1. ' RANA ZAHID MAHMOOD (ELECTION TRIBUNAL, PUNJAB).--- Today the case is fixed for arguments in support of objection raised by the learned counsel for respondent NO.1 on 2-1-2014 that P.W.1 who was under cross-examination by the learned counsel for respondent No,1 on said date at one stage in order to answer the question of the cross-examiner learned counsel for respondent No,1 requested to refresh his memory from his affidavit Exh.P.1 as he had in the examination-in-chief stated that he had sworn the affidavit Exh.P.1 and had signed the same before the Oath Commissioner as Exh.P.1/1.
2. ' Since the learned counsel for respondent No,1 had raised the objection to the request of the P.W.
3. For refreshing his memory on the ground that firstly the procedure provided for the trial of election petition was provided by notification dated 16-1-1985 wherein it was provided that it was not necessary for the Tribunal to record whole of the evidence of a witness and the Tribunal may record the memorandum of the statement of the witness on the basis of affidavit of the witness and in case the evidence was required to be recorded in full the Tribunal may record reasons thereof. He submitted thus provisions of Qanun-eShahadat Order, 1984 did not apply to the trial of the election petition before the Tribunal. Also submitted that P.W. Was not an official witness and it were the official witnesses only who could refresh their memory with reference to their previous statement/documents.
4. ' The learned counsel for the petitioner on the previous date had then rebutted the arguments advanced by the learned counsel for respondent No,1 in support of his objection and had placed reliance on section 62(2) of the Representation of the People Act, 1976 according to which Evidence Act was applicable to the proceedings of the Tribunal. He also referred Article 1 of Qanun-e- Shahadat Order, 1984 to contend that the provisions of said Order, 1984 applied to the Tribunals as well except the proceedings before the arbitrators who then also made specific reference to Article 155(1) of Qanun-e-Shahadat Order, 1984 to say that the witness while under examination could refresh his memory with reference to any document executed by him or read by him. It was in these circumstances that the case was then adjourned for today for detailed arguments in this respect and cross-examination on the P.W. Was reserved for today after hearing both the learned counsel for the parties and giving finding on the sustainability of the objection or otherwise. It may also be mentioned that it was specifically mentioned in the previous order dated 2-1-2014 that the recording of testimony' of P.W.1 after decision on objection would be completed with a direction to the petitioner to accompany other P. Ws he wanted to produce before the Tribunal for evidence for today.
5. ' At the very outset Mian Abbas Ahmed, Advocate learned counsel for respondent No,1 has submitted with reference to Articles 155, 156 and 157 that all the Articles are helpful to understand the scheme of the intention of legislature and submitted that this Tribunal had recorded the statement of P.W. In examination-in-chief wherein he stated that he swore the affidavit available on record as Exh.P.1 and his signatures before the Oath Commissioner were Exh.P.1/1 and submitted that this examination per se is a statement of the P.W. And it was all fresh in his mind when immediately thereafter he started cross-examination of the P.W. And when in answer to question by him some reply which could elicit the truth and favour the case of the respondent, the P.W.
6. Instead of replying to the question stated that he wanted refresh his memory from affidavit Exh.P.1.
7. He submitted that this procedure could not be adopted as this could nullify the impact of cross- examination. Submitted that extent of right of refreshing memory by witnesses is not absolute and in case he misses the opportunity to answer correctly, he loses his right to refresh his memory and submitted that this aspect cannot be lost sight of that the examination-in-chief depending upon Exh.P.1 was shown to the P.W. When his examination-in-chief was recorded which was fresh in his mind and in fact through refreshing pretext in fact the P.W. Wanted to overcome the deficiency in his answers and submitted- with reference to section 161, Cr.P.C. That present is a witness who claimed to have represented the petitioner in the recounting process under the orders of the Election Commission of Pakistan vide order dated 14-5-2013 under the supervision of the D.R.O. And the Returning Officer and Senior Officer and Senior Civil Judge as stated by the P.W. In the cross- examination. He submitted that vide order dated 18-5-2013 of the Election Commission of Pakistan, Regional Election Commissioner was also directed to be associated in the recounting process.
8. ' Learned counsel also submitted reference to AIR (sic) Calcatta page 739 that in said Indian authority the right of the P.W. Is lost if he misses the opportunity for refreshing his memory if the same was fresh however submitted that copy of said case-law is not with him neither he could find it despite efforts. In any event submitted that the objection raised by him is valid and lawful and P.W. Cannot be allowed to refresh his memory.
