' This Election Petition under section 52 of the Representation of Peoples Act, 1976 has been filed by Ghulam Mustafa who contested Sind Provincial Assembly Election from Constituency No,PS 35 Larkana-V and was defeated. He has challenged the Election of respondent No,1, Kazi Akhtar Ali, who was declared successful.
' The Provincial Assembly Elections were held on 28th February, 1985 and nine candidates contested election from Constituency No,PS 35-Larkana V. Kazi Akhtar Ali secured 12,213 votes, while petitioner got 7,380 votes. The election petition has been filed by the petitioner only. However, respondents Nos. 2, 3 and 8 Altaf Hussain, Roshan All and Nazir Ahmed, participated in the proceedings. They were represented by Advocates.
3. The grounds for declaration of election as void as given in the petition are:
(1) that respondent No,1 was serving as Principal Law College, Larkana and was drawing remuneration, therefore, was not entitled to contest Election.
(ii) the Polling Agents of petitioner from 12 Polling Stations were harassed by armed man of Nawabzada Shabbir Ahmed Khan Chandio supporter of Kazi Akhtar.
4. Petitioner examined six witnesses in support of his Election petition while respondent examined himself. The petitioner filed an application under section 63 of the Representation of Peoples Act, 1976 during the pendency of the petition. On the other hand respondent made an application under section 148, C.P.C. For extension of time as he could not file written statement in time.
5. By consent of the parties the following issues were framed:-
(1) Whether petition is maintainable as framed.
(2) Whether respondent No,1 was disqualified from being elected as a member as he was at the time of nomination date, Principal Government Law College, Larkana and drawing remuneration.
(3) Whether the election of the first respondent has been procured or induced by any corrupt or illegal practices and/or with the consent or connivance of the first respondent or his Election Agent.
6. I have heard Mr. Shehanshah Hussain, Advocate for the petitioner and Mr. Muhammad Ali Sayed for the respondent No, 1, Mr. I.H. Zaidi for the respondents Nos. 2 and 8. Mr. Ellahi Bux Kehar appearing for respondent No,3.
7. Mr. Muhammad All Sayed contended that petition is vague as full particulars of corrupt or illegal practice or illegal acts are not given in the petition, therefore, petition is liable to be dismissed as provided under section 63 of the Representation of the Peoples Act, 1976 (hereinafter to be referred to as Act). He referred to a case reported in PLD 1966 Lah.
755.
' Mr. Shehanshah Hussain, learn-ed counsel of the petitioner argued that precise statement of illegal acts is given in the memorandum of the petition, which meets the requirements of section 55 of the Act. He cited PLD 1967 SC 486, PLD 1978 Jourl. p. 81, AIR 1968 SC 770 and some other cases.
' The memorandum of Election Petition is at Exh.7/1. The election has been challenged on the grounds of disqualification of respondent No,1, Kazi Akhtar Ali and illegal and corrupt practices as mentioned in para. No,3 of the petition where it is specifically stated that Polling Agents of petitioner from 12 Polling Stations (names of Polling Stations are given in the petition) were driven out and bogus votes were cast and Ballot Boxes were not sealed:- ' Section 55 of the Act reads as under:- "55 Contents of petition.--(1)' Every election petition shall contain--
(a) a precise statement of the material facts on which the petitioner relies:
(b) full particulars of any corrupt or illegal practices or other illegal act alleged to have been committed, including as full a statement as possible as to 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) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of file following declarations namely: -
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition and every Schedule or Annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for verification of pleadings."
' In case of Muhammad Shafi v. Election Tribunal Bahawalnagar District and another reported in PLD 1966 (W P) Lah. 755, it has been observed as under:-- "An election petition shall set forth clearly on the grounds on which the petition is filed and the relief sought.
