1996 PLP 1806 (MLD)

(3) Has the respondent No.1 committed corrupt or illegal practices in the elections himself, through his agents and other persons? (4) Relief.

3. The petitioner produced Mohibur Rehman, P.W.1 who affirm that the executed affidavit Exh.P.W.I/1 which bears his signature and is correct. Naeem Butt, P.W.2, affirmed the execution of affidavit, Exh. P.W.2/1. Abdul Hakim Khan P.W.3, stated that he was supervising the elections and was also Election Agent for Lahori Ward. He stated that agents of Zafar Ali Shah were purchasing the votes and identity cards were also sold. The election agents of the petitioner were turned out from the polling station and the polling agents told him that their papers as agents were not properly sealed. The election was conducted by period of two hours in absence of the polling agents of the petitioner. The polling agents did not sign the result sheet of the elections and he had told all these things to the petitioner. Muhammad Shafique Popalzai; P.W.4, stated that he was incharge of election on behalf of the petitioner on two male and one female polling stations, namely. Begum Shahabuddin School, Ganj Mandi School and Ganj Gate School and when he reached the polling station he requested that the polling agents be allowed to enter the polling station but it was refused. After about 2/3 hours when petitioner arrived, he himself visited the polling station and the polling agents were allowed to enter the polling stations and participating in the election. The polling agents had told him that there was wrong counting in the polling station and he gave all the information to the petitioner. Syed Ali Shah, petitioner, recorded his statement before this Tribunal as P.W.5. He stated that after the election for National Assemblies on 6th October, 1993 he visited the Returning Officer of the Constituency on 7‑10‑1993 and due to his non availability again visited him on 8‑10‑1993 and informed him that inside the city polling stations, the polling staff has been won over by the respondent side and the same should be removed and to this effect he also filed an application before him who rejected the same telling him to contact higher election authorities. On the same day and date he issued authority letters to all of his polling agents and on the election day received the complaints that he rushed towards the polling stations and found his agents out of the polling stations. Polling agents were not allowed in the polling stations whereby he immediately stationed. The polling agents informed him that they were refused entry with the objection that the authority letters did not contain his correct stamp. The polling agents were allowed entry in the polling station due to interference of army officials. This happened in almost 22 polling stations where he himself made possible for the polling agents to participate in the election proceedings., This all was pre- planned and one day prior to the election he received the information that in Gul Bahar bogus identity cards are being manufactured in a house and he immediately informed the local Police Station, S.P. Urban, S.S.P., Peshawar and the Emergency Police and at his instance raid was conducted at 12 p.m. but no recovery could be made due to the reason that one hour before the raid the respondent No.1 was informed by S.H.O. Ilaqa who arranged the safe side. Bogus votes were allowed at the instance of respondent No.1 and with the connivance of the Returning Officer and officials of polling staff. The polling agents were turned out of the polling stations at the time of count and they did not sign the result sheets. About 1000 votes polled in his favour were not counted. He filed on 10‑10‑1993 an application Exh.P.W.5/1 before the Returning Officer for re‑count and the Returning Officer told him to come on 12‑10‑1993 for re‑count on which date the Returning Officer told him that the said date is fixed for consolidation of results and not for re‑account. He submitted another application Exh. P.W3/3 which was rejected by an order of the Returning Officer, Exh. P.W.5/4. The consolidation of results was held and conducted in his absence and he did not sign any result sheet. He said that if re count of ballot papers is arranged then he will be declared as returned candidate. Thereafter, the petitioner closed his evidence. Syed Qamar Abbas recorded his statement as P.W.

3. He stated that he was successful as M.P.A. in 1988 and became the Provincial Minister Housing, Physical Planning and Parliamentary Affairs did not contest the 1990 Elections. He said that he had no contribution in the appointment of de Returning Officer. Presiding Officers and election staff on the polling stations and had seen the Presiding Officers only on the day of election. No illegality or irregularity was committed in any polling station and he is not a moneyed man. His politics throughout has been based on human service record and that he has not indulged in any illegal or corrupt practices nor any person at his instance has indulged in illegal and corrupt practices during the elections. The respondent No.1 thereafter closed his evidence. .

