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Election Petition No. 3 of 1985, decided on 1st July, 1987.

---Litigant person has to succeed on strength of his own case and he is not to look at weaknesses of other side.

Messrs P. K. Basak & Co. Ltd. v. Messrs Gossen & Co. Ltd. P L D 1957 Dacca 233 fol.

--Ss.52 & 78--Election petition--Corrupt and illegal practice- - Principle, "secundum elegate-probate", applicability of--Where corrupt and illegal practices were alleged in a case, proof thereof--held would be required to be as strict as in criminal trial--Plaintiff or petitioner has to win on his own pleadings which he has raised in case--Principle "secundum elegate-probata" (a person has to win on his own allegations) would be applicable where corrupt and illegal practices were alleged by petitioner in election Petition against returned candidate.

---Ss.52 & 78--Corrupt and illegal practices--Non-casting of female votes as result of agreement between parties--Effect--Where petitioner himself was party to agreement whereto no female vote was cast, plea of use of intimidation raised by such petitioner against successful candidate for non-casting of such votes, held, would not succeed on principle that no person could take advantage of his own wrong.

---Ss. 52 & 78--Election petition--Non-casting of female votes due to agreement between parties whether intimidation--Voluntarily asking womenfolk not to come to cast votes, held, would not be intimidation.

P L D 1985 Jour. 316 rel.

---Ss.52, 68 & 70--Corrupt and illegal practice--Requirement for election to be void--No election, held, could be declared as void where Tribunal was satisfied that same had not been affected with connivance of returned candidate--Absence of evidence on record to the effect that election had been affected with connivance of returned candidate--Election petition, held, would be liable to be dismissed.

--Ss.52 & 78--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Art. 10--Disqualification of candidate to contest election or be elected to elective office--Where returned candidate was licence-holder from Customs Department for rendering assistance to private individuals for clearance of their goods, receiving no consideration or remuneration from Customs Department and in fact transacting no such business since 1977, he, held, would not suffer disqualification to contest or be elected as member of Houses of Parliament or Provincial Assemblies.

Muhammad Sardar Khan for Petitioner.

Qazi Muhammad Jamil for Respondent No. 1.

Date of hearing: 18th June, 1987.

On 28th of February, 1985, election was held for the Provincial Assembly of North-West Frontier Province. For the seat of Constituency PF-10, PR-X, three candidates took part in the election, namely, Rehmatullah Khan son of Sher Bahadur Khan, petitioner herein, Dilawar Khan son of Haji Itbar Khan and Noor Muhammad Khan son of Shad Muhammad Khan, respondents Nos. 1 and 2 herein. Dilawar Khan, respondent No.1, however, was declared as a returned candidate per Notification No. F.24(2)/85-Coord. published in the Gazette of Pakistan dated 6th March, 1985. The present election petition under sections 52 and 78 of the Representation of the People Act, 1976 (Act LXXXV of 1976) read with other relevant provisions of law has been filed by Rehmatullah Khan against Dilawar Khan and Noor Muhammad Khan, respondents herein, on the grounds that the election of respondent No.1 is void due to corrupt and illegal practices committed by him, his polling agents, his close relations and other persons, with his connivance or in collusion with the election staff /local administration at various Polling Station. In the petition the petitioner has given certain particulars of corrupt and illegal practices committed by respondent No.1 laying great emphasis on the ground, amongst others, that the polling of women voters was stopped by the Presiding Officer at Female Polling Booth in Polling Station No.31, Government Primary School Rashakai and at the Polling Station Mian Isa and that the supporters of respondent No.1 had started indiscriminate firing at the bidding of respondent No.1 in order to intimidate and harass male and female voters to refrain from voting. The petitioner further alleged that several voters were injured as a result of the firing and the First Information Report No.64 was lodged at Police Station Shabqadar at 1-00 p. m. The petitioner also alleged in the petition that a large number of bogus votes through imposters were got polled at various Polling Stations by respondent No.1 with the active help of his polling agents and the staff on duty of the persons who were either dead or abroad. It was also alleged that voting by ladies voters was stopped at 2 p.m. by the Presiding Officer at the Polling Booth Matta Mughal Hamza Khel Polling Station, thus preventing a large number of women voters from polling their votes. Similarly, under the same exercise, polling of ladies votes at Polling Station Subhan Khwar was stopped at 1 p.m. i. e. about 4 hours before the end of the polling time, denying free right of franchise to a number of ladies. Besides this, the petitioner also laid great stress on the point that respondent No.1 is a Clearing and Forwarding Agent and holds an Agency to transact business at Land Customs Station Peshawar, Torkham and Shabqadar under the name and style of "Mohmand Customs Agency Peshawar" since 1-1-1967 to date and thus he was disqualified from being elected as and from being a member of the Provincial Assembly under section 99 of the Representation of the People Act 1976. In the end of his petition the petitioner has prayed that the election of respondent No.1 be declared as void and the petitioner be declared as elected member, having polled the highest votes.

