P L D 1966 (W (PLP)

9. Chapter XX of the Criminal Procedure Cede prescribes the procedure for the trial of summons‑cases. Section 244(1) shorn of the proviso is in the following terms:‑ "If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence" It will be noticed that the subsection enjoins on the Magistrate (1) to hear the complainant (if any), and (2) to take all such evidence. The words used are to "take all such evidence" which may be produced by the prosecution and the accused.

10. Chapter XXI of the Criminal Procedure Code prescribe the procedure for trial of warrant‑cases. Subsection (1) of section 252, Cr. P. C. again uses the words "and take all such evidence as may be produced in support of the prosecution". In section 253 (1), the words "taking all the evidence" have been used. In section 254, the word "taken" has been used in the following context:‑

"If, when such evidence and examination have been taken and made.‑". In section 255‑A, the words "take evidence in respect of the alleged previous conviction" have been used. In section 256 (1), again the words "the evidence of any remaining witnesses for the prosecution shall be taken" have been used.

11. Chapter XXII of the Criminal Procedure Code prescribes the procedure for summary trials. Section 262 (1) states:‑

"In trials under this Chapter, the procedure prescribed for summons‑cases shall be followed in summons‑cases, and the procedure prescribed for warrant‑cases shall be followed in warrant‑cases, except as hereinafter mentioned." The other important provisions in this Chapter are sections ''63 and

264. In section 263, for the first time the words "record the evidence of the witnesses" have been used. Under this section, the Magistrates in cases where no appeal lies have been empowered "Not to record the evidence of the witnesses", but they are enjoined to "enter in such form as the Provincial Government may direct", the following particulars :‑ "Section 263 (h).‑The finding, and, in the case of a convic tion, a brief statement of the reasons therefore". In section 264, which is in the following terms, the word "record" has been used:‑

"Section 264 (1).‑In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall; before passing sentence, .record judgment embodying the substance of the evidence and also the particulars mentioned in section 263. (2) Such judgment shall be the only record in cases coming within this section." It will be noticed from the language of section 264 that in appealable cases, the Magistrates or the Bench are enjoined to reproduce the substance of evidence.

12. The last provision material for discussion in hand is Rule 36(1) of the Electoral College Rules, 1964, which pertains to the trial of election petitions. That provision shorn of the two provisos is in the following terms:‑

"On receipt of an election petition, the Tribunal shall give at least a week's notice to all the respondents named in the petition and after holding a summary enquiry record its findings:"

13. The learned counsel for the respondents in support of their argument that the Election Tribunal was under no legal obligation to record the evidence or prepare the memo randum of the evidence, tried to press into service (1) the fact that the finding of the Tribunal was final within the meaning of section 60 of the Act, and (2) that the Election Tribunal under rule 36 (1) was to record its finding "after holding a summary enquiry".

14. It will be noticed from the provisions of the Criminal Procedure Code reproduced above that the words "taking evidence" and "recording evidence" are synonymous or inter changeable. Similarly, in section 59 (2) and section 60 (2) of the Act, respectively, the words "any evidence already recorded" and "taking such evidence" have been used as inter‑changeable expressions. .

15. It is important to observe here that even in summary trials in non‑appealable cases there are express words which dispense with the recording of the evidence, but notwithstanding this in clause (h) of section 263, Cr. P. Code, the Magistrate or the Bench has to record the finding, and, in the case of a conviction, a "brief statement of the reasons therefore". While recording reasons for conviction, the Court is under an obligation to refer briefly to the statements on the basis of which the conviction is recorded so as to enable the Court of revision to judge whether the lower Court had sufficient material before it for convicting the accused, and where the judgment does not‑refer to the substance of the evidence, conviction is vitiated. It is also significant to note that under section 264 (1) of the Criminal Procedure Code in appealable cases the Magistrate or the Bench is obliged to record a judgment "embodying the substance of the evidence". In other words, in appealable cases the substance of the evidence is to be reproduced in spite of the express words in subsection (2) of section 264 which dispenses with the recording of the evidence by saying that "such judgment shall be the only record in cases coming within this section". In other words, the record of cases should comprise of the judgment alone, and therefore the memorandum of evidence even if recorded would not be considered to be the record of the case.

