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Official Citation: 2024 PHC 336
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Petitioner: Zareen Gul S/o Nazar Gul, Caste Pathan, R/o Post Office New Darband, JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PHC 336. In this matter between Zareen Gul S/o Nazar Gul, Caste Pathan, R/o Post Office New Darband, JUDGMENT and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024PHC336
Court Name: Peshawar High Court Judge(s): Muhammad Ijaz Khan Title:Zareen Gul S/o Nazar Gul, Caste Pathan, R/o Post Office New Darband,
JUDGMENT
Reported As: 2024 PHC 336 Result: Order Accordingly Judgment
JUDGMENT MUHAMMAD IJAZ KHAN, J.- Through this election petition filed under section 139 of The Elections Act, 2017 the petitioner has called in question the election for the constituency of Provincial Assembly Khyber Pakhtunkhwa PK-41, Torghar on the ground of massive rigging and corrupt & illegal practices, whereby, the respondent No. 4 has been declared as a returned candidate. 2. Initially, when this case was fixed for preliminary hearing, a notice under sub section (1) of section 145 of The Elections Act, 2017 (hereinafter is to be referred as The Act of 2017) was issued to the petitioner to argue the case on the point of maintainability of the instant election petition vide order dated 28.03.2024, the same being relevant is reproduced below; The instant election petition has been filed by the petitioner under section 139 of The Election Act, 2017 and today the office has placed the same before this Tribunal for preliminary hearing/ proceedings, therefore, its contents and the documents appended therewith were minutely perused and gone through which requires that let the petitioner be issued notice qua its maintainability in the present form and as to whether while filing this election petition the petitioner has fulfilled the pre-requisite formalities as provided under sections 142,143 & 144 of The Election Act 2017 or not?. To come up for arguments on the point of maintainability on 22.04.2024.
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3. Today, arguments of learned counsel for the petitioner were heard, who mainly emphasis; firstly, that petitioner has fulfilled all the pre-requisite legal formalities as required under section 142, 143 & 144 of The Act of 2017 for filing a valid election petition and secondly, that the verification at the footnote of the instant election petition and then an affidavit attached with the election petition which is duly signed by the Additional Registrar of this Court are sufficient to fulfill the requirement of law as required under sub section (4) of Section 144 of The Act of 2017 and thus this petition needs to be tried through a regular trial instead of summary rejection under section 145 (1) of the ibid Act. 4. In view of above submission, when learned counsel for the petitioner was confronted that as to whether the petitioner has fulfilled the pre-requisite legal formalities as contained in sections 142, 143 and specifically of sub section (4) of section 144 of The Elections Act, 2017, he though tried to establish that the same have been complied with, however, he was unable to satisfactorily explain a valid compliance of sub section (4) of Section 144 of The Act of 2017 which pertains to the verification of the election petition in the manner as laid down in The Code of Civil Produce, 1908. 5. In order to determine that as to whether the petitioner has made a valid verification of the instant election petition or not and in case its answer is in negative then whether this election petition is liable for summary rejection on the aforesaid ground or not?. It would be relevant to mention there that earlier an election petition qua settlement of election disputes was to be tried and regulated under the provisions of The Representation of People Act, 1976 (hereinafter is to be referred as ROPA of 1976) which has recently been repelled by section 241 of The Election Act of 2017 and now the same is to be tried under the provisions of The Election Act 2017. It will also be relevant to mention here that the provisions of The Elections Act, 2017 qua the election disputes are in paria materia the same as were provided in The Representation of People Act, 1976, therefore, the relevant provisions of both these Acts qua procedure of filing of an election petition are reproduced below for their comparative perusal;
The Representation of People Ac, 1976 The Elections Act 2017 52. Election petition. - No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner. (2) An election petition shall be presented to the Commissioner within forty-five days of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the ational Bank of Pakistan or at a Government Treasury or subTreasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.139. Election petition.-- (1) No election shall be called in question except by an election petition filed by a candidate for that election. (2) In this Chapter-- (a) 'corrupt or illegal practice' means a 'corrupt practice' or an 'illegal practice' as defined in Chapter X; (b) 'petitioner' means the candidate who has filed an election petition; and (c) 'respondent' means a person joined as respondent in the election petition under section 143.
