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Petitioner: Raja ABDUL QAIYYUM KHAN VS Respondent: Choudhary LATIF AKBAR and 2 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Syed Manzoor Hussain Gillani Title: Raja ABDUL QAIYYUM KHAN vs Choudhary LATIF AKBAR and 2 others Case No.: Tribunal Appeal No,99 of 1993 Date of Judgment:1994-05-07 Reported As: 1994 MLD 2108 Result: Appeal dismissed
Judgment ORDER ' KHAWAJA MUHAMMAD SAEED, J.---The above-noted appeal filed under subsection (3) of section 63 of the Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 (hereinafter referred to as Ordinance), is directed against the order passed by the Election Tribunal on November 30, 1993 whereby, while declaring the election of the appellant from LA-26- Muzaffarabad-IV, as void, the re-election has been ordered. 2. Admitted facts are that general elections for the Azad Jammu and Kashmir Legislative Assembly were held on November 29, 1991. Raja Abdul Qaiyyum Khan (hereinafter referred to as appellant) and Choudhary Latif Akbar (henceforth referred to as the respondent) as the nominees of the Azad Jammu and Kashmir Muslim Conference and the Pakistan People's Party respectively contested the elections. Besides the appellant and the respondent Muhammad Yusuf Awan and one Abdul Qaiyyum who is arrayed as respondents also contested the elections from the same constituency. The appellant obtained 21,896 votes as against the respondent who got 14,471 votes Respondent Muhammad Yusuf Awan and Abdul Qaiyyum obtained 396 and 216 votes respectively. Both these respondents despite service failed to appear before the Election Tribunal as well as before this Court as such were proceeded against ex parte. 3. The appellant having won the elections by a majority of 7,428 votes was declared duly elected and a Notification to this effect was issued on July 6, 1991. 4. The respondent challenged the legality of the election of the appellant by filing an election petition under section 49 of the Ordinance before the Chief Election Commissioner on August 19, 1991 which was later on entrusted to the Election Tribunal for hearing and disposal. In para. 3 of the election petition from sub paras. {{URDU TEXT}} the charges of illegal and corrupt practice at about
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29 polling stations were levelled against the appellant, his election agents, the polling staff and the Muslim Conference, the Political Party of Azad Jammu and Kashmir to which the appellant is affiliated and the ruling party of Pakistan, particularly the Ministry of Kashmir Affairs and the Minister Incharge of the said Ministry at the relevant time. In the light of the allegations the respondent prayed that election of the appellant having been procured by using illegal and corrupt practice be declared void and fresh election be ordered. 5. The appellant denied all the allegations levelled in the election petition and also raised certain preliminary objections regarding the non-maintainability of the petition in the written statement which was filed by him on March 3, 1992. 6. Keeping in view the pleadings of the parties, the learned Election Tribunal on April 19, 1992, framed the following issues in the presence of the learned counsel for the parties:--- (1) Whether the petition is barred by limitation? O.P.R. (2) Whether the petition has been drafted keeping in view the relevant provisions of Azad Jammu and Kashmir Legislative Assembly (Election) Ordinance, 1970 as amended up-to-date and the Azad Jammu and Kashmir Legislative Assembly (Election) Rules, 1970 as amended, if not with what effect? O.P.R. (3) Whether the petition is incompetent for not impleading the polling staff and the workers of All Jammu and Kashmir Muslim Conference? O.P.R. (4) Whether no allegations of any nature were levelled against respondent No,1 by the petitioner and for that reason the present petition is liable to dismissal? O.P.R. . (5) Whether the petitioner manoeuvred reports from the Returning Officer and the Presiding Officer after announcement of the result of election by prevailing upon them and was guilty of fabrication and concoction of official record, if so, with what effect? O.P.R. (6) Where other the allegations in para. 3 of the petition are borne out by the record of the ease and other evidence? O.P.R. (7) If the allegations as contained in para. 3 of the petition are proved, then has the result of the election been materially affected, if so, with what effect? O.P.R. (8) Relief. 7. The respondent besides himself produced 23 other witnesses. He also produced documentary evidence from P/1 to P/27 out of which P/1 to P/5 and P/24 to P/27 were filed along with election petition whereas the remaining documents were tendered in evidence during the course of his statement. The nature and relevancy of these documents shall be discussed in the latter part of this order. 8. In rebuttal, the appellant examined 14 persons as his witnesses and got his own statement recorded. The learned Election Tribunal vide order under appeal dated November 30, 1993, decided all the issues against the appellant and came to the conclusion that extensive corrupt and illegal practice had been committed in the abovementioned constituency and in consequence thereof declared the election of the appellant void and ordered fresh elections in accordance with law. 9. In the background of these facts, the present appeal has been filed before this Court. 10. Raja Muhammad Hanif Khan, the learned counsel for the appellant during the course of his arguments, mooted before this Court the finding recorded by the Election Tribunal on issues numbers 2, 3, 4, 5, 6, 7 and 8 and argued that the election petition does not conform to the relevant provisions of the Ordinance as no specific allegation of corrupt and illegal practice was attributed to the appellant in the Election Petition. Even the names of those persons who committed corrupt and illegal practice were not mentioned in the petition. The failure of the respondent to implead those workers, supporters and officials of the election machinery as answering respondents who according to him, had committed illegal and corrupt practice during the course of election was sufficient to dismiss his election petition as all those persons were necessary party. He further
