Case: Mohd. Yasin Shah Vs. Ali Akbar Khan

This is an election appeal against the judgment of the High Court of Jammu & Kashmir dated June 10, 1974, by which the learned Judge allowed the election petition filed be fore him by the respondent Ali Akbar Khan and set aside the election of the returned candidate Mohd. Yasin Shah who is the appellant before us. The returned candidate will, for short, be referred to by us as the appellant and the respondent Ali Akbar Khan will be referred to as the petitioner. It appears that during the elections held in the year 1972 in the State of Jammu &Kashmir both the appellant and the petitioner were the candidates for election to the Karnah Assembly Constituency of the District of Baramulla in the State of Jammu &Kashmir. There were other candidates also some of whom had withdrawn. One Mohd Yunis was the Congress candidate for this constituency but he was defeated. The petitioner, according to the appellant was merely a covering or a shadow candidate for the Congress candidate Mohd Yunis. The petitioner filed his nomination paper on February 7, 1972 and his proposer was P.W. 1 Ghulam Mohiuddin. According to the petitioner the nomination paper was presented to the Returning Officer R.W. 3 Abdul Rehman Mir on February 7, 1972 by the petitioner who was accompanied with his proposer Ghulam Mohiuddin who had signed as the proposer. The Returning Officer received the nomination paper and granted a receipt for the same. A sum of Rs. 250/being the election deposit was also deposited and other formalities were duly observed. February 9, 1972, was the last date fixed for the scrutiny of t he nomination papers of all the candidates. According to the petitioner he reached the office of the Returning Officer at about 10 A.M. on February 9, 1972, but as he was suffering from dysentery he went to attend the call of nature and instructed his proposer P.W. 1 Ghulam Mohiuddin to take time on his behalf if the name of the candidate was called out. The petitioners case before the High Court was that the Returning Officer after scrutinising the nomination papers accepted all of t hem but rejected the nomination paper of the petitioner on the ground of his absence in spite of the fact that P.W. 1 Ghulam Mohiuddin requested him to wait for the petitioner who had gone to attend the call of nature. It was further alleged that when the petitioner returned he beseeched the Returning Officer not to reject his nomination paper but the Returning Officer refused to reopen the matter as the nomination paper of Mohd. Yunis the Congress candidate had been accepted. The nomination paper of Mohd Yasin Shah the appellant was also accepted. Thereafter the poll was held on March 8, 1972 and the results were declared on March 12, 1972. The appellant Mohd Yasin Shah was declared elected, while Mohd Yunis was defeated. After the results were declared the petitioner applied for a certified copy of the order of rejection of his nomination paper on April 1, 1972, and according to him the Returning Officer tried to avoid giving the copy of the said order which was ultimately given to him on April 3, 1972, April 2, being a Sunday. The sheetanchor of the case of the petitioner was that the Returning Officer was particularly biased against him and he rejected the nomination paper in order to support the returned candidate in whom he was interested. The petitioner further pleaded that the only ground on which the nomination paper was rejected was that the petitioner did not appear when the Returning Officer called out his name at the time of the scrutiny of his nomination paper. The petitioner further averred that under the law the Returning Officer could not have rejected his nomination paper on the ground of his absence even if it was so. Not content with these allegations t he petitioner went to the extent of making a serious and irresponsible allegation against the Returning Officer by averring that the Returning Officer had committed forgery by subsequently adding certain words in the order of rejection and overwriting the signature of the proposer Ghulam Mohiuddin on the nomination paper. Thus, in short, according to the petitioner as his nomination paper was improperly rejected by the Returning Officer, the election of the appellant was void on that ground alone.The petitioner filed the present election petition with the allegations aforesaid on April 12, 1972. It was alleged that at the time when P.W. 1 Ghulam Mohiuddin was examined as a witness there was some overwriting on the signature of Ghulam Mohiuddin the proposer of the petitioner on the nomination form. Accordingly the petitioner made an application to the Court for permission to file an amended petition by incorporating the fact that the overwriting was brought into existence after the scrutiny of the nomination papers was over and behind the back of the petitioner. The learned Judge, after hearing the parties, ultimately allowed the application and accordingly an amended petition was filed by the petitioner where the allegations regarding interpolation etc. were made. The appellant was also given an opportunity to file his additional writtenpetition was stoutly resisted by the appellant who denied, inter alia, all the allegations made by the petitioner and contended that there was absolutely no overwriting on the signature of Ghulam Mohiuddin nor was any forgery committed by the Returning Officer. It was further averred that as neither the petitioner nor his proposer was present when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer and as the appellant himself raised the objection that the signature of Ghulam Mohiuddin on the nomination paper was not genuine the Returning Officer having applied his mind upheld the objection and rejected the nomination paper on the ground that the signature of Ghulam Mohiuddin was not genuine as it could not be verified. The appellant also vehemently denied the allegation that the Returning Officer was in any way biased or prejudiced against the petitioner. On the other hand it was averred that the Returning Officer was an independent officer and since the petitioner was a candidate of the Congress if the Returning Officer could have any leaning at all it would be towards the petitioner rather than the appellant who was an independent candidate opposing the Congress