1. BASHARAT AHMAD SHAIKH, J.---In the general elections to the Legislative Assembly of Azad Jammu and Kashmir held on 29th June 1991, appellant Raja Abdul Qayyum and first respondent Ch. Latif Akbar, alongwith two other candidates, contested the seat reserved for Constituency known as LA-26 Muzaffarabad-4. According to the official results Raja Abdul Qayyum polled 21,896 votes while Ch. Latif Akbar polled 14,471 votes. Thus Raja Abdul Qayyum secured 7,425 votes more than his nearest rival mentioned above and was declared elected as member of the Legislative Assembly. First respondent Ch. Latif Akbar lodged an election petition before the Chief Election Commissioner and challenged the election of Raja Abdul Qayyum on various grounds. The Chief Election Commissioner entrusted the petition to a Tribunal consisting of a former Judge of the High Court.
2. The hearing of the petition out of which the' present appeal arises commenced on 26th of November 1991. After obtaining the written statement the Tribunal framed issues and recorded evidence of the parties. However, the evidence of the appellant was closed when some more witnesses had yet to be examined. This action of the Tribunal was vehemently attacked by the appellant and we would be adverting to it at the proper stage. At the conclusion of the trial the Tribunal recorded the finding that the election of the returned candidate had been materially affected because, due to various reasons recorded by the Tribunal, 8,345 votes were not legally valid. As already mentioned the appellant's lead was of 7,425 votes.
3. In pursuance of a right guaranteed by section 63 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970, which will be referred to in this judgment as the Ordinance, the appellant filed an appeal before the High Court. It was heard by a Division Bench and was rejected on 7th of May 1994. Raja Abdul Qayyum was granted leave by this Court to examine various grounds raised by him.
4. Initially a large number of grounds were urged and allegations were levelled in respect of many other polling stations but subsequently the dispute was confined to twenty polling stations.
5. According to the findings of the Tribunal, allegations in respect of eight polling stations were not proved. Since there was no appeal from the side of the first respondent the dispute in respect of the other polling stations in which findings have been given against the. first respondent are no more live. Thus twelve polling stations, namely, 9, 16, 40, 42, 20, 22, 43, 44, 64, 72, 1 and 76 are under dispute.
6. At polling stations 9, 16, 40 and 42, where the total number of votes was 3,184, no polling took place at all. At polling stations 20, 22, 43, 44, 64 and 72 the allegations of corrupt and illegal practice have been found as proved and total votes at these polling stations numbering 3,583 have been excluded from the appellants count. At the remaining two stations, 1 and 76, votes in excess of the total votes were polled. The Tribunal has excluded 1,578 votes relating to these polling stations from the tally of the appellant.
7. As alluded to earlier, it was vehemently contended by the learned counsel for the appellant, Raja Muhammad Hanif Khan, that the Election Tribunal committed an illegality by closing the evidence of the appellant on 21st of October 1993 without legal justification. It was also contended by the learned counsel that adjournments for adducing evidence were generously granted to the first respondent but the appellant was treated discriminately. The learned counsel took us through the various orders. At that stage we asked the learned counsel for the first respondent; Ch. Ibrahim Zia, to give reply on this point. Without going into the question whether the order of closing evidence passed by the Election Tribunal on 21st of October was a proper exercise of jurisdiction or not, we felt that in order to do justice between the parties we should record the evidence of the persons whom the appellant wanted to produce as witnesses. There was no dispute as to who those persons were or about their number. We, therefore, announced the order to the parties that we have decided to record the statement of those witnesses at an early date. However, the appellant's counsel sought half an hour's adjournment in order to contact his client and then made a statement at the Bar that the appellant was only willing to produce his witnesses if the case was remanded to the Election Tribunal. This was an unacceptable condition. The learned counsel was vehemently contending that the appellant had not been given a fair trial by the Election Tribunal but wanted that the evidence should be recorded by the same Tribunal. The acceptance of this suggestion would have resulted in automatic revival of the appellant's membership which also meant that unspecified time, up to a year or so, was to be spent in recording evidence and re- hearing of arguments and then subsequent appeal to the High Court. Since we have to keep the scales of justice evenly balanced between the parties we were of the view that interest of justice could be advanced only if we had recorded the evidence ourselves. Now when the appellant has not availed of the opportunity, the matter rests there.
8. A contention in the nature of preliminary objection was raised before the Election Tribunal that the election petition was not drawn up in accordance with section 51 of the Ordinance, which provision lays down the requirements which should be fulfilled while drafting an election petition. Raja Muhammad Hanif Khan contended before us that this point had been rejected by the Election Tribunal as well as the High Court without properly appreciating what the objection was. He explained that it was understood as if the objection about the maintainability of the petition was that those persons who were alleged in the petition to have indulged in corrupt practices were not arrayed as respondents in the petition but in fact the objection which had been raised was that those persons should have been named in the election petition. He submitted preliminaryobjection was raised in the written statement that the petitioner had not complied with theprovisions of the Ordinance while drafting and lodging the election petition. It was contended by the learned counsel that he had elaborated this objection by submitting that the names of the persons alleged to have committed corrupt and illegal practice should have been mentioned. In this respect he relied on clause (b) of section 51 of the Ordinance which is to the following effect:-- "51.--(1) Every election petition shall contain--
(a) xxx .xxxxxx ,
(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) xxx .xxxxxx , It was contended that the word "parties" occurring in the above-quoted provision refers to persons against whom allegations have been levelled. Ch. Ibrahim Zia, the learned counsel for the first respondent, on the other hand contended that this objection was being raised for the first time during arguments in this Court and had not been raised at any earlier stage. This, according to the learned counsel, was the reason why-it was not discussed in the judgments of the High Court and the Election Tribunal. Ch. Ibrahim Zia alternatively contended that this objection had no merit because in section 51 of the Ordinance reference to "parties" is to parties to the Election Tribunal as visualised by section 50: This section lays down the persons who must be impleaded as parties in an election petition.
9. As submitted by Raja Muhammad Hanif Khan the ground in which the objection was raised is preliminary objection No. (b) of the written statement which was in the following words:-- "(b)That the petitioner had not complied with the provisions of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 as amended uptodate and the Azad Jammu and Kashmir Legislative Assembly Election Rules, 1970 as amended, while drawing and lodging the election petition, therefore, the same is liable to be dismissed without going into the merits."
10. This ground does not itself specify the objection which was raised before us because it is couched in general terms. The Election Tribunal framed issue No. 2 in light of this objection which was to the following effect:-- "2.Whether the petition has been drafted keeping in view the relevant provisions of Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 as amended uptodate, and the Azad Jammu and Kashmir Legislative Assembly (Elections) Rules, 1970, as amended, if not with what effect?"
11. In the judgment of the Election Tribunal it has been observed that this issue was not pressed. This observation of the Tribunal was not challenged before the High Court. This objection has not been dealt with in the judgment of the High Court. In such situation it is presumed that this point was not raised. However, before this Court the learned counsel has taken the plea, which is supported by an affidavit, that all points raised in the grounds of appeal filed in the High Court were duly argued. We have perused the grounds of appeal filed in the High Court but we find that this ground was not agitated. Again we find that it has not been included in the petition for leave to appeal.
12. It has been raised for the first time during arguments in this Court without seeking permission. It obviously cannot be allowed in accordance with settled practice of this Court.
13. Be that as it may, the interpretation being placed on clause (b) of section 51 reproduced above is not tenable. The word "parties" occurring in it plainly refers .to parties to the election petition. The legislature has not used the word "persons" and by no analogy the word "parties" can be construed to mean a person other than a party to the petition. In our view the learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, has rightly relied on section 50 which precedes section 51.
14. Section 50 runs as follows:-- "50.The petitioner shall join as respondents to his election petition -- (a)all contesting candidates; and '
15. (b)any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made and shall serve personally or by-registered post on each such respondent a copy of his petition."
16. It lays down the persons who have to be arrayed as a party and then in section 51 reference in clause (b) is to the same persons about whom it has been enjoined by section 50 that they shall be added as parties. The contents of subsection (a) of section 50 show that it is enough that all "contesting candidates" should be arrayed as respondents in the election petition. But it is provided in clause (b) that any "other candidate" against whom an allegation is made has also to be arrayed as a party. The question as to who is the "other candidate" referred to in clause (b) can be answered by referring to the definition of "candidate' contained in clause (ii) of section 2 of the Ordinance which lays down that a candidate means "a person proposed as a candidate for election as a member". It is clear that the word "candidate" is comprehensive and includes not only contesting candidates who are referred to in clause (a) of section 50 but also a person who was proposed as a candidate but subsequently withdrew from the contest in pursuance of section 15 of the Ordinance or whose nomination papers were rejected under section 13 after scrutiny. Under that section scrutiny of nomination papers is conducted by the Returning Officer and all those persons who have been proposed for membership of the Assembly are referred to in subsection (1) of that section as "candidates;. It is provided therein that "the candidates, their election agents, proposers and seconders may attend the scrutiny of the nomination papers---------.". Sub section (3) gives the necessary power of rejecting a nomination paper and the person whose papers may be rejected is referred to as "a candidate". Section 50 provides that all ---contesting candidates" must be made party to the petition but if there is allegation of corrupt and illegal practice against "any other candidate" he shall also be a necessary party. It is in this context that the word "parties" has been used in clause (b), of section 51. The names of persons who are alleged to have committed corrupt and illegal practice need not be mentioned. The learned counsel for the appellant referred to quite a few cases on this point to which we may now advert.
17. Parmatma Singh v. Sri Ram Lakhan Singh Yadav AIR 1975 Pat. 267. This judgment does not advance the case of the appellant as would be clear from the last paragraph of the judgment:-- "14. Thus on a careful consideration of the facts of this case and the decisions cited on behalf of both the parties, it crust be held that the election petitioner must be allowed to examine any witness to give specific evidence that he was prevented by force from casting vote, if the name of that voter is not mentioned in election petition or in the schedule of the election petition as one of the voters said to have been prevented by force from casting vote."
