ABDUL MAIEED MALLICK, ACTG. J.-This appeal arises out of the judgment of the Disqualification Tribunal No. 3, dated 22nd April, 1980, whereby the respondent was exonerated of the charges leveled against him, by the appellant, the referring authority.
2. Col. Rtd. Muhammad Mansha Khan was elected member of the Legislative Assembly of Azad Jammu and Kashmir State in 1975. Thereafter he was elected Speaker of the Assembly and held the office as such till March, 1977.
3. Appellant, the referring authority, formulated various charges against the respondent and referred them to the Disqualification Tribunal on 14th April, 1978. Supplementary reference No. 1 was sent to the Tribunal on 15th May, 1978. The Disqualification Tribunal, constituted under the Holders of Representative Offices (Disqualification) Ordinance, 1978. Consolidated all the references and disposed them of by a single order, exonerating the respondent of all the charges.
4. The appellant feeling aggrieved challenged only the finding of the Tribunal in respect of charge No. 1 (c), listed in the original reference and the charge made in supplementary reference No. 1 verdict of the Tribunal on other charges was accepted.
5. Mr. T.H. Tariq, the learned counsel for the appellant, urged that the learned Tribunal failed to appreciate the evidence objectively and written statement of the respondent. Elucidating his point he contended that respondent, in his written statement, admitted the use of Government vehicle; and thus it was for the respondent to prove that the vehicle was not used for the alleged political purpose. To make out a case against the respondent, he took ms through the testimony of Kala Khan and Khushi Muhammad, drivers, and urged that charges were fully brought home to the respondent.
Sardar Muhammad Yasin Khan, representing the respondent, in reply supported the finding of the Tribunal. He contended that the referring authority failed to prove the charges. He cited Mian Muhammad Abbas v. The State (1) in support of his contention.
6. The relevant charges are reproduced as :-
(i) Charge No. 1 (c) in reference dated 4-4-1978, is regarding the misuse of the Government Vehicle No. AJK 3067 during the Elections held in 1977 in Pakistan. The vehicle alleged to be used by the respondent belonged to the Assembly and was to be used by the Speaker (respondent) for Government purposes only.
(ii) Charge No. 1 in the Supplementary Reference dated 15-5-1978 is regarding the misuse of Government Vehicle No. LEJ 9984 during the Election held in Azad Kashmir in 1975. This Government vehicle and the services of its driver, Khushi Muhammad, it is claimed, were utilized during the Election campaign by the respondent in his constituency. This charge relates to `Rigging' and abetment in the "Abuse of power".
7. Let us now examine the merits of the case. In support of charge No. 1 (c) the referring authority produced Kala Khan P.W. He testified that he was a Government servant. He was a driver of Government Vehicle, a Wagoneer, No. AJK 3067. He was deputed with the respon--dent and performed his duty as driver with him with effect from January, 1976. Respondent in his capacity as Speaker of the Assembly used the vehicle. Respondent used to visit Jammu and Kashmir refugees, settled in Pakistan, from time to time. The respondent traveled in the vehicle to Pakistan during the general elections of Pakistan, in. March, 1977. The log-book, Exh. PB, relating to the vehicle, was maintained by him. He was illiterate; but entries, Exhs. PB/1, PB/2 and PB/3, were made at his instance at the end of each month. In cross-examination the witness stated that respondent in his capacity as Speaker of the Assembly fre--quently visited Pakistan in 1976. He participated in meetings organised by State refugees and addressed them. Likewise, respondent addressed the refugees in Pakistan when elections were in progress. He did not remember the dates of such visits.
He admitted that visits of the respondent to Pakistan in March, 1977, were normal and in routine.
Entries in the log-book were stated to be made in the hand of the Deputy Secre--tary of the Assembly.
8. On the second charge the referring authority produced Khushi Muhammad P. W. This witness deposed that he was an employee of the Municipal Corporation Lahore. He joined his service as driver in 1975. He was driver of Jeep No. LEJ 9984. The vehicle belonged to the Corporation. Under the direction of Safdar, a Municipal Engineer, he took the Jeep to Rawalpindi and reported at the office of Pakistan Peoples Party. There he received instructions to report to the respondent. He complied with and reported to the, respondent accordingly. The respondent brought him to Trarkhal, Azad Kashmir. There the vehicle was used for a month. He received his T.A./D.A. From the Corporation. In cross-examination the witness admitted that respondent personally did not use the Jeep. However, it was used by his workers who took the Jeep to Tratkhal.
