' FAISAL ARAB, J.---In the general Elections that were held on 11th May this year, the petitioner was declared returned candidate from National Assembly seat (NA-208, Jacobabad-I). He secured 51225 votes as against 45801 votes secured by runner up candidate i,e, respondent No, 1 .
Respondent No,1 challenged the election of the petitioner by filing Election Petition No,172 of 2013 in the Election Tribunal at Sukkur. While Election Petition was proceeding, respondent No,1 filed an application under section 151, C.P.C. Seeking verification of thumb impressions on the counterfoils of ballot papers that were cast in 69 disputed Polling Stations as according to him rigging has taken place. Vide order dated 29-8-2013, the Presiding Officer granted the application and directed the concerned Returning Officer to produce the counterfoils of ballot papers so that the thumb impressions on the counterfoils of the ballot papers and the pictorial electoral list could be sent to NADRA for verification. Aggrieved by such order, which is said to have been passed without hearing the petitioner, the present petition bearing Constitutional Petition No,3689 of 2013 has been filed.
2. In the other connected Petition No,D-3690 of 2013 the facts are that in the Election Petition Tiled by respondent No,1 before the Election Tribunal, the petitioner had moved an application under section 63 of the Representation of the People Act, 1976 seeking dismissal of the Election petition on the ground that the Election Petition has been filed in violation of the mandatory provisions of sections 52 and 55 of the said Act.
3. Counsel for the petitioner white arguing constitution petition bearing Constitutional Petition No, 3689 of 2013, submitted that in the prayer clause of the Election Petition, respondent No,1 has sought re-polling on 69 disputed polling stations though under section 67 of the Representation of the People Act, 1976 the Election Tribunal has to confine its decision by either dismissing the petition or declaring the election of the returned candidate to be void or declaring the elections as a whole to be void but he cannot order re-polling. He next contended that unless evidence is recorded to establish that rigging has taken place at 69 disputed polling stations, which had the effect of changing the election result, verification of the thumb impressions at this stage from NADRA was not justified.
4. Arguing the connected constitution petition bearing Constitutional Petition No,3690 of 2013, Mr. Zubari contended that the Election Petition filed by respondent No,1 was not maintainable in law for want of material details as envisaged under sections 52 and 55 of the Representation of the People Act, 1976, therefore, the application of the petitioner whereby he sought dismissal of respondent No, 1 's Election Petition ought to have been granted but the same was dismissed by the Election Tribunal.
5. Counsel for respondent No,1, on the other hand, argued that in the body of the Election Petition, respondent No,1 has clearly mentioned that bogus votes have been cast on 69 polling stations. He contended that whether any bogus votes have been cast or not is a fact in issue which could be proved through documentary as well as oral evidence. He submitted that the application on the basis of which verification of thumb impressions has been sought from NADRA 'would constitute documentary evidence, therefore, had respondent No, 1 's application been dismissed it would have resulted in shutting out the respondent No,1 from bringing on record documentary evidence, which is neither in his control or power to produce but is in the control and power of the concerned functionaries of Election Commission. He argued that law of evidence entitles a party to seek production of any official record in order to verify a fact or an event and also allows a party to seek opinion of an expert to establish a fact or an event and the object of seeking verification of signatures is to achieve this very object. In support of his contentions he placed reliance on the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni reported in 1999 SCM R 284 and read a portion from it wherein it has been held as under:-- "While the rule as to specific pleadings is invokable in election petitions, such, as discernible from section 55 read with sections 78 and 83 of the Act, is necessarily confined to corruptor illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should' reasonably have known. Many an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coming to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of the Tribunal to come to his aid by virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiable be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is holding free and fair elections is a duty cast by law and Judges can be doing no more than' discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having dul yand lawfully been elected. The rule pertaining to non-complidtice `Of the applicable provisions of law by the officers and staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving non-compliance with the provisions of the Act and the Rules the allegations can be only as much detailed as is plausible in the given circumstances of a case. To that extent, keeping in view the brevity and preciseness enjoined by section 55(1) (a), the petition seems to hove satisfied such requirements as there may have been".
6. Article 18 of the Qanun-e-Shahadat Order, 1984 provides that evidence may be given in any proceedings of existence or non-existence of fact in issue or such other facts as are relevant.
