1994 PLP 2201 (MLD)

The Election Petition was fixed for 08-00 hours and both the learned counsel were warned that the list of the witnesses being a long one, seventeen to be exact, the case was specially fixed for 08-00 hours so that it may be completed during the day and therefore the parties should be punctual. As a matter of fact, Saturdays are not the working days but due to the long list of the witnesses, the case was specially fixed for today. I have waited for the petitioner since 08-00 hours till now. It is now 08-45 hours. Neither the petitioner, nor his counsel nor any of the witnesses out of a total of seventeen is present. Even so, let the case be kept pending for fifteen minutes. (Sd.) Judge

2. Case has been again called at 09-10 hours.

3. Mr. Rashid A. Akhund counsel of the petitioner, has now appeared. Mr. M.L. Shahani, Advocate is also present.

4. Mr. Rasheed A. Akhund seeks adjournment. He says it is month of Ramazan and the hearing may be adjourned to a date after Ramazan. He also says that the petitioner is a patient of diabetes, was not feeling well and therefore could not arrange the attendance of his witnesses, As for the month of Ramazan, even the last date of hearing (17-2-1994) was ,in the month of Ramazan and no such objection was raised when the hearing was adjourned for today. Besides, what Ramazan has to do with the hearing? Surely, the earth does not stop revolving during Ramazan and it is absolutely no ground for seeking adjournment. As for the sickness of the petitioner, learned counsel concedes that the petitioner is an old patient of diabetes. It is, thus, not a new phenomenon which occurred after 17-2-1994 and therefore it is no ground to seek adjournment that petitioner is diabetic. Secondly all the seventeen witnesses .are petitioner's polling agents. The petitioner should have been in contact with them all the time since the date he obtained their affidavits-in- evidence and no extra special efforts were to be trade by the petitioner to procure their presence before the Tribunal. Besides, if the petitioner is really so much physically handicapped by his diabetes that he cannot even arrange the presence of his polling agents before the Tribunal, what national service he can do if he were to be elected a member of the legislature; his constituency is to go by default because of his physical incapacity. I, therefore, see no justification to adjourn the case as no sufficient ground has been, pleaded by the counsel of the petitioner to seek adjournment. As per clause 4 of the procedure laid down by the Election Commission vide its Notification No.F.1(7)/85-Cord, dated 17th March, 1985 in pursuance of the powers conferred upon it by subsection (1) of section 62 of the Representation of the People Act, 1976, the petitioner was bound to produce all his witnesses for cross-examination on the very first date of hearing. He cannot be suffered to seek adjournment on such flimsy and untenable grounds. I would therefore close the evidence of the petitioner.

5. Learned counsel then states that even though the evidence of the petitioner has been closed, he has a. right to argue on the legal aspects of the case as the election is liable to be declared as null and void even on legal grounds taken by the petitioner. He is allowed to argue but he again seeks adjournment on the ground that he has not prepared the case due to Ramazan and today's date is not for arguments. I have already observed that Ramazan cannot be pleaded for adjournment and if he has not prepared the case it is his own voluntary act and it constitutes no ground for adjournment. Moreover, a perusal of the petition shows that it is exclusively based on factual grounds and no legal point is raised therein which would admit of arguments.

6. On the bass of the averments made by the petitioner in, the Election Petition, the following issues were framed by the Tribunal: (1) Whether any illegal and unauthorized alterations were made by respondent No.1 in the list of the polling stations. If so, to what effect? (2) Whether the' polling scheme prepared by the authorities prejudiced the petitioner. If so, to what effect? ,. (3) Whether the votes of the dead persons or double votes were cast? (4) Whether respondent No.2 was guilty of committing any illegal or corrupt practice? (5) Whether any election officer has committed any illegal pr corrupt practice? (6) Whether there is any such entity as `Hur Mujahid Force'. If so, did it illegally help respondent No.2? (7) Whether respondent No.2 committed breach of section 62 of the Act of 1976? (8) To what relief, if any, is the petitioner entitled?

7. The onus of all these issues is on the petitioner. He has not been able to produce any evidence to discharge the onus of these issues. The affidavits- in-evidence of the seventeen polling agents of the petitioner cannot be taken into consideration since these witnesses have not appeared for cross- examination. As such, all these issues are decided in the negative. As a result, the Election petition it dismissed. By Order of the Chief Election Commissioner. AA./122/E.T. Election petition dismissed.