1986 PLP 1329 (CLC)

In order to establish that the respondent No. 1 is of bad character, it has been pointed out that he is involved in criminal cases viz. (1) Crime No. 369/83 under section 366/363/34, C.P.C., (2) Crime No. 20 of 1983 under section 506/323 and (3) Crime No. 73/83 under section 307 read with 34, P. P. C . He shelters caste‑fellow criminals, is a vagabond, Goonda and enjoys bad reputation in the area and is being prosecuted in criminal cases. It is an admitted position that the respondent No. 1 has not been convicted by any Court for any criminal offence. In support of these allegations the petitioner has filed copy of two F.I.Rs., a copy of the letter of Aziz Ahmed Jahanzeb S. H .0. , Tando Muhammad Khan P.S. to Headquarter S.M.L.A. and a copy of letter, dated 11‑7‑1983 to H . Q . D . M . L . A . Section 2 from S . M . L . A . , Hyderabad. The first F.I. R. , dated 25‑8‑1984 is in respect of offence under sections 323, 504, 147, 148, 149, 428 and 114, P.P.C. According to the allegations the complainant Muhammad son of Husain Ghang and the respondent No. 1 have dispute over land. The respondent No. 1 with other persons named in the F.I.R. who were armed came on the land and abused him. At the instigation of the respondent No. 1 those persons beat the complainant with fists and kicks and asked him to forego his claim. They went away after firing which killed his dog. The second F.I.R. (Annexure 'C' to the petition) was lodged by Karimdino in respect of offence under section 307/34, P.P.C. According to this report tile complainant has dispute with the respondent No. 1 over a piece of land. On 30‑6‑1983 at 1 a.m. a jeep stopped near complainant's house and someone called him. He came out with lamp and in its light he saw respondent. No. 1 with two other accused named in the F.I.R. armed with rifle and guns. On inquiry respondent No. 1 said that as the complainant had not vacated the land he would kill him. All the three started firing but the complainant escaped. On hearing the complainant cries and firing many persons came out and the accused sped away in a yellow colour Suzuki No. A‑

59. On the basis of these reports it cannot be established that the respondent No. 1 is of bad character. In respect of crime No. 3/69 under section 366/363/34, P.P.C. a suggestion was made to the petitioner that, this case has been decided in favour of the respondent No. 1, but it has not been accepted. But no document has been produced to show that the respondent No. 1 was convicted. The petitioner has placed reliance on a letter of Aziz Ahmed Jahanzeb S.H.O., dated 3‑7‑1983 to Senior Superintendent Police, Hyderabad requesting him to move the Martial Law Authorities to try Crime Case No. 73/83 under section 307/34, P.P.C. in the Martial Law Court. This witness had also written a letter, dated 5‑7‑1983 giving the past record of the respondent No.

1. He has made reference to the three reports and further stated that the respondent No. 1 harbours caste‑fellow criminals, is a Goonda and vagabond. Mr. Jhamat Jethanand the learned counsel for the respondent No. 1 has contended that such evidence is not admissible to prove that the respondent No. 1 is a criminal or is of bad character. Merely because a S.H.O. had made a report one cannot conclude that whatever has been stated in this report is correct and does not require any proof. The allegations made by the petitioner are of serious nature and unless positive evidence is produced to establish these facts beyond reasonable doubt, such facts cannot be held to have been proved. The learned counsel for the respondent No. 1 has referred to Abdul Wali Khan's case P L D 1976 SC 57 (110) where it was held that the Intelligence Reports may be of great value for executive decision, but for the purposes of judicial enquiry, they cannot be of any assistance at all unless the authorities concerned are prepared to produce the sources themselves for giving evidence before the Court. No such evidence has been produced. The petitioner has referred to the F.I.R's. and police report and no additional facts of which he is personally aware have been stated. P.W. 2 to P.W. 6 are petitioner's polling agents and have not stated anything about the conduct or character of the respondent No.

1. P.W. 7 the Deputy Commissioner Badin is completely silent. P. W. 9 the S.H.O. has produced his report and reiterated its fact but as discussed above it is not sufficient to prove the allegations. The petitioner has failed to establish beyond reasonable doubt that the respondent No. 1 is of bad character. The other part of the issue relates to violation of Islamic Injunction. The petitioner has not given any instance or detail in the petition or in the affidavit to show which of the Islamic Injunctions were violated by the respondent No.

