1986 PLP 2240 (MLD)

(4 ) Whether the election of respondent No.2 is liable to lie declared void? . (5) Whether the petitioner is entitled to be declared .elected in the event of the election of respondent No.2 being declared void? (6) Whether the election is to be declared void as a whole? (7) Relief .

6. The petitioner in support of charges, produced some documents alongwith petition and examined six witnesses. The petitioner has produced his petition as Exh. 8/1 and stated that the contents may be treated as Examination‑in‑Chief. His petition is verified on oath and he also filed affidavit in support .of the petition. The allegations in the petition as stated above are of corrupt practice. He has stated that respondent utilized his ministerial position and obtained maximum advantage and every Election Law and rule was violated by him and his supporters and Government functionaries. It is alleged that supporters of respondent moved about in the constituency in the form of procession every day and they used Government vehicles as well as privately owned Suzukis, Pick‑ups and Mini‑Buses. He drove official ministerial Car flying Pakistani flag. His car stated to be all the time accompanied by one or more Police Jeeps. There are allegations that respondent in his speeches maligned other candidates and he was supported by Naval. Personnel and they provided Naval Van for his election campaign. It is also stated that in the petition that the respondent arranged bogus voters with the result that such cases were registered and so many persons were convicted by Summary Military Court. There are charges against the Presiding Officers and polling staff too. The petitioner in cross‑examination stated that he had not given names, places, dates where firing was made and procession were taken out but mentioned only Sher Shah Area in the petition. He did not attend meetings addressed by .the respondent, on 16‑2‑1985 at PNAD Colony and also did nor complain lo any authority including police or Naval authority. He did not state in the petition that he saw respondent committing any illegal acts within his sight. He has admitted that he did not ‑make complain to election commission or any authority about allegation as mentioned in the petition nor he gave names and particulars of the Presiding Officers, Polling Officer who helped the respondent in election.. He was neither complainant nor witness in the cases referred to the petition. He has admitted to have signed statement of consolidated results but stated that he was not allowed to leave the room. He was told by Returning Officer to refer the matter of illegalities to Tribunal.

7. Fateh Nasib Exh. 9 in his affidavit‑in‑evidence stated that he used to see processions from 15‑2‑1985 till election day i.e. 25‑2‑1985 organized by and on behalf of Mir Nawaz Khan Marwat from his office. The procession consisted 4 or 5 Suzuki Pick‑Ups, Mini‑Buses and one Truck and often Mir Nawaz Khan Marwat used to lead the processions and some times he was found sitting in his Ministerial car or in an official jeep. The evidence of Qari Bashir Ahmed Exh. 10, and Haji Muhammad Shafi Exh. 11, is that on Election day bogus voters were brought by the respondent in trucks and Muhammad Shafi went and lodged complaint on which Military Truck was immediately sent to the polling station on seeing the Army Truck, coming bogus voters escaped. Muhammad Boota Exh. 6 and Muhammad Sarwar, S.H.O. Exh. 7, have produced copies of First Information Report registered at Site, Police Station and Pak Colony. Muhamd Farid has stated that in F.I.R.'s Exh. 6/1 and 6/2 the name of respondent Mir Nawaz Khan Marwat does not appear.

8. Respondent in his written statement Exh.13, has denied all the allegations and stated that sentence passed by Summary Military Court was unilateral and without notice to him and said order was illegal improper, arbitrary. He examined Ejaz Hussain Malik Exh.14 and Farooq Ahmad Khilji Exh.

15. They have stated that election was fair and polling was proceeding in the ordinary manner without interruption. I have heard Mr. Kamal Azfar and Mr. Kazim Hussain I the petitioner respondent argued his case was well as his counsel Messrs N.A. Farooqui and Fariduddin, made submissions. Both the parties sent written arguments too. ISSUES Nos. 1 and

2. These issues can be taken together as both relate to the maintainability of the petition. It is argued from the respondent side that proper parties have not been joined and particulars of corrupt and illegal practices are not given in the petition therefore due to non‑compliance of provisions of sections 54 and 55 of the Act the petition is liable to be dismissed under section 6.3 of the Act. On perusal of the Election Petition Exh. 8/1 it is clear that petitioner has given instances of meeting addressed by the respondent and in some cases the dates are also given. The copies of First Information Report were annexed with, the petition. In this petition although the particulars of each and every corrupt practice have not been given in detail but Election Petition read as a whole discloses the purpose for which it was filed. In case of S.M. Ayub v. Syed Yousaf of Shah and others reported in P L D 1967 S C 486 it has been observe at page 490/B: "We are disposed to hold, therefore that the extreme view which found favour in High Court as to the construction of section 67 is erroneous. There is nothing in the Act to given countenance to the contention that even a single defect in the petition in respect of one paragraph, would justify its having thrown out as a whole. This construction would amount to reading into section 67 words that do not exist therein. The true construction of this section seems to be that, if the petition taken as a whole, fails to comply with the provisions of section 59, it‑shall be dismissed as revealing no cause of action." The next case on this point is of Bostan Ali Hoti v. Muhammad Hanif Soldiar and others reported in P L D 1978 Jour.

