1986 PLP 2707 (MLD)

5. On the date fixed for evidence of the parties and arguments, the petitioner instead of producing evidence, filed application for permission to produce and summon witnesses as per list annexed with the said application. She also requested through the same application that Mr. M.M.Kazim, the Returning Officer be also summoned alongwith the entire record regarding the election in dispute including ballot papers, counting sheets, statement of counts, etc.

6. The abovesaid application was vehemently opposed by the contesting respondents. It was maintained on behalf of the respondents that according to the procedure prescribed by the Election Commission of Pakistan under section 62(1) of the Representation of Peoples Act, 1976, only those witnesses could be examined whose affidavits were submitted alongwith the election petition when the same was filed. If any official witness was to be summoned, then separate application showing justification for his production was to be filed at the time of filing the election petition. The petitioner failed to file any affidavit of witnesses or any application for summoning any official of the Election Commission alongwith the election petition and, therefore, she could not be allowed at this belated stage to summon the witnesses.

7. Before the aforementioned application for permission to produce and summon the witnesses could be disposed of the petitioner moved another application for permission to amend the election petition. Through the second application, the petitioner wanted to annex the list of her witnesses and their affidavits and documents with her election petition by way of amendment and to incorporate the following words at the end of the prayer clause in the election petition:‑‑ "The list of the witnesses, affidavits and documents are annexed."

8. The second application seeking permission to amend the election petition was also opposed and resisted by the contesting respondents.

9. Both the aforementioned applications are sought to be disposed of by this order.

10. Vide Notification No.F.l(7)/85‑Cord., dated 16th March, 1985, the Commission (The Election Commission of Pakistan), laid down the procedure for trial of election petitions in pursuance of the powers conferred by subsection (1) of section 62 of the Representation of Peoples Act, 1976. It was, inter alia provided in this procedure that every election petition shall be accompanied by all such documents and affidavits of the witnesses as the petitioner desired to be produced by him before the Tribunal. It has also been provided in the procedure that where any party desired 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 were required to be proved through such witness. Clause (6) of the procedure provided that no witness whose name was not mentioned in the petition shall be summoned or examined unless required by the tribunal. In this case, obviously, the petitioner in disregard of the aforementioned procedure prescribed by the Commission, failed to annex documents and affidavits, of the witnesses to be produced before the tribunal, with the election petition. She has also failed to file list of official witnesses sought to be produced in which it was required to be mentioned the justification for the production of any such official witness and the documents which were required to be proved through such witness.

11. It has been urged on behalf of the petitioner that originally the limitation fixed for filing the election petition was 60 days which was later reduced to 45 days. The reduction in the period of limitation was neither communicated to the candidates nor it was within the knowledge of the petitioner and that the petitioner came to know of the reduction in the period of limitation only one day before the expiry of limitation and, therefore, she hurriedly prepared the election petition but could not contact any person or persons to enlist them as her witnesses or get their affidavit for submitting the same alongwith the election petition. She has further urged that even otherwise, Notification No.F.l(7)/85‑Cord., dated 1.6th March, 1985 providing for appending the list of witnesses and their affidavits alongwith the election petition was not in her knowledge and the same was not given wide publicity nor she was informed of the requirement of the said. notification.

12. It is true that period of limitation for filing the election petition has been reduced from 60 days to 45 days by the Representation of People (Sixth Amendment) Ordinance, XVIII of 1985, but this Ordinance was promulgated on 10th March, 1985 i.e. ten days prior to the election of the reserved seats for women was held. Similarly, the procedure which has been prescribed by the Election Commission vide Notification No.F.l(7)/85‑Cord., was notified on 6th March, 1985 i.e. four days before the election. In these circumstances, the curtailment of the period of limitation cannot, by any stretch of imagination be pleaded as an excuse for not filing the requisite list of witnesses, their affidavits and documents, etc. The petitioner availed the full period of limitation and yet she failed to meet the requirements of the procedure. The plea that the procedure prescribed by the Commission was not within the knowledge of the petitioner has no substance inasmuch as the ignorance of law cannot be accepted as a valid excuse.

13. Through the second application the petitioner wants to achieve the same object of producing and summoning the witnesses whose list she failed to append with the election petition in accordance with the procedure prescribed by the Commission. Section 62(3) of the Act empowers the tribunal to allow a petition to be amended at any time, upon such terms and on payment of such fee as it may direct provided the amendment sought to be made in the opinion of the tribunal is necessary for ensuring a fair and effective trial and for determining the real question at issue. It has, however, been specifically provided in subsection (3) of section 62 ibid that no new ground of challenge to the election can be permitted to be raised through the amendment of the election petition.

14. 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 respondents inasmuch as no witness whose name has not been mentioned in the petition can now be summoned and examined by the petitioner as provided in clause (6) of the procedure.