18. (Underlining is ours)
19. Chandrashekhar Singh v. Sarjoo Prasad Singh AIR 1961 Pat.
189. In this judgment Patna High Court held that an election petition which does not set out the names of voters who have been subjected to corrupt practice is bad on that ground. This was observed while interpreting clause (b) of section 83 (1) of the (Indian) Representation of People Act, 1951"(which is pari materia, with subsection (1) of section 51 of the Ordinance. This view of the Patna High Court has not appealed to us because, as discussed above, the requirement of clause (b) is that names of the parties may be given not all the voters. However, if the particulars of any corrupt practice fall short of the requirement of that clause it will be an infirmity which can be taken note of while discussing a particular allegation and is not sustainable as a preliminary Abrar Muhiuddin Ahmed v. Zuhair Akram Nadeem 1986 MLD 2245. ) 'Election Tribunal judgment. The learned counsel has relied on portions "d the judgment captioned as `C', `D' and `E' on pages 2249 to ?.251. In these 'portions the factual aspect of the case has been dealt with, but the question whether the election petition is liable to be dismissed on the short point which has been urged before us has not been dealt with.
20. Sher Bahadur Khan v. Abdul Samad Khan (PLD 1975 Pesh. 134). In portion of the judgment relied upon by the learned counsel, namely, caption `E'. it was held that the petitioner had failed to give full particulars of corrupt practice as alleged by him in the petition and also failed to prove them.
21. The judgment does not deal with any preliminary objection but this finding was given at the conclusion of the trial. It, therefore, does not support the appellant's case.
22. Before proceeding further, it seems necessary that at this stage we should notice the relevant provisions of law which are applicable to the east and would have to be interpreted. Section 58 of the Ordinance lays downthe procedure for the trial of the election petitions. It lays down as follows:- - .58.--(l) Subject to the provisions of this Ordinance and the rules, _every election petition shall be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908: Provided that the Tribunal may-- (a)make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reasons for taking down the evidence of any witness in full; and (b)refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings.
23. (2)Subject to the provisions of this Ordinance, the Evidence Act, 1872, that apply for the trial of an election petition.
24. (3)The Tribunal may, at any time, upon such terms and on payment of such fee it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised.
25. (4)At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by way of security, in addition the sum deposited under section 49 as it may think fit."
26. It is laid down in section 60 that the Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure. Section 63 provides that at the conclusion of the trial of an election petition the Tribunal may make an order-- (a)dismissing the petition; (b)declaring the election of the returned candidate to be void; (c)declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) xx xxx xxx
(3) xx xxx xxx."
27. There are two sections which deal with grounds for declaring election to be void. In section 64 are given the grounds on which the election of a returned candidate can be declared void while the grounds for declaring an election as a whole void are incorporated in section 66. Section 65 authorises the Election Tribunal, in given circumstances, to declare the election of a p returned candidate to be void and also to declare that any other contesting candidate has been duly elected. However, this power is restricted only to a situation in which election of a returned candidate is declared to be void under section 64 and does not extend to a situation where the election as a whole is declared as void under section 66.
28. These three sections are: "64; -(1) The Tribunal shall declare the election' of the returned candidate to be void if it is satisfied that-- (a)deleted.
29. (b)deleted.
30. (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.
31. (2)The election of a returned candidate shall apt 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 precaution to prevent its commission; or (b)that any of the other contesting candidates was on the nomination day, not qualified for, or was disqualified from being elected as a member.
32. 66.The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-- (a)the failure of any person to comply with the provisions of this Ordinance or the rules; or (b)the prevalence of extensive corrupt or illegal practice at the election."
33. Also relevant is section 65 which runs as follows: "65. The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if. it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."
34. Examination of sections 64, 65 and 66 shows that--
(a) the election of a returned candidate can be declared void under section 64 and, in the circumstances visualised by section 65, an election petitioner or any other contesting candidate can be declaredelected; (b)election can be declared void on account of corrupt or illegal practice under clause (c) of section 64, but it is not necessary to place any responsibility on a candidate, his agent etc. while under clause (d) the responsibility of corrupt or illegal practice must lie on the returned candidate or his election agent etc.; (c)under section 64 it is not necessary to prove that the result of the election has been materially affected by corrupt or illegal practice, while it is so in section 66; and (d)under section 66 election can be declared void on the basis of the failure of any person to comply with the provisions of the Ordinance or the rules; this can be done without there being any corrupt and illegal practice.
35. Since a large number of cases from Pakistan jurisdiction have been cited from both the sides, the law in Pakistan may also be noticed. Provision in the Ordinance relating to procedure before the Tribunal is section 58 which has been reproduced above. Representation of People Act, 1976 was enacted in Pakistan to replace the National and Provincial Assemblies (Election) Ordinance, 1970.
36. Section 62 of the Act deals with procedure before the Tribunal. When it was initially enacted section 62 contained the same provisions as is section 58 of the Ordinance that "subject to the provisions of this Act and the rules, every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of the suits under the Code of Civil Procedure". It was also provided that, as is provided in clause (a) of subsection (1) of section 58 of the Ordinance, the Tribunal may make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reasons Poor taking down the evidence of any witness in full. However, section 62 had been substantially amended and it has been laid down that election petition shall be tried in accordance with the procedure laid down by the Election Commissioner. The provisions contained in sections 64 and 66 of the Ordinance (reproduced above) are verbatim the same as in sections 68 and 70 of the Representation of People Act.
37. Similarly section 69 of the Act is the same as section 65 of the Ordinance.
38. Since a large number of judgments from Indian jurisdiction have also been cited before us it becomes necessary to notice the Indian provisions also. In India the ground for declaring the election as void are mentioned in section 100 of the Representation of People Act, which is to the following effect:-- "100. Grounds for declaring election to be void.--(1) Subject to the provisions of subsection (2) if the High Court is of opinion-- (a)that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b)that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c)that any nomination has been improperly rejected; or (d)that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) , by the improper acceptance of any nomination, or.
39. (ii),by any corrupt practice committed in the interests of 'the: returned candidate by an agent other than his election agent; or (iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
40. (2)If in the opinion of the High Court a returned candidate has been guilty by an agent, other than his election agent, of any, corrupt practice but the High Court is satisfied-- (a)that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent; '
41. (b)omitted (c)that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d)that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents then the High Court may decide that the election of the returned candidate is not void." '
42. In India, in contrast to the law in Azad Jaramu and Kashmir, all the grounds on which an election can be declared void have been incorporated in a single section. A comparative study of section 100 of the Representation of the People Act, 1951 and sections 64 and 66 of the &ad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970 brings out the following important features:-- (i)There is no concept of an "illegal practiceh in India where "corrupt practice" is the only ground on which an election can be declared void ` ' while in Azad Jammu and Kashmir it can be done on the basis of illegal practice also.
43. (ii)Both in India and in Azad Jammu and Kashmir an election can be declared void if it has been materially affected due to' violation of law by any person without proof that the returned candidate is in any way responsible for it.
44. (iii)In India it must be proved in all cases of corrupt practice that the candidate, his election agent or any other person acting with the consent of the returned candidate ' or his election agent is responsible of the corrupt practice or that corrupt practice has been --committed in the interests of the returned candidate by any agent, but in Azad Jammu and Kashmir election of a returned candidate can be declared to be void if it has been proemned or induced by any corrupt or illegal practice without any blame on the returned candidate.
45. Before dealing with the merits of the case the learned counsel for the appellant dilated on the proposition as to what standed of proof is required in election matters. He contended that standard of proof required in election matters is the same as is required in criminal cases a4d a charge cannot be said to have been proved unless it has been proved beyond reasonable doubt.
46. Referring to the fact that legislature has in sections 64 and 66 of the Ordinance enjoined upon the Tribunal to declare an election to be void if it is "satisfied" about the existence of any of the grounds mentioned therein, -he submitted that "satisfaction" means proof beyond reasonable doubt and not mere preponderance of evidence. He relied on a large number of cases from Pakistan and Indian jurisdiction on this point. Raja M"aammad Hanif Khan referred us to three passages from a book "Words and Phrases" Vol. 38 from pages 363 and 371'. `Satisfaction' is defined as the act of satisfying; the state of being satisfied; and `satisfy' is defined as free from doubt, suspension or uncertainty; to give assurance to, to set at rest the mind of, to convince. Seago v. Newyor Sent. R.CO 164 S.W. 2d 336, 341, 349, M.O. 1249 (page 363)."
47. The other passages relied upon by the appellant occur on page 371 under the heading "Evidence": "Instruction that facts must be proved to a Jury `satisfaction' means proof beyond reasonable doubt, not mere preponderance of evidence. Texax Indem, Ins. Co. v. Holloway Tex 30 S.W. 2d 921, 928."
48. "The word `satisfy' when used in the satisfying a body of men of the truth of a disputed fact, means to free the mind regarding such fact; to set it rest. The word implies much more than a preponderance of the evidence:'
49. On this point reliance was also placed on a passage from Syed Saeed Hassan v. Pyar Ali and others (PLD 1976 SC 6) which we will reproduce while adverting to this judgment at another place as it has been cited twice.
50. He also relied on the following passage from Syed Saeed Hassan v. Pyar Ali (PLD 1976 SC 6):-- " ....`Satisfaction' is the existence of a state of mental persuasion much higher than an information and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. It presumes observance of certain well settled judicial principles far from being subjectively and capriciously arrived at conclusions.
51. To be satisfied has to be entirely convinced."
52. Raja Muhammad Hanif Khan, the learned counsel for the appellant, cited quite a few decided cases to which we may advert. Muhammad Saeed v. Election Tribunal (PLD 1957 SC 91). This is a case under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions)
53. Order, 1936 in which the phraseology was different from the corresponding sections of the Ordinance. At page 123 it was held by the Supreme Court that charge of corrupt practice was a quasi-criminal charge and great volume of authorities is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of the criminal charges. One of the such principles is that in case of doubt raised upon the evidence, the benefit of such doubt must go to the accused persons.
54. In this context reliance was placed on Saeed Hassan v. Pyar Ali and others (PLD 1976 SC 6). The facts of the case were that the Election Tribunal accepted a review petition filed by respondent Payar Ali and declared him elected member of the National Assembly in place of Saeed Hassan who had been declared elected by the Chief Election Commissioner. Two allegations, falling within the mischief of corrupt practice, were found proved. The allegations related to corrupt practice based on an appeal to religious sentiment and procurement of the assistance of a person in the service of Pakistan for furtherance or hindrance of an election. The Supreme Court did not interfere in the concurrent finding on these two allegations but accepted the appeal to the extent that a re- election was ordered. The two portions relied upon by Raja Muhammad Hanif Khan are reproduced below:-- "Having carefully perused the judgment of the Tribunal and the appellate judgment of the High Court, we hardly find any justification in law to interfere with this concurrent finding on the two allegations falling within the mischief of section 75 (4) and section 76 (2), the former relating to the corrupt practice based on an appeal to religious sentiments and the latter an illegal practice pertaining to the procurement of the assistance of a person in the service of Pakistan, for furtherance or hindrance of an election. The statement of Mehboob Ali (P.W. 6) a brother-in-law of Nasimuddin coupled with the non-appearance of the latter as also of the appellant himself considerably facilitated the task of respondent No.l and in fact further credibility was lent to the unrebutted testimony of this witness. It cannot be disputed that Nasimuddin was a Government servant working in the Archaeological Department as Production Assistant being Incharge of Printing and Publication, and used to get his cards and magazines printed at the Dacca Press. It is in evidence that the appellant got printed pamphlets, Exhs. 67-B and 67-C, as also some other posters at the Dacca Press and made payment as indicated by the cash memd. Exh. 87, placed on the record. Mehboob Ali his brother-in-law identified the manuscript, Exh. 86, of the pamphlet, Exh.
