' The petitioner Muhamfnad Shafi Malik (defeated candidate) has filed this Election Petition under section 52 of the Representation of the Peoples Act, 1976 against...Respondent No,2 Muhammad Usman Khan Noori (hereinafter to be referred as respondent) (declared elected). He prayed that Election of the respondent be declared void and petitioner be considered as duly elected Member from Constituency No,NA-194, Karachi-III.
2. From Constituency No,NA-194, Karachi-III in all nine candidates including petitioner and respondent contested the Election. Respondent Muhammad Usman Khan Noori secured 17,392 votes while petitioner got 12,424 votes. In this Election Petition the allegation is that due to amendment in the limits of the Constituency Nos.NA-193, NA-194 and NA-195 there had been a great confusion and voters could not cast their votes as they were not aware about the new developments. It is also stated in the memorandum of the petitioner that on 25th February, 1985, arbitrarily the polling stations were changed and about 1,160 voters whose particulars and addresses were not printed were deprived of their right of franchise. It has also been alleged that the respondent has responded as his proposer Nasim's signature was forged as he was out of country since 6-7 months prior to the Election and has not visited Pakistan since July, 1984. It is also grievance of the petitioner that respondent used mosque for the purpose of Election campaign and published material containing sectarian feelings with male fide which comes under the ambit of corrupt practice. There are also allegations of wall writing, posters, etc.
3. Respondent Muhammad Usman Khan Noori in his written statement denied all the allegations.
On the specific -allegations of the petitioner about the forged signature of his proposer Nasim on nomination paper, he has denied in written statement and stated that petitioner be put to proof and has taken the plea that petitioner could have taken this ground of disqualification at the time of scrutiny of nomination paper. The respondent filed written statement after the lapse of the statutory period as period as per provided in Article 3 of Election Commission's Notification, dated 16th March, 1985. This was also objected by the petitioner.
4. By consent of the parties the following issues were framed:--
(i) Is the petition incompetent for non-compliance of section 55 of the Representation of the Peoples Act?
(ii) Is the signature of Nasim at Sr.No,1 of the respondent No,2's nomination paper a forgery, if so, to what effect?
(iii) Is the election of the respondent No,2 vitiated by alleged corrupt and illegal practice?
(iv) Was there any breach of any provision of the electoral Law in regard to the elections held on 25th February, 1985 in NA-194 if so, to what effect?
5. The petitioner in support of his case produced some documents alongwith petition and also examined Abdul"Majeed Exh. 612, Muhammad Rustam Qureshi Exh. 7, Muhammad Munir Exh. 8, Abdul Ghaffar Exh.9, Muhammad Aslam Mujahid Exh. 11, Shaffat All Exh. 10 and Ghulam Ali Shah Returning Officer Exh.
12. On the other hand respondent Muhammad Usman Khan Noori examined himself and did not produce any other witness in his support. The remaining seven defeated contesting candidates did not participate in this Election Petition.
6. Petitioner Muhammad Shafi Malik produced his Election Petition which is on oath and has been considered as his Examination-in-Chief. He has corroborated the contents of the petition. He has admitted to have association with defunct Jamat-e-Islami since 23rd February, .1957. He has admitted that from various constituencies of Karachi city, the persons of defunct Jamat-e-Islami ,participated in the Election, but he has denied the suggestion to have contested Election on party basis. He has stated that he does not recall if he has given anything in writing to the Returning Officer, the Presiding Officer or the Election Commission about his grievance as made in the Election petition but complained to Returning Officer and his staff verbally. He has stated that banners and handbills were published and circulated for him. He did not raise any objection to the nomination paper of Muhammad Usman Khan Noori but subsequently he came to know that at the relevant time his proposer Nasim was out of country, therefore he had taken this ground in the petition. He produced some handbills and cuttings from newspapers and other documents showing that respondent was nominee of Awam-e-Ahle-Sunnat. The photo copy of letter alleged to have been issued by Alama Abdul Mustafa Al-Azhari has also been produced. Abdul Majeed Exh.6 in his affidavit stated that proposer Nasim having Serial No,164 of Union Council 136 is personally known to him since last 20 years arrd his family is living in his neighbourhood. He has stated that signature of Nasim appearing in nomination paper is a forged one as he was out of country during the filing of nomination papers for the National Assembly Elections, in January, 1985.
