Mr. Yahya Bakhtiar Khan (hereinafter called the accused) has been sent up to this Court to stand trial under Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977. The allegation against him is that during his tenure as Attorney-General of Pakistan, he in the General Election in the Country held on 27th March, 1977 contested election to the National Assembly from Seat No. NA-195-Quetta-1 1 on the ticket of the Pakistan People's Party , then the ruling party in the Country , and that he directly and through the supporters and workers of the party pressurised the Government servants to manipulate the election in his favour with the result that by dint of false and fake result he won the election and was declared a successful candidate to the National Assembly from Seat No. NA-195-Quetta-1 1.
2. The prosecution case is that on the close of polls on 7-3-1977 when the accused learnt that he still lost the election to his rival candidate Mahmood Khan Achakazi despite his (accused's) manipulation, ha withheld the announcement of the election result and on 8-3-1977, the concerned officials in Malitia Fort at Pishin under undue pressure and influence exercised upon them invalidated 10993 votes secured by his rival candidate Mahmood Khan Achakzai while thousands of unused ballot papers were also fraudulently marked in favour of the accused and in consequence it was announced that the accused had won the election by securing 17983 votes as against 17004 votes secured by his rival candidate Mahmood Khan Achakazai. The accused was thus declared to have been elected to the National Assembly from Constituency No. NA-195-Quetta-II by securing more 979 votes.
3. The prosecution story is that apart from the accused and Mahmood Khan Achakzai of Pukhtoon Khwah, National Awami Party , two other indep endent candidates, namely S. Abdul Wahid and Ghulam Muhammad Khan also contested election on 7th March, 1977 for Constituency No. NA-195Quetta-1 1 and as the election result not announced till the following day, the election agent of Mahmood Khan Achakzai addressed a telegraphic complaint to the Election Commission (Exh. P . W. 27/1) which is to the following ef fect : "Official certified result from polling stations No. NA-195-Quetta-II show Mahmood Khan Achakzai 23957, Syed Abdul Wahid 5871, Yahya Bakhtiar 5764. Government and Radio not giving results accordingly .
Immediate action is required."
4. The election result was, however , announced on 8th March, 1977 declaring the accused to have been elected to the National Assembly from Constitue ncy No. NA-195-Quetta-1 1. In this connection reference may be made to Exh. $W2/5, which shows that the accused had secured 17983 votes and his close rival candidate Mahmood Khan Achakzai 17004 votes while S. Abdul Wahid had secured 8904 votes and Ghulam Muhammad Khan 1170 votes According to this Exhibit, the accused had thus won the election by a margin of 979 votes as against his rival candidate Mahmood Khan Achakzai.
5. On receipt of the aforesaid complaint (Exh. P W 27/1), the Election Commiss ion of Pakistan, in the exercise of its powers conferred upon it by the Representative of Peoples (Second Amendment) Ordinance, 1977 (No. XV of 1977) held inquiry into the matte r through its Secretary , Mr. A. Z. Faroo qi (P. W. 27). As a result of his inquiry , Mr. A. Z. Farooqi submitted two reports, one dated 15-4-1977 (Exh. P W 6/18) and the other dated 3- 5-1977 (Exh. P W 27/4). In the first mentioned report inter alia, notice was taken of the large number of votes allegedly validly secured by Mahmood Khan Achakzai but were rendered invalid. In one case 1200 votes of Mahmood Khan Achakzai, in another his 2000 votes and in the third also his 2000 votes were found to have been invalidated. As regards the fourth case, it was observed in paragraph 6 of the report (Exh. P W 6/ 18)
"-This run of coincidence attains the stature of a mathematical impossibility when we find, in polling station No. 59, that exactly 100 votes have been declared invalid, all of them obviously deducted from Mr. Mahmood Khan's account."
6. In the same paragraph 6, the report further proceeded to observe :- "-..It should be noted that the constituency as a whole shows that out of a total of 54542 votes cast, according to the official statement of count no less than 10874 were invalid. This is a percentage of 20%which is quite simply unbelievable. In any normal constituency in Pakistan a percentage greater than 5 % of rejected votes for the constituency as a whole, would give rise to serious concern."
7. In the course of inquiry , it also came to light that no polling was held in Polling Stations Nos. 68 and 69 of the Constituency and further that Malak Bahram Khan, the polling agent of the accused, had taken the Presiding Officers of these two polling stations to his own house where ballot papers were marked illegally in favour of the accused. While dealing with the aspect of the case, this is what has been remarked in paragraph 7 of the report dated 15th April, 1977 (Exh. P W 6/18): "We find that Mr. Yahya Bakhtiar has secured heavily in these stations, getting 2572 out of 2674 votes in the first case and 1357 votes out of 1510, in the case of polling station No. 69. It would be seen that the result of polling station No. 68 alone is suf ficient to change the result of the whole constituency ."
The report concludes with the remark that :- "The analysis above indicates very clearly that this is at the same time one of the most clear and serious cases of malpractice that has come before the Committee. This election can be declared null and void for any one of 3 or 4 separate reasons."
8. Pursuant to this report (Exh. PVN'6/18), the opinion of the Finger Print Expert with regard to the thumb- impressions on the ballot papers were secured and thereafter a supplementary report dated 3-5-1977 (Exh. P W 27/4) was recorded. It may be stated that it had also been brought to the notice of the Commission that the supporters of Pukhtoon Khwah had taken forcible possession of some of the polling stations. While dealing with his episode, it is observed in paragraph 2 of this supplementary report :- "It has already been remarked in the original brief that it was not credible that if these polling stations were completely taken over by Pukhtoon Khwah NAP . As allegedly the R. O., they then proceeded to double and triple-stamp the majority of the ballot papers. Obviously multiple stamping on this scale must have taken place subsequently . It was observed that apart from Mr. Mahmood Khan, the other stamps were placed indiscriminately against the names of one or two of the other candidates. It was further observed that the ink of the stamp placed against Mr. Mahmood Khan's name was almost invariably of a different shade and consistency than the ink of the other one or two stamps. If there were 3 stamps on a paper then the ink of Mr. Mahmood Khan's stamp is of a different colour from the other two, which are invariably similar to each other .
All these observations confirm the conc lusion that an organized attempt was made after the close of polls, to reduce and triple stamping."
After giving the reasons, the Committee observed :- -..The conclusion is inescapable that nearly 8000 votes have been manufactured after the polling in favour of Mr. Yahya Bakhtiar in these 5 stations. This conclusion is reinforced by the fact that the thumb-prints of the same man have been found on the counterfoils of Polling Stations Nos. 56, 57, 58 and 69, and the thumb-prints of another man have been found on the counterfoils of Polling Stations Nos. 56, 57, 58 and 68. This is only possible if there has been planned and centralised rigging after the polls."
It was accordingly held that :- "..However , these are minor matters and have not bearing upon the conclusions arrived at above, which shows beyond the shadow of a doubt that there has been organized malpractices in this election after the close of polls which has clearly changed the result in favour of on candidate. Doubtless the persons who organized the rigging would be able to explain any small discrepancies in the figures. None of the bags examined produced any statement of Court or balot paper account or even a single seal or code-m ark. The absence of all these items cannot be fully explained by the alleged disorder in some stations, It is very likely that the polling was not orderly quiet in some stations, But even in some of the nine stations alleged to have been the worse affected, it is on record that the material was never in the control of the mob. Four of the eight stations examined above do not fall in the `worst affected' category . The extraordinary absence of material from these bags will remain an unsolved mystery ."
9. As a result of this report (Exh. P W 27/4) dated 3rd May, 1977, the commission came to the conclusion that a prima facie case of rigging has been made out against the accused under the provisions of the Representation of the Peoples Act, 1976 as amended by Ordinance No. XV of 1977 and in consequence issued notices to the parties from 2nd May , 1977.
10. In response to this notice, the accused addressed to the Commission a letter dated 29th May, 1977 ? (actual 29th April, 1977) in which he while seeking adjournment of the case on account of his professional pre- occupation further took exception to the Commission's taking cognizance of the case on the basis of the complaint addressed to the Commission in the form of a telegram Exh. P W 27/1). The above letter of the accused is Exh. PW5/6 and its photostat copy is Exh. P W 6/8. This letter may be reproduced verbation:- "Please refer to your letter No. F. 13(6)/ 77-Els. Dated 28th April, 1977, on the subject. I have to appear before a Full Bench of the Sind High Court on 3rd May, 1977 where the legality of Martial Law has been questioned.
I have been specially directed to defend this case. A similar case is also pending in Lahore High Court while I believe is also. Fixed 3rd May, 1977 and I understand a notice in that case has also been issued to me. I have not received that notice so far. Under the circumstances it is requested that some other date for the hearing may kindly be fixed as I will not available in Islamabad on 4-5-1977.
(2) The telegram is so vague that I am 'surprised that the Election Commission could take action on the basis of this telegram. In any case I would request that copies of the reports, if any, of the Returning Officers, Provincial Election Commissioners, statements of the Presiding Officers recorded or made, be supplied to me before I can appear and defend this case.
(3) I would also request that the matter may kindly be heard at Quetta as over 30 Presiding and Polling Officers and Polling Agents may have to be examined to fully appreciate the nature of this case."
11. Upon this letter , the Commission adjourned the proceedings to 4th May, 1977 and the accused was informed accordingly , vide its letter dated Ist May, 1977 (Exh. PW6/7). It was further communicated to him in the said letter that : "The Commission has further directed that in case it is not possible for you to attend the hearing personally , you may kindly arrange representation of your case through your counsel, who may, if necessary , seek adjournment of the hearing and plead for other preliminary issues as stated in your letter referred to above before the Commission on due date."
12. On 4th May, 1977 so fixed in the case, the accused did not appear either personally or through a counsel, and the Commission adjourned the bearing to 12th May, 1977, on the consideration "to afford another opportunity to Mr . Yahya Bakhtiar to attend the proceedings in this case".
13. On 11th May, 1977 the accused did not appear before the Commission in person but through a counsel. His counsel was supplied copies of all the relevant documents including the report of Finger Print Expert which formed the basis of the above-mentione d two reports (Exh. P W 6/18 and Exh. P W 27/4). The Commission further directed that :- -The case will come up for the reply and evidence on 16-5-1977. The learned counsel has also been told that the case to be concluded before 20th May, 1977 and, therefore, be should be ready with the defence evidence also before that date."
14. This order passed on 12th May, 1977 is Exh. P. W. 6/10. It so happened that by President's Order dated 12th May, 1977 the Representation of the People (Second Amendment) Ordinance, 1977 (XV of 1977) was with.
Drawn, and as the powers conferred upon the Commission under the said Ordinance were no longer available to the Commission, the proceedings before it became infructuous and consequen tly the Commission passed the following order on 14th May , 1977 (Exh. P . W . 6/l l) : "The proceedings have become infructuous owing to the President's Order dated the 12th of May, 1977 withdrawing the Representation of the People (Second Amendment) Ordinance, 1977 (XV of 1977).
15. As a result of the countrywide agitation on account of the massive rigging in the elections held on 7th March, 1977 Martial Law in the country was proclaimed on 5th May, 1977. The Chief Martial Law Admin consequently constituted an Election Inquiry Committee (hereinafter calle d the C. M. L. A. Inquiry Committee) to enquire into alleged malpractices in the elections. The C. M. L. A. Inquiry Committee found that the accused was elected as a result of massive rigging from Constituency No. NA-195-Quetta-II, vide its report Exh. P . W. 6/1.
16. Meanwhile, the Holders. Of Representative Offices (Punishment for Misconduct) Order , 1977 (P. O. No. 16) of 1977), was enacted on 25th November , 1977. This order was subsequently amended by the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order , 1978 , promulgated on 17th January , 1978, providing for the punishment of any Holder of Representative Offices found guilty of misconduct in any election held after December , 1970.
17. In paragraph (aa) of Article 2 of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, as amended, rigging of election has been defined thus :- "(aa) 'rigging of election' includes any act or thing done or action taken by any person, either directly or through any other person, so that an election is not conducted honestly , justly , fairly and in accordance with law or to influence the result of an election to a House of Parliament or a Provincial Assembly in a fraudulent, underhand or illegal manner ."
18. Clause (2) paragraph (g) of Article 3 of this Order says :- "A holder of representative of fice is said to commit the of fence of misconduct-
(g) if he commits rigging of election."
19. Article 4 of this Order has conferred power on the President to establish by notification in the official Gazette as many Special Courts as he may consider necessary for the trial of schedule offences committed by Holders of representative of fice and of fences punishable under Article 3 of the Order .
20. Clause (2) of Article 4 of this Order says that each Special Court shall consist of a person who is a Judge of a High Court.
21. Clauses (1) and (2) of Article 5 of the Order say that :- ''5. Offence to be tried by Special Court.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law for the time being in force, a schedule offence committed by a holder of representative office and an offence punishable under Article 3 shall be tried exclusively by a Special Court.
(2) The Special Court shall not take cognizance of an offence triable by it except with the previous sanction of the Federal Government."
22. In clauses (1), (2) and (3) of Article 6 of the Order , it is laid down:- "6. Power and procedure of Special Court.-(1) A Special Court may pass any sentence authorised by law and shall have all the powers confeered by the Code of Criminal Procedure, 1898 (Act V of 1898), on a High Court exercising original jurisdiction.
(2) Notwithstanding anything contained in any law for the time being in force, a Special Court shall have power to conduct its proceedings and regulate its procedure in all respects as it deems fit.
(3) No trial before a Special Court shall be adjourned for any purpose unless the Special Court is of opinion that the adjournment is necessary in the interest of justice and, in particular , no trial shall be adjourned by reason of the absence of any accused person due to illness, or if the absence of the accused or his counsel has been brought about by the accused person himself, or if the behavior of the accused person prior to such absence has been, in the opinion of the Special Court, such as to impede the course of justice but, in any such case the Special Court shall proceed with the trial after taking necessary steps to appoint an Advocate to defend any such accused person."
23. As stated above, the C.M.L.A. Inquiry Committee found the accused to have been elected from Constituency No. 195-Quetta-II as a result of massive rigging which, according to the Committee, was carried out at the behest and within the knowledge of the accused. As the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, was then in force, Mr. Muhamm ad Hamayun Khan (P. W. 6), Deputy Secretary , Election Commission of Pakistan who was associated with the C. M. L. A. Election Inquiry Committee as Member lodged F. L R. (Exh. P. W. 6/2) against the accused on 25th March, 1978, with the Federal Investigation Agency . The Federal Investigation Agency enquired into the matter and on the basis of oral and documentary evidence so collected by it was of the opinion that a prima facie case under Article 3 of the Order exists against the accused. Therefore, the said Agency obtained sanct ion of the Central Government for the prosecution of the accused and thereafter put challan in this Court established, vide Notification No. F45(1)/78-A dated 21-4-1979 issued under Article 4 of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977.
24. In the first instance, on 16th July , 1979, the accused was served with the following char ge-sheet :- "I, S. Usman A.I Shah (Judge of Peshawar . High Court) Special Court established under Holders of Representative Offices (Punishment of Misconduct) Order , 1977, do hereby charge you Mr. Yahya Bakhtiar Khan son of Haji Abdul Karim, Jinnah Road Quetta, that in or about the mont h of March, 1977, , while you were Attorney-General for Pakistan and Holder of Representative Office did following acts directly and through other persons :-
(a) You pressurized Government servants to manipulate the election in your favour ,;
(b) You got polling staff specifically selected for the purpose for rigging the election in your favour with such staff ;
(c) You manoeuvred to have secured large number of votes from the polling stations where no polling was actually held ;
(d) You got the result of election withh eld on 7th March, 1977 as the process of rigging was not complete in the Scouts Fort at Pishin on that day ;
(e) You obtained false and fake result in your favour ;"
25. As a consequence the election to National Assembly Seat No. 195-Quetta-II held on 7th March, 1977, was not conducted honestly , fairly and in accordance with law and also influenced the result of the said election to the House of Parliament fraudulent, underhand and illegal manner and thus rigged the election to seat No. NA- 195-Quetta-II, And thereby committed the offence of 'Misconduct' punishable under Article 3 of the Holders of Representative Of fices (Punishment for Misconduct) Order , 1977 and within the cognizance of this Court.
And I direct that you be tried by this Court on the said char ge.
Given under my hand and the seal of the Court this 16th day of July , 979.
26. The accused did not plead guilty to the char ge. Hence this trial.
27. In support of its case regarding the guilt of the accused, the prosecution produced 31 witnesses out of a total list of 44 witnesses. Mr. Nasrum Minallah Khan, then the Chief Secretary of the Government of Baluchistan Province and Nayyar Agha, then the Deputy Commissioner , Pishin , at the material time had died.
Mahmood Khan Achakzai, the rival candidate of the accused in election and his three polling agents,.' namely , Abdur Razaq Duttani, Muhammad Hussain and Muhammad Aslam -in spite of processes issued to them for their appearance before the Court for giving, evidence did not turn. Mahmood Khan Achakzai communicated to this Court in writing that be did not wish to give evidence against the accused. Rest of the witnesses were abandoned by the prosecution as unnecessary and closed the case for the prosecution on 27-7-80.
28. The accused was theareafter examined under section 342; Cr. P. C. He denied all the charges levelled against him and put in a written statement dated 9-8-80. He applied for summoning of witnesses in defence.
But when the Court assembled on 14-9-80 at Quetta to record the defence evidence; a judgment of the Baluchistan High Court (in a writ petition filed by the accused seeking declaration that his trial was without jurisdiction) was delivered in his favour a day earlier , i. e. 13-9-80 and therefore no evidence could be recorded on that date. The State then filed Petition for Special Leave to Appeal in the Supreme Court of Pakistan and on a petition filed in that behalf, the Supreme Court of Pakistan was pleased to, suspend the operation of the .Aforementioned judgment and in consequence thereof the trial was resum ed and defence evidence was recorded. In addition to producing six witnesses in defence, the accused himself appeared as his own witness.
