This Election Petition by Haji Amanullah Khan son of Gul Mullah Khan, petitioner herein, has been filed against Sahibzada Fatehullah Khan son of Ahmad Sahibzada, the District Returning Officer, Dir and Azizur Rehman's Khan alias Katpatay Khan, respondents 1 to 3 herein, seeking a declaration to the effect that the election of respondent No.1 from Constituency NA-26 Dir-1 is void and ineffective because respondent No.1 has indulged and committed illegal/corrupt practices during the entire process of the election which includes casting of bogus votes which has materially affected the result of the election. It has been further prayed in the petition that petitioner be declared as duly returned and successful candidate instead of respondent No.1 from the aforesaid Constituency or in the alternative the election as a whole should be declared as void, illegal and without any effect and also to declare the seat as vacant or any direction deemed proper in the matter may be passed in the petition.
It may be pointed out here that this election petition was originally filed before a Tribunal consisting of my learned brother Mr. Inayat Elahi Khan, J. Who dealt with the same uptill recording of the statements of the witnesses of the petitioner and part statement of the petitioner himself whereafter vide order dated 27th November, 1986 it was recorded by my learned brother as under:- "Statement of the petitioner not concluded. In the course of proceedings one of the parties displayed lack of confidence in this Tribunal, therefore, it would be appropriate and also in the interest of justice that the case should be transferred to another Election Tribunal for further proceedings. The record of the election petition is to be immediately forwarded to the Chief Election Commissioner for necessary orders:"
It was on 10th January, 1987 that this election petition was received by me on transfer through the Chief Election Commissioner.
2. Briefly stated the facts of the case are that the petitioner and respondents 1 and 3 contested election from Constituency NA-26 Dir-I on 25th of February, 1985 wherein respondent No.1 was declared as successful from the aforesaid Constituency. The allegations of the petitioner are that respondent No.1 could never succeed in the election if he had not indulged in corrupt and illegal practices during the entire process of the election which has materially affected the result of the election; that respondent No.1 has illegally contested the election as a nominee of the defunct- Jamaat-e-Islami and has throughout canvassed in this capacity. His polling agents were members of the defunct-Jamaat-e-Islami and votes were also cast in the name of -the said Jamat-e-Islami; that Afghan Refugees were registered as voters in difference areas by respondent No.1 and such votes were polled in his favour during the election; that a number of Presiding Officers and Assistant Presiding Officers of various Polling Stations were closely related to respondent No.1 who had effectively contributed in polling bogus and unauthorised votes on all the Polling Stations under their control; that at various polling stations and particularly at Polling Station Kotkey, the village of respondent No.1 the Polling Agents of the petitioner were compelled to leave the Polling Stations and in their absence votes were polled with the connivance of the Presiding Officers and other personnel of the polling stations; that the Polling Agents of the petitioner were intimidated and threatened with dire consequences by the workers of respondent No.1 at various Polling Stations if and when they challenged bogus votes: that votes of dead or persons living outside Pakistan were illegally polled by the workers of respondent No.1 at various Polling Stations particularly at Polling Stations controlled by the relatives of respondent No.1 as Presiding or Assistant Presiding Officers. It was further averred in the petition that weapons and ammunition were freely and openly distributed amongst the workers of the defunct-Jamaat-e- Islami in support of respondent No.1 in order to influence the voters at large and win over the voters for respondent No.1 that transport comprised of Suzukis, Datsuns (Cars). Trucks and Buses was throughout utilised in the entire election campaign thus spending much money for it by respondent No.1 and that petrol worth thousands of rupees was also sutilised during the process of election by respondent No.1 that public meetings were held through the auspices of the defunct- Jamaat-e-Islami in mosques and hujras by respondent No.1 throughout the Constituency particularly in Sultan Khel and Painda Khel areas. Lastly, it was submitted that votes polled by post by Government servants were manipulated by respondent No.1 in such a way that many such voters had no knowledge of their votes having been polled in favour of respondent No.1. Most of such votes were ostensibly marked by one person and despatched by them without the knowledge of the voters and as such has greatly influenced the result of the election.
3. From the record it appears that only respondent No.1 has filed written statement raising certain preliminary objections and also rebutting the contentions of the petitioner on factual side. On the pleadings of the parties my learned brother framed the following issues in the case--
(1) Whether the election of respondent No.1 has been procured or induced by any corrupt or illegal practice?
(2) Whether a corrupt or illegal practice has been committed by respondent No.1 or his election agent or by any other person with the connivance of the respondent or his election agent?
