1. ' The petitioner who contested election as a candidate for Provincial Assembly Seat No, PS-90, Karachi has challenged the election of respondent No, 1 as a successful candidate from the said constituency. The petition is contested only by respondent No, 1 who is the successful candidate while other respondents have remained absent. Besides denying the allegations made in the petition against him the respondent No, 1 has also challenged the maintainability of the petition on the ground that it did not fulfil the requirements of section 55 of the Representation of the People Act, 1976. The learned counsel for the parties jointly submitted draft issues which were adopted by the Tribunal on 14-10-1985. They are as follows:-
(1) Whether the name of respondent No, 1 does not appear in the Electoral list?
(2) Whether the respondent No, 1 managed to cast votes of dead persons and of persons not present in Karachi on polling day?
(3) Whether the respondent No, 1 resorted to causing violence and terrifying voters of petitioner?
(4) Whether the respondent No, 1 caused to be cast bogus votes and not to allow genuine voters to cast their votes or to receive "Tendered Ballot papers"?
(5) Whether at Polling Station No, 9 due to violence brought about by respondent No, 1 polling remained stopped for about an hour but no further time was allowed by the Presiding Officer?
(6) Whether respondent No, 1 incited communal feelings?
(7) Whether respondent No, 1 incurred expenses in excess of limit allowed by law?
(8) Whether at several polling stations no counting was held and result was manipulated in favour of respondent No, 1?
(9) Whether the respondent No, 1 did not hold official counting and made up false result, showing respondent No, 1 as elected?
(10) Whether the petitioner is entitled to relief claimed?
(11) What should the order be?
2. ' The petitioner alongwith his petition neither submitted his own affidavit nor affidavits of any of the witnesses. He also did not file y list of the witnesses. After framing of the issues in the case the learned counsel for the petitioner submitted an application under Order XVI, Rule 1, C.P.C. Read with section 151 and also submitted alongwith it affidavits of four witnesses and prayed that these witnesses may be examined in the case. This application filed by the petitioner was disallowed by me by order, dated 28-10-1985. However, on the same date 1 treated the petition of the petitioner as affidavit of evidence as it was on oath and allowed cross-examination of the petitioner on the basis of the statement made in the petition. It is, therefore, clear that the only evidence in support of the petition is the petition itself. The material allegation on which the petitioner has challenged the election of respondent No, 1 in the Provincial Assembly election held on 28th February, 1985 are contained in paragraphs 2 to 10 of the petition but the petitioner has not pressed the ground mentioned in paragraph 9 of the petition which relates to the incurring of expenses beyond permissible limits. The corrupt and illegal paractices alleged by the petitioner against respondent No, 1 are mentioned in paragraphs 4 to 9 of the petition. Apart from it, it is also alleged that there was no counting of votes after the close of polls and the returning officer in spite of request nd protest of petitioner refused to count the votes as- required by law. However, the main grounds of attack against the election of respondent No, 1 appear to be that he was not enrolled as a voter in the electoral rolls and, therefore, he was disqualified from contesting the election and that before announcing the official result of the constituency no counting of the votes was done as required under the law. The evidence led by the petitioner in ..Upport of the above allegations are the averments on oath contained in the petition. The respondent No, 1 in rebuttal has filed his counter- affidavit which is also on oath. Both petitioner and respondent No, 1 have been cross-examined on the basis of statements contained in the petition and counter-affidavit respectively. I have heard the learned counsel for, the petitioner and respondent No, 1 at length and my findings on the issues framed in the case are as follows:- ' Issue No, 1.-On this issue the petitioner has alleged that the name of the respondent No, 1 is entered in the electoral rolls as Akram Nadeem while he contested the election as Zuhair Akram Nadeem. To support his contention the petitioner has produced printed copy of electoral roll and it is urged that at serial number 3534 of this list the name of the respondent No, 1 is printed as Akram Nadeem son of Hakeem Israr Ahmed. In cross-examination the petitioner admitted that he had not raised any objection before the Returning Officer at the time of scrutiny of the nomination paper of respondent No, 1 that his name is not correctly printed in the electoral list. He also admitted that he did not file any appeal against the acceptance of nomination of respondent No, 1 as he was aware that the name of respondent No, 1 is not correctly appearing in the list. To another question in cross-examination he stated that it was not within his knowledge that the name of respondent No, 1 which was entered as Akram Nadeem was got corrected subsequently before filing the nomination paper and that he had produced such corrected slip alongwith his nomination paper before the Returning Officer. It is, therefore, very clear from the above statement of petitioner in cross-examination that he had not denied the correction of the name of respondent No, 1 but pleaded his ignorance about the correction. As against this evidence the respondent No, 1 in his affidavit of evidence asserted that he had applied for correction of his name in the electoral list which was duly corrected and he als produced certified copy of the extract alongwith his affidavit of evidence showing the correction which was made on 13-8-1983. According to the certified copy.
