' Malik Meraj Khalid petitioner alongwith respondents Nos.1 to 5 namely Ashiq All Dial, Amanat Ali Malik, Abdul Qayyum Pahat, Muhammad Akram Nat and Muhammad Yaqoob Mora contesed general election to the National Assembly, held in Octorber, 1990, from Constituency No,100 Lahore- IX. Ashiq All Dial respondent No,1, hereinafter referred to as the respondent, secured the highest number of votes being 46142 as against the next highest number of votes secured by the petitioner who was credited with 34289 votes. Consequently, the respondent was declared to have been duly elected through notification dated 29-10-1990. The petitioner has challenged the result of the said election by filing the instant election petition under section 52 of the Representation of the People Act, 1976 inter alia on the ground that the respondent stood disqualified to contest election to the National Assembly held in 1990 on account of his failure to file Return of Election Expenses for the National Assembly Election contested by him in November 1988.
2. The respondent vehemently contested the election petition. His correspondents i.e. respondents Nos.2, 3 and 4 filed their written statements and supported the petitioner. Subsequently, however, they did not take any interest in the proceedings and absented themselves. They were proceeded against ex parte. Respondent No,5 did not enter appearance despite service. He was also proceeded against ex parte. He has not filed any written statement.
3. On the pleadings of the parties (the election petition and the written statement filed by the respondent) my learned predecessor framed the following issues:--
(1) Whether defendant No,1 stood disqualified to contest election to the National Assembly held on 24-10-1990 for his failure to file Return of Election expenses for the election contested by him to the National Assembly held on 16th November, 1988? OPP.
(2) If issue No,1 is answered in the affirmative, whether the petitioner stands elected as member of the National Assembly from the National Assembly Constituency NA-100, Lahore IX? OPP.
(3) Whether the petition is liable to be dismissed for non-compliance of section 55 of the Representation of the People Act, 1976? OPR.
(4) Whether the petition cannot proceed and is liable to be dismissed forthwith for non-verification of documents by the petitioner or documents P.2, P.3 and P.4? OPR.
(5) Whether the petitioner is estopped from raising objections regarding examination of ballot papers and re-counting of votes?OPP.
(6) If issue No,3 is disproved, whether the petitioner is entitled to re examination of ballot papers and re-counting of votes? OPP.
(7) Whether the petition is vague and does not contain the full particulars and precise statement of alleged illegal and corrupt practices and exercise of undue influence and is liable to be dismissed?
OPR.
(8) Whether the alleged corrupt and illegal practices as mentioned in para. 4 (iv) and (v) relate to the election of respondent No,1 and if proved, their effect? OPR.
(9) Whether there was any contravention of section 9 of the Act, in the appointment of Presiding Officers, Assistant Presiding Officers and Polling Officers, if so, its effect on the election of respondent No,1? OPP.
(10) Whether respondent No,1 suffered from any disqualification on the date of his nomination, if so, what was the effect of not raising this objection at the time of scrutiny of nomination paners?0P.
Parties.
(11) Relief.
4. Vide order dated 6-3-1991 issues Nos.1, 3, 4 and 10 were directed to be tried as preliminary issues.
The petitioner and the respondent examined themselves in support of their respective cases, as P.W.1 and R.W.1 respectively. Later on during the hearing of the petition on 11-11-1992 it was ordered that issue No,2 would also be treated as preliminary issue as the same was inter-connected with issue No,1. The parties were afforded another opportunity to produce evidence on the said issue if they so desired. On 9-12-1992 it was stated on behalf of the petitioner that he did not want to produce any evidence on issue No,2. Ashiq All Dial respondent, however, appeared before the Tribunal on 16-12-1992 and made a statement on oath on issue No,
2. Subsequently, on 13-3-1993, statement of Rai Muhammad Zafar Bhatti Returning Officer of NA. 100 Lahore-IX was recorded as CW-1.
5. I have heard the parties' learned counsel at quite some length and have gone through the material available on record with their assistance.
6. The case of the petitioner is that the respondent had unsuccessfully contested 1988 National Assembly Election from the same constituency and had spent more amount than permissible under the law and also had not submitted the Return of Election expenses, hereinafter referred to as the return, as required under section 50 of the Representation of the People Act, 1976, hereinafter called the Act. This lapse on the part of the respondent, it is contended, had rendered him guilty of illegal practice under section 83 of the Act as a result of which he stood disqualified to be a candidate to contest any election to National or Provincial Assembly. It was pleaded on behalf of the petitioner that on account of the aforementioned illegal practice the respondent's election to the National Assembly be declared void and applying the theory of "thrown away votes" the petitioner be declared to have been duly elected in his place.