(3) Whether the election petition is liable to be dismissed on account of the preliminary objections (a to c) mentioned in the written statement.
(4) Relief.
4. Mr. M. Sardar Khan, Advocate, argued the case on behalf of the petitioner whereas Mr. J. D.
Akbarji, Advocate, argued on behalf of respondent No.1 Quite lengthy arguments were addressed on both sides and with the help of the learned counsel for the parties I have also gone through the material on record. Now I proceed to record my findings on the issues framed in the case.
5. Issue No.3--As certain preliminary objections had been raised by respondent No.1 on which this issue was framed, therefore, I would like to take up this issue first. The preliminary objections raised by respondent No.1 are that the petition is not competent in its present form due to misjoinder of parties; that the documents annexed to the petition are not verified according to law. Hence the same cannot form part of the petition and that the petition is time-barred, as the one sent to the respondents was cancelled by the petitioner himself and there is no provision under the law to file fresh petition after cancellation of the previous one. Both the learned counsel for the parties referred to different sections of law contained in the Representation of the People Act, 1976 but I am afraid that it will be in the interest of justice to decide the case on merits.
However, in my opinion the preliminary objections raised by learned counsel for respondent No.1 do not carry much force and thus are to be decided in the negative. This issue is, therefore, disposed of accordingly.
6. Issues 1 and 2.--As both these issues are interconnected, therefore, I propose to dispose them of together. This election petition consists of two parts viz., that there were extensive illegal and corrupt practices committed by respondent No.1, therefore, the election may be declared as void qua respondent No.1 or the election as a whole be declared as void and that the petitioner is entitled to be declared as elected instead of respondent No.1. I have gone through the contents of the election petition as well as the written statement filed by respondent No.1. In my view the petitioner has miserably failed to substance his allegation regarding illegal and corrupt practices allegedly committed by respondent No.1 during the aforesaid election. It is matter of common knowledge that registration of votes is not the duty of an individual but is the duty of the Officers/Officials authorised by the Election Commission of Pakistan in this behalf and therefore this allegation of the petitioner is not covered by extensive corrupt practice. Similarly, appointment of Presiding Officers is also not the duty of any individual, it is the duty of election authorities. The petitioner has levelled this general type of allegation without giving any strict proof and without specifying the dead voters, voters out of Pakistan whose votes were allegedly got polled by respondent No.1 in his favour. The petitioner has further failed to pinpoint specifically as to who were those persons who polled the votes of dead persons or those who are out of country. Equally the allegation of the petitioner regarding distribution- of arms and ammunition by respondent No.1 has also not been substantiated by any evidence on record--rather it is also a general type of allegation. Same is the position with the other allegations of the petitioner such as use of transport, petrol and holding of public meetings. It is a matter of common knowledge that mosques are not public meetings places.
7. Now I will refer to the statements of the witnesses of the petitioner recorded before this Tribunal.
PW 1 is Sifatullah who is the star witness of the petitioner. PW 2 is Itbar Khan who has stated that the supporters of respondent No.1 caught hold of him and confined him in the polling station and then manipulated all the votes and that Jehanzeb, Advocate, rescued him from them. But it is very important to note here that the said Jehanzeb has not been produced by the petitioner is support of the allegation of PW.2. PW3 is Mohammad Saleem, who has stated that his postal ballot paper had gone somewhere and was cast in favour of respondent No.1 Khan Shahzada, P.W. 4, says that votes of Afghan Refugees were polled during the election. P.W. 5 Nadir Khan says that he was Polling Agent of the petitioner in Polling Station Mayar and that votes of those persons were polled who had gone either abroad or were minors. PWs 1 and 2 were examined on 9th of April, 1986 whereafter this Tribunal allowed the petitioner on 30th of April, 1986 to produce further list of witnesses and documents, which was filed accordingly and on 2nd October, 1986 srest of the petitioner's witnesses were examined. PW 6 Falahuddin, who was examined on 31st October, 1986, made a story that his postal ballot paper had been manipulated and someone had cast his vote.P.W. 7 is Mohammad Rasool, who was polling agent of the petitioner in village Shahi Kot and who says that Afghan Refugees and dead persons have voted for respondent No.1. But it is strange to note that although this witness was a polling agent of the petitioner yet he did not catch hold of any Afghan refugee or person casting vote of a dead person. Not a single person has been named by the petitioner throughout in the election petition. Similarly, no vote has been challenged or tendered. Next comes Tahir Shah Khan, P.W.
