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Petitioner: Engineer JAMEEL AHMAD MALIK VS Respondent: GHULAM SARWAR KHAN and 6 others
Court Name: Election Tribunal Judge(s): Syed Jamshed Ali Title: Engineer JAMEEL AHMAD MALIK vs GHULAM SARWAR KHAN and 6 others Case No.: Election Petitions No,111, 63, 161, 34, 128, 98, 151, 102, 129 and 89 of 2002 Date of Judgment:2004-01-08 Reported As: 2004 CLC 914 Result: Petitions dismissed
JUDGMENT
JUDGMENT ' The returned candidates in all the petitions noted hereunder are seeking dismissal of these election petitions on the grounds of violation of the provisions of sections 54 and 55 of the Representation of People Act (No,LXXXV) of 1976 and non-compliance of the procedure prescribed by the Election Commission of Pakistan under section 62 of Act LXXXV of 1976 vide the notification which was published in the official Gazette on 17-3-1985. The relevant facts are noted hereunder:-- Election Petition No,111 of 2002 2(i). The petitioner calls in question election of the returned candidate from National Assembly Constituency No,53 Rawalpindi-4. Through C.M. No,4 of 2003 the returned candidate seeks summary rejection of the petition on the ground that it has not been verified in accordance with the requirement of section 55(3) of Act No,LXXXV of 1976 nor the annexes to the said petition have been duly verified. Through C.M. No,5 of 2003, the petitioner seeks permission of this Tribunal to get verification of the petition attested by an Oath Commissioner and verification of Annexures "A" to "L". Perusal of this petition shows that although it has been verified with reference to the numbered paragraphs but the attestation by a duly authorized person is missing. The Annexures appended to this petition have not been verified. Election Petition No,63 of 2002 2(ii). Election of the returned candidate from PP-158 Lahore-22 has been assailed. Through C.M. No,1 of 2003, the returned candidate seeks dismissal of the election petition on the ground that not only the provisions of sections 54 and 55 have been violated but the procedure prescribed by the Election Commission by the notification dated 17-3-1985 was not complied with inasmuch as that the list of witnesses and affidavits of the witnesses were not submitted alongwith the election
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petition. Through C.M. No,2 of 2003, the petitioner was allowed to file the list of witnesses and place the affidavits of the witnesses on the record while C.M. No,1 of 2003 was ordered to be listed with the main petition. Perusal of this petition shows that neither the verification is with reference to the numbered paragraphs nor it has been attested by a person competent to administer oath. No separate affidavit has been filed. Election Petition No,161 of 2002 2(iii). In this petition the election of returned candidate from N.A.-82 Faisalabad-8 has been questioned. This petition has not been verified at all at its foot but a separate affidavit with composite verification without reference to the numbered paragraphs of the petition verified on the basis of petitioner's knowledge or information has been filed. The Annexures to this petition have been verified on oath. Election Petition No,34 of 2002 2(iv). Election to the Provincial Assembly Constituency No,144 Lahore-8 has been assailed. The returned candidate is seeking dismissal of t he petition through C.M. No,2 of 2003. Perusal of the record shows that the petition was verified on oath with reference to the numbered paragraphs but it was not attested by a duly authorized person while the documents filed with the election petition have not been verified. List of witnesses and affidavits were not filed alongwith the election petition and through C.M. No,3 of 2003, the petitioner seeks permission of this Tribunal to place on record list of witnesses and their affidavits. An affidavit with composite verification of the petition has also been filed. Election Petition No,128 of 2002 2(v). Election to Provincial Assembly Constituency No,133 Narowal-2 has been assailed. The petition does not bear any verification at all nor the documents appended to this petition have been verified. Except Annexure "G" which is an uncertified copy from the record of the Returning Officer, all other documents are duly attested copies of the record of the Returning Officer. A separate affidavit has also not been filed. Election Petition No,98 of 2002 2(vi). This petition calls in question election to National Assembly Constituency No,128 Lahore-2. The petition has been verified on oath duly attested by an Oath Commissioner but the verification is not with reference to the numbered paragraphs of the petition. A separate affidavit with composite verification of the petition has also been