' Election petitioner and the respondents contested by-election, held on 15-1-2003, for the seat of National Assembly from constituency NA 142 Kasur-5, wherein Sardar Talib Hussain Nakai, respondent No.1, was declared as a returned candidate and the Election Commission of Pakistan issued the notification about his success as member of the National Assembly. Dis-satisfied with the said result and ensuing notification, the petitioner filed the instant election petition, under section 52 of the Representation of People Act, 1976 (hereinafter referred to as an Act) before the learned Chief Election Commissioner and the same was referred to this Tribunal for trial and disposal in accordance with law.
2. Petitioner has challenged respondent No. l's election as member of the National Assembly on different grounds, as stated in the election petition, however, specifically pleading that as a result of corrupt and illegal practices, committed by respondent 'No.1, his agents and supporters, the election was badly rigged and deserved to be declaredvoid. Respondents were summoned and respondent No.1 only contested the election petition, while respondents Nos.2 to 6 remained absent, despite publication in the two daily newspapers, thus, they were proceeded ex parte, vide orders dated 25-4-2003 and 5-6-2003. Returned candidate resisted the election petition by filing the written statement thereby controverting the allegations levelled in the petition.
' Out of the divergent pleadings of the parties, this Tribunal, on 28-7-2003, framed nine issues. On 11-10-2003, the election petitioner filed an application (C.M. No.3 of 2003), under order VI rule 17, C.P.C., seeking amendment of the election petition only to the extent of attestation of the verification of the election petition by an oath commissioner, which application has been contested by respondent No.1, subsequently, on an application (C.M. No.2 of 2003), filed by respondent No.1, this Tribunal treated Issue No.7 as preliminary issue, vide order dated 31-10-2003, which for the sake of convenience is reproduced below:-- ' ISSUE No.7 "Whether the petitioner did not comply with the requirements of sections 54 and 55 of the Representation of People Act, 1976? If so, its effect ? OPR-1"
' The instant judgment shall decide the aforenoted Issue No.7 and the application for the amendment of the election petition.
3. Learned counsel for respondent No.1, in support of Issue No.7, while relying upon Engineer Iqbal Zafar Jhagra and others v. Khalil-urRehman and 4 others (2000 SCM R 250), Sheikh Mushtaq Ali v.
Khalid Anwar and others (1998 CLC 1138) and Asif Nawaz Fatiana v. Walayat Shah (2003 CLC 1896), has submitted that the penal provisions of special statute are to be strictly construed and that as the verification of the election petition and the annexes have not been attested by the oath commissioner or some other persons, who is duly authorized to administer oath, therefore, the election petition deserves dismissal. Conversely, the learned counsel for the respondent No.1, while relying upon Raja Abid Hussain and others v. Sardar Muhammad Rana and 12 others (2002 YLR 3148) and S.M. Ayub v. Syed Yousaf Shah and others (PLD 1967 SC 486) and certain unreported judgments, passed by the learned Election Tribunal, has submitted that the verification, of the election petition and the documents annexed with the petition, is in accordance with law and there is no need for attestation and verification of these documents by the oath commissioner. While arguing his application for the amendment of the election petition, he has submitted that the objection regarding attestation of the election petition is hyper technical, however, in order to overcome the said objection the petitioner may be permitted to amend the election petition to that extent.
4. I have heard the learned counsel for the parties at length and perused the available record. My findings on Issue No.7 are as under:-- ISSUE No.7 ' Main thrust of respondent No. 1 's argument is that as the election petitioner failed to verify and attest the election petition by not complying with the requirements of the provisions of section 55
(3) of the Act, which provisions of law are mandatory, therefore, his election petition is not maintainable and is liable to be dismissed under section 63 of the Act.
6. Turning to the verification made by the election petitioner in his election petition, I find that the petitioner has verified his election petition, in the following manner, which for the sake of convenience, is reproduced below:-- ' Verification: "Verified on oath at Lahore on this day of March 2003 thatthe contents of instant Election Petition as contained in Paras. 1 to 5 including the contents of grounds taken therein are true and correct to the best of my knowledge and belief and nothing has been concealed therefrom."
(Sd)
' Petitioner ' All the documents annexed with the election petition have been verified in the following wording:- - "Verified that the contents of the documents are true to the best of my knowledge and belief".
Section 55(3) of the Act, provides about the signing and verification of the election petition etc., which provision of law for facility of reference, is reproduced below:-- "Every election petition and every schedule or annex 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".