4. Learned counsel for the petitioner did not press Issues Nos 1 and 2 but vehemently contended on issue No.3 that a case has been made out for re‑count. The Returning Officer must be summoned who is also respondent in this election petition so that he should be cross‑examined by him to prove his case and there is no law to stop him from appearing before this Tribunal for his cross -examination and in this context referred to Order XVI, Rule 21, C.P.C. Learned counsel referred to the observation of the Court wherein it was observed that if this Tribunal is satisfied then the Returning Officer will be summoned as C.W. and both the parties will be having the opportunity of cross/examining him. Learned counsel for the petitioner also referred to his applications submitted earlier and his readiness to submit another application for summoning the Returning Officer as a witness in this case. Learned counsel for the respondent No.1 submitted that the, Returning Officer is not a necessary party in this petition and has been wrongly made respondent No. 12 in the election petition. Learned counsel further submitted that the petitioner has not produced any sufficient and convincing evidence to prove the allegations of corrupt or illegal practices in the election committed by the respondent No.1 himself, through his agents and other persons. The petitioner has failed to make out a case for re count of the ballot papers. Reliance was placed on judgments "Said Hassan v. Pyar Ali PLD 1976 SC 6, Hakim Ali' and others v. Deputy Commissioner/Election Tribunal PLD 1982 SC 172 and reference to Indian judgments reported in 1985 PSC 1400 and 1983 PSC 1435.

5. The main thrust of arguments of the learned counsel for the petitioner is for the summoning of the Returning Officer to be examined as his own witness and to be confronted with the invalid votes polled in favour of the respondent No.1 in the election of the constituency from the bags containing the ballot papers of the polling stations. The suggested procedure in absence of any material evidence produced by the petitioner will lead to roving or fishing inquiry in hearing the election petition. A judgment of Indian jurisdiction in AIR 1966 SC 733 laid the following guidelines in this respect as the law of hearing election petition in respect of corrupt and illegal practices is almost the same as in our country:

"Section 92 of the Act which defines the powers of the Tribunal, in terms confers on it, by clause (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain in important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly accepted, would not serve the purpose which section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, xhe ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election, but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter; for attempt to lay down such a rule would be inexpedient and unreasonable." The petitioner and his witnesses have stated that the polling agents of the petitioner were not allowed to enter the polling stations for 2 hours. The affidavits of the witnesses sworn on 30‑11‑1993 are also to the same effect. Abdul Hakim Khan, P. W.3 stated that he was election agent for Lahori Ward and one Zafar Ali Shah was purchasing votes and identity cards. There is no independent witness of these affirmations. None of the Presiding Officers of the said Polling Stations, Polling Officers or any other persons present in the polling station have been produced to support the version of the witnesses and of the petitioner that they were not allowed to enter in the Polling Stations by the Presiding Officer for about 2 hours. There is no evidence that one Zafar Ali Shah was purchasing votes and identity cards from whom and. for what purpose outside the polling stations. There is also no evidence that after the commencement of the election in the said polling stations for nearly 2 hours the respondent No.1 or at his instance someone else was casting ballot papers in the ballot boxes against the petitioner and in favour of respondent No.1. The election to the constituency was contested by 12 candidates including the petitioner. None of the polling agents of other contesting candidates have come in support of the petitioner in this respect. There is also no other evidence to suggest that the count in the said polling stations was not done in accordance with the prescribed procedure and law. It is not alleged by the petitioner that the Returning Officer was present in the said Polling Stations during the interval of 2 hours of polling and he was restraining the polling agents of the petitioner from entering the said polling stations. In the circumstances, the summoning of Returning Officer and recording his evidence will be of no material factor and he cannot be confronted with any documents as vehemently urged by the learned counsel for the petitioner. A Presiding Officer, Returning Officer or any other person is to be examined by this Tribunal when it is found that it is in the interest of justice to inspect the ballot boxes. The proof of corrupt and illegal practices is on the analogy of a criminal trial and it is to be proved to exclusion of reasonable hypothesis consistent with its non‑commission and the benefit of doubt must go to the person charged with corrupt or illegal practices as alleged by party in the conduct of elections in a constituency. Refer to judgment "Saeed Hassan v. Pyar Ali and 7 others PLD 1976 Supreme Court 6". The petition itself does not disclose precise statement of the material facts in this respect. It is not shown that who has polled the purchased votes and for whom. The petitioner also does not make any specific allegation in respect of casting of votes in the said polling stations illegally by corrupt or illegal practices for the respondent No.1 and against the petitioner. The ballot boxes or the bag containing the ballot papers cannot be opened for fishing or roving enquiry through the Returning Officer for the case of the petitioner. I fail to understand that in these circumstances for what purpose, matter or object the Returning Officer should be summoned as witness of the petitioner for confronting him with the documents as urged by the learned counsel for the petitioner.

