1. ' This is a petition under section 103AA of the Representation of the People Act, 1976 filed by Syed Muhammad Khalilur Rehman Chishti, a losing candidate against Mr.Shamshad Khan, the successful candidate and others. The parties had contested the bye-election from Constituency No,PP-83 Gujranwala-7 on 12-12-1992. The respondent No,1 having secured, as stated in the petition, 38,503 votes, was declared elected. The petitioner had obtained 19,194 votes.
2. ' I heard the learned counsel for the parties at length ) Learned Counsel for the petitioner contented that grave illegalities were committed during the poll, therefore, the election of respondent No,1 was liable to be declared void.
3. ' In support of his contention learned counsel first submitted that at about 16 polling stations the number of votes cast was either about 100% or more than the registered votes. He gave the example of Polling Station No,38- Boys Primary School Akbar Chanoke where the registered votes were 776 but the valid votes cast were 768 besides 9 rejected, thus, the total votes cast exceeded by one of the registered votes at that polling station. It was however, pointed out to the learned cbunsel that he was taking into consideration only the registered male votes and was not taking into consideration the female registered votes or in other words the total registered votes at the 16 polling stations complained of. On the next date of hearing he modified his earlier submission and said that the votes polled at these polling stations were about 80% or more and at one polling station it was about 97% of the registered votes. The chart reproduced below, which was prepared by the Election Commission Secretariat, shows the number of registered male, female and total votes and the number of valid votes polled, rejected votes and their total:- S.No. ofName of Polling StationNo. of the Polling StationNo. of registered voters assigned to polling stationNo. of Votes case at polling station Male Female TotalValidRejectedTotal 1 2 3 4 5 6 7 8 9
1. 38Boys Primary School Akbar Chanoke.776 718 14947689 777
2. 39Boys High School Mari Thakaran799 712 151112867 1293 3.Boys Primary School Darga Pur.843 742 15851285 1285 Boys Primary School Habib Pura (Gharbi)1000 848 184811882 1190 Girls Primary School Habib Pura.800 702 150210943 1097 Boys Primary School Qila Janda.767 657 14249456 951 Boys Primary School Bharoke934 798 17327668 774 Boys High School Malkey.978 861 1839170474 1778 Boys High School Ashraf Abad.934 830 176475918 777 Girls Primary School Herpoke1094 906 20009327 939 Girls Middle School Ghumanwala814 720 15349616 967 Boys PrimarySchool Ghumanwala837 710 154782814 842 Boys Primary School Kot Purian944 832 1776111010 1120 Boys Primary School Pipli Goraya .869 776 164513148 1322 Boys High School Budha Goraya1007 864 1871116823 1191 Boys Primary School Budha Goraya854 775 16291306 1306 Total: 14250 12451 2670117414195 17609 ' An analysis of the number of total votes cast at polling stations including the rejected votes shows that it varied from 44% to 80% with the exception of 2 polling stations out of which at one polling station about 86% votes were cast and at another polling station about 97% votes were cast, therefore, only on the basis of higher percentage of votes polled at the 2 out of 79 polling stations it cannot be said that any illegality much less grave illegality was committed at the poll. There is no presumption that if the number of votes polled at a polling station is higher (provided they do not exceed the number of registered votes) then some illegality must have been committed. If any illegal or corrupt practice was committed it can be enquired into by an Election Tribunal on a petition under section 52 of the Representation of the people Act, 1976. This question cannot be decided in a summary enquiry as it requires particulars of illegalities committed and evidence in support thereof. There is no doubt that at one polling station about 97% votes were polled which is quite high percentage but it cannot, in my view, by itself lead to the conclusion that it was impossible and therefore some illegality or corrupt practice was committed. Further, the result at one polling station would not determine the result of entire constituency where difference between votes secured by the two candidates is over 19000 and it would not by itself make out of a case of grave illegality. It is also not an impossibility that almost all the voters could turn up to cast their votes at one out of 79 polling stations.
