2004 PLP 381 (YLR)

63. Dismissal of petition during trial-- The Tribunal shall dismiss an election petition, if-- (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.

67. Decision of the Tribunal.

(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order-- (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting to have been duly elected; or (d) declaring the election as a whole to be void. ,

70. The Tribunal shall declare the election as whole to be void if it is satisfied that the result of the election has been materially affected by the reason of-- (a) the failure of any person to comply with the provisions of the Act or Rules; or Perusal of section 55(1(a) and (b) of the Act, reproduced above, will reveal that it is enjoined upon an election petitioner to state precisely the material facts on which he relies so also he is required to state full particulars of corrupt, illegal practice or other illegal act and in case of non-compliance his petition shall be dismissed by Election Tribunal under section 63 of the Act, reproduced above. It is, thus; abundantly clear that provision of section 55 of the Act is mandatory as the non-compliance or, to say, disobedience thereof entails serious PENAL consequences in the shape of dismissal of petition. Before it is considered whether petitioner has made or not the compliance of aforementioned provisions of law, in my view, it will be advantageous to understand as to what is meant by material facts and particulars. In case of Munubhai Namdlal Amarsey v. Popatial Manilal Joshi AIR 1969 SC

734. It was observed, rightly so, as follows:-- "Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. " I have gone through the election petition. Relevant grounds taken by petitioner in the said petition in support of his case are summarized in the foregoing paras. Perusal of entire material contained in the election petition, viewed in the background of above dictum, reveals that petitioner' has failed to furnish material facts on which he relies so also he has failed to furnish full particulars with names, places and the time of corrupt or illegal practice or of any other illegal acts as alleged by him to get a direct verdict in his favour. During the course of his arguments learned counsel for petitioner, too, failed to refer to an allegation, to say, a material fact/particulars in the petition to come up to the above standard of test. In the above context, it may be elaborated that in case of allegation that respondent No. l persuaded voters to refrain from voting for petitioner it need be stated as full a statement as possible, to say, with exactness the manner, time and the names of voters who were restrained from voting. In case of allegation of hiring or illegal use of vehicle to carry voters, it need be clearly stated with particulars and instances i.e. the number, make, model and colour of vehicle. Besides the name/names of voters and places from where they were taken; and if \so, to what Polling Station, be also stated. In case of allegation that polling staff favoured respondent No. l by allowing bogus or unauthorised persons to cast votes, the name of, such polling, staff with name of bogus or unatuhorised person with place where the latter was allowed, be mentioned in same manner. Similarly, where polling staff are alleged to have been hindered in their performance or polling staff were compelled to give performance of choice of respondent No.1 and/or of his workers so also where it is alleged that polling staff favoured respondent No-1, same need be mentioned with name of such staff so involved or affected spelling out the manner thereof. In case of failure of any person (by name) to comply with provision of Act and the rules, it be clearly stated the manner in which the election was materially affected. Neither petitioner has named in the petition any voter nor he has mentioned any time when such voter fell prey to the victimization of respondent No.1 or any of his men or worker latter, too, not named. He has also not examined any such voter to support by saying that he was so victimized, 'if so, in what manner, with any date and time. Petitioner has also not given the make, model and colour of any of the vehicles so also he has not mentioned the name of any voter who was carried to and from any polling station. Besides, petitioner has neither given name of any of polling staff who according to him indulged in the wrongful acts or was hindered in his performance as alleged by him nor any instance with reference to any specific voter or person with any time and polling booth has been mentioned by him. Petitioner has not been able to mention name of any particular polling staff who assisted the respondent No.1 or acted under compulsion of respondent No.1 or his workers. He has also not mentioned the names- of persons to whom being under age ballot papers were issued or names of those to whom either ballot papers were issued when they refused or failed to produce their identity cards so also he has not specifically mentioned the name of any elector or person whom ballot papers were issued and/or they were allowed to cast votes without stamping or recording numbers of their identity cards and that of Elector Rolls on the counterfoils of such ballot papers. He has not named any Presiding Officer who issued ballot papers without ascertaining identity of any elector, did not stamp the ballot papers or failed to record on the counterfoils the numbers of electors identity card and that of elector rolls. It shall be pertinent to mention that petitioner has made allegation regarding failure of polling staff to comply with provisions of the Act and Rules, such as consolidation of result took place without notice, no number of ballot papers received and used .were disclosed so on so forth but has failed to particularize the instance as to how his election was materially affected. Coming back to the evidence led by the petitioner, it may be stated that in his affidavit-in-evidence, petitioner has repeated vaguely the allegations in the same manner. In 'fits cross-examination, though, he has stated that the allegations made in his affidavit-in-evidence in respect of illegality and other wrongful acts are based on his personal observation, yet in his cross-examination