' The petitioner who was a candidate in the Provincial Assembly Election for Seat No, P.S. 100 Karachi, has challenged through this petition election of respondent No, 1 as the returned candidate from the said Constituency.
' The election of respondent No,
1. Is challenged on the ground of alleged corrupt and illegal practices as stated in paragraphs 4 to 7 of the petition. It is also alleged that one of the respondents, namely, respondent No, 24 was not a registered voter in the constituency and because of his participation in the election the result of the elections have been materially affected and, therefore, for this reason also the election is liable to be declared void as a whole. The petitioner is contested only by respondent No 1 who filed his written statement as well as affidavit of evidence. Respondent No 1 has raised preliminary objections as to the maintainability of the petition and it is contended on his behalf that the particulars regarding corrupt and illegal practices as required under section 55 of the Act have not been mentioned, that the verification of the petition is not in accordance with Order VI, Rule 15, C.P.C. And that the affidavit of petitioner and other witnesses were not filed with the petition and, therefore, the petition is not maintainable. The following issues were framed by me on 25-8-1985 after hearing the learned counsel for the parties:-
(1) Whether respondent No, 1 is guilty of corrupt and illegal practices mentioned in paragraphs 4 to 7 of the petition. If so, what is its effect on his election and on the election as a whole?
(2) Whether the name of respondent No, 24 was not registered as a voter in the Constituency. If so what is its effect on the election of respondent No, 1 and on the election as a whole?
(3) Whether the petition is not maintainable in law? (4). To what relief, if any, the petitioner is entitled?
' The petitioner in support for his case has filed his own affidavit 'of evidence besides submitting affidavits of Abdul Saleem, Attaullah Khan, Mushtaq Ahmed, Muhammad Hanif and Muhammad Arif. He has also produced in evidence the Returning Officer of Constituency No, P.S.
100. The respondent No, 1 has filed his own affidavit of evidence and thereafter he gave up other witnesses whose affidavits were filed by him. Respondent No 24 after the close of the case of petitioner appeared in Court and prayed that he may be allowed to be examined in the case. The evidence of respondent No 24 was recorded subject to the objection raised by the learned counsel for respondent No, 1 and the petitioner that he could not be examined at such late stage. I have heard the learned counsel for the petitioner and respondent No,1 at length. Before adverting to the issues framed in the case I would like to dispose of some of the preliminary objections raised on behalf of the parties in the petition. The respondent No 1 has raised preliminary objection that the evidence of the petitioner and his witnesses could not be considered in the case as their affidavits of evidence were not filed alongwith the petition as required under the Rules. Similarly the petitioner has also raised objection that the evidence of respondent No I should not be considered at all as he had not filed his affidavit of evidence within seven days of the service of the petition on him. There is also objection raised both by the petitioner and respondent No, 1 to the examination of respondent No, 24 at the late stage as he did not file any written statement or affidavit of evidence after service of the notice of petition. In order to dispose of these preliminary objections it is necessary to refer to the following facts.
' The election petition was presented by the petitioner in the office of the Election Commission on 21-4-1985. Alongwith the petition the petitioner submitted registered A.D. Receipts showing that the copies of the petition were despatched to the respondents on 18th April, 1985. The respondent No, 1 claims that he was not served with any notice of the filing of the petition by the petitioner nor he received notice of the petition. It is an admitted position that at the time the petition was presented by the petitioner on 21-4-1985 it was not accompanied by affidavits of evidence and therefore, the petitioner was called upon by the Commission by telegram, dated 30th April, 1985, to submit immediately list of witnesses and their affidavits. On 26-5-1985 the petitioner through telegram informed the office of the Election Commission that the required affidavits and the list of witnesses are being sent separately by postal mail. The affidavits of the witnesses were sworn on 26-6-1985 before the Oath Commissioner but there is no date mentioned on these affidavits regarding their receipt in the office of the Election Commission. The first date of hearing of the petition was fixed before me on 18-8-1985 arid on that date the learned counsel for the respondent No, 1 Mr. Raja Haq Nawaz appeared and stated that although he has not received the notices of the petition he undertakes to file power as well as written statement within seven days. The respondent Np. 1 was also present and so also the counsel of the petitioner. The respondents Nos. 2 to 27 were called but they were absent. On that date I adjourned the case to 25-8-1985 and, allowed time to respondent No 1 for filing the written statement in the case. On 25-8-1985 respondent No 1 filed his written statement copy whereof was supplied to the learned counsel for the petitioner in Court. The counsel of respondent No 16 who was present in Court filed an application for extension of time to file written statement on which I granted time to respondent No, 16 to file the same subject to all just exceptions before the next date of hearing. On the same date, namely, 25-8-1985 after considering contentions in the petition and the written statements. I framed the issues in the case.
