1986 PLP 2463 (CLC)

Issues Nos. 1 and 2:

5. The burden to prove issue No. 1 is entirely on the petitioner. 1 have already reproduced the allegations made by the: petitioner against respondent No. 10 in his petition and a perusal thereof, will show that the entire allegations against respondent No. 10 are vague and of uncertain nature. The affidavit in evidence filed by petitioner Zahir Shah also did not spell out any particulars regarding corrupt practices alleged in the petition. The affidavit sworn by Zahir Shah in support of the petition consists of only four paragraphs and it Will be advantageous to reproduce here the affidavit of Zahir Shah filed in the petition. It reads as follows:‑012 "I Muhammad Zahir Shah Khan son of Suntan Room Khan, Muslim adult, resident at 63‑A, Commercial Area, Cattle Colony, Karachi do hereby solemnly affirm and state as under:‑‑ (1) That I am the petitioner in the above matter as such fully conversant with the facts of. the case. (2) That the contents of main petition are true to the best of my knowledge and belief, and for the sake of brevity may be adjusted as part of this affidavit as if the same were reproduced in extension herein. (3) That I say that the entire election campaign of respondent No. 12 was centered around Muhajir issue which fact is evident from the documents filed with election. (4) That I say that such tactics of respondent No. 12 inter alia amounts to corrupt and illegal practice which has materially affected the results of election. (5) That paras. 1 to 4 above is true and correct to the best of my knowledge and belief. (Sd. ) Deponent."

6. A reading of the above affidavit of Zahir Aati which is the only evidence in support of the petition will show that no particular at all has been given with regard to the alleged illegal and corrupt practices of respondent No. 10 during the election compaign. Corrupt practice is defined in section 78 of the Act as follows:‑ "

78. Corrupt practice.‑‑A person is guilty of corrupt practice if, he‑‑ (1) contravenes the provisions of section 49; (2) is guilty of personation or under influence; (3) makes or publishes a false statement‑‑ (a) concerning the personal character of a candidate or any of his relations calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing and did believe, the statement to be true; (b) relating to the symbol of a candidate, whether or not such symbol has been allocated to such candidate; or (c) regarding the withdrawal of a candidate. (4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community, race, caste, Bradari, sect or tribe; (5) knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel , ,‑for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family; or (6) causes or attempts to cause any person present and Waiting to vote at the polling station to depart without voting."

7. The learned counsel for the petitioner contends that the case pleaded by the petitioner will fall under subsections (2) and (4) of section 78 as according to him the respondent No. 10 attempted to influence the voters by propagating that he vas a Mohajir while other candidates (the petitioners) were Pathans. Besides the fact that the evidence led in this regard by the petitioners nowhere mentioned even obliquely that such a statement was made by respondent No. 10 to the voters during his election cortipaign the other material produced in the shape of posters in the petition itself does not show that it was issued or circulated by respondent No.

10. I have already reproduced the affidavit of petitioner No. 1 filed in support of the petition. This affidavit nowhere states that the two Annexures 'A' and 'A/1' were issued or circulated by respondent No.

10. The only allegation contained in paragraph 3 of the affidavit in evidence is that the compaign of respondent No. 10 was entered around Mohajir issue. No explanation has been offered either in the evidence or anywhere else as to what was meant by the expression 'Mohajir issue'. It has not been alleged by the petitioner either in his affidavit of evidence or in the petition that respondent No, 10 propagated that the voters should cast vote in his favour because he is a Mohajir while petitioner was a Pathan. The two posters, namely Annexures 'A' and 'A/1' filed alongwith the petition show that they were not issued by respondent No.

