1. ' JAVED IQBAL, J.---This is an Election Petition preferred on behalf of Izhar Hussain Khoso (Petitioner) under sections 52, 53, 54 and 55 of the Representation of the People Act, 1976 (hereinafter referred to as the Act), calling in question the Election and Notification issued by the Election Commission of Pakistan whereby the Returned Candidate namely Mir Faridullah Jamali (respondent No,9) was declared successful and notified as Returned Candidate from the Constituency NA-203 Jaffarabad-cum-Nasirabad with the following prayer:- ' "It is accordingly, therefore, in view of the above respectfully prayed that the election of Faridullah Jamali respondent No,9 may very kindly be declared as void and the petitioner be declared as duly elected Member of the NA-203 Constituency.
2. ' Another relief which is deemed fit and proper in the circumstances of the case may kindly be granted in the interest of justice."
2. Briefly stated the facts of the case are that petitioner contested election from the said Constituency as Nominated Candidate of the Balochistan National Party and according to the initial count of votes it was declared by the concerned authorities that the petitioner has won from the Constituency in question and it was announced by Pakistan Television on 4th February, 1997 at about 6-30 a.m. The said information was also confirmed by Deputy Commissioner, Jaffarabad to the Petitioner, but on 4th February, 1997 Pakistan Television regretted regarding announcement made earlier and Mir Fareedullah Jamali (respondent No,9) was announced as successful candidate. It is also she case of petitioner that on 9th February, 1997 official counting consolidation statement of result was conducted in his absence and his counsel namely Narain Dass, Advocate who visited the office of Returning Officer for the purpose of counting, who refused the request on the ground that it could have been done only, at the direction of Chief Election Commissioner.
3. According to petitioner bogus voting took place in the following Polling Station where the Presiding Officers at their own carried out the entire exercise by putting fictitious Identity Cards numbers on ballot papers which were counted in favour of the Returned Candidate:-- ' Polling Station .. .. Civil Dispensary Baghtail (Male)
4. ' Polling Station .. .. Union Council Office Karya Fari Beghtail (Female)
5. ' Polling Station .. High School Gandakha (Male) , Polling Station .. .. Govt. Middle School Gandakha (Female) Polling Station .. .. Dispensary Manderkot
(Male) Polling Station .. .. Primary School Manderkot (female) Polling Station .. .. Dispensary Jaffarabad (Male) Polling Station .. .. Primary School Jaffarabad (Female) Polling Station .. ..
6. Irrigation Bungalow Bagh Head (Male) Polling Station .. .. Primary School. Bagh Head (Female)
7. ' Polling Station .. .. High School Usta Muhammad (Male). Polling Station .. .. High School Hag Baho Usta Muhammad (Male) Polling Station .. .. Girls High School Usta Muhammad (Female) Polling Station .. ..
8. ' Primary School Usta Muhammad (Female) Polling Station .. . High School Boys Dera Allah Yar
(Male) Polling Station .. ..Girls High School Dera Allah Yar (Female) Polling Station .. .. High School Abdul Nabi Dera Allah Yar (Male)
9. ' Polling Station .. P.S. Hussain Bux Gola Dera Allah Yar (Female)
10. ' Polling Station .. .. High School Rojhan (Male)
11. ' Polling Station .. .. Primary School Girls Rojhan (Famale)
12. ' Polling Station .. .. Cattle Form Office (Male)
13. ' Polling Station .. .. Primary School Cattle Form (Female)
14. ' It is also stated that at the instance of Mir Zafarullah Jamali the then Care-Taker Chief Minister (father of Returned Candidate), the Sub-Divisional Magistrate and Naib-Tehsildar Chattar created harassm ent among the voters of petitioner and subsequently Chief Minister directed the executive staff of the Polling Station including Sub-Divisions Magistrate and Nabi-Tehsildar that nobody should be allowed to cast his vote within the premises of Polling Station mentioned herein below and if any voter attempts to cast his vote he should be arrested and in order to implement the said directive the tracker was also asked to sit there and take foot prints of those voters who violate the above said direction and resultantly no voter could cast his vote in favour of the petitioner:-- ' Polling Station .. .. Govt. High School Chattar (Male) Polling Station .. .. Civil Dispensary Chattar (Female)
15. ' Polling Station .. .. Govt. Primary School Wazirani Combined. Polling Station .. .. Govt. Primary School Kunri Combined. Polling Station .. .. Govt. Primary School Thairkot Combined. Polling Station .. .. Govt.
16. Middle School Korar Combined. Polling Station .. .. Govt. High School Pulaji, Combined.
17. ' It is further averrred that on 2nd February, 1997 Mir Zafarullah Jamali, the then Care-Taker Chief Minister visited Constituency NA-203 and supplied he specimen of a slip to the Presiding Officers with the direction that only the nearer of such slip having the photograph of Mir Fareedullah Jamali should be allowed to cast their vote and about 4000 votes were cast by following the said lirective which resulted in success of Mir Fareedullah Jamali. It is also stated hat the Chief Minister arranged 200 official vehicles of the Government of Balochistan which were utilised in the election compaign and on the Election day he voters were brought in the said vehicle for the purpose of casting their votes a favour of Mir Fareedullah Jamili, and, thus, the then Chief Minister ommitted illegal and corrupt practice violating the provision of Election Laws. t is also stated in the petition that all the Polling Bags were taken to the house f Deputy Commissioner by the Presiding Officer and the Administrative staff ubordinate to the Chief Minister of Balochistan including Superintendent of Police, Deputy Commissioner, S.D.M., Tehsildar, Local Government Staff of the Provincial Government started bogus voting in the presence of the then Chief 4inister and resultantly Mir Fareedullah Jamali was declared as Returned 'andidate from Constituency NA-203 by a lead of 5334 votes by securing 18703 otes while the petitioner obtained 13369 votes. The said lead was obtained due ) bogus voting by obtaining fictitious thumb-impression on the Ballot Papers in 11 139 Polling Stations. It is further stated that the following voters were disallowed to cast their votes:--
(1) Nazer Muhammad son of Gul Muhammad.
(2) Inamuddin son of Nazer.
18. (3), Gul Muhammad son of Nazir Muhammad.
(4) Vato alias Lamz son of Gosho.
(5) Eisa Khan son of Musa Khan.
(6) Khan Muhammad son of Thara Khan.
(7) Saleh Muhammad son of Thara Khan.
(8) Muhammad Saleh son of Ghulam Muhammad.
(9) Mst. Lal Khatoon wife of Nazer Muhammad.
(10) Mst. Sher Bibi wife of Gul Muhammad.
(11) Mst. Noor Bhari wife of Muhammad Panah.
(12) Abdul Wahab son of Muhammad Ismail. (13) Jankel son of Sain Dad. (14) Mst. Izzat Khatoon wife of Gul Muhammad.
