The election of respondent No,1 from National Assembly Constituency No,86-Jhang-I held on 10-10- 2002 has been called in question in this election petition. According to the official result, respondent No,1 was declared as a returned candidate with 52644 votes while petitioner polled 41023 votes. The main ground to challenge the election of the returned candidate is commission of illegal and corrupt practices by him. According to the averments of the petition, the Daily "Nation", "Nawa-e- Waqt" and even the ARY Digital T.V. Net Work had announced the success of the petitioner on 11-10- 2002. However, the ultimate result was manipulated by respondent No, 1.
2. Petitioner's case is that illegal practices were committed before the election, at the time of de- limitation, setting up to the polling stations and appointment of the polling staff, the election campaigning itself, during the polls and immediately and after the polls.
3. It is contended that Syed Zulfiqar Shah is the real nephew of respondent No,1 who is the Tehsil Nazim of Chiniot who was associated at the time of delimitation of the constituency and the polling scheme including the selection of the polling personnel. Most of the members of the polling staff were the employees of the Tehsil Municipal Administration and subordinate to Tehsil Nazim and most of the polling stations were established in the premises of the Tehsil Municipal Administration.
4. On the day of election, office of the Tehsil Nazim remained open and was used as election office of respondent No, 1 . The results were brought initially in the Tehsil Municipal Administration office as these were verified by the Tehsil Nazim and then sent to the Returning Officer. Vehicles were arranged by respondent No,1 for conveying the voters to the polling stations. The polling agents of the petitioner were not allowed entry in the polling stations. Statement of count was not supplied to the polling agents of the petitioner in respect of 47 polling stations (described by the learned counsel for the petitioner as the target polling stations), on the election day and even before respondent No,1 has been soliciting votes on the basis of his caste i,e, "Syed".
5. During the election campaign the Nazims of Union Council, the Tehsil Nazim Chiniot and the Councillors have fully been participating in the election campaign of respondent No,1, "Jalsas" were held at various places and the development projects were announced. After the election, the results were changed and copy of consolidated result was not supplied to the petitioner. It was further alleged that even on the election day he had made a complaint to the Returning Officer, the learned Chief Election Commissioner and the learned Provincial Election Commissioner. It was also alleged that apart from the Tehsil Nazim, Naib Nazim and the Councillors, one serving Major Asim, the paternal-nephew of respondent No,1, had also exerted undue influence on the voters to secure support for respondent No, 1.
6. In the written statement filed by respondent No,1 a number of preliminary objections were taken including that the provisions of section 55 of the Representation of the People Act (LXXXV of 1976) had not been complied with and the affidavits filed with the petition did not fulfil the requirement of law.
7. On the basis of the pleadings of -the parties the following issues were framed:--
(1) Whether the provisions of section 55 of the Representation of People Act, 1976 have not been complied with by the petitioner, if so, to what effect? OPR
(2) Whether the affidavits attached with the petition do not fulfil the requirements of law, if so to what effect? OPR
(3) Whether respondent No,1 is guilty of breach of instructions contained in paragraph 3 of the Code of Conduct for Political Parties issued by the Election Commission of Pakistan vide Notification No,F.2(9)/2002-Cord., if so to what effect? OPR
(4) Whether respondent No,1 was guilty of violation of provisions contained in section 83-3 of the Representation of People Act, if so, to what effect? OPP
(5) Whether respondent No,1 was guilty of corrupt or illegal practice by exerting undue influence through his paternal-nephew Major Asim? OPP
(6) Whether respondent No,1 has been guilty of other corrupt or illegal practice? OPP
(7) Whether election petition is frivolous and vexatious, if so, whether respondent No,1 is entitled to special costs? OPR
(8) Relief.
8. The parties led oral as well as documentary evidence in support of their respective pleas. Apart from the petitioner who appeared as P.W.7, six other witnesses were produced by him and documents Exh.P.1 to Exh.P.67 were placed on the record. Respondent No,1 appeared as his own witness and produced in evidence Exh.R.1 to Exh.R.16.
9. Before the contentions of the learned counsel for the parties are noted and examined it is considered necessary to record some facts which may have relevance while answering the issues.
10. This election petition was filed before the learned Election Commission of Pakistan with which photo copies of the affidavits of the witnesses were filed. This election petition came up for hearing before this Tribunal on 27-12-2002 when the learned counsel for the petitioner submitted that no private person is sought to be examined as witness while the list of official witnesses had been filed on which notices were directed to the respondents. Except respondent No,1, nobody came forward to contest this election petition. The persons whose affidavits were filed with the election petition were sought to be examined on which the learned counsel for respondent No,1 raised two objections.
