1. ' MUSHIR ALAM, J.-Petitioner Zulfiqar Ali Behan in E.P. No. 120 of 2002 has challenged the election of the returned candidate Dr. Abdul Ghaffar Jatoi, the respondent No. 1 from the seat of National Assembly Constituency NA-211 Neoshroferoze (1). Election for the said seat was held on 10-10-2002.
2. Qurban Ali Behan, the petitioner in P. No. 134 of 2002 has also challenged the election of the learned candidate Arif Mustafa Ghaffar Jatoi respondent No.l from the seat of Provincial Assembly constituency PS-19 Neoshroferoze (1). General election for the said seat was also held on 10-10- 2002.
3. ' It appears that respondent No.l (E.P. 120 of 2002). Secured 83,154 votes as against the petitioner who obtained 43,180 votes. Main ground to challenge the election inter alia that polling stations were set up at most disadvantageous position to suit the respondent No.l. Petitioner has also alleged rigging at various polling stations detailed in summary of rigging annexed to the petition at all polling station it is a common ground that "high level rigging was done by Jatoi candidate and polling agent of the petitioner, namely Morial son of Kadir Bux Tagar and Qurban Tagar were controlled at gun point and stamped ballot papers were affixed by the agent of Jatoi Candidates.
4. Polling staff did not interfere even after complaints were made to them by polling agent with the change in the name of the polling agents". Similar allegations were made in respect of other polling agent of the petitioner allegations were denied by the returned candidates/ respondent No.l in written statements filed in the referred election petition.
5. ' Stations detailed in summary of rigging annexed to the petition at all polling station it is a common ground that "high level rigging was done by Jatoi candidate and polling agent of the petitioner, namely Morial son of Kadir Bux Tagar and Qurban Tagar were controlled at gun point and stamped ballot papers were affixed by the agent of Jatoi candidates. Polling staff did not interfere even after complaints were made to them by polling agent with the change in the name of the polling agents". Similar allegations were made in respect of other polling agent of the petitioner allegations were denied by the returned candidates/ respondent No.1 in written statements filed in the referred election petition.
6. ' In E.P. No.120 of 2002 out of the pleadings of the parties following issues . Were framed on 19-6- 2003:--
(1) Whether the respondent No.1 was not qualified to contest and be elected as member National Assembly?
(2) Whether the election of respondent No.1 was procured by corrupt and illegal practice and is void?
(3) Whether the election in the Constituency NA-211 Naushahro Fcroze-1 is void for commission of illegal act by the polling staff/election staff?
(4) What should the order be?
7. ' Parties led their evidence, petitioner examined himself Exh.4, Bashir Ahmed the election agent from NA-211, Exh.5 Muhammad Younus Behan Petitioner's election agent, Shoukat Ali, Badal, Abdul Jabbar, Mushtaq Ahmed, Abdul Fateh, Rajab, Sawan, Amanullah, Muhammad Shaft all polling agents of the petitioner from various constituency. Respondent No.1 examined himself and closed the side.
8. ' Issues as framed on 20-6-2003 in Election Petition No.134 of 2002 in respect of challenging the provincial seat are as follows:--
(1) Whether the respondent No.1 was not qualified to contest for and be elected as MPA?
(2) Whether the election in the Constituency PS 19 Naushahro Feroze-1, is void for commission of illegal act and adoption of corrupt and illegal practices by the respondent No.1, his agents and supporters?
(3) Whether the election in the Constituency PS-19 Naushahro Feroze-1 is void for commission of illegal act by Returning Officer and Polling Staff?
(4) What should the order be?
9. ' In E.P. 134 of 2002 the appellant, Qurban Ali, besides himself in support of his case, examined following witnesses on 26-6-2003: ' Mushtaq Ahmed (Exh. No.5), Abdul Fateh (Exh. No.6), Amanullah (Exh.No.7), Badal (Exh. No.8), Shoukat Ali (Exh.No.9), Rahib (Exh.No.10), Muhammad Safar (Exh.No.11), Rajab (Exh. No.12) and Sawan (Exh. No.13).
10. ' The respondent No.1, Arif Mustafa Jatoi, in EP No.134 of 2002 was cross examined by the appellant, he denied that allegation of corrupt and illegal practice. He denied the allegation that his supporters snatched the books of ballot papers and othei material from the polling staff and affixed the seals upon them. It is not correct that I won the election by adopting corrupt means. No other witness was examined on his behalf.