19. ' The petitioner is also aggrieved that his Election Agent namely Ghulam Yasin was stopped to enter the following Polling Stations:-- ' Civil Dispensary Beghtail (Male)
20. ' Union Council Officer Karya Fari Baghtail (Female) High School Gandakha (Male)
21. ' Government Middle School Gandakha (Female) Girls High School, Usta Muhammad (Female)
22. Primary School Usta Muhammad (Female) Dispensary Jaffarabad (Male)
23. ' Primary School Jaffarabad (Female)
24. ' By the Local Administration but later on when he managed to reach the Polling Stations he found that Presiding Officer was casting bogus votes in favour of Mir Fareedullah Jamali and the voters of petitioner were not allowed to cast their vote on the pretext that their names were not available in the Electoral List and besides that the Polling Staff was canvassing in favour of Mir Fareedullah Jamali and so much that one of the supporters of the petitioner namely Haji Ali Mardan Khan Jamali was kept under detention and put to prison on the ground that he refused to support Mir Fareedullah Jamali. The petitioner being aggrieved sent Fax Messages to the Chief Election Commissioner. The President of Pakistan, Care-Taker Prime Minister, Government of Balochistan and Provincial Election Commissioner Balochistan to the effect that the then Chief Minister be refrained from using his official sources for his son, but with no avail. It is also mentioned that Mir Fareedullah Jamali at the instance of his father .Mir Zafarullah Jamali commited illegal and corrupt practices and his father also mis-used his official capacity being chief-Minister who also got published an Election Poster for Mir Fareedullah Jamali from Syed Colour Printers, Jacobabad and, thus, fareedullah Jamali succeeded on the basis of illegal and corrupt practices regarding which an application was as also submitted to the Returning Officer on 3rd February, 1997 with the signatures of all Contesting Candidates with specific allegation that illegal and corrupt practice was being committed in the Constituency NA-203, but effective step for their redressal were not taken. It is also pointed out that Assistant Presiding Officer namely Sikandar All son of Mohabbat Khan Magsi for Polling Station Goth Ghaffar Khan was thrown out from the Polling Station forcibly and despite his best efforts he was not allowed to perform his routine functions by Mir Jan Muhammad Jamali, who was a Candidate from PB-20. ' It is also one of the grievances of the petitioner that in various Polling Stations the details whereof is mentioned hereinabelow, the results of Election were given by the Presiding Officers on Plain papers without having signatures or thumb-impressions of the Presiding Officers and there is also difference of votes in between the result provided on plain paper and that of final consolidation statement:-- ' Polling Station .. (Yar Muhammad)
25. ' Polling Station .. Naser Khan ' Polling Station .. .. Muhammad Bakhsh Palyani ' Polling Station .. Goth Sohrab Khan ' Polling Station .. Rojhan )
26. ' Polling Station .. .. Abdul Nabi Polling Station .. Tahir Goth)
27. ' Polling Station .. Qarar ' Polling Station .. Behram Khan Buledi ' Polling Station Behram Khan Buledi.)
28. ' Polling Station .. Kurar ' Polling Station .. .. Abdul Rehman Sher Polling Station .. Akbar Khan Umrani Polling Station ....Ahmed Abad ' Polling Station .. Sohbat Pm.)
29. ' Polling Station .. Adam Pur ' Polling Station .. Dilmurad Gola ' Polling Station .. Rojhan Jamali ' Polling Station .. Majo Shori)
30. ' Polling Station .. Haji Moula Bakhsh Punjrani ' Polling Station .. Waziran ' Polling Station .. 6 Muhammad Rahim Polling Station .. Abdur Rehman Sher. Polling Station Imam Bakhsh Hijwani)
31. ' Polling Station Cattle Farm)
32. ' Polling Station . C. Ahmed Abad.
33. ' Polling Station .. Zulfiqarabad.
34. ' Polling Station .. Baghatail ' Polling Station .. .. Shaheen Khan.
35. ' Polling Station .. Dera Allah Yar.
36. ' Polling Station .. .. Muhammad Baldish.
37. ' Polling Station .. Qadirabad.
38. ' Polling Station .. .. Rindli.
39. ' Polling Station .. .. Abdul Rashid.
40. ' Polling Station .. Sikandarabad.
41. ' Polling Station .. Khairdin.
42. ' Polling Station .. .. Muhammad Rahim Mengal.
43. ' It is stated that on account of void, illegal and corrupt practices committed by Officers, subordinate to the Election Commissioner, as well as Officers subordinate to the then Acting Chief Minister of Balochistan, the petitioner was defeated in spite of the fact that initially he was declared as a successful candidate from Constituency NA-203.
3. Mr. Zaheer-ud-Din Kakar, learned Additional District and Sessions Judge, Usta Muhammad/Returning Officer, who has been impleaded as respondent No, 1, and also showed as witness in the list of witnesses submitted by petitioner has furnished his written statement by repudiating all allegations with specific denial that no announcement regarding the win of the petitioner' was announced by Pakistan Television on 4th February, 1997 and moreso, the information of Deputy Commissioner, Jaffarabad in this regard carries no value as he does not figure in so far as the announcement of result is concerned. It is mentioned that the official counting consolidation statement of the result was prepared in presence of petitioner and his counsel after issuance of proper notices as required under the relevant provisions of law, and on the day of consolidation the petitioner remained present alongwith his counsel Mr. Narain Dass D.
44. Kapoor, Advocate, which negates the version that consolidation was made in absence of petitioner. On the question of bogus voting it is stated that no complaint was made to the authority concerned in writing as such at this belated stage such objection could not have been raised. The said grievance was never brought to the notice of Election Commission and no complaint in this regard was made in writing meaning thereby that petitioner had nothing to complain regarding casting of bogus voting. It is denied that any official vehicle pertaining to Government of Balochistan was used in the Election compaign and no complaint was lodged by petitioner or any other contesting candidates or some one else in his behalf for the reasons that it was totally baseless allegations. It is also mentioned in crystal clear manner that no complaint regarding taking away the Polling Bags after closing of the Polling to the house of Deputy Commissioner by the Presiding Officers was ever made upto the consolidation of statement of result and the Presiding Officers brought all the Polling Bags from the Polling Station after compilation of result without any delay hence the question of any malpractice does nbt arise. It is submitted that insofar as the allegation that certain persons were disallowed to cast their vote it is mentioned that no protest or timely complaint was made by the persons concerned to the Presiding Officer of the Polling Station as provided under the relevant election laws, and therefore, It can be inferred that it is an afterthought allegation. In so far as application made jointly by all the contesting Candidates is concerned it is submitted that only allegation regarding delay in providing of ballot-papers by the Polling Officer to the voters was alleged which hardly warrant stopping poll in the entire Constituency which was not possible as by that time the Polling was almost over and the casting of votes throughout NA-203 reached its logical conclusion in all very peaceful smooth and lawful manner. It is stated that in the said application no allegation regarding using of 200 official vehicles, disallowing of voters to cast their votes, visiting of Caretaker Chief Minister, distribution of specimen slip by Chief Minister and all other misconceived allegations levelled now by way of this petition were mentioned and as such no importance can be given to such imaginary and afterthought allegations. It is stated that the concerned Presiding Officers have submitted their respective consolidation result on prescribed printed form duly signed by them and as such no illegality whatsoever has been committed. It is lastly submitted that the petition is without lawful force, void in the eyes of law and has nothing in itself to merit decision as into miscarriage of justice has been done because no Election Laws and relevant Articles of the Constitution of Islamic Republic of Pakistan have been violated, hence this petition merits dismissal in the greater interest of justice and rule of law.
4. Mir Fareedullah Jamali (Returned Candidate) has filed his written statement repudiating all the allegations and raised various Preliminary Objections pertaining to maintainability of this Election Petition being devoid of merits and without any substance or specific role attributed to him. It is replied that general allegation has been levelled against Sub-Divisional Magistrate, Naib-Tehsildar Chatter without mentioning their names and allegations raised against Mr. Aslam Shafi, S.H.O.
