2014 C L C 805
[Election Tribunal, Balochistan]
Before Muhammad Hashim Khan Kakar, J
MUHAMMAD AKRAM BALOCH ----Petitioner
Versus
AKBAR ASKANI and others ----Respondents
Civil Miscellaneous Application No.1107 of 2013 in Election Petition No.6 of 2013, decided on
23rd December, 2013.
Representation of the People Act (LXXXV of 1976) ---
----Ss. 62, 63, 64, 52, 54 & 55---Civil Procedure Code (V of 1908), O.XVI, Rr. 1 & 2---Election
petition ---Procedure ---Election for the seat of Member of Provinc ial Assembly ---Non -filing of
list and affidavits of witnesses sought to be examined in the election petition ---Production of
witnesses ---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 their non-
accessibility ---Validity ---Election Tribunal had the status of civil court while determining the
dispute with regard to rights and liabilities of the parties in presence of their evidence ---Election
Tribunal did not function as a "court" nor was its action judicial ---Provisions of S.62(1) 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 consequ ences entailing in dismissal
of election petition had been provided in S.63 of Representation of the People Act, 1976---
Election Tribunal should dismiss election petition if the provisions of S.54 or 55 of
Representation of the People Act,1976 had not been complied with or if petitioner had failed to
make further deposit as required under S.62(4) of the Act ---Election Tribunal had the powers of
civil court while trying a civil suit under the provisions of C.P.C.---Election petition should be
decided expedit iously without being entangled in lengthy procedure ---Purpose for filing of
affidavits of the witnesses was that before commencement of proceedings the opposite side must
be conscious, aware and should be prepared as to what kind of evidence was expected t o be
given so that they could make preparation for cross -examination and to prevent the concoction
and fabrication of the evidence---Election Tribunal was not bound to follow the procedure as laid
down in C.P.C. for trial of election petition---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 a witness other than those mentioned in the list of witnesses
but a party intended to produc e such witnesses was required to show "good cause" and Tribunal
had to record reasons while granting such permission---Parties to a lis 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 ---If a party failed to file list of witnesses or omitted the
name of witness therein then for indulgence of the court for calling such witness, good cause had
to be shown for such omission of the witness from the list of witnesses ---Petitioner had failed to
annex affidavits of proposed witnesses with the election petition---Names of witnesses had been
mentioned in the list but same could not be termed sufficient compliance of provisions of
Representation of the People Ac t, 1976---Petitioner had failed to show good cause within the
meaning of sub- Rule 2 of O.XVI, C.P.C.---Mere assertion that witnesses were not accessible was
neither sufficient to establish a good cause nor it could be termed as justified reason for
summoni ng the proposed witnesses ---Petition for summoning the witnesses was dismissed in
circumstances.
Riaz-ul-Haq v. Federation of Pakistan 2013 PLC (C.S.) 1308; Ehsanullah Reki v. Lt.
Gen. (Retd.) Abdul Qadir Baloch PLD 2009 Quetta 16 and Muhammad Anwar v. Mst. Ilyas
Begum PLD 2013 SC 255 rel.
Muhammad Aslam Chishti, S.A.M. Qaudri and Sabira Islam for Petitioner.
Amanullah Kanrani and Abdul Sattar Khan for Respondent No.1.
Abdul Razzaq for Respondent No.2.
Naseer Ahmed Bangulzai, A.A.- G. for the State.
Muhammad Haroon, Law Officer for Provincial Election Commissioner.
Dates of hearing: 21st and 28th November, 10th and 16th December, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- This order will dispose of Civil
Miscellaneous Appl ication No.1107 of 2013, filed on behalf of the petitioner with the following
prayer: ---
"In the interest of justice learned Tribunal may graciously allow filing of affidavits and to
exercise incidental power of their examination/cross -examination for w hich they will be tendered
in the witness box."
2. Brief facts, giving rise to this petition, are that petitioner Muhammad Akram Baloch and
the respondents contested election for the seat of Member Provincial Assembly from
Constituency PB -50 Kech- III (th e "Constituency") and in consequence to the consolidation of
results by the Returning Officer, respondent No.1 Akbar Askani was declared successful with
lead of 54 votes. Subsequent to the announcement of result, the petitioner filed a petition under
section 103- AA of the Representation of the People Act, 1976 (the "Act of 1976") before the
Election Commission of Pakistan (the "Commission") to declare the poll void, which was
dismissed with the observation that the petitioner has an alternate remedy in the form of an
election petition before this Tribunal within the meaning of section 52 of the Act of 1976.
