ALI BAQAR NAJAFI, J.---Through this constitutional petition, the petitioner has challenged the order dated 19.03.2018 and 10.04.2018 passed by respondent No.3 whereby application of the petitioner seeking permission to submit the list of witnesses was dismissed on the ground that it was not submitted within the stipulated time.
2. Brief facts giving rise to the filing of this constitutional petition are that petitioner as well as respondents Nos.1 and 2 contested the election as candidate for Chairman Union Council No.60 Chak Amroo, Tehsil Shakargarh District Narowal. The election was conducted on 05.12.2015 and then copy of the result was issued to the agents of candidates. The respondent No.1 being dissatisfied moved an application to the Returning Officer seeking recounting of the entire votes as the petitioner allegedly influenced the election staff who prepared the result showing him as a successful candidate by 33 votes. On 21.12.2015 the District Returning Officer and the Election Commission of Pakistan notified the petitioner and respondent No.2 as a successful candidates.
The said result was challenged by respondent No.1 through election petition under section 38 of the Punjab Local Government Act, 2013 in the month of January, 2016. However, the petitioner and respondent No.2 submitted the reply on 02.03.2016 raising number of objections alleging that sister of the petitioner was MNA on Women Reserved Seats exercised her influence but no list of witnesses was presented. It was on 10.04.2018 i.e. after about two years, when an application was filed seeking permission to produce witnesses on the ground that earlier an application was filed but was somehow went missing and that when the witnesses were to be produced by him, it has transpired that the said list was no more available on the record, therefore, he sought permission to produce the witnesses named in the said application i.e. Famir Asghar, Chairman (petitioner), Javed Akhtar Vice-Chairman (respondent No.2), Faryad Ali polling agent, Govt. Boys P/S Sakmal Ward No.3 Union Council, Bashir Ahmad Councilor Ward No.1 Chak Amroo, Returning Officer U/C No.60 and Presiding Officers U/C No.60. This application was resisted by the respondent and on 19.03.2018, it was observed that since the application to produce the defence witnesses was not available, therefore, only petitioner and respondent No.2 could appear to record their statements.
On 10.04.2018 it was observed that by not submitting the list of witnesses, section 68(R) was violated and that the official witnesses could be summoned even on its own by the Tribunal, hence this writ petition.
3. Arguments heard. File perused.
4. Admittedly, the application to produce the witnesses by the petitioner during the stipulated time is not on record. Under Rule 65(2)(b) read with clauses (3) and (4) of the Punjab Local Government (Conduct of Elections) Rules, 2013 the proceedings in election petition were required to be carried out as nearly as might be in accordance with the procedure of trial of suit under Code of Civil Procedure, 1908. The Tribunal, therefore, may require the parties to file within 15 days of the date on which the case was fixed for evidence, a list of witnesses whom they wanted to produce in evidence or to produce documents by such witnesses along with a precise evidence which they were expected to give through affidavit. It was also made permissible for the Tribunal that it could call such witnesses for the purpose of examination before it. Besides, under Order XVI, Rule 1 and 2, C.P.C., within seven days of framing of issues, the list of witnesses were to be produced and that if such list was not presented, the evidence can be produced with permission of the court after showing the good cause to produce the said witness from the list. Order XVI, Rule 1 and 2 of C.P.C. is reproduced as under:-- "1. Summons to attend to give evidence or produce document.--
(1) Not later than seven days after the settlement of issues, the parties shall present in Court a [certificate of readiness to produce evidence, along with a] list of witnesses whom they propose to call either to give evidence or to produce documents.
(2) A party shall not be permitted to call witnesses other than those contained in the said list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list; and if the Court grants such permission, it shall record reasons for so doing."
5. This provision has already been interpreted by the Hon'ble Supreme Court of Pakistan in case titled "Umar Hayat v. Additional District Judge and others" reported as 2004 SCM R 1367, wherein it was held that if the relevant documents were mentioned in the pleadings without naming the witnesses unintentionally by mistake, the same may be summoned through court in accordance with law and justice, if their summoning was necessary. The relevant extract of the judgment is reproduced as under:-- "We have heard the learned counsel and have also gone through the relevant provisions of the law i.e. Order XVI, rule 1 sub-rule (2), C.P.C. which provides that the Court is competent to grant permission to the petitioner for summoning any witness at any stage subject to showing good cause etc. Since in the instant case the learned Civil Judge vide order, dated 16.04.1999 has granted permission to summon the witnesses for recording evidence before the Court in exercise of its discretionary jurisdiction and the said order was maintained both by the A District Judge as well as the High Court vide judgments, dated 10.03.1999 and 16.04.1999, respectively, therefore, we are of the opinion that no point for interference by this Court in exercise of jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is made out."
6. Importantly, perusal of the file neither reveals any order passed after framing of issues by the court requiring the parties to produce list of witnesses nor it was argued at bar by the learned counsel for the respondent that such order was ever passed.
7. Interestingly, the argument of the learned counsel for the petitioner that he filed such application which somehow went missing, could be located through a probe by the court on the basis of relevant statements of the court functionaries but the same was also not done. This question remains, therefore, unanswered by the Tribunal which ought to have been dilated upon. Even otherwise, the interim order dated 19.03.2018 was not passed on the basis of cogent reasons supported by the relevant upto date case law, therefore, could not be relied upon by the Tribunal in his subsequent order dated 10.04.2018; both impugned in the present writ petition.
8. As far as, delaying of the matter is concerned, notably the written statement ,was filed after two years but such delayed filing of written statement cannot be used as a ground for punishing the petitioner as it would definitely debar him from defending himself, which would not be in true spirit of the Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
9. Last but not least is the fact that Presiding Officer, Returning Officer, or the Government officials could be summoned by the court under its discretion whereas petitioner and respondent No. 2, the private defenders would understandably defend themselves before the Tribunal. The statement of Bashir Ahmad Councilor and polling agent Govt. Boys P/S Salami Ward No.3 would be relevant and important to decide the above said petition before the Election Tribunal.
10. Keeping in view the above, this court has no hesitation to observe that the order passed by Election Tribunal is not sustainable in the eyes of law, being violative of the said provisions of the Rule 65 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 and the Order XVI, Rule 1, C.P.C. as interpreted by the superior courts. Resultantly, the impugned orders are set-aside and this constitutional petition is allowed. The application to produce the witnesses filed by the petitioner before the Election Tribunal is allowed. However, the Election Tribunal is directed to decide the matter within next three months positively.