1. ' NASIM HASAN SHAH, J.-There was a stir and excitement in the people of Pakistan on the morning of 7th March, 1977, as they prepared to go to the polls to elect the members of the National Assembly.
2. By mid-night, however, on the same 7th of March, 1977, a heavy gloom had descended upon them and a sense of bitterness and resentment pervaded throughout the land. The results of the elections being announced by the official media after the close of the polls belied all justified expectations of the people and the news pouring in from various parts of the country showed that the candidates of the then ruling party had acted in an extremely high handed manner and in some cases had resorted to terrifying the electorate by use of fire-arms including stem-guns. The public rose in mass protests and demanded fresh elections and action against those responsible for the rigging. An instance of such rigging was believed to be the election of Mr. Yahya Bakhtiar, the appellant herein.
3. ' Mr. Yahya Bakhtiar was one of the more prominent Ministers in the Government of the late Mr. Z. A.
4. Bhutto. He was the first person to be appointed by him on the mid-night of the 20th/21st December, 1971, to his Cabinet on assuming the Presidency of the Country and assigned the position of Attorney-General of Pakistan, after enhancing to Cabinet rank the stature of that office. He was continuing in that office when the decision to hold nationwide elections on 7th March, 1977, was taken and was chosen by the ruling Pakistan People's Party to contest elections for the National Assembly for the Pishin Seat (Constituency No, NA-195-Quetta-1I) for which seat the redoubtable leader of the Pakhtun Khawah Party, Mr. Mahmood Khan Achakzai, was also a candidate.
5. ' The elections held on 7th March, 1977, from this Constituency were a turbulent affair. Some 9 out of the 69 police stations set up for casting of votes were taken over by the supporters of the Pakhtun Khawah Party, while at least in two polling stations no polling was held at all. Nevertheless, the relevant officials produced at the end of the day detailed results of the voting which supposedly took place at these polling stations. Be that as it may,. From the count statements secured by the election agents of Mr. Mahmood Khan Achakzai from the Presiding Officers, wherein the votes cast for each candidate at various Polling Stations were given, it seemed that Mr. Mahmood Khan Achakzai had won by a wide margin, an impression that was naturally being given wide currency by him.
6. ' The official media did not, however, announce the results of this seat while announcing the results of most of the other seats on the evening of 7th March, 1977 and kept completely silent about it.
7. Unnerved by this silence the election agent of Mr. Mahmood Khan Achakzai sent the following telegram on the 8th March, 1977 to the Election Commission of Pakistan "Official certified results from polling station No, NA-1.95-Quetta-II shown Mahmood Khan Achakzai 23957, Syed Abdul Wahid 4871, Yahya Bakhtiar 5761. Government and Radio not giving results accordingly. Immediate action is required."
8. ' In the course of the same day (8th March, 1977) the results of this seat were ultimately announced.
9. According thereto Mr. Yahya Bakhtiar had won securing 17933 votes as against 17004 votes secured by Mr. Mahmood Khan Achakzai. The said announcement being quite contrary to the position that emerged from the calculation of votes made on the basis of the "statements of count" secured- from the presiding officers by the election agents of Mr. Mahmood khan Achakzai wherein the votes cast For the various candidates at each polling station were indicated, therefore, only added to the bewilderment of the people.
10. ' Consequently, when the telegram of the election agent of Mr. Mahme'id Khan Achakzai was received in the office of the Election Commission on the 9th March 1977 the Chief Election Commissioner Mr. Justice Sajjad Ahmad Jan asked the Provincial Election Commission for a complete immediate inquiry and report. The Provincial Election Commissioner submitted his report on 20th March, 1977 and observed herein that "the Polls were not conducted smoothly and glaring irregularities and particularly harassment of female polling personnel continued unchecked". The Secretary of the Election Commission Mr. A. Z. Farooqi was thereafter sent to Quetta to inquire into the matter. He held an inquiry into the matter and submitted two reports; one on 15.4-1977 and the second on 3-5-1977.
11. In the meanwhile to assuage the feelings of the people protesting against the alleged rigging of the elections an Ordinance had been promulgated on 21-34977 empowering the Election Commission to annul, after only a summary inquiry, the election of a candidate guilty of committing grave illegalities or violations of the election laws. The Ordinance was entitled "the Representation of Peoples (Second Amendment) Ordinance, 1977 (Ordinance XV of 1977)" and was, in fact, an amending Ordinance, whereby a new section 103-B was inserted after section 103-A in the Representation of Peoples Act, 1976, namely "103-B. Power of Commission to declare a poll void.-(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal."
12. ' The Secretary, Election Commission, in his report, submitted on 15-4-1977, on the promulgation of this Ordinance after detailing the irregularities committed by both the major candidates concluded as follows "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 Commission. This election can be declared null and void for any one of 3 or 4 separate reasons. It is submitted that the Commission is already running much behind time in its summary inquiries. No time should be wasted in glaring cases like this in unnecessary hearing. The inquiry seems to be quite complete for the purposes of the Commission and the necessary conclusion can be arrived at immediately."
13. ' The second report submitted on 3-5-1977, to supplement the earlier one proceeded to say :- "However, these are minor matters and have no bearing upon the conclusion arrived at above, which shows beyond the shadow of a doubt that there has been organised malpractice in this election after the close of polls which has clearly changed the result in favour of one candidate (the reference was to Mr. Yahya Bakhtiar)."
14. ' On the basis of these two reports, the Election Commission took cognizance of the matter and proceeded to consider Mr. Yahya Bakhtiar's case under the provisions of the amending Ordinance (XV of 1977). The case was almost finalized when on 12-5-1977 the amending Ordinance (XV of 1977) was withdrawn by the issuance of the Representation of Peoples (Second Amendment) Ordinance, 1977. Withdrawal Order by the President under Article 89(2) (b) of the Constitution of 1973. The effect of the issuance of the Withdrawal Order was construed by the Election Commission that the proceedings begun under the amending Ordinance had become infructuous. In the result, no decision could be given in the case of Mr. Yahya Bakhtiar by the Election Commission.
15. ' However, during all this period, the movement of protest directed against the rigging of elections had continued unabated. Owing to the failure of the ruling People's Party to resolve this grave problem, the law and order situation in the Country was assuming alarming proportions. At this stage, the armed forces decided to intervene in the early hours of 5th July, 1977. Martial Law was proclaimed; the Constitution of 1973 put in abeyance; the National Assembly and the Senate dissolved and the Prime Minister and other Ministers dismissed from their offices. However, according to the Laws (Continuance in Force) Order, 1977, which was promulgated on the same day, the governance of the Country was decided to be continued in accordance with the provisions of 1973 Constitution subject, of course, to any Order issued by the President and the Martial Law Regulations issued by the Chief Martial Law Administrator.
16. ' Another measure taken by the Martial Law Authorities soon after the change-over was the enactment of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977. This Order was issued on 25th November, 1977 and was designed to punish holders of the representative offices, such as Prime Minister, Federal Ministers, Attorney-General, etc. Who had indulged in bribery, nepotism and other malpractices and misused their official position These and similar other improper acts were included in the expression "misconduct", which was rather widely defined, and it was further laid down that a holder of a representative office convicted of "misconduct" could be punished with imprisonment for a term extending to seven years, or with fine, or with both.
17. ' Some two months later on 17-1-1978 this order was further amended by promulgating the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order, 1978, whereby in the definition clause, (Article 2 of the Order) a new sub-clause (aa) defining the word "rigging of elections", i,e, doing something either directly or through any person so that an election is not conducted honestly, justly, fairly and in accordance with law, was inserted in Article 2 and in Article 3 of this Order a new paragraph was added, namely, paragraph (g) whereby a holder of a representative office could also be punished for misconduct, if found guilty of rigging the elections.
18. ' Since the efforts of the Election Commission of Pakistan to deal with cases of persons believed to have rigged the elections was aborted by issuance of the Withdrawal Order (on 12-5-1977) the Martial Law authorities set up a Committee in November, 1977, called the C. M. L. A. Election Inquiry Committee to inquire into the alleged malpractices committed in the general elections to the National and Provincial Assemblies held in March, 1977.
19. ' This Committee, as regards the inquiry made by it about the elections from Constituency No, 195- Quetta-II, from which Mr. Yahya Bakhtiar had contested, came to the conclusion that there had been rigging of elections in that constituency and held in para. No, 15 of its report (Exh. P. W. 6/1) the following officers to be responsible for the rigging :- "15. (a) Mr. Yahya Bakhtiar
(b) Mr. Mahmood Khan Achakzai, and
(c) Messrs Muhammad Khan Barozai. Ghaus Bakhsh Raisani, Mir Taj Muhammad Khan Jamali and Mir Abdul Nabi Jamali of P. P. P. Had also indulged in illegal practices however, further inquiry would be necessary before the suitable action could be initiated against them."
20. ' The Committee also recommended in paragraph No, 16 that :- "16. The Commission has succeeded in establishing that the General Elections in Baluchistan were subjected to a conspiracy where malpractices and rigging on a mas is scale was indulged in on instructions of the Government. The bureaucracy in the Province had demonstrated their normal bankruptcy."
21. ' The relevant authorities, however, appear to have pardoned all the officers, who had taken part in the rigging as also all the politicians including Mr. Mahmood Khan Achakzai and Messrs Muhammad Khan Barozai, Ghaus Bakhsh Raisani, Taj Muhammad Khan Jamali and Mir Abdul Nabi Jamali and only selected Mr. Yahya Bakhtiar, appellant, for prosecution. Accordingly, Mr. Humayun Khan, Deputy Secretary in the Election Commission of Pakistan, who was also the Secretary of this Commission, lodged an F. I. R. With the Director F. I. A., Karachi, shortly after the amendment in the Holders of Representative Offices (Misconduct) Order, 1977 under Article 3 of the said Order. The challan, on completion of investigation and after obtaining permission for prosecution from the Federal Government on 27-6-1978--which was required by, the said Order-was, therefore, submitted before the Special Court by Nawab Bughti, Deputy Director F. I. A., Quetta. The Special Court appointed for this purpose was Mr. Justice Usman Ali Shah, then a Judge of the Peshawar High Court, Peshawar.
22. ' Before the Special Court, the case, that the prosecution sought to establish, was that on the close of the polls (on 7-3-1977) when the appellant learnt that despite all his earlier efforts to manipulate the election in his favour by pressurizing Government servants and the other tactics employed by him, he was still losing it, had the announcement of the result of the elections withheld and by exercising pressure and influence coerced the officials charged with preparing the results of the elections during the night between the 7th and 8th March, 1977 to invalidate 10993 votes secured by his rival candidate, Mahmood Khan Achakzai and got thousands of unused ballot papers fraudulently marked in his favor, where after they proceeded to announce that the appellant had won the elections by securing 17983 votes as against 17004 votes secured by his rival candidate, Mahmood Khan Achakzai, ' The formal charge, on which the appellant was put to trial was couched thus :- "I. S. Usman All Shah (Judge of Peshawar High Court) Special Court established under Holders of Representative Offices (Punishment for Misconduct) Order, 1977, do hereby charge you Mr. Yahya Bakhtiar Khan son of Haji Abdul Karim, Jinnah Road, Quetta, that in or about the month of March, 1977 while you were Attorney-General for Pakistan 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 of rigging the election in your favour through such staff;
(c) You ,maneuvered to have secured large number of votes from the polling stations where no polling was actually held; (d)You got the, result of election withheld on 7th March, 1977 as the process of rigging was not complete in the Scouts Fort at Pashing on that day;
(e) You obtained false and fake result in your favor."
23. ' As a consequence, the election to National Assembly Seat No, 195Quetta-I1 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 in a fraudulent, underhand and illegal manner and thus rigged the election to Seat No, NA-195Quetta-1I.
24. ' And thereby committed the offence of 'misconduct' punishable under Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977, and within the cognizance of this Court."
25. ' The misconduct referred to above' consisted in the rigging of elections, which was defined in paragraph (aa) of Article 2 of the Holders of Representative Offices (Punishment for Misconduct)
26. Order, 1977, as follows :- "rigging of elections" 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."
27. ' Mr. Yahya Bakhtiar denied the charge and pleaded not guilty. The matter, therefore, was put to trial.
28. ' In order to establish the charges leveled against the appellant and to prove him guilty of them, the prosecution produced 31 witnesses besides placing on the record a large number of documents including the C. M. L. A. Committee Report which was proved and exhibited as Exh. P. W. 6/1 by Mr. Humayun Khan (P. W. 6), a Secretary/Member of the C. M. L. A. Committee, who was one of the authors of the Report. The main witness to depose to the alleged rigging of the elections during the night between 7th and 8th March, 1977, was Mr. Islam Bahadur, Commissioner Quetta Division (P. W.
29. 26).
30. ' The appellant, who appeared as his own witness to refute the allegations levelled against him, stated that he was not interested in contesting the elections and had, therefore, not applied for the Party's ticket but had ultimately contested them as the late Prime Minister and the Party had directed him to do so; that there was no special advantage in his becoming a member of the National Assembly as by virtue of his office as Attorney-General he was entitled to sit in the National Assembly and participate in its proceedings, though without the right of a vote. In view of his status having been enhanced to that of a Cabinet Minister he could also attend the meetings of the Cabinet and was entitled to all the privileges of a Federal Minister.
