P L D 1969 Dacca 240 (PLP)

(e) National and Provincial Assemblies (Elections) Act (VII of 1964), S. 59(1)‑Charges prima facie vague should not be allowed to go in for trial‑Evidence on such charges looking to prejudice case of successful candidate. (f) National and Provincial Assemblies (Elections) Act (VII of 1964), S. 59 read with S. 10‑Contents of election petition‑Candi date securing third place in election preferring petition against returned candidate seeking to set aside his election and naming second best candidate as being guilty of corrupt practice, with a view to getting the Tribunal to declare petitioner elected‑Decree not con templated by Act‑Section 70 allows for only a recriminatory pro cedure. A. K. Brohi, T. Talukdar, M. A. Hamid, A. H. Mirza, Muhammad Ali, A. R. Malik, A. K. Khan and K. Z. Alam for Petitioner (in both petitions). A. S. M. Shamsuzzaman for Respondent No. 3 (in both petitions). Dates of hearing: 18th, 19th, 20th and 21st July 1967. SALAHUDDIN AHMED, J.‑Both these petitions have been heard together as they arise out of the same impugned order and they are now being disposed of under one judgment. In Petition No. 189 of 1967, petitioner Muhammad Shahidullah is the successful candidate at the last general election of the National Assembly of Pakistan held on 21‑3‑65 whose election has been set aside by the Election Tribunal constituted under the National and Provincial Assemblies (Elections) Act, 1964 hereinafter called the Act. There was a quadrilateral contest in which the petitioner secured 328 votes, respondent No. 3 only 34 votes, pro forma respondent No. 4 Afsaruddin Ahmed 193 votes and one Mujibar Rahman Khan 10 votes only. Respondent No. 3 having secured less than one‑eighth of the total number of votes forfeited his security. In Petition No. 201 of 1967 petitioner Afsaruddin Ahmed (pro forma respondent No. 4 in Petition No. 189) secured 193 votes at the said election. Although respondent No. 3 Abdul Hamid in his election petition did not pray for any specific relief against this petitioner an issue was framed and tried as to whether Afsaruddin Ahmed committed any illegal or corrupt practice at the said election. Respondent Abdul Hamid (respondent No. 3 in both the petitions) having been aggrieved by the result of the aforesaid election filed an Election Petition against the three other contesting candidates including the returned candidate Muhammad Shahidullah and Afsaruddin Ahmed asking for a declaration that the election of the returned candidate was void and that respondent No. 3 Abdul Hamid (petitioner in Election case) was duly elected. Abdul Hamid (petitioner in Election case) did not ask for any specific relief against the said Afsaruddin Ahmed. The election of the returned candidate Muhammad Shahidullah was challenged on the grounds, inter alia, that the returned candidate and Afsaruddin Ahmed had procured votes by illegal practice and by illegal gratification such as bribery, entertainment with feasts and sweets and employment of vehicles for conveying voters to and from the polling stations. Submission of false return of election expenses has also been taken as one of the grounds. The Election Tribunal (respondent No. 1 in both the petitions) which tried the Election petition found several charges (not all) established against the successful candidate, and also found that the said candidate Afsaruddin Ahmed was guilty of corrupt practice in respect of two charges, and consequently it declared the election as a whole void and set aside the election of the successful candidate Muhammad Shabidullah. The Tribunal, however: refused the prayer of respondent No. 3 Abdul Hamid to declare him elected. It may be mentioned here that the Tribunal was unanimous in passing the impugned order although there were two concurrent judgments one by the Chairman to which one of the members Mr. Shamsuddin\ Ahmed concurred and the other by another member Mr. Muhammad Ibrahim. So far as the successful candidate Muhammad Shabidullah is concerned the Tribunal found six charges against him, while against Afsaruddin Ahmed it found only two charges proved against him. We shall advert to the details of the charges when we come to discuss them in connection with the contentions raised on behalf of the petitioner in each of the two petitions. Mr. A. K. Brohi, learned Advocate appearing on behalf of the petitioner in each of the two petitions has taken us through the order of the Election Tribunal and has put forward several contentions on behalf of the petitioners. Keeping in view the observations made by the Supreme Court in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others (P L D 1966 S C 1) and the case of Akbar Ali v. Razi‑ur‑Rahman Khawaja and others (P L D 1966 S C 492), Mr. Brohi has contended that the Election Tribunal has failed to conform to the well‑known norms of a judicial trial and to apply the well‑settled principles applicable to the determination of an election dispute. He has also contended that the