1992 PLP 2540 (MLD)

(6) Whether corrupt or illegal practices as enumerated in the petition have been committed by respondent No.1 or his election agents or by any other person with his connivance or with that of his election agents, if so, its effect? (7) Whether the result of the election has been materially affected by reason of the failure of any concerned person to comply with the provisions of the Representation of the People Act. or the Rules thereunder or by prevalence of extensive corrupt and illegal practices? (8) Relief.

5. To support his contention, the petitioner examined 10 witnesses and appeared himself as P.W.11, while respondent No.1 appeared as R.W. 1 to. prove his case and did not examine any other witness. It would be beneficial to refer briefly to the statement of these witnesses and the affidavits sworn by them as they would facilitate proper decision over the issues in the case:‑‑‑ P.W.1 Muhammad Ishfaq verified as correct the contents of his affidavit Exh.P.W.l/1. His affidavit is to the effect that the deponent is resident and voter of village Mainai; that it was decided by the elders of the village that female votes would not be polled but contrary to this decision the agents of respondent No.1 managed bogus voting through some ladies, who were brought to the polling station in clandestine manner through back door which was not known to the witness at that time. In all about' 200 votes were polled in favour of respondent No.1 and 36 votes in favour of petitioner so as to justify the fair voting. P.W.2 Haider Khan is resident‑cum‑voter of village Kota, who testified to the correctness of his affidavit which in turn contained the details of the alleged rigging at Polling Station Kota. According to it, about 300 fake identity cards were recovered from Babu Sarwar, an agent of respondent No.1, who was produced before the Polling Officer alongwith these cards but he was let off. Bogus votes were polled with the help of these identity cards. Sajawal Khan P.W.3, while supporting the contents of the affidavit stated that at Polling Station Topi votes were purchased, numerous fake votes were cast and excessive rigging were done. But in spite of complaint the Presiding Officer did nothing about it. P.W.4 Gul Badshah and P.W.9 Ziarat Khan both belong to the same village Gandaf, who in their affidavits complained of double voting at Polling Station Gandaf by the persons who had also voted in different villages having managed to be voters in different villages. Haji Shah Nazar appearing as P.W.5 deposed to the correctness of his affidavit wherein he had mentioned about the suspension of poll at Polling Station Gandaf (Female) for about 4 hours; loss of list of votes of Mohallah Essa Khel, poll of votes of dead persons and double voting. But according to him in spite of complaint no action was taken by the Presiding Officer. P.Ws. 6, 7 and 8 are all enlisted voters of village Topi and in their identical affidavits they have stated that votes were openly purchased by respondent No.1 and bogus votes were polled. P.W.10 Abdul Wadud Khan, a voter of village Topi affirmed the contents of his affidavit wherein he had referred to spurious voting at polling station Topi by the agent of respondent No.1. It was also stated that 2/3 such voters were handed over to Presiding Officer, but no action was taken. The petitioner himself appeared as P.W.11 and verified the contents of his petition and affidavit: Respondent No.1 while making statement in support of his cause admitted the contents of his written statement and affidavit as correct.

6. I heard the learned counsel for both the sides and in the light of their arguments, pleadings of the parties and the evidence referred to above, the issues framed in the case are decided in the following manner:‑‑‑ ISSUE NO.1: This issue can properly be decided with reference to the objection taken in the written statement in this respect and the relevant provision of section 55 of the Act. The violation of the section indicated in the written statement is to the effect that "full particulars of the alleged corrupt or illegal practices or other illegal acts alleged to have been committed including as full statement as possible of the names of the persons/parties alleged to have committed such corrupt or illegal practices". This is almost the reproduction of the text of section 55, clauses (a) and (b) of the Act. If the grounds enumerated in the election petition are judged in the light of the said section, then it would definitely be found vague and lacking in detailing the alleged illegal or corrupt practices. The first ground urged for disqualification of the successful candidate is that 256 votes were cast in favour of the petitioner at Polling Station, Government High School Gandaf No.II but in the official count the Presiding Officer has shown its number as