53. Presentation of petition.-(1)An election petition shall be presented by a petitioner and shall be deemed to have been resented (a) when it is delivered in person to the Secretary to the Commission or to such other officer as may be142. Presentation of petition.-- (1) An election petition shall be presented to the Election Tribunal within forty-five days of the publication in the official Gazette of the name of the returned candidate and shall
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appointed by the commission in that behalf, (i) by the petitioner; or (ii) by a person authorised in writing in this behalf by the petitioner; or (b) when delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid. (2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in sub- section (2) of section 52.be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or SubTreasury in favour of the Commission, under the prescribed head of account, as security for the costs of the petition, such amount as may be prescribed. (2) An election petition shall be deemed to have been presented--(a) when delivered to the Election Tribunal appointed under section 140-- (i) by the petitioner in person; or (ii) by a person authorized in writing in this behalf by the petitioner; or (b) when sent by registered post or courier service to the Election Tribunal by the petitioner. (3) An election petition, if sent by registered post or courier service, shall be deemed to have been presented in time if it is posted or sent within the period specified in sub- section (1). 54. Parties to the petition.-The petitioner shall join as respondents to his election petition (a) all contesting candidates; and (b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition. Explanation. - In this section and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal practice" within the meaning of Chapter VIII.143. Parties to the petition.-- (1) The petitioner shall join as respondents to his election petition all other contesting candidates. (2) The Election Tribunal may direct the petitioner to join any other person as respondent against whom any specific allegation of contravention of this Act has been made. (3) The petitioner shall serve a copy of the election petition with all annexures on each respondent, personally or by registered post or courier service, before or at the time of filing the election petition. 55. Contents of petition.- (1) Every election petition shall contain,--- (a) A precise statement of the material facts on which the 144. Contents of petition.--(1) An election petition shall contain-- (a) a precise statement of the material facts on which the petitioner relies; and petitioner relies; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice144. Contents of petition.--(1) An election petition shall contain-- (a) a precise statement of the material facts on which the petitioner relies; and (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are alleged to have committed such corrupt or illegal practice or 82 illegal act and the date and place of the commission of such practice or act.
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or illegal act and the date and place of the commission of such practice or act; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely: (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or, (c) that the election as a whole is void. (3) Every election petition 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. (2) The following documents shall be attached with the petition-- (a) complete list of witnesses and their statements on affidavits; (b) documentary evidence relied upon by the petitioner in support of allegations referred to in para (b); (c) affidavit of service to the effect that a copy of the petition along with copies of all annexures, including list of witnesses, affidavits and documentary evidence, have been sent to all the respondents by registered post or courier service; and (d) the relief claimed by the petitioner. (3) A petitioner may claim as relief any of the following declarations-- (a) that the election of the returned candidate is void and petitioner or some other candidate has been elected; or (b) that the election of the returned candidate is partially void and that fresh poll be ordered in one or more polling stations; or (c) that the election as a whole is void and fresh poll be conducted in the entire constituency. (4) An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. 63. Dismissal of petition during trial.- The Tribunal shall dismiss an election petition, if,-- - (a) the provisions of section 54 or section 55 have not been complied with; or (b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.145. Procedure before the Election Tribunal. -- (1) If any provision of section 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition. (2) If an election petition is not rejected under sub-section (1), the Election Tribunal shall issue notice to each of the respondents through-- (a) registered post acknowledgement due; (b) courier service or urgent mail service; (c) any electronic mode of communication, which may include radio, television, email and short message service (sms);
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(d) affixing a copy of the notice at some conspicuous part of the house, if any, in which the respondent is known to have last resided or at a place where the respondent is known to have last carried on business or personally worked for gain; (e) publication in two widely circulated daily newspapers at the cost of the petitioner; and (f) any other manner or mode as the Tribunal may deem fit.
