' On 28-2-1985 election for the Provincial Assembly seats was held. Abdur Rauf Khan son of Haji Abdul Malik, the present petitioner, took part in the said election for the Seat PF-6 Peshawar-VI.
Respondent No,1 Haji Muhammad Nawaz Khan and Arbab Tariq Khan and Fazal Karim, respondents .2 and 3 herein, also participated in the said election for the above-mentioned seat. Respondent No,1 was, however, declared as the 'returned candidate' for the said seat. The present election petition has, therefore, been filed by Abdur Rauf Khan, petitioner, against respondents 1 to 3 alleging therein, inter alia, that respondent No,1 was also a candidate for this very seat during the election scheduled to be held on 18-10-1977 but he was disqualified from contesting the said election by the then ,Member, Election Commission of Pakistan, N.-W.F.P., Peshawar vide order, dated 28-8-1977 for having infringed the provisions of section 83 of the House of Parliament and Provincial Assemblies (Election) Order, 1977 for not filing the requisite returns of the election expenses. The writ petition filed by respondent No,1 in this Court during the said election was, however, dismissed as withdrawn on 20-10-1977. The petitioner's contention is that as respondent No,1 has suppressed this material fact deliberately from the Provincial Election authorities and also during his election held in 1979 for the seat of District Council, therefore, he is neither righteous nor honest and lacks the qualifications prescribed for the membership of a Provincial Assembly under section 11 of the President's Order No,5 of 1977. It was also averred in the election petition that respondent No,1 had used corrupt and illegal practices in the election held on 28-2-1985 by distributing money amongst different persons to bribe the voters. The petitioner has quoted an example in this respect, vide that respondent No,1 gave a post-dated Cheque No,SB-OP/2 087110, dated 2-3-1985 to be drawn at the Allied Bank Ltd., Bhana Mari Branch, Peshawar to one Usman Gul son of Khana Gul, in the night between 27/28-2-1985 for bribing the voters of his village. The said Usman Gul, however, did not encash the said cheque and instead informed the petitioner about the same on the night between 28-2-1985 and 1-3-1985, whereupon the petitioner lodged a report in police station Nasir Bagh on 1-3-1985 which was incorporated in Mad. No,19, dated 1-3-1985. The local police acting on the said report took into possession the said cheque produced before it by the said Usman Gul, whose statement under section 161 Cr.P. C. Was also recorded. The petitioner also submitted that no polling was held in nine Female Polling Stations because no polling staff was provided for the said polling stations, thus depriving the female voters of these polling stations of their legal rights. The names of the said 9 polling stations are, Regi, Tukht Abad, Zor Mandi (Zarif Koruna) Qilla Shahbeg, Jugani, Jattai, Shahi Bala, Shahi Payan and Wazir Killi. The petitioner then submitted an application on 26-2-1985 for providing the requisite polling staff for the aforesaid female polling stations but the returning officer, namely, ,Mr. Masood-ur-Rehman, Magistrate 1st Class, Peshawar expressed his inability to appoint the ladies staff in the nine above-said polling stations vide order, dated 26-2-1985 recorded on the reverse of the application, dated 26-2-1985.
Besides this, the petitioner further averred, the number of female voters in the said places is more than 2,000 and had the female voters been allowed to exercise their legitimate right, the result of the election would have been materially changed because the petitioner was leading in the said villages amongst the male voters. The difference in the total votes cast in favour of the petitioner and that of respondent No,1 was of 628 votes only. Lastly, the petitioner submitted that respondent No,1, who was the member of the District Council, had succeeded in getting the names of his partymen entered in the Electoral Roll of more than one village and thus succeeded in getting double votes of the same persons.-
2. Only respondent No,1 contested this petition in hand whereas respondents 2 and 3 in spite of service through advertisement of notice in the daily 'Mashriq, Peshawar' failed to appear, hence they were placed ex parte vide order of this Tribunal, dated 20-11-1985. On 28-9-1985, i.e. On the first date of hearing the learned counsel for the petitioner was directed to supply copies of the annexes and other documents appended with the election petition to respondent No,1 the same day, because on 14-9-1985 an application was filed before this Tribunal by the learned counsel for respondent No,1 to this effect. This position was admitted by the learned counsel for the petitioner at the Bar. Anyhow, the said copies were supplied to respondent No,1 who submitted his written statement, dated 29-10-1985 rebutting the allegations of the petitioner very elaborately.
