' Abdul Majid petitioner has filed this Election Petition against Sher Zaman respondent No,1 and others under section 52 of People's Representation Act, 1976.
2. The brief facts are that the petitioner contested election from PF-27 Swabi-IV, District Swabi in 1990. The respondents Nos.1 and 2 were also contesting candidates. After the polling the Election Commission declared respondent No,1 as returned candidate whereas respondent No,2 and the petitioner were declared as unsuccessful. The petitioner based his petition on many grounds such as:
(a) That respondent No,1 being an independent candidate used the platform of political party (Muslim League) and was flying the flag of that party;
(b) that he has shown himself as a common candidate of UI and ANP;
(c) that the votes of dead persons have been cast in favour of respondent No,1 in more than one polling stations;
(d) that the majority of women voters were deprived from their participation in the election;
(e) that the Presiding Officers, Assistant Presiding Officers and Polling Officers have left their respective Polling Stations during the polling hours for casting their votes in difference Polling Stations, thus violating the law and directions given by the Election Commission; and
(1) that majority of the voters have cast their votes in two different Polling Stations i.e. as double votes.
3. On the above grounds the petitioner has asked for re-count and for declaring the election of PF- 27, Swabi-IV as void and has prayed that the petitioner may be declared as returned candidate.
4. Notice was issued to respondent No,1 who filed written statement wherein he denied all the allegations made in the petition.
5. The pleadings of the parties gave rise to the following issues:---ISSUES:
(1) Whether no cause of action has been disclosed in the Election Petition and as such the Election Petition is liable to be dismissed?
(2) Whether the Election Petition is bad for misjoinder and non-joinder of parties, if so, its effect?
(3) Whether the petitioner is estopped by his conduct to bring the present Election Petition?
(4) Whether the Election Petition is not maintainable and what would be the effect of withdrawal of Objection Petition contained in C.M. No,8/91 and the objections taken in the application dated 25- 5-1991 by the petitioner?
(5) Whether the election of the returned candidate, respondent No,1, has been procured or induced by corrupt and illegal practices as detailed in the Election Petition either by respondent No,1 himself or through his consent or connivance by his supporters?
(6) Whether the Presiding and Polling Officers of the Polling Stations of the Constituency in question had left the polling unattended in order to cast their votes in other places, if so, its effect?
(7) Whether recount of the ballot papers is legally justified on the basis of the grounds given in the petition?
(8) Relief.
6. During the hearing of the Election Petition the learned counsel for the petitioner submitted an application (C.M. No,2 of 1992) for recounting of the ballot papers of all the Polling Stations regarding election of the Constituency PF-27 Swabi-IV. The learned counsel for the respondent No,1 filed reply to this application which is on file. The respondent No,1 has questioned the maintainability of the application and has also stated that the petitioner is estopped by his conduct to file such an application.
7. Evidence was recorded in the petition. Apart from the petitioner, Hujam Khan, Civil Judge (Returning Officer) for Constituency PF-27 Swabi IV, Muhammad Raziq, Presiding Officer, Muhammad Hanif, Presiding Officer and Muhammad Umar, Presiding Officer were examined as witnesses on behalf of the petitioner. Thereafter the petitioner closed his evidence on 20-1-1993.
Respondent No,1 appeared as R.W.
1. He did not produce any other witness and closed his evidence on 6-2-1993.
8. I have heard the petitioner in person and his learned counsel as well as the learned counsel for respondent No,1. File has been perused.
9. So far as the points agitated above as (c), (d), (f) are concerned, no evidence has been produced whatsoever in support of the above contentions. The learned counsel for the petitioner only argued on the question of recount of all the ballot papers/votes polled in favour of the petitioner and respondents Nos.1 and 2 and he repeated his contention with regard to the ground
(e) where it has been stated that the Staff of the Polling Station has left the Polling Station during the polling hours for casting their votes in other Polling Stations. Regarding the second contention there is nothing on the file to show that the Presiding Officers left their Polling Stations during their duty hours for casting their votes in other Polling Stations except Muhammad Raziq (P.W.5) who was Presiding Officer for PF-27 Swabi-IV who stated as follows:--- "As the polling was going on peacefully, therefore, I went to the other polling station at Government High School at `Zuhr' prayers time and polled my vote. The distance between my polling station and the polling station where I had polled my vote may be at about 100 metres. After polling my vote in the polling station, I immediately returned to my own polling station. The witness voluntarily stated that before going for casting my vote in the nearby polling station. I nominated in writing the Assistant Presiding Officer to look after and supervise the poll in my absence I produce photo copy of the document whereby I have authorized the Assistant Presiding Officer to supervise the polling in my Polling Station when I left for another Polling Station in order to cast my vote. The departure time recorded in this document is 2-05 p.m. and time of my arrival back is 2-12 p.m. Photo copy of this document is Exh.P.W.5/1."
