' This is an election petition filed under section 52(2) read with sections 103(c) and 104 of the Representation of People's Act, 1976 (hereinafter called as the Act 1976) calling in question the election held on 3rd February, 1997 in respect of N.A. 191, Karachi, South-III.
2. Brief facts of the case are that the petitioner and respondents Nos.1 to 15 contested the aforesaid election and as a result, the respondent No,8 namely Captain (Retired) Haleem Ahmed Siddiqui was declared elected. It is alleged in the memo. Of petition that on a mass scale, corrupt and illegal practices were carried out during the election campaign by most of the candidates. It is further alleged that these candidates/respondents have failed _to contest their respective elections strictly in accordance with the provisions of Act, 1976 and in violation of the Representation of the People (Conduct of Election) Rules, 1977; that hundreds of cloth banners and posters were displayed at public places. Hundreds of party flags were displayed on several buildings and at public places, throughout the constituency by the respondents, including M.Q.M., People's Party and Muslim League (Nawaz Group).
3. So far as the returned candidate Haleem Ahmed is concerned, the allegations of illegal and corrupt practices as narrated in the body of petition are as follows:--
(a) Haleem Ahmed caused wall chalking on a mass scale in the entire constituency which comprises of Mehmoodabad, Liaquat Ashraf Colony, Manzoor Colony, Hill Town, Punjab Colony, Azmat Town, all phases of Defence. Housing Authority, parts of Clifton Cantonment and Karachi Cantonment and several other areas;
(b) That the election returns as provided under section 49 of the Act 1976 were not correctly submitted and that the returned candidates spent lacs of rupees on entertaining of voters including expenses of Mar and Sehri and dinner at election offices;
(c) Several buses and Suzuki pick-ups were engaged for bringing voters to the polling stations from the different parts of the constituency and loud speakers were used on the vehicle for convassing.
(d) Returned candidate Haleem Ahmed also paid election expenses of other candidates namely Salim Zia, Muhamamd Sabir and Safdar A. Raheem.
(e) That during the night of 2nd February, 1997 some 454 voters were collected and were kept in separate places, for which thousands of rupees were paid for their food and entertainment and that the election compaign was used for attracting voters by freely providing - food and drinks.
4. None of the respondents except respondent No,8, the returned candidate, filed their written statements, denying allegations of the petition. It was claimed in the written statement of respondent No,8 that he had strictly followed the Code of election and other election rules. It has been specifically denied that banners, hoarding and posters were displayed in violation of code of conduct or that wall chalking as alleged in the petition was carried out. It was also denied that huge expenses were incurred for providing entertainment and food, such as Sehri and Iftari to the workers and supporters. Use of vehicles for election compaign was also denied. It was admitted that the returned candidate has shown expenses of printing of voters cards which also bear detail of three other candidates of Provincial Assembly but all belong to the same party namely Pakistan Muslim League (Nawaz Group) (hereinafter called as P.M.L). It was also pleaded that the petitioner- has secured only 44 votes while returned candidate received more than 30,000 in a constituency consisting of 2,45,781 votes. With this rebuttal, it was prayed that the petition be dismissed.
5. As a result of above pleadings, following issues were framed on 6th August, 1997 by consent of the parties.
Consent issues.
(1) Whether respondent No,8 has contravened provisions of section 49 of Representation of the People's Act, 1976 (the Act)?
(2) Whether respondent No,8 has not submitted correct returns under section 50 of the Act and if so what is its effect?
(3) Whether respondent No,8 has indulged in bribery in terms of section 79 of the Act.?
(4) Whether respondent No,8 has indulged in corrupt practices in terms of section 78 of the Act?
(5) Whether respondent No,8 affixed hoarding, posters and displayed banners and indulge in wall chalking, in contravention of rules framed under the Act and if so, what is its effect?
(6) Whether the election of respondent No,8 is liable to be declared void?
(7) What should, the decree be?
6. In support of his case, the petitioner has examined himself as Exh.5, P.W.2 Raza Hameed Farooqui as Exh.6 and P.W.3 Mukarrab Khan as Exh.7; thereafter he closed his side. On behalf of the respondent No,8, his attorney, namely Nisar Ahmed Tasneem, was examined as Exh.10 and D.W.2 Usman Ali Khan was examined as Exh.11. I have heard Mr. Yousuf Qureshi, the petitioner and Mr. Chowdhry Jamil, Advocate for the respondent No,8. Both the parties have also filed their separate written arguments which were also perused. My findings on the above issues are as follows:-- Issues Nos.1 and 2.
' Since both these' issues are related to filing of returns and disclosure of election expenses and since both being interconnected, I propose to discuss these issues jointly.