He has also stated that banners, voters cards, stickers, handbills, posters and other publicity material was circulated by the respondent No,2 as he tried to establish that he was theonly candidate of Ahle-Sunnat. His evidence is that respondent has, exploited the sectarian feelings of the electors of the constituency which has materially affected the result of the elections.
Muhammad Rustam Qureshi Exh.7 has also stated that Nasim proposer of the respondent is personally known to him since 20 years as he is their neighbour in the South Area of Korangi-1. He has stated that at that time Nasim was out of country and his signature on nomination paper is forged. He has also corroborated the statement of Abdul Majeed in respect of posters, etc. Muhammad Munir Khan Exh.8 has deposed that he saw a supporter of respondent writing slogans on walls that respondent was only candidate of Hanfi, Barelvi, Ahle-Sunnat which adversely affected the interest of the petitioner. He has also deposed that on 17th February, 1985 at the house of Late Master Ahmed Hassan respondent came for special meeting arranged with the organization namely, Anjuman Naujawanan-e-Millat. In that meeting, he called upon Anjuman to vote for him as he belonged to Barelvi, sect and declared that petitioner was a Wahabi and the Members of the Anjuman will invite divine displeasure if they vote for the petitioner. The members of the Anjuman requested the respondent to refrain from exploiting the sectarian feelings. Abdul Ghaffar Exh.9, has also stated that Nasim Ahmed son of Abdul Rasool whose name appears in the voters list of Union Committee 136 was not present in Pakistan since July, 1984, as he is`working in Saudi-Arabia. He was told by father of Nasim that his son has not come to Pakistan. According to him, he lives in the neighbourhood of Abdul Rashid, the father of Nasim. He has stated that Abdul Rashid has four sons namely, Rais Ahmed. Nasim Ahmed, Wasim Ahmed and Naeem Ahmed. He also states in his ...Posters, etc. Which also blatently and violently aroused the sectarian feelings and hatred against his rival candidate, particularly the petitioner. He has further stated in para. 6 of the affidavit that petitioner got distributed the voters cards amongst the voters containing the sectarian issues clearly damaging the position of the others and in particular of the petitioner.
Muhammad Aslam Mujahid Exh. 11 was Election Agent of the petitioner. He has stated that he objected to the conduct of respondent with the authorities concerned and particularly to the respondent No,1, the Returning Officer. He has stated that respondent distributed voters cards to the voters of the constituency carrying such slogans and depiction which were solely illegal. He states that publicity material which the respondent used illegally making false allegations about the faith of the petitioner had very adversely affected the holding of impartial, fair and just election in the constituency and has caused an undue advantage to respondent No,2. Shaffat Ali Exh. 10 stated that he himself saw workers and supporters of respondent No,2, Muhammad Usman Khan Noori distributing handbills, some of which are annexed with the petition. It is very poisonous sectarian and false propaganda against the petitioner. He saw workers of the respondent distributing the handbills and publicity material on 16th February, 1985 and exploited the sectarian feelings of the people against the petitioner and they also alleged that petitioner was from the Wahabi Sect and did not believe in going to the Mazars, etc. Again on 25th February, 1985 on the polling day some workers of the respondents continued their false and poisonous propaganda against the petitioner. Respondent No,1 Syed Ghulam Ali Shah Returning Officer was summoned on request as witness of the petitioner. He stated in his evidence at Exh. 12 that delimitation of constituency after 16th January, 1985 was not changed but on 11th February, 1985 corrigendum was issued regarding change of polling stations. He has produced a copy of Gazette Notification Exh-.
