' Muhammad Umar Sailya (hereinafter to be referred as petitioner) by this Election Petition has challenged the election of Malik Muhammad Hanif respondent No,16 (hereinafter to be referred as respondent) who was declared elected to the Sind Provincial Assembly from Constituency No,PS- 92, Karachi-17.
2. From the above constituency in all 12 candidates contested the election. Respondent secured 4,482 votes and was declared successful. The petitioner secured 4,156 votes. The main allegations in the petition briefly stated are that about 1,500 bogus votes were cast. The transport was used, the electricity failed at the time of counting of votes, the ballot papers did not tally with the votes at the time of counting, the genuine voters were not allowed to cast their votes. The Election Symbol of petitioner was not properly printed, the respondent was declared candidate of Muslim League and Presiding Officer of Polling Station No,25 addressed Juma congregation and he supported the petitioner.
3. Respondent in his written statement denied the charges and stated that official respondents acted impartially and honestly.
4. The following consent issues were framed:--
(i) Whether respondent No,16's election is vitiated by corrupt and illegal practices ?
(ii) Whether the election in PS-92 was improperly and unlawfully conducted.
(iii) Is the election of respondent No,16 materially affected by religious invocation and bogus votes?
(iv) What should the order be ?
5. In support of the allegations the petitioner examined ten witnesses while respondents examined himself and produced his written statement and also written statement of Presiding Officer of Polling Station No,31.
6. Mr. Shahenshah Hussain, Advocate submitted that petitioner has proved the allegations of corrupt practice. It is contended that petitioner's evidence has gone unchallenged, therefore, election of respondent be declared void.
' Mr. N.A. Farooqi appearing for the respondent has argued that not a single allegation of corrupt practice has been proved and all the witnesses of the petitioner are interested.
7. The petitioner has produced his election petition in his evidence as Exh.7/1, which has been termed as his Examination-in-chief. He in his cross-examination admitted that bogus voting was allowed specially for respondent No,16 Muhammad Hanif. He has stated that no complaint was made in writing to the Presiding Officer or Returning Officer about irregularities and he did not complain whatever mentioned in para. 7 of the petition to Election Commissioner or any other authority that Malik Muhammad Hanif was candidate of Muslim League. He has produced photo- copy of F.I.R. Lodged under section 171-D/34, P .P . C . By Presiding Officer, Government Boys School Polling Station and a letter of Superintending Engineer Annexure "G" about failure of electricity. P.W.1 Waris Khan stated in his affidavit that he saw bogus voters were brought in wagons and microbuses by supporters of the respondent and respondent came with his banners with bogus voters near the polling station but on seeing the Military captain they ran away. P.W.2 Al-Hajj, Fawad Ahmed was Chief worker of the petitioner. He has stated that he noticed four lady voters after casting bogus votes were going towards Model School. He followed them and wanted to complain to Presiding Officer but was stopped by the police and one Havaldar took him to police station from where he was released after half an hour. He has further stated that two women were caught but were released at the intervention of Malik Muhammad Hanif. He has stated that at the time of counting the electricity went off. He has submitted that he contested K.M.C. Election against the respondent. He did not file any written complaint. P.W. Anis-ur-Rehman stated on 22-2-1985 he went to offer Jumma prayers in Gari Khata Mosque where Moulana Muhammad Ashfaque Ahmed Siddiqui, who was Pesh-Imam, while addressing Namazis told to exercise their right of vote correctly without any consideration of caste, creed or family relations and should elect honest, sincere and gentle persons who could be useful to them. He further stated in his evidence that at that time respondent was present and Moulana said that there is one candidate whose symbol is lantern and he is a good man and Nimazi. His evidence is that this symbol was of Malik Muhammad Hanif. He has admitted that he was worker of the petitioner and is President of Karachi Restaurant and Cafe Association while petitioner is President of Pakistan Restaurant and Cafe Association. P.W.4 Sirajuddin, was Chief Polling Agent of the petitioner. He has stated that genuine voters were not allowed to cast votes and were told that their votes have already been cast. He has given instance of arrest of two ladies voters who were released at the intervention of the respondent. He has further stated that voters were brought in Suzukis and Wagons. He has submitted that F.I.R. Was lodged against the petitioner also. He orally lodged protest in the Office of Returning Officer but did not obtain copy of his complaint. P.W.5 Muhammad Ismail's evidence is on the point of bogus voting and several illegalities committed by the respondent. He wanted to lodge protest with Presiding Officer but police did not allow him. He has stated in his cross-examination that symbol of the petitioner was clear. He had not sent any telegram about the incident as mentioned in the affidavit. P.W.6 Mrs. Iftikhar Jehan who was Presiding Officer of Polling Station-16 has stated that ink mark on thumb of voters was put in her presence and ink which was used could not be rubbed off. P.W.7 Munawaruddin has stated that he is XEN maintenance and he knew nothing about electricity failure in Aram Bagh on 28-2-1985. P.W.8 A.H. Prachani XEN K.M.C. Has stated that on 28-2-1985 at 19.40 hours due to feeder tipping electricity in the Aram Bagh area failed for about 35 minutes. P.W.9 Abdul Rasheed S.H.O. Aram-Bagh has stated that on 28-2-1985 Inspector Ghulam Rasool Qureshi was S.H.O. Who registered a case under section 171-D, P.P.C. Sand after investigation, the case was not challaned. P.W.10 Muhammad Ghous S.H.O. Preedy Street, Karachi stated that on 28-2-1985 some bogus voters were arrested and a case was registered under section 419/420 but accused were acquitted by Summary Military Court. He in his cross- examination stated that in a case registered under section MLO-102 R/W Section 188, P.P.C. At Preedy Street Police Station the petitioner Umar Sailya, Sirajuddin and 60/70 persons were shown as accused.
8. Malik Muhammad Hanif contesting respondent stated that he held elected offices for more than 20 years and never committed any illegality in the elections. He denied the allegations in his written statement as well as in his affidavit in evidence Exh.13/6. He has also produced written statement of Mr. M.R Qaisar the Presiding Officer of Polling Station No,31.
9. The main allegations of the petitioner are 'that bogus voters were brought by the respondent and they cast their votes in his favour and transport was used in bringing the voters. On this petitioner has examined Wairs Khan Exh.3. Fawad Ali Exh.4, Sirajuddin Exh.6 and Muhammad Ismail Exh.7. There is general allegation and no documentary proof has been furnished before the Tribunal. The polling agents have also not been examined. It appears that bogus voters were not challenged before the Presiding Officer. Had there, been any incident, the polling agents could have raised such objections. 'As regards the two cases registered, two lady voters they were not challenged as there was no sufficient evidence. So far case registered at Preedy Street, the accused were acquitted by Summary Military Court. Moreover, in the F.I.R. Name of petitioner Muhammad Umar Sailya and his witness Sirajuddin are shown as accused. This allegation of bogus voting has not been proved against the respondent. Even otherwise it has not been proved if those persons who were arrested were the supporters of the respondent. So far use of Vans and Suzukis are concerned the number of vehicles have not been furnished nor it is stated in the evidence that who brought the vehicles. In these circumstances, it was also not proved that respondent had arranged transport for the voters. In the election normally people do come on their own vehicles. There is no positive proof about this allegation. The petitioner has only examined Anis-ur-Rehman Exh.5 on the point that Pesh Imam in Friday prayers addressed the gathering and canvassed for the respondent. He did not make any complaint to any Authority though according to him this incident took place six days prior to the Election. This witness is also President of Karachi Restaurant and Cafe Association, while petitioner is President of Pakistan Restaurant and Cafe Association hence he is interested. Moreover, he was also worker of the petitioner in the Election.
Therefore, reliance cannot be placed on the solitary word of this witness. Mrs. Iftikhar Jehan, Presiding Officer of Government Girls School, Karachi has not supported the version given by the petitioner about the defective ink used for marking on thumbs of the voters, much has been emphasised that respondent arranged the failure of the electricity on the day of Election. It has been admitted by A.H. Parchani P.W. Executive Engineer of K.E.S.C. That on 28-2-1985 at 19.40 hours du to feeder tipping electricity failed for about , 35 minutes. The polling started in the morning and it is stated in the evidence that this incident occurred when counting of votes was in progress. The petitioner ha not examined a single voter to support his contention that any vote was deprived off from casting the vote due to the failure of electricity nor there is any allegation in the petition that there was any rigging in counting of the votes. The Returning Officer and Presiding Officer' are made party in the Election Petition but the petitioner has no summoned them, so as to corroborate his version as given in the petition about the corrupt practice and irregularities in the Election.
There is no convincing evidence that petitioner contested Election on party basis. Mostly all the witnesses examined by the petitioner are interested.
' For the reasons stated above, I am satisfied that no positive proof of corrupt practice, illegalities or iregularities have come on record to declare the election void. The petition having no merit is, therefore, dismissed. ,