55. 67-A, as being in the handwriting of Nasimuddin. The un-denied fact that not only the parents of Nasimuddin had proposed the seconded nomination papers of the appellant but some election meetings were also held in his house even though technically it stood in the name of his father, go a long way to show his close personal association with the appellant and interest to further his election. Surely, it was both in the interest of Nasimuddin to explain away the conduct as a Government servant as also that of the appellant to defend himself against the allegations to enter the witness-box. The statement of Mahboob Ali besides being found to be convincingly consistent with the concomitant circumstances and natural robabilities was lent further support by the statement of Muniruddin and Wahajuddin P.Ws. of the Decent Press where the pamphlet, Exh.67-A, was actually printed in the name of Dacca Press. It was contended that the possibility of Nasimuddin and his brother-in-law Mehboob Ali P.W. of having deliberately colluded to credit evidence against the appellant could not be excluded from consideration, may be ruled out on the short ground that no such allegation was made in the written statement nor was any such suggestion made to Mahboob Ali in cross-examination. It cannot, therefore, be reasonably urged that it was a case of no evidence or that there was mis-appreciation of evidence."
56. Page 30: "No doubt unlike the provision contained in section 67, where the election has to be declared as wholly void, having been materially affected by either the non-compliance with the provisions of the Ordinance and the rules or the prevalence of extensive illegal practices at the election, no such conditions have been laid down in the provision contained in section 66 reproduced above and from its plain reading, it is clear that for the award of the seat to another candidate only two requirements are to be satisfied: firstly, the petitioner or any of the respondents should claim the seat, and secondly, the Tribunal should be satisfied as to his entitlement to be so declared elected, which in turn would depend on several considerations including recriminatory petition and the evidence led in support of the allegations contained therein. For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions `satisfaction' and `entitlement'. `Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sunset `Satisfaction' is the existence of a state of mind persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at the compliance with the prescribed statutory provision and other legal requirement. Far from being a subjectively or capraciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or in decision or excilliation. To be `satisfied' with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the `legal satisfaction' which is a term of art and connotes discharge of a claim, debt, or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum `satisfy' has been held to be synonymous with, `convince beyond a reasonable doubt'; and `satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary `to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
57. This judgment is based on sections 68 and 70 of (Pakistan) Representation of People Act, 1970 which are verbatim the same as our sections 64 and 66.
58. In Rahim Khan v. Khurshid Ahmed (AIR 1975 SC 290), in para. 9 it was held that election petitions where corrupt practices are impugned must be regarded as proceedings of a quasi-criminal in nature where strict proof is necessary. The burden is therefore heavy on the petitioner.
59. In MA. Muthiah Chettiar v. Sa Ganesan (AIR 1960 Mad. 85) it was held that an election inquiry is in the nature of quasi-criminal trial in which a case should be made out by positive proof and not by mere conjecture. It was also held that the person could not succeed on an alternative case not put forward.
60. In Shive Charan Singh v. Maharaj Kumar Shri Prijendra Pal (AIR 1976 SC 785), in paragraph 7, it was held, in an election case, that the fact that there was suspicious feature in the respondent's case about his election would not justify interference with the finding of the High Court because suspicion cannot take place of proof.
61. M. Narayana Rao v. G. Venkata Reddy (AIR '1977 SC 208). In para.30, a lengthy one, no principle of law has been laid down. Only evidence has been discussed and a different' conclusion has been drawn in light of evidence. The election petition was heard by a High Court and appeal on the questions of fact and law was heard by the Supreme Court.
62. Para. 33 is a paragraph in which a conclusion has been drawn that no corrupt, practice was established to have been committed by any person with the consent of the respondents. The reference of the appellant's counsel is to the finding that consent of the respondent or his election agent had to be proved. It may be observed that in those provisions in which it is necessary to do so consent must be proved.
63. In Narendra Madivalapa Kheni v. Manikrao Patil (AIR 1977 SC 2171), in paragraph 12, it was held that trial Judge erred in substituting certitude and drawing untenable inferences. A Court must as usual ask for proof beyond reasonable doubt from the parties setting up corrupt practice.
64. In Mian Shah Jehan v. Haji Lal Karif (1993 CLC 929) it was held by the Election Tribunal of the N.- W.F.P. that analogy of the criminal charge held good in matters of corrupt and illegal practice.
65. In Ghani-ur-Rehman v. Muhammad Farid Mufakkir (1993 CLC 1964) the same principle as laid down in Mian Shah Jehan's case (1993 CLC 929) was followed by the Election Tribunal of N.-W.F.P.
66. In Pir Matook Ali v. Rias Muhammad Usufi (1986 CLC 1329) the Election Tribunal Sindh held that illegal and corrupt practice has to be proved by clear, cogent and convincing evidence and no finding could be given on surmises.
67. In Muhammad Amin v. Shujat Ali Khan (PLD 1986 Journal 66) and Jamaluddin Shah v. Abdul Sattar (PLD 1986 Journal 146) are also to the same effect.
68. Raja Muhammad Hanif Khan attacked the findings of fact recorded in the case by contending that evidence of agents, workers, friends of the election petitioner and interested witnesses have been believed without corroboration by any independent piece of evidence. He also contended that solitary statement of the election petitioner and oral evidence of the witnesses was not supported by the election staff and this evidence could not prove the case beyond reasonable doubt. It was also contended that evidence of agents and interested witnesses, if to be believed, must be corroborated by independent piece of evidence and that solitary statement of election petitioner was no proof. It was also urged that the evidence of witnesses not supported by election staff is not evidence beyond doubt. He relied on K.B. Khan v. Chief Secretary (PLD 1983 SC (AJ&K) 199) in which this Court held that admission has to be used either as a whole or not at all and the reading of a statement of the appellant in that case leads this Court to the conclusion that he did not under any accusation as was held by the Disqualification Tribunal.
69. In Sri Harasingh Charan Mohanty v. Surendra Mohanty (AIR 1974 SC 47) in a case under Representation of the People Act it was held by the Supreme Court of India that if a petitioner relied on a corrupt practice committed by any agent or other person than an election agent, he must prove that' it was committed by him by his consent. It was also observed that consent could not be inferred from mere close relationship or political affiliation.
70. In Rahim Khan v. Khurshid Ahmed (AIR 1975 SC 290) the Supreme Court expressed the view that election petitions where corrupt practices are imputed must be regarded as proceedings of quasi- criminal nature wherein strict proof is necessary. The burden is therefore on the petitioner.
71. Shafiqur Rehman v. M.S. Mian, Additional Deputy Commissioner (Rev.) and Election Tribunal, Chittagong (PLD 1968 Dacca 332). It was a case under the Electoral College Act, 1964. It was held that an Election Tribunal constituted under that Act is required to conform to the fundamental procedure applicable to judicial proceedings and should base its findings on legal evidence. It was observed that it was a risk to act on a solitary statement of an interested witness.
72. In Lakshmi Raman Acharya v. Chandan Singh (AIR 1977 SC 587) it was held that allegations of corrupt practice in the proceedings of election petition are quasi-criminal in character and allegations must be proved beyond reasonable doubt and that it is unsafe to accept oral evidence without looking of assurances from some surer circumstances or unimpeachable documents.
73. In D. Venkata Reddy v. R. Sultan (AIR 1976 SC 1599), it was held that in India law provides sufficient safeguard to make the election fair and free and therefore election results could not be legally brushed aside. The principle that election petition in order to succeed must plead all material particulars that in case of purely partisan evidence the Court will have to approach the evidence with great care and caution and as a matter of prudence though not as a rule of law required corroboration of such evidence from independent quarters, unless the Court is fully satisfied that due to the quality of evidence no corroboration was necessary. The election of corrupt practice is in the nature of quasi-criminal charge and must be proved.
74. Kanhaiyalal v. Mannalal (AIR 1976 SC 1886). In paragraph 22 the Supreme Court of India observed that the petitioner relied entirely on oral testimony and therefore the Court will have to be conscious and circumspect. In para. 46 there is a similar observation that oral testimony will have to be judged with greatest care and an electoral victory cannot be allowed to be invalidated by a mouthful of oral testimony without contemporaneous assurance from an independent source.
75. Bharat Bhushan v. Ved Prakash (AIR 1978 Delhi 199) in para. 16 relied upon by the appellant it was held that the evidence of the petitioner was partisan in nature and had to be judged with great conscious.
76. Dr. Haji Misal Khan v. Maulana Gohar Rchman (1987 MLD 1321). (Election Tribunal, N.-W.F.P.) The election petition was dismissed on the ground that the petitioner had come with four main allegations which he attempted to prove through oral evidence but he miserably failed to bring on record any cogent reason while some of the details which he had tried to furnish during the trial were omitted in the election petition. One of the factors which formed the dismissal of the petition was that the election petitioner had admitted that allegations were not his personal observations or hearing. It was observed that statement of the petitioner clearly established that allegations made in the petition were entirely based on the information of other persons. The respondent denied all the allegations but nothing was brought at length in cross-examination of respondent to discredit his version or to get corroboration of statement made by petitioner's witnesses.
77. In Ch. Muhammad Sarwar Jaura v. Mian Abdul Rashid PaeQanwala (1987 MLD 1309) the Election Tribunal Punjab held that solitary statement of witness not corroborated by other evidence did not inspire confidence.
78. In Muhammad Farid Mufakkir v. Haji Muhammad Usman Khan (1987 MLD 2744) the N: W.F.P. Election Tribunal expressed the view that the elections of corrupt and illegal practice were criminal in nature and same quality of evidence was required as was required for proof of criminal charge beyond any reasonable doubt. Any doubt arising from the evidence must be considered in favour of the successful candidate.
