' This is an election petition under section 52 of the Representation of People Act, 1976 (hereinafter referred to as the Act, 1976) challenging the result of election held on 3-2-1997 for the National Assembly Constituency NA-184 (Karachi West-I). As a result of such elections respondent No,10 namely Mian Ejaz Shafi was declared elected. The petitioner has prayed for the following reliefs:--- "(a) Declaring the result/notification of the election of NA-184 (Karachi West-I) held on 3-2-1997, as null and void and of no legal effect.
(b) Directing to hold fresh bye election by fixing a specific date for the same.
(c)
(d) ."
2. The facts, which are not in dispute are, that the number of registered voters in the said constituency was 3,70,761; that the said constituency was divided into 193 polling stations for the areas namely Mano Island, Baba Island, Shams Pir Island, Kemari, Sultanabad, Queens Road, Mauripur, Muhammadi Colony, Pak. Muslim Burma Colony, Pak Muslim Bengali Colony, Baldia Town, Sher Shah, Pathan Colony, Mianwali Colony; that the said constituency also comprises of the two Provincial Assembly Constituencies namely P. S-74 and 75 and some part of P.S-73; that in all there were 22 candidates who participated in the general elections on 3-2-1997; that the petitioner obtained 32,660 votes while the returned candidate got 35,451 votes and that by a margin of 2,783 votes respondent No,10 was declared elected. None of the respondents, except the returned candidate/respondent No,10 filed written statement despite service of notices issued by this Tribunal. Respondent No,10 filed his written statement denying allegations of the petition and in addition, he has raised several legal objections to the maintainability of this Election Petition. On 25-9-1997, after hearing the parties and after perusing their pleadings, following issues were framed by this Tribunal:---
(1) Whether the election petition is liable to be dismissed under section 63 for non-compliance of section 55 of the Representation of People Act, 1976?
(2) Whether this election petition is bad in law and not maintainable for non -joinder of necessary parties?
(3) Whether the instances of illegal and corrupt practices as alleged in paragraph 6 of the election petition were committed under the instructions of respondent No,10? If so, whether it materially affects the result?
(4) Whether the instances of illegal and corrupt practices as alleged in paragraph 7 of the election petition were committed by the staff of Election Commission, Returning Officer and his subordinates members of Local Administration and Law Enforcing Agencies in order to procure favourable result for the candidate of PML(N)?
(5) What is the effect of change of polling stations as mentioned in Annexure 'E' to the Petition?
(6) Whether the Local Administration and Law Enforcing Agencies have acted in a manner to deprive thousands of voters to exercise their right of franchies? If so, its effect?
(7) Whether petitioner is entitled to any relief? If so, up to what extent?
(8) What should the order be?"
3. I have heard Syed Jalil Hashmi, Advocate for the petitioner and Miss Masooda Siraj, Advocate for respondent No,10. I have also perused the pleadings of the parties and the evidence produced by them. Miss Masooda Siraj contended that this election Petition is liable to be rejected on the short ground that the petitioner has failed to specify the exact nature of illegal and corrupt practice; that the allegations of petitioner are vague and wild in nature and that even in the election matter a petitioner is required to prove the allegations beyond reasonable doubt and any benefit arising from the evidence of the parties must go to the returned candidate. She has referred to the cases Peter John Sahotra v. The Returning Officer and 24 others (1995 CLC 687), Badruddin and another v.
Muhammad Sarwar Kakar (1988 M LD 294) and Harchand Rai v. Manga Ram and others (1986 CLC 985). It is settled law that in election matters, in order to prove allegations of illegal and corrupt practices, the burden lies on the petitioner and that these allegations must be proved with such standard of proof as is required for proving a charge in a criminal trial. In Syed Saeed Hassan v.
Pyar Ali and 7 others (PLD 1976 SC 6), a Full Bench of Hon'ble Supreme Court held that the analogy of a criminal trial would hdld good in the matter of corrupt or illegal practices which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non commission of corrupt practices and that the benefit of doubt must go to the person against whom a corrupt and illegal practice is alleged. (For further reference, see Pir Matook Ali v. Rais Muhammad Usufi and 11 others (1986 CLC 1329), Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC 91) Muhammad Yousuf Khan Khatak v.
S.M. Ayub (PLD 1973 SC 160), Munsif Khan v. Sardar Haider Zaman and others (1986 CLC 1257), Mian Ghos Muhammad v. Syed Morad Ali Shah and others (1987 CLC 861) and the case of Dr. Muhammad Shafiq Boi Khan v. Hafiz Muhammad Taqi and 12 others (1986 MLD 2220(2)). The rule laid down by the Hon'ble Supreme Court in the case of Muhammad Saeed (supra) that a charge of a corrupt practice is a quasi-criminal charge and that in case of doubt raised upon the evidence, its benefit must go to the accused person is the very foundation for determination of an election petitions being tried before an Election Tribunal. With these guidelines, I intend to scrutinise the evidence of both the parties.
Issues Nos.1 and 2.