The case was then adjourned to 23-9-1985 for evidence of the parties. On 23-9-1985 when the case came up for evidence the learned counsel for the respondent No, 1 filed an application stating that he has already taken preliminary objection in his Written statement that no affidavits of evidence of the petitioner or his witnesses have been filed in the case and that in spite of the promise of the learned counsel for the petitioner to supply copies of the same he has not been supplied copies of these affidavits till that day. Thereupon the counsel for the petitioner supplied copies of the affidavits of the petitioner and his witnesses to the counsel for respondent No, 1 in Court. After receiving the copies of the affidavits the learned counsel for respondent No, 1 prayed that he may be given time so that he may go through these affidavits of evidence. The learned counsel for the petitioner also admitted before me on that date that the copies of the affidavits of the petitioner and his witnesses could not be supplied earlier although they were filed before the Commission on 27-6-1984. In view of the fact that the copies of affidavits of evidence of the petitioner and his witnesses were supplied to respondent No, 1 only on 23-9-1985 I granted time to the counsel for respondent No, 1 until 17-10-1985. It may also be mentioned here that respondents Nos. 16 and 24 also filed their written statement in the case on 23-9-1985 which were kept on record subject to the objection raised by the learned counsel for respondent No, 1 that they could not be filed now. Thereafter the case was adjourned to 17-10-1985 for evidence of petitioner. On 17-10-1985 the petitioner and his two witnesses were cross-examined by the counsel for respondent No, 1 and the case was adjourned to 17-11-1985 for the remaining evidence of the petitioner. On 17-11-1985 the petitioner examined his remaining witnesses and respondent No, 1 filed his own affidavit and affidavits of his witnesses. The learned counsel for the petitioner objects to the consideration of the affidavits of respondent No, 1 and his witnesses on the ground that the same were not filed within 7 days of the service of notice of petition on respondent No,
1. I have already referred to the dates of the service of notice of petition on respondent No,
1. I have already referred to the dates of filing of petition and affidavits of evidence by the parties. It is clear from the above-stated facts that although the petition was submitted by the petitioner on 21-4-1985 to the Election Commission but at that time it was not accompanied by the copies of affidavits of the petitioner and his witnesses.
