1992 PLP 2312 (MLD)

1. Application under rule 5(6) read with Order XVI, rule 1(2) and section 151, C.P.C. filed by the petitioner Haji War Ali Legari.for summoning Returning Officer Mr. Gul Muhammad Bhatti, Assistant Sessions Judge, Dadu P.S. 63 Dadu VI, Taluka Kherpur and Mr. Muhammad Hanif Solangi, Assistant Returning Officer P.S. 63 Dadu VI, Taluka Kherpur as witnesses.

2. Application under rule 6 (Procedure for trial of election petitions) read with section 151, C.P.C. for summoning the respondents as witnesses.

3. Application under section 64 of the Representation of People Act, 1976 with Order XVI, rules 1(2) read with section 151, C.P.C. for summoning as witness Mr. Rafique Ahmed Mabsar, Chief Polling Agent of the petitioner and in the alternative permit the petitioner to file his affidavit as Chief Polling Agent.

4. The office objection is to the effect as to how the affidavit filed by the petitioner is within time as it should have been filed alongwith the petition on 19‑12‑1990. In the first named application it is stated by the petitioner that the list of the said witnesses could not be filed alongwith the petition due to lack of time and inadvertence. In the second application, it is maintained by the petitioner that the respondents are not under his control and it is in the interest of justice that the respondent be summoned as witnesses. In his third application for summoning his Chief Polling Agent, it is urged by the petitioner in his affidavit enclosed thereto that the petitioner is not a legal expert and was not instructed by his previous advocate that the requirement of law was to file the list of witnesses and the affidavit of witnesses alongwith the petition and as such it was due to this inadvertence that the petitioner could not file the same alongwith the petition. The separate affidavit filed by the petitioner in support of the election petition on which office raised objection as to its filing at this stage is not accompanied by any application. The contesting respondent No.1 riled a common objection to the said applications and the affidavit stating that the applications are not maintainable as there was non‑compliance of. mandatory provisions contained under sections 52, 54 and 55 of the Representation of People Act, 1976. It is further contended that there was no valid ground for condonation of delay in filing the said three applications and of affidavit‑in‑evidence of the petitioner. A preliminary objection was raised by Mr. Nasim Farooqi that in view of non-compliance of mandatory provisions contained under sections 54 and 55, the election petition is liable to be dismissed, I will deal with it first. Once an election petition has been presented to the Commissioner under section 52 of the Representation of the Peoples Act, 1976 and found to be in order under Rule 1 of the Notification issued thereunder, it can only be dismissed by the Tribunal under section 63 if (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section

62. It may be noted here that non‑compliance of rules has nothing to do with the provisions contained in section 54 and 55 or 62 of the Act, so as to render the petition liable to be dismissed. The petitioner has joined as respondents all ‑contesting candidates who have been duly served and the petition contains allegations of corrupt or illegal practices as required under section

