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Notification No. F. 17(66) of 1985 Elec. (1I), gazetted on 20th March, 1988.
(a) Representation
of the People Act (LXXXV
of 1976)
S. 82 Election petition Allegation of illegal practices Proof Requirements Standard of proof to be akin to a charge in criminal trial Returned candidate would be entitled to benefit of doubt Each allegation "mentioned in election petition required to be independently proved Evidence of proof must be such as to inspire confidence Such proof has to be consistent, cogent, clear and convincing Where witnesses were either interested or there was doubt that they had deposed because of malice to one or the other party or because of tribal animosity, independent corroboration of witness would be necessary.
1986 C L C 1329 rel.
S. 52 Election petition Official witnesses produced by both sides Requirements for evaluation of evidence Where veracity of depositions of official witnesses h.:a been challenged on the ground of belonging to one or the other tribe and had deposed merely to support their tribemen, abundant caution and care had to be taken in evaluating evidence and drawing safe conclusions.
(c) Representation of the People Act (LXXXV of
1976)
S. 52 Election petition Allegations in Proof of Burden Burden and onus to prove allegations in election petition would be basically on petitioner.
(d) Representation of the People Act (LXXXV of
1976)
Ss. 52 & 68(2)(b) Election petition Commission of illegal practice Proof of Factum of casting of bogus votes by lady voters on behest of returned candidate not corroborated by independent evidence No complaint/objection in that behalf raised at the time of polling Factum of casting of bogus votes not proved beyond doubt.
Petition Witness Contradictory statements of witnesses Effect Inconsistent, contradictory and doubtful statements of witnesses were not worthy of any credence.
Date of hearing: 6th July, 1987.
By this common judgment I propose to dispose of two petitions No. 7 of 1985 and petition No. 8 of 1985 arising out of same set of facts and law. In petition No. 8 of 1985 Dr. Taj Muhammad is petitioner, both being candidates for w a seat of Provincial Assembly Baluchistan from constituency No PB 7 Pishin Ill. The respondent No. 1 Muhammad Sarwar Khan was also a candidate for the same. In total there were II candidates for the aforesaid constituency. By order dated 13 5 1985 both these petitions were consolidated to be jointly tried. Since joint trial was orderdd therefore any reference to witnesses shall be deemed to be a reference in both the petitions. The respondent No. 1, the actual contestant filed his written statement. The following 14 issues were framed:
(1) Whether the Returning Officer of PB 7 had changed the polling staff at Khanozai Government High School Polling Station and appointed Agha Muhammad as Presiding Officer if so, did Agha Muhammad favour the respondent No. 1 and illegally declared 85 votes of the petitioner as invalid.
(2) Whether at Government Primary School Khusroo Polling Station the indelible ink was not used for marking the voters which resulted in bogus voting.
(3) Whether at Polling Station Zar Kach 20 lady voters repeatedly cast votes of other lady voters in favour of respondent No. 1 with the assistance of Malik Aman polling agent of respondent No. 1 and the Presiding Officer in spite of objection did not take any action.
(4) Whether at Walma Polling Station except Abdul Ghafoor Presiding Officer the entire polling staff in collusion with the respondent No. 1 allowed bogus votes to be cast in his favour.
(5) Whether at Wulghar Polling Station votes cast in favour of the petitioner are illegally declared invalid:
(6) Whether the polling staff at Civil Dispensary Shahi was threatened by the supporters of respondent No. 1 and under such threat bogus votes were cast m favour of the respondent No. 1.
(7) Whether at Kaza Viala Polling Station few ladies have cast bogus votes
in favour of respondent No.1 repeatedly.
(8) Whether at Middle School Bagh Polling Station the Presiding Officer did. not allow the polling staff to use indelible ink for marking on the thumb of the voters and whether Malik Noor Ali and Malik Muhammad Yousaf with connivance of the Presiding Officer affixed stamps on Ballot papers.
(9) Whether at Mandozai Polling Station indelible ink was not used as Presiding Officer was supporting respondent No. 1.
(10) Whether at Abashto Polling Station Naib Tehsildar at the instance of respondent No. 1 illegally ordered the closure of polling station at 12.30 p.m. and except 118 voters other voters were not allowed to cast their votes.
(11) Whether at Kaza Viala Polling Station the respondent No. 1 or his supporters forged the signature of the petitioner and appointed a factious person as his polling agent If so, has it materially affected the election.
