2001 PLP 448 (YLR)

4. The papers of the petitioners in Writ Petition No. 8058 of 2001 came for scrutiny before the learned R.O. on 3-5-2001. No one objected to the papers. However, with reference to the "certain information" the learned R.O. observed that there are allegation against Muhammad Abdullah Butt, petitioner No. 1 regarding his character and that some cases are registered against him. There is also allegation of his party affiliation and his participation in drinking and dancing party arranged by Aamer Sher Ali where he threw away lot of money. The learned R.O. then, adjourned the case after recording the denial of the said petitioner that he had been drinking in the party. He, however admitted that he was present in the said party thrown by Aamer Sher Ali. On the adjourned date no evidence was found regarding the registration of any case against the said petitioner but according to the learned R.O. some photographs of the "drinking and dancing party" arranged by Aamer Sher Ali were produced before the undersigned. (The order is silent as to who produced the said material). It was observed that said photographs do show that the said petitioner was having bundles of currency notes in his hands and he was throwing the same over the dancer girls. Petitioner No. 1 contended that he had not violated any law by participating in the said function. The learned R.O. then recorded his opinion "that the participation in a drinking and dancing party and throwing of currency notes over the dancer girls is clearly violative of Islamic Injunctions.

5. The said petitioner No. 1 filed an appeal objecting that he was not even confronted with photographs relied upon by the learned R.O. and that photographs do not pertain to him. He denied that he has either drunk or danced in any party. The learned D.R.O. heard the appeal on 10-5-2001 and. dismissed it by means of an order identical to order passed by him as is impugned in Writ Petition No.7972 of 2001.

6. Rana Mashhood Ahmad Khan, learned counsel for the petitioners contends that newspapers or the video film allegedly seen by the learned R.O. are not admissible in evidence and the same could not be made basis of holding the petitioner No. 1 to man of bad character. Learned counsel for Abudllah Butt similarly argues that photographs relied upon by the learned R.O. de not pertain to his client that that he was not confronted with the said photographers.

7. Mr. S.M. Masood, Advocate, appeared for respondent No.3 in Writ Petition No. 7972 of 2001 relies upon the cases of Mohtarma Benazir Bhutto and another v. President of Pakistan (PLD 1998 SC 388), Babu- Muhammad Munir v. Appellate Tribunal of the Election Commission and others (1993 SCMR 2348), Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khan Khosa (PLD 1997 Lahore 250), Islamic Republic of Pakistan Through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad. v. Abdul Wali Khan MNA (PLD 1976 SC 57) and Maulana Ghulam Dastgir and 2 others v. Mrs. Benazir Bhutto (1991 CLC.571) to argue that the newspapers were admissible in evidence and could have been rightly relied upon by the learned R.O. to reject the papers of the petitioner on grounds recorded by him.

8. I had summoned the record. I have gone through the said newspapers as also photographer relied upon by the learned R.Os. in these two cases. Now the concerned petitioners in the two cases have denied that they appeared in the photographs or that photographs pertain to them. Cumulatively the learned R.Os. have relied upon the following pieces of evidence while passing the impugned orders:-- . (i) Two newspapers, dated 27-8-1999 (Sahafat) and 30-8-1999 (Khabrain). (ii) Video Film. (iii) Photographs (iv) Information received.

9. So far as the newspapers are concerned, there in no evidence or for that matter information as to when the event reported in the newspaper took place. No statement or affidavit of the person who had allegedly reported the event in .the newspapers is forthcoming on the record. Now it is settled that newspapers or the newspaper articles are not ordinarily admissible as evidence of the facts stated therein. In the case of Abdul Wali Khan PLD 1976 SC 57 the Supreme Court of Pakistan had observed while agreeing with the learned Attorney General who had relied upon Volume 29 of the American Jurisprudence (Second Edition), page 989 that "it cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available". It was further observed by the apex Court "The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are "business records" or "ancient documents" but because they may well be treated as a trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony". Reference thereafter. was made to the case of Sher Muhammad v. The Crown (PLD 1949 Lah. 511) where newspaper reports were accepted of and articles published in a daily newspaper the contents of which were not denied by the Crown, It was further observed that thus if a person does not avail of the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in newspaper he cannot complain if that publication is used against him.

10. Now with the above observation the Supreme Court relaxed exclusionary rules on the ground of hearsay in respect of reports incidents and events which took place in the foreign country as also of reports of speeches or statement made there if they have not been contradicted. Similarly articles published in foreign newspaper were held to be admissible on the ground of necessity.

11. The facts and circumstances in which the newspaper (foreign) were admitted in evidence are not to be found present in the instant case. I may further note here that there is nothing on record to show that the said newspaper reports is in respect of contemporaneous events and it is certainly not even the plea that but for the said report the event allegedly reported could have been within the knowledge of the public or of local interest.

12. So far as the video film. is concerned there is nothing in the order of learned R.O. as to who provided him with the same. I may refer here to the same judgment of Abdul Wali Khan to state that in the said case tape recorder of speeches of the NAF leaders were admitted only when the Officer recording the speeches was produced. He produced the tape. The tape was run in open Court and Officer identified the voices of persons speaking. What to speak of production of any such person or his affidavit who had made the recording we do not even know who than person is. The video film of course seen by the learned, R.O in isolation was not a piece of legal evidence and could not have been. relied upon by the learned R.O.