It is also admitted position that the notice alleged to have been sent by the petitioner did not contain the affidavits as they were admittedly filed much after the filing of the petition, after objection was raised by the Election Commission, This fact was also admitted by the petitioner's counsel before me on 23-9-1985 when the petition came up for hearing. Although alongwith the petition petitioner had filed registered receipts showing despatch of petition to the respondents but in view of the denial by respondent No, 1 that he received copy of the notice it was duty of the petitioner to have proved the service of the petition and the annexures on respondent No,
1. On 18- 8-1985 when this petition came p for hearing for the first time before me a statement was made by ,ounsel of respondent No, 1 that no notice was served on him and I allowed him time until next date of hearing, namely, 25-8-1985 for filing the written statement. The, written statement was so submitted by the respondent. No, 1 which is on oath and it has not been shown to me if any prejudice has been caused to the petitioner by allowing time to respondent No, 1 to file the affidavits. Even otherwise in the circumstances of the case and in the absence of proof of service of notice of the petition and annexures on respondent No, 1 he could be granted time by the Tribunal for filing the written statement in the interests of justice. Regarding objection of the petitioner that the affidavits filed by respondent No, 1 and his witnesses could not be considered and taken on record it will suffice to say that the copies of the affidavits of petitioner and his witnesses were not filed in accordance with Rule 1 of Notification No, F.I. (7)/85-Cord, dated 16-3-1985 alongwith the petition and they were filed much after the filing of the petition. It is also an admitted position that the copies of these affidavits were supplied to the counsel of respondent No, 1 in Court on 23-9- 1985. In these circumstances the application of Rule 3 ibid which required filing of written statement and the affidavits of witnesses by the respondent within 7 days of the receipt of the notice could not be insisted upon. The respondent No, 1 filed affidavits of his evidence and that of his witnesses on 17-11-1985 before the close of the evidence of the petitioner and it has not been shown or urged before me that any prejudice has been caused to the petitioner by filing or by allowing him to file the affidavits on that date. The learned counsel for the petitioner contends that at least the affidavit of respondent No, 1 and his witnesses should have been submitted to the Tribunal within 7 days of the supply of the copy of affidavits in Court on 23-9-1985. It is true that under Rule 3 the respondent is required to file the written statement and the affidavits within seven days of the service of notice but in the present case, as already pointed out earlier, the petitioner was himself guilty of not filing these affidavits alongwith the petition as required under rule 1 and, therefore, he cannot take advantage of that and deprive respondent No,, 1 from filing his own affidavit of evidence and that of. His witnesses in the case. Apart from it in the present case the respondent No, 1 has relied only on his own affidavit of evidence, and no useful purpose will be served by disallowing the same as in any case the written statement of respondent No, 1 is also on oath and can be considered as an affidavit of evidence in the case. I, therefore, do not find any substance in the contention of the learned counsel for the petitioner that the affidavit of respondent No, 1 and his witnesses could not be considered by the Tribunal. Similarly respondent. No, 1 has also raised objection that the affidavits of the petitioner and his witnesses cannot be considered in the case as they were not filed in accordance with Rule I which required filing of the affidavits alongwith the petition to the Election Commission. It is true that the affidavits of the petitioner and his witnesses were not filed alongwith the petition as required in rule I but this was only an irregularity for which the Commission allowed him time to comply the objection by filing the affidavits of petitioner and his witnesses. The petitioner did comply with the objection and filed his own affidavit and those of his witnesses before the Commission and therafter notices were issued to the parties for appearance before the Tribunal. No prejudice at all has been caused to the respondent No, 1 by not filing the affidavits alongwith the petition and in the absence of any prejudice I do not see any justification in disallowing the affidavits filed by the petitioner and his witnesses which were in any case filed much before the hearing of the petition by the Tribunal. I accordingly also overrule the objection of respondent No, 1 that the affidavits of the petitioner and his witnesses be excluded from consideration. There now remain the written statements filed by respondents Nos. 16 and 24. I had allowed time to respondent No, 1 on 18-8-1985 when this petition came up for hearing before me for filing the written statement upto 25-8-1985. None of the respondents filed the written statement by 25-8-1985 except respondent No,
1. The written statements filed by respondents Nos.
16 and 24 were taken on record subject to the objection of the learned counsel for respondent No,1.
