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Petitioner: MUSHTAQ AHMED VS Respondent: SARDAR AFTAB AKBAR KHAN, ETC
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title: MUSHTAQ AHMED vs SARDAR AFTAB AKBAR KHAN, ETC Case No.: Election Petition No.02 of 2018 Date of Judgment:2019-02-08 Reported As: 2019 MLD 1313, 2019 LHC 360 Result: petition rejected
Judgment Mirza Viqas Rauf, J. This petition under Section 139 of The Elections Act, 2017 (hereinafter referred as "The Act, 2017") calls in question the candidature of respondent No.1 (hereinafter referred as "respondent") namely Sardar Aftab Akbar Khan, who was declared as returned candidate in the General Elections, 2018 from PP-23, Chakwal (hereinafter referred as "Constituency"). 2. Briefly , the facts necessary for adjudication of instant petition are that the petitioner namely Mushtaq Ahmad contested the General Elections, 2018 from the "Constituency" as a nominee of Pakistan Muslim League Nawaz (P.M.L.N) whereas "respondent" participated as a candidate of Pakistan Tehrik-e-Insaf (P.T.I). At the end of poll, the "respondent" was declared as Returned Candidate and he was notified as Member Provincial Assembly vide notification dated 7 August, 2018. This petition questions the candidature of "respondent" on multiple grounds. On this petition, notice was issued to the respondents and in response thereof, the "respondent" arranged his representation and submitted reply . On the last date i.e. 1 February , 2019, learned counsel for the "respondent" raised certain preliminary objections on the maintainability of the instant petition, which reads as under:- At the very outset, learned counsel representing the respondent No.1 raises preliminary objections on the maintainability of this petition. While making reference to Section 142 of The Elections Act, 2017, learned counsel submits that the instant petition was supposed to be accompanied with a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury 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. Secondly, that the petition lacks full particulars as contemplated in Sub-Section 1(b) of Section 144 of the Act ibid and it also lacks the verification as is required in Sub-Section 4 of the said Act. 3. Mr. Muhammad Taimoor Malik, Advocate for the "respondent", while proceeding with his submissions, contended that in terms of Section 142 of "The Act, 2017", the petitioner was obliged to append a receipt showing that he has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury in favour ofth st
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the Commission, under the prescribed head of account as security for the costs of the petition but no such deposit was made. He next contended that the petition lacks necessary particulars of corrupt or illegal practice as is required under Section 144 of "The Act, 2017". Learned counsel submitted that verification is not in the prescribed form and petition is even not verified in accordance with law. It is emphatically argued that the election petition is not maintainable in view of these material defects. 4. Conversely , Sardar Abdul Raziq Khan, Advocate for the petitioner , while respond ing the adversary , submitted that non-deposit of security was due to ignorance. He added that even otherwise, in terms of Rule 140 The Election Rules, 2017 (hereinafter referred as "The Rules, 2017"), the petitioner has not been informed about the deficiencies in the petition and as such the petition is proceedable. Learned counsel contended that verification was made strictly in accordance with law and mere form of verification cannot be made basis for rejection of petition. Learned counsel further contended that when once a tribunal has proceeded with the election petition and not rejected it summarily , then it cannot be dismissed now without formal trial. He also added that reply filed by "respondent" is not within prescribed time. 5. Heard. Record perused. 6. Before attending the question of maintainability of the petition, it would be advantageous to first examine as to whether a tribunal is precluded to reject the election petition summarily, if once it is not rejected under Section 145 (1) of "The Act, 2017". Needless to observe that Section 145 of "The Act, 2017" lays down a procedure for the trial of election petition. In terms of sub-section (1) of Section 145, the election tribunal is vested with the power to summarily reject the election petition if it is not in conformity with the provisions of Section 142, 143 or 144 of "The Act, 2017". As per sub-section (2), if an election petition is not rejected under sub-section (1), the Election Tribunal shall issue notices to each of the respondents through the modes provided therein. The answer to the question framed hereinabove can easily be ascertained from the "The Act, 2017". Section 148 provides a procedure before the Election Tribunal for trial of petitions, which reads as under:- 148. Procedure before Election Tribunal for trial of petitions. -- (1) Subject to this Act and the Rules, the trial of an election petition, shall be as nearly as possible, in accordance with the procedu re applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits and the Qanun-e -Shahadat Order , 1984 (President's Order . No. X of 1984). (2) The Election Tribunal shall, unless it directs otherwise for reasons to be recorded, order any or all the facts to be proved or disproved by affidavit and may, for the purposes of expeditious disposal, apply such other procedure as the circumstances of the case may warrant. (3) The Qanun-e-Shahadat Orde r, 1984 (President's Order . No.X of 1984), shall apply to the trial of an election petition unless otherwise provided under this Act. (4) On filing of reply by the respondent, the Election Tribunal may, with the consent of parties, fix specific dates for trial and disposal of the petition, providing for continuous hearing without adjournment. (5) If the parties do not consent to specific dates under sub-section (4), the Election Tribunal shall proceed with the trial of the election petition on day-to-day basis and no adjournment shall be granted to any party for more than seven days and that too on payment of such costs as the Tribunal may determine and the election petition shall be decided within one hundred and twenty days of its filing. (6) If an election petition is not finally decided within one hundred and twenty days -- (a) further adjournment sought by a party shall be granted only on payment of special costs of ten thousand rupees per adjournment and adjournment shall not be granted for more than three days; (b) if the Election Tribunal itself adjourns the election petition, it shall record reasons for such adjournment; (c) where the delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Election Tribunal itself or on application of the aggrieved party , may, after issuance of show cause notice to the returned cand idate and within fifteen days of the date of show cause notice, order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct; and
