' HASNAT AHMAD KHAN, ELECTION TRIBUNAL.--- On the basis of pleadings of the parties the issues were framed on 24-4-2009 and the case was adjourned for recording petitioner's evidence on 20- 5-2009 but on the said date the petitioner's evidence was not available, consequently, the hearing of this petition was put off till 4-6-2009, on which date certain witnesses summoned by the petitioner were available, however, learned counsel for respondent No.1 raised an objection against the recording of the statements of the said witnesses on account of failure of the petitioner to submit the list of witnesses, along with the election petition, as envisaged in the Notification dated 16-3-2005 issued by Election Commission of Pakistan. Consequently, hearing of this petition was put off for hearing the arguments of both the parties on the said point.
2. Learned counsel for the petitioner has contended that the petitioner had failed to furnish the list of witnesses along with their affidavits while filing the Election Petition, however, just after framing Lhe issues by this Tribunal the list of witnesses along with the gist of their evidence was duly submitted in the office on 28-4-2009 and after receiving the said list and receipt of the required expenditures for summoning the official witnesses the office had issued summons to the said witnesses, therefore, the objection raised by respondent No.1 is not sustainable in law. He adds that provisions of C.P.C. Are fully applicable during the trial of election petitions; that under Order XVI, rule 1, C.P.C., once the issues are settled the petitioner can furnish a list of the witnesses for calling, either to give evidence or to produce documents; that the petitioner has furnished the list of witnesses in the light of the said provisions of the C.P.C., therefore, the objection raised by learned counsel for respondent No.1 is misconceived; that the provisions as contained in the Notification dated 16-3-1985 issued by Election Commission of Pakistan are not mandatory in nature, therefore, the election petition cannot be dismissed for the non-compliance.Of the said provisions; that the said Notification is a subordinate legislation, therefore, will not control the powers of the Tribunal, as Civil Court, conferred on it in terms of section 64 of the Representation of the People Act, 1976; that after entertaining the election petition filed by the petitioner his failure to submit the list of witnesses along with their affidavits has been impliedly condoned by the Election Commission of Pakistan ; that under section 63 (ibid), the election petition can only be, dismissed for the non- compliance of provisions of sections 54 and 55 of the Act, whereas, there is no provision in the said Act justifying the dismissal of the election petition due to the failure of the petitioner to submit list of witnesses along with their affidavits. In support of his contentions learned counsel has placed reliance on the cases of Engineer Jameel Ahmed Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914, Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382, Rai Asghar Ali Khan v.
Returning officer and others 1999 CLC 565 and Sardar Akhtar Ali v. Wasim Ahmed 1992 CLC 1437.
3. Conversely, learned counsel appearing on behalf of respondent No.1 has reiterated his objection by submitting that the provisions as contained in the afore-said Notification, which has been issued under section 62 of the Act, are mandatory in nature; that under section 62 every election petition has to be tried in accordance with the procedure laid down by the Election Commission, therefore, the provisions of C.P.C. Are not applicable during the trial of election petition; that the petitioner cannot be allowed to violate the provisions of the said Notification only on the ground that the Election Commission of. Pakistan had failed to raise the relevant objection at the time of entertaining the election petition. In order to share up his contentions learned counsel for respondent No.1 has placed reliance on the cases of Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766, Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175 and Sardar Khalid Nawaz v. Mian Manzoor Ahmed Wattoo 1987 CLC 1167.
4. Heard. Record perused.
5. Admittedly, while filing election petition the petitioner failed to submit a list of witnesses. However after framing of issues, the petitioner filed the list of witnesses along with gist of their statements in the office on 28-4-2009. There is also no denying the fact that before submitting the said application the petitioner did not seek any permission from this Tribunal for the submission of the said list.
6. Before proceeding further I would like to survey the relevant provisions of law, which would help rendering proper decision on this application. Chapter-VII of the Representation of the People Act, 1976 furnishes provisions for the settlement of election disputes, the election petition is filed under section 52, the procedure for presentation of the election petition has been given in section 53, whereas section 54 outlines the parties to be arrayed as respondents in the election petition.
Section 55 provides a guideline to the election petitioner regarding the contents of the election petition including the prayer which can be made while submitting the election petition. Section 62 is most relevant for resolving the issue under debate. Under this provision of law every election petition shall be tried in accordance with the procedure laid down by the Election Commission. The said section was amended on 17th of March, 1985. Before the amendment subsection (1) of section 62 of the Act provided as under:---
62. Procedure before Tribunal.--- (1) Subject to the provisions of the Act and the rules every election petition shall be tried as nearly as made may be in accordance with procedure for the trial of suit under the Code of Civil Procedure, 1908 (Act V of 1908)."
After amendment it reads as under:--
62. Procedure before Tribunal.--- Subject to the provisions of this Act and the rules every election petition shall be tried in accordance with the procedure laid down by the Election Commission."