13. As to the photographs. Here again the order of learned R.O. is silent as to who provided him photographs as to who had taken photographs who had developed the photographs and as to where are the negatives. Here again photographs could not have been admitted in the evidence without the evidence of alleged photographer and the developer of the film with reference to, negatives thereof.

14. So far as the "information received" is concerned. The impugned orders are silent as to who provided information. This may be source report. Incidentally such-like evidence was also dealt with by the Supreme Court in the said case of Abdul Wali Khan with the following observations:- "Some difficulty, however, will arise with regard to the Intelligence, or source reports of matters which have taken place in foreign countries; but even in such cases, we cannot possibly base our opinion solely upon such reports or accept the facts stated in the reports as true unless there is evidence aliunde to prove the said fact. As observed by the Indian Supreme Court in the case of Habib Muhammad v. State of Hyderabad (1) we agree that a Court can get assistance from police diaries for 'suggesting means of further elucidating points which require clearing up and which points which might be material for the purpose of doing justice', but entries therein cannot 'by themselves be taken to be evidence of any date, fact or statement therein contained.' The material contained in such source or Intelligence Reports may well be of great value so far as executive decisions are concerned, but for the purposes of a judicial enquiry, they cannot be of any assistance at all unless the authorities concerned are prepared to produce the sources themselves for giving evidence before the Court. This the authorities have not done in the present case on the ground that to do so would expose the source to grave personal dangers and destroy the entire intelligence collecting system of the Government. The learned Attorney-General has, therefore, suggested that so far as information collected from foreign countries is concerned, the source material may be accepted by relaxing, if necessary, the rules of evidence, as indicated in our order of the 12th April, 1975, for otherwise, it would amount to asking him to discharge an almost impossible onus. We are not unconscious of his difficulties and, therefore, will allow him to ` draw upon the source report only to the extent that it has received corroboration from the happening of the events mentioned into the report, if those events have been established aliunde by reliable evidence."

15. It will thus be seen that the impugned orders declaring the petitioners to be of bad character or bad repute are not based on any evidence.

16. Learned counsel for respondent No.3 then argues that proceedings before the learned R.O. and D.R.O. are summary in nature. This is true. However, when findings are to be then the minimum requirement is that some legal evidence must be there particularly when the person against whom the findings are ultimately recorded denies the allegation made or raised against by some objector or by the learned R.O. The summary enquiry would not mean that evidence which otherwise would not be admissible can be used against a person.

17. I may note here that in the case of Mohtarma Benazir Bhutto (PLD 1998 SC 388) the Supreme Court relied upon the newspaper reports with reference to non-compliance of judgment passed in the case of Al-Jehad Trust "commonly known as Judges' case" by the said appellant before the apex Court. The facts reported were that some of learned Judges who were to be removed as a result of the said judgment continued in Office and made some press statement which were reported by the newspaper. The said facts were not denied by the said appellant and thus, the report was believed with the observations noted in para.84 of the said judgment at page 492 of the report. In the case of Babu Muhammad Munir 1993 SCMR 2348. It was an admitted fact that Cooperative Society of which the said appellant was a Director defaulted in repaying the deposits of the depositors and was declared to an undesirable society. When it was submitted that the said appellant was a sleeping Director the apex Court observed that questions of facts are to be adjudicated upon in an election petition. In the said case of Sardar Muhammad Jamal Legahri it stood admitted that a sum of Rs.46.08 million owed by the concerned candidate to the ADBP was written off. The only dispute was that the candidate would like to term the writing off of the loan as settlement or agreement. Their lordships noted that the fact remains that the said amount was not to be paid to the bank as a result of said arrangement and it was the case of writing off the loan. In the said case of Ghulam Dastagir and two others 1991. CLC

571. The learned Election Tribunal at Karachi observed that under section 14(3) of the Representation of the People Act, 1976 the Returning Officer has to conduct a summary enquiry which he must undertake if he has doubt about the qualification of a candidate. There is no cavil with the said proposition but the result of the enquiry cannot be based on inadmissible evidence.

18. Rana Mashhood Ahmad Khan, learned counsel for the petitioners in Writ Petition No. 7972 of 2001 has also drawn my attention to the case of Muhammad Ashraf Khan Tareen and another v. The State and another (1996 SCMR 1747) where the Supreme Court observed that the newspaper cuttings have not been proved properly in the manner required by law of evidence. It was further observed that in a criminal case such cutting. cannot be used in favour of the prosecution or in favour of the defence, unless author of the same is examined in Court as witness. We have also referred to the case of Mst. Shakila Bano v. S.H.O., Police Station Model Colony, Malir, Karachi and another (PLD 1995 Kar. 555) wherein it was observed by the Division Bench that a report in newspaper by itself does not amount to conclusive evidence unless the source of report on which news is published is brought before the Court and such source, if a person then is subjected to cross-examination.

19. For all that has, been discussed above, both these writ petitions are allowed. The impugned orders of learned D.R.Os. and learned R.Os. are set aside. The petitioners in both the cases to approach the concerned learned R.Os. who shall proceed further in the matter in accordance with law. It is clarified here that nothing observed herein, in any manner influence the proceedings and decision of any. election petition that may be brought to challenge the election in the said constituency. Copy Dasti. Q.M.H./M.A.K./I-53/L Petition allowed.