(13) Whether respondent No. 1 and his supporters had provided vehicles to bring the voters to the polling station.
(14) Relief.
The sum total of the allegations was that respondent No. 1 managed rigging on high scale and manipulated election in different polling stations in order to get himself elected Corrupt and illegal practice was alleged in the petitions at the connivance and behest of the respondent No. I with election staff. It was further alleged that at the instance of the respondent No. 1, the Returning Officer, changed the polling staff including polling officers and presiding officers of various polling stations at the eleventh hour when there was no occasion for any change of the aforesaid officers. It was further alleged that respondent No. 1 managed to bring officials who would help him in the election and thus with connivance and behest of the respondent No. 1 rigging was facilitated in Polling Station Kaza Viala where originally one Muhammad Aslam was appointed as Polling Officer but he was transferred and changed by one Saadullah. Similarly it was alleged that at Polling Station Khanozai Government High School, Polling Officer Abdul Qayyum was replaced by one Agha Muhammad who was close relative of respondent No. 1 and this resulted in declaring 85 valid votes of petitioner Badruddin as invalid without justification. It was further alleged that in Mulla Aghbarg Polling Station instead of Abdul Ghani Shahab, Polling Officer, another person namely Abdul Qayyum was posted in order to get results in favour of the respondent No. 1. Similarly at Polling Station Government Primary School Khusro rigging was alleged. It was further alleged that indelible ink was not used in Polling Station Zarkach. Twenty lady voters repeatedly cast votes on behalf of other lady voters in favour of respondent No. 1 with the assistance of Malik Aman Polling agent of respondent No. 1. In polling station Killa Haji Khan the votes of dead persons were cast. In polling station Behram Khan instead of actual voters different persons were brought to cast bogus votes. Likewise violent charges were levelled" by the petitioners in respect of polling station village Nasrullah Khan wherein it was alleged that the supporters of respondent No. 1 took away the ballot papers and put their thumb impressions on it in favour of the respondent No. 1. Similarly allegations of rigging were levelled in respect of polling stations Ghargai, Walma, Wulghai, Surtall, Kothi Muhammad Shah and Shashan Kara. It was alleged that in polling station High School Barshor, indelible ink was not used. In respect of polling station Civil Dispensary Shahi it was alleged that threats of dire consequences were given to the polling staff, thus the respondent No. 1 succeeded in casting bogus votes. It was alleged that in polling station Mandozai, indelible ink was not used.
In support of their allegations, the petitioners examined 11 witnesses and also got their own statements recorded. The respondent No. 1 examined 8 witnesses and recorded his own statement in rebuttal.
Before adverting to the settlement of issues, it may be observed that the standard of proof required in an election petition would be like that of a charge in a criminal trial and benefit in case of doubt would go to the returned candidate, as has been held in case Pir Matook Ali v. Rais Muhammad Yousufi and others as reported in 1986 CLC 1329.
In order to prove charges in an election petition the petitioners are required to prove the allegations through independent witnesses and beyond any shadow of doubt. Each allegation is to be independently proved and the evidence of such proof may be such as to inspire confidence, it should be consistent, cogent, clear and convincing where the witnesses are interested or where there is doubt that they depose because of tribal animosity independent corroboration of the witnesses is necessary.
In the petition, the petitioners produced, inter alia, officials like Presiding I Officers/Polling Officers in support of the allegations and respondent No. 1 also has attempted to challenge the veracity of the depositions of official witnesses on the ground that they belonged to the tribe of one or the other party, and have deposed merely to support their tribesmen. In such circumstances, in order to sift the chaff from the gram, abundant caution and care is to be taken in evaluating the evidence and drawing safe conclusions.
The burden and onus to prove the allegations is basically on the petitioners in an election petition.
Before discussing the evidence on issues, it may be profitable to see as to under what section the allegations levelled by the petitioners fall. A fortiori the allegations fall within section 83 of the Representation of the People Act 1976 (Act No. LXXXV of 1976), (hereinafter referred to as Act). The relevant provisions are hereby reproduced:
Legal practice. (1) A person is guilty of illegal practice if he
(a) ......................................
(b) obtains or procures or attempts to obtain or procure, the assistance of any person m the service of Pakistan to further or hinder the election of a candidate:
(d) votes or applies for a ballot paper for voting more than once in the same polling station:
(f) ......................................
