P L D 2011 Lahore 207 (PLP)

IJAZ UL AHSAN, J.

Through the present petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Sardar Talib Hussain Nakai, the petitioner, calls in question the legality of orders dated 8-6-2010 and 21-6-2010 passed by the learned Election Tribunal, whereby a Local Commission was appointed for recording evidence of the parties in Election Petition No.124-2008.

2. Briefly, the facts of the case are that the petitioner contested general elections held on 18-2-2008 from Constituency NA-142 Kasur-V along with respondent No.1 and others. The petitioner was declared the returned candidate and is currently serving as Member National Assembly of Pakistan. Respondent No.1 challenged the petitioner's election through Election Petition No.124 of 2008 which is pending adjudication before the honourable Election Tribunal, Lahore. The petitioner contested the election petition by filing his written statement. The Tribunal framed issues and, with the consent of the parties, vide orders dated 8-6-2010 and 21-6-2010 appointed a local commission for the purpose of recording evidence. The fee of the local commission was fixed which was ordered to be paid in equal shares by both parties. The petitioner challenges the aforesaid orders through which the learned Election Tribunal has appointed a local commission to record evidence.

3. The learned counsel for the petitioner submits that the impugned orders are not sustainable in law as no substantive or procedural provision empowers the Election Tribunal to appoint a local commission or to delegate its adjudicative powers. He submits that the purpose of recording evidence by a trial court is to enable the Judge to observe the demeanour of the witnesses produced before the Court in order to assess whether they are truthful in giving their statements. He argues that the impugned orders disregard this fundamental purpose. The learned counsel further submits that section 62(1) of the Representation of Peoples Act, 1976 (ROPA) provides that every election petition shall be tried in accordance with the procedure laid down by the Election Commission. He points out that in view of these powers, the Election Commission has set out a procedure for trial of election petitions in its Notification No.F.1(7)85-Cord, dated 16-3-1985. He submits that perusal of these rules makes it obvious that recording of evidence is required to be undertaken by the Election Tribunal itself and the Election Tribunal cannot abdicate its jurisdiction and direct somebody else to record evidence. He therefore submits that the impugned orders are unwarranted and liable to be set aside.

4. The learned counsel for respondent No.1 has supported the impugned orders. He submits that the local commission was appointed with the consent of both parties, who paid his fee in equal shares and have been appearing before the local commission. Points out that the process of recording evidence has almost been completed. He has vehemently argued that the sole purpose of filing this petition is to delay finalization of the election petition.

5. We have heard the learned counsel for the parties and have also examined the record.

6. The issue raised before us arises out of the interpretation of sections 62 and 64 of ROPA read with the provisions of Notification No.F.1(7)/87 dated 17-3-1985 issued by the Election Commission ("the Notification"). For ease of reference it would be useful to reproduce the aforesaid sections and Notification:--

62. Procedure before Tribunal.

(1) Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission. , (2) Subject to the provisions of this Act, the Evidence Act, 1872 (I of 1872), shall apply for the trial of an election petition. (3) The Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue, so however that no new ground of challenge to the election is permitted to be raised. (4) At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by way of security, in addition to the sum deposited under section 52, as it may think fit.

64. Power of the Tribunal.

The Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, (Act V of 1908), and shall be deemed to be a civil court within the meaning of sections 476, 480 and 482 of, the Code of Criminal Procedure, 1898 (Act V of 1898). No.F.1(7)185-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 petitions:-- (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 he desired to be produced by the petitioner along with the receipt indicating that the copies of 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. If the petition is found to be in order, the Secretary shall fix the date of hearing. 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 front 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. (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 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.

7. A perusal of section 62 of the ROPA read with the procedure prescribed by the Election Commission shows that for trial of election petitions, the legislature intended to do away with the lengthy procedure for civil trials prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). The proviso of section 67 of the ROPA also prescribes a timeframe of four months for disposal of an election petition. The Honourable Supreme Court of Pakistan examined the scope of the said proviso and came to the conclusion that "there is wisdom in fixing the period for decision of such cases., namely, that there should be no uncertainty for the persons who have been elected or who have challenged the election before the Tribunal or before a court and after expeditious disposal of the case, they shall consume all their energies for the people whom they represent instead of wasting the time before the court.". See Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426).

8. Appointment of local commission is a step towards facilitating expeditious disposal of election petitions and to meet the goal of decision of election petitions within four months. It may also be pointed out that the Notification dated 17-3-1985 issued by the Election Commission is procedural in nature as is evident from its title "Procedure for trial of election petitions", as well as its contents. It is designed only to expedite disposal of Election Petitions. A perusal of the Notification reveals that there is neither any prohibition against recording of evidence through local commission nor have the powers under the Civil Procedure Code conferred on the Tribunal in terms of Section 64 of the Representation of the People Act, 1976 been curtailed or taken away. Further, it is a settled principle of law that an objection as to procedure has force only if prejudice is caused unless there is strict statutory prohibition to vitiate proceedings. See Ch. Sir Muhammad Zafrullah Khan v. Custodian of Evacuee Property West Pakistan and Karachi and others (PLD 1964 SC 865).

