1993 PLP 2149 (MLD)

(d) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑

0. XVII, R. 3‑‑‑Representation of the People Act (LXXXV of 1976), S.52‑‑‑Election petition‑‑‑Closing of evidence‑‑‑Petitioner had not produced before Tribunal any of witnesses whose affidavits were filed by him with his election petition for cross‑examination and no explanation whatsoever had been given for their non‑appearance‑‑‑There being z breach of procedure laid down by Election Commission for trial of election petition, evidence of petitioner was rightly closed. Ch. Khurshid Ahmad for Petitioner. Aamar Raza A. Khan for Respondent. Date of hearing: 30th September, 1992. This election petition under section 52 of the Representation of the People Act, 1976 (No. LXXXV of 1976) calls in question the election of Ch. Sher Ali as Member of the National Assembely of Pakistan from Constituency NA‑65 (Faisalabad‑ IX), held on 24‑10‑1990 on the ground that the election of the aforesaid respondent was procured through corrupt and illegal practices as stated in the election petition. The election petition was accompanied by affidavits of the witnesses of the petitioner, namely, (1) Shahadat Khan, (2) Muhammad Anwar, (3) Manzoor Ahmad, (4) Muhamad Aslam, (5) Sufi Muhamad Sadiq, (6) Khalid Hussain, (7) Akhtar Ghaffar alias Jimmi, (8) Maqsood Ahmad, (9) Malik Rehmat Ali, (10) Munawar Hussain, (11) Mian Nasim Ahmad, (12) Saeed Ahmad Khan, and (13) Sheikh Muhammad Ashraf. A list of official witnesses was also appended with the petition.

2. The allegations levelled in the election petition were denied by respondent No. 1 being false and baseless. By order dated 17‑6‑1992, issues arising out of pleadings of the parties were framed and the case was fixed for evidence of the petitioner for 30‑9‑1992. On 14‑7‑1992, the petitioner submitted an application for summoning the official witnesses. The application was disposed of by order dated 14‑7‑1992 and the petitioner was allowed to summon the official witnesses subject to deposit of necessary expenses. The petitioner has failed to deposit the process fee and diet money for the official witnesses. Consequently, they could not be summoned. He has also not made available for cross‑examination any of the witnesses, whose affidavits were filed with the election petition. When faced with this, Ch. Khurshid Ahmad' learned counsel for the petitioner submitted that the petitioner was not negligent in not depositing the process fee, but it could not be deposited for the reason that he (Ch. Khurshid Ahmad, Advocate) remained out of Pakistan from 11‑8‑1992 to 12‑9‑1992. This does not constitute a sufficient cause for not depositing the process fee etc. till today. The act of depositing the process fee etc. is in the nature of a ministerial duty, which could have been delegated by learned counsel for the petitioner to his clerk or the petitioner himself could have deposited the process fee. Failure to do so tantamounts to gross negligence which is not liable to be condoned in the facts and circumstances of the present case. In any event, in terms of Vakalatnama given by the petitioner to Ch. Khurshid Ahmad, Advocate, the petitioner also undertook to appear before the Tribunal on every date of hearing to pursue his petition. The relevant terms of the Vakalatnama are in the following words: ‑‑ It would, therefore, be seen that the petitioner was grossly negligent in not depositing the process fee for summoning the official witnesses. Mere engagement of a counsel did not absolve him of the duty to pursue his case diligently and the opposite‑pray cannot be penalised for his act of negligence.

3. It is true that the Tribunal has inherent jurisdiction to grant time to the parties and can from time to time, adjourn the hearing of the election petition in aid of justice, if sufficient cause is shown. In the instant case, however, no sufficient cause is made out to adjourn the hearing of the petition to enable the petitioner to deposit the process fee. Learned counsel for the petitioner has also failed to explain what prevented him to deposit the necessary expenses after 14‑7‑1992 and before 11‑8‑1992 when he reportedly proceeded abroad and subsequent to his return to Pakistan on 13‑9‑1992 and before the date of hearing of this appeal. The grant of adjournment is discretionary with the Tribunal. The discretion is, however, to be exercised on sound judicial principles, in aid of justice and not to encourage improper and delaying tactics. No case for adjournment is, therefore, made out. In consequence, evidence of the petitioner is closed.

4. There is another circumstance for closing the evidence of the petitioner, inasmuch as, the petitioner has not produced before the Tribunal any of the witnesses whose affidavits were filed with the election petition for cross‑examination and no explanation whatsoever has been given for their non- appearance today. There is thus a breach of the procedure laid down by the Election Commission for trial of the election petitions. Refer paragraph 4 of Notification dated 16th of March, 1985 which reads thus: ‑‑ '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." The petitioner has also failed to abide by his own undertaking' given in his application dated 14‑7‑1992 which is to the effect that "P.Ws. shall be produced by the petitioner himself'. The allegations levelled in the election petition are nor substantiated on record. The petition, therefore, merits dismissal. In view of the above, the election petition fails and is hereby dismissed with costs. H.B.T./81/E Election petition dismissed.