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Election Petition No.10 of 1985, decided on 21st January, 1987.

---S.27(1)--Election--Fight taking place between polling agents of one candidate and a polling agent of another candidate but riot or disturbance was not of such a magnitude as envisaged by S.27, so that polling, ought to have been adjourned--Polling was obstructed for some time which was subsequently resumed without objection by contesting candidates--Voting continued smoothly till all the voters present at the polling station had cast their votes--Held, it could not be said in circumstances, that quarrel had disrupted the election so much that it had materially affected the election.

Imanuddin Sikdar v. Election Tribunal and Additional Deputy Commissioner, Faridpur and others P L D 1967 Dacca 644 and Kanwar Ijaz Ali v. Irshad Ali P L D 1986 S C 483 ref.

Mirza Abdullah Jan and S. Muhammad Aslam Khan for Petitioner.

Fazal Hussain for Respondent No.1.

Kh. Nazir Ahmed, Asstt. A.-G. for Respondent No.5.

Date of hearing: 3rd September, 1986.

The petitioner and respondents No.1 to 4 contested election to the seat in the Provincial Assembly of N.-W.F.P. Constituency PF-46 Mansehra-IV in the general election which took place on 28th February, 1985. When counting took place 8,696 votes were found to have been polled in favour of respondent No.1 while the petitioner secured 8,332 votes. Consequently respondent No.1 was declared elected and notified as such in the Gazette of Pakistan dated 6th of March, 1985.

The petitioner challenged the election of respondent No.1 mainly on the following grounds through an election petition made under section 52 of the Representation of People Act, 1976 (hereinafter to be called the Act):----

(1) That a fight took place on the day of polling at 10.30 a.m. at Polling Station Kolakka between Mohammad Ashraf Polling Agent of Mohammad Salim respondent No.3 and Mohammad Humayun Polling Agent of respondent No.2 with the result that both the combatants lodged reports at Police Station Oghi; that the total strength of the polling station was 1, 213 votes but as the polling remained suspended for about three hours about three/four hundred voters left the polling station at the asking of respondents 1 to 3 and that failure or the part of the Returning Officer to adjourn the polling to a date to be notified later or to hold fresh election on a later date deprived majority of voters from casting their votes which has materially affected the result of the election.

(2) That the respondent arranged get-together meeting during the election campaign and impressed upon the voters that they would be declared owners of the land in their occupation and relieved of payment of rent if they cast their votes in his favour.

(3) That it was impressed upon the Gujjar tribe to which the respondent No.1 belongs that if they did not vote in his favour they would be ex-communicated and he will not share their weal and woe.

(4) That illegal gratification was offered to the voters and they were further threatened with dire consequences.

(5) That respondent No.1 had falsely propagated a day before the polling that the petitioner had withdrawn from contest in his favour which materially affected the election.

In support of the contents of the petition joint statement of several persons on affidavit was filed alongwith election petition. Certified copies of the F.I.R. referred to above, list of double votes and list of dead voters were also filed.

Respondent No. l in his written statement refuted the allegations to be false and mala fide and several legal objections were raised to the competency of the election petition. The Returning Officer (respondent No.5) namely Mr. Kamran Qureshi Assistant Commissioner Mansehra also filed his parawise comments in reply to a notice served on him, in which he stated, in the light of the statement of the Presiding Officer submitted to him, that the pleas of fact raised in the election petition as far as it concerned the conduct of election, were incorrect.

The incident referred to above, however, was stated to be not in any way serious enough to warrant stoppage or adjournment of the polling. It was further stated that all the voters present at the polling station were given fait opportunity to cast their votes and that no complaint was made before him of any irregularity or illegality allegedly committed by the candidates during the ejection campaign. My predecessor framed the following issues arising out of the pleadings of the parties:-

(1) Whether the affidavits attached with the petition are not in accordance with law, if so, its effect

(2) Whether respondent No.1 has procured the election through the commission of illegal and corrupt practices and illegal acts

(3) Relief.

Apart from the petitioner, Janda son of Madya, Syed Mahfoozul Haq Shah son of Syed Zalandar Shah, Gohar Rehman son of Shaal, Raja son of Aziz, Iftikhar Qadir (Presiding Officer), Mohammad Ashraf son of Haider Zaman, Rahim Shah SHO P.S. Oghi and Mohammad Yunis Muharrir Assistant Commissioner (Returning Officer P.F.46) appeared in support of the petition while respondent No.1 appeared as his own witness and examined Pir Alam Shah son of Mardan Shah, Muhammad Khan son of Fazal Rehman, Abdul Latif son of Ghulam Din, Mian Imran son of Haji Mohammad Ayub, Jumma Khan son of Mir Ahmad, Khushal Khan son of Arsala, Gohar Rehman son of Mohammad Noon and Sardar Mohammad Ayub son of Malik Aman were examined.

Though the petitioner has led evidence in support of the alleged illegal and corrupt practices enumerated above but he failed to substantiate it. It was, therefore, that the learned counsel for the petitioner confined his arguments to the allegation made in para 4(a) of his petition which has been enumerated as ground No.1 in the earlier part of this judgment. However, it may be pointed out that his own statement in this respect is very vague and of no help to his case. He did not mention of any particular instance to substantiate his plea that undue influence was exercised over the voters or that illegal gratification was paid to them. He also failed to pinpoint when, where and at what time the rumour regarding his withdrawal from election was spread by respondent No.1. As far as witnesses are concerned their statement also suffers from the aforementioned infirmities.

