Case Judgement

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2009 C L C 1302 [Punjab Election Tribunal] Before Syed Asghar Haider, Election Tribunal Lala SHAKEEL-UR-REHMAN----Petitioner Versus Dr. MUHAMMAD ASHRAF CHOHAN and 10 others---Respondents C.M. No.1 of 2008 in Election Petition No.189 of 2008, decided on 17th July, 2009. (a) Representation of the People Act (LXXXV of 1976)-----Ss. 55(3) & 63-Civil Procedure ( I of 1908), O.VI, R.15---Oaths Act (X of 1873), Ss.4 & 7---Election petition---Non-verification and non-attestation of election petition and its annexures as ordained by O.VI, R.15, C.P.C.---Short affidavit appended to election petition being general, vague and not in harmony with paragraphs and contents of election petition---Validity---Requirements of S.55(3) of Representation of the People Act, 1976 being mandatory must be fulfilled in letter and spirit---Verification was required to be made on oath or solemn affirmation before a person authorized to administer oath---Had affidavit been in form contemplated by O.VI, R.15, C.P.C., then same could be considered---Non-fulfilment of such requirements was fatal to cause of petitioner---Election petition was dismissed in circumstances. Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34; Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600; Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250; Dost Muhammad Rahimoon v. Abdur Razzak Rahimoon and 4 others 2009 CLC 795; Imam Ali Samejo v. Ghulam Hyder Samejo and 11 others 2009 CLC 771; Engineer Jameel Ahmad Malik v. Shaukat Aziz and 6 others 2007 CLC 1192; Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others 2005 CLC 172; Muhammad Ashraf Rasool v. Ali Abbas and 13 others 2004 YLR 1742; Tariq Mahmood Bajwa v. Muhammad Afzal Sahi and others 1994 CLC 1366; Asadulah v. Asghar Ali and another 1995 CLC 150; Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and others AIR 2000 Born. 362; Jaganv Nath v. Jaswant Singh and others AIR 1954 SC 210; Peter John Sahotra v. Returning Officer and others 1995 CLC 394; S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486; Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570; Hafiz Abdur Rauf Jan v. Bashir Bilour and 6 others 2004 MLD 244; Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175; Haji Amanullah Khan v. Sahibzada Tariqullah and 2 others 1995 CLC 158 and Syed Niamat Shah v. Sabir Shah 1988 CLC 1906 ref. Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 rel. (b) Representation of the People Act (LXXXV of 1976)------Ss. 53, 55(3) & 63---Election petition---Non-compliance in terms of S.55(3) of Representation of the People Act, 1976---Petitioner while attributing such fault to Election Commission contended that election petition was required to be filed in office of Commission, which after getting corrected any fault therein was bound to forward same to Tribunal for adjudication---Validity---Non-adherence to provisions of Ss.54 & 55 of Representation of the People Act, 1976 was fatal to trial of election petition---Tribunal alone had power

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under S.63 of the Act to dismiss election petition for non-compliance of provisions of Ss.54 & 55 thereof. (c) Representation of the People Act (LXXXV of 1976)------Ss. 55(3) & 63---Civil Procedure Code (V of 1908), O.VI; R.15---Election petition---Non-adherence to provisions of S.55(3) of Representation of the People Act, 1976---Plea of petitioner that provisions. of S.53(3) of Representation of the People Act, 1976 being enabling had to be read along with provision of O.VI, R.15, C.P.C., thus, such defect was not fatal and was condonable---Validity---Provision of O.VI, R.15, C.P.C., being procedural, while Ss.53(3) & 63 of the Act being substantive provision and part of a special statute, which had to be construed and adhered to strictly, Election Tribunal had no authority to condone such lapse, if any, which deviation had to be visited with a penalty---Plea of petitioner was repelled in circumstances. (d) Administration of justice------Legal question could be raised .at any stage of proceedings. (e) Representation of the People Act (LXXXV of 1976)------Ss. 54, 55(3) & 63---Civil Procedure (V of 1908), O.VI, R.15---Oaths Act (X of 1873), Ss.4 & 7---Election petition---Non-adherence to provisions of Ss.54 & 55 of Representation of the People Act, 1976---Plea of petitioner that respondent could not be permitted to raise such objection, which he had not raised in written statement---Validity---Election Tribunal itself was bound to look into maintainability of election petition and determine whether same was in consonance with requirements of Ss.54 & 55 of Representation of the People Act, 1976, if not then could take penal action under S.63 thereof---Legal question could be raised at any stage of proceedings---Present proceedings were at initial stage, thus, filing of such application had not caused prejudice to rights of parties---Filing of such application, though not barred, but was irrelevant and immaterial for such purpose. Ashtar Ausaf Ali, Muzaffar Ahmad Mirza and Ms. Samia Khalid for Applicant/Respondent No.1. Tallat Farooq Sheikh for the Petitioner. ORDER C.M. No.1 of 2008 SYED ASGHAR HAIDER, ELECTION TRIBUNAL.---Through this application under section 63 of the Representation of the People Act, 1976, the applicant/respondent No.1 seeks dismissal of the main election petition, in view of violation of section 55(3) of the Representation of the People Act, 1976, as the election petition has not been verified in accordance with the provisions of Order VI, rule 15, C.P.C., The Oaths Act, 1873 and also is violative of the dictum laid down by the Apex Court in Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362. 2. The learned counsel for the applicant contended that section 55(3) of the Representation of the People Act, 1976, enjoins that "every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings". Order VI rule 15, C.P.C. deals with verification of pleadings, it ordains that every pleading shall be verified on oath or solemn affirmation at the foot by the party pleading and is further required to specifically verify it by reference to the numbered paragraphs of the pleading, stating what he verifies of his own knowledge and what he verifies upon information received, and believed to be true. It also is required

