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Petitioner: S. ZAFAR ALI SHAH VS Respondent: MUHAMMAD YOUNAS ELAHI And OTHER
Court Name: Election Tribunal Judge(s): Muhammad Ishaq Khan Title: S. ZAFAR ALI SHAH vs MUHAMMAD YOUNAS ELAHI And OTHER Case No.: Election Petition No.6 of 1985 Date of Judgment:1988-04-06 Reported As: 1989 CLC 88 Result: petition dismissed
JUDGMENT
JUDGMENT Syed Zafar Ali Shah son of Syed Yaqoob Shah, Petitioner herein, has filed this Election Petition under the Representation of the People Act, 1976 (LXXV) against Mohammad Younas Elahi son of Haji Fazal Elahi, Mohammad Khurshid son of Abdul Qayyum, Syed Sultan Hussain Shah son of Syed Mehmood Shah and the Assistant Commissioner Returning Officer N. A.1 Peshawar-I (Respondents 1 to 4 respectively) for a declaration to the effect` that the election of respondent No.l. Is void, illegal, ab initio for being not qualified to contest the election under the law and that the petitioner is the returned candidate. 2. Briefly stated the facts of the case are that general elections for Constituency' N.A.-I Peshawar-I for the National Assembly were held on February 25 , 1985 wherein Petitioner and Respondents 1 to 3 took part as candidates; that Respondent No.l was declared as returned candidate with the following results of votes polled in favour of each candidate:- Respondent No.1secured:26815 votes. Petitioner secured22524 votes. Respondent No.2 secured5769 votes. Respondent No.3 secured454 votes. It is further mentioned in the petition that a Private Limited Company under the name of A.G.E. Industries Limited was incorporated at Peshawar under the Companies Act, 1913 on 21st February, 1968 with its Head Office at 26-Saddar Road, Peshawar; that Malik Ali Maan Shah, Mohammad Yousaf Zia and Mohammad Younas Elahi became its Directors and were still enjoying the portfolios except Ali Maan Shah, who died later on; that since the incorporation of the said Company respondent No.l has always been actively functioning as the Director and Chairman, having
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absolute control over the Company; that the said Company is manaufacturing cable wires and is duly approved by various Government Agencies as Supplier, which Agencies include General Headquarters, Ministry of Defence, Pakistan International Airlines Corporation, Airports Development Agency, .Karachi Electric Supply Corporation, Pakistan Atomic Energy Commission, Pakistan Railways, Capital Development Authority, Water and Power Development Authority and Pakistan Ordnance Factories .Etc. That on 20th January, 1985 respondent No.l filed his nomination papers for contesting the election of the above said Constituency but at that time the above- named Company had subsisting contracts and purchase orders from Government Agencies and Departments; that the various purchase orders were from Wapda, Millat Tractors, Khazana Sugar Mills of SDA, Pakistan Railways, T & T Department, Pak. Steel, National Construction, National Cement and Karachi Shipyards; that when respondent No.l filed his nomination papers with the Returning Officer at that time he was acting as Director and was managing the affairs of the Company on that day and even thereafter but he did not disclose this point to the Returning Officer. A writ petition was also filed by respondent No.3 against respondent No.l in this Court but the same was withdrawn with the prayer to reserve his right of raising those points in addition to other points before the election Tribunal or in a subsequent writ petition before the High Court. It was lastly averred in the election petition that respondent No.l still continues to be a Director dealing with the entire affairs of the Company as is evident from the recent correspondence effected by and on behalf of the Company with Income Tax Department by him even much after filing of his nomination papers. Therefore, the petitioner has challenged his election on the grounds that keeping in view the above narrated facts it is fully proved that respondent No.l is a person having shares and interest in the subsisting contracts for the supply of goods and in the execution of contracts in relation to works undertaken by the Government; that as already stated above respondent No.l has been active Director of the Company and the other shareholders are his relations; that respondent No.l had been drawing salary and remuneration as a Director for recent months and had also contested election of Sarhad Chamber and Commerce Industries in his capacity as nominee of AGE Industries Limited held on 10th January, 1985 as is evident from Annexures E/1 to E/3 respectively placed on file; that respondent No.l was not qualified under the law to file his nomination papers and to contest election and that his papers should have been rejected; that the election of respondent No.l secured on the basis of said void nomination papers and disqualification is illegal, unlawful and liable to be declared as of no legal effect and that the petitioner having secured next higher position in the election is to be declared as the returned candidate under the law. Lastly the ground of attack of the petitioner is that the whole polling proceedings in favour of respondent No.l are illegal and his name is to be struck off from the list of returned candidates of the National Assembly. 