' Section 63 of the Act, inter alia, provides that the Tribunal shall dismiss the election petition, if the provisions of section 54 or 55 have not been complied with.
It flows from the joint reading of the aforenoted two provisions of law that the verification; of the election petition and schedule or ' annexes to the petition, shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings and in case the provisions of section 55 have not been complied with, the Tribunal shall dismiss the election petition.
7. Now one has to revert to the provisions of Code of Civil Procedure regarding verification of pleadings, which have been laid down under order VI rule 15, C.P.C., which read as follows:- "Verification of pleadings.---(1) Save as otherwise provided by any law for the time being la force, every pleading 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 believed 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 signed."
(4) Perusal of the provisions of Order VI rule 15, C.P.C. Manifests that every pleading shall be verified on oath by the party and 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 believed to be true and that the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
8. If the verification contained in the election petition is- placed in juxta-position with the aforesaid provisions of law, it leads to the irresistible conclusion that the verification although has been made under oath, signed by the petitioner stating that the contents of the election petition as contained in paras. Nos.1 to 5 are true and correct to the best of my knowleAge and belief, which also shows the place of its signing, yet it is neither dated nor it shows that which paragraphs of the election petition have been verified of his own knowledge and which paragraphs have been verified upon information received and believed by him to be true. To further elaborate in the instant case although some of the ingredients for the verification of the election petition in the manner laid down in the Code of Civil Procedure are present, yet the necessary component of verification of numbered paragraphs with reference to his knowledge and upon information received and believed to be true and to the date of verification are comprehensively lacking.
9. Now coming to the other more important aspect of the case that the election petition was not verified and attested by the Oath Commissioner. It has been held in Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others (2002 YLR 3148) relied upon by the learned counsel of the petitioner, that neither the provisions of C.P.C. Nor "High Court (Lahore) Rules and Orders" provides that the verification to be made in accordance with Order VI rule 15, C.P.C., be attested by the Oath Commissioner. However, the Apex Court of the country in a case reported as Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCM R 250), while dilating upon the question about the verification of the pleadings, has held 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. It would be appropriate to reproduce a portion of the judgment, which reads 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 6, rule 15, C.P.C. Which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gilani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with."
(Underlining is mine)
10. Another learned Election Tribunal of this Court, while deciding different election petitions, in a case Asif Nawaz Fatiana v. Walayat Shah (2003 CLC 1896) after taking into consideration the numerous case-law on the subject from both sides and dilating upon various controversies, including the proposition in hand, has held as under:--
(a) The provisions of the Representation of People Act, 1976 insofar as these relate to the election disputes providing particular forum (Election Tribunal) and procedure are of special native and will have primacy and overriding effect in case of any inconsistency and conflict with any other law of general nature.
(b) Provisions of section 55(3) of the Act read with section 63 thereof are of mandatory nature and non-verification or defective verification as contemplated by its would entail the consequence of dismissal of election petition.
(c) It is equally an established principle of law that where the law prescribes the method of doing a thing in a particular manner the same has to be done in that manner failure whereof may ensue the legal consequence.
(d) 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 (2000 SCM R 250) (294).
(e) The scrutiny of the election petition by the Election Commission and its reference to the Tribunal does not denude the Tribunal of the power to dismiss the same for non-observance of section 54 and 55 of the Act, otherwise the provisions of section 63 of the Act would be rendered redundant and nugatory.
(1) Although the election Tribunal has powers of a civil Court under the Code of Civil Procedure yet for the trial of election petitions the election Tribunal is to follow the procedure prescribe by the Election Commission. (1996 SCM R 426).
11. Now adverting to the judgments referred to by the learned counsel for the petitioner. As regards the case of Raja Abid Hussain, ibid, the same has been taken note of in the preceding paras. I have had also the advantage of perusing the judgment rendered by the Honourable Supreme Court in S.M. Ayub's case (ibid) and find that the question involved in the said case was only as to whether the election petition was liable to be dismissed because the annexes to the election petition were not verified according to law. It is pertinent to note here that in the case of S.M. Ayub, main election petition was properly signed and verified and there was no dispute about the signatures or/and verification of the election petition. It was observed by the Honourable Supreme Court of . Pakistan in the said judgment at page 493 in line 20 that "the main petition, it is conceded, is properly signed and verified". In the said case of S.M. Ayub, the Honourable Supreme Court in the final analysis has held as under:-- "The contents of those cuttings having been characterized in the main petition itself, as malicious untruths, it would be too much to expect the petitioner to verify them in the manner contended for.