15. Normally, the procedural provisions should not be too technically applied particularly when their blind application would thwart rather than help justice. In Abdul Aziz Khan v. Abdul Rehman and others PLD 1985 Lah.203, a judgment which has been pronounced by a Division Bench of which incidentally I was a member, it was observed that procedural provisions should be interpreted as being relatable to a fair trial of the case and all moves within its compass should be treated as subservient to the purpose. It was, however, further held that where the election petitioner attended to the matter crudely and negligently and was liable for gross violation of the relevant statutory rules for which neither goods nor sufficient cause was shown for non‑compliance the election. Tribunal was held to have rightly exercised his discretion against the petitioner on account of non‑compliance of such statutory rules.

16. In Bostan Ali Hoti v. Muhammad Hanif Soldier and others P L D 1978 Jour. 81, the particulars of each and every corrupt and illegal practice were not given in the election petition in minute details yet the election petition, read as a whole, indicated purpose for which it was filed and gave so much details as might reasonably be considered necessary, the objection of the other party that the petition not having given details of illegal and corrupt practices merited dismissal was held to be devoid of force. The circumstances of the present case are, however, I distinguishable. The grounds on which the petitioner has sought the election of the respondents to be declared void as a whole do not suggest in any manner as to which evidence she intended to produce at the time of hearing of the election petition.

17. Reliance on behalf of the petitioner has also been placed on Chaudhary Riffat Hussain and others v. Asif Khan and another P L D 1980 Lah.

626. In this case, it was held that Enquiry Officer had jurisdiction and duty to allow correction of errors and defects in any proceeding in an election petition including omission to sign or verify pleadings to further the ends of justice and avoid technicalities, but in this very case it was also held that it was golden rule of interpretation that the words of statute should be given their ordinary and dictionary meanings and the recourse to external considerations was permissible only when language of statute was imprecise and ambiguous. It was observed that the word "shall" has to be interpreted as a mandatory requirement while the word "may" as discretionay. In clause (6) of the procedure prescribed by the Commission through Notification No.F.l(7)/85‑Cord., dated 16th March, 1985 the word "shall" has been employed and it has been provided that no witness whose name is not mentioned in the petition, "shall" be summoned or examined unless required by the tribunal. So as far as the requirement by the tribunal of summoning the witness not named in the list attached with the election petition is concerned, this aspect shall be dealt with shortly in the later part of this judgment.

18. Regarding the second application seeking amendment, it has already been observed that amendment can be allowed under section 62(3) of the Act. Section 64 ibid also provides that 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). Obviously, a civil Court trying a suit has extensive powers to allow amendment in the pleadings under Order VI, rule 17, C.P. C. The amendments which in the opinion of the tribunal are considered as necessary for ensuring a fair and effective trial of the election petition can be allowed at any time on such terms as the tribunal may direct, but it is an established proposition of law that an amendment which aims at depriving the other party of a benefit which has accrued to it by lapse of time should not be allowed. In the circumstances of, the under consideration election petition, the period of limitation for filing the list of witnesses, their affidavits and documents has already expired. The amendment which has been sought to be made, if allowed, would obviously deprive the contesting respondents of the benefit which has already become available to them on account of petitioner's negligence and failure to annex the list of witnesses with the election petition and to file their affidavits, etc. In Mrs. Syeda Zaidi v. Hafiz Muhammad Taqi and others 1986 C L C 2066, it has been held that section 62(3) permits the petition to be amended but the amendment prayed for after the expiry of period of limitation deserved to be rejected. It was further held in this case that after the expiry of period of limitation a valuable right has accrued to a party which cannot be snatched away without any reasonable cause and justification in law. In the under consideration case, as already discussed, the justification furnished by the petitioner is least convincing and it has been found that on account of sheer negligence on her part, she has failed to comply with the mandatory requirements of the procedure prescribed by the Election Commission. In Ali Ahmad Khan v. Muhammad Qasim Khan and others P L D 1985 Jour. 277 also it was held that in spite of the procedure prescribed by the Commission under section 62(1) of the Act, occasion might arise when in the interest of justice, equitable principles of Civil Procedure Code, not contrary to the prescribed procedure, might be pressed into service. It was further observed that pleadings could be amended under this principle but no one could be joined as party to the proceedings through amendment of the pleadings after expiry of period of limitation.

19. In the light of the above discussion, it is concluded that in disregard of the express provisions of the procedure prescribed by the Commission under section 62(1) of the Act, the petitioner cannot be permitted to produce the witnesses and documents which do not find mention in the election petition or in respect of whom no list and affidavits have been annexed with the election petition. She cannot also be permitted to add/file by way of amendment of the election petition such list of witnesses, their affidavits and documents after the expiry of period of limitation. In this view of the matter, both the applications of the petitioner, one for permission to produce and summon witnesses and the second for amendment of the election petition are rejected.