29. In his statement recorded under section 342, Cr. P. C., while denying other circumstances appearing in evidence against him, the accused admitted that he had contested election for National Assembly Seat No. NA195-Quetta-l1 held on 7-3-1977 as a nominee of the Pakistan' People's Party in which contest Mahmood Khan Achakzai, S. Abdul Wahid and Malak Ghulam Muhammad were his rival candidates. While answering to question No. 6 to the ef fect that why the P . Ws. Have stated against you, the accused replied :- "The P. Ws. Are all Government officials. The non-of ficial witnesses have refused to testify against me. These officials are self-confessed offenders. They have admitted that they rigged the election. These officers wanted to save their skins. They should have been prosecuted, but they have been brought in evidence against me. But I must add here, when I say they, I particularly mean one of them, i. e. Islam Bahadur . No other witness has implicated me in the offence. I further add that the case against me is the result of mala fide. I am respectfully submit that I have already sent a confide ntial letter to the Court giving some of the reasons for my prosecution.
I request the Court that that letter may be kept in a sealed envelop with this statement of mine. Apart from that, I respectfully submit that I am the only person throughout the country who has been singled out for this hostile treatment for being prosecuted on the charge of .Rigging an election in a Special Court exclusively set up for my trial by the Military Regime to victim ize and defame me for the reason that I challenged the Martial Law in Begum Nasrat Bhutto's case in which I bitterly criticized the Martial Law and again, I submit, that I was the chief defence counsel of the late Prime Minister Bhutto and while defending him I again criticized the Military Regime and some other persons. I will submit a written statement to slightly elaborate this point."
30. The statement made by the accused as his own witness as D. W. 7 being important, its relevant parts are reproduced in extenso :- "In March 1977 I was a candidate for NA-195-Quetta-II Constituency in General Elections. At the outset, I would like to see that I never applied for the party's ticket for this or any other constituency On or above 6?h January 1977, the former Prime Minister , the late Mr. Zulfiqar A.I Bhutto, announced the dissolution of the National Assembly and declared that the General Elections in the Country will be -held within two months on 7th March 1977. - As I submitted earlier , I did not apply for the party's ticket to contest the election; the reason being I was not interested. The Court may kindly appreciate that when late Z. A. Bhutto took over as President of Pakistan on 20th December 1971, I was the first appointee in his Government before even the Cabinet was constituted. I was appointed that Attorney-General of Pakistan the same day on the night between 20th and 21st December and he very kindly after I took over charge of the office of Attorney-General, gave me status and rano of Cabiner Minister . I was the first Attorney-General of Pakistan to hold the Federal Minister rank: Before that the Attorney-General's rank the that of a Joint Secretary or late of a Junior Federal Secretary . By virtue of my office according to the Constitution and practice, I was entitled to sit in the National Assembly and participate in its proceedings excep t that I had no right to vote. After the Constitution of 1973 came into being, I was entitled to sit in the Senate as well as the National Assembly , Participate in their proceedings and I actually participated in the proceedings of National Assembly as well as the Senate.' 'Because of my rank of a Cabinet Minister and under the instruct ions of President-cum-Prime Minister I used to attend the meetings of the Cabinet also. All the meetings whenever I was available at Islamabad were attended by me, because those were the instructions of the Prime Minister . As Attorney-General my emoluments were higher than those of a Federal Minister . I was entitled to all the privileges of a Federal Minister . I was entitled to charge Government fees in cases when I appeared on behalf of Government in High Court.
For these reasons it was of no advantage for me to become an M. N. A. Or a Minister . There was no motive for me to win this election. When I was appointed Attorney-General I was not an elected member of National or Provincial Assembly . As a matter of fact, I had lost the election in 1970 whic h 1 contested for the National Assembly . The late Prime Minister in 1973 wanted me to become Minister for Justice in the new Ministry which he wanted to establish. The record .Of the then President and Prime Minister office should be available with the Federal Government to see this and' I respectfully declined to accept the office of Minister of that time for the reason that I was a defeated candidate. It was not proper for a defeated candidate to be a Minister . As I submitted earlier after the Prime Minist er announced on or about 6th January 1977 the elections shall be held after two months, I did not apply for the party's ticket. On or about 15-16th January , 1977, the Central Committee of Pakistan People's Party or its Parliamentary Board met in Rawalp indi. I was not its member and after meeting, the Prime Minister telephoned me and said that he and the party have decided that I should contest the election to the National Assembly from Pishin Constituency . I told him that I was not interested and if I am elected a member of the National Assembly , then I will have to attend the proceedings in the assembly all the time, as proceedings took place so often, but the Prime Minister said, `No' 'we have decided and you must contest". So as it was the decision of the Chairman of the Party and the party I accepted it and my name was announced as a candidate some time in the third week perhaps on 18th January 1977. Before that I was not on the scene at all. I filed my nomination papers at Pishin on or about 21st January 1977. . ."
31. After stating that this case against him was mala fide, discriminatory , without jurisdiction, malicious etc. And contending that he had not done any rigging directly or indirectly and repudiating the assertion of Islam Bahadur Khan (P . W. 26) in this behalf, the accused has stated that :- " .................. The only time, as far as I remember , I met Islam Bahadur when I attended a meeting of my party workers somewhere in February 1977 at Pishin Rest House when I was discussing the election matters with Provincial Assembly candidates of People's Party . There Islam Bahadur arrived along with Returning Officer and Deputy Commissioner Mr. Afzal Luni and be was introduced to me by Mr. Afzal Luni that he was the new Commissioner of Quetta Division We hardly discussed anything, as I was about to leave, and perhaps I met him again in the same Rest House after a couple of weeks when I asked some of my party workers to lunch there. Some of the of ficials also came there."
32. He further stated that this election agents and some of his party workers, the Provincial Assembly candidates from the same Constituency at some times complained to him about certain polling officers or Presiding Officers and that he had told them to take up the matter with the authorities concerned and that it was so done. He vehemently repudiated that he had sent his election agent Mr. Munawwar Mirza to Pishin to manipulate the election in his favour or use illegal or improper means for the purpose. In cross-examination, he has admitted that 'till 5-7-1977, be was a Principal Law Officer and Legal Advi ser to the Federal Government.
He has admitted that through an amendment in the Constitution, the Attorney-General was made eligible to contest election for the Assembly". He has further stated in cross-examination.
"I very much participated in my election campaign. As I said yesterday , I was pre-occupied with my professional work and official duties, so f bad to go back from Quetta after filing my nomination papers and probably after 10th February , 1977,. I returned to Quetta and from that date almost every day I visited my Constituency till the 5th of March 1977 when the election campaigns were officially stopped. Sardar Muhammad Khan Barozai, the then Chief Minister of Baluchistan accompanied me on 2/3 occasions to my Constituency . (Volunteered that Sardar Ghaus Bakhsh Raisani, the then President of People's Party in the Province also some time accompanied him to his Constituency and also many other prominent members of the People's Party). Actually there were several meetings attended by me at Pishin Rest House and not two or three, and my workers and supporters used to come and see me there. Out of the two meetings referred to by me in my statement recorded yesterda y, one was arranged by me for my workers to lunch and the other meetings was when the people came to see me . . . . . ."
33. In answer to another question, he admitted that Malik Bahram Khan was his polling agent for Farakhi and Urak Polling Stations and that Mr. Munawwar Mirza was his election agent and that he (Mr. Munawwar Mirza) had visited Pishin on 8th March, 1977 in the morning with a view to finding out the result of election from the Returning Officer-cum-Deputy Commissioner Pishin. The accused has further stated in cross- examination that :- "It is also correct that I was declared a successful candidate in the official result. It is also correct that rigging did take place in my election because many polling stations were forcibly taken over by one or two of my rival candidates and the election was therefore no election at all."
34. While answering to another question in cross-examination, the accused has stated :- "On the contrary , from the prosecution case it is obvious that it was Islam Bahadur who at the instance of the Chief Secretary or on his own accord was forcing officials to open the ballot boxes, affix double stamp to the ballot papers just to nullify the bogus votes which had been cast in favour of one or two rival candidates by force and those two top officials, as they had failed to arrange for the holding of proper election and maintain law and order , made a crude attempt to salvage the 'election which bad already been rigged in many polling stations and thus save themselves from explanation for their failure in their duties."
35. In view of these statements of the accused, the question that requires determination falls into a narrow compass. While denying any association, involvement or privity with the rigging admitted by him, he has vehemently contended that he is innocent for all that was done to seek the election.
36. For the proper appraisal of evidence in this behalf, the prosecution can lie divided into three states :- "The first relating to the pre-election period. The second relating to the happenings on the polling day, i. e. 7-3- 77 upto 4 p.m. The third after the poll was over upto the announcement of the result on 73-3-77."
37. In order to determine the real happ enings during the course of elections, the evidence on record and the close association of the accused with the then party-in-power is of great relevancy and need to be considered.
The accused himself has provided substantive material and evidence. He while appearing as his own witness has. In examination-in-chief, stated that soon after the taking over as President of Pakistan, the late Zulfiqar A.I Bhutto had during the same night, appointed him as Attorney-General of Pakistan and that be was the first appointee in his Government even before constituting his Cabinet. He has further stated that till then the status and rank of Attorney General of Pakistan was merely that of a Joint Secretary or late of a Junior Federal Secretary , but Mr. Bhutto in his case raised his status and rank to that of a Cabinet Minister , and that under the instructions of the then President-cum-Prime Minister , the accused used to attend meetings of the Cabinet also, .And that he was entitled to the Privileges of a Federal Minister , and that late Mr. Bhutto was very keen to appoint him as Minister of Justice in his Cabinet. He has further stated that after the announcement of the election to be held in March 1977, the accused was not interested in contesting the election, though he had not applied for the Party's ticket, the then Prime Minister told him that his party had granted him ticket to contest the election to the National Assembly from Pishin Constituency and that he accordingly filed his nomination papers at Pishin on or about 20th/21st January , 1977.
38. The interest and keenness of the then Prime Minister and his party in the accused to contest and participate in the election is, therefore, obvious. His anxiety to secure the success of the accused is established from the statement of Islam Bahadur Khan (P. W. 26) that late Mr. Z. A. Bhutto, the then Prime Minister , visited Pishin before the Election and in a public meeting he projected the personality of Mr: Yabya Bakhtiar Khan and declared openly that he was the only capable man to represent the people of c his area and that he be elected.
This witness has further stated that this meeting was attended by high ranking officials of the Federal Government as well as the Provincial Government. The Returning Officer and other polling staff were also present in the meeting. Subsequent to that meeting of the Prime Minister , the supporters of the People's Party became more aggressive to pressurize the Local Government Administration in different ways to secure the success of Mr. Yahya Bakhtiar Khan in the election. They adopted various methods directly and indirectly to get favourable result in favour of Mr . Yahya Bukhtiar Khan in the election.
39. P. W. 29 Muhammad Afzal Luni, the then Deputy Commissioner and Returning Officer, Pishin has stated that he was appointed as Returning Officer of Constituency No. NA-195-Quetta-II and that the Commissioner , Quetta Division and also the Chief Secretary of the Government of Baluchistan had met him and had given the impression that as Mr. Yahyal Bakhtiar Khan has been nominated for the said seat of the National Assembly , hence it is a prestigious seat for the People's Party".
40. It may be pointed out that these statements of these two witnesses have neither been repudiated by the accused, although he has challenged their statements in another aspect.
41. The accused himself in his statement is already reproduced above after stating that he had contested election to the National Assembly in 1970 and had been defeated, has further admitted that Sardar Muhammad Khan Barozai, the then Chief Minister of Baluchistan had accompanied the accused on 2/3 occasions to his Constituency during the election campaign. According to the accused, however , Sardar Ghaus Bakhsh Raisani, the then President of Pakistan Peoples Party of Baluchistan had also accompanied the accused to his Constituency . Taking the Chief Minister of the Province to, E his Constituency who was not even the President of the Party was, therefore, not insignificant. The accused in cross-examinatio n has further admitted that "It may be correct that after the First Amendment in the Constitution, Attorney- General was made eligible to contest for the Assembly". This Amendment was made through Constitution (First Amendment) Act, 1974, promulgated on 4th May, 1974. Till then, the Attorney-General could not participate in the election, he being in the service of Pakistan. Through this Amendment he was exempted from the application of this Bar .
42. The anxiety of the then party-in-power and its leader in the accused, as, also of the accused to contest and win this election having thus been established, the prosecution has led evidence to prove that various methods were employed to achieve this objectiv e specially as posting certain officials of his own choice to secure the election of the accused. The non holding of election at certain polling stations and marking the ballot paper at the residence of his polling agent in favour of the accused and giving him majority of votes there to pressurize the Presiding Officers to manipulate and allow facilities for casting of more illegal votes in favour of the accused, and on discovering that the accused had still lost election, illegally , invalidating the majority of votes cast in favour of the rival candidates and further more illegally marking the unused ballot in favour of the accused so as to make him a successful candidate.
43. Mr. Muhammad Afzal Luni, the then Deputy Commissioner -and Returning Officer while appearing as P.
W. 25 after stating that this seat had become "prestigious seat" has further deposed that :- "I requested the Chief Secretary and the Commissioner to provide me four Tehsildars to assist me in maintaining the law and order situation G and also to get more votes for Mr. Yahya Bakhtiar Khan. Four Tehsildars, namely , Jamal Khan Jafar , Abdul Ghani Tareen, Habibu Rehman and Raja Navee, were placed at my disposal."
44. Regarding two polling stations, namely , Farakbi and Urak, i.e. Nos. 68 and 69, he has stated that :- "I contacted Malak Bahram Khan, a notable of Farakbi area, in order to ascertain whether he could help us in transporting the staff to the polling stations in question and to manoeuvre more votes in favour of Mr. Yahya Bakhtiar Khan. Malak Bahram Khan was the supporter of P. P. P. He agreed. Hence, I directed two of my Tebsildars, namely , 1ama1 Khan Jafar and Abdul Ghani Tareen to band over the staff to Malak Bahram Khan in Band Kbusbdil Khan at a distance of about seven miles from Pishin. They did so accordingly and reported to me about it."
45. The accused has admitted while answering a question put in cross examination that Malak Bahrain Khan was his polling agent for Farakhi arid Urak.
46. The role performed by the two Tehsildars, namely Jamal Khan Jafar and Abdul Ghani Tareen, is deposed to by Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4), the Presiding Officers of Polling H Stations Nos. 69 and 68, respectively . They have stated that while on their way to their polling stations in a bus along with their polling staff and also the polling material, they were stopped by these two Tehsildars, namely .
Jamal Khan Jafar and Abdul Ghani Tareen. They were asked to get down from the bus. The lady polling staff was seated in the jeep driven by Abdul Ghani Tareen while these two Presiding Officers were seated in the jeep driven by Jamal Khan War. They were driven to Band Khushdil Khan where the jeeps were stopped. The lady polling staff was taken to Pishin. An old man present there came to the jeep and introduced himself as Malak Bahram Khan. He also got into the jeep. These witnesses have then explained the circumstances in which they were taken to the house of Malak Bahram Khan and on the following were compelled by him to open the ballot boxes and under the order of Malak Bahrain Khan they started striking the names of the voters from the electoral roll and entering their particulars on the counterfoils. P . W. 3 has stated that : - "Malak Bahrain Khan along with his 8 men present there started marking the ballot papers with polling stamp taken out from the polling bag in favour of the People's Party's candidate, Mr. Yahya Bakhtiar Khan. Thumb- impressions were affixed on the counter foils by Malak Behram Khan and his men. Approximately , over 1000 ballot ballot papers were used in my presence. This process continued from 7 a.m. Upto 9 p.m. In the night.
Similar process was also adopted by Ch. Muhammad Anwar for Farkhi polling station. The ballot papers were thereafter sealed and the result was completed by us."
47. After proving the entries in certain counterfoils/ballot books to be in his hand, and certain others to be in the hands of someone else, this witness has further stated that the circumstances under which he and P. W. 4 were taken back to Pishin and ultimately to Malitia Fort at Pishin where they were made to sit in a room, this witness has stated that :- " . . . Thereafter Munawwar Mirza came. He asked Ch. Muhammad Anwar that as the votes cast in favour of the People's Party's candidate were less in number , he should stamp more votes in his favour . The ballot bags brought from other polling stations were already lying in that Fort. The bags were brought to the room in which we were sitting. Many people gathered there and started putting stamps on the ballot papers while were making marks against the names of the voters. I did nothing personally but was only a spectator Jamal Khan Jafar and Abdul Ghani Tehsildars were amongst those officers who were doing this process of tampering in my presence and others."
48. In his cross-examination, this witness has stated that rigging in the Fort was done in the presence of the Commissioner , Quetta Division.
49. While supporting the narrative of the main event given by Parvez Mahmood (P. W. 3), Ch. Muhammad Anwar (P . W. 4) has further lent support regarding happening inside the Fort by saying that :- "We both the Presiding Officers were then taken to an office in that post. Almost all the Asstt. Returning Officers, Polling Officers etc. Were present in that room. One of the officers amongst them asked us as to how many votes each of us have bagged and how many votes remain unbagged. That Officer asked us to make the rest of the votes pertaining to Farakhi Polling Station polled. Then we were taken to another room where 3/4 Presiding Officers were already present. We opened the bags. Some 3/4 persons were brought from outside who used to affix their thumb-impressions on the ballot books and we made entries therein. This process continued upon 8/9 p .m. Thereafter , the bags were sealed and the result was once again compiled. Each Presiding Of ficer compiled his own result."
50. In cross-examination, this witness stated that :- "The rigging process took place in a separate room in the presence of the Commissioner , Returning Officer, Assistant Returning Officer and Presiding Officer. But the army officer was not present there at that time. I do not know who was the Returning officer of this Constituency . In my opinion, a Tehsildar was the Returning Officer. Messrs Islam Babadur , Aziz-Kurd, Abdul Ghani and Jamal Khan Jafar along with others were present at Pishin. As all the Officers were helping the Peoples Party's candidate, hence I made no complaint to any authority ."
51. The statements of P. Ws. 3 and 4 were recorded in the presence of the accused and they bad been cross- examined by him as well. The statements of these two witnesses cannot be termed 'cooked up' as their statements were much earlier as far back as in March, 1977 during the course of inquiry conducted by the Election Commission, as already stated in the opening paragraph of this judgment.
52. The contention of these two witnesses that no polling had in fact taken place in accordance with law and at Polling Stations Nos. 69 and 6 i.e. Farakhi and Urak, is supported by the unimpeachable evidence of P. W. 1, S. Muhammad Hussain Shah who in March, 1977 was the Deputy Election Commissioner of Kalat and Pishin Divisions. He stated that on a complaint received by the Election Commission, Baluchistan, the witness had been ordered by Mr. M. A. Durrani, Prov incial Election Commissioner; to make spot inquiry . He left for Pishin on 7-3-1977-the polling day. He has stated that no polling station was established nor was any polling staff present at Urak (Polling Station No. 68) nor at Farakhi (Polling Station No. 69). This witness has further stated that no election was held on that date in these two polling stations. This witnes s has further proved the report submitted by him to the Election Commission relating to his visit to Pishin which is Exh. P. W. 1/2 and is to the same effect as deposed to by him in this Court. The testimony of this witness has not been damaged in the cross-examination.