6. It was vehemently urged by the learned counsel for the petitioner that a case has been made out for re‑count of the ballot papers cast in the election of the constituency by all the voters for all the contesting candidates mainly on the reasons that as per petitioner there is only difference of 853 votes more in favour of the respondent No.1 as against the petitioner who has secured 12050 votes in the elections. The petitioner in his petition has not specifically prayed for re count of the ballot papers but has only prayed for declaration of return of respondent No.1 as illegal and void and the petitioner having secured the highest votes should be declared as returned candidate or in the alternative re‑‑election in the constituency. There for no issue to this effect was framed. The petitioner in his statement has stated that on 10‑10‑1993 he made an application to the Returning Officer, Exh. P.W.5/1 for re‑count of the ballot papers. The petitioner further states that he submitted another application, Exh. P.W.5/2, raising an objection that before the consolidation of results re‑count should be made and the Returning Officer directed him to seek permission by another, application which was submitted, Exh. P.W.5/3 both on 12‑10‑1993. The Returning Officer on the same day recorded an order and rejected the applications of the petitioner. The Returning Officer has the authority to re count the ballot papers if a request or challenge in writing is made before him in respect of count in the polling stations and is satisfied that the request or the challenge is reasonable. The request, Exh.P.W.5/1, simply states the desire of the petitioner for re‑count of the ballot papers. Similar is the request in the application Exh.P.W.5/3. The application Exh. P.W.5/2, is an objection on consolidation of results. All the 3 applications do not show any reasonable ground or grounds for re‑count of the ballot papers by the Returning Officer. The Returning Officer consolidated the results of the poll in presence of all the contesting candidates under section 39 of the Representation of the People Act, 1976. No one has raised any specific objection to the consolidation of results by the Returning Officer except the desire of the petitioner that all the ballot papers should be re‑count. There were number of polling stations and polling booths in the whole constituency. The petitioner has not pointed out any specific instance where any Presiding Officer has proceeded illegal in the count of votes in the polling station co'btrary to the provisions of section 38 of the Act. It will be the violation of section 38 of the Act by the Presiding Officers of the Polling Stations in count of the votes immediately after the close of .the poll if the prescribed manner under section 38 of the Act is not adopted by the Presiding Officer of the Polling Stations. The simple desire of the petitioner for re‑count of the ballot papers of the whole constituency and in absence of any specific instance on the part of a Presiding Officer of a Polling Station in the count of votes immediately after the close of the poll in the polling stations is not a reasonable ground for satisfaction of the Returning Officer to re‑count the ballot papers while making the consolidated statement of the result of the count of votes in the Polling Station of the Constituency. The secrecy of a ballot paper is to be maintained in the conduct of elections which culminates into the count of the votes by the Presiding Officers of the Polling Stations of the Constituency and consolidation of results by the Returning Officer of the Constituency. The Returning Officer has given sufficient reason in rejecting the application of the petitioner in his order dated 12‑10‑1993. The petitioner has failed to make out a case for re‑count of the ballot papers votes cast in the elections of the constituency between the contesting candidates.

7. Learned counsel for the petitioner lastly submitted that there was prevalence; of extensive corrupt and illegal practices committed by the respondent No.1 and at his connivance by some one else. Reference was made to judgment reported in PLD 1989 SC

390. The petitioner has failed to prove f, this aspect of the case also and there is no evidence worth reliance to prove prevalence of extensive corrupt and illegal practices in the conduct of the election of the constituency by the respondent No.1 or at his connivance by anyone else including the functionaries of the Election Commission and other supporting staff employed in the conduct of the election. This Election Petition is, therefore, dismissed with costs This decision be sent to the Hon'ble Chief Election Commissioner along with the record of the election petition. A.A./145/E Election petition dismissed.