It is an election petition brought to challenge the election of the respondent Rai Ahmad Nawaz to N.A. 126, Sahiwal-III held on the 16th of November, 1988. He secured the highest number of votes (59077) after competing against the other three candidates including the petitioner Malik lqba1 Ahmad Khan Langrial who bagged the next highest numbers of 53925 votes. The main ground urged in support of the petition was that respondent No.1 committed "corrupt and illegal practices" instances whereof were given in a long detail in the body thereof. For the present purposes it would not be necessary to give that detail as the question falling for immediate decision related to the respondent's right to rile written statement before this Tribunal.
2. The fact is that the respondent did not rile written statement before the Secretary, Election Commission, and instead wanted to present it now before this Tribunal. A serious objection was taken on behalf of the petitioner to the filing of written statement before this Tribunal as according to him, the time of seven days stipulated by clause (3) of Notification No.F. 1 (7)/85-Cord, dated the 16th of March, 1985 had expired long ago and that it had turned out to be a case where under Order VIII, rule 10, C.P.C., a judgment could be pronounced straightaway against the respondent.
3. The procedure prescribed for trial of election petitions is provided in section 62 of the Representation of the People Act, 1976. It was amended by the Representation of the People (Sixth Amendment) Ordinance (XV11I of 1985), but before the amendment it directed that such petitions, would be tried, as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908. But the amendment brought into it a drastic change whereby such petitions were to be tried "in accordance with the procedure laid down by the Election Commission". In pursuance of this power, the Commission issued a notification dated the 16th of March, 1985, whereby, in practical effect, the Code of Civil Procedure was excluded; instead an abbreviated procedure was prescribed; the same envisaged that the election petitions shall be filed with the Secretary, Election Commission and shall be accompanied by receipt indicating that the copies thereof as also of the annextures thereto had been supplied to the respondent.
4. Clause (3) of the notification further contemplated that the respondent upon receipt of notice of the petition from the petitioner shall rile his written statement together with documents and affidavits within seven days. The petitioner's contention was that the written statement had to be filed before the Election Commission within the said period of seven days of the receipt of notice and that since the respondent here did not avail the opportunity, he was now precluded from riling the same before the Tribunal. Raja Muhammad Anwar Advocate for him referred to section 64 of the Act ibid and Mst. Hakumat Bibi v. Imam Din and others (PLD 1987 SC 22) in support of his assertion that this Tribunal had all powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, meaning thereby that it had to exercise power under Order VIII, rule 10, C.P.C. For pronouncing judgment against the respondent for his failure to present the written statement within the time fixed for the purpose.
5.On the other hand, Mr. Muhammad Akram Sheikh, Advocate for the respondent denied having received any notice directly from the petitioner in regard to the filing of the election petition before the Commission, and complained of having been denied an opportunity under section 56 (1) of the Act ibid. Of getting the petition dismissed from the Commission itself for non--compliance with certain requirements; secondly he maintained that registered postal receipt shown to him in regard to his having received a copy of the petition, did not necessarily prove that the envelope contained also the copies of the documents and the affidavits; and that delivery of such copies was a question of fact which could not be established by merely raising a presumption under Article 129 of the Qanun-e-Shahadat, 1984. He pressed vehemently that the amendment introduced into section 62 of the Act intended nothing but total exclusion of C.P.C. In the matter of trials of election petitions and that to reclamp it by interpreting section .64 would have the effect of either totally negating the amendment or defeating the purpose for which it was made. Likewise, he urged that filing written statement was a very valuable right in all norms of law, for, its absence would tantamount to condemning the opposite like unheard. He claimed that calling upon a party to file written statement or conversely refusing him the permission to file the same were merely rules of procedure which could never be intended to be so inveterate as to defeat the basic requirement of affording an opportunity to the opposing side of being heard. According to him; these rules of procedure are meant to foster justice rather than to curb it by giving undeserved .Importance to the technicalities. He relied upon lftikhar Ahmad v. Lshrat Ali Siddiqi and others (1988 SCMR 676) in this behalf. He adverted attention to the phraseolgy of clause (3) of the notification to point out that it did not provide that the written statement had to be filed in all events before the Commission and not the Tribunal. Silence in the notification in this behalf, according to his interpretation, provided room for entertaining the written statement even by the Tribunal. Last but not the least, he contended that election to the Parliament of the Country which was the highest representative body could not be taken lightly so as to brush it aside merely because a returned candidate having a large mandate of the electorate, failed per chance to present his written statement within seven days of the receipt of the notice.
