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Petitioner: Ch.Muhammad Sarwar Jaura VS Respondent: Mian ABDUL RASHID PAGGANWALA and JUDGMENT
Court Name: Election Tribunal Judge(s): Rustam S. Sidhwa Title:Ch.Muhammad Sarwar Jaura vs Mian ABDUL RASHID PAGGANWALA and
JUDGMENT
Reported As: 1987 MLD 1309 Result: Petition dismissed Judgment JUDGMENT ' This is an election petition filed by Ch. Muhammad Sarwar Jaura, petitioner for the declaration of the election of Mian Abdul Rashid Pagganwala, respondent No.1, the returned candidate, as void and the petitioner to be declared to have been duly elected. 2. The petitioner and respondent No. 1, alongwith eleven other, respondents Nos.2 to 12, contested the election to the Provincial Assembly seat for Constituency No.PP-27 Gujrat in the general elections held can 28-2-1985 ' The petitioner and responden No.1, alongwith eleven others, 3. Respondent No.1, polled about 12,800 votes, whereas the petitioner polled about 12,094 votes. Thus respondent No.1 was declared to have been returned to the said seat as member of the Provincial Assembly. 4. On 18-4-1985, the petitioner filed an election .Petition against Mian Abdul Rashid and others, respondent Nos.1 to 12, before the Election Commission of Pakistan, for the relief as stated in pare 1 above. The allegations made in the petition are as follows: - (1) On the polling day at about 10.00 a.m. At Polling Station No.62 Khaipranwala, respondent No.1 and his supporters, namely, Nasir son of Muhammad Sharif and Muhammad Inayat son of Muhammad Din, residents of Khaipranwala, committed acts of hooliganism by forcibly snatching ballot papers of the women and not allowing them to cast their votes, the report of which incident was lodged by Malik Ghulam Rasool, the Presiding Officer of the said Polling Station, with the Assistant Commissioner, Gujrat. This incident was alleged to have been also witnessed by Ch.Pervaiz Elahi son of Manzoor Elahi MPA and by the Chairman, District Council, Gujrat.
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(2) The Presiding. Officer of female Polling Station Gharibpura (covering wards Nos.3, 14 and 15) established in the Government High School for Girls, Gujrat, misconducted herself by depositing bogus voting and by fraudulently stamping ballot papers of lady voters in favour of respondent No.l. The said malpractice was witnessed by Mst.Hamida Bano, wife of Ashiq Hussain and Mst.Sakina Bibi, wife of Muhammad Khan, all residents of Wards Nos.14 and 15, Gujrat, who were also disallowed from voting. (3) That respondent No.1 indulged in corrupt practice by offering illegal gratification to the voters, in particular Muhammad Ashraf son of Ahmad Din, which incident was witnessed by Syed Ashiq Hussain Shah, son of Syed Muhammad Shah. (4) That Mst.Naseem Kausar, Lecturer, who was Presiding Officer of Polling. Station established in Sir Syed College on Railway Road at Gujrat (covering ward No.12), misconducted herself by fraudulently stamping ballot papers of lady voters in favour of respondent No.1. (5) (5) That on 18-2-1985 at 8.00 p.m., respondent No.1 held a public *meting at Chah Budheywala in Ward No.1, where he distributed Rupees Five Thousand to the voters as an inducement to vote for him which act was witnessed by Allah Ditta son of Karam Dad, Muhammad Sadiq son of Muhammad Khan and Ghulani Rasool son of Sazal Ahmed at that meeting. (6) That before and during the election, respondent No.1 held himself out as a nominee of the Pakistan Peoples Party and in his posters, he presented himself as "Awam Dost". 17) That on 18-2-1985 at 4-30 p.m., respondent No.1 held a public meeting in village Deona Mandl, near Basco Industries Limited, wherein he gave Rupees Three Thousand to the people of the area as an inducement to vote for him, which incident was witnessed by Muhammad Anwar son of Ahmad Khan resident of Deona Seder, Gujrat and Ch.Muhammad Zeman son of Alf Din, resident of Deona Sadar, Gujrat. (8) That during the elections respondent No.1 and his companions moved about with arms and brandished their weapons and caused harassment to the voters, who, as a result of their terror, were unable to vote in favour of the petitioner. 5. The petition was contested only by Mian Abdul Rashid Pagganwala, respondent No.1, who filed his written statement with attendant affidavits and documents. 6. On 29-1-1986, the following issues were framed. (1) What is the effect of the petitioner not having signed his election petition? OPR. (2) Whether the petitioner is estopped by his conduct from filing the election petition? OPR. (3) Whether respondent No.1 has committed any corrupt or illegal practice, which has materially affected the result of the election? OPP. (4) Relief. ' However, the preliminary issue No.1 was not taken up first, but the parties were directed to produce their evidence both on the preliminary issues and on their main case, so that both could be dealt with together at the end. 7. Ch.Muhammad Zeman PW1, Muhammad Ashraf PW2, Ch.Muhammad Anwar PW3, Ashiq Hussain PW4, Mst.Hamida Bano PWS, Malik Ghulam Rasool PW6, Mst.Sakina Bibi PW7 and Allah Ditta PW8 appeared on behalf of the petitioner. Ch.Muhammad Sarwar Jaura petitioner, also appeared himself as PW9. 8. Mrs.Parveen Mirza DW1, Aziz Ahmed DW2, Ch.Muhammad Ashraf DW3, Muhammad Aslam Butt DW4 and Abdul Semi DW5 appeared on behalf of respondent No.l. Mian Abdul Rashid, respondent No.1, also appeared himself as DW6. 9. I have heard the arguments of the learned counsel for the petitioner and the contesting respondent and have, also perused the record. 10. With regard to allegation No.1, the petitioner's affidavit Ex.P9 appears in support thereof, but he does not appear to be an eye-witness to the occurrence, because in cross-examination he stated
