1992 PLP 1766 (CLC)

(b) Mrs. Rehana Hussain Mullick v. Sahibzadi Mahmooda Begum and another (1986 MLIJ 2707). Considering validity of procedure prescribed by Notification No.F‑1 (7)/85‑Cord, dated 16‑3‑1985 it was held that same election holds field and failure of aggrieved party to comply with the same would entail penal consequences. "

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 petition in pursuance of the powers conferred by subsection (1) of section 62 of the Representation of the People 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.

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 the 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.1 (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.

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." (c) Mrs. Sayeda Zahida Zaidi v. Hafiz Mohammad Tariq (1986 CLC 2066). It was held in this case that provisions of Civil Procedure Code were not applicable and procedure prescribed under the provisions of Representation of the People Act and Rules etc. framed thereunder shall hold field. Even if the omission after scrutiny has forwarded the case for trial, the Tribunal enjoys full authority to examine the matter and pass its own order on the basis of relevant provisions and rules. It was further observed that provisions/rules etc. for dealing with election petition being of mandatory nature must be strictly interpreted. (d) Sardar K halid Nawaz v. Mian Manzoor Ahmed Wattoo (1987 CLC 1167) (Punjab Election Tribunal). It was held that failure to furnish affidavits alongwith the petition as required by prescribed procedure was fatal and renders aggrieved party incapable to substantiate the case through evidence: "I do not find any basis for making a distinction with regard to a petitioner so as to consider him exempted from filing affidavit in support of the pleas raised in the election petition and be qualified to give evidence on the basis merely of verification on oath of his election petition because such is the requirement of Order VI, Rule 15 of the C.P.C. which is distinct from the affidavit envisaged by the above?quoted rules of procedure and would not be a substitute for the affidavit required to be filed thereunder. Even under the C.P.C. evidence to be furnished by affidavits is a separate matter provided for in Order XIX thereof. The said rules of procedure for trial of election petitions have binding force and they are not mere instructions issued for the guidance of the Election Tribunal, as has been contended by the petitioner's Advocate. In my view, failure to furnish any affidavit alongwith the election petition renders it incapable of being substantiated by any evidence whatever and will be a sheer waste of time of all concerned to keep this. case pending." (e) Maulvi Abdur Rahim v. Shahzada Mohyuddin (1987 M L D (Peshawar) 2460). It was held that Election Commission under section 62 (1) was competent to lay procedure for filing the election petition. It was argued that instructions were not merely directory but had to be followed strictly. Relevant portion of the judgment is reproduced below:‑‑ "Even though the last contention on behalf of the petitioner is not without force, the fact remains that the petitioner had failed to mention the names of the witnesses in the election petition or to file their affidavits alongwith therewith and he was allowed to do so subject to decision on preliminary issue No.4 I am not inclined to agree with the learned counsel for the petitioner that the procedural requirement as laid down in the notification dated 16‑3‑1985 was of a directory nature. Since it clearly postulates that in case the election petition is not in accordance with the procedure laid down, it shall not be entertained by the Election Commission would not mean that the lapse on the part of the petitioner had been condoned. There is nothing in law to prevent the Election Tribunal from exercising such powers as were available to the Election Commission to refuse to entertain the election petition. I am of the considered view that the procedure laid down by the Election Commission in the aforesaid notification in exercise of the powers under subsection (1) of section 62 of the Representation of the People Act, 1976 is not of a directory nature and has to be followed strictly. In an unreported judgment Sardar Khalid Nawaz v. Mian Manzoor Ahmad Wattoo decided on 26‑5‑1986 by the Election Tribunal, Punjab it was held that the said rules of procedure for trial of election petitions have binding force and they are not mere instructions issued for the guidance of the Election Tribunal as has been contended by the petitioner's Advocate. It was further held that failure to furnish any affidavit alongwith the election petition rendered it incapable of being substantiated by any evidence whatsoever.

