' Through this single judgment I will dispose of Complaints Nos.18(23) of 2002-Law and 18(24) of 2002-Law.
2. These are two identical petitions under section 92 read with sections 79 and 82 of the Representation of the People Act, 1976 for prosecution of the respondent-Ahmed Mehmood, Zila Nazim, Rahim Yar Khan. The first petitioner Haji Muhammad Saifullah Khan was a candidate in National Assembly, 192 Rahim Yar Khan and the second complainant Makhdoom Imam-ud-Din was a candidate in N.A. No,195 and PP.292 Rahim Yar Khan in the last General Election. According to the petitioner, the respondent is liable to be disqualified from his office under the aforesaid provisions of the Act read with Election Commission Notification No, F.2(I)/2002-Cord, dated 29th July, 2002 which reads as under:-- "If any of the Zila Nazim, Naib Zila Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim and Naib Town Nazim misuses his official position to influence the results of the forthcoming election in any manner whatsoever, appropriate proceedings shall be initiated against such delinquent Nazim for his qualification to hold his respective office."
3. It is the case of the complainant that despite the aforesaid direction by the Commission as well as the said provisions of the Act, the respondent along with the District Government machinery not only supported Makhdoom Muhammad Anwar an independent candidate in NA-192, Rahim Yar Khan but also he has been instrumental in picking up the candidates on behalf of the Muslim League (Q) giving an impression in the press conferences that he was acting on behalf of the Government while holding press _ conferences on election subjects allegedly he, used to be flanked by the District Police and Administration heads; that in the election process he made a public statement that the funds of District Government Rahim Yar Khan shall be placed at the disposal of candidates of Muslim League (Q); that he addressed the election campaigns ,of his favourite candidates; a particular reference in that regard is made to a public meeting held on 3rd October, 2002 at Children Park Liaquatpur in which the opponent of Ahmed Alam Anwar were allegedly criticized; that in the public gatherings the respondent Zila Nazim announced Government grants from District Government funds worth Rs,5 crores and also promised the provision of Sui-Gas to Liaquatpur Town; that in order to support the candidates of Muslim League
(Q) and Ahmed Alam Anwar, respondent transferred the Government officials and allocated funds at the recommendations of the favourite candidates of the Muslim League (Q); that by associating himself and openly working for Muslim League (Q) the respondent has incurred a disqualification under the provisions of section 152 of the Local Government Ordinance, 2001 which requires the holders of elected office as Zila Nazim/Tehsil Nazim to be non-political; that the accused offered and promised to give the office of Chairman Market Committee, Liaquatpur to one Ahmed Nawaz a candidate from PP-285 as a gratification in order to persuade him to withdraw from the election and in so persuading he has been guilty of an offence under section 79 of the said Act; the District Government Staff appointed at polling stations on the polling day had instructions of the accused- respondent to go all out to secure victory for his favourite candidates. Accordingly both the petitions make following common prayer:-- "Therefore, it is humbly prayed that the accused may very kindly be disqualified and removed from the office of Zila Nazim, Rahim Yar Khan and be prosecuted under section 92 and section 79 of the Representation of the People Act, 1976 in the best interest of justice. It is also further prayed that meanwhile the accused may kindly be suspended and relieved from the office of Zila Nazim, Rahim Yar Khan for free, fair, honest and independent inquiry and judicial trial.'"
4. In support of various submissions the petitioners have relied upon 35 photo copies of the press clippings published in daily Wafaq, Khabrain, Abaseen, Nawa-e-Munis, Shahadat, Ibadat, Isyyaf and Saaf Saaf.
5. The respondent in reply to the complaint has raised legal as well as factual objections to the contents of the complaint as well as the prayers made therein. It is stated that there is no provision available.In the Representation of the People Act, 1976 vesting jurisdiction in the Honourable Chief Election Commissioner to disqualify or remove a Zila Nazim; that complaints are mala fide having been filed on account of denial of party ticket to the complainant; that the allegations are illusory, that the press clippings annexed with the petition are irrelevant and inadmissible in evidence.
Lastly, as preliminary objection it is stated that the complaints failed to disclose any cause/case under section 92 of the aforesaid Act. On merits in reply to paras.1 and 2 of the complaint it is stated that "... There is much to be stated about his motives and merits. Having first sought and been denied the PML (Q) ticket for NA-192 Rahim Yar Khan-I, the complainant contested the election, as a PPP candidate. He lost the election by a margin of 50,000 votes from his winning rival.
He has not filed any election petition and accepts the election process and its result to be fair. But now absurdly he attributes the huge margin of his defeat to the respondent on the basis of fictitious, false and unsubstantial allegations. The complainant is meant to harass the respondent to satisfy petty rivalry and/or to score unlawful gain".
