' CH. MUSHTAQ AHMAD KHAN, J.---Through this Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Sheikh Rashid Ahmad, petitioner has called in question, the order dated 15-12-1992, whereby the learned Election Tribunal respondent herein during the trial of an election petition filed by the respondent against the petitioner, has allowed the application of the respondent No,2, to summon certain witnesses through Court.
2. Facts of the case out of which this Constitutional petition has arisen are that the petitioner and respondent No,2 alongwith certain other persons, contested the election for the seat of National Assembly of Pakistan from Constituency No,38 Rawalpindi in the General Elections held in 1988. The petitioner was declared elected. The respondent No,2 filed an election petition to challenge the aforementioned election which petition is being heard by the learned Election Tribunal, comprising of his Lordship Mian Nazir Akhtar Judge, Lahore High Court, Lahore. During the pendency of the proceedings, in the election petition which is being contested by the petitioner, an application was filed by the respondent No,2 under the provisions of section 64/65 of the Representation of the People Act, 1976 read with rule 5 and section 165 of the Evidence Act, seeking permission to summon the witnesses named in the list appended to the said application through Court. This application was contested by the petitioner. Learned Election Tribunal vide order, dated 15-12-1992, accepted the application, allowed the summoning of the witnesses mentioned at Serials Nos.1 to 12 of the list. Operative part of the order passed by the Election Tribunal is reproduced as under:--- "Therefore, I allow this application for summoning witnesses mentioned at Serials Nos.1 to 12 alongwith the relevant record (pertaining to the publication of advertisements, posters and handbills etc. Of respondent No,1 and the receipts regarding payment made by respondent No,1). It is clarified that wherever the witness shown in the list is the printer or the Printing Press, the Manager or the record-keeper concerned be summoned for evidence. For the time being witnesses mentioned at Serial Nos.1 to 5 be summoned to appear before the Tribunal alongwith the relevant record on the next date of hearing. Necessary expenses for the witnesses shall be deposited by the petitioner within 7 days. To come up on 1-2-1993 at Rawalpindi."
' This order has been challenged through this Constitutional petition.
3. Mr. Shamim Wahid, Advocate has appeared on behalf of the petitioner. None has appeared on behalf of the respondent No,1 whereas respondent No,2 has appeared in person.
4. In support of this writ petition, learned counsel for the petitioner has raised the following contentions:--- ' That as per procedure prescribed by the Chief Election Commissioner for trial of the election petition, the names of the witnesses to be produced by the petitioner have to be mentioned in the election petition and their affidavits have also to be appended therewith and the witnesses whose names are not mentioned in the election petition and their affidavits are not appended therewith, the Election Tribunal has no jurisdiction to allow the production of these witnesses.
(ii) That the witnesses sought to be produced by the petitioner are not official witnesses therefore, the Election Tribunal has no jurisdiction to summon them through process of the Court as it is the official witnesses alone who can be summoned through Court as per paragraph No,5 of the procedure prescribed by the Election Commission in this behalf.
(iii) That in view of the special procedure provided by the "Election Commission" for trial of the election petition, the general principles of the Code of Civil Procedure are not applicable, and the procedure being mandatory in nature, and there being no power vesting in the Election Tribunal to allow the summoning of the private persons as witnesses through Court, the impugend order is illegal and is without a lawful authority.
(iv) That at any rate, there was not sufficient ground to allow the summoning of the witnesses through process of the Court inasmuch as the respondent No,2 had been negligent and had not mentioned the names of the witnesses in the application petition and had also not filed their affidavits alongwith the petition.
