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Election Petition No-10 of 1985, decided on 13th July, 1987.

--S.52--Election petition-- petition--Objection with regard to polling arrangements for female voters not raised on day of election by petitioner--Effect--Where petitioner had not raised any objection relating to polling arrangements for female voters, but had signed result of the election alongwith his polling agents, such petitioner, held, would be estopped to raise objections thereto in election petition--Allegations in election petition that female voters could not cast their votes, were nothing but afterthought and not substantiated by oral or documentary evidence.

---Art.71--Representation of the People Act (LXXXV of 1976), S.52- Election petition--Hearsay evidence--Effect--Allegations of corrupt practices in election--Petitioner failing to furnish detail of allegations in election petition--Effect--Where petitioner failed to furnish detail of corrupt practices in election petition and admitted in his own statement that listed allegations against returned candidate were not his personal observations or his own hearing, such petitioner having heard such allegations from other persons, held, would bring that evidence within ambit of hearsay evidence which could not be relied upon in deciding election petition.

---S.52--Election petition--Holding of election during Martial Law when political parties were banned--Presumption, held, would be that returned candidate did not contest election from the platform of a political party.

---S.52--Election petition- Allegations contained in election petition not substantiated through evidence--Effect--Where allegations contained in election petition about corrupt practices were not substantiated by petitioner through evidence, election petition was dismissed being devoid of merits.

Jalaluddin Akharji for Petitioner.

Abdul Hakim Khan Kundi for Respondent No.1.

Date of hearing: 24th June, 1987.

Doctor Haji Misal Khan, petitioner herein, has filed this election petition under section 52 of the Representation of the People Act, 1976 (Act LXXXV of 1976) in respect of election for the National Assembly Constituency No.NA-7 Mardan-II, against Maulana Gohar Rehman, Shakirullah Khan, Shafiq Alam Khan, Abdul Ghani Khattak, Abdul Malik and Muhammad Yaqoob Khan, respondents 1 to 6 here . The petitioner has also arrayed Returning Officer, NA-7 Mardar and District Returning Officer/Deputy Commissioner, Mardan respondents 7 and 8. It may be mentioned here that respondent was declared as the returned candidate in this election and petitioner has challenged his success through this petition.

2. The main grievances of the petitioner are that the Returning Officer and the District Returning Officer, respondents No.7 and 8 were under the legal obligation to establish polling booths in the Polling Stations for males and females separately and to arrange Presiding Officers and other staff for the same; that in the Polling Stations mentioned serial wise in Annexure-B from S. No.7 to 10, 12 to 14, 17 to 27, 33 to 37, 41, 48 to 50, 52, 53, 54 to 62, 66 to 76, 79 and 87 to 91 female Polling Booths are mentioned, but there were neither female booths nor staff for the female polling booths were available and there were no arrangements for casting of the votes by the females in the aforesaid serial wise polling stations for the contesting candidates, that respondent No.1 expanded hundreds and thousands of rupees much more than the prescribed limit of Rs.40,000 in the elections himself and through his supporters; that respondent No.1 is guilty of undue influence by projecting himself and as well as through his supporters that he is the only pious Muslim and in the mosque of the area publicly declared that if the voters did not cast vote for him, then divine displeasure will follow; that respondent No.1 is disqualified to contest the elections or to be declared elected for the seat in the National Assembly as respondent No.1 is office bearer of a Political Party known as Jamat-e-Islami and that according to law and public declarations elections for the National Assembly of Pakistan were to be held on non-party basis.

3. Respondent No.1 filed his written statement in which he vehemently refuted the contentions of the petitioner. Respondents 2 to 4 were served through publication in the Daily Mashriq but they did not appear to contest the petition, hence ex parte proceedings were taken against them. However, respondents 5 and 6 also filed their written statements. Likewise written statements were also filed by respondents Nos.7 and 8 wherein they also repelled the contentions of the petitioner. However, on the pleadings of the parties three preliminary issues and four regular issues were framed which are as under:--

(1) Whether the petition is not competent in its present form for misjoinder of necessary parties

(2) Whether the petitioner is estopped to file the present petition

(3) Whether the petitioner is incompetent for want of verification of the annexed documents in the prescribed manner

(1) Whether according to the allegations contained in paragraphs 5 to 9 in the petition the results of the Election have been materially affected

(2) Whether respondent No.1 was disqualified to contest the Election according to paragraph 12 of the petition

(3) Whether respondent No-1 has spent more than the prescribed sum of money in the Election, if so, with what effect

(4) Whether respondent No.1 is guilty of illegal and corrupt

practices, if so, its effect on the Election of respondent No.1 and on the Election as a whole

(5) Relief.