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argued that decision of Election Tribunal about issues numbers 2, 3, 4, 5, 6 and 7 was against the evidence on record as such the finding of the Election Tribunal suffers from misreading and non- reading of the evidence. The conclusion drawn by the Election Tribunal is not based any evidence on record. Alternatively his argument was that in the light of the evidence two interpretations were possible and one favourable to the returned candidate i,e, the appellant, should have been preferred but in the present case the Election Tribunal has done otherwise. He further argued that a strict proof was required to prove the charges of corrupt and illegal practice as the proceedings were quasi-criminal in nature. He further argued that the burden of proving the corrupt and illegal practice was upon the respondent who had alleged the same in his election petition. But the respondent has failed to establish the same by leading impartial and independent witnesses, that the appellant as a returned candidate himself or by his election agents or through any other person by his connivance was guilty of committing illegal and corrupt practice alleged against him. In this view of the matter, the finding of the Election Tribunal is factually wrong and against the spirit of law on the subject: (1) AIR 1975 SC 1718/2299. (2) AIR 1975 SC 403/972. (3) AIR 1974 SC 47. (4) PLD 1976 SC 6. (5) PLD 1957 SC 91. (6) PLD 1973 SC 160. (7) 1973 CLC 929. (8) 1986 M LD 2245. (9) AIR 1985 SC 887. (10) PLD 1968 Dacca 332. (11) PLD 1985 Journal 283. 11. In rebuttal the learned counsel for the respondent Choudhary Muhammad Ibrahim Zia vehemently opposed the arguments of the learned counsel for the appellant. According to him the authorities relied on by the learned counsel for the appellant from Indian jurisdiction had no application on the facts of the present case as all these authorities have been given under a different law. According to the learned counsel for the respondent the authorities from Indian jurisprudence have been given under the Act known as "Representative of Peoples Act of 1950" where the term "proved" has been used. In this view of the matter the authorities from Indian jurisprudence are distinguishable and have nothing common with the facts of the case under consideration. He further emphasized that issue No,2 was not pressed by the learned counsel for the appellant before the Election Tribunal as such by his conduct he is estopped to raise the same in appeal before this Court. He further argued that it has not been shown that as to why the Election petition does not conform to the relevant provisions of the Ordinance. The only point which has been repeatedly argued in this regard before this Court is that allegation of illegal and corrupt practice had not been attributed to the appellant in the election petition which fact is not correct. He further argued that the right of appeal before this Court has been made available under subsection (3) of section 63 of the Ordinance which reads as under:--- "63(3). Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 (Act V of 1908) and the decision of the High Court on such appeal shall be final. Every such appeal shall be heard by a Division Bench of two Judges of the High Court." ' Therefore, the appeal before this Court can only lie on the grounds mentioned in section 100, C.P.C. Which do not envisage a second appeal against a finding of fact, whereas all the points which
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have been raised by the learned Counsel for the appellant before this Court, relate to the finding of fact. His precise argument was that this Court cannot disturb the decision of the Election Tribunal on questions of fact even if it comes to the conclusion that an erroneous finding of fact has been recorded by the Election Tribunal. He relied: (1) PLD 1975 Azad J&K 32, 20, (2) PLD 1963 SC 191, (3) PLD 1983 SC (AJ&K) 120, (4) 1992 SCMR 298, (5) PLD 1975 Pesh. 124, (6) AIR 1975 SC 1909, (7) PLD 1978 AJ&K 146. 12. We have taken into consideration the respective submissions of the learned counsel for the parties and have also gone through, the record of the case. We have also perused the authorities cited at the Bar. We are sorry to mention that some of the case-law cited by the learned counsel for the parties, has got no relevancy' to the facts of the instant case. 13. Before dealing with the points raised by the learned counsel for the parties during the course of their arguments, it appears necessary to resolve the controversy as to whether the petition filed by the respondent before the Election Tribunal does conform to the relevant provisions of the Ordinance, or not for the proper perception of the controversy involved, it is imperative to have a reference to para. 3 of the election petition in which the blame of corrupt and illegal practice was levelled by the respondent. Para. 3 of the election petition reads as under:- {{URDU TEXT}} {{URDU TEXT}} 14. We will take up issues numbers 2, 3 and 4 together as these are interconnected. 15. I For the resolution of controversy listed in these issues, the relevant provisions are contained in sections 50 and 51 of the Ordinance. Subsection (1) of section 49 of the Ordinance envisages that, no election shall be called in question except by way of an election petition made by a candidate in that election. Sections 50 and 51 are in these terms:--- "50. The petitioner shall join as respondent to his election petition -- (a) all contesting candidates; and (b) any other candidate against whom any allegation, if any, of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of his petition. 51. Every election petition shall contain -- (a) a precise statement of the material facts on which the petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations namely -- (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; (c) that the election as a whole is void. (3) Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings."