Article 72 of the Qanun-e-Shahadat Order provides that the contents of the document may be proved in evidence. Where the evidence is in the form of public document which a party wants to rely and produce it to prove existence of a fact, onus of which lies upon him, then such party is entitled to seek its production and in case any document is required to be examined by an expert then also a party is entitled to seek opinion of the expert and in this regard may move the Court to order that a document be referred to an expert or Authority whose opinion can be had on the authenticity or otherwise of the document itself or its contents. Article 164 of the Qanun-e- Shahadat Order, 1984 also provides that Court may allow production of any evidence that may become available through modern device.
7. In our view the entire exercise of calling for counterfoils and other polling record and seeking verification of signatures is an exercise which is to be conducted after issues are framed and before evidence is recorded through witnesses. Seeking report , from NADRA would by itself constitute documentary evidence which once produced and proved in accordance with law of evidence would give an option to a party not to give oral account of an event or a fact on any particular issue and rely on documentary evidence only. Therefore, to prohibit such documentary evidence from coming on record before witnesses are examined on oath would in fact amount to closing the doors on a party to seek production of documentary evidence at the relevant stage of the proceedings. Before any document is produced in evidence, it may require verification of its contents either from the concerned authority or through some modern device. Once such document is ordered to be verified and then brought on record only thereafter a party may be in a position decide as to what extent and on what issues oral account of an event or fact is required to be given in evidence. Therefore first ordering recording of oral account of an event or a fact and then decide to verify a document would amount to putting the cart before the horse. The election disputes are supposed to be resolved in shortest possible time as it is a question of sending true representatives of the people to the institutions like parliament and provincial assemblies. With this object in mind, section 67 (1A) of the Representation of the Peoples Act, 1976 provides that Election Tribunal shall proceed with the trial of election petition on day to day basis and decision shall be taken by it within four months from its receipt. Hence the intention of the law is that presiding officers of the Election Tribunal should proceed with the matters with a sense of urgency and deliver decisions as expeditiously as possible. To honour such mandate of the law, it would be necessary that instead of recording oral account of an incident or an event first through witnesses and then decide whether to allow production of documentary evidence which is undisputedly not only a public document but also requires verification of signatures from NADRA. Such verification would provide more authentic and accurate account of what had transpired at the polling and thus would be more believable than the oral account of rigging, if at all that has taken place. The reliability of oral evidence on an issue is much lesser as compared to duly verified documentary evidence. The Courts therefore always place more reliance on documentary evidence as compared to oral evidence.
8. One of the objections to the Tribunal's decision that was taken by petitioner's counsel is that the application of the respondent No,1 was decided without affording any opportunity of hearing to the petitioner's counsel. Suffice to state that as this decision has been given after hearing elaborate arguments of the petitioner's counsel, this takes care of such objection. As to the other argument that relief of re-polling cannot be granted suffice to state that such can be the consequence of any order that is passed by the Tribunal within the scope of section 67 of the Representation of People Act, 1976. In any case we leave this to the Tribunal to decide when it would be finally disposing of the Election Petition.
9. As regards the issue involved in the connected Petition No,D-690 of 2013 with regard to its maintainability under section 63 of the Representation of the People Act, 1976, the learned Election Tribunal held as under:-- "In the instant case, the petition is filed by petitioner Illahi Bux Soomro and contents of the petition are verified on Oath to be true and correct before an Oath Commissioner at Karachi on 4-7-2013.
This petition is based on the facts mentioned in the petition about corrupt and illegal practices alleged to have been committed by the respondent No,1 and includes full statement giving the names of Presiding Officers, number of Polling Stations and copies of complaints etc. The annexures filed with the petition are duly signed by the petitioner by mentioning "verified on Oath that the contents of the above documents are true to the best of my knowledge, belief and information and all these documents are attested by the Advocate. Certain photo graphs and one CD are sealed in Plastic envelop are also verified on Oath and attested by the Advocate as such it could not be said that the petition and his annexures are not verified on Oath and mandatory provisions are not complied. The date and place is also mentioned in the petition about the verification as such the mandatory provisions of Section 55 of the Representation of the People Act, 1976 are complied with."
10. In the order of Election Tribunal whereby the petitioner's application filed under Section 63 of the Representation of the People Act, 1976 was dismissed, the petitioner has failed to point out any finding which is contrary to record. Hence we find no legal infirmity in the impugned order which would have compelled the Election Tribunal to summarily dismiss the Election Petition.
11. Having found no justification to interfere in the impugned orders of the Election Tribunal in exercise of our constitutional jurisdiction under Article 199 of the Constitution, we dismissed both the Constitution Petitions being Nos.D-3689 and 3690 of 2013 through a short order dated 11-10-2013 and these are its reason.