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Petition No. 9 of 1985, decided on 28th January, 1987.

---Ss. 52, 55, 68, 70, 78 & 83--Election petition--Corrupt and illegal practice--Petitioner mentioning in petition corrupt and illegal practice but not giving full particulars thereof--Petitioner failing to prove corrupt and illegal practices against returned candidate which were only points in issue--Requirements of proof--Effect of failure to prove corrupt a-d illegal practice--Proof of corrupt and illegal practice before Election Tribunal, held, would require strict proof as the same was quasi-criminal in nature, burden of proof whereof would lie heavily upon person alleging such corrupt practice--Commission of corrupt and illegal practice being punishable would require strict proof in support thereof--Where it was not established that result of election had been, materially affected by such corrupt practice same would not entitle petitioner to be declared as a returned candidate or his entitlement t, fresh elections.

---Ss. 52, 55 & 70--Election petition--Corrupt and illegal practice Proof--Record of election and evidence of Returning Officer showing that there was no law and order situation and no vote was tendered or challenged--Record of election and statement of Returning Officer, held would prove plea of returned candidate that there was no corrupt a illegal practice, in, election.

---Ss. 52, 55 & 70--Election petition--Corrupt and illegal practice Petitioner's own statement not supporting contents of petition--Effect Where burden heavily lay on petitioner to prove allegations of corrupt and illegal practice having been committed by returned candidate, his failure to prove same, held, would not entitle him to declaration about invalidity of election--Election petition by not containing particulars corrupt and illegal practice had not been filed in prescribed manner as required under Act LXXXV of 1976.

Yarqand Khan, petitioner herein, has filed this election petition Sunder section 52 of the Representation of People Act, 1976 (hereinafter called as Act) to the effect that election of respondent No. 1 Tajbar Khan, as returned candidate from Constituency PF-21-Mardan-V is void and that instead he be declared as elected candidate or in the alternative the entire election in the Constituency be declared void and fresh election be ordered.

2. The facts of the case are that petitioner and respondents Nos.l to 4, Tajbar Khan, Rahim Khan, Chaman Khan and Inayatur Rehman, contested the election for the Provincial Assembly seat from Constituency PF-21-Mardan-V and in the said election respondent No. 1, Tajbar Khan, by committing corrupt and illegal practices and other illegal acts got himself returned. The petitioner gave a short statement of the corrupt and illegal practices and other illegal acts of respondent No. 1, in his petition in the following manner:--

"That respondent No. 1 using his influence got his relatives, friends and locals posted as Presiding Officers/ Assistant Presiding Officers. Respondent No. 1 is resident of Mian Khan while at the Polling Station Government High School Mian Khan (Polling Station No. 2) Amirzada Khan resident of the same village was the Assistant Presiding Officer, who is the near relative of respondent No. 1. Similarly, the Presiding Officer of this Polling Station Fazal Qadir Khan was also from the same village. The petitioner has also annexed the list of the Polling Staff with the petition. At Polling Stations Mian Khan, which were in the locality of respondent No. 1, respondent No. 1 obstructed the main road by placing stones on the same and till 2 p.m. did not allow even government officials to enter the area and did not permit the Polling Agents of the petitioner and respondents 2 to 4 to function and throughout this period bogus polling was carried in favour of respondent No. 1. Similarly, at the Polling Station Sangau which is at a distance of one mile from Mian Khan naked acts of corruption and malpractices were committed by casting bogus votes in favour of respondent No. 1. Rahim Ghafoor Khan resident of Babuzai the staunch supporter and friend of respondent No. 1 publics announced in village Dheri that he would donate 12 Kanals of landed property for graveyard of the poor people provided they solemnly promise to cast their votes in favour of respondent No. 1. The poor people accepted the offer and as a result thereof Rahim Ghafoor Khan vide mutation No. 4575 gifted 12 Kanals of the land in favour of Waqf-e-Ahle Islam, and that due to the aforesaid corrupt and illegal acts respondent No.1 got himself elected with a margin of.709 votes over and above petitioner."

