2000 PLP 1224 (MLD)

‑‑‑‑Ss. 52 & 55‑‑‑Election petition‑‑‑Petitioner, an unsuccessful candidate had called in question election of returned candidate on allegations that the returned candidate was defaulter of Bank loan; that he had failed to disclose in his nomination papers certain properties that he owned; that properties disclosed by returned candidate were undervalued and that he had committed corrupt and illegal practice in the election‑‑‑Petitioner not only had not led any evidence to prove allegations against returned candidate but also did not mention them in his examination‑in‑chief and only reference to said allegations was made by him in form of suggestions made to returned candidate who had appeared as his own witness‑‑‑Returned candidate .had denied allegations‑‑‑Effect‑‑‑Incumbent upon petitioner to prove allegations he had made in his election petition, but on denial of returned candidate, petitioner having failed to produce any evidence in his support, issues regarding allegations were decided in the negative‑‑‑Testimony of witnesses produced by petitioner regarding purchase of votes by returned candidate was highly doubtful‑‑‑Such testimony regarding purchase of votes could not be taken into account because petitioner in his election petition had not given any detail of votes allegedly purchased by the returned candidate‑‑‑In absence of any evidence regarding any corrupt and illegal practice allegedly committed by returned candidate in election, election petition was dismissed. This Election Petition has been filed by Malik Muhammad Ayub Khan Bhattani, a candidate for the election to the N.‑W.F.P. Constituency No.PF‑57, Tank held on 3rd February, 1997, against the returned candidate Habibullah Khan Kundi. The returned candidate, respondent No. l herein, had polled 10372 votes whereas the petitioner was the runner‑up securing 6958 votes. There were eight other contesting candidates, who were impleaded as respondents in the Election Petition but had polled insignificant votes. Respondent No. l alone contested the Election Petition and filed his written statement.

2. During the initial hearing of the Election Petition, before the evidence was recorded, two applications were made, one by the petitioner and the other by respondent No.

1. The petitioner prayed for examining certain witnesses not named in the list of witnesses filed with the Election Petition, and placing on file certain documents, whereas respondent No. l in his application prayed that the Election Petition be dismissed summarily because the main allegation against the respondent was that he was a defaulter and had concealed certain facts in his nomination papers but since section 76‑A of the Representation of the People Act, 1976 (hereinafter referred to as the Act), which was added by an Ordinance had lapsed, the Election Petition could not proceed. Both these applications were dismissed by this Tribunal by Order, dated 20th October, 1997 and the parties were allowed to adduce evidence on the available record.

3. From the controversies arising out of the pleadings of the parties the following issues were framed:‑ (1) Whether petitioner has a cause of action? (2) Whether the election petition is maintainable? (3) Whether the petition is liable to dismissal on the ground that it is accompanied neither by list of witnesses nor supporting affidavits of the witnesses? ' (4) Whether respondent No. 1, his spouse and children have defaulted in repayment of loan of Rs.4,29,06,750, or any other amount, to the Agriculture Development Bank in respect of their project, called Agro Oil Extraction Industries Ltd. D.I. Khan, and therefore incurred disqualification? , (5) Whether respondent No. l was disqualified from contesting the election on account of being defaulter of loan due to Agriculture Development Bank of Pakistan for Rs.262,40,000 and National Bank of Pakistan for Rs.15,00,000? (6) Whether respondent No. l in his declaration with the nomination paper had undervalued his: (a) Bungalow No. 220, Sector 7, Street 21, Islamabad, (b) 209 Kanals of agricultural land known as "Kundi Gardens" D.I. Khan, and (c) Two vehicles Toyota Land Cruiser Registration No.PRU‑777 Model 1991 and Toyota Land Cruiser Registration No. DNB‑99 Model 1991, and to what effect? (7) Whether respondent No.l had failed to disclose and declare in his nomination papers: (a) house owned at Gul Imam, Tank, (b) agricultural land of 400 Kanals at Mamrez Jamal, Tank, (c) 12000 Kanals at Ahmad Nagar, Tank, (d) One bungalow No:53, Sector G‑2, Hayatabad, Peshawar, (e) Four Kanals plot at Hayatabad and (f) residential apartment in U.K. and to what effect? (8) Whether respondent No. l by using his influence and illegal practices managed to poll bogus votes and converted the result in his favour at polling station of Government High School. Pai, Gul Imam? If so, its effects? (9) Whether respondent No. l conducted illegal practice of purchasing votes? If so, its effects. (10) Relief. The petitioner besides appearing as his own witness produced four witnesses whereas respondent No. l alone testified for himself. The evidence is discussed issue‑wise. Issues ~os.4. 5, 6 and 7.‑‑‑ '

