1991CLC175 (PLP)

(c) Representation of the People Act (LXXXV of 1976)‑‑‑ ‑‑‑‑Ss. 3 & 52‑‑‑Election petition‑‑‑Power of Election Commission‑‑‑Election Commission, was not legally competent to extend statutory period provided by Notification for filing petition alongwith all necessary documents, list of witnesses and their affidavits. Muhammad Sardar Khan for Petitioner. Jehanzeb Rahim and Bashirullah Khan for Respondent No.1. In this petition under section 52 of the Representation of the People Act, 1976 election of Mian Muzaffar Shah (respondent No.l) as a Member of the National Assembly of Pakistan from Constituency NA‑4 Peshawar‑IV held on 16‑11‑1988 is challenged by Ihrar Khattak (petitioner) on the ground that the election of the respondent was procured by corrupt and illegal practice as detailed in the election petition. The allegations in the election petition were vehemently denied by the respondent in his written statement wherein preliminary objections as to competency of the election petition were also taken. On 7‑6‑1989, the following preliminary issues were framed with the consent of the learned counsel for the parties:‑ (1) Whether the affidavits of the witnesses have not been filed by the petitioner nor the same were provided to respondent No.l, if , so, its effect? (2) Whether the annexures attached to the election petition are not signed and verified, if so, its effect? Before a decision could be given on the preliminary issues, an application was submitted on behalf of the respondent for framing an additional preliminary issue which was opposed on behalf of the petitioner. For the reasons recorded in the order dated 17‑2‑1990 the application was allowed and the following additional preliminary issue was framed:‑ Whether the election petition is not in accordance with the provisions of the Representation of the People Act, 1976, if so, its effect? The arguments of the learned counsel for the parties were heard and my findings on the preliminary issues are as follows:‑ Preliminary issue No.2 is decided against the respondent for the reason that the annexures attached to the election petition do not make any additional allegation of substantive character nor do they furnish better particulars of the allegations made in the petition. Thus respectfully following the rule laid down in S.M. Ayub v. Syed Yusaf Shah and others (P L D 1967 SC 486) it is held that non‑ A verification of the annexures attached to the election 'petition, in the circumstances of the case, is not fatal to the election petition. Issue No.2 stands disposed of accordingly. Preliminary issue No.l and the additional preliminary issue are dealt with together. The contention on behalf of the respondent is that the petitioner had neither mentioned the names of his witnesses in the election petition nor filed their affidavits therewith and thus the petition having not been filed in accordance with the procedure prescribed under section 62 (1) of the Representation of the People Act, 1976, it has become liable to be dismissed. Reliance is placed on Notification No.F.l (7) 85‑Cord, dated 16‑3‑1985 issued by the Election. Commission pursuant to the powers conferred upon it by subsection (1) of section 62 of the Representation of the People Act, 1976 which lays down the procedure for trial of election petitions. Para‑1 of the notification provides that the election petition shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner. Para‑4 makes provision for production by the petitioner on the first date of hearing all such witnesses for cross‑examination, whose affidavits are filed with the petition. Reliance is placed by the learned counsel for the respondent on Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar (P L D 1986 Journal 160) wherein it was held that if the names of the witnesses are not mentioned in the election petition nor their affidavits are annexed therewith, they can neither be summoned nor examined unless required by the tribunal. It is clear that a special procedure has been framed by the Election Commission with regard to the summoning and examination of witnesses by the Election Tribunal which must be applied strictly. In a case reported from the Indian jurisdiction (1985 P S C 1208) it was held that by filing incorrect copies of the documents in disregard of the mandatory provisions of law, the petitioner takes the risk of the election petition being dismissed since it would amount to non‑compliance of the relevant provisions of section 81 (3) of the Representation of People Act (43 of 1951). In the case in hand the Notification declaring the result of the election was issued on 26‑11 1988. Under section 52 (2) of the Representation of the People Act, 1976, the election petition was to be filed within forty five days of the publication of the Notification. The election petition was sent by registered post on 5‑1‑1989 and received by the Election Commission on 7‑1‑1989. It is obvious that the election petition was filed within the specified period but it was not accompanied by the list of witnesses and their affidavits. The Election Commission accordingly called upon the petitioner by a telegram dated 9‑1‑1989 to comply with the requirement of law, with the result that the list of witnesses was furnished by the petitioner on 17‑1‑1989 which was again not accompanied by the affidavits of the witnesses nor any copy of the list of witnesses was provided to the respondent. It is, therefore, rightly contended on behalf of the respondent that neither the list of witnesses nor their affidavits were supplied to him before filing the election petition. It is not disputed on behalf of the petitioner that when the list of witnesses was submitted to the Election Commission beyond the period of limitation, it was not accompanied by affidavits of the witnesses nor any copy of the list of witnesses was supplied to the respondent. From the provisions of the Notification dated 16‑3‑1985 issued by the Election Commission of Pakistan in exercise of its powers under section 62 of the Act, it is obvious that every election petition shall not only be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner but also by an acknowledgement receipt from the respondent indicating that copy of the petition, documents and affidavits annexed thereto had been supplied to him meaning thereby that the respondent is C to be provided with a copy of the petition, documents on which the petitioner intends to rely, the names of the witnesses which he wants to examine and the substance of their evidence, before filing the election petition with the Secretary, Election Commission of Pakistan. The underlying idea behind this provision is that unless the requirement of clause (1) o.'