2007 C L C 1192

[Lahore]

Before Syed Zahid Hussain, J

Engineer JAMEEL AHMAD MALIK----Petitioner

Versus

SHAUKAT AZIZ and 6 others----Respondents

Election Petition No.2 of 2004, decided on 20th April, 2007.

(a) Representation of the People Act (LXXXV of 1976)---

----Ss. 52, 55, 62 & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Election petition---
Maintainability---Verification and attestation of election petition---Procedure---Failure of
petitioner to comply with the provisions of Ss.54, 55 & 63, Representation of the People Act.
1976 and verification of the petition not in conformity with the provisions of S.55(3) of the
Act read with O.VI, R.15, C.P.C.---Effect---Held, strict compliance of requirement of law
was mandatory and deviation therefrom could not be afforded---Even small and trivial
deviations from procedure and form prescribed by the election laws would result in dismissal
of the election petition---When defects in the petition were so obvious and fatal, there would
be no use of the trial on other issues and the petition was liable to be dismissed ---Principles.

Jagan Nath v. Jaswant Singh and others AIR 1954 SC 210; Devi Prasad v. Chairman of the
Court of Election Tribunal Gorakhpur and another AIR 1956 All. 19; M. Karunanidhi v.
H.V. Handa and others AIR 1983 SC 558; Zafar Iqbal Jhagra's case 2000 SCMR 250;
Muhammad Ashraf Rasool v. Ali Abbasi and 13 others 200'4 YLR 1742; Haji Ch. Masood
Akhtar v. Election Commission of Pakistan through Chief Election Commissioner 2005 CLC
172; Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema and another 2005 CLC
1577; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC
600; Muhammad Saeed v. Tahir Malik and others 2005 CLC 1493; Ch. Muhammad Ashraf
v. Rana Tariq Javed and others 2007 SCMR 34; Jam Mashooq Ali v. Shahnawaz Junejo 1996
SCMR 426; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382; Manager, Jammu
and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; 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; Raja Abid Hussain and another v. Sardar Muhammad Rana and
12 others 2002 YLR 3148; S.M. Ayub v. Syed Yousaf Shah and 2 others PLD 1967 SC 486;
Engineer Jarneel Ahmad Malik v. Ghulam Sarwar Khan and 6 others 2004 CLC 914; Syed
Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724; Muhammad
Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132; Haji Mian Aziz -ur-Rehman
Chan v. Mian Abbas Sharif and another 1994 MLD 2293; Bostan Ali Hoti v. Haji Aziz
Karim 1988 MLD 2116; Collector of Customs and another v. Saeed-ur-Rahman and others
PLD 1989 SC 249; Syed Abdul Hameed v. Syed Boo Ali Shah Zaidi 1999 MLD 2989;
Mithilesh Kumar Panday v. Baidyanath Yadav and others AIR 1984 SC 305; U.S. Sasidharan
v. K. Karunakaran and another AIR 1990 SC 924; Badan. Yadav v. Shri Abdul Kadir and
others AIR 1998 Born. 60; Badan Singh Raghuvanshi v. B. Rajgopal Naidu and another AIR
2000 M.P. 56; Jai Bhansingh Pawaiya v. Madhavrao and others AIR 2000 M.P. 111;
Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and others AIR 2000 Born. 362;
R.P. Moidutty v. P.T. Kunju Muhammad and another AIR 2000 SC 388; Sri T.
Phungzathangh v. Sri Hangkhanitan (MLA) and others AIR 2001 Gauhati 52; Heera Singh
Chouhan v. C.D. Dewal and others AIR 2005 Rajasthan 34; Muhammad Saud v. Tahir Malik
and others 2005 CLC 1493; Muhammad Tariq Khan Swati v. Shujah Salam Khan and 7
others 2007 CLC 671; Malik Umar Aslam v. Sumera Malik C.A. No.1716 of 2003; Maulvi
Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460; Mahr Zafar Ahmed Haraj v. Dr.'
Khawar Ali Shah 1988 CLC 1289; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CL
175; Mir Tariq Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and
others 1992 CLC 1766 and Peter John Sahotra v. Returning Officer and others 1995 CLC
394 ref.