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that the verification shall state the date and place at which it is signed and verified on oath, none of these provisions had been adhered to, thus, the governing provision has not been followed. To build up his argument further the counsel submitted that section 63 of the Representation of the People Act, 1976, ordains a penalty in this regard- and section 63(a) holds that if this requirement is not complied with the Election Tribunal shall dismiss the election petition, as the stated provision has not been complied with, therefore, the election petition be summarily dismissed. He further contended that the Tribunal is required to itself examine the requirements as enumerated in section 55 read with section 63 of the Representation of the People Act, 1976, to determine whether the petition is in order or not and in case of non-compliance, activate the penal provisions of section 63. Lastly the Representation of the People Act, 1976, is a special legislation, therefore, every provision contained therein is required to be adhered to, followed and implemented in letter and spirit, any lapse entails penalty. To augment his submission the learned counsel referred to the following precedents:--(i) Malik Umar Aslam y. Sumera Malik and another PLD 2007' SC 362, (ii) Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34, (iii) Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600, (iv) Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250, (v) Dog Muhammad Rahimoon v. Abdur Razzak Rahimoon and 4 others 2009 CLC 795, (vi) Imam Ali Samejo v. Ghulam Hyder Samejo and 11 others 2009 CLC 771, (vii) Engineer Jameel Ahmad Malik v. Shaukat Aziz and 6 others 2007 CLC 1192, (viii) Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others 2005 CLC 172,(ix) Muhammad Ashraf Rasool v. Ali Abbas and 13 others 2004 YLR 1742, (x) Tariq Mahmood Bajwa v. Muhammad Afzal Sahi and others 1994 CLC 1366, (xi) Asadulah v. Asghar Ali and another 1995 CLC 150, (xii) Narendra Bhikahi Darade v. Kalyanrao Jaywantrao Patil and others AIR 2000 Bombay 362, (xiii) Jagan Nath v. Jaswant Singh and others AIR 1954 SC 210, (xiv) Peter John Sahotra v. Returning Officer and others 1995 CLC 394, (xv) S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486. 3. The learned counsel for the election petitioner contended that the provisions of section 55(3) of the Representation of the People Act, 1976, are enabling and not mandatory, to substantiate his view point he referred to Order VI, rule 15, C.P.C. pleading that the defect in verification is not fatal to the proceedings and is curable at any stage, he thereafter stated that the urged ground was not specifically pleaded in the reply to the petition, therefore, the same cannot be permitted to be raised at this belated stage. He further stated that the written statement was not filed within the stipulated period, therefore, the applicant/respondent No.1 has no right in law to file a miscellaneous application and that too challenging the maintainability of the petition. Thereafter, he stated that the election petition has been verified, an affidavit has been attached with the same, therefore, it is substantial compliance of the provisions of section 55(3) of the Representation of the People Act, 1976, the documents which have been appended with the election petition are all public documents, -therefore, the very concept of verifying them, on oath, is alien to and not in consonance with the general law practised, thus, an exception cannot be created in this regard. To conclude the learned counsel stated that there is no substantial defect in the verification made, but even if there is so, it is curable and not fatal to the cause, without conceding the cause, Election Commission, was required to address the same, by permitting the petitioner to rectify it, before placing the matter before the Tribunal. To fortify his contention the learned counsel referred to the following precedents:--(i) Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others PLD 2005 SC 600, (ii) Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajput and others PLD 2004 SC 570, (iii) Hafiz Abdur Rauf Jan v. Bashir Bilour and 6 others 2004 MLD 244, (iv) Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201, (v) Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315, (vi) Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175, (vii) Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250, (viii) Haji Amanullah Khan v. Sahibzada Tariqullah and 2 others 1995 CLC 158, (ix) Syed Niamat Shah v. Sabir Shah 1988

