ABDUL WAHAB BALOCH Versus IMRAN AHMAD KHAN NIAZI

SHAHID WAHEED, J.--- The election of respondent No.1, Imran Ahmad Khan Niazi, as a Member of National Assembly from constituency NA. 95 (Mianwali-I) in General Elections, 2018 has been challenged through this election petition under Section 139 of the Elections Act, 2017 by the petitioner, Abdul Wahab Baloch, who is a defeated candidate, inter alia, on four grounds, that is, firstly, the nomination papers of the respondent No.1 were invalid; secondly, the respondent No.1 was not, on the nomination day, qualified under Article 62(1)(d)(f) of the Constitution of the Islamic of the Republic of Pakistan, 1973 to contest election; thirdly, the respondent No.1 had failed to comply with the provisions of the Constitution of the Islamic Republic of Pakistan, 1973, the Elections Act, 2017 and the rules framed thereunder as he had failed to fulfill the mandatory conditions incorporated in the nomination papers as well as affidavit attached therewith under the direction of the Hon'ble Supreme Court of Pakistan, with the object to procure the result invalidly of the election in his favour; and, lastly the election of respondent No.1 has been procured by corrupt practice.

2. Vide order dated 05.10.2018 process, subject to question of maintainability of the election petition, as per modes suggested in sub- section (2) of Section 145 of the Elections Act, 2017 was issued. In response to notice Mr. Babar Awan, Advocate, entered appearance on behalf of respondent No.1, whereas respondent No.8, Sardar Bahadar Khan, appeared in person. The other respondents, to wit,(sic) respondents Nos.2 to 5, 7, 9 and 10 had not appeared and, thus, they were proceeded against ex parte vide order dated 18.10.2018. Respondent No.6, Muhammad Khalid, however, sent a letter dated 15.10.2018 through courier stating therein that he had nothing to say in favour or against the election petition. The said letter was taken on record. On the next date of hearing, that is, 25.10.2018 respondent No.1 submitted written statement, copy whereof was handed over to petitioner's counsel; respondent No.8 made a request that he did not want to file written statement and, thus, his right to file written statement was closed; and, that respondent No.6 was not in attendance, therefore, he was proceeded against ex-parte. Thereafter, the case was fixed for arguments on the question of maintainability of the election petition.

3. Mr. Shan Gul and Mr. Muhammad Arif Raja, learned Additional Advocate Generals, in response to notice under Section 152 of the Elections Act, 2017 entered appearance and assisted this Tribunal on the questions to be determined at threshold.

4. Before examining the question qua maintainability of the present election petition it would be apposite to state that according to Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") no election to a House or Provincial Assembly can be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by the Act of Majlis-e-Shoora (Parliament). Such law made in pursuance of Article 225 of the Constitution is the Elections Act, 2017. The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Elections Act, 2017, different stages of the process being dealt with by different provisions of the Act, there can be no election to a House or a Provincial Assembly except as provided by the Elections Act, 2017 and again, no such election may be questioned except in the manner provided by the Elections Act, 2017. So, the Elections Act, 2017 is a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. Thus, the right to dispute an election being statutory creation is subject to statutory limitation. An election petition is a statutory proceeding to which principles of equity do not apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it and thus, in the trial of election disputes, Tribunal is put in a straightjacket. In the above backdrop it has to be seen whether the election petition at hands is compliant with the provisions of the Elections Act, 2017 or whether the objections with regard to maintainability of the election petition have any substance.

5. First objection canvassed on behalf of the respondent No.1 is that the present election petition is barred by time. Elaborating this objection it is submitted that as per Section 142 (1) of the Elections Act, 2017, election petition was required to be presented to this Tribunal within 45 days of the issuance of notification of the name of the returned candidate by the Election Commission of Pakistan. According to learned counsel appearing on behalf of respondent No.1 the Election Commission of Pakistan on 07.08.2018 issued notification of the names of the returned candidates and that from the said date the last date for filing the election petition before this Tribunal was 21.09.2018 whereas the same was filed on 22.09.2018 and, thus, it was patently barred by time; and, that since the provisions of Section 5 of the Limitation Act, 1908 do not apply to the election petition, same is liable to be dismissed on this short ground. I am afraid this objection is not well founded for two reasons. Firstly, Section 142 of the Elections Act, 2017 contemplates that an election petition shall be presented to the Election Tribunal within 45 days of the publication in the official Gazette of the names of the returned candidates. It means that period of limitation for filing election petition before this Tribunal shall be computed from the date of publication in the official Gazette of the names of returned candidates. It is true that on 07.08.2018 the Election Commission of Pakistan in pursuance of subsection (1) of Section 98 of the Elections Act, 2017 issued notification of the names of candidates returned to the National Assembly of Pakistan as a result of General Elections, 2018 but the same was published in the Gazette of Pakistan on 29.08.2018. The period of limitation for presenting the election petition before this Tribunal, thus, started running from the date of publication in the official Gazette of the names of the returned candidates, that is, 29.08.2018 and from the said date the last date for filing election petition was 12.10.2018. Since the election petition was presented to this Tribunal on 21.09.2018, it could not be held that the same was out of time. Secondly, assuming that argument canvassed on behalf of respondent No.1 is correct and last date for filing the election petition before this Tribunal was 21.09.2018, even then the presentation of election petition before this Tribunal on 22.09.2018 on account of benefit provided in Section 4 of the Limitation Act, 1908 read with Section 10 of the General Clauses Act, 1897 cannot be held barred by time as on 21.09.2018 the Tribunal and its office was closed due to 9th/10th Muharram Holidays.

