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Election Petition, decided on 31st August, 1987.

---Ss.52, 68(1)(c)(d) & 70--Election petition--Petitioner alleging that election of respondent had been procured by illegal and corrupt practices and praying that election as a whole be declared void on that account--Alleged corrupt and illegal practices were (i) that respondent during his election campaign had been propagating that petitioner had turned Shia and asking Sunni voters to refrain from casting votes in petitioner's favour; (ii) that respondent offered and paid illegal gratification to voters for securing their votes; (iii) that respondent used official influence and openly projected himself to be the Government nominee, and (iv) that respondent prevented free exercise of franchise by restraining female voters from casting their votes--Such allegations, if proved, would necessarily result in declaring election void as a whole--Allegations, however, being of criminal nature, provisions of law were to be strictly construed and for their proof same quality of evidence was required as was required for proof of criminal charge and beyond any reasonable doubt--Witnesses produced by petitioner in support of first allegation, found to be chance witnesses and happening to be present in villages other than their own at time when alleged announcements were made--Reasons given by the witnesses for their presence in those villages highly improbable, unreliable and not confidence' inspiring--No one from villages where alleged announcements were made coming forward to support statements of witnesses--Statements of witnesses produced in support of allegation of payment. of illegal gratification to the voters found to be contradictory and lacking independent corroboration--No cogent evidence led in support of allegation that respondent posed to be nominee of Government--- Such allegation having been made for first time through election petition, was an afterthought--No evidence on record to prove that respondent or his agent had prevented female voters from casting their votes--Statement of petitioner clearly establishing that the allegations made in the petition were entirely based on information of other persons whose particulars had not been given--Respondent denying all allegations made against him- Nothing brought in lengthy cross-examination of respondent either to discredit his version or to get corroboration of statements made by petitioner's witnesses--Petitioner, held, had utterly failed to prove allegations set forth in election petition through cogent and reliable evidence--Petition dismissed.

Muhammad Yousaf v. Muhammad Ayub P L D 1973 S C 160; Sher Bahadur alias Malik Bahadur Khan v. Abdul Samad Khan and others P L D 1975 Pesh.124; Malik Ghulam Nabi v. Malik Muhammad Akhtar and others P L D 1968 Election Tribunal 26; Saeed Hassan v. Pyarali and others P L D 1974 Note 73 and Sarla Devi v. Birendra Singh A I R 1961 Madh. Pra.. 127 ref.

The election of Haji Muhammad Usman, respondent No.1 and his declaration as returned candidate from constituency PF-31 Kohat-IV in the election of the Provincial Assembly held on 28th February, 1985 is challenged by Muhammad Farid Mufakkir, petitioner herein, a defeated candidate, through the present election petition made under Section 52 of the Representation of the People Act 1976 (hereinafter to be referred as the Act). It is alleged in the election petition that the election of the returned candidate has been procured and induced by corrupt and illegal practices. It is further alleged that the returned candidate and his agents have committed corrupt and illegal practices. As provided under section 68(2) and (d) of the Act, prayer has been made to declare the election as a whole void. The following have been enumerated corrupt and illegal practices in his petition.

(1) That the respondent was all along during his election campaign propagating that the petitioner has turned Shia. He used places of worship where the Sunni voters were asked to refrain from casting their votes in petitioner's favour.

(2) That respondent No.1 offered and paid illegal gratification to the voters for securing their votes.

(3) That the respondent used official influence and openly projected himself to be the Government nominee.

(4) That respondent No.1 prevented the free exercise of franchise by restraining female voters from casting their votes.

2. In his written statement, the respondent denied all the allegations made against him and stated these to be false, frivolous and vexatious. It was stated that the election was fairly held and no objection was raised to the conduct of the election or conduct of the candidates, their agents, or participant voters till the declaration of the result. That the petitioner was defeated as the respondent secured highest number of votes polled in the election. The learned Tribunal, that is my predecessor framed the following consolidated issue arising out of the pleadings of the contesting parties:

"Whether on the basis of allegations as contained in this petition the election of the returned candidate can be declared void and the petitioner elected in his place or the election as a whole can be declared void."

3. Both the parties have led their evidence whereafter they addressed lengthy arguments in support of their respective pleas and cited several reported judgments of various Tribunals and superior Courts.