4. These issues are taken together because they are based on the allegations made in the Election Petition that the respondent No.l was a defaulter of bank loans and that he had failed to disclose in his nomination papers certain properties that he owned and that the properties he did disclose were undervalued. More specifically, Issue No.4 relates to default in repayment of loan of Rs.4,29,06,750 taken from the Agriculture Development Bank. Issue No.5 again is based on the allegations of a loan obtained from the Agriculture Development Bank amounting to Rs.262,40,000 and Rs.15,00,000 from the National Bank of Pakistan which were not repaid. Issue No.6 relates to undervaluing of respondent No.l of a house in Islamabad, 209 Kanals of Agricultural Land in D.I. Khan.and two Toyota Land Cruisers. Issue No.7 was framed on the allegation that the respondent No.l had failed to disclose in his nomination papers certain properties, namely, a house in Tank, 400 Kanals of agricultural land in Tank, another 12000 Kanals of land in Ahmad Nagar, Tank, one bungalow at Hayatabad, Peshawar,. four Kanal plot at Hayatabad and residential apartment in U.K.

5. The petitioner did not lead any evidence to prove the allegations which the above issues were framed. Surprisingly, he did not even mention them in his examinaiton‑in‑chief. The only reference to the allegations is made in the form of suggestions made to respondent No. l who had appeared as his own witness. The suggestion regarding undervaluation was denied. So also was the suggestion that respondent No. l was a defaulter of any Bank loan. He also denied that he had an account at the National Westminster Batik, Zurich. It may, however, be stated that there was no allegation in the Election Petition regarding foreign bank account of respondent No.

1. Respondent No. l also denied in cross‑examination that he owned a house in Hayarabad. Issue No.8.‑‑‑

7. This issue has been framed on account of the allegations made in para 6 of the Election Petition that on the interference of respondent No. l his close associate Shad Muhammad Khan was posted at the last moment as Presiding Officer of Polling Station Pai, to replace one Gul Imam and that the Presiding Officer managed to poll bogus votes produce in favour of respondent No.

1. Apart from examining the Returning Officer, Zafar Iqbal, Senior Civil Judge (P.W.4) the petitioner did not any other evidence in support of the allegation. The witness in his examination‑in‑chief stated that he had no knowledge that the posting of the election staff was changed a day or two before the polling day. He brought the sealed election material pertaining to Polling Station Pai. According to the statement of Zafar Iqbal a total of 588 votes were polled out of which 327 were polled in favour of respondent No.l. and the petitioner ‑secured only 12 votes. However according to counterfoils books only 583 ballot papers were issued. Some of the election material pertaining to the National Assembly Election was also found in the bag containing the election material of the Provincial Assembly Election. Thus, from the evidence of P.W.4 the only irregularity appears to be the discrepancy of five votes between the total number of votes polled and the number of ballot‑papers issued. Though there is no explanation forthcoming for this discrepancy but in the absence of any evidence that any corrupt and illegal practice had been committed at this Polling Station by or on, behalf of respondent No. l the five unexplained votes would not make any difference in the ultimate result of the election as respondent No.l had won the election by more than 3000 votes. This issue is also decided in the negative. Issue No.9.‑‑‑

8. This issue has been framed on the basis of the allegation made in paras. 7 and 8 of the election petition of corrupt and illegal practice during the election by respondent No.l. It was alleged that respondent No.1 had collected a number of identity cards from the voters which were found in the boot of the car of a close relative of respondent No. l and that the agent of the said respondent purchased votes at different Polling Stations for Rs.200 to 1,

000. In support of these allegations the petitioner examined three witnesses, Alamgir P. W. 1, Halim Khan P. W.2 and Muhammad Iqbal P.W.3. The affidavits of none of these witnesses had been filed alongwith the election petition. .