party. The learned Judge, after taking the evidence of the parties, came to the conclusion that from the order of the Returning Officer it would appear that the nomination paper of the petitioner was rejected mainly on the ground of his absence which was not a lawful ground on which the nomination paper could have been rejected under s. 47(2) of the Jammu &Kashmir Representation of the People Act. On the question of the overwriting the learned Judge held that there was no doubt that there was overwriting on the signature of P.W. 1 Ghulam Mohiuddin on the nomination form of the petitioner and perhaps the overwriting was made some time after the scrutiny. But the learned Judge refrained from giving any finding as to who made the interpolation and in what circumstances. As regards the allegation that t he Returning Officer had committed forgery the learned Judge does not appear to have accepted the same or given any clear finding on this point, and he steered clear of this fact by observing that as the first part of the order of the Returning Officer rejecting the nomination paper was based on the ground of the absence of the petitioner, the Returning Officer became functus offcio and any subsequent observation which he may have made was irrelevant. The learned Judge further seems to have held that the petitioner was not present when the scrutiny of his nomination paper was taken up and the Returning Officer was not justified in law in rejecting his nomination paper on that ground alone. On these findings the learned Judge held that as the nomination paper of the petitioner was illegally rejected the election of the appellant was void and was liable to be set aside under s. 108(1)(c) of the Jammu and Kashmir Representation of the Peoplereferred to as `the Act, as amended up to date.In support of the appeal Mr. Altaf Ahmed learned counsel for the appellant who was followed by Mr. Asoke Sen submitted that the learned Judge has misconstrued the order passed by the Returning Officer rejecting the nomination paper of the petitioner and that the judgment of the High Court is against the weight of the evidence on the record. It was also argued that the learned Judge completely overlooked some of the essential features appearing in the case which completely demolished the petitioners case. Mr. G. S. Pathak appearing for the petitioner, however, supported the judgment of the High Court and contended that the order of the Returning Officer was mainly p assed on the ground of the absence of the petitioner which was not justified by the provisions of s. 47(2)(c) of the Act. He also submitted that a bare perusal of the order of the Returning Officer would clearly show that the second part of the order regarding the genuineness of the signature of the proposer Ghulam Mohiuddin appears to have been inserted subsequently. Lastly, it was submitted that although this Court could reappraise the evidence for itself it should not interfere with the judgment of the High Court on facts unless the High Court had committed an error in its appreciation of evidence or overlooked any material fact. It was further argued that this Court should keep in mind the slowness of the appellate court to disturb a pure finding of fact based on appreciation of evidence by the Trial Court which had the initial advantage of watching the demeanour of the witnesses examined by it. There can be no dispute with the propositions adumbrated by Mr. Pathak, but we would like to mention that it is well settled that the sanctity and purity of electoral process in the country must be maintained. The election of a duly returned candidate cannot be set at naught on the basis of interest ed or partisan evidence which is not backed by cogent circumstances or unimpeachable documents. In Rahim Khan v. Khurshid Ahmed &Ors.(1) this Court observed asmust emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. x x x There is nowhereby the dishonesty of the story can be established and, if the Court were guillible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkennycat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witness. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a mans public life."

Reasoning:
12. In view of our finding that neither the petitioner P.W. 6 nor Ghulam Mohiuddin P.W. 1 were present on February 9, 1972 when the nomination paper of the petitioner was taken up for scrutiny by the Returning Officer, these two witnesses are not at all competent to depose as to whether or not on that date there was any overwriting in the signature of P.W. 1. In these circumstances, therefore, the evidence of P.W. 1 and 6 will have to be excluded on this point. Even so it will be interesting to note that the petitioner P.W. 6 does not say that there was any overwriting on the signature of P.W. 1 Ghulam Mohiuddin on the nomination form but he states that on a perusal of the nomination paper it appears that some ink was spread over his signature. An examination of the signature of Ghulam Mohiuddin would reveal to the naked eye that there is no question of the spreading of any ink over the signature but what has been done is that there is clear overwriting on the signature.P.W. 2 Qazi Mohammad Abdullah appear s to be a close acquaintance of the petitioner and had helped him in engaging the services of Girdhari Lal for the purpose of filling up the nomination paper which was also done at his own house. This witness also states that Ghulam Mohi uddin had affixed his signature in his presence with theof the petitioner. He further asserts that on the date of his deposition he found that there was an overwriting over the signature of Ghulam Mohiuddin. This witness was one of the proposers of Mohd. Yunis who had set up the petitioner as his dummy candidate as held by us. In these circumstances, therefore, this witness was interested and has tried to help the petitioner. Moreover he does not say that on February 9 , 1972   when the scrutiny of the nomination paper of the petitioner was taken up by the Returning Officer he had an opportunity to inspect the nomination paper in order to find out whether there was any overwriting on the signature. His evidence, therefore, does not exclude the possibility of the over writing having been made after Ghulam Mohiuddin had signed the nomination paper at the residence of the witness