1. JAMAL KHAN MANDOKHAIL, J.--- This petition has been filed on the allegation that the respondent No.1 does not qualify for the seat of Senate meant for Technocrats from Balochistan. The respondent No.1 filed his reply raising legal objections and alleged that the petition is incompetent as it is not in accordance with wection 36 of the Senate (Election) Act, 1975 (called hereinafter as "the Act"). The learned counsel for the parties agreed that the legal objections be decided at first. The objections 'A' and 'C' raised by the respondent No.1 through his written statement are as under:--- (A)That the petition is liable to be dismissed as provisions of section 36(3) have not been complied with, which hit under section 44 of the Senate Election Act, 1975, wherein the schedule and annexure to the petition have to be signed by the petitioner and verified in the manner laid down in the C.P.C.
2. (C)That no affidavit of the petitioner or the witnesses has been filed along with the petition, as such, the petitioner is not entitled to file the same at any subsequent stage.
3. Issue No.1 was framed as under:--- (i)Whether the petition is not maintainable under section 44 of the Act in view of the object "A" of the written statement, by not complying the provisions of section 36(3) of the Act?
4. 2.The learned counsel for the objector/respondent No.1 stated that the schedule and the documents annexed to the petition have not been signed by the petitioner nor verified them on oath, as provided by subsection (3) of section 36 of the Act, as such, the petition is liable to be dismissed. He added that the petitioner cannot exhibit a certificate bearing No. DGPR (press) 1770/2012, dated 3rd April, 2012 issued by one Mr. Kamran Asad, the then Director-General Public Relations ("DGPR"), through the present DGPR. He further argued that the remaining witnesses are private, but their affidavits have not been annexed with the petition, which is a condition precedent, therefore, these witnesses cannot be examined. According to the learned counsel, the procedure for trial provided by the Senate (Election) Act, Rules and Notification No.F.1(6) 85-Cord., dated 16th March, 1985, is mandatory in nature, therefore, non-compliance of the same by the petitioner entails dismissal of the petition. The learned counsel relied upon the following case- laws:-- (1)Muhammad Saeed v. Tahir Malik, (2005 CLC 1493).
5. (2)Malik Umar Aslam v. Sumera Malik, (PLD 2007 Supreme Court 362).
6. (3)Muhammad Ashraf v. Tariq Javed, (2007 SCM R 34).
7. (4)Asif Nawaz Fatiana v. Walayat Shah, (2007 CLC 610).
8. (5)Tariq Mehmood Khan v. Baz Muhammad, (1992 CLC 1766).
9. 3.The learned counsel for the petitioner opposed the contention and stated that the petition has properly been verified on oath in accordance with the provision of section 36(6) of the Act. According to him, the petition has been signed by the petitioner and has duly been verified on oath, wherein the documents have discussed, therefore, no violation of subsection (3) of section 36 of the Act has been done, as such, the schedule and the documents in the circumstances are not required to be signed and verified. He argued that the certificate referred to hereinabove mentioned in the list of the documents, is a part of a record of the Public Relations office and the DGPR, being its custodian, is competent to exhibit the same. In reply to the objection of the respondentNo.1withregardtonon- submissionoftheaffidavitsof theprivatewitnesses,thelearnedcounselforthepetitionerargued that filing of the affidavits of the witnesses with the petition is directory in nature and departure from the same cannot disentitle the petitioner from producing the witnesses or such omission can be rectified subsequently.
10. 4.I have heard the learned counsel for the parties and have gone through the record. Section 36(3) of the Act is relevant, which is reproduced hereinbelow: "36. Contents of petition.--- (1) --------------------------------------------- (2)
11. (3)Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."
12. According to subsection (3) of section 36 of the Act, every election petition, its schedule and annexures shall be signed by the petitioner and shall be verified on oath in the manner laid down in Order XI, Rule 13 in accordance with Form No.5, Appendix C of the C.P.C. The word 'Schedule' mentioned in subsection (3) of section 36 of the Act has been defined in the Black's Law Dictionary as "a written list or inventory; esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document". Similarly, it has been defined in Concise Oxford Dictionary as "an appendix to a formal document or statute, especially as a list, table or inventory".
13. Hence, a "Schedule" is a written or a printed statement showing brief detail of a document or contains a list showing a brief description of a document.