' Firstly, that according to the statement of the learned counsel for the petitioner recorded in the order dated 27-12-2002 no private person was to be examined and secondly, the affidavits filed with the election petition were photo copies (although attested by the Oath Commissioner) and were not receivable in evidence. The petition then came up for hearing on 20-3-2003 on which date the learned counsel for the petitioner submitted that he was prepared to file fresh affidavits of the witnesses sought to be produced. Even this was objected to by the learned counsel for respondent No,1. However, the petitioner was allowed to produce original affidavits of the witnesses within seven days photo copies of whose affidavits were filed with the election petition.
11. My findings on the issues are as follows:-- Issue No,1
12. The objection of the learned counsel based on section 55(3) of the Representation of People Act (No,LXXXV), 1976 is two-fold. Firstly, that oath on verification of election petition was not attested in accordance with the instructions of the Lahore High Court contained in Part "B" in Paragraphs 11, 12 and 16 of Chapter 12 of Volume IV of the Lahore High Court Rules and Orders inasmuch as that only the stamp and signatures of the Oath Commissioner appear thereon along with word "attested".
Elaborating his submission he contended that according to paragraph 11, the official administering the oath shall specify at the foot of the affidavit the name and description of the person by whom the identification is made as well as the time and place of making the affidavit and according to para.12 he will append a certificate at the foot of the affidavit prescribed under the Indian Oaths Act, 1978 by virtue of paragraph 16 of the said rules. He submitted that not only the provisions of paragraph 11 were not complied with but also that the certificate required to be appended was missing from the verification of the oath on the election petition. Reliance was placed on Engineer Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCM R 250 according to which the provisions of section 55(3) of Act No,LXXXV of 1976 are mandatory and that a mandatory requirement should be exactly fulfilled. Reliance was also placed on judgment of this Tribunal rendered in Election Petition No,111 of 2002 and other connected petitions. He also submitted that even the separate affidavit filed with the election petition was not attested in accordance with law.
13. The other violation of section 55(3) pointed out by the learned counsel for the petitioner was that very "schedule or annex" filed on the D record of this election petition or exhibited at the trial was not verified by the petitioner.
14. Controverting the objections of the learned counsel for respondent No,1, the learned counsel for the petitioner submits that there was no requirement in rule 15 of Order VI of the Code of Civil Procedure that verification of the election petition must be attested by the Oath Commissioner or a person duly authorized. According to him the absence of certificate of the Oath Commissioner required by High Court Rules and Orders was only an irregularity. He maintains that technicalities should not be allowed to defeat not only the ends of justice but also the object of the election laws.
As far as non-verification of the documents filed with the election petition and exhibited are concerned, his submission is that all these documents are public documents and do not come within the scope of "a schedule or annex". Reliance was placed on S.M. Ayub v. Syed Yousaf Shah and others PLD 1967 SC 486. It was further contended that according to para.3 of the notification of the Election Commission of Pakistan, dated 16-3-1985 which was published in the gazette on 17-3- 1985. Respondent No,1 was required to file written statement within seven days of the notice of the petition but he himself violated the said provision, filed written statement before this Court and that too not promptly. According to him, the aforesaid instructions are directory.
15. The submissions made by the learned counsel for the parties on this issue have been considered. The stamp attesting the verification by the Oath Commissioner or the stamp on the separate affidavit does not indicate that the oath was made by the petitioner before the Oath Commissioner although in the verification, oath is mentioned. The object of oath is to confront the maker with the Almighty God and to ensure truth of the declaration and this is to be made before a person duly authorized. Oath on affidavit is prescribed by section 139 of the Code of Civil Procedure which can be administered by a Court or Magistrate or an Officer or other person appointed by the High Court in this behalf or any other person appointed by the Provincial Government. The forms of oath, affirmations, and affidavits and the manner of attestation thereof have been prescribed by the Lahore High Court by virtue of the powers conferred by section 7 of the Oaths Act, 1893.
Therefore, the instructions contained in Part-B of Chapter 12 of High Court Rules and Orders have the force of law. Part-II of the said instructions requires that the person making an affidavit, if not personally known to the attesting officer, shall be identified by person known to the said Officer who will specify at the foot of the affidavit the name and description of the person by whom the identifications made and a certificate has to be appended as directed by para. 16 in the form prescribed under the Indian Oaths Act, 1878. Perusal of the election petition does not bear out that the petitioner had appeared before the Oath Commissioner nor there is the prescribed certificate as to how the Oath Commissioner had satisfied himself of the identity of the maker of the oath.
