2014 C L C 687
[Election Tribunal Balochistan]
Before Muhammad Hashim Khan Kakar, J
ABDUL RAUF MENGAL ----Petitioner
Versus
Moulvi QAMAR -UD-DIN and others ----Respondents
Civil Miscellaneous Application No.1090 of 2013 in Election Petition No.7 of 2013, decided on
16th December, 2013.
Representation of the People Act (LXXXV of 1976) ---
----Ss. 62, 63, 64, 54 & 55---Notification No.F1(7)85 Coord, dated 16- 3-1985---Civil Procedure
Code (V of 1908), O.XVI, Rr.1 & 2 ---Election petition ---Procedur e---Election for the seat of
Member National Assembly ---Non-filing of list and affidavits of witnesses sought to be
examined ---Production of witness ---Good cause ---Election Tribunal, powers of ---Scope---
Contention of petitioner was that list and affidavits of witnesses sought to be examined could not
be filed due to lack of time and law and order situation---Validity ---Provisions of S.62 of
Representation of the People Act, 1976 were directory in nature as no penal consequences had
been provided in the said Act for its non -compliance---Penal consequences entailing dismissal of
election petition had been provided in S.63 of Representation of the People Act, 1976 which
envisaged that Election Tribunal should dismiss the petition if provisions of Ss.54 & 55 of the
said Act had not been complied with or petitioner had failed to make further deposit as required --
-Election petition should not only be accompanied by all such documents and affidavits of
witnesses desired to be produced but also by an acknowledgement receipt from the respondent
indicating that copy of petition, documents and affidavits annexed thereto had been supplied to
him---Respondent was required to file written statement with all the documents relied upon by
him and affidavits of witnesses to be produced within seven days of notice of election petition---
Petitioner was required to make available his witnesses for cross -examination whose affidavits
were relied upon and annexed with the election petition on the first date of hearing before the
Elect ion Tribunal ---Respondent had to be given intimation that election petition was being filed
by a particular candidate on the allegations contained therein, the names of witnesses of
petitioner, substance of their evidence and documents to be used against him---Respondent had a
right to know the said documents and substance of evidence to be produced in proof of election
petition ---Failure to supply such documents and affidavits to the respondent would cause
prejudice to his defence ---Election Tribunal had p owers of civil court and every election petition
was to be decided in accordance with the procedure laid down by the Election Commission---
Election petition should be decided expeditiously without being entangled in the lengthy
procedure ---Election Tribuna l was not bound to follow the procedure as provided in the C.P.C.---
No witness whose name was not mentioned in the election petition should be summoned or
examined unless required by the Election Tribunal ---Election Tribunal had power to call for a
witness other than those contained in the list of witnesses but such powers were subject to the
condition of showing good cause and court was required in such circumstances to record
reasons ---Parties were required to furnish list of witnesses whom they proposed to call either to
give evidence or to produce documents within seven days of framing of issues and in case of
failure the delinquent party had to face the consequences ---Party who failed to file list of
witnesses or omit a name of witness could seek indulg ence of court for calling such witness but
only after showing a good cause for such omission---Petitioner had failed to make out a case
which required indulgence of Election Tribunal ---Grounds furnished by the petitioner for non-
filing of list and affidavits of witnesses could not be accepted as he had failed to give explanation
with regard to lack of time and unpleasant incident and inadvertence ---Valuable rights had been
accrued in favour of respondent and same could not be snatched---Witness could be sum moned
as a court -witness to produce such document which had been referred and relied upon in the
body of election petition---Procedure for filing election petition could not be ignored--- Ignorance
of law was no excuse--- When law required a thing to be done in a specific manner then same
should be done in such manner otherwise not at all ---Petitioner had failed to show good cause for
calling of private witnesses at this belated stage ---Application to such extent was dismissed
however he was allowed to produc e official witness after deposit of diet money.
Ehsanullah Reki v. Lt. Gen. (Retd.) Abdul Qadir Baloch PLD 2009 Quetta 16;
Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 SC 255 and Abdul Majid v. Mst. Zubeda
Begum 2007 SCMR 866 rel.
Shaukat Ali Rakhshani and Sajjid Tareen for Petitioner.
Adnan Ejaz and Tahir Ali Baloch for Respondent No.1.
