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‑‑Ss. 39(6) & 52‑‑Recounting of votes‑‑Allegations about ballot‑papers that same were used without signatures of Presiding Officer and without seal of Election Authorities neither were mentioned in application moved by petitioner before Returning officer nor any valid ground was made by him for recounting of votes‑‑Demand of petitioner for recounting of votes, held, was rightly rejected by Returning officer in circumstances.

‑‑S. 52‑‑Qanun‑e‑Shahadat Order (10 of 1984), Arts. 117, 118 & 119‑ Corrupt practices and Goondaism on polling stations‑‑Burden to prove‑ Though trial of election case was to be done in accordance with procedure laid down by Election Commission, yet quantum of proof required for setting aside such election, held, would be as in a criminal case‑‑Burden to prove that election of returned candidate was liable to be set aside for corrupt practice on his behalf at polling stations, would lie having upon petitioner‑‑Petitioner not only failed to lodge any complaint about such allegations before Authorities, but also failed to adduce evidence on record from where such allegations could be inferred‑‑Petitioner's failure to substantiate his allegation, rightly resulted in dismissal of his petition.

‑‑‑S. 52‑‑Representation of the Peoples (Conduct of Election) Rules, 1977‑‑Election. setting aside of‑‑Consideration for‑‑Election result, held, could not be lightly brushed aside in election dispute‑‑For free and fair elections it would be necessary to protect purity and sobriety of election by ensuring that candidate should not secure valuable votes of people by undue influence, fraud, bribery or other corrupt practice as laid down in the Act.

‑‑‑S. 52‑‑Election, setting aside of‑‑Allegations of corrupt practices‑ Proof‑‑Appreciation of evidence‑‑Where unsuccessful candidate sought to prove allegations of corrupt practice, irregularities and violation of law against successful candidate by purely partisan evidence consisting of his own workers, agents, supporters and friends, Election Tribunal, held, would have to approach such evidence with great caution and care and circumspection would require corroboration thereof, from independent quarters, unless Tribunal was fully satisfied that evidence adduced by such persons was so trustworthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance was necessary‑‑Agents and supporters of defeated candidate always try to get election set aside by fair or foul means, evidence of such witnesses must be regarded as highly interested and tainted evidence which should be acted upon only if Tribunal was satisfied that same was true and cogent‑‑Where, however, evidence led by petitioner even though consistent, was fraught with inherent improbabilities and replete with unnatural tendencies, Tribunal, might refuse to accept such evidence, because consistency alone was not conclusive test of truth.

Khalid Daudpota for Petitioner. M.A. Kazifor Respondent No. 6. Date of hearing: 26th January, 1986.

The petition under section 52 of the Representation of the Peoples Act No. LXXXV of 1976 (hereinafter referred to as the Act) was filed on 21‑4‑1985.

2. The facts leading to filing of the above petition are that the petitioner and the respondents 2 to 6 were the candidates who contested the Provincial Assembly Elections for seat No.PS‑17‑Nawabshah‑11 during the last general elections held on 28‑2‑1985. The results of the elections were declared and according to the results, the petitioner polled 4,377 votes while the respondent No.6 polled 37,633 votes. The respondent No. 6 was declared to have returned to the Sind Provincial Assembly by a thumping majority votes. In paragraph 2 of the petition, it was averred that on 28‑2‑1985 the election was held as per schedule and the polls at the polling stations Circle Halani, .Deh Halain, Pir Vatio (Moledino) and Bhirya City were not conducted in accordance with the Election Rules as the ballot‑papers which were issued were without signatures of the Presiding Officer and even without the seal of Election Authority and were not counted properly by the Presiding Officer. Therefore, for this purpose the petitioner submitted an application to the Returning Officer on 3‑3‑1985 for recounting but the same was rejected without any legal or justified ground. In paragraph 3 of the petition, it was averred that the respondent No. 6 in collusion with the election staff at Polling Station No. 39 (G.P.S. Jalbani) where the agents of the petitioner were not allowed, Polling Station No. 47 (G . H . S. Bhirya Road), Polling Station No. 48 (G.G.M.S. Bhirya Road), Polling Station No. 49 (G.G.H.S. Bhirya City) Polling Station No. 51 (G.P.S. Usman Jonejo), Polling Station Nos. 30 and 31 as a result of which all the votes were falsely and illegally manoeuvred in favour of respondent No. 6 and almost all or majority of the votes of the petitioners were not allowed to cast their votes. An example of Polling Station No. 49 is given, where all the votes are shown in favour of the respondent No. 6 except in favour of respondent No.4, which perhaps have also been shown falsely to cover up the material illegality and irregularity. In paragraph 6 of the petition, it was averred that during the polling, several irregularities were committed by respondent No. 6 including violations by the respondent No. 1 against the law and principles of justice and equity. In paragraph 8 it was averred that the petitioner's agents were not allowed to be present in polling station and at several places they were turned out. Such complaints were also made to the authority and respondent No.l. The petitioner accordingly prayed that the election of the respondent No. 6 should be declared void.

