1988 PLP 750 (CLC)

(3) Whether the petition is liable to be dismissed on account of preliminary objections Nos.l and 2 mentioned in the written statement ? (4) Relief.

2. At the hearing the learned counsel for the parties confined their arguments to issue No.l alone. In support of the election petition the petitioner besides himself examined Malik Nasab Khan (PW.2) and Mali k Mohammad Noor Khan (PW.3). The affidavit Ex‑PW.2/1 is sworn by nine persons including the said two witnesses. The contents of the affidavit more or legs repeat the same allegations as made in the election petition. Mian Shah Jehan (Petitioner) (PW.1) reiterated the contents of the election petition and stated that in all the five Polling Stations excepting Nawagai he had scored majority of votes. He could not secure majority of votes at Nawagai Polling Station because after about 10‑30 a.m. the supporters and relatives of respondent No.1 started firing from the Hills to scare the voters from coming to the Polling Station. The people who were on the way for casting votes could not reach the Polling Station because of firing and those present the Polling Station ran away. Even the Returning Officer (Amjad Khan, A.P.A.) ran way towards Nawagai Bazar to save his life. The front glass of his official vehicle was also damaged due to firing. Out of the five persons injured as a result of firing two were seriously injured who were treated at Nawagai Hospital. As a result of the firing the polling staff and the officials had left the Polling Station. Thereafter, the men of respondent No.l took over the Polling Station and started casting bogus votes with the result that the votes of dead persons and those who had gone abroad were also polled. He further deposed he was present in Khar Polling Station and on receiving information about the firing at Nawagai he alongwith 5/6 persons left to lodge a complaint with the Political Agent. On the following day he also submitted a written complaint EX.PW.1/1 to the Political Agent. Another complaint EX.PW.1/2 was submitted by him on 13‑3‑1985 to the Chief Elections Commissioner who directed him to seek his remedy according to law. In cross‑examination he stated that the persons who accompanied him to the Political Agent (Returning Officer) were the contesting candidates whose affidavits had not been filed with the election petition; that besides Nawagai Polling Station, respondent No.l also secured majority of votes at 'Inayat Qilla' Polling Station; that the two polling agents of the petitioner at Nawagai Polling Station were not mentioned in his list of witnesses nor their affidavits had been filed; that the Political Agent and Amjad Khan, Assistant Political Agent were not cited as witnesses in the case; that on the election day he did not file any written complaint to any election authority; that the information about the firing was conveyed to him by his supporters which had taken place after he had left the Polling Station at about 9‑45 a.m. and that the signatures of his polling agents on the relevant documents were obtained by force at Nawagai Polling Station. Malik Nasab Khan (PW‑2) admitted the contents of his affidavit as correct and denied having any litigation or land dispute with respondent No.l at present and stated that there was some previous litigation between them. He was a Polling Agent of Amir Hamza another contesting candidate. He did not go to the office of the Political Agent (Returning Officer) on the election day. He stated that he went to the Police Station, Nawagai in the morning and stayed there for about two hours whereafter he left the Polling Station because of disturbance. He did not file any written complaint about the disturbance at the Polling Station to any authority and did not inform any person as to what happened at the Polling Station. He orally informed the Political Agent about this matter on the following day. He also denied that a Jirga of fifteen persons was constituted by the Political Agent for settling the land dispute between him and respondent No. l and some other persons. He was confronted with a certificate dated 29‑4‑1986 Ex.PW‑2/2 issued by the Assistant Political Agent about the constitution of the Jirga but he denied the same. Malik Mohammad Noor Khan (PW‑3) also affirmed the contents of the affidavit Ex.P.W.‑2/1 and stated in cross‑examination that he was not aware if any certificate had been issued by the Political Agent that he was not recorded as a voters in the Constituency concerned. On the election day he accompanied the petitioner to various Polling Stations including Nawagai Polling Station and remained with him throughout the election day.