31. ' He also denied having pressurized Islam Bahadur to rig the elections in his favour after the close of the poll and stated that he had hardly known him before the elections. He admitted during the cross-examination having actively participated in the election campaign, in which the then Chief Minister Sardar Muhammad Khan Barozai and the then President of the Provincial Peoples Party Sardar Ghaus Bakhsh Raisani also assisted him. He also admitted that Malik Bahram Khan was his polling agent for Farakhi and Urak Polling Stations and Mr. Munawar Mirza was his election agent and that he (Mr. Munawar Mirza) had visited Pishin on 8th March, 1977 in the morning. This visit, however, according to him was not with a view to pressurising the officials to rig the elections in his favour but only to find out the result of the elections from the Returning Officer-cum-Deputy Commissioner, Pishin.
32. ' In the course of the cross-examination he further stated :- "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 overby one or two of my rival candidates and the election was therefore no election at all."
33. ' And while answering another question he said :- "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 had already been rigged in many polling stations and thus save themselves from explanations for their failure in their duties."
34. ' The learned Special Court opined that in view of the above statements of the appellant, the question requiring determination fell in a narrow campus, namely, whether the rigging in the elections, which was admitted by him was or was not done at his behest and if he was privy to it.
35. The learned Court considered that for proper appraisal of the evidence in this behalf, the prosecution could be divided into three stages ; the first stage related to the pre-elections period ; the second stage related to the happenings on the polling day i,e. 7-3-1977 up to 4 p.m. And third stage related to happenings after the poll was over i,e, after the announcement of the results on 8- 3-1977.
36. ' As regards the first stage, relating to the pre-election period, the Special Court, after recounting certain circumstances; appearing in the evidence, concluded that from these circumstances it was established that the party in power and its leader, as also the appellant himself, were. All very anxious that the appellant should win the elections and were working lard towards this end, Coming to the second stage, i,e, the happenings on the polling day i,e, on 7-3-1977, the learned Special Court after referring to the evidence of several witnesses, came to the conclusion that it was established that rigging was done at Polling Stations Nos. 68 and 69 and that this was done with the connivance, knowledge and approval of the appellant "so as to somehow secure his success in the elections". Mention was no doubt made of the evidence relating to the happenings at the polling stations on the polling day and it was noted that "according to the prosecution evidence, it is established that there was disturbance and lawlessness at five polling stations for for of which, namely, at polling station Nos. 53, 56, 51 and 22, the supporters of Pukhtoon Khwah Party were responsible", but it was remarked that "assuming for the sake of argument that the accused has proved the rigging of election, by his rival candidate at all 69 polling stations, or a majority of them, even then, that would not provide any justification for what, according to the prosecution, was done in the Malitia Fort at Pishin on 8-3-1977". But before adverting to the happenings there, the exact nature of the finding recorded against the appellant so far as what the Special Court has called the 2nd stage, may be mentioned.
37. ' The Special Court found that Mr. Yahya Bakhtiar appointed Malik Bahram Khan, a notable of Pishin as his polling agent for Polling Station Farakhi and Mr. Afzal Luni (P. W. 25), Deputy Commissioner was directed by the Chief Secretary and Mr. Islam Bahadur, Commissioner Quetta to ask the said Malik Behram Khan to help in rigging the election in favour of the appellant. The plan hatched in this connection was that the Presiding Officers of Polling Stations Urak and Farakhi should be abducted along with their election material including ballot papers and ballot boxes and handed over to Malik Bahram Khan. In this connection, Mr. Islam Bahadur, Commissioner Quetta allocated 4 Tehsildars, including Abdul Ghani (P. W. 20) and Jamal Khan Jaffar W. 21) to help the Deputy Commissioner in the abduction.
38. ' In accordance with the aforesaid plan the above-named two Tehsildars abducted Mr. Parvez Mahmood (P. W. 3), the Presiding Officer of Polling Station Urak (Polling Station No, 69) and Ch. Muhammad Anwar (P. W. 4), Presiding Officer of Polling Station Farakhi (Polling Station No, 68) along with their staff while they were proceeding to their polling stations on the 6th of March, 1977.
39. They were all then taken in their Jeeps to a place called "Band Khushdil Khan where they were handed over to Malik Behram Khan and his companion Dur Muhammad Khan, Risaldar. Bebram Khan then took them to his own house and kept them over the night in virtual imprisonment. On the next morning i,e, on the election day (7-4-1977) they were threatened by Malik Behram Khan and his men to prepare false votes by marking unused ballot papers in favour of the appellant.
40. Accordingly, they opened the ballot bags under compulsion and started fabricating bogus votes in favour of Mr. Yahya Bakhtiar with the help of Bahram Khan and his men. A large number of bogus votes were, thus, prepared and shown as having been cast in favour of the appellant. Thereafter, during the night between 7th and 8th of March, 1977, Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4) were taken back on a Jeep to Pishin Fort where the third stage of the rigging operations was carried out.
41. ' This brings us to the third stage, namely, the happenings after the conclusion of the poll and up to the announcement of the results on 8-3.1977. The case of the prosecution on this aspect, which appears to have been accepted by the learned Special Court, is to the effect that, according to the consolidated statement (Exh. P. W.. 2/9) showing the votes polled by each candidate at 57 polling stations which statement was prepared from the count- statements supplied by the Presiding Officers of each Polling Station after the close of the poll to the candidates or their polling agents ; the votes polled by each candidate were as follows :- {{TABLE}} Mr. Mahmood Khan Achakzai24108 votes Mr. Yahya Bakhtiar Khan5946 votes Mr. Abdul Wahid5589 votes Mr. Ghulam Muhmmad756 votes ' Consequently, when Mr. Yahya Bakhtiar called Mr. Islam Bahadur, Commissioner Quetta on the telephone on the evening of the 7th March, 1977 at Pishin to enquire about the results he was informed "that his position was very weak and there was the distant possibility of success", whereupon Mr. Yahya Bakhiar told the Commissioner that the result must be shown in his favour "come what may". He repeated this directive again later on at night in the course of a second telephone call and then sent Mirza Munawar, his election agent with the specific missiom of getting the results declared in his favour. In view of this pressure the officials preparing the election results were coerced into rigging the elections by double stamping a large number of votes secured by Mr. Mahmood Khan Achakzai and thereby invalidating them and preparing bogus votes in favour of the appellant by marking unused ballot papers in his favour. All this was done at Pishin Fort in the early hours of 8th March, 1977.
42. ' The above .Findings of the learned Special Court are founded almost entirely on the basis of the testimony of Mr. Islam Bahadur, Commissioner, Quetta, as it is he alone, who deposed to the pressure exerted by Mr. Yahya Bakhtiar upon him to rig the elections to procure his success. In coming to the conclusion reached by him, the learned Special Court also referred to the maxim- "Qui senti commodum sentire debet et onus et e contra". (He who receives the advantage, ought also to suffer the burden) and observed that the appellant's involvement stood established because he alone was the beneficiary of the rigging.
43. ' The final conclusion of the Special Court has been stated thus 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 another person namely, Mr. Munawar Mirza his election agent."
44. ' It was further added :- "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 Offices (Punishment for Misconduct) Order, 1977." ' and went on to sentence him to five years' R. I. And also to a fine of Rs, one lac or to suffer further one year's R. I. In default of payment of fine. This is an appeal under Article 8 of the Order against the aforesaid judgment and order of the learned Special Court.
45. ' The first contention raised by the appellant in support of this appeal is that the Special Court had no jurisdiction to take cognizance of the case against him because the previous sanction of the Federal Government for his prosecution had not been obtained. According to Article 5(2) of the Holders of Reresentative Offices (Punishment for Misconduct) Order, 1977 (P.
0. 16 of 1977) "the Special Court shall not take cognizance of an offence punishable under Article 3.
46. Except with the previous sanction of the Federal Government".
47. ' The sanction for the prosecution produced with the challan shows that it was granted by the Deputy Secretary to the Government of Pakistan in the Ministry of Interior.
48. ' The order of sanction is in the following terms :- "No, 14/11/78-Poll. 1(2)
49. Government of Pakistan Ministry of Interior Islamabad the 15th June, 1978 SANCTION ORDER ' Whereas Mr. Yahya Bakhtiar while he was Attorney-General of Pakistan and holder of representative office as defined in clause (a) of Article 2 of the Holder of Representative Offices (Punishment for Misconduct) Order, 1977, did certain acts or took certain actions either directly or through other persons so that the elections, to National Assembly Seat No, 195 Quetta-II held in March 1977, were not held honestly, justly, fairly and in accordance with law and thus rigged the Election to Seat No, N.A.-195 Quetta-II, with a view to winning the seat in his favour, and thereby committed an offence of misconduct punishable under Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 ; ' 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 Misconduct) 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.
50. (Sd.)
51. S. K. Q. Naqvi, Deputy Secretary to the Government of Pakistan."
52. ' The validity of the sanction order was challenged on the ground that it was not granted by the Federal Government. This term has been defined in. Article 90 of the Constitution, which reads :- "90. The Federal Government.-(1) Subject to the Constitution, the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the 'Prime Minister who shall be the chief executive of the Federation ;
(2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers.
(3) The Prime Minister and the Federal Ministers shall be collectively responsible to the National Assembly."
53. ' The objection raised was that the sanction order not having been made in the name of the President, as required by the provisions of Article 90, the same was not acid.
54. ' Obviously finding force in this objection the said sanction was sought to be validated by promulgating a validating order on 18-2-1981 viz. President's Order No. 1 of 1981 i,e, Holders of the Representative Office (Punishment for Misconduct) Amendment Order, 1981. By this Order, after clause (2) in Article 5 of President's Order No, 16 of 1977, the following clause was added :- "Notwithstanding anything contained in any rules or orders made or issued by the Federal Government the authority competent to issue the sanction required by clause (2) shall be, and shall be deemed always to have been, the Ministry of Interior Government of Pakistan, and any such sanction issued by the said Ministry at any time after the commencement of this Order shall be deemed to have been validly issued and shall have effect accordingly."
55. ' According to the learned counsel for the appellant notwithstanding the above amendment the sanction for prosecution granted on 15th June, 1978 cannot even now be considered to be valid because the attempt to validate the said sanction has not succeeded in achieving its object. In fact, the exercise conducted by the authorities by making the amendment "is only an exercise in futility". The main ground urged in support of this submission is that President's Order No. 1 of 1981, which was promulgated on 18-2-1981 states :- "1. Short title and commencement.-(1) This Order may be called the Holders of Representative Offices (Punishment for Misconduct) (Amendment) Order, 1981.
(2) It shall come into force at once."
56. ' Consequently, the date of commencement of this Order, in view of Article 1(2) thereof would be 18- 2-1981 viz. The date on which it was promulgated. As the Order does not say "it shall deem to have taken effect from an earlier date" but only is to the effect that it shall come into force at once, its effect obviously was only to be prospective. Further support for this submission was sought by referring to Article 2 of this Order. Herein, it was provided that "after clause (2) the following clause shall be added, namely :- "any such sanction issued by the said Ministry at any time after the commencement of this Order shall be deemed to have been validly issued and shall have effect accordingly."
57. ' The result emerging on the basis of these submissions, according to the learned counsel, was that this Order did not validate the earlier sanction order issued on 15-6-1978 but made valid any sanction that might be issued by the Ministry of Interior after the commencement of this Order (namely any sanction order that was issued after 18-2-1981).
58. We are not inclined to agree with this interpretation of the provisions of the amending Order (P.
0. No. 1 of 1981). In or view the effect of this amendment is that sub-clause (3) which was added to the erstwhile two clause of Article 5, by President's Order I of 1981 became an integral part of that Order and stood incorporated therein, with the result that Article 5 of President's Order No, 16 of 1977 after the amendment, will read as follows :- "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 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 punishable under Article 3 except with the previous sanction of the Federal Government.
(3) Notwithstanding anything contained in any rules or orders made or issued by the Federal Government, the authority competent to issue the sanction required by clause (2) shall be and shall be deemed always to have been, the Ministry of Interior Government of Pakistan, and any such sanction issued by the said Ministry at any time after the commencement of this Order shall be deemed to have been validly issued and shall have effect accordingly."
59. ' If the provisions of Article 5 are read in the manner above-mentioned the words "such sanction issued by the said Ministry at any time after the commencement of this order shall be deemed to have been validly issued and shall have effect accordingly" would mean that any sanction issued after the promulgation of President's Order No, 16 of 1977, which was promulgated on 25-11-1977 shall be deemed to have been validly issued. Hence the objection that there was no valid sanction to prosecute the appellant has no force and is overruled.
60. ' As regards the merits, learned counsel for the appellant presented a two-fold argument. In the first place it was submitted that in the course of the trial the learned Special Court illegally and without the knowledge and consent of the appellant appointed a "defence counsel" on his behalf who misconducted himself by proceeding with the matter without any instructions from him and the Court allowed him to do so even after the appellant had repudiated his appointment. When he applied for recall of those witnesses whose evidence was recorded in his absence and whom he did not have the opportunity to cross-examine, that application was dismissed. The submission is that the evidence of all those witnesses, whose evidence was recorded in the absence of the appellant or who could not be cross-examined by him, cannot be taken into consideration while giving its judgment in the case. If this is done there is hardly any evidence left against the appellant because the only, witness who implicates the appellant in rigging the elections, namely, Mr. Islam Bahadur was amongst the witnesses who were not made available for cross-examination by the appellant.
