MUHAMMAD SADIQ LEGHARI, J.- Petition Syed Jalal Mahmood Shah, one of the candidates having contended from Constituency PS-71 Dadu-I has challenged the Election in the constituency, on the ground that the relevant candidate procured the Election by adopting corrupt and illegal practices himself and through his supporters including District Nazim. He has also alleged the commission of illegal Acts by the Returning Officer and Polling Staff.
2. Respondent No. 1, the returned candidate, has filed his written statement. On 13.6.2003 petitioner filed his affidavit-in-evidence. As the affidavit was not filed together with the petition the learned Advocate representing the respondent No. 1 opposed its filing praying for dismissal of the petition for non-compliance of the relevant rules laid down in the Representation of Peoples Act, 1976 (hereinafter referred to as "the Act").
3. Arguments of learned counsel for the petitioner and the learned counsel for the respondent No. 1 heard.
4. Learned counsel appearing for the respondent No. 1 contended that for filing election petition the statute has fixed limitation of 45 days from the date of notification of the returned candidate and the affidavits of the witnesses are the essential component of the petition without which it is incomplete. According to him the affidavit-in-evidence filed after expiry of 45 days cannot be validly treated as part of the petition nor it can be used as evidence, In the last he submitted that the petition without affidavit-in-evidence is incomplete, therefore, liable to dismissal.
5. Petitioner's Iearned Advocate argued that the affidavit-in-evidence is not integral part of the petition. The requirement to file the affidavits of witnesses with the petition is procedural one non-compliance whereof does not justify the dismissal of petition as the relevant procedural provision is directory and not mandatory.
6. The first contention to be addressed is as to whether an affidavit-in-evidence is integral part of the Election Petition. For finding out the answer first of all the definition of Election petition is to be looked at. It is given in clause (xi) of Section 2 which reads as under:- "Election Petition" means a election Petition made under Section 52".
7. The above definition refers to Section 52 of the Act, which reads as under:- "Election petition: No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner).
(2) An election petition shall be presented to the Commissioner within (forty five days) of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour for the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees."
8. Section 53 of the Act relates to the presentation of the petition, therefore, is not relevant. Sections 54 and 55 of the Act, however, directly relate to the petition. The former speaks of the parties to the petition whereas the latter relates to the essential contents of the petition. For better understanding thereof both of the Sections are reproduced below:- "Section 54: Parties to the petitionThe petitioner shall join as respondents to his election petition:-
(a) all contesting candidates; and
(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition".
Explanation'.............................. Section 55: contents of petition:- (1) Every election petition shall contain:-
(a) A precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declaration, namely:-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition arid every scheduled or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings".
9. A careful reading of the three sections makes it clear that they relate directly to the election petition. Section 52 of the Act says that election .Can only be challenged by a candidate to that election and none else, It sub-section (2) gives the timeline for filing the petition and requires the.
Petition to be accompanied by a proof of deposit of Rs. 1000/- at any branch of National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petitioner.
10. Section 54 of the Act requires the petitioner to join as respondent to the election petition all the contesting candidates and any other candidate against whom any allegation of corrupt or illegal practice is made and directs him further to serve a copy of the petition upon each of the respondents personally or by registered post.
11. Section 55 of the Act relates to the contents of the petition including the prayer and verification of the petition and every schedule or annex thereto.
12. No where on the above three sections affidavit-in- evidence figures as part of the petition. It is only the procedure laid down by the Election Commission in exercise of powers conferred upon it by Section 62 of the Act for trial of the petition, which requires the affidavits of witnesses to accompany the election petition, In fact, the procedure is for trial of the petition after its presentation/institution with Secretary Election Commission of Pakistan, Islamabad. For further appreciation of the contention of respondent's learned Advocate, it will be proper to examine the clauses of the notification containing the procedure laid down by the Election Commission for trial of the election petitions. The notification is reproduced below:- "No. F. 1(7) 85-Cord. In pursuance of the powers conferred by sub-section (1) of Section 62 of the Representation of the Peoples Act, 1976, the Election Commission is pleased to lay down the following procedure for trial of election petition:-
(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, 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.
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 cross- examination all witnesses whose affidavits are filed with the petition for cross-examination on the first date of hearing before the Tribunal (and the trial of election petitions shall proceed on day-to-day basis).
(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 witness.
(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 are relief a declaration that the election of the returned candidate was not, on the nomination day, qualified for, or was disqualified frorq, being elected as a member, the Tribunal may decide the question of such qualification or disqualification 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."
13. The reading of clause (1) of the Notification gives clear impression that the election petition and the affidavits of the witnesses are two separate entities. It only requires the petitioner to file the affidavits of the witnesses and the petition both at the same time, It is to be seen as to whether the non-filing of the affidavits of witnesses together with the petition would be visited with the penalty of dismissal of the petition. The clause (1) and the other clauses of the Notification, when read together, show that the procedure laid down by the Election Commission for trial of election petitions is a mechanism for quick progress and early disposal of the petition. This procedure not only requires the petitioner to do certain things in a particular way but also carries certain directions for the Secretary Election Commission. Respondents and the Election Tribunal also, It gives the mode in which the Secretary Election Commission is required to process the petition presented to him and requires the respondents to file the written statement and affidavits of the witnesses within specified time, It also provides for production of the witnesses by the petitioner for cross-examination on the first date of hearing with direction to the Tribunal to proceed with the trial on day-to-day basis. However, the important and significant feature of this entire procedure is that it doe snot provide for any action on failure to do. An act. Thus, the procedural requirements for trial of the election petition exactly in accordance with the requirement or within the time fixed by the procedural provisions do not become illegal. For instance if the Tribunal cannot or does not proceed with the trial of the petition on day-to-day basis the proceedings after intervals will not become void. Also if any or some of the petitioner's witnesses cannot appear on the first hearing for any legitimate reason their cross-examination recorded afterwards will not become illegal.
Therefore, the non-filing of the affidavits of witnesses together With the petition would not be visited with extreme penalty of dismissal of the petition nor is there any legal hurdle in the way of receiving them as evidence after the institution of petition. Needless to stay that gross negligence and deliberate attempt to protract, the proceedings are definitely to be checked.
14. The result of above discussion is that the affidavit of petitioner filed after the institution of the petition dan be accepted as evidence. Consequently, the objection raised by respondent's Iearned Advocate is repelled and the affidavit taken on record as evidence i.e. Examination-in-chief.