8. Section 49 of the Representation of People's Act, 1976 (hereinafter referred to as the Act, 1976) is in the shape of prohibition imposed upon a candidate for the purpose of keeping in check the expenses of his election compaign. According to the amended section 49 of the Act, 1976, the present limit is up to one million rupees in case of an election to a seat in the National Assembly. I wonder how a person belonging to a middle or lower middle class could dare to contest elections in Pakistan. The fate of such a person is the instant case. Now adverting to section 50 of the Act, 1976, it requires every contesting candidate to file returns of election expenses within 30 days after the publication of the name of returned candidate. Such statement shall contain all payments made by a candidate together with all bills and receipt; a statement of all disputed claims; a statement of all unpaid claims, if any, and a statement of all moneys, securities received or spent by any person for benefit of contesting candidate and his staff. Such election expenses are to be filed on the prescribed form accompanied by an affidavit of the contesting candidate.
9. On 6-7-1998 the respondent No,16, Returning Officer N.A-199 namely Mr. .Abdul Rasool Memon (IVth A.D.G. Karachi South) was examined as Exh. P/2. He produced the Election Returns of the respondent No,8 as well as a letter of petitioner, which were brought on record as exhibit P-8/1 and P-8/2 respectively. In Exh. P-8/2 which is a complaint addressed to the Returning Officer of the petitioner, it was alleged that the returned candidate had engaged one Saleem Akhtar Wafa as painter for the work of wall chalking in the entire constituency. But the said person was not examined and it was also not stated how much amount was paid to that person for wall chalking and what was the total expenses incurred. It will be seen that the Election Returns of the respondent No,8 comprises of nearly two hundred pages, including receipts and vouchers. The petitioner was not able to point out a single voucher or any entry in the Exh. P-8/1 to show that it is a case of concealment or misstatement. He amount shown in the returns is within the target amount as provided in section 49 of the Act, 1976.
10. Petitioner, who boycotted the election, has received only 44 votes. He has examined Raza Hameed Farooqui who is a freelance Photographer, who has taken photographs of election compaign but was not able to produce any such photographs during his examination. Likewise, P.W.3, Mubarak Khan, Exh. 7, who was an election worker of the petitioner has filed a vague affidavit alleging that returned candidate Haleem Ahmed Siddiqui had indulged in performing acts prohibited by the Election Commission, such as hoisting banners, wall chalking, entertaining of votes etc. Etc. But none of the prosecution witnesses were able to show that the election Returns filed by the respondent No,8 was incorrect, false or erroneous or that the returned candidate exceeded the limits of election expenses fixed by the Act, 1976. It was stated by the petitioner that at the time of Iftar(URDU TEXT) some of the workers of respondent No,8 were found eating Iftari which fact was admitted by the witness of respondent No,8, but it was not established as to who had incurred the expenses on arranging Iftari. According to D.W.1 all such expenses have been mentioned in the election returns.
11. As a result of above discussion, I am inclined to hold that the petitioner has failed to establish that the returned candidate Abdul Haleem Siddiqui has violated the provisions of sections 49 and 50 of the Act, 1976. Both the issues are answered accordingly.
Issues Nos.3, 4 and 5.
12. Burden was upon the petitioner to prove all these issues with reliable and convincing evidence and beyond shadow of doubt. Mr. Muhammad Jamil has referred to my earlier decisions in Election Petition No, 73 of 1997 (Capt. Syed Muhamamd Ali v. Saleem Zia and 11 others) as well as the case of Muhammad Irfan Khan v. Javaid Ahmed Chattari and 20 others 1998 CLC 1241. It will be advantageous to produce a para. From the case of Muhammad Irfan (ibid) which deals with the question of burden to prove allegations of illegal and corrupt practices. It read as follows.
"....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 criminal trial. In Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6, a Full Bench of Honourable Supreme Court held that the analogy of a criminal trial would hold good in the matter of corrupt of illegal practices which must be affirmative 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, case Pir Matook Ali v. Rais Muhammad Usufi and 11 others 1986 CLC 1329, Muhamamd Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC 91, Muhammad Yousaf Khan Khattak v. S.M. Ayub PLD 1973 SC 160, Munsif Khan v.
Sardar Haider Zaman and others 1986 CLC 1257, and 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 Honourable Supreme Court in the case of Muhammad Sated (supra) that a charge of corrupt practice is a quasi-criminal` charge and that in case of doubt raised upon the evidence, its benefit must go to accused person, is the very foundation for determination of an election petition being tried before an Election Tribunal...."
13. After hearing the petitioner and the counsel for respondent No,8, as well as after going through their written arguments and the evidence brought on record, I am of the considered view that the petitioner has failed to discharge his burden to prove allegations of illegal and corrupt practices against respondent No,8. Therefore, all the above three issues are answered in negative.
Issues Nos.6 and 7.
14. As a result of above discussion, I am of the considered view that the petitioner has failed to establish that the returned candidate was involved in illegal and corrupt practice which may disentitle him to continue in his office. There is no sufficient material on record warranting such declaration from this Court. I am not inclined to hold that the election conducted on 3-2-1997 for N.A. 199 Karachi (South-III) is void. Therefore, this election petition is dismissed. A copy of this judgment alongwith record be forwarded to the learned Election Commissioner in compliance of section 72(1) of the Act, 1976, alongwith original record.
Election .