Through this election petition filed under section 52 of the Representation of the People Act, 1976, the petitioner Muhammad Aslam Mujtahid has challenged the election of returned candidate, respondent No. 1 Mahmood Ahmad Qureshi, since deceased, from NA-255-Karachi XVII, on the sole ground of corrupt and illegal practice alleged to have been committed by respondent No. 1 and his supporters and also by the polling staff who showed undue favour to respondent No. 1.
2. It is alleged in the petition that respondent No.1 and his other party leaders induced the general public to cast votes in favour of respondent No.1 by coining prohibited slogans. The petitioner specifically alleged that certain offending/objectionable material was publicised by the respondent No.1, which was contained in the banners, posters and pamphlets. The concerned Returning Officer in connivance with respondent No.1 indulged in illegal acts to favour respondent No.1 which include the fact that either he did not provide or provided to the Presiding Officers such voter lists which did not bear his seal and signature and several polling stations were established in the areas which suited respondent No. 1. According to the petitioner several applications were made in this connection but no heed was paid to his requests.
On the polling day certain polling stations were surrounded by the armed activists and Goondah elements of respondent No. 1 and his party who did not allow the voters of the petitioner to enter the polling stations. The polling agents of the petitioner and other candidates were not allowed to sit inside the polling stations. Bogus votes were managed to be cast in favour of respondent No. 1.
Supporters of respondent No. 1 by harassment, intimidation and undue influence prevented thousands of voters of the petitioner to cast their votes and compelled them to depart from the polling stations.
The polling time was illegally extended up to 7-00 p.m. By the concerned Presiding Officer. The Presiding Officers/ polling staff fully abetted and connived with respondent No.1 s supporters and large number of votes actually cast in favour of the petitioner and other candidates were wrongly and maliciously counted in favour of respondent No. 1. Large number of such votes which were liable to be excluded under law were wrongly and maliciously held as valid votes of respondent No.1. Carbonised copies of election results were refused to be provided to the petitioner's polling agents and on their insistence they were forced to leave the polling stations. According to the petitioner several complaints/applications were moved. He also moved an application to the Election Commissioner of Pakistan alleging therein the corrupt and illegal practices which resulted in the success of respondent No. 1. On the said application re--counting was ordered and according to the petitioner during the process of re-counting several irregularities and illegalities were discovered. However, subsequently the said application was rejected by the Election Commission of Pakistan and the petitioner was directed to approach the Election Tribunal for redress of his grievances. The petitioner then moved a Constitutional petition in the High Court of Sindh which was subsequently withdrawn by the petitioner. Ultimately the petitioner filed present election petition for the following reliefs:-- "(i)Declare that the election of respondent No. 1 as member of National Assembly from the Constituency No.NA-255 --Karachi XVII is void.
(ii)Declare the petitioner having secured highest votes among the lawfully contesting candidates as elected and duly returned candidate from NA-255-- Karachi XVII.
Alternatively it is prayed that the entire election in respect of Constituency No.NA-255-Karachi XVII be declared as void and fresh election be ordered.
(i.e)Award cost."
3. During the pendency of this election petition, side of the respondents was ordered to be closed and case was ordered to proceed ex parte vide order dated 7-4-2003. However, subsequently Mr. Nihal Hashmi appeared and intended to file, power on behalf of respondent No.1. On 28-4-2003 it was reported that respondent No.1 had expired. Mr. Muhammad Junaid Farooqui, learned counsel for the petitioner submitted that in view of section 75 of the Representation of the People Act, 1976 the petition does not abate, and urged that the matter may be decided ex parte by the Tribunal.
4. In the meantime, the Election Commission of Pakistan in pursuance of the provisions of clause (4), Article 224 of the Constitution of Islamic Republic of Pakistan and section 108 of the Representation of the People Act, 1976, issued a notification dated 3rd May, 2003, whereby Schedule of Bye --Elections was notified. The petitioner challenged such act/notification of the Election Commission of Pakistan through C.P. No.D-652 of 2003, which was disposed of vide order dated 5- 6-2003.
5. Since a law point had arisen, learned Advocate-General, Sindh and Election Commission were put on notice.
Comments were filed on behalf of the Election Commission whereby it was stated that the said notification was issued as the seat had fallen vacant.
6. Meanwhile on 16-6-2003 an application under Order XXXIX, rules 1 and 2, C.P.C. Read with section 64 of the Representation of the People Act, 1976, was moved on behalf of the petitioner and it was insisted that interim orders to the extent of suspending the operation of notification dated 3-5- 2003 be passed.
Learned Additional A.-G. Opposed the grant of interim relief and raised objections regarding the maintainability of the petition. The petition was accordingly fixed for further orders and hearing of application under Order XXXIX, rules 1 and 2, C.P.C.
7. The arguments of learned counsel for the petitioner and the learned Additional A.-G. Were heard on the point of maintainability and grant of interim relief.