filed. The documents filed as Annexures "A" to "C" and "H" have been verified while all other documents are duly certified copies. List of witnesses and their affidavits were not submitted alongwith this petition. Through C.M. No,2 of 2003 the petitioner seeks production of the list of witnesses, affidavits of the witnesses and summary of evidence. Election Petition No,151 of 2002 2(vii). Election to National Assembly Constituency 128 Lahore-2 has been assailed in this petition as well. The petition has been verified on oath but not with reference to the numbered paragraphs nor it is attested by an authorized person. The documents filed with this petition are duly attested copies of the record of the Returning Officer. No separate affidavit has been filed. Election Petition No,102 of 2002 2(viii). This petition calls in question election to National Assembly Constituency 262 Layya-I. It has been verified on oath but the verification is not with reference to the numbered paragraphs nor it is attested by an authorized person. No separate affidavit has been filed. Photo copies of the public documents have been filed with this petition as Annexures which have been verified on oath. Election Petition No,129 of 2002 2(ix). This petition also calls in question election to P.P.262 Layyah-I. The petition is verified on oath with reference to numbered paragraphs but is not attested by a duly authorized person. No separate affidavit has been filed. Through C.M. No,2 of 2003 the returned candidate is seeking
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dismissal of the election petition on the ground that in Election Petition No,53/R of 2002 the nomination of the returned candidate was challenged but the learned Tribunal, comprising two Honourable Judges of this Court had dismissed the said petition vide order, dated 13-9-2002 with a finding that the returned candidate was duly qualified to contest the election. Through C.M. No,3 of 2003 the petitioner is seeking rectification of the defect of non-attestation of the verification by the Oath Commissioner. Photo copies of documents have been filed which are not verified. Election Petition No,89 of 2002 2(x). Through this petition, the petitioner calls in question the election to the Provincial Assembly Constituency No,85-Toba Tek Singh. This petition has been verified on oath but not with reference to numbered paragraphs and does not bear the attestation of a duly authorized person. Through C.M. No,1 of 2003, the petitioner seeks rectification of defect of verification. Uncertified copies of the documents have been appended to this petition which have not been verified. It may be noted that the affidavit of the witnesses were not filed alongwith this election petition but through C.M. No,2 of 2003 the affidavits of the witnesses were allowed to be placed on the record. Haji Muhammad Ishaq, a contesting candidate, has not been impleaded to this petition. 3. It may also be noted that in some of the cases some evidence has also been recorded and issues were also framed as to the effect of noncompliance of the provisions of sections 54 and 55. I, therefore, decided to hear all the learned counsel on the two questions firstly whether the provisions of sections 54 and 55 were mandatory particularly with regard to the verification of an election petition, whether defective verification was capable of rectification and whether the procedure prescribed by notification dated 17-3-1985 was mandatory. 4. On behalf of the returned candidates Messrs Dr. Khalid Ranjha, Malik Noor Muhammad Awan, Syed Zain-ul-Abiddin, Syed Mohsin Abbas, Mr. Azmat Saeed, Mr. M. Ajmal Khan and Mr. M. Akbar Shad and Mian Abdul Quddous, Advocates made submissions. 5. On behalf of tne petitioners, Rana Muhammad Arif, Ch. Bashir Ahmad, Mr. Fawad Hussain Chaudhry, Ch. Ghulam Sabir, Mr. Nazir Ahmad Ghazi, Mr. Sulman Makhdoom Tipu, Mr. Ejaz Feroze, Mr. Ahmad Awais and Ch. Manzoor Hussain, Advocates, made submissions. Petitioner in Election Petition No,111 of 2002 appeared in person and made submissions while nobody appeared in Election Petition No,151 of 2002 on any of the dates on which these cases were heard. The submission made on behalf of the returned candidates and the petitioners are being noted hereunder. 