11. ' Issue No.1.
12. ' Issue No.1 in both the petitions is common and qualification of respondent No.1, to be elected as member of National Assembly and Provincial Assembly seat respectively was not pressed at the time of arguments. Accordingly, issue No.1 in both the petitions is decided in negative.
13. ' Issues Nos.2 and 3.
14. ' Issue No.2 relates to corrupt and illegal practice, and Issue No.3 pertains to act of commission of illegal acts by the Returning Officer and election staff. In both the petitions, Issues Nos.2 and 3 are common with only difference as to constituency number and polling stations. Evidence on the issues founded on the same facts and grounds therefore, I deem it appropriate to decide the Issues Nos.2 and 3 together.
15. ' Mr. Adnan Karim, learned counsel for appellant contends that mass scale corrupt and illegal practices were committed by the respondent No.1, He contends that detail of such corrupt and illegal practice and acts of commission of illegal act by the election staff polling staff of returned candidates is detailed in the 'brief summary of rigging' filed along in respect of Constituency NA No.211 of Nausheroferoze (1) in EP No.120 of 2002. In respect of constituency PS-19 of Nausheroferoze
(1) in EP No.134 of 2002. Learned counsel took me through voluminous summary to impress upon the tribunal that the act of omission and commission were so grave that the recounting alone could establish the claim of the petitioner.
16. ' Mr. Adnan and Mr, Behan, appearing respectively for the petitioners further pointed out that the application for recounting was deferred to be decided along with the final arguments. Both the learned counsel, therefore, prayed that such recounting may be allowed by the Court.
17. ' Mr. Raza All Hashmi, learned counsel for the respondent No.1 in E.P. No.120 of 2002 and Mr. Agha Faisal, learned counsel for respondent No.1 in E.P. No.134 of 2002 vehemently opposed the petition, it was contended that the summary of corrupt and illegal practice, as relied now cannot be considered by the Tribunal. It was emphasized, that the summary of corrupt and illegal practice was not allowed to be exhibited while the appellant was in the witness-box. It was further, contended that even the application C.M.A. 795 of 2003 (filed in E.P. No.120 of 2002) to recall the petitioner to bring the summary of corrupt and illegal practice on record, was declined by the Court on 1-6-2005, which order was also unsuccessfully challenged in C.P. No.668 of 2005. In E.P.
18. No.134 of 2004 even to attempt to bring summery of purported corrupt and illegal practice, was made, it was therefore, contended that in fact there is no evidence to show the respondents No.1 in either of the elections petitions respectively committed any corrupt or illegal practice or indulged in act of commission illegal acts either themselves or through their polling staff or polling agent.
19. According to the learned counsel for the respondent No.1 petitioners in both the election petitions have failed to make out any case, the petitions are liable to be dismissed.
20. ' I have heard the arguments an perused the record.
21. Corrupt practice is defined under section 78 of the Act, 1976 and illegal practice is described in section 83 of the Act, 1976. The election could be impugned on the ground of corrupt and illegal practice in terms of section 68 of the Act; the allegations of the nature alleged in the petition are quasi-criminal in nature and needs to be proved by same standard. As noted above, in the petition, the petitioners have made general and sweeping allegations of corrupt and illegal practice and same facts are stated in the affidavit-in-evidence.
22. ' In EP No. 120 of 2002, the petitioner, Zulfiqar Ali Behan, was cross-examined by the respondent No.1 on 25-6-2003. He wanted to exhibit documents in evidence at the time of deposition. He was not permitted to add more in the cross-examination. Therefore, the summary of corrupt and illegal practice was not brought on record. In cross-examination, he stated that "it is correct that I have not deposed in the affidavit-in-evidence in respect of any particular incidents or instance of illegal or corrupt practice or illegal act specifically". He examined on the same date, following witnesses in support of his case.
23. ' Bashir Ahmed Qureshi (Exh.No.5), Muhammad Younus Behan (Exh.No.6), Shaukat All (Exh.No.7), Badal (Exh.No.8), Abdul Jabbar (Exh.No.9), Mushtaq Ahmed (Exh.No.10), Abdul Fateh (Exh.No.11), Sawan (Exh.No.12), Amanullah (Exh.No.13), Muhammad Safar (Exh.No.14) and Rajab All (Exh.No.15) were examined.