(b) Precedent---

----Whenever there is any uncertainty or obscurity about a legal position qua any particular
proposition, the view expressed by a larger Bench prevails and when the Benches are of
equal strength then the latest expression by the Bench holds the field.
Petitioner in person.

Waseem Sajjad, Ali Sajjad and Idress Ashraf for Respondent No.1.

Respondent No.5 in person.

Rest of the Respondents: Ex parte.

Dates of hearing: 23rd, 27th, 28th February (Rawalpindi) and 16th March, 2007 (Lahore).

JUDGMENT

SYED ZAHID HUSSAIN, J.--- N.A. 59, Attock-III, is one of the constituency of National
Assembly which fell vacant and by-election was announced to be held on 18-8-2004. In that
by-election Engineer Jameel Ahmed Malik the petitioner was one of the contestants with
seven others including Shaukat Aziz respondent No.1. The petitioner was able to secure 113
votes whereas respondent No.1 by securing 76156 votes was declared the returned candidate
and notified as such. None other assailed the election except the petitioner w ho has filed this
petition under section 52 of the Representation of the People Act, 1976 for the declaration of
the election of respondent No.1 as void and that his name be denotified. Notices were issued
to all the seven respondents who were served. Except respondent No.1, (the returned
candidate) and respondent No.5, all others are ex parte. The ultimate contest however,
remained between the petitioner and respondent No.1. The later filed reply with number of
preliminary objections as to maintainability of the petition including that the petition was
liable to be rejected, on account of failure of the petitioner to comply with the provisions of
section 54 and section 55 of the Representation of the People Act,. 1976. Respondent No.5
has not contested the petition and prays that "the answering respondent No.5 may kindly be
declared as duly elected from the constituency of NA-59, Attock-III and his name may
kindly also be notified in the official Gazette Notification accordingly".
2. During the proceedings Civil Miscellaneous No.1062 of 2005 was filed by respondent
No.1 seeking dismissal of the petition under section 63 of the Representation of the People
Act, 1976. To that reply was filed by the petitioner. While the said application was pending,
Civil Miscellaneous No.6 of 2006 was filed to urge additional grounds. Reply to that
application was also filed by the petitioner. Both the applications (Civil Miscellaneous
No.1062 of 2005 and Civil Miscellaneous No.6 of 2006) were fixed for hearing on 13 -10-
2006 when as a result of consensus the same were disposed of and issues were framed. Issue
No.1 was "Whether the petition is liable to be dismissed for non-compliance with the
provisions of section 55 and section 63 of the Representation of the People Act, 1976 ? OPR-
1". For the purpose of deciding Issue No.1 the matter has been heard.

3. Since the said issue has been framed in view of the objections raised by respondent No.1,
his learned counsel contends that the petition is not maintainable and is liable to b e dismissed
for non-compliance of the provisions of section 55 and section 63 of the Representation of
the People Act, 1976 and that as this issue can clinch the fate of the petition it needs to be
decided first. According to him the verification of the petition is not in conformity with the
provisions of section 55(3) of the Representation of the People Act, 1976 read with
provisions of Rule 15 of Order VI of the Code of Civil Procedure, 1908. It is contended that
while verifying the contents of paragraphs 4 and 11 of the petition, the petitioner does not
state that the contents thereof are correct to the best of information received and that the
information is believed to be true. It is contended that without such affirmation the
verification becomes meaningless as the petitioner does not take any responsibility for such
an allegation/statement. It is contended that since the contents of the said paragraph
contained serious allegations of corrupt and illegal practices and that respondent No.1 was
allegedly an American citizen, the verification of such statement required strict compliance
of the provisions of Rule 15 of Order VI of the Code of Civil Procedure, 1908.

