' In this petition under Section 52 of the Representation of the People Act, 1976 election of Shahzada Mohayuddin (respondent) as a Member of the National Assembly from Constitutency No, NA-24 Chitral is challenged by Maulvi Abdur Rahim (petitioner) on the ground that the respondent, being a Government Contractor, had a subsisting contract with WAPDA for the construction of WAPDA Lodge/Rest House, Daneen at Chitral at the time of filing his nomination papers and at the time of scrutiny held on 21-1-1985. It was also alleged that the election of the respondent was procured by corrupt and illegal practices as mentioned in the election -petition; that some female voters were not allowed to cast their votes which was, tantamount to their disenfranchisement and that the respondent was compulsorily removed from service in the year, 1969 and was also a defaulter of Government dues to the tune of Rs,1,38,126/-. The allegations made in the election petition were vehemently denied by the respondent in his written statement. In view of the pleadings of the parties, the following issues were framed in the case:-
(1) Whether the election of respondent is void on the ground that he was on the nomination day, being a Government contractor and having a subsisting contract, disqualified from being elected as a member?
(2) Whether the election of the respondent has been procured or induced by any corrupt or illegal practice?
(3) Whether the female voters were not allowed to cast their votes at the election? If so, its effect.
(4) Whether the petition is liable to be dismissed on account of the preliminary objections A to D of the written statement?
(5) Relief.
' The preliminary objections A to D mentioned in the written statement are to the effect that the petitioner has failed to give full particulars of the alleged corrupt or illegal practices; that the petitioner has neither attached nor supplied the affidavits and list of the witnesses he intended to produce and thus the provisions of the relevant Act and Notification No,F.1/(7)/85-Cord, dated 16- 3-1985 were violated and hence they could not be examined as witnesses in the case; that the election petition does not comply with the provisions of Section 55(3) of the Representation of the People Act, 1976 in that it has not been signed by the petitioner nor any annexure to the petition is signed or verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and that the petition is conceived in bad faith being full of mis-statements/concealment of facts. On 2-10-1985 when the issues were framed the learned counsel for the petitioner requested that issue No,1 should be decided first as a preliminary issue. On 30-4-1986, before any evidence was recorded in the case, the learned counsel for the parties agreed that they will produce evidence in support of preliminary issues No,1 and 4 because both the issues are interlinked. On that day one witness of the petitioner was examined and the case was adjourned to 13-5-1986 for the remaining evidence of the petitioner on issues No,1 and 4.
2. In order to appreciate the contention raised on behalf of the respondent that the petitioner could not produce witnesses as their names were neither mentioned in the election petition nor their affidavits were attached therewith, it would be appropriate to refer to various order-sheets. On 15- 8-1985 when the election petition came up for hearing, none was present for the petitioner. The learned counsel for the respondent objected that the copy of the petition alongwith the requisite documents had not been received by him. On 7-9-1985 the petitioner appeared and was directed to provide copies of the petition and the annexures to the counsel for the respondent within seven days. On 2-10-1985 when the written statement had already been filed, the learned counsel for the petitioner wanted to file list of witnesses and their affidavits which was resisted on behalf of the respondent. However, the list of witnesses and their affidavits were allowed to be placed on the file subject to objection which was to be dealt with at proper time. On 16-10-1985 an application was submitted on behalf of the respondent for dismissal of the election petition on the aforesaid ground and the petitioner was directed to submit a reply which was duly submitted. By order dated 9-4-1986 the aforesaid application of the respondent, that the petitioner was not entitled to lead evidence as -o list of witnesses and affidavits have been filed with the election petition, was disposed of with the observation that the question whether the evidence thus adduced by the petitioner would be taken into consideration or not would be subject to decision on issue No,4. The petitioner was thus allowed to produce evidence in support of the aforesaid two preliminary issues.
3. The petitioner besides his own statement, examined four official witnesses in support of the contention that the respondent was disqualified to take part in the election as being a Government Contractor was having a subsisting contract with. WAPDA. On 18-12-1986 the learned counsel for the respondent made a statement that he does not want to produce evidence regarding issues Nos. 1 and 4. The case was, therefore, adjourned for arguments.
4. Before dealing with the evidence produced by the petitioner in support of preliminary issue No,1, it would be appropriate to deal first with preliminary issue No,4. The record shows that although the election petition is not verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings, it is duly signed and supported by an affidavit of the petitioner. The annexures with the election petition are, however, neither signed nor verified as required by Section 55(3) of the Representation of the People Act, 1976.
