MUHAMMAD AZAD GUL Versus SAID MUNEER SAID

General elections on the basis of adult franchise were held on 3rd February, 1997 for National Assembly Seat. NA‑29 Tribal Area‑111 (Orakzai Agency).

2. Numerous candidates contested election out of whom Said Munir Said emerged victorious. Muhammad Azad Gul having secured the second highest position challenged the aforesaid election through the instant election petition before the Election Commission of Pakistan, forwarded to this Tribunal for trial.

3. The main grievances of Muhammad Azad Gul, inter alia, were that the returned candidate Said Munir Said belonged to Kurram Agency and was not domiciled in Orakzai Agency, that one whole tribe called Sheikhano Tribe of Orakzai Agency had not participated in the election. That the respondent No. l had resorted to illegal and corrupt practices and instead of identity cards, plain ' chits' were issued to the voters.

4. In answer to the notice issued to all respondents concerned, the returned candidate alongwith some others appeared and filed his written statement raising, inter alia, certain preliminary objections. Mr. Salim Dil Khan learned counsel for the respondent alleged at the very outset that before the commencement of regular trial, the preliminary issues must be settled because, in his opinion, those went to the very root of the case. General issues arising out of the pleadings were framed out of which the preliminary issues, restricted to present discussion, are as follows:‑‑

(1) Whether the pre‑condition of deposit of prescribed fee for an election petition has not been fulfilled is so, to what effect? OPP

(2) Whether the petition is bad for misjoinder and non joinder of the parties? OPR

(3) Whether the list of witnesses and the gist of their evidence is not annexed alongwith the petition; if so, to what effect? OPP

(4) Whether the election petition is duly verified as provided under the law, if so, to what effect? OPP

5. Prior to the filing of a writ petition before Election Commission of Pakistan, a sum of Rs.1,000 is to be deposited by the petitioner under section 52 of the Representation of the People Act, 1976. The non‑deposit of such fee, under section 52 (2) of the Act empowers the Commissioner, under section 56 thereof, to dismiss the petition forthwith. Such power is exercisable by the Commissioner and not by the Tribunal. It is even otherwise immaterial because the amount of Rs.1,000, as per original receipt attached stands deposited in the National Bank on 6th February, 1987 and hence the petition cannot fail under ' such objection.

6. All the contesting candidates have been arrayed as respondents in x addition to the election functionaries within the meanings of section 54(a) of the Act and hence the petition does not suffer from non joinder of necessary parties. Under the aforesaid section, the omission to join might be accountable but the unnecessary joinder should not affect the maintainability of the petition. This objection is also not fatal.

7. The most important preliminary objections require now to be attended to. These are concerned with the list of witnesses and the gist of their evidence alongwith the affidavits of such witnesses to be filed compulsorily alongwith the petition under section 55(1)(a) of the Act. Sub‑clause (b) of subsection (1) of section 55 of the Act also required full. particulars of corrupt or illegal practices, including as full statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act, alongwith the date and place of such commission of such practice or act.

8. Subsection (3) of section 55 of the Act further provides that every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, for the verification of pleadings. These were the important objections covering preliminary issues Nos.3 and 4.

9. The learned counsel for the respondent claimed that the petitioner had seriously violated the provisions of section 55 of the Act and hence the petition was liable tti be dismissed summarily under section 63 of the Act. It may be stated at the outset before entering into further discussion that the aforesaid provisions of section 55(1)(a)(b) and section 55(3) of the Act, are not complied with by the petitioner in the instant case.