6. Second objection is that the election petition is liable to be rejected under Section 145 of the Elections Act, 2017 as the same has not been verified in the manner laid down in the Civil Procedure Code, 1908 (Act V of 1908). It is argued that provisions of Section 144 (4) of the Elections Act, 2017 are mandatory in nature as the spirit of law is to ensure that the person making the allegations of corrupt practice realizes the seriousness thereof as such a charge would be akin to a criminal charge, since it entails the party indulging in such practice with different penalties. It is, therefore, equally essential that particulars of the charge or allegation are clearly and precisely stated on oath in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively counter the same. Mr. Babar Awan, Advocate by making reference to the cases of Zia ur Rehman v. Sved Ahmad Hussain and others (2014 SCMR 1015), Lt. Col. (Rtd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana (2015 SCMR 1585) and Muhammad Nawaz Chandio v. Muhammad Ismail Rahu (2016 SCMR 875) submits that verification clause of the election petition suffers from defects; that is to say (a) that a verification clause is printed which has been signed by the petitioner, however, if stamp/seal of the Oath Commissioner is available thereon, there is no need to mention that the Oath has been administered by the Oath Commissioner; (b) that the time and place have not been mentioned on the verification clause; however, the date has been mentioned i.e. 18th day of September 2018. The petition has been prepared on 18.09.2018 in Lahore as written at page 25 of the petition whereas the same was verified on Oath on the same day, thus, in the said circumstances, the omission of time and place is substantial in nature; (c) that the petitioner in purported verification has failed to specifically disclose that as to what number of paragraphs/grounds of the petition have been verified by the petitioner on his own knowledge and what he has verified upon the information received by him and that only a vague assertion has been made; that the petitioner has in contravention to law only stated in the verification clause that paragraphs Nos.1, 2, 4, 6a, d, f, h, j, k, m, n, o, p, q, w, x, cc and ff are correct without specifying the source, i.e., information, knowledge or belief. Thus, purported verification is defective and petition is liable to be dismissed; (d) that the petition has not been verified at all in accordance with law and verification of election petition has not been made on Oath before the Oath Commissioner as required under the law. The seal/stamp of Oath Commissioner available on verification clause pertains to some purported Affidavit. It shows that the petitioner never appeared before the Oath Commissioner for verification of the election petition in contravention to the mandatory requirement of law, consequently making the election petition incompetent and liable to be summary rejection: and, (e) that the contents of the purported seal/stamp of the Oath Commissioner are unclear, vague and not legible and, therefore, the said verification is defective and not in accordance with law.

7. The law governing preliminary objection relating to verification of the election petition has been provided in subsection (4) of Section 144 of the Elections Act, 2017 which postulates that an election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for verification of the pleadings. The Code of Civil Procedure (C.P.C.) 1908 through its Order VI, Rule 15, C.P.C. prescribes the manner of verification of pleadings which reads as under:

Verification of Pleadings:--(1) Save as otherwise provided by any law for the time being in force, every pleadings shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

2). The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and belief to be true.

3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was singed."

The following are the main features of the verification in accordance with above cited provisions of C.P.C. i) it has to be on oath or solemn affirmation; ii) the person verifying shall specify the paragraphs, which he verifies on his own knowledge and paragraphs which are believed to be true by him separately; iii) the verification shall be signed by the person making it; and iv) it shall contain the date and place when and where signatures were appended.

The above said provision of law is in parametria to Section 55(3) of the previous law, i.e. the Representation of the People Act, 1976 and Section 36(3) of the Senate (Elections) Act, 1975, which have been under consideration before the Hon'ble Supreme Court of Pakistan in different cases, and, thus, survey thereof would be helpful to resolve preliminary question with regard to validity of verification given at the bottom of the present election petition. I will begin survey of the case law by referring to the case of Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCMR 250) wherein it was held as follows:

"Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, Rule 15, C.P.C. which when read with section 139, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf."

