' This petition under section 52 of the Representation of the People Act, 1976 (henceforth to be referred to as the Act) has been filed to declare the latest election to the Constituency of National Assembly (NA-32 TA-VI Bajaur Agency) wherein respondent No,1 was delcared as returned candidate as void, illegal and inoperative and instead to hold the petitioner as successful candidate. This relief has been claimed in the background that the petitioner and respondents Nos,1 to 11 contested election to the said constituency and as a result of the official count respondent No,1 was declared elected. The legality of the election has been impugned on the following grounds:-
(a) That respondent No,1 was not qualified to be elected under Articles 62 and 63 of the Constitution and section 99 of the Act.
(b) That respondent No,1 was convicted in a case of smuggling of narcotics and as a result of his involvement in this business his house was set on fire by the Political Authorities of the Agency.
(c) That votes which had neither official seal nor the signature of the Presiding Officer were illegally counted towards the number of votes secured by respondent No,1.
(d) That respondent No,1 purchased votes and bribed the voteRs,
(e) That most of the voters had no Identity Card and were, therefore, deprived of the right of franchise.
(f) That "respondent No,1 has spent huge amount in buying the votes and bribing the voters and as such contravened the provision of section 49 of the Act".
(g) That by corrupt practices like poll of votes without seal and signature respondent No,1 was able to manage his success.
(h) That the officers responsible for conducting the election violated the prescribed law and rules.
2. Respondent No,1 in his written statement raised certain legal objections regarding non- maintainability of the petition on account of noncompliance of the mandatory provisions of the Act, rules and notification and also misjoinder of parties and general nature of the allegations etc. On factual side the allegations in the petition were refuted and were dubbed as wrong and baseless.
3. In view of the pleadings of the parties the following issues were framed in the case:--
(1) Whether the election petition is not in accordance with the provisions of the Representation of the People Act, 1976, if so, its effect? OPD-1.
(2) Whether the respondent committed illegal and corrupt practices, if so, what is its effect on the election of respondent No,1 and on the election as a whole? OPP.
(3) Whether the election of respondent No,1 has been procured or induced by any corrupt or illegal practices? OPP
(4) Whether on account of allegations made by the petitioner in his petition the election of the respondent No,1 is liable to be declared as void or the election as a whole is liable to be declared as void? OPP
(5) Whether the petitioner is estopped by his own conduct to challenge the election of respondent No,1? OPD-1
(6) Whether the respondent No,1 was qualified to be elected as M.NA. On the date of nomination?
OPP.
(7) Relief.
4. Before the evidence could be recorded the learned counsel for respondent No,1 insisted that issue No,1 should be treated as a preliminary issue and be decided first as according to him it contains legal objections and would not require any evidence. The learned Advocate for the petitioner also agreed with him and, therefore, after hearing the arguments of both the sides this issue was decided by order dated 25-7-1992. It was held in that order that the provisions of sections 54 and 55 of the Act have not been violated and, therefore, the petition is not incompetent on that count. However, it was declared that Notification No,F.1(7)/85-Cord: dated 16-3-1985 has been violated as the petitioner was bound to have annexed with the petition all the documents and affidavits of the witnesses which he desired to produce and as he had not done so, therefore, he was to suffer the penal consequenses provided in the Notification. It was, therefore, held that "the petitioner would, therefore, not be permitted to produce at the trial those witnesses whose affidavits have not been attached with the petition nor he would be allowed to summon any official witness or to produce any document through an official witness in violation of clause 5 of the Notification". In view of the above order the petitioner could not examine any witness as he had not annexed the affidavits of any witness nor he could summon any official witness because of his failure to file list of such witnesses alongwith the petition nor he had shown any justification for production of any document by the official witnesses. Accordingly the petitioner examined himself in support of his petition. In his statement he stated that he had secured high votes in six Polling Stations but in view of losing in Polling Station 'LW Sum' he lost the election as the returned candidate "managed to poll bogus and fake votes in the said polling station". It was revealed that two days before the poll he and the other contestants had informed the Political Agent of the intentions of respondent No,1 to rig the election and to purchase votes and during enquiry the Assistant Political Agent found the Agents of respondent No,1 purchasing votes but in spite of the arrest of the Agents they were allowed to go because of the friendship of the Assistant Political Agent with the respondent No,1. It was further stated that casting of votes on production of Identity Cards was made compulsory two days before the poll which deprived most of the voters of their right to vote as many of them were not in possession of identity cards on acount of the peculiar circumstances prevailing in the Tribal territories. Respondent No,1 was described as dealing in narcotics and it was stated that his house in Bajaur Agency had been burnt because of his involvement in heroin. It was also stated that one Sher Muhammad was engaged by respondent No,1 for smuggling heroin who was arrested by the police at Nowshera alongwith the heroin and during the investigation he revealed that respondent No,1 was the owner of the heroin. On this respondent No,1 was made accused in the case and has been declared as P.O. For his failure to obey the process. Respondent No,1 gave statement that he would neither appear as his own witness nor would examine any witness but would "merely rely upon the written statement alongwith all the annexures and affidavits of witnesses submitted with the petition". The reasons for it were shown to be the failure of the petitioner to prove the allegations made in the petition against him.