Therefore, the verification on the election petition and the accompanying affidavit was not attested as required by law and therefore, provisions of section 55(3) were not complied with.
16. The question as to whether section 55(3) was mandatory or directory came up for consideration before the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra (supra). The provisions of section 36(3) of the Senate Election Act No, (LI of 1975), which are in pari meteria with section 55(3) or Act No,LXXXV of 1976, were under consideration of the Honourable Supreme Court and the view taken was that the provisions of section 55(3) were mandatory. The said judgment was followed by the Punjab Election Tribunal in Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896. I also happened to examine the provisions of section 55(3) of Act No,LXXXV of 1976 in Election Petition No,111 of 2002 and nine other Election Petitions decided on 8-1-2004 and on the basis of the'judgment of the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra and Mrs. Asif Nawaz Fatyana (supra) the view taken was that the provisions of section 55(3) are mandatory. In my judgment, on a similar provision of law, the view of the learned Indian Supreme Court in M. Kaurnanidhi v. H.V. Honda AIR 1983 SC 558 and Sattva Narain v. Dhuja Ram and others AIR 1974 SC 1185 was also noted. In the case of M. Karunanidhi (supra) the observation made was that a "mandatory provision must be fulfilled exactly". It may be observed that when a provision is mandatory the Court is bound to give effect to it and the consideration of substantial justice against technicalities was completely eclipsed.
17. As far as the annexes or the schedule appended to the election petition are concerned, all the documents exhibited on the record, except Exh.P.6 are certified copies of public record. Therefore, as explained by the Honourable Supreme Court in the case of S.M. Ayub (supra) these are not conversed by the expression "schedule or annex" referred to in section 55(3) of Act No,LXXXV of 1976. Exh.P.6, the application made by the petitioner to the Returning Officer, however, contained additional/supplementary information. In the said application, certain irregularities in the conduct of election at Chak No,15, Moona, at the male polling station and other allegations were levelled.
This document falls within the scope of "schedule or annex" and, therefore, was required to be verified but has not been verified. However, it was exhibited during the trial. The effect of non- compliance of the provisions of section 55(3) is that the said document cannot be considered.
There are however, same other documents on the record .Of this election petition but these were not exhibited. It is, therefore, not necessary to take notice of the said documents. In view of the above, I find that section 55(3) insofar as it relates to verification of the election petition and the documents Exh.P.6 was not complied with by the petitioner and this election petition is liable to be dismissed on this sole ground. The issue is, accordingly, answered in favour of respondent No, 1 .
Issue No,2
18. The objection of the learned counsel for respondent No,1 was that photocopies of the affidavits filed with the petitioner were not admissible and, therefore, the provision contained in paragraph 1 of the notification dated 16-3-1985 was not complied with. According to him, the provisions of the said notification were mandatory. Reliance was placed on Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 176l; Mian Shah Jehan v. Abdus Subhan Khan and others 1988 CLC 750; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175 and Mehr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289. As already noted above, the petitioner was allowed to produce original affidavits of the witnesses vide order dated 20-3-2003.
In adopting the said course, reliance was placed on Rai Asghar Ali Khan v. Returning Officer and other PLJ 1999 Lah. 632; Haji Aziz-ur-Rehman Chan v. Mian Abbas Sharif and another 1994 M LD 2293 and Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382. The question whether the instructions contained in the notification dated 16-3-1985 were mandatory was considered by me at some length in Election Petition No,111 of 2002 and other connected petitions. The view taken was that the said instructions were directory since the consequence of non-compliance of the aforesaid instructions was not provided either in the said notification or Act No,LXXXV of 1976 and by virtue of section 64 of the aforesaid Act an Election Tribunal had all the powers of a civil Court.
The issue is decided in favour of the petitioner.
Issue No,3
19. According to para.3 of the Code of Conduct issued by the learned Chief Election Commissioner, Pakistan vide Notification No,F2(9)/2002 Cord. Dated 23-8-2002, the political parties and contesting candidates were permitted to announce their overall development program but after the announcement of the election schedule no undertaking for any development project in the constituency could be given. Apart from the question whether the evidence produced by the petitioner could be relied upon it may be noted that none of them identified the dates of the public meetings to determine whether any election Jalsa was held after the announcement of the election schedule or any undertaking for development work was given by the petitioner or the political party he was representing i,e, the P.M.L. (Q). The issue is accordingly, answered in the negative.
Issue No,4
20. P. W.1 to P.W.5 did not state that loud-speakers were used at the election meeting, it was not so claimed even by the petitioner who appeared as P.W.7. The issue is, accordingly answered in the negative.
