' AMIR HANI MUSLIM, J.--- The petitioner through this petition, has impugned the election of respondent No,1, who was declared Returned Candidate from the Constituency No,PS-118, Karachi- XXX, for Provincial Assembly of Sindh, held in October, 2002.
2. The petitioner has challenged the election of the respondent No,1, inter alia, on the ground that initially the petitioner was declared elected as per the unofficial results wherein the petitioner claims to have A secured 15126 votes against the respondent No,1, who was shown to have secured 15104 votes. The petitioner claims and such information he had gathered from the news published in Daily "Dawn", Karachi, on 12-10-2002 and this result was also made available on the website of the Election Commission of Pakistan.
3. According to the petitioner immediately after this unofficial result, by which the petitioner had secured more votes than the respondent No,1, the Returning Officer in league with the respondent No,1 had unauthorizdely changed the result and the respondent No,1 was declared to have secured 14711 votes whereas the petitioner as per the official result had secured 14635 votes. The petitioner has further pleaded that the. Representation was made by him to the Chief Election Commissioner, who ordered recount and stayed issuance of the Official Notification in favour of the respondent No, 1.
4. It has been further alleged that during the recount, the Returning Officers unauhorizedly rejected several valid votes polled in favour of the petitioner, inter alia, on the ground that those votes did not bear the signatures of the Presiding Officer on its reverse side. It has been further alleged in the petition that during the recount before the Returning Officer. The Returning Officer had erroneously counted 500 invalid votes casted in favour of the respondent No,1 though they have different stamps of the Assistant Presiding Officer and did not have any folding marks. It was alleged that the Returning Officer had declared the respondent No,1 as Returned Candidate after the recount and thereafter by impugned Gazette Notification issued on 5-11-2002, the respondent No,1 was declared as the Returned Candidate.
5. The respondent No,1 had filed his written statement disputing and denying the averments made in the petition by the petitioner.
6. On 18-3-2003 following issues were framed:--
(I) Whether petition is not maintainable?
(II) Whether Returning Officer unduly favoured the respondent No,1 and changed the result after declaring the petition as Returned Candidate?
(III) Whether large number of votes actually casted in petitioner's favour were wrongly rejected by the Returning Officer, if so, to what effect?
(IV) Whether the Returning Officer wrongly rejected about 500 votes on the ground that the same did not bear at the back thereof the signatures of the Presiding Officer?
(V) Whether the Returning Officer counted in favour of the respondent No,1 more than 500 such votes as were liable to be rejected, if so, to what effect?
(VI) What should the order be?
(VII) Whether large number of votes are missing?
7. On 31-5-2003 the evidence of the petitioner was recorded. In his evidence, the petitioner produced the Election Petition as Exhibit 2, Affidavit-in-evidence as Exh.3, photocopy of newspaper clipping of Daily Dawn, dated 12-10-2002 as Exh.4, name of the petitioner appearing in the said Daily DAWN as Exh.5 copy of results declared by the Election Commission of Pakistan on its Website declaring petitioner as returned candidate as Exh.6, petitioner's name appearing on the Website result as Exh.7. The petitioner's application to the Returning Officer for recount as Exh.8. The petitioner's representation, dated 12-10-2002 to the Governor, Sindh, complaining rigging in the elections, as Exh.9. The petitioner's complaint over fax dated. 13-10-2002 to the Election Commission, as Exh.
110. The order, dated 19-10-2002 to the Returning Officer to conduct recount by the Election Commission as Exh.11. The objections to the recount by the petitioner and the orders passed thereon by the Returning Officer as Exh.12/1 to Exh.12/52. The impugned Notification dated 5-11-2002, issued by the Election Commission, declaring the respondent No,1 as Returned Candidate as Exh.13.
The Revised Form XVI, duly attested by the Returning Officer as Exh.14.
8. Iii addition to the evidence of the petitioner, the Returning Officer Mr. Inamur Rehman was also summoned and in his absence Mr. Ghulam Sarwar Arain, who at the relevant time was the Assistant Returning Officer of PS-118, appeared and produced photostat copies of the material of recount, conducted by him. The learned counsel for the petitioner did not opt to examine him and the record of recount, produced by Mr. Ghulam Sawar Arain, was taken on record. Subsequent thereto, Mr. Inamur Rehman, put in his appearance and he also produced additional material that too, was taken on record. Thereafter, the Tribunal ordered re-examining of the votes of different polling stations, which the petitioner had alleged to bear different seals on it by appointing Mr. Safiur Rehman, Joint Provincial Election Commissioner of Sindh, to scrutinize such votes in presence of the parties. The said officer on 28-8-2004 submitted his detailed report, which was taken on record.