and before the nomination paper was filed or its scrutiny taken up. Further more, the witness admits that he is also a Congress worker and knew the petitioner for the last four years. For these reasons, therefore, in the first place the evidence of this witness is interested, and secondly it does not appear to be of any assistance to thehave perused the original order passed by the Returning officer very carefully, but we find that the entire order has been written in the same ink with the same pen and appears to have been written in one sitting. There is nothing to show that the second part of the order was added subsequently because the strokes of the letters, the ink which has been used and the general tenor of the writing appears to be the same throughout. In these circumstances, therefore, we reject the contention of the petitioner that the second part of the order was added subsequently. We accordingly hold that the allegations made by the petitioner against the Returning Officer in paragraph 26 of the election petition are totally unfounded and the petitioner has miserably failed to prove the same. The entire order of the Returning Officer was written in one sitting and there can be no question of any interpolation having been made by him nor had the Returning Officer any motive to do so. Nevertheless it is true that after having written the order "Hence rejected", the Returning officer appears to have recorded the fact that an objection was raised regarding the genuineness of the proposers signature.We have, however, examined the various aspects o f this question and from the facts found by us it is clear that the overwriting in the signature which was present at the date of the scrutiny also throws considerable doubt on the genuineness of the signature of the proposer Ghulam Mohiuddin as clearly admitted by him and the lawyer of the petitioner himself. The fact that the proposer and the petitioner were both absent on the date of the scrutiny lends sufficient support to the inference that the signature of the proposer Ghulam Mohiuddin on the nomination form does not appear to be genuine. It is also clearly established as found by us that the appellant did raise an objection regarding the genuineness of the signature of the proposer Ghulam Mohiuddin on the nomination form and that there was no one present on behalf of the candidate to rebut or refute the objection taken by the appellant. On the other hand P.W. 5 who was the counsel for the petitioner and in whose presence the proposer Ghulam Mohiuddi n had signed the nomination form was actually present at the time of the scrutiny and yet, for reasons best known to him, he did not choose to stand up and point out to the Returning Officer that the objection raised by the appellant was not tenable because the proposer had signed the nomination form in his presence. Lastly the signature which contains the overwriting ex facie shows that it was not genuine. In these circumstances. therefore, the only irresistible inference that could be drawn would be that the signature containing the overwriting in the present form, which was in existence even at the time of the scrutiny, could not have been the signature of P. W. 1 Ghulam Mohiuddin. To add to this is the fact that P.W. 1 himself clearly admitted that in the present form, namely, the signature containing the overwriting, he was not in a position to admit that it was his signature. This assertion was fully supported by P.W. 5 Girdhari Lal counsel for t he petitioner in whose presence P.W. 1 is said to have signed the nomination form. The learned Judge appears to have entered into the domain of speculation by brushing aside the clear and categorical admission made by P.W. 1 on the ground that the question put to him had placed him on the horns of a dilemma. Once it is proved that the signature in the present form existed even at the time of the scrutiny, then the question put to the witness P.W. 1 was most relevant and the answer given by the witness was both clear and unambiguous. We do not see any vagueness or ambiguity in the answer given by the witness. Instead of taking the clear admission of P.W. 1 on its face value the learned Judge tried to brush it aside on purely speculative grounds. In these circumstances we are unable to agree with the view taken by the learned Judge which is based on a misreading and misinterpretation of the evidence of P.W. 1. For the same reason, we reject the contention of Mr. Pathak that the admission of P.W. 1 was vague. In these circumstances, therefore, we hold that it has been proved to the satisfaction of the Court that the signature of P.W. 1 Ghulam Mohiuddin which contained the overwriting was not his genuine signature . The nomination paper of the petitioner, therefore, could have been properly rejected on the ground that the signature of the proposer was not genuine. Thus the rejection of the nomination paper by the Returning Officer could be supported even on a ground different from the one which may have been taken by the Returning Officer. This being the position the rejection of the nomination paper was proper, and the election of the appellant could not be assailed under s. 108(1)(c) of the Act under which the election could be declared void only if there was an improper rejection of the nomination paper. In the instant case, the rejection of the nomination paper by the Returning Officer being proper one, s. 108(1)(c) was not at all attracted.The propositions enunciated by the Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the learned Judge was not correct. We have already pointed out a number of salient features appearing in the evidence which have rendered t he case of the petitioner inherently improbable. The learned Judge appears to have overlooked these essential features. Further, the learned Judge himself had observed that issue No. 1 which he had framed was wide enough to include the plea of the appellant, and even if the order of the Returning Officer in rejecting the nomination paper on the ground of the absence of the candidate or his proposer was wrong, it could still be supported on the ground that the signature of the proposer was not genuine. The learned Judge has not determined this aspect of the matter. In these circumstances, therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities.