The petitioners who were candidates for Provincial Assembly seat from Constituency No. P.S.98 Karachi in the general 'election held on 28-2-1985 have challenged the election of respondent No. 10 from the said constituency. The only allegation in the petition against respondent No. 10 is that he procured the election result by propagating secretarian and parochial issues in his election complaint which amounted to corrupt practices as defined in section 78 of the Representation of the Peoples Act, 1976. The following allegations are made in the petition against respondent No. 10 by the petitioners in paragraphs 3 to 5. It will be convenient to reproduce here the said paragraphs of the petition:-- "(3)That the petitioner submits that the respondent No. 10 procured election results by propagating sectarian and parochial issues such as Pro-Mohajir (Refugees feelings) and by playing with sentiments of the voters on sectarian issues. Such propagation/canvassing is specifically prohibited by law and inter alia amounts to corrupt/illegal- practice.
Copies of election compaign material of respondent No. 10 is annexed and marked 'A' to 'A-1'
(4)That the petitioners submit that the respondent No. 12 secured votes in the name of Muhajir (Refugee) feelings which is corrupt practice and contested election Muhajir Quami Movement front as such election results are void ab initio and liable to be set aside, as it has inter alia materially affected the results.
(5)That since respondent No. 12 is guilty of adopting corrupt practice and petitioner has secured second highest votes, therefore, he is entitled to be declared as duly elected candidate."
2. The respondent No. 10 who filed objections to the petition on 25-8-1985 along with a counter- affidavit of the same date denied the allegations made in the petition and further took the plea that the petition was not maintainable both on account of violation of section 54 and non- compliance of the provisions of section 55 of Representation of Peoples Act, 1976 (I will hereinafter refer this Act, for the sake of convenience as 'the Act'). Following issues were framed by me on the basis of the controversy between the parties on 28-5-1985"
(1) Whether respondent No. 10 was responsible for corrupt and illegal practices mentioned in paragraphs 3 to 5 of the petition. If so, whether the election of respondent No. 10 is liable to be declared null and void on that account or the election as a whole is liable to be declared as void?
(2) Whether the petition is not maintainable in law?
(3) To what relief, if any, the petitioner is entitled?
3. One of the petitioners Zahir Shah has filed his affidavit of evidence in support of the petition on 20th April, 1985 while the other petitioner Malik Mursif did not file any affidavit of evidence. It may be mentioned here that although the petitioner mentioned names of as many as four private witnesses in the list of witnesses submitted along with his petition but affidavits of these witnesses were not filed along with the petition as required under the Rules. Therefore, in support of the petition, there was only one affidavit of Zahir Shah. The petitioner No. 1 was cross-examined by respondent No. 10 on 16th of October, 1985 and after close of his cross-examination the learned counsel for the petitioners made an oral request that he may be allowed to produce in evidence the four witnesses mentioned in the list of witnesses but this oral request of the learned counsel was disallowed by me on the ground that their affidavits of evidence were not submitted by the petitioners along with the petition as required under the Rules framed under section 62 of the Act published on 16th of March, 1985, vide notification No. (7)/85 Cord., dated 16th March, 1985. It may also be mentioned here that at the same time the learned counsel for the petitioners made a further oral request that he may be allowed to produce a video cassette alleged to have been prepared during the election campaign of respondent No. 10 but that prayer was also disallowed by me on the ground that neither this document is mentioned in the petition nor the date of acquiring the said cassette is disclosed anywhere by the petitioner. I also noted while declining the above request of the learned counsel in lay order, dated 16th October, 1985, that no formal application was moved or filed by the petitioners in this behalf. The case was adjourned on 16th October, 1985 after closing the side of the petitioner to 19th October, 1985 for evidence of respondent No. 10. Respondent No. 10 was cross-examined by the learned counsel for the petitioner at length on 29th October, 1985 and respondent No. 10 closed his side on that date. On the same date, namely, 29th October, 1985 the learned counsel for the petitioner submitted an application under section 151, C.P.C. Praying that the petitioner may be permitted to produce the video cassette in Court and that the petitioner is prepared to bear the expenses of playing that video cassette for consideration by the Tribunal. Notice of this application was given to the counsel for the respondent and the case was adjourned to 19th- November, 1985 for hearing of application as well as arguments on the main case. Before considering the two issues framed in the case I will first decide the application, dated 29th October, 1985 filed by the learned counsel for the petitioner under section 151, C.P.C. Praying for permission to produce the video cassette as a document in the case. The application is vehemently opposed -'by the respondent No. 10 who in his counter--- affidavit besides alleging that no ground has been made out for its production had denied that any video cassette was prepared