Likewise the allegation of concealment of assets as contained in paragraph 11 required

similar affirmation and verification. Another defect that is sought to be pointed out is that the
stamp put by the Oath Commissioner for the purpose of verification is conditioned by certain
paragraphs, which also is fatal. It is pointed out that section 55 of the Representation of the
People Act, 1976 mandates that every annex or schedule to the petition must also be verified
in the manner laid down in Order VI, rule 15 of the Code of Civil Procedure, 1908 which has
not been done in its entirety in this matter. It is contended that a video cassette has been
referred as Annexure "R" to this petition but despite being shown as an annexure to the
petition it has not been verified in the prescribed manner and the verification at page 735 of
the petition is about the views of the petitioner about the said video but not the contents of
the video itself. It is further contended that the petition contains averments in loose form
leaving the paragraphs unnumbered, contents whereof remain unverified. Another omission
in the petition is the non-filing of affidavits of the proposed witnesses. For seeking dismissal
of the petition on the above grounds that the defects are serious and fatal, reference has been
made to Jagan Nath v. Jaswant Singh and others AIR 1954 SC 210, Devi Prasad v. Chairman
of the Court of Election Tribunal Gorakhpur and another AIR 1956 All. 19 and M.
Karunanidhi v. H.V. Handa and others AIR 1983 SC 558, Iqbal Zafar Jhaghra's case 2000
SCMR 250, Muhammad Ashraf Rasool v. Ali Abbas and 13 others 2004 YLR 1742, Haji Ch.
Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner
2005 CLC 172, Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema and another
2005 CLC 1577, Sardarazada Zafar Abbas and others v. Syed Hassan Murtaza and others
PLD 2005 SC 600, Muhammad Saeed v. Tahir Malik and others 2005 CLC 1493, Ch.
Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34 and judgment, dated 19 -
12-2006 in Civil Appeal No.17116 of 2003.

4. The petitioner who himself has conducted his case contends that since all the issues have
been framed, issue No. l should not be treated as preliminary issue and should be decided
along with other issues. According to him, Issue No.1 covers controversy of mixed question
of law and fact, therefore, there is no scope in law for deciding this issue at this stage.
According to him, procedure laid down by the Election Commission of Pakistan vide
Notification dated 17-3-1985 is to be applied as laid down in Jam Mashooq Ali v. Shahnawaz
Junejo 1996 SCMR 426. It is contended that' since at a stage an application (Civil
Miscellaneous No.1062 of 2005) was made by respondent No.1 under section 63 of the
Representation of the People Act, 1976, which was disposed of on 13-10-2006, it cannot now
be urged by respondent No.1 to decide this issue separately. It is contended that the petition
and all the Annexures are duly verified and attested by the Oath Commissioner supported by
a separate affidavit, therefore, necessary requirements of law have been fulfilled. It is
contended that strict adherence to procedure/technicalities should not be insisted which may
defeat the cause of justice. Reference for this purpose is being made to Imtiaz Ahmad v.
Ghulam Ali and others PLD 1963 SC 382, Manager, Jammu and Kashmir, State Property in
Pakistan v. Khuda Yar and another PLD 1975 SC 678, 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,
Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600
and Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2002 YLR
3148. According to him, even if there be any defect in the verification and atte station, it is
not fatal, cites S.M. Ayub's case PLD 1967 SC 486, Engineer Jameel Ahmad Malik v.
Ghulam Sarwar Khan and 6 others 2004 CLC 914, Syed Iftikhar Hussain Gilani v. Anwar
Kamal Khan and 3. others 1997 CLC 1724, Muhammad Azad Gul v. Said Muneer Said and
11 others 1997 CLC 1132, Haji Mian Aziz-ur-Rehman Chan v. Mian Abbas Sharif and
another 1994 MLD 2293 and Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2116. It is
contended that video recording is admissible in evidence in view of Collector of Custom s
and another v. Saeed-ur-Rahman and others PLD 1989 SC 249 and Syed Abdul Hameed v.
Syed Boo Ali Shah Zaidi 1999 MLD 2989.

According to him since none was prepared to appear as a witness, therefore, their affidavits
could not be filed. Thus, the position taken by the petitioner is that the election petition
should be tried without adverting to Issue No.1 at this stage.