6. On behalf of the returned candidates reliance is placed on section 63 of Act No,LXXXV to contend that non-compliance of the provisions of sections 54 and 55, entails the penalty of dismissal of an election petition. According to subsection (3) of section 55 of Act LXXXV of 1976 every election petition and every schedule and annex to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of the pleading. It is being maintained that verification of a pleading is required to be made on oath or solemn affirmation at the foot by the party is required by sub-rule (1) of rule 15 of Order VI of the Code of Civil Procedure while according to sub-rule (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. It is maintained that although the Code of Civil Procedure does not entail any penal consequence of non-compliance of the provisions of rule 15 of Order VI of the said Code yet by virtue of section 63 of Act No:LXXXV of 1976, non-compliance of the provision as to verification of a petition and every schedule or annex has been declared as mandatory. 7. In support of this submission the learned counsel for the returned candidates have placed reliance on a recent judgment of the Election Tribunal (Punjab) in Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896. In the said judgment, after surveying the case-law exhaustively, my
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learned brother Sayed Zahid Hussain, J. Reached the conclusion that verification of an election petition not with reference to the numbered paragraphs, and not attested by a duly authorized person even if it was accompanied with a separate affidavit did not comply with the requirements of rule 15 of Order VI of the Code of Civil Procedure the provisions of section 55(3) being mandatory, the Election Tribunal had no choice and an election petition was liable to be dismissed. Reliance was also placed on the order, dated 22-9-2003 passed by me in Election Petition No,55 of 2002 whereby the election petition was dismissed for non-compliance of the provisions of section 55(3). It may be noted that in the said case (E.P.No,55 of 2002) there was no verification at all at the foot of the election petition but was verified with a separate affidavit and it was sought to be argued by the learned counsel for the petitioner in the said case that a separate affidavit was substantial compliance of the provisions of scction 55(3). In addition to the aforesaid judgments reliance was placed on Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250, Sheikh Mushtaq. Ali, Advocate v. Khalid Anwar 1999 MLD 1533, Muhammad Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132, Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83 and Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724. 8. In accordance with section 62 of Act LXXXV of 1976 an election petition is to be tried in accordance with the procedure laid down by the Election Commission. In pursuance of the aforesaid provision, the learned Election Commission of Pakistan issued the Notification which was published in the official. Gazette on 17-3-1985. According to the procedure prescribed therein every election petition is to be filed with the Secretary Election Commission of Pakistan in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and affidavits annexed to the petition have been supplied to the respondent. Para. 2 of these instructions provides that the election petition shall be processed by the Secretary, Election Commission and in case the petition is not in accordance with the procedure laid down it shall not be entertained and the petitioner shall be informed accordingly. If the petition is found to be in order, the Secretary shall fix the date of hearing, notice of which is to be published through the Press, Radio and Television which shall be deemed to be a valid notice and no personal notice shall be necessary unless the Tribunal feels necessary to do so. Paragraph 3 provides that on receipt of the notice of the petition, the respondent shall file written statement within seven days together with all the documents relied upon him and the affidavits of the witnesses as are desired to be produced. On the basis of the aforesaid notification it is being maintained by the learned counsel for the returned candidates that the election petitions which were not accompanied with the list of witnesses or their affidavits could not be entertained and were liable to be dismissed. The precise contention is that since the aforesaid notification specifically provides for submission of the list of witnesses and their affidavits, the powers of the Election Tribunal as provided in section 64 of Act No,LXXXV of 1976 stand abridged. In support of this submission, reliance is being placed on Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others 1990 CLC 595, Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar PLD 1986 Journal 160; Mrs. Rehana Hussain Mullick v. Sahibzadi Mahmooda Begum and another 1986 MLD 2707, Lt.-Col. (Retd.) J. Abel v. Returning Officer and 34 others 1987 MLD 1372, Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460, Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289, Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175, Dr. Abdul Hayee v. Mir Yar Muhammad Rind and others 1993 CLC 1090 and Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426. 9. On the other hand, the learned counsel for the petitioners maintained that defect of verification pertains to matter of procedure and, therefore, it is capable of rectification. They are relying on the provisions of section 64 of Act No,LXXXV of 1976 to contend that the Election Tribunal has all the powers of a Civil Court and, it has even inherent powers to permit removal of defect in the form of
