MAQBOOL BAQAR, J.---The present appeal was preferred against the judgment dated 6th December, 2014 rendered in Election Petition No, 10/2013, whereby the election of the appellant was declared void under section 68(d) of The Representation of the People Act, 1976 ("ROPA"), and the respondent No, 1, who being the runner-up had filed the above Election Petition, was declared elected under section 69 of ROPA.
2. The brief facts of the case are that the appellant and the respondents contested election for the National Assembly seat in constituency NA-215, Khairpur, held on 11.05.2013, and as per results announced by the Election Commission of Pakistan, the appellant secured 91809 valid votes, whereas respondent No, 1 obtained 66481 votes. The vote count of the appellant being the highest and that of the respondent No,1 being the second highest, the appellant was declared the returned candidate from the constituency, and the respondent No, 1 stood as the runner-up. Not being satisfied with the result, the respondent No,1 challenged the same through the above petition on the ground that the result was obtained by the appellant by indulging in corrupt practices and exercising undue influence as defined by sections 78(2) and 81(1)(a)(b) of the ROPA respectively.
3. The petition so filed contained various allegations and narrated several purported stances of alleged use of force, intimidation and undue influence, such as that a DSP, namely, Munir Ahmed Phulpoto who was posted at Karachi, harassed his voters and persuaded them to vote for the appellant, and though the Returning Officer conveyed such complaint to the Inspector General of Police, Sindh but to no avail. It was also alleged that the appellant along with a few others, in order to harass, intimidate and prevent the petitioner's voters from casting their votes, resorted to aerial firing across the constituency. It was further alleged that the appellant and his accomplices have attacked and fired at one Tahir Imtiaz and some other workers of the petitioner resulting in the death of one Abdul Wahab Narejo, and injuries to a few others of which incident an FIR was also recorded. It was claimed that on 12.05.2013 the respondent No,1 submitted a complaint before the Returning Officer regarding the conduct of the appellant. It was alleged that one Ghulam Abbas, filed an application under section 22(a)(b), Cr.P.C. for registration of an FIR along with an application for medical examination of some purported injured victims, whereupon learned IInd Additional Sessions Judge, Khairpur ordered investigation into the allegations. The respondent No,1 also mentioned names of three Presiding Officers and one Assistant Presiding Officer who allegedly complained of bogus voting at Polling Station, Malir Pato and that the ballot boxes which were snatched from them were filled with bogus votes, and further that the polling staff was confined and harassed by the appellant. The respondent No,1 further alleged that the appellant also removed ballot papers from the ballot boxes and further that the ballot boxes were already stuffed with bogus votes before they were sealed for voting. A further allegation was that the entire district administration was acting on the instructions of the appellant and his uncle Mr. Manzoor Hussain Wasan who had remained Provincial Home Minister during the previous regime. The respondent No, 1 claimed that at Polling Station (Ghulam Raza, UC Lyari, Tehsil Kotdiji, Mr. Manzoor Hussain Wasan threatened and compelled respondent No, 1 's election agents to leave the polling station.
Another allegation was that the Presiding Officer was openly supporting the appellant and that his female agents were forced to leave the polling station Technical College, Tehsil Khairpur. The incidents were reported to the District Returning Officer and the Returning Officers and to the concerned SSP and also to the Army Headquarters, by Ghulam Shabbir Dayo, the General Secretary of respondent No, 1's political party through a written complaint. The respondent No, 1 also alleged that the polling staff who sympathized with the appellant's political party, prepared fictitious results in favour of the appellant and claimed that the Form No, XIV, in respect of polling station, Government Primary School, Kumb shows that at serial No, 7 the respondent No, 1 secured 444 votes, whereas as per the consolidated result he did not secure any vote at the said polling station. It was further submitted that at polling station Government Primary School, Nawab Wassan, the respondent No,1 has been shown not to have secured any vote, whereas the number of votes attributed to the appellant at the said polling station are 1051. Similarly only 8 votes have been shown in favour of the respondent No,1 at Government Primary School, Nawab Wasan, whereas the appellant is shown to have secured 1086 votes. Another allegation is that contrary to the relevant rules, and to favour the appellant, the election results were prepared on plain papers. Alleged incidents of preventing respondent No,l's voters were narrated in the petition, in respect of polling stations Raheem Bux Wasan, Government High School-II, Khairpur, Ghulam Raza Khokhar, UC Lyari, Kouro Ghoth, Taluka Khairpur, Talpur Wada, Hakeem Chakrani and Tando Nazar Ali.