Respondent No, 16 after filing the written statement has not appeared and contested the proceedings. However, respondent No, 24 was absent after filing the written statement but all of a sudden he reappeared in the case on 17-12-1985 through a counsel and made a request that he may be allowed to be examined in the case. The statement of respondent No, 24 was recorded after the close of the evidence of respondent No, 1 subject to the objection of respondent No, 1 and the petitioner. The learned counsel for the petitioner half-heartedly opposed consideration of the evidence of respondent No, 24 in the case and made a conditional argument. It is submitted by the learned counsel that in case the Tribunal is inclined to consider the evidence of respondent No, 1 the evidence of respondent No, 24 may also be considered but if the Tribunal disallowed the affidavit of respondent No, 1 then the evidence of respondent No, 24 may not be considered. The learned counsel for respondent No, 1 on the other hand contended that respondent No, 24 did not file his written statement within the time allowed by the Tribunal and, therefore, neither his evidence nor the written statement can be considered in the case. The written statement was submitted by respondent No, 24 on 23-9-1985 before evidence of any witness was recorded in the case. Although he remained absent on dates thereafter, but on 17-12-1985 he had appeared in the case and made request that he may be allowed to be examined in the case. No doubt respondent No, 24 did not submit any affidavit of evidence in the case but the written statement filed by him on 2-9-1985 is on oath and it can be considered as affidavit also. Since the affidavit of respondent No, 24 was allowed to be brought on record subject to the objection of respondent No, 1 and no reason has been shown by respondent No, 1 for not considering this written statement I do not find any reason not to treat it as affidavit of evidence and allow cross-examination and consideration of evidence in the case. I, therefore, disallow the objection raised by respondent No, 1 and the petitioner for considering evidence of respondent No, 24 in the case. The written statement filed by respondent No, 24 which is on oath will be treated as evidence and his cross-examination by the learned counsel for the petitioner and respondent No, 1 will be considered in that regard as evidence of respondent No, 24 in the case. Having dealt with the preliminary objections raised by the learned counsel for the parties I will now consider the issues framed in the suit.
' Issue No, 1.-The burden of proving this issue is entirely on the petitioner. The learned counsel for the petitioner has divided the alleged illegal and corrupt practices on the part of respondent No, 1 in five sub-headings, namely:-
(1) That the staff of K.M.C. Was posted during the election at the behest of the Mayor of Karachi who was a strong supporter of respondent No, 1 and, therefore, this staff clearly supported respondent No, 1 during the polls which resulted into adverse result against the petitioner.
(2) That some of the polling stations in the Constituency were changed abruptly on the day of polls with the result large number of voters could not cast their vote on account of such change.
(3) That the election campaign of respondent No, 1 was organized and conducted by Jamaat-e- Islami and the voters were induced and Influenced to vote by the said Jammaat in favour of respondent No, 1 which amounted to illegal and corrupt practices and that during this election campaign by Jamaat-e-Islami in favour of respondent No, 1 the voters were told that the petitioner being "Baralvi" by belief was not a Muslim whereas respondent No, 1 was a staunch Muslim.
(4) That bogus voting was arranged by respondent No, 1 in connivance with the staff of K.M.C.
Which favoured him during the polls.
(5) That the ballot paper books were pilfered by respondent No, 1 during the polls which facilitated causing of bogus votes and as a result thereof the result of the election was materially affected.
' The petitioner and his witnesses have alleged in their affidavits names of certain persons who were employees of the K.M.C. And were posted in connection with the election duties in the above Constituency. It is alleged that these persons openly aided respondent No, 1 in the election and allowed bogus voting to be carried on behalf of respondent No,
1. The evidence of the petitioner and his witnesses, however, did not show as to how the bogus voting was helped by the staff and how they helped and assisted respondent No, 1 during the election. The respondent No, 1 has denied that the above staff was posted at his behest- or at the instance of Mayor Sattar Afghani.
The Returning Officer who was examined in the case stated in his evidence that the staff of K.M.C.
