' MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner filed election petition under, section 52 of the Representation of the People Act, 1976 (hereinafter called as "the Act, 1976)") against respondent No.2 claiming that according to law every member of Parliament is required to provide accurate and just declaration of assets on the prescribed Form of Election Commission of Pakistan, the assets declared by respondent No.2 in his nomination papers are at variance with the assets declared in pursuance of section 42- of the Act, 1976 published in official Gazette, the respondent No.2 has declared that during the period of 2003 to 2005, the petitioner won different prizes against his Prize Bonds and, as such, the said variance are covered under section 76-A of the Act, 1976 and amounts to a corrupt practice, the declaration of respondent No.2 is in violation of provisions of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973, and, as such, the respondent No.2 is liable to be declared disqualified for violating the mandatory provisions of section 12(2)(f) of the Act, 1976. The petition is pending before the learned Election Tribunal and learned Tribunal has framed the issues out of the divergent pleadings of the parties and the petition is fixed for evidence.
2. The petitioner filed an application under section 64 of the Act, 1976, read with Order XI, Rule 12 and section 151 of Code of Civil Procedure, 1908 praying that respondent No.12/State Bank of Pakistan be directed the discovery of record in respect of winning Prize Bonds of respondent No.2 for ascertaining the veracity and genuineness of claim of respondent No.2 for the years 2003 and 2005, the said application was opposed by the respondent No.2 and respondent No.12 has submitted its reply and explained the procedure for payment of prize money won against the prize bonds. According to procedure, the Public Debt Office, the issuer of Prize Bonds, use to pay prize themselves or the agency of other offices of State Bank of Pakistan, Commercial Banks and Post Offices under its jurisdiction, however, in order to facilitate acceptance/settlement of claim of prize money, all the offices of State Bank of Pakistan used to receive claims for winning prizes claims irrespective of places of issue of the bonds. On receipt of confirmation from the Public Debt Office, the claim of winning Prize Bonds is to be settled; the payment against the winning Prize Bonds is made against a payment order by name and credited in his account or advice is sent to the Bank of the Prize winner. It is further submitted that Prize Bonds record is destroyed after the lapse of seven years. There are millions of bonds lying at various offices of State Bank of Pakistan, Public Debt Office and Commercial Banks and, as such, it is not possible for them to produce the document for inspection by the petitioner unless the detail of each and every bond is provided to them for the year concerned.
3. Respondent No.2 opposed the said application on the ground that it is the duty of the petitioner to prove his case on the basis of his own evidence and the application has been filed with mala fide intention to prolong the disposal of election petition. Further claimed that the petitioner has failed to prove his case and the application is frivolous and without any cogent reason.
4. The learned Election Tribunal vide order dated 28-5-2010 dismissed the said application relying on the reply of State Bank of Pakistan and held that the petitioner has alleged that the assets declared by the respondent No.2 are at variance with his declared assets in the nomination papers, therefore, it is his obligation to prove that the respondent did not correctly declare his assets. It is also for the petitioner to specify as to which period he wants the record of Prize Bonds, and as such, it would not be appropriate to direct the respondent/State Bank of Pakistan to bring the record of winning Prize Bonds spreading over the years. The petitioner has assailed the said order through the present Constitutional petition.
5. Learned counsel for the petitioner submits that learned Election Tribunal is bound to direct the respondent No.12 to produce the record of winning Prize Bonds pertaining to respondent No.2 as they alone are the custodian of the documents. He further submits that object of application under Order XI, Rule 12, C.P.C. Is to elicit admission from the opposite party which are required and necessary for the resolution of controversy between the parties. He further submits that learned Election Tribunal has wrongly held that petitioner is bound to provide the details of winning Prize Bonds along with the dates of prize declaration. He submits that it is the respondent No.2 who is claiming that he won the prize money on the basis of Prize Bonds, the period for the prize receipts are 2003 and 2005 as is evident from the declaration filed by the respondent No.2. He further submits that learned Election Tribunal has wrongly dismissed the application holding that it is the duty of the petitioner to prove its case on the basis of evidence available with him. It is not the case of the petitioner that he has evidence with him about the contents of declaration but it is the requirements of law that declaration submitted by the respondent No.2 should be correct and true which is a public document and every citizen of Pakistan has the right to examine that document.