(g) knowingly induces or procures any person to do any of the aforesaid acts.
My attention was also drawn to section 68(2) of the Act, by the learned counsel for the respondent No. 1 and it was contended that election of a returned candidate shall not be declared as void unless the tribunal is satisfied that it was committed with the consent or connivance of the candidate or his election agent. The aforesaid section is reproduced as under:
Ground for declaring election of returned candidate void: (1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:
(a) ......................................
(c) ....................................
(d) .....................................
(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 precautions to prevent its commission; or
(b) ......................................
In the light of the above provisions read with other relevant sections of the Act, the issues framed are to be decided. But it is pertinent to point out that the counsel of the parties raised no objection to add any other issue as framed by my predecessor. I proceed now to dispose of the issues.
In support of issue No. 1 the counsel for the petitioner Dr. Taj Muhammad, examined Syed Haq Nawaz Shah who was Assistant Commissioner and Returning Officer of Constituency No. PB 7 Pishin III. The aforesaid witness did not support the petitioner even in his examination in chief. It was denied by the Returning Officer that one Muhammad Aslam Presiding Officer of Polling Station Kaza Viala was subsequently substituted by one Saadullah. It was stated on the basis of record that Saadullah was the official originally posted in this polling station. As far as substitution of Abdul Qayyum is concerned, it was explained that he was substituted by one Agha Muhammad by the District Returning Officer on the ground that Abdul Qayyum had not come and thus in his place Agha Muhammad was appointed. But this was done before holding of elections of National Assembly. He also deposed that he had not made any amendment or changed any of the Presiding Officers at polling station Mullah Aghbarg.
This was the only witness in support of the (sic).
Although the petitioners produced this witness, but this witness did not support the allegation that polling officers or election staff was changed at the behest of the respondent No. 1. 1t is clear from the statement of PW 11 that Saadullah was not replaced by Muhammad Aslam but was the original officer posted at this polling station. Similarly, since Abdul Qayyum did not attend the meeting, he was replaced by Agha Muhammad. But this change did not occur for election of Provincial Assembly rather it was done even prior to holding of election of National Assembly. It is thus not proved that Returning Officer changed/substituted any member of the polling staff, in order to support the respondent No. 1. Not a single word has been uttered by the witness that by his doing so, 85 votes of the petitioner have been declared as invalid.
Issue No. 1, therefore, is not proved and is settled in negative.
In support of this issue PW 1 Muhammad Sadiq was examined. He was polling officer m polling station Primary School Khusro. He deposed that one Mahmood Khan entered the polling station and offered illegal gratification to the staff which was refused. It was further added by this witness that despite the sign or the indelible ink on the thumbs of the voters, they were allowed to cast votes, but when complaint to the effect was made to the presiding officer, he stopped us.
It was further alleged that 10 women were present in the polling station who were casting votes repeatedly. He further stated that the agent of Muhammad Sarwar Khan, the respondent No. 1, took the ballot papers away from the voters and put the same in the box himself. One Lala Akhtar entered the polling station and abused the polling agent of Dr. Taj Muhammad. In his cross-examination, however, he stated that Mahmood Khan was a candidate and he offered illegal gratification in order to obtain votes for himself. He however, stated that he did not know the 10 ladies or their registration numbers who had allegedly come to cast bogus votes. He categorically admitted that agents of the petitioners did not challenge the votes of any of these ladies. All the polling agents had signed the statements that elections were held properly. He further stated that he did not complain to the Returning Officer/Assistant Commissioner about this irregularity committed in the said polling station.
From the bare perusal of the statement of the aforesaid witness it transpires that he supported allegations as he is Panezai by caste and the petitioner is also a Panezai by caste. It is not understandable that being a polling officer he did not complain to the Assistant Commissioner or to the District Returning Officer. Not only that, but this witness also admits that polling agents of all the candidates were presented and none of the agents raised any objection or challenged any vote. None had made any complaint rather they admitted that the election was conducted properly. All this indicate that although being a member of the polling staff, he has supported the petitioner only because he belonged to the tribe of the petitioner. His statement therefore, cannot be relied upon. It is neither confidence inspiring nor convincing.
