2014 C L C 917
[Election Tribunal, Balochistan]
Before Jamal Khan Mandokhail, J
Engr. BASAANT LAL GULSHAN ----Petitioner
Versus
ROZI KHAN KAKAR and others ----Respondents
Election Petition No.1 of 2012, decided on 2nd December, 2013.
(a) Senate (Election) Act (LI of 1975) ---
----Ss. 34, 36, 43 & 45 ---Civil Procedure Code (V of 1908), O.XI, R.13, O. VI, R. 15 & Form
No. 5 Appendix -C---Election petition ---Law and procedure ---Senate election for Technocrat's
seat---Non-filing of affidavits of private witnesses with the petition ---Non-signing of schedule
and annexures attached with the petition ---Effect ---Election petition, its schedule and annexures
should be signed by the petitioner and should be verified on oath ---Order VI, R.15, C.P.C. fi xed
responsibility on a party to personally verify the facts of the pleadings and documents ---Separate
verification of document(s) was not required if same was/were discussed in a pleadings and
plaint was verified on oath ---If document(s) were not discusse d or described in pleadings but
same were annexed with the same through a schedule then both schedule and document(s)
should be signed by the person intended to produce them and verified on oath ---Documents
relied upon by the petitioner and filed along wit h his petition had been described in the election
petition which had been signed and verified on oath ---Such documents were not annexures,
therefore no schedule and separate verification of the same was required ---List of witnesses
should be filed with the petition if a party desired to summon any official witness/s justifying
his/their production and also to mention the documents which were required to be proved
through such witness(es) ---Witness who was not author of a document/certificate could not be an
evidence about the observation of his predecessor and his evidence was immaterial and was of
no use ---Affidavits of private witnesses were required to be filed with the election petition but
same had not been done so by the petitioner ---Provisions of Sect ion 43 of Senate (Election) Act,
1975 were directory in nature as no penal consequence had been provided in the said Act for its
non-compliance ---Election petition could not be dismissed due to non -filing of affidavits of the
witnesses ---Last opportunity t o submit affidavits of private witnesses was to be provided to the
petitioner.
Black's Law Dictionary rel.
(b) Words and Phrases ---
----"Schedule" ---Meaning ---"Schedule" was a written or a printed statement showing brief detail
of a document or co ntained a list showing a brief description of a document.
Black's Law Dictionary and Concise Oxford Dictionary rel.
(c) Senate (Election) Act (LI of 1975) ---
----S. 36 (3) ---"Annexure" as used in S.36(3), Senate (Election) Act, 1975 ---Meaning ---
"Annexure" meant to join or add especially something larger, or to append or attach to a
significant thing or in addition to main document, report or a pleadings ---"Anne xure" was/were
the document/documents which had not been described in a main document, a report or a petition
but was/were sought to be produced in support of its contents ---Documents containing additional
grounds of allegation of a substantive nature or a t least furnished a better particulars of the
allegation in addition to what had been described in a petition or a report, only such document/s
was/were to be considered as "annexures" ---Documents which had been described in the
pleadings and subsequently attached to it did not come within the definition of "annexures"
irrespective of the fact that same had been marked as "annexures".
Black's Law Dictionary and Concise Oxford Dictionary rel.
Abdullah Baloch for Petitioner.
Syed Nazeer Agha for Res pondent No.1.
Date of hearing: 18th November, 2013.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- This petition has been filed on the allegation
that the respondent No.1 does not qualify for the seat of Senate meant for Technocrats from
Balochistan. The re spondent No.1 filed his reply raising legal objections and alleged that the
petition is incompetent as it is not in accordance with wection 36 of the Senate (Election) Act,
1975 (called hereinafter as "the Act"). The learned counsel for the parties agreed that the legal
objections be decided at first. The objections 'A' and 'C' raised by the respondent No.1 through
his written statement are as under: ---
(A) That the petition is liable to be dismissed as provisions of section 36(3) have not been
complied w ith, which hit under section 44 of the Senate Election Act, 1975, wherein the
schedule and annexure to the petition have to be signed by the petitioner and verified in the
manner laid down in the C.P.C.
(C) That no affidavit of the petitioner or the witn esses has been filed along with the petition,
as such, the petitioner is not entitled to file the same at any subsequent stage.
Issue No.1 was framed as under: ---
(i) Whether the petition is not maintainable under section 44 of the Act in view of the o bject
"A" of the written statement, by not complying the provisions of section 36(3) of the Act?