Second judgment on the subject rendered in the case of Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600) wherein the Hon'ble Supreme Court of Pakistan after examining the provisions of Order VI, Rule 15, C.P.C. held as follows: "

"The Code contains such provisions under Order VI, 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.------------------------------------------------ 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 SCMR 250), 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 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."

In the case of Malik Umar Aslam v. Sumera Malik and another (PLD 2007 SC 362) it was held as follows:

"Under section 55(3) of the Act, 1976, it has been made obligatory upon the person, who has challenged the Elections, to verify the same in the manner prescribed for verification of plaint by C.P.C. thus by reference, the provisions of Order VI, Rule 15 C.P.C. have been made applicable. As per its provision, every pleadings is required to be verified on oath or solemn affirmation at the foot by the party or by one of the parties to pleadings or by some other person to the satisfaction of the Court acquainted with the facts of the case. It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, rule 6(1), C.P.C. without calling for an affidavit in ex parte proof. We believe that there is no point to address ourselves on this question namely if verification on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of Almighty Allah if the truth is not spoken. Under section 6 of the Oaths Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorize person. Admittedly in instant case, verification has not been made on oath before an authorized person, theref re, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly.---------------------- --------------------- At this juncture, it would be appropriate to attend to the argument of the learned counsel for appellant that the Tribunal should have allowed the application for the amendment, enabling the appellant to submit the Election Petition duly verified or attested on oath and to remove the defect in view of provision of section 62 (3) of the Act, 1976 and according to him, amendment in the plaint or petition is permissible at any stage as it has been held in S.M. Ayub v. Yousaf Shah (PLD 1967 SC 486).------------------------------------- ------------------------- In the case in hand, the appellant knowing well the mandatory provision of section 55 (3) of the Act, 1976, did not apply for amendment within the prescribed period of limitation for filing of Election Petition. Undoubtedly, if during period of limitation for filing of petition such an amendment is sought, the Court may consider the request according to the settled principle relating to amendment in the pleadings but once limitation period has already expired, then it is the duty of the Court to examine whether a right; which has been created on account of bar of limitation in favour of opposite side can be snatched by allowing amendment in the pleadings, enabling the plaintiff (petitioner) to put up a better/perfect case against defendant (respondent). In this behalf the consistent practice of the Courts is that amendment in such matters, where limitation creates a hurdle, is not to be allowed on condoning the delay, particularly where no request has been made to enlarge the period of limitation. For the above proposition we are fortified by the judgments in the cases of Bhagwanji v. Alembic Chemical Works (AIR 1948 PC 100) and Saeed Sehgal v. Khurshid Hasan (PLD 1964 SC 598)."

Next is the case of Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others (2010 SCMR 1877) wherein it was held as follows:

"It is well-settled that question of law, pronounced or declared by this Court in terms of Article 189 of the Constitution has binding effect on all the functionaries, both executive and particularly the judicial authorities. The superior Courts, Tribunals have obligation to implement and adhere to the judgment of the Supreme Court. We feel no hesitation in holding that the Election Tribunal, perhaps on account of non-availability of proper assistance, proceeded to decide the cases against the appellants for the reasons mentioned hereinabove. This Court in the case of Bashir Ahmad Bhabhan (supra) has settled the question with regard to verifying the pleadings notwithstanding the numbered paragraphs or the pleadings, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. This provision of law in fact cannot be considered to be mandatory as a person can verify the paras in the pleadings on his own knowledge without verifying and para upon receipt of the information, same are believed to be true."

The relevant extract from the judgment rendered in the case of Zia ur Rehman v. Syed Ahmad Hussain and others (2014 SCMR 1015) reads as under:

"Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in compliance with the legislative intent. Non-compliance of this provision carries a penal consequence in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, rule 15 of the Civil Procedure Code".

In the case of Inayatullah v. Syed Khurshid Ahmad Shah and others (2014 SCMR 1477) it was settled as follows:

"The rubber stamp of the Oath Commissioner wherein blank spaces have been filled show that the affidavit was sworn on 17.06.2013. However, the attestation has been made on 18.6.2013. The verification on the petition itself, for whatever it is worth, also states in its body that the verification was made on 17th June, 2013, but this verification is also incorrect bearing in mind that the copy of the Election Petition was sent to the respondents on the following day i.e. 18-6-2013. The affidavit of service which has been signed by the appellant states on oath "that before filing of petition [appellant] [sic] have served it to the respondents through notice by courier, the receipts of those are appended herewith". This statement has been verified on 17-6-2013 and the attestation has also been made on 17-6-2013. This affidavit of service is itself belied and rendered false by the courier receipts which show that the copy of the petition was sent on 18-6-2013 and not on 17-6-2013."