5. Reliance is placed on behalf of the respondent on Notification No,F.I.(7)/85-Cord, dated 16-3- 1985 issued by the Election Commission pursuant to the powers conferred upon it by sub-section
(1) of Section 62 of the Representation of the People Act, 1976 to lay down the procedure for trial of election petition. Paras (1) and (4) thereof are relevant to the present controversy. Para (1) provides that the election petition shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner. Para (4) makes provision for production by the petitioner on the first day of hearing of such witnesses for cross-examination, whose affidavits are filed with the petition. Thus it is contended by the learned counsel for the respondent' that the election petition was liable to be dismissed for non-compliance with the aforesaid mandatory requirement of law. It is also contended that under Section 55(3) of the. Representation of the People Act, 1976 it is a must that every election petition and every schedule or annexure to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil. Procedure, 1908 for the verification of pleadings and since the annexures filed alongwith the election petition were neither signed nor verified in the aforesaid manner, the election petition was liable to be dismissed under Clause (a) of section 63 of the Act. The learned counsel for the respondent in support of his contention referred to Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar PLD 1986 Jour. 160 wherein it was observed:- "Thus, what is intended by the Act and the Election Tribunals' procedure is that if the names of the witnesses are clearly mentioned in the petition or their affidavits are annexed therewith (which are relatable to the particulars given in the petition), they may be examined. Where their names are mentioned in the petition, but by inadvertence their affidavits are not attached therewith, it would be in the discretion of the Tribunal, whether to examine them or not. Where, however, their names are not mentioned it the petition nor their affidavits are annexed therewith, they can neither be summoned nor examined unless required by the Tribunal. It is clear that a special procedure has been framed by the Election Commission with regard to the summoning and examination of witnesses by the Election Tribunal, which must be applied strictly."
' Reliance is also placed on 1985 P SC 1208 where in a ease reported from the Indian jurisdiction it was held by reference to the Representation of People Act (43 of 1951) that:- "A perusal of section 81(3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner disregards the mandate contained in section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86... If out of the copies filed the respondent's copy is found to be an incorrect one, it amounts to non-compliance of the provisions of section 81(3) which is sufficient to entail a dismissal of the election petition."
' The contention is that the intention behind these provisions is manifest that they are mandatory and require strict compliance. The learned counsel for the petitioner, on the other hand, contended that the procedure for the trial of election petition as laid down in the aforesaid notification dated 16-3-1985 is regulatory in nature and not mandatory and, therefore, non-compliance therewith would not entail dismissal of the election petition. It is also contended that since the election petition was duly entertained and forwarded for trial by the Election Commission, the Election Tribunal would have no jurisdiction to dismiss the same on this score. It is further contended that non-compliance with the provision of section 55(3) of the Act would not result in dismissal of the election petition, for, the annexures with the election petition do not make any additional allegation of substantive character nor do they furnish better particulars as they are in the nature of supporting evidence of the allegations made in the election petition. Reliance is placed on S.M.Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 wherein was held that:- "By 'schedule or annex' mentioned in subsection (3) of section 59 of the Act (VII of 1964) is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite-party, or at least furnishes better particulars of the allegations made in the election, so as to give them the status of substantive grounds of the petition itself. The documents under consideration 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."
Even though the last contention on behalf of the petitioner is not without force, the fact remains that the petitioner had failed to mention the names of his witnesses in the election petition or to file their affidavits along therewith and he was allowed to do so subject to A decision on preliminary issue No,4. I am not inclined to agree with the learned counsel for the petitioner that the proedural requirement as laid down in the notification dated 16-3-1985 was of a directory nature. Since it clearly postulates that in case the election petition is not in accordance with the procedure laid down, it shall not be entertained by the Election Commission. The mere fact that the election petition was forwarded to the Election Tribunal with no objection' by the Election Commission would not mean that the lapse on the part of the petitioner had been condoned. There is nothing in law to prevent the Election Tribunal from exercising such powers as were available to the Election Commission to refuse to entertain the election petition. I am of the considered view that the procedure laid down by the Election Commission in the aforesaid notification in exercise of the powers under subsection (1) of section 62 of the Representation of the People Act, 1976 is not of a directory nature and has to be followed strictly. In an unreported judgment Sardar Khalid Nawaz v.
Mian Manzoor Ahmad Wattoo decided on 26-5-1986 by the Election Tribunal, Punjab it was held that the said -rules of procedure for trial of election petitions have binding force and they are not mere instructions issued for the guidance of. The Electign Tribunal as has been contended by the petitioner's Advocate. It was further held that failure to furnish any affidavit alongwith the election petition rendered it incapable of being substantiated by any evidence whatever.