4. When the case was fixed for the evidence of the petitioner and three witnesses were examined, learned counsel for the petitioner submitted an application to the effect that he wanted to cross-examine the Returning Officer and District Returning Officer, respondents 7 and 8 respectively, on the ground that in their written statements they have denied the allegation of the petitioner in respect of female polling booths. Learned counsel for respondent No.1, on the other hand, wanted to contest the application and accordingly he submitted his replication. Thereafter the learned counsel for the petitioner filed another application for summoning respondents 3 and 4 as witnesses of the petitioner. This application was also resisted by the learned counsel for respondent No.1 whereafter the case was fixed for arguments on the applications. Vide order dated 3-5-1986 this Tribunal dismissed the application for cross-examining respondents 7 and 8. On 5-10-1986 after hearing the learned counsel for the parties on the second application of the petitioner for summoning respondents 3 and 4 as his witnesses, it was also dismissed. Thereafter the evidence of the parties was recorded.

5. I heard the learned counsel for the parties at great length and have gone through the evidence on record very carefully with their help. Now I proceed to dispose of issues as under:--

The objection raised by respondent No.1 that the petition is not competent in its present form for misjoinder of parties has not been substantiated by any evidence on record. This issue is, therefore, decided against respondent No.1 for want of evidence.

The evidence on record to which I will refer later on would show that the petitioner has not raised any objection on the day of polling with regard to his contentions now raised in the election petition. On the other hand, the petitioner and his agents have signed the result of the election without any protest. As such, he is estopped by his conduct to raise the present objection. This issue is, therefore, decided in favour of respondent No.1.

Nothing has been brought on the record in support of this contention of respondent No.1. As such, this, issue is also decided against respondent No.1.

As all these issues are inter-connected, therefore, they are being taken up together. It has nowhere been mentioned in the petition that female staff was not arranged. The petitioner has made allegations that no staff was provided for casting the votes of female voters. So far as the written statements of respondents 7 and 8 are concerned, they have categorically denied that there were no such arrangement It is on record that even in the absence of polling booth for the female voters in Polling Station Babu Zai and Shamo Zai, ladies had cast their votes. No objection whatsoever was raised at any stage by the petitioner or his polling agents for any short of arrangements for female voters. So that allegations now raised in the election petition in hand are nothing but an afterthought and are not substantiated by any oral or documentary evidence to which I now refer.

P. W.1 Muhammad Khalid Khan son of Haji Malik Yar Mulls, was produced by the petitioner in support of his affidavit EX.PW.1/1. This witness has not mentioned any specific polling station in his affidavit, nor has said that all females were deprived from casting their votes. He has not given any detail or the number of ladies or the name of Polling Station or the way through which ladies were deprived from casting their votes for the reason that no polling booths were provided in the polling stations.

Second witness produced by the petitioner is Sher Zada son of Haji Baz Gul, P.W.2. He has supported the contents of his affidavit, Ex.PW.2/1, but it may be mentioned here that his objections regarding the arrangement of the Polling Booths are also of general nature. Neither any specific polling station has been pointed out by him nor any specific number of the ladies has been given by this witness who had been deprived from casting their votes.

Next comes P.W.3 Akbar Khan son of Bacha Khan, whose affidavit is Ex.PW.3/1 on the file. His affidavit is also of the same type. There is no averment regarding separate female booths in the affidavit. In fact petitioner's own case is that there were arrangements in some polling stations but there were none in the other polling stations. Thus, in my view, the petition is mala fide because petitioner has raised no complaint/ objection whatsoever even upto the declaration of the subsequent results by the Returning Officer. The petitioner was examined as P.W.4. His evidence with regard to the arrangement of female polling booths at polling stations Mian Isa and Takht-bhai is contradicted by other evidence brought on record.

There is no specific allegation in the petition that respondent No.1 contested the election on party basis or he was an office-bearer of Jamat-e-Islami at the time of election. For the first time it was mentioned in the petition by the petitioner that respondent No.1 has declared through his 'Fatwas' that the persons who would not cast vote for him would receive divine displeasure. Pasting of posters in support of respondent No.1 is also an allegation which has been taken for the first time in his statement by the petitioner. No such allegation in the petition has been made. Furthermore, the petitioner has not specifically mentioned that the amount allegedly spent by respondent No.1 during the election campaign has come from which source. In his cross-examination the petitioner has stated that he has not listened any 'Fatwa' of respondent No.1 in support of his demand of votes from the voters.