The comparative perusal of the aforesaid two statutes would show that they are verbatim copy of each other. Both the statutes had/have stipulated and prescribed that before filing of an election petition certain formalities have to be complied with and both these statutes have mandated that in case of noncompliance of any of these legal formalities, an election petition has to be summarily rejected, which further mandate that compliance of all these provisions are mandatory as non-compliance of any of them would entail the consequential penalty. In view of the above what a petitioner of an election petition is required to fulfill before or at the time of filing of an election petition or else would be liable for summary rejection. They are that: - (i) An election petition has to be presented to The Election Tribunal within forty-five (45) days of the publication in the official gazette of the name of the returned candidate. (Section 142) (ii) An election petition shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan in favour of the commission under the prescribed head. (Section 142) (iii) The petitioner has to join as respondents all the contesting candidates and the petitioner shall serve a copy of the election petition with all annexures on each respondents personally or by registered post or by courier service before or at the time of filing an election petition. (Section 143) (iv) The petitioner has to give a precise statement of the material facts and full particulars of any corrupt or illegal practice committed with full particular of the persons who have committed the same. (Section 144) (v) Petitioner has to attach a complete list of witnesses and their statements on affidavit and documentary evidence relied upon by him. (Section 144) (vi) Petitioner has also to attach an affidavit of service to the effect that copy of petition along with copies of all annexures etc. have been sent to all the respondents by registered post or through courier service. (Section 144) (vii) Petitioner has to claim a relief in the form and manner as mentioned in the sub section (3) of section 144. (Section 144) (viii) The election petition and annexures shall be signed by the petitioner and the petition shall be verified in the manner as laid down in the CPC for the verification of pleadings (Section 144) Now if the aforesaid mandatory provisions are placed in juxtaposition with the instant election petition then the contents of the instant election petition and its annexures appended therewith would prima facie show that the pre-requisite formalities as find mentioned from serial No. (I) to (VII) have prima facie been complied with (subject to proof), however, the requirement at serial No. (VIII) which requires the verification of pleadings as provided under the Civil Procedure Code has apparently not been complied with, which is to be highlighted in the following paras.
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6. It would be relevant to mention here that as per requirement of sub section (4) of section 144 of The Act of 2017, an election petition has to be verified in the manner as laid down in The Code of Civil Procedure, 1908 for verification of the pleadings. It would also be relevant to mention here that Order VI Rule 15 of The Code of Civil Produce, 1908 provides for the verification of the pleadings on oath and as such the oath has to be administered to the person, who has been appointed/authorized under section 139 of The Code of Civil Procedure 1908, both these sections being relevant are reproduced below; Order VI Rule 15. Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified 1 [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. Section 139. Oath on affidavit by whom to be administered.- In the case of any affidavit under this Code- (a) any Court or Magistrate, or (b) any officer or other person whom a High Court may appoint in this behalf, or (c) any officer appointed by any other Court which the 1 [Provincial Government] has generally or specially empowered in this behalf, may administer the oath to the deponent. That aforesaid provisions stipulates/ prescribed and require that every pleading shall be verified on oath or solemn affirmation at the foot by the parties to the satisfaction of the Court and the person verifying the pleadings shall specify by reference to the numbered paragraphs of the pleadings that he verifies of his own knowledge and what he verifies upon information and believed by him to be true and over and above the said verification must be signed by the person making it and it shall state the date on which and the place at which it was signed and it also requires that the pleadings have to be verified on oath and such oath is be administered by a person who is duly appointed & authorized by the High Court and thus any verification of pleadings short of the above would not be a valid verification of the pleadings. 7. Now this Tribunal would move forward to determine that as to whether present petitioner has verified the instant petition in a manner as provided by The Code of Civil Procedure, 1908 or not?. In order to answer the above, it would be relevant to insert hereunder the verification on the instant election petition made by petitioner. The aforesaid verification of petitioner would prima facie show that the same has not been made with reference to the numbered paragraphed of election petition which petitioner has verified on his own knowledge and what he has verified as per information received by him and which he believed them to be true. The said verification has also neither been attested by an authorized person/the oath commissioner nor any oath has been administered by the authorized person/oath commissioner and the same also manifestly does not show that the petitioner has personally appeared for signing the same. The same also does not show the date on which and the place at which the same has been signed by the petitioner. The identity of the petitioner through his CNIC number or through any other independent person is also apparently missing, therefore, in the given facts and circumstances when the verification has not been made in the manner as required under Order VI Rule 15 of Code of Civil Procedure, 1908 and when the same has
