' The petitioner Syed Saeed Hassan has filed this Election Petition under section 52 of the Representation of Peoples Act, 1976 (hereinafter to be referred as Act) to challenge the Election of Muhammad Usman Ramz (hereinafter to be referred as respondent)-: The petitioner and respondents Nos. 1 to 10 contested National Assembly Election from Constituency No, NA-187.
Karachi, West, IV. Respondent. Muhammad Usman Ramz was declared elected. He secured 23961 votes while petitioner secured 19,944 votes.
2. The Elecion has been challenged on the grounds that respondent is guilty of corrupt and illegal practice and he was supported by the Election Commission, Returning Officers, Polling Officers, Police, Army and other Government functionaries. It is also alleged that respondent contested as nominee of defunct-Jamiat-e-Islami.
3. On pleadings of the parties the following consent issues were framed:
(i) Whether respondent No,1 'indulged in corrupt, illegal practice, undue influence and othet illegal acts as mentioned in the Election Petition and if so, what is the effect?
(ii) Whether the public functionaries including Election Commission, Returning Officer, Election Staff, Police and Army Officers, committed illegalities and irregularities in collusion with respondent No,1.
(iii) Whether the Election Petition is not maintainable for failure of the petitioner to comply with requirements of law as alleged in written statement of respondent No,1.
(iv) What should be the relief?
4. The petitioner in support of the allegations produced his petition alongwith Annexure as Exh. 5/1 and examined Mst. Shaheen Exh. 6, Mst. Ayesha Exh. 7, Syed Sultan Hassan Exh.8, Hameedullah Khan Exh.9, Abdul Hayee Khan Exh. 10, Muhammad Saeed Exh. 11, Muhammad Usman Exh. 12, Muhammad Haroon Exh. 13, Lt.-Col. Muhammad Iqbal Exh. 14, Gul Hassan Exh. 15, Ashfaque Ahmed Exh. 16, Khadim Hassan Exh. 17, Mussarat Exh. 18, Muhammad Umer knsari Exh.
20. Respondent Muhammad Usman Ramz appeared himself and produced his written statement as Exh. 22/1. He also produced his affidavit in evidence. He was cross-examined by the Advocate of the petitioner. He did not examine any other witness and closed his side.
5. Issues Nos. 1 and 2 are interconnected, therefore, I will deal both the issues together.
' The grounds taken in the Election Petition are that respondent used directly, indirectly undue influence over members of the Police Force and of Armed Forces by inducing Police Constables alongwith his men and unlawfully removed the Ballot Boxes out of Polling Station premises and culprits were let off by Armed Forces. There are allegations against the Returning Officer and Polling Officers as they were stated to have not allowed the Polling Agents of the petitioner to sit in Polling Stations and Booths. It is stated that under influence of respondent the delimitation of.
Constituency No, NA-187 was changed through Commission, in such a manner which was advantageous to the respondent. The area of Goharabad Block-15, Federal 'B', was removed from Constituency No, NA-187, Karachi IV and got included in Constituency No, NA-186, Karachi III which affected the results of election. It is alleged that due to change, the voters of Goharabad were not allowed to cast vote in the petitioner's constituency. The Election Office was established by respondent in Jamie Masjid-e-Taha, the illegal procession were taken, Loud Speakers were used, the pamphlets were published, the Election Office of petitioner was attacked, the votes were demanded on sectarian considerations. The allegations of violations of Act and Rules at the time of counting have also been taken. In support of the allegations the petitioner has produced two. First Information Reports Annexures 'B' and 'C' the orders of Returning Officer and Election Commission on the nomination papers of respondents, Annexures C-1, C-2, Poster, published by Jamait Tahfiz- Tehrik, Annexure 'D', and other letters of the petitioners complaining about removal of Ballot Box, Police high-handedness and illegalities committed by Returning Officer not allowing Polling Agents of the petitioner, etc. ' In his cross-examination the petitioner has stated that he did not file any representation to the Election Commission regarding carving out the limits of NA-187, Karachi. He had admitted that Aijaz Ahmed and Jamil Ahmed who lodged First Information Reports (produced with petition as Annextures 'B' and 'C') have not been cited as witnesses. He did not specifically mention the Polling Stations, in the petition where his Polling Agents were not allowed to_sit.