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that on the date of election, he visited .The polling booths within the municipal limits of Gujrat City but not those which were in the outlying areas. Since the Polling Station No.62 Khaipranwala was not within the municipal limits of Gujrat City, it is obvious from the petitioner's statement that he was not himself an eye-witness to this occurrence. Malik Ghulam Rasool PW6, who was the Presiding Officer at this Polling Station, stated that on 28-2-1985, Nasir son of Muhammad Sharif and Inayat son of Muhammad Din, two of the voters, had snatched the ballot papers from the hands of two lady voters, had then torn the same and then run away. The two lady voters had complained to him. He then retrieved the two torn ballot papers of the said ladies, which he forwarded with his complaint to the Assistant Commissioner, Gujrat, who was the Returning Officer. He could not identify with which candidate the said two persons who had snatched the ballot papers had a connection. He, however, stated that after the election, he had learnt that the Assistant Commissioner had convicted and sentenced Nazir son of Muhammad Sharif and Inayat son of Muhammad Din. The petitioner denied in his cross-examination that on the said two torn ballot papers, the stamps were affixed on his symbol, which was a "wall clock" and that Nazir and Muhammad Inayat, who, were convicted and sentenced in that respect, were his workers. He rather affirmed that they were the workers of respondent No.l. Aziz Ahmad DW2, who was the Assistant Presiding Officer at Khaipranwala Polling Station, stated that he was at the said Polling Station on the day of election throughout the day, when one untoward incident occurred at the lady polling booth when three lady voters came and complained to him that certain lady polling agents had affixed the seals on their ballot papers, contrary to their wishes, whereupon he had informed them that they could affix the seals according to their own wishes on the said ballot papers and then place the same in the ballot box. He further stated that during this conversation, two persons came and snatched the ballot papers from two of the said ladies and ran away and that at 11-00 a.m. When the Assistant Commissioner 'reached the Polling Station, they informed him about this incident, who then ordered the DSP to arrest the miscreants. He stated that the said miscreants were Nasir Mahmood and Muhammad Inayat, whose names were collected at the spot and furnished to the police. In crbss-examination he denied that the two, miscreants Nasir Mahmood and Muhammad Inayat were the person who had come with Mian Abdul Rashid Pagganwala, respondent No.1, or had at his instance first assaulted the Presiding Officer and then had snatched away the ballot papers from the lady voters of the petitioner. He further denied the fact that the said Nasir Mahmood and Muhammad Inayat were the agents of respondent No.1 and had come with him. He, however, admitted in cross-examination that the ballot papers, which were snatched at his Polling Station, had seals which were affixed on the symbol of the "Clock" and affirmed that this symbol was that of Ch.Muhammad Sarwar Jaura, petitioner. Mian Abdul Rashid Pagganwala, respondent No.1/DW6, in his written statement denied the allegations of the petitioner relevant to allegation No.l. He was not cross-examined by the petitioner on any matter relevant to allegation No.1. From the total evidence adduced by the parties it is clear that Nasir Mahmood and Muhammad Inayat the two miscreants, who happened to snatch the two ballot papers from two of the lady voters on the day of election, neither belonged to the party of respondent No.1, nor were his agents, nor had come with him. Rather, from the evidence of Aziz Ahmad DW2, the Assistant Presiding Officer of the Khaipranwala Polling Station, it appears that some of the lady polling agents were placing the seals on the "Clock" on ballot papers of some lady voters, of whom three complained to the said Assistant Presiding Officer on the ground that the seals had been placed on their ballot papers contrary to their wishes, whereupon he informed the said ladies that they could affix the seals according to their own wishes on the said ballot papers and then place the same in the ballot box, during which conversation the said Nasir Mahmood and Muhammad Inayat came and snatched the ballot papers from two of the said ladies and then ran way, in respect of which a case was also instituted against the said two miscreants. According to Malik Ghulam