45. Police Station Gandakha and other Police Officials but have not been impleaded and as such the allegation hardly need any consideration. It is further submitted that the learned Returning Officer (respondent No, 1) has denied all the allegations levelled which may be taken into consideration. It is also objected that in so far as the allegation regarding bogus voting in presence of then Chief Minister with further allegation of fictitious Thumb-Impression in all 139 Polling Stations is concerned, neither the Presiding Officers nor Deputy Commissioner, Superintendent of Police or other official have been impleaded as respondents therefore, the allegations are liable to be struck of being scandalous and embarrassing. It is mentioned that no bogus voting whatsoever was made by any of the Presiding Officer whose names were not mentioned but it was alleged that fictitious National Identity Cards numbers on the Ballot Papers were put by them and votes were casted in favour of Mir Fareedullah Jamali. It is further pointed that all the serious allegations have been levelled against Mir Zafarullah Jamali, who is father of Returned Candidate and is not before the Tribunal to defend himself and the entire petition revolves around him meaning thereby that nothing illegal was done by the petitioner as the factum of connivance which is essential to prove corrupt practice is lacking. It is stated that the petition is liable to be dismissed as it does not disclose any cause of action and further it is in violative of the provisions as contained in section 63(a) read with section 54 (b) of the Act. It is explained that the allegation that illegal and corrupt practices were committed by subordinate official of Election Commission and Care-taker Chief Minister without even nearly stating that the same was with connivance of the Returned Candidate or his Election Agent cannot be considered for want of any cause of action against Mir Fareedullah Jamali. It is denied that petitioner was ever announced on Pakistan Television Transmission as Returned Candidate. All other allegations such as that consolidation statement was prepared in absence of petitioner or his representative, bogus voting in various Polling Stations, direction from the Chief Minister to executive staff not to allow any voters within the premises of the Polling Stations to cast vote in favour of petitioner, and direction to tracker by Chief Minister for taking foot prints of the voters, direction to the presiding Officers that no voter should be allowed to cast his vote without having specimen slip with photograph of Mir Fareedullah Jamali, casting of 4000 votes on the basis of specimen slip, use of official vehicle, afffixation of fictitious Thumb Imperssion at all 139 Polling Stations by the voters, non-allowing of casting vote to certain persons, forcible removal of Ghulam Yasin Election Agent, and casting of bogus voting by any Presiding Officer. It is submitted that regarding application allegedly submitted by all the candidates is in fact a managed document as the same were got signed by the candidate who were contesting election for Provincial Assembly and otherwise being political rivals no importance can be attached to such application and besides that contents of the application were not proved by producing the applicants. Any misbehavior with Sikandar Ali Magsi, Assistant Presiding Officer of Goth Ghaffar Khan has been repudiated strongly who himself admitted in his affidavit that Mr. Jan Muhammad, Khan Jamali remained incurious and rude to him who in fact himself was a candidate having no concern with Returned Candidate. In the end it is stated that no illegal or corrupt practice whatsoever has been committed either by the Returned Candidate or his father who was the then Care-taker Chief Minister or any of the Government functionaries.
46. ' After having indepth scrutiny of the petition and written statement filed by Returned Candidate and Returning Officer the following issues were framed:-
(1) Whether the respondent No,9 has procured or induced the result of Election of NA-203 Nasirabad by any corrupt or illegal practice as enumerated in section 68(1)(c)(d) of the Representation of the People Act, 1976? If so to what effect. (O.P.P.)
(2) Whether respondent No,9 has procured/induce the result of NA-203 in violative of the provisions as contained in section 70(a)(b) of the - Representation of the People Act. 1976? If so to what effect (0.P.P )
(3) Whether the respondent No,9 has been declared elected on the basis of bogus, illegal and invalid votes? If so to what effect. (O.P.P.)
(4) Whether official counting and consolidation of result was made in absence of the petitioner? If so to what effect.(O.P.P.)
(5) Whether Election Result was determined by massive rigging of all the administrative staff of the Chief Minister including Superintendent of Police, Deputy Commissioner and Sub-Divisional Magistrate at the direction of the then Chief Minister? If so what effect. (O.P.P.)
(6) Whether the petitioner's supporter Haji Ali Mardan Khan Jamali was detained in prison on his refusal to support the winning candidate? If so to what effect. (O.P.P.)
(7) Whether the Election Petition is liable to be dismissed under section 63 (a) of Representation of the People Act, 1976 for non-compliance of section 54(b) for non impleadment of persons accused of corrupt and illegal practices or other Election Offences? If so to what effect. (O.P.P.)
(8) Whether the petitioner is entitled for the relief claimed in the petition and does it disclose any cause of action against the respondent No, 9? (O.P.P.)
6. The petitioner produced Sikandar All (P.W.1) lmtiaz Tajwar (P.W .2.) Qadir Bakhsh (P.W.3), Retired Colonel Muhammad Hash= (P.W .4), Saleh Muhammad (P.W .5), Muhammad Saleh (P.W.6), Khan Muhammad (P.W.7), Abdul Wahab (P.W .8), Gul Muhammad (P.W .9), Imam Din (P.W.10), Jonkal (P.W. 11), Ghulam Yasin (P.W.12), Mst. Sher Bibi (P W 13.), Mst. Noor Bhari (P.W .14), Abdul Qayyum (P.W .15) and petitioner also got recorded his own statement as P.W.16. Mr Kanwar Muhammad Dilshad, Provincial Election Commissioner, Balochistan got recorded his statement as Court-witness. In rebuttal the Returned Candidate produced Muhammad Akbar (R.W .1), Gul Muhammad (R.W. 2), Muhammad Wariam (R.W. 3), Saeed Ahmed Nomani (R W.4) and also got recorded his own statement as R.W.5
7. It is mainly contended by Sardar Abdul Lateef Khoso, Advocate duly assisted by Mr. Muhammad Riaz Ahmed, Advocate, on behalf of petitioner that in fact Mir Fareedullah Jamali is 'Benami' candidate on whose behalf the entire election campaign was organized and run by his father namely Mir Zafarullah Jamali, the then Care taker Chief Minister who exerted and channelised all the resources available to him in his capacity as Chief Minister to win the Election at any cost. It is urged with vehemence that since Mir Zafarullah Jamali could not contest election himself as he opted to become Chief Minister having a Limited period, he brought his son in the limelight and gave him full projection by misusing his, official position including rigging at massive scale, use of official vehicle, extension of threats, unlawful detention of supporters of petitioner forcible removal of Election Agents of the petitioner and use of fake National Identity Cards as according to Sardar Abdul Lateef Khoso, Advocate the Government functionaries could not be done to act against the wishes of the then Chief Minister and interest of Mir Fareeullah Jamali and therefore they were determined to get him 'Win' at any cost irrespective of its consequences in view of the influence of Chief Minister and, thus, Mir Fareedulah Jamali used official influence and availed Governmental patronage and as such he is guilty of undue influence' as envisaged under section 81 and illegal practice under section 83 of the Act and consequently the election may be declared as a whole to be void as provided in Section 68 read with Section 70 of the Act. It is also contended that specific allegations were not only levelled (paras. 4, 5, 6, 7, 8, 13, 14, 15, 16, and 17) in the petition, but also proved by producing cogent and concrete evidence and Commissions report is also support the massive rigging illegal and corrupt practice and glaring irregularities benefit whereof may be given to petitioner. It is lastly contended that in view of peculiar circumstances of the matter, where election was contested by a Chief Minister on behalf of Dummy candidate' deviation can be made from the well entrenched legal position that charges/accusation concerning illegal and corrupt practice must be proved beyond shadow of doubt and heavy onus lies on the petitioner for doing the needful. In other words in his view the benefit of doubt in such like cases should be given to petitioner by declaring the election as void. In order to substantiate his view point he referred the following authorities:-- 1996 SCM R 426. PLD 1989 SC 760. 1996 SCM R 1455. PLD1990 FSC 1. PLD1995 SC 43. 1996 SCMR 101. PLD 1995 KAR.1.