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CLC 1906, (x) S.M. Ayub v. Syed Yusaf Shah.and others PLD 1967 SC 486. 4. I have heard the learned counsel for the parties at length and perused the election petition and the annexures appended therewith. The verification made at the foot of the election petition reads as under: --"Verified on oath at Lahore on this 9th day of April, 2008, that contents of petition paras.1 to 8 and grounds "a" to "h" are correct to the best of my knowledge and grounds "i to k" to best of believe and nothing has been concealed or misstated therein." A bare reading of the verification reflects that it is not in consonance with the requirements of Order VI, rule 15(2), C.P.C., firstly as it is not clear-as to what para. of the petition has been verified on the petitioner's personal knowledge and what para. has been verified upon information he received and believes to be true, the language used also is in coherent and alien to the requirements of language used by Order VI, rule 15(2), C.P.C. Further the same has not been attested in accordance with the legal requirements. Though an affidavit of the petitioner has been appended to the election petition, it is general and vague and not in consonance with the paragraphs and contents of the Election Petition, thus, it does not comply also with the provisions of Order VI, rule 15, C.P.C. Though it is verified by an Oath Commissioner, but as the election petition and affidavit are not in harmony with each other, therefore, the petitioner cannot be granted any premium-on this score also. As far as the annexes are concerned they are not verified at all in consonance with the requirements of Order VI, rule 15, C.P.C. Only the word verified has been written at the foot of each page and signed by the petitioner, thus verification as ordained by law has not been made. It also is interesting to note that Annexure "A", appended with the petition, bears the stamp of Oath Commissioner, while some annexures bear verification. The Register Haqdaran Zameen, though is verified, but is not attested, likewise Form XIV is verified but not attested, statement of count of various polling stations is verified but not attested, but interestingly the affidavits of witnesses are fully verified and attested on oath. Therefore, the argument of the learned counsel for the election petitioner that public documents are not required to be verified stands contradicted as verification to some of them has been made by the election petitioner himself. Thus, the argument made is self destructive and cannot advance his cause. A reference was made to Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570, but the same, was distinguished in the matter of Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 which is later in time and shall prevail over the former. As far as other documents are concerned verification made is not in consonance with the requirements of Order VI, rule 15, C.P.C. as it has not been duly attested by an Oath Commissioner, as required by law, section 55(3) of the Representation of the People Act, 1976, enjoins that the petitioner shall sign the contents and verify the same in the manner and mode as ordained under Order VI, rule 15, C.P.C., but it also is required to be attested by an Oath Commissioner, which is non-existent, thus, compliance in terms of section 55(3) of the Representation of the People Act, 1976, has not been made. 5. The next argument raised by the learned counsel for respondent/election petitioner is that the petition was responded to by the contesting respondent by filing reply beyond the statutory period, it is insignificant, because the election petition is required to be filed in consonance with the provisions of sections 54 and 55 of the Representation of the People Act, 1976, and if it is in order, only then the petitioner has a right to raise objection, qua the conduct of the respondent. A very interesting argument was raised by the learned counsel for the election petitioner, stating that the election petition is required to be filed with the office of the Election Commissioner under section 53 of the Representation of the People Act, 1976, and it is to be presented to the Secretary of the Commission or any officer appointed by the Commission in this context and thereafter the Commission is required to forward the same to the Tribunal for adjudication. According to the learned counsel the Commission is under a bounden duty to ensure that the election petition is in order and in case there is any ambiguity or defect in the same it was required to be returned and thereafter presented again after the stated defects corrected, thus, any fault in this context is attributable to Election Commission, and the petitioner cannot suffer on this account. I am afraid the contention has no force, the Tribunal alone has