8. He says that his vote has been polled for respondent No.1. How, when and where, he does not disclose. Mohammad Hashim was examined as P.W. 9 and he stated that he was also polling agent of the petitioner and was also authorised by the petitioner to see the counting of postal ballot-- papers. But this witness has not pointed out at the time of count that whether any of the postal ballot-papers has been manipulated, nor such an objection was raised by him although he was a polling agent of the petitioner. Lastly comes the statement of Inamullah Khan, PW 10, son of the petitioner, and Amanufah Khan P.W. 11, petitioner himself. No Presiding Officer, Polling Officer or any independent witness has been produced by the petitioner to corrobrate his above--referred serious allegations. After the close of the evidence of the petitioner respondent No.1 recorded his statement as well as statement of P.W. 2 and then closed his evidence without any loss of time.
8. It is the case of the petitioner that there were extensive illegal and corrupt practices committed by respondent No.1 during the entire process of the election. This objection is governed by section 70 of the Representation the of People Act, 1976. The first and foremost thing in such like cases is that the burden of proof lies on the person who alleges illegal and corrupt practices. It is a case of quasi-criminal nature and strict proof is necessary. On this view of the matter I get support from the pronouncement of the superior Courts delivered in Mohammad Saeed and 4 others v. (1)
Election Petitions Tribunal, West Pakistan, (2) Mehr Mohammad Arif Khan, (3) Ghulam Haider and
(4) West Pakistan Government and others (PLD 1957 Supreme Court 91). Syed Saeed Hassan v. B Pyar Ali and 7 others (PLD 1976 Supreme Court 6), Sher Bahadur Khan alias Malik Bahadur Khan v.
Abdul Samad Khan and 14 others PLD 1975 Peshawar 124), Mohammad Amin and 4 others v. Shujat Ali Khan and another (PLD 1986 Journal 66) and Jamaluddin Shah v. Abdul Sattar and 13 others (PLD 1986 Journal 146). All these authorities are specific on the point that illegal and corrupt practice should be proved by cogent evidence which is not the case of the petitioner. In spite of producing a number of witnesses in support of the assertions and allegations contained in the petition the petitioner has miserably failed to prove any of extensive illegal or corrupt practices in the entire process of the election. Under section 70 of the Representation of the People Act, 1976 the election as a whole is to be declared void if the result of an election had been materially affected by reason of extensive illegal and corrupt practices. Section 68 of the Act runs as follows:-- "The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- (a)xxxxxxxxxxxxx (b)xxxxxxxxxxxxx
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice."
By reading the present petition I am of the view that it is covered under section 70 of the Act because in section 68 "the result is materially affected" is not mentioned whereas in section 70 there are two things: (1)result is materially affected.
(2)extensive corrupt and illegal practice.
Section 68 of the Act provides as under:-
(1) ............................
(2) Any of the illegal and corrupt practice.
9. Now once again I will revert to the statements of the petitioner's witnesses. The gist of the statement of Sifatullah, PW 1, a Polling Agent of the petitioner, is that he has been forcibly confined in a room. Jahanzeb came there. Many people were present there but not a single witness to this effect has been produced by the petitioner. The said Jehanzeb has also not been produced to corroborate his statement who had allegedly rescued the witness from the confinement. Similarly, Polling Officer of Polling Station Kotkey has .Also not been examined in this regard. In his cross- examination Sifatullah has stated that he did not lodge any complaint in writing. It is important to note that Asstt. Commissioner Wari has also not been examined by the petitioner but PW 1 has said that a written complaint was given by him to the A.C. Wari. PW 2 Itbar Khan is a highly interested witness. He has stated that he has not signed the result of the polling whereas it is the case of respondent No.1 that he has signed it. The petitioner was required to prove by cogent evidence that he had not' signed the result of the polling, otherwise the benefit would go to respondent No.1. In cross-examination this witness says that a complaint was lodged orally with A.C. Wari while PW 1 says that the complaint was lodged in writing with A.C. Wari. Once again at the cost of repetition Jehanzeb, Advocate, went to A.C. Wari alongwith PWs and then to Peshawar for attesting affidavits.
This Jehanzeb has also rescued him from the clutches of respondent No.1 but strangely enough the said Jehanzeb has not been produced in support of all these allegations. PWs 1 and 2 are the star witnesses of the petitioner.