7. Conversely, the case of the respondent is that he had contested election to the National Assembly in 1988 as a dummy candidate to cover his brother Safdar Ali Dial who lost to the petitioner. He maintained that not being a contesting candidate he was not bound or legally obliged to file the return under section 50 ibid. It was further maintained that if for the sake of argument he was considered to be contesting candidate even then he was not bound to submit any return because he had not incurred any expenses during the said election. He explained that his election campaign was carried on by his said brother with a view to spoil the votes of the petitioner: It was elaborated on his behalf that he had "pencil" as his symbol while the petitioner's symbol was "arrow" and as there was a similarity between the two symbols a lot many uneducated voters, who could not differentiate, put their stamp on 'pencil' instead of 'arrow'. It was further submitted that the alleged illegal practice which was purportedly committed during 1988 election was wholly irrelevant for the election held in 1990 and thus the election of the respondent could not be declared void on the basis of the said illegal practice. It was vehemently contended that the theory of `thrown away votes' was not applicable in the present case because the alleged illegal practice had not attained notoriety during the election campaign in 1990.
8. It may be pointed out from the very outeset that the petitioner has not produced any evidence to prove that the respondent had spent money in excess of the permissible amount fixed under section 49(3) of the Act. This part of the allegation, therefore, is not proved.
9. Now, I would deal with the question if the respondent was bound to submit the return after the conclusion of 1988 election. In this connection sections 49 and 50 ibid are relevant which are reproduced as under:- Definition.---In this Chapter "election expenses" means any expenditure incurred before, during and after an election or payment made, whether by way of gift, loan, advance, deposit or otherwise, for the arrangement, conduct or benefit of, or in connection with or incidental to, the election of a candidate, including the expenditure on account of issuing circulars of publications otherwise presenting to the electors the candidate or his views, aims or objects, but does not include the deposit made under section 13.
50. Return of election expenses.---(1) Every contesting candidate shall within four months after the publication of the name of the returned candidate, submit to the Returning Officer a return of election expenses in the prescribed form containing--
(a) a statement of all payments made by the contesting candidate together with all the bills and receipts;
(b) a statement of all disputed claims of which the contesting candidate is aware;
(c) a statement of all unpaid claims, if any, of which the contesting candidate is aware; and
(d) a statement of all moneys, securities or equivalent of money received from any person for the purpose of election expenses specifying the name of very such person.
(2) The return submitted under subsection (1) shall be accompanied by an affidavit in the prescribed form sworn by the contesting candidate."
' Now a question arises if the respondent was a contesting candidate or not. The term "contesting candidate" has been defined in section 2(viii) of the Act which reads as follows:-- "'Contesting candidate' means a validly nominated candidate who has not Withdrawn his candidature;"
' Admittedly the respondent had not withdrawn his candidature from the contest during 1988 election to the National Assembly and had secured 2191 votes (see Exh.CW.1/2). He, therefore, was a contesting candidate for all intents and purposes. A bare reading of section 50 ibid would show that the submission of the return was obligatory for every contesting candidate. It cannot be inferred that only those contesting candidates were bound to submit the return who had actually incurred some expenditure and that the submission of the return was not necessary for those who had not incurred such expenses. The interpretation of this provision which the learned counsel for the respondent has given is not acceptable because it does not appeal to reason. If the aforecited provision is so interpreted nobody would submit any return saying that he had not incurred any expenditure and section 50 would be rendered useless and redundant. I, therefore, have no hesitation in holding that the respondent was bound to submit the return irrespective of the fact whether or not he had incurred any expenditure.
10. The case of the respondent is that he had not incurred any expenditure during 1988 election. The petitioner has not produced any evidence to establish that the respondent had incurred any expenditure during the said election but the statement of the Returning Officer Rai Muhammad Zafar Bhatti as C.W.1 shows that the respondent had submitted his nomination paper the price of which was Rs, 5 and thus at least he had incurred that expenditure. It has been argued on behalf of the respondent that the said nomination paper was not purchased by the respondent and therefore he was not bound to make a mention of it in the return. The statement of the Returning Officer does show that the respondent had not purchased the said nomination paper. Obviously, it was purchased by someone on his behalf. In my opinion such an expenditure was an election expense within the meaning of section 48 and liable to be detailed in the return. Therefore, it is held that the respondent had failed to submit the return under section 50 of the Act.
11. It is laid down in section 83 of the Act that a person is guilty of illegal practice if he fails to comply with the provisions of section 50 i.e. fails to submit the return. Consequently, I have no hestitation in holding that the respondent had committed illegal practice during 1988 election.
12. This brings us to the most important question involved in this election petition i.e. whether the respondent's election held in 1990 could be declared void on the basis of an illegal practice which he had committed during the election held in 1988. In this regard sections 52, 55 and 68 of the Representation of the People Act, 1976 require consideration.
13. Section 52 lays down that no election could be called in question except by an election petition made by the candidate for that election. It further lays down that such an election petition should be filed within 45 days of the publication of the name of the returned candidate in the official Gazette. Section 55 reads as follows:-- "Contents of petition.--(1) Every election petition shall contain--
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
' Section 68 deals with the powers of the Election Tribunal and reads as follows:-- "Grounds for declaring election of returned candidate void.---(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that---
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2) The election of a returned candidate shall not be declared void on the ground--
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualifed for Or was disqualified from, being elected as a member."