10. They were allegedly issued by some association known as Mohajir Qaumi Movement, Landhi, Korangi Unit. The respondent No. 10 in his evidence categorically denied the suggestion that he was in any way connected with the Mohajir Qaumi Movement who allegedly distributed Annexures 'A' and 'A/1'. On the contrary he alleged that this is a concoction by the petitioners after having lost. the election. No attempt was made to prove that respondent No. 10 was a member of Mohajir Qaumi Movement nor any evidence was brought on record to show that Mohajir Qaumi Movement was authorised by respondent No. 10 to issue the above pamphlets. The petitioner in his cross‑examination was unable to say the source from which he obtained these two posters/ handbills and although he mentioned the name of one person from ‑whom he obtained Annexure 'A' but this person was neither cited as a witness in the list of witnesses filed alongwith the petition nor any attempt was made to summon and examine him as such. Apart from it the petitioner in his cross‑examination categorically admitted that immediately after the elections were over, he addressed a press conference in this regard which appeared in daily Mashriq of 6th March, 1985. He also admitted that before addressing the press conference he had distributed the prepared statement to the reports. He further admitted that press conference was reported correctly by the paper but stated voluntarily that all that he said did not appear. The petitioner also admitted in cross -examination that the written statement distributed by him to the press reporters immediately before addressing the press conference did not contain allegation that respondent No. 10 fought the election on the basis of Mohajir and Pathan issue. From the contents of press conference of petitioner No. 1 which appeared on 6th March, 1985 in daily 'Mashriq' Karachi .and which was addressed after about four days of the announcement of election results, it is quite clear that although several allegations of corrupt practices like bogus voting etc., were levelled against respondent No. 10 but no allegation was made therein that respondent No. 10 incited the feelings of the voters on the basis of Mahajir Pathan bias and thus secured the votes in the election of Provincial Assembly. The petitioner, no. doubt in cross‑examination stated that his press conference was not correctly reported after having made a categorical statement earlier that it was correctly reported, but on further cross‑examination when he was asked to produce the protest lodged by him against the incorrect reporting of press conference he was unable to substantiate his claim. In view of the above discussion, I hold that the petitioner has failed to establish that respondent No. 10 fought the election on the basis of propaganda that he was a Mohajir and that the voters should cast vote in his favour of the petitioners who were Pathans. In addition to it the learned counsel for the respondent rightly contended that particulars as required in section, 5 were not mentioned in the petition and, therefore, under section 63 of the Act the petition is also liable to be dismissed on that account. Relevant portion of section 55 relied by the learned counsel for respondent No. 10 reads as under:‑ "

55. Contents of petition.‑‑ (1) Every petition shall contain‑‑ (a) a precise statement of the material on which the petitioner relies; (b) full particulars of any corrupt or 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 or illegal practice or illegal act and the date and the place of the commission of such practice or act; and (c) the relief claimed by the petitioner."

8. After reading section 55 alongwith section ?8 of the Act there is no doubt that a petitioner is required to state in his petition the full particulars of alleged corrupt practices including as far as possible a statement containing the names of the parties alleged to have committed such' corrupt practice and the date of commission of such practice or act. It is not disputed by the learned counsel for the petitioners that these particulars are neither mentioned in the petition nor in the affidavit of evidence filed by Zahir Shah in the case. There cannot be two opinions that the provisions of section 55 are mandatory in nature as under section 63 of the Act it is provided that the Tribunal shall dismiss the election petition if the provisions of section 54 or 55 have S not been complied with. I am, therefore, of the view that additionally for reason of non‑compliance of section 55(1)(b) this petition is also liable to be dismissed. It may be mentioned here that the learned counsel for the respondent also raised ancillary argument that under section 54 of the Act each one of the aggrieved persons has to file petition individually and two persons cannot jointly file one election petition. It is, however, not necessary to decide this contention of the learned counsel for the respondent in this petition as learned counsel for the petitioner before making his submissions on the main petition made a categorical statement that he does not press his petition with regard to petitioner Malik Munsif and that the petition may be considered only having been filed by petitioner No.l Muhammad Zahir Shah Khan. As a result of the above discussion, I find no substance in this petition which is accordingly dismissed but leave the parties to bear l their own costs. A . A . Petition dismissed.