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Election Petition No.PF-57-D.I.Khan IV, decided on 19th April, 1988.

---S.99--Disqualification of candidate--Election petition--Returned candidate, alleged to have record of being a history sheeter, admittedly, neither was found history sheeter at time of filing of nomination papers nor any other allegation, sufficient to bring case of returned candidate within ambit of disqualification, was proved against him--Election petition filed against returned candidate on ground that he was a history sheeter in the past was dismissed as incompetent.

Muhammad Altaf Hussain v. Muhammad Afzal PLD 1986 S C 530 ref.

---S.33(5)--Representation of People (Conduct of Election) Rules, 1977, R.17-Non-stamping and non-signing ballot papers issued by Presiding Officer--Effect-Non-stamping and non-signing with official mark on ballot papers, held, would not invalidate result of election of returned candidate as requirement as to stamping or signing was not mandatory, but only substantial compliance thereof was required.

Jamshaid Ahmed Khan and 2 others v. The SDM/Asstt: Commissioner Chudwan Sub-Division Kulachi and others P L D 1987 S C 213 and Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others P L D 1986 S C 487 ref.

Sardar Ikram Ullah Khan petitioner and Haji Attaullah Khan respondent with five others contested election from the Provincial Assembly Seat P.F.57/D.I.KhaarIV in the General Election notified in the Government Gazette No.F.24(2)/85-Cord dated 6-3-1985 whereby respondent No.1 was declared a returned candidate from the said Constituency, he having succeeded in getting maximum number of votes as compared to the respondents. Sardar Ikramullah Khan (petitioner herein) one of the defeated candidates has challenged his election through his election petition and prayed therein that his election as a returned candidate be declared void on the following grounds:-

(1) That on the nomination day respondent was disqualified from being elected as candidate to the seat.

(2) That the respondent has remained as a bad character in the record of the police and his name was placed in the Register No.10 of Police Station Chudhwan on 15-4-1966.

(3) That the name of the respondent was subsequently transferred to bundle "B" of Police Station City D.I.Khan where he remained as such till 24-7-1983 i.e. for about 17 years. - However, thereafter his name was transferred by the Superintendent of Police, D.I.Khan to his personal file and before the election collusively the local police destroyed his record on 6-11-1983 by the order of S.P. D.I.Khan against the police rules.

(4) That the returned candidate in collusion with the Polling Staff committed illegal and corrupt practices in the conduct of the election and also exercised undue official influence in favour of the petitioner.

Respondent No.1 in his written statement denied all the allegations made in the petition and further raised several legal and factual objections to the maintainability of the petition. He further stated that he has never remained a bad character and did contest Local Council Election. 1964 and was returned unopposed from his constituency. That he also was the nominee of the Muslim League in the General Election in 1970 from the Provincial Assembly Seat as against the father of the petitioner. That subsequently in the Local Bodies Election in 1979 his two sons were elected as members, of the District Council D.I.Khan. In the year 1983 his three sons were successful in the District Council Election and were still holding those seats at the time of the present election.

Amanullah Khan respondent No.3 also filed his written statement in which he alleged that the petitioner as well as respondent No.1 were disqualified from contesting the election. With regard- to the petitioner it was stated that he was under age and was, therefore, unqualified to have contested the election. He was born on 11th of February, 1961, mentioned in the Matriculation certificate, and was below 25, years on the day, when he was filing his nomination papers. Several other documents regarding his age are referred to in para-1 of his written statement. The following issues were framed in the light of the pleadings of the parties:-

(1) Whether the petition is not competent in view of preliminary objection

(2) Whether respondent No.1 was disqualified to be elected as Member of Assembly on the day of nomination

(3) Whether respondent No.1 committed illegal acts/corrupt practices during the election and if, so, whether the election was materially affected

(4) Relief.

Both the parties led their evidence. However, respondent No.3 did not produce any evidence in support of his pleadings. The petitioner appeared as his own witness and produced seven other witnesses while on behalf of the respondent Qazi Muhammad Anwar, his learned counsel, produced the original identity card of respondent No.1 and placed it on file which is Ex. RW 1/1, showing that respondent remained a member of the Basic Democracy in the year 1964/1965. No other evidence was produced. Arguments of the learned counsel for the parties heard.

Issue No.1.