' It would follow from this rule as well as the general principles governing the disposal of election petition and the jurisdiction of Election Tribunals, that it is necessary for a petitioner to clearly indicate the grounds on which he is challenging the election of a returned candidate, In order to subsantiate his allegations of corrupt practices the petitioner has to lead evidence in support thereof and the returned candidate has to be afforded an opportunity to rebut that evidence, if he so desires. It is for this reason that it is necessary to give full particulars of the alleged corrupt practice in the election petition, as otherwise the returned candidate is likely to be prejudiced. One can, of course, envisage an irregularity or contravention of the relevant statute appearing on the face of the election record which is made available to the Election Tribunal, and in that case it may perhaps be permissible for the Election Tribunal, to take note of such irregularity without there being mention thereof in the election petition but that would be on the basis that, the matter is apparent on the face of the record and does not require rEcording of evidence in support or rebuttal thereof. This cannot, however, be said about an allegation of a corrupt practice which has to be proved or disproved by the parties concerned by hearing evidence."
' In case of S.M. Ayub v. Syed Yousuf Shah and others reported in PLD 1967 SC 486, it has been held that there is nothing in the Act to give countenance to the contention that even a single defect in the petition in respect of paragraph would justify its being thrown out as a whole. The case of Bostan Ali Hoti v. Muhammad Hanif Soldier and others reported in PLD 1978 Jour. 81 is relevant. It has bee held as under:- Relevant page 96-D.
"We have perused the election petition and we are of the vie that although the particulars of each and every corrupt an illegal practice have not been given in minute details but th election petition read as a whole indicates the purpose for whit it was filed and gives so much of the details as may reasonabl be considered necessary for entertaining and trying the same. The objection raised in this regard is devoid of force and I therefore, repelled."
' For the reasons stated above, I hold that the petition maintainable and is not liable to be dismissed as it contains precis statements of illegal act, etc.
8. Now I proceed to next issue about disqualification of respondent No,1. It is admitted position that Mr. Kazi Akhtar Ali is Principal of Law College, Larkana and it is also the case of petitioner in the petition that he is being paid, remuneration not a salary. It has been argued by Mr. Shahenshah Hussain that respondent No,1 is full-time Government employee and holds Office of Profit, therefore, he is disqualified to contest Election in view of section 99 (1)(j) of the Act. He has also referred to subsection 2(aa) of section 10 of Houses of Parliament and Provincial Assemblies (Election) Order, 1977 and submitted that Mr. Kazi is in service of body which is owned or controlled by th Government. He has cited, (1921) K B 423, AIR 1973 Mad. 379, AIR 1964 SC 254 and AIR, 954 SC
653. On the other hand Mr. Muhammad Ali Sayed argued that applicant is performing part time duties and is a Practising Lawyer, therefore, he is not a whole time Government servant and is not governed by Civil Services Rules, 1950. He has referred to a case reported in AIR 1960 Raj.
138. He has also argued that case of respondents is covered in exception of section 99 of the Act as he is paid remuneration. The provisions regarding disqualification of candidates are made in the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 as well as in the Representation of the Peoples Act, 1976. I now proceed to refer relevant provisions. The section 10(2)
(a) and -(aa) of House of Parliament and Provincial Assemblies (Election) Order, 1977 reads as follows: ' Qualifications and disqualification for membership of Parliament:
2. A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament:
(a) If, as provided in Article 63 of the Constitution:-
(1) he is of unsound mind and has been so declared by a competent Court; or
(2) he is an undischarged insolvent; or
(3) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(4) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(aa) if he is in the service of any statutory body which is owned or controlled by the Government or in which the Government has a controlling share or interest or."
' Article 10(9) is as under:-
(9) he holds any office of profit in the service of Pakistan other than the following offices, namely:--
(i) an office which is not whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of holding such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a force."
' Section 99 (j) of the Representation of the Peoples Act, 1976 is as under:--
(j) he holds any office of profit in the service of Pakistan other than the following offices namely:--
(i) an office which is not a whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars:
(iv) any office the holder thereof, by virtue of holding such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a force."
' On this issue petitioner in his petition stated that respondent No,1 was serving as Principal of Government Law College, Larkana on the date of election and was drawing remuneration as per Rules, therefore, not entitled to contest Election. He filed affidavit-in-evidence in which he stated that whatever is stated in the petition is correct.