54. The petition has further contained a precise statement of the material facts on which the petitioner relies as well as full particulars of corrupt and illegal practice etc. with names of persons alleged to have committed them with date and place of the commission thereof, relief claimed by seeking declaration, duly signed and verified as pleading under C.P.C. (section 55). This objection is not tenable. Now reverting to the said three applications and the affidavit‑in- evidence filed by the petitioner, it may be stated here that the present election petition under section 52 of Representation of People Act, 1976 was filed by the petitioner Haji War Ali Legari on 19‑12‑1990 and the 4bove three applications as well as the affidavit‑in‑evidence of the petitioner were filed on 19‑2‑1992. It is worthwhile to reproduce here first Rule 1 of Notification dated 16‑3‑1985 made in pursuance of powers conferred by subsection (1) of section 52 of the Act relating to the procedure for trial of election petitions ' 'which states that "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 desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and the affidavit annexed to the petition have been supplied to the respondent." Rule 4 thereof states "that the petitioner shall make available for cross‑examination all witnesses whose affidavits are filed with the petition on the first date of hearing before the Tribunal". Further Rule 6 provides that "no witness whose name is not mentioned in the petition shall be summoned or cross‑examined unless required by the Tribunal". It was contended by Mr. M. Ilyas Khan learned counsel for petitioner that since the Secretary, Election Commission had accepted the election petition herein which was duly registered and numbered, the petitioner was under the bona fide impression that there was due compliance of .the requirement of law, but the petitioner's previous advocate did not advise him to include the names of the said proposed witnesses nor it was advised by him that the petitioner was required. to f le a separate affidavit containing the allegations. It was contended that it was a matter relating to procedural law and a technical view of the matter would hamper the ends of justice. In support of his contention learned counsel placed reliance on the case of S.M. Ayub v. Syed Yousuf Shah PLD 1967 SC 486 in which it was held: "The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect. the Courts should not be astute to ascribe to the Legislature a desire to be hyper‑technical, so as to smother genuine legislation." Further reference was made to Dino Manekji Chinoy v. Muhammad Matin PLD 1983 SC 693, in which it was observed by the Supreme Court as under:‑ "Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural law, as pointed out by Mr. Sharifuddin Pirzada, should be. utilized as "stepping stones' rather than we might add, as stumbling blocks; the right of a party in this case to have his appeal heard cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with:" Mr. Nasim Farooqui, learned counsel for the respondent No.1, vehemently opposed all the said three applications as well as the affidavit‑in‑ evidence filed by the petitioner. It was contended by him that it is a matter of record that the petitioner has violated the directions as found in the Notification dated 16‑3‑1985 with regard to the procedure for trial of election petitions and he cannot be permitted now to file the said applications or his affidavit‑in‑evidence at all. Although the petition has been verified on oath, neither any list of witnesses nor any affidavit of evidence was filed by the petitioner. In support of his contention he placed reliance on Ihrar Khattak v. Mian Muzzafar Shah 1991 CLC 175, in which it was held that where neither the names of witnesses were mentioned in the election petition nor their affidavits were annexed therewith, they can neither be summoned nor examined unless required by the Court. It was further held that the requirement of the procedure laid down in the said Notification is of mandatory nature and the petitioner was bound to observe strict compliance thereof. Earlier the same view was taken in Ch. Muhammad Aslam v. Mian Waheed‑ud‑Din 1990 ALD 170 and Lt.‑Col. (Retd.) J. Abel v. Emmanual Zafar and others 1987 MLD 1372. It was argued by learned counsel for respondent No.1 that the effect of accepting the above three applications and affidavit‑in‑evidence would be to extend the statutory period for filing an election petition and thus would be in clear violation of law. It may be stated here that in PLD 1967 SC 486, the observation of the Supreme Court of Pakistan relates to pleadings of the parties in a suit but here the matter relates to questions having direct nexus with the evidence of the petitioner. The present proceedings are under a special law and are regulated by its own, rules, which specifically provide the manner in which the petitions are to be filed and proceeded with. It contains provisions relating to filing of documents, affidavits of witnesses,, list of official witnesses etc. Under Rule 6 "No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal". The ground furnished by the petitioner in support of his first application, namely, lack of time and inadvertence can hardly be accepted as the petitioner has failed to give any explanation as to the alleged lack of time and inadvertence. The petitioner seeks to summon Mr. Gul Muhammad Bhatti and Muhammad Hanif Solangi, Returning Officer and Assistant Returning Officer, P.S: 63, Dadu VI who are official witnesses. Here reference may also be made to Rule 5 which provides that "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 witnesses". The petitioner nowhere has said a word justifying summoning these official witnesses. In the second application the petitioner has prayed for summoning the respondents and the reason shown is that they are not under his control. This plea cannot ‑be accepted as the petitioner was not prevented under the election laws to summon these persons. In the third application the petitioner prays .for summoning his Chief Polling Agent, Mr. Rafiq Ahmed; Mabsar and in the alternative seeks permission to file his affidavit. The reason for not summoning him or not tiling his affidavit is that the petitioner is not a legal expert and was not instructed by his previous advocate that it was the requirement of law to file list and affidavit of witnesses. This ground is not tenable at all. Ignorance of law is no excuse. It is settled law that a person will be fully liable for an act or omission of his advocate within the scope of authority given by him to his advocate. As such the petitioner is fully liable for the gross negligence, lapse or ill advice on the part of his advocate and is no ground for condonation of delay in filing the application. With regard to affidavit‑in‑evidence filed by the petitioner, it may be stated here that no ground for filing it at such a belated stage i.e. after about one year and two months of filing the election petition, has been shown and the petitioner's counsel has also failed to justify the filing of the same now except that the petitioner was misled by his previous advocate which hardly is a ground. Accordingly the affidavit filed by the petitioner cannot be taken on record. The three applications filed by the petitioner are also dismissed for reasons already given above. AA./68/E Applications dismissed.