1. A vague allegation as in the present case, is not sufficient to charge the respondent No. 1 with the liabilities to establish that he does not violate Islamic Injunction. The respondent No. 1 has stated on oath that he is a Muslim and offers prayer. In the face of such a statement if any one challenges that a Muslim violates Islamic Injunction, then firstly, such violations should clearly be specified with full particulars and secondly these allegations should be established beyond reasonable doubt. Unless full particulars of breach of Islamic Injunctions are given, the respondent charged with such violations cannot have a proper opportunity to explain his conduct. The learned counsel for the petitioner has not been able to show which injunctions have been violated. The learned counsel for the petitioner has contended that the respondent No. 1 does not possess the knowledge of Islamic teaching and is not righteous and honest person. The learned counsel for the petitioner has referred to the meaning of the word 'righteous' which according to Oxford Dictionary means:‑

'morally right, just, upright, virtuous, law abiding, The learned counsel has referred to Mishkat Volume I English Translation by Al‑Haj Moulana Fazalur Karim, Chapter 4, page 288 where 'good conduct' has been defined as follows:‑

"(c) Virtues of good conduct.‑‑ The Quran summarises good conduct in many places. It says: Successful indeed are the believers who are humble in their prayers, who keep aloof from ' what is vain, who pay Zakat, who guard their private parts, who are keepers of trusts and their covenant (23 : 5‑8 Q). These are they who give wealth out of love for Him to the near of Kin, and the orphans, and the needy, and the wayfarers and for emancipation of slaves and keep up prayer, and pay the poor rate and the performers of their promise when they make a promise and the patient in distress and affliction and in times of conflict (2 : 177Q). Indeed the virtues which a believer should acquire are the virtues that constitute the /grand superstructure of good conduct." The aforestated virtues are of a honest and pious man of perfect good conduct. In the same chapter under paragraph (e) at page 290 it has been observed as follows:‑-- (e) Moderate use of virtues constitutes good conduct. The different kinds of virtues should happily and proportionately be blended in a person so as to constitute good conduct in him. Therefore, if the aforestated virtues are moderately blended in the character of any Muslim in a balanced manner without any obvious and known vice in him then he is to be treated as a man of good conduct and righteous person. Except the involvement in the crime as aforestated no other instances of dishonesty, misappropriation, embezzlement, harassment of widows and orphans, drinking wine, including immoral acts and commission of offences involving moral turpitude, have been alleged. The petitioner has merely repeated the words of the statute and stated that the respondent No. 1 was involved in criminal cases. No evidence has been produced to prove that such criminal cases have resulted in the conviction of the respondent No.

1. P.Ws. Muhammad Ali Shah, Abdul Haq, Feroz Alam Chaudhry, Ali Nawaz Allah Jurio, Ashiq Hussain, Deputy Commissioner, Badin and Qadir Bakhsh Baloch, Assistant Commissioner have not stated a word about the conduct and character of the respondent No. 1 P.W. Aziz Jehanzeb S.H.O. had submitted his report which has been discussed above. The petitioner has thus failed to prove that the respondent No. 1 is of bad character and is not righteous and honest. In order to establish that the respondent No. 1 does not possess knowledge of Islamic teaching and violates Islamic Injunction the petitioner has mainly relied on the statement of the respondent No. 1, in his cross‑examination. Except this statement, none of the witnesses examined by the petitioner have stated about this part of the issue. It was not difficult for the petitioner to produce witnesses to show that the respondent No. 1 does not pray regularly, does not keep fast, and his conduct is contrary to Islamic Injunctions, but no such evidence has been produced. The learned counsel for the petitioner has relied on the following statement of the respondent No. 1. 'I pray and offer Namaz. I go to offer prayer on AZAN. I am a Muslim, 1 offer prayer, but I cannot tell what is the difference in the Azan at FAJAR time and in the AZAN at ISHA time. I am a Zamindar holding 100/150 Acres of land. So far I have not performed Haj, but intend to go very soon. As I have not gone to perform Haj, I cannot say what prayers are to be offered at the time of Hajj and the DUA which are to be recited at the time of Haj. WAZU is broken by vomiting, responding to the call of nature and passing wind. Dua‑e‑Qunoot is recited in ISHA prayer, after the FARZ Rikats. After the NIYAT, ALHAMDO is recited. I keep fast. Shab‑e‑Qadar falls on 27th of RAMAZAN. On Shab‑e‑Qadar people pray. NAMAZ‑E‑TARAWIH can be performed after 10 p.m. till such time one likes to pray. If a person is performing Namaz‑e‑Tarawih and during that time the PESH IMAM starts NAMAZ‑E‑WITAR then after completing TRAWIH he can join NAMAZ‑E‑WITAR. I am not much educated and, therefore, I cannot tell in ARABIC the Dua which one has to recite before keeping fast, nor I remember the DUA recited before IFTARI. Due to lack of education I have less knowledge in religious matter, but I am Muslim and according to my level of education I know about the principles of IzLA&