3. Notices were issued in the names of respondents 1 to 4 but respondent 3 in spite of service did not appear before the Tribunal and was thus placed ex parte. Although respondent No. 4 filed his written statement but thereafter he also did not appear and was too placed ex parte. However, respondents Nos.l and 2 filed their written statements. In fact it is only respondent No.l who contested this election petition and in his written statement besides taking preliminary objections about the source from which the petitioner got access to the documents which he had added to the election petition and which purport to be private and confidential documents, on merits too the allegations of the petitioner have been denied with a prayer that the election petition be dismissed with costs. 4. After filing of written statement by respondent No.l the Petitioner was given an opportunity to file replication which he did and thereafter on the pleadings of the parties the following issues were framed:-
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(1) Whether petition is incompetent and liable to be dismissed for reasons mentioned in the preliminary objections? (2) Whether M/s A.G.E. Industries Limited had contracts for supply of goods to, or for the execution of contract /contracts or performance of any services undertaken by the Government on the date of filing of Nomination Papers for the said constituency and Respondent No.l by himself as a share holder or as a Director had a share or interest in any of the aforementioned contracts and was disqualified under clause (8) (B) of Sections 110 and 127 of the Houses of Parliament and Provincial Assembly (II) Order, 1977? (3) If respondent No.l was so disqualified to contest from the said constituency, is the petitioner entitled to be declared as elected from the said seat? (4) Relief? After framing of the issues the case was fixed for petitioner's evidence. On 17-5-1986 the petitioner filed two applications, viz. One for summoning the witnesses along with documents mentioned in the said application and the other for filing additional documents. Copies of these applications were, however, given to respondent No.l, who filed replication thereto and thereafter the case was fixed for arguments on the said two applications. Lengthy arguments were addressed by Mr. Fakhruddin G. Ebrahim for the applicant-petitioner and Mr. S.M. Zafar, for respondent No.l on the said two applications and on 19-11-1986 it was decided by this Tribunal that the findings on these two applications one way or the other, besides introducing controversy within a controversy, might go to the very roots of the facts of the election petition. Therefore, to avoid expression of opinion before--hand, the Tribunal reserved its findings on these two applications and ordered that the same too would be disposed of at the time of the final adjudication of the main election petition. It was further ordered that let the petitioner produce the documents as prayed for in the two petitions which shall be brought on record subject to all just and valid exceptions by the other side. Thereafter, the case was fixed for evidence of the petitioner which after seeing quite a number of adjournments ultimately concluded on 16-12-1987 whereafter the case was fixed for evidence of respondent No.l. On 27-1-1988 the learned counsel for respondent No.l recorded a short statement to the effect that since the petitioner has failed to make out a case against respondent No.l, therefore, he does not feel the necessity to produce evidence. Thus, the case was posted for arguments on the main election petition. Quite lengthy and elaborate arguments were addressed by Mr. Fakhruddin Ebrahim, learned counsel for the petitioner and Mr. M.Sardar Khan, learned counsel for respondent No.l and with their kind assistance I have also gone through the whole material placed on record. 5. First of all I would like to give my findings on the two applications submitted by the petitioner on 17-5-1986. In one application the petitioner has asked for filing additional documents while the other application is for summoning the witnesses along with the documents. It is a settled principle of law that election disputes are always decided according to Chapter VII at page 58 of the Representation of the People Act, 1976 whereas the procedure for such petitions has been given at page 62 of the said Act. On 16th of March, 1985, it may be mentioned here, the rules for said petitions were framed by the Election Commission. I would take up the application for additional documents first. In fact these documents are not the documents which the petitioner had mentioned in his original list of documents attached with the election petition. So, under the rules the petitioner is not entitled to produce these documents which in a way are not mentioned in his original list of documents. Prima facie I hold that the petitioner has no authority to ask for these documents. He has admitted in his affidavit attached to this application that these documents were not attached with the original list of documents and witnesses. Admitteldy, the election petition was filed on 18-4-1985 A and the application under reference was filed on 17-5-1986. The petitioner has miserably failed to show me the Rules permitting him to produce additional
