1. ' The petitioner has filed this Election Petition under section 52 of the Representation of the People Act, 1976 (henceforth to be referred to as the Act) with a prayer to declare the election of the successful candidate. Respondent No,1, from Constituency PF-31 Kohat as illegal and void and instead "petitioner to be declared duly elected".
2. The relevant background for the relief claimed in the petition is that the petitioner and respondents Nos,1 to 8 contested the latest election held on 27-10-1991 for the seat of Constituency PF-31 Kohat. Consequently as a result of the official count respondent No,1 was declared as returned candidate. In the election petition, the legality and correctness of the election of respondent No,1 has been challenged on the following grounds:-
(1) 447 extra ballot papers were recovered from the boxes in 5 polling stations of village Darsamand, than the number of the electors struck off on the electoral roll by the Presiding Officer.
2. It was alleged that this was managed by respondent No,1 through illegal and corrupt practice.
(2) The statements of count issued by the Presiding Officers of Polling Stations Nos,25, 37 and 59 to the polling agents of the candidates as well as sent to the Returning Officer were not signed by them.
(3) Muhammad Arifeen, a Polling Officer at polling station Shinawari "was caught when he was tearing the ballot papers and had already torn 5 ballot papers".
(4) As there was a difference of 200 votes per unofficial count between the petitioner and respondent No,1, therefore, petitioner bona fidely believed that many valid ballot, ballot papers polled by him have been treated as invalid while many invalid votes of the respondent have been counted as valid. The petitioner therefore applied for recount to the Returning Officer. Respondent No,1 was issued notice for this purpose for 29-10-1990 but on that date he alongwith 200/300 "armed supporters" attacked the office of the Returning Officer and he and his supporters made indiscriminate firing and the incident was reported to the police by the Returning Officer.
(5) In female polling booths at village Darsamand no female voter had come to vote and instead their votes were polled by male supporters of respondent No,1.
3. ' Respondent No,1 in his written statement on legal side described the election petition as lacking in precise statement of the material facts and also raised the objection of non-maintainability of the petition on account of failure to comply with the provisions of sections 45 and 55 of the Act. The factual allegations in the election petition were refused and termed as frivolous and baseless.
3. Following issues were framed out of the pleadings of the parties:--
(1) Is the petition liable to be dismissed for non-compliance with the provisions of sections 54 and 55 of the Representation of the People Act, 1976? OPD.
(2) Had the annexures not been verified in the manner prescribed by law, if so, its effect? OPD
(3) Has the petitioner no locus standi and or cause of action to file the instant petition? OPD
(4) Is the election of respondent No,1 void on account of corrupt and illegal practices alleged in the petition? OPP
(5) Is the petitioner liable to be returned to the constituency? OPP
(6) Relief.
4. ' It is necessary to refer to an important aspect of the case at this stage. The learned advocate for the petitioner submitted an application numbered by the office as C.M. No,7 of 1992 requesting therein that the official witnesses mentioned in the list of witnesses may be summoned by the Tribunal. Notice of this application was given to the contesting respondent who submitted written reply wherein he objected to the summoning of the official witnesses on the ground, "but he has given no reasons, as required by law, justifying 'their production'. And that is why that when official witnesses did attend, they were not examined by him, for examination of official witnesses is to follow the proof, not precede it".
5. ' It was also stated therein. "It may also be added that the said witnesses are named only 'for recount'. But the Hon'ble Tribunal is not "meant" for this purpose. Deposit of some amount for summoning "official witnesses" is not enough by itself. As stated above, when official witnesses did come, they were not examined. It was then decided that in the circumstances of this case, petitioner will produce his evidence first namely he will first appear himself and be examined and if some justification is made out then, the question of summoning official witnesses might be considered. This having been settled, now the petitioner is attempting to go back upon it and is holding himself back, for he has no legs to stand upon".
4. Both the learned advocates were allowed to argue this application and by order dated 18-11-1992 I disposed of the application in these terms:-- "I need not dilate in detail upon the arguments agitated at the bar as I agree with the via media suggested by the learned counsel for the respondent that the petitioner sh9uld be examined first and if he could make out any justification for the re-count for which the official witnesses are being summoned, then the Court can consider his plea and send for the witnesses, but in case he failed to make out any ground for re-count in his statement, then the summoning of the official witnesses would be a futile exercise. No evidence on the side of the petitioner has so far been produced. Let the petitioner appear as his own witness in support of the petition and in case he and his deposition is, able to justify the re-count then the official witnesses will be summoned otherwise not. This application is disposed of in the above term. Case to come up for 28-11-1992 for the statement of the petitioner and the other un-official witnesses whom the petitioner can legally produce."
6. ' ISSUES NOS, 4 and 5: ' These are the main issues which pertain to the merits of the election petition and are, therefore, taken first and discussed together. It is to be noted that the petitioner appeared as a sole witness to prove his case and his statement as P.W. 1 consists of '2 parts, out of which the second part is entirely irrelevant as it has got nothing to do with the contents of the election petition but relates to a criminal case which was'registered during the pendency of the election petition.