5. Elaborating his arguments, learned counsel contends that the witnesses which are sought to be summoned through Court are not official witnesses, as according to the learned counsel, it is only the Government employees who can be described as "official witnesses" and not employees of private concerns or other private persons. In support of his argument, learned counsel has placed reliance on law declared in the following cases. Cases of Manzoorul Haq v. Controlling Authority, Local Councils, Montgomery PLD 1963 SC 652 and Muhammad Zaheer Nadeem v. The State PLD 1960 SC 50 and definition of the word "official" as given in Iyer's Dictionary at page 728. Learned counsel further placing reliance on cases of M/s. National Motors Ltd. v. Muslim Commercial Bank Limited 1993 CLC 923 and Abdul Hayee v. Mir Yar Muhammad Rind 1993 CLC 1090 has contended that the application of C.P.C. Is excluded in procedural matters as under section 62 of the Representation of the People Act, 1976, special procedure has to be laid down by the Election Commission for trial of the election petition which has been prescribed, therefore, in spite of fact that under section 64 of the Act, the Tribunal has all the powers of Civil Court for trying the suit under the C.P.C., it will not be open for the Election Tribunal to allow the production of evidence, coerced by the special procedure laid down by the Election Commission. Hence, the impugned order which amounts to allowing the respondent No,2 to fill up lacunas in evidence is clearly illegal and is not sustainable in law. In support of this argument, learned counsel has placed reliance on law declared in the following case. Case of Muhammad Ashraf v. Zafar Mahmood alias Master Khaki Zaman and others PLD 1967 Lah.
1045. Regarding the maintainability of the writ petition, learned counsel has contended that even the interim order is challengeable in the writ jurisdiction of this Court and, therefore, the writ petition is competent in view of the fact that the impugned order is illegal and without lawful authority. In support of his contentions on this point, learned counsel has placed reliance on the following cases. Case of Amir Ali v. Additional District Judge, etc. 1989 MLD 32 and Sufi Noor Muhammad v.
Election Tribunal PLD 1989 Lah.
34.
6. As against the above arguments addressed by the learned counsel for the petitioner, respondent No,2 has vehemently argued that the special procedure provided by the Election Commission of Pakistan does authorize the Election Tribunal to allow the production of additional evidence and there is absolutely no bar on the power of the learned Election Tribunal to allow the summoning of the witnesses through Court, no matter whether they are official or private witnesses. Learned counsel referred to the section 64 of the Representation of the People Act, 1976 and has argued that the Election Tribunal has got all the powers of the Civil Court while trying an election petition and therefore there being no specific prohibition against the powers of the Election Tribunal to direct the summoning of the witnesses through Court, it cannot be said that the impugned order is illegal and is without lawful authority. It is further contended that all the procedures are meant for the advancement of cause of justice and cannot be used as trap and hence as a vehicle of oppression against a litigant. According to the respondent official witnesses sought to be summoned through Court is not within the power of the respondent, therefore, the only course open to the respondent No,2 was to have approached the learned Election Tribunal for producing his witnesses with the aid of the learned Court who had ample power to direct the summoning of the witnesses through Court even under the special procedure provided by the Election Commission. Learned counsel contends that the witnesses are official witnesses in the ordinary dictionary meanings of the word `official' and the cases cited by the learned counsel for the petitioner are distinguishable on facts.
' Regarding the maintainability of the writ petition, learned counsel has vehemently contended that the impugned order being interim in nature, is not liable to be interfered with in exercise of the writ jurisdiction of this Court inasmuch as in case of ultimate decision being rendered against the petitioner, he can challenge the interim orders also while filing appeal before the Supreme Court of Pakistan as per provision of section 67(3) of the Representation of the People Act, 1976. It is further contended that even the impugned order could have been challenged in appeal before the Hon'ble Supreme Court of Pakistan and, therefore, adequate alternate remedy being available to the petitioner, this Constitutional petition is liable to be dismissed on this short ground.
6-A. We have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Election petition filed by the respondent No,2 is admittedly pending adjudication before the Election Tribunal who has the jurisdiction to decide the same in accordance with the provisions of law. The case is yet at evidence stage of the respondent No,2 who is the election petitioner. He applied to the Election Tribunal well in time for summoning of the witnesses through Court. Learned Election Tribunal has power to allow the production of witnesses even if their names are not mentioned in the petition and they are not official witnesses as is clear from paragraph No,6 of the Notification No, F.1(7)185 which prescribes the procedure for decision of the election petition, which Notification is reproduced hereunder:--- ' No, F.1(7V85-Cord.---In pursuance of the powers conferred by subsection (1) of section 62 of the Representation of the People Act, 1976, the Election Commission is pleased to lay down the following procedure for trial of election petitions:---
(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block 'S', 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 alongwith 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.