3. The petitioner has challenged respondent No.1's election as Member of the Provincial -
Assembly on different grounds, as stated in the election petiti on, however, specifically pleading
that as a result of corrupt and illegal practices, committed by him, his agents and supporters, the
election was badly rigged and, thus, the same deserves to be declared as void. The respondents
were summoned and responde nts Nos.1 and 2 contested the election petition, while respondents
Nos.3 to 8 remained absent, despite publication in the daily newspaper "Jang", Quetta dated 6th
September, 2013, thus, they were proceeded against ex parte vide order dated 9th September,
2013. Respondents Nos.1 and 2 resisted the election petition by filing their written statements,
thereby controverting the allegations levelled in the petition.
4. Messrs Muhammad Aslam Chishti and S.A.M. Qaudri, learned counsel for the petitioner,
submit ted that though the names of the proposed witnesses have been mentioned in the list of
witnesses annexed with the petition, yet their affidavits could not be submitted at the time of
filing of the petition due to their non -accessibility, thus, on the princ iple of impossibility of
compliance, the petitioner is entitled for permission to produce the proposed witnesses in support
of his contention. They further submitted that the provisions of section 62(1) of the Act of 1976
read with para 1 of the notificati on dated 16th March, 1985 (the "notification") are not
mandatory in nature and non- compliance thereof would not entail the consequences of dismissal
of election petition. They further added that this Tribunal, while determining the status of the
petitioner and contesting respondents to be a Member of the Provincial Assembly on the basis of
evidence, performs judicial function, as such, it can be termed as a Court for all intents and
practical purposes. To augment their arguments, they further added that under section 64 of the
Act of 1976, this Tribunal has all the powers of a civil Court under the Code of Civil Procedure,
1908 (C.P.C.), thus, while exercising powers under Order XVI, rule (2) of the C.P.C., can allow
and permit the petitioner to produce and examine the proposed witnesses. They lastly contended
that this Tribunal also enjoys ample powers within the purview of para 6 of the notification
issued by the Commission in this behalf.
5. On the contrary, Messrs Amanullah Kanrani and Abdul Sattar Khan, learned counsel for
respondent No.1, submitted that the provisions of section 62(1) of the Act of 1976 read with para
1 of the notification are mandatory in nature and its non- compliance would entail the
consequences of dismissal of election petition. They further submitted that the petitioner was
required to annex the affidavits of the proposed witnesses along with their full particulars in the
list of witnesses and mere mentioning the names of the witnesses, without filing their affidavits,
does not constitute compliance of the aforesaid provision of the Act of 1976. They further added
that although the Election Tribunal has powers of the Civil Court under the C.P.C., yet for the
trial of election petition, the Election Tribunal has to follow the procedu re prescribed by the
Commission. While concluding their arguments, they further submitted that it is established
principle of law that where the law prescribes the method of doing a thing in a particular manner,
the same has to be done in that manner; fail ure thereof may ensue the legal consequences; thus,
they prayed for dismissal of the instant application as well as the main petition.
6. I have heard the learned counsel for the parties and have given my anxious thought to the
rival contentions in the l ight of the relevant provisions of law.
7. At the very outset, before entering into the controversy between the parties, it may be
noted that for all legal intents and purposes, this Tribunal enjoys the status of a Civil Court,
while determining the disp ute relating to the rights and liabilities of the parties in their presence
on the basis of their respective evidence. I am conscious of the fact that ordinarily, the Tribunal
is not always functioning as a "Court", nor is its action always judicial; however, the determining
factor is the nature of dispute to be resolved by it. When the Tribunal has to determine a dispute
relating to a right or liability, recognized by the Constitution or law, in the presence of the
parties, in the light of the evidence produced by them, then it acts judicially and enjoys the status
of the Court. While holding this view, I am fortified from the case of Riaz -ul-Haq v. Federation
of Pakistan 2013 PLC (C.S.) 1308, relevant portion whereof speaks as under: ---
"40. The perusal of above case- law makes it abundantly clear that a tribunal is not always
function as a 'Court', nor its action is always judicial; however, the determining factor is the
nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute
relating to a right or liability, recognized by the Constitution or law and is under an obligation to
discover the relevant facts, in the presence of the parties, in the light of the evidence produced by
them, it acts judicially. Besides, whene ver judicial power is vested in a forum, be it called a
Court or Tribunal, for all legal intents and purposes it is a Court. Further, such Tribunals have to
be manned, controlled and regulated in accordance with the established judicial principles."