' The powers of Tribunal have been prescribed under section 64 of the Act, according to which the Tribunal shall have the powers of a Civil Court trying a suit under the C.P.C. Section 63 lays down parameters for the dismissal of the election petition due to the failure of the compliance of certain provisions of the Act. Admittedly, under the said section failure to comply with the provisions of above-mentioned notification cannot be made a ground for the dismissed of an election petition.
It is also true that the said Notification is a subordinate legislation, therefore, it does not control the powers of the Tribunal as Civil Court. Therefore, the law laid down in all the cases cited by learned counsel for the petitioner is fully applicable to the extent that the election petition cannot be dismissed by the Tribunal for failure of the compliance of the provisions of the said Notification.
7. Now, the question remains as to whether the petitioner can be allowed to produce the witnesses mentioned in his list of witnesses. Having said that the election petition cannot be dismissed due to the failure of the compliance of the said provisions of law, I would like to mention here that provisions of C.P.C. Are not stricto sensu applicable during the trial of the election petition. It is true that under section 64 of the Act this Tribunal is armed with all the powers of a civil Court trying a civil suit under C.P.C. But as mentioned above, in the light of amended section 62 of the Act every election petition has to be decided in accordance with the procedure laid down by the Election Commission. In subsection (1) of section 62 the word "shall" has been used by the Legislature. The enactment of the said provision is not without any purpose, rather the purpose is that the election petitions should be decided expeditiously without being entangled in the lengthy procedure. The purpose of the filing of the affidavits of the witnesses obviously is that during the trial the consumption of time in recording the examination-in-chief of the said witnesses can be avoided.
For the said purpose, even the framing of the issues is not necessary as has been held by the Honourable Supreme Court in the case of Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCM R 426. In the said case it was further held as under:--- "The perusal of section 62, before the afore-mentioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election Petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading section 62 as amended and section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission."
8. A perusal ,of Notification No.F.1(6)85-Cord. Further shows that the said Notification is not that of general policy of realm, but it confers a valuable right and privilege on respondent to know the documents relied upon by the petitioner, the names of the witnesses which he intends to produce before he is called upon to file written statement. So, mere delivery of the petition to the respondent without documents and the affidavits, of the witnesses mentioned in clauses (1) and (3) of the Notification will not serve the object of section 62.
9. As has been held above, though the Tribunal shall have all the powers of Civil Court trying a civil suit under the Code of Civil, Procedure, 1908 but the Tribunal is not bound to follow the procedure as given in the C.P.C. For the trial of election petitions, rather, under section 62 of the Representation of the People Act, 1976 the Tribunal shall proceed with the trial of the election petitions according to the procedure laid down by the Election Commission of Pakistan as envisaged in the above- mentioned Notification. Further, the Tribunals have been set up under the special law, the purpose of which, as observed above, is to dispose of election petitions expeditiously and to avoid lengthy procedure as provided in C.P.C. It is true that while entertaining the election petition the Election Commission of Pakistan did not raise any objection regarding the failure of the petitioner to append the list of witnesses along with their affidavits but that would not mean that the petitioner has been indirectly allowed to produce the list of witnesses according to his desires. At the time of entertaining the election petition the Election Commission of Pakistan cannot scrutinize the petitions extensively. According to sub-clause (1) of the Notification, it is always left in the discretion of the election petitioner to rely upon the documents and the affidavits of the witnesses likely to be produced by him. It is the election petitioner himself who is to decide and select the documents and the witnesses intended to be produced by him during the trial. A perusal of the sub-clauses
(5) and (6) of the said Notification would be advantageous, therefore, the same are reproduced as under:--
(5) Where any party desires to summon any official witness he shall file with the petition a list of such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witness.
(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal.
' Under sub-clause (5) of the said Notification official witnesses can only be summoned if the list of the said witnesses justifying their production stands attached with the election petition. Similarly, under clause (6) of the said Notification no witness whose name is not mentioned in the petition shall be summoned or examined, unless required by the Tribunal.
10. Now, considering the case in the said backdrop I find that while filing the election petition the petitioner failed to give the list of witnesses, private or official, along with the election petition.
However, affidavits of certain polling agents/private witnesses have been filed along with the election petition, therefore, failure to give list of witnesses of the people whose affidavits have been attached along with this petition would not be prejudicial to the election petitioner and the said witnesses can he produced by the petitioner in his evidence and barring the said witnesses the petitioner cannot be allowed to produce any other private witness.
11. Insofar as official witnesses are concerned, surely the petitioner was not required to file their affidavits along with the petition. However, having failed to append the list of said witnesses along with the election petition, at this stage the petitioner cannot be allowed to produce the official witnesses without specific permission of the Tribunal, but the petitioner has failed to submit any application seeking the permission to produce the said witnesses.
12. Consequently, the objection raised by the learned counsel for the respondent to the said extent is upheld with an observation that the petitioner can move an application giving the reasons justifying the production of the official witnesses and the documents, if any, intended to be produced and provide by the petitioner through the said witnesses and if such an application is filed the same would, of course, be decided after considering all the pros and cons of the matter.
13. Now to come up on 14-9-2009 for recording of evidence of the petitioner.