4. To substantiate his allegation No.1, referred to above, petitioner examined Haji Abdul Karar (P.W.1), Fazal Rehman (P.W.2), Gul Rehman (P.W.3), Saleem Khan (P.W.4), Malik Aslam Khan (P.W.5), and Jannat Mir (P.W.6). Their statements on affidavit have also beer, placed on file and exhibited in their evidence. I would like to refer to the material part of their evidence given on affidavits and in their cross- examination. Haji Abdul Karar (P.W.1) did state on affidavit that on 28-2-1985 respondent No.1 and his supporters had come to village Zargari and had straightaway gone to the mosque wherefrom announcement was made through loudspeaker that Muhammad Farid Mufakkir has become Shia and that "Aniurnan-e-Islahul Muslirneen", a Sunni organization, had unanimously decided that the petitioner having become Shia and 'Khafir' must be condemned by refraining to cast their votes in his favour. It was further announced that the voters who did not abide by the decision of the Anjuman had to pay a fine of Rs.10,000. In his cross-examination, he admitted to be the resident of village Darsamand to which place the petitioner also belongs. He further admitted that on 28-2-1985, he polled his vote at Darsamand Polling Station after 'Zohar' Prayer time. That village Zargari is situated at a distance of 12 miles from village Darsamand. Explaining his presence at village Zargari at the relevant time, he stated that he had gone there to collect some amount from one Nasrullah to whom he had advanced it some 2/3 years back. His admission in the cross-examination, that he did not visit any mosque in village Zargari and that he did not identify the voice of any one who spoke on the loudspeaker, negatives his entire futile exercise. Apart from he being a chance witness his presence on the date of polling at village Zargari is highly improbable. Fazal Rehman (P.W.2) who is resident of village Jandi has made a vague statement that one day after 'Asar' prayer time, the respondent alongwith his supporters addressed the people in the following words:

"Listen my Sunni brothers this election is not, the, election between me and Mufakkir but it is the election between Sunnis on one side and Shias on other side."

When cross-examined, he could not give time, date, place and the names of; the persons in whose presence the above declaration was announced. He admitted that he is a wholesale merchant running his business in village Dawaba which is at a distance four miles from his village and that village Warasta is situated at a distance of 20/25 miles from his village. When further cross-examined, he stated that on 28-2-1985, i.e. on the day of polling, at Warasta he heard the announcement on the loudspeaker in a public meeting and saw respondent No.1 making it just before the start of the polling. When asked what caused him to be present at village Warasta at the relevant time, he replied that he had gone there to pay homage to a saint whose name, even, he did not know. His statement cannot be relied upon as he too is a chance witness and his statement is vague. The election campaign having concluded, his statement that meeting was addressed just before the polling started, is unimaginable. Gul Rehman (P.W.3) who belongs to village Jandi, Tehsil Hangu made similar statement as was made by Fazal Rehman (P.W.2). He has stated that during the election campaign while he was making purchases at Hangu after 'Zohar' prayer time that one Hafiz Fakhr-ul-Islam made announcement in the mosque that the election is a Shia-Sunni contest and that the petitioner has become Shia. In the cross-examination, he stated that he had neither seen Haji Muhammad Usman in the mosque' nor was, he influenced by the announcement. Saleem Khan (P.W.4) who belongs to village Darsamand, Tehsil. Hangu deposed about his presence in another village Naryab and there his having seen respondent No.1 alongwith his supporters in the mosque talking to Maulvi Abdul Ahad. He further deposed about the payment of Rs.30,000 to the Maulvi. Thereafter, his having made the declaration in the similar words is referred to above in the statement of the other witnesses. In cross-examination, he admitted that village Naryab is situated at a distance of five miles from his village and that he had accompanied Muhammad Aslam to village Naryab on 27-2-1985 to pay homage to "Patasa Ziarat" which is on a side of the village at a distance of about half a mile. That it was by chance that he went to the mosque to offer his"Zohar' prayer where he saw Maulvi Abdul Ahad but none else. When confronted with his statement on affidavit, he stated that he did not know English and is not aware of its contents. Similar is the statement of Malik Aslam Khan (P.W.5) who belongs to village Darsamand but happened to be present at village Naryab to pay homage to Patasa Ziarat. He admitted that payment of the amount as illegal gratification is an offence under the law but he did not disclose this fact to the petitioner before announcement of the result. Jannat Mir (P.W.6) resident of village Tora Warai, Tehsil Hangu deposed that on 27-2-1985, respondent No.1 had come to the village and had in substance announced that the contest is between Shias and Sunnis. In cross-examination, he admitted that village Naryab is at distance of 4/5 miles from village Tora Warai and further stated that he did not see respondent No.1 making the announcement.