' He in his cross-examination admitted that Kazi Akhtar Ali is a practising Advocate and classes of Law College take place in the evening and respondent attends his professional duties in the morning. He did not raise any objection to the nomination paper of respondent. Witness Ghulam Dastgir Exh.15 is Honorary Lecturer of Law College, Larkana. He produced files containing salary Bills and Notification. Respondent has admitted that after Notification, the College has come under the control of Government and he was appointed Principal by Government of Sind. He has stated that classes start from 6-00 or 6-30 p.m. And continue for two hours.
9. Law College was originally run by a Society. The appointment order of respondent is in the files produced by Mr. Ghulam Dastgir which show that on 1st June, 1967 respondent was appointed Honorary Principal on monthly Honorarium of Rs,500. By a Notification Education Department, dated 31st August, 1972, the Governor of Sind ordered the appointment of Principals for privately- managed colleges with effect from 1st September, 1972. In view of section 10(2)(a)(4) of House of Parliamant and Provincial Assemblies Order, 1,977 if any person hold an office of profit in service of Pakistan stands disqualified other than an office declared by Law not to disqualify its holder. In the sam order under section 10, subsection (2) para.9 a person who is no holding whole time office remunerated either by a salary or by fee I not disqualified. The same is position of section 99(j) of th Representation of the Peoples Act, 1976. These provisions regardin disqualification are applicable to candidate Member of National as wel as Provincial Assemblies. In the same Act the section 2(ii), (Definition) reads as under:- "(ii) "Assembly" means the National Assembly or Provincial,Assembly for a Province."
Law College Larkana is a Government Institution and its al employees are in service of Pakistan in view of Article 260 of the Constitution of Islamic Republic of Pakistan but even respondent is no a whole time employee. He is paid Remuneration for performing duties in the evening in addition to his professional duties as Advocate. Ful time Government servants are not allowed to practise and their SanadsC are liable to be suspended under the provisions of Bar Council Act. The facts of cases cited by the learned counsel for the petitioner ar distinguishable. In Pakistan Election Laws the persons holding par time office are not disqualified from contesting Election. The respondent Kazi Akhtar All in my view for the reasons stated above was no disqualified from contesting Provincial Assembly Election.
10. As regards corrupt practice the main allegation is that Polling Agents of the Petitioner from 12 Polling Stations were driven out by armed men of Nawabzada Shabir Ahmed Chandio and Administration helped the respondent. On this issue from the petitioner side, affidavitsin-evidence of Muhammad Yousuf Exh.8, Mauls Bux Exh.9, Muhammad Mithal Exh.10. Allah Bux Exh. 11, Haji Ghulam Murtaza Exh.12, Imam Bux Exh.13, were filed. They all have stated in their affidavits that they have gone through the petition and state that whatever is stated in the petition is true and correct.
They have not stated any thing more, than this. I have a great difficulty in discussing the evidentiary value of these affidavits., They have corroborated the contents of the petition.
' Ghulam Mustafa, petitioner in para.3 of the petition has stated that election continued in fair and peaceful atmosphere in all the Polling stations except 12 polling stations as mentioned in the petition. He in his cross-examination admitted that he appointed his polling Agents at all the 12 (Twelve) Polling Stations mentioned in the petition. He has not filed affidavits of his polling agents nor he has given their names in the petition. He had not filed any protest in writing to authorities but sent telegrams, on Saturday though Election was held on Thursday. Moula Bux Exh.9 has stated that he was Polling Agent of other candidate Nazir Ahmed (who did not file Election Petition).
Muhammad Yousuf Exh.8 and Muhammad Mithal Exh.10 stated that they are voters of the Constituency hence well conversant of the facts. Allah Bux Exh. 11 was Election Agent of the petitioner and also his partner in Rice Mill. Haji Ghulam Murtaza Exh.12 is brother of petitioner. He was his Election Agent and Imam Bux Exh. 13 was worker of the petitioner.