81. The observations at page 96‑D are as under:‑ "We have perused the Election Petition and we are of the view that although the particulars of each and every corrupt practice have not been given in minute details but Election. Petition read as a whole indicates the purpose to which it was filed and gives so much of the details as may reasonably be considered necessary for entertaining and trying the same. The objection raised in this regard is devoid of force and is; therefore, repelled." In this petition all the contesting candidates and Returning Officer have been joined as respondents. According to section 54 of the Act all contesting candidates and any other candidate against whom any allegation of corrupt or illegal practice is made shall be joined as respondent. It is not necessary for the petitioner to join. Election Commission as party when there are no allegations against the Commission in the petition. Therefore, objections of respondents on both the issues have no force and are, therefore repelled. Consequently the Election petition is not liable to be dismissed under section 63 of the Act. It is proper and maintainable. Issue No.3, relates to illegal and corrupt practices alleged to have been committed by respondent Mir Marwat Khan. The allegations are of general in nature. The petitioner and his witnesses have not given the number of vehicles used by the respondent in Election Campaign. He has not given the time and place where election meetings were addressed. There is only oral evidence of petitioner and his three witnesses namely, Fateh Naseeh Qari Bashir Ahmed and Haji Muhammad Shafi, not supported by any documentary evidence. Petitioner did not even lodge any protest with Returning Officer or Presiding Officer. He has not challenged any vote. Qari Bashir Ahmed and Haji Muhammad Shafi were workers of the petitioner and evidence of Fateh. Naseeb is unnatural. The petitioner has produced First Information Reports registered under M.L.O./102 at Police Station site and P.S. Pak Colony, Karachi. In First Information Reports Exhs. 6/1 and 6/2 the name of respondent does not appear. In F.I.R. Exh. 7/1, no part is assigned to respondent nor his presence is shown. The registration of case does not mean that charge is proved. Petitioner has produced photo copy of charge‑sheet drawn by Deputy Martial Law Administrator against 18 persons showing that they took procession and raised slogans in favour of respondent and attempted to cast bogus votes and it is argued that 123 persons were convicted by Summary Military Court. A copy of letter dated 27‑2‑1985 addressed to the Chief Election Commissioner and others has been produced. This application was sent two days after the result was announced. Regarding conviction by the Military Court, the respondent has produced orders of Deputy Martial Law Administrator, Sector I, Exhs. 8/2, 8/3, 8/4 dated 7‑5‑1985, 7‑5‑1985 and 4‑5‑1985 whereby proceedings against. Those persons who were challaned mere set aside. Therefore the charge of bogus voting and procession stands not proved. In case of Syed Saeed Hassan v. Pyar Ali and 7 others reported in P L D 1976 S C 6 it has been held that corrupt or illegal practice has to be proved to exclusion of reasonable hypotheses consistent with its non‑commission and benefit of doubt must go to person charge with corrupt or illegal practice. The relevant portion of judgment of the above reported case at page 25/26‑D is as follows:‑-- "This brings us to the next contention that the Courts below has 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 be held good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonably hypotheses consistent with the non‑commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt be illegal practice is alleged. We have already referred to the authorities mentioned in the context in the High Court judgment, namely Muhammad Saeed's case, Mian Jamal Shah's case and Yousuf Khattak's case P L D 196C S C 1 and P L D 1973 S C 191." Reference can be made to their cases reported in P L D 1975 Pesh. 124, P L D 1986 Jour. 66, P L D 1986 Jour. 146 and P L D 1986 Jour. 160 where it has been held that vague allegations without sufficient proof are not sufficient to declare election void. From the above discussion and case law, I am of the view that petitioner has failed to prove illegal or corrupt practice as alleged in the petition against respondent No.2, Mir Nawaz Khan Marwat. From the evidence no illegality or irregularity in the election has been proved. The petition is, therefore, dismissed. With no order as to costs. Since petition has been dismissed the other issues have become infructuous. A.A????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.