P L D 1975 Peshawar 124 (PLP)

SHAH NAWAZ KHAN, J.

Sher Bahadur Khan alias Malik Bahadur Khan appellant and the respondents contested election for membership of the N-W. F. P. Assembly from Constituency No. P. F. 31, Bannu-2. Abdul Samad Khan, respondent No. 1 was declared to have been duly returned from the aforesaid Constituency after the count of votes, as he had secured 18906 votes, being the highest number. Sher Bahadur Khan alias Malik Bahadur Khan secured 6696 votes. The other contestants had secured lesser number of votes.

2. Sher Bahadur Khan alias Bahadur Khan (hereinafter referred to as appellant), challenged before the Election Tribunal N.-W. F. P. the election of Abdul Samad Khan respondent No. 1 through an election petition on the main ground that the latter had committed corrupt practices and bad exercised undue influence. Respondents Nos. 2 to 15 being other candidates were also arrayed as respondents as provided in section 51(a) of the National and Provincial Assemblies (Elections) Ordinance, 1970, hereinafter referred to as Ordinance.

3. Several allegations were made in the petition, but as indicated above, the main charge of the appellant was that respondent No. 1 who was a candidate on Jamitul-Ulema-i-Islam ticket had at various meetings, held in connection with his election campaign, endeavoured to influence the voters in the name of God, His Holy Book and the Holy Prophet of Islam, It is alleged that various speakers who addressed the meetings on the side and in support of respondent No. 1 had entreated the voters to vote for respondent No. 1 in the name of God and the Holy Prophet and had threatened them that they would incur the divine displeasure if they voted for any one except the J. U. I. candidate.

4. Respondent No. 1, in his written statement denied the allegations made in the petition and averred that he was not present at the meetings, as alleged in sub-paragraph (vi), (xi) and (xii) nor he had given his express or implied consent to any speaker to canvass for him in the name of God or Holy Prophet or the Holy Qur'an.

5. Mr. Allah Bakhsh Khan, the learned Election Tribunal, N.-W. F. P. who heard the petition framed the following issues for trial:- (1) Whether respondent No. 1 committed corrupt practices and exercised undue influence as detailed in sub-paras. (ii) to (xxvi) of paragraph No. 1 and paragraph No. 3? (2) Whether respondent No. 1 had given his implied and express consent to the speakers mentioned in the aforesaid sub-paragraphs to canvass for him in the name of God, Qur'an and Holy Prophet? (3) Whether respondent No. 1 was present at the meetings' mentioned in sub-paragraphs (vi), (xi) and (xii) and speeches were made in accordance to his wishes? (4) Whether the petitioner has no locus standi to bring the petition? (5) To what relief is the petitioner entitled?

6. The learned Election Tribunal found Issue I in the negative. Issues 2 and 3 having become redundant in the light of decision on Issue 1, were left un-discussed. Issue 4 was decided against respondent No. 1 because he failed to adduce any evidence to prove allegations on which that issue was framed and in the result the election petition was dismissed with costs by order dated 10-3-1973.

7. This appeal is directed against the said order of the learned Election Tribunal, N: W. F. P. wherein it has been prayed that the impugned order of the learned Election Tribunal he set aside and the election of respondent No. I to the N.-W. F. P. Assembly from Constituency No. PF-31, Bannu-2 be declared illegal, void and of no legal effect. This appeal has been submitted under section 64(3) of the National and Provincial Assemblies (Elections) Ordinance, 1970, wherein it is provided that, any person aggrieved by a decision of the Tribunal, may within 30 days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908."