3. The respondent No. 6 denied the averments made in the petition in his written statement. It was expressly stated that he did not resort to any corrupt practice and that there was full compliance with the provisions of the Act and the Rules framed there under. It was averred that in seven polling stations, the petitioner secured 74 votes while the respondent No. 6 secured 7,412 votes. However, from the total votes of fifty‑one polling stations the petitioner secured 4,377 votes while the respondent No. 5 secured 37,533 votes. The overall count of the votes in the constituency would bear out that there was a margin of 33‑156 votes between the votes polled by the respondent No. 6 and the petitioner.

4. The following issues were framed:‑

(1) Whether the respondent No. 1 paid no consideration to false votes including dead persons pointed out to him at polling stations on the date of polling in P.S. 17 Nawabshah

(2) Whether the respondent No. 1 did not allow agents of petitioner at P. S. 47, 48, 49 and 51 including 30 and 31 to be present at the time of polling

(3) Whether the election has been held in accordance with rules

(4) Whether the petition is maintainable under the law

(5) Whether the election of P.S. 17 Nawabshah is liable to be set aside

(6) What should the order be

Issue No. 1.‑‑ In para. 2 of the petition, it has been averred that on the day of polling, the election was held as per schedule and the voters of the polling stations Circle Halani, Deh Halani, Pir Votio (Moledino) and Bhirya City were not conducted in accordance with the Election Rules as the ballot‑papers which were used were without signature of Presiding Officer and without seal of the Election Authority and were not counted by the Presiding officer, therefore, for this purpose the petitioner submitted an application to the Returning Officer on 3‑3‑1985 for recounting but the same was rejected without any legal or justified ground. It has been further averred that in support of the contention of the petitioner, he will produce evidence at the time of hearing. It is pertinent to note the evidence about ballot‑papers if they were used without signature of Presiding Officer and without the seal of the Election Authority. The petitioner has not made any attempt to summon the Presiding Officers or the Returning Officer.

5. Subsection (6) of section 39 states that the demand for recount may be rejected if it appears to be unreasonable. What is not reasonably grounded or seriously supported is unreasonable. I have perused the application moved before the Returning Officer. The allegation about ballot‑papers which were used without signature of Presiding Officer and without the seal of the Election Authority was not at all mentioned in the application. It is absolutely silent about these two allegations. It is advantageous to reproduce the application, dated 3‑3‑1985 which reads as under:‑

A bare reading of the application shows that no valid ground was made for recounting. I have also perused the order of the Returning Officer passed on the above‑said application of the petitioner. The order states 'as applicant has not put any valid argument for his prayer. Therefore, being unreasonable is rejected herewith . In view of this the issue No. 1 is decided against the petitioner.

Issue No. 2.‑‑ The facts stated in paragraph 1 of the petition about non‑allowing agents of the petitioner in polling stations and turning them out at several polling stations were denied in paragraph 8 of the written statement. ‑It was stated that no complaint was made to the concerned authorities. The petitioner filed affidavits of Nazir Hussain, Bakhsh Hussain, Miandad. Out of these three persons he produced only Bakhat Hussain (P.W.3, Exh.7) and Miandad (P.W.4 Exh.8).

P.W. 3 Exh. 7 Bakhat Hussain stated in his affidavit that the petitioner had appointed him as authorised agent on his behalf at polling station Government High School, Halani. There occurred lot of Goondaism and lawlessness at the hands and on the part of Goondas stationed by the respondent No. 6. As a consequence of the above circumstances the Goondas of respondent No. 6 at the point of deadly weapons and under threats restrained him from sitting in the booth as polling agent. He admitted in his cross‑examination that he never lodged any complaint about the disturbance which took place at Halani. He also admitted that the polling agents of other candidates were at the polling station. He replied to a suggestion in cross‑examination that he handed over the authority letter as a polling agent to the Presiding Officer but he did not allow him to sit at the polling station. He also admitted that the Returning Officer came to the polling station at 9 a.m. and he orally informed him. He further stated that 'statement made earlier by me that the Presiding Officer did not allow me to sit is incorrect'.

P. W. 4 Miandad Exh.8 reiterated the same facts in his affidavit. He replied to a suggestion that he lodged report in writing as well as orally informing the Officer that good as were there. He also replied to a suggestion in cross‑examination that he took the complaint in writing to the Presiding Officer and he asked him to sit at the polling station. He admitted in his cross‑examination that the polling agents of the other candidates were present at the polling station.