(2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly. If the petition is found to be in order, the Secretary shall fix the date of hearing.
' Notice of the date published through the Press, radio and television shall be deemed, to be a valid notice and no personal notice shall be necessary unless the Tribunal feels necessary to do so.
(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.
(4) The petitioner shall make available for cress-examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the Tribunal.
(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 witnesses.
(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal.
(7) Where the election petition claims as relief a declaration that the election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member, the Tribunal may decide the question of such qualification or disqualification as a prequalification as a preliminary issue.
(8) The Tribunal may make a memorandum of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full.
(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.
(10)The Tribunal may pending the final disposal of the petition, grant such interim relief as it may deem fit.
' By order of the Election Commission. (Sd.) M.M. KAZIM, Secretary.
7. A perusal of paragraph No,6 of the Notification clearly shows that the Election Tribunal can examine a witness if it is required by it. There is no specific prohibition in this Notification to grant permission to summon the witness through Court who cannot be produced by party himself. The only prohibition in the said notification is contained in paragraph No,9 which provides that the Election Tribunal can 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. In the case in hand prayer for the production of the witnesses before the Election Tribunal has been made by the election petitioner himself, therefore, it cannot be presumed that he has filed this B application for delaying the decision of the matter.
The evidence is yet to be recorded and the Election Tribunal shall havt the jurisdiction to refuse to record the evidence of the witnesses if it comes to the conclusion that the statement is vexatious.
The Election Tribunal has all the powers of Civil Court while trying an election petition as per provision of section 64 of the Representation of the People Act, 1976, consequently, it cannot be said that the Election Tribunal did not possess jurisdiction to pass the impugned order. It is an established principle of law that all procedures are meant for advancement of cause of justice and not for the purpose of entrapping a litigant or to punish him. It has been held in case of Allah Ditta v. Barkat All and 3 others (1992 SCMR 1974) that proper place of procedure in any system of administration of justice would be to help and not to thwart the grant, to the people of their rights. It is further stated that all the technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which gives effect to the form and not the substance, has the tendency to defeat substantive rights and to that extent would be defective. Ideal must always be a system that would give to every person what is his. In case of Noorul Amin and another v. Muhammad Hussain and others (1992 SCMR 1744) it has been held that procedural laws are meant for advancing the cause of justice and cannot be made a vehicle of oppression to suppress the remedies. Similarly, in case of Mirza All Khan v. Mst. Shahida Parveen and others (1993 SCMR 2112) where the proceedings have been initiated by the plaintiff on the basis of application filed in 1983 but the address was not filed alongwith the plaint and the question that arose was whether such technical defect could have been allowed to be corrected their Lordships of the Supreme Court of Pakistan have held that proper course for trial Court was to have allowed defendant to furnish his address inasmuch as provision for furnishing address of the party was meant to avoid delay in disposal of suit but same could not be pressed into service to frustrate the real intention for early disposal of suit. Similary, in case of Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 it has been held that procedure cannot be allowed to stand in the way of administration of justice. In case of Fazle Ghafoor v. Chairman, Tribunal Land Disputes (1993 SCMR 1073) it has been held that while interpreting the laws, the principles of Islamic common law are to be followed which principles enjoin upon the Courts a duty to discover the truth, as held in case of Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 at page 155, of the report as under:-- "That similarly the Court while acting under section 540, Cr.P.C. As also under section 165, Evidence Act, has to remain vigilant and should actively participate in the proceedings and should prevent any party taking undue advantage of the simplicity of the other or of mere technicalities and that this interpretation of these provisions is in accord with Islamic philosophy and jurisprudence."