3. This election petition was instituted with the Election Commission of Pakistan as required under the law and therefrom it was received by this Tribunal on 2-10-1985. Notices were issued to respondents 2 to 4 but they in spite of publication in the Daily Mashriq failed to appear and hence were placed ex parte. Respondent No. 1, however, contested the election petition by filing his written statement taking preliminary as well as factual objections and on the pleadings of the parties the following issues were framed in the case:--

(1) Whether petitioner has no cause of action

(2) Whether petition has not been filed in the prescribed manner, if' so, its effect

(3) Has respondent No. 1 committed any illegal and corrupt practice, if so, whether the result was materially affected

(4) Whether the election staff has failed to discharge their duties in accordance with law, if so, its effect

(5) Relief.

4. The petitioner in support of his case produced Muhammad Karim, P.W. 1, Syed Muhammad Sabtain, Additional Revenue E.A.C. Mardan, P.W. 1, Gulfaraz Khan, P.W. 3, Abdul, Qadir, P.W. 4, Haji Younas Khan, P.W. 5, Faqir Gul, P.W. 6 and himself appeared as P.W. 7. On the other hand Tajbar Khan, respondent No. 1, recorded his solitary statement whereafter the case was posted for arguments.

5. I have heard both the learned counsel at length and have perused the evidence on record with their assistance. My issue wise findings are as under:--

The learned counsel for respondent No. 1 during the course of his arguments asserted that this is not the case of the petitioner when he says in para. 9 of his petition that because of the aforesaid corrupt and illegal acts respondent No. 1 got himself elected with a margin of 709 votes over and above the petitioner. The learned counsel vehemently argued that there is a distinction between failure of election on the part of any person but that is totally different from the corrupt and illegal acts. The petitioner has alleged only corrupt and illegal practices and has requested that election be declared void as a whole under section 70 of the Act. The corrupt and illegal practices is covered by subsection (b) of section 70 of the Act. So the case of the petitioner by reading para. 9 of his petition seems to be covered by para. (b) of section 70 of the Act. The contents of an election petition have been defined in section 55 of the Act, para. (b) whereof lays down as under:--

"(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."

In the contents of the petition in hand, the petitioner has only mentioned corrupt and illegal practices but has not given full particulars of the same as required under section 55 of the Act. Neither the names of l any dead person have been mentioned nor any evidence has been led to prove these allegations. There is a marked distinction between section 68 and section 70 of the Act. Section 68 says:--

The Tribunal shall declare the election o the returned candidate to be void if it is satisfied that--

(a) .............................................

(b) ................

(c) .............................................

(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.

As against this section 70 of the Act lays down as under:--

The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of--

(a) ..............................................................

(b) the prevalence of extensive corrupt or illegal practice at the election. "

In this case, in my view, the petitioner has relied upon section 70 only. In the petition the petitioner has relied upon paras. (a) and (b) of section 70 of the Act but during the course of arguments the learned counsel for the petitioner has relied on para. (d) of section 68 of the Act, referred to above. As remarked earlier in view of section 55 of the Act the petitioner has to prove before this Tribunal the corrupt and illegal practices as these were the only 2 points at issue in the petition. But he has miserably failed to do .so through the evidence on record. Corrupt practice has been defined in section 78 of the Act whereas under section 83 "illegal practice" has been defined. Section 82 of the Act gives a penalty of fine and imprisonment for corrupt practice. The proof of corrupt practice before a Tribunal will require strict proof as it becomes a quasi-criminal in nature and the burden of proof lies heavily upon the person who alleges such corrupt practice before a Tribunal. As it has been made punishable under the Act, it will require strict proof in support of the allegation because under section 82, 3 years imprisonment and a fine which may extend to 5,000 rupees has to be awarded. In a case reported in Sher Bahadur Khan alias Malik Bahadur Khan v. Abdul Samad Khan and 14 others P L D 1975 Pesh. 124 their Lordships have held as under:--

Strict proof necessary--Burden of proof--Upon person alleging such practice."

In another case reported as Syed Saeed Hassan v. Pyar Ali and 7 others P L D 1976 S C 6, their Lordships of the Supreme Court have observed as under:-

-Illegal practice Analogy of criminal trial--Holds good in matter of corrupt or illegal practice--Corrupt or illegal practice--Has to be proved to exclusion of reasonable hypothesis consistent with its non-commission--Benefit of doubt--Must go to person charged with corrupt or illegal practice.

The analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non-commission of a corrupt practice and the benefit of doubt must go to the person against whom a corrupt or illegal practice is alleged."