5. The statements of all these witnesses, referred to above, have certain common features. All of them are chance witnesses and happened to be present in the villages other than that of their own and at the time when the alleged announcements were made. The reasons given by these witnesses of their presence in those villages such as recovery of loan, paying homage to a living saint, whose name the witnesses did not know, and visit to Ziarat are highly improbable, unreliable and not confidence inspiring. Strangely enough none from those villages where the alleged announcements were made has come forward to support their statements.

6. The second allegation concerning payment of illegal gratification to the voters, the petitioner has relied on the statements of Basir-ud-Din (P.W.9). Zarbadshah (P.W.10) and Muhammad Zaman (P.W.13). Basir-ud-Din (P.W.9), who is resident of village Thall deposed that when respondent No.1 visited Mohallah Tendro of village Thall and addressed public meeting arranged by his supporters, the elders of the village demanded Rs. one lac from him for purchase of land for Primary School to which he agreed subject to their casting votes in his favour. Khial Badshah was nominated by the elders to receive the amount from respondent No.1. In his affidavit neither the date and time of such meeting is given nor is it mentioned that actually the amount was paid to Khial Badshah. He departed from his previous statement and improved upon it by saying that the amount was paid to Khial Badshah in his presence. He has not disclosed the names of persons in whose presence the amount was promised to be paid or actually paid. Similarly, Zarbadshah (P.W.10) stated that one Sahibzada, a supporter of respondent No.1 accompanied by his driver and some other persons asked him to cast his vote in favour of respondent No.1 and for that offered him a bag of Atta and Rs.20C in cash but he refused it. He further stated that similar offers were made to other villagers of Dawaba. In cross-examination, he stated that Sahibzada belongs to village Dawaba which is at a distance of four miles from his village while respondent No.1 belongs to village Hangu 25 miles away from his village. According to him, some of his villagers had accepted the offer but he failed to disclose their names. None else has been produced in support of his statement. Muhammad Zaman (P.W.13) resident of Saro Khel, Tehsil Hangu stated that Saifal Khan and some other villagers demanded Rs. one lac fro. Muhammad Farid Mufakkir, the petitioner, in consideration for their votes which he refused but subsequently Haji Muhammad Usman, respondent No.1, offered to pay the amount. In this connection a meeting was arranged in which it was resolved that respondent No.1 would give Rs. one lac for acquiring a piece of land for graveyard for the villagers in consideration of their votes. He further stated that the demand, for the amount and graveyard was a lame excuse and in fact the amount was meant for purchase of votes of the villagers. That after the meeting Saifal Khan and Haji Muhammad Usman left together. However, the time, date and actual place where, the demand was made and accepted is not given in the statement, In cross-examination, he admitted that at Saro Khel polling station petitioner obtained greater number of votes. He also admitted that he was supporter of the petitioner. He being a partisan witness his statement in the absence of independent corroborative evidence cannot be relied upon. Hap Mir Haider (P.W.14) deposed that one bundle of A notes of denomination of Rs.100 each was handed over to one Saifal Khan who counted these notes but Saifal Khan did not pay the amount to any of the villagers and also did not purchase land for graveyard. That the amount was paid 5/6 days before the election was held. He contradicts Muhammad Zaman (P.W.13) as according to him the meeting took place 4/5 days prior to the election and at that time only a promise was made that the amount would be paid.

7. In proof of the third allegation regarding use of official influence, reliance was placed on the statement of Muhammad Akbar, (P.W.11) who deposed that he was the polling agent, at Government Primary School, Dalan, of the petitioner while Kalam Badshah was agent of Haji Muhammad Usman respondent. That the staff supervising the election at the relevant polling station were mainly the colleagues and subordinates of Kalam Badshah who in connivance of the polling staff has polled his vote at serial No.322 at polling station of High School, Dalan and thereafter polled the vote of another person by the name of Kalam Badshah son of Rahim Khan entered at serial No.896 at polling station Primary School, Dalan though the latter was employed at Dobai at the relevant time. That at his instance, vote of Minhaj-ud-Din bearing No.922 was polled by his brother, Rehman-ud- Din and similar other bogus votes were polled. When cross-examined, he admitted that though there were five contesting candidates and each had their nominated polling agent, neither objection to the nomination of Kalam Badshah was raised nor objection to the polling of the mentioned bogus votes was ever made in writing. Impersonation defined in section 80 of the Act is an offence and any person committing such an offence is triable under section 86-A of the Act. No complaint of impersonation having been made at the proper stage the evidence led in this respect has got no legal value. The statement of the petitioner anti his witnesses referred to above in the earlier part of this judgment simply are that the respondents posed to be the nominees of the Government as no cogent evidence has been led in support whereof. These allegations made for the first time after the declaration of result through the election petition appear to be after thought.