he has admitted to have not mentioned therein-- (i) name of the voter who was not allowed to cast vote at any polling station; (ii) the name of any voter with reference to any particular polling booth where respondent No.1 is alleged to have been stopped from casting vote; (iii) name of any particular female who was stopped by respondent No. 1 or his workers from casting her votes; (iv) name of any voter who was allowed to cast vote without N.I.C. or the name of any such person being below the prescribed age; (v) the name of any particular voter whose number of N.I.C. was not recorded on the counter file of ballot paper; (vi) the name of any particular person who was compelled to put stamp on election symbols of kite; (vii) name of any particular person who was allowed by polling agent unauthorizedly to vote for respondent No. l; (viii) the name of any particular polling station where workers of respondent No. l compelled the voters to cast vote in favour of respondent No. l; (ix) not cited in para.(8) of affidavit-in- evidence any instance regarding disturbance and annoyance caused to voters by respondent No.1 in respect of polling station mentioned in the said para. i.e. the polling stations mentioned in ground No-1 in the foregoing paras.; (x) name of his election agents whose letter were put into pieces by workers of respondent No. I except Naseem Ahmad Khan Ghori from whom it is stated workers of respondent No. l snatched his appointment letter and put the same into pieces. At is, however, strange that Naseem Ahmed Ghori has, in his evidence, not supported the petitioner in his above statement; (xi) name of any particular staff who assisted respondent No.1 in election exercise or the polling station/polling booth where the staff detailed by Election Commission was found assisting respondent No. l in his election work; (xii) name of any polling booth where he or his agents asked the polling staff to show to them number of ballot books which were to be used in the polling so also the name of polling booth where he or his polling agents required the concerned officer for providing statement of count and were not supplied the same; (xiii) the name of polling station where the ballot papers were snatched; (xiv) that the exercise of casting vote continued beyond prescribed time; (xv) not particularized any polling station where the respondent No.1 or his workers and his polling agents committed any wrongful act in any manner within prohibited limits; (xvi) any specific date on which he made complaints to responsible officer on telephone. Petitioner has, in his cross -examination, admitted that he did not receive any complaint in writing of any voter of above constituency rather admitted that none of his election agents made any complaint to, him in writing. He has admitted that he cannot give name and number of persons who were employed by respondent No.1 to put up opposition against him so also he has admitted that he cannot give the number of vehicles which were hired by respondent No.1 as according to him the vehicles so used by respondent were without any number plate. His petition and affidavit-in-evidence, however, does not reveal that he has mentioned therein that the vehicles were without number plates. He has admitted that on his contact with the Returning Officer, he was told that the Town Police Officer was directed on telephone to inform him about consolidation of result which took 'place in presence of Advocates from whom signatures were obtained on relevant papers so also he has admitted that on the third day of elections he had made such complaints in writing to District Returning Officer. Petitioner has produced copies of applications addressed to District Returning Officer, N.A.-256 Karachi, as Exhs.2/1 and 2/3 wherein he has requested for recounting. In the latter document he has also requested that no notice for consolidation of results be issued or the results be consolidated. He has neither examined the District Returning Officer nor any other officer/official to indicate that his applications remained without any orders passed thereon. Be that as it may, in the first mentioned document, as is evident therefrom, no specific reference to any particular instance has been mentioned nor any name of voter or that of any of polling staff has been mentioned therein so also no specific time and place of occurrence of any act, of wrongful act or omission has been cited herein to make his request appear on sound footing. In the other document, he has stated no reason, at all in support of his prayer. It is also strange that during the course of trial, petitioner did not make any request for recounting of votes polled at any polling station/polling booth. I have already mentioned in the forgoing paras. that petitioner has not stated as to how his elections was materially affected on account of non-compliance of provision of the Act and the rules framed thereunder. Petitioner has examined P.W. Ejaz Ahmed in support of his case. In his affidavit-in-evidence, he has, too, vaguely repeated the allegation in the same shape and manner as have been stated by petitioner in his affidavit-in-evidence. ' He has stated that he was a contesting candidate for Constituency PS-120. It is strange that in his affidavit-in-evidence he does not say that. Respondent No.1 had employed a number of persons to oppose the petitioner; instead, he has stated that such workers were employed to oppose him (P.W. Ejaz Ahmed) so also in the same tenor he has stated that polling staff hindered his election. It seems that while furnishing his affidavit-in-evidence he has even not cared to go through the same to know if he gave evidence in respect of what took place about election of petitioner or it related to his own elections: Be that as it may, his presence at all polling stations of Constituency N.A.-256 to perceive himself alleged wrongful acts is required to be proved with accurate and convincing evidence since he was himself a candidate and in natural and normal circumstances he is presumed to be busy wholly devoted to his own election process. In case he deposes about the happenings of any act or omission taking place at other polling stations of Constituency N.A.