47. 1996 SCM R 605. PLD 1989 SC 396
8. Chaudhary Muhammad Farooq, learned counsel by assisted by Mr. Muhammad Aslam Chishti, Advocate appeared on behalf of Fareedullah Jamali and strenuously controverted the view point as portraited by Sardar Abdul Lateef Khoso, Advocate on behalf of petitioner and contended that the petitioner failed miserably to substantiate the allegations as levelled against the Returned Candidate and no cogent or concrete evidence could be led to prove that any corrupt or illegal practice was committed by the petitioner or with his connivance. In order to further elaborate the said main contention all the issues framed were discussed alongwith evidence produced by the petitioner which according to Chaudhary Muhammad Farooq was quite insufficient being vague to discharge the onus. In this regard Section 68(2) of the Act was referred whereby consent or connivance of the Returned Candidate was to be proved about the commission of alleged illegal and corrupt practice. It is urged with vehemence that the entire petition and alleged allegations revolves around Mir Zafarullah Jamali who is father of the petitioner and no direct allegation for commission of corrupt or illegal practice was levelled against Fareedullah Jamali and amazingly Mir Zafarullah Jamali has not been impleaded as a party and, thus, he should not be condemned unheard and no verdict can be given in his absence. It is also contended that being Chief Minister and executive head of the Province it was bounded duty of the Care-taker Chief Minister to see that law and order situation in the Province was in order so that election could be held in a peaceful manner, he visited the entire Province and during visit to the constituency concerned no direction was ever given to Government functionaries to assist the election campaign of Mir Zafarullah Jamali. He also referred Article 218 (3) of the Constitution of Islamic Republic of Pakistan.
48. It is also pointed out that family of Mir Zafarullah Jamali has its own political background since time immemorial in the area and this was not the first win and as such it was not something unusual. It is urged with vehemence that onus of an Election Petition is as heavy as in the case of criminal charge which must be proved to the hilt and benefit of all the doubts must be given to the Returned Candidate not as matter of grace but as of right. It is argued that Returning Officer has been impleaded as party but after seeing his written statement/rejoinder whereby it was stated in crystal clear terms that the elections were conducted in free, fair and impartial manner. He was not produced as a witness in spite of fact that his name was included in the list of witnesses furnished by the petitioner and subsequently an application was moved for deletion of his name. Chaudhary Muhammad Farooq, the learned counsel for Returned Candidate has referred the following authorities in support of his respective contentions:-- PLD 1976 SC 6 PLD 1957 SC 91.; 1995 CLC 820.; 1985 SCM R 365; 1988 CLC 728.; 1990 CLC 674.; 1988 M LD 294; 1986 CLC 1329.; PLD 1958 SC 333 1986 M LD 2143.
9. I have carefully examined the respective contentions as adduced on behalf of petitioner and for Returned Candidate in the light of relevant Provisions of Election Laws, Constitution and record of the case. Before dilating upon the controversy and dealing with the issues it seems advisable to keep in view the "principles governing the appreciation of evidence and requisite standard of proof in cases where election is challenged on the ground of commission of corrupt or illegal practices.
49. The burden of proof is upon the Petitioner who challenges the election on such grounds. The illegal or corrupt practice should be proved by clear, cogent and convincing evidence without any reasonable doubt. No finding can be given on surmises and conjectures and standard of proof should be as required of a charge in a criminal trial. Where there is any doubt the.Benefit must go to the accused persons. Reference can be made to PLD 1957 SC (Pak.) 91 + PLD 1973 SC 160 + PLD 1986 SC 6. It seems proper to mention certain well-entranced principles governing trial of Election Petitions which runs as follows.-- ' "Where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively. Proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the Commissioners before finding a corrupt practice proved must exclude all reasonable hypothesis which are consistent with that corrupt practice having not committed."
50. ' In the light of abovementioned principles I intend to discuss the evidence which has come on record to examine as to whether the petitioner succeeded in substantiating the allegatiOn levelled in the petition or otherwise? I intend to discuss issues Nos. 1 to 5 simultaneously as it mainly revolves around the illegal an corrupt practice. Sikandar Ali (P.W.1) has stated in his affidavit that he was posted as Assistant Presiding Officer at Goth Ghaffar Khan Jamali Polling Station when Mir Jan Muhammad Jamali, a Candidate of Provincial Assembly (PB-20 Jaffarabad) visited the Polling Station and made objection in writing regarding his appointment and in spite of protest he was not allowed to get inside the Polling Station and Sanaullah Jamali, Presiding Officer asked the voters to vote for Jan Muhammad Jamali whose election symbol was Railway Engine. A bare perusal of his deposition would indicate that his main grievances are against Jan Muhammad Jamali who was a candidate for PB-20 Jaffarabad. He uttered not only a single word against Fareedullah Jamali and no role whatsoever was assigned to him. The illegal or corrupt practice if committed by Nisar Ahmed Jamali, Presiding Officer at the behest of Jan Muhammad Jamali who himself was a candidate cannot be taken into consideration. The statement of Sikandar All (P.W.1) hardly renders any assistance to the case of petitioner and as such it deserves no consideration. A question was asked to Sikandar Ali (P.W.1) as to whether any complaint was made by him regarding the incident to which he replied that "I did not lodge any complaint when I was ousted from the premises. At opportune movement instead of filing any complaint he remained mum. Even otherwise as mentioned earlier his statement is silent regarding Fareedullah Jamali and as such cannot be taken into consideration. Mr. Imtiaz Tajwar, Additional Home Secretary (P.W. 2) stated regarding the details of Tour Programme of Mir Zafarullah Jamali, the 'then Care-taker Chief Minister and explained that he visited Adam Pur, Sohbat Pur, Usta Muhammad, Gandakha, Jhat Pat City, District Jaffarabad, District Nasirabad and Thul (Sindh Province). He deposed that Mir Zafarullah Jamali did not visit any Polling Station during his presence, but being Chief Minister he discussed law and order situation prevalent in the area with the Commissioner District Nasirabad and Superintendent of Police Jaffarabad in his presence. A careful scrutiny of his deposition would show that Chief Minister visited certain areas but he did not visit any Polling Station and besides that no direction whatsoever regarding the election of Mir Fareedullah Jamali was given by him. It is pertinent to mention here that Imtiaz Tajwar (P.W.2.) mentioned nothing about Mir Fareedullah Jamali or any corrupt or illegal practice committed by any one. Qadir Bakhsh (P.W. 3) has stated that during election period he was posted as Superintendent of Police District Jaffarabad and visited the area and details whereof were available in the office of Deputy Commissioner. He, however, mentioned specifically that Mir Zafarullah Jamali visited Jaffarabad on first occasion on 6-1-1997-and stayed there on 7th/8th of January, 1997 and left Islamabad/Karachi on 9-1-1997 and proceeded to Quetta on 14-1-1997. He again visited Jaffarabad on 27-1-1997 and thereafter, left for that to attened some dinner and came back on the same day. It is further deposed that Mir {{PAGE CUT IN BOOK}} ' Zaffarullah Jamali stayed there with effect from 31-1-1997 to 1-2-1997 and let on 2-2-1997 to participate in NDFC Award and then returned on the same da: and stayed at Jaffarabad with effect from 1-2-1997 to 5-2-1997. It is to be notei that he mentioned about the touring of Mir Zafarullah Jamali and said nothini regarding his involvement in the Election compaign of Mir Fareedullah Jamali He did not say that this tour was got arranged by Mir. Zafarullah Jamali and I was so done to protect his interest. Mr. Muhammad Hashim, Secretary SAS GAD, (P.W.4) stated that S&GAD and that of Chief Minister Secretariat wen two different entities having their own domain of jurisdiction and as such h was not aware regarding his Tour Programme. Saleh Muhammad (P.W.5) ha deposed that he was enrolled at Serial No,284 in Electoral List pertaining t, Chartar and on 2-2-1997 he was directed by Nisar Ullah, Sub-Divisiona Magistrate Chattar and Gohar Magsi Tehsilder that nobody would cast his vot on 3-2-1997. He further deposed that on 3-2-1997 when he proceeded toward Polling Station for casting his vote he was stopped at the distance of 1-1/: Kilometer away from Polling Station by the said S.D.M., and Tehsilda through Levies Personnel who did not allow him to go ahead. It is furthe stated that the persons available were directed to make a queue and foot print were taken and four persons were arrested. He deposed that subsequently he wa allowed to go and when he attempted to cast his vote, the Presiding Officer di, not allow him to cast his vote