61. ' The second submission is that even if the evidence of these witnesses is not excluded and taken into consideration as its stands, the prosecution, on the evidence available on the record even in its present form has miserably failed to bring home the charge against the appellant and the conclusion of the learned Special Court to the contrary is entirely erroneous and wholly untenable.
62. ' Taking up the first submission first we may mention that Mr. Yahya Bakhtiar had not engaged any counsel and had himself been conducting his defence before the Special Court. This fact is not in controversy and the Special Court has itself made mention of it in para. 150 of its judgment as follows :- "It is noteworthy that Parvez Mahmood (P. W. 3) and Muhammad Akhtar (P. W. 18) were cross- examined by the accused himself, as he had not engaged any counsel and was conducting his defence."
63. ' Mr. Yahya Bakhtiar continued to appear and conduct his defence uptil 15-3-1980. By that date, the evidence of P. Ws. 1 to 22 had been completed and the examination-in-chief of P. Ws. 23, 24 and 25 had also been recorded though their cross-examination had been deferred at the request of the appellant. On 15-3-1980, the Court adjourned the proceeding to 25-5-1980 for hearing at Quetta.
64. However, two days later i,e, on 17-3-1980, the Court observing that the appellant had filed a writ petition before the Baluchistan High Court challenging the jurisdiction of the Special Court to try the case, ordered that the next date would be fixed in due course. On 25-5-1980, the Court fixed the case for hearing at Peshawar on 14-6-1980 and directed that all concerned be informed. On this date, the appellant could not appear and sent the following telegram from Lahore :- "Regret Cannot Attend Special Court In Peshawar As I Again. Have Angina Pain Which Will Increase With Air Travel Particularly By Fokker Plane Stop Doctor Also Advised To Avoid Tension And Travel Stop I Again Request To Hold Hearing In Quetta As I Cannot Defend Myself Effectively And Properly In Peshawarr Being Handicapped In Every Possible Manner(.) I Only Ask For A Fair Trial At Quetta Where I Allegedly Committed The Offence And Where Most Of The Witnesses Belong.
65. Yahya Bakhtiar."
66. ' It is to be noted that the appellant had in the very beginning of the trial prayed that the trial be held at Quetta and had in this connection sent the following telegram in June, 1979 :- "Newspapers Have Reported That F I A Has Submitted Case Or Cases Against Me In Your Special Court And Have Been Fixed For Hearing At Peshawar On Thirteenth June Stop If Newspapers Reports Correct Then It Is Requested That In The Interest Of Justice Hearing May Kindly Be Held In Quetta As This Being Baluchistan Matter And To Enable To Defend Myself Effectively.
67. Yahya Bakhtiar Jinnah Road Quetta."
68. ' In reply, the Special Court had sent the following telegram :- "Ref : Telegram (.) Your Case Will Be Taken Up On 13th June, 1979 At Peshawar For One Day Only And Thereafter Will Be Taken Up At Quetta (.)
69. Registrar Peshawar 0 S D Registrar Peshawar High Court Peshawar"
70. ' However, except for some dates in October, 1979, the trial had been held mostly at Peshawar and on some dates at Karachi.
71. ' It appears that the telegram sent by the appellant explaining his nonappearance on 14-6-1980 and requesting for holding the hearing at Quetta referred to above, was not before the Court, which made the following order that day :- "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. Raza 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 Aral Luni P. Ws. Are also present. In the last session, their examination-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 Toss-examining them. His request was granted and the case was adjourned.
72. ' 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.
73. ' He was expected to be present in Court 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, 1 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)
74. Order, 1978, and direct for the appointment of an Advocate to defend the accused.
75. ' 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.
76. ' The witnesses present should appear before the Court tomorrow for cross-examination."
77. ' The appellant, however, did not again appear on the next day on 15-6-1980, whereupon the Special Court passed the following order :- "Mr. Khan Bahadur Khan and S. Masood Akhtar, 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.
78. ' 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 he 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 Khan and 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 defence counsel in the 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 (illegible) and effective hearing. He is present in Court and accepts the job. The learned Chief Public Prosecutor has supplied him all the concerned documents.
79. ' 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.
80. The request is reasonable.
81. ' However, if possible, he may cross-examine, at least one witness today and for this purpose the case will be taken up at 11 a. m. In any case, the proceedings will continue tomorrow."
82. ' The counsel so appointed by the Court for defence of the appellant in obedience to Court's order cross-examined Manzoor Hussain (P. W. 23) that very day, whereafter the case was adjourned to the next day. On 16-6-1980, the cross-examination of two other witnesses, viz. Izzat Aziz Kurd (P. W.
83. 24) and Muhammad Afzal Luni (P. W. 25), whose examination-in-chief had already been recorded, was held.
84. ' On 16-6-1980, the appellant, who was still at Lahore, on coming to know through newspapers that the Special Court had proceeded with the trial at Peshawar in his absence and had also appointed a defence counsel, in consultation with the Special Public Prosecutor and two lawyers of Peshawar High Court, sent the following telegram :- "I Strongly Protest Against Courts Order Of Ex Parte Proceedings And Trial In My Absence As Report In Courts Handout Published In A Section Of The Press Today (.) This Is Mockery Of Law Riding Roughshod Over All Principles Of Law Stop Whenever Legislature Intends Trial In Absence Of Accused It Specially So Provides Stop Besides I Am Neither An Absconder Nor Declared Proclaimed Offender Stop Handout Does Not Give Correct Position And My Illness Stated In My Telegram To Court Not Mentioned At All Stop I Never Appointed Any Defence Counsel Nor Authorised Any Lawyers To Make Any Statement To Court On My Behalf Stop I Have Not Boycotted Proceedings Nor Asked For Adjournment Repeatedly As Stated In Handout Stop The Court Has No Power To Appoint Defence Counsel For Me And I Repudiate His Appointment Stop How Can Any Advocate Prepare A Heavy And Complicated Case In A Couple Of Hours And Cross-Examine Most Important Witnesses Stop The Trial Which Was Illegally Being Held In Peshawar Has Now Become A Total Farce And An Eye Wash I No Longer Have Any Confidence In The Special Court And Request To Stop This Null And Void Proceeding Stop Yahya Bakhtiar"
85. ' For some reason not explained, neither this nor the earlier telegram appears to have been noticed by the Special Court until 17-6-1980 when it addressed the following telegram to the appellant : "Please Refer to Your Telegram of 14-6-1980. M. Khan Bahadur Khan And S Masood Kausar Advocates Appeared On Your Behalf After Seeking Adjournment Of The Case No, 14-6-1980 Intrmed The Learned Court On The Following Date 15-6-1980 That You Had Informed Them On Telephone That You Cannot Participate In The Proceedings Anympre In The Present Case. On The Suggestion Of The Two Advocates Alvearing On Your Behalf And In Consultation With The Deputy Attorney General Mr. Raza Ahmad Khan The Name Of Mr. Afzal Sarwar Khan Advocate Of This Court Was Approved To. Be -Appointed As Defence Counsel Under Provisions Of Clause 3 Article 6 Of Presidential Order No. 1 Of 1978. The Learned Defence Counsel Has So Far Cross-Examined Mr. Manzoor Hussain Mr. Muhammad Afzal Luni Mr. Izzat Aziz Kurd And Mr. Islam Bahadur Khan.
86. Adjournment As Communicated Earlier Has Already Been Refused. Other Witnesses Shall Be Examined Tomorrow18-6-1980. Jawaiz Nawaz Khan Gandapur, Registrar, Special Court".
87. ' To this, the appellant replied by the following telegram dated 18-6.1980 :- "Please Refer To Your Telegram Of 17 June Received Just Now 18 June 5 p. m. Stop I Repeat And Reiterate Every Word Of My Telegram Of 16th June Stop I Never Appointed Khan Bahadur Khan Nor Any Mr. Masood Kausar As My Advocate Nor Authorised Them To Make Any Statement On My Behalf To The Court Stop Mr. Aftab Khan Sherpao And Khan Bahadur Khan Contacted Me Repeat Contacted Me To Ask If I Was Going To Peshawar And I Told Them Exactly What I Had Stated In My Telegram Of 14th June To Special Court Stop Khan Bahadur Khan May Have Misunderstood. What I Have Told Him On Phone But The Special Court Had Received My Telegram Copy Of Which With Doctors Certificate Was Sent The Same Day In Registered Post Also(.) I Never Stated To Anyone Repeat That I Was Not Participating In Court Proceedings Stop."
88. Yahya Bakhtiar."
89. ' The Court, nevertheless, proceeded with the recording of evidence of the remaining witnesses from day-to-day and completed the evidence of P. W. 31 on 29-6-1980 when it adjourned the case to 13-7-1980. Meanwhile, the appellant submitted an application, dated 5-7-1980, objecting to the orders made and proceedings conducted from 15-6-1980 and praying for recall of the prosecution witnesses whose evidence had been recorded in his absence. In this application, the appellant pointed out that he had requested telegraphically on 1-6-1980 that the case be adjourned until the disposal of his constitutional petition before the Baluchistan High Court or in the alternative the bearing be held at Quetta, but that when in reply he had been told that the hearing would be held at Peshawar on 14-6-1980, he had started on his journey stopping at Karachi for medical check-up on 12-6-1980, that in spite of the Doctor's advice he had proceeded to Peshawar via Lahore, that on account of bad weather he had had a rough flight from Karachi to Lahore and had started suffering from angina pain, for which reason he had to cancel his flight to Peshawar and to send the telegram on 14-6-1980 informing of his inability to attend Court He further stated in the application that the Special Court was not justified in acting on the. Statement of Khan Bahadur Khan and Mr. Masood Kausar, Advocates, as he had never appointed them or anyone else as his defence counsel nor had he ever boycotted the proceedings. He also pointed out that the "so- called defence counsel" appointed by the Special Court had not been given more than "one or two hours" time to go through the huge record of the case running into thousands of pages and to start without instructions, from the petitioner cross-examining the witnesses who had been examined by the prosecution in February, 1980". He, therefore, assailed the Court proceedings from 14-6-1980 onward as being "illegal, without jurisdiction and lawful authority and against the principles of natural justice and established norms of a fair trial".
90. ' The application was considered and disposed of by the Special Court on 13-7-1980 in the following words :- "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 onwards 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 replied. This means that he has given 0,second thought to the matter and has shown his inclination to participate in the proceedings.
91. ' It was under the compelling circumstances that in order that the case may 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 15-6-1980 which may briefly be discussed again.
92. ' On 13-2-1980, the accused was present 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 witnesses from Quetta were, however, present. Mr. Khan Bahadur Khan and S. Masood Kausar Advocate 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 here 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 to 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 16 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 unimaginable long period and as this situation could have 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 case smoothly, as sufficient time was already wasted in the progress and disposal of the case.
93. ' 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 circumstance the Court was obliged to appoint a defence counsel in his absence. The proceedings in the case are conducted in open Court and therefore there would be no question of unfair treatment to the accused.
94. ' With these observations, this application'is accordingly disposed of".
95. ' On the next date, that is 27-74980, when the hearing resumed at Quetta, the prosecution closed its case. The appellant, who appeared, filed another application expressing lack of confidence in the Court and praying that further proceedings be stopped and the concerned Authority be asked to appoint another Judge or refer the case to an ordinary criminal Court. The application was heard on 28-7-1980 and rejected. The appellant further prayed that his application questioning the competency of the Court be also heard but the Court ordered that the same would be heard "in the course of final arguments of the case". The Court then proceeded to record the statement of the appellant under section 342, Cr. P. C.
96. Clause (3) of Article 6 of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 [President's (Post-Proclamation) Order No, XVI of 1977] empowers the trial Court to appoint an Advocate to defend an accused. The provision reads an under : "6. Powers and procedure of Special Court :-
(1) .
(2) .
(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 behaviour 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."
97. ' It has been contended on behalf of the appellant that the words "the absence of any accused person" or "the absence of the accused or his counsel" occurring in the above provision implied a situation where there is more than one accused or be is defended by a counsel and that not being so in the present case, the said provision could not have been invoked. It has been further contended that the preconditions for the application of this provision, namely, that "the absence of the accused or his counsel has been brought about by the accused person himself", or "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" were not met in the present case inasmuch as neither the absence had been brought about by the appellant nor was his behavior such as to have been calculated to impede the trial. It was reiterated that neither Khan Bahadur Khan nor Mr. Masood Kausar had any authority from the appellant to represent him in the trial Court and as such the Court had acted illegally in relying on their unauthorized statement that the appellant would not participate in the proceedings any more. It is argued that as the reason for non-appearance on 14- 6-1980 had been explained in the telegram sent on that date and the position had been further clarified in the subsequent telegram dated 16-6-1980 and more fully in the application made on 5- 7-1980, the Court ought to have retraced its steps and at least allowed the prayer for recall of the prosecution witnesses from 23 to 31. The Court's failure to do so has, according to the appellant, rendered the evidence of these witnesses inadmissible. Another ground urged for ignoring the evidence of these witnesses was that the counsel so appointed had neither been given reasonable time by the Court to prepare the case nor had he made any attempt at contacting and seeking instructions in the matter from the appellant.