6. Taking this view of the matter, the decision on preliminary issue No,4 would go against the petitioner in so far as he had failed to file the list of his witnesses and their affidavits alongwith the election petition.
7. Since the petitioner was allowed to produce evidence, it would not be out of place and rather would be in the interest of justice to have a look into the evidence adduced by the petitioner in support of his allegation that the respondent was disqualified to take part in the election being a Government Contractor and having a subsisting contract with WAPDA. On the other hand, the case set up by the respondent was that the contract in question was transferred by him in favour of Haji Sikandar Khan Contractor with the prior approval of the Department and that in this regard he had also entered into an agreement dated 29-8-1984 with Haji Sikandar Khan. Mohammad Yaqoob, Draftsman of the Office of Superintending Engineer (PW.1) stated that the period of the contract was extended by the Superintending Engineer vide his letter Ex.PW.1/1. His record did not show any application submitted by the respondent requesting for extension of time. He further stated that the said application was submitted by Haji Sikandar Khan Contractor, Chitral. He also referred to Ex.PW.1/2 (which is a letter dated 30-6-1985 addressed by the Executive Engineer to the Superintending Engineer requesting for extension of time wherein reference is made to an application from 'attorney holder' Sikandar Khan requesting for extension of time upto 30-6-1985) and stated that the said application was submitted by Haji Sikandar Khan Contractor, Chitral but the power of attorney mentioned in the application was not available in his record. Naik Naeem, Divisional Accountant, Construction Division, WAPDA (PW.2) stated that the respondent was paid the fifth and final bill on 20-8-1985. In cross-examination he stated that according to his record the contract in question was transferred by, the respondent in favour of one Sikandar Khan. He also referred to 'a photo copy of the agreement dated 29-8-1984 and stated that XEN by his letter dated 20-9-1984 informed the S.D.O. Project, Peshawar about the cancellation and transfer of the contract in question from the respondent to one Haji Sikandar Khan. His record did not contain any power of attorney executed by the respondent, in favour of Haji Sikandar Khan but butted that ,the office considered the agreement of transfer from the respondent in favour of Haji Sikandar Khan as a power of attorney and, therefore, on the final bill Ex.PW.2/1 it was mentioned that 'Shahzada Mohayuddin (power of attorney to Haji Sikandar Khan)'. He thought that' the office of S.D.O.
Considered the aforesaid agreement of transfer as a power of attorney. He further stated that the final bill Ex.PW.2/1 bore the signature Haji Sikandar Khan as a Contractor and the final bill was paid to him as such on 30-8-1985 and no intimation of the final bill was given to the respondent. The final bill also shows that UP. Amount was received by Sikandar Khan. He referred to the original application dated 6-1-1985 submitted by the respondent to the XEN requesting' that since his contract had been transferred, he may be issued a certificate as it was likely that he may take part in the election. Photo copy of the original application is Ex.PW.2/4. He stated that consequently a certificate in this regard was issued by the XEN in favour of the respondent on 9-1-1985. The certificate bearing the signature of the XEN is Ex.PW.2/5. He deposed that 'excepting the certificate mentioned above, the respondent has no connection with the Department after 29-8-1984.' In re- examination he stated that although the contract stood transferred in the name of Haji Sikandar Khan but due to slip or an over-sight the final bill was prepared showing Shahzada Mohayuddin (power of attorney to Haji Sikandar Khan). Whereas in fact the final bill was prepared in the name of Haji Sikandar Khan showing him as- transferree. Iftikharuddin, S.D.O.(E), Civil Project, WAPDA (PW.4) produced counterfoil of some cheque dated 27-4-1986 whereunder an amount of Rs,1,42,951 was allegedly released in favour of the respondent. Copy of the counterfoil is Ex.PW.4/3. He stated that the security is released after passing the final bill. In cross-examination the stated that the original agreement dated 29-8-1984 (between the respondent and Haji Sikandar Khan) was present in his record, copy whereof is already exhibited in the case whereunder the respondent .Transferred the contract in favour of the Haji Sikandar Khan. He stated that the aforesaid agreement was duly approved by the XEN vide letter dated 20-9-1984. His record also contained a copy of the certificate issued by the XEN, Civil Division, WAPDA dated 9-1-1985 to the effect that the respondent was -no longer a contractor in this Department. The certificate on the file is Ex.PW.2/5.