16. On a careful perusal of the material provisions of the Act and Rule 36 (1) and after giving the arguments addressed at the Bar our careful consideration, we have formed the opinion that in view of the express words in subsection (2) of section 60 requiring the Tribunal to take such evidence, the Tribunal is under a statutory duty to record the statement of each witness as the examination proceeds. The question then arises whether taking or recording of evidence means the recording of evidence in extenso, or the substance of the evidence. Since the Election Tribunal is a quasi judicial tribunal, charged with the important function of adjudicating on the rights of franchise of the citizens and it has also the power of initiating prosecution for offences under sections 61 and 62, as contemplated by section 79, of the Act, it is incumbent on the Tribunal before giving its decision on the election petition to afford proper hearing which is a must of a fair trial, and therefore the Legislature in its wisdom enacted subsection (2) of section 60, making it obligatory on the Tribunal not only to give an opportunity to the candidate of being heard, but also of "taking such evidence as may be produced before it". No doubt, under subsection (3) of section 60, the decision of the Tribunal on the election petition is final. But the finality attaching to an order of the Tribunal on a question of fact though ordinarily conclusive is amenable to writ jurisdiction, on the grounds (1) of no evidence, (2) that material evidence has not been taken into consideration, and (3) misreading of material part of evidence. See the decision in Habibullah Khan and another v. Election Tribunal, Jhang and others (P L D 1962 Lah. 797). In view of the express words in section 60 (2) enjoining on the Tribunal to take evidence, the fact that the findings of fact are amenable to writ jurisdiction on the grounds enumerated above, the Tribunal is ordinarily expected to record the statements of the witnesses in full as the examination proceeds, but when the Tribunal is pressed for time in view of the large number of election petitions involving the recording of a large number of witnesses, it will be sufficient compliance with section 60 (2) if the substance of the evidence is prepared on the date of the hearing of the evidence provided that the Tribunal while dispensing with the full examination of the witnesses records in writing the reasons for taking that course.

17. This brings us to the question whether it will be sufficient compliance with subsection (2) of section 60 of the Act, if the Tribunal, instead of recording the evidence or preparing the memorandum of the substance of the evidence, has embodied the gist of ‑ the evidence in the 'order. After giving our anxious thought to this vexed question, we have formed the opinion that cases may be visualised, though it may be very rare, in which regard being had to all the attending circumstances of the case it might be held that there was sufficient compliance with section 60 (2), if the following conditions are fulfilled :‑ (1) That the Tribunal on account of extreme pressure of work embodies the gist of evidence which has been beard on the same day on which the finding is founded in the order announced on the same day; (2) When all the evidence bearing on a particular point was not heard by the Tribunal on the day on which the judgment is pronounced, it has maintained the memorandum of the evidence adduced by the parties on the previous hearings duly signed or initialed it. (3) the summary of the evidence on a particular point has been clearly brought out and is" not obscure; (4) the reason of the Tribunal for preferring the evidence of one party as against the other is clearly given in the judgment, and (5) that the evidence which is relied in support of a finding is legal evidence.

18. So far we have been discussing the question untrammeled by authorities, though the following two judgments of the Division Bench bearing on the point have been referred to, during the course of arguments‑. (1) Muhammad Akram v. Capt. C. A. Saeed, Deputy Commissioner and Election Tribunal, Gujrat and another P L D 1965 Lah. 703 and (2) Abdul Hamid v. Malik Karam Dad, P. C. S., Election Tribunal, Rawalpindi and 2 others P L D 1966 Lah.

16. In both these cases, section 60 of the Act came up for discussion, but from a careful perusal of the report of both the cases it appears that in the first‑noted case, the Division Bench was not required to deal precisely with the question which is before the Full Bench; and therefore the observation made by their Lord ships in that case, with profound respect, would cleary amount to obiter dictum. In the first‑noted case, one of us (Mr. Justice Anwarul Haq) was a party, though the judgment was delivered for the Bench by Mr. Justice Muhammad Gul. At page 708, the following observations are to be found:‑- "Since no appeal is provided against the order of the Tribunal under section 60 (2) of the Act, it does not seem necessary to keep any record of evidence examined. But to say that the proceedings being summary, the Tribunal is not bound to hear evidence would not only be opposed to the express provisions of the statute but also opposed to the elementary principles of justice." Since the learned Judges were not required to give decision on the true interpretation of subsection (2) of section 60 pertaining to the recording of the evidence, and the further fact that their Lordships had not the benefit of full arguments on this point, the observation that "it does not seem necessary to keep any record of evidence examined" is to be treated as obiter. In the second case, Muhammad Akram, J. speaking for the Division Bench, after reproducing sections 59 and 60 of the Act, at page 25, proceeded to observe thus:‑

"As already discussed it is required to hold a summary enquiry only, it is not bound by the provisions of the Code of Civil Procedure and the Evidence Act in the trial of the election petition; it does not even appear if the tribunal has any power to summon the witnesses although it is bound to record the evidence of the witnesses produced before it. These are some of the features of the Election Tribunal constituted under the Electoral College Act which distinguishes it from a Court of Law."

19. We respectfully agree with the statement of law ex pressed above to the effect that the Tribunal "is bound to record the evidence of the witnesses produced before it", in that in absence of the record of the evidence examined by the parties or the memorandum of evidence, the valuable constitutional right of the citizen of challenging the finding of fact recorded by a Tribunal of exclusive jurisdiction on the ground of no evidence, or the failure of the Tribunal to consider material evidence, or misreading of material evidence, would be rendered wholly illusory. The Courts are under a constitutional obligation to jealously safeguard the constitutional rights of the parties against erosion by shutting out the jurisdiction under Article 98 by the simple expedient of not maintaining the record of the evidence, which they are under statutory obligation to do as required by subsection (2) of section 60 of the Act. K. B. A. Reference answered.