Malik Touqeer Abbas Khokhar Versus Malik Saif-ul-Malook Khokhar
Sultan Tanvir Ahmad, J .--- Through this election petition, the election-petitioner has made the following prayer:-
"In this matter having regards to the evidence available, it is earnestly prayed that the election of the returned candidate be declared void and consequently it may be declared that the petitioner is elected from the constituency No. NA-126 (Lahore-X), Punjab, as returned candidate to meet the ends of justice..."
2. Mr. Waqas Ahmad Mir, learned counsel for respondent No. 1/ returned candidate has raised different objections including the objection regarding affidavits of witnesses and affidavit of service. It is stated that all the affidavits of witnesses, besides being identical, do not contain proper verification or certificate of the oath commissioner, as required by the relevant provision of law. It is further objected that the affidavit of service is not in accordance with section 144(2)(c) of the Elections Act, 2017 (the 'Act').
3. Mr. Babar Awan, learned counsel for the petitioner has submitted that since the notices have already been issued vide order dated 21.05.2024, therefore, the election petition cannot be rejected. He has relied upon sections 145(1) and 145(2) of the Act and contended that an order of summary rejection of election petition can only be passed prior to issuance of notice.
4. The affidavits of witnesses are available at pages number 101 to 128 of the election petition, which contain simple stamp of attestation by one Muhammad Arif Ch., Advocate High Court / Oath Commissioner. All the affidavits and particularly their verification part are identical. A scanned image of one of the affidavit available at page number 101 of the election petition is as under:-
Section 144(2)(a) of the Act requires appending complete list of witnesses and their statements on affidavits, along-with election petition. Section 139 of the Code of Civil Procedure-1908 requires that if any affidavit has to be tendered, the same is to be administered by any Court, Magistrate or any Officer who is appointed by the High Court in this behalf. High Court Rules and Orders Chapter No. 12, Volume No. IV, Rule No. 12 requires such Court, Magistrate or officer to certify at the foot of the affidavit regarding the fact of making such affidavit before him and to enter the date as well as subscribe his signature on such certificate. In paragraph number 7 of the case titled "Lt.-Col (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585) the Honourable Supreme Court has made detailed discussion regarding the above noted High Court Rules and Orders. The principles enunciated in the said case are then reiterated by the Honourable Supreme Court of Pakistan in one of the recent judgment dated 20.11.2024 passed in case titled "Ubaidullah v. Haji Atta Muhammad Bangulzai and others" (2022 SCMR 422)) and ruled as follows:-
"This Court in the case of Lt. Col. (Rtd.) Ghazanfar Abbas Shah has categorically observed that if the affidavits filed by a party are flawed in any way and are not verified on oath, then it will be considered that the same have not been attested on oath and accordingly, the election petition is liable to be, inter alia, dismissed on this basis alone. Needless to state that there is a plethora of judgments on this issue which state that when anything is prescribed to be done in a particular manner, it needs to be done in that manner, otherwise, it will be considered to be non-est in the eyes of law." (Emphasis supplied)
5. An examination of the affidavits of witnesses reflects that there is no certificate available by oath commissioner to the effect that any of the witnesses has appeared before him and the oath is duly administered. There is no certificate of the oath commissioner regarding the fact if the oath commissioner personally knew the deponent. The attached affidavits of witnesses are deficient in many respects.