79. The learned counsel for the appellant also urged that evidence of the witnesses was vague in so far as the persons alleged to have committed corrupt and illegal practice have not been named and also that the names of those voters whose bogus votes were polled were not disclosed. Similar is the case of persons who have allegedly left as a result of disturbance. The judgments cited on this point are as follows: In Jamaluddin Shah v. Abdul Sattar (PLD 1986 Jour. 146) the Election Tribunal Punjab observed at page 155 of the report that it could not be stated that 3500 voters left the premises due to `Lathi Charge' and therefore the result of the election has been materially affected. It was also observed that if the supporters of the petitioner would have left the polling booth he would not have received the highest number of votes. It was also observed that it had not been established that `Lathi charge' by the Police was at the instance of the respondent or his workers.
80. In Syed Zaffar Ali Shah v. Muhammad Nawaz Khokhar (PLD 1986 Jour. 160) it was observed that the petitioner himself did not affirm being witness of all the facts stated in sub-paras. of the petition and he could not, therefore, be permitted to lead evidence with regard to the corrupt or illegal' practice.
81. In Rais Haji Ghulam Mustafa v. Haji Ghulam Hussain (1986 CLC 2663) it was held that in support of an allegation that voters were transported from villages, affidavits of all witnesses were stereotyped not giving numbers of buses, tractors etc. It was held that it was vague statement which was not sufficient to prove the charge.
82. Abrar Muhiuddin Ahmed v. Zuhair Akram Nadeem (1986 MLD 2245). There was an allegation that the returned candidate resorted to violence and terrifying voters. The allegation was general in nature and the names of the persons causing disturbances nor those voters who allegedly left as a result of disturbances were mentioned. It was held that election was not vitiated.
83. Another contention of the learned counsel for the appellant was that no inference can be drawn against the returned candidate nor any suspicion can be raised which may take the place of proof in election matters. The judgments cited on this point are: Brij Mohan v. Mange Ram (AIR 1985 SC 887). The allegation was that Rs.5,100 were given to some voters for construction of a `Mundair'. After discussing the evidence, no inference was raised by the Supreme Court.
84. In Shiv Charan Singh v. Maharaj Kumar Shri B?ijendrapalr (AIR 1976 SC 785) it was held by the Supreme Court of India that the fact that there were suspicious factors in the respondent's case about his election expenses would not justify interference with the finding of the High Court because suspicion could not take place of proof.
85. It was then contended on behalf of the appellant that there was no material on the record of the case to prove that the appellant directly or indirectly indulged in illegal or corrupt practice. It was contended that in such a situation election could not be declared to be void. The case-law cited on this point is mentioned below.
86. In Sri Harasingh Charan Mohanty v. Surendra Mohanty (AIR 1974 SC 47) it was held that if the petitioner relies on a corrupt practice committed by any agent other than the election agent, the petitioner must prove that it was committed by him with his consent or with the consent of his election agent.
87. In Laxminarayan v. Returning Officer (AIR 1974 SC 66), in para. 15, it was observed that it was true that according to the evidence on record Sharma seemed to have addressed several meetings in support of the returned candidate and some of those meetings the said candidate also delivered speeches, but this circumstance alone did not prove the consent of the candidate. In para. 25 the Supreme Court agreed with the High Court that the candidate had given consent to the speech of Sharma, mentioned above. Again in para. 28 the Supreme Court agreed with the High Court that the appellant had failed to prove the consent of the candidate to the speech of Sharma.
88. In Muhammad Amin v. Shujat Ali Khan (PLD 1986 Jour. 66) the Election Tribunal N.-W.F.P. observed that on the record there is no evidence worth the name to show any illegality or corrupt practice as specified in law was resorted to by the respondent or his election agent or any other person with his connivance.
89. In Rehmatullah Khan v. Dilawar Khan (1987 MLD 1395) the Election Tribunal of N.-W.F.P. held that in a case where corrupt and illegal practices are alleged required proof would be as strict as in criminal trial and the election petitioner has to win on his own pleadings. It was also held that election could not be declared void unless the Tribunal was satisfied that corrupt or illegal practice had been affected with the connivance of the returned candidate.
90. Shafiqur Rahman v. M.S. Mian, Additional Deputy Commissioner (Rev.) and Election Tribunal, Chittagong (PLD 1968 Dacca 332). In a case under Electoral College Act IV of 1964 it was held by the Dacca High Court (D.B.) that proceedings before Election Tribunal were judicial in nature and should be based on legal evidence. The Tribunal based its finding on solitary statement of interested witness (petitioner himself) and did not examine the material witnesses like Presiding Officers and Returning Officer. The order was termed to be arbitrary and was set aside.
91. Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar (PLD 1986 Jour. 160). Election Tribunal, Punjab. In an allegation of corrupt practice where the petitioner himself did not state that he was witness of allegation it was held that he could not be permitted to lead evidence with regard to corrupt and illegal practice. Reliance was placed on S.M. Ayub v. Syed Yusuf Shah (PLD 1967 SC 486).
92. Ch. Muhammad Sarwar Jaura v. Mian Abdul Rashid Pagganwala (1987 MLD 1309) the Election Tribunal, Punjab held that petitioner's affidavit of corrupt practice which was not supported by any other evidence on record could not prove allegations of corrupt practices, the Tribunal stated that solitary statement of a witness not corroborated by other evidence would not inspire confidence.
93. In Dr. Haji Misal Khan v. Maulana Gohar Rehman (1987 MLD 1321) the Election Tribunal N.-W.F.P. did not rely on the statement of petitioner where he failed to furnish details of the corrupt practice in the election petition and also admitted in his own statement that the listed allegations against returned candidate were in his personal observation or his own hearing. It was held since petitioner had heard such allegation from other persons it would bring that evidence within the ambit of hearsay evidence which could not be relied upon.
94. Abrar Muhiuddin Ahmed v. Zuhair Akram Nadeem (1986 MLD 2245) Election Tribunal Sindh. There were allegations of resorting to violence, corrupt practice regarding casting of bogus votes, terrifying voters of the petitioner and inciting communal feelings, but no independent evidence was produced nor any official witness was summoned. The petitioner failed to prove his assertion by means of evidence or in cross-examination. Allegations were general in nature based on hearsay evidence and full particulars or details were not mentioned in respect thereof. The petition was dismissed.
95. Ch. Muhammad Ibrahim Zia, the learned counsel for Ch. Latif Akbar, the first respondent, analysing the relevant provisions of law submitted that the grounds on which a returned candidate can be unseated may be broadly divided into two categories. In the first category are those cases in which it has to be proved that there has been corrupt and illegal practices, while the second category consists of those cases where there has been failure of any person to comply with the provisions of the Ordinance or the Rules or there has been prevalence of extensive corrupt or illegal practice. The learned counsel submitted that all cases of corrupt or illegal practice do not require that the blame of such practice should be proved against the returned candidate. Clause (c) of section 64 (1) and clause (b) of section 66 do not require that the returned candidate should be found to be responsible of procuring or inducing his election by corrupt or illegal practices or by prevalence of extensive corrupt or illegal practice.
96. Ch. Ibrahim Zia vehemently contested the proposition advanced on behalf of the appellant that allegations in an election petition must be proved by evidence which should be sufficient to prove a charge in a criminal trial. He contended that this principle has been applied by the Courts only in cases where the allegation was of corrupt practice and that also against the returned candidate.
97. He submitted that this requirement has nothing to do with allegations other than of corrupt practice. He referred to various other grounds which can form the basis of invalidation of elections to which the principle under reference would not apply. He then explained that in section 64 there is no mention of "material effect" while under section 66 it is a condition precedent that material effect should be proved. The learned counsel contended that although it is not necessary that facts which have been proved at the trial of the election petition, they must be co-related to the grounds enumerated in the petition. He contended that if facts are proved a different provision can be applied by the Election Tribunal. In this connection he referred to Syed Saeed Hassan v. Payar Ali (PLD 1976 SC 6) in which the Election Tribunal had accepted an election petition and awarded the seat to the election petitioner, but the Supreme Court of Pakistan partly accepted the appeal and ordered that the election shall be held afresh. It was, therefore, contended that on proved facts the election can be declared void by applying a different provision of law than has been invoked by the election petitioner.
98. It'- was also contended that in the category of cases in which it is necessary to prove material effect it is not necessary to enter into mathematical calculation of votes. His contention was that if the Tribunal is satisfied that an illegality or corrupt practice has materially affected the result the election can be declared void. It was also contended that it is not a condition precedent for unseating a member that names of voters who have been subjected to illegal or corrupt practice should be alleged or proved. He referred to many cases relied upon by the learned counsel for the appellant in which no mathematical calculation was undertaken. In particular he referred to those cases in which there are general allegations of provoking religious sentiment in which there was no proof about the number of persons who were influenced thereby or their names but the matter was decided on the satisfaction of the Tribunal. He then relied on a judgment of this Court Khadim Hussain Khan v. Dr. Akbar Hussain Khan (PLD 1986 SC (AJ&K) 145), in which two polling stations were found to have been illegally changed which resulted in the finding that most of the people had been deprived from exercising their votes. Thus without entering into calculations and without identifying the voters who were deprived of their right of franchise this Court ordered that re- election shall be held after declaring the election as void. It was contended that when corrupt or illegal practice has been committed and it is shown that an election has been procured or induced by such practices the election can be held void under clause (c) of section 64 (1) and in such cases it is not necessary to prove that the candidate or any person acting on his behalf was responsible for such practice. It was submitted that the effect of invalidation of an election can be avoided in terms of subsection (1) of section 64. In clayse (2) which provides that election of a returned candidate shall not be declared void on the ground that any corrupt or illegal practice has been committed if the Tribunal is satisfied that it was not committed by or with consent or connivance of that candidate or his election agent and that the candidate or his election agent took all reasonable precautions to prevent its commission. It was submitted that it was open to the appellant to show to the Tribunal that his case falls in clause (a). The learned counsel explained that the appellant only vaguely denied the allegations and did not take any specific stand. In this connection he referred to Order VIII, rule 3 of the Code of Civil Procedure.
99. Ch. Ibrahim Zia also contended that the appellant could have claimed recrimination in response to the claim of the present respondent that he was entitled to the seat but no such step was taken.
100. Another point raised was that there was violation of section 24 in so far as the Returning Officer conducted the counting of votes by excluding the four polling stations where no polling had taken place. He pleaded that this in itself was sufficient to order re--election.