He places reliance on Haji Abdul Sattar v. M. P.S.M.F. Produce (T&D Co-op. M.F.) Ltd. (AIR 1989 MP 16), Shri M.L. Sethi, v. Shri R.P. Kapur (AIR 1972 SC 2379) and Raj Narain v. Smt. Indira Gandhi and others (AIR 1972 Allahabad 41).
6. Learned counsel for the respondent No.2 submitted that the order assailed through this Constitutional petition is an interlocutory order and, as such, no writ petition is maintainable. He further submits that Constitutional petition is not maintainable against the Election Tribunal. He further submits that Code of Civil Procedure is not applicable before the Election Tribunal and, as such, the application was not maintainable. He adds that the burden of proof to prove the allegation levelled by the petitioner is on him and he cannot be allowed to collect evidence from respondent No.12 or to file application for discovery. He relied on Sheikh Rashid v. Election Tribunal (PLD 1993 Lahore 791), Dr. Shela B.Charles v. Election Tribunal and another (CLC 1995 Lahore 344), Pir Sabir Shah v. Election Commission of Pakistan (PLD 1994 Lahore 516 FB), Osman Khan through Attorney v. Aisha Naz and 2 others (CLC 2010 Peshawar 475), Election Commissioner of Pakistan v.
Javaid Hashmi and others (PLD 1989 SC 396), Upadhyaya Hargovind Devhanker v. Dhirendrasingh Vrohadraisingh JI Colank and others (AIR 1988 SC 915), Muhammad Asim Kurd v. Nawabzada Mir Kashkari Khan (PLD 1998 Quetta 1), Bhagwandas v. Returning Officer (1990 SCMR 1228), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426), Ahmed Khan Bhatti v. Maj. (R) Zulfiqar Ali Gondal (2010 CLC 131), Masudul Hassan v. Khadim Hussain (PLD 1963 SC 203), Udhav Singh v.
Madhav Rao Scindia (AIR 1976 SC 74), Ram Singh and others v. Col. Ram Singh (AIR 1986 SC 3), Daulat Ram Chauhan v. Anand Sharma (AIR 1984 SC 621), Ch. Razik Ram v. Ch. J.S. Chouhan (AIR 1975 SC 667), Capt. Syed Muhammad Ali v. Salim Zia (1999 CLC 1026), Illahi Bux Soomro v. Aijaz Hussain Jakhrani and 7 others (2004 CLC 1060) and Fahad Malik v. Mir Mumtaz Hussain Jakhrani (2008 CLC 457).
7. Learned counsel for respondent No.12/State Bank of Pakistan reiterates his arguments which were before the learned Election Tribunal and submits that practically it is not possible for them to produce the winning prize bonds or details thereof unless the date, time and number of bonds is provided to them. He further submits that he is not aware whether these bonds are destroyed and are available in their record as according to procedure of prize bonds, issuing agency after seven years they destroyed the winning Prize Bonds and its record.
8. Heard and record perused carefully.
9. The controversy between the parties is that respondent No.2 is a returned candidate and the petitioner has lost his election against him, the petitioner filed an election petition claiming that the declaration given by the petitioner at the time of submitting nomination papers and the declaration submitted to the Election Commissioner are at variance, the petitioner is attacking the amount generated through the prizes won on Prize Bonds shown in the declaration. The two documents are available in the record of Election Commission, one of which is notified through Gazette of Pakistan. The entry of substantial amount being received as winning prize is not denied by the learned counsel for the respondent No.2, however, he claimed that he has the every evidence available with him to justify the said amount but he claims that it is the duty of the petitioner who is challenging the said entries to prove that these entries are false and amount to a corrupt practice in terms ,of section 82 of the Act, 1976. It is an admitted fact that Government of Pakistan through State Bank of Pakistan is issuing Prize Bonds and is announcing prize money as per the denomination of the Prize Bonds. Procedure in this behalf has been prescribed by the State Bank of Pakistan for sale/encashment of National Prize Bonds under S.R.O. No.439/71 CDNS S.R.O.
(i)/99 (New Design) and other CD's instructions issued from time to time.
10. Section 1 of said S.R.O. Provides that:- "the prize money claims from Rs.5000 to Rs.20,000 against winning bonds are received and processed at this Unit. The number of prize winning bond is verified from the prize list and particulars of the claimant are entered in Register PB-18 by the A.A.O. And thereafter on the basis of recommendations of the A.A.O. And necessary scrutiny, the claim is passed by A.O. And delivered to Scrolling Section of the said Unit for onward delivery to the Cash Department after Scrolling, who pay the prize money after deduction of tax @ 10% to the claimant on surrendering of token and the Bonds receiving prize Money exceeding Rs.5000/- are retained by the Bank".