In the evidence led on behalf of the petitioner no allegation has been made that the Presiding Officer did not allow the agents of the petitioners to sit in the booths. No such complaint or representation was made on 28‑2‑1985. It seems that the petitioner did not lodge any complaint about the alleged Goondaism and lawlessness at the hands and on the part of Goondas.

The petitioner did not move any application for summoning the Returning Officer or Presiding Officer for ascertaining about moving of the application, complaint or representation. There is no satisfactory evidence brought on record that his polling agents were not allowed to sit on the polling stations.

6. Law is well‑settled that though the trial of the election case is to be done in accordance with the procedure laid down by the Election Commission, the quantum of proof required for setting aside any election would be as in a criminal case. The burden of proving that the election of a successful candidate is to be set aside for corrupt practices lies heavily upon the petitioner. The corrupt practice of not allowing the polling agents of the petitioner either himself or through his agent or other persons with the connivance of the successful candidate must be established beyond reasonable doubt. It is for the petitioner to substantiate this allegation. The petitioner has not led any evidence that his agents were turned out and or were not allowed to sit at the polling booths by the Goondas with the consent or connivance of the respondent No. 6 or his polling agents. There is no iota of evidence on record from where it can be inferred that the polling agents were not allowed to sit at the polling booths with the consent, connivance of the respondent No. 6 or his polling agents. The allegations that the petitioner's agents were not allowed to be present in polling stations and at several places and they were turned out pleaded in paragraph 81 of the petition have not been substantiated. Issue is accordingly decided in the negative and against the petitioner.

Issues Nos. 3 and 5.‑‑ Mr. M.A. Kazi the learned counsel for the respondent No. 6 has contended that the valuable verdict of the people at the polls must be given due respect and candour and should not be disregarded or set at naught on vague, indefinite, frivolous or fanciful allegations or on evidence which is of shaky character. It is well‑settled that the onus has heavy on the petitioner to make out a strong case for setting aside an election. In our country election is al fairly costly and expensive venture and the Representation of the Peoples' Act, 1976 (Act No. LXXXV of 1976) and the Representation of the Peoples (Conduct of Election) Rules, 1977 have provided sufficient) safeguards to make the election fair and free. In these circumstances, therefore, election result cannot be lightly brushed aside in election disputes. At the same time,. it is necessary to protect the purity and sobriety of the election by ensuring that the candidates do not secure the valuable votes of the people by undue influence, fraud, bribery or other corrupt practices as laid down in the Act.

7. Another principle that is equally well‑settled is that the petitioner in order to succeed must plead all material particulars and prove them by clear cogent evidence. Where the petitioner seeks to prove allegation of corrupt practice, irregularities and violation of law and rules by purely partisan evidence consisting of his workers, agents, supporters and friends, the Tribunal would have to approach the evidence with great caution and care, scrutiny and circumspection would require corroboration of such evidence from independent quarters, unless the Tribunal is fully satisfied that the evidence is so trustworthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents or supporters of the defeated candidate is always to get the election set aside by fair or foul means and the evidence of such witnesses, therefore, must be regarded as highly interested and tainted evidence which should be acted upon only if the Tribunal satisfies that the evidence is true and does not suffer from any infirmity. Where, however, the evidence led by the petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Tribunal may refuse to accept such evidence, because consistency alone is not the conclusive test of truth. Each case has to be decided on its own facts, but in appreciating the evidence the broad features mentioned above must be borne in mine.

In the light of the principles enunciated by me, I shall now proceed to discuss and examine the evidence adduced by the petitioner and the respondent No. 6.

8. To begin with I would like to refer to the pleadings of the contesting petitioner in order to show the exact particulars averred by the petitioner. The allegation which is the subject‑matter of issues Nos. 3 and 5 is to be found in paragraph 3 of the petition. The petitioner had alleged that:‑

"That the respondent No. 6 in collusion with the Election Staff at Polling Station No. 3 (G.P.S. Jalbani) where the agents of the petitioner were not allowed, Polling Station No. 47 (G.H.S. Bhirya Road), Polling Station No. 48 (G.G.H.S.) Bhirya City, Polling Station No. 5 (G.G.H.S.) Bhirya City, Polling Station No. 51 (G.P.S.) Usman Jonejo, Polling Station Nos. 30 and 31 as a result of which all the votes were falsely and illegally manoeuvred in favour of respondent No. 6 and almost all or majority of the voters of the petitioner were not allowed to cast their votes. An example of P.S. 49 is given where all the votes are shown in favour of the respondent No. 6 except two in favour of respondent No. 4, which perhaps have also been shown falsely to cover up the material illegality and irregularity. The petitioner can produce the evidence in support of his contention at the time of evidence hearing."

These are the only particulars mentioned in the petition with respect to corrupt. and illegal practices, irregularities and illegalities which affected materially the result.