In rebuttal the Presiding Officer Bashir Ahmed was produced by the respondent No. 1. He was Presiding Officer at polling station Khusro. He deposedthat no objection of any sort was raised by any one of the polling agents of the candidates throughout the conduct of the polls. He further deposed that indelible ink was supplied for the aforesaid polling station and the same was used at the polling on each and every voter. No objection was raised by any of the polling agents. He stated that no bogus votes were cast in this polling station. He denied the entrance of Lala Akhtar m the polling booth. He however, stated that Lala Akhtar being a voter came and after casting his vote left. His statement was not shaken in cross examination on any material point, nor any suggestion was put to him that presiding officer Muhammad Sadiq had complained to him about the bogus voting in this polling station. This issue related to non use of indelible ink for marking of the voters but the petitioner"s witness Muhammad Sadiq and Bashir Ahmed both deposed that indelible ink was supplied and used. Besides this, other allegations are also not proved.
This issue is, therefore, settled in negative.
Issue No. 3 is in respect of polling station Zarkach wherein it was alleged that 20 lady voters repeatedly cast votes of other lady voters in favour of the respondent No. 1 with the assistance of Malik Amin, polling agent of the respondent No. 1 and the presiding officer in spite of objection did not take any action.
The petitioners produced one Muhammad Hussain who was Assistant Presiding Officer at the polling station Government High School Zarkach. In his affidavit the said witness deposed that rigging was done at a high scale. Twenty women cast votes several times and 210 bogus votes were cast. It was further stated that one Malik Aman Khan who was polling agent of respondent No. 1 was himself affixing stamps on the ballot papers. Similarly it was stated that one voter" cast several votes and when he tried to prevent them, they did not pay any heed and as a result, the Assistant Presiding Officer left the polling station. In cross examination the witness admitted that he is Panezai by caste. He further admitted that the polling agents did not challenge any vote. None of the voters showed the ballot paper after affixing the stamp. They used to come inside the polling station and after affixing the stamp used to put the same in the ballot box. He further stated that he did not know as to which voter cast vote and for which candidate. He admitted that all the polling agents were present. He further admitted that he cannot say how many times these twenty lady voters came to cast vot and for which registered voters. To a Court question he further stated that all the lady voters who came to cast votes were Pardah observing ladies, and he could not see their faces.
In rebuttal the respondent No.1 produced Mir Hatam PW 6. Mir Hatam was also Assistant Officer at the polling station Zarkach. In his affidavit he stated that he remained present from the start till close of the polls at the said polling station. According to this witness the polling continued undisturbed and that no objection from any one was raised. No vote was either challenged or tendered at the polling station. According to this witness, Muhammad Hussain was not feeling well therefore, he was allowed to take rest. In his cross examination he admitted that he belonged to the same tribe to which respondent No. I belonged. He specifically denied that only 20 lady voters came to cast votes. He further denied that only 20 lady voters cast votes of all other lady voters. He stated that the polling agents of Dr. Taj Muhammad and Badruddin did not raise any objection to the conduct of the polls.
R W Mir Hatam also in his statement admitted that Muhammad Hussain left the polling station but he explained that it was because of his illness that the presiding officer allowed him to leave the polling station. But the presiding officer has since not been examined to prove this fact, therefore, it cannot be believed that he was in end left the polling station because of his illness. However, PW Muhammad Hussain in his cross examination admitted that he could not say as to how many times These 20 lady voters came to cast votes and for which registered voters they had cast votes. Although in his affidavit he has stated that 210 votes were cast, it has not been established in whose favour these were cast and that whether the respondent No. 1 or his agent had connied with the said lady voters to cast bogus votes because the only allegation against the polling agent of respondent No. I was that he accompanied the lady voters and he was affixing stamps on the ballot papers. But in his cross examination he admitted that none of the voters who came to cast votes, showed their ballot paper after affixing the stamps. They used to come inside and after affixing the stamp used to put the same in the ballot box. He does not know as to which voter voted for which candidate. This makes the statement of this witness doubtful. He further admitted that he cannot say how many bogus votes were cast by lady voters.
To my calculated view, the deposition of this witness is not sufficient to prove that either respondent No. I or his agent Malik Aman committed illegal practice by asking the lady voters to cast bogus votes because nothing has come from the mouth of this witness that the lady voters cast votes m favour of respondent No. 1 or that either respondent No. 1 or his agent Malik Aman had asked them to cast bogus votes. Furthermore, not a single lady voter was produced whose vote was cast by these lady voters. The statement therefore was not corroborated. As per section 68(2)(b) even if it is presumed that certain bogus votes were cast but there is no substance and material that it was done at the behest of respondent No. 1 and his agent with collusion of polling staff or with the lady voters. Particularly the aforesaid statement was rebutted by another official Mir Hatam who also stated that no complaint/objection by any of the agents of the candidates in writing challenging the lady voters or raising objection to the effect. Therefore inescapable conclusion would be that this issue is not proved beyond doubt. The same is settled in negative.