98. ' The reasons which had prevailed with the Special Court in appointing a counsel for the appellant are two-fold :---
(i) The statements made by Khan Bahadur Khan and Mr. Masood Kausar, Advocates that the appellant would be unable to attend and participate in the proceedings any more, and
(ii) the "numerous adjournments" which in the opinion of the Court had been suffered in the case "on the request of the accused".
99. As regards the first reason, there is nothing on record to show that the two Advocates viz. Khan Bahadur Khan and Mr. Masood Kausar, had the requisite power-of-attorney or any other authority on record to represent the appellant before the trial Court. As already mentioned, the Court was B itself well aware of the fact that the appellant had no counsel and was conducting his defence himself. There was, therefore, no apparent reason for the Court to have acted on the statements of those Advocates. It is to be noted that Mr. Raza A. Khan, learned counsel for the State, had appeared before the Special Court for the first time on 14-6-1980 as Chief Public Prosecutor substituting Mr. Usman Ghani Rashid. It was in his presence that the decision to appoint a counsel had been taken, but even he concedes before us that the two Advocates had on record no authority to represent the appellant or to make any statement on his behalf. The Advocates had on the first occasion, that is, 14-6-1980, stated that the appellant had not appeared because of his inability to get the flight. This was not the position taken by the appellant in his telegram sent in the morning of that date. On the second day, i,e, 15-6-1980, the said Advocates had stated that "he (appellant) has informed them on telephone that be will be unable to attend and participate the proceedings any more in the present case against him. The appellant had denied having given any such information in his telegram he sent the very next day i,e, 16-6-1980, in which he had clarified "I never appointed any defence counsel nor authorised any lawyers to make any statement to Court on my behalf'. He had further stated in the telegram "I have not boycotted proceedings". He had also repudiated, by the same telegram, the appointment of a counsel on his behalf. It is, therefore, surprising that the Special Court instead of taking notice of the contents of the telegrams had proceeded with the further recording of evidence against the appellant with the help of the defence counsel appointed by it. The appellant made a further attempt to press his objections by moving his application dated 5-7-1980. But the Court took it to mean that the appellant "has given a second thought to the matter and has shown his inclination to participate in the proceedings". This shows that the learned Special Court had not disabused his mind of the erroneous assumption that the appellant had boycotted the proceedings and observing that had the provision of Article 6(3) "not been pressed into service. The case could have lingered on and continued for an unimaginable long period", rejected the appellant's said application, as also his prayer for recalling the prosecution witnesses whose evidence had been recorded in his absence.
100. The Court's assumption that the two Advocates represented the appellant and its having acted on their statements is, therefore, not only totally without basis and in utter disregard of the appellant's pleas but also contrary to the law. According' to subsection (3) of section 22 of the Legal Practitioners and Bar Councils Act, 1973 "no Advocate shall appear or act for any person in any Court or Tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or some other person duly authorized by him to make such appointment, and such document has been filed in Court or Tribunal". It is an admitted position that neither Khan Bahadur Khan nor Mr. Masood Kausar had been appointed by the appellant by a document in writing signed by him or by his recognized agent or some other person duly authorised by him to make such appointment nor was any such document ever filed in the Special Court. Hence, in acting upon their statements, the Court acted in disregard of an express statutory provision. It may be mentioned that the only situation in which an Advocate may be allowed to appear for an accused without such an authority is where the accused is in custody and the Advocate gives an C undertaking to file the documents required under subsection (3) of section 22 of the Act which was also not the position here. In acting upon the statements of the two self-styled Advocates of the appellant, the learned Special Court committed a serious legal error.
101. ' Another illegality committed was that the Special Court did not give the counsel so appointed by it, time to prepare the case and seek instructions from the appellant, because the Court had asked him to conduct the D cross-examination of Manzoor Hussain (P. W. 23) the same day of his appointment and had proceeded with further recording of evidence from the next day.
102. ' The practice of appointing a counsel for the defence on the day of trial was condemned by a Division Bench in Khadim v. Crown and the necessity of granting requisite opportunity for preparation of the case was stressed. In Muhammad Sharif v. State it was held that the right to be defended by a Pleader shall not be abridged by appointment of a counsel a day or two before the trial. In Emperor v. Sukh Dev a Division Bench had expressed that "where the accused is not represented by a pleader and is unable to attend personally being ill, the Court cannot proceed with the case by assigning him a pleader, for such a counsel is neither chosen by him nor given to him with his express or implied consent and in fact does not really represent him and no Court has any authority to force upon a prisoner the services of a counsel if he is unwilling to accept them".
103. The learned Judges made the further significant observation in this connection:- "It Must be remembered that a pleader is the representative. Of the persons for whom he appears, consequently the acts done by the former are, subject to certain recognized principles, binding1 2 3 upon the latter. The employment of counsel places him in a confidential position, but no such relation can be established between a client and a counsel wile is neither chosen by him nor given to him with his express or implied consent, but assigned, without his sanction by the Court at the instance of the prosecution."
104. ' The position could have been rectified by recalling the witnesses for which the appellant had expressly prayed to the Court but this was refused, with the result that the appellant was denied proper opportunity of cross-examining the prosecution witnesses from P. W. 23 to P. W.
105. 31.
106. ' The other reason, which prevailed with the learned Special Court for appointing an Advocate for defending the appellant was his impression that the appellant had been guilty of seeking too many adjournments and thereby impeding the course of justice. This impression does not appear to have been well-founded. We have gone through the proceeding sheets of the trial Court from the very beginning and find that adjournments had been given at the instance of both sides and were also necessitated by the fact that the venue of the trial had been shifting from one place to another. The perusal of the record shows that the adjournments had been by mutual consent of the parties and with permission of the Court and the Court at least had never raised a grievance on that account at any time before passing the impugned order. We observe that on 10-2-1980 when the Court had resumed the trial' at Peshawar after its session at Karachi, the case was adjourned in routine after recording the statement of a witness. On 11-2-1980, the examination in- chief of two witnesses was recorded and their cross-examination was deferred for the next day as the appellant stated that he had not been able to study the documents concerning these witnesses. On 12-2-1980 the cross-examination of a witness was completed when the appellant sought adjournment on account of indisposition, to which there being no objection was allowed.
107. On 13-2-1980, the examination-in-chief of two further witnesses was recorded, after which the appellant sought time to prepare for their cross-examination "as the documents concerning these witnesses are not available with him". No objection was raised to it and the case was accordingly adjourned to 15-3-1980. On this latter date, the trial was, at the request of the appellant, further adjourned to 25-5-1980, to be resumed at Quetta, it is to be noted that the appellant had in the meantime, i,e, on 5-3-1980, filed a writ petition before the Baluchistan High Court, challenging the competency of the Special Court. This fact is duly noted in the preceding sheet of 17-3-1980, when it was ordered. "The case will be taken up for further proceedings and will be fixed in due course.
108. Registrar to collect information from Baluchistan High Court as to the present position of the writ petition filed by the accused". However, by order dated 29-5-1980, the Court fixed the case for 14-6- 1980, at Peshawar and not at Quetta as had been earlier ordered. The appellant had started on his journey to attend Court at Peshawar but had for reasons stated in his telegram dated 14-6-1980 to break journey at Lahore and could not make his appearance at Peshawar on that date.
109. The above resume of the factual background, in which the order dated 15-6-1980 was passed, does not, in or view, constitute sufficient or valid 1 basis to justify the view that the appellant had been guilty of seeking numerou adjournments and thereby impeding the course of justice. It is significant that no such reason for the appointment of the counsel had been given in the Court's telegram dated 17-6-1980, addressed to the appellant in reply to his telegram of 14-6-1980. The only reason advanced by the Court was the statement made by the two Advocates that the appellant would not participate in the proceedings any more. This the appellant had promptly repudiated by his telegram sent on 18-6-1980.
110. ' In view of the foregoing discussion we are of the considered opinion that there was no warrant for appointing a counsel for the appellant in the first instance and later on for refusing the appellant's prayer for recall of the witnesses examined in his absence and not cross-examined by him. The right to cross-examine a witness of the prosecution is an important and vested right of the accused. The right is absolute and indefeasible a denial of the same would not and entitle the Court to act on the evidence of witnesses not allowed to be cross-examined by him. According to Halsbury any party is entitled to cross-examine any other party who gives evidence. Or his witnesses ; and no evidence affecting a party is admissible against that party unless the latter has bad an opportunity of testing its truthfulness by cross examination" (Laws of England 3rd Edition, Volume 15, para. 800 at page 443). It has similarly been commented in Monies Law of Evidence (Pakistan Edition (1974), Volume II, at page 1476) after noticing a number of decisions by Courts of law that "cross-examination being essential for the discovery of truth, it is necessary to the admissibility of oral testimony that opportunity to cross-examine the deponent should hav L been given. Where no opportunity to cross-examine the deponent has been given, the testimony would be inadmissible". In this case, it was the appellant alone, as he was conducting his own case, who had the right to cross-examine the P. Ws. As he was illegally denied the opportunity to himself cross-examine the witnesses we are constrained to hold that the evidence of P. W. 23 to P. W. 31 is not admissible against the appellant. On this finding practically no evidence to prove the charge of rigging the elections by the appellant remains available on the record.
111. ' We may now turn to the other submission urged by the appellant that even if the testimony of the witnesses who were examined in his absence and were cross-examined by a counsel not authorised, in law, to represent him is not discarded and the evidence as it stands on the record, is considered to be legally admissible and taken on its face value even then the prosecution has not been able to establish any of the charges levelled against him.
112. ' A perusal of the charge-sheet shows that the prosecution bad made the following allegations against the appellant (0 that he pressurized Government servants to manipulate the elections in his favour;
(ii) that he get polling staff specifically selected for the purpose of rigging the elections in his favour through such staff;
(iii) that he manoeuvred to secure a large number of votes from the polling stations where no polling was actually held;
(iv) that he got the result of the election withheld on 7th March, 1977 as the process of rigging was not complete in the Scouts Fort at Pishin on that day; and (v)that he obtained false and fake result declared in his favour.
113. ' But on going through the evidence as well as the discussion thereon by the Special Court, it appears that the charges reproduced at Nos. (ii) and (iv) above were more or .Ass abandoned and the prosecution only pressed charges mentioned at Nos. (i), (iii) and (v). The findings on which the learned Special Court based the appellant's conviction also relate only to the last mentioned three charges.
114. ' A perusal of the impugned judgment shows that while appraising the prosecution evidence the Special Court proceeded to divide it into three parts, which it has mentioned as relating to "three- stages". It has been observed by it in paragraph 36 of the impugned judgment that:- "36. For the proper appraisal of evidence in this behalf, the prosecution can be divided into three stages :- ' The first relating to pre-election period.
115. ' The Second relating to the happening on the polling day i, e. 7-3-1977 upto 4 p.m.
116. ' The third after the polling was over, upto the announcement of the result on 8-3-1977."
117. ' As regards the first state, the learned Special Court has dwelt on .Appellant's close association with the party in power and has referred, in this connection, to the evidence showing that he had been appointed as the Attorney-General for Pakistan by Mr. Bhutto on the very first day of the assumption of his office as Prime Minister and was given the rank of a Cabinet Minister that Mr. Bhutto wanted to appoint him as the Minister of Justice in his Cabinet but he declined the offer because he had lost the election in 1970; that through an amendment in the Constitution it was made permissible for the Attorney-General to contest for a seat in the National Assembly; that the Prime Minister gave him the Party Ticket for contesting the election to a seat in the National Assembly although he had not even applied for it; that since Mr. Yahya Bakhtiar had been nominated for that seat it was considered a very prestigious seat for the P P P; that the then Chief Minister of Baluchistan Sardar Muhmmad Khan Barozai had accompanied the appellant to his constituency during the election campaign on 2/3 occasions and Sardar Ghaus Bakhsh Raeesani, the then President of P P P in Baluchistan had similarly accompanied him in order to canvass for him.
118. ' The learned Special Court want on to observe in paragraph 38 of his judgment that "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 (Mr. Bhutto's) anxiety to secure the success of the accused is established from the statement of Islam Bahadur Khan (P. W. 26) that the late Mr. Z. A. Bhutto, the then Prime Minister, visited Pishin before the elections and projected the personality of Mr. Yahya Bakhtiar in a public meeting and declared openly that he was the only capable man to represent the people of 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.
119. The Returning Officer and other polling staff were also present in the meeting".
120. ' The Special Court concluded further (in para 42 of its judgment) that it showed "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".
121. ' It may be observed that for this conclusion, the learned Special Court relied mainly on the facts disclosed by Mr. Yahya Bakhtiar himself during his statement at the trial. A reading of his statement would show that he had intended to demonstrate thereby that it was not he who was keen to participate in the elections and although after having been given the Party ticket he worked for his election but he was not so anxious to win as to have resorted to instigating rigging for that purpose and that it was, in fact, the late Prime Minister, who had made it a matter of his personal prestige to secure the success of the appellant from that particular constituency. But, ironically, the learned Special Court appears to have drawn an absolutely opposite conclusion therefrom, namely, that the appellant was so keen to win the election that he did not hesitate using such unfair means as getting the Prime Minister of the country to visit Pishin and address a public meeting to boost his candidature, and the fact that Mr. Barozai, the then Chief Minister of the Province and Mr. Raisani, the Provincial Party leader toured the appellant's constituency to canvass for him were proof of the exercise of undue influence.