And other departments was posted in consultation with the Election Commission for the election duties. No convincing evidence has been produced by the petitioner to show that the staff mentioned in paragraph 6 of his affidavit and those of his witnesses were not posted by the Election Commission or that any influence in the posting of this staff was exercised by respondent No,1. There is absolutely no evidence on record to show the manner in which the staff alleged to be of K.M.C. helped the respondent No, 1 in managing casting of bogus votes and indulging into unfair practices. The allegation made by the petitioner and his witnesses is absolutely vague and does not spell out A any particulars of the alleged illegal and corrupt practices by respondent No, 1 in connivance with the above staff of K.M.C. The petitioner and, his witnesses also alleged that Abdul Satter Afghani, Mayor of K.M.C. Was present 'during the. Polls in the constituency and he allegedly influenced the polling staff to act in favour of respondent No, 1 but this assertion of the petitioner could not be established and is belied by the evidence of Returning Officer who stated that he received no complaint regarding visit of Mr. Abdul Satter Afghani on the day of polls. The petitioner and his witnesses also did not assert that they made any complaint with regard to the alleged visit of Abdul Sattar Afghani during the polls to the Returning Officer or to any other agency responsible for the conduct of election proceedings. There is absolutely no evidence on record to show that the polling staff which was drawn by the Election Commission from the K.M.C. Was posted at the instance of respondent No, 1 in the constituency or that they helped or assisted respondent No, 1 in casting of bogus votes or in commission of corrupt practices during the -polls. The petitioner also claims that there was abrupt change of certain polling stations which had the effect of depriving large number of voters from casting their vote. It is alleged that polling stations Nos. 4, 6, 7 and 9 were abruptly changed on the day of poll. The allegation regarding change of polling stations contained in petitions and the affidavits of the petitioner and the other witnesses are identical. In paragraphs 5 (c)(i) to (iv) of the affidavit the allegations regarding change of the Polling Stations Nos. 4, 6, 7 and 9 increase of votes at Polling Stations Nos. 20 and 21 are made. Except the interested word of the petitioner not a single independent witness has been examined to show that as a result of any change in the polling stations they could not cast their vote. Although change of polling stations is alleged by the petitioner and his witnesses but it is nowhere stated in the affidavits of evidence of the petitioner or his witnesses that on account of change in the polling stations any voter was deprived of the casting of his vote. It is also not alleged either by the petitioner or his witnesses that the polling, as a result of change in the polling stations, was less in those polling stations. None of those alleged voters who could not cast their vote as a result of change of the polling station were examined by the petitioner in support of these allegations. The Returning Officer who was examined in the case denied that there was any change in the polling stations on the day of polls. He has produced the original Gazette notification under which the polling stations were notified and it bears the date of 12th February, 1985. The learned counsel for, the petitioner suggested in examination-in-chief to the Returning Officer that this notification though bears the date of 12th February, 1985 but it was published much after that date but this suggestion was not accepted by this witness (Returning Officer). Nothing has been brought on record by the petitioner either in his own evidence or in the evidence of any of his witnesses that these polling stations were originally notified at different places and thereafter their locations were changed. In the absence of any evidence showing the original location of these polling stations the question of change of their location does not arise. There is absolutely no evidence on record to show that any change in the polling stations as alleged by the petitioner had taken place on the day of polls which resulted in depriving any voter to cast his vote. The next contention of the learned counsel for the petitioner is that the election campaign of respondent No, 1 was organised and carried out by Jamaat-e- Islami. In this connection the petitioner has relied on pamphlets Annexures "B" to "E" besides alleging that several outstanding leaders of Jamaat-e-Islami came in the constituency of the petitioner and canvassed for respondent No,
1. The respondent No, 1 in his evidence has denied having issued the pamphlets Annexures "B" to "E" to the petition and he has also denied any association with any political party. Although respondent No, 1 has admitted that in his election one Shaft Malik and two other persons, namely, Rahim Karim and Mukhtiar Goher assisted him in his election campaign but out of them Shall Malik himself was a contesting candidate for National Assembly seat in the same-arva while Rahim Karim and Mukhtiar Gohar are Municipal Councillors in the area of the petitioner. The fact that these persons canvassed for respondent No, 1 during his election is no proof of the fact that any political party had organized the election campaign of respondent No,
1. No evidence worth the name was brought on record to show C that the political party (Jumaat-e-Islarni) officially or unofficially organized the election campaign of respondent No,
1. It was also not shown that the persons who allegedly belonged to Jamaat-e-Islami assisted and propagated for respondent No, 1 at the behest of the political party (Jamaat-e-Islami). Even otherwise the fact that some of the supporters of respondent No, 1 belonged to some political party cannot be a conclusive proof of the fact that the election campaign of the respondent No,1 was organized by that political party. The learned counsel during the course of arguments conceded that although there is no evidence to show that Jamaat-e-Islami in fact organized and conducted election campaign of respondent No, 1 but there was evidence to show that the votes were sought and canvassed by the respondent No, 1 on the basis that the petitioner being a 'Baralvi' was not a Muslim while respondent No, 1 is a true Muslim. No such allegation has been proved by the petitioner in his evidence. It is not even alleged by the petitioner or any of his witnesses that during the election campaign, respondent No, 1 at any time or in any meeting stated that the petitioner being a 'Baralvi' was not a Muslim while he was a true Muslim. Similarly regarding the allegation of bogus voting it is conceded by the learned counsel for the petitioner that the same could not be established. The last allegation under the corrupt illegal practices against respondent No, 1 is pilferage of ballot paper books.