9. The question of exercise of certain powers by courts and tribunals without there being specific provisions in the relevant laws, has been examined by this Court as well as the honourable Supreme Court of Pakistan in matters involving restoration of election petitions dismissed in default. These cases arose out of absence of any provision in the election laws or the Notification, for restoration of petitions dismissed for non-prosecution. It was held that if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and these powers are inherent in adjudicating bodies. Reference may be made to Rana Zulfiqar Ali Khan v. Election Tribunal and others (2001 YLR 336) and Muhammad Hanif v. District Judge and others (1983 CLC 2965).

10. In Muhammad Shafi and another v. Election Tribunal and others (1983 CLC 303), it was held that unless it is expressly taken away, a court or Tribunal will have power to do justice between the parties. In the case of Syed Fakhar Imam v. Muhammad Raza Hayat and 5 others (2009 CLC 1), an Election Tribunal restored a petition, which had earlier been dismissed for non-prosecution, in exercise of inherent powers, despite the fact that there was no power in ROPA or the Notification to do so. The honourable Supreme Court of Pakistan upheld the decision of the Tribunal.

11. In H.M. Saya and Co. Karachi v. Wazir Ali Industries Limited Karachi (PLD 1969 SC 65), the apex Court held that a court should proceed on the principle that every procedure which furthers the administration of justice is permissible even if there is no express provision permitting the same. In Muhammad Hanif's case (supra), this Court has held that every court or Tribunal possesses implied and inherent powers. In procedural law that which is not expressly excluded is impliedly permitted.

12. The question before us can be looked at from yet another angle. There is no. provision in the ROPA or the Notification regarding framing of issues'. If the argument made by the learned counsel for the petitioner were to be accepted and a strict view were to be taken to the effect that in the absence of a specific provision a tribunal cannot frame issues under its inherent powers, then, framing of issues by an Election Tribunal would be rendered illegal. However, it has been held that although the Election Tribunal can dispense with framing of issues, if it decides to do so, such exercise cannot be termed as illegal. Reliance in this regard is placed on the case of Jam Mashooq Ali (ibid), wherein the Honourable Supreme Court of Pakistan held as follows: "The perusal of section 62, before the aforementioned amendment and after amendment together with the procedure prescribed by the Election Commission clearly shows that for the trial of Election petitions the legislature intended to do away with lengthy procedure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908). Reading section 62 as amended and section 64 of the Act, the possible harmonious interpretation thereof would be, that the Election Tribunal shall have all the powers of a Civil Court under the Code of Civil Procedure except for the trial of Election Petitions, where the Election Tribunal shall follow the procedure prescribed by the Election Commission. It means that framing of issues emanating from the pleadings of the parties is not mandatory requirement of law, the Election Tribunal, however, for the facility of the proper trial of the Election Petition and bringing the contesting parties to controversial points may strike issues for resolution of the dispute."

13. The role of a local commission is limited to the extent of taking down evidence of the parties. Any legal or procedural objections raised by either side during recording of evidence are brought before the Tribunal for determination. It is also significant to note that as per paragraph 8 of the Notification, a Tribunal is not even obliged to take down the evidence of any witness in full and has the power to make a memorandum of the evidence of each witness as his examination proceeds. Consequently, appointment of a local commission to take down evidence of the parties does not, in our view, cause any prejudice to either party and is merely a procedural exercise to facilitate the Tribunal to deal with election petitions expeditiously and promptly. While it may be true that the Tribunal has been enabled to try an election petition in accordance with the procedure prescribed in the Notification, there is nothing in the Notification that may suggest any restriction being placed on the Tribunal to adopt any lawful measures that may advance the object of expeditious decision of election petitions before it. The, substantive powers available to the Tribunal under section 64 of ROPA have been left intact and not taken away. One such power is available to the Tribunal under Order X, Rule 1(A)(ii), C.P.C. Under the said provision a court can issue commission to examine witnesses with the consent of the parties. It has, however, been held that a court can in appropriate cases, to achieve the ends of justice and to prevent abuse of the process of the court, refer the matter for recording of evidence on commission even without the consent of the parties in exercise of its inherent powers. (See Khawaja Feroz v. Muhammad Dawood and others (PLD 2008 Karachi 239).

14. We have gone through the impugned order and find that there is nothing adverse to the petitioner in the same. Taking steps for early decision in a matter and recording evidence on commission to save time of the parties cannot be termed as wrongful, erroneous in excess of jurisdiction or against the principles of natural justice. It would be in the interest of both the parties if the litigation comes to an end as early as possible. Reference may in this regard be made to Jam Mashooq Ali case (ibid). In addition, the impugned order has not caused any prejudice to the petitioner in any way as both the parties will have the opportunity to adduce their evidence and cross- examine the witnesses.

