Akthar Zaman Malghani, J.--Following relief has been claimed in the instant Constitutional petition:-- A. That the impugned order dated 25.07.2008 passed in CMA-698/2008 & 697 of 2008 in Election Petition No, 30/2008 are without any lawful basis and justification and has no legal effect.
B. Restraining the Election Tribunal for further conducting the proceedings till final decision of this petition; C. To pass any other appropriate order which may deem fit and proper in the circumstances of the case, in the interest of justice".
2. Briefly stated, facts of case are that Respondent No, 1 instituted election petition before Election Tribunal challenging election of petitioner from Constituency NA 271 Kharan-Panjgur cum Washook which petition was contested by petitioner by way of filing written statement. Learned Election Tribunal in the light of pleadings of parties framed as many as 16 issues and fixed the case for evidence of Respondent No, 1 who submitted two applications; one containing list of 12 witnesses to be summoned through process of Court and second under Section 46 of the Representation of the Peoples Act, 1976 (hereinafter referred to as Act, of 1976) for production of election record with further prayer that commission may be appointed authorizing it to prepare and submit a report in relation to record, particularly in respect of valid and invalid votes. Both the applications were contested by petitioner, however; learned Tribunal by two separate orders dated 25.07.2908 allowed both the applications, hence this petition.
3. We have heard learned, counsel for petitioner as well as learned counsel for respondents and learned A.G. Learned counsel for petitioner vehemently contended that under Section 62 of the Act, 1976 the election petition was required to be tried in the manner as prescribed by Election Commission and in this regard a Notification dated 16.03.1985 was issued whereby petition is required to be accompanied.by all such documents and affidavits of witnesses as are desired to be produced, by petitioner which provisions were mandatory in nature, as such; Election Tribunal erred in law by allowing Respondent No, 1 to produce witnesses other than those whose affidavits were filed alongwith petition. He further contended that no list of official witnesses was appended with election petition as required under Para 5 of said Notification, therefore, Election Tribunal acted illegally by allowing respondent to summon official witnesses. He further argued that production of record within the purview of Section 46 of the Act, 1976 could only be made when a prima facie case is made out but in the instant case without recording evidence Tribunal directed not only for production of record but also appointed a commission authorizing him to de-seal the election record and count valid and invalid votes which direction was in excess of authority and jurisdiction vested in Election Tribunal. Learned counsel in support of his contentions placed reliance on the judgments reported in 1992 CLC 1766, 1999 YLR 1995, PLJ 2007 Lahore 898 and 1202, PLD 2005 S.0 600, 1998 SCMR 1597, 1987 SCMR 1107, PLD 1987 S.0 447, PLD 2003 Quetta 94, 2007 CLC 141.
On the other hand learned counsel for Respondent No, 1 at the very outset stated that Respondent No, 1 would not contest the order whereby learned tribunal directed for production of record and appointed commission for recounting of valid and invalid votes provided the application submitted by respondent under Section 46 of the Act, 1976 is directed to remain pending which would be pressed at appropriate time, however; he requested that in order to avoid any manoeuvering or tampering with record, the record may be directed to be kept by the Election Tribunal in its safe custody which powers are available to it under Section 46 of the Act 1976. As regards list of witnesses submitted by Respondent No, 1 after framing of issues learned Counsel contended that provisions of Section 62 of the Act, 1976 read, with Notification dated 16th March, 1985 are not mandatory in nature but directory, as such; Election Tribunal has power to call any witness at any stage, though his name was not mentioned in list of witnesses. He further contended that the instant petition was not maintainable having been filed against interlocutory orders. He placed reliance on the judgments reported in 2005 CLC 1493, 1999 SCMR 1597 and PLD 1999 S.C-I.
4. Learned Advocate General supported arguments of learned counsel for respondent and referred to the judgment reported in 1999 YLR 1995.
5. We have carefully, considered the Contentions put forth by the parties' learned counsel and have also gone through the orders rendered by Election Tribunal as well as relevant law. The learned counsel for Respondent No, 1 has not opposed the petition to the extent of order passed on application filed under Section 46 of the Act, 1976 however; he requested that Tribunal may be directed to procure record and keep it in safe custody in order to avoid tampering or manoeuvering by either of parties which request was contested by learned counsel for petitioner. It may be observed that under Section 46 of the Act, 1976 the Election Tribunal has been empowered to direct for production of election record from proper custody, therefore, we find it just and appropriate to direct that election record after requisition be kept in safe custody by the Election Tribunal.
6. Though Election Tribunal has powers to order for recounting of votes in appropriate cases on satisfaction of requisite conditions, yet in view of categoric statement of learned counsel for respondent order dated 25.07.2008 passed on application filed under Section 46 of Act, 1976 is set aside with the result that application would be deemed to be pending before Election Tribunal and the Respondent No, 1 would be at liberty to press the same at any appropriate stage.
