AMJR HANI MUSLIM, J.--- Through this Election Petition, the petitioner has challenged the election of PS-110, Karachi South-XXII, wherein respondent No. 1 was declared 'Returned Candidate', inter alia, on the ground of corrupt practice alleged to have been committed by the election functionaries under the influence of the respondent No. And his workers'.
2. In the petition, it was alleged that out of 1,20,266 votes only 40,194 votes were polled and the respondent No. 1 had secured 13383 votes whereas the petitioner secured 11955 votes while 407 votes were rejected. It was further alleged in the petition that the respondent No. 1 was guilty of corrupt and illegal practice as he persuaded the voters to refrain from casting their votes in favour of the petitioner and in particular at Polling Stations Nos. 14 to 16, 51 to 57 and 63 to 66 he and his party workers did not allow the petitioner's voters, to vote by creating law and order situation. It was also pleaded in the petition 'that the respondent No. 1 had employed during elections a number of persons to report him and oppose the petitioner and also hired a number of vehicles for the purpose of transporting the voters to and from the Polling Stations. It was alleged in the petition that the respondent No. 1 had by exercising undue influence procured unlawful assistance from the polling staff, Presiding Officers, Assistant Presiding Officers and Polling Officers. It was alleged in the petition that workers and polling agents of the respondent No. 1 were unlawfully canvassing in the Polling Stations with the badges of 'kite' on their shirts. It was also pleaded in the petition that at different Polling Stations the workers of respondent No. 1 after snatching the ballot papers from the Presiding Officers had illegally affixed their thumb impressions and put rubber stamps on the ballot papers in favour of the respondent No. 1, atter causing harassment to the. Voters who were present at the Polling Stations by firing in air. The petitioner has sought following reliefs in the petition: {{TABLE}} declare the election of the returned i.e. Respondent No. 1 as void; or declare the election of the returned to be void and the petitioner to have elected; or declare the election as a whole to be candidate candidate been duly void ; or
(d) order for recounting of results of all the Polling Stations with direction to see the seal and signature of Presiding Officers on each and every ballot, paper and to see the thumb impression and number of NIC of electors on the counter foils of ballot papers, and or
(e) order for recounting of results of Polling Stations Nos. 14-16, 51-57 and 63-66 and with directions to see the seal and signature of Presiding Officers on each/every ballot paper and to see the thumb impression and number of NIC of electors on the counter foils of ballot papers, and or re- polling;
(f) order to step the respondent No. 1 from performing functions of his office as Member Provincial Assembly of Sindh from PS 110 Karachi South XXII till the conclusion of the above petition or for such period as the Commission may direct;
(g) any other relief or reliefs which this Honourable Commission may deem fit and proper.
3. The respondent No. 1 filed his written statement disputing and denying all the allegations levelled by the petitioner in his petition. The remaining respondents though served did not put in appearance and were declared ex parte.
4. Out of pleadings of the parties, following issues were settled on 17.2.2003:
(1) Whether the petition as framed is not maintainable under the law?
(2) Whether the respondent No. 1 is guilty of corrupt and illegal practices?
(3) Whether provisions regarding voting procedure, proceedings at the close of poll, consolidation of results etc. Of Election Laws were violated?
(4) Whether the Returning Officer, Presiding Officers and Polling Officers had failed to discharge their duties dutifully in accordance with Election Laws?
(5) Whether the petitioner is entitled for the reliefs claimed?
(6) What should the order be?
5. The petitioner in support of issues Nos. 2 and 3 examined himself, besides his witnesses, namely, Abdul Qadir PW:2 (Exhibit 23), polling agent of the petitioner for Polling Station CMA School Bheempura, Karachi, Muhammad Zahid PW-3 (Exhibit 24) polling agent for. Polling Station CMS School, Nishter Road; Karachi, Han PW-4 (Exhibit-26) polling agent of the petitioner for Polling Station CMA School, Bheempura, Karachi, Syed Muhammad A.I PW-5 (Exhibit-28), polling agent in Polling Station Government Boys Secondary School Civil Hospital, Karachi, Haji Arif PW-6 (Exhibit- 30) Chief Polling Agent of the petitioner and Muhammad Shahid PW-7 (Exhibit-32), polling agent of petitioner for Polling Station Ranchore Line, Narainpura.
6. As against this the respondent No. 1 has appeared in the witness-box and examined himself.
7. The petitioner who appeared as PW-1 has produced the news report appearing in Daily Dawn of 11.10.2002 as Exhibit-3, news report appearing in Daily Jasarat dated 12.10.2002 as Exhibit 1, Affidavit of Muhammad Zahid, Exhibit 6, Affidavit of Irfan, Exhibit-7, Affidavit of Syed Muhammad A.I, Exhibit-8, Affidavit of Muhammad Faisal, Exhibit-9, Affidavit of Abdul Qadir, Exhibit 10, Affidavit of Muhammad Shahid, Exhibit-11, Affidavit of Haji Arif, Exhibit-12, statement reflecting the votes of different Polling Stations (Exhibit-13), two applications under Section 39 of the Representation of Peoples Act, 1976, addressed to the Returning Officer, PS-110, (Exhibit-14 and Exhibit-15), Unofficial Election Results of PS-110, Karachi XXII announced by the Election Commission on 11.10.2002 (Exhibit-16), Revised Form XVII (Result of Count) dated 19.10.2002 issued by the Returning Officer PS-110 (Exhibit-17), Form XVI (Consolidation Statement of the Results of the Count furnished by the Presiding Officer) (Exhibit-18), complaint dated 17.10.2002 to the Chief Election Commissioner regarding irregularities/rigging/bogus voting (Exhibiting-19), Reminder dated 20.10.2002 to the Chief Election Commissioner, (Exhibit-20), photocopy of Degree of Bachelor of Dental Surgery, University of Sindh awarded to respondent No. 1 and Certificate issued by Pakistan Medical and Dental counsel, Islamabad (Exhibit-21 and Exhibit-22 respectively).
8. The petitioner and his witnesses were cross- examined at length by the learned counsel for the respondent No. 1. In the cross-examination of the petitioner. The petitioner has admitted that neither he nor his polling agents on the day of elections has approached either the Election Commission or the Returning Officer or any election functionary with a written complaint in regard to any of corrupt or illegal practice alleged to have been committed by the respondent No. 1 and his workers in connivance with the election staff.
9. Mr. M.S. Qureshi, the learned counsel for the petitioner has argued that in all there were 1,20,266 registered votes in the constituency, out of which 40,194 votes were polled. The respondent No. 1 has secured 13383 votes and was declared as Returned' whereas the petitioner has secured 11955 votes, and 407 votes were rejected. The difference between the votes secured by the petitioner and the respondent No. 1 was 1,428 votes. Besides the petitioner and the respondent No. 1, there were 19 other contesting candidates. In all there were 70 Polling Stations in the constituency. He submitted that the petitioner and his witnesses have filed their affidavits before this Tribunal in which allegations in regard to 13 Polling Stations namely, 14 to 16, 51 to 57, 63 to 66 were levelled. Out of these 13 Polling Stations, in 10 Polling Stations the petitioner's polling agents were not allowed to enter in whereas in three Polling Stations the polling agents of the petitioner were compelled to leave the Polling Stations by 3 p.m. He argued that the Returning Officer did not serve upon any notice for consolidation of results and or of the Revised result of Form XVII. The Returning Officer according to him has revised Form XVII unilaterally though he concedes that the votes secured by the petitioner and the respondent No. 1 in the original Form XVII and in the revised Form XVII were the same. He, however, submits that the votes secured by the other contesting candidates were different. He submits that in view of the change in votes in these two forms the petitioner was entitled to recount of votes of the entire constituency.
10. As against this, Mr. Qazi Khalid A.I, learned counsel for the respondent No. 1, has argued that the petitioner and his witnesses have failed to place on record sufficient material, which could justify interference by this Tribunal. He argued that the petitioner has failed to provide the material facts and full particulars in the petition in terms of Section 55 of the Representation of People Act, 1976 (hereinafter referred to as 'the Act of 1976'). He has relied upon Sections 68, 69, 70, 78, 81 and 83 of the Act of 1976. He submitted that the petitioner and his witnesses have neither pleaded nor during evidence had pin pointed the detailed particulars of corrupt practices. He in support of his ,arguments has relied upon two cases of Ejaz Shafi v. A.I Asghar Shah, reported in PLD 1995 SC 43, and Sheela B. Charles. v. Qaisar lfraeem Soraya, reported in 1996 SCM R 1455.