2. The learned counsel for the objector/respondent No.1 stated that the schedule and the
documents annexed to the petition have not been signed by the petiti oner nor verified them on
oath, as provided by subsection (3) of section 36 of the Act, as such, the petition is liable to be
dismissed. He added that the petitioner cannot exhibit a certificate bearing No. DGPR (press)
1770/2012, dated 3rd April, 2012 iss ued by one Mr. Kamran Asad, the then Director -General
Public Relations ("DGPR"), through the present DGPR. He further argued that the remaining
witnesses are private, but their affidavits have not been annexed with the petition, which is a
condition preced ent, therefore, these witnesses cannot be examined. According to the learned
counsel, the procedure for trial provided by the Senate (Election) Act, Rules and Notification
No.F.1(6) 85 -Cord., dated 16th March, 1985, is mandatory in nature, therefore, non -compliance
of the same by the petitioner entails dismissal of the petition. The learned counsel relied upon the
following case -laws: --
(1) Muhammad Saeed v. Tahir Malik, (2005 CLC 1493).
(2) Malik Umar Aslam v. Sumera Malik, (PLD 2007 Supreme Court 362).
(3) Muhammad Ashraf v. Tariq Javed, (2007 SCMR 34).
(4) Asif Nawaz Fatiana v. Walayat Shah, (2007 CLC 610).
(5) Tariq Mehmood Khan v. Baz Muhammad, (1992 CLC 1766).
3. The learned counsel for the petitioner opposed the contention and stated t hat the petition
has properly been verified on oath in accordance with the provision of section 36(6) of the Act.
According to him, the petition has been signed by the petitioner and has duly been verified on
oath, wherein the documents have discussed, the refore, no violation of subsection (3) of section
36 of the Act has been done, as such, the schedule and the documents in the circumstances are
not required to be signed and verified. He argued that the certificate referred to hereinabove
mentioned in the list of the documents, is a part of a record of the Public Relations office and the
DGPR, being its custodian, is competent to exhibit the same. In reply to the objection of the
respondent No.1 with regard to non -submission of the affidavits of the private witnesses, the
learned counsel for the petitioner argued that filing of the affidavits of the witnesses with the
petition is directory in nature and departure from the same cannot disentitle the petitioner from
producing the witnesses or such omission can be rectified subsequently.
4. I have heard the learned counsel for the parties and have gone through the record. Section
36(3) of the Act is relevant, which is reproduced hereinbelow:
"36. Contents of petition. --- (1)
(2) ..
(3) Every election p etition and every schedule or annex to that petition shall be signed by the
petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of
1908), for the verification of pleadings."
According to subsection (3) of section 36 of the Act, every election petition, its schedule
and annexures shall be signed by the petitioner and shall be verified on oath in the manner laid
down in Order XI, Rule 13 in accordance with Form No.5, Appendix C of the C.P.C. The word
'Schedule' menti oned in subsection (3) of section 36 of the Act has been defined in the Black's
Law Dictionary as "a written list or inventory; esp., a statement that is attached to a document
and that gives a detailed showing of the matters referred to in the document". Similarly, it has
been defined in Concise Oxford Dictionary as "an appendix to a formal document or statute,
especially as a list, table or inventory". Hence, a "Schedule" is a written or a printed statement
showing brief detail of a document or contains a list showing a brief description of a document.
5: The word "Annexure" used in subsection (3) of section 36 of the Act has been taken from
the word "Annex", which means "to join or add especially to something larger, or to append or
attach to a signific ant thing, or in addition to main document, report or a pleading. The word
"Annex" has been defined in the Black's Law Dictionary as "something that is attached, such as a
document to a report" and in Concise Oxford Dictionary it has been defined as "a doc ument
added as an extra or subordinate part, an addition of a document". Thus, it leads us to the
conclusion that the Annexure is/are the document/s which has/have not been described in a main
document, a report or a petition, but is/are sought to be produ ced in support of its contents. The
documents, containing additional ground of allegation of a substantive nature, or at least
furnishes a better particular of the allegation, in addition to what has been described in a petition
or a report, only such docu ment/s is/are to be considered as annexure. The documents, which
have been described in the pleadings and subsequently attached to it, do not come within the
definition of the Annexure, irrespective of the fact that these have been marked as Annexure A,
B, C and so on. Rule 15 of Order VI fixes a responsibility on a party to personally verifying the
facts of the pleadings and documents, to the best of his/their knowledge. If a document/s is/are
discussed in a pleading, and the plaint is verified on oath, th en there is no need of separate
verification of such document/s. However, if a document/s is/are not discussed or described in a
pleading, but the same are annexed with the pleading through a schedule, both schedule and the
document/s should be signed by t he person intends to produce them and verified on oath in
accordance with Form -V, Appendix C in a manner as provided by Order XI, Rule 13 C.P.C.