12/1. He has denied the suggestion that revised list of polling scheme was not displayed upto '24 February, 1985. He further denied the suggestion that Revised notification was not displayed on Notice Board. He has admitted that due to change of polling stations about 10,000 voters were affected. He has deposed that he had not received any complaint from the petitioner against the respondent about the violations of code of conduct and Mr. Aslam Mujahid Election Agent of the petitioner had not complained against any candidate. The pamphlets about sectarian feelings were not brought to his notice. (Note: The pamphlets were shown to him at the time his evidence was being recorded). He stated that before this he had not seen these pamphlets.. He produced nomination paper, of respondent Muhammad Usman Khan Noori as Exh. 12/2. In his cross- examination he has stated that presence of the proposer was not required before the Returning Officer. He is of the view that due to than e of delimitation and polling scheme no voters were deprived of cast ng the vote. He knew that there was Election alliance amongst Aslam Mujahid and petitioner in Provincial Assembly Election and Nationll Assembly Election. He did not receive any objection from the side of petitioner about the conduct of election. The respondent Muhammad Usman Noori has denied the allegations and stated that he had not distributed the objectionable pamphlets but got only banners printed in the Election. He also denied to have got voters card and pamphlets printed. He has stated that he knew his proposer Nasim who is serving in Saudi-Arabia since last 4 years and no one from Nasim family signed his nomination paper. He has denied the suggestion that his proposer Rais Ahmad shown at Sr. No,37 on the nomination paper is brother of Nasim. He ritiier met Nasim during the Election Campaign but later came to know that he was at Saudi-Aagbia.
7. The first contention ' the respondent is that due to non-compliance of the provision of section 55 of the Representation of Peoples Act, 1976, the petition is liable to be dismissed. On perusal of the Election Petition, it is clear that petitioner has taken definite plea regarding forged signature of Nasim. The grounds' for delimitation in constituency has been taken and some instances of corrupt practice have also been given in the petition. The law as per section 55 of Representation of Peoples Act requires the petitioner to give a precise statement of material facts as far as, possible and particulars of corrupt or illegal practise or other irregularities alleged to have been committed.
In this petition, in my view although the particulars of each and every corrupt and illegal practice have not been given in detail`,.. But the Election Petition read -as whole discloses the purpose for which .It. Was filed. The objection raised in this context has no foice and is, therefore, repelled. On this I refer to a case of S.M. Ayub v. Syed Yousaf Shah and 2 others reported in PLD 1967 SC 486 and case reported in PLD 1978 Journal 81.
8. Now I proceed to deal with Issue No,3. On this the petitioner examined seven witnesses. The summary of evidence has been given in para No,6 of this order. He has produced some documentary evidence. It is contended that due to sectarian feelings the respondent had exploited his position. In support the voter card and some pamphlets have been produced in which it is stated that respondent is a highly educated man and working 'for Nizam-e-Mustafa. In these documents there is nothing against the petitioner. A photo copy of letter Exh.21/12 has been produced and this document purported to have been written by Allama Abdul Mustafa Al-Azhari. It has not been proved if this letter was actually written by Allama Abdul Mustafa Al-Azhari. The petitioner has not cited him as witness nor requested to summon him. He has also not examined any witness in whose presence Allama Abdul Mustafa Al-Azhari signed this letter. Moreover, it is a photostat copy. In my view it has no evidentiary value. I have also gone through the evidence of witnesses and come to the conclusion that on this issue no satisfactory evidence has come on record nor there is any thing which shows that respondent got votes due to some sectarian feelings. The printer of the voter cards has not been examined. The respondent has denied to have got printed the material. The Returning Officer Mr. Ghulam Ali Shah has been examined as witness of the petitioner. He has stated that no such banners or printing material was brought to his notice at the time of Election. It has also not been proved that respondent was official candidate of any political party. No positive proof has been brought on this issue. On this I refer to a case of Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others reported in PLD 1973 SC 160 in which it has been held that documents which are not the copies of the judicial record should not be received in evidence without proof of signature and handwritings of person alleged to have signed or written them, even such documents are brought on record and exhibited without objection. It has also been held that there must be a positive evidence on corrupt practice. I also refer to a case of Syed Saeed Hassan v. Pyar Ali and 7 others reported in PLD 1976 SC 6, where it has been held that the matter .-of corrupt or illegal practice must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non-commission of corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged. In these circumstances the petitioner has not proved the allegation of corrupt practice in the Election.
9. The next contention of the petitioner that due to change of delimitation of constituencies the voters could not cast votes cannot be accepted on the simple ground that such notification was issued before the Election Schedule as the National Assembly seats were increased in Karachi, therefore, obviously there was change in the constituencies Nos.NA-193 and NA-194 and NA-195 which were notified. The Returning Officer has categorically stated that no voter was disenfranchised from casting vote due to changes of delimitation and polling scheme. The- petitioner has not examined a single voter who could say that he was not able to cast vote due to such changes. In my view the change in the delimitation has not affected the results of the Elections, as voters had a knowledge about polling scheme before the date of polling.