3. Of the extract which is brought on record the serial number of the entry of name of respondent No, 1 is shown as 3534 and his name is shown as Zuhair Akram Nadeem son of Hakeem Israr Ahmed. The certified copy of the extract shows that this correction was done under section 18 of the Electoral Rolls Act, 1974. No attempt was made by the learned counsel for the petitioner to summon the Returning Officer or any other official from the office of Election Commission to rebut the fact that the correction in name of the respondent was not so made as is evident from the certified copy of the extract brought on record. The learned counsel for the petitioner contended that in cross- examination the respondent was suggested that no such list existed of which he has obtained the certified copy and, therefore, the burden of proving that such correction was made with regard to the entry of his name in the electoral list was not disclosed. I am unable to accept the contention of the learned counsel. The genuineness of extract from the electoral list produced by the respondent No, 1, is not disputed before me. It is, only contended that the person who had issued the certified copy of the extract was not authorised under the law to make the correction or issue the certified copy. It is contended by the learned counsel that the certified copy of the correction could only be issued by the Registering Officer and not by the Election Officer who has issued the certified copy.
4. No rule or law has been cited in support of the contention that the certified copy could not be issued by the Election Officer of an extract from the electoral list. The learned counsel was also unable to point out any provision in any Act or the Rules to the effect that the custody of the electoral rolls exclusively remained with the Registration Officer who alone was entitled to issue the certified copy of the electoral roll. On the contrary the rules provide display of the copy of electoral rolls at such place which may be fixed by the Commission which necessarily means that the copy of the electoral roll is also in the custody of the Election Commission. Since the certified copy of the extract from the electoral list has been issued by an officer of the Election Commission and nothing has been brought on record to show that this copy was incompetently issued by the said officer there is no reason to doubt the entries shown in the certified copy. In these circumstances the burden of proving that the certified copy was not in accordance with the original was on the petitioner who has alleged that the certified copy was not made in accordance with the entries in the original record. It is also noticeable that the petitioner did not raise any objection before the Returning Officer at the time he filed his nomination paper with regard to the alleged discrepancy of name in the electoral list nor he took any other proceedings against the acceptance of the nomination of respondent No, 1 by the Returning Officer. In these circumstances I hold that the petitioner has failed to establish issue No,l. This issue is accordingly decided in the negative.
5. ' Issues Nos. 2 and 4.-1 will take up both these issues together as these two issues are inter-linked.
6. The petitioner in support of these issues has alleged in paragraph 4 of his petition that respondent managed to cast votes of dead persons as well as votes of those persons who were not present at Karachi on the day of polls and has annexed with petition a list purporting to be of such persons as Annexure He has alleged in paragraph 6 that the 'respondent also managed to cast bogus votes and several genuine voters were not allowed to cast their votes on the plea that their votes were already cast. It is alleged that such electors were not even allowed to receive tender ballot papers by the Presiding Officer. It will be seen that in so far as the casting of the bogus votes and depriving the genuine voters from casting their votes are concerned neither names of such voters are disclosed, nor any such voter has been examined in support of these allegations. Similarly in so far the allegation regarding casting of votes of dead persons and .Those who were not present .In Karachi is concerned, there is equally no evidence except the bare allegation made in paragraph 4 of the petition. The list Annexure 'A', purported to contain the names of those persons who were either dead or were not present at Karachi on poll day is hardly any evidence of the fact alleged in paragraph 4 of the petition. Neither any independent evidence was examined in support of the allegation made in paragraphs 4 and 6 nor any other documentary evidence was produced to support these C allegations. The petitioner was asked following specific question in cross- examination and it will be pertinent to reproduce here the replies given by him to these questions which reads as follows:- "Question.
7. ' I put it to you that not a single vote of dead person was cast in favour of the respondent.
8. ' Answer.
9. ' I can neither accept nor deny the suggestion.
10. ' Question.
11. ' I also put it to you that not a single vote in respect of those persons who were not present in Karachi on the day of poll was1 cast in favour of respondent No, 1.
12. ' Answer.