1. It is incorrect to suggest that I do not pass my life according to the principle of Islam or as a pious man. It is incorrect that I violate the injunctions of Islam. It is incorrect to suggest that I lead a sinful life." The learned counsel for the petitioner could refer to the aforestated statement to show that the respondent No. 1 does not know the injunctions of Islam. Such a conclusion can hardly be drawn from this statement. The petitioner's counsel did not ask any question about the fundamental of Islam and the main principles of faith. Nor did he ask whether the respondent No. 1 could recite Kalimah and verses from Holy Qur'an. The respondent No. 1 has stated on oath that he is a Muslim and offers prayer. A Muslim has been defined in 'A Code of Muslim Personal Law, Volume I by Dr. Tanzil‑ur‑Rahman as follows:‑

"Section 3.‑‑ Whoever believes in the Oneness of Allah, recognises Muhammad as His last Messenger and does not believe in any kind of Prophethood after him in any sense of the term or of any description whatsoever, and avers himself to be a true Muslim, is a Muslim." The learned author has referred to various judgments of the Court and commentaries by learned authors of repute. It was further observed as follows:‑

"Every Muslim, whether he be prima facie, Legal or Real will, thus, be deemed to be a Muslim until it is proved that he is not a Real Muslim. Iman and Islam: The tradition of the Prophet (p.b.u.h.) defines Iman as: (i) Faith in the Oneness of Almighty Allah; (ii) Faith in His Prophets; (iii) Faith in His Angels; (iv) Faith in His Revealed Books; and (v) Faith in the World/ Hereafter. The Tradition also defines the Constitutions of Islam as: (i) the Kalimah; (ii) Prescribed Prayers (Salat); (iii) Prescribed Alms (Zakat); (iv) Fasting in the month of Ramadan; and (v) Pilgrimage (Haj). Every Muslim who believes and practices in Iman and Arkan cannot be judged as a man of bad character, bad faith, unrighteous and dishonest unless the facts constituting misdeed and misconduct are proved. The petitioner and all the witnesses examined on his behalf do not say anything about these allegations. The respondent No. 1 has examined witnesses who have not corroborated his statement. My finding is that this issue had not been proved. Issue No.

2. From the evidence discussed above it is clear that except the reference made to certain criminal cases, production of copy of two F.I.R's. and S.H.O's. report no documents have been produced to show that respondent No. 1 is being prosecuted for committing offences involving moral turpitude or major sins. One case referred by the petitioner is under section 363, P.P.C. which according to the respondent No. 1 has been decided in his favour. Mere pendency of a criminal case against any one does not disqualify him from contesting the election unless he has been convicted by a Court of competent jurisdiction of any offence involving moral turpitude. Reference can be made to Article 10(2)(b)(1) read with Article 11(2) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. My finding is in the negative. Issue No.

3. The petitioner and his witnesses (P.Ws. 2 to 6) have all along stated that the respondent No. 1 was being supported by Awami Tehrik. According to the petitioner Awami Tehrik is headed by Fazal Rahoo who is opposed to the integrity, solidarity and ideology of Pakistan. It is alleged that Ismail Rahoo son of Fazal Rahoo was chief supporter of the respondent No. 1 and he pressurized the voters of the constituency to abstain from casting vote in favour of the petitioner. Muhammad Ali Shah P.W. 2 stated that Muhammad Ismail Rahoo son of Fazal Rahoo supported the respondent No. 1 and promoted feelings of enmity and hatred against the petitioner on grounds of community and being stranger to this Constituency.' The petitioner himself has not stated that hatred was being created against the petitioner on the ground of 'Community'. This witness further stated that Siddiq Barran who is an active agent of Awami Tehrik and has been in jail many times was employed by respondent No. 1 at polling station Girari Regulator, Golarchi who caused undue harassment to the voters. Abdul Haq also stated that the workers of Awami Tehrik were supporting the respondent No. 1 and he has repeated whatever has been stated by other witnesses. It was also stated that Ismail Rahoo was showing a letter of his father to the voters in which he had called upon them to vote for respondent No.