as he could not show the slip having photograp] of Mir Fareedullah Jamali and resultantly he could cast his vote. He wa subjected to cross-examination and while answering one of the questions h amazingly said that 'he made complaint against Jamali whose name he does nc remember'. He, however, subsequently said that his name is Mir Zafarulla Jamali. He showed his ignorance as to whether the name of Mir Zaffanillla Jamali was mentioned in his affidavit or otherwise? He clarified that he made complaint only against Jamali and not against Assistant Commissioner or Sub Divisional Magistrate. He could not mention the name of those persons wh, were arrested by Sub- Divisional Magistrate and Tehsildar after taking their foc prints. He could not tell as to who was the Assistant Commissioner by whom h got attested his affidavit. He also mentioned that he was stopped by a Polio Constable at a distance of 100 Furlong from Polling Station. He concede frankly that he had not met the Presiding Officer. He stated that he lodged complaint before Assistant Commissioner that he was not allowed to cast hi vote against Jamali's men only. A careful perusal of his affidavit and cross examination would indicate that no allegation whatsoever has been levelle against Fareedullah Jamali. No specific allegation pointing out that what sort o corrupt or illegal practice was committed by Mir Zafarullah Jamali has bee mentioned. His statement is self- contradictory, inconsistence and not I accordance with his affidavit. He could not mention the names of even thos persons who were allegedly arrested by Sub-Divisional Magistrate an Tehsildar. He has stated that a complaint was filed that he was not allowed t cast his vote but it is to be noted that it was neither against Divisions Magistrate and Tehsildar nor Mir Fareedullah Jamali and Mir Zafarullah Jamai was also exonerated but was filed only against Jamali's men. He could not explain what were their names, who they were and as to whether they had acted at the behest of Mir Fareedullah Jamali or any direction was given to them by Mir Zafarullah Jamali with connivance of Mir Fareedullah Jamali. His statement being vague,hardly renders any assistance to the case of petitioner Muhammad Saleh (P.W.6) has toed the line as formulated by Saleh Muhammad (P.W.5) and there is hardly any difference in between their affidavits which were reduced in writing by one person with similar handwriting and on the same date. It is worth while to mention here that there is no allegation against Mir Fareedullah Jamali he could not mention as to by whom he was stopped from casting his vote. His statement is self-contradictory and it appears that he has not portrayed the true version. He has stated in a categoric manner that he was unaware regarding the contents of affidavit got reduced by a Petition Writer. In such view of the matter his statement deserves no consideration at all. At first instance he said that Saleh Muhammad (P.W.5) was alongwith him at the time when the affidavit was written but subsequently said that he was not known to him. There is no instance of any corrupt or illegal practice committed by Mir Fareedullah Jamali or with his connivance Khan Muhammad (P.W.7) has also followed Saleh Muhammad (P.W.5) and Muhammad Saleh (P.W.6) and there is absolutely no difference among their version. He has made it clear that he was having absolutely no complaint regarding Mir Zafarullah Jamali. No complaint was made against Mir Fareedullah Jamali. It would not be out of place to mention here that Khan Muhammad (P.W.7) and Saleh Muhammad (P.W.5) are real brothers. He admitted that he was unaware as to whether the contents of his affidavit were correct or otherwise, I have no hesitation in my mind to hold that his statement is vague, sketchy and while standing in the witness-box he could not mention that what were his allegations against whom the same were levelled and who intervened and stopped him to cast his vote. He is not confidence inspiring and after judging his demeanour it can be said that he was uttering something like a parrot without knowing the exact' position. Abdul Wahab (P.W.8) has also followed Saleh Muhammad (P.W.5), Muhammad Saleh (P.W.6) and Khan Muhammad (P.W.7). He is absolutely unaware regarding the contents of his affidavit. His statement is not trustworthy which does not render any assistance to the case of petitioner. In order to substantiate the said view relevant petition of cross-examination is reproduced hereinabove for ready reference:-- ' "Petition Writer handed over the statement to me which I further delivered to learned counsel. I do not know whose counsel he was and who was the counsel. I have no complaint against any of the Election Staff or official staff."
51. ' Gul Muhammad (P.W.9) has also adopted the contents of affidavits sworn in by Saleh Muhammad (P.W.5) Muhammad Saleh (P.W.6) Khan Muhammad (P.W.7) and Abdul Wahab (P.W.8). A careful scrutiny of his affidavit coupled with cross-examination would reveal that he had absolutely no complaint either against Mir Fareedullah Jamali or Mir Zafarullah Jamali he is unaware regarding the contents of his affidavit and he could not mention as to why the same was retained by Petition Writer and by whom it was filed alongwith this petition. He admitted in categoric manner that he did not file any complaint in writing to Deputy Commissioner or any other Officer. He also conceded that his foot prints were obtained but he was not arrested. No instance of illegal or corrupt practice committed by Mir Fareedullah Jamali has been mentioned. Imam Din (P.W.10) has no specific grievance and also followed Saleh Muhammad (P. W. 5), Muhammad Saleh (P.W.6), Khan Muhammad (P.W.7), Abdul Wahab (P.W.8) and Gul Muhammad (P. W.9). A careful examination of the contents of his affidavit and cross-examination would reveal that he had some complaint against Mir Fareedullah Jamali but failed to give any explanation as to what was the nature of complaint. A specific question was asked by Tribunal regarding the nature of complaint but he remained mum and could not answer. He has admitted in a crystal clear manner that he was unaware as to whether his statement was correct or otherwise? His statement is inconsistent and without any specific allegation. Jonkal (P.W.11) has strictly followed the statements of Saleh Muhammad (P.W.5), Muhammad Saleh (P.W.6), Khan Muhammad (P.W.7), Abdul Wahab (P.W.8), Gul Muhammad (P.W.9) and Imam Din (P.W. 10). During cross-examination he admitted that the petition Writer kept his statement with him and moreso, that on the day of election Mir Fareedullah Jamali was present there at Chattar. His statement regarding presence of Mir Fareedullah Jamali is absolutely incorrect because the petitioner himself has admitted that during election Mir Fareedullah Jamali was hospitalized and on account of his critical health he could not run the election campaign. Jonkal (P.W.11) has not given a truthful version regarding presence of Mir Fareedullah Jamali and in view of his dishonest exaggeration his statement cannot be taken into consideration which otherwise in the absence of any specific allegation regarding commission of illegal or corrupt practice hardly carries any value. Ghulam Yasin (P.W.12) is the star witness produced by the petitioner in order to substantiate allegations contained in Election Petition. He has deposed that he was Election Agent of Mr. Izhar Hussain Khoso (petitioner) who contested election from NA-203.. It is stated that he visited different Polling Stations but was not allowed to visit certain Polling Stations and after lapse of sufficient time he was allowed and it revealed that only those voters were allowed to cast their vote by the Presiding Officer and Polling Staff having the slip containing photograph of Mir Fareedullah Jamali due to influence and pressure of Mir Zafarullah Jamali and the executive authorities and the voters having simple were not allowed to cast their votes on the pretext that. Their names were not available in the Electoral List. It is also stated that Polling Staff was canvassing in favour of Mir Fareedullah Jamali. He was subjected to cross-examination wherein he mentioned that the complaint was made to the Returning Officer Usta Muhammad, but copy whereof could not be produced on the pretext that it was delivered by hand. It is quite astonishing that he even did not known the name of Returning Officer to whom the said complaint was handed over. It is also to be noted that no mention about such complaint/report has been made in his affidavit and he also admitted it. He also conceded that the said complaint was not followed up. He could not mention the details of the Polling Stations in his affidavit as well as during examination wherein he was not allowed to enter. He pointed out that he had complaint against Government functionaries, Election Staff, S.H.O., Government Officers and Presiding Officer but amazingly neither he could mention the names of any of the Government functionaries nor their designation. He has not mentioned the details of his complaint against any particular functionary and failed to state the corrupt and illegal practice committed by whom where when and as such his complaint appears to be that of general nature. He also conceded that he had not mentioned the name of any officer in the complaint handed over to Returning Officer. In his cross-examination he stated that he himself had seen the Presiding Officers who were affixing stamps on the