6. It is also claimed that the complainant has failed to place on record a single document showing that the funds of the District Government were ever used to favour any candidate in the general election. Also that nothing has been brought on record to support the allegations that the respondent issued party ticket to the candidates in the general election. The use of typewriter of District Government for issuance of party tickets is described a contradiction in terms. Also that press clipping annexed with the petition were partial and speculative and therefore, had no probative and evidentiary value. It is also stressed that the contents of the complaint reveal the personal grudge of the complainant against the respondent inasmuch as the successful candidate from NA-192 contested the election as an independent candidate which the whole thrust of application remains that the respondent issued party tickets for PMLA(Q) candidatures and then supported them. The allegation of offering of office of Chairman Market Committee to a candidate for withdrawal is specifically denied. The allegation of rigging and corruption in the general election by the polling staff of District Government employees is also controverted.
7. The petitioner Haji Muhammad Saifullah Khan; while arguing the petition has mainly relied upon a judgment of the 'Honourable Supreme Court of Pakistan in re: Mian Muhammad Nawaz Sharif v.
Federation of Pakistan PLD 1993 SC 473 to support his contentions that press reports can be taken into consideration for forming of opinion where such reports were not contradicted by the concerned authority or person at the relevant time. Also states that in order to persuade the commission for a reference under section 95 of the Act, the press clippings attached with the complaints are sufficient at this stage because recording of evidence will take place before the concerned Sessions Judge after permission by the Commission under section 95 of the Act where he would be supporting his allegations by further evidence which is not needed to be produced at this stage.
8. Learned counsel representing the respondent however, attempts to distinguish the aforesaid judgment in re: Mian Muhammad Nawaz Sharif v. Federation of Pakistan (supra). Also relies upon re: Haji Muhammad Afzal v. Ch. Muhammad Altaf and others 1986 SCM R 1736 and re: Mian Zia-ud- Din v. Punjab Local Government Election Tribunal, Lahore and 2 others 1984 CLC 1544 to state that the press clippings attached with the petition have no probative or evidentiary value. Also that except in sub-para. (h) of the petition no specific instance either of allocation of funds or direction to District Government employees to support his candidates has been made. Learned counsel vehemently points out the fact that Mr. Ahmed Nawaz referred to in sub-para. (h) of the petition was never appointed as Chairman Market Committee by the respondent. Also claims that the respondent is a gentleman having remained a Federal Minister twice and a Provincial Minister once. It is also stated the appointment of staff to the polling stations is done by the Election Commission of Pakistan and that in absence of the name of any particular Government servant having blessing of the respondent the allegation made in that regard is without any basis. It is claimed that all the allegations made in the petition are necessarily related to pre-election period of August-September, 2002 while the complaints in hand were made two weeks after the holding of the general elections and therefore, are nothing but ventilation of defeated candidates. Also refers to the ratio settled in re; Chaudhry Shujat Hussain v. The State 1995 SCM R 1249 to contend that with a direction for preliminary inquiry or permission can only be given where the commission or commissioner has reasons to believe", that any offence specified in subsection (1) had been committed. According to the learned counsel no material whatsoever has been brought forth to provide the required reason to believe for a direction for inquiry or for prosecution of the respondent. On the basis of the ratio settled in the said judgment, learned counsel contends that the term "reason to believe" is classified at a higher pedestal than mere suspicion or allegation though it is not equivalent to prove evidence. Also that even the strongest suspicion cannot transform in "reasons to believe". Lastly states that all allegations made in the petition could only be a subject-matter of a petition before the Election Tribunal. However, none of the two complainants approached the Tribunal by way of a petition against the successful candidates.
That fact alone, according to the learned counsel for respondent, is sufficient to establish mala fide of the complainants.
9. After hearing the parties I am not persuaded to allow the prayer as reproduced above. Following are my reasons for the refusal:- ' Firstly, It needs to be noted that proceedings under section 79 of the Act can be initiated either by police or at the complaint of any party before the Sessions Judge of the District. The prayer made in the petition regarding provisions of sections 79 and 82 of the. Act therefore, is infructuous in view of subsection (2) of section 95 of that Act.
' Secondly, The only provision relevant for the purpose of these applications can at best be section 95 of the said Act. Section 92 provides that a person in the service of Pakistan cannot be prosecuted without a complaint made by an order of or under an authority of the Commission or Commissioner. In order to seek that permission the petitioner was required to establish that a Nazim is a person "in the service of Pakistan". However, no argument whatsoever has been addressed at the Bar that the respondent falls in that category. On the other hand the respondent has placed on record a certificate from the concerned Accounts Officer stating that he is not charging any salary to perform duties of District Nazim.