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an election petition, notwithstanding the provisions of section 63. It has vehemently been argued that under rule 15 of Order VI of the Code of Civil Procedure, there is no express requirement that the oath shall be attested by a duly authorized person. With reference to the case of Engineer Iqbal Zafar Jhagra (supra) it is maintained that the rule laid down therein was with reference to section 139 of the C.P.C. Which provides for attestation of an affidavit and not attestation of verification of an election petition by a duly authorized person. Reliance was placed on the order, dated 16-10- 2003 passed by the Election Tribunal (Punjab) (My learned brother Mian Hamid Farooq, J) in Election Petition No,105 of 2002 according to which the petitioner ig the said case was allowed to amend the election petition by rectifying the defect of non-attestation of the verification by the Oath Commissioner. It may also be noted that in the said case, the judgment, of this Court Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2000 YLR 3148, according to which attestation of verification by the Oath Commissioner was not required was also referred. Reliance was also placed on the order, dated 9-6-2003 passed in E.P. No,50 of 2002 by my learned brother Rustam Ali Malik, J. This pertained to non-verification of the schedule and the annexes which was allowed. Reliance was also placed on H. Amanullah Khan v. Saiiibzada Tariqullah 1997 MLD 612, a judgment of the learned Election Tribunal N.-W.F.P. According to which defect in verification was held to be curable. Haji Aziz-ur-Rehman Chan v. Mian Abbas Sharif {{PAGE CUT}} #TBS nd that composite t of section 55(3) d on Abdul Nasir ers PLJ 2003 SC petition was not #TBE and another 1994 MLD 2293 was also referred to con verification of an election petition met the requireme of Act No,LXXXV of 1976. Reliance was also plac and another v. Election Tribunal, T.T. Singh and o 934 to contend that defective verification of an electi fatal. 10. 11. #TBS 12. Tion Commission oresaid procedure ance as given in 13. Election petition accordingly. The 14. Is a petition for 15. Dure shall be 16. Ssion, the author er contended that 17. Ivil Court under those powers. In prescribed vide tory reliance was 18. Other 1995 CLC 19. Others PLJ 1999 20. Xes the contention 21. e and annexes in nts which contain 22. Tion and in case the documents of fication would be 23. Yusuf Shah and 24. Itioner personally s for the purpose It was further al matter and the ds of justice. He 1963 SC 382 and tan v. Khuda Yar that the issue roper verification ce was placed on Court whereby order of Election was dismissed. 25. #TBE 26. As far as the procedure prescribed by the El of Pakistan is concerned, the contention was that the a is directory and the only consequence of non-comp para.2 of the said notification dated 17- 3-1985 is that is not to be entertained and the petitioner informed contention is that once the Election Commission ent trial to an Election Tribunal, the defect in pr deemed to have been condoned by the Election Com of the notification dated 17-3-1985. It is being f since an Election Tribunal has all the power of a section 64, a subordinate legislation could not curta. Support of the
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submission that the procedure notification dated 17-3-1985 was regulatory and dir placed on fhsanul Haq v. Dr. Saddique Hussain and 382 and Rai Asghar Ali Khan v. Returning Officer Lah. 632. 27. As to the verification of the schedule and ann on behalf of the petitioners is that reference to sched section 55 of Act LXXXV of 1976 is to those docum additional information and grounds to challenge the e the documents filed with the petition are copies of public record to support the election petition no ve required. Reliance was placed on S.M. Ayub v. Sy others PLD 1967 SC 486. 