He stated that the final bill also bears the signature of Haji Sikandar Khan as a contractor because it is so written. In his record. There was no power of attorney executed by the respondent in favour of Haji Sikandar Khan. He further deposed that extension for the execution of the work was granted on his recommendation because Haji Sthandar Khan had applied seeking extension of time for completion of the contract. He further deposed that the entry in the ledger of June, 1985 must be relating to Haji Sikandar Khan because as per agreement dated 29-8-1984 and the order and certificate of the XEN already exhibited the contract stood transferred in his name. About the entries in the counterfoil of the cheque Ex.PW.4/3 he stated that these were in the handwriting of one Khan Shah Senior Clerk and may be that the amount of the cheque in question was relating to the security. According to the endorsement on the counterfoil Ex.PW.4/3 the original cheque was sent to the contractor. However, he could. Not say if the cheque was encashed and' by whom. He stated that according to the endorsement on the counterfoil Ex.PW.4/3 the cheque was sent by registered post AD but no AD or other receipt was available in his record. He further deposed that according to the record a letter dated 29-6-1985 was forwarded by the S.D.O. To the XEN intimating him for further necessary action in respect of the final bill of Haji Sikandar Khan Contractor pertaining to this contract. Photo copy of the said letter is Ex.PW.4/R-2. Photo copy- of the receipt by Haji Sikandar Khan regarding the letter from XEN dated 20-9-1984 is Ex.PW.4/R-3. His record also contained the letter sent by the respondent to the XEN for the issuance of a certificate that he was no longer a contractor as he intended to take part in the election. Photo copy of the letter is Ex.PW.4/R-4. The said letter also bears the initials of the XEN on its back.
8. From the evidence thus adduced by the petitioner himself it is abundantly clear that the contract in question was transferred by he respondent in favour of Haji Sikandar Khan on the basis of an agreement dated 29-8-1984 with the prior approval of the Department Long before the election.
The learned counsel for the petitioner, However, contended that since the evidence produced by the petitioner Remained unrebutted the onus placed on him stood discharged and he shall be deemed to have succeeded in proving his case that the Respondent being a Government contractor and having a subsisting Contract was disqualified to participate in the election. By referring :o AIR 1944 Lahore 276 it was contended that the onus of an issue n a civil case is not permanently fixed but is constantly fluctuating. If onus to prove a particular fact is placed on a party to start with, le may by adducing evidence, oral or documentary, shift the burden m the other side who would fail if he is unable to rebut. Similarly, a party can by proving facts which may entitle a Court to raise a Presumption in his favour, shift the burden on the other side who mill fail in the absence of rebuttal. Some other case law has also Seen cited in support of this contention. But the cited cases need no detailed examination as, in my view, on the basis of the evidence adduced by the petitioner, the initial onus of proving his case has not been discharged, for, it is only if the petitioner discharges that mils and makes out a case which entitles him to relief, the onus shifts on to the other side. Then the other side is to prove Circumstances which would disentitle the petitioner to that relief. The evidence of the petitioner does not even prove a prima-facie Case nor raises a rebuttable presumption in his favour making it necessary for the respondent to lead evidence in rebuttal. The rule )f evidence is that the burden of proof lies on the party who asserts :he affirmative of the issue and not on the party who denies the same. This contention of the learned counsel for the petitioner is, therefore, repelled.
9. Regarding the transfer of the contract by the respondent in favour of Haji Sikandar Khan long before the election, the learned counsel for the respondent sought support from Muhammad Yusuf Khan Khattak v. S.M. Ayub and others PLD 1973 SC 160 and Muhammad Khan v. Syed Abdul Khaliq and others PLD 1986 SC 717. In the former case the majority view of the Supreme Court was that the mere fact that "K might have acted as de facto Director after his resignation became effective would not amount to a disqualification under Clause 2(h) of Article 9 of the Legal Framework order, 1970.". It was further observed that the law of election requires strict proof of the disqualification of a candidate as a corrupt practice and the finding with regard to disqualification must be based on positive evidence and not inferentially on mere surmises. It is well-settled that the provisions of a penal statute, entitling forfeiture and deprivation of valuable rights of property and franchise have to be very strictly construed and in the case of doubt the benefit must go to the person against whom they are sought to be invoked. In the Latter case it was held that:- ' "In view of the words used a candidate must have interest or share in the execution of that contract. If the contract on his part has been performed or he has communicated a clear unequivocal intention to put an end to the contract then he will not be having an interest or share such as may disqualify him under the law."
10. For the aforesaid reasons it is held that the respondent was not disqualified to take part in the election. Preliminary issue No,1 is, therefore, answered in the negative. Since the decision on issue No,4 has gone against the petitioner, the election petition fails which is hereby dismissed with no order as to costs.