' Nawab All Khan, petitioner herein, has filed this election petition for declaring election of respondent No.1, Syed Inayat Ali Shah, from PF-15 Peshawar-XV as void and the petitioner be declared as elected. It the alternative the election of constituency PF-15 Peshawar XV as a whole be declared as void.
2. Briefly stated the facts of the case are that the petitioner contested election for Provincial Assembly seat from PF-15 Peshawar XV. Respondent No. 1 and 7 others were also the contesting candidates beside the petitioner in the election held on 28-2-1985. Respondent No.1 was, however, officially declared elected and according to the official version the said respondent secured 4954 votes while petitioner polled 4553, the difference being 401 votes. The petitioner not satisfied with the counting of the votes requested the Returning Officer to re-count the same but his request was turned down. Consequently, the petitioner sent a telegram on 6-3-1985 to the Chief Election Commissioner for issuing necessary directions to the Returning Officer to re-count the ballot papers but no response whatsoever was received from the Chief Election Commissioner. It was further alleged in the petition that respondent No.1 committed corrupt and illegal practices which had materially affected the result of the election; that nearly 450 votes were cast by imposters engaged by respondent No. 1 in the names of dead persons and those who were out of station/country; that similarly, a number of voters of respondent No.1 cast their votes in more than one polling station; that large scale rigging took place in the female polling stations of Nowshera Kalan with the connivance of respondent No.1 and that counting of ballot papers was not to the satisfaction of the petitioner and as the difference between the votes cast in favour of the petitioner and those for respondent No.1 was small, the petitioner's request for recounting of the same was unjustifiedly turned down.
3. Respondents 2 to 8 failed to appear in spite of service and hence they were placed ex parte.
Respondent No.1, however, contested the election petition and submitted his written statement raising two preliminary objections viz that the petitioner has no locus standi or cause of action to file the instant petition, and that the petition is deficient in particulars and completely lacking in statement of the names of persons alleged to have committed the alleged corrupt/illegal practices etc. Hence it is incompetent and liable to be dismissed summarily. On facts it was submitted in reply to para. 3 of the election petition that the contents of para. '3 except for the so- called telegram sent to the Chief Election Commissioner are false. Petitioner does not seem to have come before this Tribunal with clean hands. He has deliberately made an incorrect statement by saying that he had requested the Returning Officer to re-count the votes and that his request was turned down. The fact is that on the date of official count i.e. 2-3-1985, petitioner despite notice remained absent throughout nor was he represented by any agent authorised by him in this behalf. This would be evident from the notice sent to him as well as other contesting candidates by the Returning Officer under section 39 of the Representation of the Peoples Act, 1976. The sending of telegram as late as on 6-3-1986 itself proclaims that it was an after thought, designed to off-set the result of the election on some pretext howsoever frivolous though it may be. The one coined is a classical example of this type. With regard to the contents of paragraph 4, the replying respondent submitted that the same are likewise incorrect and repudiated accordingly. No corrupt or illegal/practice as alleged by the petitioner was either committed or abetted by the Answering respondent. Besides the allegations made are apparently vague and ambiguous. The full particulars of the alleged illegal corrupt practices have not been given by the petitioner as required by law and this Tribunal would, therefore, be well within its powers to reject the petition summarily. In reply to the particulars of extensive corrupt and illegal practices as mentioned in sub-paras. (a), (b), (c) and (d) of para. 4 of the petition, respondent No.1 submitted that the contents of sub-para. (a) are farthest from truth. Neither the names of the alleged dead persons nor those out of station or engaged (allegedly) to cast votes, in their names, have been given by the petitioner. The inference is inescapable that there is no evidence whatsoever with the petitioner to support an amputation which is obviously a concoction. Regarding sub-para. (b) it was submitted that the contents are likewise without substance, vague and ambiguous. With regard to sub-para. (c) it was averred that there is no iota of truth therein. It is repudiated with all the emphasis at the command of the Answering respondent. With regard to sub-para. (d) it was mentioned in the written statement that the petitioner did not attend the official count nor his agent, if any, was in attendance and that there was made no request for recounting. Lastly, it was averred that the election petition is without substance, misconceived, false, vague, ambiguous and incompetent, hence untenable.
4. It may also be mentioned here that during the pendency of this petition the respondent No.1 filed an application for summary dismissal of the election petition which was contested by the petitioner. He also submitted an application for summoning the concerned officials of the office of C.M.E.S. Peshawar with the record mentioned therein for determination of his application for summary dismissal of the petition. This petition was also contested by the petitioner and after hearing the arguments both these applications were dismissed by this Tribunal vide order dated 19-3-1986.
5. On the pleadings of the parties the following issues were framed in the petition:-
(1) Whether petitioner has a cause of action?
(2) Is the petition incompetent being deficient in particulars etc. And statement of names of persons said to have committed alleged corrupt illegal practices?