10. The petitioner raised an objection to the late filing of the written statement of the respondent.
According to section 3 of the Election Commission's Notification, dated 16th March, 1985, the respondent shall on the receipt of the notice of petition from the petitioner within seven days file his written statement together with all documents relied upon by him and affidavits of the witnesses as are desired to be produced in defence. The consequential relief due to non-filing of written statement is pot provided in the notification. In that case the tribunal has to revert to the provisions of Civil Procedure Code for the relief to the petitioner. In that case the Tribunal can also consider the application filed under section 14 C.P.C. For extension of time In this case such application has also been filed and I allowed this application in the interest of justice and' provided an opportunity to the parties to contest the Election Petition on merits. The objection is overruled.
11. Now I come to the last issue, about the allegation of forged signature of Nasim proposer of the respondent. The petitioner has stated that Nasim Ahmad one of the proposer of the respondent was out of the country at the time of filing of nomination paper. Therefore, the nomination paper was presented with the forged signature of Nasim Ahmad. On this issue the petitioner examined Abdul Majeed Exh. 2 Muhammad Rustam Qureshi. Exh. 7 and Abdul Ghafoor Exh.
9. They have stated that Nasim .Ahmed was not present in pakistan during the days of Election.
Respondent Muhammad Usman Khan Noori in paras. 11 and 12 of his written statement stated as under: ' Para. 11.-As regards para. 12 it is denied that voter Nasim bearing the specified number filed this respondent's nomination in the alleged attributed manner. The petitioner is put to proof alongwith the contents of Annexure A-7. The said voter was privy to averred nomination.
' Para. 12.-#s regards para. 13 it is denied that the signature of the named proposer was forged for the alleged assigned cause. The petitioner is put to proof. It is submitted that the nomination of the petitioner stood the test of scrutiny at all the stages of the electoral exercise. The petitioner if equipped with the alleged grounds of disqualification was cast with the legal duty to raise objections at the appropriate stage and having wilfully omitted to do so is disabled from raising the baseless allegations which is even otherwise vitiated since it is an afterthought.
"In any event the petitioner is put to proof."
' The respondent in his cross-examination has frankly admitted that he knew that his proposer Nasim was serving in Saudi Arabia since last 4 years. He has further stated as under:-- "I know family of Nasim" and no one from Nasim family signed as proposer. I do not know if Rais, my proposer, shown at S. No,37 in Nomination paper is brother of Nasim. I know most of my proposers.
My nomination form was got filed by Nusrat. I had never met proposer Nasim during Election campaign. .I later came to know that he was at Saudi Arabia at the time of filing nomination papers. He voluntarily states that form was sent to him by registered post. The form was sent to Saudi Arabia, we got nomination forms probably on 14th January, 1985. The form was sent by Nusrat, therefore, I cannot say at what address the form was sent. This form was completed before 20th January, 1985. The form was brought by hand by some people."
14. The procedure for filing nomination form and scrutiny is given in sections 12 and 14 of the Representation of Peoples Act, 1976.
The contents of relevant portion of sections 12, 14 are as under:-
(1) Nomination for election. Any fifty electors of a constituency may nominate a duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by all the fifty proposers and shall contain a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member.
(3) Every nomination paper shall be delivered by any of the proposers to the Returning Officer, or his nominee, who shall acknowledge receipt of the nomination paper specifying the date and time of receipt.
' Section 14 Scrutiny. Subsection (9).
' The Returning Officer may, either of his own motion or upon any objection conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that:-
(a) the candidate is not qualified to be elected as a member;
(b) any provision of section 12 or section 13 has not been complied with provided that:-
(i) the rejection of nomination paper shall not be invalidate the nomination of a candidate by any other valid nomination paper.
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith including an error in regard to the names, serial number in the Electoral Roll or other particulars of the candidate/or any of his proposers, and
(iii) the Returning Officer shall not hold enquiry in the correctness or validity of any entry in the Electoral Roll, but shall not reject a nomination paper on the basis of any entry in the Electoral Roll which contains an obvious_error of defect.