2. Respondent No.2 though served did not appear and was thus placed ex parte. However, respondent No.1 contested the election petition and submitted his written statement. He alleged therein that the petition does not disclose the grounds described by law on the basis of which the election of respondent No.1 could be declared as void; that the petition does not specifically disclose as to how the result of the election has been materially affected by the so-called corrupt and illegal practices, which allegations are totally baseless; that the entire election was conducted in accordance with law and procedure prescribed by law and, both at the time of election and after the election neither the petitioner nor any of his polling agents made any objection to the conduct of the elections. Hence the petition is an afterthought and the same may not be entertained at the cost of public exchequer and that the affidavits attached with the petition are false. Respondent No.1 vehemently denied the allegation of the petitioner that the lady voters were prevented to cast their votes.

He asserted in his written statement that the polling of women voters went on in accordance with schedule and the same was only stopped when womenfolk ceased coming which was decided by the candidates including the petitioner, in writing. It was on account of an agreement signed by the parties and duly executed by the officer concerned, hence the blame, if any, could not be attributed to respondent No.1. The alleged agreement in this respect was attached with the written statement. It was also submitted by respondent No.1 that there was no bogus votes cast during the election. In the same written statement respondent No.1 vehemently denied that he ever received bogus votes of those persons who were either dead or abroad. He submitted that such an allegation in the context of secrecy of ballot is absolutely baseless. In fact the persons mentioned in the lists furnished by the petitioner are not out of station or dead as is evident from the annexures/counter-affidavits attached with the written statement. After refuting the other contentions of the petitioner it was prayed by respondent No.1 that the petition being frivolous and misconceived may be dismissed.

3. On the pleadings of the parties the following issues were framed:-

(1) Whether respondent No.1 was guilty of illegal practices as alleged in the petition, if so, what is its effect on the election of respondent No.1 and on the election as a whole

(2) Whether respondent No.1 was disqualified from election as alleged in sub-para (j) of Para 6 of the Election Petition

(3) Relief

The petitioner produced 11 witnesses and also recorded his own statement Is P.W.12 in support of his petition whereas respondent No.1 produced only 2 persons and recorded his short statement to the effect that as there is no case against him, he does not want to produce any other evidence. After recording the' evidence of the parties as they wished to adduce, I heard the learned counsel for the parties at great length and my decision on the two issues would be as follows:-

It is a well known fact that a person has to succeed at the strength of his own case and he is not to look at the weaknesses of the other side. In support of this well-known fact an authority reported in Messrs P. K . Basak & Co. , Ltd. v . Messrs Gossen & Co. , Ltd. PLD 1957 Dacca 233 can be quoted with advantage. In this authority their Lordships have observed as under:-

"(c) Practice--Plaintiff's success must depend on strength of his own case and not on weakness of defendant.

The plaintiff's case must stand or fall upon its own strength. He cannot be allowed to succeed upon the weakness of his adversary's case."