In the case of Hina Manzoor v. Malik Ibrar Ahmed and others (PLD 2015 SC 396) importance of verification of an Oath Commissioner was discussed in following words:

"It is now well settled that merely affixing signature at the foot of the election petition and/ or under its verification clauses, without the same being attested/verified by an Oath Commissioner, or some other authorized person, by itself, does not meet the requirement of verification as prescribed by Order VI, rule 15, C.P.C., and thus renders the petition non-compliant with the provisions of section 55 (3) of the ROPA, essentially entailing its dismissal in terms of section 63 (a) of the ROPA. "

In the case of Ch. Zawwar Hussain Warrich v Muhammad Aamir Iqbal and others (2015 SCMR 1186) filing of affidavit along with election petition was found sufficient compliance of law in following terms:

"We have come to the conclusion that, since the affidavit had been filed along with the election petition and had been duly attested by the Oath Commissioner, there was sufficient compliance with the provision of section 55(3) of the ROPA and as a consequence, the penalty under section 63(a) is not attracted."

Manner and mode of making verification or affidavit was discussed in detail in the case of Lt. Col (Rtd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585), relevant extract is as follows:

"With regards to verification of election petitions on oath, it is clear from the provisions of section 55(3) of the ROPA that an election petition has to be verified in accordance with the provisions of Order VI, Rule 15, C.P.C., which provide the basics as to how pleadings have to be verified, what shall be the contents of the verification of pleadings and how they have to be attested by the oath commissioner when read with other relevant provisions of law. Be that as it may, in addition to the law cited by both the sides (from some other dicta), it is conclusively settled by this Court that verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal. ----------------------- ------------------------------------------------------------------------------- Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date or place mentioned in the verification i.e. at what date and what place the verification was made by the appellant. The two stamps of the oath commissioner, Lahore Cantt, affixed at the bottom of the verification also do not postulate the date on which the verification was made by the election petitioner. Besides, it is not reflected from the verification whether the appellant was present at the time of verification before the oath commissioner because he has not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars are not even mentioned on the said verification. Therefore on account of the deficiencies identified above, we hardly find the verification to be valid in terms of spirit of provision of section 55 (3) of the ROPA and in line with the law laid down by this Court in various dicta. Resultantly, we have no hesitation to hold that the verification is not in accord with the law." ------------------------- ------------------------------------------------------------------------------- ---------------------------------

From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites:

1. Identification of deponent (Rule 11)

2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)

3. Time and place of the making of the affidavit to be specified (Rule 11)

4. Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12)

5. Date, Signature and name of office and designation of the Court/Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12)

6. Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12)

7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/Magistrate/Other Officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/Magistrate/Other Officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14)

8. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15)

9. Oath to be administered by the Court/Magistrate/Other officer in accordance with the Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16).-----------------------------------------------------------------------------------------------------

It is also relevant to note here that in an ordinary lis (suit etc) requiring verification and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matter before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same.-------------------------------------------------------------------------- We have applied our mind to this aspect of the matter and hold that in order to meet the real object and the spirit of the election laws which require verification on oath, in an ideal situation, the Oath Commissioner at the time of verification of the petition etc. and also the affidavit, must record and endorse verification/ attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent. But as the law has not been very clear till now, we should resort to the principle of presumption stipulated by Article 129(e) ibid in this case for avoiding the knock out of the petition for an omission and lapse on part of the Oath Commissioner. But for the future we hold that where the election petition or the affidavit is sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath is made, otherwise the election petition/affidavit shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed on the above score. We consciously and deliberately neither apply this rule to the instant case nor any other matter pending at any forum (election tribunal or in appeals)."

Requirement of making verification on Oath of the amended election petition was highlighted in the case of Sardar Muhammad Naseem Khan v. Returning Officer and others (2015 SCMR 1698) in following terms:

"The amended petition in this case for all intents and purposes shall be a final, independent and separate document (election petition) which had to be verified per the mandate of law. It is conceded by the learned counsel for the appellant, when confronted with the fact that the amended election petition filed by the appellant has not been verified in accordance with law, that if the original election petition is ignored from consideration, the amended petition will be hit by the provisions of sections 55(3) and 63 of the Act. Obviously on account of the above, the impugned decision of the Tribunal is unexceptionable."