101. Ch. Ibrahim Zia contended that the term "corrupt and illegal practice" has not to be narrowly construed and if a negative act does not strictly fall under the definition of corrupt and illegal practice it can be interpreted to be inclusive of such negative act. He relied on S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra (AIR 1980 SC 1362, para. 51).
102. He vehemently contended that the scope of interference in the findings of fact recorded by the Election Tribunal is very limited. In Pakistan and Azad Jammu and Kashmir, according to the learned counsel, even the High Court cannot enter into finding of fact and, as is incorporated in section 63 (3) of the Ordinance, that Court can only interfere if the case falls under four corners of section 100 of the Code of Civil Procedure. He compared the Indian Law on this point and explained that in India election petitions are heard by the High Court and an appeal, on question of fact and law, lies as of right under section 116-A of the (Indian) Representation of People Act, 1951. Therefore, the scope of interference with the findings of fact is much larger in India than in Pakistan and Azad Kashmir. He referred us to certain Indian judgments to show that even in India where scope is wider there is rare interference with the findings of fact.
103. In spite of wider scope available to Supreme Court of India that Court ` expressed the following view in Narbada Prasad v. Chhaganlal (AIR 1969 SC 395) held that:-- "10.Whether we should believe the witnesses or not involves how far we should enter into facts. No doubt, an appeal before this Court under section 116-A is an appeal as of right and is open both on facts and law; still the practice of the Courts has uniformly been to give the greatest assurance to the assessm ent of evidence made by the Judge who hears the witnesses and watches their demeanour and Judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a reassessment of the evidence. He must show wherein the assessm ent has gone wrong. Where the Court of first instance relies upon probabilities alone, the appellate Court may be in as good position as the Court of trial in judging of the probabilities; but where the Court of trial, relies upon its own sense of the credibility of a witness the appellate Court is certainly at a disadvantage, because it has not before it the witness but the dead record of the deposition as recorded. If it was a question only of the probabilities of the case, we would have undoubtedly gone into the matter more closely. The matter has however been put before us strictly on the ground of credibility of the witnesses and it is there we feel that the appellate Court is at a disadvantage. This has been laid down both by this Court and the Privy Council in cases which are quite familiar and need not be quoted."
104. It was a case in which the elected member of the Assembly was unseated on the ground that he delivered speeches to the effect that if the voters exercised their votes in favour of the Congress Party they would be objects of divine displeasure or spiritual censure because the Congress got thousands of cows and goats killed.
105. In Sheodan Singh v. Mohan Lal Gautam (AIR 1969 SC 1024) in para.16 of the report the learned Judges observed that the election petitions (in India) were tried by the experienced Judges of the High Court who also had the benefit of observing the witnesses when they gave evidence. It was, therefore, held that their appreciation of evidence was entitled to great weight.
106. In Nizarnuddin Ahmed v. Narbada Prasad (AIR 1975 SC 1909) two principles of law were laid down in this judgment by the Supreme Court of India. First is that when on the evidence of election petitioner's witnesses two views are possibly the view taken by the trial Judge is entitled to great weight in absence of any strong reason to differ from him and the view which has been accepted by the trial Judge who had the advantage of seeing the witnesses while they were giving evidence and got opportunity of deciding for himself whether the witnesses were stating truth that view can be differed with for strong reason. Second principle is that the allegations of corrupt practice are to be proved by the evidence which "leaves little room for doubt even though it may not be necessary to prove the allegation beyond all reasonable doubts as in a criminal prosecution".
107. The respondent's counsel contested the arguments of Raja Muhammad Hanif Khan that no inference can be drawn in an election matter. lie relied on the following cases: In Avtar Singh Brar v. Tej Singh (AIR 1984 SC 619) the returned candidate misrepresented in posters that certain candidate had withdrawn and it was held that it amounted to corrupt practice as contemplated by section 123 (2) of the (Indian) Representation of the People Act. The margin of votes was 123. It was held that strong presumption and possibility that these votes could have gone to the defeated candidate could not be ruled out and it would have materially altered the result of the appeal. This judgment was cited by Ch. Muhammad Ibrahim Zia to show that in certain circumstances the fact that strong presumption and possibility cannot be ruled out becomes the basis of decision in election matter and also to show that while deciding the question whether the election has been materially affected there does not have to be a mathematical calculation.
108. In Sheopat Singh v. Harish Chandra (AIR 1960 SC 1217) Supreme Court of India dismissed an appeal filed by a returned candidate whose election had been held void on the ground that vehicles were used for transporting voters to the polling stations. It was found that the candidate came to know that on the first polling day the voters were provided transport but he did not prohibit the repetition of the same act on the subsequent days of polling. Therefore, it was held that it was reasonable inference to draw that the acts were committed by design and the candidate must have consented to them. The High Court upheld this inference drawn by the Election Tribunal. The Supreme Court dismissed the appeal by holding that this was an inference which the learned Judges were entitled to draw and, being one of facts, the Supreme Court would not disturb it.
109. Another aspect which was highlight") by the learned counsel for the respondent was that in this case there was no calculation as to how many voters were given transport to go to the polling stations.
110. In Vatal Nagaraj v. R. Dayanand Sagar (AIR 1975 SC 349) election of the returned candidate was declared void by the High Court on the ground that the cars were hired during the, election and the limit of the allowable expenditure was crossed. The number of vehicles hired was differed (6 to 10) in the election petition from what had been put forward in the evidence. The Supreme Court held that no prejudice had been sustained by the change in the number of the cars. It was held that if the ground of corrupt practice is included in the cogent and clear evidence the particulars of corrupt practice cannot be shut out.
111. Prabhu Narayan v. A.K. Srivastava (AIR 1975 SC 968). In this case the High Court dismissed the election petition but on appeal the Supreme Court set aside the order and declared the respondent's election as void. There were five pamphlets on the basis of which the returned candidate was charged with corrupt practice. The pamphlets were printed in the name of two young boys of fourteen and fifteen. On evidence the Supreme Court found that the plan and direction could have come only from one source, i.e. the respondent. The Judges observed that they were convinced beyond reasonable doubt that the returned candidate was the guiding brain and hand behind the publication of pamphlets and that he and his supporters must have committed all these things. , We may now record our views on some of the points of law debated before us. So far as the scope of interference is concerned it does not need a detailed discussion because the law on this subject is well settled. Under the Azad Jammu and Kashmir Legislative Assembly Ordinance an appeal lies to the High Court from the decision of the Election Tribunal. It is laid down in subsection (3) of section 63 of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970 that appeal before the High Court shall lie on any grounds enumerated in section 100. It is also provided therein that appeal shall be heard by a Division Bench of the High Court and the decision of the High Court shall be final. It means that, although appeal to the High Court lies as a matter of right, it lies only on the grounds that the decision is contrary to law, some material issues of law or usage having the force of law have not been determined or a substantial error or defect which may possibly produce error or defect in the decision on the merits of the case. So far as the Ordinance is concerned it has clothed the decision of the Division Bench of the High Court with finality but this Court has the power, to which no exception rightly has been taken by the learned counsel for the respondent, under the Interim Constitution Act to grant leave to appeal and it is through this Constitutional provision that we have heard this appeal. We would therefore broadly follow the same principles as are followed by us in an appeal filed with leave of the Court against a second appeal decided under selction 100, C.P.C. by the High Court.
112. However, we would also give due weight to the fact that the Election Tribunal is a tribunal for which, as we will presently see, a special procedure has been prescribed and, therefore, construction of law or evaluation of facts must conform to the objects of the legislation. The Election Tribunal is not a Court and it is not without significance that election petitions are to be disposed of by an Election Tribunal and not by a Court. In fact section 49 of the Ordinance provides that no election shall be called in question except by an election petition made by the candidate, which by necessary implications creates a bar that no Court possesses the jurisdiction to hear an election dispute. In section 58 it is provided that election petition shall be tried, as nearly as may be, in accordance with the. procedure for the trial of suits under the Code of Civil Procedure. It is provided in section 60 that the Tribunal shall have the power of the Civil Court. There is an important provision in the shape of a proviso to section 59. It provides that the Tribunal may make a memorandum of substance of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full. This provision shows recording of evidence as is done by civil or criminal Courts is not necessary for an Election Tribunal.
113. It is then provided in subsection (2) of section 58 that Evidence Act shall apply for the trial of election petition subject to the provisions of Ordinance. These provisions indicate clearly that the procedure to be followed by a Tribunal is not the same as that of Court. The procedure prescribed for the Tribunal is less formal than that of a Court. Section 64 provides that the rcsult of an election petition depends on the satisfaction of the Tribunal. The grounds on which an election can be declared to be void are enumerated in sections 64 and 66 and in both the sections it is provided that if the Tribunal is satisfied about the existence of any ground enumerated in the two provisions of law it shall declare the election to be void meaning thereby that if the stage of satisfaction is reached no discretion is left with the Tribunal. The word "satisfaction" is a well-known term used in legal parlance. We respectfully follow the observation of the Supreme Court of Pakistan made in Syed Saeed Hassan v. Pyar Ali (PLD 1976 SC 6) that "satisfaction" means the existence of a state of mental pursuasion much higher than mere opinion and when used in the context of the IF judicial proceedings has to be arrived at with the prescribed statutory provisions. To be satisfied is to be honestly convinced. Read with the fact that a Tribunal is authorised to record a summary of evidence it appears that intention of the law-maker was that what is basically important is the satisfaction of the high powered Election Tribunal, which must consist 9f a retired Judge of the High Court or a person who is qualified to be such a Judge and is to be selected by the Chief Election Commissioner. It is clear that although the satisfacting of the Tribunal must be based on conclusions arrived at in compliance with the prescribed statutory provisions, the Tribunal which is one of exclusive jurisdictions, enjoys a measure of freedom to pass an appropriate order keeping in view the circumstances of each case once it is satisfied that any of the grounds mentioned in sections 64 and 66 is present.
114. We now pass on to the questions of standard of evidence and nature of proceedings in the trial of an election petition. As already noticed it was contended by Raja Muhammad Hanif Khan, the learned counscl for the appellant, that an election can be declared void only if the standard of evidence produced by the objector is the same as is required to prove a criminal charge.
115. We have carefully gone through the large number of cases cited by him to support his contention and we have tried to state their contents with some detail. A close look at these judgments - however shows that this principle has not been laid down by Courts in general terms and our reading shows that it is restricted to only those grounds which relate to corrupt and illegal practice.