10. The learned counsel placed reliance on a ruling of the Supreme Court from Indian jurisdiction in Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253). It was held with reference to the corresponding identical sections of our own Act, that the non‑complaince therewith shall entail forthwith dismissal of the election petition and further that "power to dismiss can be exercised at the threshold". Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175), Mian Shah Jehan v. Haji Lal Karim (1993 CLC 929), Tariq Mahmood Bajwa v. Muhammad Afzal Sahi (1994 CI,C 1366) and Peter John Sahotra v. Returning Officer and others (1995 CLC 394) were further relied upon by Mr. Salim Dil Khan. In view of the undeniable principle of law, within the contemplation of section 55 of the Act, the compliance is not only mandatory and a prerequisite for filing an election petition but the failure thereof entails upon the dismissal at the threshold, as worded by the Supreme Court of India. The petitioner has neither given the details of corrupt practices in his petition by giving in particular the names of the persons indulging into such practice alongwith the B date and time of the act or occurrence. The petitioner has failed to file the names of the witnesses alongwith the gist of evidence to be given by them before the Tribunal. He has also failed to file affidavits of such witnesses, if any. In view of the consistent view taken by the Courts and above all, in view of the mandatory and punitive provisions of section 63 of the Act, the instant petition is liable to be dismissed summarily.

11. Coming next to the question of verification, it is admittedly under section 55(3) of the Act, as said earlier, that the petition in hand is not verified on oath/solemn affirmation within the contemplation of Order VI, Rule 15, of the C.P.C., and hence is liable to be taken notice of under section 63 of the Act.

12. Mian Muhibullah Kakakhel learned counsel for the petitioner came to the rescue of the petitioner saying that the simple verification done by the petitioner at the end of the petition is sufficient under Order VI, Rule 15 of the C.P.C. This, I am afraid, is not tenable because any oath or solemn affirmation is to be made before an authority, so empowered under the law, in the shape of verification in so many words to be deposed to before such authority. It is after such practical deposition or utterance that the authority happens to attest the deposition in accordance with law. Only this procedure makes a statement verified on oath or solemn affirmation. Otherwise, it remains a simple narration by the petitioner without being verified on oath or solemn affirmation.

13. Another aspect of verification on oath or solemn affirmation is that the oath/solemn affirmation is practically administered to the ‑deponent by the authority so empowered to administer. oath or affirmation. Until and unless the oath is practically administered to the deponent, the statement/deposition cannot be attested or verified. It is, therefore, unimaginable that a statement without being made on oath solemn affirmation before an authority so empowered, becomes a verification within the meanings of Order VI, Rule 15, C.P.C.

14. To further elaborate the matter, I would refer to the actual words of section 55(3) of Representation of the People Act, 1976, reproduced as follows for facilitate of ready reference:‑‑

Section 55(3):

"Every election petition and every Schedule or Anaex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."

The words of the aforesaid section would indicate that a petition is required to be signed by the petitioner and, in addition to such signatures, is required to be verified in the manner laid down in the Code of Civil Procedure. The conjunctive and used in‑between "signed by the petitioner" and "verified in the manner."isolates the subsequent act of verification from the previous act of signing by the petitioner. Meaning thereby, that the two acts of signing by the petitioner and verification in the manner laid down are independent acts and are to be complied with independently of each other. We are well‑acquainted with the pleadings which are always verified on oath either by the Oath Commissioner or by the Registrar/Additional Regisrar/Deputy Registrars of the Court. Such verification on oath is not a new phenomenon to be altogether differently appreciated for the purposes of this petition alone.

15. Mian Muhibullah Kakakhel learned counsel for the petitioner further went on to argue that if such verification is required to be done under the provisions of Order VI, Rule 15 of the C.P.C., then the law as such also demands that the omission to do such verification should not entail upon the rejection of petition and the same verification should be got done inside the Court at any stage. By going through the provisions of Order VI, Rule 15 of the C.P.C., one realises that in that law the omission is not fatal and verification on , oath can be got done at any subsequent stage but, so far as the mandatory provisions of section 63 of the Special Law in hand are concerned, the omission is visited by a penal consequence to the effect that the Tribunal is, bound to dismiss such petition. No penal consequences of non‑verification on oath are mentioned in Order VI, Rule 15 of the C.P.C., but in the Representation of the People Act, 1976, special section is provided (section 63) therefore providing no room for the use of discretion by the Tribunal. In the circumstances, the non‑verification of petition on oath, in the instant case is fatal and the petition requires to be dismissed summarily.