8. In support of the allegation that respondent No.1 prevented the female voters from exercise of their right to vote, the petitioner relied on the statement of Haji Sarwar Din (P.W.7) who deposed that on 28th February, 1985 though arrangements had been made for polling of female votes at village. Tora Warai yet Haji Muhammad Usman and his supporters prevented female voters from casting their votes on the pretext of their being 'pardanasheen'. In cross-examination, he admitted that respondent No.1 belongs to village Hangu which is at a distance of 18 miles from his village. In cross-examination, he contradicted himself by saying that Haji Muhammad Usman did not visit the polling station but his supporters were there. He further stated that a settlement was reached between the parties that female votes were not to be polled. He admitted that neither he raised any objection to the settlement nor did he bring female voters of his family at the polling station for casting their votes. Similar is the statement of Saleh Khan (P.W.8). However, according to him the female voters did not cast their votes for the reason that there was no separate booth for them. The statements of the witnesses referred to above being contradictory cannot be relied upon. Furthermore, not a single female voter was produced as a witness in support of the plea. In fact there is no evidence on the record to prove that the respondent or his agent had any say in the affair.

9. The petitioner in his statement reiterated the contents of his election petition referred to above. He, however, in his cross examination categorically stated that he is a 'Sunni' Muslim and that he secured comparatively more votes in village Saro Khel to which Saifal Khan belongs and also in village Dawaba to which Sahibzada Khan belongs. He admitted that his allegation that the respondent had slaughtered 27 lambs is based on the information given to him by the people. He also admitted that respondent No.1 was declared elected as he received about two thousand votes in excess of the votes polled in his favour. He frankly admitted that he did not approach the Election Authorities and did not appraise them of the use of the official influence in favour of respondent No .l before the declaration. Similarly he admitted that personally he had not seen the respondent arranging and addressing public meetings but he was informed by others. His statement, therefore, viewed in its true perspective clearly establishes that, the allegations made in the petition are entirely based on the information of other persons. He has not given the full particulars of the informants, the time and place as required under the law.