9. The respondent No,1 put in his appearance in Court and had produced his affidavit-in-evidence and the written statement. He was cross-examined by the learned counsel for the petitioner whereafter the matter was posted for arguments.
10. It has been contended by the learned counsel for the petitioner that an envelope containing 88 invalid votes casted in favour of petitioner were missing at the time of recount before the Returning Officer. His next contention was that the envelope containing 88 votes were casted in favour of the petitioner and were wrongly excluded from the count by the Presiding Officer. According to him, the Returning Officer had changed the result and the envelope containing 88 votes was either destroyed or was thrown away by the Election Authorities with the sole object to change the unofficial results of the elections, which has been appeared in daily DAWN as well as on the website of the Election Commission. According to him, the envelope of 88 votes was not examined during recount.
11. His next contention was that the seal affixed on the votes of different polling stations was of different number and did not match with the seal of the actual poling stations, which was allocated particular number by the Election Authority. His further contention was that there was no specific denial of this fact from the side of the respondent No,1 either in the written statement or in the affidavit-in-evidence.
12. On the other hand, the learned counsel for respondent No,1 has submitted that the issue of missing envelope containing 88 votes was never raised before the Returning Officer at the time of recount and it was for the first time .Raised in the petition. He has further submitted that as far as the exclusion of invalid votes was concerned, it has come in the cross-examination of the petitioner that all those votes, which had thumb-impression were excluded from the count without distinction. He has contended that the votes containing thumb-impression polled even in favour of respondent_ No,1 were excluded from -the count. His next contention was that a detailed report was submitted by the Joint Provincial Election Commissioner pursuant to the orders of this Tribunal, on 28-8-2004, after examining the votes of the different polling stations referred to in the petition in presence of the parties and he in his report had concluded that the allegation of different number of the polling seals on such votes was incorrect. In the face of this report, learned counsel for the petitioner has not produced any evidence in rebuttal.
13. I have heard the learned counsel for the respective parties and have perused the record.
14. On the question of maintainability of the petition no argument was advanced by either side, therefore, Issue No,1 is answered in negative.
15. With regard to Issues Nos.2 to 5, which are interconnected, the petitioner had examined himself and in view of the report of the Returning Officer, coupled with the report of the Joint Provincial Chief Election Commissioner, Mr. Safiur Rehman Issues Nos-2 to 5, are decided against the petitioner. The petitioner did not examine any witness nor had summoned any officer from the Election Authority to C establish that any missing envelope containing 88 votes in his favour, which the petitioner claims to have been destroyed by the Election Authority with the ulterior motives to benefit of respondent No,1.
16. Mere words of the petitioner in the pleadings in absence of any proof cannot be made a ground to unseat the respondent No,1. In law, the petitioner is required to prove the allegations of corrupt practices against the respondent No,1, which the petitioner has failed to prove. The main issue involved in these proceedings was of missing envelope containing 88 votes claimed to have been polled in favour of the petitioner. According to the petitioner, all those 88 votes were valid and were wrongly excluded from the count. After the respondent No,1 came to know that the petitioner has secured more votes, he in league with the Returning Officer had got this envelope destroyed, which has changed the results. On this issue the petitioner has not led any evidence. The next contested issue was confined to the allegation in regard to affixation of polling seals on the votes in different polling stations other than the one allocated by the Election Authorities. Even on this issue the petitioner has failed to lead any evidence except that this Tribunal had ordered the parties to examine such votes of the different polling stations in presence of the Joint Provincial Election Commissioner Mr. Safiur Rehman and after examination, a detailed report was submitted by him which ex facie suggests that the allegations were without substance.
17. In order to unseat a Returned Candidate, inter alia, on the ground of corrupt practice, the standard of proof required is that of proving guilt of an accused in criminal proceedings and this yardstick if applied in these proceedings would result failure on the part of the petitioner to establish the proof against respondent No,1 that the respondent No,1 in any manner was involved in corrupt practices. The petitioner has not placed any material of the nature.
18. Under the above circumstances, I am of the considered view that the petitioner has failed to substantiate the allegations against the respondent No,1 in, regard to alleged corrupt practices.
Moreover, in the face of the language contained in section 68(2) of the Representation of People Act, 1976, which requires that an election of a Returned Candidate shall not be declared void on the ground if the corrupt or illegal practice was not committed with the consent or connivance of the candidate or his election agent. The result of election of the respondent No,1 cannot be held to be procured by corrupt practices. The learned counsel for the petitioner has failed to establish either the alleged missing of envelope containing 88 votes or affixation of wrong polling seals on the votes of the respondent No,
1. No specific role has been assigned to respondent No,1 in the aforesaid alleged corrupt practices, which otherwise has not been proved by the petitioner.
For the aforesaid reasons, this election petition is dismissed.