So one would come to the conclusion that the petitioner has come with four main allegations in this petition which he has attempted to prove through oral evidence, although he has miserably failed in bringing on record any cogent evidence in support thereof. Some of the details which he has tried to furnish at this stage were admittedly omitted by him to be mentioned in the election petition and the petitioner himself even in his own statement has categorically admitted that the allegations against respondent No-1 were not his personal observation or his own hearing and at the most he could have heard it from some other persons which in the light of Qanoon-e-Shahadat has no credit to be relied upon. The above-said 4 allegations of the petitioner are that there were no separate booths with female staff for the female voters and that polling staff, has failed to comply the instructions /directions of the Election Commission, as such, the said non-compliance has affected materially the elections and the same is void under section 70(a) of the Representation of the People Act, 1976; second allegation is that the petitioner has spent much more money than the prescribed limit of Rs.40,000 during his election campaign; the third allegation is that respondent No.1 has secured votes by influencing the voters by representing himself as the only pious man and that casting of votes in his favour would amount to perform religious obligations while on the contrary divine displeasure would follow; and the last allegation is that respondent No.1 at the time of his nomination as well as election was an office-bearer of Jamat-e-Islami which then existed as a Political Party. It may be pointed out here that according to Sections 8 and 9 of the Representation of People Act, there is no mention of appointing female polling staff in each and every polling station and similarly, there is no provision for providing female polling booths in each and every polling station. There was no objection or complaint from any quarter that there was any shortfall in the arrangements by the Election Commission or the election staff. The legal position emerging from this situation, therefore, would be as to whether any elector has been denied his right of franchise including females but the record and evidence available on the file would not suggest any such type of allegation or any instructions that a voter who had come to the Polling Station had been disenfranchised from casting of his vote.

As regards the allegation that respondent No.1 had spent much more money on his election than the prescribed limit of Rs.40,000/-, it would suffice to say that under President's Order respondent No.1 was not required to submit the return of his election expanses. Of course, Section 49 of the Act is very much in existence but respondent No.1 has categorically denied on oath that he had not spent much more money in the elections. The petitioner has also not brought on record any evidence to show that respondent No.1 has spent even upto the extent of Rs.40,000/-. The petitioner's own statement is very much clear and fair when he says that he himself cannot say anything about respondent No.1 having spent any amount. Therefore, this point also falls to the ground.

With regard to undue influence by projecting himself as the only pious man amongst the contesting candidates by respondent No.1, a reference to allegations made in para. 10(b) of the election petition is necessary. But it may be noted that this allegation has been negated by the petitioner himself during his statement wherein he has stated that he himself had not heard respondent No.1 saying so, nor he had listened any 'Fatwa' or speech of respondent No.1. The Petitioner also does not say that he has heard this thing from such and such person or at such and such place and time. As such, this allegation is also without any force.

Coming to the last allegation of the petitioner that respondent No.1 was disqualified to contest the election, I will refer to allegations made in Para.12 of the Election Petition which are 'general type, allegations. No reference to any document has been given by the petitioner therein, nor to any public meeting which could show that respondent No.1 was disqualified to contest the elections being a Member of a Political Party at the time of his nomination or election. The learned counsel for the petitioner made a reference to the statement of the petitioner as well as the witnesses produced by him but respondent No.1 is rebutting all this evidence on record by saying that there was no political party worth the name of Jamat-e-lslami at the time of his nomination as well as election and it is on record that the elections were held in the country when there was Martial Law governing the affairs of the Country and all the Political Parties were defunct under the Martial Law Regulation. So the presumption would be in favour of respondent No.1 that there being no political party in existence by the name of Jamat-e-Islami, the question of contesting the election by respondent No.1 on party basis would not arise. However, Tahrik-e-Islami is not known as a Political Party in the Country but is a religious organisation and its membership would not mean that any such member was disqualified to contest the election having affiliation with certain Political Parties. The petitioner has not brought on record anything worth the name to show that there was a Political Party by the name of Jamat-e-Islami during the elections and that respondent No.1 was its office-bearer or a member.

As such, I would decide all the four issues against the petitioner.

Relief.

The net result of the above discussion is that the petitioner has miserably failed to substantiate his allegations contained in the election petition through the evidence on record. As such, This petition being devoid of any force is hereby dismissed with costs.

A.A. /11/E Petition tai 3missf-

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