The main ground on which the petitioner based his allegation No.1 was a bad character and in support thereof it has been alleged that respondent No.1 was entered in Register No.10 with the Police of Police Station Chudwan and thereafter his name was transferred and entered in bundle "B". In order to prove this fact two witnesses have appeared, namely, Khizer Hayat (PW 3) Moharrir Head Constable Police Station Chudwan who stated that the history sheet of respondent No.1 was transferred to Police Station, City D.I.Khan on 15-7-1978. Hidayatullah Khan (PW 4) Muharrir/Head Constable Police Station City D.1.Khan in his statement produced Register No.1l containing entries of history sheet of Attaullah Khan respondent No.1 at serial No.171 on 25-10-1978 in bundle "B" and further stated that later on his name was transferred to his personal file on 24-7-1983 by the S.P. of D.I.Khan. That the personal rile was destroyed by Samiullah Khan A.S.P. on 6-11-1983. He produced the photostat copy of it which is Ex. PW.1/2. In cross-examination he admitted it correct that after 6-1.1-1983 respondent No.1 was not on the list of the history sheet in any Police Station nor there was any record against him in his Police Station. The petitioner has in his statement reiterated his allegations that respondent No.1 was a history sheeter and that his name was transferred from Bundle A to Bundle B but subsequently his history sheet was destroyed within four months by A.S.P. Samiullah Khan who was the personal friend of respondent No.1 against the rule. In cross-examination he showed his ignorance that in the year 1965 respondent No.1 was elected as member in the Basic Democracy Election and that his brother was the Chairman of the Union Council. He however, admitted that in the year 1970 his father contested election for the Provincial Assembly against respondent No.1 and in that his father was elected. He denied the suggestion that after the election of his father and his appointment as a Chief Minister the respondent No.1 and his brother were taken into custody and put in jail. He admitted it correct that in the year 1977 his father contested the election on the P P ticket while respondent 1 was a candidate of PNA. He further admitted that in the year 1979 Sanaullah Khan Mian Khel and Umar Farooq Mian Khel (sons of respondent No.1) were elected to the District Council. He further admitted that three sons of respondent No.1 succeeded in their election of the District Council seats. It was stated that the conduct of respondent No.1 being a history sheeter was not known to him, therefore, he did not raise any objection to his nomination papers at the time of scrutiny during the election in question and that he came to know of it after he was defeated by respondent No.1. This was the entire evidence led by the petitioner in support of the plea.

Without going into the detail of the evidence referred to above produced by the petitioner in proof of the issue, in my view is not sufficient to bring the case of the respondent No.1 within the ambit of disqualification as provided in section 99 of the Election Laws. Admittedly respondent No.1 was neither a history sheeter at the time of filing of nomination papers nor was there any other disqualification proved on the file to substantiate the allegations made by the petitioner. In this respect reliance can be placed on Muhammad Altaf Hussain v. Muhammad Afzal PLD 1986 SC 530. For the reasons stated above this issue is decided against the petitioner.

Issue No.3.

The allegations with regard to the illegal and corrupt practices pointed out by the learned counsel for the petitioner are to the effect that in Government Girls High School Kulachi Polling Station the returned candidate inducted an unauthorised lady inside the Polling Station which was indulging in illegal practice of stamping and marking the ballot papers herself with the connivance of the Presiding Officer of that Polling Station. However, no evidence worth mentioning has roof thereof while Presiding Officer in his statement been produced in simply stated that one Muhammad Usman Polling Agent had made an application before him which is Ex.2/1 alongwith two Parchis Exs.2/2 and 2/3 with the grievance that Abdul Qayum PW was not allowed to enter Polling Station at Musazai though he was a special agent but the Presiding Officer had clearly stated that he was not allowed because his name was not there in the list communicated to him of the election agents by the authorities and there were already other two Polling Agents acting on his behalf. No rigging was alleged and no evidence was led to prove collusion between the Presiding Officer and the respondent No.1 as is alleged by the petitioner. With regard to the allegation that no thumb-impressions of the voters were obtained on the counterfoil of ballot papers this question was not stressed either before this Tribunal, and rightly so, as no evidence was led on this point. Similarly the allegation that the Presiding Officer did not sign and stamp with official mark the ballot papers issued to the voters has also not been proved. In Jamshed Ahmed Khan and 2 others v. The SDM/Asstt. Commissioner Chudwan Sub-Divisional Kulachi and others P L D 1987 S C 213, while answering the objections raised to the non-compliance of the provisions of section 33 (5) of the Representation of the People Act (LXXXV of 1976) and Rule 17 their Lordships observed as follows:-

"From the aforesaid discussion we are of the firm opinion that the provisions of section 33(5) of the Act and or rule 17, are not mandatory, with the result that only substantial compliance was required."

Similarly it was held in Ch. Muhammad Abdullah v. Ch. Abdul Wakil and others PLD 1986 SC 487 that it was not necessary that both the official marking and the signature of the Presiding Officer on the ballot paper would only make a vote valid for counting. Anyhow as already pointed out there is no evidence on the record that arty illegal or corrupt practices were committed by respondent No.1 or his age of so as to be made the basis for declaring the election as void.

H.B.T./42-E.

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