3. In rebuttal two witnesses were examined on behalf of respondent No.l Habib Rasool (R.W.‑1) was the Presiding Officer at Polling Station, Nawagai. He stated that the Polling Station was located in the Nawagai Government High School which is situated in the Civil Colony. The polling started at 8‑00 a.m. and continued upto 6‑30 p.m. because certain voters had already entered the Polling Station. The total number of votes of this Polling Station was 1102, out of which 970 votes were polled. All the fifteen candidates contested the election and their polling agents arrived at the Polling Station half an hour before the polling started. The empty ballot boxes were sealed in their presence before the polling started. He stated that voting continued smoothly. At the time of counting of votes the polling agents of all the candidates were present besides Amjad Khan A.P.A. and Abdul Hamid Khan, Political Naib‑Tehsildar. The ballot papers were put in respective envelopes which were duly sealed and entrusted to the Assistant Presiding Officer. The signatures of the polling agents of all the candidates were also duly obtained. He further deposed that no untoward incident took place within the Polling Station on his presence nor any such matter was reported to him. The Political Agent also visited the Polling Station at about 11‑00 a.m. and said that the polling may be continued. In cross‑examination he stated that Khaista Khan and Shamsul Wahab were the polling agents of respondents No.l and one Naushad was the polling agent of the petitioner. He denied some armed persons and supporters of respondent No.l had entered the Polling Station and said that since no firing had taken place the question of five persons being injured did not arise. It was also denied that due to firing the polling staff and he himself had left the Polling Statfon and in their absence bogus votes were polled on behalf of respondent No.l. He stated that the Political Agent was satisfied with the arrangements made at the Polling Station and, therefore, said that the polling may be continued. Gul Zarin (R.W.‑2) was the Assistant Presiding Offier at Polling Station, Nawagai. He deposed that the polling staff arrived at the Polling Station at about 7.00 a.m. and polling started at 8‑00 a.m. in presence of the polling agents of all the contesting candidates; that the Polling Station was situated in the Government High School premises and the polling continued up to 6‑30 p.m. because some voters had alrady entered the Polling Station; that the Political Agent also visited the Polling Station at about 10‑00 a.m.; that counting of votes took place in the presence of Amjad Khan, A.P.A. and Abdul Hamid Khan, Political Naib‑Tehsildar and that inside the Polling Station no untoward incident had taken place in his presence. In cross‑examination he stated that he was not aware if any such incident had taken place outside the Polling Station. He, however, heard the report of the fire shots outside the Polling Station and stated that the Polling Station was situated in the Agency Area where firing is common feature. He said that when the polling started the turn over was thin but after about half an hour people came in large numbers and polling continued without any interruption or break. He was not aware if five persons were injured due to firing at Polling Station, Nawagai or any official vehicle was damaged by the firing of armed persons of respondent No.l. The polling was not stopped, however, the speed of polling was considerably reduced at about 10‑00 a.m. due to firing outside the Polling Station. He did not know if the Political Agent came to the Polling Station because of the said firing. He said that the speed of polling remained slow for about 30/45 minutes but he did not leave the Polling Station. He was not aware if any other Polling Officer left the Polling Station due to fear. He further stated that the signatures of all the Polling Agents including that of the petitioner were obtained before the ballot boxes were unsealed. He denied that the ballot boxes were taken away by force by the gunmen of respondent No.1 and were filled up with bogus votes and he alongwith the Presiding Officer was forced to sign the statement of count.