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documents, therefore, the application for additional documents is not entertainable. I would like to refer to Section 150 of the Income Tax Ordinance, 1979, subsection (1) whereof is as follows:- "150.Disclosure of information by a public servant.--(1) All particulars contained in-- (a) Any statement made, return furnished or accounts or documents produced under the provisions of this Ordinance; or (b) any evidence given, or affidavit or deposition made, in the course of any proceedings under this Ordinance other than proceedings under Chapter XII; or (c) any record of any assessm ent proceedings or any proceedings relating to the recovery of a demand, shall be treated as confidential and no public servant shall, save as provided in this Ordinance, shall disclose any such particulars. Keeping in view this subsection the petitioner has to explain as to how he managed to get photostats of these documents. In a case reported in The Commissioner of Income-Tax, Rawalpindi Zone, Rawalpindi v. Haji Muhammad Din and another PLD 1971 Peshawar 111 it has been ruled that such documents could not be produced by the petitioner. Subsection (2) of the Ordinance is also on the point. As mentioned above, there is no provision under the existing Rules framed by the Election Commissioner to add to the list of documents already given by a person. The petitioner has to prove as to wherefrom he obtained the photostats of these documents, which he has not done. In his statement before the Tribunal to which I would refer later on, the only answer to such a question by the petitioner was B that such photostats have been provided to him by a God fearing man. Here also the petitioner has failed to name or cite that God fearing man as his witness. Once again at the cost of repetition I would say that the election petition was filed on 18-4-1985 and under the Rules the petitioner was required to file list of witnesses and documents on which he wants to rely, along with the petition but the present application for additional documents was filed on 17-5-1986 i.e. After a lapse of a year and a month, which is inordinate delay in the eye of law. When I refer to the affidavits attached with these two applications I find that the same are contradicting each other. In one affidavit he has clearly mentioned that he was aware of these documents when he filed the election petition but in the other he does not say so. Furthermore, there is no explanation forthcoming as to why he failed to attach the same with .The election petition. In my view documents 1 to 7 detailed in this petition are being hit by subsection (2) of Section 150 of the Income Tax Ordinance. After reading the contents of the affidavit attached to the petition it is not known as to how the petitioner came in possession of these documents nor the petitioner has shown the source of their receipt, as already mentioned above. About item No.7 I must say that this document was C in possession of the petitioner but he has wrongly given it in his affidavit that he was not in possession of all the documents which he wants to produce through this application at this stage. Therefore, the application for additional documents merits rejection and relying on an authority Sardar Khalid Nawaz v. Mian Manzoor Ahmad Watto, an unreported judgment produced before the Tribunal, I order accordingly. 6. Now I come to the second application which is for follow up documents. At page 17 of the election petition witness No. 21 was required to produce a specific cheque of United Bank Limited, Saddar Road, Peshawar. Item No.6 mentioned in the application under discussion is regarding Wapda letter. In my view the argument of the learned counsel for the petitioner would not be correct that this document is a follow up document. With respect to document relating to Wapda dated 20-12-1984 which is item No.10 in the additional List, the petitioner says that he had come to know now about this document but in the other affidavit with the earlier application he says that he had no knowledge about it. Thus, items Nos.5 and 6 are disposed of. Regarding item No. 7 I have gone through the list of witnesses filed by the petitioner with his election petition but I do not find any witness who falls in the category of these witnesses as mentioned earlier. As such, this witness was required as an additional witness by the petitioner. It should have been pointed out by the petitioner as to why he asked for additional evidence. He should also have given explanation for