8. Section 100 of the Code of Civil Procedure makes provision for second appeal from a decree passed in appeal by a Court subordinate to the High Court. Such appeal, is, however, permissible on the following grounds only:- (a) that the decision (appealed against) is contrary to Law or to some usage, having the force of Law; (b) that the decision (appealed against) has failed to determine some material issue of Law or usage, having the force of Law; and (c) a substantial error or defect (committed therein) in the procedure provided by the Civil Procedure Code or by any other Law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

9. In this appeal, as would appear from the perusal of the memo. of appeal, the main, rather the only ground taken for attack on the finding of the learned Election Tribunal is on the question of fact whether or not, the respondent No. l committed corrupt practices and exercised undue influence for securing votes as alleged in sub-paras. (i'1) to (xxvi) of paragraph 1 and paragraph No. 3 of the election petition. The grounds on which appeal under section 100, C. P. C. is maintainable do not appear to be attracting any attention in this case. The petitioner tendered in the witness-box several witnesses to prove the factum of corrupt and illegal practices. Whether those witnesses have spoken the truth or not is also a question of fact and does not involve any question of law or some usage having the force of Law. Mischief of section 65 and or section 67 of the Ordinance would be attractable only if the allegations of fact are proved. Right o appeal in the instant case is neither natural nor inherent, but it has been expressly given by the statute. An appeal under section 100 of the Code of Civil Procedure shall lie only on the grounds mentioned therein and section 101 thereof enacts that no second appeal shall lie except on the grounds mentioned in section

100. Scope of appeal under section 100,! C. P. C. being limited to particular grounds of appeal, the conditions mentioned therein must, therefore, be strictly fulfilled before an appeal as such can be maintained.

10. In the instant case, there is no allegation that the learned Election Tribunal has failed to apply the provision of any Law or any legal principle. There is also no allegation that the learned Election Tribunal either failed to understand the issue or the matter in dispute before him or that he had misconceived the issue or the true questions in controversy. The learned Election Tribunal arrived at the findings of fact from the evidence tendered before him. There is also nothing on record to indicate if the finding of the learned Election Tribunal is based on no evidence or in disregard of the evidence or on inadmissible evidence or assumption of facts. Neither In the election petition nor in the memorandum of appeal, there is any allegation that learned Election Tribunal had either refused to draw any Inference from the proved facts or has drawn an inference which could not be drawn or warranted by the facts. An inference of fact is distinguish able from an inference of Law. Where from evidentiary facts and documents an inference is drawn as to the existence or non-existence of another fact, then the inference is one of fact and the question as to the inference is a question of fact.

11. Evidence on the file has been minutely discussed by the learned Election Tribunal and it was not stated at the Bar that the case suffered in any way from misreading or mis-statement of evidence. The main allegation of the petitioner-appellant made in the election petition which he tried to substantiate through evidence, is that the respondent No. 1 and his supporters while canvassing votes for respondent No. 1, made speeches at various meetings and addressed congregations wherein they tried to impress upon the audience that the Ulema were the heirs of the Holy Prophet and that JUI was the only party of the Muslims and that any body who voted for a candidate other than that of the JUI shall be exposed to flames of Hell in the World Hereafter. Further that the flag of JUI was the flag of the Holy Prophet and that JUI would enforce Shariat Laws and that those who did not vote for that party would become Kafirs. Evidence tendered by the petitioner in proof of such allegations consists of statements of those who had allegedly attended those meetings and had heard the speakers in those meetings and also the recorded speeches of those speakers taken down by the police in the discharge of routine duties. That evidence has been fully discussed and extensively quoted in the impugned order of the learned Election Tribunal. It would therefore, be an exercise in futility to re appraise the same. Testimony of the oral witnesses has been rejected by the learned Election Tribunal for very cogent reasons and the Police reports of the meetings relied upon by the petitioner-appellant have been rightly held by the learned Election Tribunal to be practically of no advantage to the petitioner-appellant, hence not sufficient to attract the mischief of section 65 and or section 67 of the National and Provincial Assemblies (Elections) Ordinance, 1970. Consent or connivance of respondent No. 1 or his election agents has not been proved. In that view of the matter, the conclusion of the learned Election Tribunal appears to be perfectly justified.