Muhammad Haroon, Law Officer for Provincial Election Commission.
Dates of hearing: 29th September and 3rd December, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --- Petitioner, Abdul Rauf Mengal, was
candidate for contesting election for the seat of Member National Assembly NA -269 Khuzdar in
the General Election 2013, held on 11th May, 2013 and remained unsuccessful. He was
aggrieved from the election res ults, therefore, enumerating corrupt and illegal practices,
allegedly, adopted by the successful candidate i.e. Moulvi Qamar -ud-Din; validity of the election
was called in question through the present election petition.
2. The election petition was submi tted before Election Commission of Pakistan (the
"Commission") in accordance with the instructions contained in Notification No.F.1(7)85 -Coord.
Islamabad dated 16th March, 1985 (the "notification"), issued by the Commission in exercise of
powers conferred by subsection (1) of section 62 of the Representation of the People Act 1976").
3. Admittedly, the petition was not accompanied by the affidavits of witnesses sought to be
examined by the petitioner as required by clause (4) of the notification, therefor e, the petitioner
filed the instant application with the following prayer: ---
"It is therefore, prayed that aforementioned private witnesses at the responsibility of
petitioner and official witnesses coupled with the documents against diet amount, be summoned
to testify before this Hon'ble Tribunal, in the interest of justice or pass other order to meet the
ends of justice."
Messrs Shaukat Ali Rakhshani and Sajjid Tareen, learned counsel for the petitioner,
mainly contended that the list of witnesses, name in the application, could not be filed along with
the petition due to lack of time and inadvertence. They further contended that the instructions
issued by the Commission in shape of the notification are 'directory' and could not supersede the
requir ements of the Act of 1976. It was further argued that this Tribunal, acting as a civil Court,
has the jurisdiction to subsequently summon witnesses at the request of the petitioner. They
further added that the Commission had forwarded the petition to this Tribunal after due scrutiny,
therefore, procedural errors cannot be examined at this stage. While concluding their arguments,
they further submitted that the omission on the part of the petitioner was neither intentional nor
deliberate; rather the same was on account of the reasons mentioned in the application.
5. On the contrary, Messrs Adnan Ejaz and Tahir Ali Baloch, learned counsel for
respondent No.1, argued that the provisions, as contained in the notification, which has been
issued under section 62 of the Act of 1976, are mandatory in nature and under section 62(1) of
the Act of 1976, every election petition has to be tried in accordance with the procedure laid
down by the Commission, therefore, the provisions of the Civil Procedure Code 1908 (C.P.C .)
are not applicable during trial of the election petition. They further added that the petitioner
cannot be allowed to violate the mandatory provisions of notification on the ground that the
Commission had failed to raise the relevant objections at the time of entertaining the election
petition. While concluding their arguments, they prayed for dismissal of the instant application
as well as the main election petition.
6. I have heard the learned counsel for the respective parties and have gone through the
record in the light of the relevant provisions of law. So far as the contention of learned counsel
for respondent No.1 regarding dismissal of the petition on the ground of non- compliance of the
provisions of section 62 of the Act of 1976 read with the provision of the notification is
concerned, I am of the view that the said provisions are directory in nature, because no penal
consequences have been provided in the Act of 1976 for its non- compliance. It may be noted that
the penal consequences, entailin g in dismissal of the election petition, have been provided in
section 63 of the Act of 1976, which envisage that the Tribunal shall dismiss the petition, if the
provisions of sections 54 and 55 of the Act of 1976 have not been complied with or if the
petitioner failed to make further deposit as required under subsection (4) of section 62 of the Act
of 1976. Omission of section 62(1) of the Act of 1976 from the above said provisions clearly
indicates the intent of legislature, otherwise section 62(1) of the Act of 1976 could have
conveniently been added along with other provisions, non- compliance whereof empowers the
Tribunal to dismiss the petition. In this respect, reference can be made to the case of Ehsanullah
Reki v. Lt. Gen. (Retd.) Abdul Qadir Baloch PLD 2009 Quetta 16. Thus, the contention of
learned counsel for respondent No.1 for dismissal of the election petition, being without any
substance, is not tenable.