' On the pleadings of the parties, the following issues were framed in the case:-
(1) Whether the petitioner has a locus standi to file the instant petition ?
(2) Whether the petitioner has not come to the Court with clean hands and the petition suffers from deliberate misstatement of facts ?
(3) Is the petition bad for non-compliance of the provisions of section 54 of the Representation of the Peoples Act, 1976 and the Rules framed thereunder ?
(4) Does it affect the provisions of section 55 of the Representation of Peoples Act, 1976 ?
(5) Were voters prevented from casting their votes because no polling staff was appointed at the several polling stations in the Constituency, if so, its effect?
(6) Has respondent No,1 committed illegal and corrupt practices as alleged in paragraphs 4, 9 and 10 of the election petition which had materially affected the results of the Election?
(7) Is petitioner entitled to be declared elected to Provincial Assembly Seat No, PF-6 Peshawar ?
(8) Relief.
' Petitioner, besides himself, produced Masood-ur-Rehman, A .P.O., South Waziristan as P.W:1, Abdul WOW, Additional S.H.O., P.S. Charsadda as P.W.2, Usman Gul son of Khana Gul as P.W.3. The petitioner was examined as P.W.4. On the other hand, Mr. M. Sardar Khan, learned counsel for respondent No,1, recorded his two lines statement to the effect that there is no case against the respondent, therefore, he does not wish to produce any evidence. However, both the learned counsel advanced their lengthy arguments. I heard their and with their help have also gone through the record very carefully. Now I proceed to discuss the instant petition issuewise.
Issues Nos. 3 and 4:
4. Learned counsel for the petitioner has contended that the election petition in hand was sent to the Secretary, Election Commission of Pakistan on 10-4-1985 and its copies were sent to the respondents, the same day. Subsequently a telegram was received by the petitioner on 23-4-1985 from the Election Commission of Pakistan asking the petitioner to furnish list of witnesses and their affidavits alongwith postal receipts. The petitioner complied with the same on the following day.
Respondent No,1, however, made an application before this Tribunal on 14-9-1985 praying therein that the petitioner be directed to supply copies of the documents, affidavits etc. If any, annexed with the petition to respondent No,1 so that he may have a chance to file proper written statement.
On 28-9-1985 the Tribunal directed the petitioner to supply the said documents and simultaneously respondent No,1 was asked to file his written statement on 2-10-1985. Petitioner supplied the requisite documents- to respondent No,1 the same day but the said respondent did not file his written statement on 2-10-1985 and instead the same was submitted on or about 29/30-10-1985. Thus, according to the petitioner, respondent No,1 has failed to comply with the provision of paragraph 3 of the procedure prescribed by the Election Commission of Pakistan vide Notification, dated 16-3-1985, hence his written statement should not be taken into consideration and at any rate he would not have locus standi to raise an objection that petitioner had committed a breach of the provision of section 54 of the Representation of the Peoples Act, 1976 (hereinafter called the Act) read with the Notification, dated 16-3-1985. This argument to my mind is without any substance. It appears that the petitioner is conscious of the fact that he has failed to comply with the provisions of section 54 of the Act and the Notification, dated 16-3-1985 but would like this Tribunal to ignore the same, because respondent No,1, according to respondent himself, is also not free from the same. It will be seen that in the first instant the petitioner had sent a bare copy of the petition to the contesting respondent and although he was asked by the Election Commission o Pakistan to furnish a list of witneses which he intended to produce alongwith their sworn statements and he did send the same to the Commission yet respondent No,1 was neither served personally with the same nor through registered post. Other respondents have not chose to contest this petition but it appears that they too were not served with the said documents. In this view of the matter, prima facie breach of the provisions of section 54 