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been bestowed with the power to dismiss the election petition in case the provisions of sections 54 and 55 of the Representation of the People Act, 1976, have not been complied with. If the intent of the legislature was otherwise the corresponding power of rectification should have been bestowed upon the Commission and not Tribunal, but the penalty, as incorporated in section 63 of the Representation of the People Act, 1976, ordains that the Tribunal shall dismiss an election petition in case of non-compliance. The word "shall" is of immense importance and leaves no doubt that non-adherence to these provisions is fatal to the trial of election petition, the Tribunal alone has the authority to exercise powers in this context and that too, by dismissing the election petition. It thereafter was argued that the provisions of section 55(3) of the Representation of the People Act, 1976, are enabling and have to be read "parameteria" to, the provisions of Order VI rule 15, C.P.C. thus the defect is not fatal and condonable as in matters following in the domain of C.P.C. The argument is devoid of any force because Code of Civil Procedure is a general law and Order- VI, rule 15, C.P.C. is a procedural provision, while section 63 and section 55(3)' of -the Representation of the People Act, 1976, are substantive provisions and part of a special statute, which clearly means that they are to be construed strictly and adhered to, especially when a penalty has been incorporated, thus, power of the Tribunal too is limited and it is beyond its authority to condone such lapse, if any, thus, deviation is to be visited with a penalty. 6. The next question which needs adjudication and redressal is that can the respondent No.1 be permitted to raise defence and seek dismissal of the election petition, if it has not been so urged in the written statement. The answer is quite simple, it in fact is the duty; of the Tribunal itself to look into the maintainability of-the election petition and determine whether it is in consonance with the requirements of law, especially sections 54 and 55 of the Representation of the People Act, 1976, or not. And if it is not so the Tribunal is required to exercise powers under section 63 of the Representation of the People Act, 1976 and initiate penal action. Thus, the filing of an application in this context is irrelevant and immaterial, because if a defect decipherable, the Tribunal itself is empowered to take appropriate remedial action. Further it is an understood proposition of law that a legal question can be raised at any stage of the proceedings. The-present proceedings are yet at an initial stage, thus, the filing of application has not caused prejudice to the rights of the parties but will ensure fair adjudication of the dispute expeditiously. Therefore, there absolutely was no embargo upon respondent No.1 to challenge the same by filing the present application, hence, this contention too is over ruled. 7. Another interesting dimension of the proposition is as to what is the format of verifying an election petition, section 55(3) of the Representation of the People Act, 1976, requires that the petition should be paragraphed, numbered and verified on information and knowledge. A cursory glance at the verification made reflects that neither the verification is in order as contemplated by Order VI, rule 15, C.P.C. nor are the recitals paragraphed and numbered accordingly, in fact, the language used is totally alien and ambiguous, as referred to earlier. Therefore, the same does not serve the purpose enumerated as such on the touchstone of Order VI, rule 15, C.P.C. the verification made is not in order and of no use. The filing of an affidavit could only have been considered, had the affidavit been in the form contemplated by Order VI, rule 15, C.P.C., but that too, is not the case, in the present matter, the affidavit is short and does not correspond to the recitals of the Election Petition, therefore, it also is of no help or use to the petitioner. It also is doubtful whether an affidavit is substitute for verification of pleadings because the question already has been settled by the apex Court in Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362, thus, the defects pointed out are incurable and consequently fatal to the proceedings. 8. As far as the case-law on the subject is concerned, Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362, has clinched the controversy in hand and it has been held in the stated precedent that requirements of section 55(3) of the Representation of the People Act, 1976, are mandatory and have to be fulfilled in letter and spirit, non-adherence to the same would entail penal consequences. It also has been held that the verification is required to be made on oath or solemn affirmation before a person authorized to administer oath, as these requirements have not been fulfilled, as stated earlier, therefore, this also is fatal to the cause of the petitioner. The learned counsel for respondent No.1 adverted to Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others PLD 2005 SC 600, to distinguish Malik Umar Aslam v. Sumera Malik and

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another PLD 2007 SC 362. But the stated affidavit in the present matter is not in consonance with the requirements of law and, therefore, cannot help the cause of the petitioner even on this yardstick. 9. Both the learned counsel have adverted extensively to Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 and Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 to augment their respective stances, the precedent referred to by the learned counsel for the applicant Mr. Ashtar Ausaf Ali, Advocate, viz. Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 is later in time and, therefore, would prevail. In these circumstances relying on Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362 and Engr. Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others 2000 SCMR 250 and PLD 2005 SC 600 it clearly stands out that the election petition has not been verified in accordance with law and thus warrants dismissal. The precedents referred to by the learned counsel for the respondent have lost efficacy in view of the law interpreted and declared in the matter of Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362. 10. As a result of discussion made above, this application is allowed as the election petition has not been verified in accordance with the provisions of section 53(a) of the Representation of the People Act, 1976, therefore, it is dismissed. S.A.K./S-190/L Election petition dismissed.

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