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(d) if a serving Judge is the Election Tribunal, the Commission shall request the Chief Justice of the High Court that no judicial work other than election petitions should, to the extent practicable, be entrusted to him till the final disposal of the election petitions. (7) The Election Tribunal may, for reasons to be recorded, refuse to examine any witness if it is of the opinion that the evidence of such witness is not material for the decision of the election petition or that the party on whose behalf such witness has been summon ed has done so on frivolous grounds or with a view to delaying the proceedings. (8) Notwithstanding anything contained in any other law, no document shall be inadmissible in evidence at the trial of an election petition only on the ground that it is not properly stamped or registered under the relevant law. (9) A witness shall not be excused from answering any question as to any matter in issue or relevant to a matter in issue in the trial of an election petition upon the ground that the answer to such question may incriminate or tend to incriminate him or that it may expose or tend to expose him to any penalty or forfeiture, but a witness shall not be required or permitted to state for whom he has voted at an election. (10) A witness who truly answers all questions which he is required to answer may be granted a certificate of indemnity by the Election Tribunal and an answer given by him to a question put by or before the Tribunal shall not, except in the case of any criminal proceeding for perjury in respect of his evidence, be admissible in evidence against him in any civil or criminal proceedings. (11) A certificate of indemnity granted to any witness under sub-section (10) may be pleaded by him in any court and shall be a full and complete defence to or upon any charge under Chapter IXA of the Pakistan Penal Code, 1860 (Act LXV of 1860) or under this Act, arising out of the matters to which such certificate relates, but it shall not be deemed to relieve him from any disqualification in connection with an election imposed by any law . (12) The Election Tribunal shall direct any party to pay reasonable expenses incurred by any person in attending the Tribunal to give evidence and shall, unless the Tribunal otherwise directs, be deemed to be part of the costs. (Underlining supplied for emphasis) Bare reading of the above referred provision of law clearly manifests that the Tribunal has to proceed with the election petition in accord with the procedure as nearly as possible in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (hereinafter referred as "Code") to the trial of suits unless the Act or Rules prescribe otherwise. Law thus places no embargo or restriction on the powers of the Tribunal to reject the election petition at any stage if it suffers with material legal flaws. The Tribunal when once reaches at the conclusion that petition is not proceedable, it cannot wait till the culmination of the proceedings through a regular trial. The mandate of law is to nip the evil in the bud. The "Code" also bestows power upon the Civil Court to reject the plaint summarily in terms of Order VII Rule 11, if it suffers with the flaws mentioned in the said provision. The Tribunal, thus, can proceed on the same paramateria and to reject the election petition at any stage. The Tribunal is even vested with the power to adopt any other procedure for the expeditious disposal depending upon the circumstances of the case. The provisions of "The Act, 2017" are unequivocal and clear to this extent that a petitioner while presenting the election petition, is obliged to adhere the mandate of Section 142, 143 and 144 of "The Act, 2017". Non-compliance of any of the said provisions renders automatic rejection of the election petition. In terms of section 142 of "The Act, 2017", it was obligatory for the petitioner to append a receipt showing that he has deposited at any branch of the National Bank of Pakistan or a Government Treasury or Sub-T reasury in favour of the Election Commission under the prescribed head of account as security for the costs of the petition such amount as may be prescribed. Admittedly election petition was not accompanying any such receipt. 7. So far contention of learned counsel for the petitioner that the petitioner was ignorant about the amount and head of account and despite his efforts he was not advised by the office properly to this extent, it is observed that ignorance of law is no excuse. In order to carry out the purposes of "The Act, 2017", "The Rules, 2017" were framed. Rule-139 has prescribed the procedure of presentation of Election Petition. As per Sub-Rule 4, the petition shall be accompanied by a receipt showing that the petitioner has deposited at any branch of National Bank of Pakistan as security for the costs of the petition, a sum of twenty thousand rupees in the head of account "C03- Miscellaneous Receipts, C038-Others, C03870 Others (Election Receipts). Since the amount as well as the head
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of account was duly notified in the Rules itself, so contention of leaned coun sel for the petitioner is highly misconceived and ill-founded. 8. Next comes the question of verification of the election petition. The mechanism to this effect is provided under Section 144 (4) of "The Act, 2017", which prescribes that the election petition and its annexures shall be signed by the petitioner and the petitio n shall be verified in the manner laid down in the "Code" for the verification of pleadings. Order VI Rule 15 of "Code" ordains the manner of verification of pleadings in the following manner:- 15. Verification of pleadings. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified 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. There is no second opinion that the above said provision of law is in parame teria to Section 55 (3) of The Representation of The People Act, 1976. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan, in the case of "Lt. Col. (Rtd.) GHAZANF AR ABBAS SHAH v. Mehr KHALID MEHMOOD SARGANA and others " (2015 SCMR 1585 ), while dealing with the matter in issue, held as under:- "5. With regards to verification of election petitions on oath, it is clear from the provisions of section 55(3) of the ROP A that an election petition has to be verified in accordance with the provisions of Order 6 Rule 15, C.P.C. 