16. A perusal of the verification of petition in hand would suggest that, the condition of oath/solemn affirmation and the attestation thereof being apart, it is not even otherwise in accordance with Order Vl, Rule 15 of the C.P.C. The petitioner has failed to give reference to the numbered paragraphs of the pleadings what he either happened to verify of his own knowledge and what he happened to verify upon information received and believed to be true. He also failed to give the date on which and the place at which it was signed.

17. Abdul Latif Niazi v. Government of West Pakistan PLD 1963 SC 62‑B is relied upon by the learned counsel claiming that the omission to verify on oath/solemn affirmation in the instant case was curable. The aforesaid ruling is not on all fours with the facts of the present case because the authority does not pertain to election laws and moreover, is distinguishable to the effect that in view of section 63 of the Representation of the People Act, 1976. No discretion is left with the Tribunal to cure the omission. S.M. Ayub v. Syed Yousaf Shah etc., PLD 1967 SC 486 also pertains to a law that existed prior to 1976 and also dealt with the power of the Tribunal to ask for certain amendment. Such power exists in the present law as well and is altogether different from Order VI, Rule 15 of the C.P.C.

18. Zulfikar Ali Bhutto v. The State PLD 1979 SC 53(c) is also not applicable to the present case because in that case the point is controversy was with regard to the deposition of some witness in Court and had no identity with verification of pleadings on oath. The concession or the advantage provided by section 13 of the Oaths Act, 1873 is also not applicable to the controversy in the instant case. The provisions of section 13 of the Oaths Act can be read together with the provisions of Order VI, Rule 15 of the C.P.C., but not with the provisions of section 55 of the Representation of the People Act, against in the presence of section 63 of the Act that follows, with no discretion to be left with the Tribunal and with specific punishment provided for the omission.

19. Learned counsel further relied upon Shaft Nawaz and another v. The State PLD 1986 FSC 242 but this case pertained to criminal law and ,the statement of the accused recorded under section 342, Cr.P.C., any defect wherein was held curable if it otherwise did not affect the merits and was not prejudicial to the defence of the accused. Such is not the situation before this Tribunal. The authority aforesaid was inadequately chosen. Last was the reliance so vehemently placed on Haji Amanullah Khan v. Sahibzada Tariqullah 1995 CLC 158, an authority given by our own Election Tribunal concerning election held in the year 1993. The Hon'ble Tribunal with reference to section 55(3) of the Representation of the People Act, 1976 had ruled that non‑verification of annexures attached to election petition would not be fatal to election petition if it does not make any additional allegation of substantive character or furnish better particulars of allegations made in the petition.

20. There is no cavil with the proposition that for non‑verification of annexures to the petition, an election 'petition cannot be dismissed summarily provided such annexures do not go to the root of the allegations levelled by the E petitioner against the respondent concerning a question of fact. This was held in so many other cases already decided but before me today is not the question of verification of annexures but that of the verification of election petition which, in view of the law on the subject and the authorities discussed, is mandatory and unavoidable.

21. Consequent upon what has been discussed above, it is undisputedly clear that the petitioner has failed to give.full particulars of corrupt practices including as full statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice and has failed to give the date and place of the commission of such practice. The petitioner has further failed to give the names of the witnesses to be produced at the trial alongwith the gist of their evidence with affidavits of such witnesses, as provided by Election F Commission Notification No. F1(7)85‑CORD dated 16‑3‑1985 and has utterly failed to verify the election petition on oath duly attested by the authority concerned within the meanings of Order VI, Rule 15 of the C.P.C., and hence the petition, without further proceedings, is hereby summarily dismissed under section 63 of the Representation of the People Act, 1976. No order as to costs.

A.A./2116/P Petition dismissed.