5. I heard both the learned counsel in support of their respective contentions and decide the issues as under in the light of the submissions of the Advocates and the materials on record:-- ' ISSUES NOS, 2 to 4: ' All these three issues involve identical allegations of illegal and corrupt practices and are, therefore, disposed of together. The onus of proving the issues was on the petitioner and besides the bare allegations in the petition and his statement before the Tribunal he could legally bring nothing in support of his stand. The substance of the averments in the petition and that of the statement before the Tribunal has been reproduced above. The analysis of both of them would indicate that the disqualification of respondent No,1 is sought on these main grounds:
(i) Respondent No,1 deals in narcotics and on that score his house was burnt by the political authorities of the Agency, a carrier engaged by him for smuggling heroin was arrested by the Police of Nowshera and that he is "a previous convict in a narcotics case".
(ii) Certain votes counted in favour of respondent No,1 do not bear official seals and initials of the Presiding Officer.
(iii) The respondent No,1 has purchased votes and has bribed the voteRs,
(iv) The production of identity cards as prerequisite to poll votes.
(v) Violation by officials conducting the election of the election laws.
6. There is no other evidence to support these allegations except the bare statement of the petitioner himself. Under the requirements of Notification No,F.1(7)/85-Cord: governing the procedure before the election the petitioner was bound to have annexed with the petition the relevant documents or should have filed the list of the official witnesses and to have given the reasons justifying the production of these witnesses and the documents they were required to produce. However, he failed to comply with the provisions of the said Notification. Consequently, while deciding the preliminary issue against him he was not allowed at the belated stage to produce either the documents or the affidavits. It is by now settled law on account of the rule laid down in (1) Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91, (2) Syed Saeed Hasan v. Pyar 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 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". So applying this standard of proof it will not be possible in absence of any judgment showing previous conviction of the respondent to declare him a previous convict.
F.I.R. Or other documents indicating his involvement or abscondence in a pending criminal case have not been produced, therefore, how is it possible to hold respondent No,1 guilty of the offence alleged against him. Similarly, in absence of evidence of a responsible officer from the Agency concerned or any document in this respect it would be difficult to condemn the respondent No,1 of his involvement in heroin and of the burning of his house on this count. The allegations contained in item No,II above that certain ballot papers counted in favour of respondent No,1 did not either have the official seal or signature are superfluous and conjectural as no iota of evidence has been brought on record to prove this fact. This assertion in item No, III above that the returned candidate purchased votes and bribed voters also remains without substance as it neither finds support from any other quarter nor it has been shown who purchased votes for respondent No,1 and the particulars of the voters whose votes were purchased. The plea of the petitioner that he suffered because of the precondition of production of Identity Cards for the voters to make himself eligible to vote is also incomprehensible on account of the statement of the petitioner that he secured more votes than the successful respondent in six polling stations out of the seven polling stations in the constituency. In any case it was the requirement of the election law and the respondent or for that matter the election officers cannot be blamed. The last item as contained in Serial No, V above about the violation by the polling staff of the rules governing the election is obscure and cryptic as neither any particulars of these breaches have been given nor it has been shown as at whose instance and by whom these were committed. For these reasons all these issues are answered against the petitioner.
' ISSUE NO,5: ' This issue is regarding the estoppel of the petitioner by his conduct to lodge this petition for impugning the success of the respondent in the election. But the petitioner has not been able to bring any such circumstance on record which may constitute any conduct of the respondent amounting to estoppel. So much so that even the petitioner in his statement did not point out any such conduct. This issue is decided against the petitioner.
' ISSUE NO,6: ' Except the bare allegations of the petitioner in his statement that respondent No,1 deals in narcotics there is no other evidence to show anything on the basis of which it can be held that respondent No,1 was not qualified to be elected as a Member of the National Assembly. The issue is decided in favour of the respondent.
' As the petitioner could not substantiate any of the grounds contained in the issues framed in the case, therefore, this election petition is dismissed but with no orders as to costs.
' The order and record of this election petition should be forwarded to the Officer of the Election Commission in terms of section 72 of the Act.
Election .