12. Undoubtedly most of the speakers were leaders of JUI or workers connected with that party, in one form or the other, but in Law a candidate cannot be burdened with responsibility unless there is evidence to show his or his election agents connivance or consent. In the instant case neither the respondent No. 1 nor any one of his election agents has been C directly accused of committing corrupt or illegal practices. In the absence of any categorical assertion in the petition itself, that, the various speakers used objectionable language in their speeches with the consent or connivance of respondent No. 1, such speeches could hardly be of any avail to the petitioner-appellant.

13. In the petition dated 25-1-1971, which the petitioner-appellant submitted before the Election Tribunal, it is only in sub-paragraph (xii) of para. I, that respondent No 1 is alleged to have personally addressed a meeting held at Basya Khel on 10-10-1970. Nowhere else in the body of the petition there is any allegation that respondent No. 1 had himself addressed any other meeting or congregation in connection with electioneering campaign. Record of the speeches made by the speakers in that particular meeting was however, not made available to the learned Tribunal for consideration. It was therefore, rightly concluded by him that no reliance could be placed on the oral testimony of Muhammad Sarwar (P. W. 8) the solitary interested witness, who was cited and tendered, by the petitioner, to testify in the witness-box that Abdul Samad Khan respondent No. 1 had also addressed that meeting. Moreover his version is at variance with the allegations made in sub-para. (xii) of para. 1 of the petition. It follows that none of the speeches made at various meetings and congregations to which exception o has been taken by the petitioner-appellant in the election petition, was mad either by respondent No. 1 or by any one of his election agents, duly appointed, within the meaning of section 21 of the Ordinance.

14. Appraisal of the evidence by the learned Election Tribunal is free from fault and in that regard learned counsel for the appellant has no grievance. It is provided in section 52(1)(b) that every election petition shall contain full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt err illegal practice or illegal act and the date and place of the commission of such practice or act. Principles governing the trial of election petition have been enunciated in the judgment of the Supreme Court of Pakistan as reported in P L D 1957 S C (Pak.) 9 1, wherein it is laid down that- "where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues fall particulars of those corrupt practices." It is further laid down therein 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."

15. The recorded speeches of various speakers relied upon by the petitioner-appellant in support of his allegations in the petition, beside being inconclusive give a statement of general nature regarding the election campaign of the J. U. I. The petitioner-appellant has failed to give full particulars of the corrupt practices alleged by him in the petition. He also failed to strictly prove those allegations. He was required to prove the exact words attributed to the different speakers in the petition but as indicated above most of the allegations made by him in the petition are at variance with the evidence he produced in proof thereof.

16. Adverting to yet another noteworthy aspect of the case, in the Annexure, pages 81-82, details have been given by the petitioner-appellant of the dates and venues of meetings/congregations at which various speakers delivered their speeches, which have been made basis for the election petition At serial No. 1 thereof it is shown that on 10-10-70, one meeting was held at Jinnah Park, Bannu City and another at village Basya Khel. As indicated above, it was only in the Basya Khel meeting of that date where respondent No. 1 Abdul Samad Khan had allegedly delivered a speech. In the remaining meetings detailed in the annexure Abdul Samad Khan respondent No. 1 has not been mentioned to have delivered any speech. The expression "candidate" has been defined in section 2 (iii) of the National and Provincial Assemblies (Elections) Ordinance 1970 to mean a person proposed as a candidate for election as a member. According to the election schedule of the last general elections, 19-10-1970 was the date fixed for the filing of nomination papers, which means that on 10-10-70 when Abdul Samad Khan respondent 1 had allegedly made an objectionable speech at Basya Khel, he was not a candidate within the meaning of section 65 of the said Ordinance. In that view of the matter all the speeches made before 19-10-1970 shall stand eliminated from consideration for the relevant purpose. Out of the speeches made on or after 19-10-1970 to which exception has been taken by the petitioner-appellant, speeches made at the meetings at serial No. (xvi), (xviii), (xx), (xxiii) and (xxvi), were made at places outside the Constituency of the parties with the result that the prevalence of corrupt or illegal practice of any in those meetings did not and could not be deemed to materially affect the election of the parties in the instant case. Perusal of the impugned order of the learned Election Tribunal also discloses that the learned counsel for the petitioner during the course of arguments had conceded at the Bar before him that most of the allagations contained in the petition pertain to the places which were beyond the Constituency of the parties and that he would, therefore, not press those allegations.