4. The evidence referred to above would show that the allegations made by the petitioner remained unsubstained by any direct evidence. Admittedly the petitioner himself was not present at the time of the alleged firing and the information was conveyed to him by his supporters. But no one who informed him about the firing was examined as a witness in the case. Malik Nasab Khan (P.W. 2) had left the Polling Station about two hours after the Polling started at 8‑00 a.m. According to the petitioner the firing took place after about 10‑30 a.m. Thus, no firing had taken place in the presence of the petitioner or Malik Nasab Khan who deposed of some disturbance at the Polling Station but did not give any particulars thereof. He was the Polling Agent of one Amir Hamza who has not come forward to challenge the election on any ground. P.W.2 also had some land dispute with respondent No.l and for its settlement a Jirga was constituted by the Assistant Political Agent as it appears from the certificate Ex.PW‑2/2 issued by the A.P.A. About the other witness (Malik Mohammad Noor Khan PW.3), a certificate was issued by the Political Agent that he was not a voter in the Constituency concerned. He deposed that all along he remained in the company of the petitioner when he visited various Polling Stations including the Polling Station Nawagai. Since the petitioner himself is not a witness to the firing, it can be said that this witness was also not present when the alleged firing had taken place. None of the voters was examined to show that he was prevented from casting his vote as a result of firing by the gunmen of respondent No.l. Five persons are alleged to have sustained injuries due to firing but none of them was examined as a witness. Nor any record from the Hospital was produced where some of them are said to be medically treated. Neither the political Agent/Assistant Political Agent nor any member of the polling staff was examined to support that the gunmen of respondent No.l resorted to firing and captured the Polling Station of Nawagai by throwing out the polling agents of the petitioner and other candidates and also restrained the entry of the law enforcing staff and the Government officials into the Polling Station. Further, no evidence was produced that the gunmen and supporters of respondent No.l stamped the ballot papers themselves and put them in the ballot boxes. The petitioner admitted that he had two polling agents at Nawagai Polling Station. One was the son of Malik Mohyuddin and the other was the brother of Maulana Abdul Halim but none of them was examined by the petitioner in support of his allegations. The names and particulars of the polling agents of other candidates, who were allegedly threatened and thrown out of the Polling Station, have also not been mentioned not they were examined in the case. According to the learned counsel for respondent No. 1 the written complaints EX.P.W.1/1 dated 26‑2‑1985 and EX.P.W.1/2 dated 13‑3‑1985 were an afterthought as they were submitted by the petitioner after having come to know that the result of the election had gone against him. In this view of the evidence it is difficult to hold that the election of respondent No.l was procured or induced by any corrupt or illegal practice or that any illegal practice had been committed by respondent No.l or his election agent or by any other person with the connivance of respondent No.l or his election agent. The names and particulars of the person who were allegedly involved in committing illegal practices at the election had not been given. There were thirteen other candidates who had contested the election but none of them has come forward to substantiate the allegation made in the election petition. Likewise the names and particulars of those who were dead or had gone abroad were not given whose votes had been allegedly cast at the election at the instance and in favour of respondent No.l.

5. In this view of the record it is more than clear that the petitioner has failed to establish by any cogent evidence the allegations of illegal and corrupt practices raised in the election petition. The burden of proof of corrupt or illegal practices was heavily on petitioner and he must have affirmatively proved them by clear and convincing evidence. It is well‑settled that evidence if adduced is to be judged on the principles applicable to the trial of criminal cases and in case of doubt the benefit would go to the respondent. In Mohammad Saeed v. Election Petitions Tribunal P L D 1957 SC (Pak) 91 it was observed:‑ "A charge of corrupt practice is quasi‑criminal charge, and, as the Tribunal has stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person." Reference can also be made to Saeed Hasan v. Pyar Ali and others PLD 1976 S C 6 wherein it was observed:‑ "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 appellate 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 of 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 persons 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 Yusuf Khattak's case P L D 1973 S C 91. "

6. Taking into consideration the material placed on the file and circumstances of the case it cannot be said that respondent No.l directly or indirectly or through his agent indulged in any illegal or corrupt practice as specified in law. There is no evidence worth the name that the voters of the petitioner were prevented by force from taking part in the election. Even if it is held that there was some firing outside the Polling Station at Nawagai, it is difficult to say who was responsible for the same and what was its effect on the election. The petitioner thus failed to discharge the burden of proving issue No.l. The issue is, therefore, answered in the negative with the result that election petition fails which is hereby dismissed with no order as to costs. S.Q./23/E Petition dismissed.