7. Adverting to next order whereby Respondent No, 1 was allowed to produce witnesses mentioned in list submitted after framing of issues. Before deciding the question as to whether provisions of Section 62 of the Act, 1976, read with Notification dated 16th March, 1985 are of mandatory nature, we would like to visit the judgments pronounced in this behalf.
8. In the judgment reported in 1992 CLC 1766 it was held that Election Commission's Notification specifying procedure for filing election petitions had created obligation upon petitioner to file affidavits alongwith petition and in contravention thereof would not be lightly ignored. It was further held that election petition without filing affidavits or list of official witnesses alongwith such petition was not maintainable.
9. In another judgment reported in PLJ 2007 Lahore 898 it was held that trend of judicial approach reflected from case law discussed in that judgment was that even small material deviations from procedure prescribed by Election Laws had resulted in dismissal of election petitions.
10. In the judgment, reported in 2005 CLC 1493 it was held that by virtue of Section 64 of the Act, 1976 read with Para 6 of Notification dated 16.03.1985 Tribunal could examine a witness if his affidavit was not filed with petition.
11. In the judgment reported in 2004 CLC 914 it was held that procedure prescribed by Notification of 17.03.1985 insofar as it relates to submission of list of witnesses and their evidence is directory.
12. Similar view was also taken in judgment reported in 2003 YLR 3032 wherein it was observed that provisions of Notification being directory in nature, failure to file affidavits and other documents with election petition could not be a ground for dismissal of election petition.
13. Likewise in the judgment reported in 1999 YLR 1995 it was held that omission in filing required list of witnesses and their affidavits despite being glaring could not entail dismissal of election petition.
14. The Hon'ble Apex Court in the judgment reported in 1996 SCMR 426 held that Election Tribunal would have all the powers of Civil Court under CPC except for trial of election petition where Election Tribunal will follow procedure prescribed by Election Commission.
15. The survey of above discussed judgments would indicate that there is conflict of view with regard to mandatory nature of Section 62 of the Act, 1976 read with Notification dated 16.03.1985.
After having gone through the above referred judgments as well as relevant provisions of law we would respectfully endorse the view wherein it has been observed that provisions of Section 62 of the Act, 1976 read with Notification dated 16.03.1985 are directory in nature; because no penal consequences have been provided in the Act for its non-compliance. It may be noted that penal consequences entailing in dismissal of election petition have been provided in Section 63 of the Act, 1976 which envisages that Tribunal shall dismiss the petition, if the provisions of Sections 54 or 55 have not been complied with or if the petitioner fails to make further' deposit required under sub-section (4) of Section 62 of the Act, 1976. Omission of Section 62(1) from the above said, provisions clearly indicate the intent of legislature, otherwise Section 62(1) could have conveniently been added alongwith other provisions, noncompliance whereof empowers the Tribunal to dismiss the petition. Even otherwise; the Notification in itself empowers Tribunal by virtue of Para No, 6 to examine any witness whose name is not mentioned in petition, therefore, in our considered view the learned Tribunal neither acted illegally nor in excess of jurisdiction whereby it allowed Respondent No, 1 to produce the witnesses, mentioned in the list filed after framing of issues.
16. The learned Counsel for petitioner in order to demonstrate that provisions of Section 62 of the Act, 1976 are of mandatory nature referred to a number of judgments but we are afraid that those judgments are not applicable to the peculiar facts of instant case as in those judgments the provision regarding verification of contents of petition on oath in light of provisions of Sections 54 and 55 of the Act, 1976 read with Section 63 of the Act, 1976 were held to be mandatory. The Hon'ble Supreme Court in the judgment reported in 2005 S.0 600 observed that so far as provisions of civil law are concerned, such verification generally are of directory in nature and omission to do so can be rectified subsequently during trial and even the Court can direct such rectification while, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under Section 63 (a) of the Act that makes it mandatory for tribunal to dismiss the election petition if the provisions of Sections 54 and 55 of the Act, 1976 have not seen complied with. Similarly in the judgment reported in 1997 CLC 1132 verification of contents of petition on oath were held to be mandatory.
In view of what has been discussed above, we partly allow the petition and set aside the order passed by Election Tribunal on the application filed under Section 46 of the Act, 1976 with the result that application would be deemed to be pending before the Learned Election Tribunal with further direction to Election Tribunal to call for election record of NA 271 and keep it in its safe custody. The petition is, however; dismissed to the extent of order dated 25.07.2008 passed in CM.A No, 698/2008. Parties are left to bear their own costs.