' In case of Ch. Akbar Ali v. Secretary Ministry of Defence, Rawalpindi (1991 SCMR 2114) at page 2116 of the report, it has been held as under: - ' Before closing this order it is necessary to reproduce the concluding part of the order of this Court passed against petitioner in Civil Petition No,96-R of 1977. It reads as foil .Vs:- "In this petition before us the petitioner attempted to advance all these contentions in support of his petition. But on going through the record we find that on the merits of the charge against him he has no satisfactory explanation to offer. He appears to have remained absent from service without permission from 23rd December, 1972 to 19th January, 1973 from 13th March to 17th March from 28h June to 14th July, 1973 and since 3rd of August 1973. He was also habitually late and most irregular in attending his office. He was found to be disobedient in complying with the lawful orders issued by his superiors. In the circumstances we are of the considered opinion that there are no equities in favour of the petitioner. It appears from the facts of this case that substantial justice has been done between the parties and we are not inclined to interfere with the impugned order gassed bathe tribunal on technical consideration advanced by the petitioner. This petition is therefore liable to be dimissed on this short ground and we order accordingly."
(Underlining is ours)
' This Court has emphasized the vigilance to be exercised by the Courts and forums of law so as not to be duped by the interplay of technicalities which do not go to the root of the case in so far as the dictates of substantial justice are concerned. Since the introduction of Islamic Law and jurisprudence in our Constitutional set up including the Objectives Reslutions enacted by the first Constituent Assembly in 1949, the emphasis on real substantial justice has increased manifold. So much so that although it is not enshrined in he Constitution as a fundamental right, in the entire Constitutional set up mentioned above, the right to obtain justice as is ordained by Islam, has become inviolable right of citizens of Pakistan."
' In case of Master Musa Khan and 3 others v. Abdul Hague and another (1993 SCMR 1304) at page 1306 of the report it has been held as under:-- "It is an admitted position that the appellant's suit stands dismissed till the present stage on account of its dismissal for non-prosecution and further on account of the dismissal of the application for restoration. The Board of Revenue in its revisional jurisdiction while setting aside the appellate order of the Additional Commissioner no doubt had taken into account some technical/legal features which were helpful to the appellants in so far as the restoration of the suit is concerned. But in pith and substance there was one underlying reason of merit as well in so far as the order of remand is concerned. It is that, the appellants' case had not been heard and decided on merits. It is one of the cardinal principles that so long as substantial justice can be done and there is no serious technical or legal impediment, the decision of controversies on merits stands at a much higher level than the disposal on the basis of legal technicalities and technical bars."
Therefore, considering the case from all the angles in the light of law declared in the aforementioned cases, it cannot be said that merely because the names of the witnesses were not mentioned in the election petition, their affidavits were not appended therewith and they are not Government officials hence, the tribunal could not have allowed the summoning of those witnesses through Court on the basis of a procedural notification issued by the Election Commission of Pakistan, is mandatory in nature, is not sufficient ground to hold that the impugned order is illegal and is without lawful authority. We accordingly hold that the order passed by the Election Tribunal is quite lawful, just and is in accord with the principles of Islamic Common Law of administration of justice. Witnesses to be summoned are held to be official witnesses as per ordinary dictionary meanings of the word 'official'.
8. The writ petition has been filed against an interim order. As per provision of section 67 of the Representation of the People Act, 1976, any decision of the Election Tribunal is appealable to the Supreme Court. The word 'decision' has been used in section 67 of the Representations of the People Act, 1976 and it does not always refer to a final order. It shall also include an interim order.
The petitioner if aggrieved by the order could have, hence filed an appeal before the Supreme Court of Pakistan and at any rate in case the ultimate final order is passed against him, he shall be entitled to challenge the interim impugned order in that appeal, in view of the established legal position to the effect that while challenging final order, the interim orders are also challengeable.
Hence, writ petition against the interim order cannot be entertained as it will tend to delay the disposal of main case which is an election petition and is to be decided within a specified period of time expeditiously. It has been held in cases of Ibrahim v. Muhammad Hussain PLD 1975 SC 457, Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Karachi 290, Allah Yar Khan v. Mst.
Sardar Bibi and others (1986 SCMR 1957) and Mushtaq Hussain Bokhari v. The State (1991 SCMR 2136), that interim orders are not amenable to the exercise of the writ jurisdiction of this Court inasmuch as entertainment of writ in such like cases delays the decision of main cases wherein the interim orders have been passed. The judgments cited by the learned counsel for the petitioner are distinguishable of facts hence, are not of help to him.
' Resultantly, we find no force in this writ petition, hence, is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.