Issue No,5
21. None of the witnesses examined by the petitioner supported the allegation that Major Asim participated in the election campaign of respondent No,
1. The only witness in support of this allegation, subject-matter of this issue, was the petitioner himself. According to him, Major Asim not only canvassed to vote in favour of respondent No,1 but he also threatened the voters of the rural areas that their houses would be burnt if they did not vote for respondent No,
1. In cross- examination he stated that this information was supplied to him by the voters. No such voter was examined. The sole testimony of the petitioner, could not be relied upon particularly in view of the fact that although, it was asserted in the election petition that he made complaints to the Chief Election Commissioner and the Provincial Election Commissioner, but he admitted as (P.W.7) that no complaint was made against Major Asim. Therefore, the issue is answered in the negative.
Issue No,6
22. This is the all important issue. Before the contentions of the learned counsel for the parties are dealt with it would be appropriate to take notice of the oral and documentary evidence produced by the parties. On behalf of the petitioner seven witnesses including himself and the Returning Officer were examined. As far as documentary evidence is concerned, Exh.P.1 to Exh.P.5 are the affidavits of the witnesses examined by the petitioner. Exh.P.6, the application, which is not being taken into consideration for the reason noted above. Exh.P.7 is the consolidated result issued at 8- 00 a.m. On 11-10-2002 by the Returning Officer. Exh.P.8 and Exh.P.9 are the consolidated results of PP.73 and PP.74. From both these Provincial Assembly constituencies the election was won by the nominee of the Pakistan Peoples Party (Parliamentarian). There was no contesting candidate nominated to any of the two constituencies by the Tahreek-i-Istiqlal on whose ticket the petitioner had contested the election to NA-86. Exh.P.10 is the statement of results of the count in Form XVI in respect of 256 polling stations of N.A.86. Exh.P.11 is the statement of the results of the count in respect of PP.74 and has no bearing on the present petition. Exh.P.12 to Exh.P.66 are the statements of count in Form XIV in respect of 55 polling stations which include the target polling stations.
Exh.P.67 is the notification of the Election Commission of Pakistan in respect of final list of polling station in N.A.86.
23. Respondent No,1 appeared as his own witness as R.W.1. No other oral evidence was produced on this behalf Exh.R.1 to Exh.R.3 are the photo copies of the affidavits of Muhammad Usman (P.2), Ghulam Murtaza who was examined as P.W.3 and Riaz Ahmad was examined as P.W.. These were originally filed with the election petition Exh.R.4 is the affidavit of respondent No,
1. Exh.R.4/1 is the statement of the results of the count in respect of all the polling stations of N.A.86. Exh.R.5 and Exh.R.6 are the results of statements of count in respect of PP.73 -and PP.74 respectively. Exh.R.7 is the letter of the Returning Officer of N.A.86 to the learned Election Commissioner with which the result of the statements of count of N.A.86, PP.73 and PP.74 were forwarded, Statements in respect of the aforesaid three constituencies dated 9-10-2002 of the Returning Officer to the Presiding Officer of Polling Station No,114 of PP.73 according to which the voters of Chak No,10/JB, Gujjar, were allowed to cast their votes at Polling Station No,115. This letter is accompanied with the fax message of the Provincial Election Commissioner of Pakistan. Exh.R.16 is the result of count in respect of N.A.86 in Form XVII, Exh.R.11 and Exh.R.12 are the results of count in respect of PP.73 and PP.74 respectively.
Exh.R.13 is unofficial result of N.A.86. Exh.R.14 is the affidavit with which return of election expenses was filed by respondent No,
1. Exh.R.15 is the list of District Returning Officers of the constituencies of National Assembly and Provincial Assemblies for District Jhang. Exh.R.16 is the statement of count (254 sheets).