53. The aforementioned two Tehsildars, namely , Abdul Ghani Tareen and Jamal Khan Jafar have also appeared as P. W. 20 and P. W. 21 respectively . P. W. 20 has stated that he had been directed on 4-3-1977 by the Commissioner , Quetta Division to report to the Deputy Commissioner , Pishin and that on 5-3-1977 he was directed to collect the election staff who were to arrive by bus and to go to Band Khushdil Khan and that he reached Band Khushdil Khan. He has further stated that :- "The male election staff who were travelling in a separate jeep were allowed to stay with Malak Bahrain Khan Achakzai and a Subedar of the Levy . The female staff was brought back to A. C. Pishin and be made arrangements for their stay ."
54. Jamal Khan Jaffar (P. W. 21) has similarly stated that on 4-3-1977, the Commissioner , Quetta Division, conveyed him the direction of the Chief Secretary , Baluchistan Government, to report to the Deputy Commissioner , Pishin, to help in the law and order situation during the election and that he accordingly reported to the Deputy Commissioner , Pishin, on 5-3-1977. He has further stated that on 6-3-1977, he was told that the polling staff at Farakhi who was supposed to go via Chaman to Farakhi could not reach there due to heavy snowfall, so he should receive them at Sarana and take them to Band Khushdil Khan. He has further stated that: "Abdul Ghani Tehsildar was asked to help me in going to Band Khushdil Khan. I along with him reached Sarana in a separate jeep. Shortwhile after, the election staff meant for Farakhi reached there in a bus. Abdul Ghani informed me about the order of the Deputy Commissioner . The male staff were made to sit with me in my jeep and the female staff in the jeep of Abdul Ghani Khan i.e. From Sarana to Band Khushdil Khan. On arrival there, we found Malak Bahram Khan and Risaldar Dur Muhammad Khan already waiting for us. The female staff were taken back to Pishin in the jeep of Abdul Ghani Khan Tehsildar . The male staff were taken by Bahrain Khan and Dur Muhammad Khan to Farakhi via Mazri. I came back and went to my own area Barshore."
55. The established facts thus are that the Presiding Officers along with their staff including ladies and tents for putting polling stations alongwith polling material were travelling by bus on 6-3-1977 in order to reach Farakhi and Urak where polling stations were to be set up by them. They were interce pted on the way and were not allowed to reach the places of their destination. After interception, the lady staff were sent back to Pishin in a separate jeep while the two Presiding Officers along with the polling material were taken to Malak Bahrain Khan's house in a Government jeep. At the house of Malak Bahram Khan, the two Presiding Officers were made to mark the ballot papers in favour of the accused in a fraudulent manner .
56. The prosecution has contended that the appointment of Malak Bahrain Khan by the accused as his polling agent in this area was the result of pre-planning with the ulterior motive. From the evidence of P. W. 1, S. Muhammad Hussain Shah and P. W. 2, Mr. M. A. Durrani, as also the admission of the accused himself in cross-examination, it is established that Malak Bahram Khan was a "chief of that area" and also independent candidate contesting election for Provincial Assembly against the official candidates put up by the Peoples Party as also against Mahmood Khan Achakzai, who was contesting for the Provincial Assembly seat as well from the District Pishin in the election to be held on 10th March, 1977.
57. The prosecution has accordingly contended that the plea of innocence taken by the accused in this behalf is devoid of substance, and his involvement in rigging is proved from this circumstance alone. This factual position gave rise to a reasonable presumption unrebutted by the accused that the appointment by the accused of Malak Bahram as his polling agent was for the sole purpose that be would secure as many votes as possible for the accused by fair or foul means. The proved facts that Malak Bahrain Khan commanded P. Ws. 3 and 4, namely , Parvez Mahmood and Ch. Muh ammad Anwar , Presiding Officers of Polling Stations Nos. 69 and 68, respectively , under threat and coercion to do that which they were prohibited by law to do, when considered in juxtaposition to this appointment as polling agent by the accused, leads to an irresistible conclusion that whatever was done by Malak Bahram Khan as a duly appointed agent of the accused was at the accused's behest and instance and certainly with his connivance, knowledge and approval.
58. The accused has made a grievance of non-production of Malak Bahrain Khan by the prosecution. Malak Bahram Khan was not even cited as a witness for the prosecution in the challan. The question, therefore, arises whether the prosecution was still obliged to produce him as, he being the agent of the accused, it was his responsibility to produce him if he considered his evidence to be relevant and material. The effect of non production is also to be determined.
59. After considering the case-law exhaustively on this point, the Supreme Court of Pakistan in paragraph 328 of its judgment delivered in the case cited as Zulfiqar A.I Bhutto and others v. State (PLD 1979SC53) declared the law as under :- "328. From this somewhat lengthy review of the cases cited at the Bar it appears, if I tray say so with respect, that the correct position is the one as consistently enunciated by their Lordships of the Privy Council in three successive cases coming before them from Ceylon, Palestine and Lahore ; and adopted by this Court as well as by the Indian Supreme Court, namely , that the prosecution is not bound to call all the witnesses cited in the challan or the calendar of witnesses, irrespective of considerations of number and reliability ; nor is it obliged to call any witness not so cited, but considered to be necessary by the accused ; as ultimately it is a matter for the discretion of the counsel for the prosecution. At the same time it is the duty of the prosecution to call those witnesses who are essential to the unfolding of the narrative, on which the prosecution is based, whether their testimony is for or against the case for the prosecution ; but it is not its duty to lead evidence to prove even incidental matters which do not concern the essential fundamentals of its case. It is not in every case that an adverse inference must be drawn again st the prosecution in terms of illustration (g) to section 114 of the Evidence Act owing to non-production of certain witnesses, whether mentioned in the indictment or not. It will depend upon the facts and circumstanc es of each case, and an adverse inference can be drawn only if it is shown that material witnesses have been withheld owing to some oblique motive and for considerations not supported on the record. Here again, a caveat to the effect that it does not mean that the Court will embark upon an inquiry for the purpose of determining whether a witness has, indeed, been won over or that he was in fact, unnecessary . Ordinarily a statement in this behalf by the counsel for the prosecution should suffice, but the defence may show that the statement is not correct, or is otherwise not accep table. The case must, however , be judged on the evidence as a whole, and the Court must arrive at its conclusions accordingly , taking into consideration the persuasiveness of the testimony given at the trial in the light of such criticism as may be levelled at the absence of possible witnesses."
60. The role in the rigging of electio n performed by Malak Bahram Khan has been deposed to by Mr. Muhammad Afzal Luni (P. W. 25), Abdul Ghani (P. W 20), Jamal Khan Jaffar (P. W. 21), Parvez Mahmood (P.
W. 3) and Ch. Muhammad Anwar (P. W. 4) and also by S. Muhammad Hussain Shah (P. W. 1) and M. A.
Durrani (P . W. 2). Malak Bahram Khan was the polling agent of accused.
61. The prosecution was, therefore, not obliged to produce him as a witness. The accused has admitted that Malak Bahram Khan was his polling agent for Farakhi and Urak and if his contention be that whatever he did was in excess of the authority assigned to him, it was for the accused to produce him (Malak Bahrain Khan). In so far as be has failed to produce" him the presumption under section 114(g) of the Evidence Act can be raised against him that if the accused had produced Malak Bahram Khan, h would not have supported the plea of the accused. It is noteworthy tha the accused had produced other witnesses in defence in respect of certain features of the case, but none regarding Malak Bahram Khan.
62. It is thus established beyond the possibility of any doubt that the rigging of two polling stations was done at the instance of the accused and with his connivance, knowledge and approval, so as to somehow secure his success in the election.
63. Regarding the rigging of election on the polling day, in addition to the happenings pertaining to the aforementioned Polling Stations Nos. 68 and 69, the prosecution has led evidence to prove that official pressure was brought to bear upon other officials as well. P. W. 25, Muhamma d Afzal Luni, the then Deputy Commissioner and Returning Officer of this Constituency while referring to the happenings on the polling day, i.e. 7-3-1977, has deposed that :- "Meanwhile, Commissioner , Quetta arrived Pishin by road. About 2/3 hours thereafter , Chief Secretary of Baluchistan Government in the company of I.-G. Police also reached Pishi n in a Helicopter . The Chief Secretary instructed me to visit some of the polling stations to assess the situation. Thereafter , they left for Chaman in the Helicopter . While the Commissioner Quetta Division remained there. At about mid-night, the Commissioner asked me to visit the polling stations as directed by the Chief Secretary . So taking the scouts personnel, I went to Barshore area. In the polling station at Kaja Vela, I found that the polling had been stopped and a number of people were standing outside the polling station. I asked them whether they had cast their votes, but they told me that they had not cast their votes because the agents of the other contesting candidates were objecting to their casting the votes on the ground that they had already cast their votes more than once. I asked the agents to allow them to cast their votes and they had every right to challenge their votes. But they did not agree and -left the polling station out of protest. The people standing outside were used to got in and cast their votes as they like. Almost these peoples were supported of Peoples Party . So they cast their votes in favour of Mr . Yahya Bakhtiar Khan. In this way , about 300/400 votes were cast."
64. Mr. Izzat Aziz Kurd, the then Assist ant Director , Local Government, Pishin District, has appeared as P. W.
24 who after narrating the arrival of the Chief Secretary and others in a helicop ter at Pishin on the polling day i.e. 7-3-1977 and their holding some discussion with the Commissioner and Deputy Commissioner , has stated that : "After they left the Rest House, the Commissioner told the Deputy Commissioner that the position of the candidate of the Peoples Party is weak and there is apprehension of lawlessness at the hands of Pukhtoon Khwah supporter . The Commissioner asked the Deputy Commissioner to go to Barshore and do manoeuvring in favour of P . P. P. Candidate."
65. He has further stated that thereafter Mr . Muhammad Afzal Luni went to Barshore.
66. What happened at Barshore is deposed to by P. W. 8, Jamil Ahmad, Presiding Officer of Police Station No. 45 located Kaja Vela in the Barshore area. He has stated that the polling at his polling station started at 8 a.m.
On the polling day and lasted till about 3-0 p.m. He has further stated that the Deputy Commissioner Pishin arrived there at about 3-50 p.m. And inquired from him about the number of votes cast and on being told that approximately 600 votes had already been cast out of 1800 total number of votes, the Deputy Commissioner while remarking that his work was unsatisfactory asked this witness to allow further voters to cast their votes.
As this witness has stated :- "I told him that no voter is waiting outside, and I was supposed to allow them till the closing hour, i.e. 4 p.m.
The Deputy Commissioner threatened me to allow the people to cast their votes. I refused to be a party to such an act. I came in the polling station along with Deputy Commissioner . He asked me to allow the people to cast their votes. The people in black rushed into the polling station. I tried to allow them one after the other . I was helpless. I had to watch this process in the corner of the polling station.
67. This witness has further deposed about the circumstances in which count statement (Exh. P. W. 8/11 relating to this polling station was prepared in the presence of the Deputy Commissioner . According to this document, the accused has secured 539 votes, Mahmood Khan Achakzai 141, Abdul Wahid 80 and Ghulam Muhammad 7 votes, suspected votes were 24, challenged votes 2. Total votes thus polled were given as 793. In cross-examination by the accused, the witness has reiterated that : - "The Deputy Commissioner told me to allow the people standing outside to cast their votes. I told him that no voter is waiting outside and if any voter came in to cast his vote, till 4 p.m. In the polling station, he will be allowed to do so. The Deputy Commissioner insisted to allow the people to cast their votes. I cannot say whether the people who were allowed to cast their votes and who rushed into the polling station were voters or not."
68. The evidence produced by the prosecution has established that out of 69 polling stations of this Constituency , there were disturbances and lawlessness in few polling stations on the following day .
69. P. W. 9, Atta Mirza, Principal, Government College, Pishin, who was the Presiding Officer of Polling Station No. 53 located in the Government High School Chaman has stated that :- "At about 8 a.m. On 7th March, 1977, the polling started. The polling continued upto 4 p.m. At 10-30 a.m.
Rush of the voters increased, and this is why the agents of the candidates failed to make their identification, and as a result the agents of the People's Party candidate went out in protest saying that the voters could not be recognized. I 'informed the Assistant Commissioner to help me in controlling the crowd. At about 1 or 1-30 p.m. Malitia force came for my help and was successful to control the crowd and thereafter the polling continued smoothly upto 4 p.m."
70. The witness has further stated that after the close of the polling, he prepare d the count-statement (Exh. P.
W. 9(1) in the presence of the polling a4ents of the candidates and its copies were supplied to them. He has also stated that he deposited the bags with the Assistant Commissioner . When he was asked whether he had given the count-statement to the polling agents of the candidate, he replied in the affirmative. He was then asked to make a change in the count-sta tement but he refused to do so. In cross-examination by the accused, the witness has stated that during the period of disorder the supporters of Pakhtoon Khwah candidate had dominated the situation and were allowing voters to cast their votes and that he had stated before the Provincial Election Commissioner that Pukhtoon Khwah's supporters had taken full advantage during the period from 10 a.m. To 1-30, as lawlessness was let loose during that period.
71. P. W. 15, Mst. Zuhra Durrani, Principal, Government College for Girls, Loralai, was the Presiding Officer at Polling Station No. 66 located at Killi Sheloon (Females). She has stated that the polling started at 8 a.m.
And that :- " . . . . For about an hour, the polling continued normally . Thereafter , some Goonda elements took over the polling station. There was then complete lawlessness and disorder . Those Goonda elements were threatening us. They had open knives and dandas with them. They used very indecent language and humilitated us. As a result, two of my Polling Officers got fainted. The Goonda elements were most probably Pukhtoon Khwah Party's workers. They themselves were marking the ballot papers and almost all the work was done by them themselves. This situation continued till the closing hour of the polling i.e. 4 p.m. The Malitia and the levy force were also unable to protect us against those Goonda elements. They seemed to be helping the Pukhtoon Khwah Party's candidate. Before 4 p.m., A. C. And Tehsildar visited the polling station. They were apprised of the situation. They were also beaten by those Goonda elements. Then at 4 p.m. Many lady voters waiting outside were not allowed to cast their votes. Those intruders made me to count the votes. The count-statement (Exh. P. W. 15/1) was prepared by me at their instance. I was forced to' write this Exh. Although I had as a matter of fact conducted the counting myself. I see Exh. P. W. 15/1. The entries therein are in my hand. It is signed by me. I was not allowed by those intruder's to scrutinize the ballot papers."
72. In cross-examination by the accused, she has confirmed that there was lawlessness in the polling station and has further stated that the persons who had taken possession of the polling station were the supporters of the candidates other than that of the People's Party and that :- " . . . .The agent of the Pakistan People's Party was treated in the same way as we were treated. It is correctly recorded in my statement before the F.
1. A. Director that the situation at the male polling station was not different from the one existing in our polling station. The polling staff of that polling station was also sitting outside. Most of my polling staff was turned out of the polling booths. The Goonda elements had taken charge of the polling material, and that is why they were putting stamps on the ballot papers. The women voters who had come and were waiting for casting their votes were not allowed to cast their votes?
73. The next witness is P. W. 17, Agha Jan, Assistant Education Officer, Pishin, who was presiding officer for Polling Station No. 51 located at Chaman Town Hall. He has started that the Polling Started on 7-3-197 at his polling station at 8 a.m. And that after about 200 voters had cast their votes, the door of the Town Hall was broken by the voters and they took forcible possession of the polling station. On a complaint lodged by him with the Assistant Commissioner , Chaman, he came to the spot but that did not improve the situation and those people kept on casting votes in the ballot boxes, while the officials including myself kept on passively watching. The rubber stamps and other materials were also forcibly taken from them by those persons. He has, however , stated that the polling closed at about 4 p.m. In the presence of some of the polling agents of the candidates, namely , the polling agents of Mahmood Khan Achakzai and Ghulam-Muhammad, whereas the polling agent of the accused and 'Abdul Wahid were thrown oat of the polling station by those persons. He was threatened and his staff persons were compelled to count the votes and prepare the count statement. The count statement (Exh. P. W. 17/1) was accordingly prepared by Jamil Ahmad, his Polling Officer, which was signed by this witness.
74. In cross-examination of the accused, this witness has stated that the mob belonged to Pukhtoon Khwah Party and that about 250 people might have entered the Town Hall and they were putting votes time and again.
75. The next witness on this point is P. W. 18, Muhammad Akbar Khan, Distric t .Population Planning Officer, Quetta, who was the Presiding Officer at Polling Station No. 22 located at Qila Abdullah. He has stated that polling at his polling station started at 8 a.m. And an hour thereafter an unruly mob broke into the polling station the majority of which belonged to Pukhtoon Khwah Party . On a complaint lodged by him, a Major along with Malitia force came to the polling station and brought the situation under control. The trouble again broke out when the bogus votes were cast. He has further stated that the polling agents of Mahmood Khan Achakzai, Yahya Bakhtiar Khan and Abdul Wahid Khan were present through out and that the counting was completed in their presence. But he did not give the count-statement to the agen ts of any of the candidates. The witness has further stated that according to the unofficial counting, Mahmood Khan Achakzai had secured the highest number of votes.
76. The last witness on this subject is P. W. IS, Abdul Ghafoor Khan, Development Officer, Government of Baluchistan, Harnai, who was Presiding Officer of Polling Station No. 57, Murda Karez. He has stated that after an hour and a half of the start of the polling, people started fighting among themselves and lawlessness ensued. He closed the poll which remained suspended till 1 p.m. When Mr. Nayyar Agha, Assistant Commissioner , Chaman, arrived. Thereafter , the polling was resumed and continued upto 5 p. m. After the close of the poll, he conducted counting of votes in the presence of agents of the candidates and proved (Exh.
P. W. 19/1)-the count-statement. He has further stated that the ballot boxes remained in possession of the polling staf f during the time of disturbances.