10. As against this evidence and in rebuttal of the allegations, the persons who are charged for having committed illegal and corrupt practices have appeared in the witness-box. Qazi Abdul Ahad (RW.1) who is Khateeb of Jami Masjid Naryab and Muhtamim Madrassa Hifzul Quran, denied all .the allegations made against him, in his affidavit (Ex.R.W.1/1) dated 27th April, 1985. In cross-examination, he denied that he had arranged a meeting in the mosque in connection with his election campaign but did not deny that his brother acted as an agent for respondent No.1. He admitted that he was charged by an advocate fir getting undue benefits from the public in the name of Government officials but stated that this charge was brought against him as he had paid Rs.4,000 to the advocate in a case and on his failure to conduct the case when he was asked to return the fee, he (advocate) falsely propagated against him. He further stated that he being a Member of Agency Council, -was sitting outside the Court of Assistant Commissioner which was objected to by the Assistant Commissioner but this was too at the instance of the Advocate. When served with a notice to this effect he duly replied it. He denied having received Rs.30,000 from respondent No.1 (He made this statement on Holy Quran by placing his hands on it which he had with him at that time) that he had not been paid a single penny in connection with the election. He frankly admitted that whosoever asked his view, he always preferred respondent No.1. Similarly, Saifal Khan (P.W.2) resident of Saro Khel denied the allegations made against him in the election petition and in the statements of the P.Ws. He further stated that Mir Haider appeared as witness for the petitioner as petitioner had procured a visa for him. He denied the suggestion that he had asked the petitioner either to purchase land for the use of graveyard or to pay an amount of Rs. one lac for this purpose. He also denied that respondent No.1 had agreed either to purchase land or to pay Rs. one lac for the purpose. He voluntarily stated that the petitioner had approached him some three days before his appearance before the Tribunal and had asked him not to appear as a witness. He frankly stated that he preferred to vote for respondent No.1 because of his services in the past and he being elder of the Illaqa. He did state that respondent No.1 had talked to the people in connection with his election campaign in the mosque but he was not further cross-examined as what did he state, when and to whom. Similarly, is the statement of Sahibzada Khan (R.W.3) who denied the allegation made against him. He denied having been supplied a pick-up and bags of Atta by respondent No.1 for distribution to the voters to secure votes for him. He did admit that the daughter of maternal uncle of the petitioner is married to him. He further deposed that he is a respectable person and owns a petrol pump. He admitted it correct that he took active part in securing votes for Haji Muhammad Usman as he was his supporter and worker. Khial Badshah (R.W.4) and Haji Gul Karim (R.W.5) also stated to the same effect and denied the allegations made against them. Last is the statement of respondent No.1 who denied all the allegations made against him. He clearly stated that he concluded his election campaign on .the evening of 25th February, 1985 and remained in his village on the day of polling upto 1.00 p. m. Thereafter he had left for village Dawaba. On reaching there, the polling had concluded. He further deposed that this constituency consists of Sunni as well as Shia voters and he has friendly relations with both of them and has secured considerable votes in the village mainly populated by Shia. He further stated some six years back, he took active part in bringing out conciliation, restoring and maintaining peace in the two communities which has proved fruitful and since then no disturbance has taken place. He denied having paid money for securing votes or for the purchase of land for a graveyard or other purposes. With regard to his being associated with 'Anjuman-i-Islahul Muslimin', he stated that this 'Anjuman' was formed before the establishment of Pakistan and that he is its ordinary worker while Khanzada Wahid-ud-Din is the Chairman since last 6/7 years. He denied having charged the petitioner to be) a Shia and that it is his belief that he is Sunni. He denied the use of official influence or interference in the female voting affair. In cross-examination, he did admit that he arranged meeting at village Saro Khel but did not recollect the day. However, he stated that this was a sort of Jirga in the village mosque where he was served with tea at 10/11 a.m. Nothing has been brought in the lengthy cross-examination either to discredit his version or to get corroboration of the statements made by the petitioner's witnesses.

11. No doubt, the allegations made in the petition which are enumerated in the earlier part of this judgment under different heads, if proved, would necessarily result in declaring the election void as a whole. However, as laid down in Muhammad Yousaf v. Muhammad Ayub P L D 1973 S C 160, the allegation made being of criminal nature, the provisions of law are to be strictly construed and for its proof same quality of evidence is required as is required for proof of criminal charge and beyond any reasonable doubt. Any doubt G arising from the evidence must be considered in favour of the successful candidates. In Sher Bahadur alias Malik Bahadur Khan v. Abdul Samad Khan and others P L D 1975 Pesh, 124, even speeches made that the person who voted for candidates other than that of J. U .I. would be exposed to flames of hell, having not been 'directly proved to have been made by the returned candidate or his agent, were ignored. It was further held therein that strict proof is required of the charges of corrupt practices which are quasi-criminal character. The burden of proof of corrupt practices lies upon the person who alleges it.

12. In Malik Ghulam Nabi v. Malik Muhammad Akhtar and others PLD 1 68 Election Tribunal 26 before dealing with the issue whether the section of respondent No.1 (the returned candidate) was procured or induced by any corrupt or illegal practice, "it was observed that the offence of corruption would be complete when one party gives, offers, or promises money with the object, directly or indirectly, of inducing the other to vote, or forbear from voting irrespective of the fact whether other accepts for that purpose, the offer, promise of money so made or given or whether he votes or not". It was further observed that "the acquisition of bribery is in the nature of criminal charge and would require the same kind of evidence as required for proof of such charges in proceedings arising out of the election petition". In Saeed Hassan v. Pyarali and others P L D 1974 Note 73, the same principle was affirmed. Similarly, in Sarla Devi v. Birendra Singh A I R 1961 Madhya Pradesh 127, a case from Indian jurisdiction, "corruption practices alleged against the returned candidate, in order to avoid his election, must be -set forth in full with all the particulars, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of the corrupt practice".

13. Viewed in this light of the law laid down and the principle initiated in the judgments cited above, I feel that the petitioner; utterly failed to prove the allegations set forth in the election petition through cogent and reliable evidence. I, therefore, finding substance in the election petition dismiss the same with costs.

S. Q. /19/E Petition dismisses

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