8. It was contended by learned counsel for the petitioner that since the respondent who was declared successful had expired and that all the remaining respondents were already made ex pane, the petitioner was entitled to be declared as successful having secured highest number of votes in the polls. It was next contended that even otherwise the elections of the returned candidate was liable to be declared void as corrupt and illegal practices were committed by him during the elections. It was argued that since the petition was verified on oath and was duly supported by affidavit and the relevant documents and further that nothing was produced in rebuttal the contents of petition be deemed to be true. The circumstances warranted declaring petitioner to be the returned candidate. It was further contended that the notification issued by the Election Commission of Pakistan whereby a schedule of bye-elections was notified was violative of law. It was therefore argued that if due to constraints of time petition could not he decided/disposed of, the operation of impugned notification be suspended and consequently the bye-elections in the constituency scheduled to be held on 23rd June, 2003 be stayed. It was however, admitted by learned counsel for the petitioner that the petitioner was also contesting the bye-elections, but it was emphasised that the petitioner has filed the nomination forms and was contesting the election under protest.
9. Conversely it was argued by learned Additional A.-G. That election campaign was in full swing in which the petitioner was also fully participating. He opposed the submission regarding staying of the election process. It was further contended that the petition was lacking in the required particulars as provided under section 55 of the Representation of the People Act. The allegations were vague and were not supported by proof. It was next argued that the petition was not maintainable and that no prima facie case was made out. This was a fit case in which injunction should be refused.
10. Arguments rendered by learned counsel for the petitioner and learned Additional A.-G. Have been given anxious consideration and the material placed on record has been examined.
11. In order to appreciate the contention raised by the learned counsel for the petitioner it appears appropriate to examine the relevant provisions of law. The grounds for declaring election of returned candidate void have been enumerated in section 68, while grounds for declaring a person other than a returned candidate elected are specified in section 69 and the grounds for declaring elections as a whole void find mention under section 70 of the Representation of the People Act, 1976. It seems beneficial to reproduce hereunder the provisions of above-mentioned sections:--
68. Ground for declaring election of 1, returned candidate void.---(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- (a)the nomination of the returned candidate was invalid; or (b)the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or (c)the election of the returned candidate has been produced or induced by any corrupt or illegal practice; or (d)a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2)The election of returned candidate shall not be declared void on the ground:-- (a)That any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (b)that any of the other contesting candidates was, on the nomination day not qualified for or was disqualified from, being elected as a member.
69. Ground for declaring a person other than a returned candidate elected.---- The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.
70. Ground for declaring election as a whole void.---The Tribunal shall declare the elections as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of-- (a)the failure of any person to comply with the provisions of the Act or the rules; or (b)the prevalence of extensive corrupt or illegal practice at the election.
12. The petitioner in the prayer clause (i) has made a prayer seeking declaration that the election of respondent No.1 as Member of National Assembly is void. In prayer clause (ii) declaration is sought to the effect that the petitioner having secured highest votes amongst lawfully contesting candidates be declared as elected and duly returned candidate. Alternatively it is prayed that the entire elections be declared as void and fresh election be ordered.
13. So far as declaring the petitioner or for that matter any other contesting candidate to have been duly elected as contained under the provision of section 69 ibid. The Tribunal before making any such declaration "shall declare election of the returned candidate to be void" and for declaring election of the returned candidate void as provided under section 68 the Tribunal has to satisfy itself that (a) the nomination of the returned candidate was invalid, or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as a Member, or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice, or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the consent acid connivance of the candidate or his election agent.
14. Perusal of the contents of petition clearly show that the petitioner was seeking declaration of the election of returned candidate void on the basis that election of returned candidate was procured by corrupt and illegal practice. It was so emphasized by Mr. Muhammad Junaid Farooqi, Advocate for the petitioner, in his arguments. It hardly needs to be emphasized that in the election disputes, the burden to prove illegal and corrupt practice lies heavily on the petitioner. The allegations of irregularities, illegalities and corrupt practices are to be established like a criminal charge, beyond a shadow of doubt. It is well-settled law that the petitioner who challenges the election of a returned candidate in order to prove the charges is required under the law to state full particulars of corrupt practice or, any other illegality committed by the returned candidate during the process of election. In the case of Muhammad Saeed v. Election Petitions Tribunal PLD 1975 SC (Pak.) 91, it was held, "that where an election is sought to be set aside on the ground of commission or corrupt practice, the party challenging its validity must specify in the petition the corrupt practice committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practice."
15. Perusal of the contents of petition and precise statement of facts it seems that the required particulars are badly lacking. The allegations of illegal acts are absolutely vague, unspecific and imaginary. No date time and place of the commission of such practice or act has been incorporated. No names of the persons who allegedly committed such illegal acts find mention in the petition. It is alleged in para.2 of the petition that party leaders openly appealed to public in election meetings and corner meetings that the voters belonging to Muhajir community were duty bound to vote for none except Muhajir candidate. This was widely publicized by means of banners, pamphlets and posters. Though number of annexures have been filed alongwith the petition but no any poster or pamphlet to that effect as alleged has been annexed with the petition. A series of complaints are claimed to have been made to different authorities in writing but not a single document contains any allegation. There are number of allegations against the conduct of Returning Officer with regard to change of polling stations and polling staff as according to the allegations Returning Officer declined to oblige the petitioner in the appointment of polling staff.