-256, he must prove that it was possible for him to be present there and/or could watch what was taking place at those polling stations. No such direct or corroboratory evidence is available. He has admitted that he is Joint Secretary of Jamiat-e-Ulam-e-Pakistan from Shah Faisal Colony a component part of M.M.A. to mean belonging the same party of petitioner in which case, all the more, heavy burden lies on him to state the facts accurately to support petitioner in which, it is explicit that he has failed. He has admitted that he has not filed any election petition against the returned candidate from the constituency for which he contested elections. Second witness of petitioner is P.W. Naseem Ahmad Khan Ghori. He, too, has made the allegations in his affidavit-in evidence in a -vague manner i.e. he has not named either any voter who was victimizes or name of any person who was unduly allowed to vote. He has also, not given name of any of polling staff who either extended help to respondent No.1 or whose performance was interfered by respondent No.1 or any of his workers. It is strange that, in his affidavit-in-evidence, in para. No.2, he has stated that petitioner had filed his (P.W. Naseem Akhtar Ghori's) nomination paper for N.A.-256, Karachi East-XVIII and had paid nomination fees as a candidate of Motahida Majlis-e-Amal, Pakistan. Though it is not the case of petiti9xter that his witness was one of contesting candidates. He is also not respondent in the above petition as every contesting candidate as of mandate is to be joined as respondent: Similarly, in para. No.5 of his above affidavit, he has stated that the respondent No.1 was guilty of corrupt and illegal practices as he called upon and persuaded voters to refrain from voting for Min (Naseem Ahmed Khan Ghori). In para. No.6, he has stated that respondent No. l had employed a number of persons throughout election to oppose him (Naseem, Ahmed Khan Ghori). In para. No.7 also he has stated that polling staff was compelled to hinder his elections. It seems that this P.W. has, too, made wrong statements in his affidavit-in-evidence in the same manner in which P.W. Ejaz Ahmed stated his evidence. Besides, he, claims himself to be an elector and polling agent of electoral area of Polling Station No. 17 yet he has failed to give his serial number in the relevant electoral list though claims to have cast his vote so also he has, in his evidence, made at places mistakes in describing the number of the above polling station. No documentary proof has been produced about his appointment as a polling agent. He has admitted that he cannot give name of any person who was hired by respondent No.1 for his election campaign so also he has admitted that he did not make complaint in writing against any kind of illegal and wrongful act committed by respondent No.1 or his worker during the course of election exercise and in the same breath, states that he made such complaints to election agents of petitioner. He has admitted that in the past as well the candidate of M.Q.M. came out as winning candidate. Lastly, he has admitted that he, too, belong to Jamiat- Ulem-e-Pakistan, a component part of Motahida Majlis-e-Amal hence heavily burdened to be accurate in his evidence in which he has failed. Third and last witness examined by the petitioner is P.W. Muhammad Saleem Qureshi. He has stated the contents of his affidavit in the same manner, as have been stated by P.W. Naseem Ahmad Khan Ghori he, too has not mentioned any name of voter who was victimized or was unduly favoured by any of polling staff so also he has not named any polling staff who was found favouring respondent No. l not complying with the provision of Act or Rules he has not named of any polling staff who .was interfered in performance of his duty. He claims to be election agent of petitioner but no document has been adduced to support this contention. In his cross-examination, he has admitted that he cannot give name of any worker who was busy working on the side of respondent No. l so also he has admitted that he cannot give registration number of vehicle which were being used by respondent No.1 or by his workers on the day of election. He has admitted that on the day of polling he did not make any complaint to any staff' responsible for elections that the polling station set up for female voters were taken over by worker of respondent No.1. In view of above, my observation about his evidence is same as that of other two above-named witnesses examined by petitioner. It may be stated that petitioner has not examined any of polling staff or any other officer responsible to support his case so also no official record has been summoned or produced in support of his case. Before giving findings on the above issues, it will be pertinent to refer to case of Capt. Syed Muhammad Ali v. The Returning Officer P.S. 89, District Court, Karachi and 11 others reported in 1999 CLC 2039, wherein it is observed:-- "

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 Petition Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91, Muhammad . Yousaf Khan Khattak v. S.M. Ayub and 2 others PL,D .1973 SC 160, Syed Saeed Hasan v. Piyar Ali and 7 others PLD 1975 SC 6. " Also it has been observed that:-- "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. " Coming back to whatever has been dilated upon it may be stated that it is quite apparent that the evidence of petitioner and his witnesses discussed as above is vague, sketchy and devoid of any substance to inspire confidence. To sum up petitioner has failed to prove his case in whatever form advanced by him. He has also failed to furnish material facts on which he relies so also he has failed to provide full particulars with names, date and place, this petition is hit by section 55(1)(a) and (b) of the Act, and is not maintainable. Accordingly, .the above issues are answered against the petitioner. In view of the discussion on Issues Nos. l to 4 as above, petitioner is not entitled to any relief. Upon above discussion, this petition merits no consideration and is dismissed accordingly with cost to be paid to respondent No.1. Office is required to communicate this order to the Chief Election Commissioner and also forward the entire record within terms of section 72 of the Act. H.B.T./M-578/K Petition dismissed.