15. In view of the above legal position every nomination paper shall be signed by all 50 proposers and contain a declaration signed by candidate that he has consented to the nomination and he is not subject to any disqualification for being elected as a member. In the nomination paper Exh.
12/2 there are signatures of all 50 proposers and also contain a declaration. The point for consideration is that whether the signature of proposer Nasim is forged one.
16. It is contended by Mr. Shamsuddin Khalid, the learned counsel appearing for petitioner that respondent has committed forgery. So far the signature of proposer Nasim is concerned, therefore, he stands disqualified. He has further argued that it has not been proved that 50 proposers signed the nomination paper of respondent as required under section 12. (2) of the Representation of Peoples Act, 1976.
17. From both the sides the oral evidence has been adduced on this point. The respondent has admitted in his evidence that proposer Nasim at that time was in Saudi Arabia. Thehfore, it is not necessary to discuss the evidence of witnesses of the petitioner on this point about absence of Nasim. His absence out of Pakistan is admitted. The respondent has stated that nomination form was sent by one Nusrat to Saudi Arabia for signature of Nasim and it was returned through some people. He has not admitted the forged signature of Nasim on the nomination form. In these circumstances the entire burden lies on the petitioner to prove that the signature of Nasim on nomination form was forged one. There is no positive proof about the forged signature of Nasim.
The petitioner has not made any application or request to summon Nasim nor documentary evidence has been produced showing that forged signature of Nasim was made on the nomination paper. The only absence of Nasim from the country is not sufficient to hold that signature is not genuine. If it is found that who-so-ever subscribed the forged signature of the proposer, he is liable to be prosecuted under section 80-A of the Representation of Peoples Act, 1976. The offence is cognizable one as provided under section 94 of the Act, and in case of conviction the procedure for further action is laid down in section 97. More than one year has passed no such case under section 80-A of the Act has been filed by the petitioner against the respondent or any other person.
18. While going. _through the evidence, it was found that some officer had signed on the body of nomination paper showing the date as 19th January, 1985. On this the 'Returning Officer was re- called, by the Tribunal. He stated that form as it was received by him, but appears to have issued on 19th January, 1985 but does not bear stamp of his office or any of his subordinates. He has further stated that this probably has been issued from some other place. He produced record relating to issuance of nomination paper from his office as Exh. 12/3. At the suggestion of learned counsel for respondent, he has admitted that two inks were used on the nomination form the place from where it was alleged to have been issued.
19. Any candidate can get nomination paper from any Returning Officer, therefore, this point is not material but the circumstance which persuaded me to verify whether it was issued to candidate on 19th January, 1985. In my view, there is no such evidence that this nomination form was issued on 19th January, 1985. Moreover no such plea has been taken by the petitioner that respondent purchased or got disputed nomination form after 14th January, 1985. Moreover, had the respondent any mala fides, he easily could have denied the presence of proposer at Saudi Arabia. The evidence of petitioner had come on record when respondent was examined, which he had a knowledge that no documentary evidence was produced by the petitioner in Pakistan: He has also not stated in the written statement that at the time of filing nomination paper Nasim was in Pakistan. He has candidly admitted this position and no contrary proof for forged signature has come on record. The record produced by Returning Officer as Exh.12/13 shows that nomination forms issued to the candidates of Constituency No,NA-194 from the Returning Officer were from 18th January, 1985 and onwards. On the body of this nomination paper the Constituency No,NA-194 is also shown and it is also written or R.O.N.A.P.S.
194. Therefore it is very clear that this form was not issued by Returning Officer of Constituency No,NA-194 on 19th January 1985. P.W. Ghulam Shah R.O. Has stated that his form was not issued from his office. Therefore, it has not been proved that this form was issued on 19th January, 1985 as no other Returning Officer or any Officer has been examined by the petitioner.
20. The petitioner did not object to the nomination of respondent at the time of scrutiny nor he filed any appeal against the decision of the Returning Officer as provided under section 14(5) of the Act.
He has also not filed a case against any body under section 80/A. In my view, no convincing evidence has come on record to declare the signature of Nasim as forged one, nor there is evidence who signed for Nasim.
21. For the reasons stated above on each issue, I have come to the conclusion that petitioner has not proved any allegation with the result that petition is dismissed and parties to bear their own costs.
Election .