WAQAR AHMAD CHAUDHRY vs Dr. TAHIR ALI JAVAID and 3 others

ORDER

' Objection by the respondent reflected in C.M. No,2 of 2009 to the effect that election petition and the documents attached thereto are not verified as required under the provision of section 55(3), of ROPA, 1976 was rejected to the extent of the election petition vide order dated 15-1-2010. However, with respect to the documents accompanying the petition, the hearing was adjourned for further consideration and is decided by this order.

2. The document attached to the petition include photocopies of applications made to the Court (Annexure A/3), application made to the SHO(Annexure A/4), application made to the Returning Officer(Annexure A/5), application made to the DPO (Annexure A/6), application made to the Returning Officer (Annexure A/7) and documents signed by DPO (Annexure C/1 to C/7). S.55(3) ibid requires every "annex or schedule" attached to an election petition to be verified in terms of Order VI, rule 15, C.P.C. Non-compliance with the said requirement is penalized with dismissal of the election, petition under section 63(a) ROPA, 1976.

3. Learned counsel for the respondent relies upon the rule laid down by Hon'ble Supreme Court in S.M. Ayyub v. Syed Yusaf Shah and others (PLD 1967 SC 486), regarding pari materia provision of S.59(3) of the National and Provincial Assemblies (Election) Act, 1964, to the effect that such documents attached to an election petition that make additional allegations of a substantive character against the returned candidate or at least furnish better particulars of the allegations made in the petition qualify as annexs or schedules to the election petition. Under the judicial rule the statute requires such documents to be verified on oath. He contends that the aforenoted documents attached to the present election petition bear the necessary characteristics in the above terms and therefore these are required by law to bear verification of the petitioner.

4. The learned counsel for the petitioner denies that the aforementioned documents advance the substantive allegation made in the election petition and therefore, are not subject to the rule of verification. That stand is not borne out by the contents of the documents attached to the petition which purport to reinforce the allegations made in the petition. However, learned counsel is on somewhat stronger footing in claiming that the documents under consideration are public documents and therefore these are exempt from the rule of verification. He relies on Basher Ahmad Bhanbhan and another v. Shaukat Ali Rajpur and others (PLD 2004 SC 570) wherein the Hon'ble Supreme Court has held that public documents attached to an election petition need not be verified in terms of section 55(3) ROPA, 1976. Accordingly, learned counsel maintains that all the aforenoted documents are public documents and therefore these fall outside the prescription of S.55(3) and penalty under section 63(a) of the ROPA, 1976.

5. Public documents are defined in Article 85 of the Qanun-eShahadat Order, 1984 ("QS,Q.")reproduced as under:-- "85. Public Documents: The following documents are public documents:

(1) documents forming the acts or records of the acts

(i) of the sovereign authority;

(ii) of official bodies and tribunals; and

(iii) of public officers, legislative, judicial and executive of any part of Pakistan or of a foreign country;

(2) public records kept in Pakistan of private documents;

(3) documents forming part of the records of judicial proceedings;

(4) documents required to be maintained by a public servant under any law; and

(5) registered documents the execution of which is not disputed.

(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance, 2002."

6. The documents forming the subject-matter of,-present scrutiny, inter alia, pertain to the record of an election to a provincial legislature including correspondence between election officers which is kept by the Election Commission of Pakistan under the provisions of ROPA, 1976. Likewise, for the other documents that are attached to the election petition and relate to the judicial record or the police record. These documents fall within the categories of public documents comprising the record of acts of public officers, the record of judicial proceedings and documents required to be maintained by public servants under the law. As such these documents qualify as public documents.

7. However, the important question that arises for consideration in the present context is whether a photocopy of a public document is admissible on the record of an Election Tribunal without bearing the verification provided in S. 55(3) of the ROPA, 1976. In Bashir Ahmad Bhabhan's case (supra), para 7 of the judgment makes it plain that the documents attached to the election petition that were under consideration of the Hon'ble Supreme Court were either certified copies or attested copies of such documents. Indeed under Articles 87 and 88 of the QSO a public document can possess any probative value when its certified copy is produced on a court's record. Otherwise, a mere photocopy of a document cannot be relied or accepted as an correct copy of the original, free from alteration. Hence, the rule laid down in Bhabhan's case cannot apply in the present case wherein the documents noted above are all mere photocopies of public documents that are neither certified copies thereof nor are verified by the petitioner.

8. Section 63(a) of ROPA, 1976 states in emphatic terms that the requirement of Section 55 of the ROPA, 1976 is of mandatory effect and violation thereof shall be visited with the penalty of dismissal of the election petition. Reliance is placed on Malik Umar Aslam v. Sumera Malik (PLD 2007 S.C. 362).

The statutory prescription of a penal consequence for non compliance with the requirements of S.55(3) of the ROPA, 1976 conveys a clear statutory intent. The material sustaining the allegation made in an election petition, whether documentary or oral, must be reliable and truthful otherwise the election petition is liable to dismissal. The personal verification of an election petitioner on the annexs and schedules attached to his petition fixes upon him the responsibility for the copies of such documents being genuine and for the correctness of the allegations made in his election petition. Such a verification lends credibility to the evidence relied by the petitioner and assures the seriousness of his claim. The said statutory precaution filters out the false and frivolous claims thereby avoiding waste of the Tribunal's time and also saving undue harassment to the returned candidate. By judicial precedent the only exception to this rule would be those documents that have intrinsic probative value under the law. Such documents are the certified true copies of public documents as envisaged by Article 87 of the QSO. Indeed, a photocopy of a public document is no better than a piece of secondary evidence which cannot have any intrinsic probative value let alone the comfort of genuiness of a document demanded by the ROPA, 1976. For such a photocopy document, the requisite credibility may be lent to it upon verification by an election petitioner.

9. As the aforenoted photocopies of annexs attached to the election petition do not bear the verification of the election petitioner, therefore, this petition is dismissed under S. 63(a) of ROPA, 1976.