28. In Election Petition No,111 of 2002 the pe appeared and submitted that amendment in the plead' of removal of defect of form is to be liberally allow contended that defect in verification is only a proced technicalities should not be allowed to defeat the relied on Imtiaz Ahmad v. Ghulam Ali and others PL Manager, Jammu and Kashmir, State Property in P and another PLD 1975 SC 678. It was further conte whether the petition is not maintainable for want of should be decided at the conclusion of the trial. Reli the order, dated 1-7-2003 of a Division Bench of Writ Petition No,8873 of 2003 directed against an Tribunal not to treat an issue as preliminary Reliance was also placed on Abdul Latif v. Additional District Judge/Election Tribunal/M.C. Arifwala 2000 YLR 946 a judgment of this Court in Constitutional jurisdiction according to which the defect in verification was not considered to be fatal. Reliance was also placed on Haji Amanullah Khan v. Sahibzada Tariqullah, and 2 others 1995 CLC 158. 13. On the question of attestation of verification by the Oath Commissioner, Engineer Jameel Ahmad contended that some declarations in the nomination papers are required to be made on oath but no nomination paper has ever been rejected for want of attestation of the oath or the declarations therein by a duly authorized person. He also relied on Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, Mir Mazar v. Azim PLD 1993 SC 332, Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lah. 149 and Meraj Din v. Safdar Khan and 4 others 2003 CLC 1841. {{PAGE CUT}} 14. I have considered the submissions made by the learned counsel for the parties and the petitioner in E.P. No,111 of 2002. It has not been disputed that provisions of section 55(3) of Act LXXXV of 1976 are mandatory. This aspect of the matter was elaborately dealt with by' my learned brother Syed Zahid Hussain, J. It is also being contended that a composite verification on oath at the foot of the election petition, even if not attested or verified by duly authorized person, is substantial compliance of the provisions of section 55(3) of Act No,LXXXV of 1976. 15. The requisites of a valid verification, according to rule 15 of Order VI of the Code of Civil Procedure are:-- (a) should be at the foot of the election petition on oath or solemn affirmation; (b) 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; (c) the verification shall be signed by person making it. 16. It is vehemently argued that there is no express requirement of rule 15 of Order VI of the Code of Civil Procedure for attestation of verification of an election petition by an Oath Commissioner or a person duly authorized in this behalf. It was also asserted that a plaint is required to be verified on oath and no plaint has ever been rejected on the ground that the verification of a plaint was not attested by a person duly authorized. The rule laid down in the case of Engineer Iqbal Zafar Jhaghra was tried to be distinguished. 17. The provisions of section 36(3) of the Senate Election Act (No,LI), 1975, which are in para materia with section 55(3) of Act No,LXXXV of 1976, came under consideration of the learned Peshawar High Court in the case of Syed Iftikhar Hussain Gillani (supra) and the view taken was that provisions of
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section 36(3) were mandatory, an oath or solemn affirmation was required to be made before a person authorized under the law to administer oath or affirmation and, therefore, non-compliance of section 36(3) entails penal consequence. Accordingly, the election petition was dismissed. The matter was then taken to the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhaghra (supra) and the judgment of the learned Peshawar High Court was affirmed with the following observations:-- ' "Subsection (3) of section 36 ibid clearly requires that every petition and every schedule or annexures shall be signed by the petitioner and verified in the manner lam down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order 6, 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 authorised 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 authorised 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." 18. The aforesaid judgment was followed by the learned Election Tribunal of Punjab in the case of Asif Nawaz Fatayana (supra). I also happened to examine the issue in Election Petition No,55 of 2002. In the said case there was no verification at all at the foot of the election petition. I, therefore, considered it necessary to hear all the learned counsel for the petitioners to further examine the matter as to the effect of verification of an election petition not being attested by a duly authorized person. 19. Oaths are administered under Oaths Act (X) of 1873. Section 3 of the said Act provides as follows`:-- "3. Saving of certain oaths and affirmation. Nothing herein contained applies to proceedings before Courts Martial, or to oaths, affirmations or declarations prescribed by or under any law President's warrants or for the time being in force." ' Section 4 specifies the persons competent to administer oaths…
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