In the case of Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani and others (2016 SCMR 722) short affidavit in support of election petition which duly fulfills the requirement of Order VI, rule 15, C.P.C. was found sufficient in following words:

"As regards the argument now raised that the election petition is not supported by a full affidavit as per the requirement of the provisions of the Sindh Chief Court Rules, suffice it to say that when one looks at Section 55 of the Act, the only requirement of law is regarding verification as per the provisions of Order VI, rule 15 of the Code of Civil Procedure, 1908 (C.P.C.) and not vis-a-vis any affidavit required to be given in support of the election petition. Therefore, the argument about a full length affidavit has no substance. As far as the verification of the election petition otherwise is concerned, we have examined the document and find that a short affidavit to that effect in support thereof has been given which duly fulfills the requirements of Order VI, Rule 15, C.P.C. as has been held in the judgment reported as Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600) and Lt. Col.(R) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585)

In the case of Feroze Ahmad Jamali v. Masroor Ahmad Khan Jatoi 2016 SCMR 750) the words "on solemn affirmation before me" in the stamp of Oath Commissioner were construed that the deponent was duly present before the Oath Commissioner at the time of attestation and was administered Oath; and, identification of deponent by Advocate knowing the deponent personally was found valid. The relevant extract of the judgment is reproduced below:

"Besides we have examined the verification part of the election petition and we find that it complies with the provisions of Order VI, Rule 15 of the Code of Civil Procedure, 1908 (C.P.C.) in letter and spirit. The reasons of the learned Tribunal and the argument of the respondent that it does not mention the date, day and place of the verification or the proper identification of the appellant, suffice it say that at the bottom of the petition (in the verification portion), though not in typed form the date has been clearly written by hand. There is another stamp of the Oath Commissioner appearing on the left of the verification portion of the election petition which mentions the date as 26.6.2013 (albeit also written by hand). With respect to attestation, the Oath Commissioner in clear and unequivocal terms has stamped on 'S.A before me' (i.e. on solemn affirmation before me), which clearly indicates that the appellant was duly present before the Oath Commissioner at the time of attestation and was administered oath. It is also spelt out from the Oath Commissioner's stamp that the election petition was attested at Sukkur. As regards identification of the appellant, he has been duly identified by Mukesh Kumar, Advocate who has mentioned of knowing the appellant personally; thus we are of the candid view that in the light of the law laid down by this Court in Lt. Col. (Rtd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585) there is no defect in the verification."

In the case of Ch. Muhammad Ayaz v. Asif Mehmood and others (2016 SCMR 849) default in respect of verification of election petition was not allowed to be removed after period of limitation in following words.

"It has been observed that the above quoted provisions specifically state that verification is to be made at the time of filing of the election petition and any default in this regard would be considered to be a significant omission and fatal. Admittedly the appellant had sought amendment in the election petition after the period of limitation as such the petition, in the light of the above provisions, could not have been considered and allowed and warranted dismissal being not maintainable on this very score, Keeping in view the above provisions verification of the election petition was a mandatory requirement and that too in accordance with the provisions of Order VI, Rule 15(2) of C.P.C. specifying to numbered paragraphs of the pleadings, what he verifies on his own knowledge and what he verifies upon information received and believed to be true. It is an admitted position that the appellant had initially not verified the election petition filed by him which is apparent as he subsequently filed application seeking amendment to do so and that also with an application for condonation of delay. In the light of the above whether the election petition was maintainable and the deficiency could have been allowed to be rectified and that also after the passing of the period of limitation and in circumstances non-compliance of the mandatory provisions of Section 55(3) of the Act is fatal to the maintainability to the election petition.

In the case of Muhammad Nawaz Chandio v. Muhammad Ismail Rahu (2016 SCMR 875) importance of verification of election petition was highlighted in following words:

"Adverting first to the contention of the learned counsel for the Appellant that the Election Petition was not verified in accordance with law i.e. under Rule 15, C.P.C., hence, did not comply with the mandatory requirement of section 55(3) of ROPA and, therefore, merited summary dismissal on this ground. We have examined the Election Petition, a copy whereof is available on the record. It bears verification on solemn affirmation that what has been stated therein is true to the best of knowledge and belief of the Election Petitioner. It bears the stamp and signature of the Oath Commissioner. The place (Hyderabad) whereat the contents of the Election Petition were verified is also stated therein. The date is also mentioned by the Oath Commissioner. The Election Petitioner i.e. the present Respondent No.1 entered the witness box as PW-1 and owned the said Election Petition by identifying his signatures thereupon. In this view of the matter, it appears that the requirement of Order VI, Rule 15, C.P.C. has in essence been complied with. The additional requirements enjoined upon the Oath Commissioner referred to by the learned counsel for the Appellant by relying upon the judgment of this Court in the case of Lt. Col. (Ret) Ghazanfar Abbas's case (supra) are not really relevant as such requirement, if applicable, would be mandatory in the future as has been specifically mentioned in the said judgment. In this view of the matter, the learned Election Tribunal has correctly held that the Election Petition could not be dismissed on the ground that it was not duly verified.