during-his election campaign. In the application filed on 29th October, 1985 the petitioner has sought promission to produce video cassette on the ground that this material was not within the knowledge of. The petitioner prior to 14th October, 1985 when for the first time he was told about the existence of this video cassette by one Tamana Shah Warsi. It may be mentioned here that the petitioner appeared for cross-examination in Court on 16th October, 1985 i.e. After about two days of allegedly acquiring the knowledge about the existence of the video cassette. It is pertinent that the petitioner when produced in Court for cross-- examination made no attempt to make any further addition to his affidavit of evidence which was already filed in the Court along with the petition on 20th April, 1985. The learned counsel for the petitioner also made no request that he may be allowed to put further question in examination-in-chief as a result of discovery of some new material with regard to the controversy before the Tribunal. No doubt some questions were put to respondent No. 10 in cross-examination on 29th October, 1985 with regard to the video cassette which he denied but nothing was brought in evidence to establish that the denial made by respondent No. 10 in his cross-examination was incorrect. It may further be mentioned here that neither in the application under section 151, C.P.C. Moved by the learned counsel for the petitioner on 29th October, 1985 nor in the supporting affidavit filed by petitioner Zahir Shah anything is disclosed to show that the contents of video cassette are relevant to the controversy in the petition. It is also not alleged either in the application or in the affidavit that the contents of the video cassette are relevant to prove any of the issues involved in the petition. The learned counsel for respondent No. 10 also rightly contended that the oral request of the petitioner having been declined by the Tribunal on 16th October, 1985 a written prayer in that regard was not maintainable. The learned counsel for the petitioner was,, unable to point out any provision of law under which the Tribunal after having once declined the oral request of the party could entertain a second request through a written application. Therefore, both on the legal plane as well as on merits no case is made out for allowing production of video cassette in evidence. I, therefore, reject the application of the petitioner filed on 29th October, 1985 seeking permission to produce the video cassette recorder in evidence in this petition.
4. Having disposed of the application of the petitioner, dated 29th October, 1985 1 will now consider the two issues raised in this petition. I propose to deal with both the issues together as they can be conveniently disposed of simultaneously.
Issues Nos. 1 and 2:
5. The burden to prove issue No. 1 is entirely on the petitioner. 1 have already reproduced the allegations made by the: petitioner against respondent No. 10 in his petition and a perusal thereof, will show that the entire allegations against respondent No. 10 are vague and of uncertain nature.
The affidavit in evidence filed by petitioner Zahir Shah also did not spell out any particulars regarding corrupt practices alleged in the petition. The affidavit sworn by Zahir Shah in support of the petition consists of only four paragraphs and it Will be advantageous to reproduce here the affidavit of Zahir Shah filed in the petition. It reads as follows:-012 "I Muhammad Zahir Shah Khan son of Suntan Room Khan, Muslim adult, resident at 63-A, Commercial Area, Cattle Colony, Karachi do hereby solemnly affirm and state as under:--
(1) That I am the petitioner in the above matter as such fully conversant with the facts of. The case.
(2) That the contents of main petition are true to the best of my knowledge and belief, and for the sake of brevity may be adjusted as part of this affidavit as if the same were reproduced in extension herein.
(3)That I say that the entire election campaign of respondent No. 12 was centered around Muhajir issue which fact is evident from the documents filed with election.
(4) That I say that such tactics of respondent No. 12 inter alia amounts to corrupt and illegal practice which has materially affected the results of election.
(5) That paras. 1 to 4 above is true and correct to the best of my knowledge and belief.
(Sd. )
Deponent."
6. A reading of the above affidavit of Zahir Aati which is the only evidence in support of the petition will show that no particular at all has been given with regard to the alleged illegal and corrupt practices of respondent No. 10 during the election compaign. Corrupt practice is defined in section 78 of the Act as follows:- "78. Corrupt practice.--A person is guilty of corrupt practice if, he--
(1) contravenes the provisions of section 49;
(2) is guilty of personation or under influence;
(3) makes or publishes a false statement--
(a) concerning the personal character of a candidate or any of his relations calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable grounds for believing and did believe, the statement to be true;
(b) relating to the symbol of a candidate, whether or not such symbol has been allocated to such candidate; or
(c) regarding the withdrawal of a candidate.
(4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community, race, caste, Bradari, sect or tribe;
(5) knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel --, ,-for the purposes of conveying to or from the polling station any elector except himself and members of his immediate family; or
(6) causes or attempts to cause any person present and Waiting to vote at the polling station to depart without voting."
