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Petitioner: Bilal Aslam VS Respondent: Naseer Ahmad etc
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title: Bilal Aslam vs Naseer Ahmad etc Case No.: Election Petition.No.16 of 2018 Date of Judgment:2019-01-10 Reported As: 2019 CLC 533, PLJ 2019 Lahore 216, 2019 LHC 1 Result: Petition rejected
Judgment CH. MUHAMMAD IQBAL, J. Brief facts of this petition are that General Election was held on 25.07.2018 and as a result of the poll, respondent No.1 Naseer Ahmad was elected as member of Provincial Assembly of Punjab (PP-163 Lahore-XX) and his notification as a returned candidate was issued on 07.08.2018 by the Election Commission of Pakistan. Petitioner who was a runner up candidate being dissatisfied from the election results challenged the notification of respondent No.1 through the instant election petition inter-alia on the grounds that Form 45 was illegible and numbers of the votes were illegally counted in favour of the returned candidates; that many irregularities were observed while recounting process by the duly nominated agents of the petitioner; that many double stamped votes were counted in favour of the respondent; that the polling agents of the petitioner were not given a fair access during the counting process; that the respondent being Ex-MPA of the constituency inserted influence on the voter on the date of election; that narrow margin of only 2028 votes is occasioned in the counting process and if the petitioner 's votes are fairly counted the result would be altogether different; that many ballots of the petitioner malafidely placed in the bundle of the respondents votes; that the entire process of recounting tabulation and consolidation of the result was maneuvered one. The petitioner finally prayed that election of respondent No.1/returned candidate may be declared void and fresh re-counting of the vote may kindly be ordered to be conducted. Hence, the present petition. In response to the notice of this Court, respondent No.1 joined the proceedings on 09.10.2018, whereas the other respondents defaulted in appearing and they were proceeded against ex-parte on 09.10.2018. Respondent No.1 Naseer Ahmad filed contesting reply to the Election Petition raising preliminary objections as well as on merit inter- alia on the grounds that no verification of Election Petition was made according to Section 144(4) of the Election Act as well as according to order 6 Rule 15 CPC; that Affidavit of the petitioner does not disclose the true facts for which matter the affidavit shall be confined; that verification of affidavits of witnesses as well as documents/Annexure annexed with the Election Petition has not been made according to the provisions of law; that
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full particulars of the corrupt or illegal practice have not specifically been jotted down in the petition; that copies of election petition, affidavits of the witnesses, list of witnesses and all the allied material documents have not been served to the respondents; that election petition is incompetent due to misjoinder of all the necessary parties; that principle of Approbate and Reprobate is applicable to the petitioner 's case; that the petitioner has no cause of action to file the instant petition and prayer sought by the petitioner is not available. 2. Learned counsel for respondent No.1 raised preliminary objection regarding maintainability of this petition and submits that no specific particulars of any alleged corrupt or illegal practice or other illegal act alleged so committed, including names of the partie s witness as well as the name of person who allegedly committed such corrupt or illegal practice or illegal act have been mentioned and no date and place of the commission of such practice or act has been described with full elaboration in the petition as prescribed under Section 144 (1) (b) of the Election Act 2017; that verification of the election petition is not made as require d under Section 144 (4) of the Election Act, 2017, as such, election petition is liable to be rejected for non-compliance of mandatory provision of Sections 142, 143 and 144 of the Act ibid. 3. Heard. The right of association, participation in political activities to contest the election or to elect their representative etc., are enshrined in Article 17(2) of the Constitution of Pakistan, 1973 whereby every citizen is entitled to participate or contest the Election to be a member of legislatives institution subject to certain qualification prescribed under the law. It is vested jurisdiction of the parliament under Article 225 of the Constitution of Pakistan, 1973 to frame or legislate law. The Election Act, 2017 is also visualized and legislated by the parliament which prescribed an elaborate mechanism of the Election of representative of the people from gross route level upto the member of Parliament. The Election Act, 2017 is legislated by the Parliament which is a special law on the subject and it regulate the entire process of election commencing from issuance of the notification for holding of election, the process of polling, issuance of notification of the successful candidate or the final resolution of any dispute associated with the such election proces s. The Election Act, 2017 is a comprehensive and elaborate enactment which coops each and every aspect of the matter relating to Elections. Admittedly , the Election Act 2017 is