and the Notification, dated 16-3-1985 is established on the part of the petitioner. It would not be desirable, however, to be hyper-technical, so as to smother an attempt at genuine decision on merits for the reason that respondent No,1 was nevertheless provided with copies of the said documents and was given sufficient time to submit a proper written statement. It will be seen that this Tribunal directed the petitioner on 28-9-1985 to supply copies of annexures and other documents appended with the petition to respondent No,1 because learned counsel for the petitioner admitted at the Bar that such documents have not been supplied to respondent No,1, as is evident from order sheet of this Tribunal, dated 28-9-1985. At the same time, respondent No,1 was directed by this Tribunal on the said date to file his written statement on 2-10-1985 but on 2-10-1985 this Tribunal was unable to function due to the constitution of a Division Bench (of which I was a member) and the matter was adjourned to 30-10-1985, on which day, the written statement was filed by respondent No,l. In the circumstances, I am not inclined to apply the provisions of section 54 rigorously. But this should not be taken as a licence to violate the said provision of law in all cases and under all circumstances because Election Laws are highly technical laws and non-compliance not ignorable.
' Respondent No,1 has objected that the petition is by and large deficient in particulars and lacking in details hence it offends the provisions of section 55 of the Act. Relevant part of this section reads as under:-
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) x x x x x x x x x x x x x x x x x x x It is true that some of the paragraphs of the petition such as 8, 9, 1 are rather vague and lacking in necessary particulars but this would not mean that the petition as a whole, has failed to comply with th provisions of section 55 of the Act. I am, therefore, of the view that if some of the allegations made in the petition are defective, this shoul not stand in the way of adjudication of other allegations, if made properly. Consequently, it is held that the petition is not liable t dismissal as a whole due to non-compliance of the provisions of section 55 of the Act. Both these issues are accordingly disposed of.
Issue No,5.
5. Learned counsel for the petitioner has laid great stress on this issue. He has urged that no female polling staff was posted at the 9 female polling stations, mentioned above, as a result of which the female voters of these villages were deprived of their right of franchise. He submitted that the petitioner had given an application on 26-2-1985 to the Returning Officer for appointment of staff at the said female polling stations but he had expressed his inability to do so. He has referred in this respect to the provisions of sections 7, 8, 9 of the Act and rule 40(1) of the Representation of the Peoples (Conduct of Election) Rules, 1977.
6. A careful persual of paragraph 5 of the petition and the evidenc produced in this regard would show that it is not the grievance of the petitioner that no polling staff at the said 9 female polling stations o for that matter other female polling stations in PF-6 Peshawar-VI Constituency was appointed. His complaint is that no female polling staff was appointed and because of this the ladies could not cast their votes. Apart from the fact that the petitioner has failed to produce even a single lady voter- to depose that she was unable to vote for this reason, much less to say that because of this the result of the election was materially affected, he has indeed failed to establish that there was any failure on the part of any person, in this respect to comply with the provisions of the Act or the rules thereunder so as to obtain a decision of declaring the election as a whole to be void. Section 7 of the Act speaks of appointment of District Returning Officers, Returning Officers and Assistant Returning Officers. It is not disputed that such appointments were made by the Election Commission. Section 8 refers to the duty of the Returning Officer to submit, before such time as the Commission may fix, s the District Returning Officer the list of polling stations he proposes s provide in a constituency for the purpose of election of a member for that constituency.