Last case on the subject is the case of Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others (2016 SCMR 1312) wherein it was held as follows:

"From the above, it is crystal clear that verification of an election petition in the prescribed manner is a mandatory requirement and that too in accordance with the provisions of Order VI, Rule 15, C.P.C. specifying to numbered paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true. From the record it reveals that the Appellant while filing his election petition did not comply with the mandatory requirements with regard to the verification of the election petition and to cure such defect subsequently submitted an affidavit in this regard, wherein the entire contents of his election petition were reproduced. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleadings are generally directory in nature, the position is different in election laws by virtue of section 63 of the ROPA, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of section 54 or 55 of the ROPA, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under section 63 of the ROPA, 1976.--------------------------------------------------------------------------------------------------------------------------------------------When the affidavit at hand is examined in the light of the above it transpires that certain essential requirements are missing therefrom. Firstly, it has not been mentioned whether the Respondent No.1 was administered oath by the Oath Commissioner before the attestation was made. Secondly, it has not been specified whether the respondent No.1 was duly identified before the Oath Commissioner. In this regard, it has simply been stated at the foot of the affidavit that the Respondent No.1 was present before the Oath Commissioner in person, however, the details of the person identifying the Respondent No.1 have not been mentioned whereas according to the above quoted provisions, the Oath Commissioner is bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate has to be appended. Furthermore, it is also not clear from the affidavit that the Respondent No.1 was identified with reference to his ID card and in this regard, no ID card number is given, as such the identification does not seem to have been made. There is yet, another aspect to the matter. The affidavit in question does not make any reference to the numbered paragraphs contained therein which the Respondent No.1 verifies on his own knowledge and what he verifies upon information received and believed to be true. Further, the affidavit in question also does not make any reference to the verification of the annexures appended along with the petition, which although have been mentioned in the said affidavit".

8. The above survey of case law indicates the following principles qua valid verification of election petition: i) that election petition is to be verified 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, which is to be practically administered; ii) that verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory; iii) that there is no material difference between a verification on oath and a verification through an affidavit for, that is an affidavit is a sworn statement in writing while a verification is confirmation in law by Oath in writing to establish the truth, accuracy and reality of a statement of fact; iv) the purpose of taking oath is to bind down the deponent to speak truth otherwise he or she would be liable for the curse of Allah Almighty, if the truth is not spoken; v) that request for rectification of defective verification may be considered by the Tribunal according to the settled principle relating to amendment in the pleading during period of limitation for filing of election petition but once limitation period has already expired the defect in verification cannot be allowed to be removed; vi) that the objection that election petitioner in his verification has failed to give reference to the paragraphs of the pleadings as to what he happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true 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 and, thus, it depends upon the facts of each case, as to what category assertions belong to; vii) that the amended election petition is also required to be verified in accordance with Order VI, Rule 15, C.P.C.; viii) that election petition is not required to be supported by a full affidavit. Short affidavit is sufficient if it duly fulfills the requirement of Order VI, Rule 15, C.P.C.; ix) that the words "solemn affirmation before me" in the stamp of the Oath Commissioner would be sufficient to indicate that election petitioner was duly present before the Oath Commissioner at the time of attestation and was administered oath; x) that identification of the deponent/election petitioner before Oath Commissioner should be made with reference to his/her National Identity Card; xi) that identification of the deponent/ election petitioner by an Advocate who has mentioned of knowing the election petitioner personally is sufficient for the purpose of identification before the Oath Commissioner; xii) that identification of the deponent by an Advocate, whose name and particulars are not mentioned on the verification, is not valid; xiii) that the date and place of verification, that is, at what date and at what place the verification was made by the deponent should be specified; xiv) That only that affidavit shall be treated valid for the purpose of verification of the election petition which is in conformity with the requirements mentioned in the High Court Rules and Orders read with Order XIX, C.P.C.; and, xv) that in order to meet with the real object and the spirit of the election laws which require verification on oath, Oath Commissioner at the time of verification of the election petition and also the affidavit, must record and endorse the verification/ attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent; and it is the duty of election petitioner to insist and ensure that the said endorsement is made.

9. In the light of above stated principles of law, I now proceed to examine the validity of verification of the present election petition. In the case on hands following verification has been given at the bottom of the petition.