' Burden to prove both these issues lies on the petitioner. It was argued by Mrs. Masooda Siraj that vide section 55 of the Act, 1976 an election petition must contain a precise statement of material facts including full particulars that any corrupt or illegal practice or other illegal acts alleged to have been committed and since no specific instances of such corrupt or illegal practice were disclosed in the main petition, it is liable to be dismissed. In support of her contention, reliance was placed on the cases Muhammad Zahir Shah Khan and another v. Nasiruddin and others (1986 CLC 2463), Inayatullah Khan v. Haji Ghafoor Jadoon and others (1992 M LD 2540), Ihrar Khatak v. Mian Muzaffar Shah and others (1991 CLC 175), Tariq Mahmood Bajwa v. Muhammad Afzal Sabi (1994 CLC 1366) and Muhammad Azad Gul v. Said Muneer Said and 11 others (1997 CLC 1132). In the case of Muhammad Zahir Shah Khan (ibid) it was held by an Election Tribunal, which at the relevant time was being presided over by Justice Saeeduzzaman Siddiqui (now Judge of Supreme Court of Pakistan) that "there cannot be two opinions that the provisions of section 55 are mandatory in nature as under section 63 of the Act, 1976 it is provided that the Tribunal shall dismiss the election petition if the provisions of sections 54 and 55 have not been complied with".
5. In para. 6 of the main petition as well as in paras. 7 and 8, specific instances of illegal and corrupt practices are alleged not directly against the returned candidate but against the administration.
These allegations are of serious nature and, if accepted to be true, are sufficient material to constitute corrupt and illegal practices. However, it is easy to allege illegal or corrupt practice in an election petition but to prove the same is quite burdensome on the petitioner. Miss Masooda Siraj has vehemently argued that by virtue of section 68 of the Act. 1976, the petitioner was liable to show even in his petition that all such alleged illegal and corrupt practices were committed by the returned candidate or his election agent or by any other person with the connivance of the returned candidate or his election agent. I am afraid this submission is untenable as there is no such requirement under section 55. Clause (b) of subsection (1) to section 55 provides that the petition shall contain full particulars of any corrupt or illegal practice including a full statement, if possible, of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act with the date and place of commission. It is pertinent to observe that in clause (b), the term "as possible" is used which extends some more time to the petitioner to collect relevant facts even after filing an election petition. This provision is for the purpose of maintaining an election petition while section 68 is enacted for the purpose of deciding an election petition after recording of evidence. It provides the grounds for declaring election of a returned candidate void. t is observed that the burden on petitioner to specifically mention instances of illegal and corrupt practices while presenting an election petition is not so onerous at initial stage (vide section 55) but in order to unseat a returned candidate the burden would be the same as discussed in the earlier part of this judgment. (For any reference, see Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2118 at 2128). Therefore, in my considered view, petitioner has complied with the provisions of section 55 of the Act, 1976. However, respondent No,10 was not able to show how the petition was void for non joinder of necessary parties. The evidence of returned candidate is silent on this point as to who should have been joined in this proceeding but were left out by the petitioner. Accordingly, both these issues are answered in negative.
Issue No .3 .
6. In paragraph 6 of the petition, several allegations pertaining to illegal and corrupt practices are alleged. It is alleged that in the voter lists, for which specific references are made, no proper and complete addresses of voters were disclosed. In the end of paragraph 6, it was stated by the petitioner that in order not to burden the case file he is not filing copies of such voter lists and that copies of the same will be placed at the time of arguments. Neither during the examination of the petitioner, nor at the time of final arguments, such voter lists were produced. The burden was upon the petitioner to show that the voter lists were prepared under the influence of the returned candidate and against the objections raised by him. He has also not stated whether these voters, who are named in paragraph 6 of the petition, cast their votes. If so, in whose favour. The entire case of petitioner is silent on this material point. On the contrary, he has admitted in his cross- examination that, "it is correct that I did not challenge list of voters prepared to hold elections." It means that he contested the election on the same voters list and after loosing the same has turned around and is now challenging the same to be bogus, which act is not permissible in law. If there was any irregularity in the voter lists, he should have challenged the same before the start of polling. Accordingly, this issue is answered in negative.
Issue No,4.
7. It is alleged in paragraph 7 of the main petition that in order to deprive the petitioner from his lawful victory and in order to get favourable result for the returned candidate, a large number of Bengalis, Burmese and other illegal immigrants were registered as voters through illegal and unlawful means. It is claimed that such acts amount to illegal and corrupt practices. It is further alleged in paragraph 7 that some 2,280 voters were enlisted without proper addresses and by showing only Muhammadi Colony, Pak Muslim Burma Colony and Pak Muslim Bengali Colony as full addresses of these voters. Again, as discussed above, the petitioner was required to show, firstly, that these persons as mentioned in the voter lists were not eligible to become voters and, secondly, that their names were included with the active connivance of the respondent No,10. There is no such allegation in this paragraph. During his cross-examination he was confronted with Annexure 'H' filed with his petition, which was brought on record as Exh. 5/B which is a letter addressed by him to the Returning Officer on 4-2-1997 wherein he has requested for recount of the votes pertaining to the said constituency on the grounds that the results received by the petitioner from his polling agents do not match with each other. The petitioner, after looking at Exh.5/B admitted that he had not alleged any illegality or corrupt practice against respondent No,10. Again, no list of voters was filed either with the petition or during recording of evidence. All these circumstances lead me to hold that the petitioner has failed to prove this issue, which is again answered on negative.