116. In our considered view there is noting in the relevant provisions of law to infer that the other grounds mentioned in sections 64 and 66 of the Ordinance would attract this principle. These grounds, already reproduced, are by very nature of them totally different. One important feature of these provisions is that a candidate other than the returned candidate can be declared elected in those cases in which a charge of corrupt or illegal practice is proved. In other cases only the election can be declared void. It is clear from the provisions of the, Ordinance that the proceedings before the Tribunal are akin to a civil' proceeding. The filing of an election petition and a written statement and settling of issues are salient features of an election petition. An analysis of the P Ordinance as a whole leaves us in no doubt that so far as the proceedings are I concerned they are not criminal or quasi-criminal. Code of Civil Procedure has been made applicable, although partly and proceedings are essentially civil in nature. The election petition is more or less the same as a plaint in a civil suit and, a written statement tiled before the Election Tribunal is at par with a e written statement in a civil suit. The -striking of issues is also essentially civil in nature while framing issues what has been admitted by the other party is not required to be proved. To rind out what has been admitted or what has been denied the principles laid down in Code of Civil Procedure about denial, evasive denial etc. would be applicable.
117. As has been seen in section 64 and section 66 an election can be declared void on being found that election of the returned candidate has been procured and induced by corrupt or illegal practice or that there has been prevalence of extensive corrupt or illegal practice but it is not necessary to prove that the returned candidate was responsible for these practices. In clause (d) it is necessary to prove that corrupt or illegal practice has been committed by the returned candidate. In our opinion if a finding has to be given that a corrupt or illegal practice has been committed by the returned candidate or by any person acting on his behalf it is necessary to prove it as is done in a criminal charge. However, if there is no finding against the returned candidate or finding is that the election has become void on account of the failure of any person to comply with the provisions of the Ordinance or rules made there under this requirement is not necessary. In such matters only preponderance of possibility would be sufficient.
118. In light of the analysis of the relevant provisions we have formed the view that in election matters the Election Tribunal, not being bound by strict technicalities, can declare an election to be void on proved facts the modification or moulding of relief. In our opinion it is not necessary that if an allegation is levelled in accordance with the prescribed procedure it must be proved in its totality and otherwise it would fail. For instance if it is alleged in the election petition that corrupt and illegal practices have been committed by a returned candidate and at the trial corrupt or illegal practices are proved but there is no proof that the same were committed by the returned candidate, it would not debar the Tribunal to transpose relief of the proved fact of corrupt or illegal practice. Similarly if the corrupt or illegal practice has been alleged but violation of the provisions of the Ordinance and rules is proved the Tribunal would be at liberty to determine the decision of the election petitioner on the basis of those proved facts. This is a power which is generally available even to a Court conducting a civil proceeding.
119. We also hold that drawing of an inference from evidence is a power which is available to any Court of law or a tribunal which is to act on evidence. Although no strict rule can be laid down as a guideline on this point but the cases from Indian jurisdiction cited by Ch. Ibrahim Zia (already discussed) Avtar Singh Brar v. Tej Singh (AIR 1984 SC 619), Sheopat Singh v. Harish Chandra (AIR 1960 SC 1217) and Prabhu,Narayan v. A.K. Srivastava (AIR 1975 SC 968) illustrate the point.
120. Now we turn to the factual aspect of the case. We have already made observations about the scope of this Court's interference in finding of fact. We may point out that reappraisal of evidence is not our function in appeals arising out of judgments lof civil and criminal Court subordinate, to the High Court.However, this Court may vacate a finding of fact if it is found that a finding is' based on inadmissible evidence or if it is the result of such misreading or non-- reading of evidence that the finding stands vitiated. It is well settled that this Court will not set aside a finding merely on the ground that a different view of evidence is possible. These principles are more strict in appeals arising out of tribunals of exclusive jurisdiction, like the Election Tribunal. We have taken note of the provisions governing the trial of an election petition which are peculiar in nature. The object of these provisions basically is to find out whether the will of the electorate has been ascertained in accordance with the legal procedure and whether the election has been conducted without illegalities and free from corrupt and illegal practices. It is important that Election Tribunal has been authorised by law to declare another candidate to be elected or to order a re-election. This shows that will of the electorate has the basis importance. In such cases if a witness has been believed by the Election Tribunal or, where two views of evidence were possible and one view ~I has been taken by the Tribunal, and judgment of the Tribunal has been upheld by the High Court, this Court will not normally interfere in these findings.
121. In the present case we have gone through the evidence with a view to find out that there has been any misreading or non-reading of evidence or to see whether there is any inadmissible evidence on which a finding is based. The opinion which we have formed is that there is no such situation in the present case and we find no justification for upsetting any of the conclusions. We will advert to the evidence when we go in further details.
122. Now we turn to the facts. As already noted there are in all twelve polling stations on the basis of which the appellant has been unseated. Due to the adverse findings recorded by the Election Tribunal which expressed the view that the election of the appellant was materially affected as a result of the conclusions reached by it. The number of votes deducted by the Tribunal on account of the adverse findings was 8,345 while the lead of the appellant was of 7425 votes. Thus the difference is of 920 votes. These findings have been upheld by the Division Bench of the High Court.
123. These stations may be divided in the following three heads:-- (A)Six polling stations where one-sided polling was found to have been conducted with the result that unusually large number of votes (ranging from 87.5 per cent. to 98.4 per cent.) were polled. At these polling stations Ch. Latif Akbar got one out of 780, zero out of 684, zero out of 527, zero out of 630, 5 out of 502, 57 out of 899 respectively as compared to 686, 611, 485, 615, 488 and 740 votes polled by Raja Abdul Qayyum; (B)Two polling stations of 1,579 votes where more votes were polled than the total registered votes; and (C)Four polling stations with 3,184 votes where no polling was held.
124. We first take up polling stations falling in category `A' (one-sided polling). They are the following six:-- S.No.Polling StationTotal VotesPolled Votes (1)22-Narrat684641 (2)43-Chotla527485 (3)44-Narran630615 (4)20-Potha780696 (5)64-Chattar Klas502494 (6)72-Sanwarian899797 Before taking up the polling stations one by one we may take note of an observation made by the Tribunal. The Tribunal observed that voters' list which was used of in 1991 Elections was prepared prior to the previous elections held in May 1990 and that during this period a number of voters must have died with the result that the total number of voters eligible to cast vote fell down when voting took place in June 1991. This, in our view, is a valid observation and the Tribunal has rightly taken judicial notice of it. Keeping this in view the high percentage of votes polled at a station assumes added importance.
125. P.S. 22 NarratPolled votesTotal votesPercentage Raja Abdul Qayyum61168489% Ch. Latif Akbar0 P.W. Ali Akbar was the polling agent of the respondent. He, in short, deposed that 5/6 persons present at the polling station, all Belonging to Muslim Conference, did net allow any voter to cast his vote and when he protested the witness was turned out by the polling staff and the supporters of the appellant. He asserted that he was not allowed to cast even his own vote. In rebuttal Raja Abdul Qayyum produced one Rahim Dad. It was pointed out by Raja Muhammad Hanif Khan that the Election Tribunal did not read the statement of Raja Rahim Dad and instead read the statement of another P.W. 10, Mumtaz Alam, who deposed about Polling Station No. 45. This is factually correct but a reading of the judgment of the Tribunal shows that although the witness has been mentioned as Mumtaz Alam instead of Rahim Dad, the summary of what Rahim Dad stated has been correctly recorded. Therefore, this casual mistake is not significant. The High Court discussed the evidence of Rahim Dad in relation to Polling Station No. 22 in paragraph 45, apart from discussing the evidence of Ali Akbar. One important factor which weighed with the Election Tribunal in regard to adverse finding about Polling Station 22 was that Ali Akbar, the polling agent of Ch: Latif Akbar, was not able to cast his vote in favour of the respondent as he did not get a single vote at this station. The High Court has also discussed the evidence. It was observed that P.W. Rahim Dad knew Ali Akbar but did not know whether he was the polling agent of Ch. Latif Akbar or not. However, he admitted that Ali Akbar was present at the polling station. The High Court has observed that in any case Ali Akbar, a registered voter who was present at the polling station, was not allowed to poll his vote in favour of Ch. Latif Akbar. The High Court has upheld the findings of the Election Tribunal by accepting the testimony of Ali Akbar and has observed that Rahim Dad did not appear to be a truthful witness for which reasons have also been recorded. Keeping in view the fact that it is Raja Abdul Qayyum who got more than 89 per cent votes from this polling station was the beneficiary the blame was, in light of the evidence discussed above, placed on the supporters of Raja Abdul Qayyum.
126. P.S_ 43 ChodaPolled votesTotal votes Percentage Raja Abdul Qayyum48552792% Ch. Latif Akbar0 The other polling station where Ch. Latif Akbar got no vote at all was Chotla-43, where more than 92 per cent. votes were polled. Raja Muhammad Yusuf, who claimed to be the polling agent of the respondent, was produced to prove the allegation he has also been believed. The High Court has observed that the presence of a polling agent on behalf of Ch. Latif Akbar was impliedly admitted by Raja Asif Majeed, the witness of Raja Abdul Qayyum. Raja Muhammad Yusuf was believed by the Tribunal and the High Court while Asif Majeed, the opposite witness, was disbelieved.
127. P.S. 44 NarranPolled votes Total votes Percentage Raja Abdul Qayyum61563097.5% Ch. Latif Akbar0 Ch. Latif Akbar got no vote, more than 97.5 per cent. votes were polled in all. P.W. 13 Bagh Hussain deposed that he was polling agent of Ch. Latif Akbar. He stated that four persons belonging to the opposite-party were casting bogus votes and these persons had the support of polling staff. It was contended before the High Court as well as before this Court that this witness has not blamed the appellant or his supporters. As rightly pointed out by the High Court when this witness blamed four persons belonging to the "opposite--party" he clearly meant the party of wining candidate who secured 97 per cent. votes at that polling station. His evidence has been discussed at length in paras. 47, 48, 50 and we find that it suffers from no legal infirmity.