6. Mst. Shaheen Hassan Exh. 6, is wife of petitioner. She has stated that on 25-2-1985 two Police Constables removed Ballot Boxes from Polling Station "Peela School". They caught one constable with Ballot Box and produced him before S.M.L.A. Headquarters. She has stated that at that time Syed Sultan and Mst. Ayesha were with her. At Martial Law Headquarters Col. Iqbal assured them that action will be taken under M.L.O.
102. She in her Affidavit-in-Evidence alleged that Presiding Officers in Federal 'B' Area at Ladies Booths refused to accept her authority appointing Polling Agents.
' In cross-examination she has admitted that Assadullah Khan was one of Election Agents of petitioner. There were five Polling Stations at "Peela School" but she has not been able to give names of Polling Agents. She has not given particular Polling Booth from where Ballot Boxes were removed. She states that Ballot Box was full of Ballot Papers.
' Mst. Ayesha Exh. 7 and Syed Sultan Hassan Exh. 8 in their evidence corroborated the version given by Mst. Shaheen and stated that police constables removed Ballot Boxes with full Ballot Papers, from "Peela School" Polling Station. They caught one constable and public person they took them, to S.M.L.A. Headquarters and produced the culprits and Ballot Box before Col. Iqbal who assured that action will be taken. Both witnesses have admitted that there were so many persons available at the "PEELA School" Polling Station.
7. Hameedullah Exh. 9, stated that he saw two constables and other persons coming at from "PEELA School, with a big packet and were approaching towards a vehicle. He chased and caught one constable Malik Amir and other persons namely Khalid but another constable alongwith other Ballot Box succeeded in running away. He followed culprits in Suzuki van. In that van Ellahi Jamil, Anjum, Ghafoor, Ghulam Mustafa, Bashir and other persons were sitting. He stated that Box was full of Ballot Papers. The evidence of Abdul Hayee Exh. 10, is in connection with removal of Ballot Box. He has corroborated the evidence of Hameedullah. Muhammad Saeed Exh. 11 and Muhammad Usman ' Exh. 12, have in their evidence stated that two police constables removed Ballot-Box full of Ballot- papers. Out of them one constable Malik Amir and other private person were caught and produced in Martial Law Headquarter.
' Lt.-Col. Muhammad Iqbal has stated that on 25th February, 1985, he was to assist S.M.L.A. (West)
Karachi in connection with elections. On that day wife of petitioner alongwith few others brought one civilian boy and policeman. They also brought Ballot Box without seal. She told him that Ballot Box was being lifted by a civilian boy and there- is lot of unrest at Polling Station. He passed such message to Brig. Riaz S.M.L.A. (West) Karachi. He informed the concerned Police Station and directed Army Officer to proceed to the scene of incident. He in his cross-examination stated that Polling was going on smoothly and there was no commotion. He admitted that Ballot Box was empty and on enquiry Mrs. Saeed Hassan told him that no Ballot papers were recovered from the Ballot Box.
9. Brig. (Rtd.) Riaz-ur-Rehman Exh. 19, in his evidence stated that on 25-2-1985 he was S.M.L.A.
District (West) Karachi and during General Election of 1985 he was Incharge of maintaining Law and Order. On 25-2-1985 he received complaint from Col. Iqbal regarding removal of Ballot Box from one of the Polling Booths and told that one of the candidates has brought Ballot Box alongwith one or two persons and they told that, they caught two persons removing Ballot Box from the Polling Booth. He directed that Ballot Box be handed over to the Deputy Commissioner. He stated that Col. Iqbal told him that Ballot Box was empty and unsealed. In cross-examination he has stated that he alongwith Deputy Commissioner visited Polling-Booths where they heard from the Polling Staff that Ballot Box was ordered to be removed by the Presiding Officer from the Booth as it had a defective lock. He did not order enquiry as in his view no foul play had taken place.