122. The conclusion is, however, unwarranted, because it is common knowledge that in all countries where elections are held on Party-basis, as for example, in England or India, it is quite usual for the Prime Minister who is generally also the Head of the party in power, to tour and address public meetings in different parts of the country in support of their Party's candidates. Similarly, it is a generally accepted practice for the Party high-ups and office-holders to go and canvass in favour of their candidates and it has never been considered as casting any adverse reflection on the conduct of the candidate.
123. ' After considering the evidence led by the prosecution and the statement of the appellant with regard to the so-called "first stage," we are of the opinion that it does not in any way advance the prosecution case and is not even relevant to the charges sought to be proved against the appellant, The above-mentioned evidence, in fact, only goes to show the high regard in which the late Prime Minister held Mr. Yahya Bakhtiar and, if anything, supports the assertion of the appellant that it was the Prime Minister who was keen that he should succeed in the election and exerted his influence in this behalf.
124. ' As a matter of fact the learned Special Court has made observations to this effect in paragraph No, 38 reproduced above. In any case, the aforementioned evidence does not in any way go to show that the appellant had directly or indirectly indulged in rigging.
125. We now come to the second stage, namely, the rigging done on 7-3-1977, during the polling itself.
126. The case sought to be made out by the prosecution briefly, is that the one Malik Behram Khan, a notable of Pishin, was appointed by Mr. Yahya Bakhtiar appellant as his polling agent for. Polling Station Farakhi, that the Chief Secretary and the Commissioner Quetta directed Mr. Muhammad Afzal Luni (P. W. 25) the Deputy Commissioner of Pishin, to call and request Malik Behram Khan to help in rigging the election in favour of the appellant ; that the plan hatched was that than presiding officers of Polling Station Urak and Farakhi should be abducted, alongwith their election material, including ballot papers and ballot boxes, and handed over to Malik Behram Khan ; that Mr. Islam Bahadur, Commissioner Quetta, had allocated 4 Tehsildars, including Abdul Ghani (P. W.
127. 20), and Jamal Khan Jaffar (P. W. 21), to help the Deputy Commissioner in the abduction ; that in accordance with the aforesaid plan the above-named two Tehsildars abducted Mr. Parvez Mahmood (P. W. 3) the Presiding Officer of Polling Station, Urak (Polling Station No, 69) and Ch. Muhammad Anwar (P. W. 4) Presiding Officer of Polling Station, Farakhi (Polling Station No, 68) along with their staff, while they were proceeding to their polling stations on the 6th of March, 1977 and were tak-en in their Jeeps to a place called Band Khushdil Khan, where they were handed over to Malik Behram Khan and his companion Dur Muhammad Khan, Risaldar ; that Behram Khan then took them to his own house to spend . The night, where they were kept in virtual imprisonment and next morning i,e, on the election day (7-3-1977) they were threatened by Malik Behram Khan and his men to prepare false votes in favour of the appellant ; that they opened the ballot boxes under compulsion and started fabricating bogus votes in favour of Mr. Yahya Bakhtiar, with the help of Behram Khan and his men. A large number of bogus votes were thus prepared and shown as having been cast in appellant's favour. Thereafter, during the night between 7th and 8th of March, 1977, Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (N. W. 4) were taken back on Jeep to Pishin Fort, where the 'third stage' of the rigging operations is stated to have been carried out.
128. ' The prosecution produced 13 Presiding Officers to depose about the conditions prevailing at the Polling Stations on the elections day. Out of these, Dr. Ghulam Muhammad Shah, P. W. 7 (Presiding Officer of Polling Station Spina Taza), Mr. Jamil Ahmad P. W. 8 (Presiding Officer of Polling Station Kaza Uela), Syed Abid Shah P. W. 10 (Presiding Officer of Polling Station No, 25), Noor Muhammad Hamdan, P. W. 11 (Presiding Officer of Polling Station No, 60), Tanvir Ahmad P. W.. 12 (Polling Officer of Polling Station No, 66), Muhammad Siddique Qamar, P. W. 13 (Polling Station Pir Ali Zar), Mr. Firdaus Anwar P. W. 14 (Polling: Officer of Polling Station Murda Karez) and Sh. Masood Ahmad P. W. 16 (Polling Officer of Polling Station No, 23), have only stated that they were in charge of their respective Polling Stations- on the polling day ; the Oiling went on smoothly and the polling hours they counted the votes ; prepared the relevant documents and then carried the bags containing the votes to the Pishin Fort, where the final counting had to be done. They were probably expected to say something which would show Mr. Yahya Bakhtiar's involvement in the rigging but have, in fact, stated nothing whatsoever against him. As such, they have not, in any way, advanced the prosecution case and their testimony has merely burdened the record unnecessarily.
129. ' Five other Presiding Officers, namely, Mr. Ata Miran Mirza P. W. 9 (Presiding Officer of Polling Station No, 53), Mrs. Zohra Durrani P. W. 15 (Presiding Officer of Polling Station No, 56), Agha Jan Khan P. W.
130. 17 (Presiding Officer of Polling Station No, 51), Mr. Muhammad Akbar Khan P. W. 18 (Presiding Officer of Polling Station No, 22) and Mr. Abdul Ghafoor P. W. 19 (Presiding Officer of Polling Station No, 57), have stated about the pendamonium that prevailed at their respective polling stations and the rigging done by Pakhtoon Khawah in favour of their candidate Mr. Mahmood Khan Achakzai. The learned Special Court has taken notice of this conduct of Pakhtun Khawah and has reproduced the relevant portions of the statements of most of the aforementioned five witnesses in the impugned judgment.
131. ' Ata Miran Mirza (P. W. 9) has stated during his cross-examination that :- .......................... On 7th March, 1977, i,e, on the day of polling, I sent a complaint (Exh 22) to the Returning Officer. It is in my hand. It is correct that at about 10-00 a.m. a mob rushed into the polling station who broke windows and doors and crowded the polling booths. I was sitting in my room. The mob rushed into the polling booths. There was a lot of rush outside. I came out of the room and went to the office of Headmaster wherefrom I rang up Assistant Commissioner for help in controlling the crowd. The supporters of Pakhtun Khawah's candidate had dominated the situation and were allowing voters to cast their votes. I do not know whether the levy men were supporting the Pakhtun Khawah's candidate, but due to the rush of the people they were helpless." "It is correct that a complaint was made to me by the Polling Officers that they were harassed and manhandled by the crowd who rushed into the polling booths and that is why I asked for help to maintain law and.
132. Order and security of my staff. The Polling Officers remained inside the polling booths on their seats and they never came out of the polling booths. After his arrival, the Assistant Commissioner was also manhandled by the people present there "I have also stated before the Provincial Election Commissioner that Pakhtum Khawah supporters had taken full advantage during the period from 10-00 a.m. To 1-30 p.m. As lawlessness was let loose during that period."
133. ' Mrs. Zohra Durrani (P. W. 15) Polling Officer of Polling Station No, 56, has stated that Polling started exactly at 8-00 a.m And continued for about an hour but :- "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 humiliated us. As a result, two of my polling officers 'got fainted. The Goonda elements were most probably Pakhtun Khawah 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, 4-00 p.m. The militia and the levy force were also unable to protect us' against those Goonda elements. They seemed to be helping the Pakhtun Khawah Party's candidate. Before 4-00 p.m. A. C. And Tehsildar visited the polling station. They were appraised of the situation. They were also beaten by those Goonda elements. Then at 4-00 p.m. Many lady voters waiting outside were not allowed to cast 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 exhibit, although I had as a matter of fact conducted the counting myself "There were men (who were) most probably from the Pakhtun Khawah's side had snatched the rubber stamps of the ballot papers from us and were thus marking them without even going into the screened of ballots..."
134. ' She also complained in writing to the Returning Officer about the ordeal through which she and her staff had to pass and expressed their inability to perform their functions during the forthcoming Provincial Elections on the 10th of March, 1977. In her letter to the Returning Officer she wrote as follows . Unfortunately, after about an hour or so the Goonda elements overpowered and humiliated me and my colleagues, that is, the lady assistant presiding officers and the lady polling officers and on the basis of intimidation took over the polling station. The levy and Militia were ineffective and were unable to protects. We were in such circumstances forced to give ballot statement at the choice and dictation of the said Goonda elements.
135. ' Sir, we all the ladies at the polling station on account of the situation created by the Goonda elements were fear-stricken and two of my colleagues fainted.
136. ' It may also be mentioned that the men of the Pakhtun Khawah side, present there, were continuously threatening the polling staff with open knives.
137. ' In such circumstances or life and honor are unsafe and therefore we are unable to perform or duties on the 10th March, 1977."
138. ' Mr. Agha Jan Khan (P. W. 17) Presiding Officer of Polling ' Station No, 51 stated that polling started at 8-00 a.m. And : "After about 200 votes were cast when the door of the Town Hall was broken by voters and they forcibly took possession of the polling station. They were all voters of the area. I went to a room close to the Hall and contacted Assistant Commissioner, Chaman on telephone who was not present and his Reader told me that I myself was to take care of the law and order situation, as Assistant Commissioner was not present in the station. About an hour after, Assistant- Commissioner, Chaman came. The people in the presence of Assistant Commissioner were giving abuses and were casting their votes in the ballot boxes. The police had already left the polling station. We all were passively watching. The rubber stamp and other material were also forcibly taken from us by those persons. The polling was closed at about 4-00 p.m. In the presence of some of the polling agents of the candidates. The polling agents of Mahmood Khan Achakzai and Ghulam Muhammad were present there. The polling agents of Yahya Bakhtiar Khan and also that of Agha Wahid were thrown out of the polling station by those persons who had entered into the Town Hall. I told the Assistant Commissioner, Chaman that as no polling was held in my view, hence I was not prepared to count the statement. The polling agents of Mahmood Khan Achakzai and Ghulam Muhammad compelled my staff to count the votes and prepare the count statement."
139. ' Mr. Muhammad Akbar Khan, District Population Planning Officer (P. W. 18) was the Presiding Officer at Polling Station No,
22. He has stated that polling started at his polling station at 8-00 a.m. But "after an hour of casting of votes, an unruly mob broke into the polling station. The majority of them belonged to Pakhtoon Khawah Party."
140. ' From the aforementioned statements of P. Ws. 9, 15, 17 and 18, it is established that the Pukhtoon Khawah i,e, the supporters of Mahmood Khan Achakzai had brazenly used physical force, captured some of the polling stations, intimidated the official polling staff, cowed down the polling agents of the opposing parties and indulged in rigging in favour of their candidate. We notice further that these witnesses, too, have not said any thing whatsoever implicating Mr. Yahya Bakhtiar or alleged direct or indirect rigging against him. As such, even their testimony does not in any way advance the prosecution case against the appellant. If at all, they have made out a case of 'misconduct' by the Pukhtoon Khawah Party.
141. ' The only witnesses produced in support of the prosecution relating to the second stage i,e, the aforementioned conspiracy to abduct the Polling Officers of Polling Stations Nos. 68 and 69, through Behram Khan Achakzai and the fabrication of false votes in appellant's favour by Behram Khan etc. At his house are Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4), Malik Abdul Ghani Tehsildar (P. W. 20) and Jamal Khan Jaffar (P. W. 21).
142. ' Parvez Mahmood (P. W. 3), who was the Presiding Officer for Polling Station No, 69, Urak, has stated that after obtaining training at Pishin he and Ch. Muhammad Anwar (P. W. 4), were asked to go to Chaman to collect the polling material for setting up their polling stations. Their polling staff stayed back at Pishin and was to he picked up by them on their way to their respective polling stations (i,e, that Urak and Farakhi), viz. Chaman. On the morning of 6th March, 1977, a bus was provided to them for carrying the male and female staff co their respective polling stations. They were also accompanied by two levymen.
143. ' He has stated further that at a diversion, before reaching Pishin, their bus was stopped by the two Tehsildars namely Malik Abdul Ghani (P. W. 20) and Jamal Khan Jaffar (P. W. 21) who were travelling in separate Jeeps. They asked them to get down, leaving their tents etc. In the bus but to carry the polling material and ballot boxes in their Jeeps. They (i,e, P. Ws. 3 and 4) asked Jamal Khan Jaffar, Tehsildar, as to why they had been stopped and were not allowed to proceed to Pishin to collect their polling staff which was waiting for them who told them to keep quiet. From the diversion, they were driven by the two Tehsildars in their Jeeps to a place called Bund Khushdil Khan.' Soon after they reached there, an old man turned up and introduced himself as Malik Behram Khan Achakzai.
144. Another man by the name of Dur Muhammad Risaldar, also came there. The lady staff and the two levymen accompanying the Presiding Officer, were sent back, but they i,e, Parvez Mahmood and Ch. Muhammad Anwar, P. Ws. Were taken in the said Jeeps in the company of Behram Khan and Dur Muhamad Risaldar, to the house of Behram Khan and spent the night there. Parvez .Mahmood (P. W. 3) has stated that :- "We were not allowed to go out. We have compelled (on the next day) to open the ballot boxes and under the orders of Behram Khan we started striking off the names of voters from the electoral rolls and entering their particulars on the counterfoil of the ballot papers. Malik Behram Khan alongwith 8 men present there started marking the ballot papers ; polling stamps taken out from the polling bags in favour of the P. P. P. Candidate (Mr. YahyaBakhtiar). Thumb-impressions were affixed on the counterfoil by Behram Khan and his men."