11. Section 3 of the said Circular is read as under: "Section 3-Big Prize Money:- ' The claims of prize money about Rs.20,000 and above are received and processed in this section.
Prize Money claims of rupees one million and above are sent to Pakistan Security Printing Corporation for verification of their genuineness. The prize money after deduction of tax @ 10% are paid through Payment Order. All the payments are made subject to pre-audit. Other procedure is same as followed by the Unit 1 (Direct Payment),"
12. The perusal of section 3 ibid shows that prize money above Rs.20,000 or rupees one million are sent to Pakistan Security Printing Corporation for verification of genuineness of Prize Bonds and after deduction of 10% of the tax prize money, is paid to the prize winner through Payment Order and all the payments are payable subject to pre-audit. From the above said procedure laid down by the State Bank of Pakistan for payment of prize money shows that any prize money above than rupees one million is payable through payment order. The payment order is banking instrument which is issued in the name of beneficiary and cannot be collected at the counter of any Bank. The payment order has to be collected through the account of the beneficiary and, as such, the said procedure is fool proof procedure and the beneficiary of the prize money of the big bond is identified.
13. The prize money paid to identified beneficiary is not difficult to trace out, because payment order is issued in the name of beneficiary and the same is collected through the bank account maintained by the beneficiary in their respective Bank. The State Bank of Pakistan even if has destroyed the Prize Bond declared to be the winner but list of payment order must be available with them in case the prize money claimed by the respondent No.2 is above Rs.20,000 or rupees one million. The other aspect of the case is that all prize money paid by the State Bank of Pakistan was collected by the respondent No.2 through its account and it is not impossible to locate the said amount from the account of the respondent No.2, the respondent No.2 is an honourable legislator, he has declared his assets through a declaration in accordance with law and, as such, the record must be available with him to justify his declaration. The respondent No.12 State Bank of Pakistan has wrongly refused to produce the document on the ground that the exact number, date and year of the winning prize are not available and, as such, they are unable to produce the documents.
14. The argument of learned counsel for the petitioner that declaration submitted by the respondent No.2 is at variance with the declaration submitted at the time of filing the nomination papers is prima facie an evidence available with the Election Tribunal and the learned Election Tribunal should have examined those documents which both are public document and are available in Gazette notification published by the Government of Pakistan and, as such, the burden to prove immediately shifts on the person who is the beneficiary of that declaration, has a force. It is an admitted fact that the submission of declaration is a mandatory provision of law for contesting the election and retaining the seat of National Assembly and, as such, respondent No.2 has to prove that his declaration is true and is backed by cogent and true evidence. The declarant is maintaining the record of each and every item mentioned in the declaration. The learned Election Tribunal has not appreciated the contents of application while dismissing the application for discovery of the document.
15. Under Order XI, Rule 12, C.P.C., the respondent No.2 and respondent No.12 both were bound to produce the document for inspection of the petitioner in Court for justifying the declaration submitted by the respondent No.2.
16. Learned counsel for the respondent No.2 has vehemently argued that the order assailed is an interim order against which no writ petition is maintainable. He submits that the order passed by the learned Election Tribunal was perfectly in accordance with law and the right of appeal is available to the petitioner at the time of final conclusion of the election petition. His reliance is on section 67 of the Act, 1976. Section 67(3) of the Act provides as under:--- "(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final."
17. His main argument is based on section 67(3) of the Act, 1976. He submits that even if the impugned order is not termed as an interim order, even then his order will fall in the definition of decision and, as such, appeal is provided against the said order before the Hon'ble Supreme Court of Pakistan. He relied on Sheikh Rashid v. Election Tribunal (PLD 1993 Lahore 791) and submitted that word "decision" is used in section 67 of the Act, 1976 and submits that if the petitioner is aggrieved of the order passed by the learned Election Tribunal, he may file appeal before Hon'ble Supreme Court of Pakistan or wait till the final decision of the election petition.
18. The argument of learned counsel for the petitioner is devoid of any merit.
' Section 67 of the Act, 1976 does not allow any person to take the benefit of technicalities, for example; in the present case, if the petitioner has no remedy against the order impugned, the natural effect of this order will be that no document in support of the declaration, the main bone of contention between the parties will be available on record and the election petition is bound to fail.