9. The learned Tribunal rejected the testimony for being inconclu--sive and acquitted the respondent. We have perused the evidence and finding of the Tribunal. The relevant evidence is also reproduced above. We do not feel persuaded to disagree with the conclusion of the Tribunal.
Our reasons are :--
(i) Evidence on Charge No. 1 (c) consists of oral testimony of Kala Khan, Driver, and log-book Exh.
PB.
It is settled rule of evidence that in oral evidence, relating to a fact, there must be a declaration by the witness that he perceived by his own senses the fact to which he deposed. The oral testimony of Kala Khan when tested on this rule of evidence finds no relevan--cy to the allegation. Charge against the respondent is that he used the vehicle for political purpose; and the alleged political purpose was that respondent undertook journey to Pakistan to can--vass the voters in support of Pakistan Peoples Party's candidates. Kala Khan does not connect the visits of the respondent to Pakistan with election campaign. He only deposed that respondent partici--pated in meetings and addressed them but such meetings, as he says, were organised by the State refugees and the same were normal and in routine as respondent also made similar visits in 1976, when he addressed the refugees.
It is an admitted fact that State refugees settled in Pakistan shared proportionate representation in Azad Jammu and Kashmir Assembly. Respondent as Speaker of the Assembly represented all state subjects, whether they were in Azad Kashmir or in Pakistan. Major part of visits, as shown, related to visits to Rawalpindi. Rawalpindi/ Islamabad is not only the capital of Pakistan but it is the Headquarter of Azad Jammu and Kashmir Council as well. Therefore, visits to Rawalpindi/ Islamabad do not suggest unusual or abnormal conduct leading to an inference in support of this charge.
(ii) Log-book, Exh. PB, pertains to the concerned Wagotteer Kala Khan deposed that he was illiterate and entries, Exhs. PBl1, PB/21 and P13/3 were made in the log-book by the Deputy Secretary Assembly. The entries are sought to be admitted in evidence under section 35 of the Evidence Act.
Section 35 provided that an entry in any public or other official book, register or record, stating a fact and made by a public Servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law, is itself a relevant fact'. In view of this rule of evidence, the entries made in the log-book were relevant and as such admissible in evidence provided they were made by Kala Khan, Driver, who was supposed to make them in the discharge of his official duty, but it was not so done. We adopt a liberal approach and accept that even Deputy Secretary could record the entries. But in that case the entries were to be proved by him. Mr. T. H. Tariq agrees with us that entries are not signed by the Deputy Secretary or any other person.
Apart from showing that the Deputy Secretary was enjoined upon to record the entries, it vas imperative to prove that entries were recorded by Deputy Secretary and that they were recorded correctly, on the basis of information furnished by the Driver; no such evidence was produced. Thus, entries recorded in the log-book are not proved under law.
(i.e) The object or purpose of visits to Pakistan is not entered in the log-book. The relevant column is left blank. The import of the allegation is that respondent travelled to Pakistan to assist and canvass for the Pakistan Peoples Party's candidates, whereas log-book does not disclose any journey in that context. Entries recorded in the log-book have no bearing on the charge. Likewise, they do not corroborate Kala Klan. Thus, evidence is rightly discarded by the Tribunal.
(iv) It is in evidence that the respondent received advance in the sum of Rs. 10,000 T.A/D.A. In relation to his proposed journey to Pakistan. The amount was partly adjusted against T.A. And D.A.
Bills, relating to journey to Pakistan during March, 1977, and the balance was deposited. The T.A. And D.A. Bills submitted by the respondent obviously contained entries relating to journey and the purpose of journey to various cities of Pakistan. The bills were in possession of the referring authority. In our view that was the primary evidence on the point at issue. As to why that primary evidence was with held is not brought to our notice Mr. T. H. Tariq is unable to enlighten us on this aspect. This obviously raises a presumption against the appellant. The other aspect of the point is that T.A. And D.A. Bills were honoured by the Government. In case the journey was undertaken for the purpose other than official one, why allowances were paid to the respondent. As alleged by the referring authority if respondent undertook his journey to various cities of Pakistan to render aid to Pakistan Peoples Party's candidates he was not entitled to charge T. A. And D. A. And the amount received in advance was liable to be refund. The appellant has failed to challenge the propriety of the receipt of the allowances. This is another factor which knocks at the root of the allegation. We notice that Mr. Karam Sher Bhatti, Deputy Accountant. General, appeared as witness. He was the right person to give evidence on this point. Failure to give evidence leaves us with no choice except to believe that appellant withheld the primary evidence ; and in case it was brought-forth, it would have gone against the appellant.