145. ' During the cross-examination, however, this witness admitted that :- "We were never administered any warning threat by Dur Muhammad and Malik Behram Khan."
146. "It was Jamal Khan Jaffar Tehsildar, who told us at Bund Khushdil Khan to act in obedience with the orders of Malik Behram Khan."
147. ' The second witness on this aspect of the prosecution case, namely, Ch. Muhammad Anwar (P. W.
148. 4), Presiding Officer of Polling Station No, 68, has given a somewhat similar version of their being taken away by the two Tehsildars from the diversion and driven to Bund Khushdil Khan in their Jeeps, from where Malik Behram Khan took them to his house. While Parvez Mahmood (P. W. 3) has stated that Behram Khan had taken them to Urak. This witness has stated that he had taken them to Farakhi. He has also stated that on the morning they did not set up any polling station and that votes in favour of Mr. Yahya Bakhtiar were fabricated by them in the house of Behram Khan with the help of latter's men.
149. ' It is significant that during his cross-examination this witness has stated that Malik Behram Khan was himself a candidate for a seat in the Provincial Election Assembly in that elections, in which Mahmood Khan Achakzai and some others were his opponents.
150. ' The prosecution also produced the two Tehsildars, namely, Malik Abdul Ghani (P. W. 20) and Jamal Khan Jaffar (P. W. 21). But we notice that instead of supporting the version given by Parvez Mahmood P. W. 3 and Muhammad Anwar P. W. 4 with regard to the above-mentioned story of their having been abducted by the said two Tehsildars and delivered to Behram Khan for the purpose of fabricating bogus votes in favour of the appellant, they have actually contradicted it in certain material respects.
151. ' No doubt, Malik Abdul Ghani P. W. 20 has stated that he and Jamal Khan Jaffar had taken Parvez Mah mood and Ch. Muhammad Anwar P. Ws. On their Jeeps to Bund Khushdil Khan from where they were taken by Behram Khan to his house. He has also stated that he had been directed by the Deputy Commissioner to go to Pishin to collect the staff who were to arrive through a bus. But he has explained as to why the Deputy Commissioner had told them to do so in the following words :- "There was heavy snow fall on the way from Farakhi to Chaman. Therefore, the polling staff was to be taken to Bund Khushdil Khan though they were supposed to go via Chaman."
152. Jamat Khan Jaffar, Tehsildar (P. W. 21) has supported this version during his examination-in-chief, in the following words :- "I had not yet left for Barshore when I was told that the p011ing staff of Farakhi, who was supposed to go viz. Chaman could not reach there due to heavy snow-fall and so I should receive them at Sarana and take them to Bund Khushdil Khan."
153. ' From the above-noted explanations it is evident that there was no conspiracy to abduct as alleged and that the real reason for sending two Tehsildars to take Parvez Mahmood and Ch. Muhammad Anwar P. Ws. To Bund Khushdil Khan was not at all what the prosecution has sought to make out. It is also noteworthy that Jamal Khan Jaffar (P. W. 21) has given a complete lie to Parvez Mahmood (P. W. 3) and Ch. Muhammad Anwar (P. W. 4) by categorically stating in his cross- examination that :- "I never abducted or kidnapped the two Presiding Officers, Parvez Mahmood and Ch. Muhammad Anwar. It is incorrect to say that after the arrival of the Presiding Officers at Sarana they asked me about their destinations. It is also incorrect that I asked them to keep quiet. It is also incorrect that I asked them to go to Pishin and collect the polling staff from there, I never directed them to act under the orders of Malik Behram Khan. I also never asked them, to act directly under the orders of Malik Behram Khan. Nobody asked me to do rigging, nor I have put any pressure upon anybody to do so."
154. This, by itself, is sufficient to take the wind out of the prosecution case as far as the 'second stage is concerned. But it may also be mentioned that the act of rigging done by Behram Khan through the Presiding Officers does not by itself establish that Mr. Yahya Bakhtiar was in any way responsible for the same. As is apparent from the statement of Ch. Muhammad Anwar (P. W. 4), Malik Behram Khan, who is also an Achakzai, was himself contesting the election for a seat with Provincial Assembly, in which he was being opposed, inter a/ia, by Mahmood Khan Achakzai. Obviously there was political rivalry between the two Achakzais and Behram Khan had his own motive to ensave the defeat of Mr. Mahmood Khan Achakzai). As such he cannot be presumed to have acted in order to advance the interest of Mr. Yahya Bakthiar, unless of course he was himself produced by the prosecution to say so at the trial. It may be mentioned that Mr. Muhammad Afzal Luni (P. W. 25) Deputy Commissioner, Pishin, has explained the reason for asking Malik Behram Khan's help. He (the Deputy Commissioner) has stated that on 6th of March, 1977 :- "I was informed by Assistant Commissioner Chaman Mr. Nayyer Agha that due to bad weather the road was not motorable upto two polling stations, namely, Farakhi and Urak. He told me that polling staff is sent to the said polling stations via Pishin. In the meanwhile, when the staff had not actually reached there, I contacted Malik Bahram Khan, a notable of Farakhi in order to ascertain whether he could help us in transporting the staff to the polling station in question."
155. ' This help was apparently needed because of the difficulties created by the heavy snow-fall blocking the read to Chaman. This not only shows that Parvez Mahmood and Muhammad Anwar P.
156. Ws. Had not been abducted by the Tehsildars and taken to Bund Khushdil Khan, as a result of any conspiracy, but. They had gone there because of the heavy snow-fall which had made it necessary to change their route. No doubt, the Deputy Commissioner had sought Behram Khan's help in transporting them safely to their polling station but the fact that Behram Khan did not permit the two Polling Officers to set up the polling station has not been shown to be the result of any conspiracy between the Deputy Commissioner and Behram Khan. This view finds support from the following statement of the Deputy Commissioner - "I sent a levy Jamadar in any official vehicle to Farakhi carrying my direction to Malik Behram Khan to establish Polling Stations at Farakhi and Urak and get the staff seated there."
157. No doubt, he also asked Behram Khan to man oeuvre more votes in favour of the appellant but this too does not necessarily show Mr. Yahya Bakhtiar's p complicity in the matter, because the Deputy Commissioner has himself admitted in the course of his statement that : "Mr. Yahya Bakhtiar never approached me to manoeuvre to cast more votes in his favour."
158. ' The learned Special Court held the appellant to be guilty for Malik Behram Khan's doings at his house on the basis of an assumption that since he was one of the appellant's polling agents he must have done so on his instructions. This assumption, we are afraid, is wholly unwarranted. The fact that Behram Khan was the appellant's polling agent, may render the appellant responsible for his actions as far as result of the election is concerned and the evidence of rigging done by him could be used for getting the appellant's election declared void through an Election Petition. But here the question is whether the candidate can be held liable for a criminal offence simply because one of his agents indulged in electoral misconduct ? It is manifest that a candidate can never be made criminally liable for the acts of his polling agent and held guilty of a criminal offence unless it is showh through positive evidence that he had committed the criminal acts in question at the candidate' instigation or instructions. As already observed, Behram Khan had sufficient motive of his own to see Mahmood Khan Achakzai defeated in the election and had apparently acted on his own volition and not because of the Deputy tat Commissioner's request to secure more votes in favor of the appellant. Not having examined Behram Khan, the prosecution has failed to establish his identity qua the thumb marks on the rigged ballot papers which were opined to be of one person by the expert.
159. ' After carefully considering, the evidence of the aforementioned witnesses we are of the view that the prosecution has clearly failed to prove the charges against the appellant relating to the 'second stage' as well ' We now take up what has been termed by the learned Special Court as the 'third stage', namely, the events relating to rigging that took place after polling was over, i,e, the pressure put by the appellant and his Election Agent on Mr. Islam Bahadur, Commissioner Quetta ; the preparation of bogus votes in favour of the appellant and illegal cancellation of the votes cast in favour of Mahmood Khan Achakzai at the Pishin Fort on the 8th March, 1977 by certain Government Officials under the direction and supervision of the Commissioner.
160. ' The prosecution case with regard to this stage is that Mr. Islam Bahadur Commissioner Quetta came to Pashing Rest House on the morning of 7th March, 1977 (i,e, the election day) to look after the law and order situation and stayed at the Rest House. The Chief Secretary and the I: G. Police also came to Pishin by helicopter and visited him there for a short while and then flew away. After.
161. The polling results started pouring in Mr. Yahya Bakhtiar rang up the Commissioner at the Rest House twice during the night, on a direct line, and asked about the results. When informed that his success in the election appeared to be remote he got annoyed and threatened the Commissioner with dire consequences and asked bun to do everything possible to tilt the results in his favour.
162. According to the prosecution case Mirza Munawar D. W. 5, the Election Agent of the appellant, had also reached Pishin to instigate the officials to manipulate the election results in appellant's favour.
163. After he had received the telephone calls the Commissioner discussed the matter with his staff present there. When Mr. Muhammad Afzal Luni, Deputy Commissioner (P. W. 25) returned from Barshore, the Commissioner also told him about the telephone calls and discussed the situation with him informing him about the pressure being put on him to tilt the results in appellant's favour.
164. The Commissioner and other officers then moved to the Pishin Mess where it was ultimately decided to do rigging. Thereafter, on the morning of 8th of March, 1977, they moved to the Pishin Fort which was considered a safe place and the rigging operation was carried out there by the Government officials and the polling officers under the supervision of the Commissioner himself, while Mirza Munawar was also present there. In support of its case on this aspect of the matter, the prosecution has produced two witnesses, out of whom Mr. Islam Bahadur (P. W. 26), Commissioner, Quetta, is the main witness. Their statements shall be discussed presently.
165. ' It is noteworthy that the defence did not deny that Mr. Islam Bahadar, Commissioner Quetta and other officers mentioned by him had done rigging at the Pishin Fort, but its case was that it was not the appellant who had instigated the rigging and that Mr. Islam Bahadar had carried out the same on the instructions of the Chief Secretary, who was under the pressure from the Federal Government at Islamabad to ensure the success of the ruling party's candidates, and, secondly, that Mr. Yahya Bakhtiar had never telephoned the Commissioner at the Rest House during that night ; that it was, in fact, the Chief Secretary who had telephoned him on being pressurized by the "highups" in Islamabad and that in order to protect his service, the Commissioner had merely substituted the appellant's name for that of the Chief Secretary.
166. ' The defence candidly admitted that Mr. Munawar Mirza, the Election Agent had gone to Pishin but this was only to find out the result of the elections, as both the Commissioner as well as the Returning Officer were present there and that he had never attempted to induce or influence the Commissioner or any other officer to do rigging.
167. ' In support of its case, the defence produced 6 witnesses. Mr. Muhammad Nasim Khan (D. W. 3) an S. D.
0. In the office of the Divisional Engineer (Telephones), Quetta. Was produced to show that no direct telephone line had been seat up for the Commissioner Quetta Division in the Pishin Rest House in the beginning of the month of March, 1977 and that if a person wanted to talk from Quetta, to some one in the Rest House at Pishin, a trunk call had to be booked for the purpose from the relevant telephone exchange. The defence also produced Mr. Jalil Hussain (D. W. 4), who is the Accounts Officer (Revenue) in the Telephone Department at Quetta, to show that no trunk call had been booked from the appellant's telephone in Quetta to Pishin in the month of March, 1977. It also produced Mr. Munawar Mirza, as D. W. 5, at the trial. He has deposed that he had gone to Pishin merely to find out the result of the election and vehemently denied the allegations that he had, instigated the rigging made against him as well as against the appellant. Mr. Yahya Bakhtiar also appeared as his witness at the trial and gave his own version. As already mentioned, the star witness with regard to the 'third stage' is Mr. Islam Bahadur, P. W. 26, the then Commissioner of Quetta is the solitary prosecution witness who has named Mr. Yahya Bakhtiar as the person who had done anything which may be said to constitute instigation to rigging. No other prosecution witness has made any allegation whatsoever, against the appellant in this respect. In fact some of them have exonerated him of all blame.
168. ' Mr. Islam Bahadar (P. W. 26) has stated that after the election results started pouring-in on the evening of 7th March, 1977, Mr. Yahya Bakhtiar rang him up at the Pishin Rest House where he (i. e.
169. The Commissioner) was staying and wanted to know the results of the election. On the basis of whatever results had been received he informed the appellant that his position was very weak and the possibility of his success was remote. But the appellant was adamant and told the Commissioner that come what may the result must be shown in his favour Mr. Munawar Mirza (D.
170. W. 5) the Election Agent of the appellant, also reached the Rest House and the Commissioner tried to explain the difficulty to him. After sometime, Mr. Yahya Bakhtiar again contacted him on telephone and directed him to show the result in his favour. The Commissioner tried his best to explain to him (on the phone) and to his agent Mr. Munawar Mirza, but they would not listen to any reason. On the contrary, Mr.Yahya Bakhtiar got annoyed and threatened him with dire consequences. The witness has stated that :- "All this time I was at the Rest House election staff, army officers and other officers were present."
171. ' He stated further that :- "I tried to resist the pressure and consulted my staff present there. Out of compulsion we had to agree to rig the election."