Engine but he failed to point out that who was the Presiding Officer and in which Polling Station it was so done. He also stated that Presiding Officers said that they were under the influence of Care-taker Chief Minister and, therefore, they were helpless but the name of Presiding Officers and their place of appointment were not mentioned. He denied that his statement was based on hearsay. He, however, admitted that in his affidavit no mention about the complaint to Returning Officer was made. A careful scrutiny of his statement and cross- examination would reveal that he failed to quote any specific instance of corrupt or illegal practice committed either by Fareedullah Jamali or Mir Zafarullah Jamali at the instance of Returning Officer. His affidavit is also vague wherein he could not mention the exact details of Polling Stations visited by him and the names of Presiding Officers and Polling Staff with their designation by whom the bogus voting was made in favour of Mir Fareedullah Jamali. There is no direct allegation whatsoever against Mir Fareedullah Jamali. He might have visited different Polling Stations where admittedly the Polling Agents of petitioner were appointed but no complaint whatsoever was made in accordance with Election Laws at opportune moment. All the said allegations could have been substantiated easily by producing the Returning Officer who was impleaded as respondent and his name was also mentioned in the list of witnesses but subsequently he was not produced probably for the reasons that in his written statement/rejoinder all the objections were denied with vehemence. Mst. Sher Bibi (P.W.13) has deposed that her name was mentioned at Serial No,49 at Polling Station Murad Wah, in the Electoral List but she was informed on 2-2-1997 by her husband Gul Muhammad that it was directed by Nasrullah Rind, Sub-Divisional Magistrate and Tehsildar Gohar Magsi, that nobody should come to cast his vote at Polling Station Chattar. She further stated that on 3-2-1997 she went to cast her vote at Polling Station Chattar but she was not allowed to exercise her right of franchise on the pretext that her name was not mentioned in the Electoral List as voter. She submitted that she was not allowed to cast her vote as she could not show the slip having photo and name of Mir Fareedullah Jamali. She admitted during cross- examination that her husband Gul Muhammad was also witness in this case and her father-in-law namely Nazar Muhammad is also a witness in this case. She admitted that she could not mention as to by whom she was stopped from casting her vote. She mentioned further that she was stopped on her way by Tehsildar but showed her ignorance as to whether the said fact was mentioned in her affidavit or otherwise, she conceded that she does not know the name of any person to whom she was stopped for casting her vote and she could not mention the name of any officer against whom she was aggrieved. She informed that her thumb-impression was got affixed on the affidavit at her home and no one visited for the purposes of attestation of the same affidavit. She admitted frankly that being illiterate, she is unaware regarding the contents of affidavit. A careful perusal would show that she is unaware regarding contents of affidavit except that she affixed her thumb-impression on it and no one knows by whom it was got attested. It is worthwhile to mention here that no direct or indirect allegation whatsoever has been levelled against Mir Fareedullah Jamali or Mir Zafarullah Jamali. No specific instance regarding commission of illegal or corrupt practice committed by Mir Fareedullah Jamali or with his connivance has been quoted. It appears that the entire family (wife, husband and father in law) were tutored and they appeared before this Tribunal like statutes and could not mention any thing showing that some illegal or corrupt practice was committed by Mir Fareedullah Jamali or at his behest. Mst. Noor Bibi (P.W.14) has followed Mst. Sher Bibi (P.W.13) and there is no difference in between their affidavits.
52. She has deposed that she was informed by her husband that they would not be allowed to cast their votes as directed by S.D.M.And Tehsildar and further deposed that when she reached at Polling Station Chattar, she was not allowed to cast her vote on the pretext that her name was not incorporated in Electoral List and furthermore, that she was not having the slip containing photograph of Mir Fareedullah Jamali. She admitted during cross-examination that she was unaware as to by whom her affidavit was reduced in writing and where it was so done. She also admitted that nobody came for attestation of her affidavit. She could not mention that as to by whom she was stopped from casting her vote. She further admitted that she cannot recognize any men or women who stopped her from casting her vote. She also mentioned that she is unaware as to whether the contents of her affidavit are correct or otherwise as it was got written by the men of the family. She pointed out that stamp was already affixed when she put her thumb-impression on it. A careful analysis of her deposition would show that affidavit was got unwritten by the men of family and she was neither aware regarding its contents nor the nature of allegations mentioned therein. She has admitted in a categoric manner that she cannot say about the correctness of the affidavit. She also admitted that she could not identify any of the men or women by whom she was not allowed to cast her vote. She has just affixed her thumb-impression and as such her statement is absolutely baseless and, therefore, no reliance can be placed on her version. Abdul Qayyum (P.W.l5) has produced the Tour Programme of Care-Taker Chief Minister as Ex . P/15-A consisting of 10 pages which converse the period with effect from 29-12-1996 to 3-2-1997. It is an admitted 'fact that the Care-taker Chief Minister visited the area but it is not sufficient to prove that it was done with connivance of Mir Fareedullah Jamali who is incidentally his son. The pivotal question is as to whether any illegal or corrupt practice was committed by the Care-taker Chief Minister or otherwise? The tour record itself is not sufficient to prove the factum of corrupt and illegal practice.
10. Before the statement of Izhar Hussain Khoso (petitioner) could be recorded it was considered proper to get the statement of Mr. Kanwar Muhammad Dilshad, Provincial Election Commissioner Balochistan be recorded who was appointed as Commission in exercise of powers conferred upon this Tribunal under sections 46 and 64 of the Act vide order, dated 7-8-1997 at the application (Election Misc. Application No 38/97) moved by the petitioner. It was made clear in the said order that any objection to the report of commission may be filed in writing but no such objection was either made before the Commission or this Tribunal meaning thereby that the petitioner and Returned Candidate had nothing to object. It is worthwhile to mention here that petitioner has expressed his full satisfaction regarding the report of Commission in the following words:- ' "I am satisfied about re-counting and the statement of Authorized Officer of the Provincial Election Commissioner Balochistan, Quetta, whose statement was recorded before this Tribunal."
53. ' I have also examined with care and caution the entire report and being free from any infirmity or irregularity it can be relied upon. No doubt that certain irregularities were committed by Election Staff which is not due to any mala fide but complete, defective and short training which is usually given at eleventh hours. I have carefully examined all the irregularities and in any view the Returned Candidate cannot be held responsible for it. The learned Provincial Election Commissioner, Balochistan (C.W.1.) has also clarified the position which is reproduced hereinbelow for ready reference:-- ' "It is correct that Ballot-Papers mentioned in column No,5 (A-59) otherwise were signed by the concerned Assistant Presiding Officer issuing the Ballot Paper for National Assembly. The Ballot Papers mentioned in column No,7 (A-59) were having the stamp of concerned Presiding Officer and I have given an observation in Para. No 7 of my report. I agree that under Representation of People Act, 1976 coupled with conduct of Election rules the relevant Laws, at the close of poll the Ballot Papers with reference to column No 7(A-59) can only he excluded from count if there is neither official mark nor signature of Presiding Officers. In this behalf reference is made to section 38(4)(c)(i) of the Representation of People Act, 1976. I agree that completion of certain formalities pertaining to counterfoils before and at the time of issuance of ballot paper and after the ions, is responsibility of concerned Section Staff. No role is played by an voter in this regard. It is also correct that for any lapse unde Election Laws, Returned Candidate would not be hek responsible. In this regard further reference is made - to- paragrapl 133 of the Manual of. Instructions pertaining to Genera Elections, 1997. It is correct that Election Commission of Pakistan ha no machinery to deal with the law and order situation which is the subject of the Provincial Government. It is bounden duty of hi Provincial Government to render all sort of assistance to the Electioi Commission in holding Election in peaceful atmosphere. In this regarn I may refer Article 220 of the Constitution of Islamic Republic o Pakistan."
