4. ??????????? There is no sufficient evidence against respondent regarding illegal and corrupt practice. There is oral evidence of petitioner and his witnesses Shams‑ul‑Islam Exh.7. They did not protest before the Election that respondent was demanding votes on Biradri or as champion of Biharis, except this there is no other charge against the respondent, therefore, the charge of corrupt and illegal practice as contemplated under section 78 of the Act fails against the respondent. On this I refer to a case of Syed Saeed Hassan v. Pyar Ali Allana and others PLD 1976 S C

6. The relevant observations are at page 25/26 as under:‑ "This brings us to the next contention that the Courts below had erred in law in coming to the conclusion that the allegation of corrupt and illegal practice stood established against the appellant without insisting on the requisite standard of proof as required of a charge in a criminal trial. While agreeing with the proposition that the analogy of a criminal trial. would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non‑commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged, we have already referred to the, authorities mentioned in this context in the High Court's judgment, namely Muhammad Saeed's case, Mian Jamal Shah's case P L D 1966 S C 1 and Yusaf Khattak's case P L D 1973 SC 191". Issue No.4 is on the maintainability of petition. It is contended on behalf of the respondent that particular instances are not given in the petition. I do not agree with this proposition. The necessary parties have been joined in the petition. Only objection of the respondent is that Election Commission should have been joined. It is not necessary to implead Election Commission as party in Election Petitions. From the perusal of the Election Petition Exh.2 it is clear that petitioner has given instances of violation of provisions of Act and Rules and produced documentary evidence including press cutting etc. It has been held in so many cases that if petition read as whole discloses the purpose for which it was filed then petition is not liable to be dismissed. I refer case of S.M. Ayub v. Syed Yousuf Shah and others reported in P L D 1967 S C 486 and of Bostan Ali Hoti v. Muhammad Hanif Soldiar reported in P L D 1978 Jour.

81. The petition cannot be dismissed under section 63 of the Act. It is maintainable and objection is repelled. For the aforesaid reasons, my findings on the each issue are as under:‑

Issue No.1: Not pressed by petitioner. Issue No.2: Respondent No.10, Muhammad Afaq Khan was not qualified to contest National Assembly Election. Issue No.3: Not proved. Issue No.4: The non‑compliance of provisions of Act and Rules has materially affected the result of the election as such election as a whole is declared void. Issue No.5: Petition is maintainable. It is not liable to be dismissed under section 63 of the Act. There are number of authorities in which it has been held that violation of provisions of Act would not per se render the election as a whole void unless it is affirmatively established that the result of the election has been materially affected. I like to refer following cases. In Jan Muhammad v. Collector Jacobabad and others reported in P L D 1963 Kar. 433, the petitioner' secured 87 votes while respondent Siddique had secured 82 votes. The Election Tribunal found that 5 votes of the respondent were declared void by the Returning Officer on the ground that ballot papers bore serial number of their Electoral Roll and one tender vote was also not cast in favour of Siddique. Had these six votes been counted in favour of respondent, he would have been declared elected. The irregularity was attributed to Polling Officer and his staff but it was found that this was done intentionally to cause loss to other candidate. The Election Tribunal declared the Election as void due to non‑compliance of instructions contained in rule 32(2) of the West Pakistan Basic Democracy Election Rules, 1959 and held that such illegalities had materially affected the result of the elections. A writ petition was filed which was dismissed with the following observations: "In this case on the finding of Election Tribunal it is clear that either the Polling Officer or his Assistant did not comply with the provisions of rule 47 already reproduced, inasmuch as he put the number of Electoral Roll of the voter on the Ballot paper which had the effect of the voter being identified. This commission on the part of the Polling Officer or his Assistant had the effect of materially affecting the result of the Election within the meaning of rule 59(c) in so far that the petitioner was declared elected. In these circumstances it cannot be said that the Election Tribunal had either acted without jurisdiction or in excess of jurisdiction." In the case of Azhar Hussain v. Election Tribunal Dacca and another reported in, 1968 S C M R 228, the ground taken in the petition was that Presiding Officer had conducted Election partially. The contest was close and there was difference of only two votes. The Election was set aside. The matter went to HIP Court where order of Tribunal was maintained and Supreme Court in appeal observed as under:‑ "It could be argued that the result of the Election was not materially affected by the invalidity of only two votes (Sr.No.156 and 248) but the charge in the instant case was that the Election as a whole was not conducted, fairly by the Presiding Officer who was close friend of the appellant. The Tribunal had the necessary material before it to come to such conclusion and in setting aside the Election it acted in aid of a fair Election." The appeal was, therefore, dismissed. A reference could be made to cases of Sher Bahadur v. Abdul Samad and 14 others reported in P L D 1975 Pesh.

124. The same view has been taken in Election Petition No. 4 of 19,85, Muhammad Ali v. Moulane Zakaria that any violation which materially affects the result of election, the election as a whole be declared void. There are Indian cases also in Vasnist Narain Sharma v. Dev Chanda A I R 1954 S C 513 the Election was challenged on the ground that nomination papers of one of defeated candidates were improperly accepted. It was held as under:‑ "These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought ' about the defect of the returned candidate. ' It was also observed:‑-- "But 'we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes which Muslim lead to the necessary inference that the result of the Election has been materially affected. That is a matter which has to be proved and the onus of proving lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate." In this case particulars of name of petitioner as given in the Nomination Form was not printed in ballot‑paper due to which his symbol was not placed in Ballot paper according to Urdu‑alphabetic, thus requirement of section 21 was not fulfilled. The Ballot papers were not printed as provided under rule 11(3) of Representation of the Peoples (Conduct of Election) Rules, 1977. The Polling Stations were changed and thousands of votes in the Electoral Roll of the constituency were shown twice and thrice and repetition of names occurred in Polling Stations. There is sufficient documentary evidence on all these points. The Polling Stations were changed in violation of section 8 of the Act. In view of the facts and law, the result of the Election has materially been affected due to non‑compliance of the provisions of Act and Rules; therefore, under section 70 of the Act the Election of the Constituency No.NA‑185 Karachi‑V held on 25‑2‑1985 as a whole is declared as void. Further, respondent No.10 Muhammad Afaque Khan being convicted for crime involving moral turpitude was not qualified as per Article 10(1)(9) the House of Parliament and Provincial Assemblies (Election) Order, 1977 to contest for the seat of National Assembly. In the result of my findings I order re‑election. A .A. ?????????????????????????????????????????????????????????????????????????? Election petition allowed.