13. ' I cannot say that but people reported to me that such votes were cast."
14. ' From the above cross-examination it is absolutely clear that the petitioner was not even sure of the casting of the votes of dead persons and those who were not present at Karachi by the respondent No,1. In fact the source and the basis of this allegation was hearsay evidence as admitted in his cross-examination. The petitioner did not summon or examine the person who allegedly disclosed to him about these facts and in the absence of that evidence there was hardly any material available in support of these two issues I accordingly decide both these issues in the negative.
15. ' Issues 3 and 5.-I will take both these issues also together as they are interconnected and can be conveniently disposed of together. The allegation against respondent No, 1 that he resorted to violence which terrified the voters of the petitioner on several polling stations are contained in paragraphs 4 and 7 of the petition. Excepting citing the instance of one polling station, namely, Polling Station No, 9 K.I. Garden Primary School the allegation of violence at other places is of general, nature and no particulars at all are given in the petition. Even the names of those persons who allegedly caused violence at the instance of respondent No 1 are not disclosed nor even the place of such violence is mentioned. The learned counsel for the petitioner very vehemently contended that one Fakir Muhammad was injured at polling station No 9 as result of violence by supporters of respondent No, 1 and, therefore, according to learned counsel this single allegation was sufficient to show that the polling process was disturbed as a result of violence on the part of respondent No,
1. There is no evidence on record in support of these allegations except the word of petitioner which is contained in paragraphs 4 and 6 of the petition and that too are vague except in respect of polling station 9 K.I. Garden Primary School. Even in respect of allegation in respect of K.I. Garden Primary School neither names of those persons who allegedly caused the disturbances nor those voters who allegedly left as a result of disturbances are mentioned. No voter was examined and no other evidence was led in support of the allegation that any act of violence was perpetrated by respondent No, 1 or by his supporters and that as a result thereof certain voters left the polling .Station. The learned counsel for the petitioner has very vehemently relied on the incident alleged to have taken place on polling station No 9 K.I. Garden Primary School where on Fakir Muhammad was allegedly injured by 'the respondent No, I. To support his contention the petitioner has relied on a letter alleged to have been written by the police authorities referring said Fakir Muhammad for medical examination. The, said Fakir Muhammad is neither cited as a witness in the case nor he has been summoned and examined in the case. In cross-examination the petitioner was asked to give further details about the incident but he stated that except lodging of the report he cannot say anything further about the incident. He was specifically suggested in the cross-examination that no disturbance of any kind had taken place at the polling station nor any such incident has taken place in which Fakir Muhammad was injured. Although he denied the suggestion but the respondent No, 1 in his statement categorically stated that no such incident has taken place nor any such police report was lodged and, therefore, in the absence of any other evidence in support of the petitioner the allegation contained in paragraphs 4 and 7 cannot be said to have been proved. There is equally no evidence in record to show that the polling at any polling station remained suspended as alleged by the petitioner. Neither official witnesses were summoned to prove these facts nor any other independent evidence was brought on record in support of these allegations. I accordingly hold that the petitioner has failed to prove issues 3 and 5.
16. ' Issue. No, 6-On this issue the petitioner has alleged that the respondent No, 1 allegedly incited communal feeling by circulating pamphlets which alleged that respondent No, 6 was not a Muslim which created ill feelings between Ismailis on one hand and other inhabitants of the locality on other. No material has been produced in support of this allegation nor even the alleged pamphlets which were circulated by respondent No, 1 were produced in evidence. On the contrary he admitted in the cross-examination that the people of Isamaili community were not willing to support his allegation. I, therefore, hold that the petitioner has failed to prove this issue.
17. ' Issue No, 7.-This issue was not pressed by the petitioner and, therefore, it is not necessary to give any finding on this issue.