" It is verified on oath at Islamabad on this 18th day of September, 2018 that the contents of paragraphs 1, 2, 4, 6a, d, f h, j, k, n, o , p, q, w, x, cc and ff are correct and paragraphs 5, 6b, c, 2, I, 1, r, s, t, u, v, y, z, aa, bb, dd, ee, gg, to the best of my knowledge and belief are true and correct."

The petitioner, who is an Advocate of Supreme Court and also Member of the Sindh Bar Council through this petition has made a prayer that a declaration be issued to the effect that: (a) nomination of respondent No.1 was invalid;

(b) respondent No.1 as returned candidate was not on the nomination day, qualified for, rather was disqualified from, being elected or to hold elective office of member of National Assembly from constituency NA.95- Mainwali-I under Article 62(1), (d), (e) and (f) and Article 63(1)(o) and (p) of the Constitution of the Islamic Republic of Pakistan, 1973; and, (c) respondent No.1 has been guilty of corrupt practice throughout. The said declaration has been sought inter alia on the basis of (i) judgment of paternity in the case of Anan Luisa White v. Imran Khan by Superior Court of the State of California for County of Los Angeles, (ii) copy of order of appointing guardian of minor, (iii) copy of consent of proposed guardian, (iv) copy of declaration Carolina White etc, (v) tweets between Tyriana Jad Khan and Jemima, (vi) biography "Imran v. Imran untold story" written by Frank Huzur; and (vii) book of Reham Khan. It means that all the paragraphs of the election petition are not happened to be correct according to knowledge of the petitioner and thus the principle settled in the case of Sardarzada Zafar Abbas and others v. Sved Hssan Murtaza and others (PLD 2005 SC 600) cannot be applied here. The petitioner was, thus, required to give reference to paragraphs of the petition which he was verifying to be correct according to his knowledge and the paragraphs which were correct according to his belief. This requirement has not been complied with and, thus, the verification given at the bottom of present petition, reproduced hereinabove, being not in accordance with provisions of Order VI Rule 15 CPC is not valid.

10. Second limb of the objection to the verification is that the same was not made on oath, which is evident from the stamp of the Oath Commissioner affixed beneath the verification. Answer to this aspect of the objection may be given after appraising the contents of stamp of the Oath Commissioner. Since the stamp of Oath Commissioner is not clear and legible, the Xerox copy thereof is pasted below for proper appreciation.

I made an effort with the assistance of learned counsel for the parties to read the above pasted stamp of the Oath Commissioner. With great labour following words are deciphered from the said stamp:

"This affidavit has been .. before me on this 18 SEP 2018 Day of

..20 ... who is personally known/ identified by Abdul Wahab Baloch

Certified further that the contents of the Affidavit have been read and-------------------------------------- has --------------------------------------

Serial No.------------------------------

ASAD ABBAS JAFRI, ADVOCATE HIGH COURT OATH COMMISSIONER ISLAMABAD."

First feature of above pasted rubber stamp of the Oath Commissioner is that it relates to some affidavit and not with regard to verification typed at the bottom of election petition; second striking feature is that word "oath" is missing; and lastly, the line "who is personally known/ identified by Abdul Wahab Baloch" is defective/ ambiguous/ ungrammatical. I confronted petitioner's counsel with the above noted features and asked as to how on the basis of said stamp attestation of the verification of election petition can be held valid. In response, he has submitted that this is a question of fact to be proved on evidence; and, that if at this stage Tribunal wants to understand true meaning of the stamp or to read the missing letters then Oath Commissioner may be summoned. The reply is neither persuasive nor satisfactory. According to the case of Gulzar Khan v. Shahzad Bibi and another PLD 1974 SC 204, Amir Abdullah Khan through Legal Heirs and others v. Col.(R) Muhammad Attaullah Khan (PLD 1990 SC 972) and Mst. Maryam Bibi and others v Muhammad Ali through L.Rs (2007 SCMR 281), the question of the proper construction of document is a question of law and not of fact.