77. According to the prosecution evidence, it' is established that there was disturbance and lawlessness at five polling stations for four of which, namely , at Polling Stations Nos. 53, 56, 51 and 22, the supporters of Pukthoon Khwah Party were responsible. In support of his plea that there was widespread rigging by his rival candidate, the accused 'had no evidence to prove his election except producing a telegram marked as Exh. D.
2/1 and producing Sardar Muhammad Khan Barozai (D. W. 6).
78: Exh. D. W. 2/ 1 purports to have been sent by one Abdul Zahir to the Provincial Election Commissioner , from Chaman to Quetta, with a copy endorsed to the accused. The accuracy of its contents stands unproved.
Sardar Muhammad Khan Barozai was the Chief Minister of Baluchistan Province in March, 1977 and had held this office till the promulgation of Martial Law in the Country on 5-7-1977. He has stated that late Nasrum Minallah, the then Chief Secretary of Baluchistan Province, came to him on 7-3-1977 in the evening and informed him that :- ". . .Some opponents of Mr. Yahya Bakhtiar Khan took over forcible possession of some Polling Station in Chaman area. He also informed me that during the disturbance by the opponents of Mr. Yahya Bakhtiar Khan, Nayyar Agha, Assistant Commissioner , Chaman, was beaten up. He also told me that the Polling Officers of the female polling station were manhan dled and insulted. He also informed me that at Pishin area the Deputy Commissioner was kept in wrongful confinement by the persons of oppos ition candidates. The Deputy Commissioner was spate at his face and he was also manhandled. I issued direction to proceed against those persons who had manhandled the Deputy Commissioner and also against those persons who were responsible for the disturbances and obstruction of the polling station."
79. This statement of the witness being based on hearsay is inadmissible in evidence and moreso when no contemporaneous writing made in the ordinary course in support thereof is produced or made. Assuming for the sake of argument that this statement is admissible in evidence, then what does it mean? Nothing more of the substance than what has already been stated by the prosecution witnesses. D. W. 6 has contributed nothing from his personal knowledge nor has he extended the scope of the polling stations where the alleged disorder and lawlessness took place. The witness has stated that he had ordered the prosecution of the offenders. No such record relating to any prosecution is proved. The statement of this witness therefore does not advance the case of the accused any further .
80. The accused while appearing as D. W. 7 has also failed to prove his bald allegation by furnishing any necessary details and particular regarding the rigging by his rival candidates.
81. In view of this state of evidence on the record, it cannot be said that the accused's rival candidates had created such chaos or disorder or had indulged in malpractices in all the pollin g stations which had rendered the polling held at these polling stations on the election day to be a farce and no election in the eyes of law .
82. The accused has contended that the election having been signed on the polling day by his rival candidates the subsequent rigging in the Malitia Fort is no rigging in law; as according to him, a rigged election cannot be re-rigged.
83. As already stated above, the accused had held no evidence to prove the requisite facts on which this argument can be based. Disorder at four polling stations cannot by any stretch of imagination be termed or treated as disorder , chase or rigging of election at all 69 polling stations comprising the Constituency .
84. Assuming for the sake of argument that the accused has prove the rigging of election by his rival candidate as all 69 polling stations, a majority of them, even then, that would not provide any justification for what, according to the possession, was deem in the Malitia Fort at Pishin on 8-3-1977. This election was held under the provisions of the Representation of the Peoples Act, 1976. This Act is a complete ends in itself and while prescribing the manner for holding and conducting the election, I has also labelled certain activities to amount to an offence and has prescribed punishment for the same. Furthermore, this Act has also prescribed the remedy for wrongs and illegal activities done or indulge in during an election and has prescribed mode for seeking redress of those wrongs.
85. If the rival candidate had committed any such wrong or offence' the proper remedy for the accused and the persons feeling aggrieve thereof was to take recourse to law. The proposition of law propounded by the accused is that an identical crime having already been committed b one person, perpetration of similar crime by another person would not constitute an offence, and the subsequent act of commission of an offence attributed the latter accused will lose its criminality and thus he would absolved from accountability and would not be liable for the criminal action provided by law. In other words, the. Comm ission of subsequent offence in relation to the same transaction, the element of criminality would ipso facto disappear , in the event of an identical of fence having been committed earlier in time.
86. Through this novel interpretation of law, the accused has tried to justify the rigging done in Militia Fort at Pishin on 3-3-1977. His approach being that his rival candidate had secured more votes on the election day through illegal means, and the authoritie s concerned were, therefore, justified in law to set the wrong right by invalidating thousands of votes cast is favour or Mahmood Shah Achakzai in marking unused ballot papers, again in thousand, in his favour , and that no criminality attaches to this consequent rigging in consequence of which he was declared to have Won the election by securing more votes.
87. This argument advanced, besides ignoring from consideration the vital provision of law that the election is "a continuous process and starts with the filing of nomination papers and ends only with the announcement of the result of the election" and it is also even otherwise, too prosposter ous to require any serious consideration.
It militates against the whole policy of law and offends against the very conce pt of the rule of law regulating the administration of criminal justice. The argument puts a premium on one's taking the law into his hand which is certainly not only unwarranted but prohibited by law .
88. Having dealt with two stages of the prosecution case relating to the rigging of election by pre-planning and on the polling day. I shall now deal with the third stage, i.e. Happening after the close of the poll on 7-3-1977, and ending with the announcement of the result on 8-3-1977. The law relating to the election provides that after the close of poll, the Presiding Officer had to open that ballot boxes in the presence of the candidates or their agents as were present. After counting the ballots, the count statements were to be prepared showing votes secured by each candidate and the invalidated and challenged votes were to be separated from the valid votes and thereafter a count-statement was to be prepared, which was to be sent to the Returning Officer in a sealed bag 'containing the ballots. Copies of the count-statement were to be supplied to the candidates or their polling agents. It is in evidence that after the clear of the poll, this procedure was followed and count-statements were prepared. The prosecution has produced 15 Presiding Officers, namely , Parvez Mahmood (P. W. 3), Ch. Muhammad Anwar (P. W. 4), Ghulam Muhammad Shah (P: W. 7), Jamil Ahmad (P. W. 8), Atta Mirza (P. W. 9), Abid Shah (P. W. 10), Nur Muhammad Hamdam (P. W. 11), Tanveer Ahmad (P. W. 12), Muhammad Siddiq Qamar (P. W. 13), Firdous Anwar Qazi (P. W. 14), Miss Zubra Durrani (P. W. 15), Sheikh Masood Ahmad (P.
W. 16), Agha Jan Khan (P. W. 17), Muhammad Akbar (P. W. 18) and Abdul Ghafoor Khan (P. W. 19). These witnesses have stated that votes polled on their respective Polling Stations were counted by them after the close of the polls the count-statements were prepared and their copies supplied to the agents of the candidates except P. Ws. 1-18, Muhammad Akbar Khan, who did not supply copies to the agents. 1t is further in evidence that this procedure was followed even at those polling stations where there had been some disturbances and lawlessness. It can be safely presumed that this procedure was followed in the remaining 54 polling stations as well particularly in view of the provision of clause (f' of section 1 14 of the Evidence Act.
89. According to the consolidated statement (Exh. P. W. 2/9) showin the votes polled by each candidate at polling, stations prepared from the aforementioned count-statement (all forming Exh. P. W./7), Mahmood Khan Achakzai had polled 24108 votes, Yahya Bakhtiar Khan 5,946, Abdul Wahid 5589 and Ghulam Muhammad 766 at these 57 polling stations.
90. The prosecution contends that having thus., learnt the result of R this election from the count-statement supplied by the Presiding Officer to the polling agents of the candidates, official pressure and undue influence who brought to bear upon the officials concerned with this election, including the accused himself to thwart this result and somehow to declare the accused elected by employing foul means.
91. In order to prove its case in this behalf, the prosecution has produced and has relied upon the testimony of Islam Bahadur Khan (P. W. 26), Muhammad Afzal Luni (P. W. 25), Izzat Aziz Kurd (P. W. 24), Manzoo Hussain (P. W. 23), Muhammad Azam Khan (P. W. 22), Jamal Khan Jafar (P. W. 21), Muhammad Akbar Khan (P. W. 18), Parvez Mahmood (P. W. 3), Ch. Muhammad Anwar (P. W. 4), Muhammad Ghaus (P. W. 5), M. A.
Durrani (P . W. 2), Firdaus Anwar Qazi (P . W. 14), Atta Mirza (P . W. 9).
92. Mr. Islam Bahadur Khan was the Commissioner , Quetta Division, in March, 1977. District Pishin was a part of Quetta Division. After narrating the events upto the close of polling on 7-3-1977, the witness, while referring to the happenings thereafter has stated :- In the evening of 7th March 1977, the Returning Officer was not available, Mr. Manzoor Hussain, A. R. O., A.
C., Pishin and Asstt. Director Local Government were, however , present with me. The election results started pouring in from different polling stations. Under the direction of the Chief Secretary , I stayed at Pishin, because the Returning Officer had not yet reached there. The Chief Secretary asked me to retrieve the D.
C./Returning Officer, maintain the law and order situation and communicate him the result of the election. Mr. Yahya Bakhtiar Khan contacted me on phone the same evening. He wanted to know the result of the election.
On the basis of whatever results were received, I informed him that his post tion was very weak and there was a distant possibility of his success. He said, come what may, the result must be shown in his favour . Subsequent to this, his election agent, Mirza Munawwar , along with his Peoples Party supporters came. I tried my utmost to convince Mr. Yahya Bakhtiar Khan on telephone that his success was very difficult, but he got annoyed and threatened me in case of his failure in the election. All this time I was staying in Pishin Rent House along with the election staff, army officers and other officials. The supporters of Pukhtoon Khwah somehow or the other gheraoed the Rest House. The local civil administration failed to clear the area from them, therefore, I tried to get the help of the army personal in this respect. As far as I remember , before the arrival of the Deputy Commissioner -cum- Returning Officer. Mr. Yahya Bakhtiar Khan again contacted me on telephone and directed me to show the result in his favour . In spite of my best explanation to him as well as to his election agent Mirza Munawwar , he did not listen to any reason. Mirza Munawwar was sent with a specific purpose to manipulate the result in favour of Mr. Yahya Bakhtiar Khan. I tried to resist the pressure and consulted my staff present there, but out of compulsion we had to agree to rig the election. It was with utmost reluctance that we did it. Meanwhile, Mr. Luni, the Returning Officer also came. He was extremely demoralize ' discussed the situation with him and the amount of pressure administration to rig the election in favour of Mr. Yahya Bakhtiar Khan. He was also hesitant to rig the election, ln the early hours of 8th March, 1977, the election materials were shifted from Pishin Mess to Pishin Fort. There my staff were not willing to do rigging operations. But Mirza Munawwar , the election agent of Mr. Yahya Bakhtiar Khan, who happened to be present there for the whole night pressurized for rigging operations and to show the result in favour of Mr. Yahya Bakhtiar Khan., Finding no way out and realizing the adverse consequences as civil3 servants, we were forced to do rigging. Mirza Munawwar had accompanied us to Peshin Fort. When I was there at Pishin Fort, I learnt that Do-cum-Returning Officer, Mr. Luni, was not available and had left for his residence. We waited for him for some time, but soon thereaf ter, an application for leave was received from him through one of his subordinates. In the absence of Returning Officer and due to compelling circum stances, Manzoor Hussain A.
R. O. was advised to take over as Returning Officer. Accordingly , the Election Commission was informed of the situation through phone as well as in writing and requested it to issue a proper order for the appointment of Mr. Manzoor Hussain as Returning Officer. The polling staff and Pishin Scouts personnel were busy in manipulating the result. After the boxes were opened, every possible method was adopted to till the result in favour of Mr. Yahya Bakhtiar Khan and this was done by rigging the ballot papers in various ways. Thereafter , the manipulated result was conveyed to the Election Commissioner by Mr. Manzoor Hussain, Returning Officer. It was such a big operation that it took sufficient time. The result after compilation was communicated by telephone to the Election Commissi on at Degar time on 8th March, 1977. Mr. Yahya Bakhtiar was thus declared a successful candidate from Constitutency No. NA-195- Quetta-II on the basis of a manipulated result."
93. Izzat Aziz Kurd (P. W. 24) in March 1977 was Assistant Director , Local Government, Pishin District. After explaining the arrangements made for holding this election and the arrival of Islam Bahadur Khan in the morning of 7th March 1977 at Pishin and thereafter those of the Chief Secretary , I.-G. Police and I.-G. F. C. By helicopter , their holding discussion with the Commissioner and their departure in the afternoon, the witness has stated that the Commissioner then had a talk with the Deputy Commissioner to maneouvre the election in favour of Pakistan Peoples Party's cand idate. After stating the circumstances in which the Commissioner was pressurized to rig the election in favour of the accused who in turn made the officials present there including this witness, to do digging in the Malitia Fort, the witness has stated :- "The staff of some polling stations and the scouts personnel were directed by the Commissioner to open the ballot boxes and the ballot papers in favour of Mahmood Achakzai be doubly stamped and the unused blank ballot papers be stamped in favour of P. P. P. Candidate. We were sitting in a close by room. In the morning Mr. Luni went to his house and thereafter we came to know that he proceeds to Quetta on leave. Stamping and re- stamping of the ballot papers continued up to 4/5 p. m. Of 8th March 1977."
94. The witness has further stated that Manawwar Mirza, the agent of the agent of the accused, had reached the Mess and they had all gone to Malitia Fort.
95. Manzoor Hussain (P. W. 23), Assistant Returning Officer of this Constituency , after stating the circumstances in which he assumed the charge as Returning Officer, regarding the happenings after the close of the poll, he has stated that :- " . The Commissioner decided that the ballot papers of the successful candidate be stamped doubly and the remaining blank ballot papers be stamped in favour of Mr. Yahya Bakhtiar Khan. This whole operation was carried in the Militia Mess."
96. He has further stated that Manawwar Mirza, the agent of the accused was also present there. This witness has also deposed about the circumstances in which he had prepared the count-statements (Exh. P. W. 2/17) on 9-3-1977. He had made statement befor e the Election Commission of Pakistan in May 1977, Exh. P. W. 23/2 regarding which his contention is that :- " . This statement of mine is on the lines of the instructions given to me by the Commissioner , Quetta."
97. Muhammad Afzal Luni (P. W. 25), Deputy Commissioner Pishin as also Returning Officer of the Constituency in question in March 1977, after deposing about being told by the Commissioner and the Chief Secretary that as the accused had been nominated for this seat, hence it has become a prestigious seat for the Peoples Party , and while narrating other relevant facts already discussed above, he has stated that from Barshore he returned to Pishin late in the evening on 7-3-1977 and met the Commissioner Quetta, and other colleagues in the Rest House. He has further stated that on the receipt of the result from the various polling stations, it became evident that the accused had lost the election, as the votes secured by his rival candidate.
Mahmood Khan Achakzai were more than him. He has also deposed about the pressure brought to bear upon the Commissioner by the then Chief Secretary on phone and thereafter their shifting to Malitia Fort along with the ballot bags. The object of shifting to the Fort according to this witness was :- "To reopen the bags and made good the dif ference of the votes in favour of the Peoples Party's candidate."
98. He slipped away soon after the start of the rigging operation, and went on leave. He has further stated that while he was on leave, he was called back by the Commissioner and the Chief Secretary on 18-3-1977 and was asked to write a report about the situation which he did at the direction of the Commissioner , It is Exh. P. W.
25/1. According to the witness, this report did not contain true facts. He further stated that when he left the Fort, Izzat Aziz Kurd, Muhammad Azam A. C., Nayyar Agha and others were still present there. He has also deposed about the instructions given to him by the Commissioner and the then Chief Secretary regarding securing more votes for the accused and the stamps taken in this behalf. In cross examination regarding his motivation to proceed on leave, he has explained :- " . . . As the Commissioner wanted me to reopen the bags and to make good the difference of the votes in favour of the Peoples Party's candidate, hence I thought it better to slip away . I therefore proceeded to my residence. I then left for Quz:tta along with my family at about 8 a. m. And applied for leave. I did it in order to avoid participation in the rigging operations."
99. He has further stated in cross-examination that the accused had never approached him to maneouvre to cast more votes, in his favour , nor -did he receive any such instructions from Islamabad.
100. Muhammad Azam Khan (P. W. 22) was posted Assistant Commissioner Pishin in March, 1977. After narrating that after the close of the poll on 7-3-1977, the results of the various polling station started arriving, revealing that the accused had lost the election. He joined the Commissioner and the Deputy Commissioner in the morning of 8-3-1977 and they along with certain other officials shifted to Malitia Fort where ballot bags were tampered with.
101. In cross-examination by the accuse d, this witness has stated that he was never requested or influenced by the accused to help him to win the election nor ,was he given any instructions by any body to rig the election in favour of the accused. The rest of the case has been proved by the accused in his cross-examination.
102. The witness has further stated in cross-examination :- " . . On returning of the D. C., the Commissioner told him that the high-ups from Islamabad has directed us through Chief Secretary that Mr . Yahya Bakhtiar's success in the election be made sure at any cost."
103. The witness has further stated that the Commissioner used to receive frequent telephone messages and that as he was under heavy pressure from above, he was not inclined to announc e the result. It has further been got in cross-examination from this witness that :- " Immediately after the arrival at the Fort, I came to know that the Government of Baluchistan under heavy pressure from the Federal Government has been forced to get Yahya Bakhtia r successful candidate through rigging. I was not present at the time when the Commissioner had talk on telephone with Chief Secretary . A.
C., Chaman and other officers who bad accompanied the Commissioner from the Mess to the Fort had told me about the pressure on the Government of Baluchistan by the Federal Government to get Mr. Yahya Bakhtiar Khan a successful candidate through rigging. I was not present when this decision was taken at Pishin Scouts Mess. At that time, I had gone to my house for rest. I had left for my house at about 2 a. m. In the morning of the following day. It is correctly recorded in my statement before the C. M. L. A. Election Inquiry Committee that the rigging operation was forced upon the Provincial Government by the Federal Government through Chief Secretary and Commissioner , Quetta - Division. The Commissioner and all other concerned officers were quite sure that in not obeying the Federal Government would lead to serious consequences."