9. ' Mr. Sikandar Bashir Mohamand, Advocate learned counsel for petitioner has vehemently opposed the - arguments advanced by the learned counsel for respondent No,1 and submitted that the learned counsel has though made reference to the case-law from the Indian jurisdiction stated above but since has not produced any copy thereof before the Tribunal therefore, he cannot get any advantage at all of any reference of any case-law in support of his arguments. Learned counsel submitted with reference to Articles 155, 156 and 157 that the law and the language used in Article 155(1) there is no distinction whether it is a civil trial, a criminal trial or trial before a Tribunal.
10. He submitted that a witness under examination has been given a right to refresh his memory if he so feels with the permission of the Court and no clog can be put on the same neither he can be deprived of said right under the law being a private witness. Submitted that Article 155(1) is self- explanatory and to denude the P.W. To have recourse to refresh his memory would amount to proceed against the statutory right provided to him under the provisions of Qanun-e-Shahadat Order, 1984. He submitted that furnishing of evidence through affidavit is at par with verbal statement of a witness during examination-in-chief and the scheme of Articles 155, 156 and 157 of Qanun-e-Shahadat Order, 1984 by no stretch of imagination put any clog on the right of the P.W. To refresh his memory at any stage of the examination. He submitted that Article 155 (1) of said order is a rule of evidence and has nothing to do with the procedure provided by notification of Election Commission of Pakistan dated 16-3-1985 which even otherwise permits the production of all the P.Ws. Through affidavits. Learned counsel in support of his arguments has placed reliance on 1994 CLC page 311 wherein the Hon'ble High Court in the case of Messrs Crescent Jute Products Limited v.
11. Province of Punjab and others while Dilating upon the provisions of Articles 155 and 157 held categorically that witness, could refresh his memory from the relevant documents and would be at liberty to place file containing said documents/record in front of him in order to refresh his memory as and when necessary. He therefore submitted that objection raised by the learned counsel for respondent No, 1 is without any lawful substance. In support of his contentions he has also placed reliance on AIR 1921 Allahabad page 86, AIR 1922 Calcatta page 107, AIR 1924 Lahore page 605, AIR 1928 Privy Council page 80 and AIR 1963 Supreme 'Court of India page 1850 .
12. ' Learned counsel submitted that since the objection is without lawful basis the same may be over ruled and submitted that witness is present for cross-examination and apart from him 6 P.Ws. Are also in attendance.
13. ' After hearing both the learned counsel for the parties on the objection raised by learned counsel for respondent No,1, perusing the provisions of Qanun-e-Shahadat Order, 1984 such as Articles 155(1), 156 and 157 and the case-law cited at the bar I have no doubt in my mind that since the relevant law i,e, Qanun-e-Shahadat through specific provisions stated above confers right on the P.W. Under examination to refresh his memory with reference to any document executed by him or read by him though not executed by him while he is under examination before a Court of law, a Tribunal or any other authority as mentioned in Article 1 of Qanun-e-Shahadat Order, 1984 has got a statutory right to refresh his memory and there is no distinction whether the examination:- in- chief of the witness is recorded through his verbal statement or on the basis of an affidavit earlier executed by him In support whereof he deposed in his examination-in-chief and as per plain language of Article 155(1) the witness is permitted to refresh his memory as and when he feels like - however with permission of the Court as provided by (3) of Article 155. The perusal of all the above stated 3 articles of Qanun-eShahadat Order 1984 go to show that these are interconnected and are exhibition of express intention of the legislature of the mode in which the witness shall refresh his memory and it is noteworthy that the legislature has taken care of two situations, one is whether the witness deposes ' something relating to transaction reduced into writing made by himself at the time of transaction concerning which he is under cross-examination or had the opportunity to read it which means that In the context of present controversy the Witness intended to refresh his memory with reference to his affidavit Exh.P.1 about which he had simply stated in his examination-in-chief that he had sworn the same and had signed the same before the Oath Commissioner however is noteworthy that Exh.P.1 is dated 22-5-2013 and is surely a document since executed-by the P.W., he was within his right granted to him under Article 155(1) to refresh his memory with request to the Court to permit him to do so unless the Court/Tribunal was of the opinion that the memory of the witness about the transaction was fresh in his mind in which case the Court or the Tribunal could reject the request of the witness.
