1995 PLP 382 (CLC)

6. In order to appreciate the contentions of the earned counsel for the parties, it is necessary to reproduce the notification issued by the Election Commission of Pakistan on 16‑3‑1985, which is as follows:‑‑ "No. F. 1(7)/85 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 petition:‑‑ (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 along with 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 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 7 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 the election petition 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 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 pre qualification as 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 a special reason for taking down' the evidence of any witness in full. (9) The Tribunal refuses 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."

7. 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 to 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. '

8. It is also doubtful whether in the absence of any provision in the . Representation of the People Act, 1976 the Election Commission could by a notification require the Tribunal to dismiss the petition for a defect which may be totally formal not effecting the merits. This conclusion stands fortified from the fact that whether the Legislature itself wanted that non‑compliance of a procedural provision regarding filing of an election petition must result in dismissal of the election petition. Reference in this connez=tion may be made to section 63 of the Representation of the People Act, 1976 which ordains that the Tribunal shall dismiss the election petition if the provisions of sections 54 and 55 have not been complied with or if the petitioner fails to make deposit required under subsection (4) of section 62 of the Representation of the People Act, 1976. A reference to . section 54 enumerates, the parties to be impleaded in the election petition while section 55 states that an election petition shall contain a precise statement of material facts, full particulars of any correct or illegal practices including a full statement and the relief claimed by the petitioner. Subsection (3) of this section requires that the election petition has to be signed and verified in the manner laid down in the C.P.C. In the event of non‑compliance with the provisions of sections 54 and 55, it may perhaps with some force be argued that as the law itself in section 63 provides for the consequences of non‑compliance of the two aforesaid provisions, the Tribunal has no option but to dismiss the election petition and cannot allow the defect to be remedied. It is not necessary to render any final opinion on this aspect of the matter as it does not arise in the present case and these provisions have been cited only in order to point out the distinction between the provisions of sections 54; 55 and 63 of the Representation of the People Act, 1976 and the procedure laid down in the notification issued by the Election Commission. Indeed in one of the cases namely E.P. No. 9/93, titled Ijaz Cheema v. Syed Iftikhar etc. a learned Tribunal had observed as under:‑‑ "Reverting to the question of non‑compliance of the requirements of paragraphs 1, 4 and 6 of the procedure laid down by the Election Commission through Notification dated 16‑3‑1985, it may be mentioned at the very outset that section 63 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 departmental instructions. The law requires that penal provisions of the statute should be construed strictly and if any of the conditions is not fulfilled as laid down in such provisions of law the same should not be applied. Section 63 provides that an election petition can be dismissed only if the provisions of section 54 or .section 55 have not been complied with or the petitioner fails to make further deposit required under subsection (4) of section 62 and it does not speak of any non‑compliance of the procedure laid down by the Election Commission as a ground for rejection of the election petition. According to the section 55, which defines the expression election petition it only means a document containing a precise statement of the material facts on which the petitioner relies which also include full particulars of any corrupt or illegal practice etc. and the relief claimed. It. does not bring within its ambit the documents attached with the election petition, the list of witnesses and other material of which mention has been made in the Notification dated 16‑3‑1985, issued by the Election Commission. Under section 63 an election petition could only be rejected summarily if the same was violative of the provisions of sections 53, 54 and 55 and not the rule of .procedure laid down by the Commission through notification. Even if the said rule of procedure itself had provided for rejection of an election petition for non‑compliance of any of its clauses the same would have been ultra vires of section 53 and could not be given effect to."

9. It may be mentioned that although section 61 permits the Election Commission to lay down the procedure for the trial of election petition but subsection (3) of section 62 allows the Election Tribunal to allow the amendment of the petition in any manner as it may deem fit for ensuring fair and effective trial and for determining the real question at issue provided, however, that no new ground of challenge to the election can be permitted in the election petition., It is also to be seen that although section 63 provides that an election petition can be dismissed in certain eventuality specifically refer to subsection (4) of section 62 but conspicuously makes in no reference to sub?section (1) which clearly shows that the extreme penalty of dismissing the election petition cannot be imposed in case there is some violation of the 8 procedure laid down by the Election Commission. The view which I have taken is fully supported by the judgment of my leaned brother Tanvir Ahmad Khan, J. in Haji Mian Aziz ur Rehman Chan v. Mian Abbas Sharif and another (1994 MLD 2293) whose reasonings I respectfully follow and adopt. It may also be mentioned that the requirement that the election petition shall be accompanied by the affidavits of witnesses is affirmative language and on the well‑accepted principle of interpretation such a provision is generally understood to be directory and not mandatory especially when penal consequences for non?compliance are provided. (See Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others (PLD 1971 SC 61). Reference may also be made to Abdul Aziz Khan v. Abdur Rehman and others (PLD 1985 Lah. 203) and Muhammad Zaman v. Syed Abdur Rehman and another (1984 CLC 1326).

10. So far as the precedent relied upon by the learned counsel for the respondent are concerned, with great respect to the Tribunals deciding those cases, it may be stated that they did not note the difference between the language of section 63(1) of the Representation of the People Act, 1976 and the notification issued by the Election Commission of Pakistan. My learned brother Tanvir Ahmed Khan, J. has relied upon the observations of B.Z. Kakaus, J. in the case of Imtiaz Ahmad v. Ghulam Ali etc. (PLD 1963 SC 382) that the proper place of every procedure was to help in administration of justice and the technicalities cannot be made a vehicle of operation so as to defeat and deny the relief. Reference may also be made to the observations of the Supreme Court of Pakistan in the famous case of S.M. Ayub v. Syed Yusuf Shah and others (PLD 1967 SC 486) in which it was observed that:‑‑ "??.. The Act provides the machinery for redress in cases where an election is vitiated by resort to corrupt or illegal practice or to some other illegalities, of course, subject to the technical restrictions imposed by the provisions of the Act, as regards the form of the petitions, its contents and the procedure applicable to it. The provisions of section 67 of the Act should receive a reasonable interpretation such as would advance the cause of adjudication of the substantial dispute between the parties, falling within the purview of the Act, rather than shut out the decision of even genuine cases. We are disposed to hold, therefore, that the extreme view which found favour in the High Court as to the construction of section 67 is erroneous????."

11. Be that as it may, the present case stands on a footing different from that in the cases relied upon by the learned counsel for the respondent for in none of those cases any effort was made by the petitioner to remove the defect while in the present case an application was filed at an early stage so as to remove the formal defect. Furthermore, keeping in view the fact that in the election petition itself the names of the witnesses and the crux of the matter to be deposed by them have been specifically mentioned it can be argued with success that there has been substantial compliance of the instructions issued by the Election Commission. For the foregoing reasons this application was found to be without any force and was dismissed. AA./128/E?????????????????????????????????????????????????????? ?????????? Application dismissed.