24. In the affidavit Exh.P.1 Imran Yasin stated that on 10-10-2002, in the lawn of Municipal Committee. Lights tents and chairs were arranged and throughout the night fake results were announced by the officials of the Municipality who were subordinate of the Tehsil Nazim and during the election campaign of respondent No,1 Tehsil Nazim has been making announcement for development works particularly one Jalsa was arranged by one Malik Khalil, Nazim of Union Council, Mohallah Aali Chiniot, which was addressed by the Tehsil Nazim and respondent No,1 and on the demand of Malik Khalil disposal pipes were brought in the Jalsagah to persuade the voters to vote in favour of respondent No,
1. He further stated that in Jalsa in Satellite Town, respondent No,1, in the company of the Tahir Shah announced that if votes were cast in favour of his uncle, the area 'will be supplied with the sui-gass and further that in the Satellite Town and other Jalsagahs tents and chairs where provided in the Trolly of the Municipality and in these Jalsas the 'Tehsil Nazim campaigned for respondent No,
1. Muhammad Usman was examined as P.W.2. He made similar statement as made by P.W.1 and added that wrong votes lists were supplied and a number of persons were deprived to cast their votes. Ghulam Murtaza was examined as P.W.3. He asserted the same facts as deposed by P.W.1. Sheikh Riaz, Ahmad was examined as P.W.4. According to him, he was on duty on behalf of the petitioner on 10-10-2002 at Jadid No,1 School near the Library Park and in his presence the Tehsil Nazim and respondent No,1 entered the polling station, turned out all persons from the polling station and remained there with the Presiding Office for 15 minutes. Malik Shafqat Hussain was examined as P.W.5. According to him, in the election held on 10-10-2002, a number of persons were not registered as voters and at a number of polling stations the correct electoral were not registered as voters and at a number of polling stations the correct electoral lists were not available. Further stated that the Tehsil Nazim participated in the election campaign, and for the Jalsas of respondent No,1 chairs and other articles were supplied by him. He further stated that on 10-10-2002, there was an alteration on account of announcement of wrong results from the office of Chiniot Municipality. Mr. Sabir Sultan the Additional District and Sessions Judge, Returning Officer of N.A.86 was examined as P.W.6. He stated that at 2-25 a.m. (mid-night) an application (Exh.P.6) was submitted before him by the petitioner with a photocopy of the report of the Presiding Officer of Polling Station No,127 to the effect that a ballot box of white colour was found open. It was rejected on the ground that it was not presented within the polling time. It may be noted that the ballot box referred to in the said complaint pertained to the Provincial Assembly constituency and has no relevance to the controversy raised in this petition. He further stated that the unofficial result was declared at 8-00 a.m. On 11-10-2002 and it was received by Malik Rab Nawaz, Advocate. He stated that unofficial result Exh.P does not bear the signatures of the candidates or election agents. He admitted as correct that except for Polling Station No,158, the other 46 polling stations were manipulated by the Tehsil Nazim Chiniot, in connivance with the Presiding Officers of the aforesaid polling stations. On being questioned he stated that the list of the polling staff was supplied by the District Returning Officer and that the Tehsil Nazim, Chiniot, had nothing to do with the appointment of the polling personnel. Likewise, as far as the locations of the polling station is concerned, the Tehsil Nazim had nothing to do with it. He further stated that he did not receive any complaint of connivance of the Tehsil Nazim or respondent No,1 or that of his close relatives with the polling staff in the process of election. He also stated that the election was conducted fairly, no corrupt or illegal practice was committed and allegations to this effect were not correct.
' The petitioner appeared as his own witness as P.W.7 and supported his case.
25. In his statement as R. W.1 respondent No,1 appeared as his own witness and controverted the allegations of corrupt or illegal practice.
26. The learned counsel for the petitioner contends that specific allegations were brought against the Tehsil Nazim. His affidavit was filed with the written statement but he was not produced. There was an allegation that a number of Councillors had supported the election campaign of respondent No,1 but none of them was produced. Therefore, the statements of the witnesses examined by the petitioner in support of their allegation that election campaign of respondent No,1 was monitored by the Tehsil Nazim and other Councillors goes unrepeated and an adverse inference, against respondent No,1, is fully justified under Article 129 of the Qanun-e-Shahadat Order, 1984. It was next contended that provision of section 38 of Act No,LXXXV of 1976 was violated inasmuch as that the result of count was not supplied to any agent of the petitioner, and in the statements of count of 40 polling stations the name and designation of the Presiding Officers were not given with the result that it could not be ascertained that these results were complied by the Presiding Officer 'appointed at the said 'polling stations. These were specifically pointed out during the course of his arguments. He submits that the evidence produced by the petitioner fully established that the election campaign of respondent No,1 was fully supported by the Tehsil Nazim and his Councillors. Reference was made to the Jalsas identified by the witnesses which according to the learned counsel, the Tehsil Nazim had also addressed and promised development works to persuade voters to vote for respondent No,
1. It was maintained that affidavit of the Tehsil Municipal Officer, Chiniot was filed to rebut this allegation but he was not produced nor any other record of the Tehsil Municipal Administration was, produced to rebut the allegation of execution of the development works. According to him, the votes polled at the target polling stations were 65% whith was a very high percentage while in the area of Rajoa (at 10 polling stations) the total number of votes polled were 61% which was again a very high percentage. Referring to Exh.P.7 the copy of the unofficial result, supplied by the Returning Officer, the number of polling stations and number of rejected votes, the votes polled, valid votes and the rejected votes, and were not given.