Tribunal has failed to comply with the mandatory provisions of sections 59 and section 67 of the Act, and that had it followed them, the Election Petition should have been dismissed under section 67 of the Act for non‑compliance with the provisions of section 59 of the Act. As regards Petition No. 201 of 1967 Mr. Brohi has argued that the Tribunal has acted beyond the scope of the Election Petition, wherein no relief was asked for against Afsaruddin Ahmed, and in excess of the jurisdiction of the Tribunal. As regards Petition No. 189 of 1967 Mr. Brohi has elucidated his contentions by reference to each of the charges found against petitioner Muhammad Shahidullah. Charge No. 1 discussed at page 87 (running) of the judgment of the Election Tribunal contained in Annexure `A' to Petition No. 189 contains the allegations that on the 21‑3‑67 at about 3 p. m Abdul Latif Bhuiya, a canvasser and brother‑in‑law of Muhammad Shahidullah, paid Rs. 10 each to three Members of the Electoral College including D. W. 3 Ali Ezhar Bhuiyan. The other two Members have not been mentioned. In finding this charge proved against Muhammad Shahidullah the Tribunal has, out of three witnesses for the petitioner, relied on the evidence of two witnesses only, namely, P. W. 5 and P. W.

6. P. W. 5 Md. Fazlul Huq, a canvasser of Abdul Hamid, and a teacher of a school of which Abdul Hamid is the Secretary and Rector, saw the said Abdul Latif Bhuiya paying a currency note of Rs. 10 to each of the three voters including Ali Azhar Bhuiyan in presence of Md. Shahidullah. P. W. 6 Faizuddin Ahmed in his evidence merely said he saw payment of Rs. 10 to each of three electors, none of whom was known to him. He reported about this to Abdul Hamid 3 or 4 days after election. It appears that the Tribunal relied on the evidence of these two witnesses mainly for the reason that P. W. 3 Ali Azhar Bhuiyan (one of the recipients of the bribe in question) made no denial about the payment of the bribe. This reason is misconceived for D. W. 3 Ali Azhar has clearly stated in his evidence thus t "It is not a fact that I voted for Mr. Shahidullah on receipt of bribe from him or from his man. It is not a fact that I know Abdul Latif Bhuiya." It is, therefore, evident that the very foundation of putting reliance on the evidence of P. Ws. 5 and 6 are wanting P. W. 6 merely said in his evidence that he saw payment of Rs. 6 to each of the three voters none of whom was known to the witness, and therefore, none of them was mentioned by him. The witness has, however, said that the said Abdul Latif Bhuiya had said that the said three voters were Members of Adiabad Union Council. In the Election Petition, however, the said three voters have been described to be the Members of Amirgonj Union Council. The Tribunal brushed aside this positive statement in favour of Md. Shahidullah by saying that the statement is not admissible inasmuch as Abdul Latif bad not been examined. It has been pointed out that in his Election Petition Abdul Hamid never mentioned P. Ws. 5 and 6 as the persons from whom he came to know about the payment of money to D. W. 3 and two other voters although P. W. 6 had told Abdul Hamid about the bribery 3 or 4 days after the election. It is patent from the criticisms that although the charge was of a criminal nature the Tribunal never considered it necessary to, apply the principles applicable to the trial of a criminal charge. One such principle is that in case of any reasonable doubt raised on the evidence, the benefit of such doubt must go to the accused. Charge No. XII is again of bribery and it alleges that on 21‑3‑65 two voters Rupa Mia and Sona Mia were paid Rs. 500 each, at the hotel of Zaher Mia at Sreerampur Bazar at Raipura by Muhammad Shahidullah for procuring their votes. This pay ment has not been witnessed by any witness. Of the three witnesses, namely, P. W. 1 Abdul Hamid, P. W. 8, Idul Alam, and P. W. 11 Samiruddin Ahmed, only two of them have been relied on by the Tribunal, namely, P. Ws. 8 and

11. P. W. 8 is related to the petitioner and his evidence is that on 19th March 1965 as a result of talks between D. W. 16 Momtazuddin on the one band and Sona Mia anti Rupa Mia on the other the latter two told the former that they would place ink marks on their ballot papers to indicate that they voted for Muhammad Shahidullah in case they were paid Rs. 500 each. This evidence has been relied on because the Tribunal thought it was supported by the evidence of P. W. 11 Samiruddin Ahmad and by the fact that there were ink marks at the back of two ballot papers. P. W. 11 Samiruddin Ahmed, polling agent of said Abdul Hamid spoke about Sona Mia's spilling ink by filling the ink‑pot and thus soiling several ballot papers including his. By no means the evidence of P. W. 11 can be regarded as corroborating the evidence of P. W. 8 that Sona Mia and Rupa Mia had promised to place ink marks (nature of which was never disclosed) at the back of the ballot papers to indicate that they voted for Muhammad