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the delay of about 13 months since the filing of his election petition. In my view items Nos. 5 to 7 mentioned in this application should not be allowed because they have already been mentioned in the list of witnesses attached with the election petition. So keeping in view the legal bar in the way of the petitioner which he has miserably failed to discharge, I would disallow both these applications with the result that the documents placed on record during evidence mentioned in these applications under the order of this Tribunal dated 19-11-1986 would be kept out of consideration. 7. Having dealt with the two applications of the petitioner now will come to give my findings on the issues on merits. Issue No.2 is the main issue and I will take it first. It is the case of the petitioner that respondent No.l was disqualified to tie a candidate a/s 10 (2) (b) (8) of President's Order No.5 of 1979 'and he was also disqualified us 99 (1) (h) of the Representation of People Act, 1976. According to the petitioner respondent No. 1 was a Director as well as share-holder in the Company known as "A.G.E. Industries Limited" and this Company had subsisting contracts with Government and Agencies under the Government, both on the day when the nomination papers were filed and accepted and also on the day on which the election was held. In other words this Company had subsisting contracts on these dates and respondent No.l had an interest in the Company as a Director/share-holder. In order to prove his case learned counsel for the petitioner submitted that respondent No.l was elected as a Director/ shareholder on 1-9-1983 for a period of 3 years and under the law when he was elected as Director he would complete his term of 3 years and thus he would be deemed to be elected as such upto 1986. Before the expiry of the term of 3 years, according to the learned counsel for the petitioner, the burden lies on respondent No.l to discharge that he had ceased to be a Director/ shareholder of the said Company which he had failed to do. The learned counsel then referred to the written statement of respondent No.l and also to the evidence on record. According to him Mohammad Akram, PW2, has produced from his file a copy of the local purchase order, which is Ex.PW2/1, and which shows that Karachi Shipyard and Engineering Works Limited, Karachi had issued a purchase order to AGE Industries for the supply of goods mentioned therein. He next referred to the statement of PW3 Nasim Ahmad of Pakistan Railways, Lahore, who has produced the original purchase order, copy of which is Ex.PW3/1, and submitted that a perusal of this document shows that the purchase order is dated 30-1-1985 and the date of delivery thereon is 20-3-1985 or' earlier. Learned counsel for the petitioner next referred to the statement of Mohammad Ramzan, PW 4, a Junior Purchase Officer in National Savings, who produced the purchase order dated 12-12-1985 which is Ex. PW4/1. Supply was made to them and the witness further stated that it was owned by the Government. This document, according to the learned counsel for the petitioner, shows that it was made on 12th of February, 1985 and delivery was not later than six weeks. The last in the list, as per arguments of the learned counsel for the petitioner, is PW 5, Anwar Majid, Assistant Manager Purchase, Khazana Sugar Mills, who has produced copy of purchase order dated 13-2-1985. The learned counsel vehemently argued that in cross- examination all these purchase orders are not challenged nor these were challenged by respondent No.l on the ground that the same ceased to be subsisting on the day when the nomination papers were filed, or the day of election. According to the learned counsel for the petitioner, respondent No.l only attacks on the photostats because photo copies were filed by the petitioner. But he kirgued that in the evidence every witness has brought his record, seen the office copy of the purchase order and confirmed that it is the same which he had produced. So, independently the photostats of the contracts have been proved. He also argued that not only the contracts were not challenged in the cross-examination but no question was put that though these purchase orders show that there were subsisting contracts, they were in fact not subsisting. Nobody has come on behalf of the respondent-company or respondent himself to contradict