This issue relates to alleged bogus voting at Walma polling station and the fact that besides Abdul Ghafoor Presiding Officer, the entire polling staff allowed bogus voting being in collusion with respondent No. 1.
In support of this issue the petitioners produced one Abdul Ghafoor and in rebuttal Abdul Qadeer RW 5 was produced by the respondent No. 1. Abdul Qadeer was Presiding Officer at the polling station Walma. He deposed that a sum of Rs. 7,000 was offered to him as illegal gratification by some influential persons of the area. According to him, one Lala Akhtar forcibly entered the polling station and threatened the witness and when he prevented the polling staff to join hands with Lala Akhtar, he was threatened by him and he forcibly prevented him from doing his job and in the meanwhile 100 ballot papers were issued and votes were cast. Seeing that bogus voting is going on, the supporters of Dr. Taj Muhammad interfered as a result of which there was quarrel between both the parties and he reported the same to the Militia authorities but they did not interfere. According to this witness the brother of one Mahmood Khan started advancing threats though he was not a person from that area but he cast many votes. In the cross examination the witness admitted that instead of Returning Officer the Reader of the Assistant Commissioner visited the polling station but he did not make any complaint about the irregularities. He never made any complaint to the Returning Officer or Tehsildar. He admitted that election agents of the candidates were present inside the polling station and only 7 votes were challenged which were separated and sealed in a separate envelope.
In rebuttal respondent No. 1 produced Abdul Qadeer who was Assistant Presiding Officer at polling station Walma. According to this witness polling started and continued without any interruption and no one raised any objection to the conduct of the polls. About 15 votes were challenged. He denied that any person including Lala Akhtar ever entered the polling booth. He denied that any quarrel between the polling agents of Sarwar Khan and Dr. Taj Muhammad took place. He also denied that since there was no quarrel, hence no report was made to Militia authorities.
The material part of the statement of this witness is regarding offer of Rs. 7,000 as illegal gratification. But the witness is silent as to who offered him Rs. 7,000 as illegal gratification which he refused. At least it was not the respondent No. 1 or his agent. As far as bogus voting is concerned, the witness admits that only 7 votes were challenged. On the other hand RW admits that 15 votes were challenged. The challenged votes were sealed in a separate envelope as per rules. There is nothing on record that any quarrel took place because no written report was submitted either to the Returning Officer during or after the polls nor to any other authority. The deposition of this witness that there was bogus voting is not supported from the material on record. Particularly the production of RW 5 makes it further clear that the conduct of the pod"s was according to the rules and no objection was raised by any of the polling4gents who were present. They however, challenged 15 votes. It is astonishing to note that this PW did not inform about the incident to the Returning Officer either during or after close of the polls. The result of the above discussion "is that the petitioners have failed to substantiate this issue beyond reasonable doubt, which is decided in negative.
This issue relates to Wulghar Polling Station to the effect that the votes polled in favour of the petitioner, ere illegally declared as invalid.
No witness was produced by the, petitioners to establish that any validly cast vote was not counted. The onus as stated earlier was on the petitioners to prove allegations and they have failed to prove the same through any evidence. This issue, therefore, is decided in negative.
It was alleged that at Polling Station Civil Dispensary Shahi the polling staff was threatened by the supporters of the respondent No. 1 as a result of which bogus votes were cast.
The petitioners examined PW 4 and PW 5 on this issue. PW 4 Abdul Razzaq who was Assistant Presiding Officer at Killi Shahi Tehsil Barshor in his affidavit stated that polling started at 8.00 A.M. and continued till 5.00 P.M. The Presiding Officer could not control the situation and the supporters of Muhammad Sarwar Khan were advancing threats to the polling staff. According to this witness Muhammad Sarwar Khan was present and after 2.00 P.M. he asked his supporters to cast bogus votes and that the respondent No. 1 came with muffled face at the polling station. However, in cross examination he admitted that he was not acquainted with any voter of village Shahi. He admitted that he remained throughout in the polling station and did not know what happened outside the polling station. He stated that Dr. Taj Muhammad objected to about 20/30 votes which were, bogus. However, he stated that he did not know the serial numbers of the votes. He admitted that Dr. Taj Muhammad did not deposit fee for challenged votes. He further stated that he did not know the names of those persons who cast bogus votes. He also admitted candidly that he did not make any complaint to any person or authority about this irregularity and in the end he also admitted that he and the petitioner both belong to the same tribe.