15. As far as the argument that it is necessary for a court to note the demeanour of the petitioner is concerned, it may be observed that such conditions are present in all suits where recording of evidence on commission can be ordered under the provisions of section 75, C.P.C. read with Order X, rule 1(A) as well as under the provisions of Order XXVI, C.P.C. Had it been a material consideration and a valid reason, then appointment of commission for recording of evidence would not have been provided for in the Code of Civil Procedure at all, which is not the case. Reference in this regard may usefully be made to Khawaja Feroz v. Muhammad Dawood and others (ibid). Further, the Notification itself requires both parties to submit affidavits of witnesses desired to be produced by them clearly indicating added emphasis on expeditious decision of Election Petitions compared. to other procedural 'considerations.

16. The local commissioner 'does not perform a judicial function nor does a court delegate its power to decide to the commissioner. The commissioner only performs a ministerial function the extent and scope of which is limited, narrow and clearly defined. The evidence recorded by the commissioner is placed before the court. It is the court alone which is empowered to record its findings on the basis of evidence before it and to determine questions regarding believing or disbelieving evidence, which continues to remain in the sole and exclusive domain and jurisdiction of the court. In this regard reliance may usefully be placed on Muhammad Bakhsh v. Nizam Din (PLD 1978 Lahore 31).

17. The honourable Supreme Court of Pakistan in a recent case reported as Ehsanullah Reki v. U. General (R) Abdul Qadir Baloch and others (2010 SCMR 1271), while examining the provisions of the aforesaid Notification relating to "order for production of documents" has come to the conclusion that an Election Tribunal can appoint a commission and direct opening of packets of counterfoils and certificates or the inspection of any counted ballot papers .The following excerpt from the Judgment of the Apex Court may usefully be referred to:- "

20. Subsection (3) of section 46 further provides that the production of a document by the Commission appointed by the Tribunal in terns of subsection (1) of section 46, shall be conclusive evidence that the document relates to the election specified in the order and any endorsement or any ballot papers or packet of ballot papers or documents so produced shall be prima facie that the ballot papers or documents are what the endorsement states them to be." Thus a Commission appointed by the Tribunal has the power not only to carry out the exercise as specified in the section but further the endorsement made on die ballot papers or the connected documents by the said Commission shall have prima facie evidentiary value". On the same principle of law, and in the absence of any express or implied restriction or prohibition in the law or the Notification against the power of an Election Tribunal to appoint a local commission, we do not see any reason why evidence cannot be taken down through a local commission during trial of an election petition. The learned counsel for the petitioner has not been able to convince us that any prejudice will be caused to the petitioner if this modus operandi is adopted. In view of the above, we find no force in the argument of the learned counsel for the petitioner that the Tribunal is not empowered to appoint a local commission.

18. We also note that the order of appointment of local commission was passed on 8-6-2010 in the presence and with the consent of the learned counsel for the parties. The matter came up before the Election Tribunal on various dates of hearing thereafter. The petitioner did not object to such appointment at any stage. He paid the fee of the local commission without cavil or demur. It is not denied that the petitioner has been appearing before the local commission, who has recorded evidence and the petitioner has been participating in the process which is in its final stages. In our view the petitioner has by his conduct acquiesced in the appointment of the local commission and cannot take a different position at this stage.

19. The order sheet shows that the election petition has been pending since 2008. Most adjournments have been sought on behalf of the petitioner. This clearly indicates a desire to delay and prolong proceedings. The present petition appears to be another attempt to do so. The petitioner has not come to this Court bona fide and with clean hands. Despite being asked, the learned counsel for the petitioner could not offer any explanation for the delay in challenging the impugned order. We therefore hold that this petition is also hit by the principle of laches.

20. Even otherwise, once having given his consent to the appointment of local commission, paid his fee and participated in the process of recording evidence which is in its final stage, the petitioner is estopped at this belated stage from raising an objection which in any event is hyper-technical in nature. It would serve no useful purpose other than further delaying finalization of the election petition. This would defeat the very purpose of election laws and the time frame provided for decision of election petitions. In the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC382), the honourable Supreme Court of Pakistan has held: " . the proper place of procedure in any system of administration of justice is to help and not to thwart the grant of the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy....Any system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to that extent."

21. The emphasis of election laws is to ensure expeditious disposal and to avoid protracted litigation. All procedural rules are geared towards achieving this goal. Depriving the Election Tribunal of the requisite flexibility in procedural matters like the mode of taking down evidence would not advance the above purpose or foster the objective of expeditious administration of justice.

22. For the foregoing reasons, we do not find any merit in this petition. It is accordingly dismissed. M.H./T-6/L Petition dismisse