172. ' Later that night, after the two telephone calls had been received, Mr. Muhammad Afzal Luni, the Deputy Commissioner (P. W. 25) also returned from Barshore and met Mr. Islam Bahadar at the Rent House and the latter discussed the situation with him. In this connection, Mr. Islam Bahadur has stated that :- "I discussed the situation with him and the amount of pressure put on the administration to rig the election in favour of Mr. Yahya Bakhtiar."
173. ' Obviously, he discussed with his staff the alleged demand and threats by Mr. Yahya Bakhtiar. At first his staff was not willing to mount a rigging operation but subsequently agreed to it, on pressure being put on them by Mr. Munawar Mirza. In this respect, the Commissioner's own words are :- "My staff were not willing to do rigging operations. But Mirza Munawar, 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". ...
174. ' The Commissioner apparently felt helpless, for he has stated that :-"Finding no way out and realising the adverse consequences as civil servants we were forced to do rigging."
175. ' The decision to do rigging took place at the Pishin Mess where he and other officers had shifted sometime after the mid-night. On the morning of the 8th March, 1977, all of them moved to Pishin Fort which was considered a safe place for the operation. On reaching there, the polling staff and other officials got busy in manipulating the results, ' Mr. Islam Bahadar also stated that there was a special direct telephone line/connection set up between Pishin and Quetta and that is why he could talk to the Chief Secretary and the appellant at any time.
176. ' The main points that emerge from the statement of Mr. Islam Bahadar as regards the 'third stage' of the alleged rigging may be enumerated as follows :-
(i) that Mr. Yahya Bakhtiar personally rang him up twice during the night between 7th and 8th March, 1977 at the Pishin Rest House and on being informed by the Commissioner that his chances of winning were slender, the appellant asked his to rig the election in his favour and ensure his success at all costs and threatened him with dire consequences in case be failed to do so.
(ii) that some Government officers who were members of his staff were also present at the Rest House at that time and after receiving the telephone calls the Commissioner consulted them as to what they should do in the face of pressure being exerted by Mr. Yahya Bakhtiar.
(iii) that later in the night when Mr. Afsal Luni, Deputy Commissioner (P. W. 25) arrived at the Rent House, the Commissioner also discussed the situation with him and informed him about the amount of pressure being put on the administration for manipulating the election results in favor of Mr. Yahya Bakhtiar.
(iv) that the appellant's election agent Mr. Munawar Mirsa also arrived at Rest House on the night between 7th and 8th March, 1977 and he too exerted pressure on the Commissioner as well as his staff to rig the election in appellant's favour and that he remained at the Fort throughout the rigging operation.
(v) the actual rigging was done at the Pishin Fort by Government officials and polling staff.
177. ' As already observed, the defence has not denied the factum of rigging having taken place at the Fort as alleged by Mr. Islam Bahadar and some other witnesses but its stand was that it was not done at the instance of Mr. Yahya Bakhtiar and that he was not in any way responsible for it, directly or indirectly. According to the defence, it was the Commissioner (Mr. Islam Bahadar) himself who had got them rigging done at the Fort on the instructions of Mr. Nasrum Minallah, the Chief Secretary of Baluchistan who was, in turn, being pressurized by the Federal Government at Islamabad, which regarded this seat to be a prestigious one for the Party in Power. The defence also did not deny Mr. Munawar Mirza, the appellant's election agent, had gone to Pishin on the night of the 7th March, 1977 but its case is that he had gone there only to find out the result of the election, as the same had not been announced over the Television or Radio that night. It was strongly refuted that Mr. Munawar Mirsa was under instructions from Mr.. Yahya Bakhtiar to put pressure on the Commissioner for rigging or that he had, in any manner, pressurised the Commissioner or any other officer. In this behalf he produced Mr. Munawar Mirza himself (who is now the Advocate-General of Baluchistan), as a defence witness. The latter, who is admittedly a very high ranking Officer in the Government of Baluchistan, has vehemently denied the allegation made by Commissioner against him.
178. ' As regards the alleged telephone calls, Mr. Yahya Bakhtiar explained that no telephone 'calls had been made by him to the Commissioner at the Pishin Rest House on the night in question, and that no direct calls could in any case have been made at the Rest House in the absence of a direct line for Quetta.
179. ' In view of the fact that the appellant has neither denied the fact of rigging at the Fort nor the presence of Munawar Mirza at the Pishin, all that we have to determine is :-
(i) Whether Mr. Yahya Bakhtiar had telephoned the Commissioner at the Rest House and threatened him with dire consequences, in case he failed to tilt the election result in his favour ;
(ii) whether his Election Agent Mr. Munawar Mirsa had threatened the Commissioner at Pishin ; and
(iii) if so, whether it can be reasonably inferred that he had done so on the appellant's instructions or at his instance.
180. ' It would be recalled that according to the prosecution itself the Commissioner after receiving the telephone calls at the Rest House had consulted members of his staff who were present there with him. The officers who were present there at that time were :- (1)Mr. Muhammad Akbar Khan, P. W. 18, District Population Planning Officer.
181. (2)Mr. Muhammad Azam Khan, P. W. 22, E. A. C., Quetta.
182. (3)Mr. Manzoor Hussain Khan, P. W. 23, S. D.
0. B. & R., Pishin.
183. (4)Mr. Issat Asis Kurd, P. W. 24, Deputy Secretary, Department of Education, Quetta.
184. (5)Mr. Muhammad Afzal Luni, P. W. 25, Deputy Commissioner, Pishin (stated to have reached the Rest House after the two phone calls had already been received).
185. ' It would, therefore, be useful to examine the statements of the above witnesses with a view to ascrtaining as to whether or not they have supported the statement of Mr. Islam Bahadar (P. W. 26) on the points that-
(i) it was Mr. Yahya Bakhtiar, who telephoned him at the Rest House during the night in question ; and
(ii) that he had pressurised and threatened him to do rigging and show him as a successful candidate.
186. ' On examining the statement of Muhammad Akbar Khan, P. W. 18 we observe that although he has stated that he had come to the Pishin Rest House on the night in question, yet he has made no mention of the af9iementioned telephone calls. As such, his testimony does not support the version of Mr. Islam Bahadai on this point. Coming to the next witness Muhammad Asam Khan, Extra Assistant Commissioner, Quetta (P. W. 22) he has stated that he and some other officials were present in the Rest House on the night of the 7th March, 1977 alongwith the Commissioner, but in his examination-in-chief he has not mentioned anything about the telephone calls having been received by the Commissioner. During the cross-examination however, he admitted that his statement had been recorded by the C. M. L. A. Election Inquiry Committee, and that he had stated therein that :- "during late hours of the night the D. C. Returned from. Barshore completely crest-fallen and dejected. After arrival he informed the Commissioner, about the failure of the mission. The Commissioner Quetta immediately conveyed the position to the C. S. Telephonically. The Commissioner after his return from Barshore narrated the insult done to him by the Pakhtoon Khawah supporters. After the arrival of the Deputy Commissioner, the Commissioner, Quetta Division conveyed the position to the Chief Secretary on telephone. He also narrated to the Commissioner how he had been insulted by the Pakhtoon supporters."
187. ' After learning this from the Deputy Commissioner, the Commissioner conveyed the information to the Chief Secretary on telephone. He has also stated that :- "on return of the D. C. The Commissioner told him that high-ups from Islamabad have directed us through the Chief Secretary that Mr. Yahya Bakhtiar's success in the elections be made sure at any cost whatsoever."
188. ' He also admitted having stated before the C. M. L. A. Election Inquiry Committee that- "during this time there was hectic change of messages between Commissioner Quetta and the Chief Secretary on telephone. At this stage it had become quite clear that the Government of Baluchistan was under heavy pressure from the Federal Government to turn result of the polls in favour of Mr. Yahya Bakhtiar at any cost."
189. ' He also admitted having stated that :- "Immediately after the arrival at the Fort I came to know that the Government of Baluchistan, under heavy pressure from the Federal Government had been forced to get Mr. Yahya Bakhtiar a successful candidate through rigging "and that "the rigging operation had been forced upon the Provincial Government by the Federal Government, through the Federal Government through the Chief Secretary and the Commissioner, Quetta Division."
190. ' He further stated that the Commissioner and all other concerned officers were quite sure that disobeying the Federal Government would lead to serious consequences.
191. ' Mr. Muhammad Asam Khan, P. W. 22, is a fairly high Government official, who was incharge of the law and order situation in the area. It is admitted that he remained with the Commissioner during the latter's stay at the rest house on the night between 7th and 8th of March, 1977. It is pertinent to note that according to him the telephone calls were between the Commissioner and the Chief Secretary and that that he has made no mention of any telephone call to the Commissioner from Mr. Yahya Bakhtiar. It is also noteworthy that according to this witness, when the Deputy.
192. Commissioner, returned from Barshore and came to the Rest House during the night the Commissioner told him that high-ups from 'Islamabad' had directed him through the Chief Secretary to ensure the appellant's success at any cost. Again he admitted having stated before the C. M. L. A. Election Inquiry Committee that it had become quite dear after the hectic exchange of telephones between the Commissioner and the Chief Secretary that "the Government of Baluchistan was under heavy pressure from the Federal Government to tilt the result in the appellant's favour".
193. ' It is apparent from what has been stated above that instead of corroborating Mr. Islam Bahadur, Commissioner Quetta this witness has, in fact, supported the defence version, namely, that the telephone calls received by the latter at the Rest House that night were not from the appellant, but from the Chief Secretary, who had phoned the Commissioner to inform him of the wishes of the 'higher-ups' in Islamabad and that the Government of Baluchistan (which in the context obviously meant the Chief Secretary of Baluchistan) was himself under heavy pressure from the 'Federal Government in Islamabad', and not from Mr. Yahya Bakhtiar.
194. ' The third witness, in the relevant regard, namely, Mr. Mansoor Hussain (P. W. 23) was an S. D. O. In the B & R Department. He was also admittedly present at the Pishin Rest House on the night in question. But he has not said a word about the telephone calls stated to have been received by the Commissioner. As such, this witness too has not supported the Commissioner's statement on this aspect of the case.
195. ' The next witness, who was present at the Rest House on the night of the 7th and 8th March, 1977 is Mr. Izzat Asis Kurd (P. W. 24). He was Deputy Secretary in the Government of Baluchistan Department of Education. He has stated that :- "At about 4 p.m. The results started receiving (sic). The Commissioner did not allow pronouncement of unofficial result because of the absence of the Returning Officer (Mr. Luni D. C.).
196. The Commissioner told someone on the phone that the results which were being received are very poor in respect of P. P. P. Candidate Afsal Luni returned from Barshore late in the night to Pishin Rest House. He was told by the Commissioner to turn the result in favour of the P. P. P. Candidate. He (D.
197. C.) also was informed of the direction received to this effect from the higher-ups."
198. ' He stated further that :- "We all made it clear to Commissioner that we are unable to do what we are expected. The Commissioner was contracting some one on phone. He informed that person that we are reluctant to do the job of turning the result in favor of the P. P. P. Candidate. After the last talk on the phone in the morning, the Commissioner told us that the result must be in favour of the P. P. P. Candidate."
199. ' It is apparent from what this witness has stated that although after receiving the telephone calls the Commissioner had told them that they were required to rig the elections, but he had not mentioned that it was Mr. Yahya Bakhtiar who had telephoned him. The witness only mentions that the Commissioner was contacting 'some one' on the phone, and that he told the Deputy Commissioner that a direction had been received to tilt the results of the election from 'higher-ups'.
200. According to the witness the officers present there made it clear that they were unable to comply with the direction to manipulate the results. On this the Commissioner informed 'that person' they (i,e, the staff) were reluctant to do the rigging. Had the witness been told by the Commissioner that it was Mr. Yahya Bakhtiar who was giving direction on the phone, he would have stated that the Commissioner bad informed Mr. Yahya Bakhtiar and not "that person" about the unwillingness of the staff to carry out his directions. But the witness has not named Mr. Yahya Bakhtiar at all. As such this witness has, in effect, contradicted Mr. Islam Bahadar rather than supporting him with respect to his statement about the telephone calls having been received from Mr. Yahya Bakhtiar.
201. ' The last witness in this connection is Mr. Muhammad Afsal Luni, who was then the Deputy Commissioner of Pishin. As mentioned earlier, he had gone to Barshore to supervise the law and order situation on the 7th of March, 1977. He returned to the Rest House at Pishin at night. He has stated that :- "By that time, the results from almost all the polling stations had been received. It came to light that votes cast in favour of Mahmood Khan Achaksai were much more than the P. P. P. Candidate. The Commissioner talked to the Chief Secretary on phone informing him about the situation. The Commissioner told the Chief Secretary that nothing could be done at that stage. The Chief Secretary then talked to me on phone and I also informed him to the same effect. He again talked to the Commissioner and something was decided between them which was not in my hearing."
202. ' From Mr. Luni's statement reproduced above, it is evident that the person who gave instructions to the Commissioner on telephone that night to manipulate the votes and rig the election was the Chief Secretary of Baluchistan and not Mr. Yabya Bakhtiar. As such this witness also contradicts the Commissioner.
203. ' According to the prosecution, on receiving the two telephone calls, the Commissioner had told the members of his staff as well as the Deputy Commissioner about the pressure being exerted on him to rig the election in appellant's favour and had consulted them in the matter, yet none of the said officers has stated that he had named Mr. Yahya Bakhtiar as the person who had talked to him on the telephone.