Similarly, Abdul Hannan PW 5 filed his affidavit to the effect that he was Assistant Presiding Officer at Polling Station Civil Dispensary Shahi. He alleged that one Abdul Nafey, Contractor, offered illegal gratification to the polling staff and threatened them of dire consequences. According to this witness only 30 women were present who cast 200 votes. In his cross examination he stated that none of the polling staff heard the offer of alleged illegal gratification. According to him he informed the petitioner about the offer of bribe about 6 or 7 days after the close of polling. According to him he did not disclose this fact even to the Presiding Officer. He further stated in his cross examination that he did not know the names nor vote numbers of 30 women who had cast 200 bogus votes. He cannot say in whose favour the lady voters cast their votes. According to this witness he informed the petitioner about this fact 6 or 7 days after the date of polls. He belongs to the same tribe to which the petitioner belongs.
It is evident that no polling agent of any of the candidates lodged any complaint to this effect. There is also no evidence that any bogus votes were cast by the respondent No. 1 or his agents. The statement of both the aforesaid witnesses are materially contradictory to each other. PW 4 did not state about the bogus voting by 30 women. On the other hand, he stated that bogus voting was done by the male voters, who changed their turbans and caps. No complaint was lodged to any person either during the polls or after the polls. According to this witness he informed this matter after six or seven days after the close of the polls. All these facts and circumstances are sufficient to make their statements doubtful. I In the ordinary course of events, it is not understandable as to how the responsible polling staff witnessing such glaring irregularities kept silent and no information was given either to the Returning Officer or to any other responsible election officer. It is further startling that both these officials, posted at polling station Shahi, gave such contradictory statements. The statements are inconsistent and doubtful, as such are worthy of no credence. My finding on this issue is also in negative.
On this issue the petitioners produced PW 6 Mehrullah Jan. The aforesaid Mehrullah Jan was Assistant Presiding Officer at Polling Station Kaza Viala during the referendum on 19th December, 1984, 25th December, 1985 for National Assembly Election and 28th February, 1985 for Provincial Assembly Elections. According to this witness one voter was casting votes twice or thrice. No sign was marked on the ballot papers for women. Only one woman. was standing in the polling booth and she was herself putting stamps. Accordig to this witness, the indelible ink was thrown away from the bottle and the same was filled with water so that the marks may be easily removed. He admitted that only one vote was challenged and no vote was tendered. According to him 2 to 3 bottles of ink were used and only one bottle was spoiled by the polling officer whose name he did not know. He is also co tribe of the petitioner.
In rebuttal RW 4 Abdul Qadir son of Abdul Ghafoor was examined. Abdul Qadir is Jamadar Levies and he was posted at Polling Station Shahi. He remained at the said polling station. According to this witness polls were conducted un interrupted and without any objection from any one. There was no disturbance. According to this witness there was no canvassing within the limits of the polling station. In cross examination he stated that he was on security duty at the said polling station. He remained there for all the time. The respondent No. 1 does not belong to his tribe. A suggestion put to this witness was that there was some canvassing by the supporters of the respondent No. 1 within 400 yards, but the same was denied. The deposition by Mehrullah is not trustworthy for the main reason that he admitted that only one vote was challenged and no vote was tendered. According to him the election agents did not raise any objection for stamping the votes by one Mst. Jamila on the ballot papers on lady voters. He also filed no written complaint to the presiding officer. Since neither the polling agents of the candidates nor any of the officers filed any complaint to the conduct of the polls of alleged bogus voting repeatedly cast by women hence this version cannot be believed. On the other hand independent witness produced by respondent No. 1, who was at that time on duty, categorically confirms that polls were held according to the rules without any disturbance or interruption. No objection was made by any of the candidates nor by their agents. The Returning Officer was not informed of the alleged irregularities. It appears that allegations are merely to drag the successful candidate into litigation without any material basis. Had there been any, bogus voting, it was natural for the agents of the candidates or for the candidates to have raised objection at the proper time and before the authorities. It appears that this is an after thought and unbelievable version, therefore, no credence could be attached to such deposition. My finding is in negative.