Janda PW when examined stated that it was a plain paper on which his thumb impression was taken and that the affidavit was recorded some three days after the election. However, he did not name respondent No.1 or any of his agents having disclosed it to him. Gohar Rehman PW and 3 others have made their joint statement on affidavit which is Ex.PW.4/1 on the file in which they that on .27th February, 1985 they were present in the Bazar of village 'Battal that at about 2.30 p.m. respondent No.1 alongwith three other persons came there and apprised him as to whether they heard that Haq Nawaz has withdrawn from the contest and further stated that now the contest is between him and Faiz Mohd. Khan and further stated that in the name of Gujjar their tribe he requests for their votes. Out of these four persons who have made this joint statement Gohar Rehman (PW.4) appeared in the witness box and admitted that he was an employee of the Agricultural Department in Baffa and that one Sadiq is an officer of the Agricultural Department who is the brother of Habib Ali Shah. He showed his ignorance about Habib Ali Shah's relation with the petitioner and further denied having put his thumb impression on a plain paper. It may be pointed out that the petitioner in his statement has admitted that Habib Ali Shah is related to him. This being the position his statement cannot be relied upon in the context of the charge alleged against respondent No.1. Rest of the statements are with regard to the alleged quarrel which had taken place.

As far as the alleged quarrel which had taken place between the agent of respondents No.2 and agent of respondent No.3. there is sufficient evidence in support thereof, Apart from the statement of Iftikhar Qadir (PW.6) who was the Presiding Officer at Polling Station Kolakka there are certified copies of the F.I.R.s. which are proved through the statement of Rahim Shah, SHO Police Station Oghi (PW.8).

Even respondent No.1 and his witnesses did not deny the fact that a quarrel took place between the agents of respondents No.2 and 3 at about 10.30 a.m. and the polling remained suspended for about 11 hours but it is proved on the record that after sometime the polling re-started and all the voters who had come to the Polling Station for casting their votes did cast their votes but not a single voter was produced from the Polling Station in support of the petitioner's claim that he had left the Polling Station due to the disturbances and there after he was not afforded an opportunity or in other words that he was obstructed to exercise his right of franchise. This being the position reference is to be made to the relevant provision of law governing the situation. Section 27(1) of the Act reads as under:-

"(1) If at an election the proceedings at any polling station are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station on account of any natural calamity, or any other sufficient cause, the Presiding Officer shall report the circumstances to the Returning Officer who may adjourn the poll to a date to be notified later."

From the plain reading of the provision it is evident that election must have been interrupted or obstructed by any riot or upon violence and on that score it is not possible to continue with the polling in the opinion of the Presiding Officer he was to report the circumstances to the Returning Officer who is the competent authority to adjourn the polling to a date to be notified later. Clause (2) of section 27 further provides the manner in which on the approval of the Commission to take poll on the appointed and notified day and that the counting was to be made of the votes cast alongwith the votes to be polled on the adjourned day.

Admittedly the quarrel took place between the two agents of respondents No.2 and 3 referred to above and there was no riot or disturbance of a magnitude envisaged by section 27 of the Act. The authority relied upon by the learned counsel for the petitioner namely Imanuddin Sikdar v. Election Tribunal and Additional Deputy Commissioner Faridpur and others P L D 1967 Dacca 644. It is open to the Tribunal to form its view on the evidence led before it whether the disturbance or afray was of such a magnitude that polling ought to have been adjourned. However, in the instant case it is pointed out that no such evidence has been led. Dealing with the question their Lordships of the Supreme Court of Pakistan in Kanwar Ijaz Ali v. Irshad Ali P L D 1986 Supreme Court 483 observed as under:-

"But, after having gone through the relevant evidence we are of the opinion that the plea being raised by the appellant's learned counsel is entirely against the weight of the evidence and on the other hand are inclined to agree with the conclusion arrived at by the Election Tribunal that no incident of any seriousness had taken place which necessitated the adjournment of the poll. According to section 27 of the Act if at an election the proceedings at any polling station are "interrupted" or "obstructed" by any "riot" or "open violence" the Presiding Officer shall report the circumstances to the Returning Officer who may adjourn the poll to a date to be notified later. In the instant case, the disturbance which took place was over in about 5/6 minutes and there was neither any riot nor any open violence nor was the polling at Polling Station No.59 either interrupted or obstructed. Furthermore, this disturbance was the handwork of the supporters of the appellant himself. It appears that the appellant was doing very poorly at this polling station and his supporters appear to have thought of this stratagem to save the day by securing an adjournment of the poll at this Polling Station. The report of the Superintendent of Police and other evidence makes it amply clear that the disturbance was the result of the doings of the appellant's supporters."

Even if on the facts of the present case the polling was obstructed for sometime which was subsequently resumed without objection by the petitioner or other contesting candidates the voting continued smoothly till all the voters present at the polling station cast their votes and no grievance could be raised. Subsequently after the counting was made the petitioner was found to have polled only 10 votes in his favour while on the contrary 12 votes were polled in favour of respondent No.1 and 168 in favour of respondent No.3. This being the position it cannot be said that the quarrel between the two persons has disrupted the election so much that it has materially affected the election.

For the reasons stated above the petitioner having failed to substantiate his allegations through cogent and legal evidence both the issues are decided against him and in consequence thereof the election petition stands dismissed with no order as to costs.

M.A. K./8/E Petition dismissed.

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