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Rasool PW6, the Presiding Officer of Khaipranwala Polling Station, the said two torn ballot papers were also recovered, which according to Azia Ahmad DW2, the Assistant Presiding Officer, had seals which were affixed on the symbol of the "Clock". The inference, therefore, that flows is that the lady polling agents of the petitioner had been placing the seals on the ballot papers on the symbol of the "Clock", that some of the ladies had resented the same, who had then lodged their complaints with Aziz Ahmad DW2, the Assistant Presiding Officer, during which conversation the two miscreants Nasir Mahmood and Muhammad Inayat had turned up, A snatched the two ballot papers from two of the said ladies, had torn them up and then run away. The inference, therefore, seems to be that the two miscreants belonged to the petitioner's party for it was they,who would have been interested to cover up the misdeeds of the petitioner. I would, therefore, hold that allegation No.1 does not stand proved. 11. With regard to allegation No.2, the petitioner's affidavit Ex.P9 appears in support thereof, but from the very nature of the allegation made, the petitioner does not claim himself to be the eye-witness of the said occurrence, though Mst.Hamida Bano PW5 and Mst.Sakina Bano PW7 are stated to be so. However, Mst.Hamida Bano PW5 does not support this allegation, as she claims to be a voter of Ward No.8 and had gone to Zahoor-ul-Din Hall Polling Booth for casting her vote. Mst.Sakina Bano PW7, however, submitted in her affidavit that when she reached the polling station of which Mrs.Parveen Mirza was the Presiding Officer to secure her ballot paper, she was informed that she had already taken the same earlier, that when she insisted to receive her ballot paper, the said Presiding Officer kept on affixing the seals on various ballot papers after examining the voters lists and depositing the said ballot papers in the ballot box. She further stated that not only the lady Presiding Officer misbehaved in this behalf, but the other lady voters also behaved in the same manner. She also stated that when she persisted in demanding the ballot paper, the lady Presiding Officer ultimately gave her the ballot paper and she ultimately cast her vote. She finally stated that the lady Presiding Officer had affixed seals on the symbol of the "helicopter" en many ballot papers which she had clandestinely put into the ballot box, that a number of lady voters snatched the sotas from the policemen on duty and that when she kept on repeating that the Presiding Officer was casting false votes, she was told to keep away and sit down and not behave like a polling agent and to get out. In cross-examination she stated that she had got her affidavit P7 scribed on the same day when the election was held and that she was not allowed to cast her vote at the said polling station. When confronted with her affidavit Ex.P7, where she had state that she had cast her vote, she verified that she had not cast her vote on the date of election. She also stated that the election symbol ,of the petitioner was a "lantern" and that of the contesting respondent was "helicopter". She also stated that she did not go into the polling booth at all, because the lady Presiding Officer did not give her the ballot paper. She also stated that after her affidavit Ex.P7 was scribed and executed, she retained the same with herself, but did not give it to anybody. She further stated that it was incorrect that the petitioner had asked her to scribe an affidavit as per the text contained in Ex.P7 and added that she was not on visiting terms with the petitioner. She,. However, admitted that Haji Aftab, her son, ran a shop by the name of "New Raja Hajjam", which her son had taken on rent from Ch.Arshad, nephew and son-in-law of the petitioner. Mian Abdul Rashid Pagganwala, 'respondent No.1, in his written statement denied the allegation of the petitioner in respect of allegation No.2. Mrs.Parveen Mirza DW1, who was the Presiding Officer at the female polling station, Ghareebpura, stated that she she remained throughout the period of polling at the said polling station on the day of the election. According to her, no untoward incident took place. She stated that she personally did not know any of the lady voters that came and voted at the said polling station, as she did not belong to that mohallah. She also stated that did not know Mst.Sakina Bano wife of Muhammad Khan, aged 50 years, caste Wazir, resident of Mohallah Hassanpura, Gujrat, or Mst. Hamida Bano wife of Ashiq, aged 35 years,. Caste Hanjrra, resident of
