' IBAD-UR-REHMAN LODHI, J.--- We propose to dispose of all these three petitions viz. Writ Petitions Nos.8455, 8456 and 8457 of 2012, as the same are filed against impugned order dated 2-3-2012, and bearing the same features.
2. The petitioner was notified as returned candidate as Member of the Provincial Assembly Punjab in the elections held on 18-2-2008 from the Constituency of PP-109 Gujrat-II. His such notification was challenged by the runner up of the election-respondent No,3, by way of an election petition, which after provided scrutiny by the Election Commission, was marked to a Election Tribunal. Along with the election petition, a list of 55 witnesses, which was further divided into two categories providing official and private witnesses, separately was also annexed. After receiving the written- statement by the contesting respondent, the learned Tribunal proceeded to frame the issues and evidence of the parties was called for. In the list of official witnesses, at serial No,13, a representative of Daily Dak Gujrat was mentioned along with the record of newspapers of different dates. On 17-2- 2012, one Arshad Ali, a representative of Daily Dak Gujrat appeared and writ petitioners objected to accept that person as a witness and to record his evidence, who after hearing the objection was refused to get his statement recorded and Chief Editor of Daily Dak Gujrat was summoned for 2-3- 2012 for proving the newspaper cuttings, placed on record. On the adjourned date i,e, 2-3-2008, when Chief Editor of Daily Dak Gujrat, on summoning the Tribunal appeared, again the writ petitioners raised an objection as to his competence to appear as a witness and the learned Tribunal allowed such witness to be examined as a representative of the said Publication and also ordered that if he will be in a position to verify the record, his examination would be continued as a record keeper also.
3. The order passed by the Election Tribunal has been challenged by the writ petitioners in these writ petitions.
4. While arguing the petitions, the learned counsel for the writ petitioners with reference to section 62 of the Representation of the People Act, 1936 (hereinafter to be referred as the 'Act'), as also the procedure laid down by the Election Commission under section 62(1) of the said Act stressed that unless an affidavit of the witness is annexed with the election petition, he cannot be permitted to appear as a witness at a subsequent stage. He is also of the view that the term "Representative" of Daily Dak was a vague term, and the Chief Editor of the said Publication cannot be allowed to be summoned as a witness giving him a status of representative. Further submits that a person representing any newspaper can, by no stretch of imagination, be held as an "official witness".
5. Conversely, the learned counsel representing the contesting respondent mainly by placing reliance on the cases of Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Laskhari Khan Raisani and 11 others (1998 SCM R 1597), Sh. Rashid Ahmad v. The Election Tribunal comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another (PLD 1993 Supreme Court 791) and Dr. Sheela B. Charles v. Election Tribunal and another (1995 CLC 344) has raised objection as to the availability of Constitutional petition against the decision of an Election Tribunal. On merits, the learned counsel argued by making a particular reference to Black's Law Dictionary 5th Edition that the term "official" includes a person invested with the authority of an Office and, as such, the Chief Editor has validly been called to appear as an "official witness". It is the stance of the respondent that for an official witness, it is not obligatory to place on record his affidavit prior to his summoning as a witness.
6. We have heard the learned counsel for the parties and perused the record carefully.
7. The issue of election disputes has, in detail, been provided in Chapter VII of the Representation of the People Act, 1976 and by virtue of section 56 of the Act, when an election petition is filed before the Election Commission, it would first be scrutinized in the Commission and if the Commissioner finds that any provision of sections 52, 53 or 54 of the Act has not been complied with, the petition shall be dismissed forthwith and if the election petition is not dismissed under subsection (1) of section 56 of the Act, then in view of subsection (2), the Commissioner shall refer it for trial to a Tribunal, which Tribunal is to be appointed by the Commissioner for trial of the election petitions under the Act.
8. By means of section 62 of the Act, it is provided that 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. Section 65(1) of the Act provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no document shall be inadmissible in evidence at the trial of an election petition only on the ground that it is not duly stamped or registered.
' An appeal against any "decision" of the Tribunal is provided by virtue of section 67(3) of the Act to the Hon'ble Supreme Court of Pakistan.
9. No rules, as are required to be framed in view of section 62(1) of the Act, have been framed; however, in absence of the rules required to be framed, giving minute details for the trial of the election petition, the Commission through Notification No,F.1(7)/85-Cord., dated 16-3-1985, has laid down a procedure for the trial of the election petitions. Clauses (1), (3), (5) and (9) of the said procedure would be relevant for the present purposes, which are re-produced herein-below for ready reference:---
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.
3. The respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence.
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.
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.