5. The respective contentions have been considered. The provisions of laws relating to
election petitions have so stringently been applied by the Courts is evident from string of
rulings. In Jagan Nath v. Jaswant Singh and others AIR 1954 SC 210, it was held that the
election law must be strictly construed and that the success of a candidate who has won an
election should not be lightly interfered with. In Devi Prasad v. Chairman of the Court of
Election Tribunal Gorakhpur and another AIR 1956 All. 19, it was held that the object of
verification is that the person making verification undertakes responsibility. (In the present
case by not affirming that he believes information regarding paragraphs 4 and 11 to be true,
the petitioner is not taking responsibility of its contents). In M. Karunanidhi v. H.V. Handa
and others AIR 1983 SC 558, the question was whether a photograph of a barrier/hoa rding
which was attached to the petition was an Annexure to the petition. If it was so, then a copy
of the sane should have been given to the respondent under the relevant election law. The
Supreme Court of India held that the photograph was a part of the petition because petition
was incomplete without it. It was, therefore, an integral part of the petition. (In the instant
case the video attached with the petition being an Annexure to the petition, it should have
been verified as per the requirements of Order VI, rule 15 of the Code of Civil Procedure,
1908 and section 55(3) of the Representation of the People Act, 1976. Even merely alleging
the putting up of banners would be of no avail). In Mithilesh Kumar Panday v. Baidyanath
Yadav and others AIR 1984 SC 305 even some mistakes in the copy supplied to the returned
candidates were found as fatal, resulting in the dismissal of the election petition. In U.S.
Sasidharan v. K. Karunakaran and another AIR 1990 SC 924, the cassette prepared during
the election was referred to in the petition but the copy of the video-cassette had not been
supplied to the respondent. It was held that "we affirm the judgment of the High Court
dismissing the election petition of the appellant on the ground that as the copy of the vi deo-
cassette was not served on the first respondent along with a copy of the election petition, it
was non-compliance with the provisions of section 81(3) of the Act". In Baban Yadav v. Shri
Abdul Kadir and others AIR 1998 Born. 60, it was held that since the copy supplied to the
respondent was not "true copy" of the petition it was non-compliance of law entailing
rejection of petition. In Badan Singh Raghuvanshi v. B. Rajgopal Naidu and another AIR
2000 M.P. 56, the petition was dismissed, as one of the copies of the election petition had not
been attested as contemplated by law to be a true copy of the original. In Jai Bhansingh
Pawaiya v. Madhavrao and others AIR 2000 M.P. 111, the petition was dismissed for the
reason that the same had been presented in the Hindi language without complying-
requirement of the rule. It was observed that "violation of the special law regulating the
election petitions of Rule 2(b) of Rules contained in section 11, Chapter VII, framed, by the
High Court relating to election petitions is fatal and renders the present election petition not
entertainable". In Narendra Bhikahi Darade v. Kalyanrao, Jaywantrao Patil and others AIR
2000 Bom. 362, the petition was dismissed for the reason that certain corrections made in the
election petition had not been incorporated in the copy supplied to the respondent. In R.P.
Moidutty v. P.T. Kunju Muhammad and another AIR 2000 SC 388, it was held:
 "All the averments made in paras 1 to 17 of the petition have been stated to be true to
the personal knowledge of the petitioner and in the next breath the very same
averments have been stated to be based on the information of the petitioner and
believed by him to be true. The source of information is not disclosed. As observed
by the Supreme Court in F.A. Sapa v. Singora AIR 1991 SC 1557 : (1991 AIR SCW
1492), the object of requiring verification of an election petition is to clearly fix the
responsibility for the averments and allegations in the petition on the person signing
the verification and, at the same time, discouraging wild and irresponsible allegations
unsupported by facts. However, the defect of verification is not fatal to the petition; it
can be cured (see Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore AIR
1964 SC 1545; A.S. Subbaraj v. M. Muthiah (1953) 5 ELR 21. In the present case the
defect in verification was pointed but by raising a plea in that regard in the written
statement. The objection was pressed and pursued by arguing the same before the
Court. However, the petitioner persisted in pursuing the petition without proper
verification which the petitioner should not have been permitted' to do. In our
opinion, unless the defect in verification was rectified, the petition could not have
been tried. For want of affidavit in required form and also for lack of particulars, the
allegations of corrupt practice could not have been enquired into and tried at all. In
fact, the present one is a fit case where the petition should have been rejected at the
threshold for non-compliance with the, mandatory provisions of law as to pleadings"
(underlined by me for its import).

