1999 PLP 2039, (CLC)

(d) To grant such other relief as may deem just and equitable in the interest of justice."

3. None of the respondents except respondent Nd.4 who was declared elected has contested this petition. Therefore, on 12‑5‑1997 respondents Nos.5 to 12 were declared ex parte. Respondents Nos. l to 3, being Election Commission and its Officers, have not contested this election dispute. The respondent No.4 through his written statement has denied all the allegations and grounds of the petition. In addition, he has also raised several preliminary legal objections to the maintainability of this petition. As a result of the above pleadings, following issues (Exh.4) were framed. (1) Whether the petition is not maintainable for non‑compliance of provision of section 55(1) (a) and (b) of the Representation of People's Act, 1976? (2) Whether the petition is barred in terms of sections 68(2)(a) of the Representation of People's Act, 1976. (3) Whether the petition is bad and not maintainable for non joinder of necessary parties? (4) Whether the Returning Officer ordered transfer of votes in violation of the rules pertaining to K.M.C. 24, 37, ,38 and C.C.B. Wards 3, 8 and (5) Whether the Polling Agents of the petitioners were not allowed to enter the polling station? (6) Whether the polling stations and Booth Nos. were changed at the Junior Model School Polling Station? If so, its effect? (7) Whether there exists any irregularity in the voters list pertaining to K.M.C. 16, 37, 38 and C.C.B. Wards 3, 6, and 7? (8) Whether the Polling Stations were changed in violation of rules as per Annexure ' B' to the petition ? If so, its effect? (9) What irregularities, illegalities, if any, were committed before, during and after polling in P.S. 89? . (10) Whether the petitioner is entitled to relief as prayed in the petition? (11) What should the order be?"

4. In support of his case the petitioner has filed his affidavit‑in‑evidence which was brought on record as Exh.5. He was cross‑examined by the respondent No.4 whereafter petitioner closed his side. As against that respondent No.4, Saleem Zia, has filed his affidavit‑in‑evidence which was brought on record as Exh.6‑A and was cross‑examined by the petitioner. My findings on the above issue are as follows: Issues Nos. 1 and 2.

5. I intend to discuss both these issues jointly as they pertain to corrupt and illegal practice as alleged in the petition as well as brought on record through the process of recording of evidence. Subsection (1) to section 55 of the Act, 1976 deals with mode of disclosures to be made in the election petition about the material facts including full particulars of any corrupt and illegal practice or illegal acts. Section 68 of the Act, 1976 empowers the Election Tribunal to declare the election of the returned candidate to be void on any of the four grounds as mention in sub‑clauses (a) to (d). Sub‑clause (d) to section 68(1) again deals with the question of corrupt or illegal practice. A Tribunal is competent to declare election to be void if it is satisfied that any corrupt or illegal practice was committed either by the returned candidate or his election agent. This is further clarified in subsection (2)(a) of section 68 which provides that the election of a returned candidate shall not be declared void if the Tribunal is satisfied that any alleged corrupt or illegal practice was not committed with the consent or connivance of the returned candidate or his election agent and that such candidate and his election agent took, all reasonable precautions to prevent its commission.

6. It was argued by Mr. Muhammad Ayaz Khan that there are sufficient instances of illegal and corrupt practice cited in the election petition as well as in the affidavit in 'evidence of the petitioner, and therefore, the election petition is not liable to be dismissed on these grounds. Miss Masooda Siraj submitted that the allegations of illegal and corrupt practice raised by the petitioner are vague and void in nature and that nowhere either in the petition or in the affidavit in evidence (Exh.5) it is specifically alleged by the petitioner that all the alleged illegal acts and corrupt practices were committed with the consent, connivance and approval of the returned candidate, namely, Saleem Zia (respondent No.4). She has placed reliance on the judgment in Election Petition No.84 of 1997 (Muhammad Irfan Khan v. Javed Ahmed Chatari and 20 others, now reported in 1998 CLC 1241). She has prayed for dismissal of election petition on these two issues also.

7. There are several instances alleged in paras. 6 to 30 in the election petition where petitioner has alleged instances of illegal and corrupt practices. These allegations were adopted by the petitioner in his affidavit in evidence. These grounds include allegations of casting of vote by fictitious persons; shifting of 22 polling stations which resulted in confusion and several voters were deprived from casting their votes; that petitioner and his election agent were not allowed to enter into the polling areas; that the polling stations did not have the complete electoral list; that the petitioner was not provided with the complete set of electoral list; that the polling was stopped on various occasions before time at the instance of law enforcing agencies; that the Presiding Officers and other polling staff were biased against the petitioner and interfered in the election process; that the respondent No.4 and his agents had the full support of law enforcing agencies and were having free access; that there was a law turn out; that several worker of Haq Parast (MQM) leadership were arrested prior to the date of election and that the returned candidate has incurred expenses in excess of the rules. Despite all these allegations the petitioner has not produced any other witness to substantiate these allegations. Mere words of the petitioner would not be sufficient to unseat a returned candidate. It is pertinent to note that in his cross‑examination the petitioner has admitted that he had no documentary proof to show that the returned candidate had made excess expenditure during his election campaign. He further admitted, "It is correct that I have not specifically alleged in my election petition that all the irregularities and illegalities were committed at the instance of respondent No.4".