4. In support of his case the respondent No, I filed his affidavit in evidence, wherein he reiterated the contents of his petition. He also filed affidavit in evidence of seven witnesses, namely, Muhammad Khan, Mrs. Nawab Khatoon, Muhammad Shareef, Safdar Ali Shah Jehania, Nawab Khan alias Raju, Ghulam Shabbir Dayo and Karim Bakhsh Kubar. The witness Muhammad Khan deposed that he resides near Kot Pull, Taluka Khairpur and that he went to cast vote in favour of respondent No, 1, but when he refused to oblige the appellant's agents by casting vote in favour of the appellant the Presiding Officer declined to issue ballot paper to him and that he was pushed out of the polling station. However during his cross-examination he stated that he is not conversant with the English language, wherein the affidavit was written, and that the contents of the affidavit were not read out to him in Sindhi, and upon being explained the contents of his affidavit to him in Sindhi he stated that the same were not correct. The witness was thus declared hostile and was cross-examined by the counsel for the respondent No, 1, but nothing could be extracted from the witness which could be helpful to the said respondent. The witness, Nawab Khatoon deposed that on the polling day she went to polling station Kot Pull but then some persons with muffled faces entered the polling station and resorted to aerial firing which caused terror, forcing her and the other lady voters of the respondent No, 1 to leave the polling station. However during her cross-examination she stated that since the faces of the culprits were muffled she could not see their faces. The third witness, namely, Muhammad Shareef deposed that he lives near Wada Machi and that he went to Polling Station Primary School, Kot Pull for casting his vote in favour of respondent No, 1 where the appellant and his accomplices resorted to aerial firing causing terror and harassment to the petitioner's voters and thus forcing them to leave the polling station without casting their votes. However during his cross-examination he admitted that there was a separate polling station for "Wada Machi" (the place where the witness lives) he also admitted not having produced his voters' certificate and that he has not complained about the incident to police or any other authority.
5. The 4th witness Safdar Ali Shah Jahania deposed that he went to cast his vote in favour of respondent No,1 to Polling Station Middle School, Mithri, however, Munawar Wassan along with some persons belonging to the appellant's party, duly armed, came to the polling station and caused harassm ent and commotion, and when the said witness along with one Ghulam Abbas resisted them, the witness and Chulam Abbas were forcibly removed and were taken away in a vehicle and confined in a godown behind Munawar Wassan's bungalow in his village where they remained confined for three days and were severely beaten by Munawar Wassan and his accomplice, resulting in injuries on the back and head of the deponent, and facture in the arm, and head of Ghulam Abbas. Whereafter Munawar Wassan handed them over to Kotdiji police who booked them in a false criminal case, which case was subsequently disposed of under cancel clause. The witness further deposed that since FIR of the above incident was not being recorded, Ghulam Abbas filed an application under section 22-A, 22-B, Cr.P.C. which was allowed and an order was also passed for their medical examination.
6. Similar affidavit in evidence was filed by the 5th witness namely Nawab Khan alias Raju.
7. The sixth (6th) witness, namely Ghulam Shabbir Dayo, General Secretary Pakistan Muslim League (N), deposed that he was deputed at the complaint centre established by respondent No, 1, where he received complaints of aerial firing, injuries to voters, bogus voting and of malpractices by the appellant, his uncle Munawar Wassan and Syed Qaim Ali Shah, at various polling stations, which were noted down by him and were conveyed to the office of the District Returning Officer, Returning Officer, Army Headquarter and also to SSP Khairpur but to of no avail.
8. The seventh (7th) witness, namely Karim Bakhsh Kubar deposed that he was acting as Chief Election Agent for the respondent No,1, and was assigned to attend telephone complaints regarding ensuing election and that he received complaints' of aerial firing at different polling stations. He referred to different polling stations in that regard and further deposed that the appellant in collusion with the election staff, police and some criminals succeeded in obtaining bogus votes, took away ballot boxes and also created terror and harassment in order to implead the election process.