Issue No,5.
8. In support of this issue petitioner has filed Annexure 'E' with his petition, which was brought on record as Exh.5/A. This is a notice issued to Kamran Jafferi, a candidate of P.S-75 by Mr: Jawaid Qaiser, Returning Officer for NA-184, P.S-73, P.S-74 and P.S-75, Karachi (West) through which he was informed that the District Returning Officer had made changes in the four polling stations. In paragraph 12 of his petition, it is claimed that the polling stations were changed at the eleventh hour which has caused serious and adverse effect on the results of the election. However, these allegations were not specifically levelled in the affidavits-in-evidence. It was simply mentioned that "for the sake of brevity the contents of the memo. Of petition be treated as integral part of this affidavit-in-evidence." Petitioner has admitted that the Constituency NA-184 comprise of two Provincial Assembly Constituencies namely P.S-74 and P.S-75 and also some part of PS-73. He has further admitted that from the Constituencies PS-74 and PS-75 candidates from his party namely Haq Parast Group won the elections for the Provincial Assembly. It was not explained by him that how the other two candidates of the Provincial Assembly won the elections, which was conducted on the same day despite changing of the polling stations, which according to the petitioner has caused loss of his elections. In such circumstances, burden was on the petitioner to explain these circumstances. Merely by saying that the polling stations were changed without giving further details and specifications is not sufficient. As held by Saleem Akhtar, J., (as his Lordship then was) in the case of Jamaluddin Shah v. Abdul Sattar and 13 others (PLD 1986 Journal 146) that, "mere breach of any provision of the Act or the rule is not sufficient to declare the election as a whole to be void". The petitioner is required to prove that due to such breach, the result of the election has been materially affected. Reliance was placed by the learned Judge on the cases Abdul Sattar Rana v. S.M. Zaidi and another (PLD 1968 SC 331), Abdul Rashid etc. v. Additional Commissioner etc. (1982 SCM R 833), Mian Ahmad v. Election Tribunal, Sargodha Division and another (PLD 1966 (W.P.)
Lahore 839) and Abdul Quddus Khandker v. The Election Tribunal and Additional Deputy Commissioner, Bogra and others (PLD 1966 Dacca 604). In the case of Abdul Rashid (Supra), one loosing candidate challenged the election of Local Council for Tehsil Tobatek Singh, District Faisalabad, on several grounds including that due to wrong delimitation of the Union Council, the petitioner had lost election. The leave to appeal was refused by the Hon'ble Supreme Court and the order of Lahore High Court dismissing writ petition was up-held. It was held, inter alia, that "keeping in view the nature of this irregularity, especially the one relating to the 'delimitation' of the constituency we feel that although the learned Election Tribunal had not repeated the formula mentioned in section 15, the defect is merely technical one." It was further held by the Hon'ble Supreme Court that the petitioner was required to show that the irregularities committed in the said election had materially affected the result of the election.
9. As a result of the above discussion, I am of the considered view that the change of the polling stations has not materially affected the election results.
Issue No,6.
10. There is no direct allegation of any specific instance in the body of petition which may indicate that any member of local administration or law enforcing agency has acted in a manner through which thousands of voters were deprived of their right of franchise. In paragraph 3 of the affidavit- in-evidence (Exh.5) vague and wild allegations were raised which reads as follows:--- "3. That I say that gross irregularities including corrupt and illegal practices have been committed by the subordinates of the Returning Officer, Presiding Officer and his subordinates, staff of the Election Commission, members of the Local Administrations, their officials and subordinates, members of the law enforcement agencies, their officers and subordinates, the returned candidate, his workers and supporters. I further say that these irregularities have been committed at such a mass scale that the very purpose of holding national elections in the said constituency has been frustrated and the election results notified by the Election Commission have become null and void and of no legal effect."
11. There is no cross-examination from the respondent denying the said allegations. The lapse on the part of respondent No,10 will not amount to admission. In order to discharge the burden of proof, the petitioner was required to give more details, say, names of those officers who were involved, their alleged acts of corrupt and illegal practices with date and time. I am of the considered view that this is not sufficient to prove allegations that thousands of voters were deprived of their right to cast their votes. The petitioner was not able to produce even a single witness who could have said that he was prevented by any of the agencies from casting his vote.
This issue is answered in negative.
Issues Nos.7 and 8.
12. As a result of above discussion, the petitioner is not entitled for any relief and accordingly this petition is dismissed. A copy of this judgment be forwarded to the learned Election Commissioner as provided under section 72(1) of the Act, 1976 alongwith the original record.
Election .