6. It is hard to accept the proposition that the C.P.C. Was still applicable to these proceedings despite amendment of section 62. 1n fact, this was the section prescribing "Procedure before Tribunal". Prior to the amendment, it' provided that the C.P.C. Would apply to the trials of election petitions, but the amendment introduced into it totally excluded the C.P.C., and instead the Commission was authorised to lay down procedure for trying such petitions. The Commission in their own way formulated the rules of procedure in the notification mentioned above. If we hold that notwithstanding these changes the C.P.C. Continued to apply, it shall be a complete travesty of not only the amendment introduced in section 62 but also the procedure enacted by the Election Commission. Such a far-reaching effect could not be attributed to the Legislature which in explicit terms empowered the Commission to lay down a new procedure for trial of election petitions before the Tribunal. Reliance seemed to be misplaced on section 64 in support of the contention that it provided justification for applying C.P.C.To the trial of election petitions before the Tribunal. The caption of this section namely, "Power of the Tribunal" would suggest that this expression was totally different from the caption "Procedure before Tribunal" referred to earlier. The two cannot be considered synonymous: Power may refer to the authority of B the Tribunal to do certain acts in aid of disposal of the petition but the procedure provided a framework of rules to govern the hearing of the petition during trial. Further, "power" is enabling mechanism whereby the Tribunal may, for instance, call the witnesses, order production of documents, administer oath to the parties or their witnesses and do certain other acts in the discharge of its functions. The purport of conferring power is that the Tribunal may not bog down in the midst of proceedings to do an act and, therefore, it should be equipped with necessary authority to pull itself out smoothly from the conduct of the case. Negatively speaking, its working may not be hindered or hampered on the plane that it could not summon a party, a witness, a document or to do various other cognate acts in its day to day working. Section 64 is divided into two clauses. While the first talked of the powers of the Tribunal, the second made it deemingly a civil Court within the meaning of sections 476, 480 and 482 of the Cr.P.C. It is noteworthy that the "power' used in the section actually meant jurisdiction of the Court to punish for certain offences relating to proceedings conducted by it. The idea obviously was to enunciate unambiguously that the Tribunal will have powers (jurisdiction) like a Civil Court to award punishment for certain matters in certain circumstances and no more.
This is how the concept of power thereunder was distinguishable from procedural rules. Procedure on the other hand is a set of rules which it cannot abridge or violate while proceeding with the hearing of the petition. It has to proceed within the limited framework of the rules as provided C by the Commission in their notification which in nature was drastically curtailed as compared to the detailed rules contained in the C.P.C. 1n the Words and Phrases (Permanent Edition-Volume 34 Pro- Propelling), published by St. Paul, Minn., West Publishing Company, a distinction has been spelt out between "jurisdiction" and "procedure". In fact, the expression "jurisdiction" has been regarded synonymous with "power" of a Court to adjudicate or determine any issue. It reads:- "Jurisdiction distinguished.
"Jurisdiction has reference to the power of a Court to adjudicate or determine any issue or cause submitted to it, while "practice" or "procedure" has reference to the manner in which the power to adjudicate or determine is exercised .....
Statute prohibiting same Court from granting more than one judgment of reversal on weight of evidence against same party in same suit, in so far as it relates to consideration of appeals in the Court of Appeals, deals with "procedure" in that Court and does not modify its "jurisdiction"."
On this plane, the manner of trial provided by the Commission cannot be .. . . Replaced by the C.P.C.
Under the garb of power or jurisdiction of this Court (Tribunal) envisaged by section 64 ibid. .
7. The argument advanced in this behalf envisages a contradiction about) ,the statutory provisions of sections 62 and 64. The former scored out the application of C.P.C. Altogether whereas the latter was said to still retain authority, for the Tribunal to govern its proceedings by the C.P.C. It is a cardinal principle of law that any such contradiction has to be reconciled in a manner as to avoid imputing absurdity to the Legislature. P.St.J. Langan in his treatise "Maxwell on the Interpretation of Statutes" (Twelfth Edition) at page 210 remarks: "The same general rule applies where the result of one of two interpretations would be to lead to an absurdity."
Likewise, at page 199 his view was.
"An intention to, produce an unresonable result is not to be imputed to, statute if there -is some- other construction available."
Applying these rules of interpretation, I feel that the C.P.C. Was no more the law of procedure applicable to the present proceedings. Accordingly it was completely otiose to urge that Order VIll, rule 10, C.P.C, still applied.
8. Assuming but not conceding, the application of Order VIII, rule 10, C.P.C. Was a proposition not free from difficulty. Mst. Hakumat Bibi's case' no doubt spelt out a rule that even a simple order "requiring" a defendant to file written statement would attract the extreme penalty of pronouncing judgment if he failed to comply with it but a more detailed discussion as to how it could be applied, can be found in Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365) which contrarily excludes its applicability at least to a written statement which may hive been asked for by the Court in the. Routine for the first time. The Supreme' Court laid down: "It is clear- from the combined reading of Order VIII, Rules 1 and 9 C.P,C, that amongst others three types of written statements can be filed by a defendant:-
(1) As of right without any formal permission of the Court (Rule 1).