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not been attested by an authorized person/the oath commissioner and when there is no endorsement that the petitioner has actually, duly and physically appeared for administering oath before the commissioner and that where there is no date on which and the place at which the said verification was signed then such verification could not be termed as a valid verification within the meaning of sub section (4) of section 144 of The Act of 2017 read with Order VI Rule 15 and Section 139 of Code of Civil Procedure, 1908 and thus the same squarely falls short of legal requirement as required under the ibid provision of law and as result thereof, the petitioner has to suffer its penal consequence as provided under section 145 (1) of The Act of 2017. As stated herein above that section 144 (4) of The Act of 2017 is in the paria materia to section 55 (3) of The ROPA Act, 1976 and under the later law an identical circumstances The Apex Court in a case[1] has held that with regards to verification of election petitions on oath, it is clear from the provisions of section 55(3) of The ROPA that an election petition has to be verified in accordance with the provisions of Order VI, Rule 15 of The Code of Civil Procedure, 1908 which provide the basics as to how pleadings have to be verified, what shall be the contents of the verification of pleadings and how they have to be attested by the oath commissioner when read with other relevant provisions of law. Be that as it may, in addition to the law cited by both the sides (from some other dicta), it is conclusively settled by this Court that verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal. Similarly, in a case[2] at page 290 it has clearly been held that the verification of pleadings has been provided under Order VI, Rule 15 of The Code of Civil Procedure, 1908 which when read with section 139 of The Code of Civil Procedure, 1908, clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Ifitikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity. In a case[3] The Hon'ble Apex Court has held that the election petition was not verified on oath in the manner prescribed under The ROPA Act, 1976 read with Civil Procedure Code, 1908. It was further held that if the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in-compliance with the legislative intent. Non-compliance of this provision carries a penal consequence in terms of section 63 of The Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. Similarly in Zafar Abbas v. Hassan Murtaza PLD 2005 SC 600, the Supreme Court reiterated the similar view and it was held at page 604 that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory. In Abdul Qadir v. Abdul Wassay (2010 SCMR 1877), the Apex Court had set aside the judgment of the Election Tribunal in connected appeals because the issue involved in those cases was absence of verification clause signed and verified on oath with reference to the numbered paragraphs of the pleadings and the Court was pleased to hold as follows:-- "We feel no hesitation in holding that the Election Tribunal, perhaps on account of non- availability of proper assistance, proceeded to decide the cases against the appellants for the reasons mentioned hereinabove. This Court in the case of Bashir Ahmed Bhanbhan (supra) has settled the question with regard to verifying the pleadings notwithstanding the numbered paragraphs or the pleading, what he ve rifies of his own knowledge and what he verifies upon information received and believed to be true. This provision of law in fact cannot be considered
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to be mandatory as a person can verify the paras in the pleadings on his own knowledge without verifying any para upon receipt of the information, same are believed to be true. Directly such question has been attended in another judgment in the case of Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others (PLD 2005 SC 600). Relevant para therefrom is reproduced hereinbelow:-- "Learned counsel for the respondent raised another objection that the election petitioners in their verifications have failed to give reference to the paragraphs of the pleading as to what he either happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true. Such objection is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at time on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case." 8. It would also be relevant to mention here that the aforesaid provision of law in The Act of 2017 is also part of the election laws of The India as section 83 of The Indian Representation of People Act, 1951 which is in paria materia with section 55 of The ROPA of 1976 and section 144 of The Act of 2017. These sections of law being relevant are reproduced below for ready reference: - The Elections Act 2017…
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