7. ' In order to appreciate the petitioner's case in its correct perspective it would be pertinent to reproduce first part of the examination-in-chief in toto and the relevant parts of the cross- examination. It was stated in the examination-in-chief:- "I had contested election for the membership of the Provincial Assembly of N.-W.F.P. From Constituency PF-31 Kohat-IV against the respondents. The election was held on 27-10-1990 in which respondent No,1 was declared returned and against his election I filed my election petition which has been drafted at my instructions. I have signed and duly verified the same. I have today heard the contents of my petition. They are correct and I affirm the same. My election petition is Exh.
8. PW1/1."
9. ' It is clear from this statement that no reference was made to any of the annexures appended with the election petition. The basic objections of the petitioner to the election in the election petition are, firstly, that in the Polling Stations of Darsamand more ballot papers were found in the boxes than those as on the electoral roll, secondly, that the count was not correctly made as the statements of the count of some polling stations were not signed by the Presiding OfficeRs, It is curious to note that none of these objections were made and explained in his statement by the petitioner. It is also amazing that the petitioner failed to examine any one out of his polling agents to substantiate the contents of his election petition. The petitioner in his cross-examination admits: " I was fully conversant with the election laws/rules. I had appointed my polling agents on every polling station in the Constituency. Voluntarily added that the returned candidate was the nominee of the IJI and my polling agents were beaten and driven out from some of the polling stations and they were not provided with the result of the official count. There were 8/10 such polling stations. I have not cited or summoned any one of my polling agents from the said polling stations. I have also not submitted any affidavit of any such polling agents or even of my election agent alongwith my election petition". Again on the remaining polling stations other than stated above, my polling agents were there. Voluntarily said that they were also not given the result of the official count.
10. They had regularly participated in the count of the ballot/compilation of the result at the close of the poll. I have not cited any such polling agent who was allegedly not given the result of offical count at the remaining polling stations as a witness nor have I submitted or appended with my elction petition any affidavit of any one of them". It was also stated: "I have not placed on record any complaint of any of my polling agents regarding violation of any election rule/law on the day of election. Voluntarily said that complaints were made to me. Except for the Polling Station Shinawari no complaint was made by any of my polling agents at any polling station regarding any polling station regarding any alleged violation of election laws or their/his forcible removal from the polling stations". It was further admitted that, "there were 4 polling stations in Union Council Darsamand. It is correct to suggest that in unofficial result respondent No,1 was winning by 261 votes whereas in the official result he was shown as having won by 226 votes".
11. ' In view of all these admissions the petitioner was required to have produced his polling agents for laying foundation for summoning the official witnesses for the purpose of re-count. It has been laid down in Rule No,5 of Notification No, F.1 (7) 85-Cord, that "where any party desires to summon any official witness he shall file with the petition a list of such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witnesses". This provision has not been complied with as no application justifying production of the offical witnesses has been made before this Tribunal nor the petitioner could furnish any justification for this purpose in his statement. The petitioner could request the Presiding Officer for re-count in terms of section 38 (5) and also the Returning Officer under section 39 (6) of the Act. No such request was made to any of the Presiding Officers though an application Exh. PW1/X-1 was submitted to the Returning officer in these words:- {{URDU TEXT}} ' The Returning Officer passed the following order on this application:-- "Notice was given for consideration today. No reasonable ground appears for re-count of all the polling stations. Application is rejected."
12. ' The accumulative effect of all these factors is that the petitioner miserably failed to prove any illegal or corrupt practice in the conduct of the election petition in any way. Similarly, he was also unable to make out any justification for summoning the official witnesses given in the list for the purpose of re-count. In view of the legal position and the portion of the cross-examination of the petitioner, reproduced above, it would be a futile exercise to summon the official witnesses for re- counting the ballot papeRs, The rule laid down in (1) Muhammad Saeed and 4 others v. Election Petition Tribunal West Pakistan and others (PLD 1957 SC 91), (2) Syed Saeed Hassan v. Payar Ali and 7 others (PLD 1976 SC 6) and (3) Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) is to the effect that, "the analogy of criminal trials would hold good in matter of corrupt or illegal practices which must be affirmatively proved to the exclusion of reasonable hypothesis consistent with the non-commission of the corrupt practice and the benefit of doubt must go to the person against whom the corrupt or illegal practice is alleged". If judged on the touchstone laid down in these precedent cases it would be impossible to hold that the petitioner has been able to prove the contents of his election petition. Therefore, both these issues are decided against the petitioner.
13. ' ISSUES NOS,1 to 3: ' Issues Nos, 2 and 3 have not been correctly framed and worded as the contents thereof do not disclose the correct import and significance for which they were framed. In any case, these are not so consequential so as to justify the dismissal of the election petition on this count. However, the petition is not liable to dismissal as no violation either of section 54 or section 55 of the Act has been committed. These issues are answered against the respondent.
14. ' Consequently, the election petition is dismissed but in view of the peculiar circumstances no order as to costs is passed. The order and record of this election petition should be forwarded to the office of the Election Commission in terms of section 72 of the Act.
15. Election .