From this he wanted to infer that the result was manipulated after the supply of the copy of the unofficial result. He then referred to Exh.P.8 and Exh.P.9 and maintains that interpolations were made in the results of PP.73 and. PP.74 also referred to Exh.P.12, Exh.P.14, Exh.P.16, Exh.P.22, Exh.P.25, Exh.P.52, Exh.P.53 and Exh.P.55, which, according to him contained cuttings and overwritings. He then referred to statement of R.W.1 and claimed that while he stated that support by Tehsil Nazim in his official capacity and as close relative of respondent No,1, was entirely different. From this statement he wanted to infer that respondent No,1 had admitted that he had the support of the Tehsil Nazim. He also pointed out that while registered voters at Polling Station No,114 were 728, the votes polled were found to be 757.
27. He further maintains that respondent No,1, who is Syed by caste has been projecting sectarian feelings by persuading the voters to vote in his favour because he was "Syed" by caste while the petitioner was a "Sheikh". Thus, provision of section 78(4) of Act No,LXXXV of 1976 was violated.
28. He contended that not only paragraph 23 of the Code of Conduct was violated by exerting undue influence on the voters by inducement made through the promises of development works, provision of section 81(1)(e) of Act No,LXXXV of 1976 was also violated and by the official assistance manipulated through the Tehsil Nazim, section 83(b) of the said Act was violated. Thus, respondent No,1 was guilty of corrupt and illegal practices. He also maintains that provision of section 38 of Act No,LXXXV of 1976 having been violated clause (a) of section 70 was also attracted, election of respondent No,1 stands vitiated and the election is liable to be declared void as a whole.
29. On the other hand, the learned counsel for respondent No,1 submits that the so-called complaint regarding delimitation has no merit whatsoever because for this election, since the seats for the National and Provincial Assemblies were increased the delimitation for any earlier election had to be revised. He further submits that any grievance with regard to delimitation is not relevant at this stage. He contended that the burden to prove this issue was on the petitioner and in fact, it was a case of no evidence as far as the allegations of corrupt or illegal practices is concerned. The witnesses examined on behalf of the petitioner levelled general allegations of the support of the Tehsil Nazim. As far as the allegation regarding the Jalsas at Mohallah Aali Chiniot and Satellite Town are concerned their testimony was discrepant. The statement of P.W.1, regarding the Jalsa at Mohallah Aali, Chiniot, was negated by the petitioner himself who appeared as P.W.7.
As far as the omission of full particulars of Presiding Officer were missing. He also pinpointed certain polling stations, with the same deficiency, in which Maulana Rehmat Ullah, a candidate of the MMA, had polled more votes than respondent No,1 and even at some Polling Stations, with the same shortcoming, the petitioner had polled higher number of votes than respondent No, 1.
According to him the complained omission did not, in any manner affect the result of the election.
He next contended that although some voters of Polling Station No,115 were allowed to cast their votes at Polling Station 114 but it under the direction of the Provincial Election Commissioner and it did not materially affect the result of the election because the difference of votes polled by the petitioner and respondent No,1 was 12651. Reliance was placed on Hakam Ali and others v. Deputy Commissioner/Election Tribunal and other PLD 1982 SC 172. As far as L the number of votes polled in the area of Rajoa it concerned, he submitted that it was the residence of respondent No,1 and, therefore, the result was not unusual. He also contended that as far as the target polling stations are concerned, not even a single polling agent of those polling stations was examined in support of the allegations of illegal or corrupt practice at the aforesaid polling station. He also submitted that the standard of proof required to establish corrupt or illegal practice was the same as required to prove the guilt of an accused in a criminal case which was utterly lacking in this case. Reliance was placed on Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Jamaluddin Shah v. Abdul Sattar and 13 others PLD 1986 Journal 146 and Mir Behram Khan Marri v. Nawabzada Mir Gazain 1996 CLC 963. He was also critical of taking into consideration the affidavits of the witnesses of the petitioner on the ground that these were required to be verified on oath but were verified on solemn affirmation.
30. The learned counsel for the petitioner also made submissions in rebuttal and contended that his affidavits were received in evidence without any objection, section 13 of the Oaths Act was a curative provision and the pleas were only hypertechnical. Since they have been cross-examined at length nothing turns on the omission being relied upon by the learned counsel for respondent No,
1. He reiterated that the petitioner was a victim of injustice at the time of delimitation and corrupt and illegal practice were committed during the election campaign, during the polls and after the polls at the time of compilation of the results.