Reliance has been placed on the case of Iqbal Zafar Jhagra v. Khalil -ur-Rehman, reported in
2000 SCMR 250. Rele vant portion whereof is reproduced as under: ---
"The learned counsel cited number of cases from Indian jurisdiction to support his
contention that even in cases of partial non -compliance of the rules applicable to filing of
election petition, the same s hould be dismissed. This Court in the case of S.M. Ayub v. Yousaf
Shah PLD 1967 SC 486, while considering the effect of section 59(3) of National and Provincial
Assemblies (Election) Act, observed as under: ---
"This brings us to the second question, arising for decision in the case, namely, the effect
of the omission of the petitioner -appellant to subscribe his signatures or verification to the
documents annexed to the petition. The learned Judges of the High Court commented adversely
on the finding o f the Tribunal that none of these documents was a 'schedule or annex,' within the
meaning of subsection (3) of section 59 of the Act, such as would require to be signed and
verified in the manner laid down in the Code of Civil Procedure, under the mandate of
subsection (3) of section 59 of the Act. In this connection, they referred to the definition of
'annex' as given in the Law Lexicon. The word 'Annex' is defined as follows in that book: ---
'Annex' is to attach at the end, subjoin, affix, as to affix a codicil to a will. In law it
implies physical connection which, however, is often dispensed with, when not reasonably
practicable. To unite, as a smaller thing to a greater; join; make an integral part of: as, to annex a
conquered province to a kingdom ---
Having regard to this definition of 'annex, the learned Judges thought that whatever is
attached to a petition, would fall within the meaning of 'annex', and as such, would attract the
provisions of subsection (3) of section 59 of the Act. Here again, the learned Judges relied on
certain cases, decided in the Indian jurisdiction, on the basis of the Indian Representation of the.
People Act. This view is strongly contested on behalf of the appellant, by Mr. Rafiq Ahmed
Sheikh.
It is argued with force , on behalf of the appellant, that the documents attached to the
petition in the instant case, were merely newspaper newspaper cuttings from a paper, called
Hayat, run malicious untruths, calculated to prejudice the voters against the petitioner -appellant.
These cuttings had reference to paragraph 10 of the petition, which starts by saying that the
respondent to the petition before the Tribunal, had published in the daily Hayat, Peshawar, false
and malicious news items, arousing religious, social and politi cal hatred against the petitioner,
details of which were given in that paragraph. Then follow, in serial order, brief description of
the nature of the news items with the dates of their publication and the indication that they would
be found in what are de scribed as Annexures to the petition marked with letter 'B', B -1', 'C' etc.
These cuttings do not really amount to allegations on which the petitioner -appellant was seeking
avoidance of the election but they were in the nature of evidence, cited in support of allegations
of corrupt or illegal practices such as, if established, could avoid the election. The main petition,
it is conceded, is properly signed and verified. Instead of reproducing the contents of the cutting
in paragraph 10 of the petition itself they have been briefly described therein and then collected
at the end of the petition. The contents of those cuttings having been characterized in the main
petition itself as malicious untruths, it would be too much to expect the petitioner to verify the m
in the manner contended for. By 'schedule or annex' mentioned in subsection (3) of section 59 of
the Act, is apparently meant such a Schedule and Annexure as either makes additional allegation
of a substantive character against the opposite party, or at least furnishes better particulars of the
allegations made in the petition, so as to give them the status of substantive grounds of the
petition itself. The documents under consideration in the instant case, however, are not of that
character and, in our o pinion, they should not be understood to fall within the meaning of
`schedule or annex', mentioned in subsection (3) of section 59. As has been said above, they are
referred to merely as supporting evidence of the particular corrupt or illegal practice men tioned
in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We
are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the
petitioner to append his signatures or the verificati on, required for Schedules and Annexures to
the petition, was not fatal to the prosecution of the petition."
We are inclined to follow the law laid down in S.M. Ayub v. Yousaf Shah (supra) and
accordingly, hold that the learned Tribunal rightly declined to dismiss the petition filed by
Khalilur Rehman challenging the election of Anwar Kamal Khan."
6. In view of above, it is held that since the documents relied upon by the petitioner and
filed along with his petition have been described in the petition, which petition has been signed
and verified on oath, therefore, these documents were not annexures, as such, no schedule and
separate verification of the same was required. Thus, the objection of the respondent No.1 in this
behalf is overruled.