128. P.S. 20 PothaPolled votes Total votes Percentage Raja Abdul Qayyum69378087.5% Ch. Latif Akbar1 Muhammad Nazir P.W. 12 deposed that he was the polling agent of Ch. Latif Akbar but when he reached the polling station at 7-30 a.m. in the morning the opposite-party picked up a quarrel with the election petitioner's supporters as well as the witness and forced them to run away from the polling station without casting their votes. Thereafter the supporters of the appellant proceeded with ex parte polling. Mumtaz Alam appeared in rebuttal who claimed that he was the appellant's polling agent. The High Court has reproduced the following observations recorded by the Election Tribunal:-- "Although, Muhammad Nazir P.W. happened to be polling agent of the petitioner and in a sense may be described as an interested witness, his statement rings true and fits in with the circumstances of the case. 1, therefore, feel inclined to accept the version of the matter given by him. The statement of Mumtaz Alam P.W. 10 appears to be an incorrect one and can, in no way, minimise the value of the statement of Nazir Khan P.W. It will not be out of place to point out here, that in the elections held in 1990, the petitioner, at this polling station, secured as many as 78 votes."
129. The Election Tribunal observed that the evidence read in overall k circumstances of the case that heavy number of votes were polled in favour of, respondent No. 1 although many persons must have died after the preparation of the electoral roll prior to 1990 pointed out to the fact that false and bogus polling took place at the instance of the present appellant. The conclusion K drawn by the Tribunal which was upheld by the High Court appears to us to be justified and nothing has been pointed out to show that conclusions are perverse or are vitiated due to any misreading or non-reading of evidence.
130. P.S. 64 Chattar Klas Polled votesTotal votes Percentage Raja Abdul Qayyum48850298.4% Ch. Latif Akbar5 In light of the evidence it was concluded by the Tribunal that it became obvious that quite a handsome number of bogus and false votes have been polled by unauthorised persons. The Tribunal observed that it has been stated by_ the petitioner that at the instance of Raja Abdul Qayyum force was used by his supporters preventing the voters of Ch. Latif Akbar to cast their votes and they succeeded in carrying on ex parte voting which was wholly bogus and fictitious. The Tribunal expressed the view that "the statement rings true and fits in the circumstances of the case ....". Heavy number of votes said to have been cast in favour of Raja Abdul Qayyum is indicative of the fact that the case put forward by Ch. Latif Akbar was not without substance. The Tribunal highlighted the fact that it was Raja Abdul Qayyum who benefited while Ch. Latif Akbar polled only 5 votes and it could not be therefore urged that he got any benefit out of it.
131. P.S. 72- Sanwarian Polled votes Total votes Percentage Raja Abdul Qayyum74089990% Ch. Latif Akbar57 P.W. 7 Muhammad Ishaque has been believed by the High Court and the Election Tribunal. He deposed that when some polling had taken place a group of supporters of the Muslim Conference created hindrance and did not allow the supporters of Ch. Latif Akbar, including the witness (polling agent). Nobody was produced in rebuttal. It is on the record that in the elections held in 1990 respondent Ch. Latif Akbar had polled 409 votes while Raja Abdul Qayvum got 78, as also the statement of Muhammad Ishaque is supported by the statement of Ch. Latif Akbar as a witness. It was observed by the Tribunal that in election held in 1990 Ch. Latif Akbar polled 409 votes as against 78 polled by Raja Abdul Qayyum. Muhammad Ishaque was produced by Ch. Latif Akbar in respect of this polling station. He stated that votes were actually polled by a group of Muslim Conference. They did not allow the witness and the other supporters of Ch. Latif Akbar to cast their votes. 50/55 votes in favour of the petitioner were polled by the same group. The Tribunal observed that this witness was Ch. Latif Akbar's agent and thus a natural witness. Nothing has been brought to discard his testimony. The conclusion drawn by the Election Tribunal was that extensive corrupt and illegal practice has been committed and it can, therefore, safely be said that in consequence thereof the result of the election has been materially affected.
132. Raja Muhammad Hanif Khan assailed these findings of the Election Tribunal. He contended that at some polling stations favouring Ch. Latif Akbar high percentage of votes were polled. He referred to the statement of Ch. Latif Akbar in which during cross-examination he gave the figures of the votes polled by him at different polling stations. Raja Muhammad Hanif gave the following figures:-- S. No.Polling StationPercentage (1)75-Ballan98% (2)5-Ramkot (Male)90% (3)6-Ramkot (Female)75% (4)3-Pramckot81% (5)18-Timbi 80% He submitted that it proved that it was not impossible for a candidate to get high percentage of votes. fie particularly referred to polling stations 75 and 5 where more than 90 per cent. votes were polled. However, we are of the view that this fact does not make any difference in the eye of law.
133. The elections are held to ascertain the popular will in a democratic system so that a person who commands the confidence of the majority may represent them in the Legislative Assembly. When election disputes are being settled the purpose of the investigation undertaken by the Election Tribunal is to find out whether the election reflects the will of the people. If the candidates indulge in malpractice and consequently corrupt or illegal practice or violation of law is found to have occurred the real party which suffers is the electorate. Therefore, the fact that rival candidate also captured some booths and high percentage of votes which is not compatible with reality are obtained, by him does not condone the illegalities committed in favour of the returned candidate.
134. We may observe that high percentage of votes which ranged -from 87.5 per cent. to 98.4 per cent in itself is a factor which weighs heavily in favour of accepting the statement of witnesses produced by the first respondent. It must be said that as at these six polling stations high percentage of votes polled, that was sufficient to satisfy the Tribunal that there was prevalence of extensive corrupt and illegal practice at these polling stations and it was not necessary to fix the liability, as is clear from reading of section 66 of the Ordinance which we have discussed with some detail. The only necessity was to see whether election has been materially affected. We note that this has been done by the Election Tribunal by mathematical calculations.
135. Now we turn to polling stations falling in category (B) where more votes were polled than the total registered votes. 1,579 votes have been excluded on account of these two polling stations. In this category are two polling stations P.S.1-Katkair Bala, and P.S.76-Rajpothi, where more votes were polled than those enlisted. At Rajpothi there were 824 registered votes while 830 votes were polled.
136. Out of them 729 votes were polled by Raja Abdul Qayyum while 100 votes were received by Ch. Latif Akbar. One vote was rejected. At polling station 1-Katkair Bala the number of registered votes was 724 while 749 votes were polled. Raja Abdul Qayyum got 599 votes while Ch. Latif Akbar polled 150.
137. The Tribunal observed about these two polling stations that the polling staff of this polling station was involved in these nefarious affairs because, despite having the lists of voters, they allowed voting in excess of registered number. The Tribunal observed that heavy number of votes shown to have been cast in favour of Raja Abdul Qayyum was indicative of the fact that it was he who was benefited from the bogus and false voting. The Election Tribunal expressed the view that even 100 per cent. votes could not be polled because since the preparation of electoral rolls, which was done some years ago, some of the voters must have died while others, must have been absent from the constituency. There might have been others who may not have polled their votes due to reason of health or any other cause. The Election Tribunal reached the conclusion that there was no difficulty in holding that Raja Abdul Qayyum, who benefited from it, was responsible for the illegal and corrupt practices which were rather on a very large scale. This finding was upheld by the High Court.
138. The learned counsel for the appellant vehemently contended that the election petitioner miserably failed to prove that extra votes polled at the polling stations were polled at the behest of the appellant. On this point, in respect of polling station 76-Rajpothi, there was evidence of Ch. Latif Akbar and also P.W.8, Raja Muhammad Zahoor Khan, who stated that he was a registered voter at the polling station. On the polling day the supporters of Muslim Conference pressurised the polling staff and asked the general public to go away. Two persons sat down and started affixing seal on the ballot papers and after two hours the Presiding Officer announced the result. He stated in cross-examination that he went at the polling station at 7-30 a.m.
139. P.W. Nizam Din was produced by Raja Abdul Qayyum. Pe deposed that there was proper polling at the polling station which started at 8-00 a.m. and lasted till 5-00 p.m. He stated that nobody was stopped from polling. He denied the suggestion that (sic) and lkhlaque affixed the seal on the ballot papers and polled the votes in favour of Muslim Conference candidate. The learned counsel for the appellant referred us to the following cases on this point: In Abdus Sattar Rana v: S.M. Zaidi (PLD 1968 SC 331) excess votes were found in ballot-box. The Election Tribunal held that this must have been the result of some malpractice or irregularity in conduct of the election but there was apparently no evidence and no finding was given as to responsibility of this state of affairs. The Tribunal went on to say that irregularity or malpractice committed has materially affected the result of the election. It was held by the Supreme Court that in absence of any evidence to that effect the responsibility cannot be laid at the door of the appellant. It was observed that it was an open possibility that the respondent or his agent may have manoeuvred to get the excess votes put in the ballot-box or 78 excess votes might have been actually issued but the official concerned may have omitted to tick mark corresponding entry. It was held that these extra votes should not be counted but even if they were wholly deducted from the votes obtained by the appellant he would still be leading the respondent by 13 votes. It could not be held that the result of the election therefore was materially affected. It was a case under section 36 (1-A) of the Electoral College Act, 1964.
140. Abdul Aziz Kabiraj v. S.A. Chowdhury (PLD 1966 Dacca 561). It was a case under the Electoral College Act read with Electoral College Rules, 1964. Petitioner polled 182 votes while respondent polled 180 votes and 8 votes went to the third candidate. In light of the evidence produced before it the Election Tribunal held that "there might have been two cases of personation and it was possible that due to personation the result of the election was affected or at least might have been affected since if these 2 votes have not been cast in favour of the returned candidate the result of the count would be tie and the result of the election should a have to be decided on a lottery". The Election Tribunal ordered re-polling. The relevant rule which was applicable was sub-rule (i-A) of rule 36, which was thus worded: "The Tribunal shall declare the election of the returned candidate or the election as a whole void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act and these rules."
141. (This sub-rule' is substantially the same as section 66(a) of the Ordinance).
142. The High Court held that personation did not amount to non--compliance or contravention of any provision of the Act or the Rules. It was also held that because of provision of secrecy no means were available to the Tribunal to ascertain if a vote cast by personation is actually gone to the returned candidate. The writ petition was accepted on the ground that it had not been found that two instances of personation had in fact affected the result of the election.
143. Muhammad Shafi v. Election Tribunal (PLD 1966 Lah. 755). It is also a case under the Electoral College Act. The election of the successful candidate was declared void by holding that he was guilty of corrupt practice as he had exerted influence on one of the contesting candidate to withdraw from the contest in the name of `bradri'. It was held that it did not amount to "corrupt practice" as defined in the Electoral College Act. It was also held that in light of rule 36 (1-A) already reproduced, in order to vitiate an election it is necessary to prove that failure or contravention complained of had materially affected the result of the election.