9. From the above resume and the evidence recorded on behalf of the petitioner it can be seen that none of the witnesses even incidentally referred to any of the polling stations regarding which respondent No, l's petition contain any allegation. The only witnesses who, have deposed in consonance with certain allegations contained in the petition to some extent are Safdar Ali Shah Jahania and Nawab Khan also Raju, however, it has nowhere been disclosed by the said witnesses or any of the other witnesses, regarding the fate of the FIR allegedly sought to be registered by the said two witnesses. Furthermore and more importantly the incident of violence as alleged by the two witnesses pertain to Polling Station Middle School, Mithri, however, absolutely no reference to or allegation in relation to said polling station, has been made by respondent No,1 in his petition, or otherwise. Even the hand notes, of the complaints received by Ghulam Shabbir Dayo does not make any mention of the Polling Station Middle School, Mithri, from where the said witnesses were allegedly abducted. Moreover neither the doctor who purportedly issued the injury/medical certificate was produced nor was the photographer who took photographs of the injured produced. We may observe here that it is unsafe to accept oral evidence at its face value, unless the same is vouched and supported by unimpeachable documentary and/or circumstantial evidence. The evidence of the said two witnesses is thus wholly irrelevant and. inconsequential, and of no avail to respondent No, 1 . Whereas the evidence of Ghulam Shabbir Dayo is bereft of necessary details as required by law. Similarly the affidavit in evidence of Karim Bakhsh Kubar lacks in necessary details, contain vague allegations, and the only polling station mentioned therein namely, Govt. Primary School Khanan Buriro, where according to the witness one police constable namely Ali Gohar Wassan was handed over to Rangers, does not find mention either in the petition or in the evidence of the petitioner, or in any of his other witnesses, whereas the appellant and the co-accused in the case of murder of Abdul Wahab Mourejo and of injuries to Tahir Imtiaz Phulpoto, as mentioned by the said witness, have been acquitted, as the complainant in that case who was allegedly injured in the incident, and the other witness namely Mushtaq Jagirani did not support to the allegations contained in the FIR.
10. It may be noted here that in order to successfully challenge an election on the ground that the same was induced through corrupt practices, the petitioner should be conscious of the fact that the charge of corrupt practices is in the nature of a criminal charge and has to be c proved beyond any shadow of doubt. The standard of proof required for establishing such charge is the same as is applicable to a criminal charge. The evidence should be absolutely credible by the standards of the appreciation applicable to criminal cases and should be able to stand the test of strict and scrupulous scrutiny. It is also now well settled that the party seeking to challenge the validity of an election should essentially specify in the election petition the incidents of corrupt practice with as much precision as is possible and with all necessary details and particulars. The petitioner should keep in mind that no fresh charge or incident can be introduced during the trial.
The other well pronounced principle is that the evidence in proof of the alleged corrupt practices is to be restricted to the instances as set out in the petition, and in order to succeed, the petitioner has to prove such ingredient of the corrupt practice alleged, affirmatively. Statement of allegation contained in the petition should therefore be precise and should clearly contain all the necessary details as required in terms of section 55 of the ROPA.
11.However in the present case, as noted earlier, none of the respondent No, 1 's witnesses deposed regarding the alleged instance pertaining to the various polling stations, as mentioned in the petition, and the polling stations where about the respondent No, 1's witnesses deposed were neither mentioned in the petition nor in the affidavit of evidence of the petitioner. Such evidence is therefore wholly irrelevant, inconsequential and is liable to be ignored; and cannot be thus taken into consideration. Even otherwise the evidence recorded on behalf of the petitioner in view of the foregoing analysis of such evidence does not at all prove that the appellant indulged in any corrupt practice or resorted to any undue influence to procure his success in the election.
12. We may also mention here that at the request of respondent No,1, the counterfoils of the used ballot papers, the used electoral list, and the statements of counts pertaining to all the polling stations of the constituency, were sent to National Database Registration Authority ("NADRA"), for forensic examination of the thumb impressions the NADRA report it was only in respect of 229 counterfoils that the appended to the said counterfoils and used electoral list. However, as per fingerprints failed authentication whereas the fingerprints which could not be deciphered, inter alia, due to use of poor quality/inappropriate ink were 99752, however such counterfoils did bear valid CNIC numbers of the voters, and therefore, and specially so in view of the fact that the difference of votes between appellant and respondent No,1 is 25328 votes, the NADRA report does not adversely affect the success of the appellant in the election.
13. In view of the foregoing, absolutely no case was made out for declaring the appellant's election void under section 68(d) of the ROPA, and or declaring the respondent No,1 as elected in terms of section 69 of the ROPA. We have also found that the Presiding Officer of the Election Tribunal has failed to function within the parameters of law and has grossly misunderstood and misapplied the relevant provisions of ROPA. The judgment also miserably suffers from non-reading and misreading of evidence which resulted in miscarriage of justice.
14.It was for the foregoing reasons that, we, through our short order dated 07.06.2017, allowed the above appeal and set aside the order impugned thereby.