7. The s econd and third objections of the learned counsel for the respondent No.1 with
regard to the production of a certificate issued by the then DGPR and non -filing of the affidavits
of the witnesses, pertain to the procedure for trial before the Tribunal, ther efore, section 43 of the
Act is relevant, which is as under: ---
"43. Procedure before Tribunal. --- [(1) Subject to the provisions of this Act and the rules,
every election petition shall be tried in accordance with the procedure laid down by the
[Commiss ioner]."
The said section assigns powers to the Commissioner to notify the procedure for the
purpose of trial before the Tribunal. Thus, exercising power, the Election Commission of
Pakistan notified the following procedure for trial of the election pet itions, vide Notification No.
F.1(6) 85 -Cord., dated 16th March, 1985:
(1) Every election petition shall be filed with the Secretary, Election Commission of
Pakistan, Islamabad, in triplicate and shall be accompanied by all such documents and affidavits
of the witnesses as are desired to be produced by the petitioner along with the receipt indicating
that the copies of the petition and the attached documents and the affidavits annexed to the
petition have been supplied to the respondent.
(2) Every elect ion petition shall be processed by the Secretary, Election Commission. In case
the petition is not in accordance with the procedure laid down herein it shall not be entertained
and the petitioner shall be informed accordingly. If the petition is found to b e in order, the
Secretary shall fix the date of hearing.
Notice of the date published through the press, radio and television shall be deemed to be
a valid notice and no personal notice shall be necessary unless the tribunal feels necessary to do
so.
(3) The respondent shall upon the receipt of notice of the petition from the petitioner within
seven days file his written statement together with all documents relied upon by him and the
affidavits of the witnesses as are desired to be produced in defence .
(4) 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.
(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 s ummoned 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 fo r, or was disqualified from, being elected as a member, the tribunal may decide the
question of such qualification or disqualification as a preliminary issue.
(8) The tribunal may make a memorandum of the evidence of each witness as his
examination proce eds unless it considers that there is 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 vexa tious 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.
According to Paragraph No.5 of the notification , any party, if desires to summon any
official witness, shall file a list of the witnesses with the petition, justifying his/their production
and also to mention the documents which are required to be proved through such witness/es.
8. The petitioner att ached along with his petition a certificate issued by the then DGPR and
intends to produce and exhibit it through the present DGPR, which is reproduced as under: ---
No. DGPR (Press) 1770/2012 DIRECTORATE
OF PUBLIC RELATIONS BALOCHISTAN
Dated Quett a, the 3rd April, 2012
The Honourable Minister For
Human Rights and Minorities Affairs
Balochistan.
Subject: PROVISION OF CERTIFICATE OF MR. ROZI KHAN KAKAR.
Kindly refer to your application Dated 1st April, 2012 on the subject cited above.
It is certified that according to this Directorate General's available record of press
accreditation card register from 2000 to 2004 and 2008 to date, there is no entry in the name of
Mr.Rozi Khan S/o Haji Sulman Khan.
XXX
(KAMRAN ASAD)
Director Ge neral
It is a fact that the above mentioned certificate has been issued by one Kamran Asad, the
then DGPR, after consulting some record, but despite being its author, he has not been cited as a
witness, nor the record, on the basis of which, such certif icate was issued, has been called for. In
view of the fact that the present DGPR is not the author of the certificate, he cannot give any
evidence about the observation of his predecessor, therefore, his evidence is immaterial and is of
no use. The petitio ner did not justify the summoning of the present DGPR and production of the
certificate through him, hence he cannot be allowed to appear as a witness.
9. As far as the objection of the learned counsel for the respondent No.1 in respect of non -
filing of the affidavits of the private witnesses along with the petition is concerned, no doubt
under Paragraph No.1 of the Notification, affidavits of the private witnesses were required to be
filed along with the petition, but the same has not been done so by the petitioner. Now, the only
question, which requires to be answered, is as to whether the petition can be dismissed in the
circumstances? In this regard, I am of the view that Paragraph No.1 of the Notification dated
16th March, 1985 and the provision of se ction 43 of the Act are directory in nature, because no
penal consequence has been provided in the Act for its non -compliance, therefore, due to non -
filing of the affidavits of the witnesses, the petition cannot be dismissed. It is a settled principle
that the law requires disposal of a matter on merits, rather than deciding the same on
technicalities, therefore, the objection so raised is overruled. In the interest of justice, last
opportunity is provided to the petitioner to submit affidavits of the priva te witnesses, with an
advance copy of the same to the other side, at least two days by or before the next date of
hearing.
AG/119/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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