10. The other attribution pertains to use of vehicle in the Assembly election, obtained from outside Azad Kashmir, with the intention to influence the result of the election. The allegation falls within the mischief of rigging. In addition to that there was also an allegation of abuse of power.
Rigging is defined in section 2 (j) of the Ordinance as :-
(j) rigging of election, includes any act or thing done by any person, either directly or indirectly with a view to seeing that an election is not conducted honestly, justly, fairly or in accordance with law and includes an act calculated to influence the result of an election to a seat of Assembly in a fraudulent, underhand or illegal manner, including utilization of Government funds and vehicles in Azad Kashmir or Pakistan or funds and vehciles obtained from any other source outside Azad Jammu and Kashmir ; "
It would thus appear that the essentials of definition are :-
(i) An act or thing done by a person directly or indirectly, with the view that election is not conducted honestly, justly, fairly or in accordance with law and
(ii) A fraudulent, underhand or illegal manner, including utilization of Government, funds and vehicles in Azad Kashmir, or funds and vehicles obtained from any source outside Azad Kashmir, calculated to influence the result of an election to a seat of Assembly.
11. In the instant case the charge is that the respondent obtained a Jeep No. LEJ 9984, belonging to Lahore Municipal Corporation, and used the same in his election to the seat of Assembly. The evidence produced in support of the allegation consists of bald statement of Khushi Muhammad P.
W. wh1o claimed to be the driver of the Jeep. The statement of the witness is already reproduced in paragraph No. 8. The testimony was rejected by the Tribunal for its being inconsistent, irrelevant, uncorroborated and lacking in material particulars. In our well considered opinion the referring authority has failed to prove the charge. The evidence is scanty and inconclusive. Our reasons are :--
(a) The witness failed to prove his own identity in order to satisfy that he was an employee of the Lahore Corporation or that the Jeep belonged to the Corporation. The relevant documents relating to the Jeep were not produced.
(b) He was in-consistent and irrelevant. For, in his examination-in chief, he deposed that the respondent travelled in the Jeep between Rawalpindi and Trarkhal and used the Jeep. In cross- examination he admitted that respondent never travelled in the Jeep. It was not the respondent but his workers who travelled in the Jeep between Rawalpindi and Trarkhal. He failed to connect the respondent with the use of the vehicle during the election of Assembly. The statement is lacking in all material particulars.
12. It was imperative for the appellant to prove not only that the vehicle was obtained from a source outside Azad Kashmir and was used in the election; but also that such use of the vehicle influenced the result of the election. Use of funds or vehicle obtained from outside source, by itself, was not sufficient to constitute the charge of rigging unless it was shown that such a use affected the results of elections. In the instant case neither there was a charge nor evidence that the use of vehicle influenced the result of election. Thus, in absence of proof, we are constrained to hold that referring authority has failed to prove (i) that a vehicle was obtained by the respondent for use in his election to the seat of Assembly; and (ii) that such a use of vehicle influenced, in any manner, the result of the elections.
To condemn a person for misconduct mere utilization of a private vehicle brought from outside Azad Kashmir is not sufficient. It must further be shown that the utilization was fraudulent through underhand or illegal manner calculated to influence the result of the election. In the case at hand the utilization is proved but the proof is lacking on other ingredients."
13. Next we deal with the objection that there was implied admission in the written statement on Charge No. 1 (c). The relevant part of the written statement is reproduced below :- "Item I (c) the allegations are false and male fide. The Veh. No. 3067 was used for the official purpose and purpose it was meant for. As a matter of fact, the Speaker is authorised to use cars and for economy reasons only one Car was used. As far as the use of Veh. No. 3166 is concerned Speaker is not transport Incharge. The Government order has been issued with the approval of finance committee of Assembly under finance committee rules of 1976 Rules Nos. 18 and 22 (xi) the prevailant law by Secretariat and Speaker has nothing to do with it. Therefore, the allegation of abuse of power and favouritism is false and unfounded."
The respondent has expressly denied the allegation. It is averred that the vehicle was used for official purpose. We fail to understand how it amounts to admission. The respondent was Speaker of the Assembly. He was entitled to transport facility. The vehicle was given to him. He admitted that the vehicle was at his disposal. There was no quarrel to that extent. The dispute is whether the vehicle was used for political purpose. This was emphatically denied. We are unable to bring the case within exception in order to shift the onus on the respondent to prove that it was used exclusively for the official object. The initial presumption is in favour of the respondent. By no stretch of imagination, written statement can be termed as implied admission. The objection is untenable and it is, therefore, overruled.