24. ' The witness Mushtaq Ahmed in cross-examination admitted that "it is a fact that I have not given particular incident of corrupt or illegal practice or illegal act specifically". Though he stated that "I have given illegal activities on the whole in the constituency;" Witness Abdul Patch stated that "I had not been read over the affidavitin-evidence after preparation." Witness Amanullah in his cross-examination stated that "it is correct that I have not stated in my affidavit-in-evidence that I had complained to SP or other authorities about the incident when they visited the polling station."
25. Witness Badal stated that "it is correct that I have not levelled any direct allegation against respondent No.1 about specific incident." Witness Shaukat All stated "it is correct that I have not levelled direct allegation against the respondent. No.1 about the incident happened at Polling Station". All the remaining witnesses named above in cross-examination deposed 'they had not made any direct allegations against the respondent No.1 in respect of corrupt and illegal practice'.
26. ' His witness, Bashir Ahmed, in paragraphs 8, 10 and 11 stated that his vehicle was snatched and bogus votes being "casted". He could not withstand cross-examination, he admitted that "I have not specifically mentioned full particulars of any particular incident". He further stated that "he specifically talked of the four particular incidents which are mentioned in paras.8, 10 and 11 of affidavit-in-evidence that after the day of polling till the date of swearing of my affidavit, I did not attempt to verify the number of those of four polling stations" Mr. Younus Behan, another witness, in cross-examination stated, that "it is correct that affidavit filed by me in evidence does not contain any allegations of corrupt or illegal practice, or illegal act in the election of respondent No.1" Other witnesses of the appellants also made similar statement none of the witnesses made any specific allegation of corrupt and illegal practice or written complaint against the respondent No. 1.
27. ' The respondent No.1 Dr. Abdul Ghaffar Jatoi examined himself. He was not confronted with any of the incriminating evidence of corrupt or illegal practice.
28. ' In EP 134 of 2002, the appellant, Qurban Ali, (Exh.No.4), appeared on 25-6-2003 inthe witness-box, he stated as follows:-- 'It is correct that no specific incident of corrupt practices or illegal act has specifically been mentioned in my affidavit in evidence. Voluntarily says that I have stated in my affidavit that contents of petition are part of the affidavit in evidence. It is not correct that I have levelled false allegations about the corrupt practices and illegal acts during the election.
29. ' Note: Mr. Muhammad Younus Behan, Advocate for the petitioner requests for accepting the documents in evidence annexed to the petition. Since no document has been filed together with Affidavitin-Evidence which is in fact the Examination-in-Chief of the witnesses and no question directly referring to any of such documents has been put to the witness in cross-examination. The request made by Mr. Muhammad Younus Behan is rejected."
30. ' None of the witnesses supported the case of the petitioner, no evidence of corrupt or illegal practice was brought on record.
31. It is no now settled position in law that to prove corrupt and illegal practice burden lies heavily on the petitioner, allegations of irregularities, illegalities and corrupt practices are to be established giving full particulars of those corrupt or illegal practice like a criminal charge, beyond a shadow of doubt. (If reference is needed one may refer to Muhammad Saeed v Election Petitions Tribunal, PLD 1957 SC (Pak) 91, Muhammad Ahmed Siddiqui v. Zamir Ahmed Tunio and other 2003 CLC 1224 and Syed Abdul Latif Shah v. All Muhammad Khan and others 2004 M LD 36.
32. ' It may be observed that in E.P. No.120 of 2002 the appellant filed C.M.A. No.795 of 2005 seeking recall and examination of the petitioner to produce the documents annexed to the petition. As recorded above, the evidence of the petitioner was recorded on 25-6-2003, the application was made on 15-4-2004 more than one year after the cross-examination, when the case was coming up for final arguments. The application was dismissed after hearing and through speaking order dated 1-6-2005, which order was impugned in C.P. No.668 of 2005, a Division Bench dismissed it on 5-10-2006. Therefore, it cannot be said that material contained in summary of allegations attached to the petition could be examined to fish out the allegations of corrupt and illegal practice. I may be observed that allegations remain allegations, unless proved through corroborative evidence that withstand the test of cross-examination. It may be observed that neither of the petitioners produced any material worth consideration, nor any of the witness supported the case of the petitioners, nor any incriminating evidence was confronted to the respondents c that may warrant declaration of election as void.
33. ' Issue No.4.
34. Consequent upon finding recorded on Issues Nos.1 to 3, petitioners have failed to substantiate through any material or evidence any case for corrupt and illegal D practice and or act of commission of illegal act, accordingly the election petitions are dismissed, along with all pending applications.