14. The abovequoted sections, when read together, would clearly show that an election could be challenged before an Election Tribunal, within 45 days of the publication of name of the returned candidate in the official Gazette, by enumerating in the election petition the particulars of the illegal practice etc. which were committed during the election under challenge and the Tribunal could declare the said election void if it was satisfied that the result in the said election had been procured by any such illegal practice etc. In the present case, admittedly, the alleged illegal practice of not filing the return of election expenses was not committed during the election under challenge and therefore, on account of that illegal practice the respondent's election to National Assembly held in 1990 could not be declared void.
15. It was argued by the learned counsel for the petitioner that the respondent was not qualified for and was disqualified from being elected as a member on the nomination day and therefore his election could be declared void under section 68 (b) of the Act. The qualifications and disqualifications of a candidate have been given in section 99 of the Act. There is nothing on record that the respondent did not possess, on the day of nomination, the qualifications enumerated in subsection (1) of section 99 and it is, therefore, not difficult to hold that he was qualified to be elected or chosen as a member of an Assembly. Learned counsel for the petitioner, however, relied on clause (1) of subsection (1A) of section 99 to urge that the respondent stood disqualified on the day of nomination. The said clause reads as follows:--
(IA) A person shall be disqualified from being elected as, and from being, a member of an Assembly, if--
(a) to (k)
(1) he is found guilty of a corrupt or illegal practice under any law for the time being in force, unless a period of five years has elapsed from the date on which that order takes effect.
' Learned counsel for the respondent has very rightly submitted that on the day of nomination the respondent did not suffer from any such disqualification because till then he had not been found guilty of any corrupt or illegal practice by any Tribunal under section 68 or Court under section 97 ibid. The fact of the matter is that when the Election Commission was informed by the Returning Officer about the illegal practice in question committed by the respondent the Returning Officer was directed by the Election Commission under section 96 to launch proceedings in the appropriate Court against the respondent which he (the Returning Officer) did. Admittedly the case against the respondent in this regard is pending adjudication in the Court of a Magistrate.
Section 97 lays down that if the said Court convicts the respondent it shall send a report to the Election Commission of such conviction together with its recommendations, if any, for the mitigation or remission of this disqualification incurred by such person under the Act. Under section 102 the Chief Election Commissioner has the power to remit any disqualification for failure to submit the return of election expenses if he is satisfied that such failure was due to circumstances beyond the control of the candidate. Resultantly, I hold that the respondent was not suffering from any disqualification on the day of nomination and therefore his election to the National Assembly could not be declared to be void under clause (b) of section 68 of the Act.
16. Learned counsel for the petitioner further referred to section 100 of the Act and contended that the respondent could be held guilty of illegal practice under this section. Section 100 lays down:---- Disqualification on account of certain offences.--(1)Where a person has been convicted for having exceeded the limit of election expenses laid down by section 49 or having failed to file the return of election expenses in accordance with section 50 or for any other offence under this Act, or has been found guilty of any corrupt or illegal practice by a Tribunal, he shall, if the Commissioner makes an order to that effect, be disqualified, for such period not exceeding five years as may be specified in the order from being or being elected as, a member of An Assembly.
The contention appears to be misconceived. It is manifestly clear from the above provision that even if a person is convicted of exceeding the limit of election expenses prescribed under section 49 or having failed to submit the return of election expenses under section 50 or is found guilty of any illegal practice (other than the aforementioned two offences) by a Tribunal it is the Chief Election Commissioner who makes an order for his disqualification and specifies the period for which he is to remain disqualified. This Tribunal cannot exercise under this section the powers vested in Chief Election Commissioner.
17. In view of the above discussion I hold that the election of the respondent to the National Assembly held in 1990 could not be declared to be void on the basis of an illegal practice which he had committed during the election held in 1988.
18. In view of the above finding the question of applicability of the theory of "thrown away votes" does not arise. Even otherwise from the material on record the said theory was not applicable in the present case. It is the case of the petitioner that during his election campaign in 1990 election he had brought to light, in his public meetings, the disqualification of the respondent i.e. his failure to submit the return and as the said disqualification had attained notoriety the votes cast in favour of the respondent would be considered to have been wasted or thrown away by the voters and the petitioner who secured the next highest number of votes would be declared elected in his place. In support of this contention the petitioner has not produced sufficient evidence. Of course his solitary statement which stands contradicted by the respondent is not enough. At least he should have produced the press clippings of his speeches which he delivered during the campaign or should have produced witnesses to establish that the disqualification did attain notoriety, but this has not been done. I, therefore, hold that the petitioner has failed to establish that the alleged disqualification of the respondent had attained sufficient notoriety to call for the application of theory of "thrown away votes."
19. In view of the above discussion issues Nos.1, 2 and 10 are decided against the petitioner.
20. Learned counsel for the respondent contended that the petitioner in his election petition had not supplied sufficient details/particulars of the allegations on the basis of which he sought the election of the respondent to be declared void and as the allegations were vague the petition was liable to be dismissed under section 55 of the Act. In view of this contention learned counsel for the petitioner, during the course of arguments, stated that he wanted the disposal of the election petition on the basis of the aforementioned preliminary issues only and did not press the other issues. Consequently issue No,3 was not pressed any further by the learned counsel for the respondent.
21. The result of the above discussion is that the election petition fails and is accordingly dismissed with costs.
Election .