The judicial precedent is that when corrupt and illegal practices are alleged in a case, then the proof is to be as strict as criminal trial. A plaintiff or a petitioner has to win on his own pleadings, which he raises in the case and the principle is "secundum elegate - probata" ( a person has to win on his own allegations). In this case certain corrupt and illegal practices were alleged by the petitioner saying that these were committed by respondent No.1 during the election but a look at the petition as well as the written statement filed by respondent No.1 will show that the petitioner has made no mention of an agreement to have been arrived at between them regarding the non-polling of the ladies votes. On the other hand respondent No.1 in his written statement has straightaway mentioned the existence of a written agreement regarding the polling of ladies votes between the petitioner and respondent No. 1. From a careful perusal of the evidence on record, to which I will refer later on, it comes to light that the petitioner is not correct in saying that the voting was stopped by intimidation. In fact this plea was not at all taken by the petitioner but it was so taken when respondent No.1 filed his written statement and mentioned therein that the voting was stopped on account of an agreement between the parties. The petitioner has only taken the plea of intimidation that respondent No.1 stopped the voting and that he is responsible for the same but he has completely ignored the established principle of law that no person is to take advantage of his own wrong.' In support of this view I would like to refer to an authority reported in Darvesh Khan v. Muhammad Sher Khan and others 1986 S C M R 352 which is very much clear on this point. Out of this judgment I would like to quote paragraph 11 which is as follows: -

"11 . .............................................................

we are of the firm view that respondent No.1 having himself by his own act created a situation whereby no female vote was cast, cannot be allowed to make a grievance of the same fact in support of his challenge to the election before the Election Tribunal. At any rate this fact clearly disentitled him to the equitable remedy in the Constitutional jurisdiction before the High Court which he had invoked to his advantage. This is sufficient to dispose of this appeal and we feel that it is not necessary to go into further questions of law noticed in the leave granting order. Constitutional petition was, therefore, liable to be dismissed on this preliminary ground in view of the admitted facts of the case."

Through this cited judgment the Hon'ble Judges of the Supreme Court had recalled the writ issued by the High Court and also the judgment of the election Tribunal.

Regarding intimidation, I would like to say that voluntarily asking the womenfolk not to come to cast votes would not be an intimidation and in support of this view reference can be made to PLD 1985 Jour. 316. The principle covering the trial of an election petition are given very elaborately, amongst others, in the judgment of the Supreme Court of Pakistan reported in Muhammad Saeed and 4 others v. Election Petitions Tribunal West Pakistan and 3 others PLD 1957 Supreme Court (Pak.) 91) wherein their Lordships have observed as under:-

"(c) Election Petitions Trial of Principles stated.

Principles governing trial of Election Petitions are:

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 been committed."

Now I will revert to the evidence on record. The official witnesses produced by the petitioner also described the non-voting of the female voters as agreement and not intimidation. P.W.1 Abdul Rauf Khan, who was the Returning Officer during the election stated that there was no written protest about the removal of the ballot-boxes. According to him the polling was going on peacefully and it went on till the last time. Same situation emerges out of the statement of P.W.2 Muhammad Younas, who was Assistant Presiding Officer during the said election. In his statement he nowhere blames any person, including himself, for stopping the polling as was alleged by the petitioner in the petition. Abdur Rashid Lodhi, P.W.3, who was Presiding Officer at Polling Station Rashakai during the said election, deposed regarding the certificate Exh. P.W.3/1 and stated that this certificate was given to the petitioner at his request. He further stated in his cross-examination that he had not observed any lady voter being forcibly prevented from casting her vote. P.W.4 is Sher Zada Khan, Assistant Commissioner Hangu, who was Assistant Commissioner 'Charsadda during the days of election. He stated that there was no complaint about a lady voter having come to the Polling Station and then. prevented from casting her vote. He also stated in his statement that the alleged agreement was shown by the parties to their Polling Agents but the witness had informed the Presiding Officer and the other polling staff that that was a private arrangement and requested that if any lady turned up to cast her vote she should be allowed to do so. This reference to the evidence of the petitioner proves no collusion as alleged by him between respondent No.1 and the officer incharge at the time of polling. P.W.6 Syed Parvez Ahmad has filed his affidavit, Exh. P.W.6/1, alongwith the election petition but, in my view, his testimony cannot be given any credit. According to him he was a supervisor and not a Polling Agent of the petitioner yet he went to the "zanana" Polling Booth where he allegedly saw the fingers of the women in the Pakhtoon Society for confirmation of the fact that those have not been marked with indelible ink, which is beyond imagination. He was admittedly arrested on the day of election but still he watched the whole proceedings. So, in my view, such a witness would be of no credit for proving that respondent No.1 was responsible for preventing the women to cast their votes. Next is the statement of Behrullah son of Haji Asif Khan (P.W.7). This witness stated that he does not know as to who has written his affidavit, Exh. P.W.7/1. But in the second breath he admits that it was the petitioner's man. He does not say that his mother or sister were prevented from casting votes. He only said that some ladies had come to the Polling Booth to poll their votes after 3 p.m., including his mother and sister.

