ZAFAR AHMAD HARAJ Versus KHAWAR ALI SHAH

Through this election petition Mahr Zafar Ahmad Haraj, petitioner has questioned the election of Punjab Provincial Seat PP‑158 (Multan), held on 28‑2‑1985.

2. The facts leading to this petition are that Mahr Zafar Ahmad Haraj petitioner and Dr. Khawar Ali Shah respondent contested election for Provincial Seat PP‑158 (Multan) held on 28‑2k‑1985. Dr. Khawar Ali Shah respondent was declared elected. On 20‑4‑1985, Mahr Zafar Ahmad Haraj through Mr. Shaukat Ali Javed, Advocate filed present election petition with the Secretary, Election Commission of Pakistan, Islamabad, wherein he alleged that the election of respondent had been procured by extensive corrupt and illegal practices and also in violation of the relevant provisions of Election law. The respondent filed written statement wherein he raised preliminary objections and also denied the allegations of corrupt and illegal practices levelled in the petition. The petition after having been processed by the Secretary, Election Commission of Pakistan was referred for trial to this Tribunal. On 11‑10‑1986, I framed as many as 11 issues. On 28‑10‑1987 with the consent of the parties it was decided that issue No.2 shall be tried first as preliminary issue. The issue is as under:‑

"What is the effect of the petitioner's failure to supply to the respondent copies of the documents and affidavits of his witnesses and omission to file receipt in respect of those documents alongwith the petition. O.P.R."

The parties declined to adduce evidence and desired to address arguments on the issue.

3. Learned counsel for the respondent submitted that although the petitioner was required under the procedure laid down by the Election Commission vide Notification No. F‑I(7)/85‑CORD, dated 16‑3‑1985 to attach with the petition all such documents and affidavits of the witnesses as desired to be produced by him alongwith the receipt from the respondent indicating that the copy of the petition and the documents and the affidavits annexed to the petition had been supplied to him yet he neither supplied the copies of the documents and affidavits of the witnesses nor did he annex with the petition acknowledgement receipt issued by the respondent indicating that the copies of the documents and affidavits of the witnesses were supplied to him and, as such, the petition merits rejection, on this short ground. Conversely, the learned counsel for the petitioner maintained that the copy of the petition alongwith the copies of the documents and the affidavits of the witnesses were handed over to the respondents personally. He, however, frankly and rightly conceded that no acknowledgement receipt indicating that the copies of the attached documents and the affidavits annexed to the petition were supplied to the respondent, was attached with the petition. The learned counsel further submitted that the petition was found in order by the Secretary, Election Commission of Pakistan and that no time for furnishing copies of the documents is prescribed under the law and as such failure, if any, on the part of the petitioner to supply copies of the documents and the affidavits to the respondent before filing election petition and omission to attach acknowledgement receipt will not warrant rejection of the petition. Reliance has been placed on case Muhammad Nawaz alias Dilawar Khan v. Election Tribunal, Lahore reported as 1968 S C M R 1097.

4. I have considered the submissions made by the learned counsel) for the parties with care. The respondent's plea is that neither the documents and affidavits attached with the petition were supplied to him nor did he issue any receipt of the acknowledgement and that in fact no receipt was annexed with the petition when it was filed with Secretary, Election Commission of Pakistan. It is a matter of record that receipt of acknowledgement indicating that the election petition alongwith copies of the documents and affidavits of the witnesses desired to be produced by the petitioner, was not attached with the petition when it was filed with Election Commission. There is no evidence to show that the documents and the affidavits of the witnesses desired to be produced by the petitioner were in fact supplied to the respondent before or even after the filing of the election petition. The acknowledgement receipt has not been brought on record till the present moment, so the question for consideration is whether non‑compliance with the procedure laid down by the Election Commission of Pakistan in clause (1) of Notification No. F‑1(7)85‑Cord, will entail rejection /dismissal of the election petition or not. The relevant law may be reproduced advantageously.

(1) Amended section 62 of In the said act, under section the Act (LXXXV of 1976. 62 for subsection (1) following shall be substituted, namely:

"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) Notification issued by the

Election Commission of Pakistan on 16‑3‑1985. Notification No.

F‑1(7)85‑ (1) "Every election petition shall

Cord. be filed with the Secretary

Election Commission of

Pakistan, Secretariat Block

'S', Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner alongwith 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) ..................

(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."

5. It is very much obvious that clause (1) of the aforesaid notification requires that every election petition shall 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 acknowledge ment receipt from the respondent indicating that copy of the petition, documents and affidavits annexed thereto, had been supplied to him. This means that the petitioner must provide the respondents copy of the petition, documents upon which he intends to rely, the names of the wtinesses which he proposes to examine and the substance of their evidence, before filing election petition with the Secretary Election Commission of Pakistan. Clause (3) of the Notification requires respondent to file written statement together with all documents relied on by him and affidavits of the witnesses as are desired to be produced within 7 days of the receipt of the notice of the petition from the petitioner. On reading clauses (1 and 3) together it becomes crystal clear that the wisdom behind clause (1) of Notification was to give respondent intimation of the facts that election petition was being filed by a particular candidate against him on the allegations contained therein; the names of the witnesses of the petitioners; the substance of their evidence and the documents to be used against him, so that he may not be taken by surprise. Since clause (3) of the Notification requires respondent to file his written statement alongwith the documents relied upon by him and the affidavits of the witnesses as are desired to be produced by him, I feel that unless requirement of clause (1) of the Notification regarding the supply of the documents and the affidavits of the witnesses of the 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 comply with clause (3) of the Notification which requires him to file written statement together with all documents relied by him and the affidavits of the witnesses as are desired to be produced in defence, within 7 days of the receipt of the notice of the petition, and defend his case properly and affectively. Clause (1) of the Notification has conferred a valuable right of the petition 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 and it will certainly not be possible for him to append with the written statement counter‑documents and counter‑oral evidence unless he is aware of the kind of the documents and the nature of the evidence intended to be produced against him. 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 acknowledgement 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 the 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 the petitioner to the respondent. The case‑law relied on by the learned counsel relates to the time before amendment was made in section 62 of the Representation of the People Act, 1976.

For what has been said above, the petition is dismissed, leaving the parties to bear their own costs.

6. This order will be communicated and record of the petition forwarded to the Commission as required under section 72 of the Representation of the People Act, 1976.

S.Q./28/E Petition dismissed.