31. I have considered the submissions made by the learned counsel for the parties. The grounds to declare an election as a whole void have been given in section 70 of Act No,LXXXV of 1976 which are as follows:-- "(a) The failure of any person to comply with the provision of the Act or the Rules;
(b) the prevalence of extensive corrupt and illegal practice at the election."
' The expression "extensive" used in section 70 clearly means a high magnitude of corrupt or illegal practice. Therefore, the evidence produced by the petitioner has been examined in the light to the aforesaid requirement of law.
32. As far as the pre-election complaint of the petitioner regarding delimitation is concerned, it has no merit nor any evidence is available on the record that the result of the election was materially affected. In fact, such a dispute is not relevant at this stage because against delimitation, the law provided remedies. The other complaint is that the election campaign was launched by the Tehsil Nazim, Chiniot, before the election while on the day of election the office of the Tehsil Municipal Administration was open and it was used as election office of respondent No,1. Except that on 10- 10-2002 Municipal Committee lawns were used tents and chairs were arranged, and that respondent No,1 and the Tehsil Nazim, Chiniot had addressed a Jalsa at Mohalla Aali, Chiniot, where disposal pipes were brought. P.W.1 did not level any specific allegation of corrupt or illegal practice committed by or at the instance of respondent No,l. However, the petitioner who appeared as P.W.7 stated that laying of disposal pipes by the Tehsil Nazim was made in the Jalsa held at Eidgah and the disposal pipes were brought on the spot on the next day. Therefore, the statement of P.W.1 that the disposal pipes were brought in Jalsa in Mohallah AaIi Chiniot, the same day stands completely demolished. As far as Satellite Town Jalsa is concerned, and the promise statedly made by the Tehsil Nazim for arranging, supply of sui gas to the said area is concerned, it was denied- by respondent No,1, who has stated that he had promised with the electorate for the supply of gas to the Chiniot City and supply of sui gas for Satellite Town was inaugurated by Mr. Faisal Saleh Hayat a Federal Minister. Therefore, the question whether any voter was influenced by this promise statedly made could hardly be said to constitute any corrupt or illegal practice contemplated by section 70 of the said Act. P.W.1 even could not tell as to who had presided over the Jalsa at Satellite Town. He also admitted that he had filed affidavit Exh.P.1. In consultation with the friends.
33. As far as Muhammad Usman P.W.2 is concerned, he has also made a similar statement as made by P.W.1. He claims to be present in. The Jalsa in Satellite Town. He was confronted with his affidavit in which it was not so recorded. He also asserted bringing of disposal pipes in the Jalsa of Mohallah Aali, Chiniot, but as stated above, this allegation stood controverted by the testimony of P.W.7. As far as P.W.3 is concerned, it is in the statement of the petitioner, that he had got employed P.W.3 in the newspaper. He was thus, under the influence of the petitioner. P.W.4 stated that the Tehsil Nazim had visited Jadid No,1 School on the election day but except that the Tehsil Nazim was present with the Presiding Officer for 15 minutes nothing was said by this witness against respondent No,1 he did not even assert that he was a polling agent of the petitioner although he claims to be on duty at the said polling station. He was not even aware of the number of votes polled by the petitioner and respondent No,
1. Malik Shafqat Hussain appeared as P.W.5. The only allegation levelled by him against respondent No,1 was that the Tehsil Nazim had participated in the election Jalsas of respondent No,1 and chairs and other articles were supplied in the said Jalsas. Both the allegations were general in nature without identifying any specific Jalsa which was addressed jointly by respondent No,1 and the petitioner and the Jalsas in which chairs and other articles were supplied. In cross-examination he admitted that he did not visit other polling stations and remained present at his polling station. Therefore, the testimony of the aforesaid witnesses does not provide the standard of proof requisite to deseat an elected representative. P.W.6, the Returning Officer, supported the case of respondent No,
1. The statement made by the petitioner was a self-serving statement and unless specific allegations were proved by satisfactory independent evidence, it was not sufficient to sustain the plea. It may be observed that the type of oral evidence produced by the petitioner could be easily procured.
34. The contentions of the learned counsel for the petitioner were based more on the non- production of the witnesses whose affidavits were relied upon by respondent No,
1. Nothing turns on its because it was the petitioner who had to establish extensive corrupt or illegal practices at the election.