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Mohallah Garhi Shah Daula, Gujrat. She denied that she or any of .Her officers had affixed any stamps on the ballot papers of the said Mst.Sakina Bano or Mst. Hamida Bano or any ballot papers of the lady voters that came to vote at the polling station. She affirmed that the polling agents of various candidates remained throughout the day at her polling station. In cross-examination she denied that she had openly assisted the candidature of Abdul Rashid Pagganwala, respondent No.1, in the Provincial Assembly Election, or that the lady polling agents of the said respondent had affixed the seals on the ballot papers of the lady voters and placed them in the ballot box. She denied that openly or in any other illegal manner she had assisted the candidature of respondent No.1 in the election. She denied that .Any quarrel had taken place between her, on one side, and Muhammad Sarwar Jaura, petitioner, and his lady supporters, on the other, at her polling station. She denied that due to political affiliation she had openly assisted respondent No.1 in an unlawful manner. She stated that she did not know whether the petitioner had objected about her behaviour and attitude before the Assistant Commissioner, Gujrat. She denied that she had come to give evidence on the prompting of respondent No.1. She claimed that she had no knowledge about any incident that was alleged to have taken place outside the polling station where the police was posted. The evidence of Mst.Sakina Bano PW7 is not one on which I can place safe reliance. In her affidavit Ex.P7 she clearly stated that she was first refused a ballot paper, but that later on her insistence Mrs.Parveen Mirza DW1, the Presiding Officer, gave her the ballot paper and she cast her vote. At the trial she took a somersault and stated that she did not cast her vote. According to her, the election symbol of the petitioner was a "lantern", whereas actually it was a wall clock. It appears that this lady did not actually go to cast a vote at all and has come forward to give false testimony. In cross-examination she also stated that she did not go into the polling booth at all, because the lady Presiding Officer did not give her a ballot paper. Surprisingly, her affidavit mentions the fact that Mrs.Parveen Mirza DW1, the Presiding Officer, and other polling agents of respondent No.1 were falsely depositing false votes in the ballot boxes'after fraudulently affixing seals on the symbol of the "h.Elicopter" of the respondent. If she had not gone into the polling booth, as B stated at the trial, she could not have seen the false ballot paper being deposited in the ballot boxes in the polling booth. Even otherwise, from her statement it appears that she is an interested witness, for her son Haji Aftab has a shop on rent from Ch.Arshad, the nephew and son-in-law of the petitioner. Her testimony, which is otherwise tainted, is not supported by any independent witness. As such, I cannot accept the same with any degree of safety. I would, therefore, hold that this allegation does not stand proved. 12 . With regard to allegation No.3, the petitioner's affidavit Ex.P9 appears in support thereof, but from the allegations made in the affidavit it appears that he did not witness the said incident, though Muhammad Ashraf PW2 did so. Muhammad Ashraf PW2 in his. Affidavit P2 stated that Muhammad Ashraf, Councillor, Deona Mandi, past member of the Pakistan Peoples Party, together with Mian Abdul Rashid Pagganwala, respondent No.1, past President of Pakistan Peoples Party City Gujrat, Mian Mushtaq Hussain Pagganwala, General Secretary, Pakistan Peoples Party, Gujrat, and Zaftar Mehdi, President District PPP came to his house and asked for votes. At that time Syed Ashiq Hussain PW4 was present with him and a talk took place about the votes and the said four persons offered Rs.2,000 in cash as bribe to obtain votes, but they openly told them that they did not sell votes as they were a trust of the people. In cross-examination he stated that when the four persons belonging to the respondent's party arrived., he had called Ashiq Hussain Shah PW4 to be present and nobody else and that the offer of bribe had been made to him before Ashiq Hussain Shah PW4 had arrived there. He also denied the fact that he had received Rs.2,000 as bribe. Ashiq Hussain Shah PW4 in his affidavit Ex.P4 affirmed the statement made by Muhammad Ashraf PW2. In cross- examination he stated that it was roughly on 18-2-1985 that Mian Abdul Rashid Pagganwala, respondent No.1. Visited his village and that there were other persons of the village in the house of