14. ' Perusal of Article 156 shows that it makes a reference expressly to Article 155 and permits the witness to testify to facts mentioned in such documents although he has no specific recollection of the facts themselves if he was sure that the facts were correctly recorded in the documents.
15. ' However perusal of Article 157 shows that it has again a direct nexus with Articles 155 and 156 as expressly mentioned in this Article itself that any writing referred to in Articles 155 and 156 for refreshing memory of the witness must be then produced and shown to the adverse party if he requires it or if he intended the cross-examination thereupon.
16. ' It is an established position that the P.W.1 referred to his affidavit exhibited as Exh.P.1 and detailed therein some events which he noticed during the recounting process which was carried out under the supervision of DRO, RO, Senior Civil Judge and Civil Judges concerned and had executed the affidavit on 22-5-2013 therefore if in answer to any question the P.W. Felt that he could not answer truly and correctly about C the transaction subject matter of affidavit Exh.P.1, the document executed by him on 22-5-2013, it could not be said that memory was fresh in his mind while under cross-examination from the side of the respondent No.1 thus was within his statutory right to request for the refreshing of his memory to the Court/Tribunal which was objected to by the learned counsel for respondent No. 1.
17. ' It appears that the learned counsel for respondent No.1 perhaps was not clear about the status of the witness to refresh his memory while under cross-examination on a previous document and Ideas of the view that only an official witness could refresh his memory which impression/argument of the leaned counsel for respondent No.1 is not supported by law. Perusal of Articles 155, 156 and 157 of Qanun-e- ID Shahadat Order, 1984 do not draw any distinction between the private witness and official witness. The intention of the legislature in conferring statutory right on the P.W. In any such situation though can be termed to be absolute however is subject to grant of permission by the Court/Tribunal as the case may be. The philosophy behind the same is that arbitrary denial of said right of the P.W. Would amount to compel him to perjury or to say something which might not be correct. Legal jurisprudence surely emphasis on truth to be placed before the Court of law/in judicial proceedings so that rights of the contesting parties are not adversely effected through perjury, incorrect or tentative statements of P. Ws.
18. ' Since the learned counsel for responded No.1 himself is not sure about the case-law referred to above by him neither any copy has been placed before me therefore no comment can be made on said case-law whereas the learned counsel for the petitioner has categorically referred to not only on law on the subject from Pakistan jurisdiction but also placed reliance from Indian jurisdiction and I have opportunity to go through the all and would with respect follow the dictum laid down in all the abovesaid case-law from Pakistan and Indian jurisdiction such as 1994 CLC page 311, AIR 1921 Allahabad page 86, AIR 1922 Calcatta page 107, AIR 1924 Lahore page 605, AIR 1928 page 80, AIR 1963 Supreme Court of India page 1850 and would like to specifically mention the recent case of Messrs Crescent Jute Products Limited v. Province of Punjab and others, an authority of the Lahore High Court, Lahore wherein with reference to Articles 155 and 157 it has been held as under:--- "Qanun-e-Shahadat (10 of 1984)--- ----Arts. 155 & 157---Production of documents---Witness appearing on behalf of plaintiffs wanted to produce and prove correspondence exchanged between parties regarding terms and conditions of contract arrived at but trial Court disallowed him to make such statement with reference to such documents--Plaintiffs/petitioners had contended that document filed by them along with plaint were to be proved by that very witness along with original record and that while making a statement, witness could produce all relevant documents and also refresh his memory as provided by the provisions of Qanun-e-Shahadat--- Defendants/respondents stated that documents were admitted and no dispute arose about authenticity of the same---Controversy between parties stood resolved in view of submission made by parties---Held witness would make statement in Court verbally and will produce and prove relevant documents and would also be have liberty to place the containing record in front of him in order to refresh his memory as and when necessary."
19. ' The crux of the above discussion therefore is that objection raised by the respondent No. 1 is without any lawful substance and is therefore over-ruled.
20. ' The learned counsel for respondent No. 1 has submitted that he cannot cross-examine the P.W.
21. Who is present in Court just now and the case may be adjourned for tomorrow. The learned counsel for the petitioner has opposed the request however I am of the view that request for grant of adjournment for one day is reasonable therefore adjourned to 7-1-2014. P.W.1 present in Court is bound down for tomorrow while other P.Ws. May attend the proceedings whose statements would be recorded after cross examination of P. W.1 is over.
22. ' Adjourned to 7-1-2014 for evidence by the petitioner.