As far as the missing persons are concerned, Janas Khan son of Aslam Khan was produced by respondent No.1 as R.W.2 and he filed his affidavit, Exh. R.W.2/1 wherein he has stated that:

In my view statement of this person, who says that by the Grace of God he is alive and has not yet passed away from this world, is enough to show that the evidence produced by the petitioner is incorrect. If one affidavit is proved to be wrong in respect of one person then the other affidavits would also be wrong. A Polling Agent is normally supposed to know the people of the area but in this case the Polling Agent of the petitioner had not raised any objection to the casting of votes in respect of dead or absent persons because nothing has been brought on record with regard to this aspect of the case. And this will not be a proof that such casting .of votes had merely affected the result of the election because no one can say with certainty that who cast his vote in whose favour. The evidence produced by the petitioner also does not conclusively prove that the so-called missing persons had cast their votes in favour of respondent No.1. Rest of the witnesses of the petitioner have also contradicted themselves from the affidavits. Even the lady witness produced by the petitioner, viz. Mst. Nazakat Begum (P.W.10) stated in the cross-examination that she had not given the name of any person in her affidavit who had resorted to firing or removed the tents etc. from the female polling booth.

Coming to the legal aspect of the case, I would like to say that- according to law the important point is that there has been made no distinction between the two sections of law i.e. Section 68 and 70 of the Representation of People Act 1976. Although no evidence has been brought on the record by the petitioner with regard to the legal aspect of the case but for the sake of arguments I would say that Sections 68 and 70 may differ on the questions of "materially affecting the results of the elections" but as far as the illegal and corrupt practices are concerned, subsection 2(a) of section 68 is very much clear and the same runs as under:-

"(2) The election of a 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."

So, election could not be declared as void if the Tribunal is satisfied that the same has not been affected with the connivance of the returned candidate. In the case in hand I find no evidence on record to the effect that the election has been affected with the connivance of respondent No.1.

Once again at the cost of repetition I will say that from the evidence on record it has nowhere been proved that any woman voter was prevented from casting her vote. On the contrary, trial and official witnesses have said that the election was held peacefully. Similarly, it has not been established through the evidence on record that there was any intimidation from the side of respondent No.1 to stop the women from casting their votes. As such, I decide this issue against the petitioner.

It has not been proved through any evidence on record that respondent No.1, Dilawar Khan, is a. contractor. He has been a licence-holder from the Customs Department for rendering assistance to the private individuals for clearance of their goods. No consideration, or remuneration was being paid to him by the Customs Department as was stated by P.W.5 Muhammad Wali Khan, Deputy Collector Customs and Central Excise Peshawar, produced by the petitioner. He has also stated in his statement that respondent No.1 neither supplied any goods to the Department nor rendered any service to them. According to him respondent No.1 has not transacted any customs assistance since 1977, therefore, in my view, respondent No-1 had no subsisting interest in the aforesaid assignment at the time of contesting the election. Even ins contractual matters the Supreme Court in the cases reported in Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others P L D 1986 S C 698 and Muhammad Khan v. Syed Abdul Khaliq and others P L D 1986 Supreme Court 717 has laid down that in order to be disqualified the person concerned must have subsisting interest in the transaction concerned, which is not. the case here. Hence I hold that respondent No.1 is not covered by the disqualification clause contained in the Election Commission Order, 1977 or the Representation of the People Act 1976. Issue No.2 is also; decided against the petitioner.

On the view of the matter that I take, this election petition being devoid of any merits, is hereby dismissed with costs.

A.A. /10/E Election petition dismissed

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