In view of the legal position and the allegation of the petitioner para. 9 of his petition, the petitioner was required to prove through strong and reliable evidence that respondent No. 1 is guilty of corrupt and illegal practices and the result of the election by such corrupt practices has been materially affected. In this case theory of preponderance of evidence of civil nature will fail what to speak of criminal nature.

Now, I will refer to the evidence on record. P.W. 1 Muhammad Karim stated in his statement that he was the pulling agent of the petitioner during the election in question and there were two polling stations in Mian Khan village. He did not know who were the contesting candidates. He was polling agent of 'the petitioner and in fact Chief Polling Agent, but this fact is not mentioned in his affidavit. According to section 55 of the Act the deponent shall positively assert before the Tribunal in his affidavit by naming the person who has committed any fault but this witness has not supported his affidavit and has not stated any truth before this Tribunal.

P.W. 2 Syed Muhammad Sabtain, the Returning Officer at the close of his statement to a Court question has stated that his statement, based on record is correct. From this witness something has come the record which goes in favour of respondent No. 1 that there was no law and order situation, no vote was tendered or challenged. A perusal of his statement clearly shows that he has not supported the case of the petitioner--rather it goes in favour of respondent No. 1.

P.W. 3 Gulfaraz has come with another story, He has given very elaborate list of male dead persons by not giving their names or the areas to which they belonged. Whereas again section 55 of the Act will apply here. No one has challenged the votes of dead person absentees or the persons out of country whose votes have allegedly been polled during the election. So this witness also goes out of the picture. His statement as well as his affidavit is also of no help to the petitioner.

Next comes Abdul Qadir, P.W. 4. He has admitted in his statement that he was the Polling Agent of the petitioner. According to his affidavit based on his information, 673 bogus votes were polled in favour of respondent No. 1, but strangely enough he has not tendered or challenged any such vote.

P.W. 5 is Haji Younas Khan. He has given a statement about the graveyard. The name of Tajbar Khan, respondent No. 1, is not at all mentioned in his affidavit, Exh. P.W.5/1 whereas this witness has stated in. his statement that respondent fro. 1 was present in the alleged meeting wherein Rahim Ghafoor Khan had gifted 12 Kanals of land in favour of "Waqf-e-Ahle-Islam, as mentioned in his affidavit. This witness is admittedly a partison and supporter of the petitioner and, therefore, is of no avail to the petitioner on the charge of corrupt and illegal practice.

Faqir Gul, P.W. 6, has not named any relation of respondent No. 1 in his statement before the Tribunal who was allegedly the Presiding Officer or Assistant Presiding Officer during the election question. At the end of his statement he has clearly stated that the Polling Officers and Presiding Officers are nominated and appointed to the Election Commission of Pakistan.

Lastly comes the petitioner himself. In his statement he has clearly contradicted his petition by saying that the road was blocked by respondent No. 1. He has admitted that he has not reported to the Returning officer about the blockade of road by respondent No. 1, The petitioner has miserably failed in his statement to support his petition though under the law the burden heavily lies on his shoulder and he has failed to discharge the same.

In view of what has been said above, I hold that the petition in hand has not been filed in the prescribed manner, therefore, issue No. 2.is decided in favour of respondent No. 1 and issue No. 3 against the petitioner.

There is no evidence on record in proof of this issue led by the petitioner. The Returning Officer, P.W. 2, has stated in his statement that after, the announcement of the election schedule the polling booths of male and female voters are brought on record and the polling scheme is publicised; that Presiding Officers are also notified. He has produced a list of polling stations with regard to the constituency in question and the same is Exh. P.X. He further stated that the Presiding Officers were also provided for male and female booths and. their names were communicated to him and all of them were on duty on the day of the election. Exh. P.X. provides full details of male and female polling booths established in the said election. This witness also placed on record the list of the Presiding Officers, Assistant Presiding Officers and Polling Officers of each polling station and the number of the total staff according. to his witness was 356 for this constituency. The list of the Presiding Officers is Exh. P.X./1. He further stated that no person complained to him that he was stopped from polling his vote and similarly, none of the polling agents of any of the contesting candidates made such complaint. As such, this issue is also decided against the petitioner.

In view of my findings on issues No. 2 and 3 the petitioner has no cause of action and the issue is decided in the affirmative.

The net result of the above discussion is that this petition fails and is hereby dismissed with costs.

A.A. / 4 / E Election petition dismissed.

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