7. Now the entire controversy revolves around the question as to whether the petitioner c an
be allowed to produce the proposed witnesses, whose names were not mentioned in the list of
witnesses, annexed with the petition at the time of its filing before the Commission, and the
reasons i.e. lack of time, law and order situation and inadvertence do constitute 'good cause' for
allowing the instant application? In this respect, it would be relevant to reproduce hereinbelow
the relevant law/rules, regulating the election petition, which read as under:
"62. 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 Election
Commission.
(2) ..
(3) ..
(4) At any time during the trial of an election petition, the Tribunal may call upon the
petitioner to deposit such further sum by way of security, in addition to the sum deposited under
section 52, as it may think fit."
"Notification No.F.1(7)/85- Coord 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 election 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.
(3) The respondent shall upon the receipt of notice of the petition from the petitioner within
seven days file his written statement together with a ll documents relied upon by him and the
affidavits of the witnesses as are desired to be proceeded 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
and the trial of election petitions shall proceed on day to day basis."
8. A perusal of the above provisions makes it manifest that clause (1) of the notification
requires that every election petition shal l not only be accompanied by all such documents and
affidavits of the witnesses as desired to be produced by the petitioner, but also by an
acknowledgement receipt from the respondent, indicating that copy of the petition, documents
and affidavits annexed thereto had been supplied to him. Similarly clause (3) of the notification
requires the respondent to file written statement with all documents relied upon by him and
affidavits of the witnesses as are desired to be produced within seven days of the notice of the
petition. Likewise, clause (4) requires the petitioner to make available for cross -examination of
witnesses, whose affidavits are relied upon and annexed with the petition for cross -examination
on the first date of hearing before the Tribunal. On r eading clauses (1), (3) and (4) together, it
becomes crystal clear that the wisdom of clause (1) of the notification was to give the respondent
intimation of the fact that election petition was being filed by a particular candidate against him
on the alleg ations contained therein; the names of the witnesses of the petitioner; the substances
of their evidence and the documents to be used against him, so that he may not be taken by
surprise. Clause (1) of the notification has conferred a valuable right on the respondent to know
before hand the documents and the substance of the evidence of the witnesses as desired to be
produced by the petitioner in proof of his election petition. The failure on part of the petitioner to
supply documents and affidavits of the witnesses as desired to be produced by him will certainly
cause incurable prejudice to the defence of the respondent. It seems that clause (1) of the
notification is not of general policy, but conferred valuable rights and privileges on the
respondent to know the documents relied upon by the petitioner, the names of the witnesses, he
intends to produce and the substances of their evidence before he is called upon to file written
statement.
9. I am conscious of the fact that under section 64 of the Act of 1976, this Tribunal also
enjoys powers of the civil Court under the provisions of the C.P.C., yet under section 62 of the
Act of 1976, every election petition is to be decided in accordance with the procedure laid down
by the Commission. In subsection (1) of section 62 of the Act of 1976, the word 'shall' has been
used by the legislature. The enactment of the said provision is not without any purpose, rather the
purpose is that the election petition should be decided expeditiously without being entangled in
the lengthy procedure.
10. Though the Tribunal is armed with the powers of Civil Court, yet it is not bound to
follow the procedure as provided in the C.P.C. for trial of an election petition, rather under
section 62 of the Act of 1976, it shall proceed with the trial according to the procedure laid down
by the Commission as envisaged in the notification. Clause 6 of the notification clearly
postulates that no witness, whose name is not mentioned in the petition, shall be summoned or
examined unless requ ired by the Tribunal.
11. I am in agreement with the learned counsel for the petitioner that under Order XVI Rules
1 and 2 of the C.P.C., this Tribunal is empowered to call for a witness other than those contained
in the list of witnesses, but such power s are also subject to the condition of showing 'good cause'
and in such circumstances, the Court is required to record reasons, while granting such
permission. The said provisions read as under: ---
"1. Summons to attend to give evidence or produce docume nt.--- (1) Not later than seven
days after the settlement of issues, the parties shall present in Court a certificate of readiness to
produce evidence along with a list of witnesses whom they propose to call either to give
evidence or to produce documents.
(2) A party shall not be permitted to call witnesses other than those contained in the said list,
except with the permission of the Court and after showing good cause for the omission of the
said witnesses from the list; and if the Court grants such per mission, it shall record reasons for so
doing."