This issue relates to the allegations, firstly, that the Presiding Officer did not use the indelible ink and secondly that one Malik Noor Ali and Malik Muhamamd Yousuf affixed the stamps on the ballot papers.
PW 7 Abdul Mateen was produced by the petitioners. He was Polling Officer at Polling Station Government Middle School Bagh, Tehsil Barshor. In his affidavit he stated that polling started at 8.00 A.M. and the Presiding Officer did not allow them to put the sign of indelible ink on the thumbs of the voters. The Presiding Officer was supporting the respondent No. 1 and pressurising the other staff. There came threats of dire consequences. Malik Noor Ali and Malik Muhammad Yousuf with connivance of the Presiding Officer affixed the stamps on the ballot papers. In cross-examination this witness stated that he was on duty in the female booth. He admitted that indelible ink was supplied for female booth but the Assistant Presiding Officer asked him not to use it. He stated that although indelible ink was available but he did not use it. He further admitted that polling agents of the candidates were present inside the polling booth but they did not raise any objection over the non use of the indelible ink. According to this witness, Malik Noor Ali and Malik Muhammad Yousuf were not voters of the area and they marked 200 votes of the lady voters. But no lady voter objected to it. No polling agent objected to the presence of the aforesaid two persons in the polling booth. According to him he knew that Assistant Commissioner was Returning Officer and that he did not make any complaint to him.
As rightly pointed out by Mr. Basharatullah that no weight can be given to the statement of this witness because he being responsible election officer did not inform the Returning Officer about the alleged bogus Noting. He also admitted that all the election agents/polling agents were present but none of them raised any objection. Nor any lady voter raised any objection. This is not conceivable in the natural course of events that any polling agent or any lady voter will not raise any objection to such actions. Furthermore, the witness did not depose that Malik Noor Ali and Malik Muhammad Yousuf had any link with respondent No. 1. There is not an iota of evidence that the said persons, even if it is believed, cast votes in favour of the respondent No. 1. Since the deposition and statement of this witness does not inspire confidence and prima facie seems unreasonable, no reliance can be placed on his statement. The result is that the petitioners have failed to substantiate the allegations through independent witness and on this issue my finding is in negative.
The petitoners had to establish that at Mandozai Polling Station indelible ink was not used since the presiding officer was supporting the Respondent No. 1.
The petitioners produced PW 7 Muhammad Qasim. Muhammad Qasim was polling officer at Mandozai Polling Station. According to him indelible ink was never used and only one person was continuously coming and casting votes. According to this witness Presiding Officer was informed, but he did not take any action. He further deposed that the agents of Dr. Taj Muhammad were helping the agents of Sarwar Khan.
In his cross examination the witness stated that two bottles of indelible ink were supplied to him by the presiding officer and he opened the bottles but did not use ink. Reason was that the female voters were not offering their hands for putting the ink on their hands. He admitted that the ballot papers were issued to each voter on getting their thumb impressions marked on the counter foils. The female agents were present at the time of polling. They did not raise any objection to non marking of the sign with indelible ink. He further stated that only one lady was casting votes for others, but she was not known to him, but, since she was wearing the same dress therefore he gathered this impression. He further stated that no person complained that her vote had been cast by somebody etc. The counting of the votes was done in the presence of the polling agents. Although there was no necessity to produce any person in rebuttal because the statement of this witness clearly indicates that none of the agents raised any objection to that effect nor any of the voters did so, to the effect that her vote has been cast by someone else. But anyhow, the respondent No. 1 produced RW Muhammad Yousuf. In his affidavit Muhammad Yousuf stated that indelible ink was properly used and none of the polling agents raised any objection to the conduct of the polls. None of the agents challenged any vote and no vote was tendered at the time of counting. There was no objection from any side. In cross examination he confirmed that it is wrong that female voters had put mark with indelible ink after they had voted. He also stated that ballot papers were duly signed.
In view of the statement. of RW Muhammad Yousuf and admission of PW that no objection by any one of the agents was raised, this issue has not been proved and thus the same is decided in negative.