(3) Is the election of respondent No. 1 void on account of corrupt and illegal practices alleged in para. 4 of the petition?
(4) Relief?
' Thereafter, the case was fixed for the evidence of the petitioner. Petitioner examined Liaqat All as P.W.1, Mumtaz Khan, P.W.2 and himself appeared as P.W.3 and while abandoning Ghulam Farooq, Assistant Commissioner, Charsadda, the petitioner closed his evidence on 17-5-1986. Thereafter, the case was fixed for evidence of respondent No.1. On 24-5-1986 respondent No.1 recorded a very short statement to the effect that there is no case against him, therefore, he does not wish to produce any evidence. Thereafter, the case was fixed for arguments. On 21-6-1986 the petitioner filed an application for permission to allow additional evidence. This application was contested by respondent No.1 and after hearing the arguments of the parties this tribunal also dismissed the said application vide order dated 28-6-1986. Thereafter, arguments on the main petition were heard at length.
' Issues Nos. 2 and 3: ' It was essential for the petitioner to satisfy this Tribunal with regard to the fact that respondent No.1 has won the election through fraud or illegal practices. The fraud and illegal practice has been defined in section 78 of the Representation of the Peoples Act, 1976. Liaqat Ali, P.W.1, has stood the test of cross-examination. He has proved his affidavit Exh. P.W.1/1 to be correct and bearing his signature. In this affidavit he has alleged that some persons have cast their votes in the names of those persons who were dead but their names were there on the election list and that those persons belonged to respondent No.1. But in cross-examination he has clearly admitted that he has not given the names, addresses or particulars of any persons in his affidavit, Exh. P.W.1/1, who had allegedly cast begus votes. He further stated that he had not apprehended any such voter at the time of the election nor did he hand over any such person to the Police, the Presiding Officer or any other authority. Similarly, he had not made any written complaint to this effect to any one but he did inform the Presiding Officer verbally. In the same breath he stated that he does not remember who was the Presiding Officer. The next witness of the petitioner is Mumtaz Khan, P.W.2, but it is important to note that he has contradicted the contents of his affidavit in his cross-examination when he stated that it was incorrectly recorded in his affidavit that he had gone to the Polling Officer. In fact his sisters had gone there. It may be mentioned here that both P.W.1 and P.W.2 are related to the petitioner. Lastly comes the petitioner who appeared as P.W.3. It may be mentioned here that he has given a very straight forward statement admitting therein that he had received a notice from the Returning Officer to attend his office on the date of count/ consolidation of results but that he did not attend the proceedings of consolidation of results personally nor did he authorise any one for and on his behalf to attend to those proceedings. He further stated in his cross-examination that on 1-3-1985 he had sent telegram to the Chief Election Commissioner of Pakistan, Provincial Election Commissioner and the Governor N.-W.F.P. Informing them of the aforesaid reasons but the petitioner miserably failed to produce a copy of any such telegram before the Tribunal. He frankly conceded that neither he has brought any such copy nor he had any with him. He also admitted that he had not given the names and particulars of any imposter said to have died or absent on the day of polling whose vote had allegedly been cast. He also stated that he had not filed any list of persons who are alleged to have cast their votes in more than one Polling Station as mentioned by him in sub-paras. (a) (b) of paragraph 4 of the election petition. Similarly, he also admitted that he had not made any written complaint to any election authority vis-a-vis his allegations contained in sub-para. (c) of his petition. Law gives a right or privilege to a person to recount the vote but it is an admitted fact that the petitioner was served with a notice by the Returning Officer to attend the proceedings of consolidation of results but neither he participated in those proceedings nor did he authorise any person to act on his behalf in the said proceedings. A reference to the evidence of the petitioner clearly shows that no election list was produced in evidence which could prove that votes on behalf of dead persons have been cast during election, nor any person of the Election Commission was produced who could prove the factum of casting the votes of dead persons. Prima facie on the face of it the evidence produced by the petitioner is not inspiring confidence. As mentioned earlier both the witnesses produced by the petitioner are his relatives, one has proved his affidavit to be false and the fact that the petitioner has admitted that he was contented with the results of the election, all this goes a long way to prove that it is a case of no evidence and if respondent No. 1 has said that there is no case against him he has said it rightly. After the short statement of the respondent the filing of application by the petitioner for permission to adduce additional evidence clearly shows that the burden of proof has not been discharged by the petitioner. As no particulars etc. And statement of names of persons said to have committed alleged corrupt/ illegal practices have been brought and proved on record, therefore, I am constrained to decide both these issues against the petitioner.
' Issue No. 1: ' In view of my findings on issues 2 and 3 the petitioner has no cause of action. This issue is also decided against the petitioner.
' Relief: ' The net result of the above discussion is that this petition is without any force which is hereby dismissed with costs.