12. A combined study of the aforesaid provisions of law clearly demonstrates that the parties
are required to furnish the list of witnesses, whom they proposed to call either to give evidence
or to produce the documents, within seven days of the framing of issues and in case of failure,
the delinquent party has to face the consequences. Admittedly, under sub -rule (2), a room has
been provided to a delinquent party, who either fails to file the list of witnes ses at all, or omits a
name of the witness therein to ask for the indulgence of the Court for calling such witness, but
only after showing a good cause for the omission of the said witness from the list of witnesses.
The expression 'good cause' was directl y attended by the Hon'ble Supreme Court in the case of
Muhammad Anwar v. Mst. Ilyas Begum PLD 2013 Supreme Court 255 and Hon'ble Mr. Justice
Mian Saqib Nisar, who spoke for the Court, observed as under: ---
"8. For the purpose of comprehending the first part, it shall be relevant to ascertain the true
meaning of the expression 'good cause' which according to Black's Law Dictionary Eighth
Edition means "A legally sufficient reason. Good cause is often the burden placed on a litigant
(usu. By court rule or order) to show why a request should be granted or an action excused. --
Also termed good cause shown; just cause; lawful cause; sufficient cause". Whereas, according
to the said dictionary "sufficient cause" bears the same meaning as "good cause" and thus both
the words can be held to be considerably analogue and interchangeable expressions, yet as per
the precedent law, 'good cause' has been construed in wider terms than 'sufficient cause'. Though
no hard and fast, and absolute criteria can be set forth, a s benchmark, to test, if a case of
omission to file the list of witnesses or a name in such list is on account of 'good cause', as it
depends upon the facts of each case, however, the party in default has to show a legally sufficient
reason, why a request should be granted or the inaction/omission should be excused, in other
words the Judicial conscious of the Court should be satisfied with justifiable reasons. In any
case, a party in default cannot, as a matter of right or as a matter of course without ass igning or
establishing any good cause for the omission, ask for the calling/summoning or even to produce
the witness(es) only on account of a lame excuse/reason and a bald assertion that, it shall be in
the interest of justice and/or it shall facilitate th e Court in deciding the matter."
13. While considering the case in hand on the touchstone of the aforesaid criterion, I am of
the view that the petitioner has failed to make out a case, which requires indulgence off the
Tribunal. The grounds, furnished b y the petitioner in support of his application; viz, lack of time,
law and order situation and inadvertence, can hardly be accepted, as he failed to give any
explanation as to the alleged lack of time, unpleasant incident and inadvertence. Since valuable
rights have been accrued in favour of respondent No.1 and the same cannot be snatched on the
grounds mentioned in the application, therefore, their names could not be enlisted in the petition
and their affidavits could not be attached earlier with the petit ion. In other words, respondent
No.1 should not be deprived of the valuable rights, which he has acquired due to negligence of
the petitioner. In this regard reference can be made to the case of Abdul Majid v. Mst. Zubeda
Begum 2007 SCMR 866.
14. So far as the official witnesses are concerned, the petitioner seeks to summon Mr. Sher
Ahmed, Presiding Officer of Polling Station No.177 Kocho Sarona, Khuzdar and Mr. Ayaz
Mandokhail, Returning Officer NA -269. In this regard, reference can be made to para No.5 of
the notification, 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 thr ough such witnesses." Since the petitioner
has referred and relied upon the documents, intended to be produced through said witnesses in
the body of the petition, therefore, they can be called as Court -witnesses to produce the requisite
documents.
Accor dingly, for the above discussion, I am inclined to hold that the notification,
specifying procedure for filing the election petitions, clearly creates an obligation upon the
petitioner to file affidavits of the witnesses along with petition and any contrav ention therefrom
would not be lightly ignored. These grounds are not tenable at all. Ignorance of law is no excuse.
When the law requires a thing to be done in a specific manner, then it should be done in that
manner, otherwise not at all. The learned counsel for the petitioner has failed to show a 'good
cause' for calling of the private witnesses at this belated stage, as such, the application to that
extent, being without any substance, is dismissed. However, the petitioner is allowed to produce
the above named official witnesses and in this regard, he is directed to deposit the diet money in
the office.
AG/7/Bal. Petition dismissed.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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