Azizur Rehman's alias Katpatay Khan, respondent No.3 herein, was also a contesting candidate during the election but he has not given anything in writing to justify the story advanced by the PWs. These PWs have not proved that extensive illegal and corrupt practices were committed by respondent No.1 during the entire process of election. After submitting supplementary list of witnesses by the petitioner, PW 3 Mohammad Saleem, has given another version of the extensive corrupt practices. He has said that one Mehmood Khan informed him that his vote had been polled. But he failed to say in his statement as to who had polled his vote, how and why he is entitled to receive his postal ballot paper, the said postal ballot paper was forged by whom and polled by whom.
PW 4 Khan Shahzada has not named a single Afghan refugee or a single voter saying that he was compelled by force to cast his vote in favour of respondent No.1. It is important to note that in his affidavit this witness has not disclosed the fact that he was the election agent of the petitioner.
PW Nadir Khan was admittedly the Polling Agent of the petitioner, so he is an interested witness. For the sake of argument this witness has not stated that who was the election campaign incharge, not a single vote had been challenged by him although he was a polling agent of the petitioner. In my view this witness has not actually performed his duties of a polling agent if his assertions in the affidavit are admitted to be correct because he has clearly stated in his statement that he had not challenged any vote in writing.
Statement of PW6 Falahuddin is also of the same nature as given by Muhammad Saleem, PW 3 who is his co-villager. He does not say anything as to who had polled bogus votes. He also does not make any allegation against respondent No.1 in his affidavit.
Mohammad Rasool Khan, PW7, has not made any allegations against respondent No.1. There is a procedure for casting votes in an election. Besides the agent of respondent No.1 there was agent of another contesting candidate, Presiding Officer and Polling Officer on the day of the election. Thus a general allegation that Afghan refugees came and cast votes is not acceptable in the circumstances of the case. Similar is the situation with the statements of PWs 8 and 9.
Next comes Inamullah Khan, PW.10, who in his affidavit has made an allegation against respondent No.1 that he belongs to the defunct-Jamaat-e--Islami and public meetings were held by him. It is a fact that the elections for National Assembly seats were held on 25th of February, 1985 while for the Provincial Assembly seats the election were held on 28th of February, 1985. There was only two days gap between these two election and the Polling Staff was the same for both these elections because the Election Commission could not change them so easily in such a short time.
Furthermore, petitioner has failed to prove on record that he has raised any objection with regard to the appointment of the polling staff for both the elections. No particulars of corrupt, illegal or extensive corrupt practices committed by respondent No.1 are forthcoming in the affidavit of Inamullah Khan. Regarding the point that respondent No.1 belongs to defunct-Jamaat-e-Islami and he has held public meetings, this witness has not given any indication of the village, area of the mosque or of the hujra, particularly the time, the place where respondent'No.1 had delivered speeches to the public saying that he (respondent No.1) is a member of Jamaat-e-Islami and that people should vote for him. Therefore, in my view affidavit of this witness is also of no avail to the petitioner. Under section 55 of the Act under the heading. "Contents of Petition" full particulars of corrupt practice ought to have been given I F in the election petition. As such, it is the mandatory requirement of an election petition but Inamullah, son of the petitioner, has neither alleged nor specified any l illegal corrupt practice as enumerated and laid down in the provisions of the Act and contained in Chapter 8, which begins from Section 78 to section 83.
Lastly, I come to the statement of the petitioner himself. Even from the petition on which the petitioner relies, it does not spell out a case of corrupt practice. Ex. PW 11/2 is the list of persons whose votes were fraudulently polled. This list was prepared at the instance of Itbar Khan and Sifat Khan, PWs. But they have said nothing about it in their affidavits that in fact they had handed over the said list of the petitioner. Similarly, Jehanzeb Advocate, has not been produced. The petitioner relies on the statements of Itbar Khan and Sifat Khan with respect to this document. Further, Ex. P.1/4 is the list of Afghan refugee voters. But in fact under the law no Afghan refugee could be registered as voter. Petitioner should have proved that the said votes mentioned in the list were got polled in the election by respondent No.1 through illegal and corrupt practices. He himself is not the author of the list. The author of the list is the official of the authorised department. All the exhibits are thus not supporting the case of the petitioner. The list, according to the petitioner, was prepared by his polling agents after 15 days of filing of the election petition. The learned counsel for the petitioner as well as petitioner himself miserably failed to substantiate the p allegation that the election of respondent No.1 was procured or induced by any corrupt or illegal practice or that a corrupt or illegal practice has been committed by respondent No.1 or his election agent or by any other person with the connivance of respondent No.1 or his election agent. This being so, both the issues are decided against the petitioner.
Relief--On the view of the matter that I take, this petition being without any substance, is hereby dismissed with costs.