' Thirdly, The notification of the Election Commission of Pakistan dated 29-7-2002 as reproduced above only states the law as it existed in the form of various provisions of the Representation of the People Act, 1976, The Election Commission of Pakistan cannot by itself make a certain action to be a crime nor can prescribe any punishment therefor.
' Fourthly, As noted above the petitioners in support of their allegations have relied upon a number of press clippings of the newspapers. These press clippings are sought to be considered to form an opinion in the light of the ratio settled in the case re: Mian Muhammad Nawaz Sharif v. Federation of Pakistan (supra). However, that case is clearly distinguishable as rightly pointed out by the learned counsel for the respondent. The Honourable Supreme Court of Pakistan in that case only reiterated the basic principle of law of evidence that press reports could not be accepted as proof of facts stated therein. However, according to the Honourable Supreme Court the only exception being a situation where such reports were not contradicted by the concerned authority or the person at the 'relevant time. The apex Court considered such reports and clippings to draw an inference that the President did not act impartially and rather extended, cooperation to the opposition which was found to be objectionable. Such reports in the view of the Supreme Court could be taken into consideration for forming an opinion generally as to the prevailing state of affairs at the relevant time. The observation of the Honourable Supreme Court came in the wake of allegations and assertions made against the President who was supposed to be aware of all news items being carried by the newspapers. Obviously the meeting of the President with opposition Legislature cannot be equated with the reporting contribute by a correspondent of a totally, unknown and obscure newspaper. An average individual or a common citizen even holding an elected office of a Nazim is neither required nor supposed to read every news item published about his person to contradict the same. In one of these newspapers the respondent Nazim is shown sitting in a meeting accompanied by the District Police Officer and the District Coordination Officer.
That photograph does not by itself goes to establish that Nazim was showing support for a particular candidate in the election.
Fifthly, The contents of the petition as well as the Press clipping sought to support these allegations are contradictory and therefore, do not inspire any confidence. On one hand the petitioners claim the respondent to be a clipping sought to support these allegations are contradictory and therefore, do not inspire any confidence. On one hand the petitioners claim the respondent to be a person holding himself out to be a person responsible for distributing party tickets of PMLA(Q) and in the same breath it is alleged that he went all out to support an independent candidate Makhdoom Ahmed Alam Anwar. Learned counsel for the respondent has rightly pointed out that except for the mention of the name, the opposing candidate of one of the complainants no mention of any other candidate has been made to whom the complainants would like to describe as "favourites" of the respondent. I will also agree that the allegations made against the respondent are too vague and uncertain to be crystallized even by evidence at a subsequent stage. The material so far brought on record does not help in forming even a tentative opinion qua the veracity of allegations contained in the petitions. Also there is no material to support the allegations that any District Government employee was under a directive of the respondent to support a particular candidate. The issuance of party tickets of a Government backed political party is again not supported from any material. Most of the news items carried in the clippings relied upon by the petitioner are in fact in nature of personal opinion of the reporter. An opinion of a correspondent or an employee of newspaper remains an opinion which cannot be taken as an expression and reporting of a fact. The only specific allegation given in sub-para.(h) of the petition with regard to the alleged Province of Office of Chairman Market Committee, Liaquatpur as a gratification for the purpose of withdrawal of candidature is also not supported by any material on record. So is the case with the alleged allocation of fund of the City Government for the residents of a particular locality of a particular candidate. It goes without saying that allegation of an actual incurring of amounts of a City Government is a matter of record which could very easily be supported from placing the relevant material on file. That too has not been done. The assertions that such evidence will be brought subsequently after permission for prosecution has been granted is also not acceptable. The very purpose of providing for permission from prosecution is to save official functionaries from unnecessary harassment of rival candidates. The purpose of law in prescribing the permission by the Commission or the Commissioner will be defeated if a permission is granted of, wake loud and uncertain allegations of one of the candidates in elections.
Lastly, the instrument of a District Nazim being a very recent phenomena in the social and political life of a District it is yet to take shape. It is however, clear that a District Nazim necessarily being a political person and having came to office through election cannot be compared with his predecessor a Deputy Commissioner/Commissioner who was required by his discipline and the laws governing his services to be impartial to any political activity in the District. To demand and except that level of impartiality from a 'District Nazim would neither be realistic nor in line with the facts on ground. Legally speaking, the law does not forbid a District Nazim to have a personal inclination or sympathy with a particular candidate for any elected office in the District. The legal requirement only being that he will not exercise his position in such a manner to effect the result Of election of that candidate. The involvement of a District Nazim in an election campaign on the strength of his office as well as the official sources at his disposal is something that needs to be established by record and mere news items mostly based upon the opinion of the correspondents do not answer that requirement.
10. Therefore, as said above, I will refuse the prayer and reject both petitions.
Petitions rejected.