1 1 I have heard the arguments of both the learned counsel and have perused the record. It is an admitted position that the petitioner and his polling agents who had appeared before this Tribunal and gave evidence did not approach either the Returning Officer or any other competent authority to lodge complaint in writing against the respondent No. 1 for the alleged corrupt and or illegal practice committed by him and his workers in connivance with the Election functionaries.. It is only after the results were announced, the petitioner has addressed complaints in writing to different authorities. The petitioner, his chief polling agent, or his other polling agents have not given any explanation which prevented them from complaining about the corrupt practice either to the Returning Officer or to any Election office either on the day of elections, or immediately thereafter when these polling agents, who are alleged to have been thrown out from the Polling Stations and or were not allowed entrance. The petitioner has not examined any polling agent who was refused entrance nor the petitioner or any of his witness has disclosed names of such polling agents. The petitioner and his chief polling agents. The petitioner and his chief polling agent were in knowledge of the alleged incident during election hours but they did not report these incidents to any one in writing or otherwise. It has also come in evidence of the petitioner that he had appointed 60 polling agents when the entire constituency had 70 Polling Stations. He did not 'disclose either in the petition or in his evidence that which were those Polling Stations in which he did not appoint his polling agents. On a question in cross-examination, the petitioner could not disclose the names of the polling agents who were appointed polling agents by him for Polling Stations Nos. 14 to 1 6, 51 to 57 and 63 to 66. What is strange that not a single independent voter of any of the Polling Station was produced to substantiate the allegations pleaded in the petition.
12. The law requires that a petitioner under Section 55 of the Act of 1976, is obliged to state the statement, of full particulars of corrupt and illegal practice or any other illegality committed by the candidate during the process of elections. The burden of proving the corrupt practice is on the petitioner. The evidence in proof of such practice must be restricted to the charges or instances mentioned in the petition and the particulars; that ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the Tribunal before finding a corrupt practice proved must exclude all reasonable hypothesis which are consistent with the corrupt practice having not been committed.
13. The criterion laid for proof of a fact in an Election Petition is that of a criminal trial and benefit of doubt is always goes to the Returned Candidate in the event if the charges of alleged corrupt practice was not proved . In the prese proceedings the petitioner and his witnesses have not brought material which could establish the charge of corrupt practice against the respondent No. 1.
On the contrary, it has been admitted by the Chief Polling Agent of the petitioner Haji Arif that the allegations contained in paras 10 to 46 of his Affidavit-in-Evidence were general in nature. It is also not in dispute that the contents of the petition in regard to corrupt practice are general in nature and do not disclose the time and place with specific instances of each charge of corrupt practice.
The petitioner has examined the witnesses on the issues Nos. 2 and 3 and from the evidence led by the petitioner and his witnesses the charge of alleged corrupt and illegal practice has not been proved. The petitioner has failed to place material on record reflecting violation of any provision of the Elections Laws. Even neither the petitioner nor his witnesses could disclose during evidence the name of any of the Presiding Officer or Assistant Presiding Officer or Polling Officer who in violation of the law had extended support either to the respondent No. 1 and or to his workers. The petitioner has also failed to prove issue No. 4 as petitioner and his witnesses were not aware of the names of Election Officials who unlawfully supported the respondent No. 1 and his workers in materializing the results of the election in their favour.
14. As regards the objection to the recount of votes and revised Form XVII by the Returning Officer is concerned, the learned counsel has conceded that there is no difference of votes between the petitioner and respondent No. 1 in both Form XVII issued by the Returning Officer. It was, therefore, hardly a ground for recount, if there were discrepancies of votes between other contesting candidates. In order to seek recount, a party is required to place on record material in the nature of Form XIV and XV with such discrepancies which may lead to change of the complexion of results, Shehzada Muhammad Umar Baig's case (PLD 1970 SC 139). if recount is ordered. In these proceeding no such material is placed on record by the petitioner which could entitle him to the recount of votes.
15. Since the petitioner has failed to prove the charges of corrupt practice against the respondent No.1 in terms of Section 55 of the Act of 1976 and has failed to place sufficient material justifying this Tribunal to intervene, this petition is dismissed accordingly with no orders as to costs.
Accordingly.