' Respondent No,2 Altaf Hussain and Respondent No,8 Nazir Ahmed also contested Election. They did not file election petition but on 1st, October, 1985 they appeared and requested to accept their written statements. The written statements were kept on file subject to objections and their affidavits-in-evidence were also taken. They have challenged the election of respondent No,1 on the grounds of disqualification and frequent complaints of voters being subjected to undue harassm ent. The grounds in written statements of both the respondents are same. Nazir Ahmed Exh.18 stated that he is Oath Commissioner and attested all affidavits of the witnesses of the petitioner. He is practising Lawyer at WARAH. It has been suggested that he was covering candidate of petitioner which he denied. Respondent No,2 Altaf Hussain in his evidence stated that respondent. No,1 was not qualified to contest Election and there were complaints of rigging in the election. He in his cross-examination admitted that he is witness of petitioner and filed affidavit.
Respondent No,3 Roshan All did not appear for evidence.
' The provisions regarding corrupt practice, bribery, undue influence are given in sections 78, 79, 81 of the Representation of Peoples Act, 1976. It is specifically mentioned in that petition that election was all fair except at 12 Polling Stations. It has also been admitted that Polling Agents were appointed by the petitioner at eac polling station but he has failed to give their names in the petition. I is also surprising that not a single Polling Agent has been examined. The petitioner has also failed to provide any documentary evidence I his support. The objection was not filed for casting bogus votes .b Polling Agents nor they challenged any vote. It is nit ,sufficient t. Declare election void that Sardar Shabir Ahmed Us influential perso and driven away their Polling Agents without any convincing evidence. Not a single case of corrupt practice has been registered for violation-of Election Laws. The non-official results of the Election came to the knowledge of the petitioner on 28th February, 1985 (Thursday). H sent telegram on Saturday after he came to know that he lost election. It is also surprising to note that petitioner in para.1 of Election petitio stated that applicant contested election on 28th March, 1985 wherea election was on 28th February, 1985.
The respondent Nasir Ahmad .And Altaf Hussain have not filed election petitions. They came and wer allowed to participate in the proceedings. Nazir Ahmad as Oat Commissioner attested affidavits of witnesses of the petitioner. He cam to file written statement in October, 1985, the other respondent Alta Hussain is witness of the petitioner. He filed his affidavit-in-evidenc for petitioner which has also been produced. They have not examine any witness in their support. Respondent No,3 Roshan Ali did not appear. His Advocate Mr. Ellahi Bux Kehar was allowed to cross-examine the witnesses. His contention is that election was fair. The petitioner did not examine the Returning Officer of the Polling Station nor such request was made, though Returning Officer filed written statement. The allegations of corrupt practice in the election have not been proved.
' Lastly there is an objection to the filing of belated written statements. In view of Articles 3 of Notification, dated 16th March, 1985 of Election Commissioner that respondent shall upon the receipt of Notice of the petition from the petitioner within seven days has to file the written statement. It is contended by the respondent No,1 that he received letter from Election Commissioner, dated 22nd July, 1985 in which he was asked to file written statement within seven days as such he filed written statement within time. However, all the respondents made applications under section 148, C.P.C. For extension of time. The written statements were allowed to be produced and respondents were examined. The fact that consequential relief for not filing written statement is not provided in Election Laws of Notification of Election Commissioner, therefore, tribunal may revert to consider provisions of C.P.C. If this relief is considered under the provision of Civil Procedure Code then applications under section 148, C.P.C. Are competent. On this a reference could be made to a case reported in PLD 1984 Kar., 449. In these circumstances the petition is liable to be disposed of on merits, therefore, it is suffice to say that written statements have been exhibited and evidence given by the respondent has been considered as they appeared and petitioner was afforded full opportunity of cross-examination and of petition case is not prejudiced. No finding is necessary on this issue.
I have dealt with all the issues in detail. The upshot of the above discussion is that respondent Kazi Akhtar All was not disqualified from contesting Provincial Assembly Election. The petitioner has failed to prove any act of illegal and corrupt practice in the Election. As such the Election Petition having no merit is dismissed.
Election .