SARDARZADA ZAFAR ABBAS & others vs SYED HASSAN MURTAZA and others

Sardar Muhammad Raza, J.--All the appellants namely, Sardarzada Zafar Abbas, Brig. (R)

Muhammad Usman Khan Tarar and Asif Nawaz Fatiana had contested General Elections held on 10.10.2002. The returned candidates were the respondents namely, Syed Hassan Murtaza, Ch. Mehdi Hassan Bhatti and Walayat Shah respectively. In petitions before the Election Tribunal, the returned candidates raised a preliminary objection that the election petitions under Section 55 of Representation of the People AO of 1976, were not duly verified on oath and hence were liable to be summarily dismissed.

2. The learned Tribunal after discussing the law and the case-law came to the conclusion that the petitions were not verified on oath in accordance with law and thus, dismissed the same through a common judgment dated 6.9.2003. The instant appeals, involving similar question of law and facts, are being decided through this single judgment.

3. 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 appellant and verified in the matter laid down in the Code of Civil Procedure, 1908. The code contains such provisions under Order 6, 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.

4. 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. Similar view was taken by this Court in Iqbal Zafar Jhagra's case (2000 SCM R 250(n)), 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. Having held so, we come to the assertions of the learned counsel for: the appellants that once an election petition, under the provisions of Section 56 of the Act, stands forwarded by the chief Election Commissioner to the Tribunal, the Tribunal cannot enter into the aforesaid questions and dismiss the petition on grounds of non-verifications. Section 56 of the Act provides that if the Commissioner finds that any provision of Sections 52, 53 or 54 of the Act, has not been complied with, the petition shall be dismissed forthwith and if it is not so dismissed, it shall be referred to the Tribunal for trial. It is quite significant that the lawmaker, having specifically referred to Sections 52,53 and 54 of the Act, has distinctly omitted to mention Section 55 of the Act. Meaning thereby, that the requirements of Section 55 of the Act would be gone into by the Tribunal itself and not by the Chief Election Commissioner. We hold that such objection can validly be raised before the Tribunal and Tribunal alone.

6. Learned counsel for the respondents drew our attention to judgment of Election Tribunal in case of Muhammad Azad Gul (1997 CLC 1132) that happens to be authored by me as Tribunal of Peshawar High Court. In that judgment too, such verification was considered mandatory but the point of distinction is that in that case the petitioner had neither signed the petition nor had got it verified on oath as provided under Section 55(3) of the Act read with Order 6, Rule 15 of the CPC.

The distinguishing aspect in the instant case is that though the verification on oath on the last page of the election petition is not attested by the Oath Commissioner yet the appellant has filed the same verification in the shape of affidavit on a separate page which is duly attested by the Oath Commissioner on the same date. The controversy now boils downs to the only point as to whether the verification should be at the end of election petition on the same page or any verification given on a separate page would meet the requirement though in the shape of an affidavit.

7. We have considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath. The objection as to why such verification is on a separate page or leaf, is rather, too immature to be taken notice of and sustained.

8. Learned counsel for the respondent raised another objection that the election petitioners in their verifications have failed to give reference to the paragraphs of the pleadings as to what he either happened to verify on his own knowledge and what he happened to verify upon information received, and believed to be true. Such objection is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at times on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case.

9. Consequent upon, what has been discussed above, we are of the view that in the instant cases, the mandatory provisions of Section 55(3) of the Act had duly been complied with and there was no reason for the Tribunal to dismiss the petitions on the preliminary objections raised. All the three appeals are hereby accepted, the impugned judgment dated , 8.9.2003 is set aside and the cases are remanded to the Tribunal for holding the trial on merits.