8. In the election disputes it is settled that the burden to prove illegal and corrupt practices lies heavily on the petitioner and that these allegations must be proved with such standard as is required for proving a charge in criminal trial. It is further settled that in case of doubt arising out of the material placed before the Election Tribunal, its benefit must go to the returned candidate (if any reference is needed see Muhammad Saeed and others v: Election Petitions Tribunal West Pakistan and others PLD 1957 SC 91, Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, Syed Saeed Hasan v. Piyar Ali and 7 others PLD 1975 SC

6. In the instant case, there are several allegations which may fall within the definition of corrupt and illegal practices but in order to prove the same more words of the petitioner, are not sufficient. Not a single witness was examined to show that such person was deprived of casting vote. Again, no witness was produced to show that he was deprived to cast his vote due to the sudden change of polling stations. No evidence was led on the point how and at what time and at which polling station the polling was stopped and how and what role the returned candidate and/or his agent contributed towards commission of these illegal and corrupt practices. On the basis of such sketchy, scanty and weak piece of evidence it would be difficult to unseat a returned candidate and whereby to disenfranchise the entire constituency. I am forced by the circumstances of the case to hold that neither the petitioner was able to give full particulars of illegal act or corrupt practice nor was able to prove whatever was alleged by him that it was done with the consent and connivance of the returned candidate or his election agent. This petition is, thus, liable to be dismissed on this ground. Issue No. 3:

9. Burden to prove this issue lies on respondent No. l who has failed to discharge his burden. Nowhere it was suggested as to who were the necessary parties who were not impleaded as respondents in the petition for which the petition is not maintainable. In absence of any evidence on this point. I answer this issue in negative. Issues Nos.4 and 8:

10. It is alleged in para. (ii) anti (iii) of the petition that the District Returning Officer, with mala fide, disturbed at least 22 polling stations and made major changes at the eleventh hour. In support of these allegations, the petitioner has filed Annexure ' B' which is a photo copy of the Gazette of Pakistan, dated 11th January, 199", which shows a Notification bearing No.C/Election/DRO/S/27/97; dated 11th January, 1997, issued by Mr. Zakir Huscain K. Mirza the then District Returning Officer, Karachi (South) under subsection (11) of section 8 of the Act, 1976 informing the general public about the polling stations in respect of Constituency PS‑89 Karachi (South)‑V Provincial Assembly of Sindh. This document has not been disputed by the respondent No.4. 11 Subsection (i) to section 8 of the Ac; 1976 provides that the Returning Officer shall submit to the District Returning Officer a list of polling stations he proposes to provide in a constituency for the purpose of election within such time as fixed by the Election Commission. Subsection (ii) 'provides that subject to the direction of the Election Commission, the District Returning Officer may make alteration in the list of polling stations submitted to him under subsection (i) at least 15 days prior to the date of polling which shall be published in the official gazette. Admittedly, polling was held on 3‑2‑1997. Nowhere it is alleged that the notification Annexure ' B' was not issued on the date as mentioned in this notification which is 11th January, 1997. If the same date is taken to be the date of publication the same was published 22 days earlier to the date of polling. Therefore, in my considered view no irregularity was committed in publication of amended list of polling stations by the District Returning Officer. These issues are answered in negative. Issues Nos. 5, 6 and 9:

12. All these issues pertain to the alleged irregularities committed during the polling. As observed earlier the petitioner has failed to discharge his burden in not producing any tangible, convincing and reliable evidence. In my considered view, mere words of the petitioner on oath are not sufficient to unseat a returned candidate. The criteria of evidence in this respect should be strictly in compliance of the provisions of sections 55 and 68 of the Act, 1976 which is lacking in the instant case. Accordingly, I hold that the petitioner has failed to discharge his burden. Issue No.7:

13. Although petitioner has alleged in the election petition as well as in his affidavit in evidence that there was some irregularity in the voter list, but again no specific instance was quoted by him. Even in his affidavit in evidence, no specific allegations were made as to what is the irregularity which appears in the voter list. No evidence was led by the petitioner on this point. Accordingly, this issue is also answered in negative. Issues Nos. 10 and 11:

14. As a result of above discussion, I am of the considered view that there is no material on record which may entitle the petitioner for any relief or which may lead to declaring the election of the returned candidate to be void. I, therefore dismiss this petition. A copy of this judgment alongwith record be to the learned Election Commissioner in compliance of section 72(i) of the Act, 1976. Q.M.H./M.A.K./174/E Petition dismissed.