18. ' Issues Nos. 8 and 9-These issues will be dealt with together as they are inter-connected. The allegation of the petitioner is that the counting of votes at 11/12 polling stations was not done after the polling was over. He has further alleged that he was called by the Returning Officer on 3rd of March, 1985 for the purpose of official counting of the votes but in Spite of his protest no counting was done by the said officer. It is an admitted position that on 3rd of March, 1985 the result of the elections were consolidated by the Returning Officer. It is not disputed by the counsel for the petitioner that the petitioner alongwith his polling agent was present before the Returning Officer on that date. It is, however, claimed by the petitioner that he raised objection with regard to the non-counting of the votes and consolidation of the result but there is nothing on the record to show that any such protest was raised or made by him in writing to the Presiding Officer which is the requirement of law. The only application which was sent by the petitioner alleging non- counting of the votes is contained in a letter, dated 6th March, 1985 which was allegedly sent by him to the Provincial Election Commission, Karachi, but this was sent 3 days after the consolidation of the result and no effort was made even to prove this document that it was actually received by the Election Commission. As the petitioner has not raised any objection either before the Presiding Officer with regard to the counting of the voted or before the Returning Officer with regard to the non-counting of the votes and against the consolidation of the result the Returning Officer was not obliged to count the votes. Again. The learned counsel for the appellant has relied on the unofficial result of the election published in Jang, dated 2nd March, 1985 and it is contended that in these results which were published in the newspaper although the respondent No, 1 was shown to be a successful candidate but the number of votes secured by him were not mentioned which supported his contention. The perusal of the Press report appearing in Jang of 2nd March, 1985 will show that these results were published on basis of the information received by the Press from the news agencies. Mere fact that the number of votes were not mentioned in the aforesaid reporting by the News agencies is not conclusive of the fact that no counting of the votes was done. The petitioner has not led any evidence by summoning the Returning Officer or any other officer of the Election Commission to show that no counting of the votes was done before declaration of official result. Certified copy of the result sheet shows the number of votes obtained by- petitioner, respondent No, 1 and other contesting candidates and nothing has been brought on record to show that the result as shown in Form XVII was not correct. The learned counsel for the petitioner contended that the petitioner in his evidence before the Tribunal has stated that in case recounting of votes is made, he will not press any other allegations .In the petition and he accordingly prayed that in these circumstances the Tribunal may order for recounting of votes in order to satisfy the demand of the petitioner. I am afraid that in the absence of a justification made out by the petitioner for ordering recounting of the votes it cannot be ordered simply on the ground to satisfy the demand of the petitioner. I accordingly hold that the petitioner has failed to prove issues Nos. 8 and 9. Apart from the above issues one more issue was also framed with regard to the maintainability of the petition on 14-10-1985 which is as follows:- "Whether the petitioner is maintainable on account of non-compliance of provisions of section 55 of the Representation of People Act, 1976?"
19. ' The burden of proving the above issue is on respondent No,1. The learned counsel for respondent No, 1 contends that the petitioner is liable to be dismissed as it did not contain full particulars of alleged corrupt practices on the part of respondent No,1 as required under section 55 of the Representation of People Act, 1876. I have already referred to various paragraphs of the petition wherein allegations of corrupt practices are made against respondent No,
1. Although in respect of some of the allegations of alleged corrupt practices, full particulars as required under section 55 of the Act are not mentioned but this is not true of all the allegations in the petitions. I am, therefore, of the view that if the petition is based on several allegations of corrupt practices and out of them particulars are mentioned only in respect of some of them, the petition cannot be dismissed as not maintainable under section 63 of the Act. It is only in those cases where the petition as a whole did not comply with the requirement of section 55 of the Act that it can be dismissed as not maintainable under section 63, ibid. ' My above conclusion is supported by the pronouncement of Supreme Court in the case of S.M.
20. Ayub v. Yusuf Shah PLD 1967 SC 486 wherein the Court while interpreting identical provisions constituted in sections 59 and 67 of. National and Provincial Assemblies (Elections) Act (VII of 1964) observed as follows:- "The Act provides the machinery for redress in cases where an election is vitiated by resort to corrupt or illegal practice or to some other illegalities, of course subject to the technical restriction imposed by the provisions of the Act, as regards the form of the petition, its contents and the procedure applicable to it. The provisions of section 67 of the Act should receive a reasonable interpretation such as would advance the cause of adjudication of the substantial dispute between the parties, falling within the purview of the Act, rather than shut out the decision of even genuine cases. We are disposed to hold, therefore, that the extreme view which found favour in the High Court as to constitution of section 67 is erroneous. There is nothing in the Act to give countenance to the contention that even if single defect in the petition, in respect of the paragraph would justify its being thrown out as whole. This construction would amount to reading into section 67 words that do not exist there. The true construction of this section seems to be that, if the petition ,taken as a whole fails to comply with the provisions of section 59, it shall be dismissed as revealing no cause of action."
21. ' In the present case the petition did contain necessary particulars with regard to some of the allegation of corrupt practices against K respondent No, 1 and, therefore, it is maintainable.
22. ' As a result of my findings on issue Nos. 1 to 9 the petition is dismisssed but there will be no order as to costs.
23. Election .