10. From the above it is clear that there was no break in the polling. Nothing has been brought from the above witness that any irregularity was reported or there was any sort of misuse of ballot. The leaving of the Polling Station by the Presiding Officer for 15 minutes at `Zuhr' prayer time will not show that any law or rule made thereunder has been violated. The other Presiding Officers who were produced by the petitioner went against him. All the Presiding Officers who were produced as witnesses for the petitioner did not support his contention that they left their respective polling stations for casting their vote in another Polling Station.
11. For instance Muhammad Hand, another Presiding Officer for PF-27 Swabi-IV (P.W. 6) stated- as follows:--- "I did not poll my vote. As I was appointed as Presiding Officer only a few days before the polling, therefore, I could not avail the benefit of casting my vote by postal ballot. I had two Assistant Presiding Officers working under me, namely, Danial and Hamdillah. None of the Assistant Presiding Officers went to poll their votes to another Polling Station during the polling hours."
' Similar is the statement of Muhammad Umar, Presiding Officer (P.W.7).
12. From the above it is clear that the allegation of the petitioner regarding the charge against the Presiding Officers and other Staff for abandoning the Polling Station for casting their vote to another Polling Station is not proved.
13. Mere allegation of the petitioner regarding casting of double votes ground (1), the conduct of the Presiding Officers for polling of votes of persons who were dead at the time of disputed election is not sufficient for proving the charge.
14. As far as the charge against the respondent No,1 for using the party platform is concerned, again there is no solid proof available on the file. No witness has been produced by the petitioner to prove the aforementioned charge. Solitary statement of the petitioner will be insufficient. Of course Hujam Khan, Returning Officer (P.W.4) has stated this much that the respondent No,1 was flying the flag of a party (Muslim League). He stated that on this application he took notice and gave warning to respondent No,1 and no action was taken on the second application. The Returning Officer further stated that he had received no other complaint whatsoever from the petitioner during the election campaign.
15. Learned counsel's last contention is regarding re-counting of the ballot papers. In this regard the statement of Hujam Khan, Returning Officer (P.W.4) is of much importance, who stated as follows:--- "Except the above I had received no other complaint whatsoever from the petitioner during the election campaign and after the preliminary result I had received a complaint dated 29-10-1990 from the petitioner, wherein he had stated that there was rigging in polling stations Lahore, Jalbai and Jalsai. The application is Exh.P.W.4/3 (subject to objection by counsel for respondent No,1 that this document was not attached with the petition). On this application I took the following action in presence of the petitioner and respondent No,1:--- 'In the circumstances of the case, the recounting of Polling Station No,20 Lahore is allowed.'
' As far as I remember this was with the consent of the parties. Accordingly the votes polled at Polling Station No,20 Lahore were recounted and I found no difference of votes in the result of recounting as declared by the Presiding Officer. I prepared the memorandum of the recounting, which is Exh.P.W.4/4."
16. Besides the above statement a request was made by the learned counsel for the petitioner that let there be at least a recount of ballot papers in any of the two Polling Stations. This suggestion was made to the learned counsel for respondent No,1 but it was not accepted on the ground that no material is available on the file for justifying the recount after a lapse of more than two years. It is also stated by respondent No,1 that when 'the request for recount was made or it was alleged by the petitioner that there was rigging in a few polling stations before the Returning Officer then, by agreement only the ballot papers of Polling Station 'Lahore' were counted and the result was the same as on the polling day. Keeping in view the statement of Returning Officer, which is supported by the documentary evidence, if the petitioner had agreed to the recount of one polling station, I think there is no justification for such an exercise to recount more than 20,000 ballot papers at this stage after a lapse of such a long period. Considering all the material brought on record there is no suggestion, not to speak of proof, that there was rigging in the election or any other irregularity which justified the recount. The learned counsel for the petitioner relied on certain authorities reported as:--- PLD 1967 Dacca 771; AIR 1964 Rajasthan 99; AIR 1930 Mad. 195; PLD 1976 Kar. 381; PLJ 1973 Tr.0 (Election) 180; AIR 1964 All. 86 and PLD 1975 SC 41.
' But the facts of the precedent cases are totally different from the instant case, therefore, no reliance can be placed on the above quoted authorities.
17. Out of the abovequoted authorities, it has been held in a case reported in PLJ 1973 Tr.0 (Election)
180 (c) as under:--- "(c) National and Provincial Assemblies (Elections) Ordinance, 1970 (XIII of 1970), S.75---"Illegal or corrupt practice"---Need not affect election materially---Such proof, held, not required for holding election of a returned candidate to be void."
18. In another case reported in PLD 1976 Kar. 81 it was held as follows:--- "(i) National and Provincial Assemblies (Elections) Ordinance (XIII of 1970), S.37(5)---Recount of ballot papers---No grounds given for recounting---Recounting, held, cannot be allowed unless applicant makes out reasonable cause for same."