8. Reverting to the contention of the learned counsel for respondent No.1 i.e. Returned
Candidate regarding non -compliance of the provisions and the nature of section 62(1) of the Act
of 1976 read with the notification, after having gone through the referred judgments as well as
relevant provisions of law, I am of the view that provisions of section 62(1) of the Act of 1976
read with the notification are directory in nature; because no penal consequences have been
provided in the Act of 1976 for its non- compli ance. It may be noted that the penal consequences
entailing in dismissal of election petition have been provided in section 63 of the Act of 1976,
which envisages that Tribunal shall dismiss the petition, if the provisions of section 54 or 55
have not been complied with or if the petitioner fails 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 indicate the intent of legislature, otherwise section 62(1)
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 the learned counsel for respondent No.1 for dismissal of the election petition, being
without any substance, is overruled.
9. Now, the question remains as to whether the petitioner can be allowed to produce the
proposed witnesses mentioned in the list of witnesses without filing their affidavits at the time of
filing of instant election petition. At this juncture, it would also be advantageous to reproduce
hereinbelow respectively the provisions of secti on 64 of the Act of 1976 and paras 5 and 6 of the
notification, issued by the Commission, which read as under: ---
"64. Power of the Tribunal.--- 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), and shall be deemed to be a civil
court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898
(Act V of 1898)."
"Notification No.F.1(7)/85- Coord dated 16th March, 1985.
(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 provided through such witness.
(6) No witness whose name is not mentioned i n the petition shall be summoned or examined
unless required by the Tribunal."
10. A joint perusal of the aforesaid provisions of law would show that though under section
64 of the Act of 1976, this Tribunal enjoys powers of the Civil Court, while trying a civil suit
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. Similarly, the purpose of filing of the affidavits of the witnesses is, obviously, that
during trial of the election petition, no one should be taken by surprise and the parties, before the
commencement of the proceedings, must be conscious, aware and should be fully prepared as to
what kind of evidence is expected to be given by the witnesses of the opposite side, so that they
can make necessary preparation for the cross -examination etc., and to prevent the concoction and
fabrication of the evidence.
11. As has been observe d, though the Tribunal has all the powers of "trying a civil suit under
the C.P.C.", yet the Tribunal is not bound to follow the procedure as given in the C.P.C. for trial
of the election petition, rather under section 62 of the Act of 1976, the Tribunal s hall proceed
with trial of the election petition according to the procedure laid down by the Commission as
envisaged in the notification. Para No.6 of the notification clearly postulates that no witness,
whose name is not mentioned in the petition, shall be summoned or examined unless required by
the Tribunal.
12. It is true that this Tribunal is armed with all the powers of the Civil Court, while trying an
election petition and under Order XVI, Rule (2) of the C.P.C, the Court is empowered to call a
witness other than those contained in the list of witnesses, but it is equally true that, in such
circumstances, the party intending to produce such witnesses is required to show a "good cause"
and in such circumstances, the Court is required to record reasons , while granting such
permission. At this juncture, it would be advantageous to reproduce hereinbelow the relevant
provisions of Order XVI, Rule 1 of the C.P.C., which reads as under: ---
"1. Summons to attend to give evidence or produce document.--- (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 pa rty 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 permission, it shall record reasons for so
doing."
13. A combined study of the aforesaid provisions of law clearly demonstrate that the parties
to a lis 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 witnesses at 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 directly 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 wo rds 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, as 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 gr anted 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 assigning 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 the Court in deciding the matter."
14. Now, considering the case in the said backdrop and on the touchstone of the aforesaid
principles of law, I find that, while filing the election petition, the petitioner failed to annex the
affidavits of the proposed witnesses along with the petition. Though their names have been
mentioned in the list of witnesses, yet it cannot be termed as sufficient compliance of the
relevant provisions of the Act of 1976 as well as the procedures prescribed by the Commission in
the notification. The petitioner has also failed to show a good cause within the meaning of sub -
rule (2) of Order XVI of the C.P.C. and mere assertion that the said witnesses were not easily
'accessible' is neither sufficient to establish a good cause nor can it be ter med as a justifiable
reason in the eyes of law for calling/summoning the proposed witnesses. Thus, at this stage, the
petitioner cannot be allowed to produce the said proposed witnesses.
Consequently, the objection raised by the learned counsel for the contesting respondents
to the said extent is upheld and the application, being without any substance, is dismissed.
AG/11/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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