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' In section 51, the term "candidate" has been used. This term has been defined in subsection (2) of section 2 of the Ordinance in the following words:- "Candidate means a person proposed as a candidate for the election as a member." Keeping in view the above-referred definition of the term "candidate" the only conclusion which can be drawn is that law does not require that respondent should have impleaded as respondents the agents of returned candidate (appellant) or the polling staff through, whom corrupt and illegal practice was allegedly committed by him. The requirement of law was that the respondent should have impleaded as answering respondents the candidates who contested the election and particularly the appellant against whom blame of corrupt and illegal practice was levelled by him. 15. The nature of allegations has already been stated by us in para. (13) of this order wherein the corrupt and illegal practice committed by the appellant have been specifically mentioned by the respondent. We hold that the appellant under the above-referred scheme of law was not required to array in the line of respondents the supporters of the appellant or the officials of the election machinery through whom the corrupt and illegal practice was allegedly committed. The objection in this regard is without merit. In these circumstances, we don't find that finding of Election Tribunal on these issues can be said to be unjustified. 16. Issues numbers 5 and 6 in our view are interlinked as such these can be conveniently disposed of together. 17. Before recording finding on these issues in the light of the evidence available on the record, it appears necessary to mention here that in para. 3 of election petition the blame of corrupt and illegal practice was levelled by respondent against the appellant with respect to following polling stations:- 1, 2, 4, 13, 15, 17, 19, 20, 22, 26, 27, 28, 43, 46, 47, 48, 54, 59, 64, 65, 70, 71, 72, 9, 16, 40, 45, 34 and 76. ' But he produced his oral evidence about the following 20 polling stations and the Election Tribunal also recorded its finding about these polling stations, namely:- (1) Polling Station No, 2 Khatkair-Pain. (2) Polling Station No, 8 Padhot. (3) Polling Station No, 9 Mohra. (4) Polling Station No, 16 Pinha. (5) Polling Station No, 17 Pajja-Sharif. (6) Polling Station No, 20 Poth-Salch-Gali. (7) Polling Station No, 22 Narrat. (8) Polling Station No, 26 Kot. (9) Polling Station No, 27 Koomi. (10) Polling Station No, 34 Cappa Batt. (11) Polling Station No, 40 Kumhar-Bundi. (12) Polling Station No, 42 Chamkutli-Azaim-Khan. (13) Polling Station No, 43 Chotla. (14) Polling Station No, 44 Narran. (15) Polling Station No, 45 Akhhriyala. (16) Polling Station No, 64 Chattar-Kalas. (17) Polling Station No, 71 Kot. (18) Polling Station No, 72 Sanoarian. (19) Polling Station No, 76 Rajpothi. (20) Polling Station No, 1 Katkair-Bala. ' Out of these polling stations, the Election Tribunal held that the allegations of corrupt and illegal practice with regard to Polling Station No,2 (Katkair-Pain), Polling Station No,8 (Padhot), Polling Station No,17 (Pajja-Sharif), Polling Station No,27 (Koomi) and Polling Station No,45 (Akhhriyala) and
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Polling Station No,71 (Kot) do not stand proved from the evidence on the simple ground that official witnesses who were summoned on the request of the respondent have not supported his version. The respondent perhaps could not imagine that it was not possible for the officials to depose against the appellant who in the meantime, was taken in the Cabinet as Forest Minister. The learned counsel for the respondent made a request during his arguments that under Order 41, Rule 33, C.P.C. Very wide discretion is given to the appellate Court to pass any such order or decree that ought to have been passed, notwithstanding that the appeal is against a part of the decree or the contesting party has not filed an appeal or cross-objections. He therefore, requested that he may be heard against the finding of the learned Election Tribunal, 18. The general rule is that unless there is an appeal or cross-objections against the order or decree, the same shall not be varied or set aside. No reasonable ground has been disclosed as to why right of appeal was not availed of by respondent against the findings which were recorded against him as to B why did he fail to avail of chance to file cross-objections. In these circumstances, the prayer made by the learned counsel for the respondent is declined. 19. Before recording finding on these issues in the light of the remaining 12 polling stations, it appears necessary to decide the moot point about the standard of evidence in election disputes. According to the learned counsel for the appellant the proceedings in election disputes are quasi- criminal, therefore, the allegation of corrupt and illegal practice must be proved affirmatively beyond reasonable doubt by producing independent witnesses. In the present case, the respondent has produced his polling agents and workers in support of the allegations. These witnesses were interested as such their testimony should not have been relied upon by the Election Tribunal. He further argued that fair opportunity was not provided to the appellant to lead his evidence on these two issues. 