19. In a case reported in PLD 1975 Journal 41 it has been held:--- "National and Provincial Assemblies (Elections) Ordinance (XIII of 1970), Ss.68 & 44--Jurisdiction-- Inspection--Indubitably, an election petition can be presented on the sole and exclusive ground that votes had been wrongly received or wrongly rejected, or that any vote was void without pleading any corrupt or illegal practice. The question as to the propriety of acceptance or exclusion of objectionable votes is not thus outside the purview of the jurisdiction of the Tribunal. In this context, reference to section 68 of the Ordinance of 1970 is pertinent. This provision predicates that counting of votes, to wit, exclusion of invalid votes and inclusion of valid votes which have been wrongly and improperly excluded, fall within the ambit, purview and scope of this Tribunal. That this is so, is further attested by section 44 of the same Ordinance. It is only in cases where in the petition the main ground is that the election has been affected by wrongly refusing to count some of the votes cast in favour of the petitioner and wrongly counting some of the votes in favour of the respondent and further that the Tribunal is satisfied that in order to decide the dispute and to do complete justice between the contesting parties the inspection of the ballot papers was essential, that inspection of the ballot papers can be ordered. The Tribunal will allow such an inspection only on being satisfied that an ex facie case has been made out that there has been an improper acceptance, refusal or rejection of votes or that if the ballot papers have been properly scrutinized and counted in accordance with mandatory provisions of section 36 of the Ordinance, the party applying for inspection will have got a majority of votes."
20. From the above it is clear that no valid ground has been laid down' by the side of the petitioner, do not support his case.
21. The petitioner who is a practising lawyer has asked for punishing the respondent No,1 for tampering with the record, for giving false evidence and for recounting of votes, therefore, the above authorities, though presented from for committing forgery under sections 191, 192, 193, 463, 464 and 466, P.P.C. He submitted that an application was made before the Tribunal (my predecessor) for taking cognizance of the matter and for initiation of proceedings under the aforementioned sections, but no action was taken on his application so far.
22. The above controversy arose when the petitioner made an application on 14-3-1992 for exclusion of the two affidavits of Noor Muhammad and Jan Muhammad filed on behalf of respondent No,1 at the time of written statement, which amounts to tampering/inclusion/contempt of Court and should not be considered as evidence. In reply to this application respondent No,1 submitted replication wherein he used unparliamentary language of which the petitioner took exception and moved the Tribunal to take cognizance of the matter and suitably punish respondent No,1. During the course of the arguments it was pointed out to the learned counsel for respondent No,1 that the words used in the replication by respondent No,1 were unparliamentary and objectionable, to which the counsel for the petitioner replied that he drafted the written statement and he apologises to the petitioner, who is a well known lawyer of the area. The learned counsel for respondent No,1 even requested the Tribunal to expunge the remarks from the record, if it is 'considered proper by the Tribunal. Mr. Abdul Majid Khan petitioner, who is also a practicing lawyer accepted the verbal apology of the learned counsel for the respondent No,1 and requested the Tribunal to accept the apology of the learned counsel for respondent No,1 and expunge the objectionable words from the written statement. I appreciate the goodwill gesture on the part of the learned counsel for respondent No,1 and the petitioner and order that the objectionable words should be expunged from the replication of respondent No,1 drafted by the learned counsel.
23. In view of the above, the learned counsel for the petitioner did not press for initiation of criminal proceedings and withdrew from the application to this effect.
24. After discussing all the evidence of both the parties brought on record and my finding on the points raised by both the parties, I now come to the issues framed by my learned predecessor.
25. So far as Issues Nos.1 to 4 are concerned, no arguments were advanced regarding these issues, nor there is any evidence to that effect, which are decided against the petitioner.
26. As regards Issues Nos.5 to 7, I have already discussed these issues above and have come to the conclusion that nothing has been proved on record that respondent No,1 exercised illegal practices himself or through his supporters in winning the election. Similarly no sufficient evidence was brought on record by the petitioner to prove that the polling staff left the polling station unattended for casting their votes in other polling stations and that illegal practices were used during the election. Of course one Presiding Officer namely Muhammad Raziq P.W.5 stated that he left polling station at 'Zulu.' prayers time for 15 minutes and went to other polling station for casting his vote, which was at a distance of 100 meters, but he stated that he authorised the Assistant Presiding Officer to look after the polling affairs during his absence. The said witness also produced a written authority letter, which he had given to the Assistant Presiding Officer to that effect. Nothing was brought out from the mouth' of this witness that during his absence any untoward incident happened or any bogus votes were polled. In the above circumstances, Issues Nos. 5 and 6 are also not proved and are decided against the petitioner.
27. So far as Issue No,7 is concerned, I have already given my finding regarding this issue. No base/ground is made for such a recount. It is not practicable to count round about 24,000 votes after the lapse of two years. Beside it, the petitioner had already agreed to the count of votes of one polling station namely 'Lahore' before the Returning Officer and no difference was found in the recount of that polling station, although the petitioner had asked for the recount of 3 Polling Stations, but he agreed to recount the votes of only one Polling Station. In these circumstances, all the issues are decided against the petitioner, therefore, the Election petition filed by the petitioner is without any basis, which is accordingly dismissed alongwith C.M. No,2/92 with no order as to costs.
Election .