1993 PLP 1090 (CLC)

(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 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. By Order of the Election Commission. M.M. Kazim, Secretary." After the demise of late Khalid Malik petitioner was represented by Mr. SA.M. Quadri and Mr. Ehsanul Haque, Advocates. Learned counsel for parties addressed arguments in support of their contentions. M/s. Ehsanul Haque and SA.M. Quadri argued as under:‑ (i) Election petition filed by the petitioner was duly processed by the Election Commission and after considering its maintainability referred to Tribunal for adjudication, thus at this stage tribunal would not be competent to take into consideration the effect of non‑filing of affidavits and list of witnesses alongwith the petition. (ii) During the pendency of petition an application Civil Misc. No. 1/91 has been moved, for permission to file affidavits and list of witnesses, and in exercise of discretionary jurisdiction Tribunal is competent to allow the application referred to above. On the other hand Mr. Azizullah Memon learned counsel for respondent No.1 and learned A.G. Balochistan, who appeared on Court notice pleaded as follows:‑‑ (i) The relevant provisions of Notification issued by the Election Commission of Pakistan has made it mandatory for petitioner to annex affidavits of the witnesses alongwith list at the time of filing petition .and no departure * is possible from mandatory provision of Notification. (ii) Petitioner has not complied with the procedural formalities therefore Tribunal could ,not allow opportunity to petitioner to fill up the deficiency. I have heard the arguments put forth by the learned counsel and the relevant provisions of Notification has, also been examined. Mr. Azizullah Memon learned counsel for respondent No.1 referred the decision to Election Petitions Nos.1/90, 2190. 6/91, 8/91 and 1,1/91, wherein in somewhat like mater Tribunal came to conclusion that without filing affidavits and list of witnesses petition would not be inscompetent. In this behalf relevant para. From the afore‑quoted judgment is reproduced hereinbelow:‑‑ "Now examining the provisions of above‑quoted Notification, bare perusal makes it crystal clear that petitioner who seeks redress of his grievance through election petition will institute petition in triplicate accompanied by all documents and affidavits of those witnesses whom petitioner desires to produce in support of his claim. If said requirements have not been complied with, question arises whether Election Tribunal can permit the petitioner to submit list of witnesses or affidavits during the course of trial. Evidently Election Tribunal have been bestowed upon limited jurisdiction for purposes of holding inquiry. Therefore, authority otherwise not conferred upon such Tribunal cannot be assumed by it. Thus non‑performance of requisite conditions including failure to file affidavits alongwith petition would be extremely fatal. The conditions laid down for filing affidavits of witnesses appears to be absolute in its nature and no departure can be allowed. No hard or fast rule of universal application can be laid down for determining mandatory or directory character of particular statute. However, when provisions are found to be absolute strict compliance is necessarily called for. As examined earlier notification specifying procedure for filing petitions clearly creates an obligation upon the petitioner to fife affidavit alongwith petition, thus any contravention therefrom would not be lightly ignored. All the points agitated by learned .counsel for the petitioners have been fully answered by the observations in above reports." Keeping in view aforesaid principle it is observed that procedure laid down in the Notification is mandatory in nature and failure to comply with it would amount to violating the mandate of the statutory authority. In this behalf reliance can also be placed on the cases reported in PLD 1964 SC 537, 1986 A MLD 2707, 1986 CLC 2066, 1987 MI_D (Peshawar) 2460, 1988 CL(: 1289, 1980 CLC 595 (Election Tribunal Punjab) and 1991 CLC 175 (Election Tribunal N: W.F.P.). There is no cavil with the proposition that in the matter where specifically a procedure has been laid down for conducting proceeding in a particular manner, a party who comes before the forum seeking the relief is bound to draw proceedings specified therein or should not do any act which is contrary to procedural provision. In this context case of Alta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others reported in PLD 1971 S C 61 furnishes a clear guideline. Now reverting back towards contention of the learned counsel for petitioner that the Tribunal is not competent to question the maintainability of the petition for non‑filing of affidavits and list of witnesses. Section 52 of the People Representation Act, 1976 provides that the Election petition shall be presented before the Commission within 45 days of the publication in the Official Gazette of the name of returned candidate which shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Batik of Pakistan or at a Government Treasury or Sub‑Treasury in favour of the Commissioner, under the prescribed head of account as security for the costs of the petition, a sum of one thousand rupees. According to section 56 Commissioner shall examine the petition in order to ascertain that provisions of section 52/53 or section 54 have been complied with or not. It may be noted here that provisions of section 52 mainly emphasise in respect of payment of security to the cost of the petition and section 53 deals regarding the period of limitation for filing of the petition with a view to ensure as to whether within the stipulated period petition has been submitted or not. And section 54 speaks that all the parties who have been contesting the election have been joined or not, and if there is departure from any one of the provisions contained in afore‑quoted section then the Commission retains jurisdiction to dismiss the petition without making reference to Tribunal. However, if the petition is not dismissed then the same‑would be referred to the Tribunal for disposal accordingly and the Tribunal is bound to follow the procedure which has been laid down by the Election Commission, in exercise of the powers under section 62 of the People Representation Act, 1976. Thus the stage for examining that affidavits and the list of witnesses have been filed would arise when the hearing of the petition will take place. In the instant case Notification reproduced in above para. would be operative when a petition has been received for adjudication by the Tribunal. This objection raised by the petitioner in this behalf has no legal substance. The last contention of the petitioner's counsel was that because an application has already been moved praying therein for permission to file affidavits and list of witnesses. In this regard it is observed that by granting permission to petitioner to it would amount to affording an opportunity to him to fill up the lacunas which had been left over at the time of institution of the petition. It would also cause prejudice to the other side. Therefore it would not be in the interest of justice and fairplay to provide opportunity to petitioner to get removed inherent defect of the petition at this belated stage. For the foregoing reasons I am inclined to hold that petition is not maintainable due to non‑compliance of the mandatory provisions of Notification referred to above. Consequently petition is dismissed. However, there shall be no order as to costs. AA./76/E Petition dismissed.