35. As far as the objection that on the statement of count prepared by the Presiding Officers, the name and designation or either the name or the designation of the Presiding Officers was missing is also not material because the learned counsel for respondent No,1 has pointed out a number of polling station in which such an omission was found and at some polling stations even the petitioner was leading. While in quite a few polling stations the MMA candidate was leading. The result count invariably contained the signatures of the Presiding Officers along with their thumb- impressions and the date and place.
36. As far as the high percentage of votes in the area of Rajoa or the target polling stations is concerned, it is only conjectural. Respondent No,1 is resident of Rajoa and, therefore, his influence in the area is understandable. As far as the submission based on Exh.P.7 to the effect that it did not contain the full particulars required to be given, is concerned, it has no merit. In fact it was a carbon copy and the columns which appear to be blank indicate that something was written. This document was also produced as Exh.R.13 and contained full particulars required to be given. As far as Exh.P.8 and Exh.P.9 are concerned these pertained to the election of the Provincial Assembly Constituencies Nos.73 and 74. As far as discrepancy in the votes registered at PS 114 is concerned, it is duly accounted for inasmuch as that under the order of the Provincial Election Commissioner, voters of the Chak No,10, Gujjar, was allowed to cast their votes at Polling Station 114. According to the statement of count in Form XIV a total number of 757 votes were polled including invalid votes.
Respondent No,1 obtained 383 votes while the petitioner obtained 263 votes. There was, thus, a difference of 120 votes. It could not be ascertained as to how many voters of Chak No,10, Gujjar, had polled their votes at this polling station.
37. As far as discrepancies pointed out by the learned counsel for the petitioner in various statements of count are concerned I have examined them. As far as Exh.P.12 is concerned the number of votes polled by all candidates at this polling station was shown to be 555 and below that a figure of 11 was written making total to 566. However, the figure 11, entered as excluded from the count was altered to 20. Notwithstanding Q this discrepancy, the number of the valid votes polled at this polling station does not entertain any doubt. As far as Exh.P.14 is concerned, total number of votes was re-written in figures as 480 and 20 votes were shown as invalid. However, according to the statement of counts instead of 500 (including invalid votes) the total comes to 499 and not 500. Thus there was discrepancy of only one vote. As far as Exh.P.16 is concerned, the total number of votes were initially entered as 496 which was corrected to 494 and according to the votes polled by individual candidates the correct number of votes polled by all of them was
494. It was thus, a clerical mistake which was corrected and was so indicated against serial No,(i) below the main body of Form XIV. As far as Exh.22 is concerned, the number of constituency initially written was PP.73 which was corrected as N.A.86. As far as Exh.P.25 is concerned, against item No,1 below the main body of the Form, instead of valid votes i,e, 423, the total number of votes i,e, 442 was given which was scored out and after giving the number of excluded votes against item No,
(ii) the correct number of votes polled at this polling station i,e, 442 was indicated. As far as Exh.P.31 is concerned, the same mistake as was committed in Exh.P.25 was made but was rectified. As far as Exh.P.52 is concerned, the votes polled by respondent No,1 are correctly shown in figure as 490 while in letters these were written as 480 which was collected as 490. As far as Exh.P.53 is concerned, the total votes polled, including the invalid votes, have been shown as 323 while the valid votes have been shown as 310 which is correct and there is no discrepancy. As far as Exh.55 is concerned, against Syed Munawar Abbas number of votes polled was recorded as 48 which were in fact, polled by the petitioner at the Polling Station No,175. The entry of votes against the name of Syed Munawar'Abbas was, however corrected and it was signed by the Presiding Officer. Therefore, except P.12 and P.14 which indicate a discrepancy of 11 votes the other statements of count in Form XIV are not doubtful or manipulated.
38. It is petitioner's own case in his sworn statement that till 11-30 to 12-00 p.m. He was leading by 7000 votes. This clearly defeats the allegation that the results were submitted by the Presiding Officer as to the Tehsil Nazim and after their examination, were forwarded to the Returning Officer.
This also shows that the results were being supplied to the Polling agents of the petitioner. I have noticed that in his sworn statement, the petitioner levelled allegations of general nature against the Tehsil Nazim except mentioning Jalsas at Eidgah and Satellite Town. No other concerned, P.W.7 could not tell the name of the person who had informed him of the Jalsa at Satellite Town. Issue No,6 is accordingly answered against the. Petitioner.
Issue No,7
39. The learned counsel for respondent No,1 did not press this issue while making submissions.
Issue No,8 (Relief)
40. In view of the findings on the issues recorded by me this election petition is dismissed.