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these agreements. The learned counsel for the petitioner then referred to Ex. PW6/1 and submitted that this letter proves that respondent No.l was a shareholder as well as a Director in August,1983 and was elected as a Director on 1-9-1983 for 3 years under the "Managing Agency, Election of Directors order, 1972" It may be pointed out here that Ex. PW/6 is Form XII and is dated 13th September, 1983. It has been signed by the Chairman. The learned counsel for the petitioner further argued that it is for respondent No.l to prove that he had resigned as a Director or was not a Director on the day of nomination i.e. 20-1-1985 or the day of election dated 25-2-1985. But there is no such evidence on behalf of. Respondent No.l, to this effect. He then referred to the statement of PW6 Taj Mohammad, Assistant, Joint Stock Companies, who produced Form XII, Ex. PW6/2, purports to be dated 11th August, 1984 and on its extreme left it is mentioned with ink, "certified copy of unrecorded document received on 14-2-1985". If respondent No.l had resigned on 11th August, 1984 this Form XII ought to have been filed within 15 days of his resignation as required a/s 205 (2) of the Companies Ordinance, 1984 but it is surprising to. Note that it has been filed after 5 months and 19 days i.e. On 14-2-1985. The next document to which learned counsel for the petitioner made reference is EX.PWo/3 and which is Form E. It may be pointed out here that Annual General Meeting of the Company was held on 1-9-1984 and this document purports to show that respondent No.1 sold his shares on 11-8-1984. So, the change has come on 11-8-1984 and the General Meeting, as stated above, was held on 1-9-1984. Under the law it ought to have been filed within one month a/s 156 (3) (B), but there was a delay of 4 months and 13 days in filing this return. The Registrar was examined only to show that these were filed on 14-2-1985 but these documents do not prove their contents. It is also not clear as to who had signed these documents because they are not the originals. The learned counsel further argued that as such there is no evidence that respondent No.l has resigned, his resignation was accepted, that he has transferred his shares to his wife and that she had paid price for those shares. All these facts were within the knowledge of respondent No.l and the A.G.E. Company but not only respondent No.l did not appear in the witness-box but also no documents were produced in evidence at the trial. According to the learned counsel for the petitioner the fact that respondent No.l was a Director/ shareholder of the Company at the time of filing his nomination papers and the day of election was exclusively in the knowledge of respondent No.l but he has not filed any document in rebuttal, rather failed to appear in the witness-box to deny the allegations. In support of his above arguments he referred to a case reported in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 Pesh. 81) wherein their lordships have observed as under:- "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to gives evidence on his behalf, and to submit to cross-exami--nation. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case." Lastly, the learned counsel for the petitioner referred to Article 78 of Qanoon- e-Shahadat which reads as follows:- "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in-his handwriting." So, the gist of the arguments of the learned counsel for the petitioner is that respondent No.l was not qualified to be elected as a member of the National Assembly because he was shareholder and a Director in a Private Limited Company, namely, AGE Industries who had subsisting contracts both on the day of wing nomination paper and the day of election. According to him this fact has sufficiently and convincingly been proved by the petitioner by producing certain witnesses who had proved the various purchase orders relevant to the period in question and had also produced an official of the office of the Deputy Registrar, Joint Stock Companies who had proved that respondent No.l was on or about 13th of September, 1983 a Director of M/s A.G.E. Industries Limited
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and since under the law he has to remain for a period of 3 years which is established from Ex.PW6/1 and since his term of office was 3 years, therefore, it should be assumed that he continued to be a Director till such time when the period of 3 years would expire which had not expired either on 20 of January, 1985 (the day of filing nomination papers) or 25th of February, 1985 (the day of election) and this would be enough to hold that respondent No.l was disqualified from being elected. 8. To prove that respondent No.l has ceased to be a Director or a shareholder, which is a fact which had only been in his knowledge and since he had failed to appear in the witness-box to face cross-examination, therefore, in view of the law laid down in PLD 1972 SC 25 (ibid) it should be taken as a strongest circumstance .To discredit him. 9. It is said that respondent No.1 was a well-known and a big industrialist, therefore, this…
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