17. The expression, "the result of the election has been materially affected" came under scrutiny in various reported cases in Pakistan as also on the other side of the border. In Indian Election Cases by Sen & Podder (1951 Edition) the expression has been explained as follows : "In order to prove that the result of the election was materially affected, it is not necessary to prove that the successful candidate would not have been elected but for the practice found to have been corrupt and that it is sufficient if it is proved that his majority would have been substantially reduced . . . . . . . . . . . . "that the casting of these votes materially affected the difference between the totals polled by the candidates." In the Law of Election and Election Petitions, by Pandit Nanak Chand (1937 Edition) at page 533, it is observed that, the expression, "the result of the election had been materially affected", means that, the majority of the returned candidate would have been materially reduced if he had not resorted to such corrupt practices". In Amir Abdullah v. Muhammad Yaqub etc. (P L D 1967 Lah. 722) it has been held that- "mere commission of corrupt or illegal practice would not visit him (returned candidate) with the consequence of his election having been declared void. It is to be proved before succeeding in having an election set aside that not only a corrupt practice was current but that it was of such a large scale that it could reasonably be said to have contaminated the entire election." In Ulan Riaz Ahmad v. Election Tribunal, Sargodha Division (P L D 1966 Lah. 839) (p. 1345, para. 8 citation (g) relevant), it was held that- "a tribunal cannot resort to general principle of Election Law and declare an election of the returned candidate to be void, if a corrupt car illegal practice has been committed by the returned candidate to be void, if a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of his candidate or his election agent without a finding that the result has been materially affected." The Supreme Court of Pakistan also took similar view in a case reported in P L D 1968 S C

331. It follows that there is sufficient Case-Law to the effect that indulgence in corrupt or illegal practice would not per se render the election as a whole void unless it is affirmatively established that the result of the election has been materially affected by reason of the prevalence of such practice.

18. The expression "corrupt practice" has been defined in section 75, "illegal practice" in section 75 and "undue influence" in section 79 of the Ordinance. Strict proof is required of the charges of corrupt practice which are quasi-criminal in character. The burden of proving a corrupt practice lies upon a person who alleges it.

19. As rightly observed by the learned Election Tribunal, the recorded speeches on which great reliance was placed by the petitioner have been of little assistance to him whereas the witnesses produced by him have in no way supported the allegations made by him in the petition. The partisan character of the witnesses who deposed from their memory has been fully exposed in the discussion of the impugned order of the learned Election Tribunal.

20. Reference to religion or the Ulema claiming to be the successors of the Holy Prophet or their promise to have an Islamic Constitution for the country or that a date tree was a symbol of Islam or that the flag of J U I was the flag of the Holy Prophet were not irrelevant in the contest of the Elections held in 1970 as one of the principle objects in view was the framing of a constitution for the Court wedded to Islamic Ideology. Value of the recorded speeches in this case was further minimized as it was admitted that notes of the speeches prepared and placed on record did not contain verbatim record of the speeches and that only substance, as understood by the scribe, was reduced to writing. Words attributed by the oral witnesses to various speakers in the speeches made at various meetings are to a great extent different from those stated in the allegations made in the petition. In the judgment of the Supreme Court of Pakistan reported in P L D 1957 S C (Pak.) 91, it was held that no fresh J charge or instance of a corrupt practice could be added at the trial.

21. As a result of the above discussion, we are of the view that the petitioner-appellant has miserably failed to prove his allegations set forth in the election petition either by recorded speeches or through oral evidence, as such his petition was rightly dismissed by the learned Election Tribunal. We, therefore, find no substance in this appeal and accordingly dismiss the same with costs. S. A. H. Petition dismissed.