The only evidence that the petitioner has given consists of the testimony of P.W.2 Ghulam Muhammad (Exh.6), P.W. 3 Bakht Hussain (Exh.7), P.W. 4 Miandad (Exh.8).

9. P. W. Ghulam Muhammad stated in his affidavit that there was flagrant violation committed in respect of election rules and law by respondent No. 6 and his supporters. He further stated that 'I and others had made telegrams against the open violation of Election Rules on 19‑2‑1985 to the Authorities, viz. Chief Election Commissioner, President or C.M.L.A. Governor Sind, Provincial Election Commissioner, Deputy Commissioner Nawabshah, Superintendent Police, Nawabshah'. He also stated that 'we confirm that whatever stated by me and others in the said telegram is true and correct'. The photostat copy of telegram annexed to the petition as Annexure 'A'. I have perused the same. It appears the date of 19‑2‑1985. It mentions about procession headed by Syed Manzoor Hussain Shah and Syed Murad Ali Shah.

P.W.3 Bakhat Hussain stated in his affidavit that the petitioner had appointed him polling agent at polling station, Government High School, Halani. He stated that there occurred lot of Goondaism and lawless at the hands and on the part of Goondas stationed at the above polling station by respondent No. 6. As a consequence of the open lawlessness demonstrated by the Goondas of respondent No. 6, he was restrained from sitting in the booth and thereby he was deprived of functioning as polling agent. The Goondas created terror in voters and allowed only those about whom they had full confidence that they would give votes in favour of respondent No. 6 while by bullet force restrained the rest of the voters from casting votes and got their votes cast from bogus persons.

He admitted in his cross‑examination that 'I never lodged any complaint about the disturbance which took place at Halani. I never lodged any complaint either on 28‑2‑1985 or on 1‑3‑1985. The polling agents of other candidates were at the polling station. I came to know that the petitioner secured 75 votes at this polling station. I handed over the authority letter as a polling agent to the Presiding Officer but he did not allow me to sit at the polling station. The Returning Officer came at the polling station at 9 a.m. and I orally informed him. I was not allowed to sit but I remained present outside the polling station. The Presiding Officer never told me to sit at the polling station. Some persons were there with Lathis and they did not allow me to sit there. The Goondas did not allow me to sit at the polling station. Statement made earlier by me that the Presiding Officer did not allow me to sit is incorrect".

P.W.4 Miandad reiterated the same facts in his affidavit. He admitted in cross‑examination that he was not hit by the Goondas. He also admitted that he took the complaint in writing to the Presiding Officer and he asked him to sit at the polling station. He also admitted that the petitioner secured 150 votes at Halani Town polling station and that the other polling agents were present at the polling station and also he was sitting at the polling station.

10. In these circumstances, I have to approach the evidence of these witnesses with great care and caution because they were his supporters, workers and P.Ws. 3 and 4 were his polling agents and they were interested in giving evidence which may result in the election of the respondent No. 6 being set aside. The allegations of corrupt practice, irregularities, illegalities and violation of Election Laws and Rules have been proved only by partisan and highly interested testimony of P.Ws. 2, 3 and 4 and no attempt was made to examine any independent witness. P.W.3 deposed that 'the statement made earlier by me that the Presiding Officer did not allow me to sit is incorrect. P.W.4 also deposed that I took the complaint in writing to the Presiding Officer and he asked me to sit at the polling station'.

This shows the extent to which these witnesses could go in order to support the case of the petitioner. It seems to me that the evidence of P. Ws. 2, 3 and 4 regarding not sitting at the polling station as polling agents and the Goondaism in the circumstances mentioned by them is inherently improbable. I find it difficult to believe that the corrupt practice, irregularities, illegalities, violation of Election Laws and Rules would be committed by the respondent No. 6 in these circumstances.

In view of the improbabilities and the compelling circumstances mentioned above, I am clearly of the opinion that the petitioner has not been able to prove his allegation regarding corrupt practices, irregularities, illegalities against the respondent No. 6 beyond any shadow of doubt. As these partake of a quasi‑criminal nature, the onus was on the petitioner to prove this fact. As the petitioner has failed to prove this fact, he must fail. I, therefore, hold that the respondent No. 6 was not guilty of (any corrupt practices, irregularities, illegalities, and violation of Election Laws and Rules as alleged by the petitioner. These issues are decided against the petitioner beyond any shadow of doubt.

Issue No. 4.‑‑ The respondent No. 6 averred in his written statement that the petition as framed is not maintainable and liable to be closed. Mr. M. A. Kazi the learned counsel for the respondent No. 6 has not pressed this issue.

Issue No. 6.‑‑ In the circumstances stated above, I am not in a position to allow the position. The petition is, therefore, dismissed with no order as to costs.

H.B.T./5045IK Petition dismissed.

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