1. The same facts and that law and order situations was created by the workers of Awami Tehrik hag been stated by Feroz Alam Choudhry (Exh. 7). Ali Niwaz (Exh. 8) stated that respondent No. 1 was supported by Awami Tehrik who is headed by Fazal Rahoo who is in jail for the last so many years for his anti‑State activities. Almost the same averments made by the earlier witnesses have been repeated by him. Allah Jurio (Exh. 9) has stated the same facts. Ashiq Hussain the Deputy Commissioner Exh. 10 and Aziz Jehenzib the S.H.O. Exh. 12 have not stated a word about involvement of and support by Awami Tehrik. The respondent and his witnesses have denied that they were supported by Awami Tehrik. The learned counsel for the petitioner contended that the fact that the petitioner was supported by Awami Tehrik has been fully established. It was further contended that as Awami Tehrik is a party involved in anti‑State activities the election should be declared void as these workers were harassing the voters. Except the words of the petitioner's witnesses that Awami Tehrik is engaged in anti‑State activities without giving particulars of such activities no authentic evidence has been produced which could establish these facts. Mr. Ghulam Haider Memon the learned counsel for the petitioner wanted to take judicial notice of the facts about Awami Tehrik but I am not inclined to take judicial notice of such facts which require proof. The witnesses produced by the petitioner do not prove this fact. Such fact could have been produced by summoning witnesses from responsible Government agencies to prove the' anti‑State activities of Awami Tehrik. Except stating that it indulges in anti‑State activity or is against the integrity of Pakistan no instances of such activities were given. Furthermore the petitioner's evidence does not prove that Awami Tehrik had supported the respondent No. 1 at his instance, intimidated the voters and created hatred on basis of community or area. P.W. 2 to P.W. 6 were the polling agents of the petitioner. No voter or any independent witness was examined to State that he was intimidated by the workers of Awami Tehrik or they were creating hatred on basis of community or area. In the absence of any independent evidence to support the petitioner's contention my finding is that this issue has not been proved. Issue No.

4. The evidence of the witnesses examined on behalf of the petitioner has already been discussed above. They have given the names of certain persons who are said to have been employed by the respondent No. 1 who are alleged to be hardened criminals and were intimidating the voters of the petitioner. The corrupt practice and undue influence as alleged by the petitioner was at a wide scale but the petitioner has not) produced such voters who were intimidated or were victims of corrupt practice committed by the workers of the respondent No.

1. Mere statement by the polling agents of the petitioner without any corroboration from independent witnesses is not sufficient to prove these allegations. So far the support of Government Officials is concerned specific allegation has been made in paragraphs 7 and 8 of the petition which will be dealt with under issue No.

5. There is no evidence of involvement of~ any other official. My finding is in the negative. Issue No.

5. In paragraphs 7 and 8 of the petition it has been alleged that at polling station Macheri Ghanshamdas the Presiding Officer, favoured the respondent No. 1 and allowed casting of fictitious votes at the behest of the respondent No.

1. He failed to control disturbance and 'left the polling station as required under the law'. The learned counsel has admitted that this is a typing mistake and in fact the Returning Officer left the polling station before the closing hours and did not come back. He was suspended by the Deputy Commissioner. So far the question of fictitious voting or false personation is concerned it had not been established as there does not seem to have been any challenge to the voters. No particulars of such fictitious voting has been given. The learned counsel for the petitioner has contended that law and order situation was created by the workers and agents of the respondent No. 1 with the result that the Returning Officer took away the ballot- papers and ballot‑boxes and did not return back. This contention is only in respect of one polling station where Ghanshamdas was acting a: Presiding Officer. Ashiq Hussain the Deputy Commissioner, Badin ha: stated that a complaint was received against Ghanshamdas that he had taken away election material outside the polling station because there was law and order situations. This information was received at 7.30 p.m. on 28‑2‑1985 when D. S. P. and Assistant Commissioner were deputed by him to ascertain the correct facts. It was reported that the agent of respondent No. 1 had created law and order situation and there were many outsiders also. Ghanshamdas was suspended. This witness, however, stated in cross‑examination that the suspension has beer withdrawn and no written complaint was received against the agent o1 the respondent No.