144. Nasir Mahmood Mughal v. Muhammad Azam (1987 MLD 2526) (Election Tribunal Punjab). The difference between the contesting candidates was of 11 votes only. Petitioner contended that according to evidence 15 votes were cast of persons who were either dead or had gone abroad and that impact of these votes affected the result materially. There was no allegation or evidence that the said votes were cast in favour of contesting respondent nor that casting of the said votes by personation was done with the connivance of the contesting respondent or his agent. It was held that such votes with blind destination could not be treated as materially affecting the result.
145. The Tribunal expressed the view that an election could be declared as a whole to be void only if the Tribunal is satisfied that the result of the election had been materially affected by reason of (i) failure of any person to comply with the provisions of the Act or the Rules, or (ii) prevalence of extensive corrupt and illegal practice of the election. The Tribunal held that even if it was admitted that 15 votes were polled as alleged it could not be regarded as extensive corrupt and illegal practice so as to affect the result of the election materially when thousands of votes had been cast.
146. In Abrar Muhiuddin Ahmed v. Zuhair Akram Nadeem (1986 MLD 2245) there was an allegation that bogus votes had been cast and genuine voters were deprived. The Election Tribunal obscrved that there is no evidence in support of this allegation. There was only a list which purported to contain the names of those persons who were either dead or were not present at Karachi on the polling day and it was observed that it was hardly any evidence.
147. Inayatullah Khan v. Haji Ghafoor Jadoon (1992 MLD 2540). In the portion of the judgment of the Tribunal arising out of the Representation of People Act, 1976 that it was a very ambiguous and blurred allegation to say that valid votes of the - election petitioner were declared invalid whereas the invalid votes of the returned candidate were declared valid. It was also observed that no details of material particulars had been given in the election petition about bogus votes, double votes, purchase of votes etc. It may be observed that these cases are those in which excess votes were found from the polling box and not cases in which more votes were polled than the total number of registered voters, as in the present case. The two polling stations under reference are cases of peculiar nature. The Tribunal and the High Court have. rightly reached the conclusion, on the basis of evidence on record read in the overall context based on the peculiar ratio of polled votes, that Raja Abdul Qayyum, who was the beneficiary, was responsible for this extraordinary situation. We uphold this view. We may also observe this polling is a stigma on the whole election system. Polling of more votes is in our view a gross violation of the provisions of the Ordinance and the Rules and shows the prevalence of extensive. corrupt and illegal practices at the two polling stations under reference. It is clear that gross violation of law has been committed at these polling stations. The scheme of the Ordinance and the Rules made there under shows voters have to pass through a rigid procedure.
148. We need not go into the details of the procedure because the provisions about it are well known. It cannot be imagined that a single vote more than the total can be polled. Whoever was responsible for this state of affairs, it must be said that such demonstration of highhandedness and illegalities tend to erode the confidence of the people from the electoral system on which our democratic polity is based. We cannot visualise that this could happen without participation of the concerned polling staff. Whether the Presiding Officer arid other staff members were forced into this situation or they did it in their own free will makes little difference because in both the cases the result is there was gross violation of law and a classic cases of corrupt and illegal practices have come to light. No other conclusion is possible except to declare that polling at' these stations was violative of law and thus invalid.
149. Polling did not take place at polling stations 9, 16, 40 and 42 where there were 3184 registered voters. This fact is admitted between the parties. It is alleged in the election petition that at these polling stations the supporters of the appellants indulged in lawlessness and did not allow the polling to take place at three out of these polling stations while at polling stations 40-Kumhar Bandi one-sided polling, took place which was not accepted as valid by the Returning Officer. At this polling station there was firing which resulted in the death of a six years` old child. It was claimed that respondent Ch. Latif Akbar had the support of 90 per cent. voters associated with these polling stations. The Election Tribunal observed that Raja Abdul Qayyum in his statement before the Tribunal denied that any firing had been made by his supporters at Polling Station No. 40 but he indirectly admitted that a case might have been registered against his supporters for the death of a child who had died in consequence of a fire-arm injury on the day of election. The Election Tribunal noted that he stated in his statement that all the residents of Village Kamhar-- Bandi were the supporters of his party (Muslim Conference). The Tribunal concluded that this statement lent support to the version given in the election petition with regard to the firing resorted to by the supporters of Raja Abdul Qayyum at Polling Station No. 40. The Tribunal expressed the view that the allegations against Rana Abdul Qayyum and his agent and supporters with regard to the- other three polling stations "also ring true in facts and circumstances of the case". The Tribunal noted in the previous election held in May 1990 Ch. Latif Akbar had secured 266 votes as against 83 votes polled by Raja Abdul Qayyum at Polling Station No. 40. It was also observed that a campaign at such a large scale resulting in withholding of polling at four polling stations could not be undertaken by supporters of returned candidate without his previous consent. The High Court reached the conclusion that in view of the clear allegations levelled in the election petition supported by the statement of Ch. Latif Akbar as compared to the evasive denial by the appellant in written statement and his vague statement about only two polling stations were sufficient to record the finding that the election agents and supporters of Raja Abdul Qayyum were responsible for creating a situation in whick3,184 voters were deprived of their right of franchise. There are two documents, Exh.PW 1/24 and PWl/25 which were excluded from consideration by the Election Tribunal on the ground that they could not be treated as certified copies within the meaning of section 76 of the Evidence Act. The objection based on section 76 was that, although" the copy carried the signature and seal of the Returning Officer, as well a date, these documents did not contain a certificate that it was a certified copy. These two documents are the reports submitted by the Presiding Officer on two polling stations, in which they narrated, what was called lawlessness created at the polling station but they were not considered by the Tribunal and the High Court. It was vehemently contended by Raja Muhammad Hanif Khan that the finding on this point is based. on the solitary statement of Ch. Latif Akbar who had no direct knowledge about the happening at these polling stations. He referred to the relevant.portions of the statement.
150. As already observed there is no dispute that polling did. not take place at these four polling stations, namely, 9, 16, 40 and 42. There is also no dispute that it was due to the fact that disturbances were created at these polling stations. The only point which has been raised before us is that on the evidence on record blame should not have been placed on the returned candidate or his supporters. This is a finding of fact recorded by the Election Tribunal on this basis of the pleadings, the manner of denial, the statement of Ch. Latif Akbar and the answers given by Raja Abdul Qayyum in the cross-examination. No M misreading or non-reading of evidence warranting interference was pointed out. However, in our view, even if the, contention of Raja Muhammad Hanif Khan is accepted it makes little difference. The fact stands proved that there was no polling at these polling stations. According to the Ordinance polling should have been held at these stations and all voters should have been allowed to exercise their franchise in a free and impartial manner but they were not allowed to do so. It is provided in section 24 that in such a situation there shall be re-polling. In section 24-A the Chief Election Commissioner is authorised to declare the poll on a polling station to be void where a situation similar to the present case is found to exist and fix a date for taking a fresh poll. However, the Chief. Election Commissioner is authorised to pass a different order (not specified in that section) if he is satisfied that the result of the fresh poll will not affect the result of the election. It is not known whether the matter was reported to the Chief Election Commissioner and whether he passed any order under section 24-A.
151. On the record is a declaration by the Returning Officer that no polling took place at these polling stations. It is clear that section 24 was violated in so far as re-polling was not ordered. This is apart from the fact that the absence of polling is contrary to the provisions of the Ordinance which visualised the holding of election on all polling stations of the constituency. The power available under section 24-A is exercisable in a case where the fresh poll would not affect the result of the election but in the present case it has been held by the Election Tribunal that the election in the present case has been materially affected. In this view of the matter the case N clearly falls in clause (a) of section 66 as the provision of the Ordinance and the Rules have not been complied with. It also falls under clause (c) of section 64 in so far as it has transpired that the election has been procured by corrupt or illegal practice for which blame on the returned candidate is not necessary. Thus we find that 3,184 voters related to these polling stations have I rightly been found to have been affected.
152. Before closing we wish to advert to a legal point of some importance. Ch. Ibrahim Zia raised the point that the Election Tribunal fell in error in eliminating from consideration the documents Exhs.PWl/24 and PW1/25 which had been exhibited in the case on the ground that these documents did not contain the words "certified copy". He contended that these documents contain the stamp and signature of the Secretary of the Election Commission which should have been treated as attestation. He submitted that it is not a mandatory provision that certified copy must contain the word "certified". The fact that the copy has, not contained a certificate does not in any way deviate from its authenticity. He submitted that it was a fault of the concerned officer for which the party which had taken the copy should not be penalised. The learned counsel contended that when the copies have been exhibited it was not open to the Election Tribunal to take them out of consideration because the copies have been exhibited without objection. He contended that the High Court had summoned the record and had found that the copies were available in the record and after having done that the High Court has failed to exercise its power by not relying on them.
153. He drew our attention to the fact that in the written statement there was a specific averment made by the present appellant that reports had been procured by the present respondent from the Presiding , Officer. This averment clearly acknowledges the existence of these reports. These reports are available on file and the High Court should have relied on them. It was contended by the learned counsel that it was not necessary for the present respondent to file cross-objection or appeal before the High Court to raise this point. He stated that the order of the Election Tribunal was in favour of the present respondent and he was within his right to support the order of the Election Tribunal even on grounds which are not enumerated in the order. He placed reliance on a judgment of the Azad Jammu and Kashmir High Court reported as Ghulam Oadir v. Mst. Alam Bibi (PLD 1958 Azad J&K 1) in which Abdul Hamid Khan, J. (as he then was) held that certificate mentioned in section 76 of the Evidence Act need not be in a particular form. The following observations contain the view of the learned Judge: "'The object of appending a certificate as required by section 76 of the Evidence Act is to ensure that it is a true copy. The requirements of the section would, therefore, be perfectly met, if there is an endorsement of the Officer issuing the copy which satisfies the Court that it is a true copy.
154. According to section 76 of the Evidence Act, a public officer who issues a copy has got to certify the copy as `true copy', but then it is not necessary that the certificate should be in a particular form. All that is required is that it must be a true copy of the original and there must be something to denote that it was so."
155. This judgment does not help the respondent because the two documents under reference do not contain any certificate or endorsement at all. These documents contain only the stamp, signatures and date and nothing beyond it. It is true that no form of certificate is prescribed by law but then the total absence of any word showing that the copy is true copy cannot be equated with a deficiency or defect so as to qualify the test laid down in the aforesaid judgment.
156. In light of the aforesaid analysis of law and facts of the case, we find no force in this appeal and order its dismissal without any order as to the costs.