10. Muhammad Amar Ansari Exh. 20 was Returning Officer of Constituency No, NA-187, Karachi. He produced four Nomination Papers of respondent as Exh. 20/1 to 20/4. He also produced photostat copies of Form 14 and Form 16 as Exhs. 20/5 and 20/6 and stated that signatures of candidate or Polling Agent do not appear on forms. Under the Rules the Ballot Paper account is not to be supplied to R.O. According to him there were 5 (five) Polling. Stations Nos. 49 to 53 at "Peela School" and Goharabad area was in the Constituency No, NA-187, Karachi. This area was originally included in Constituency No, NA-186, Karachi but on the application of the petitioner the mistake was rectified and he issued such corrigendum on 22-2-1985. He produced Photostat copies of Letters as Exhs. 20/12 and 20/13 and stated that no voter of Goharabad area complained to have been deprived of from casting vote due to change. He has stated that on Election day Sultan, nephew of petitioner verbally complained that one person took away Ballot Box and they have handed over culprit and Ballot Box to S.M.L.A. On getting this complaint he went at Police Station where he was told that matter was being investigated by Martial Law authorities. He then visited Polling Station where he was informed that there was only change of Ballot Box as one Box was in broken condition and nothing serious happened. He produced report of Presiding Officer as Exh. 20/17.
11. Muhammad Haroon Exh. 13 stated that his house is at a distance of 20125 yards from Masjid-i- Taha on 15-2-1985. Respondent opened his Election Office in mosque and he used the premises for his Election campaign till the end of the Polling. He has stated, that Moulana Fareed is Khatib of the mosque. He is not registered as a voter in the constituency.
12. Ashfaque Ahmed Exh. 16 is Proprietor of Mushtaque Printing Press. He stated that pamphlet Annexure 'D' was printed from his press. He issued receipt for payment and produced duplicate copy. He got order for printing of pamphlet on 22-2-1985 and on the same day he handed over 4,000 or 5,000 copies of pamphlets. He in his cross admitted that respondent had not come for printing the pamphlet but one Qayoom and other person came.
13. Syed Khadim Hussain Exh. 17 and his wife Mst. Mussarat Exh. 18 have stated that they are voters from Goharabad area, Block NL-15, Federal 'B' Area Karachi in Constituency No, NA-187, Karachi. On 24th February, 1985 they were informed by Muzaffar Hussain that votes of Goharabad will be cast in Constituency No, NA-186, Karachi. Thereafter, voters of the area were informed that, they will cast votes in Constituency No, NA-187, Karachi. On 25th February, 1985 they went to cast their votes at the Polling Station. The Presiding Officer told them to go and cast vote in Constituency No, NA-186 as their vote is registered in that constituency.
14. Gul Hassan Exh. 15 S.H.O. Police Station, New Karachi, has produced First Information Reports of Crime Nos. 112/85 and 123/85 registered at Police Station, New Karachi. He has stated that cases were registered on 15-2-1985 and 24-2-1985 by S.I.P. Noor Khan S.I.P. Hafeezuddin respectively. He was S.H.O. Of New Karachi at that time. He had not investigated the case's. He does not know if cases so registered were challaned. He admitted that pamphlets Annexure 'D' are in police file but does not know who brought the pamphlets at the Police Station.
15. Respondent Muhammad lisman Ramz Exh. 22 has produced his written statement and his affidavit-in-evidence as Exhs. 22/1 and 22/2. He has denied the allegations in toto. He stated that petitioner claims to be "LION of Karachi" and has a huge force of Goondas with him besides deep connections with corrupt bureaucracy. He has been attending meetings of Members or Shoora presided over by D.M.L.A. Wherein entire arrangements of elections as well as law and order were considered. The respondent has charged the petitioner for highhandedness and harassment. He has stated that allegations in the petition are vague and frivolous, therefore, petition is not maintainable. He examined Ghulam Fareed Khatib of Masjid-e-Taha in his support.