14. 5:The word "Annexure" used in subsection (3) of section 36 of the Act has been taken from the word "Annex", which means "to join or add especially to something larger, or to append or attach to a significant thing, or in addition to main document, report or a pleading. The word "Annex" has been defined in the Black's Law Dictionary as "something that is attached, such as a document to a report" and in Concise Oxford Dictionary it has been defined as "a document added as an extra or subordinate part, an addition of a document". Thus, it leads us to the conclusion that the Annexure is/are the document/s which has/have not been described in a main document, a report or a petition, but is/are sought to be produced in support of its contents. The documents, containing additional ground of allegation of a substantive nature, or at least furnishes a better particular of the allegation, in addition to what has been described in a petition or a report, only such document/s is/are to be considered as annexure. The documents, which have been described in the pleadings and subsequently attached to it, do not come within the definition of the Annexure, irrespective of the fact that these have been marked as Annexure A, B, C and so on. Rule 15 of Order VI fixes a responsibility on a party to personally verifying the facts of the pleadings and documents, to the best of his/their knowledge. If a document/s is/are discussed in a pleading, and the plaint is verified on oath, then there is no need of separate verification of such document/s. However, if a document/s is/are not discussed or described in a pleading, but the same are annexed with the pleading through a schedule, both schedule and the document/s should be signed by the person intends to produce them and verified on oath in accordance with Form-V, Appendix C in a manner as provided by Order XI, Rule 13 C.P.C. Reliance has been placed on the case of Iqbal Zafar Jhagra v.
15. Khalil-ur-Rehman, reported in 2000 SCM R 250. Relevant portion whereof is reproduced as under:--- "The learned counsel cited number of cases from Indian jurisdiction to support his contention that even in cases of partial non-compliance of the rules applicable to filing of election petition, the same should be dismissed. This Court in the case of S.M. Ayub v. Yousaf Shah PLD 1967 SC 486, while considering the effect of section 59(3) of National and Provincial Assemblies (Election) Act, observed as under:--- "This brings us to the second question, arising for decision in the case, namely, the effect of the omission of the petitioner-appellant to subscribe his signatures or verification to the documents annexed to the petition. The learned Judges of the High Court commented adversely on the finding of the Tribunal that none of these documents was a 'schedule or annex,' within the meaning of subsection (3) of section 59 of the Act, such as would require to be signed and verified in the manner laid down in the Code of Civil Procedure, under the mandate of subsection (3) of section 59 of the Act. In this connection, they referred to the definition of 'annex' as given in the Law Lexicon. The word 'Annex' is defined as follows in that book:--- 'Annex' is to attach at the end, subjoin, affix, as to affix a codicil to a will. In law it implies physical connection which, however, is often dispensed with, when not reasonably practicable. To unite, as a smaller thing to a greater; join; make an integral part of: as, to annex a conquered province to a kingdom--- Having regard to this definition of 'annex, the learned Judges thought that whatever is attached to a petition, would fall within the meaning of 'annex', and as such, would attract the provisions of subsection (3) of section 59 of the Act.
16. Here again, the learned Judges relied on certain cases, decided in the Indian jurisdiction, on the basis of the Indian Representation of the. People Act. This view is strongly contested on behalf of the appellant, by Mr. Rafiq Ahmed Sheikh.
17. It is argued with force, on behalf of the appellant, that the documents attached to the petition in the instant case, were merely newspaper newspaper cuttings from a paper, called Hayat, run malicious untruths, calculated to prejudice thevoters against the petitioner-appellant. These cuttings had reference to paragraph 10 of the petition, which starts by saying that the respondent to the petition before the Tribunal, had published in the daily Hayat, Peshawar, false and malicious news items, arousing religious, social and political hatred against the petitioner, details of which were given in that paragraph. Then follow, in serial order, brief description of the nature of the news items with the dates of their publication and the indication that they would be found in what are described as Annexures to the petition marked with letter 'B', B-1', 'C' etc. These cuttings do not really amount to allegations on which the petitioner-appellant was seeking avoidance of the election but they were in the nature of evidence, cited in support of allegations of corrupt or illegal practices such as, if established, could avoid the election. The main petition, it is conceded, is properly signed and verified. Instead of reproducing the contents of the cutting in paragraph 10 of the petition itself they have been briefly described therein and then collected at the end of the petition. The contents of those cuttings having been characterized in the main petition itself as malicious untruths, it would be too much to expect the petitioner to verify them in the manner contended for. By 'schedule or annex' mentioned in subsection (3) of section 59 of the Act, is apparently meant such a Schedule and Annexure as either makes additional allegation of a substantive character against the opposite party, or at least furnishes better particulars of the allegations made in the petition,soastogivethemthestatusofsubstantive groundsofthepetitionitself.Thedocumentsunderconsideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of `schedule or annex', mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for Schedules and Annexures to the petition, was not fatal to the prosecution of the petition."
18. WeareinclinedtofollowthelawlaiddowninS.M.Ayub v. Yousaf Shah (supra) and accordingly, hold that the learned Tribunal rightly declined to dismiss the petition filed by Khalilur Rehman challenging the election of Anwar Kamal Khan."