9. P.W.1 had alleged that on 26‑1‑1997, a week prior to the polling day, Bashir Kundi and Majid Khan relatives of respondent No.l had paid Rupees one lac to one Haji Gulab of Ali Khel Kali for the purchase of votes. It was alleged that on the same day the two relatives had also paid Rs.60,000 to Sarwar, Mehraban and Ghulam Badshah, to purchase votes in village, Lagar Khel. The witness claimed that these transaction took place in the Election Office, of respondent No. l at Tank. In cross‑examination he admitted that he had not made any complaint about these transactions to the Returning Officer or to any Election Authority. In fact for the first time these allegations were made before the Tribunal as the witness had not even filed an affidavit. The witness, however, conceded that' Haji Gulab Sarwar, Mehraban and Ghulam Badshah had not in his presence purchased any vote. The petitioner, who testified as P.W.5 stated that he had deputed P.W.1 to the Election Office of respondent No. l to collect information about purchase of votes by the respondent. He admitted that P.W.1 was his supporter. It is unbelievable that any transaction regarding purchase of votes would take place in the Election Office in the presence of the support of rival candidate. Furthermore, both P.W.1 and P.W.5 admitted that they had not made any report about these transactions to the Election Authorities. Thus, their testimony regarding purchase of votes is highly doubtful. Furthermore, as pointed out by the learned counsel for the petitioner the testimony of P. W.1 regarding purchase of votes cannot be taken into account because according to section 55(1) of the Act; every election petition must contain particulars of the corrupt or illegal practice, including full statement of the names of the parties alleged to have committed such practice and the date and place of the commission of such practice, whereas in the Election Petition the petitioner had neither given the names of Bashir Kundi, Majid Khan nor the name of P. W.1, or have mentioned the two transactions. In fact the election petition does not make any reference to the transactions which P.W.1 had alleged to have taken place in his presence. Rather P.W.1 concedes in the cross -examination that he had informed the petitioner about the incidence after he had filed the election petition. This also further contradicts the statement of petitioner himself when he says that he had knowledge about this incident one week prior to the polling day. The statement of P.W.1 is, therefore, ruled out of consideration. The allegation regarding payment for the purchase of votes on behalf of respondent No. l thus does not stand proved. .

10. P.W.2 Halim Khan had alleged that two of the supporters of respondent No. l namely, Nasir Khan and Ramzan, had purchased 80 to 100 votes for Rs.300 to Rs.1,000 per vote at Polling Station, Chadrer. Again neither the affidavit of this ‑witness was filed with the election petition nor were these allegations made by him in the examination‑in‑chief were incorporated in the election petition. The accusations were made for the first time before this Tribunal. On this score alone his testimony can be excluded from consideration. Nevertheless, his statement does not inspire confidence at all. He admits that he was not a voter at Polling Station Chadrer, nor was he appointed as polling agent. He claims that Nasir Khan and Ramzan were sitting in a room near the school and that he sat with them for two hours in which he saw them purchasing votes. Surprisingly, he did not report the purchase of the votes to the police or the Army personnel present at the Polling Station. Rather he states that he had informed the petitioner of the sale of votes after the election petition was filed. When asked in cross examination he could not give the names of the persons who sold their votes. He admitted that the persons who sold their votes did not have the ballot -papers with them at the time of the sale. In the light of the foregoing infirmities in the testimony of P.W.2 his statement is highly doubtful. There is no other evidence regarding the purchase of votes at Polling Station Chadrer. The said allegation, therefore, does not stand proved.

11. Muhammad Iqbal was examined as P. W.3. He had alleged that he noticed the presence of three to four thousand identity cards in the boot of Motor Car No.DN‑47 driven by Qaisar Khan Kundi, a relative of respondent No.

1. This he did at 4‑04 p.m. on the polling day when he wanted to take a lift and had signalled Qaisar Khan Kundi to stop. He claimed that Qaisar Khan Kundi was engaged in the election duty and that on his inquiry he had opened the boot of the car where he noticed the identity cards. It does not stand to reason as to why Qasiar Khan Kundi, had been involved in bogus voting through identity cards, would open the boot for this witness to see. This witness had also not executed any affidavit for filing with the election petition. He does not state the purpose for which the identity cards were being used. Mere statement that he saw three to four thousand identity cards, even if believed, would not prove any corrupt or illegal practice. In the election petition neither the petitioner has given the registration number of the car nor had he mentioned the number of identity cards. He did not even state the, name of either P.W.3 or Qaisar Khan Kundi, the person who allegedly was carrying the identity cards. Thus, there is no evidence that any fake identity cards had been used by respondent No. l to poll bogus votes.

12. The testimony of the petitioner (P.W.4) is nothing more than reiterating the allegations made by P.Ws.l, 2 and 3 and is based on the information furnished by these witnesses‑

13. It follows, therefore, that there is no evidence that respondent No: l had indulged in corrupt or illegal practices during the election. Issue No.9 is decided in the negative. Issue No. 10(Relief).‑‑‑

14. The petitioner in his election petition has prayed that the election of respondent No. l be set aside and that the petitioner be declared as the successful candidate. In view of the foregoing findings on the issues the petitioner is not entitled to any relief. The election petition is, therefore, dismissed with no order as to costs. H. B. T. /E.P‑187/N.‑W. F. P. Election petition dismissed.