4. ' The next submission of the learned counsel for the petitioner was that at a polling station votes were stamped by the Presiding Officer and other corrupt or illegal practices were committed. In support of the contention the learned counsel relied on press reports in two newspapers published from Lahore on 13-12-1992 or 14-12-1992. In one of the newspapers relied upon there is a picture of a lady bearing a badge depicting that she was stamping some paper and below the photograph following is printed:--- {{URDU TEXT}} ' On the publication of this photograph the Chief Election Commissioner took its suo motu notice and enguired into the matter through the Provincial Election Commissioner, Punjab who clarified that no election duty of any kind was entrusted to the lady by the name of Zahida Ghaffar. A clarification to this effect was published in the same newspaper next day i.e. on 14-12-1992 by the Provincial Election Commissioner, Punjab on behalf of the Election Commission.
5. ' This photograph again appeared in the same newspaper in its Islamabad issue on 23-12-1992 but with a different writining under the photograph which reads as follows:- {{URDU TEXT}} ' On the publication of second photograph in the newspaper on 23-12-1992, the Election Commission called for the comments of the District Returning Officer and Returning Officer concerned. In his comments the Returning Officer submitted that he visited the polling station at Food Grain Godown twice but no such complaint was made to him by any of the parties and that the news was unfounded. It is surprising that the same newspaper published two different stories with the same photograph in its Lahore and Islamabad issues on two different dates without explaining why two different versions were published under the same photograph. Therefore, on the basis of such press reports it would be unreasonable to accept the submission that illegal or corrupt practice was committed at that particular polling station. Learned Counsel also relied on a report published in the daily 'Nation', dated 13-12-1992 which inter alia, stated that Presiding Officers at 2 out of 79 polling stations in the constituency stopped polling following clashes between the supporters of the two leading candidates. According to the report the polling station at a Wheat Godown (Ward No,1) was the worst hit where, despite the presence of a heavy police contingent, eight persons armed with Klashnikovs and automatic pistols succeeded in entering the polling station and continued spraying bullets in the air for about 25 minutes. The report further says that the gunmen also hit a supporter of Khalilur Rehman with pistol butts, injuring his forehead and the polling was interrupted for about an hour as the staff fled from the scene and that eye-witnesses said the attackers ran away from the spot, and the police remained silent spectator.
6. ' The story as reported cannot be accepted without legal proof and it requires evidence and detailed enquiry which cannot be made in a summary proceedings under section 103AA of the Representation of the People Act. .
7. ' Learned Counsel for the petitioner however, relied on the case of Islamic Republic of Pakistan v.
8. Abdul Wali Khan PLD 1976 SC 57 in support of the submission that reports of contemporaneous events in newspapers is admissible in evidence. In this regard what the Supreme Court observed as taken from the headnote at page 69 of the report, is as follows:- "It cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible, particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye- witness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are business records or "ancient documents" but because they may well be treated as trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony. Thus, if a person does not avail of the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in newspapers he cannot complain if that publication is used against him. Such an user would not be hit by the rule of hearsay."
9. It will be seen that not to be hit by the rule of hcaysay several conditions must be fulfilled, for example:-
(i) That what is reported should be such of a public interest as would be generally known throughout the community;
(ii) the testimony of an eye-witness is not readily available;
(iii) it is not contradicted forthwith;
(iv) widely published in newspapers;
(v) events or happenings took place a long time ago; and
(vi) in a foreign country.
10. ' These conditions, I am of the opinion are not fulfilled in this case.
11. ' In any case, from the controversial papers produced by the learned counsel for the petitioner it cannot be said that the commission of grave illegalities is established from the facts apparent on the face of the record.
12. ' The learned counsel also relied on the photo copy of a statement by a Presiding Officer by the name of Muhammad Ishaq which when translated into English reads as follows:--- "Polling Station No,56 Time: 11-45 Noon ' Polling Agent and I reached at Polling Station Malka Kalan where outside the polling booth stamping was being done in favour of I. J. I. candidate in presence of Presiding Officer. All polling staff was helpless. This was being done by the Polling Agent of I.J.I. candidate through corruption and vandalism and therefore the Presiding Officer stopped the polling."