16. Ghulam Fareed Exh. 23 has stated that he is Khatib of Masjid-e-Taha. He denied the allegation of opening of election office in mosque by respondent or using religious influence for getting votes.
He stated that two F.I.Rs, lodged by the petitioner are false as such no action was taken. He has been appointed Khatib by Committee of Masjid-e-Taha and he gets Rs, 1,000 p.m. From the management.
17. I have heard Mr. Imam Ali Kazi for the petitioner and Mr. Muhammad Ali Saeed for the respondents.
18. In all there were ten candidates who contested election of National Assembly from Constituency No, NA-187, Karachi-West V, but in this election petition none except Muhammad Usman the Returned candidate contested Election Petition. They even did not file written statements though served.
19. I have considered the contentions raised by the learned counsel for the parties. According to Mr. Kazi the ballot boxes containing ballot papers were removed from the "Peela School" Polling Station with the help of Police which affected the result of election. On this petitioner examined as many as seven witnesses in support of this allegation. They all have stated that one policeman and one boy alongwith ballot box were produced before Col. Iqbal at S.M.L.A. Headquarter. They have said that one police constable escaped with another ballot box.
' Petitioner summoned Lt.-Col. Iqbal, Brig. Riaz-ur-Rahman the, then S.M.L.A. And Muhammad Anwar, Returning Officer as his witnesses. It is an admitted position that one policeman, a boy and a ballot box were produced before Lt.-Cola Iqbal. The matter was investigated. Lt.-Col. Iqbal has stated that ballot box was empty and he was informed that a private person was lifting a ballot box. On enquiry Mrs. Saeed Hassan told him that no ballot papers were recovered from the Box.
' Brig. Riaz-ur-Rehman did not order for enquiry and according to him no foul play had taken place and matter was being investigated by the Deputy Commissioner. He heard from the polling staff that ballot box was being removed by the Presiding Officer from the Booth as it had a defective lock. Muhammad Amar Ansari, Returning Officer hold enquiry and he was told that one ballot box was in broken condition and it had been replaced when incident took place. He produced report of Presiding Officer Exh. 20/17. The contents of the report are as follows: "I, Miss Niaz Akhtar, Presiding Officer, Polling Station No, 50, Government Boys, Secondary School, Sector 5-B, New Karachi, N.A. 187, certify that at the time of beginning of polling at my station Booth No,4, N.A. 187 (8-00 a.m. 25-2-1985) ballot box's lock was broken and I have changed against my Polling Staff, Polling agents, principal of school concerned and one army and police official. Polling agents have signed a certificate, contained in polling ballot paper/stationery bag which I have submitted to you on 25-2-1985, that they were present at the moment and broken/spoilt ballot box was empty at the moment of change of ballot box.
' Principal of said school and other polling staff is also other witness of that case/mishap.
' This is for your kind perusal please."
' The petitioner has not examined Presiding Officer, Polling Officer, his Polling. Agent of Booth No,4.
There were five Polling Stations (Nos. 49 to 53) at "Peela School". As it appears from the Report of Presiding Officer the incident occurred at Booth No, 4 of Polling Station 50. On perusal of Form XIV Exh. 20/8 it is clear that appellant secured 529 votes while respondent got 67 votes. In all 682 votes were cast. Even otherwise ratio of votes at other Polling Station of "Peels School" is as under:- PetitionerRespondentTotal Polling Station No.49600 97 834 Polling Station No.50529 67 682 Polling Station No.51710 110 1001 Polling Station No.52591 75 785 Polling Station No.53164 39 265 ' Other eight candidates got few votes.
It is now clear that ballot papers were not removed from the disputed Booth and petitioner secured highest votes at that Polling Station. In my opinion the ballot box was not removed by Police or any other person. The defective ballot box was being changed which created confusion thereby people from the petitioner side took ballot box to S.M.L.A. Headquarter. The Presiding Officer, Returning Officer, Lt.-Col. Iqbal and the then S.M.L.A. Did not support the allegations. The charge has not been proved.