54. ' I may add further that it is well-settled by now that "A ballot paper cal be rejected as invalid under section 38(4)(c)(i) of Representation of the People Act. 1976, when neither the official mark nor the signature of the Presiding Officer are present on its back, so that if either it bears the official mark or the signature of the Presiding Officer, the Ballot paper cannot be excluded from the count and has to be treated as a valid vote in favour of the candidate in whos name it has been cast. The change effected by the amendment in substituting the conjunction "or" with "and", makes the position all the more clear, that for purposes of exclusion, both conditions must co-exist, that is, there should be official mark and no signature on the ballot paper. Conversely if one condition exists, the ballot Paper cannot be excluded from the count. In regard to election to the seats reserved for women, rule 58 makes similar provisions for stamping the ballot paper with the official mark and initials of the Presiding Officer. A far rejection of invalid ballot-papers rule 64(3) lays down the various situation in which the ballot paper in such an election is to be rejected as invalid the language of rule 64(3) takes the matter beyond any controversy b categorically providing that a Ballot paper shall be invalid which does not be both the official mark and the initials of the Returning Officer.
55. Although this rule is not directly applicable in the case of election to the general seat, provides unambiguous insight into the mind of the law maker, in that simile provisions made in connection with the different tips of elections must hay similar effect under the same law. {{PAGE CUT IN BOOK}} ' It is wrong to say that if both the official mark and the signature of the Presiding Officer were present on the Ballot-Paper only then could it be counted as a valid vote, otherwise it was to be excluded. This would have been the effect if the provisions of section 38(4)(c) were couched in positive language the effect that such ballot papers were to be counted which bears official maid and signature of the Presiding Officer. But the provisions are couched in manner that the two conditions have been laid down for the purpose exclusion, therefore, the power to exclude the ballot paper is dependent on bo conditions co existing simultaneously, which is the effect of the connective "and" used in the provisions.
56. ' Failure to apply the official mark, which was alleged to have resulted from want of the official seal, has not materially affected the election.
57. Non-sealing of votes would not fall within the purview of section 70(b), for the same is neither a corrupt or an illegal practice. Failure of the Presiding Officer to affix the official mark on 1165 at a polling station out of total number of 51886 valid votes cast at the election cannot be regarded a violation of the rules of such magnitude so as to render the election as a whole void particularly when it has not materially affected that result of the election." Mian Jamal Shah v. Khan Nasrullah Khan Khattak (PLD 1965 Jour. 89); Khan Nasrullah Khan v. Member. Election Commission (PLD 1986 Lah. 850) and Mian Jamal Shah v. The Member, Election Commission (PLD 1966 SC 1). The report of the Commission, (Ex. C/1) is indicative of the fact that 1649 ballot papers were found defective and if the same are excluded from the total votes obtained by the Returned Candidate even then there would be no substantial change in the present situation of the simple reason the petitioner obtained 13369 votes and Returned Candidate 18703 votes.
11. The statement of petitioner was got recorded who appeared as a witness (P.W.16) to substantiate the allegation as levelled in the petition. A careful scrutiny of his deposition and cross- examination would reveal that initial Broadcast on Television was not heard by the petitioner himself and no one could be produced, from the media concerned to prove that such pronouncement was ever made. The success depends on the number of votes and not merely on the pronouncement of Pakistan Television Corporation which does not figure in. The information communicated by )eputy Commissioner to the petitioner also carries a little value in so far as the counting and consolidation is concerned the certificate issued by Mr. Narain Das, Advocate who remained present before the Returning Officer negates the allegations as levelled by the petitioner.
58. The certificate duly issued by Mr. Narain Das, Advocate is reproduced hereinbelow to make the position crystal clear:-- "Certificate.---It is certified that on 5th February, 1997 official counting consolidation statement of result of NA-302 Jaffarabad-cumNasirabad was conducted in the office of R.O.NA-203 Jaffarabad- cumNasirabad. I alongwith my client Mr Izhar Hussain Khoso were present at the time of official counting and consolidation statement of result of NA-203 Jaffarabad-cum-Nasirabad in the office of Mr. Zaheer-ud-Din Kakar, Additional District and Sessions Judge and R.O. NA-203 Jaffarabad- cum-Nasirabad.
59. (Sd.)
60. (NARAIN D. KAPOOR)
61. Advocate, Jacobabad."
62. ' As mentioned earlier the petitioner expressed his satisfaction about recounting by the commission which could not make any substantial change, in the position. It is to be noted that the petitioner has stated in crystal clear manner that his allegations were against Mir. Zafarullah Jamali, the then Caretaker Chief Minister who is father of Mir Fareedullah Jamali (Returned Candidate) and not against Mir Fareedullah Jamali. (See cross-examination of the petitioner). In so far as the question of illegal or corrupt practice committed by Mir Zafarullah Jamali at the instance of Mir Fareedullah Jamali is concerned no cogent evidence could be produced which aspect of the matter would also be discussed later on. The petitioner also admitted that due to serious ailment Mir Fareedullah Jamali shifted to Karachi on 21st December, 1996 who remained hospitalized there.
63. He also admitted that he had not seen Mir Fareedullah Jamali on the day of Poll and as such, the question of commission of any illegal or corrupt practice does not arise. He also stated that he was informed by Returning Officer verbally that the Polling Bags were taken to the house of Deputy Commissioner by the Presiding Officers. Such a bald allegation without having any cogent or concrete proof cannot be taken into consideration. The said allegation could have been proved by the Returning Officer who was cited as a witness but subsequently he was not produced as such the said allegation hardly deserves any consideration. In this regard I am fortified by the dictum laid down in 1986 M LD 2143.
12. I have also examined various cases from Indian jurisdiction as well as from our own. The consensus of opinion seems to be that "the allegations of corrupt practice in the course of an election must be judged by the same standards as criminal charge. And, no rule of evidence, in judging guilt on a criminal charge is more firmly rooted than that no charge resting on circumstantial evidence could be held to be proved beyond reasonable doubt unless the chain of circumstances is so complete and so connected with the charge that leaves no other hypothesis open for the Court to adopt except that the offender had committed the offence alleged." (AIR 1975 SC 2299; AIR 1975 SC 1417). As held in Hardwari Lal v. Kanwal Singh (AIR 1972 SC 515), the appellant who was- charged with such allegations should be told in the Election Petition as to what assistance he sought, the manner of assistance, the time of assistance, the person from whom assistance is sought. In this case in the Election Petition such allegations/statements were lacking.