Abdul Khaliq was examined by the petitioners. In his examination in-chief, the witness deposed that he was posted as Presiding Officer in Primary School Obushtagi. Polling started at 8.00 A.M. and peacefully continued till 12.0( P.M. After 12.30 P.M. there was fight between people outside the polling station. Thereafter, no votes were cast till 2.00 P.M. After 2.00 P.M. only 15/20 voters came to cast their votes. There were 398 votes in that ward but only 118 votes were cast. In the National Assembly Elections, 200 votes were cast in this polling station.
In his cross examination he categorically stated that he cannot say as to who was responsible for that fight.
It is thus not established that fight occurred at the behest of respondent No. 1 or that any supporter or polling agent of the respondent No. 1 was responsible for the untoward incident. Even otherwise, only 82 or say 100 more votes could be cast which does not materially affect the result of the elections. The conclusion would be that my finding is in negative.
PW Mehrullah, whose deposition was already discussed and was held unbelievable/was produced by the petitioner. The reasoning for not believing him have already been discussed in a preceding issue. In addition to him, the petitioner produced one Faiz Muhammad PW 10. He stated in his affidavit that he was the election agent of Mr. Taj Muhammad, one of the petitioners. He stated that rigging, bogus voting and manipulation was done by respondent No. 1 and his supporters in different polling stations. Apart from this general allegation, he did not depose anything in particular.
Besides the statement of this PW both the petitioners Badruddin and Dr. Taj Muhammad also were examined. The reason for not relying on their statement is clear, because they did not raise any objection in writing before the presiding officer or the returning officer during the time of alleged irregularities in the polling station either during the polls or at its close. They had their polling agents on the different polling stations. None of their polling agents raised objection in writing to the conduct of polls. A very few number of votes was challenged, which is immaterial in the vast difference of votes secured by the petitioners and respondent No. 1.
Both these issues are decided in negative for the reason that no independent witness has been produced before the tribunal to support the contention. Only the petitioners examined themselves and made general accusations but did not prove it through any independent and reliable witness.
The learned counsel for the petitioners Mr. Iftikhar Muhammad pointed out that besides the issues framed, since there is material on record regarding other irregularities in the conduct of election, therefore, those may be taken into consideration. He referred to Rule 14(1) C.P.C. and stated, it is not mandatory that formal issues should have been framed. According to him, on the basis of material on record, other irregularities are manifest from the depositions of the witnesses, therefore, those can be taken into consideration. Reliance was placed on P L D 1971 S C 82 and it was submitted that this tribunal may be pleased to arrive at a conclusion regarding the irregularities even if those were not in issue.
The objection as raised by Mr. Iftikhar Muhammad is not sustainable because he was satisfied at the time of framing of issues and did not want to add any further issue. Furthermore, I have already discussed the entire evidence and it has been held that the witnesses are not trustworthy as they did not disclose any irregularity during the polls or at the close of the polls. There is not a single written report/complaint by any of the witnesses regarding the alleged irregularities. The depositions of such witnesses if already been held as unreliable on one point, the same cannot be regarded as reliable on any other issue. Even if it is presumed that there was some bogus voting, it was not .proved that it was 1 either at the behest of respondent No. 1 or his polling agents or his connivance with the election staff. As per depositions, the total number of alleged bogus votes does not exceed 800 to 900. On a Court question, the counsel for the petitioners gave the number of votes of the contesting candidates as under:
(1) Respondent No. 1 .
Muhammad Sarwar Khan 10166
(2) Petitioner
Badruddin 4206
(3) Petitioner
Dr. Taj Muhammad 1553
The number of the votes secured by the respondent No. 1 is much more than alleged bogus votes. Even if these votes are deducted, there will be no material change in the result. But since it has been already concluded that the petitioners failed to prove that any bogus voting was done, therefore, I find no force in the contentions as raised by the petitioners. The counsel for the petitioners Dr. Taj Muhammad adopted the same arguments as advanced by Mr. Iftikhar Muhammad. He however, pointed out that since the allegations in the written statement have not been specifically denied, therefore, it amounts to admission. But from the perusal of the written, statement, it transpires that the respondent has denied the allegations including the grounds of the petition. I am not inclined to agree with the counsel for the petitioners that on such technical ground the petition may be admitted.
As observed at the very outset, that the onus to prove allegations was on the petitioners and that the standard to prove allegations in an election petition is as in a criminal case and in case of any doubt, the benefit of doubt should go to the respondent.
For the reasons recorded herein above, I see no merits in these election petitions which are hereby dismissed. However, there will be no orders as to costs.
AA./34/E
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