Shahidullah, particularly when the‑ Tribunal found that no less than 48 ballot papers were found to contain ink marks. Besides, this is entirely a piece of circumstantial evidence and it does not appear that it was ever present in the mind of the Tribunal that the principle applicable to such evidence is that the circumstantial evidence must be incompatible with the innocence of the accused and can be explained on no other hypothesis but that of guilt of the accused. D. W 16 Momtazuddin has denied about any such talks regarding bribery but he was disbelieved merely because of the presence of the ink marks on the large number of ballot papers. We do not think it was ever considered that the circumstance of spilling of ink by Sona Mia may be the result of pure accident, and whether it was probable that such action on the part of Sona Mia while receiving his ballot paper from the Presiding Officer would by itself indicate that both Sona Mia and Rupa Mia fulfilled the promise they had given to D. W. 16 Momtazuddin and confirm the fact of actual payment of the bribe. It may be mentioned that there is no document to show that the counting of the soiled or ink marked ballot papers was ever objected to. It further appears that the Tribunal hardly considered whether it was probable to talk about bribe in presence of strangers, or that a mere promise to put some ink marks on the ballot papers nature of which was never disclosed would be readily accepted and a sum of no less than Rs. 1,000 would be paid to Sona Mia and Rupa Mia on the morning of the polling day or that spilling of ink‑pot and thus soiling a number of ballot papers prior to voting was a probable course to adopt for fulfilling the promise that ink marks would be put on the ballot papers to indicate that the votes had been cast in favour of Mr. Shahidullah. Testing evidence in the light of probabilities is an accepted judicial standard, and a failure to observe this standard is a departure from the norms of a judicial trial. In this case there is not only a failure to conform to the norms of a judicial trial but also to apply the well‑settled principles of criminal trial applicable to an election case. It may be of interest to mention here that one of the members of the Tribunal in his separate judgment has blamed respondent No. 1 Muhammad Shahidullah for not examining the said Rupa Mia and Sona Mia in order to refute the allegations of payment of bribe. Charges XV and XVI deal with the corrupt practice of entertaining voters for influencing them to vote for Muhammad Shahidullah. It appears from the discussion of the evidence in support of these two charges that the Tribunal relied on the evidence of one solitary witness fn each case. We should mention here that there is absolutely no evidence to show that Muhammad Shabidullah ever bore the costs of the said two feasts. Under Charge No. XV no less than nine witnesses for the defence who gave positive evidence that they had gone to the venue of the alleged feast but did not see any such feast appear to have been brushed aside for hardly any valid reason. One of them D. W. 12 has been disbelieved merely because he was related to the learned Advocate appearing on behalf of respondent Afsaruddin Ahmed. This in our opinion is no reason at all to disbelieve the evidence if it is otherwise acceptable. As regards charge No. XVI the only witness relied on is P. W. 4 Md. Ibrahim Mia, whose evidence the Tribunal has been unable to accept in connection with a charge of bribery and no reason has been given as to why this particular portion of his evidence should have been accepted. Yet it is curious to find that the evidence of D. W. 16 has been rejected because his evidence in respect of some other charge was not found acceptable by the Tribunal. Under this charge also no less than ten witnesses gave positive evidence that no such feast had taken place but their evidence appear to have been rejected for hardly any valid reason. Charge No. XVIII is an allegation that Muhammad Shahidullah had employed vehicles to carry voters to and from the polling stations at Monohardi and Shibpur. The Tribunal has not accepted the second part of this charge relating to Shibpur polling station. As regards the first part of the charge relating to the conveyance of voters to and from Monohardi polling station, the Tribunal has again relied solely upon the evidence of P. W. 12 alone who has stated in his evidence that he realised that the vehicles were engaged by Muhammad Shahidullah for carrying the voters because the vehicles had on them flower symbols assigned to Muhammad Shahidullah. This witness did not name a single voter who was seen on any of these vehicles. According to section 80 (5) (b) an elector conveying himself or several electors conveying themselves to and from the polling station is not a corrupt practice within the meaning of that section and yet the Tribunal does not appear to have kept this exception in mind while dealing with the solitary evidence of P. W.