104. Jamal Khan Jafar (P. W. 21) is a Tehsildar who had performed a role in connection with Polling Stations Nos. 68 and 69 already referred to above. After narrating that role and stating that after collecting the polling bags from different polling stations, he has stated that he reached Pishin at 6 a. m. On 8-3-1977 and that on receiving at telephone call from the Commissioner Quetta Division at about 12-30 p. m., he 'reached the Malitia Fort and reported to the Commissioner . He saw Izzat Aziz Kurd, Muhammad Azam Khan, Nayyar Axha and some other persons present there. He has further stated :- "A big table was lying in the room and there were about 20/25 other persons sitting around the table. They were stamping the ballot papers, putting them in the box and bags were sealed."
105. The cross-examination of this witness by the accused is confined to the role assigned to him by P. W. 3 and P. W. 4, namely , Parvez Mahmood and Ch. Muhammad Anwar , and not a single question was put to him regarding his meeting with the Commissioner , Quetta Division. As noted above, he deposed in the examination-in-chief that after the poll was over, in the Pishin Fort he witnessed about 20/25 persons sitting around a big table who were stamping the ballot papers and putting them in the bags and then sealing them.
106. In further cross-examination, he has stated that he never abducted and kidnapped P. Ws. 3 and 4 (Parvez Mahmood and Ch. Muhammad Anwar) and that he did not ask them to keep quite, and that he was never directed to act under the orders of Malak Behram Khan nor had he asked the Presiding Officer to act under the orders of Malak Bahram Khan, and that no body asked him to do rigging and nor had he put pressure on any body to do so.
107. The statements of Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4) have already been referred to above. While dealing with the happenings on the polling day, they have also deposed about the rigging operations conducted in the Militia Fort. Parvez Mahmood (P. W. 3) has stated that Manawwar Mirza, the polling agent of the accused was present at that time.
108. The next witness on the subject is Muhammad Akbar Khan (P. W. 18). He was the Presiding Officer of Polling Station No. 22, Qila Abdullah. He has stated that after 'the close of the poll, be prepared the count- statement in the presence of the polling agents of the accused, Mahmood Khan Achakzai and Abdul Rashid and he also announced the unofficial result, but he did not give the count-statement to the agents of the candidates who were present there. According to him Mahmood Khan Achakzai had obtained the largest number of votes.
Thereafter , he put the ballot material, etc. In the sealed bag, and at mid-night reached Pishin Rent House where the Commissioner , Quetta Division, Deputy Commissioner , Assistant Returning Officer and other Assistant Commissioners of the area were present. He handed over the election mater ial to the Assistant Returning Officer who took him to another room, and asked him to open- bags and do more work as well. He has further deposed about the rigging operation at the behest of the Commissioner , "to fill in the rest of th3 ballot papers lying. Vacant with me and to cast the same in favour of Yahya Bakhtiar Khan.
Mr. Munawar Mirza, the polling agent of Yahya Bakhtiar Khan was present there. I used to cast the remaining votes in favour of Yahya Bakhtiar Khan and thus a large number of votes were cast in his favour in the presence of the officers. I do not remember the exact number of votes which I stamped and cast in favour of Mr. Yahya Bakhtiar Khan. This was done under compulsion and as such the votes cast in favour of Mr. Yahya Hakhtiar Khan after this rigging operation were more than Mahmood Khan Achakzai and thereafter separate count-statement was prepared by me. It was signed by me. It bears my signatur e". In cross-examination by the accused, the statement made in examination-in-chief by this witness that he has cast bogus votes in favour of the accused at the behest of the Commissioner and Deputy Commissioner is not challenged at all, nor has any motive been imputed to him for making this statement. The cross-examination is directed against the lawlessness at this polling station by the supporters of Mahmood Khan Achakzai, and that counting by him was done under duress, and that the agent of the accused was sitting there helpless and was frightened. The accused's contention regarding the polling at this polling station, as demonstrat ed in cross-examination of this witness, is that Mahmood Khan Achakzai's supporters had taken forcible possession of this polling station and had cast bogus votes in his favour; Stran gely enough, according to Exh. P. W. 2/17, the consolidated statement of count-statement of votes prepared Mr. Manzoor Hussain, Assistant Returning Officer, the accused Yahya Bakhtiar Khan had polled 1,360 votes at this polling station whereas Mahmood Khan Achakzai had secured 442 votes only .
109. The prosecution has also relied upon the statement of Mr. Atta Mirza (P. W. 9) and Firdaus Anwar Qazi (P.
W. 14) in this regard. P. W. 9 was the .Presiding Officer of Polling Station No. 53 and his statement has already been referred to above. He has stated that after the close of the poll, he had counted the votes in the presence of the polling agents of the candidates, copies of which were supplied by him to the agents. The copy proved by him is Exh. P, W. 9/1. He has further stated that he deposited the bags containing ballot, ' etc. With the Assistant Commissioner . When asked whether he had given count-statement to the polling agents of. The candidates, he replied in the af firmative. He was asked to change the count statement which he refused.
110. According to Exh. P. W. 9/l, the accused had polled 46 votes at this polling station, Mahmood Khan Achakzai 2,202, Abdul Wahid 55 and Malak Ghulam Muhammad 69.
111. In the final counting of the votes (Exh. P. W. 2/17), the votes shown to have been polled by Mahmood Khan Achakzai was 202, his 2000 votes appearing in Exh. P. W. 9/1 were shown as rejected in this document viz. (Exh. P . W. 2/17).
112. Firdaus Anwar Qazi (P. W. 14), Presiding Officer of Poling Station No. 58 (females) stated that after the close of the poll, she had prepared the count-statement and given copies of the same to the agents of Mahmood Khan Achakzai and of the accused, and that less than 100 votes were cast at the polling station and that the candidate of 'Horse Sign' (assigned to Malak Ghulam Muhammad candidate) had secured more votes. She has further stated that she had perhaps stayed at Chaman for the night where two persons came and asked her to sign some forms which they had brought with them. Those forms were of the similar kind which .She bad already filled in and enclosed in the envelop.
113. In cross-examination, many important things were got clarified from this witness by the accused: In an answer to question put by the accused, the witness has stated :- "The two persons who came in the night to obtain my signature on the blank form were Government officers. I did not give anything on the blank paper and the officials who brought the paper was in printed form and the count-statement which I have given to the agents of the contesting candidate was on the blank paper ."
114. She had further stated in cross-examination that she was appointed as Presiding Officer for the Provincial Assembly Election for the same place, but she refused to accept that assignment for the reason that :- "It was because of the fact that in the previous polling for National Assembly , as I was, forced to sign the blank form which was according to me a very unusual thing." and that "As I had heard much about malpractices and also due to compulsion from those two Government servants to obtain my signature on the form, I refused to accept the assignment of the Presiding Officer for Provincial Assembly polling. I do not know who those two officers were. One of them was the person who had provided us with the polling material and the other person was new one. They did not threaten me, but the circumstances were so unfavourable that I had to sign the blank form produced by those two of ficers."
According to this witness, less than 100 voters had cast their votes at her polling station. According to Exh. P.
W. 2/17 already referred to above, the total number of votes polled at this polling station are 1691. Abdul Wahid is shown to have polled one vote, Mahmood Khan Achakzai 51 votes, Malak Ghulam Muhammad 59 votes and Yahya Bakhtiar Khan, is shown to have secured 1627 votes.
115. As already stated in the earlier part of this judgment, the Chief of Electi on Commissioner of Pakistan, soon after 7th March 1977 had conducted an inquiry into the allegation of rigging of this election. The relevant record was taken possession of by the Provincial Election Commissioner at Quetta, out of which the record relating to five polling stations, namely , Nos. 56, 57, 68 and 69 was got examine d by the Finger Print Expert of the Federal Investigating Agency , Islamabad. On behalf of the Agency , the record was examined .By Mr. Muhammad Ghaus, Inspector (P. W. 5) and Mr. S. Mumtaz A.I Shah, Assistant Director , F. I. A. As stated by Mr. A. Z. Farooqi (P. W. 27) in his second report dated 3-5-1977 (Exh. P. W. 27/4), the Finger Print Expert of F.
I. A. Remained associated throughout with this investigation. Muhammad Ghaus Inspector F.
1. A. Is a Finger Print Expert in the Technical Branch F. I. A. Headquarter Islamabad, and he appeared as P. W.
5. He has stated that he and his colleagues S. Mumtaz A.I Shah Inspector Examined the counterfoils of 87 ballot paper books and the scrutiny revealed that 3315 thumb-impressions were of one and t, the same person, while 2336 thumb- impression were of another person. They found that some of the thumb-impressions had been deliberately tampered with or superimposed or overinked in order to render them unfit in comparison and to avoid identification.
116. This witness has also proved their reports regarding their examination which is Exh. P. W. 5/1. It is a detailed report dated 4-5-1977 giving the particulars of the various ballot paper books examined by them. It 'reads as under :- "After careful comparison and examination of impressions on the counterfoils of the ballot paper books in the above case we are of the opinion that the impressions recorded on ballot paper Books Nos. 1103, 1109, 1110, 1116 (From Serial Nos. 1 to 5) 1118, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1129, 1130, 1132, 1133, 1137, 1139, 1141, 1142, 1143, 1145, 1146, 1147, 1154, 1156, 1157, 1158, 1159, 1368 and 1375 to 1377 are one and the same persons. Impression found on the counterfoils of Ballot paper Books Nos. 1162, 1107, 1108, 11.11, 1119, 1128, 1131, 1134, 1135, 1136, 1138, 1140, 1144, 1151, 1152, 1153, 1155, 1156, 1345 (Serial Nos.
64 to 100) 1347, 1357, 1358, 1359 and 1360 are one of the same person.
Para. 3 of this report contains the result of thumb-impressions bookwise, of the ballot Books allotted to the Polling Stations No. 68, 69, the details of which have been proved as Exh. P. W,. 3/I to Exh. P. W: 3/15 and Exh. P. W. 4/1 to Exh. P. W. 4/25 by Pervez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4) respectively .
117. The remaining ballot books containing counterfoils have been proved by this witness as Exh. P. W. 5/2 to Exh. P . W. 5/48.
118. Para. 4 of this report says that the counterfoils of ballot paper books Nos. 1344 and 1343 (Serial Nos. 42 to 100) have not all either been signed or thumb-impressed. In cross-examination, the accused has elicited p only the following information from this witness :- "Except in the present case, no other counterfoils and the ballot papers were sent to me for comparison and examination. I did not carry out the comparison and examination of thumb-imp ression in this case in my own office but in the office of the Election Commission of Pakistan, as we were not allowed to take out these documents from that of fice to our own of fice."
119. A close scrutiny of the relevant evidence on this point is very revealing. The case of P. Ws. 3 and 4 Is that they had not conducted any polling at their respective polling stations and it was at the house of Malak Behram Khan that they were made to cast bogus votes, and that : "Malak Behram Khan alongwith his 8 men present there started making the ballot papers with polling stamp taken out from the polling bag in favour of the People Party's candidate, Mr. Yahya Bakhtiar Khan. Thumb- impressions were af fixed on the counterfoils by Malak Bahram Khan and his men."
According to para. 3 of the report of Finger Print Expert (Exh. P. W. 5/1), the counterfoils of a large number of ballots is Exh. P. W. 3/15 contained the thumb-impressions of six persons only. In Book No. 1.364 (Exh. P. W.
3/4), four thumb-impressions are of the same person. Similar details appear in respect of other books allotted to P. W. 3.
120. Paragraph I of this report (Exh. P . W. 5/1) says that : "Thumb-impressions recorded on the ballot paper Books No 1375 (Exh. P. W. 3/15), 1376 (Exh. P. W. 3/14), 1377 (Exh. P. W. 3/11) as also the thumb-impressions appearing in thirty-one other ballot paper books assigned to other polling stations detailed in Exh. P . W. 29/2) are of one and the same persons."
It conclusively proves that the ballot papers assigned to the polling stations No. 69 alongwith similar ballot books allotted to other polling stations were used by one and the same person at one place.
121. Same is the case with Ch. Muhammad Anwar (P. W. 4), Presiding Officer of Polling Station No. 68. He has stated that ballot paper books bearing No. 1335 to 1360, (marked as Exh. P. W. 4/1 to Exh. P. W. 4/25 excluding book No. 1349) were allotted to him for the purpose of this election. According to para. 3 of this report Exh. P. W. 5/1, the thumb impres sions on 36 counterfoils in Book No. 1335 (Exh. P. W. 4/1) are of one and the same person and another 20 in the same book are again of one and the same person. The report further contains similar details about Exh. P . W. 4/3 to Exh. P . W. 4/10 and P . W. 4/14 to Exh. P . W. 4/21.
122. Paragraph 2 of this report further establishes that the counterfoils of Exh. P. W. 4/11, Exh. P. W. 4/13, Exh.
P. W. 4/22, Exh. P. W. 4/23, Exh. P. W. 4/24 and Exh. P. W. 4/25 contain the thumb-impressions of one and the same person alongwith counterfoils of 18 other ballot paper books not assigne d to this polling station but to others.
123. It is in evidence that each ballot paper book contains 100 ballot papers. According to para. 1 of Exh. P. W.
5/1, 3315 counterfoils -appearing in 34 ballot paper books and allotted to separate polling stations, namely , polling stations Nos. 56, 57, 58 and 69 contained thumb-impressions of one and the same person.
124. Similarly , according to para. 2 of the said report, 2336 counterfoils appearing in 24 ballot paper books allotted to dif ferent Polling Stations, i.e. 56, 57, 58 and 68 bear the thumb-impression of another person.
125. Similar details are given in para 3 of this report which pertains to the ballot paper books allotted to polling stations No. 68 and 69 already discussed above.
126. It is significant that according to this report, counterfoils of Books No. 1349 and 1343 (From No. 40 to 100) allotted to Polling Station No. 68 do not contain any signature or thumb-impression.
127. This document alone, which is of an unimpeachable character conclusively establishes that there had been rigging in this election on a massive scale, and it was done as a result of pre-planning and with clear cut motive to achieve a certain objective, i.e. As many votes as possible in favour of the accused so as to secure his success in the election.
128. According to prosecution, two methods were employed at the Militia Fort on 8-3-1977 to somehow show more votes in favour of the accused. One mode adopted was to mark the unused ballot papers in his favour which part has already been discussed above; the other was to illegally and fraudulently invalidate thousands of votes secured by his rival candidate Mahmood Khan Achakzai. In order to prove this aspect of the prosecution case, the prosecution has produced oral as also documentary evidence.
129. Noor Muhammad Hamdam, Presiding Officer of polling station No. 60 at Abatto has appeared as P. W.
11. The count-statement prepared by him is Exh. P. W. 11/1 according to which Mahmood Khan Achakzai has secured 847 votes (including one challenged ,vote). Mr. Yahya Bakhtiar Khan 39 votes, Abdul Wahid 10 and Ghulam Muhammad 4 votes only. It also shows that the total votes polled at this polling station were 928, which Y include 28 doubtful votes.
130. In the consolidated count-statement (Exh. P. W. 2/17) prepared after the rigging of the election on the basis of which the result was announced declaring the accused to have been elected, the votes of Mahmood Khan Achakzai were reduced from 847 votes to 246 and the number of rejected votes was increased to 600 from the original 28 votes.
131: Mr. Atta Mirza, Presiding Officer of Polling Station No. 53. Government High School, Chaman, has appeared as P. W.
9. He has proved Exh. P. W. 9/I, the count, statement .Prepared by him soon after the polling was over at his station.
132. According to this document, Mahmood Khan Achakzai had polled 2202 votes, Mr. Yahya Bakhtiar Khan 46, Abdul Wahid 58 and Ghulam Muhammad 69 votes. The total number of votes polled, according to this document, was 2375. This further show s that 16 were doubtful/ challenged, 21 had been carried away by the voters. The total number of votes thus used is given as 2412.
133. In the final counting of votes Exh. P. W. 2/17 (already referred to above) the number of votes secured by Mahmood Khan Achakzai was reduced from 2202 to 202 and the number of rejected votes was increased to 2016 instead of original 16, appearing in Exh. P . W. 9/1.
134. Mr. Agha Jan Khan, Presiding Officer of Polling Station No. 51 at Town Hall, Chaman; has appeared as P.
W. 17 and has proved Exh. P . W. 17/ 1, the count-statement prepared by him soon after the close of the poll.
135. According to this document, Mahmood Khan Achakzai has polled 1478 votes, Yahya Bakhtiar Khan 15.
Abdul Wahid 15, Ghulam Muhammad 60. This document further shows that there were four spoiled votes. In Exh. P. W. 2/17 the position is changed. Mahmood Khan Achakzai is shown to have polled 278 votes instead of 1478 and the position of the other three candidates remained the same. However , the total number of rejected votes is shown as 1200 instead of four appearing in Exh. P . W. 17/1.
136. Tanveer Ahmad, Presiding Officer of Polling Station No. 66 has appeared as P. W. 12 and has similarly proved Exh. P. W. 12/1 to be the count-statement prepared by him soon after the poll. According to his document, Mahmood Khan Acbakzai had secured 1219 votes at this polling station, Yahya Bakhtiar 6, Abdul Wahid 10 and Ghulam Muhammad 11. This document further shows that at this polling station there were 71 doubtful votes.
137. In Exh. P. W. 2/17, the number of votes polled by Mahmood Khan Acbakzai was reduced from 1219 to 219 and the rejected votes were proportionately increased to 1017 from the original 71.
138. It may be added that the authenicit y of count-statements referred to above has not been challenged by the accused at all. Moreover , the fact that they were prepared simultaneously with the counting of votes soon after the poll on 7-3-1977 is further established by Exh. P. W. 2/9 which was prepared on the basis of these documents and was produced before the Election Commission in March, 1977, during the course of the aforesaid inquiry .
139. The other evidence led by the prosecution to prove this point need not to be referred to here, as this would burden this judgment with unnecessary details. The accusation of the prosecution in this behalf has been amply proved by the evidence already discussed. The prosecution has thus established its case beyond the possibility of any reasonable doubt that this election was rigged during the poll as also after the poll and that it was done as the result of pre-planning.
140. In the light of the overwhelming evidence led by the prosecution, the accused has admitted the farcical ballotting done at Polling Stations Nos. 68 and 69 but has contended that he had nothing to do with it and had no knowledge of it regarding the rigging done at Pishin Fort. His case is that:- "On the contrary , from the prosecution case it is obvious that it was Islam Bahadur who at the instance of the Chief Secretary or on his own accord was forcing officials to open the ballot boxes, affix double stamp to the ballot papers just to nullity the bogus votes which had been cast in favour of one of two rival candidates by force and those two top officials, as they had failed to arrange for the holding of proper election and to maintain law and order , made a crude attempt to salvage the election which had already been rigged in many polling stations and thus save themselves from explanations for their failure in their duties."