' The joint reading of the above referred sections and Clauses makes one thing clear that there are two categories of the witnesses; one private and the second one is official witnesses. The private witnesses are those, who at the time of filing of election petition are in control and access of the election petitioner and who intends to depose on the factual aspect of the disputes raised in the election petition, whereas, the official witnesses includes the persons, who at the time of election petition, were not in the direct control and access of the election petitioner, but at the time of recording of evidence, their appearance as witness deems to be necessary, in order to prove some record maintained in their respective Organizations, who are to summon through process of law to appear as a witness. The requirement of providing affidavits of witnesses is mandatory with regard to the private witnesses, whereas, with regard to the official witnesses, only requirement to be fulfilled by the election petitioner is to file a list of such official witnesses with the election petition justifying their production and also mention the documents, if any, which are required to be proved through such witnesses. Notwithstanding this position, the Election Tribunal is further equipped with the powers to summon any witness even if in the list of witnesses, his name is not included, if, it is required by the Tribunal and his evidence is considered to be material for the purposes of arriving at just decision.
10. In the present case, when the election petition was filed before the Election Commission, its scrutiny was held and when it was held qualified to be a valid election petition, only then it was referred to the Election Tribunal. The steps taken in the Election Commission were never challenged by any person feeling himself aggrieved of declaration by the Election Commission to the effect that the petition was filed competently. The name of representative of Daily Dak Gujrat was included in the portion of the list of official witnesses since its inception and after evaluating the status of the Chief Editor of Daily Dak in his Organization, he was given the status of official witness by the learned Tribunal and was allowed to get his statement recorded. In view of the procedure notified by the Election Commission for the purposes of trial of the election petitions before the Tribunal, no affidavit is required to be attached with the election petition of a person, who is intended to be summoned as an official witness, therefore, the objection raised by the writ petitioner before the Election Tribunal as to the competence of the Chief Editor, Daily Dak Gujrat to be an official witness was without any worth and it was rightly declined to be taken into consideration.
11. The learned counsel for the contesting respondent has attacked the maintainability of Constitutional petition filed against what he has called as "interim order" of the Tribunal, which according to him, can only be called in-question in appeal provided under section 67(3) of the Act.
' It is provided in the relevant statute i,e, section 67(1A) of the Act that the Election Tribunal shall proceed with the trial of the election petition on day to day basis and the decision thereof shall be taken within four months from its receipt, provided that where the delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal shall refer to the Commissioner that such candidate may be declared by the Commission to have ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Commission may direct.
'The perusal of above referred provisions of law do reveal that expeditious decision of the election petitions is the intention of law and for that purpose, the Election Tribunal has been empowered to 'avoid technicalities, but in the matter, under consideration, the proceedings of the petition before the Tribunal have been made suffered from technicalities and a petition, which was filed in the year 2008, is still pending. The petition, which was required to be decided within a period of four months, has not yet been finally decided after expiry of four years. This is complete negation of the mandatory provisions of law. Neither the proceedings have been concluded in the stipulated time nor any punitive action has been recommended against the persons responsible for such delay as is provided in the relevant provisions of law
12. The Hon'ble Supreme Court of Pakistan in Muhammad Asim Kurd alias Gailoo's case, while interpreting section 67(3) of the Representation of the People Act, 1976, has held that impugned order being interim in nature and final order was yet to be passed by the Tribunal, thus, appeal against final order of the Tribunal would be before the Supreme Court of Pakistan.
13. A Division Bench of this Court in Sh. Rashid Ahmad's case (supra) has held that any "decision" of the Election Tribunal is appealable to Supreme Court of Pakistan. The word "decision" as used in section 67 of the Act would not always refer to the final order, but would include an interim order also. The petitioner, if aggrieved, could have filed an appeal before the Supreme Court of Pakistan and at any rate in case ultimate final order is passed against him, he would be entitled to challenge the interim order in that appeal in view of the established legal position to the effect that while challenging final order, interim order was also challengeable. On such principles, the Constitutional Petition against interim order passed by the Election Tribunal was held not entertainable.
' Same was the view of another learned Division Bench of this Court in Dr. Sheela B. Charles' case.
14. What has emerged of the above discussion is that the Election Tribunal on 2-3-2012 was justified in holding that the Chief Editor of Daily Dak Gujrat was a competent witness, whose statement was to be recorded as an official witness and also that the petition filed against the interim decision given by the Election Tribunal is not entertainable and maintainable in Constitutional Jurisdiction of this Court, therefore, all these writ petitions are dismissed, with no orders as to costs.
15. Before parting with this judgment, we deem it proper to point out that the rules, which are required to be framed in view of the provisions of section 62(1) of the Representation of the People Act, 1976, have not yet been framed and only by notifying the procedure by the Election Commission, the minute details with regard to the proceedings in election petitions, and the procedure has been provided. In comparison whereof, with regard to the Local Government Elections, the Local Government Election Petition Rules have separately been framed, therefore, it would be in the fitness of things that the rules, which ought to have been framed for effective adjudication of the election petitions, be framed by the relevant competent authority meeting the requirement of section 62(1) of the Act.
16. In view of the provisions of section 62(1) of the Representation of the People Act, 1976, the chain is only complete if the provisions of the Act, rules framed thereunder and the procedure laid down by the Election Commission in this regard are in existence. In absence of rules, an important link in the chain is missing.