Ch. MUHAMMAD ASHRAF vs Rana TARIQ JAVED and others

' SAIYED SAEED ASHHAD, J.--- This appeal has been filed against the order, dated 8-11-2005 of Lahore High Court, Lahore in Civil Miscellaneous No,1 of 2003 in Election Petition No,133 of 2002.

2. The brief facts are that the appellant and respondent No,1 Rana Tariq Javed along with others filed nomination papers for contesting elections from Constituency NA-161, Sahiwal-II. In spite of objections filed by the appellant before the Returning Officer against acceptance of nomination papers of respondent, Rana Tariq Javed, he was allowed to contest the elections. Ultimately, in the voting held for the election of the said Constituency respondent Tariq Javed was declared as returned candidate and notification to this effect was issued by the Election Commission on 20-10- 2002. Appellant. Filed Election Petition bearing No,133 of 2002 before the Chief Election Commissioner, which was entrusted to Election Tribunal. Before the Election Tribunal respondent No,1 filed an application under section 63 of the Representations of the Peoples Act, 1976 (hereinafter referred to as the "Act") for dismissal of election petition on the ground that the same was not filed in compliance With the provisions of sections 54 and 55 of the Act as it was not verified on oath as required by Order VI, rule 15 of the Civil Procedure Code, therefore, was liable to be dismissed on this ground alone. The Election Tribunal after considering the arguments of the counsel for the parties, perusal of provision of sections 54, 55 and 63 of the Act and the case-law referred to before it, came to the conclusion that the election petition was not verified as per requirements of the law and relying on the pronouncements made by this Court in the case of Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCM R 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 allowed the miscellaneous application and dismissed the election petition. Hence this appeal.

3. We have heard the arguments of appellant in person who is an Advocate of this Court and have perused the material on record, relevant provisions of law and the case-law referred to by the appellant.

4. The appellant vehemently assailed the order of the Election Tribunal and submitted that the same was in clear disregard of the facts and material on record inasmuch as though the election petition was not verified on oath as there was no attestation and swear of such verification on oath an Oath Commissioner but the said shortcoming or defect would be deemed to have been rectified and the provisions of sections 54 and 55 complied with in view of the fact that the appellant had annexed along with the petition an affidavit verifying the contents of the election petition on oath before an Oath Commissioner who attested the same. He further submitted that in view of the above factual position the election petition would be deemed to have been validly filed in accordance with law and in support of his above contention he placed reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570. According to him the Election Tribunal had wrongly held that the appellant had not filed any affidavit verifying the contents of the election petition duly attested by and sworn before an Oath Commissioner. His further submission was that reliance by the Election Tribunal on the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCM R 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 was wrongly placed by the Tribunal as the facts of those cases were different inasmuch as besides the fact that the election petition was not verified in accordance with law but no affidavit was attested and sworn before the Oath Commissioner duly annexed along with the petition.

5. We have considered the arguments of the appellant and perused the material on record , the law applicable to the facts and circumstances of the case and the case referred to by the appellant.

6. The Election Tribunal had categorically held that no affidavit was filed by the appellant verifying the contents of the election petition attested by the Oath Commissioner. However, our attention was drawn by the appellant to page 46 of the paper book in support of his contention that he had filed an affidavit duly sworn before the Oath Commissioner. This affidavit was filed along with the reply filed by the appellant to the miscellaneous application under section 63 of the Act submitted by respondent No,1 for dismissal of the election petition for non-compliance of section 55 of the Act. From perusal of this affidavit, it transpires that the same is purported to have been signed and sworn by the appellant on 2nd day of December, 2002 whereas the stamp of the Oath Commissioner states that it was sworn by appellant before him on 3-12-2002. The election petition was filed on 6-12-2002 as per presentation receipt/stamp of the Election Commission appearing on the last page of the election petition. According to the presentation receipt/ stamp of the Election Commission the petition consisted of 19 pages and the last page i,e, page No,19 is part of election petition containing the signatures and verification of the appellant. This fact clearly reflects that the affidavit appearing at page 46 said to have been annexed along with the election petition was not filed with the petition. Had it been so the total pages of the election petition would have been 20 and such akcnowledgment would have appeared in the presentation receipt/stamp of the Election Commission? This leads to an irresistible inference that the appellant on having coming to know of non-compliance of the provisions of sections 54 and 55 of the Act procured an affidavit purported to have been sworn by him before the Oath Commissioner on 3-12-2002 to overcome the defect/shortcoming/non-compliance by claiming that the said affidavit was part of the election petition filed by him little realizing that such attempt would be exposed by means of the entries relating to the number of pages of election petition in the presentation receipt/stamp of the Election Commission. The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such refusal of the Election Tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCM R 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 (supra) that an election petition not having been filed in compliance with the provisions of section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under section 63 of the Act as the requirement of both the sections were held by this Court as mandatory.

7. For the foregoing facts, reasons and discussion this appeal is found without any merit and is accordingly dismissed with no order as to costs.