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 attest ed 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. In reference to the above, it shall be advantageous to reproduce the following part of the judgment reported as Zia- ur-Rehman supra wherein it has been categorically held:-- "8. Every election petition and every schedule or annexure to the election petition has to be signed by the petitioner and verified in the manner laid down in Civil Procedure Code. Rule 15 of Order VI of C.P.C. lays down the procedure of verification, which reads as under:-- 15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [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. (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. 9. The penal consequence of non-compliance with sections 54 and 55 of the Representation of the People Act is provided in section 63 of the Representation of the People Act, which reads as follows:-- 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." 10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not he 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. The effect of non- compliance of section 55 of the Representation of the
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People Act, 1976 came up for consideration before this Court in lqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that "the verification of pleadings has been provided under Order VI, Rule 15, C.P.C. which when read with section 39, C.P.C., 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 Iftikhar 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." 6. Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date or place mentioned in the verification i.e. at what date and what place the verification was made by the appellant. The two stamps of the oath commissioner , Lahore Cantt, affixed at the bottom of the verification also do not postulate the date on which the verification was made by the election petitioner . Besides, it is not reflected from the verification whether the appellant was present at the time of verification before the oath commissioner because he has not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars are not even mentioned on the said verification. Therefore on account of the deficiencies identified above, we hardly find the verification to be valid in terms of spirit of provisions of section 55(3) of the ROP A and in line with the law laid down by this Court in various dicta. Resultantly , we have no hesitation to hold that the verification is not in accord with the law . 7. We shall now turn to the second limb of the proposition i.e. whether the affidavit enclosed with the election petition was sufficient for establishing that the election petition has been duly verified in accordance with law or not. For this purpose, so as to determine the prerequisites of a valid affidavit, the provisions of High Court Rules and Orders, Chapter No.12, V olume No.IV , Rules Nos.1 1, 12, 14, 15 and 16 are reproduced below:-- "11. Identification of deponent .Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him; and such Court, Magistrate or officer shall specify at the foot of the affidavit, the same and description of the person by whom the identification is made, as well as the time and place of the making of the af fidavit. 12. Mode of attestation .The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added. 14. Attesting Officer's duty .If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court. Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it. 15. Attesting, signing and verification or affidavit.Every affidavit shall be signed or marked and verified at foot by the declarant and attested by the Court, Magistrate or other officer administering the oath or affirmation, the verification, by the declarant shall be in one of the forms attached thereto, and shall be signed or marked by the declarant the attestation of the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below. 16. Manner of administering oath to deponent. In administering an oath or af firmation to the declarant in the case of any affidavit under the Code of Civil Procedure, the Court, Magistrate or other officer appointed in that behalf
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shall be guided by the rules under the Indian Oaths Act, 1878, printed in Part A of this Chapter and shall follow the form of verification by oath or af firmation thereto appended 1-FORM OF VERIFICA TION OF OA TH OR AFFIRAMTION (Vide paragraph 15 above) Oath. I solemnly swear that this may declaration is true, that it conceals nothing, and that no part of it is false____so help me God. Affirmation. I solemnly af firm that this my declaration is true, that it conceals nothing and that no part of it is false. II-FORM OF CERTIFICA TE (vide paragraphs 12, 14 and /5 above) Certified that the above was declared on________ (here enter oath)/af firmation as the case may be) before me this_______(date) day of____(month)____(of 19 __, at ___ (place) in the district of (name of district) by _______(full name and description of declarant) _____who is______here enter "personally known to me" or identified at (time and place of identification) by (full name and descriptor: of person marking the identification), who is personally known to me". (Full Signature) A. B. (Officer) District Judge (or as the case may be) of II-A The exhibits marked A.B.C. (as the case may be) above referred to are annexed hereto under this date and my initials. Certified further that this affidavit has been read and explained to (name) ................. the declarant who seemed perfectly to understand the same at the time of making thereof. " From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites: 1. Identification of deponent (Rule 11) 2. Particulars of deponent and identifier to be mentioned at the foot of the af fidavit (Rule 1 1) 3. Time and place of the making of the af fidavit to be specified (Rule 1 1) 4. Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12) 5. Date, Signature and name of office and designation of the Court/ Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12) 6. Every exhibit referred to in the af fidavit to be dated and initialed by the Court/Magistrate/Other Of ficer (Rule 12) 7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/ Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/ Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14) 8.…
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