1. At the direction of Assistant Commissioner, Badin Ghanshamdas brought the material back to the polling station and started counting there. It is alleged that the election materials were taken away before the close of poll but no one has stated at what time it was taken away. The evidence produced by the petitioner is insufficient and lacks in material particulars. The statement of Ashiq Hussain Exh. 10 does not throw much light on it. The information way received by him at 7.30 p.m. and, therefore, it can be presumed such irregularities if committed would have been communicated to him immediately. Therefore, removal may have been made at the fag end of the election day. Although the Deputy Commissioner, Badin (Exh. 10), has stated that law and order situation was created by the agents of respondent No. 1 and many outsiders but neither the names of such persons have been mentioned nor any action seems to have been taken against them. It is stated that Ghanshamdas was supporting the respondent No. 1 and with that intention he had taken away the ballot- boxes before close of the poll. Even the order of suspension has been withdrawn which shows that no charge against him has been proved otherwise serious action could have been taken. The petitioner has filed with the petition a photo copy of letter, dated 11‑3‑1985 (Annexure 'H') from Regional Manager, Agricultural Development Bank of Pakistan to the Deputy Commissioner, Badin stating that on consideration of explanation submitted by Ghanshamdas he has come to conclusion that the irregularity committed by him was not intentional. He had recommended for his re‑instatement. On the foot of this letter is part of Ghanshamdas as explanation in which it has been stated that he left the Polling Station after 5 p.m. to report the facts to the Returning Officer. The petitioner has stated about the irregularities committed by Ghanshamdas but he is not an eye‑witness of these incidents. He has not examined his polling agent at Macheri or any voter of that polling station to corroborate his statement. Ashiq Hussain Deputy Commissioner, Badin has stated facts based on information received by him but has not accused Ghanshamdas of such irregularities as alleged by the petitioner. In such a state of evidence the petitioner has failed to prove his allegations. . In para. 8 of the petition it has been alleged that one Ghulam Qadir Bhatti, Returning Officer of PS‑52 Badin 4 was actively supporting the respondent No. 1 in different ways and was suspended. P.W. 7 the Deputy Commissioner, Badin has stated that Ghulam Qadir Bhatti was Senior Clerk to Qadir Bux Baloch, Assistant Commissioner, Badin, the Returning Officer. A complaint was received against Ghulam Qadir Bhatti alleging that he was favouring certain candidates but the name of such candidates was not known to him. The complaint was general in nature and on such complaint he was placed under suspension but later the suspension order was withdrawn. The allegations against Ghulam Qadir Bhatti are vague and on such allegations the election cannot be set aside. Even if for argument sake it is accepted that the provision of law has not been complied with by Ghanshamdas inasmuch as he had taken away the election materials from the polling station and alleged to have closed polls before the specified time (although the time when he closed the polls has neither been mentioned in the petition nor proved) the case will fall under section 70(a) of the Representation of the Peoples Act, 1976 which provides that the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reasons of the failure of any person to comply with the provision of this Act or the rules.' Therefore, the question for consideration is whether failure of Ghanshamdas has materially affected the results of the election. On Polling Station G.P.S. Macheri Jagir the petitioner had polled 45 votes while the respondent No. 1 had secured 166 votes. The total number of Muslim votes in this polling station were

523. The respondent No. 1 has overall lead of 1,270 votes. Even if all the ,voters of this polling station would have voted for the petitioner, it would not have reduced the number of votes secured by the petitioner less than any other candidate. In this way the result of the election would not have been materially affected and unless such a finding is given mere illegality or irregularity or breach of any provision of Act will not be sufficient for declaring the election to be void as a whole. So far false personation is concerned except the statement in' the petition and general allegation by the petitioner's witnesses there is nothing on record to establish that false and fictitious persons cast their votes in favour of the respondent No.

1. The polling agent of G.P.S. Macheri Jagir has not been examined. On assessment of evidence my finding is in the negative. Issue No.

6. The learned counsel for the petitioner has contended that the ballot‑boxes of Macheri Polling Station‑were removed and results were manipulated. Except the statement of petitioner and his agents at other polling stations there is no evidence of manipulation of the election results. In view of discussion under issue No. 5 the finding is in the negative. Issue No.

7. From the evidence it has been established that the notice for consolidation of result was issued to the petitioner. A copy of the notice was also pasted on the notice board. The notice was produced by P.W. 8 Qadir Bux. He has not stated that the petitioner was not served or notice was not issued to him. My finding is that notice for consolidation of the result was given to the petitioner. A.A. Petition dismissed.