6. Taking this view of the matter, the decision on preliminary issue No.4 would go against the petitioner in so far as he had failed to file the list of his witnesses and their affidavits alongwith the election petition." (f) Mehr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah (1988 CLC 1289). Describing object of Notification No.F‑1 (7)/85‑Cord, dated 16‑3‑1985 it was held to be that of mandatory nature creating obligation on the aggrieved party to strictly comply with requirements specified therein. On the failure to do so petition was found incompetent. "I am convinced that failure on the part of the petitioner to supply documents and the affidavits of the witnesses as desired to be produced by him will certainly cause incurable prejudice to the defence of the respondent, it seems to me that clause (1) of the notification is not that of general policy of realm but confers a valuable right and privilege on respondent to know the documents relied upon by the petitioner, the names of the witnesses which he intends to produce and the substance of their evidence before he is called upon to file written statement. So, mere delivery of petition to the respondent without documents and the affidavits of the witnesses mentioned in clause (1) of the Notification will not serve the object of clauses (1) and (3) of the Notification and failure on the part of the petitioner to annex documents affidavits of the witnesses and the receipt of acknowledgment with the petition will render the provisions of clause (1) as well as (3) of the Notification futile and nugatory. For all these reasons, I am of the view that clause (1) of the Notification is a mandatory provision which obliges the petitioner to supply documents, affidavits of the witnesses desired to be produced by him and also attach acknowledgement receipt from the respondent indicating that he had received not only the petition but also the documents and affidavits attached thereto and a petition which is not accompanied by these documents will not be maintainable. The submissions made by the learned counsel for the petitioner carry no force in that, the law requires the petitioner to deliver copy of petition alongwith the documents to the respondents before filing the petition obviously within 60 days of the limitation and as such, it cannot be said that no time has been prescribed for the supply of the documents and the affidavits of the witnesses of petitioner to the respondent. The case‑law relied on by learned counsel relates to the time before amendment was made in section 62 of the Representation of the People Act, 1976." (g) Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others (1990 CLC 595) (Election Tribunal Punjab). In this matter it was held that the amendment was introduced by section 62 of Representation of People Act, 1976 to exclude application of Civil Procedure Code and instead Election Commission was authorised to lay down procedure for regulating the election petition: However, it was observed that tribunal had powers and authority to do certain acts in aid of disposal of election petition, but certainly was bound by the frame work of rules and instructions competently promulgated in that behalf. (h) Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175) (Election Tribunal N.‑W.F.P.) The procedure prescribed by notification was found to be mandatory and failure to comply with requirement was deemed fatal. The underlying idea behind this provision is that unless the requirement of clause (1) of the Notification regarding supply of documents and affidavits of witnesses of petitioner, to the respondent, is complied with and he knows before‑hand the documents which he has to meet and the names of the witnesses as well as substance of their evidence which he has to rebut it will not be possible for him to put forward an effective defence to the election petition. In 1988 CLC 1289 it was held that clause (1) of the Notification is a mandatory provision which obliges the petitioner to supply documents affidavits of witnesses desired to be produced and also to attach acknowledge receipt from the respondent indicating that he had received not only the petition but also the documents and affidavits attached thereto and a petition which does not comply with this requirement of law is not maintainable. The contention on behalf of the petitioner however, is that a strict view of the provisions of the Notification would not be taken and they should by liberally construed for meeting the ends of justice. The learned counsel contended that list of witnesses was supplied by the petitioner beyond the period of limitation under the direction of Election Commission, and, therefore, period shall be, deemed to have been extended, There is no force in this contention. The Election Commission was not legally competent to extent statutory period provided by the Notification for filing the petition alongwith all necessary documents, list of witnesses and their affidavits. It is not disputed that no copy of the list of witnesses was supplied to the respondent. Since the requirements of the procedure laid down in the Notification of mandatory nature the petitioner was bound to observe strict compliance thereof." (i) Riaz Ameer alias Abdul Haq v. Aamar Sultan Cheema and others (1991 CLC 870). In this case dilating upon other aspects while dealing with procedure for trial of election petition, it has been specifically laid, that list of official witnesses and their justification and documents concerning them had to be summoned alongwith petition. Subsequent introduction of witnesses was not permissible. 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 tribunals have been bestowed upon limited jurisdiction for purposes of holding inquiry. Therefore, authority otherwise not conferred upon such tribunals 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 file affidavits alongwith petition, thus any contravention therefrom would not be lightly ignored. All the points agitated by learned counsel for petitioners have been fully answered by the observations in above reports. Accordingly for the above discussion and law enunciated in afore?quoted judgment, I am inclined to hold that election petition without filing affidavits or list of official witnesses alongwith petition is not maintainable. Consequently following five Election Petitions having common question for determination, are directed to be dismissed:‑‑ 1.???????? Election??????????? 1/1990???????????? Mir Tariq Mahmood Khan Khetran ??????????? Petition???????????????????????????????????????????????? v. ??????????????????????????????????????????????????????????? Mir Baz Mohammad Khetran and others. 2.???????? Election??????????? 2/1990???????????? Ghulam Sarwar v. Abdul Qahar etc. Petition. 3.???????? Election??????????? 6/1991???????????? Inayat Ali Shah. ??????????? Petition.??????????????????????????????????????????????? v. Zahoor Hussain Khan and others. 4????????? Election??????????? 8/1991???????????? Mohammad Akram Petition. Mir Mohammad Ali Rind & others. 5.???????? Election??????????? 11/1991?????????? Bismillah Khan v. Abdul Qahar etc. Petition. Parties are however left to bear their own costs. AA/64/E????????????????????????????????????????????????????????????????????????????????? Election petitions dismissed.