special law and jurisdiction where under is to be exercised in its letter and spirit and it takes preference over the general law on the subject. Under the Election Act the process of Election or any ancillary matter or any illegality , irregularity illegal and corrupt practices etc., can only be challenged through presenting an election petition before the Election Tribunal/Court according to the procedure elaborated in the Election Act. Any violation of law committed in pre poll, during the poll and post poll process can only be challenged through presenting an Election Petition as envisage in Section 139 of the Election Act, 2017 (The Act). It is worth mentioning here that two fold sanctity is attached to the election process firstly the people exercise their fundamental right of vote in favour of their best representative who represent their aspiration at the local as well as in national level secondly a legal sanctity is also attached to the official acts and to surmount the above extraordinary correctness in narration of the facts in the pleading as well as strongly corroborating material evidence is required. It is unalienable obligation of the Tribunal to strictly scrutinize the petition at the very inception as to whether it qualify the touchstone or standard prescribed by Sections 142, 143 and 144 of the Election Act, 2017 or otherwise. For ready reference, provision of relevant sections whereof are reproduced as under:- 142. 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 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 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. (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 .
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(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). 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. 144. 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 illegal act and the date and place of the commission of such practice or act. (2) The following documents shall be attached with the petition -- (a) complete list of witnesses and their statements on af fidavits; (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 candi date 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. " As a legislation by reference under section 144 (4) of the Election Act, 2017 the principles of Civil Procedure Code 1908 relating to verification of the pleading are made applicable in the manner of verification prescribed in the Code of Civil Procedure, 1908 (Act V of 1908). The procedure for verification of the pleading is given in Order 6 Rule 15 CPC which is as under:- 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. The next significant document in the judicial proceeding of lis is an affidavit which legally brings sanctity to the assertion propounded in pleadings and this materia l document is also required to be verified as prescribed by the law . Under Order 19 (3) CPC, the prescribed requirement of a valid af fidavit which is mentioned as under:- 3.Matters to which affidavits shall be confined (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated. (2) The cost of every affidavit which shall unnecessarily set forth matter of hearsay or argumentative matter , or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
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The provision of CPC quoted hereinabo ve regarding the prove of the facts which are deemed to be correct according to the personal knowledge of the deponent and such pertinent fact be specified and sifted out from the pleading and information received from other sources be specified with para number that such information are correct according to belief of deponent and a very conspicuous distinction or demarcation should be made qua personal knowledge and correctness of the information according to belief. Further , Lahore High Court in its Rules & Order V ol. IV , Chapter-12, Rule 1 1,12, 14, 15 & 16 has laid down following prerequisites of an af fidavit that:- i. Identification of deponent ii. Particular of deponent and identified to be mentioned at the foot of the affidavit. iii. Time and place of the making of the affidavit to be specified. iv. Certification by Court/Magistrate/other Officer at the foot of the affidavit that such affidavit was made before him. v. Date, signature and name of the Office and designation of the Court/Magistrate/Other officer to subscribe underneath the Certification. vi. Every exhibit referred to in the affidavit to be dated and initiated by the Court/Magistrate/Other Officer . vii. 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 the 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. viii. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to the attest the affidavit. ix. Oath to be administered by the Court/ Magistrate/ Other Officer in accordance with the Indian Oath Act 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other Officer on forms appended thereto. The aforementioned provision of law are made obligatory for a petitioner to fulfill the above statutory requirements which are mandatory in nature and if the said provisions of law are not complied with then penal provision of Section 145 (1) shall come into play and election petition is necessarily liable to be rejected summarily under Section 145 (1) of the Election Act which is reproduced as under:- "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." 