12. It was possible that the electors without the consent and connivance of Muhammad Shahidullah had arranged among themselves to convey them selves to and from the Polling Station Monohardi at their own costs. In the case of this charge too, no less than six defence witnesses have been disbelieved because in connection with the entertainment of voters at Monohardi (charge XV) their evidence was not accepted. The last charge is charge XIX. The allegation is that Md. Shahidullah has filed untrue and false return of his election expenses. This charge is based solely upon the proof of the allegations contained in the foregoing charges, namely. that Muhammad Shahidullah bad failed to mention in the said return the costs incurred for conveying voters to and from the polling stations and for entertaining them and for not mention ing the petrol which he had purchased between 4th and 7th March 1965. There is nothing to show that this petrol was consumed in connection with the election, for unless this was so the petrol was not required to be mentioned in the return. As regards the non‑submission of vouchers in respect of the purchase of petrol costing Rs. 350 between 17th to 20th March, 1965 Muhammad Shabidullah has stated that the vouchers were lost and therefore, they could not be submitted along with the return. Upon such evidence as these the Tribunal found that Muhammad Sahidullah's election has been vitiated by the Commission of illegal and corrupt practice. So far as Afsaruddin Ahmed is concerned (Petition No. 201) only two charges have been found against him, namely, Charges Nos. V and X. Charge No. V relates to the treating of voters with feast and sweets in the house of Doctor Saijuddin Chow dhury of Sreerampur on the date of projection meeting at Raipura. Here again only one witness, namely, P. W. 4 Md. Ibrahim Mia has been relied on by the Tribunal although this witness has been disbelieved on another count and although the Tribunal has mentioned this very ground for not accepting the evidence of other witnesses. On this charge also a host of defence witnesses, eight of them, appear to have been disbelieved for no valid reason. The evidence of P. W. 5 Alhaj Mujibur Rahman has not been adverted to at all and yet he has been disbelieved too. Charge No. X against Afsaruddin Ahmed contains an allegation that he submitted false and untrue return of his election expenses and this, too, has been based upon the basis of proof of the allegations in charge No. V, namely, omission to mention the expenses incurred by him for treating the voters to feast at the house of Doctor Saijuddin Chowdhury. The proof of this charge naturally flowed from the acceptance of charge No. V against Afsaruddin Ahmed. It is evident from the foregoing that the Election Tribunal has failed to bear in mind so far as the allegations of corrupt practices are concerned that they are charges of a quasi‑criminal nature and, therefore, the principle applicable to a criminal trial should have been applied to them at the trial. Two of the principles involved are firstly, that if any reasonable doubt arises upon the evidence, the benefit of such doubt must go to the returned candi date, and secondly where the evidence is of a circumstantial nature, they must be considered to be such as are incompatible with the innocence of the accused and must exclude all hypotheses which are consistent with the alleged corrupt practice having not been committed. In this we are supported by the following observations of Chief Justice Muhammad Munir, as he then was, in the case of Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (P L D 1957 S C (Pak.) 91) appearing at page 100: ‑ " . . . that the burden of proof of corrupt practices is on the petitioner : that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars ; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial ; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are inconsistent with that corrupt practice having not been committed." It is further evident that the Tribunal has not conformed to the well established norms of a judicial trial. In the Supreme Court case just mentioned Cornelius, J. as he then was, while delivering the judgment of the Court observed as follows at page 124: - "Although the jurisdiction conferred upon the Tribunal is special, by reason of its being confined to election matters, nevertheless it is a judicial jurisdiction and the Tribunal were not at liberty, when confronted with conflict of evidence upon the same question of fact, to resolve it according to their caprice or desire. The Tribunal appear to have acted on the assumption that the duty as to proof which lay upon the petitioner in the case with regard to the serious corrupt practices alleged by him, would have been sufficiently met by evidence raising a probability‑perhaps a reasonable probability of the truth of that which was alleged. In so holding, the Tribunal have declined to follow the principles consistently adopted by similar election tribunals in the past and has laid down for itself a principle which, it must be stated with regret is clearly calculated to deflect the course of justice." We have already noticed how evidence of scores of defence witnesses has been brushed aside without any valid reason, and merely on the ground that their evidence