204. ' In view of the above discussion, we have no hesitation in holding that all the prosecution witnesses with whom the Commissioner had admittedly discussed the matter of pressure being put on him for rigging the elections and the threats extended to him on telephone, have either not supported him or in fact given a lie to him. We have, therefore, come to the conclusion that it was not Mr. Yahya Bakhtiar, who had telephoned the Commissioner during the night between 7th and 8th March, 1977 at the Rest House. This view is also supported by the testimony of D. Ws. 3 and 4, who were officials from the Telephone Department. It is evident from their statements that it was not even possible for Mr. Yahya Bakhtiar to have made direct calls from Quetta to Pishin Rest House as there was no direct line between Quetta and Pishin Rest House.
205. ' Keeping in view the propensity of Mr. Islam Bahadar to succumb to pressure and stoop to doing illegal acts in order to safeguard his service career, as evidenced by his statement that :- "finding no way out and realizing the adverse consequences as civil servant we were forced to do rigging."
206. We are inclined to feel that there is considerable force in the contention of the learned defence counsel that if Mr. Islam Bahadar could stoop to such tactics earlier he could now, in order to help the prosecution, very easily be persuaded to substitute the appellant's name for that of the Chief Secretary, who was, in fact, the person who had contacted him on the telephone at the Pishin Rest House on the night in question.
207. ' We now take up the prosecution's allegations with respect to Mr. Munawar Mirza. The prosecution case is that Mr. Munawar Mirsa was the appellant's election agent; that he had gone to Pishin Rest House on the night of 7th March, 1977, threatened the Commissioner and pressurized the officers present there to manipulate the election results in favour of the appellant and that he stayed at the Fort to personally supervise the rigging operation and to ensure appellant's success.
208. ' As already mentioned, it is admitted by the defence that Mr. Munawar Mirza was the appellant's election agent. It is also admitted that he had gone to Pishin Rest House on the night between 7th and 8th of March, 1977. As such, the question which needs determination is as to whether there is any evidence to show that he (Mr. Munawar Mirsa) had :-
(i) pressurised the Commissioner and his staff in Pishin to rig the election; and
(ii) if so, whether he had done it at the instance of Mr. Yahya Bakhtiar For this, we must examine the testimony of the witnesses who were present at the Rest House or the Fort, where the rigging actually took place.
209. ' Besides Mr. Islam Bahadar, Commissioner, there are:
(1) Mr. Parves Mahmood, P. W.
210. 3.
(2) Ch. Muhammad Anwar, P. W.
211. 4.
(3) Mr. Muhammad Akbar Khan, P. W.
212. 18.
(4) Malik Abdul Ghani, Tehsildar, P. W.
213. 20.
(5) Jamal Khan Jaffar, Tehsildar, P. W.
214. 21.
(6) Mr. Muhammad Asam Khan, P. W.
215. 22.
(7) Mr. Mansoor Hussain Khan, P. W.
216. 23.
(8) Mr. Iszat Asis Kurd, P. W.
217. 24.
(9) Mr. Muhammad Afsal Luni, P. W.
218. 25.
219. ' Out of these witnesses, Parves Mahmood (P. W. 3) has mentioned the presence of Mr. Munawar Mirsa at the Pishin Fort. He and Ch. Muhammad Anwar (P. W. 4) were alleged to have been abducted by the two Tehsildars and handed over to Bahrain Khan. After fabricating bogus votes in favor of the appellant at the house of Malik Behram Khan they were taken to Pishin on Jeep where they reached on the night of the 7th March, 1977. He has stated that :- ' We drove up to Pishin in that Jeep. The Jeep was taken to Military Fort at Pishin. I and Ch. Muhammad Anwar were made to sit in a room in the Fort and thereafter Mr. Munawar Mirza came.
220. He asked Ch Muhammad Anwar as the votes cast in favor of the People's Party% candidate were less in number he should stamp more votes in his favor."
221. ' He had, however, to admit during the cross-examination that he had not stated so in his earlier statement (P. 2128) before the Provincial Election Commissioner. He has stated that "I did not state in my statement (Exh. P. 2/28) that I went to the Fort where officers and Munawar Mirsa were present and they asked Ch. Muhammad Anwar to stamp some ballot papers in favour of the Peoples Party's candidate."
222. ' He is not only contradicted by his own earlier statement but also by his companion, Ch. Muhammad Anwar (P. W. 4) who had gone with him in the Jeep from Farakhi to the Pishin Fort on the night of 7th of March, 1977. He has stated that they reached Pishin at 6 a.m. In the morning of the 8tb March, 1977. They first stayed at the bungalow at Pishin and were then taken to the Fort and made to sit in a room where they found that almost all the Returning Officers, Assistant Returning Officers and Presiding Officers etc. Were present and preparations for rigging were being made.
223. During the cross-examination, he mentioned that "At Pishin we could not find the Deputy Commissioner in the levy fort. The Commissioner Quetta and H. D. V, C, were, however, present there. It is correctly recorded in my statement before the F. I. A. Director that when we reached Pishin the Deputy Commissioner asked us about the total number of votes of each polling station and when he came to know that 800 votes were left unused, he asked us to complete this number in his presence." (The underlining is ours.)
224. ' He also went on to mention that the rigging process took place in the presence of the Commissioner, Returning Officer and Assistant Returning Officer but has not even mentioned the name of Mr. Munawar Mirsa as being present at the Fort. As such, there was no question of his having been asked by Ch. Muhammad Anwar to cast more votes in favour of the People's .Party's candidate nor has Ch. Muhammad Anwar said so in his statement. He has, therefore, given a complete lie to Parvez Mahmood (P. W. 3).
225. ' The next witness, whose evidence is relevant in this context, is Muhammad Akbar Khan (P. W. 18), who has mentioned about the presence of Mirza Munawar at the Fort but he has not stated that he had either pressurized the Commissioner or his staff to do rigging nor has he stated that he took part in it in any manner.
226. ' As regards Abdul Ghani P. W. 20, he has stated that he had gone to the Fort but he has not mentioned the name of Mr. Munawar Mirsa as one of the persons present there. Tehsildar Jamal Khan Jaffar, P. W. 21, has mentioned the names of Mr. Izssat Asiz Kurd. Muhammad Azam, Nayyar Agha, A. C,, Tehsildar Navid Ahmad and some others as being present with him at the Pishin Fort but he too has made no mention of Mr. Munawar Mirza being present there.
227. ' Similarly, Muhammad Azam Khan (P. W. 22) who was also present at the Rest House as well as the Pishin Fort throughout the operation, has not mentioned Mr. Munawar Mirsa as being present there.
228. ' Mr. Mansoor Hussain (P. W. 23) has mentioned the presence of Munawar Mirsa and stated that "Munawar Mirsa, Advocate, Agent of the P. P. P. Candidate also arrived there (at the Rest House)."
229. He has stated further that :- "We reached the Fort on the 8th March, 1977 in the morning at 10 a.m. Alongwith the Commissioner.
230. Iszat Asiz Kurd, Muhammad Afzal Luni, Muhammad Asam and Nayyar Agha went in a car to the Fort alongwith the Commissioner. We were made to sit in a small room. The election material and other documents were placed in a big hail. The election staff and some personnel of Malitia Staff were present in the big hall. Munawar Mirza was also present there."
231. ' We notice on going through the statement that although this witness has mentioned the presence of Mr. Munawar Mirsa at the Rest House and the Fort, yet he has not attributed to him any misconduct and has not accused him of influencing or pressurizing the Commissioner and other officers to manipulate the votes in favour of the P. P. P. Candidate. No doubt, he has stated that Mr. Munawar Mirsa was present in a side-room at the Fort. But that by itself does not mean that he was a party to the rigging. This has not even been hinted at by this witness. The next witness who has mentioned about the presence of Mr. Munawar Mirsat at the Fort is Mr. Iszat Asis Kurd (P. W. 24). He has stated that "after the Commissioner's last talk on the phone in the morning, the Commissioner told us that the results must be in favour of the P. P. P. Candidate. Mr. Nayyar Agha, A. C. Chaman and Munawar Mirsa, the Agent of the P. P. P. Candidate also reached the Mess and .Thereafter we went to the Malitia Fort where the Malitia personnel had already made arrangements in two rooms.
232. The staff of some polling stations and some personnel were directed by the Commissioner to open the ballot papers in favour of Mahniood Khan Achaksai, be double stamped and the unused blank ballot papers be stamped in favour of the P. P. P. Candidate".
233. It is noteworthy that according to this witness Mr. Munawar Mirza had turned up after the Commissioner had already taken the decision to do rigging and as such there was no question of the said decision having been taken as a result of the pressure exerted by Mr. Munawar Mirsa nor has this witness alleged any such accusation against Mr. Munawar Mirsa.
234. ' The last witness, whose evidence is also relevant in this context, namely, Mr. Muhammad Afsal Luni, the Deputy Commissioner, P. W. 25, has, no doubt, mentioned about Mr. Munawar Mirsa having come to the Pisbin Mess and accompanied the Commissioner and other officers to the Fort but thereafter he himself slipped away from the Fort. Consequently, he was not in a position to say anything about Mr. Munawar Mirsa's conduct at the Fort. But the fact remains that he has not said a single word in support of the allegations made by Mr. Islam Bahadar against Mr. Munawar Mirza's conduct at Pishin Rest House or at the Mess.
235. ' From the above discussion, it is more than evident that the allegations made by Mr. Islam Bahadar with regard to the pressure put by Mr. Manawar .Mirsa on him and his staff to rig the election in appellant's favour, is not supported by any of the other witnesses present at the Pishin Rest Houses or at the Fort. But even if it be assumed, for the sake of the argument, that Mr. Munawar Mirsa had exerted some pressure, the prosecution has led no evidence whatsoever to show that he had done so under the instructions or at the instance of Mr. Yahya Bakhtiar, appellant. The learned Special Court appears to have based its finding on this part of the charge on the assumption, albeit unwarranted, that since Mr. Munawar Mirsa was the election agent of the appellant he masts have instigated rigging at the instance of his candidate. No doubt, as observed earlier, in election matters a candidate can be held responsible for the actions of his election agent and the election itself can be got annulled on this ground. But obviously act of an Election Agent cannot make the candidate criminally liable unless it I shown through positive evidence on the record that the agent had acted on his directions or instructions to commit some illegal act. In the present case, however, not only has the version of Mr. Islam Bahadar not been corroborated by his own staff who was present at the Rest House but is even belied by them. The resume of their evidence given above shows that they have not at all supported his assertion of Mirsa Munawar's threatening him or his staff with dire consequences if they did not manipulate the votes in favour of the appellant or that Mirza Munawar coerced them into agreeing to do the rigging.
236. ' Mr. Islam Bahadar's statement is also contradicted by Mr. Munawar Mirsa himself when he appeared at the trial as D. W.
5. He vehemently denied the aforementioned allegations made by the Commissioner against him and refuted the suggestion that he had done anything for Mr. Yahya Bakhtiar on his directions or that Mr. Yahya Bakhtiar had telephoned the Commissioner at the Rest House in his presence. Mr. Munawar who is at present holding the high office of Advocate-General of Baluchistan, has been appointed to that office by the present. Government. It needs no gainsaying that this a very sensitive post and only persons in whose integrity the Government has the fullest confidence are appointed to this office. It is, therefore, obvious that the Government itself did not believe in any of the aforementioned allegations made by Mr. Islam Bahadar against him and considers him to be a person of high integrity. When required to weigh his word against that of Mr. Islam Bahadar keeping in view the fact that he (Mr. Islam Bahadar) is a self-confessed criminal who has admitted having rigged the election we have no hesitation in believing Mr. Munawar Mirza in preference to Mr. Islam Bahadar.
237. As mentioned earlier, Mr. Islam Bahadar (P. W. 26) is the solitary witness who has named Mr. Yahya Bakhtiar as having instigated rigging when no W other witness has said even a single word against him. His evidence on this point not having been supported by any other P. W. And in fact belied by some of them in material aspects and flatly contradicted by Mr. Munawar Mirza whose testimony appears to us to be true, there exists absolutely no evidence worth the name to support the charge of the prosecution that Mr. Yahya Bakhtiar was responsible for rigging the elections in his favour. In this view of the matter even if the evidence of P. Ws. 23 to 3i who were examined in the absence of the appellant and cross-examined by a counsel, who was not in law authorised to represent him is taken into consideration X in its entirety and given effect to, even in this situation, the prosecution has miserably failed to establish any of the charges leveled against Mr. Yahya Bakhtiar.
238. ' Accordingly, at the conclusion of the hearing of the arguments in this case we passed the following order :- "We have heard learned counsel for the parties at length for several days and have reached the conclusion that although rigging was done on a large scale in the Constituency in question, but the prosecution has failed to establish that it had been done by the appellant either directly or through any other person within the meaning of Article 2(aa) of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 [President's (Post-Proclamation) Order No, 16 of 1977].
239. Accordingly, for the reasons to be given later, we set aside the judgment of the Special Court dated 31-3-1981 and acquit the appellant. His bail bonds are discharged."
240. ' The above are or reasons for the same. PLD 1954 Lah. 69 PLD 1973 Lah. 365 AIR 1929 Lah. 705