In Sri T. Phungzathangh v. Sri Hangkhanitan (MLA) and others AIR 2001 Gauhati 52, the
petition was dismissed for the reasons that the copies of the affidavit accompanying the
copies of the petition supplied to the respondent, were not similar to the original one. In
Heera Singh Chouhan v. C.D. Dewal and others AIR 2005 Rajasthan 34, the pet i t i on was
dismissed on the ground as the contents of the affidavits did not meet the requirement of law
and was not in the prescribed form.

The trend of judicial approach reflected from the above is that apparently even small and
trivial deviations from procedure and form prescribed by the election laws has resulted in
dismissal of the election petitions.

6. Here in our country as well the legal position is not different. Even the recent trend as is
spelt out from Iqbal Zafar Jhanghra's case 2000 SCMR 250, a judgment by the learned Bench
comprising seven Honourable Judges of the apex Court, strict compliance of provisions of
election laws (as to verification and attestation of the petition) was insisted upon despite the
observations in S.M. Ayub's case PLD 1967 SC 486. The legal position thus, stated is being
followed in the subsequent cases. In Muhammad Ashraf Rasool v. Ali Abbas and 13 others
2004 YLR 1742 it was held by the Election Tribunal that the requirements of section 55(3) of
the Act were mandatory. The verification did not show which paragraphs of the petition had
been verified on the basis of information received which was believed to be true. It was
defective, and, therefore, the petition was dismissed. In Haji Ch. Masood Akhtar v.

Election Commission of Pakistan through Chief Election Commissioner and 7 others 2.005 CLC
172, it was held that the provisions of section 55(3) of the Act read with section 63 were
mandatory in nature and that there can be no waiver or estoppel against the Statute. The petition
was dismissed accordingly. In Ch. Muhammad Saboor Kasana v. Muhammad Ajmal Cheema
and another 2005 CLC 1577 and Muhammad Sneed v. Tahir Malik and others 2005 CLC 1493
also similar view was taken by the learned Tribunals. In Sardarzada Zafar Abbas and others v.
Syed Hassan Murtaza and others PLD 2005 SC 600, while referring to Iqbal Zafar Jhaghra's case
it was taken as a settled law "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 Ch. Muhammad Ashraf v. Tariq Javed and others 2007 SCMR 34, the above
position was reiterated and order of the Election Tribunal dismissing the election petition, which
had not been verified and attested in the manner laid down by law, was upheld. Similar view has
been taken in Muhammad Tariq Khan Swati v. Shujah Salam Khan and 7 others 2007 CLC 671,
by the Election Tribunal of N.-W.F.P. following the above legal position and dismissing the
election petition. Last but not the least is the recent judgment (19-12-2006) by the apex Court by
a learned Bench comprising three Honourable Judges in Malik Umar Aslam v. Sumera Malik
C.A. No.1716 of 2003. On consideration of the provisions of law and precedents on the subject it
has been held "In the case of Iqbal Zafar Jhagra (ibid) a Larger Bench of this Court had held that
provision of section 55(3) of the Act, 1976 is mandatory in nature and its non-compliance has
been visited with a penalty of dismissal of petition, therefore, the Tribunal had no jurisdiction to
allow such amendment and for such reason alone, election petition deserves to be dismissed.
Thus, the judgment in the case of Ghulam Bibi (ibid) is not attracted. As far as the case of Mst.
Barkat Bibi (ibid) is concerned, it is also not applicable to the facts and circumstances of the case
in hand, firstly for the reason that in this case leave was refused, and secondly it has been
observed that the objection on the amendment of the pleadings has to be raised before allowing
amendment and once the amendment is allowed, no such objection can be raised. Therefore, we
are of the opinion that amendment in the verification clause of the petition was not permissible,
as the application was submitted much after the period of limitation i.e. 45 days as provided in
section 52(2) of the Act, 1976 for filing of election petition. In addition to it, a right in favour of
the respondent had been created, as such we are not persuaded to subscribe to the view point of
the learned counsel for appellant.