` the Notification regarding supply of documents and affidavits of the witnesses of the petitioner to the respondent, is. complied with and he knows beforehand the documents which he has to meet and the names of the witnesses as well as substance of their evidence which he has to rebut, it will not be possible for him to put forward an effective defence to the election petition. In 1988 C L C 1289 it was held that clause (1) of the Notification is a mandatory provision which obliges the petitioner to supply documents affidavits of the witnesses desired to be produced and also to attach acknowledgement receipt from the respondent indicating that he had received not only the petition but also the documents and affidavits attached thereto and a petition which does not comply with this requirement of law is not maintainable. The contention on behalf of the petitioner, however, is that a strict view of the provisions of the Notification would not be taken ‑and they should be liberally construed for meeting the ends of justice. The learned counsel contends that the list of witnesses was supplied by the petitioner beyond the period of limitation under the direction of the Election Commission and, therefore, the period shall be deemed to have been extended. There is no force in this contention. The Election Commission was not legally competent to extend the statutory period provided by the Notification for filing the petition alongwith all necessary documents, list of witnesses and their affidavits. It is not disputed that no copy of l the list of witnesses was supplied to the respondent. Since the requirement of the procedure laid down in the‑Notification is of mandatory nature, the petitioner was bound to observe strict compliance thereof. The learned counsel for the petitioner in support of his. contention that an extreme view of the aforesaid provisions of the notification should not be taken placed reliance on P L D 1967 SC 486 and 1968 SCMR 1097. The principle laid down in the cited cases is, however, not attracted to the case in hand wherein the petitioner failed to comply with the mandatory provisions of the notification dated 16‑3‑1985. In the former case, with reference to the provisions of National and Provincial Assemblies (Elections) Act (VII of 1964), while interpreting section 67 (a) read with sections 59 and 72 thereof, it was held that the extreme view that even a single defect in the election petition in respect of one paragraph, would, under section 67 of the Act justify its being thrown out as a whole was erroneous because this construction would amount to reading into section 67, words that do not exist therein. The true construction of the said sections seems to be that if the petition, taken as a whole, fails to comply with the provisions of section 59, it shall be as dismissed as revealing no cause of action. In the latter case, it was ruled that the object of sending a copy of the petition to the contesting respondent under section 58 of the National and Provincial Assemblies (Elections) Act, 1964 could only be to give him advance information of the case he would be required to meet and since section 58 itself prescribed no point of time by which at the latest the copy must be served on the contesting respondent, it was held that in the circumstances a liberal interpretation of the provisions of this section would not be inapt as it would advance the cause of genuine dispute being decided on merits. In so far as the present case is concerned, the Notification issued by the Election Commission in exercise of its powers under section 62 of the Representation of the People Act, lays down the mandatory procedure for trial of election petitions. Clause (1) thereof provides that every election petition shall be accompanied by all such documents and affidavits of the witnesses as 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 had been supplied to the respondent. Needless to add that the petitioner is bound to submit the election petition alongwith the aforesaid documents within a period of forty‑five days of the publication of the result of the election under section 52 (2) of the Act. In 1986 M L D 2338 it was held that "It will be seen that in the first instance the petitioner had sent a bare copy of the petition to the contesting respondent and although he was asked by the Election Commission of Pakistan to furnish a list of witnesses which he intended to produce alongwith their sworn statements and did send the same to the Commotion yet respondent No.l was neither served personally with the same nor through registered post. In this view of the matter, prima facie breach of the provisions of section 54 and. the Notification dated 16‑3‑198$ is established on the part of the petitioner." In 1986 M L D 2707 it was held that on account of the petitioner's failure to annex documents and affidavits of the witnesses with the election petition in accordance with the procedure prescribed by the Commission under section 62 (1) of the Act, a valuable right has accrued to the contesting respondent. The contention of the learned counsel for the petitioner that he would produce only the official witnesses mentioned in the list also cannot prevail, for, the petitioner has acted in disregard of the express provisions of the procedure prescribed by the election petition under section 62 (1) of the Act and, therefore, he cannot be permitted to produce any witness in support of his case since the list of witnesses was filed beyond the period of limitation and no copy thereof was provided to respondent. In 1987 M L D 1309 the election petition was dismissed because the election petition was not signed by the petitioner in the manner laid down in the Code of Civil Procedure, 1908. It was held that the Election Tribunal could dismiss an election petition if the provisions of sections 54 and 55 of the Act have not been complied with. The petitioner in the said case not only did not sign the petition as required by law but wilfully failed to take any step to rectify the omission. For the aforesaid reasons, both the preliminary issues (preliminary issue No.l and additional preliminary issue) are decided against the petitioner, with the result that the election petition fails which is hereby dismissed. In the circumstances of the case, there shall be no order as to costs. H.B.T./49/E Petition dismissed.