11. Oath is one of the important components of the verification of election petition. In fact, it is Oath which provides justification to bring the result of the election under judicial scrutiny and control so as to ensure that the true will of the people is reflected in the results; and, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. The other object for the verification of pleadings on Oath is to fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, to discourage wild and irresponsible allegation as firstly; the success of a candidate who has won at an election cannot be lightly interfered with; secondly, setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public exchequer and administration; and, thirdly, false cases not only contribute to the work load of the Tribunal and kill its precious time but create hurdle in the ways of genuine litigants who sincerely need assistance of the Tribunal for obtaining justice. Law, thus, ordains the parties to approach Tribunal with genuine grievance on truthful facts. Where false facts are pleaded on oath and false evidence is produced to mislead the Tribunal calling upon it to interfere with people's verdict of election, misconduct of the party is always viewed seriously by initiating criminal proceedings against it under Section 193, P.P.C. In the present case the petitioner has challenged the election of respondent No.1 primarily on the allegation that he is not of good character and is commonly known as one who violates Islamic Injunctions and, that he is not sagacious, righteous, honest and Ameen. These are serious allegations and, therefore, required to be declared on Oath, which is missing. It appears that the word "Oath" has been deliberately omitted or got omitted in the attestation or stamp of the Oath Commissioner so as to avoid any consequence on not being proved the allegation set out in the petition. This is adroit maneuvers. It is in this perspective this Tribunal neither can read nor supply the word "Oath" in the attestation of the Oath Commissioner so as to make it perfect. Even otherwise, it is not the function of Tribunal to make instrument but to interpret it. Omission of the word "Oath" in the attestation of Oath Commissioner leads to the conclusion that verification of election petition was not made on Oath and thus it is not in accordance with Order VI, rule 15, C.P.C. This defect is fatal and renders present election petition incompetent.

12. There is another flaw in the attestation of verification by the Oath Commissioner. It is not reflected from the verification/attestation whether the petitioner was present at the time of verification before the Oath Commissioner because he had not been verified with reference to his identity card. The line "who is personally known/identified by Abdul Wahab Baloch" occurring in the above pasted stamp of the Oath Commissioner makes the attestation ambiguous. It is not clear from the said line as to whether petitioner namely Abdul Wahab Baloch was personally known to the Oath Commissioner or whether the petitioner himself disclosed his identity or someone who was his namesake had identified him before the Oath Commissioner. At the best this can be said to be a patent ambiguity in the stamp of the Oath Commissioner. It is settled principle of law that where the document or deed is ungrammatical and cannot be read literally so as to give any clear meaning without adding or removing some words, there is patent ambiguity and oral evidence is not admissible to supply the defect. Exactly, the same principle is conveyed through the maxim ambiguitas verborum patens nulla verificatione excluditur (that which is patently ambiguous on its face cannot be made clear by external proof). The above stated patent ambiguity renders the attestation of the Oath Commissioner void for uncertainty and consequently it is held that verification was not made in accordance with law and resultantly election petition being non-compliant with the mandatory provision of Section 144(4) of the Elections Act, 2017 merits to be summarily rejected.

13. There is yet another defect in the election petition. According to Section 144 of the Elections Act, 2017 election petition shall, inter alia, contain affidavit of service to the effect that copy of the petition along with copies of all annexures, including list of witnesses, affidavit and documentary evidence, have been sent to all respondents by registered post or courier service. In order to meet this requirement the petitioner has appended affidavit of service, available at page 440 of this file, which reads as under:

" I, Abdul Wahab Baloch, deponent hereby state on oath that a copy of the petition along with copies of all annexures, including list of witnesses, affidavit and documentary evidence have been served to all the respondents by registered post at their addresses."

Deponent

Underneath the above cited petitioner's solemn affirmation, the following statement is typed.

Sworn at Islamabad this 18th day of September 2018, before me. The affidavit is filed on behalf of Abdul Wahab Baloch.

Oath Commissioner

The above statement was though typed at the bottom of petitioner's solemn affirmation but not signed by the Oath Commissioner and thus, it cannot be taken into consideration to hold that the petitioner made the affirmation of the facts stated in the affidavit on Oath before the Oath Commissioner. However, beneath the said statement there is a rubber stamp of Oath Commissioner which, is selfsame the rubber stamp pasted above and thus for reasons recorded about it in preceding paragraphs, being ambiguous renders affidavit of service defective and invalid. Notwithstanding the defective affidavit, there is another aspect which indicates that provisions of clause (c) of subsection (2) of Section 144 of the Elections Act, 2017 were not complied with. The petitioner has also placed on record copy of the notice which was sent to all respondents of the instant petition. This notice is available at page 438 of this file and reads as follows:

"Please take notice that 1 am filing election petition before the Hon'ble Election Tribunal for N.A-95 (Mianwali-1)/Lahore High Court to challenge the election Notification dated 07.08.2018 of respondent No.1 (Imran Ahmad Khan Niazi) as returned candidate from the above constituency."

Perusal of the above cited notice makes it pellucid that the petitioner through said notice had not sent copy of the election petition along with copies of annexures, including list of witnesses, affidavit and documentary evidence to all respondents. It means that affidavit of service, available at page 440 of this file is false and, thus, election petition under Section 144 of the Elections Act, 2017 is liable to be rejected at the threshold.

14. Upshot of above discussion is that election petition in hands is non-compliant with the mandatory provisions of Section 144 of the Elections Act, 2017 and, therefore, the same is hereby rejected.

KMZ/A-75/L Petition dismissed.