1984 PLP 1326 (CLC)

‑‑R. 8 (1) read with sub‑cl. (aa) and (d) of provisos to r. 8 Provisional Constitution Order (1 of 1981), Art. 9‑Election Petition ‑Procedure for trial ‑Witnesses present before Tribunal‑Tri bunal, held, has jurisdiction to record their evidence and no objection can be raised thereto‑Provisions of r. 8 (1), sub‑cl. (aa) & (d), held further, are ex facie discretionary and directory‑Sub‑rule (1) of rule 8 laying down that procedure for trial of an election petition shall be as under Civil Procedure Code, 1908 contention that witnesses not summoned within three days of framing issues, recording of their evidence by Tribunal without jurisdiction, held, has no merit. Ghalam Murtaza v, Muhammad Ilyas P L D 1980 Lab. 495 rel. ABDUL SHAKURUL SALAM, J.‑The petitioner is a respondent in an election petition pending before the learned Election Tribunal, Khusbab. Issues were framed on 7th January, 1984. The respondent applied for the summoning of the witnesses on 15th January, 1984. They were in attendance on 28th February, 1984 when the present petitioner objected to the recording of their evidence on the ground that the witnesses had not been summoned within three days of the framing of the issues and thereafter the Tribunal had no jurisdiction to record their evidence. The applica tion was rejected by order, dated 28th February, 1984. Hence, this petition.

2. Learned counsel for the petitioner has read sub‑clauses (aa) and (d) of the provisos to rule 8 of the Election Petitions Rules, 1979 which are to the following effect :‑‑ Provided Tribunal may‑ (aa) require the parties to file within 15 days of the date on which the case is fixed for evidence, a list of witnesses whom they propose to produce to give evidence or to produce documents, mentioning against the name of each witness a precise of the evidence that each witness is expected to give. (d) refuse to issue any summons for the appearance of any witness unless, within 3 days following the date on which the parties are called upon to produce their evidence, any party intimates the Tribunal that it desires a witness to be summoned through the Tribunal and the Tribunal is satisfied that it is not possible or practicable for such party to produce the evidence. Learned counsel contends that since the application for summoning of the witnesses was not made within three days and there is nothing to suggest that the Tribunal was satisfied that the witnesses should be summoned through the Court, the Tribunal had no jurisdiction to entertain the applica tion for summoning of the witnesses filed on 15th January, 1984 when the issues had been framed on 7th January, 1984.

3. The contention has no force whatsoever. The provisions relied upon are ex facie discretionary and directory. Main sub rule (1) of rule 8 lays down that procedure for trial of an election petition shall be as under Civil Procedure Code. In a Full Bench judgment of this Court reported as Ghulam Muriaza v. Muhammad Ilyas (P L D 1980 Lah. 495) it was laid down that when witnesses are in attendance‑notwithstanding that they had not been summoned, their evidence can be recorded by a Court or a Tribunal. When the witnesses were present before the Tribunal it was quite competent to record their evidence and objection thereto was right rejected.

4. For the foregoing reasons this petition is dismissed in limine. M. Y. H. Petition dismissed.