C.M. No.3/2025 C.M. No.3/2025 has been filed by Respondent No.1/Returned Candidate for dismissal of the titled petition on the ground that the petition is non-compliant of mandatory provisions of the Elections Act, 2017 ("the Act").
2. The objection to the maintainability of the titled petition is two-fold and is premised on the alleged violations of Sections 142(2)(a) and 144(2) of the Act. It is the case of Respondent No.1/Returned Candidate that the petition has not been presented in accordance with law inasmuch as Section 142 of the Act mandates that it should be presented by the petitioner in person or by a person duly authorized in writing. In this regard, Mr. Muhammad Shan Gul, advocate, learned counsel for Respondent No.1/Returned Candidate has referred to order dated 01.11.2024 passed by this Tribunal, whereby notices were issued to the respondents, and the presence of the petitioner has not been recorded. It is further submitted that the petition was presented through Mr. Sameer Khosa and Ms. Momal Malik, advocates, without a specific authority letter being appended, thus violating Section 142(2)(a) of the Act. Reliance is placed on the judgment of the High Court of Madhya Pradesh, at Indore, in Writ Appeal No. 2165/2023 titled Kamlabai vs. Rajendra Singh and others; and cases reported as Tara vs. Dabla alias Lalita and Ors. [2002 (2) MPHT 554]; Rachna vs. Savita and Ors. (AIR 2017 Raj 18).
3. As regards the second limb of the objection, it is contended that the petitioner failed to append complete list of witnesses, thereby offending Section 144(2) of the Act. In particular, it is pointed out that affidavits of three witnesses are missing, and there exists inconsistency in between the listed witnesses and the affidavits appended. Additionally, it is submitted that the parentage of the witness at Serial No.5, namely Zafar Ullah, is incorrectly stated. Reliance is placed on case reported as Mir Hammal Khan vs. Election Commission of Pakistan through Secretary, Islamabad and others (2025 SCMR 584) to contend that such deficiencies render the list incomplete. On behalf of Respondent No.1/Returned Candidate, Mr. Usman Ghani, advocate also advanced arguments and submitted that Section 144(2) of the Act employs the mandatory term 'shall', thereby requiring both the names of the witnesses and their affidavits to be part of the list. It is urged that absence of affidavits renders the petition non-compliant. Reliance is also placed on case of Mir Tariq Mahmood Khan Khetran and others vs. Mir Baz Muhammad Khetran and others (1992 CLC 1766).
Additionally, it has been argued that the petition is not complaint with Rule 145 of the Election Rules, 2017 ("the Rules"), which contemplates that in case of official witnesses, the petitioner is obligated to provide justification for the production of such official(s) and also mention the documents, if any, required to be proved through such witness as also the circumstances, the said witnesses are to depose in relation thereto, which is conspicuously missing in the present case.
4. In response, Mr. Sameer Khosa, advocate, learned counsel for the petitioner submits that the scheme of the Act and the Rules must be kept in sight while determining whether the petition has been properly presented. He contends that the law merely requires the petition to be filed within 45 days of the Gazette Notification, which in the instant case was done on 30.03.2024, after 11:00 a.m., as reflected in the stamp/seal of the Office of this Tribunal. He argues that Respondent No.1/Returned Candidate is erroneously construing 01.11.2024 as the date of presentation. He further submits that the case law cited from the neighbouring jurisdiction (Indian) is distinguishable. Adds that even otherwise, a Larger Bench of the Rajasthan High Court has held that the authorization of an advocate is sufficient to present the election petition. Reliance is also placed on cases reported as Anju Singh vs. Gauri (2017 (3) CDR 1627 (Raj)) followed by Kalli Meena vs. Rekha Devi Dhanka and Ors. (2017 (3) CDR 1576 (Raj)). As regards the objection concerning the list of witnesses, learned counsel for the petitioner argues that the relevant provisions do not stipulate detailed particulars of the witnesses to be included. In the instant case, private witnesses--who acted as polling agents for the petitioner at stations where malpractices occurred--have been named, and their identity is not in doubt. It is further submitted that any such doubt can be addressed during cross-examination. Invoking the doctrine of substantial compliance as elaborated by the Hon'ble Supreme Court of Pakistan in case of Ali Madad Jattak vs. Mir Muhammad Usman Pirkani and others (2025 SCMR 466), it is submitted that the petition satisfies the legal requirements. Reliance is also placed on judgment of the Election Tribunal, Sindh High Court in Election Petition No.52/2024 titled Zain Pervez vs. Election Commission of Pakistan and others. As regards Rule 145, he submits that sufficient particulars have been provided regarding the need to summon official witnesses in the main petition, and that no exhaustive justification is legally and separately required. Reliance is placed on case reported as Abdul Rauf Mengal vs. Moulvi Qamar-ud-Din and others (2014 CLC 687).
5. Mr. Imran Arif Ranjha, learned counsel for Respondent-ECP submits that the petitioner's interpretation regarding official witnesses is misconceived, as the purpose of submitting a separate list would otherwise be defeated. As to the presentation of the petition, it is argued that there is no requirement for personal presentation by the petitioner.
6. Mr. Imran Khan, Assistant Advocate General, Punjab submits that consequences of compulsory rejection for noncompliance of Section 144(2) of the Act is not applicable to the extent of official witnesses, as the requirement to file affidavits pertains only to private witnesses who are subject to cross-examination, and not the official witnesses. He further contended that the penal consequences contained in Section 145 are confined to non-compliance of the preceding Sections 142, 143 and 144 and non-compliance of Rule 145 of the Rules cannot be read into the penal clutches of the Act.
7. Heard.
8. The first objection relates to scope of Section 142(2)(a) of the Act, which reads as under: "142. Presentation of petition. -- (1)....