7. The learned counsel for the petitioner contends that the case pleaded by the petitioner will fall under subsections (2) and (4) of section 78 as according to him the respondent No. 10 attempted to influence the voters by propagating that he vas a Mohajir while other candidates (the petitioners) were Pathans. Besides the fact that the evidence led in this regard by the petitioners nowhere mentioned even obliquely that such a statement was made by respondent No. 10 to the voters during his election cortipaign the other material produced in the shape of posters in the petition itself does not show that it was issued or circulated by respondent No. 10. I have already reproduced the affidavit of petitioner No. 1 filed in support of the petition. This affidavit nowhere states that the two Annexures 'A' and 'A/1' were issued or circulated by respondent No. 10. The only allegation contained in paragraph 3 of the affidavit in evidence is that the compaign of respondent No. 10 was entered around Mohajir issue. No explanation has been offered either in the evidence or anywhere else as to what was meant by the expression 'Mohajir issue'. It has not been alleged by the petitioner either in his affidavit of evidence or in the petition that respondent No, 10 propagated that the voters should cast vote in his favour because he is a Mohajir while petitioner was a Pathan. The two posters, namely Annexures 'A' and 'A/1' filed along with the petition show that they were not issued by respondent No. 10. They were allegedly issued by some association known as Mohajir Qaumi Movement, Landhi, Korangi Unit. The respondent No. 10 in his evidence categorically denied the suggestion that he was in any way connected with the Mohajir Qaumi Movement who allegedly distributed Annexures 'A' and 'A/1'. On the contrary he alleged that this is a concoction by the petitioners after having lost. The election. No attempt was made to prove that respondent No. 10 was a member of Mohajir Qaumi Movement nor any evidence was brought on record to show that Mohajir Qaumi Movement was authorised by respondent No. 10 to issue the above pamphlets. The petitioner in his cross-examination was unable to say the source from which he obtained these two posters/ handbills and although he mentioned the name of one person from -whom he obtained Annexure 'A' but this person was neither cited as a witness in the list of witnesses filed along with the petition nor any attempt was made to summon and examine him as such. Apart from it the petitioner in his cross-examination categorically admitted that immediately after the elections were over, he addressed a press conference in this regard which appeared in daily Mashriq of 6th March, 1985. He also admitted that before addressing the press conference he had distributed the prepared statement to the reports. He further admitted that press conference was reported correctly by the paper but stated voluntarily that all that he said did not appear. The petitioner also admitted in cross---examination that the written statement distributed by him to the press reporters immediately before addressing the press conference did not contain allegation that respondent No. 10 fought the election on the basis of Mohajir and Pathan issue. From the contents of press conference of petitioner No. 1 which appeared on 6th March, 1985 in daily 'Mashriq' Karachi .And which was addressed after about four days of the announcement of election results, it is quite clear that although several allegations of corrupt practices like bogus voting etc., were levelled against respondent No. 10 but no allegation was made therein that respondent No. 10 incited the feelings of the voters on the basis of Mahajir Pathan bias and thus secured the votes in the election of Provincial Assembly. The petitioner, no. Doubt in cross-examination stated that his press conference was not correctly reported after having made a categorical statement earlier that it was correctly reported, but on further cross-examination when he was asked to produce the protest lodged by him against the incorrect reporting of press conference he was unable to substantiate his claim. In view of the above discussion, I hold that the petitioner has failed to establish that respondent No. 10 fought the election on the basis of propaganda that he was a Mohajir and that the voters should cast vote in his favour of the petitioners who were Pathans. In addition to it the learned counsel for the respondent rightly contended that particulars as required in section, 5 were not mentioned in the petition and, therefore, under section 63 of the Act the petition is also liable to be dismissed on that account. Relevant portion of section 55 relied by the learned counsel for respondent No. 10 reads as under:- "55. Contents of petition.-- (1) Every petition shall contain--
(a) a precise statement of the material on which the petitioner relies;
(b) full particulars of any corrupt or illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and the place of the commission of such practice or act; and
(c) the relief claimed by the petitioner."
8.After reading section 55 along with section ?8 of the Act there is no doubt that a petitioner is required to state in his petition the full particulars of alleged corrupt practices including as far as possible a statement containing the names of the parties alleged to have committed such' corrupt practice and the date of commission of such practice or act. It is not disputed by the learned counsel for the petitioners that these particulars are neither mentioned in the petition nor in the affidavit of evidence filed by Zahir Shah in the case. There cannot be two opinions that the provisions of section 55 are mandatory in nature as under section 63 of the Act it is provided that the Tribunal shall dismiss the election petition if the provisions of section 54 or 55 have S not been complied with. I am, therefore, of the view that additionally for reason of non-compliance of section 55(1)(b) this petition is also liable to be dismissed. It may be mentioned here that the learned counsel for the respondent also raised ancillary argument that under section 54 of the Act each one of the aggrieved persons has to file petition individually and two persons cannot jointly file one election petition. It is, however, not necessary to decide this contention of the learned counsel for the respondent in this petition as learned counsel for the petitioner before making his submissions on the main petition made a categorical statement that he does not press his petition with regard to petitioner Malik Munsif and that the petition may be considered only having been filed by petitioner No.l Muhammad Zahir Shah Khan.
As a result of the above discussion, I find no substance in this petition which is accordingly dismissed but leave the parties to bear l their own costs.