141. The rigging of the election is thus an admitted fact. The contenpetition of the prosecution that it was done at the behest of the accused and also with his approval and connivance, and that he was in any case involve in it besides the circumstantial evidence referred' to above, the direct evidence on this point if furnished by Islam Bahadur (P. W. 26). Hi statement on this fact of the prosecution case is that as the election campaign proceeded, the accused called him on quite a few occasion to help him in the election to make his election a success and that after the close of poll on 7-3-1977 the results started comin g in from the various polling stations and that the accused had contacted him on phone the same evening in order to know the result of the election, and that on the basis of whatev er results till then had been received; he informed the accused that his position was, very weak and that there was a distant possibility of his success. Upon this, the accused said to him that "come what may, the result must be shown in his favour" Thereafter , the accused's election agent Mr. Munawwar Mirza came alongwith his art supporters. . The accused again contacted him on telephone and directed him to show the result in his favour . The witness has further stated that Mr. Munawwar Mirza, the election agent of the accused, had .Been sent to Pishin with the specific purpose i.e. To manipulate the result of the election in favour of the accused and that he remained there during the night as also on the following day when the rigging was done and that it was under coercion and pressure that he and his staff agreed to rig the election and show the result in favour of the accused.
142. While refuting the statement of Islam Bahadur (P. W. 26), the contention of the accused is that he had met the witness only twice. The first occasion was when he had called his party workers and his party nominees to the Provincial Assembly at the Rest House Pisbin, and the second occasion was that when the accused had invited some party workers numbering about 50/60 to lunch which was arranged by him at the Rest House. On this occasion also, Mr. Islam Bahadur came along with some other officials. The claim of the accused is that he may have talked to the witness for a minute or two in the presence of the people there on both the occasions, but no discussion relating to this election campaign took place.
143. Regarding the presence of his Election Agent Mr . Munawwar Mirza at Pishin, the accused's claim is: "It is incorrect that Mirza Munawwar , my election agent visited Pishin on 8-3-1977 in the morning with a view to finding out the result of the election from the Returning Of ficer-cum-Deputy Commissioner , Pishin."
The accused has stated that he did not have any talk on telephone with P. W. 26 in the evening of 7-3-1977 or thereafter . In support of this contention he has produced Jalil Hussain, Accounts Officer, Telephone Revenue, Quetta as D. W. 4, who has proved the telephone bill of the accused for the month of March, 1977 (Exh. D. W.
4/2). This witness has stated :- "This exhibit does not show any trunk call having been made from this number to Pishin in the month of March, 1977."
The accused has also produced Muhammad Naeem Khan, Sub-Divisional Officer, Divisional Engineer's Officer, Quetta, as D. W.
3. He has stated that :- "No special telephone line was set up for the Commissioner , Quetta Division between Pishin and Quetta, in the beginning of March, 1977. There is only one direct line set up from D. C.'s office, Pishin to Quetta. This is an old line set up before the advent of Pakistan. Pishin P. A. Rest House has got a local telephone exchange. If a person wants to talk to and from Rest House, a trunk call is booked for that propose with the Exchange concerned and record in this connection is accordingly maintained."
In cross-examination, this witness has stated that: "I do not know whether in the beginning of March, 1977, there was an extension set up from D. C.'s number to the P . A. Rest House Pishin."
The claim of Mr. Islam Bahadur (P. W. 26) is that the accused had rung him up twice after the close of poll on 7-3-1977 so the evidence of D. W. 3 in this behalf is not relevant. P. W. 26 has not stated that he had rung up the accused at Quetta on the direct line from Rent House at Pishin. The fact that Exh. D. W. 4/2 does not record any such call made at Pishin on 7-3-1977 does not necessarily prove Islam Bahadur to be liar, because this witness has no where said that the accused has rung him up from his own telephone number . The undenied suggestion put to D. W. 3 further shows that the direct line connection with D. C.'s office had extension at the P. A. Rest House at Pishin. Adjudged from the ordinary course of business, this must be true, as the Rest House was being used by the then Attorney-General holding the rank of a Cabinet Minister as also by other senior executives of the Province.
144. Assuming for the sake of argument that the Rent House had no direct connection whatsoever , and it had only a telephone connected with the local exchange at Pishin, still P. W. 26 is not to be considered liar. He could only be established to be so by proving the telephone bill relating to the Rest House number of the local Exchange evidencing that after the poll on 7-3-1977, no trunk call from outside had been booked for this number or that no call from Quetta had been materialized.
145. On the point that Mr. Islam Bahad ur Khan P. W. 26 was receiving telepho nic calls and had also talked to the Chief Secretary at Quetta from the telephone connection at the Rest House, there is sworn testimony of Mr. Muhammad Afzal Luni (P. W. 25), Izzat Aziz Kurd (P. W. 24), Muhammad Azam Khan (P. W. 22). P. W. 25 has further stated that he too had talked to the Chief Secretary from. That telephone. It is thus proved that the Rest House at Pishin had a telephone at which Islam Bahadur Khan (P . W. 26) could be contacted from outside.
146. The accused in his defence has produced his election agent Munawwar Mirza as D. W.
5. After stating that on the election day he was at Chaman wherefrom he went back to Quetta after visiting Pishin, he has stated that :- "As I expected the result to be announced on T. V., so I made no inquiry about the result at Quetta. The result was not announced on T. V. On that date. On the following day, as I was instructed by Mr. Yahya Bakhtiar Khan, I went to Pishin and tried to contact the Returning Officer. I was inform ed that he was present at the Pishin Scouts Mess close to the office of Deputy Commissioner . Mr: Izzat Aziz Kurd, an officer attached to the Local Bodies informed me that the election staff and other officers are present in the close by Malitia Scouts Fort. I stayed outside the Fort. I sent a request to the Commissioner Quetta Division, Mr. Islam Bahadur to give me the details of the result of the election. On this request Mr. Islam Bahadur , Commissioner Quetta Division, called me in a room in the Fort and told me that as the polling stations are far away and the result is yet awaited and is being compiled by the relevant election staff: When I was called in, besides Islam Bahadur , Commissioner , Quetta Division izzat Aziz Kurd, both were present in the room in the Fort while other persons were in an adjoining room where Commissioner was sitting. At about 9.30 a.m. I was called in the Fort and I stayed therefor 23 minutes inside. I was also offered a cup of tea in that room by the Commissioner , Quetta Division."
This witness has denied his pressurizing the Commissioner or any other member of the Election staff to rig the election, and he has disassociated himse lf as also the accused from this rigging. The witness has also stated that he did not go to the Rest House at Pishin that night at all. In cross-examination, he has admitted his association with the Pakistan People's Party and that his father is the friend of the accused.
147. Munawwar Mirza (D. W. 5) has admitted the presence of Izzat Aziz Kurd at tlic time of his visit to the Commissioner .On the morning of F-3-1977. The innocence claimed by Munawwar Mirza (n. W. 5) is refuted by Mr . Izzat Aziz Kurd (P . W. 24) by stating that :- "After the last talk on phone in the morning, the Commissioner told us that the result must be in favour of P. P.
P. Candidate. Mr. Aspha Nayyar , A C. Chaman and Munawwar Mirza, the agent of P. P. P. Candidate also reached the Mess and thereafter we went to Malitia Fort where the Malitia personnel had already made arrangements in the Uvo rooms. The staff of some polling stations and the scouts personnel were directed by the Commissioner to open the ballot boxes and the ballot papers in favour of Mahmood Khan Achakzai be doubly stamped and the unused blank ballot papers be stamped in favour of P . P. P. Candidate."
148. Regarding the role performed by Munawwar Mirza, Mr. Parvez Mahmood (P. W. 3) Presiding Officer of Polling Station No. 69, has stated that in the morning of 8-3-1977, he and Ch. Muhammad Anwar were taken to the Fort at Pishrn where Mr. Munawwar Mirza had asked Ch. Muhammad Anwar that as the votes cast in favour of P. P. P. Candidate were less in number , he should stamp more votes in his favour and the rigging was thereafter done.
149. Muhammad Akbar Khan, Presiding Officer of Polling .Station No. 32 has appeared as P. W. 18 and has stated that at the time of rigging in the fort, Mr . Munawwar Mirza was present.
150. It is noteworthy that Parvez Mahmood (P. W. 3) and Muhammad Akbar (P. W. 18) were cross-examined by the accused himself, as he had not engaged any counsel and was conducting his defence. Not a single question was put to these witnesses by him. Even remotely suggesting that Munawwar Mirza was not present there or that he bad in fact not performed the role which the witnesses had assigned to him, or that the witnesses had made a false statement on this point.
151. Manzoor Hussain, Assistant Returning Officer of this Constituency while appearing as P. W. 23, has stated that Munawwar Mirza, the agent of accused, had arrived at the P. A. Rest House late in the night on 7-3-1977.
He has stated:- "Mr Afzal Luni arrived from Barshore at about 10 p.m. In the night Mr. Mirza Munawwar , Advocate, the agent of the P. P. P. Candidate, also arrived there. It had already become clear that Mr. Yahya Bakhtiar was losing.
The Commissioner and Mirza Munawwar were holding discussion away from my hearing."
After stating about the decision taken to rig the poll and their shifting to the Fort for this purpose in the morning of 8-3-1977, he has stated that: "The election material and other documents were placed in a big hall. The election staff and some personnel of the Malitia Scouts were present in the big hall. Mirza Munawwar was also present there. The Commissioner , Quetta Division gave instructions to the polling staf f to start their works and they started doing so."
152. The claim of Islam Bahadur Khan (P. W. 26) that he was pressur ized directly by the accused telephonically as also indirectly through his election agent Munawwar Mirza is established to be true.
153. The contention of the accused that he had sent Munawwar Mirza on the morning of 8-3-1977 to Pishin to inquire from the Returning Officer about the result of the election and the claim of Mr. Munawwar Mirza that as the result was not announced on T. V. Hence in accordance with the instructio ns of his principal, namely , the accused, he took the trouble of going all the way from Quetta to Pishin, which he and the accused could easily enquire through phone is hard to believe. Moreso when the accused was holding the office of Attorney-General for Pakistan and was the First Law Officer of the Federal Government enjoying the status and rank of a Federal Minister and as such, of ficial channels for eliciting the information were easily available to him.
154. The claim that Mirza Munawwar had been sent and had gone to Pishin just to inquire the result of the election even otherwise, thus appears to be untrue. The anxiety which had motivated his principal namely the accused and him to his undertaking the journey from Quetta to Pishin could not be convincing to the sense of a prudent man, by merely being told by Islam Bahadur Khan at about 9-30 a.m. On 8-3-1977 that the result of all polling stations had not till then been received or that they were being compiled by his staff. The witnesses has not stated anything as to his inquiring about the state of count from the count statements received till then. His conduct, therefore, being unnatural belies the statement made by him in Court. Although he was associated with the Peoples Party and his father is the friend of the accused, he in order to impress upon the Court his independence has stated that he declined to appear as a defence witness on behalf of the accused, but as the Court had issued him summons, I he had no option but to appear as defence witness.
155. The above discussion loads to an irresistible conclusion that rigging in the Fort was done under the pressure exercised by the accused on Mr. Islam Bahadur Khan. It is possible that the Chief Secretary and other highups might have also put pressure for the achievement of the same objective, but that was in addition to and not in substitution of, the pressure put by the accused.
The accused has contended that Mr. Islam Bahadur Khan in particular and other P. Ws. In general being accomplices, their testimony is not worthy of credence unless it is corroborated in material particulars by some independent evidence. In support of this proposition, the accused has cited several cases such as "(1) PLD 1949 P C 90.(2) PLD 1960 Kar . 674 .
(3) PLD 1954 FC 35 .(4) PLD 1956 SC 407.
(5) PLD 1960 Kar . 697 .(6) PLD 1979 SC 53.
(7) PLD 1960 SC 237.(8) PLD 1959 SC 377.
(9) PLD 1967 SC 545 .(10) PLD 1971 SC 454 (?)."
156. The law on the subject was declare d by the Full Court of the Supreme Court of Pakistan in case cited as Zulfiqar A.I Bhutto v. The State, the relevant paragraphs Nos. 410 to 413 dealing with the definition of an "accomplice" read as under :- "410. An accomplice, therefore, means a guilty associate or partner in crime, or who in some way or the other , whether before during or after the commission of the offence is consciously connected with the offence in question, or who makes admissions of facts showing that he bad a conscious hand in the offence. Where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime. In other words, an accomplice is a particeps criminis, who is consciously so connected with the criminal act done by his confederate, that he on account of the presence of the necessary mens rea, and his participation in the crime in some way or the other , can be tried alongwith that confederate actually perpetrating the crime. A witnes s who could not be so indicated on account of the absence of mens rea cannot be held to be an accomplice.
411. Whether a person is or is not an accomplice depends on the facts of each, particular case, considered in connection with the nature of the crime. The burden of showing that a witness is an accomplice lies ordinarily upon the party alleging it, namely , the accused, though it is certainly the duty of the prosecution to bring all relevant facts having on this aspect of the matter to the notice of the Court.
412. Under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However , this section is to be read alongwith illustration (6) to section 114 of the same Act, both being parts of the same subject. In view of the presumption mentioned in this illustration, namely , that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, the Court have adopted a rule of caution, which has almost acquired the status or a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. The rule being essentially a rule of caution, the meaning of the term "accomplice" must not be unnecessarily enlar ged so as to exclude, or discredit, the evidence of persons who may be in the best position to disclose facts relevant to the crime, and yet not be consciously concerned in the crime in such a manner that they could be indicted jointly with the main accuse d. Section 114 of the Evidence Act itself also contemplates a situation where evidence of accomplices can be accepted without insisting on corroboration, as, for instance; 'where their accounts tally without there being the possibility of a previous concert between them as to their statements.
413. In these circumstances, I consider that it leads to confusion of thought to treat a witness as "Practically an accomplice", even though the could not be indicted jointly with the main accused, on account of his not being consciously concerned in the crime perpetrated by the actual culprit. If a witness is not an accomplice in the sense indicated above, namely , on account of the absence of mens rea then the real question is not of requiring corroboration of his evidence, but of the degree of credit to be attached to his testimony , depending on all the - facts and circumstances of the particula r case. In other words, he has then to be judged as any other witness, without introducing an artificial requirement of corroborapetition of his evidence by applying the rule contained in illustration (b) to section 1 14 of the Evidence Act.
Having thus defined an accomplice, the Supreme Court of Pakistan in paragraph 415 of its judgment stated the principle governing the appraisal of such evidence. It reads as follows :-
415. Now I turn to the principles govern ing the appraisal of the evidence of witnesses falling in the category of accomplices or approvers. It has alread y been stated that although under section 133 of the Evidence Act an accomplice is a competent witness, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice, yet in view of the presumption mentioned in illustration (b) to section 114 of the same Act, namely , that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars the Courts have adopted a rule of caution which has almost acquired the status of a rule of law, that as the evidence of an accomplice is tainted, it generally requires corroboration. Both sides are agreed on this proposition, as well as on the further propositions that the corroborative evidence, need not by itself be sufficient for conviction, nor it need concern each and every details of the approver's evidence; yet it must be corroboration in respect of material particulars of the crime, and should connect or tend to connect, the accused with the crime. There is also no difference between them on the point that corroborative evidence is some additional evidence rendering it probable that the story of the approver .Is true, and it is reasonably safe to act upon it."
157. In the light of the foregoing discussion, there is no force in the conte ntion of the accused that the testimoney of Mr. Islam Bahadur Khan is not to be acted upon till such time as it is corroborated in material particulars by independent evidence and this corroboration cannot provided by P. Ws. 3, 4, 22, 23, 24 and 25, as tainted evidence cannot corroborated tainted evidence.
158. The contention of the prosecution that the prosecution witnesses had no mens rea and as such are not accomplices is, therefore not correct and unless the statement of Mr. Islam Bahadur Khan is corroborated in material particulars by independent evidence, it is not safe to act upon it.
159. In order to ascertain whether the statement of Islam Bahadur Khan (P. W. 26) is corroborated by independent evidence in material particulars and the salient features of his statement effecting the accused have to be tabulated. They are :- "(1) He took over char ge as Commissioner , Quetta Division in February 1977.
(2) That late Nasrum Minullah was the then Chief Secretary of Baluchistan. Government at that time.
(3) That the accused was contesting candidate on the Peoples Party's ticket for Constituency No. NA 195- Quetta-II and his rival candidates were Mahmood Khan Achakzai, Abdul Wahid and Ghulam Muhammad.
(4) That the accused called him on quite a few occasions to help him in the election and ensure his success.
(5) The late Mr. Zulfiqar A.I Bhutto, the then Prime Minister of Pakistan visited Pishin just before the election and in a public meeting projected the personality of the accused and declaring openly that he was the only capable man to represent the people in the area, that he may be elected, that this meeting was attended by high- ranking officials of the Federal as well as Provincial Government, and that the Returning Officer and other polling staf f were also present in the meeting.
(6) That subsequent to this meeting, the office-bearers and supporters of the People's Party became more aggressive to pressurize the local administration in different ways in order to ensure the success of the accused in the election.
(7) That he visited Pishin on 7-3-1977.
(8) That on his arrival at Pishin, the people of Pukhtoon Khwah (NAP) complained to him that no polling staff had reached Farakhi polling station, and no proper arrangements have been made to conduct election according to the law .
(9) That the Chief Secretary of Baluchistan Province accompanied by the I. G. P. And I. G. F. C., reached Pishin by helicopter . They then left for Chaman and again stopped at Pishin on their way back to Quetta.
(10) That the Chief Secretary , Baluchistan Government directed the Deputy Commissioner -cum-Returning Officer to go to Barshore to ensure proper election and that he went there.
(11) That in the evening of 7-3-1977, the Returning Officer was not available and Manzoor Hussain A. R. O.
A.-G. Pishin and Asstt. Director , Local Government were present with him at Pishin when the election result started pouring in from dif ferent polling stations.
(12) That the accused contacted him on phone in the evening to know the result of the election and on the basis of whatever result was received, he informed him that his position was very weak and there was a distant possibility of his success on which the accused said `Come what may the result must be shown in his favour'.
(13) That subsequent to this, his election agent, Munawwar Mirza, came with the Peoples Party's Supporters.