"(10) Lastly, it was contended by the learned counsel that the appellant could not move
application for amendment of verification clause immediately after filing of the written
statement by respondent No.1 because there was no such objection nor issue was framed
in this behalf. In this context, suffice to observe that ignorance of law is no excuse. The
appellant who had approached the Election Tribunal was bound to fulfil the requirement
of the law including the verification of plaint in terms of section 55(3) of the Act, 1976. It
 may also be added at this juncture that notwithstanding the fact that the defect has been
pointed out by the respondent or not, the Court is always empowered to ensure that the
law under which proceedings have been initiated before it stands complied with fully
particularly in the cases where non-compliance of mandatory provision prescribes a
penalty."

It needs no reiteration that whenever there is any uncertainty or obscurity about a legal position
qua any particular proposition, the view expressed by a Larger Bench prevails and when the
learned Benches are of equal strength then the latest expression by the Bench holds the field.
Thus, to the present case the view expressed by the Larger Bench in Iqbal Zafar Jhagra's case and
the latest in Malik Umar Aslam's case is attracted.

7. The objection of respondent No.1 as to defects in the election petition is that the verification of
the petition suffers from material defects inasmuch as that while verifying paragraphs 4 and 11
he states that the contents thereof are correct to the information received but he does not say that
he believes the information to be true. According to the learned counsel such a defect and
omission is serious because the petitioner takes no responsibility for such a statement. The
contents of these paragraphs i.e. Nos.4 and 11 are about corrupt and illegal practices and are of
much significance. In paragraph No.4 he alleges that respondent No.1 is citizen of United States
of America and in paragraph No.1 the allegation is that the said respondent had concealed his
assets and not disclosed his assets, property and liabilities correctly. Such allegations of serious
nature having grave implications and repercussions required to be verified strictly and
meticulously in accordance with the provisions of law. Another objection vehemently pressed is
that a video-cassette alleged to have been prepared and annexed has not been verified. Reference
to that in the petition is in the following words: "however, the video prepared by the petitioner
during the election compaign and on the day of polling of 18-8-2004 is enclosed herewith as
Annexure "R", and this video shows how Ameen, sagacious, righteous and an honest person he
is". The defect in verification (with reference to page 735 of the petition) is that the petitioner has
only made comments about the video but has not verified the contents of the video itself.

The petitioner has vehemently stressed that even if there be some defect in the verification, such
a technicality should not impede the administration of justice and such technicalities should be
overlooked by the Tribunal. This misconception prevailing in the mind of the petitioner need to
be allayed inasmuch as that the law relating to election petitions has some special significant
features. It insists upon the fulfilment of certain prerequisites and conditions. While assailing the
election of a returned candidate the petition must be drawn and filed as contemplated and
prescribed by law. The reason is quite obvious that the returned candidate having won the
election with the vote and support of the electorate should not unnecessarily be entangled in
litigation and that his election should be challenged only on firm and sound footings by
complying with all requirements of law. It is a settled law by now that when the law requires a
thing to be done in a particular manner, it has to be done in that manner only. To follow the law
cannot be termed as adherence to the technicalities. The general observations in precedents
(other than the election laws) that technicalities should not impede the dispensation of justice,
cannot be invoked to the proceedings before the Election Tribunal in an election petition. A
Special Tribunal, like the Election Tribunal is obliged to follow the law and to insist upon the
observance of the special provisions and procedure laid down in the relevant law i.e. the
Representation of the People Act, 1976, the Representation of People (Conduct of Election)
Rules, 1977 and the procedure laid down by the Election Commission of Pakistan through
Notification, dated 17-3-1985. The reliance of the petitioner upon Imtiaz Ahmed case (supra)
anti other precedents thus, is inappropriate and inadequate as none of those cases arose in
election matter and also that the Honourable Supreme Court in addition to its other powers and
jurisdiction has the power to do complete justice by virtue of Article 187 of the Constitution of
the Islamic Republic of Pakistan, 1973.