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Muhammad Ashraf PW2 when the said respondent visited his baithak alongwith his other workers. According to him, there were in all thirty-forty persons at that time in the baithak of Muhammad Ashraf PW2. He stated that he had heard the conversation between Mian Abdul Rashid Pagganwala, respondent No.1, and Muhammad Ashraf PW2 as he was sitting in the latter's baithak, where Muhammad Ashraf PW2 had told him and the other villagers that money was being offered for their votes, which they refused to accept. He admitted that neither he nor Muhammad Ashraf PW2 had received any money from Mian Abdul Rashid Pagganwala, respondent No.1. Mian Abdul Rashid Pagganwala, respondent No.1 DW6, in his written statement denied the allegations of the petitioner regarding allegation No.3. The evidence of Ch.Muhammad Ashraf PW2 and Ashiq Hussain Shah PW4 ,appears to be contradictory. According to Muhammad Ashraf PW2, only he and Syed Ashiq Hussain Shah PW4 were present when Mian Abdul Rashid Pagganwala, respondent No.1, and his three workers came to buy the votes. According to the latter, he and Muhammad Ashraf PW2 and thirty-forty other persons were also sitting in the baithak of Muhammad Ashraf PW2. According to Muhammad Ashraf PW2, when the offer of bribe was made, Ashiq Hussain PW4 had not arrived at his baithak, whereas according to the latter, he was so present when the said offer was made. In affidavit Ex.P2, Muhammad Ashraf has stated that Ashiq Hussain PW4 was present when the offer of bribe was made, but at the trial he recanted from this position. In view of their contradictory positions on a number of important facts, not much reliance can be placed on their testimony to support the allegations made by them. According to Muhammad Ashraf PW2 he had scribed the affidavit Ex.P2 in his own handwriting had that when he was scribing the affidavit of Ashiq Hussain, Asghar, Ali Bhatti, his brother, was also present. Later, he recanted by stating that the affidavit Ex.P2 of Syed Ashiq Hussein was not scribed by him. He appears to be a person who has scant respect for truth for all the affidavits of the witnesses filed by the petitioner appear to be written in the same handwriting by one and the same person and all appear to have been attested by an Oath Commissioner of Lahore. Taking all circumstances into consideration, I would hold that this allegation does not stand proved. 13. With regard to allegation No.4, the petitioner's affidavit Ex.P9 appears in support thereof , but nowhere does the petitioner submit that he witnessed the said corrupt practice. No other witness has appeared in support of this allegation. No polling agent of the petitioner D has even appeared to support this allegation. Mian Abdul Rashid Pagganwala, respondent No.1-DW6, in his written statement, has denied this allegation. In this view of the matter, it cannot be said that this allegation stands proved and I would hold accordingly. 14. With regard to allegation No.5, the petitioner's affidavit Ex.P9 appears in support thereof, but he does not submit having witnessed the said public meeting; Rather, it is 'submitted that Allah Ditta son of Karam Dad, Muhammad Sadiq son of Muhammad Khan and Ghulam Rasul son of Fazal Ahmad witnessed the said occurrence. Allah Ditta PW8 in his affidavit Ex.P8 stated that he was at the Dera of Muhammad Sadiq son of the Muhammad Khan, when Mian Abdul Rashid Pagganwala, respondent No.!, candidate for the Provincial Assembly Seat, Mian Altaf Htssain Pagganwala and other members of the Pakistan Peoples Party came to the Dera of the said Muhammad Sadiq and stated that . As the latter had 200 votes in the bradari which he should give the same to them, whereupon Muhammad Sadiq replied that they would submit their reply after carefully thinking over the matter. At this, they submitted that we should give all the 200 votes to them, for which they were prepared to give Rs.5,000 to Muhammad Sadiq and they also presented cash Rs.5,000 to him, which he flatly refused to accept. In cross-examination he submitted that Mian Abdul Rashid Pagganwala, respondent No.1, and his,companions came, to the baithak of Muhammad Sadiq. There were many other people sitting at that time. He further admitted that the talk about purchase of the votes took place between Mian Abdul Rashid Pagganwala, respondent:No.1 and
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Muhammad Sadiq. He further stated 'that thereafter Muhammad Sadiq informed him. He further stated that Muhammad Sadiq and he had gone to a Munshi in the katchery, where he had, got his affidavit Ex.P8 scribed. He further stated that when the affidavit was scribed, it was before the date of election. Mian Abdul. Rashid Pagganwala, respondent No.1 DW6, in his written statement denied allegation No.5 of the petitioner. In cross-examination he stated that he did not hold any Jalsa in the area of Chah Budha, or that in any such Jalsa he had told the electorate that if he was so elected he would construct a school. The evidence of Allah Ditta. PW8 does not inspire any confidence. He himself submits that the talk for the purchase of votes took place between Mian Abdul Rashid Pagganwala, respondent No.1, and Muhammad Sadiq and that thereafter Muhammad Sadiq had informed him about it. If this be so, his allegation in the affidavit Ex.P8 that money was offered in his presence, stands belied. His further statement that the affidavit Ex.P8 was scribed before the date of election clearly shows that the affidavit was…
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