Again there are vague allegations in para.7 with regard to the corrupt practices committed at polling stations falling within Union Councils Nos.6, 7 and 8 but no specific polling station has .Been mentioned where the illegal acts were committed. In support of the petition, the petitioner, apart from his own affidavit filed affidavits of as many as eleven other witnesses but none of them made any specific allegation in his affidavit. No document of whatsoever nature has been annexed with the petition to show that any of the bogus vote was challenged by any of the polling agent of the petitioner, even no copy of any application or complaint allegedly moved by the petitioner with regard to rigging or casting of bogus/fictitious votes has been placed on record. Even Kamal Ahmed Farooqi who claimed to be the Election Agent of the petitioner simply stated in his affidavit that the contents of the petition were true and correct. Said witness chose not to divulge any specific illegality or corrupt practice. Affidavit of not a singe voter was filed to substantiate the allegations that the voters/supporters of the petitioner were prevented by respondent No.1 or for that matter any one on his behalf from exercising his right to vote. It seems that the petitioner had been struggling for recounting of the votes as apparent from his application dated October 22, 2002 addressed to the Election Commission of Pakistan and annexed with the petition as Annexure 'S-12'. The Election Commission of Pakistan is in its order dated 30-10-2002 was pleased to observe as under:-- "It appears that the application was mainly moved for recounting of votes but subsequently the petitioner changed his designs and did not allow the Returning Officer to carry out recounting process. He made certain demands which were not in the competence of Returning officer and on his refusal he created havoc for disturbing recounting process."
16. C.P. No.1874 of 2002 whereby decision of the Election Commission of Pakistan was challenged appears to have been withdrawn as not' pressed by the petitioner. Perusal of the entire petition reveals that no allegation of whatsoever nature was leveled against the returned candidate. There are unspecified allegations contained in the annexures, most of which relate to the requests made by the petitioner from time to time for change of polling stations. The petitioner in order to strengthen and improve his case has even annexed with the petition copies of certain complaints which were not in fact made by the petitioner himself. For example applications marked "N/4", "N/5", 'N/6" and "N/7" were purportedly submitted by one Shamrez Khan. Surprisingly enough no affidavit of Shamrez Khan was filed in support of allegations. Affidavit in evidence filed by the petitioner only says that in order to avoid unnecessary repetition the contents of his petition be deemed to be his affidavit in evidence. How far this affidavit in evidence would strengthen the case of the petitioner does not require to be discussed.
17. The facts as narrated hereinabove make it abundantly clear that the petition is devoid of full particulars of illegal practice or illegal acts as envisaged under section 55 of the Act. Obviously miserable failure on the part of the petitioner to show as to how the election was procured by means of illegal practice has rendered this petition to be causeless, as it does not furnish cause of action. Since the material facts have not been pleaded and no material has been placed on record no meaningful purpose will be served to allow the petitioner to lead further I evidence.
18. As provided under section 63 of the Representation of the People Act, 1976, the Tribunal shall dismiss an election petition during trial if---(a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62. Section 55 ibid provides that, every election shall contain---(a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
19. Apart from above, this Tribunal possesses all the powers of Civil Court trying a suit under the Code of Civil Procedure 1908 and shall be deemed to be a Civil Court within the meaning of sections 476, 480, and 482 of the Code of Criminal Procedure 1898, as contemplated under section 64 of the Representation of the People Act, 1976. In an ordinary civil litigation the Court readily exercises the powers to reject a plaint if it does not disclose any cause of action. Powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matter pertaining to elections.
Thus there is no escape from the conclusion that an, election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under Code of Civil Procedure. So also appropriate orders under C.P.C. Can be passed if the mandatory requirements enjoined by the provisions of Act to incorporate the material facts in the election petition are not complied with.
More particularly in the instant matter the schedule of bye-elections has already been notified whereby the elections in the constituency are scheduled to be held on 23rd instant. In pursuance of the above notification, admittedly the petitioner accepted nomination to his candidature for the said election and had been associated with the election process since then. The process of election is in full swing. Undoubtedly the petitioner is participating and zealously contesting the election and is running his election campaign vigorously. The petitioner has thus acquiesced in, and thereby disentitled himself for grant of injunction, on this ground apart from various other grounds. The petitioner is estopped by his conduct. Even otherwise it is unjust, unfair, and unwise rather against equity to abruptly disrupt the process of elections, which is entering in concluding phase.
PLD 1989 SC 166. In the mentioned case their lordships upheld the denial of relief to the writ petitioners by the High Court and declined to disturb/disrupt the schedule of general elections with a view to afford an opportunity to the people of Pakistan to choose their representatives, while approving the first part of the maxim, "fiat justitia" (let justice be done) and discarding the rest namely "ruat coelum" (though the heavens should fall), it was observed by their Lordships that "justice should be done, in such a manner that the heavens should not fall".