25. It is manifest that it has not been shown as to how it was possible for the Polling Officer to commit such glaring and illegal act in presence of the election agents and polling agents of the petitioner and the other contesting candidates. It has also not been mentioned as to whether this exclusion was objected to by the agents of the petitioner and of the others and what was the reaction of the Presiding Officer to such objection. Under section 38(6) of the Act, it was obligatory for the Presiding Officer to place valid votes of each candidate in separate packets and such packets should be sealed and should contain a certificate as to the number of the ballot papers. It was also required to have been explained as to whether a certified copy was asked for in term of section 38(11) of the Act and was refused. It should also have been shown as to whether any request was made to the Returning Officer for re‑count at the time of consolidation of the results. In Ground No.2 of the election petition it is stated that in most of the polling stations valid votes of the petitioner were declared invalid whereas the invalid votes of respondent No.1 were declared as valid. This again is very ambiguous and blurred allegation lacking in all material particulars about the fact alleged. Similarly, the study of the other grounds where bogus votes, double votes, purchase of votes etc. have been asserted, no details of the material particulars have been given. Same is the case of the statements of the witnesses produced by the petitioner and the affidavits sworn by them which are annexed with the file. I have already referred to these statements and affidavits and would again refer whereas necessary while giving finding on other issues. It is thus obvious that the provisions of section 55 of the Act have been violated to the above extent and on this score too the election petition is liable to dismissal. ISSUE N0.2: The election petition has been, verified in the end in accordance with law, therefore, the objection on this score is untenable. ISSUE N0.3: No such positive or overt act was pointed out by the respondent which may render the petitioner estopped from filing the present petition. The issue is decided against the respondent. ISSUE N0.4: Additional security had been claimed in terms of section 62(4) of the Act which reads:‑ "At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by way of security in addition to the sum deposited under section 62 as it may think." I do not find the petition that much frivolous, flimsy or immaterial to direct the petitioner to deposit . additional security under the said section. The issue is answered as such. ISSUES NOS 5 6 AND 7: These three issues are of identical nature and can be disposed of jointly. In the earlier part of this judgment as well as while deciding issue No.1, I briefly referred to the relevant grounds in the election petition advanced for disqualification and now I would elaborately discuss the evidence examined and the affidavits sworn in support of the mentioned grounds in order to determine these issues in correct perspective. P.W.1 Muhammad Ishfaq was produced to prove bogus voting of female at Polling Station Mainai. This has been explained in his affidavit in the manner that the electorate of the village held a Jirga and decided that female poll would not be done, but contrary to this decision, the agents of respondent No.1 brought some ladies in a hidden manner through another entrance and managed 200 fake votes in his favour and also cast 36 votes for the petitioner to show justification for his own votes. To say the least, it is ludicrous and amazing. The alleged Jirga, even if convened, had .no right to disentitle the female from their right of franchise, therefore, the decision, if any, of such B Jirga being void could not be enforced. Moreover, how this fake voting was made possible when the petitioner and the other contesting candidates had their polling agents and these polling stations were controlled by the Presiding and other Officers conducting the election. Therefore, no rigging as alleged has taken place in Polling Station Mainai. Haider Khan, P.W.2, Abdul Wadud Khan, P.W.10, are enlisted voters of village Kota and in their affidavits they charged the agents of respondent No.1 for polling fake votes, recovery of 300 bogus identity cards from Babu Sarwar, agent of respondent No.1, and his production alongwith these cards before the Presiding Officer, arrest of 2/3 bogus voters, complaint before the Polling Officer, all turned deaf ears in the matter. It is unbelievable that the Presiding Officer, Assistant Presiding Officer and other polling staff, who were responsible Government Officers and particularly when no prejudice or malice has been alleged against them, they have remained so negligent and indifferent to have allowed these 300 bogus votes to be polled, to have let free the arrested bogus voters, to have avoided to take action on fake identity cards produced before them. However, it is more intriguing as to how the polling agents of the petitioner or for that matter of the other contesting candidates conducted themselves in the matter. It was not shown as to what prevented them to challenge these votes in the prescribed manner or to approach the Returning Officer or even the Election Commissioner for redress of their grievance. This evidence is, therefore, not confidence inspiring and is discarded and consequently the stated corrupt and illegal practices at the Polling Station Kota are not proved. P.Ws. 3, 6, 7 and 8 all belong to village Topi and have been produced to verify the contents of the affidavits which almost contained allegations of similar corrupt and illegal practices of purchase of votes and casting of bogus votes. It is interesting to note that in this polling station petitioner got second position, whereas respondent No.1 obtained third position. Moreover, it has not been indicated as to who were the persons who indulged in these illegal and corrupt practices and at whose behest. These are allegations of very wild and general nature which cannot be accepted in the trial of election petition as it involves charges of illegal and corrupt practices which resembles a criminal trial in its nature. These charges are to be proved affirmatively and benefit of doubt which may arise in the case must be given to the returned candidate against whom these charges are levelled. On the same analogy the testimony of these witnesses cannot be relied without corroboration as admittedly they belong to the party who had nominated the petitioner as their candidate. The corroboration would have been found in examining some Polling Officers or through the votes which had been challenged on this occasion. It is not understandable and particularly when it has not been explained as to why after all polling officers did not stop these foul and dishonest practices and the witnesses were most particularly required to have clarified in their affidavits as y to why the agents of the petitioner and the other respondents kept mum in this respect and allowed acts detrimental to the interest of the person who had reposed confidence in them. P.Ws. 4 and 5 swoe affidavits and appeared in evidence to prove corrupt practices at Polling Station Gandaf where, according to the affidavits, voters resorted to double voting and votes of dead persons were polled. I discard the evidence of these witnesses for the reason stated above, as repetition would be of no avail. In the end, the petitioner appeared as P.W.11 to support the contents of his petition and he himself dealt fatal blow to the already crumbling edifice built by his witnesses when he so stated in cross‑examination, "I had appointed my own polling agents on each polling station in this constituency. I had also constituted and appointed my election agents for this election. I had based my election petition on the information conveyed to me by my polling agents and other individuals. I have not supported my election petition with the affidavits of those persons, but of others". It thus means that those, who were the source of the information of the petition and on whose information the contents of the election petition were based, were withheld from evidence for the reasons known to the petitioner. All these issues are, therefore, decided against the petitioner. Relief: In view of the above discussion, the petitioner utterly failed to prove his case and accordingly, I dismiss this election petition but in the peculiar circumstances would pass no order as to costs. The order and record of this election petition should be forwarded to the Commissioner as required by section 72 of the Act. AA.69/E Election petition dismissed.