(14) That before the arrival of the D. C.-cum-R. O. The accused contacted him on phone and directed him to show the result in his favour .
(15) That in spite of best explanation given to him as also to the election agent of the accused, the accused pressed him to show the result in his favour and that Munawwar Mirza was sent with the specific purpose to manipulate the result in favour of the accused.
(16) That meanwhile Muhammad Afzal Luni arrived ;
(17) That in consequence of coersion and pressure employed the election material was shifted in the morning of 8-3-1977 from Pishin Mess to Pishin Fort.
(18) That Munawwar Mirza had accompanied them to Pishin Fort.
(19) That at Pishin Fort he learnt that the D. C. Had left the Fort and soon thereafter he went on leave.
(20) That on account of Mr. Muhammad Afzal Luni's absence, Manzoor Hussain was advised to take over as R.
O.
(21) That after the boxes were opened every possible method was adopted to tilt the result in favour of the accused. This was done by rigging the ballot papers in various ways; and
(22) That thereafter the manipulated result was conveyed to the Election Comm ission by Manzoor Hussain R.
O. By telephone at degar time on 8-3-1977."
160. The narration of events as given by Mr. Islam Bahadur Khan and appearing at Points 1, 2, 3, 5, 6, 7 to 11, and 16 to 22 having not been challenge d by the accused nor refuted while appearing as his own witness. The points mentioned above at Serial Nos. 8, 10, 17, 19 to 22 are corroborated by other independent evidence. The assertion of fact by him at point No. 8 above, that the people of Pukhtoon Khwah (NAP) had complained to him that no polling staff had reached Farakhi Polling Station No. 68 and that no proper arrangements bad been made to conduct the election there are supported by Ch. .Muhammad Anwar (P. W. 4), as also by the unimpeachable testimony of P. W. 1, Muhammad Hussain Shah and Mr. M. A. Durrani (P. W. 2) as also by the report of Finger Print Expert (Exh. P . W. 5/1).
161. Similarly , his statement regarding the visit of Muhammad Afzal Luni, D. C: cum-R. O. To Barshore area mentioned at Serial No. 10 above, in addition to P. W. 25 himself, and P. Ws. 24, 23 and. 2Z. Is also corroborated by independent evidence of Jamil Ahmed (P. W. 8) who can, by no stretch of imagination, be termed as an accomplice.
162. The point at Serial No. 17 above regarding the shifting of election mate rial to Pishin Fort in the early hours on 8-3-1977, has not been disputed by the accused, although he bad denied the participation of his election agent in it or in the rigging operation.
163. It is, however , admitted by the accused that he sent Mr. Munawwar Mirza to Pishin on the morning on 8- 3-1977 but only to inquire the result of the election.
164. While appearing as D. W. 5, Mr. Munawwar Mirza has stated -that he went to the Fort on 8-3-1977 at about 9-30 a.m. And met there Islam Bahadur , Commissioner .
165. Mr. Islam Bahadur Khan was neither the R. O. Of this Constituency nor had he anything to do officially with the conduct of this election. But still according to. Mr. Munawwar Mirza, he met and made a request to Mr. Islam Bahadur to give him the details of the result of Election.
166. The visit of Munawwar Mirza to P. W. 26 at that crucial hour at the Fort having thus been admitted, the explanation for the same given by the accused and D. W. 5 being unreasonable has to be discarded.
167. P. W. 26's statement at point 19 above regarding Mr. Luni's leaving the Fort for his residence and then suddenly proceeding on leave is, in addition to the oral testimony of P. Ws. 25, 24, 23 and 22 is also corroborated by the documentary evidence, i. e: the leave application of Mr. Luni dated 8-3-77 (Exh. P. W.
25/2).
168. P. W. 26's statement, incorporated at point No. 20 above is corroborated by independent evidence of M. A.
Durrani, Provincial Election Commissioner (P . W. 2) as also by the supporting document (Exh. P . W. 2/24).
169. The part of the statement of P. W. 26 appearing at Point No. 21 above is supported by the testimony of Finger Print Expert, Muhammad Ghaus (P. W. 5) and his report (Exh. P. W. 5/1). Similarly , the part of his statement appearing at point No. 22 above, is supported by the evidence of M. A. Durrani as also by the documentary evidence (Exh. P. W. 2/5). The points in the P. W. 26's stateme nt refuted as incorrect by the accused are 4, 12, 13, 14, 15 and 18. The disputed part of the statement appearing in points Nos. 13, 15, 18 pertains to the role assigned to Munawwar Mirza which has already been discussed above. The point No. 4 relates to P. W. 26's claim that the accused called him on quite a few occasions to help him in the election in order to make his election a success; while refuting the correctness of this statement, the accused has admitted that be met P. W. 26 twice and both the times at P. A. Rest House at Pishin, where he had arranged a meeting of his Party's supporters and the other time when he had come to give lunch durin g his election campaign. Both these meetings according to the accused, were party meetings arranged in connection with his election campaign.
170. P. W. 26 officially had no business to be there. The explanation given by the accused that P. W. 26 had on both the occasions gone there uninvited is unnatural and hard to believe.
171. As regard point No. 12 above that the accused had contacted the witness on phone in the evening of 7-3- 77 in order to inquire about the result of the election, inspires confidence to be true as it was quite natural for the accused to know the fate of his election after the close of the poll. Knowing that P. W. 26 was at Pishin and it was quite normal for him to contact him for the purpose.
172. According to para. "415 of the Full Bench judgment of the Supreme Court, in case of Mr. Zulfiqar A.I Bhutto v. The State, for acting upon the testimony of an accomplice, the corroborative evidence need not by itself be sufficient for conviction, nor it need concern each and every detail of the accomplice's evidence and what is required is that it must be corroborated in respect of material particu lars of the crime, and should connect or tend to connect the accused with the crime. It was further held that corroborative evidence is some additional evidence, rendering it probably that the story of the approver is true, and it is reasonably safe to act upon it.
173. The statement made by P. W. 26 is sufficiently corroborated by independent evidence in material particulars, and renders it safe to act upon it. Moreso, when he has no personal animosity against, the accused, is even challenged.
174. During the course of arguments the accused has contended that certain prosecution witnesses have made, what he described improvement as also contradictory statements. His case is that P. Ws. 20 to 26 had appeared before the Election Inquiry Committee and that the statements made by them in this Court contain improvements on or are contradictory to what they have stated earlier . He has based this contention on the copies purporting to be the copies of their statement appended to the Inquiry Committee's Report (Exh. P. W.
6/1). Under section 145 of the Evidence Act, before a witness can be dubbed a liar on this count, he is to be confronted with his earlier statement so as to afford him an opportunity to explain his position. This has not been done in this case, as no witness has been so confronted with any such similar earlier statement. It may be added that up to witness No. 22, the accused himself cross-examined them.
175. The accused contends that the statement of P. W. 26 about his involvement in the rigging be discarded in favour of his own plea of innocence. He further stated that he was not interested in becoming a member of the National Assembly and that his Party's ticket was allotted to him without his applying for it and that he being a man of principle on learning that the election has been rigged, he offered to his leader , the then Prime Minister , to resign but was dissuaded to do so because of the situation then prevalent, as certain members of his party including Sardar Shaukat Hayat and Mian Salahuddin had already tendered their resignation.
176. According to prosecution the contention, urged by the accused are factually incorrect. His claim that he was not interested to become a Member of the National Assembly is contradicted by his own admission that he had contested the election to the National Assembly in 1970, and had lost it. His anxiety to become a member is further evident from the fact that through the Constitutional (First Amendment) Act, 1974, the bar on the Attorney-General to participate in the election was removed and he was 'D thus made eligible to participate into elections while holding that of fice.
177. His anxiety to become a member of National Assembly is further evident from his own statement that he had campaigned for himself in the election by almost daily visiting his Constituency from 10-2-77 to 5-3-77, and his keenness to win the election is further demonstrated by his admittedly taking Sardar Muhammad Khan Barozai, then Chief Minister of the Province (D. W. 6) to his Constituency during the election campaign, as also Sarda Ghaus Bakhsh Raisani, the other prominent member of the Pakistan People Party .
178. His interest to win the election is further established by selecting Malak Behram Khan as his polling agent from the area of which he was a chief, although Malak Behram Khan as an independent candidate was opposing the People's Party's candidate in the Provincial Assembly election in which Mahmood Khan Achakzai was also the rival candidate. The selection by the accused of Malak Behram Khan as his polling agent therefore was to ensure Achakzai 's failure in the election through fair and foul means. The plea that on account of rigging of the election, the accused wanted to resign but was dissuaded from doing so by the late Mr. Zulfiqar A.I Bhutto, the timing of this dissuation given by the accused is rather significant. According to the accused, the rigging by Mahmood Khan Achakzai or by his supporters was done during the polls on 7-3-77 and by the officials concerned on the following day to annul the result of the same. It is in evidence that the result of the election was announced on 8-3-77 in the evening, and the official count-statement was prepared on 9-3-77 in the presence of Mr. Munaw war Mirza, his election agent. It is therefore quite obvious that by the evening on 8-3-77 or the latest by 9-3-77, the accused very well knew that the election had been rigged and that he had been declared as duly elected member of the National Assembly . According to the accused, he offered to resign at the time when the PNA movement had attained great momentum resulting in the resignation of a few members of National Assembly elected on PPP ticket, namely , Sardar Shaukat Hayat and Mian Salahuddin. It is a known fact that the events referred to by the accused took place after more than a month of the election. Having acquired the knowledge on 8-3-77 or 9-3-77 that the election had been rigged the accused remain quiet and did not offer to resign for over a month. It may be stated that on this point the accused's is the solitary statement in his own favour regarding his conduct unsupported by any other evidence.
It is however; being analysed to determine its worth.
179. The Supreme Court of Pakistan in the case cited Begum Nusrat Bhutto v. Chief of Army Staff etc. (PLD1977SC657), has observed that the Chief Election Commissioner had announced the result of the election on 21-3-77. If the accused was that minded he could have and should have tendered his resignation then. Not only that he did not resign after this official announcement, it can safely be presumed that he took oath of the office as member of National Assembly and also attended its meetings conven ed thereafter . Apart from this, there is then the stand taken by him before the Election Commission of Pakistan when cognizance of the rigging done in this election was taken by the Commission, and notices were issued to him to attend and participate in the proceedings. Not only that he defended himself that he had been duly elected he even made a grievance of the Commission taking cognizance on a telegram which according to him was vague and unworthy of taking notice.
180. On the evidence on record it is established that the plea taken by him in this behalf is false and factually incorrect.
181. It is noteworthy that the accused alone was the beneficiary of this rigging. His involvement is established by (Maxim) -"Qui Sentit commodum sentire debet at enus; etc. Contra." (He who receives the advantage ought also to suf fer the burden).
182. This is accordingly held that the prosecution has proved beyond the possibility of any reasonable doubt, that this election was rigged at the behest of the accused, and that he was involved in it directly as also through other persons, namely Mr . Munawwar Mirza, his election agent and Malak Behram Khan, his polling agent.
183. The accused has also raised legal objection relating to the jurisdicpetition of this Court to take cognizance of this case and to try him. As also regarding the nature of his prosecution allegi ng that it was mala fide. He has also objected to defend him and represent him on certain hearings.
184. As already stated in the beginning of the judgment that the jurisdiction of this Court to try him was challenged by the accused through a Constitutional Writ Petition No. 63/80 filed in the Baluchistan High Court which was allowed. The operation of the judgment and order passed by the High Court of Baluchistan has, however , been suspended and the trial was resumed and has concluded. There is thus no bar on the jurisdiction of this Court to determine the issues arising in this case so as to conclude this trial.
185. The accused has been tried under the provision of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, promulgated on 25-11-77. The contention of the accused is that in so far as this Order has created a new offence pertaining to an act which was not an offence when it was committed, the order is ultra vires, being violative of Fundamental Right No. 12 guaranteeing that no law shall authorise the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission.
It further provides that no law shall authorise the punishment of a person for an offence by a purely greater than, or of a kind different from the penalty prescribed by law for that , offence at the time of offence was committed.
186. Fundamental Right No. 12 appears in Chapter I, Part II of the Constitut ion of the Islamic Republic of Pakistan, 1973. Martial Law in the country , as stated above was promulgated on 5-7-77, when Laws (Continuance in Force) Order , 1977 was also proclaimed by the Chief Martial Law, Administrator , providing for the norms in accordance with which the country was hitherto to be governed . Clause (3) of Article 2 of this Order had prescribed that :- "(3) Fundamental Rights conferred by Chapter I of Part II of the Constitution and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights, shall stand suspended."
187. The validity of the proclamation of the Martial Law and of the Laws (Continuance in Force) Order , 1977, and the authority of the Chief Martial Administrator to rule the country was challenged by Begum Nusrat Bhutto in the Superior Court of Pakistan through a Constitutional Petition No. 1 of 1977. The Supreme Court of Pakistan by its judgment reported in PLD 1977 SC 657 held at page 721.
"As the present petition under clause (3) of Article 184 of the Constitupetition is intended for the enforcement of certain, Fundamental Rights of the detenus, it is not maintainable for the reason that the Fundamental Rights stand validly suspended ,since the 5th of July 1977, under clause (3) of Article 2 of the Laws (Continuance in Force) Order , 1977. On this view of the matter , it is not necessary for this Court to examine the contention that the Martial Law Order No. 12 under which detentions have been ordered is not valid, or that the detentions are mala fide."
The validity of the suspension of Fundamental Rights appearing in Chapter I of Part II of the Constitution through aforesaid Article 2(3) of the Laws (Continuance in Force) Order , 1977, was again considered by the Supreme Court in a case cited as Syed Alamdar Hussain ,Shah v. Abdul Baseer Qureshi and 2 others (PLD1978SC121), and the view expressed earlier was confirmed in this case by holding that :- "This Court in the case of Begum Nusra t Bhutto v. Chief of the Army Staff found the above to be good law and held that the fundamental rights stood suspended by virtue thereof. No proceed ings for their enforcement are, therefore, presently competent."
188. Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973 ordains that :- "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law , be binding on all other Courts in Pakistan."
189. The declaration of the law that the bar contained in F. R. No. 12 remains suspended and consequently there is no such fetter on the law-maker to make a law creating an offence with retrospective effect, is, therefore, binding on this Court.
19. As the objection of the accused against the legality and validity of the aforesaid Order under which he is being prosecuted is based upon this ground alone, this objection has no force and is not tenable in law, and it is held that the Holders of Representative Offices (Punishment for Misconduct) Order, 1977, does not suffer from any such legal infirmity .
191. The accused has, further contende d that this Court has no jurisdiction to try him, as the initiation of the prosecution against him was mala fide, because of his challenging the validity and legality of the proclamation of the Martial Law in the aforesaid case of Begum Nusrat Bhutto and subsequently repeating the same performance while acting as the counsel for the late Mr. Zulfiqar A.I Bhutto in his appeal before the Supreme Court. According to him, the mala fide nature of his prosecution is established by the fact that he alone has been discriminated against through this prosecution, although no such action has been taken against other members of the Peoples Party who were also similarly placed. The accused has also cited PLD 1958 SC (Pak.) 41, PLD 1960 SC 113, PLD 1965 SC 671, PLD 1966 SC 1, PLD 1969 SC 14, PLD 1973 SC 49 and 1972 SCMR 136 in support of this contention.
192. The law on the subject of mala fides, which aptly applies to the facts of this case, was laid down by the Supreme Court of Pakistan in the case of Federation of Pakistan v. Saeed Ahmed and others (PLD1974SC151).
It was held in this case : "Mala fides is one of the most difficult things to prove and the onus is j entirely upon the person alleging mala fides to establish it, because, there is to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of Government of West Pakistan v. Begum Agha Karim Shorish Kashmiri PLD 1969 SC 14, mala fides must be pleaded with particu larity , and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry in to the files of the Government for the purposes of fishing out some kind of a case. `Mala fides' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary , therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purpose authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has .Been taken. Similarly , if the acquisition of land or the taking over of industries is authorised in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law .
In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the order side to produce evidence in its possession.
It is true that in the case of Abdul Baqi Baluch v. Government of Pakistan PLD 1968 SC 323, it had been pointed out that in the case of detention of a person the initial onus is on the detaining authority to prove that detention was lawful but this principle does not apply in other cases where the onus is initially upon the person alleging mala fides to prove mala fides.
It would be wrong, therefore, in such cases to call upon the authority to produce evidence in its possession to justify its .Action merely on the basis of a vague allegation that the action has been taken mala fide. In such cases the party making 'the allegation should first be called upon to adduce proof and after be has led evidence to make out a prima facie case then and only then should the other side agains t whom the allegation of mala fides is made be called upon to justify the action. If the Courts keep this in view , we venture to think that the difficulties to which the learned counsel appearing on behalf of the Government have referred will not arise."
This declaration of law on mala fide was confirmed by the Supreme Court in the case Shahbaz Khan v. Islamic Republic of Pakistan (1975 SCMR 4) and in the case of Capt. Mohammad Azhar v. The Province of Baluchistan (1975 SCMR 176). The contention of the accused that his prosecution is mala fide is to be judged on the basis of the criteria provided in the law declared by the Supreme Court in the aforesaid case. The facts appearing on the record are that soon after the election in question held on 7-3-77, on a complaint lodged with the Election Commission of Pakistan an inquiry had been ordered. The inquiry conducted disclosed that massive rigging in this election was committed, and the mode of rigging employed revealed pre-planning. The evidence on the record also establishe s that the Election Commission had itself commenced proceedings against the accused on the basis of the aforementioned inquiry so as to set the wrong right. The accused contested these proceedings, which were rendered infructuous on account of a change in law by withdrawing those powers of the Commission under which alone it could take action, The evidence further proves that after the promulgation of the Martial Law on 5-7-77, an Inquiry Committee was set up to enquire into the malpractices committed in the election held on 7-3-77, and that this Committee found that the election in which the accused bad been declared to be elected was rigged, and it accordingly recommended further action.
It is further in evidence that in consequence thereof, the CMLA Election Inquiry Committee submitted its report which is Exh. P. W. 6/1 which was forwarded to the Government in February 1978 as a result of which F. I. R. (Exh. P. W. 6/2) was lodged with the Federal Investigation Agency on 25-3-78. It is also in evidence that an investigation was conducted by the Federal Investigating Agency into the allegations contained in the F.