20. Regarding Office at Masjid-e-Taha there is only evidence of Muhammad Haroon Exh. 13, not corroborated by any other circumstance. On the other hand respondent examined Moulana Ghulam Fareed, Khatib of Mosque who denied the allegations. There is no documentary evidence in this respect. Muhammad Haroon is not even voter of the constituency. No complaint was' lodged before any authority at that time.
21. Two cases were registered at New Karachi Police Station on 15-2-1985 and 24-2-1985. Gul Hassan, S.H.O. New Karachi Exh. 15 has been examined. From his evidence it is not clear that cases were not challaned. Petitioner has produced copies of F.I.Rs, only. He has not furnished copies of challans. Complainants in both the cases are Aijaz Ahmad and Jamil Ahmad. They have not been examined by the petitioner. The First Information Report is not a substantive piece of evidence.
22. On charge of printing of pamphlets Ashfaque Ahmed has been examined. His evidence is that pamphlets were printed from his press by Qayoom and other person but Qayoom has not been examined. There is no evidence against respondent that he got the pamphlets printed.
23. Khadi Hussain and Mussarat have been examined on the allegations that they were not allowed to cast votes at Constituency No, NA-187. The. Polling Agent of the petitioner and the worker of the petitioner have not been examined to support their evidence. I do not consider this uncorroborated oral evidence sufficient to prove the charge. Included the Constituency No, NA-187, Karachi-West V, at the request Moreover the Returning Officer has stated that "Goharabad" area was included in the Constituency No, NA-187, Karachi-West V, at the request of the petitioner. The result of Polling Stations of the above area has not materially affected the election of the petition.
One of the grievances of the petitioner is that his Polling Agent 1 were not allowed to sit in Booths.
On this charge not a single Polling Agent has been examined. Petitioner has not given name of Polling Station where such incident took place. He has not summoned any Polling Officer, Assistant Polling Officer or Presiding Officer, nor an question was put to Returning Officer with regard to this allegation who was examined by the petitioner. The allegations against Army, Police, Election Staff have not been proved.
25. There should be positive evidence on corrupt and illegal practice. On this I refer to a case of Syed Saeed Hassan v. Piar Ali Allana and 7 others, reported in PLD 1976 C 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 benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged.
In Fawad Khan v. Inshallah and others reported in PLD 1986 Jour. 22, it was held that election could not be set aside because of irregularity on the part of Election Official. The petitioner must prove that such irregularity had materially affected result of the election. There are number of reported cases where this view has been r iterated. I have come to the conclusion that charges of illegal and corrupts practice have not been proved. There are no violations of the provisions of the Act or Rules in conduct of Election.
26. The last issue No,3 is regarding maintainability of petition. The case of respondent is that allegations made in the petition re vague therefore petition is liable to be dismissed under section 62 o the Act. On the perusal of the petition it is clear that petitioner as given precise statement of material facts and some particulars of corrupt o illegal practice as contemplated under section 55 of the Act. The petitioner has joined all contesting candidates as respondents in the petition. On this I refer to a case S.M. Ayub v. Syed Yousuf Shah and others reported in PLD 1967 C 486, wherein it has seen 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.
' In Bostan Ali v . Muhammad Hanif Soldier and others r ported in PLD 1978 Jour. 81, it has been held by Supreme Court as under:- "We have perused the election petition and we are of the view that although the particulars of each and every corrupt and illegal practice have not been given in minute detail but the election petition read as a whole indicates the purpose or which it was filed and gives so much of the details as may or rereasonably be considered necessary for entertaining and trying she same. The objection raised in this regard is devoid of force and is therefore, repelled.
Therefore, the provisions of sections 54 and 55 of the Act have been complied with.
For the reasons stated above and in result of my findings only, issues Nos. 1 and 2, I find no force in this petition as such I dismiss the same with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.