20. After the rejection of the aforementioned two applications of petitioner, it is to be seen as to whether the tribunal should summon or examine any witness for the fair trial and effective disposal of the election petition because clause (6) of the procedure prescribed by the Commission under section 62(1) of the Act empowers the tribunal to summon and examine a witness whose name has not even been mentioned in the election petition by the petitioner.

21. It has been pleaded in paragraph 3 of the election petition that the election, has been conducted in absolutely illegal manner and the election, as a whole, is void. In paragraph 4' of the election petition, it has been urged that the mode of counting the votes as adopted by the Returning Officer was absolutely illegal and was based on corrupt practice, inter alia, on the grounds enumerated under, paragraph 4 at serial Nos. (i) to (xv).

22. It has been provided in section 70 of the Act that the tribunal shall declare the election void as a whole if it is satisfied that the result of the election has been materially affected by reason of (a) the failure of any person to comply with the provisions of the act or the rules; or (b) the prevalence of extensive corrupt or illegal practice at the election. The expression "corrupt practice" has been described in section 78 of the Act which reads:‑‑ "

78. Corrupt Practice.‑‑A person is guilty of corrupt practice if he‑‑ (1) contravenes the provisions of section 49; (2) is guilty of bribery, personation or under influence; (3) makes or publishes a false statement‑‑ (a) concerning the personal character of a candidate or any of his relation calculated to adversely affect the election of such candidate or for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable ground for believing, and did believe the statement to be true; (b) relating to the symbol of a candidate, whether or not such symbol has been allocated to such candidate ; or (c) regarding the withdrawal of a candidate; (4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on the ground that he belongs to a particular religion, province, community race, caste, baradari, sector tribe; (5) knowingly, in order to support or oppose a candidate, lets, lends, employs, hires, borrows or uses any vehicle or vessel for the purpose of conveying to or from the polling station any elector except himself and members of his immediate family; or (6) Causes or attempts to cause any person present and waiting to vote at the polling station to depart without voting." In the under consideration election petition there is not a single allegation suggesting by any stretch of imagination that during the impugned election any "corrupt practice" was resorted to by any of the respondents or any person acting on their behalf. The expression "illegal practice" has been described in section 83 of the Act which reads:‑‑ "

83. Illegal practice.‑‑(1) A person is guilty of illegal practice if he‑‑ (a) fails to comply with the provisions of section 50; (b) obtains or procures or ‑attempts to obtain or procure, the assistance of any person in the service of Pakistan to further hinder the election of a candidate; (c) votes or applies for a ballot paper for voting at an election knowing that he is not qualified for, or is disqualified prom, voting; (d) votes or applies for a ballot paper for voting more than once in the same polling station; (e) votes or applies for a ballot paper for voting in more than one polling stations for the same election; (f) removes a ballot paper from a polling station during the poll; or (g) knowingly induces or procures any person to do any of the aforesaid acts; (2) Any person guilty of illegal practice shall be punishable with fine which may extend to two thousand rupees." In the present election petition, no allegation whatsoever has been made about an illegal practice on the part of the respondents, their agents or the polling staff in any manner. In the grounds detailed under paragraph. 4 of the election petition at serial Nos. (i) to (xv), it has been generally alleged that the Returning Officer and his staff did' not know the system /procedure to be adopted for counting the votes nor could the same system be explained to the candidates or to their polling agents; that the objections raised by the polling agents were ignored; that the procedure for counting the votes was not in accordance with law; that the method of counting the votes was discriminatory; that the method for making declaration of successful candidates was not warranted by law; that the counting rounds were incomprehensible; that no reason was given for rejecting certain votes; that the method and procedure as adopted as a whole for counting votes was in violation of spirit of holding fair election; that the Returning Officer and his staff failed to comply with the provisions of the Act and the rules; and that the election was void as a whole due to extensive prevalence of corrupt and illegal practice.

23. It transpires from the above allegations that the petitioner has failed to disclose as to which provisions of the Act or the rules made thereunder have been violated by the Returning Officer and his staff while conducting. the impugned election or while counting the results. It has already been observed that not a single instance of any "corrupt and illegal practice" within the meaning of sections 78 and 83 of the Representation of the Peoples Act, 1976, has been given. The allegations made in the under, consideration election petition are, therefore, absolutely vague in nature and do not disclose even impliedly that any illegality has been committed by any person on account of his failure to comply with the provisions the Act or the rules made thereunder. There is no allegation of the prevalence of extensive corrupt or illegal practice at the election. In such circumstances, there can be hardly any occasion for the tribunal to summon or examine any witness whose name has not been mentioned in the election petition. As a matter of fact, no ground for declaring the election void as whole, as envisaged in section 70 of the Act, is inferable from the under consideration election petition.

24. For the foregoing reasons, this election petition must fail and is accordingly dismissed with costs. A.A Election petition dismissed.