(2) . When it is. So required by the Court to file a written statement. (Rule 1 . And Rule 9).
(3) When under some circumstances it is by the leave of the Court. (Rule 9).
It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos.1 and 3 above. But penal consequences of "pronouncement of judgment against him when the defendant fails to file written statement when so required" as is indicated in item No2, above would follow.
As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule 3 which is similarly penal in nature.
Rule 10 is in two parts ---Like Rule 12, Rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike of the defence. "The matter being in the discretion of the Court the penalty should not be imposed without a compelling reason even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so.
Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was "required", by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word "required" is not without significance. It does not permit a routine order without application of mind to the "requirement" and/or the need. Therefore, it is essential that whenever a written statement is to be made subject to the penal rule 10, there should be proof on record that the Court had "required" it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications---..
Since application of mind on the part of the Court is held to be a sine qua non for attracting the penalty, in the case in hand there was no order passed by the Court (Tribunal) in that behalf.
Reliance was simply placed upon clause (3) of the notification calling upon the respondent to file written statement within seven days. The rule seems to expect of the respondent to file written statement in the routine without having been called upon specifically by the Tribunal after applying mind. On the basis of the interpretation expounded by Supreme Court, such a routine call for fling written statement stemming from a rule of procedure was not synonymous with the expression "required" by the Court. The respondent's failure to file the written statement could indeed be used as a trap which the Supreme Court had clearly cautioned against. For this reason too, I was not persuaded to penalize the respondent by trapping him in a technicality.
9. Receipt of notice by the respondent was denied but the denial was unavailing inasmuch as the petitioner possessed the Acknowledgment Due Receipts. The presumption was that those had been actually received by the respondent. Registered post was one of the modes adopted in section 53 of the Act and there was no reason to ignore it in the context of sending a copy of the petition by the petitioner to the respondent directly. Similarly, there was no forcein the argument that the receipt A.D. Did not necessarily establish that the petition was accompanied by annexes or, affidavits too. A presumption here as well will have to be drawn against the respondent. The respondent being a declared member of the National Assembly had on his back the mandate of highest number of voters in the constituency. Election is an exercise based upon a long, arduous, expensive and complicated procedure. Election petitions are proverbially said to be a luxurious litigation. It may not be the intent of the Legislature to help out of way a luxurious litigant vis-a-vis a member ostensibly enjoying mandate of the electorate. It would really be iniquitous, if not entirely unjust to deny him a right of being heard by gagging his mouth through a procedural rigmarole.
Procedure has invariably been styled to be a stepping stone rather than a stumbling block. Mrs. Dino Manekfi Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC f>93 (701) may be referred to.
Additionally in S.M. Ayub v. Syed Yusaf Shah etc. PLD 1967 SC 496, non-compliance with an obligatory rule or procedure requiring verification of documents attached with an election petition was held to be not fatal in spite of the fact that the relevant provision (section 56 (1) provides the consequence of dismissal of such petition. A priori if non-observance of a rule providing penalty could not bring about dismissal of the petition, how could clause (3) of the notification ibid without providing for any penal consequence in case of its non-compliance be stretched to the extent of wiping out the respondent's defence in toto. If the intention was to make failure of observing the timeframe of seven days penal act, it should have been explicitly indicated in the rule itself. Calling for penal action by cross--reference to section 64 of the Act and then Order VIII, rule 10 C.P.C. Was a very devious way which apparently was not intended by Legislature.
10. Last but not the least clause (3) of the notification does not explicitly require filing of the written statement of the respondent before the Election Commission. It does. Not speak of the forum.
Section 56 (1) authorises the Commission to dismiss the petition in case of non-compliance with certain provisions. In case the Commission chooses to dismiss a petition in the exercise of those powers, it will be idle to expect the respondent to have still filed a written statement within seven days of a notice sent to him, not by the Commission but by the petitioner. It will be realized that here strict adherence to riling the written statement within seven days would be totally fruitless in that the petition may have already been dismissed. The rule did not intend to impinge upon the respondent to file a written statement against a petition which might have already met its fate.
Secondly, calling upon a defendant or the respondent in this case to file written statement was something like a judicial function. The Legislature did not intend to assign this function to the Election Commission. It had of necessity to be left for the Tribunal and unless the Tribunal after considering the contents of the petition calls upon the respondent to meet them, there will be no penalty involved. Silence in clause (3) of the notification in regard to the Commission receiving the written statement, looked to be deliberate suggesting that it had to be filed before the Tribunal.
11. As a result, 1 overrule the objection raised by the petitioner and allow the respondent to file written statement by or before the 5th of July, 1989. It shall come up on the said date for further proceedings.
12. Announced in presence of Raja Muhammad Anwar, Advocate, for the petitioner and Mr. Rehan Nawaz, Advocate, for respondent No.1