If this interpretation of learned counsel for the petitioner about the word "decision" is accepted as canvassed by him, section 67(3) of the Act, 1976 will be helpful for the declarant to justify their assets without the support of any document and only a simple entry in the declaration will be sufficient. The word "decision" has been discussed and dilated upon by the Hon'ble Supreme Court of Pakistan in judgment Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1987 SCMR 1107) and the Hon'ble Supreme Court of Pakistan has held as under:- "The crucial word used in section 67 requires consideration is "decision". As pointed out in Saunders, "decision" implies the exercise of a judicial determination as the final and definite result of examining a question." A more elaborate discussion of the meaning of this word in all its amplitude and context is found in Corpus Juris Secundum---Volume 26 starting at pages 41 and 42 in the following words:- "A popular and not a technical or legal word and a very comprehensive term, having no fixed, legal meaning. It has been said that a decision necessarily involves a dispute, actual or potential, and the reaching of a conclusion...In its common use, the word has been defined as meaning act of deciding, setting, or terminating, as a controversy, by giving judgment on the matter at issue; determination or result arrived at after due consideration, as of a question or doubt; settlement, or conclusion. Strictly speaking, it is intended to embrace the last act of the Court, in other words, the judgment a decision of the case for or against one of the parties, and, as used in particular statutes, may mean a final decision, and in its broad, generic sense it means a final determination of the rights of the parties in the action."
' It is clear, therefore, that the appeal provision being hedged in by the requirement of "a decision" and the nature of decision suggested by reference to consequential orders in subsection (1) of section 67, the appeal is competent only against those decisions which conform to such enumerated or specified orders."
19. The above discussion will show that order impugned is hitting to the main roots of the lis pending between the parties and, as such, the writ petition against the said order is maintainable and the High Court in its constitutional jurisdiction can examine the vires of impugned order.
20. It is the intention of law that law helps the people and not creates hurdles in their way. In my humble opinion, the learned Election Tribunal has erred in law while dismissing the application of the petitioner for producing document demanded strictly with reference to the declaration that too to the extent of prize money only which has been claimed by the respondent No.2 in his declaration being his legalized assets. The respondent No.12 being the custodian of the record is bound to produce the document demanded by the petitioner with reference to the declaration submitted by the respondent No.2 and has been notified in the official Gazette. There are only two years that are 2003 and 2005, in which the prize money was paid to the declarant and, as such, the payment orders should have been issued to the beneficiary if the prize money was above than Rs.20,000 or rupees one million, the original payment order after the collection of payment by the petitioner's bank must have been in possession of the State Bank of Pakistan and, as such, the State Bank of Pakistan is bound to produce document for inspection by the petitioner in terms of Order XI, Rule 12 Code of Civil Procedure, 1908.
21. There is an other aspect of the case that under section 76-A of the Act, 1976, which is read as under:--- "[76-A. Additional powers of Election Tribunal.---(1) If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that returned candidate was a defaulter of loan, taxes, Government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, Government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependent under section 12, it may, on its own motion or otherwise, call upon such candidate to show-cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order---
(a) declaring the election of the returned candidate to be void; and
(b) declaring any other contesting candidate to have been duly elected.
(2) If on examining the material or information referred to in subsection (1), an Election Tribunal finds that there appear reasonable grounds for believing that a returned candidate is a defaulter or has submitted a false or incorrect declaration referred to in subsection (1) it may, pending decision of the motion under subsection (1), direct that the result of the returned candidate shall not be published in the official Gazette.
(3) No order under subsection (1) or subsection (2) shall be made unless the returned candidate is provided an opportunity of being heard.]
22. The learned Election Tribunal has the powers to take cognizance of matter itself as the word used are" ... On the basis of any material coming into its knowledge from any source or information laid before it."
23. In the present case, the petitioner has specifically pointed out to the learned Tribunal that entry in declaration about the assets of declarant is doubtful and as such he be directed to produce the documents in support of the entry and as such the learned Election Tribunal should have not dismissed the .Application. The learned Election Tribunal is empowered to direct any party to produce the document for its inspection under the above said provision of law.
24. In view of the above, in my humble opinion, the impugned order is not sustainable in the eye of law and is set aside, the petitioner's application under Order XI, Rule 12, C.P.C. Is allowed. The respondent No.2 is directed to produce the documents in support of disputed entry mentioned in his declaration submitted to the Election Commission of Pakistan under section 42-A of the Act, 1976, likewise, the respondent No.12 is also directed to produce the demanded documents. The petition is allowed.