2. An election petition shall be deemed to have been presented--
(a) when delivered to the Election Tribunal appointed under section 140--
(i) by the petitioner in person; or
(ii) by a person authorized in writing in this behalf by the petitioner...
(3) An election petition, if sent by registered post or courier service, shall be deemed to have been presented in time if it is posted or sent within the period specified in sub-section (1)."
I am of the opinion that above quoted provision of the Act does not envisage requirement of physical presence of the petitioner at the time of presentation of the election petition, more so when sub-Section (3) of Section 142 is kept in sight which permits presentation of petition through the post. Therefore, it is erroneous to consider the date of presentation as the day when this Tribunal took cognizance of the matter and issued notice as opposed to the date (i.e. 30.03.2024) when the petition was filed with the Office of Registrar of this Tribunal. The date when the judicial cognizance was taken by this Tribunal is distinct from the date of presentation envisaged under the Rules.
9. Even otherwise, the presentation of the petition through an advocate is also valid and reliance on cases from neighbouring jurisdiction is misplaced when ratio laid down by the Larger Bench of the Rajasthan High Court in case of Anju Singh supra is taken into account where it has been held that an election petition presented by a Lawyer on the strength of a vakalatnama would be deemed to have been duly presented if the language of the vakalatnama expressly records that the lawyer is authorized to present the election petition. In this regard, case reported as Kalli Meena supra is also referred in which it has been held that even where the term election petition is not expressly mentioned, the context and terms of the vakalatnama suffice to infer valid authorization for presentation of the election petition and reaffirm that the vakalatnama is a contract of agency before the parties, and implied term may arise by necessary implication.
10. In present case, the power of attorney executed by the petitioner in favour of Mr. Sameer Khosa, advocate and his associate expressly authorized them to file pleadings including the election petition, which satisfies the requirement of 'authorization in writing'. I am not persuaded by the argument that the vakalatnama does not constitute an authorization in writing. There is neither requirement of a separate letter of authority, nor is there any prescribed form under the Act or the Rules mandating separate authority letter to be executed by a petitioner for the purpose of filing of the petition. Therefore, this objection lacks substance and is rejected.
11. The second objection relates to compliance of Section 144(2) of the Act, which reads as under: "144. Contents of Petition. -- (1)...
(2) The following documents shall be attached with the petition--
(a) complete list of witnesses and their statements on affidavits."
The controversy revolves as to how the word 'complete' as also 'and' used in the above-quoted provision of law are to be read. In this regard, I am of the opinion that the term 'complete' must be construed in a practical and purposive manner. The petitioner has provided names of all the witnesses -- private as also officials. Even if the affidavits of some of the witnesses are missing or particulars in respect of few others contain clerical errors, the overall compliance is substantial. The law does not prescribe automatic rejection of the election petition for such lapses inasmuch as the petitioner may elect not to rely on any of the listed witnesses whether his affidavit is available or not. The list of witnesses and their respective affidavits are duly annexed with the petition. The witnesses are individually named and their affidavits clearly disclose the nature and scope of their proposed deposition and any minor typographic discrepancy, such as inconsistency in the parentage of the witnesses or the CNICs, does not obstruct the identification of the witnesses or the understanding of their proposed evidence. In case reported as S. M Ayub v. Syed Yusuf Shah and others (PLD 1967 Supreme Court 486), it has been held that strict view on the technical plane of the pleadings without regard to the substance of the matter would defeat the ends of justice. The adjudication of such objection would otherwise require an appreciation of the evidentiary value, credibility and context of the alleged discrepancy all of which squarely fall within the domain of trial and the argument of learning counsel for the petitioner in this regard has force. Moreover, reliance placed upon case of Mir Hammal Khan supra by learned counsel for Respondent No.1/Returned Candidate is misplaced inasmuch as in the said case the original affidavits of the witnesses were not tendered in evidence and instead only photocopies were produced. Hence, the same is of no help to the case of the Respondent No.1/Returned Candidate. Similarly, case of Meer Tariq Mahmood Khan Khetran supra is also distinguishable as the election petition in the said case was dismissed on the ground that neither a list of witnesses nor affidavit of any witness had been filed thereby resulting in a clear and incurable non-compliance of the mandatory requirements under the law, which is not the position in the instant case.
12. The doctrine of substantial compliance is squarely attracted in this case. The Hon'ble Supreme Court in case of Ali Madad Jattak supra held that technical deficiencies, which do not affect the core of the petition or cause no prejudice, should not defeat the right to trial and this doctrine applies with equal force in present case.
13. With respect to the official witnesses, Rule 145 of the Rules reads as under: "145. Summoning of official witness: Where any party desires to summon any official witness, he shall file with the petition a list of such witnesses justifying production of such official and also mention the documents, if any, which are required to be proved through such witness."
In the instant case, the official witnesses have been named, along with clear reference to the polling stations where irregularities occurred in the main petition. That constitutes sufficient justification for the purposes of Rule 145. The Rule is procedural and not listed under Section 145(1) of the Act as one of those provisions breach whereof results in summary rejection of the petition.
The purpose of the said Rule is to control irrelevant summoning of official witnesses--not to bar the petition itself. Therefore, said objection is also misconceived.
14. In view of the above discussion, the objections raised through present C.M. No.3/2025 are found to be without merit. None of the objections raised go to the root of jurisdiction or strike at the maintainability. The petition was competently presented under Section 142; the list of witnesses substantially satisfies Section 144(2)(a); and the reference to official witnesses fulfills the requirement of Rule 145 and if any objection is to be pressed to the extent of summoning of the official witnesses that can be decided by the Tribunal when stage of summoning of said witnesses is reached. C.M. No.3/2025 stands dismissed. Now to come up on 01.07.2025 for further proceedings.