I. R. (Exh. P. W. 6/2) and the evidence collected having established a prime facie case against the accused, sanction to prosecute the accused was obtained vide Exh. P . W. 28/1 whereafter challan was filed in this Court.
193. The allegation of the accused that this prosecution is mala fide needs no further explanation. The accused has alleged that his challenging the validity of Martial Law in the aforesaid case had annoyed the Martial Law Government and that he was being prosecuted as a retaliatory measure. No particulars of any person who thus felt annoyed or that persons' role in ordering his prosecution, has even been disclosed by the accused, nor has he made out any prime facie case in this behalf. The prosecution case leading to his indictment has been sufficiently stated above. Nothing has been alleged by the accused against the persons figuring therein, that they had taken the action on account of any personal animosity against him or for any other ulterior motive.
When this allegation of the accused is adjudged on the basis of and in the light of criteria laid down in PLD 1974 SC 151 (Federal Government v. Saeed Ahmad and others), it is to be held that the accus ed has miserably failed to establish that this prosecution is mala fide.
194. Otherwise too, the question of mala fide, in my view is foreign to the criminal prosecution and trial. It may be relevant in a matter pertaining to the detention or at the most at bail stage. But not in a criminal case, where the decision of the Court has to be solely based on the evidence placed before it by both sides. If the contention of the accused he correct, then a police officer can decline to record an F. I. R. In a murder case if the motive for alleged offence disclosed before him be family fued. And even if he registers the case and after conducting the investigation revealing the commission of a crime puts the challan in the Court, the accused contends that the Court in such a case should decline to entertain it, and throw it out without holding a trial on the ground that the prosecution has been launched malafide. Indeed mala fide is a relevant factor while appraising the evidence led at the trial before the Court of law. The past enmity of the witnesses with the accused shall go a long way to determine the veracity of such witnesses. The jurisdiction of this Court challenged by the accused on the ground of his prosecution being allegedly mala fide is, therefore devoid of substance and is rejected accordingly .
195. The accused objected to the hearing of the case by this Court on the grounds contained in his confidential communication addressed to this Court, it shall have to be ignored as the opposi te party had no access to it and on the request of the accused is kept in a sealed cover . But this much may be said about it that, amongst others, he has alleged that the Presiding Officer of this Court has friendly relations and is under the influence of other persons (named by him) who are, according to him, are inimically disposed towards the accused. He contends that this Court therefore should not hear this case. This contention, to say the least, is based upon false and malicious accusation or assumption which have no foundation in fact. The Presiding Officer of this Court has no hesitancy in declaring that he is not on any friendly , muchless on terms with the persons named, nor he is under their influence nor have those persons ever tried to influence him in this case or in any other case. It is regrettable that a senior counsel of his standing, though an accused in a particular case should have conceived of levelling such wild allegations which are untrue to his own knowledge, merely for the sake of expediency .
The tendency displayed thereby is reprehensible, as the allegations of this kind made can be levelled by any unscrupulous accused in any case against any Judge.
196. The accused bas also challenged the validity of the prosecution on the ground that under sub-Article (2) of Article 5 of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, the Special Court could not take cognizance of an offence punishable under Article 3 except with the previous sanction of the Federal Government. The sanction in the instant case is Exh. P. W. 28/1 and the relevant part of it reads as under :- "Now , therefore, the Federal Government being satisfied on perusal of papers and material placed before it, that there exists a prima facie case against the accused, hereby grants sanction, as required by clause (2) of Article 5 of the Holders of Representative Offices (Punishment for Misc onduct) Order , 1977, for the prosecution of the said Mr. Yahya Bakhtiar for the aforesaid offence or any other offence under any provision of law that the Special Court established under the aforesaid Order may deem fit."
197. The order is signed by Mr. S. K. Q. Naqvi, Deputy Secretary of the Gove rnment of Pakistan Ministry of Interior , Islamabad.
198. The objection of the accused is that under Article 90 of the Constitution of the Islamic Republic of Pakistan, 1973, the executive authority of the Federation is to be exercised in the name of the President by the Federal Government and insofar as this sanctioning order is not in the name of the President, on behalf of tile Federal Government, it is bad in law. He has further contended that in accordance with the aforesaid judgment of the Supreme Court delivered in Begum Nustat Bhutto's case, the executive authority of the Federal Government is to be exercised by the Chief Martial law Administrator and as the sanctioning order does not say that the C. M. L. A. Has sanctioned his prosecution, the order is further bad in law. He has further contended that the order itself does not show that the material on which the sanction was sought was placed before the sanctioning authority and that the sanctioning authority has applied his mind to the facts of the case before granting the sanction.
199. The law on the subject has since been amended by the proclamation of the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order No. 1 of 1981 promulgated on February 18 of 1981.. In place of the sanction of the "Federal Government" the "The Ministry of Interior", Government of Pakistan" has been substituted with retrospective effect. The sanction in the instant case is by the Ministry of Interior and the order granting sanction already reproduced above is signed by the Deputy Secretary , Ministry of Interior . The sanction, therefore, is in accordance with law .
200. Regarding the latter part of the objection that the order does not show that all the relevant material was placed before it or that the sanctioning authority had applied its mind to the facts of the case, the answer is provided by the law declared by the Supreme Court in The Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) in which regarding a similar recital in an order it was held "In the face of such recital normally there would be a presumption that the official act had been regularly and properly performed and the onus would then be upon the person seeking to challenge the correctness of the recital to show the contrary".
The accused in the instant case has made no attempt to rebut the presumption. The sanction order is therefore valid.
201. I shall now deal with the accused's objection to the appointment of Mr. Muhammad Afzal 'Sarwar , Advocate of this Court, as a defence counsel in the case. As is apparent from the order sheets, every possible facility was afforded by this Court to the accused, so as to enable him to properly defend himself. Many adjournments asked for by him were granted. Reference in this connection is being only made to those orders which pertain to the issue of the appointment of the counsel.
202. On 11-2-1980 after recording the examination-in-chief of Mr. Muhammad Azam Khan P. W. 22, the accused requested the cross-examinatio n of the witness to be deferred to the following day, as he had not studied the documents concerning the witness. His request was granted, the examination-in-chief of Mr. Manzoor Hussain P. W. 23 was recorded. Again at his request, the cross-examination of this witness was also deferred to the following day. It may be stated here that the documents, non-study of which had been urged as the ground for seeking adjourned by the accused had been supplied by the prosecution as far back as in July, 1979. The accused cross-examined P. W. 22, Mr. Muhammad Azam Khan alone on 12-2-1980. Regarding the cross-examination of P. W. 23, his request was that he was indisposed he had not studied the documents, the case should therefore be adjourned. On 13-2-1980, he did not cross-examine P. W. 23 and asked for further time. The statement of P. W. 24 Mr. Izzat Aziz Kurd and P. W. 25 Mr. Muhammad Afzal Luni, were then recorded. When asked to cross examine them, the accused again sought adjournment on the ground that the relevant documents were not available with him. His request having been granted, the case was again adjourned. It was then taken up for hearing on 14-6-1980 for which date the accused was duly served and the witnesses were also summoned. On this date the accused did not personally appear . On his behalf Mr. Khan Bahadur , Advocate and S, Masood Kausar , Bar-at-Law , Advocate, appeared. Both these gentlemen are senior members of the Peshawar High Court Bar. The order passed on 14-6-1980, after recording the presence of the parties reads:- "Mr. Yahya Bakhtiar Khan not present. Mr. Khan Bahadur Khan and S. Masood Kausar , Advocates of this Court have, however , appeared on his behalf. While Mr. Rpza Ahmad Khan, Chief Public Prosecutor assisted by Amjad Zia Advocate, is present on behalf of the State. Messrs Manzoor Hussain, Izzat Aziz Kurd and Muhammad Afzal Luni P. Ws. Are also present. In the last session, their examinations-in-chief were recorded in the presence of the accused. Their cross-examinations could not be recorded, as the accused submitted that for this purpose he be allowed time to enable him to properly prepare himself for cross-examining them. His request was granted and the case was adjourned.
The accused has been duly served about the resumption of the proceedings in the case from today . He sought to adjourn the case from today and in this respect he addressed telegrams. In the alternative, he sought to take up the proceedings at Quetta. His request was considered and was not granted.
He was expected to be present in Cour t today . Mr. Khan Bahadur Khan and S. Masood Kausar , the learned counsel appearing on his behalf have informed this Court that the accused could not reach Peshawar today , as he was unable to get the flight. They request for the adjournment of the case till tomorrow . The learned Chief Public Prosecutor has no objection. The case is adjourned till tomorrow . It may, however , be observed that the case has suffered numerous adjournments on the request of the accused. It does not seem proper to grant adjournments in the case every now and then. In the circumstances, I am left with no option but to press into service the provision of clause (3) of Article 6 of the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order , 1978, and direct for the appointment of an Advocate to defend the accused.
The learned Chief Public Prosecutor appearing on behalf of the State and Mr. Khan Bahadur Khan and S. Masood Kausar , the learned counsel appearing on behalf of the accused state that they will jointly consider a proper advocate and will recommend him for appointment by Court as defence counsel of the accused. Let this be done today . The defence counsel so appointed will be handed over all the relevant documents concerning this case by the Chief Public Prosecutor .
The witnesses present should appear before the Court tomorrow for cross-examination."
203. The accused again did not appear on 15-6-1980 even and the Court passed the following order on the day i. e.15-6-1980 which is reproduced hereunder :- "Mr. Khan Bahadur Khan and S. Masood Kausar , Advocates, are present on behalf of the accused while Mr. Raza Ahmad Khan, Chief Public Prosecutor , assisted by Mr . Amjad Zia, Advocate, on behalf of the State.
Mr. Khan Bahadur Khan and S. Masood Kausar , Advocates say that Mr. Yahya Bakhtiar Khan is presently at Lahore. He has informed them on telephone that be will be unable to attend and participate the proceedings any more in the present case against him. Vide my order of yesterday's date, I have out of obligation directed the appointment of a defence counsel under the provision of clause (3) of Article 6 of the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order , 1978, as the accused has sought several adjournments and now he has caused his absence. Mr. Khan Bahadur and Khan S. Masood Kausar , Advocates, in consultation with Mr. Raza Ahmad Khan, the learned Chief Public Prosecutor , have suggested Mr. Muhammad Afzal Sarwar Khan, Advocate for appointment as defen ce counsel in tire case. Mr. Muhammad Afzal Sarwar Khan is therefore appointed a defence counsel in the case on payment of Rs. 1,500 as fee per day for actual and effective hearing. He is present in Court and accepts the job. The learned Chief Public Prosecutor has supplied him all the concerned documents.
Mr. Muhammad Afzal Sarwar Khan says that he be given time for today to enable him to go through the relevant documents for cross-examining the witnesses summoned for that purpose. The request is reasonable.
However , if possible, he may cross-examine least one witness today and for this purpose the case will be taken up at 1 1 a. m. In any case, the proceedings will continue tomorrow ."
204. The cross-examination of Manzoor Hussain (P. W. 23) was thus recorded on 15-6-1980. Further proceedings for recording evidence was adjourned to 16-6-1980. Thereafter , the proceedings were conducted in the absence of the accused but with the assistance of the aforementioned Advocate. During the period from 16- 6-1980 to 19-6-1980, 22-6-1980 and 29-6-1980, the cross-examination of the aforementioned P. Ws. 23, 24 and 25 was concluded and the evidence of P . Ws. 26 to 31 was recorded.
205. After the prosecution had led evidence of 31 witnesses and the case was fixed for 13-7-1980 for its remaining evidence, the accused filed an application objecting to the validity of the appointment of the counsel for him by this Court as also against the proceedings conducted thereafter . This application was dealt with by this Court in its order dated 13-7-1980, the relevant part of which is an under:- "The accused has sent an application dated 5th July, 1980, in which he has questioned the proceedings in the case against him from 15-6-1980 onwar ds on the ground that these were held in his absence and has expressed apprehension that he will not be given fair treatment in the trial against him. He requests that the witnesses whose evidence was recorded in his absence be recalled. This means that he has given a second thought to the matter and has showed his inclination to participate in the proceedings.
It was under the compelling circumstances that in order that the case may not be unnecessarily prolonged, the Court decided to proceed with the case in the absence of the accused. I have discussed these circumstances in my orders dated 14-6-1980 and 15-6-80 which may briefly be discussed again.
On 13-2-1980, the accused was prese nt in Court and in his presence the examination-in-chief of Messrs Manzoor Hussain, Izzat Aziz Kurd and Muhammad Afzal Luni were recorded and as the accused requested that he has not studied the documents concerning these three witnesses, he may be allowed time to cross- examine them in the next session. His request was granted and the case was adjourned. On 14-6-1980 when the next session commenced at Peshawar , the accused was not present. The witness es from Quetta were, however present. Mr. Khan Bahadur Khan and S. Masood Kausar , Advocates appeared on his behalf and conveyed to the Court the message of the accused that he has reached Lahore from Quetta but as he was unable. To get the- flight from Lahore, he could not reach Peshawar to participate in the proceedings and requested that the case be adjourned until the following day, viz. 15-6-1980. The request was granted. However , as the case had suffered numerous adjournments, and I must observe that it was predominantly due to the fact that the accused was to be accommodated in order to furnish him all opportunity for presenting his case before the Court to his satisfaction. Yet this Court has its restriction and limitation under the law. In the circumstances, the Court felt that as it has become a chronic adjourn the case almost on every occasion, it became necessary for the Court to invoke the provisions of clause (3) of Article 6 of the Holders of Representative Offices (Punishment for Misconduct) Order XVI of 1977 (as substituted by President's (Post Proclamation) Order 1 of 1978) for the appointment of a defence counsel on behalf of the accused. Had this provision not been pressed into service, the case would have lingered on and continued for an unamaginable long period, and as this situation could stave been avoided by this Court in the exercise of its power conferred upon it under clause (3) of Article 6, ibid. The Court had no option but to appoint a defence counsel in order to proceed with the ease smoothly , as sufficient time was already wasted in the progress and disposal of the case.
It will-thus be seen that the apprehension of the accused that because of his absence in the proceedings from 15-6-1980 onwards, the trial against him will not be conducted fairly is not reasonable;. In the circumstances the Court was obliged to appoint a defence counsel in his absence. The proceedings in tile case are conducted in open Court and therefore there would be no question of unfair treatment to the accused. With these observations, this application is accordingly disposed of.
By another application dated 5th July, 1980 the accused has requested for the supply of the copies of the orders passed by this Court, on and from 14-6-1980 and of the evidence recorded on and from 15-6-1980 in his absence. I direct that the same may be supplied to him immediately without fail."
The accused has contended that this Court under law could neither appoint a counsel for him nor conduct proceedings in his absence. He relied upon case-law in support of his contention. This contention has no force.
'Nor has the case-law cited by him any bearing upon the facts of this ease. It is, an established principle of law that the Legislature is presumed to know the existing state of law while enacting a law. The relevant provision of the Code of Cr. P. As also the law declared in various cases cited-by the accused are therefore presumed to be in the knowledge of the Legislature when the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, as also its amending order was passed. Clause (3) of Article 6 of this order as it now stands, as also stood on 14-6-1980 and 15-6-1980 when the impugned order was passed; confers unfettered powers on the Court. To appoint a counsel for the accused. In the circumstance. Stated in this clause, the exercise of powers is not circumscribed by any qualification that the counsel so appointed must have the approval of the accused.
206. As already stated above, the accused had all al0iig.Beecfawn accommodation in fixing dates of hearing, as also in the proceeding conducted by this Court. The exercise of power , in the instant case was forced by the accused himself by absenting himself on 14-6-1980 and then conveying to this Court through responsible.
Senior counsel, namely , Mc. Khan Bahadur and S. Masood Kausar (who had invariably attended the Court at Peshawar , in the present case obvious ly as the assistants of the accused) that the accused will no more participate in the proceedings. Moreso when the role on his behalf played by them has not been challenged by him.
207. As far as is further evident from the aforementioned orders passed on 14-6-1980 and 15-6-1980, the two counsel appearing for him, had asked for a day's adjournment which was granted. It is further evident that they had conveyed the order passed on 14-6-1980 as also the date so fixed i.e. 15-6-1980 to the accused while he was at Lahore. He still chose not to appear . There was thus no option left with the Court except to pass the order that it did in the interest of justice.
208. It is further obvious from the aforementioned orders that the counsel for defence was appointed with the approval of the two counsel who had appeared for the accused in the case on 14-6-1980 and 15-6-1980. There is therefore no question of inflicting a counsel of the Court's choice on the accused. It may further be pointed that the accused did not make a grievance of his absence or of the appointment of the counsel for him by the Court till the evidence of witness numbering 31 had been recorded. This further shows lack of bona fide on his part in making the alleged grievance. If he was really interested in conducing his defence, he could have joined the proceedings on 15-6-1980 and 16-6-1980 or soon thereafter during the course of proceedings ending with 29-6-1980 at Peshawar . There being no substance in his objection or in the request based thereon, his application was rightly rejected. Reliance in this behalf is also placed on the relevant part of the judgment delivered by the Supreme Court as already referred to above in the case cited as Mr. Zulfiqar A.I Bhutto v.
State.
209. The natural corollary to the foregoing discussion leads to the irresistible conclusion that the accused is guilty of the offence charged. He is accordingly convicted under Article 3 of the Holders of Representative Office (Punishment for Misconduct) Order , 1977. The next question for determi napetition is of the quantum of sentence to be awarded to him. The accused is no a layman and not unaware of the norms or niceties of law.
According to his own statement, he was Attorney-General of Pakistan also the "Principal Law Officer and Legal Advisor of the Federal Government". Instead of ensuring that election in the country was conducted in accordance to law, justly and, fairly , he, by abusing his office, coerced the officials concerned to render the election in his constituency a mockery and sham.
210. The sanctity of ballot papers was destroyed by the foulest method at his command, both directly as also indirectly through his election polling agents. It is painful to observe that the accused, while holding those high offices at the apex of the legal system, resorted to such foul methods throwing to wind all norms of decency and democratic behavior for his blind lust t win the Seat for himself "come what may" totally unmindful of the catastrophic consequences.
211. There being no mitigating circums tance, hence in view of the gravity of the offence committed by him, the accused is sentenced to five years' R. I. And also to a fine of Rs. One lac or to suffer further one year R. I.
In default of payment of fine. The sente nce is being awarded to the accused under Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order , 1977, read with section 3 (26) of the General Clauses Act.