4. Now adverting to the institution of this petition, its contents, verification of the petition, affidavits, contents of the affidavits, attestation of affidavit of witnesses, the annexures and other document appended with this petition as well as illegal and corrupt practices as alleged in this petition. The verification of the Election Petition given at Page 16 which reads as follow:- Verification: Verified on oath at Lahore on the 17th that the contents of para No.1 to 8 are true and correct to the best of my knowledge and belief and rest of the paras No.9 to 1 1 are believed to be correct. Petitioner Certificate As per instructions, it is certified that this is first election petition before this Honourable Tribunal on behalf of the petitioner . Advocate From the perusal of aforementioned verification it does not contain the month and year as well as the exact place at which the verification is being made on Oath rather it does not contain the name of identifier his full particular as well as his national identity card number in the verification. Further it does not contain any attestation of Oath Commissioner which is mandatory requirement in election matters as described in sub section 4 to Section 144 of the Election Act, 2017. As no verification has been made on oath which illegality in itself is fatal for the election petition. The question with regard to the verification of election petition came under judicial scrutiny and the Hon'ble Supreme Court of Pakistan in a judgment titled Lt.Col. (Rtd.) Ghazanfar Abbas Shah Vs Mehr Khalid Mehmood Sargana & Others (2015 SCMR 1585) has held as under:-
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"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, CPC 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." 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 ROPA 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." "It is also relevant to note here that in an ordinary lis (suit etc.) requiring verificatio n and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matte r before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same." Further , in the judgment titled Sultan Mahmood Hinjra Vs Malik Ghulam Mustafa Khar & Others (2016 SCMR 1312 ), the Hon'ble Supreme Court of Pakistan held as under:- "....6. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleadings are generally directory in natur e, the position is different in election laws by virtue of Section 63 of the ROP A, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of Sections 54 or 55 of the ROP A, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under Section 63 of the ROP A, 1976." 8. This Court in a chain of judgments has addressed the issue of verification of pleadings wherefrom reproducing the relevant portions would be beneficial here. In the case of Zia ur Rehman Vs. Syed Ahmed Hussain and others (2014 SCMR 1015 ) it has been held as under:- "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 be in-compliance with the legislative intent. Non-compliance of this provision carries a penal consequences 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-comp liance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that "the verific ation 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 Syued Iftikhar Hussain Gilani 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
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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 ." And in the case of Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600), this Court has laid the following guidelines:- "The verification on oath of the contents of an election petition, is provided under section 55(3) of the Representation of the People Act of 1976, (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellan t and verified in the manner laid down in the Code of Civil Procedure, 1908. The Code contains such provisions under Order VI, rule 15, which requires the verification of pleadings, on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered. So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of sections 54 and 55 of the Act have not been complied with. Simila r view was taken by this Court in Iqbal Zafar Jhagra`s case (2000 SCMR 250), though related to the Senate elections. It is, therefore, settled 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 ." 5. As far as the question with regard to proper filing of the affidavits, the procedure provide in Order 19 Rule 3 CPC as well as High Court Rules and Order Chapter 12 Vol. IV, Rules 11, 12, 14, 15 & 16 are to be complied with and the affidavits shall contain such qualification as enunciated in afore-quoted rules whereas the affidavit attached with the instant petition does not make distinction between the correctness of fact according to the personal knowledge of deponent or the correctness of information according to believe of the deponent by making specific reference to the paragraphs, whereas the verification and identification of the deponent are also lacking which show that affidavits were not sworn as per law. The requirement of valid affidavits has also been discussed by the Hon'ble Supreme Court of Pakistan in a judgment titled Lt.Col. (Rtd.) Ghazanfar Abbas Shah Vs Mehr Khalid Mehmood Sargana & Others (supra) held as under:- "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 Rule and Orders, Chapter No.12, V olume No.IV , Rules No.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…
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