GHULAM SARWAR Versus MUHAMMAD HANIF

ORDER

1. K. E. CHAUHAN. J.- An election to the Provincial Assembly from Constituency No. PP-5, Rawalpindi-V was held on the 17th December 1970. According to the official declaration the following was the result:

(1) Mr. Mohammad Hanif Khan, son of Capt. Ajaib Khan... 16269 votes

(2) Mr. Mohammad Hanif Khan, son of Sardar Kala Khan 13372 votes

(3) Raja Ghulam Sarwar Khan, appellant ... 4890 votes

(4) Mr. Aziz Ahmad; and ... 1950 votes

(5) Mr. Imtiaz Ahmad Taj ... 1862 votes

2. An election petition was filed by Raja Ghulam Sarwar in which the following prayer was made by him:-

3. "It is, therefore, most respectfully prayed that the election of respondent No. 1 from Contituency No. PP-5, Rawalpindi-V, may kindly be set aside and the petitioner may kindly be declared to be elected and success ful candidate.

4. It is further prayed that the election of respondent No. 2, being also void as he was disqualified under the Legal Framework Order, to be a candidate, be declared void and illegal and the petitioner being the' next candidate who had secured the highest votes, may kindly be declared to be elected."

5. The petition was contested by Mohammad Hanif Khan, son of Capt. Ajaib Khan but the proceedings against the other candidates were ex parte. The learned Election Tribunal framed the following issues on 8th January 1972:-

6. "(1) Whether respondent No. 1 was disqualified for being a candidate for election to the Provincial Legislature?

(2) Whether respondent No. 2 was disqualified for being a candidate for election to the Provincial Legislature?

(3) Whether there was any collusion and conspiracy between respondents Nos. 1 and 2 for defeating the petitioner, if so what is its effect?

(4) Whether bogus votes on behalf of any dead persons were got cast by' respondent No. 1 or respondent No. 2 during the polling in dispute?

(5) Whether bogus votes were got cast by respondent No. 1 or respondent No. 2 at the Polling Stations mentioned in para. 3(e) of the petition?

(6) Whether respondent No. 1 procured votes in his favour by coercion?

(7) Whether respondent No. 1 had his polling camps near or within two hundred yards of the Polling Booths mentioned in para. 3(f ) of the petition?

(8) Whether respondent No. 1 or respondent No. 2 were openly canvass ing for votes outsides the Polling Station?

(9) Whether respondent No. 1 bribed any voters for obtaining votes in, his favour?

(10) Whether respondent No. 1 provided or used any transport on any Polling Station for bringing voters to various Polling Stations?

(11) Whether respondent No. 1 or respondent No. 2 incurred expenditure, in respect of the election in dispute in excess of the permissible limits?

(12) Whether respondent No. 1 served meals to the voters and to the Presiding Officer at the Polling Stations mentioned in paragraph 3(1) of the petition?

(13) Whether respondent No. 1 and respondent No. 2 procured votes of the employees of Municipal Committee, Murree through the canvassing or influence of Muhammad Sabir Vice-Chairman of the said Committee?

(14) What is the effect of not giving detailed particulars of various allegations covered in the foregoing issues?

(15) Whether respondent No. 1 and respondent No. 2 are guilty of' coercion and of corrupt and illegal practices in the election in dispute?

(16) Relief."

7. As will be evident from the above-mentioned issues, issues Nos. 2, 3,. 4, 5, 8, 11, 13 and 15 pertained to Muhammad Hanif Khan, son of Sardar Kala Khan. The learned Election Tribunal accepted the complaint against. Mohammad Hanif Khan, son of Capt. Ajaib Khan and held that he was dis qualified from contesting the election inasmuch as he held a share in a contract with the Government. It is pertinent to mention that the appellant, did not lead any evidence against Mohammad Hanif Khan, son of Sardar Kala Khan. The learned Election Tribunal by means of its judgment and order dated 23rd February 1974, in these circumstances, declared the election of Mohammad Hanif Khan, son of Capt. Ajaib Khan as void but dismissed -the rest of the petition. Raja Ghulam Sarwar Khan has come up in appeal against the aforesaid order of the learned Election Tribunal.

8. Learned counsel for the appellant has argued that according to section 66 of the National and Provincial Assemblies (Election) Ordinance XIII of 1970, the Tribunal should have declared the election of the contesting candidates to be void and the petitioner or any other contesting candidate to have been duly elected if this was claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. Learned counsel submits that in the instant case Mohammad Hanif Khan, son of Sardar Kala Khan had not put in appearance before .the Election Tribunal and had not claimed the seat. In these circumstances, it .is argued, Mohammad Hanif Khan, son of Sardar Kala Khan should have been eliminated and since the seat had been claimed only by the appellant the learned Election Commissioner should have declared him as elected. The contention has no merit. From what has been written above it will be evident that in the order of votes the appel lant stands at No. 3 and in his own election petition he had challenged the election of Mohammad Hanif Khan, son of Sardar Kala Khan on the various points which formed the subject-matter of issues Nos. 2, 3, 4, 5, 8, 11, 13 and 15. It is admitted .that on these issues the appellant led no evidence to these circumstances the learned Election Tribunal was justified in dismissing the election petition of the appellant qua Mohammad Hanif Khan, son of Sardar Kala Khan. The petition having been dismissed qua Mohammed Hanif Khan, son of Sardar Kala Khan fox want of evidence it is very stranger that the appellant claims the ' seat merely on a technicality. Obviously seats in the Election Assembly cannot be obtained in this circuitous manner. No doubt Mohammad Hanif Khan, son of Sardar Kala Khan had allowed the proceedings to remain ex parte against him and had not cared to claim; the seat but that does not mean that a person down below in the orders of votes would automatically step up so as to be declared elected. The failure to claim the seat on the part of Mohammad Hanif Khan, son of Sardar Kala Khan may be a loss to the aforesaid Mohammad Hanif Khan but it in no way clothed the petitioner with a right to claim that seat especially when he had failed on merits to show that the election of Mohammad Hanif Khan, son of Sardar Kala Khan was in any manner void. From the portion of the election petition reproduced in the earlier part of this judgment it will be obvious that the appellant had specifically thrown a challenge to the election of Mohammad Hanif Khan, son of Sardar Kala Khan. The allegations which he had levelled against the aforesaid Mohammad Hanif Khan were not substantiated by him by leading any evidence worth the name. This will show that so far as the challenge to the election of Mohammad Hanif. Khan, son of Sardar Kala Khan is concerned the petition rightly stood dismissed. This dismissal cannot be converted into election victory by filing the present appeal. If the appellant was really- serious about overcoming the election of Mohammad Hanif Khan, son of Sardar Kala Khan he would have been well advised to lead evidence against him. After having failed to do that he cannot catch the same which he had missed.

5. The result is that this appeal does not merit admission and is hereby dismissed in limine.

9. S. A. H Appeal dismissed.