6. Mr. Waqas Ahmad Mir has pointed out that all the affidavits of witnesses, besides number of polling stations and votes are identical to each other and in this regard he has relied upon case titled "Mir Mujib-Ur Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk and others" (PLD 2020 SC 718), whereby, it has been decided that ex facie when it is shown that the affidavits relied were all identical and duplicate of allegations, election petition is rendered entirely deficient by virtue of section 144 of the Act; Paragraph No. 23 of the said judgment reads as under:-
"23. The record shows that the allegations and insinuations made by the Appellant in his election-petition were deficient in many respects. Section 144 of the Act provides for the contents of an election-petition, the documents that must be attached with it, and the relief that can be claimed by the Appellant. In this respect, it is clear that the Appellant is required to provide the full particulars of any corrupt or illegal practices alleged by him to have taken place, the names and other details of the individuals he believes to be responsible for such practices, and the date and place of the commission of such practices or acts together with documentary evidence in support of such allegations. The Appellant has abysmally failed to provide these details. While the record shows that the Appellant did annex sixteen affidavits-in-evidence in support of his application, perusal of these affidavits ex facie shows that they are all identical and a duplicate of allegations made and details provided by the Appellant in every one of them. As a result, the Appellant's election-petition is rendered entirely deficient by virtue of section 144 of the Act."
7. Another objection has also been taken by the learned counsel for respondent No. 1 that the verification does not contain the date, time and place. A reading of pages number 11 and 12 of the election petition, where the verification by Malik Tauqeer / election-petitioner is contained, reflects that the date when the verification was made is left blank. The place or the time are also not given therein.
8. There is yet another anomaly that has been pointed out by the learned counsel for the returned candidate, which is regarding affidavit of service. Section 144(2)(e) of the Act provides that affidavit of service has to be to the effect that a copy of the petition along with copies of all annexures, including the list of witnesses, atlidavits and documentary evidence, has been sent to all the respondents by registered post or courier service. The affidavit of service relied to maintain this election petition is at page number 145 of this petition:-
The above affidavit of service is not disclosing if the affidavits of witnesses have been enclosed or sent to the respondents. Mr. Waqas Ahmed Mir claims that only few documents were sent along-with the election petition and even the election petition sent to the returned candidate is dissimilar to the one which has been then instituted before this Tribunal. A rubber stamp affixed by the oath commissioner on this affidavit reveals the significant discrepancies. It does not disclose if the election-petitioner was identified to him by any person or if the election-petitioner was personally known to him.
9. Mr. Babar Awan has stated that the scheme of the Act is such that instead of going into the technicalities or straightaway rejection of the election petition the issues are required to be framed permitting the parties to lead their evidence. This issue has already been resolved by the Honourable Supreme Court in case titled "Ammar Bashir v. Irfan Shafi Khokhar and others" (C.A. 202/2025), whereby, following has been observed:-
"... The Elections Act, 2017, functions as a fully self-contained code, meaning that any assertions or claims about elections or electoral disputes must be within its provisions. This framework implies that the right to contest an election is not inherent but is instead a construct of statute and is, consequently, subject to specific statutory limitations. An election petition, as defined under the Act, constitutes a statutory procedure where standard principles of equity and common law do not apply: rather, the process is governed exclusively by the rules and regulations set forth within the statute itself. Moreover, the jurisdiction exercised in matters of election disputes is both unique and restricted, necessitating strict adherence to the statutory guidelines that establish it. As such, when examining the trial of election disputes, the Tribunal operates within a defined framework that restricts its flexibility, as it must comply with the explicit dictates of the Elections Act, 2017..."
10. Last argument of Mr. Babar Awan (learned-ASC) is that after issuance the notices, rejection of the election petition is not permitted under section 145 of the Act. On account of failure to fulfill the above discussed law, this Tribunal in case titled "Col.(R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others" (PLD 2023 Lahore 458) has already held that above provision contemplates that if any provision contained in sections 142 to 144 of the Act is not complied with, this Tribunal cannot wait till the culmination of the proceedings through regular trial and it is mandate of law to reject the plaint. Similar view was adopted by this Tribunal in Election Petition No. 22232 of 2024. The judgment in the said case has already been upheld by the Honourable Supreme Court of Pakistan in "Ammar Bashir" case (supra).
11. For what has been discussed above, the present petition is rejected under section 145(1) of the Act. No order as to cost.
MQ/T-12/L Petition dismissed.