The District Returning Officer, on his part, is s publish in the official Gazette the official list of polling stations. It is also not the case of the petitioner that this was not done. Consequently reference s these provisions (sections 7 and 8 of the Act) seems s be misconceived. As far as section 9 is concerned, it requires a Returning Officer's appoint for each Polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling Officers s assist the Presiding Officer as the Returning Officer may consider necessary. The only limitation on hi is that he shall not appoint any person who is, or has at any time been, in the employment of any candidate, as Presiding Officer, Assistant Presiding Officer or Polling Officer. This section does not say that polling officers at female polling stations must be appointed from amongs the females. No other provision of law has been brought s my notice which enjoins a Returning Officer do so. This being so, and the dispute being not that no staff at all was appointed at the female polling stations, the petitioner has failed prove within the meaning of clause (a) of section 70 of the Act, failure on part of any person t comply with any provision of the Act or the Rules thereunder. The only rule referred to by the learned counsel for the petitioner is rule 40(1). It will be useful reproduce sub-rule (1) of rule 40 which runs as under:- "(1) The Commission shall appoint a Returning Officer for the purpose of holding and conducting election the seats reserved for women in the National Assembly or a Provincial Assembly."
' Perusal of the said sub-rule would clearly show that this rule is meant for appointment of a Returning Officer by the Commission for the purpose of holding and conducting election the seats reserved for women in the National Assembly or a Provincial Assembly. This rule has got nothingdo with the election of seats other than the seats reserved for women.
7. Mr. Masood-ur-Rehman who was the Returning Officer of PF-6 Peshawar-VI in the election in dispute, has admitted in his statement before the Tribunal that he had received no complaint whatsoever from any quarter that on 28-2-1985 any female voter was prevented from casting her vote at any of the 33 polling stations set up in the said constituency. He has also conceded that it was a fact that female voters did cast their votes at the Female Polling Station No,6, namely, Warsak Colony. It is, therefore, clear that wherever the ladies voters wantedpoll their votes, they did do so. The allegation, therefore, that female voters had been deprived of their right of franchise on, account of non-appointment of female polling staff is wholly unfounded. The issue is accordingly decided against the petitioner.
Issue No,6.
8. Petitioner says that respondent No,1 bribed the voters thus committing corrupt and illegal practices, hence his election is liable be declared as void and the petitioner be declared as a returned candidate. He has in this respect produced Abdul Wajid, S.H.O., P.S. Nasar Bagh (P.W.2) and one Usman Gul, who is alleged have been given a post-dated Cheque No,SB-OP/2 087110, dated 2-3-1985, drawn at the Allied Bank Ltd. Bhana Mari, Peshawar by respondent No,1 on the night between 27/28-2-1985. Both these witnesses, it will b interesting note, have deposed against the petitioner. It is established on record that respondent No,1 has had no account in the said branch of Allied Bank Ltd. The cheque was never sent an Expert to fin out if it really bore the signatures of respondent No,1. The police investigation revealed that it was a false case, not fit be sent for trial as is clear from Exh.R.2. Usman Gul has stated unequivocally that the affidavit placed on record and purported have been give by him was not executed on his own and that the two witnesses mentioned therein had, in fact, obtained his signatures on the same by compulsion.
' This witness was produced by the petitioner but at the request of the learned counsel for the petitioner was declared hostile and was the crow-examined by the learned counsel for the petitioner. He has disowned his statement made in the affidavit, completely. He has stated in cross-examination that some persons unknown him had visited his place a night time and gave certain papers him. On the following morning when he checked those papers, he found amongst them the cheque in question. He does not say that the said cheque was given him b respondent No,1 or anyone for and on his behalf. In this state o affairs, no reliance whatsoever can be placed on the affidavit or for that matter the statement made by the petitioner himself in this respect. This being so, one cannot help in returning a finding that the petition has miserably failed prove his allegations contained in this issue. The issue is, therefore, decided against him.
Issue No,7.
9. Since the petitioner has failed prove his case, therefore, there is no question of his being declared as elected the Provincial Assembly Seat No,PF-6-Peshawar-VI.
Issues Nos.1 and 2.
10. In view of my discussion under issues 3 and 4, issue No,1 is decided against the petitioner while issue No,2 is decided in favour of respondent No,1.
Relief.
11. As a net result of the above discussion, this petition is devoid of any merit, which is hereby dismissed with costs.