Dr. A Basit, Advocate for respondent No.6 in written reply to the election petition raises a preliminary objection in Para. No.5 that no list of witnesses was attached, gist of their evidence was not provided and their affidavits were also not appended as required by law at the time of filing the election petition before the Election Commission, therefore, the same is liable to be dismissed as not maintainable, without going into merits of the petition. In support of his arguments, he has relied upon Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289, Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766 judgments of Election Tribunals Punjab and Baluchistan.
2. Conversely, Mr. Shehzad Shaukat, Advocate for the petitioner submits that the election petition is maintainable although the requisite affidavits, list of the witnesses and the gist of their evidence were not attached with the election petition at the relevant time. He further submits that while filing rejoinder the said deficiency, has been made up. He has argued that aforesaid requirement of law is directory in nature and not mandatory. The failure on the part of the petitioner to append the required documents with the petition at the time of filing the same, does not entail the penalty of its dismissal and in this connection he has relied upon Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382, Peter John Sahotra v. The Returning Officer and 24 others 1995 CLC 394 and Haji Mian Aziz-ur-Rehman's Chan v. Mian Abbas Sharif and another 1994 M LD 2293.
3. I have heard the learned counsel for the parties at length and gone through the judgments referred to above, in detail. The decisions of the Election Tribunals in the aforecited cases are in conflict with each other. The moot question for determination is whether the provisions of Notification No.F-1(7)/85-Cord, dated 16-3-1985 requiring the petitioner to append with the petition list of the witnesses desired to be produced by him alongwith their affidavit and gist of their evidence, is mandatory or only a directory in nature. In Zafar Haraj Case 1988 CLC 1289 it has been held as mandatory. In Mir Tariq Khetran's case it has been laid down that, "the condition laid down .For filing affidavits of witnesses appears to be absolute in its nature and no departure can be allowed. No hard or fast rule of universal application can be laid down for determining mandatory or directory character of particular statute. However, when provisions are found to be absolute, strict compliance is necessarily called for". It was further observed "that notification specifying procedure for filing petition clearly creates an obligation upon the petitioner to file affidavits alongwith petition, thus, any contravention therefrom would not be lightly ignored". The petition was consequently dismissed as non-maintainable.
4. In Peter John Sahotra case it has been held that election petition when not in accordance with the procedure prescribed by the Election Commission would not be entertained. It was further held that election petition should be presented to Election Commission complete in every respect in accordance with law and procedure so that Election Tribunal could straightaway proceed with the trial. The Tribunal, ho ever, observed that the petition having been entertained by the election Commission in spite of non-observance of the procedure, such a question cannot be raised at a belated stage:
5. In the case of Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382, Election Tribunal Lahore, has laid down that:-- "Although it is correct that according to the procedure laid down by the Election Commission of Pakistan in its notification, dated 16-3-1985 issued under section 62(1) of the Representation of the People Act, 1976, an election petition should be accompanied by the documents and affidavits of witnesses of which copies should be delivered to the other side but there is nothing in the Notification requiring the tribunal to dismiss the election petition in case of non-compliance with the said procedure. Para. 2 of the notification requires the Secretary, Election Commission not to entertain the election petition, if while processing it, it is found to be not in accordance with the instructions contained in the notification. He is further required to inform the petitioner of the defect. The idea obviously being that the petitioner should be called upon to remove the defect and make up the deficiency. Once, however, the matter has been referred by the Election Commission of Pakistan to the Election Tribunal, it cannot reject the election petition, on the ground of non-compliance with the instructions contained in the aforesaid notification."
Almost the same view was expressed by my learned brother, Tanvir Ahmed Khan, J. In Haji Mian Azizur Rehman's Chan case 1994 M LD 2293. The relevant portion of his judgment is reproduced hereunder: -- "Taking into consideration the non-verification of the list of witnesses or the affidavits and the National Identity Cards of the persons who have deposed through these questioned affidavits would not be material. These affidavits are not of a nature as either making additional allegation of a substantive character against the applicant or giving some better particulars of the allegations made in this petition. They are merely in support of the contentions/allegation levelled in the election petition that the election at the disputed polling stations were held under disturbed situation. These affidavits do not independently furnish any allegation. They have to be read in juxtaposition of the election petition particulars whereof are given in the election petition. Similarly, the non-verification of the list of witnesses can also not be visited with the penalty of the dismissal of the election petition. The petitioner has given the names of those persons as witnesses in the list whose affidavits have either been appended alongwith their National Identity Cards to support the contentions raised in the election petition or of some other officials who were instrumental in the holding. Of the election. The non-verification of the list of witness, in the circumstances, cannot be visited with the dismissal of the election petition. The last ground that the, petition has been verified not at the foot but on the succeeding page is too hypertechnical to be accepted. The verification is always done at the conclusion of the pleadings and merely because there was no space on the last page of the petition, the verification made on the succeeding page would not be violative of any provisions of law, As far as the non-compliance of the procedure laid down by the Election Commission, through notification, dated 16th of March, 1985 in concerned, nothing has been said much. Even otherwise section 63 of the Act does not envisage summary rejection or dismissal of the election petition for non-compliance of any rule or the procedure laid down by the Election Commission through notification which is in the nature of the departmental instructions."
6. In order to determine the effect of failure on the part of the petitioner to append the names of the witnesses desired to be produced by him during trial of the petition and the gist of their depositions as required by notification referred above, a perusal of section 53 of the Representation of the People Act (No.LXXXV of 1976) is necessary. It provides:-- "(1) An .Election petition shall be presented by a petitioner and shall be deemed to have been presented:--
(a) When it is delivered in person to the Secretary to the Commission or to such other Officer as may be appointed by the Commission in that behalf,
(i) by the petitioner; or
(ii) by a person authorised in writing in this behalf by the petitioner; or
(b) when delivered by registered post to Secretary to the Commission onto such other officer as aforesaid.
(2) An election petition, if sent by registered post shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52. "
Section 54 relates parties of petition whereas section 55 deals with contents of petition.
Section 56 provides the procedure on receipt of petition by the Commissioner. It lays down:--
(1) Ifthe Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall t be dismissed forthwith.
(2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal. "
7. The instant petition was found in order by the Election Commissioner and was sent to Tribunal under subsection (2) of section 56 for trial. The dismissal of the petition on account of failure on the part of the petitioner to append the aforestated documents with his petition at the time of filing the same, at the stage, would be an extreme penalty not envisaged by sections 53 to 56. It was the duty of the Election Commissioner to scrutinize the petition and if it was found deficient in any respect, notice should have been given to the petitioner for making up the same. No such notice was issued to the petitioner by the Election Commissioner. The petition was found in order and referred to this Tribunal for trial. Non-compliance of Notification is merely a procedural omission and not a mandatory in nature. The dismissal of petition at preliminary stage of trial is provided under section 63 which reads as under:-- "The Tribunal shall dismiss an election petition, if:------
(a) the provisions of section 54 or section 55 have not been complied with; or
(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62. "
For the aforegoing reasons, the preliminary objection of respondent No.6 for dismissal of the election petition being not maintainable, is hereby overruled.
Now the election petition shall come up on 9-12-1998 for evidence of the petitioner.