in regard to one or other of the charges is unacceptable or is vague and indefinite although on reference to their evidence it is found that their evidence is as clear and precise as those of the witnesses for the petitioner in the election case. The Tribunal seems to have adopted different yard sticks for the evaluation of the evidence of the different parties. While in one case the evidence of a witness although disbelieved on another count has been accepted without the mention of any reason, in the other the evidence of a large number of witnesses have been disbelieved merely because their evidence on some other count has not been found satisfactory by the Tribunal. This obvious inconsistency has resulted in creating a prejudice against the returned candidate Muhammad Shahidullah as well as against Afsaruddin Ahmed. Evidence of defence witnesses has also been rejected on the ground that they furnished merely evidence of a "negative character", although a reference to the evidence will show that their evidence was as much positive on the specific point as the evidence of witnesses of the other party. It further appears that ballot papers were opened by the Tribunal after the evidence had been closed and they were extensively relied on by the Tribunal without affording any opportunity to the affected party to lead evidence on the said ballot papers. All these commissions and omissions on the part of the Tribunal have resulted in declaring void the election of petitioner Muhammad Shahidullah, who has been returned with an overwhelming majority. As regards the contravention of mandatory provisions of section 59 read with section 67 of the Act all we need mention at this stage is that some other material particulars, although available at the time of putting in the Election Petition were not mentioned in the petition. Some of the charges have been found by the Tribunal to be prima facie, vague and therefore they should never have been allowed to go in for trial and their inclusion has led to the reception of evidence which is likely to have created a prejudice against the returned candidate and Afsaruddin Ahmed. The object of the Election Petition against Afsaruddin Ahmed appears to be that respondent Abdul Hamid wanted to cross not one hurdle but two hurdles in order to get a declaration from the Tribunal that he was elected. We have carefully examined the provisions of the Act and we find that a relief on such line is not contemplated by the Act. All that section 70 of the Act contemplates is what is popularly called a recrimination application, namely, where in an election petition a declaration is claimed that a candidate other than the returned candidate has been duly elected, the returned candidate or any other may produce evidence to prove that the election of such other candidate would have been declared void had he been the returned candidate and had a petition been pre sented calling his election in question. The position as it stood after counting at the said election was that .out of the four contesting candidates, petitioner Muhammad Shahidullah had secured the highest number of votes totalling 328 votes and Afsaruddin Ahmed had secured the next highest number of votes, namely 193 votes, while Abdul Hamid had secured only 34 votes. It seems to us against all principles of democratic election and consequently unreasonable that the Act would contemplate such a declaration as that claimed by Abdul Hamid namely, that he had been elected. It is true that independently of an petition made by Abdul Hamid against Afsaruddin Ahmed the Tribunal could under section 104 of the Act find upon evidence that Afsaruddin Ahmed was guilty of a corrupt or illegal practice. But that is a different matter. For the reasons stated above and after an anxious consider ation of the observations made by the Supreme Court in the cases of Mian Jamal Shah v. Election Commission and Akbar Ali v. Razi‑ur‑Rahman respectively concerning the scope of the High Court's interference with an order passed by an Election Tribunal constituted under the Act we have come to the conclusion that the Election Tribunal has exceeded its jurisdiction 1 by arriving at a decision without conforming to the well‑known norms of a judicial trial and by its failure to apply the well settled principles governing the trial of an Election Petition. We accordingly make both the Rules nisi issued in Petitions Nos. 189 and 201 of 1967 absolute, and declare that the impugned order dated 12‑4‑67 passed by the Election Tribunal, East Pakistan in Election Petition No. 5 of 1965 has been made without J lawful authority and is of no legal effect. We further direct that Election Petition No. 5 of 1965 shall go back to the Election Tribunal, East Pakistan, Dacca for retrial according to law and in the light of the observations made above but subject to this modification, namely, that the retrial will be confined to only those charges that have been found against Muhammad Shahidullah and Afsaruddin Ahmed. Having regard to the facts and circumstances of the cases we leave the parties to bear their own costs. On behalf of respondent No. 3 Abdul Hamid we have been asked to give a certificate under Article 58 of the Constitution. We hereby give the certificate asked for. A. H. KHAN, J.‑I agree. Order accordingly.