19. 6.Inviewofabove,itisheldthatsincethedocuments relieduponbythepetitionerandfiledalongwithhispetitionhavebeendescribedinthepetition,whichpetitionhasbeensigned and verified on oath, therefore, these documents were not annexures, as such, no schedule and separate verification of the same was required. Thus, the objection of the respondent No.1 in this behalf is overruled.
20. 7.The second and third objections of the learned counsel for the respondent No.1 with regard to the production of a certificate issued by the then DGPR and non-filing of the affidavits of the witnesses, pertain to the procedure for trial before the Tribunal, therefore, section 43 of the Act is relevant, which is as under:--- "43.Procedure before Tribunal.--- [(1) 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 [Commissioner]."
21. The said section assigns powers to the Commissioner to notify the procedure for the purpose of trial before the Tribunal. Thus, exercising power, the Election Commission of Pakistan notified the following procedure for trial of the election petitions, vide Notification No. F.1(6) 85-Cord., dated 16th March, 1985: (1)Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner along with the receipt indicating that the copies of the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent.
22. (2)Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly. If the petition is found to be in order, the Secretary shall fix the date of hearing.
23. Notice of the date published through the press, radio and television shall be deemed to be a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do so.
24. (3)The respondent shall upon the receipt of notice of the petition fromthepetitionerwithinsevendaysfilehiswritten statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence.
25. (4)The petitioner shall make available for cross-examination all witnesseswhoseaffidavitsarefiledwiththepetitionfor cross-examination on the first date of hearing before the tribunal.
26. (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.
27. (6)Nowitnesswh osenameisnotmentionedinthepetition shallbesummonedorexaminedunlessrequiredbythe tribunal.
28. (7)Where the election petition claims as relief a declaration that the election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member, the tribunal may decide the question of such qualification or disqualification as a preliminary issue.
29. (8)The tribunal may make a memorandum of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full.
30. (9)The tribunal may refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious ground for the purpose of delaying the proceedings or defeating the ends of justice.
31. (10)The tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit.
32. According to Paragraph No.5 of the notification, any party, if desirestosummonanyofficialwitness,shallfilealistofthe witnesses with the petition, justifying his/their production and also to mention the documents which are required to be proved through such witness/es.
33. 8.The petitioner attached along with his petition a certificate issuedbythethenDGPRandintendstoproduceand exhibitit through the present DGPR, which is reproduced as under:--- No. DGPR (Press) 1770/2012 DIRECTORATE OF PUBLIC RELATIONS BALOCHISTAN Dated Quetta, the 3rd April, 2012 The Honourable Minister For Human Rights and Minorities Affairs Balochistan.
34. Subject: PROVISION OF CERTIFICATE OF MR. ROZI KHAN KAKAR.
35. Kindly refer to your application Dated 1st April, 2012 on the subject cited above.
36. It is certified that according to this Directorate General's available record of press accreditation card register from 2000 to 2004 and 2008 to date, there is no entry in the name of Mr.Rozi Khan S/o Haji Sulman Khan.
37. XXX (KAMRAN ASAD)
38. Director General It is a fact that the above mentioned certificate has been issued by one Kamran Asad, the then DGPR, after consulting some record, but despite being its author, he has not been cited as a witness, nor the record, on the basis of which, such certificate was issued, has been called for. In view of the fact that the present DGPR is not the author of the certificate, he cannot give any evidence about the observation of his predecessor, therefore, his evidence is immaterial and is of no use. The petitioner did not justify the summoning of the present DGPR and production of the certificate through him, hence he cannot be allowed to appear as a witness.
39. 9.As far as the objection of the learned counsel for the respondent No.1 in respect of non-filing of the affidavits of the private witnesses along with the petition is concerned, no doubt under Paragraph No.1 of the Notification, affidavits of the private witnesses were required to be filed along with the petition, but the same has not been done so by the petitioner. Now, the only question, which requires to be answered, is as to whether the petition can be dismissed in the circumstances? In this regard, I am of the view that Paragraph No.1 of the Notification dated 16th March, 1985 and the provision of section 43 of the Act are directory in nature, because no penal consequence has been provided in the Act for its non-compliance, therefore, due to non-filing of the affidavits of the witnesses, the petition cannot be dismissed. It is a settled principle that the law requires disposal of a matter on merits, rather than deciding the same on technicalities, therefore, the objection so raised is overruled. In the interest of justice, last opportunity is provided to the petitioner to submit affidavits of the private witnesses, with an advance copy of the same to the other side, at least two days by or before the next date of hearing.