8. In the instant case, the petitioner himself laid great emphsis that procedure laid down by the
Election Commission of Pakistan vide Notification, dated 17-3-1985 should be followed. He has
placed reliance upon 1996 SCMR 426, wherein amended and un-amended provisions of section
62 of the Act, 1976 as also the Notification of 17-3-1985 was reproduced in extenso. It may be
observed that such a procedure has been laid down by virtue of amended provision of section 62
of the Representation of the People Act, 1976, which was amended vide Ordinance No.XVIII of
1985 dated 10-3-1985. It is also evident from the provisions of the Act, that wherever it was
intended by the Legislature to apply Code of Civil Procedure, its extent was specifically
mentioned in the Act, for instance section 55(3) and section 64 of the Act. In presence of such
special procedure laid down by the Election Commission of Pakistan any deviation therefrom is
not possible. Here clauses (1) and (4) of the Notification (Procedure for trial of election petitions)
may be reproduced:--

(1) Every election petition shall be filed with the Secretary Election Commission of
Pakistan, Secretariat Block "S" Islamabad, in triplicate and shall be accompanied by all
such documents and affidavits of the witnesses as are desired to be produced by the
petitioner along with the receipt including that the copies of the petition and the attached
documents and the affidavits annexed to the petition have been supplied to the
respondent."

(2) ----------------------------------------------------------------------

(3) ----------------------------------------------------------------------------
 (4) The petitioner shall make available for cross-examination all witnesses whose
affidavits are filed with the petition for cross-examination on the first date of hearing
before the Tribunal."

In the present case, except the affidavit of the petitioner himself, affidavit of none other has been
filed with the petition. Not even of the person who photographed/prepared the video-cassette.
There are hundreds of press-clippings/photographs appended with the petition but affidavit of
none has been placed on record. It is one of the mandatory requirement of law which has not
been fulfilled. At page 52 of the petition some explanation is sought to be advanced to the effect
that "the public are not willing to appear as witness in the instant election petition" and that "the
petitioner himself has decided to appear in the instant election petition". But the self-serving
appearance of the petitioner alone can hardly be of any significance as his sole statement cannot
be a substitute for due proof of the allegations levelled by him. He has given a list of "private
witnesses" as follows:--

"Private witnesses (i) Engineer Jameel Ahmed Malik, (ii) Video recorded during election
campaign, (ii) Documentary evidence from Annexures "A" to "U".

It is evident from the above that even the names of the persons have not been mentioned what to
say of their affidavits. They, according to the petitioner himself are "private witnesses". If their
affidavits have not been filed with the petition how can they be examined by him or produced for
cross-examination: He has failed to comply with the requirement of law. Apart from that a list of
"official witnesses" has been filed, but their status as "official witnesses" has been disputed in the
reply tiled by respondent No.1 (Preliminary Objection No.3). Without dilating upon this aspect
whether they can be treated as official witnesses or not, the legal position as to non-filing of
affidavits of admittedly "private witnesses" may be examined.

In Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460 (Peshawar) it was held
"Para. (1) provides that the election petition shall be accompanied by all such documents and
affidavits of the witnesses as are desired to be produced by the petitioner". ... "Taking this view
of the matter, the decision on preliminary Issue No.4 would go against the petitioner insofar as
he had failed to file the list of his witnesses and their affidavits along with the election petition".
In Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289 (Lahore) it was held
"clause (1) of the Notification has conferred a valuable right of the petition to know before hand
the documents and the substance of the evidence of the witnesses as desired to be produced by
the petitioner in proof of his election petition and it will certainly not be possible for him to
append with the written statement counter-documents and counter-oral evidence unless he is
aware of the kind of the documents and the nature of the evidence intended to be produced
against him. I am convinced that failure on the part of the petitioner to supply documents and
affidavits of the witnesses as desired to be produced by him will certainly cause incurable
prejudice to the defence of the respondent. It seems to me that clause (1) of the Notification is
not that of general policy of realm but confers a valuable rights and privilege on respondent to
know the documents relied upon by the petitioner, the names of the witnesses which he intends
to produce and the substance of their evidence before he is called upon to file written statement.
So, mere delivery of petition to the respondent without documents and the affidavits of the
witnesses mentioned in clause (1) of the Notification will not serve the object of clauses (1) and
(3) of the Notification and failure on the part of the petitioner to annex documents, affidavits of
the witnesses and the receipt of acknowledgement with the petition will render the provisions of
clause (1) as well as"(3) of the Notification futile and nugatory. For all these reasons, I am of the
view that clause (1) of Notification is a mandatory provision which obliges the petitioner to
supply documents, affidavits of the witnesses desired to be produced by him and also attached
acknowledgment receipt from the respondent indicating that he had received not only the
petition but also the documents and affidavits attached thereto and a petition which is not
accompanied by these documents will not be maintainable". In Ihrar Khattak v. Mian Muzaffar
Shah and others 1991 CLC 175 (Peshawar) it was held "From the provisions of the Notification
dated 16-3-1085 issued by the Election Commission of Pakistan in exercise of its powers under
section 62 of the Act, it is obvious that every election petition shall not only be accompanied by
all such documents and affidavits of the witnesses as are desired to be produced by the
petitioner'... the underlying idea behind this provision is that unless the requirement of clause (1)
of the Notification regarding supply of documents and affidavits of the witnesses of the
petitioner to the respondent, is complied with and he knows beforehand the documents which he
has to meet and the names of the witnesses as well as substance of their evidence which he has
to rebut, it will not be possible for him to put forward an effective defence to the election
petition. In 1988 CLC 1289 it was held that clause (1) of the Notification is a mandatory
provision which obliges the petitioner to supply documents affidavits of the witnesses desired to
be produced and also to attach acknowledgement receipt from the respondent indicating that he
had received not only the petition but also the documents and affidavits attached thereto and a
petition which does not comply with this requirement of law is not maintainable". In Mir Tariq
Mahmood Khan Khetran and others v. Mir Baz Muhammad Khetran and others 1992 CLC 1766
(Balochistan), it was held, "The conditions laid down for filing affidavits of witnesses appears to
be absolute in its nature and no departure can be allowed. No hard or fast rule of universal
application can be laid down for determining mandatory or directory character of particular
statute. However, when provisions are found to be absolute, strict compliance is necessarily
called for.