' Issue No, 2.-The learned counsel for the petitioner has contended that because of participation of respondent No, 24 a wrong name the result of the election has been materially affected.
Respondent No, 24 in his written statement has denied any impersonation and has stated that there appears to be a bona fide mistake in recording his name in the electoral list. In cross- examination to the counsel for the petitioner he, however, stated that he had told the Returning Officer that his name is not correctly recorded but the Returning Officer allegedly told him that there is no difference between his name and the name which appears in the electoral list. He also stated in cross-examination to the learned counsel for the petitioner that he was told by the Returning Officer that he should contest the election and, therefore, he contested the election and in this way Jamaat-e-Islami was benefited. The statement made by this witness is of no avail and is noteworthy of any credence. Nowhere in his written statement this witness stated that he was persuaded by Returning Officer to contest the election nor any such question was put to the.
Returning Offider when he was in the witness-box in cross-examination. The evidence of this witness appears to have been managed by petitioner but it does not in any way improve the case, as admittedly he secured only 601 votes in the election while the difference of votes between petitioner and respondent No, 1 is about 2,000. Apart from it the learned counsel for respondent No, 1 rightly pointed out that in view of section 68(2)(b) the election of the petitioner could not be affected. The learned counsel for the petitioner has not been able to show the manner in which the election of the petitioner or election as a whole has been affected by participation of respondent No, 24 under a different name. It is accordingly decided that the participation of respondent No, 24 in the election has not in any way affected the result of the election.
Issue No, 3.-The burden of proving this issue is on respondent No, 1 who has raised it in his written statement. The learned counsel for the respondent contends that as the petition was not accompanied by the affidavits of the petitioner and his witnesses in accordance with Rule 1, therefore, it is liable to be dismissed as not maintainable. It is also contended by the learned counsel for the respondent No, 1 that since the petition is based on vague and uncertain allegations and no particulars as required under section 55 of the Act are given, therefore, the petition should be dismissed as not maintainable. In so far the non-filing of the affidavits of the petitioner and his witnesses is concerned, I have already dealt with the submission of the learned counsel for respondent No, 1 earlier in this order. In so far the particulars required to be given under section 55 of the Act are concerned, no doubt in respect of some of the allegations no particulars are given but in respect of other allegations the names and places are also mentioned. After reading the petition as a whole it cannot be said that in respect of all the allegations levelled in the petition no particulars are given as required under section 55 of the Act. It is only in those cases where after reading the petition as a whole it is not possible to ascertain the allegations and they are found to be lacking completely in respect of details and particulars that the petition could be dismissed under section 63 of the Act. After all it should be kept in mind that while filing the petition the petitioner is not required to state the evidence in support of the plea. Only broad facts are required to be stated with as much possible details as are available with the petitioner at the time of the filing of the petition. It will be too technical a view if the petitioner is non-suited on the ground that in respect of each and every allegation made in the petition the full particulars as required under section 55 have not been stated by him See S.M. Ayub v. Yousuf Shah PLD 1978 SC 486. In the present petition I find that at least in respect of some of the allegations the petitioner did mention the names of the persons involved and the places where alleged corrupt practices took place and, therefore, it cannot be said that the petition is liable to be dismissed on account of non- compliance of the provisions of section 55 of the Act. I accordingly hold that the petition is maintainable in law.
As a result of the finding on issues Nos. 1 and 2 no case is made out for interference with the election result and the petition is accordingly dismissed.TE##