13. Polling Agent Sd/- Sd/- M. Ishaq Muhammad Siddique Presiding Officer s/o Khair Din Book No,817 Book No,820 ' Votes cast upto 081601 to 081647 --- 081950"
14. ' It was pointed out by the learned counsel for the petitioner that on the reverse of the statement the details of ballot papers issued by the Presiding Officer of Polling Station No,56 Malka have been given, which according to the learned counsel were 192 in all. While the statement of count shows at that polling station the number of votes polled were 1,778.
15. ' In rebuttal of this document learned counsel for respondent No,1 has placed on record an affidavit written in Urdu by Mr. Ishaq, Presiding Officer, which, when translated into English, reads as follows: -- AFFIDAVIT ' I, Muhammad Ishaq, Lecturer, Government Islamia College, Gujranwala states on oath that I was Presiding Officer at Constituency No,PP-83 Gujranwala-VII Polling Station No,56 Malka, District Gujranwala. At about 3-00 p.m. some persons in a group came to me and forced me to suspend the polling and they also got signed a paper from me. The administration got the polling re-started after it remained suspended for some time. It continued upto 4-00 p.m. The statement is true according to my knowledge and belief and nothing stated is false. Sd/- Muhammad Ishaq."
16. ' It will be seen that in view of the explanation of Mr. Muhammad Ishaq contained in his affidavit, the statement relied upon by the learned counsel for the petitioner becomes unreliable. The affidavit seems to be correct as the statement is a typed one and he has stated in his affidavit that some persons in a group came to him and forced him to suspend the polling and they also got signed a paper from him. There is no evidence that any Presiding. Officer was provided with any typewriter. If the Presiding officer had written it, it would have been written by him in his own hand. Further, the statement says that "polling agent and I reached at Polling Station Malka Kalan where outside the polling booth stamping was being done----". This statement does not seem to be correct for the question of the Presiding officer reaching at the stated time does not arise because the Presiding Officer is supposed to remain at the Polling Station right from the beginning till end of polling.
17. Moreover, the statement says that "therefore, Presiding Officer has stopped the polling." If the Presiding Officer had written the statement he would have used the words. "therefore, I stopped the polling". Therefore, Mr. Muhammad Ishaq's statement that a group came to him and forced him to suspend the polling and they also got signed a paper from him seems to be correct. In any case this story has to be proved by evidence of witnesses which can be recorded in proceedings on an election petition under section 52 of the Representation of People Act by an Election Tribunal.
18. ' Learned counsel for the petitioner has also annexed to the petition 8 affidavits of following persons:--
(1) Mr. Muhammad Riaz Chishti s/o Ghulam Sadiq.
(2) Ch. Muhammad Abdullah Virk s/o Ch. Muhammad Qasim.
(3) Mr. Muhammad Iqbal Khokar s/o Ghulam Muhammad Khokar.
(4) Ch. Faqir Muhammad s/o Ghasitey Khan.
(5) Mr. Muhammad Ashraf s/o Muhammad Hussain.
(6) Mr. Muhammad Ali Anwari.
(7) Mr. Bashir Ahmed s/o Ghulam Muhammad.
(8) Ch. Faqirullah.
19. ' These affidavits cannot be taken into consideration without affording the respondents an opportunity to cross-examine them. This could be done in the proceedings on an election petition under section 52 of the Representation of the People Act before the election tribunal and not under section 103AA of the Representation of the People Act. Under this provision the Chief Election Commissioner is required to summarily decide whether grave illegalities or violation of the provisions of the Act or the rules was committed and these are apparent on the face of the record.
20. Therefore, these affidavits cannot be taken into consideration in these proceeding. I, therefore, do not find any merit in this petition.
21. ' These are the reasons for the short order passed on 11th February,1993. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.