64. Nor there is any statement in the Election Petition describing the manner in which the prospects of the election were furthered and the way in which the assistance was rendered. It was essential and imperative for the Election Petition to set out with exactitude and precision on the type of assistance as also the manner in which was obtained or procured. As held it has to be alleged as the material facts as to what assistance the appellant obtained or procured or abetted or attempted to obtain or procure from which person and how the assistance furthered the prospects of the appellant's election." The petitioner could not furnish any details with exactitude but general allegations were levelled that too against Mir Zafarullah Jamali. It would not be out of place to mention there that "the Court must keep in mind the fact that the choice of the voters freely expressed should not be lightly interfered. An allegation of corrupt practice is of a quasi-criminal nature exposing the Returned Candidate not merely to the risk of his Election being set aside but also of his being disqualified to stand for election for a considerable number of years. He also runs the risk of being prosecuted. The charge of the corrupt practice should therefore, be proved beyond reasonable doubt." (AIR 1975 SC 382 + AIR 1975 SC 1045; 1417; 2299; AIR 1964 SC' 1366; AIR 1971 SC 1295; AIR 1976 SC 154). There are numerous cases in our own jurisdiction wherein it is settled by now that it is not open to the Court to hold that a charge of corrupt practice is proved merely on a preponderance of probabilities but it must be satisfied that there is evidence to prove the charge I beyond a reasonable doubt. It is an admitted feature of the case that our electoral process is time consuming and is an extremely expensive one and by declaring the election of a candidate null and void, the entire process, so far as the candidate is concerned, is set at naught resulting in re- election. Such a course should be adopted only when the allegation of corrupt practice is proved conelusively. In this regard reference can be made to 1993 CLC 929; PLD 1957 SC 91; PLD 1976 SC 6; PLD 1973 SC 160 and the position that would emerge is "analogy of criminal trials would hold good in matter of corrupt or illegal practice which must be affirmatively proved to the exclusion of reasonable hypothesis consistent with the non-commission of the corrupt practice; benefit of doubt must go to the person against whom the corrupt illegal practice was alleged " In this regard reference can also be made to 1980 MLD 2134; 1986 CLC 2463; 1988 M LD 294; 1990 CLC 674; 1988 CLC 991.
13. On the touchstone of crieria as discussed and laid down in the above referred to cases it can be inferred safely that petitioner could not prove the G allegation of corrupt practice by producing concrete evidence, and therefore, it ran be said with certainty that petitioner failed in discharging his onus. During he course of arguments Sardar Abdul Lateef Khoso duly assisted by Mr .
65. Viuhammad Riaz Ahmed, Adovcate urged with firmness that more than 200 Official vehicles have been used in the election and on this secore alone election )f Returned Candidate can be declared void. I am not persuaded to agree for the simple reason that neither the number of said vehicles could be provided nor the Particular Polling Stations where the same were utilized and in absence whereof low Returned Candidate would be held responsible and all such mentioned Details which were to be furnished by the petitioner. It must be established beyond shadow of doubt that "assistance" and "help" was obtained or procured by the Returned Candidate but no iota of evidence has come on record that official vehicles were got employed or used at the direction of Returned Candidate or it was so done with his connivance. I have already observed in the preceding paragraphs the demeanour of the witnesses and it can be concluded hat common feature of all the witnesses are that each witness spoke in identical words and in the same sequence about the alleged corrupt practice. These features indicate that witnesses appear to give a resemblance of disinterestedness whereas of fact they were all tutored to support the case of petitioner without any considerable cause. The impression produced by the witnesses is that their version regarding corrupt practice is not only similar but their affidavits are also identical. The witnesses were unaware regarding the counts of their affidavits and they expressed in clear manner that they were not sure as to whether the contents of their affidavits were correct or otherwise? On the basis of such stereo-type of statements no adverse inference can be drawn against the Returned Candidate. The overwhelming impression which I gathered from the witnesses appeared on behalf of petitioner is that they were all prepared on the same pattern of evidence which being vague and sketchy hardly deserves any consideration.
14. I have also taken into consideration relevant provisions of the Act which contains a comprehensive scheme and is capable enough to meet all sort of eventualities. It provides for appointment of an Election Agent (Section 22) and Polling Agent for each Polling Station and initially they are responsible to safeguard the legitimate interest of a candidate and there is comprehensive check and balance system for the redressal of grievance of a candidate. It is to be noted that no complaint has been produced though any of the Polling or Election Agent specifying the allegations in clarity and what happened to it, by the petitioner. The system as envisaged in the Act is also transparent and each and every step is required to be taken in presence of candidate or his Election Agent or Polling Agent but their absence will not invalidate any such act (Section 24), the petitioner failed to mention that which step was taken by the election Authorities causing prejudice against him. The hours of poll shall not be less than 8 hours (Section 26) in cases of obstruction or interruption the Polling can be stopped. The petitioner failed to produce cogent evidence to show that the duration of poll was less than 8 hours in certain Polling Stations wherein allegedly poll was got stopped. The Presiding Officer shall not exclude the contesting candidate, their Election Agent and Polling Agent from the Polling Station (Section 31) while regulating the number of election to be admitted. Presiding Officer shall Keep order at the Polling Station but no election shall be deprived from casting his vote (Section 32). The petitioner could not succeed in proving that either of his Polling Agent or Election Agent was excluded from the Polling Station, when from where and by whom? The role of Election Agent or Polling Agent demands vegilance to see that each voter gets one Ballot Paper another important safeguard has been provided in the nature of 'Tender Ballot Papers' as envisaged in Section 34 of the Act. The petitioner failed to point out that 'how many Ballot Papers were challenged by him or his Polling Agent which could have been done under the Act (Section 35). It is also provided under the Act that the voter present within the premises of Polling Station shall be permitted to cast his vote (Section 37). In this case no enlisted voter has come forward to show that he was deprived from casting his vote. It is to be noted that Section 38 of the Act deals with counting procedure. {{PAGE CUT IN BOOK}} speaks about function of Presiding Officer, Election Agent/Polling Agent and -counting at the request of contesting candidate is permissible. The ;titioner failed to invoke the relevant provisions at opportune moment. The >shot of the above discussion is that petitioner failed to protect his interest by yoking the relevant provisions at proper time for the redressal of his iev ances .
15. A careful analysis and indepth scrutiny of the entire evidence which has 'me on record and discussed hereinabove would reveal that petitioner has failed H iserably to produce cogent, concert and worthy of credence evidence to bstantiate allegation as levelled in the petition. He could not discharge his it's properly and therefore, the issues Nos.1 to 5 are decided in negative. In so r as the detention of Haji Ali Mardan Khan (issue No,6) is concerned fficient material is lacking to infer that his detention was made at the behest of :turned Candidate or due to the influence of Mir Zafarullah Jamali. It is Drthwhile to mention here that Haji Ali Mardan Khan was not produced More the Tribunal who only could have proved the reasons for his detention. D remedial measures were taken by Haji Ali Mardan against his unlawful tendon. In the light of what has been stated above it is not inevitable to amine the evidence as produced by the Returned Candidate in depth. I have, wever, gone through the entire evidence as produced by the Returned tndidate and in my view it can be concluded that no undue influence, illegal corrupt practice has been committed and during the election process the qurned Candidate remained hospitalized and his election campaign was run by eed Ahmed Nomani. I have also dilated upon the allegations of illegal and rrupt practice mainly levelled against Mir Zafarullah Jamali but he cannot be ndemned Unheard. In this regard I am fortified by the dictum laid down in A:30 1958 SC (Pak.) 333. Besides that the petitioner failed to prove that ,gal or corrupt practice was committed by Mir Zaffarulah Jamali at the hest of Returned Candidate Mir Fareedullah Jamali or with his nnivance. There is no denial to the fact that Polling Agents were pointed by the petitioner at each Polling Station but he has failed to give their mes in the petition and amazingly not a single Polling Agent has been mined to substantiate the allegation of illegal or corrupt practice by quoting ;cific instances. The petitioner also failed to produce any documentary deuce in support of his allegations. No objection whatsoever was filed for ,ting bogus votes by his Polling Agents nor they challenged any vote. The ction cannot be declared as void merely on the ground that Mir Fareedullah nati is son of Mir Zafarullah Jamali, the then Care-taker Chief Minister bout any convincing evidence. It is an admitted feature of the case that not a gle case of corrupt practice has been registered for violation of any provisions Election laws. No particulars of corrupt and illegal practice was given in the .Ction Petition in precise and clear terms and as such the allegations ntioned in the petition remained unsubstantiated. In such view of the
2. The only point, raised by learned counsel for the petitioner, is, that matter there is no other option but to dismiss the petition being devoid of merits.
66. Election .