As examined earlier notification specifying procedure for filing petitions clearly creates an
obligation upon the petitioner to file affidavits along with petition, thus, any contravention
therefrom would not be lightly ignored. All the points agitated by learned counsel for petitioners
have been fully answered by the observations in above reports.
Accordingly for the, above discussion and the law enunciated in afore-quoted judgment, I am
inclined to hold that election petition without filing affidavits or list of official witnesses along
with petition is not maintainable". In Peter John Sahotra v. Returning Officer and others 1995
CLC 394 (Lahore) it was held "The petitioner has not placed on record his own affidavit or the
affidavit of any of his witnesses or any document in the prescribed manner to support his plea....
"The procedure of the Election Commission of Pakistan therefore, should be observed in letter
and spirit by the parties as well as by the Election Commission itself. There being no evidence on
the record and even the allegations being too vague, therefore, further proceedings in the matter
will serve no useful purpose". In Muhammad Azad Gul v. Said Muneer Said and 11 others 1997
CLC 1132 (Karachi), it was held "The petitioner has failed to file the names of the witnesses
along with the gist of evidence to be given by them before the Tribunal. He has also failed to file
affidavit of such witnesses, if any. In view of the consistent view taken by the Courts and above
all, in view of the mandatory and punitive provisions of section 63 of the Act, the instant petition
is liable to be dismissed summarily".

The view expressed by the Courts is quite consistent as to the strict compliance of requirement of
law, deviation wherefrom cannot be afforded. If a petition lacks the essential legal requirements,
it deserves to be buried instantly.

9. The petitioner has endeavoured to contend that Issue No.1 could be decided after recording of
evidence on the other issues. In the circumstances when there is non-compliance of mandatory
requirements of law quite apparent, I am not persuaded to countenance his contention inasmuch
as that such defects are of fatal nature going to the very root of the matter and can at any stage of
the proceedings be adverted to. The petition cannot be pended merely for the reason that other
issues had also been framed. Even the disposal of miscellaneous application on 13-10-2006
would not stand in the way of decision of Issue No.1 and the petition.

The petitioner though is not represented through any counsel, yet he has argued and put forth his
point of view with quite vehemence. Extensive hearing has been given to both sides as a result
whereof it has been found that the defects mentioned above are so obvious and fatal that there
would be no use of the trial on other issues and the petition is liable to be dismissed in view of
the aspects noted above.

The petition is dismissed accordingly. The parties are, however, left to bear their own costs.
M.B.A./J-13/L Petition dismissed.