20. For the proper perception of the points raised in respect of the standard of evidence, it is imperative to have a reference to the relevant provisions under which the case-law referred by the learned counsel for the appellant has been laid down. The authorities from Indian jurisdiction have been given under the Act known as "Representation of the Peoples Act, 1950". Subsection (i) of section 99 of the Act being relevant is reproduced here:--- "99 (i). a finding whether any corrupt practice has or has not been proved to have committed at the election, and the nature of that practice;" ' whereas all the authorities from Pakistan jurisdiction have been given in the light of sections 67 and 68 of the Representation . Of Peoples Act, 1976. Section 68 for the purpose of controversy involved being relevant is reproduced below:--- "68. 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) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (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 precaution to prevent its commission; or
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(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from being elected as a member." 21. Under the Representation of Peoples Act, 1950, the order is to be made where the charge of corrupt and illegal practice committed during the course of election is proved by the person challenging the same whereas under the Representation of the Peoples Act, 1976 of Pakistan the Tribunal shall declare the election of the candidates to be void if it is satisfied that election of the returned candidate has been procured by using illegal and corrupt practice. 22. In Azad Kashmir under section 64 of the Ordinance, the Tribunal shall declare the election of the returned candidate to be void only if it is satisfied that-- "64 (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidates or his election agent." 23. Before the case-law cited from Pakistan jurisdiction is taken into consideration it appears convenient to discuss the following authorities which have been referred by the learned counsel for the appellant from Indian jurisdiction on the question of standard of evidence required in an election dispute, where the blame of corrupt and illegal practice was levelled against a returned candidate. 24. "Chaitanya Kumar Adatiya v. Smt. Sushila Dixit and others" (AIR 1975 SC 1718). The facts of the case were that respondent was declared elected to Madhya elector in the constituency filed an election petition before the High Court to have the election of respondent No,1 as returned candidate declared void alleging therein that he had committed various corrupt practices. Certain irregularities in counting the votes and non-compliance with certain provisions of the Conduct of the Election Rules, 1961, were also pleaded. The main allegation on which the corrupt practice was based was that returned candidate paid a sum of Rs,100 to Ramayan Mandal an Agricultural organization of a village. The petitioner in that case, produced some evidence. In rebuttal the returned candidate examined one Rameshwar Perashad who stated that this amount was received on the orders of the State Government. In the light of the evidence the High Court came to the conclusion that the amount in question was a discretionary grant which was made over by the returned candidate in December 1971 when she was a Minister In charge of Education Department. In the peculiar facts of the case, while upholding the decision of the High Court whereby the election petition was dismissed it was observed as under:--- " The law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. ' The High Court found that the evidence on the point was neither reliable nor sufficient to prove that the grant was made with the motive of inducing the villagers to vote for the first respondent. We don't find that on the evidence this finding can be said to be unjustified." 25. The second authority which was relied by the learned counsel for the appellant on this point is "Smt. Indira Nehru Gandhi v. Shri Raj Narain" (AIR 1975 SC 2299). In this case it was observed that grounds raised in the election petition must be proved strictly to deseat the elected representative and further that no amount of evidence brought on record could be looked into on a case not set up in the election petition. 26. The third authority is "Sri Harasingh Charan Mohanty v. Surendra Mohanty" (AIR 1974 SC 47). The facts of this case were that election of the returned candidate was challenged by a voter of the constituency. He challenged the election of the returned candidate on the grounds that the election was won by making appeal to the religious sentiments of the people of the constituency and also by making false promises to eradicate unemployment and poverty from the country and
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the imputation against the personal character and conduct of a contesting candidate. It was not pleaded in the petition that the returned candidate had levelled false charge of misappropriation against a rival candidate. However, he led evidence in support of this fact which was not considered. 27. It was opined in the light of the evidence adduced by the appellant who had challenged…
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