By "Schedule or annex" mentioned in subsection (3) of section 59 of the Act, is apparently meant such a schedule andannexure as either makes additional allegations of a substantive character against the opposite-party, or at least furnisher better particular of the allegations made in the petitions, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of "schedule or annex", mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold hat the tribunal was right in fmdings that the failure of the petitions to append his signature or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition."
' Additionally, I find that the judgment of S.M. Ayub was duly considered in the judgment of Engineer Iqbal Zafar Jhagra and other v. Khalil Rehman and 4 others (2000 SCM R 250).
' In view whereof the reliance of the learned counsel on S.M. Ayub's case is misconceived and the principles laid down therein are not applicable to the facts and circumstances of the present case.
' As regards the other cases relied upon by the learned counsel although they are distinguishable on the facts of the case, yet in view of the law laid down by the Apex Court of the country in Zafar Iqbal Jhagra's case (ibid), which judgment was rendered by the Honourable Supreme Court by the Bench comprising of seven Judge, said judgment are of no help to the petitioner.
12. Now turning to the unreported judgment, rendered in the case of Sh. Alla-ud-Din v. Shahid Qayyum (Election Petition No.105 of 2002), relied upon by the learned counsel for the election petitioner. In the said case, this Tribunal on the basis of somewhat similar reasons and findings, as noted above, came to the conclusion that as the verification has not been made before and attested by the Oath Commissioner and the same is violative of the view and the principle laid down in Iqbal Zafar Jhagara's case, ibid, therefore, the verification on the election petition is not in accordance with law.
13. Having gone through the provisions of sections 55(3) and 63 of the Act, I am of the considered view that section 55(3) is mandatory provisions of law as the violation and non-compliance of the said provision of law entails the penal consequences of the dismissal of theelection petition, as envisaged under section 63 of the Act. Additionally, as noted above, another learned Tribunal in Election Petition No.13 of 2002, has held that, the provisions of section 55(3) read with section 63 of the Act are mandatory in nature.
14. In the above perspective, I am of the considered view that the verification made by the election petitioner on his election petition has not been attested or verified by any Oath Commissioner or before any person duly authorized to administer oath, which verification has been held by the Hon'ble Supreme Court in Engineer Iqbal Zafar Jhagra's case (supra) violative of section 36 of Senate (Election Act, 1975) which is para materia section 55 of the Representation of People Act, 1976. Hence, to my mind, the verification made by the petitioner on the election petition is not in accordance with law.
15. In view of the above findings, Issue No.7 is decided in favour of IG respondent No.1.
16. In the above backdrop, now the next question is as to whether under the present set of circumstances, sought for amendment in the election petition and annexes can be allowed to the petitioner? Needless to mention that this Tribunal, in view of section 62(3) read with section 64 of the Act, has ample powers to allow amendments, if in its opinion it is necessary for ensuring a fair and effective trial and for determination of the real question or issues. Additionally, it has got all the powers of a Civil Court trying a suit under the Code of Civil Procedure, thus, this Tribunal, at any stage of the proceedings, can allow the parties to amend their pleadings, if it is necessary for determination of the real questions in controversy between the parties. This Court in the case of Shaikh Alla-ud-Din, relied upon by the learned counsel for the petitioner, allowed the amendment on the basis of findings incorporated in para. 13 of the judgment, which para for facility of reference is reproduced below:-- "13. Another equally important factor which has really persuaded me to allow the amendment to the election petition and annexures as noted above, is the acquiescence and the stoppel on the part of the respondent No.1. As noted above, the respondent No.1 did not raise the said crucial plea, about non-verification of the pleadings in this written statement, inasmuch as the written statement filed by him has neither been signed nor at all been verified by him. I am of the considered view that the legality and validity of the written statement is questionable and it is yet to be decided as to whether the said written statement can be considered as proper and legal written statement as provided under the law. By not agitating the said plea of non verification, the respondent had in fact acquiesced over the matter and the principle of estopple would operate against him. It is settled law that a plea, which has not been raised in the written statement, cannot be allowed to be agitated and proved in subsequent proceedings and a defendant cannot be allowed to improve and prove his case other than made out in the written statement".
I have examined the written statement, filed by respondent No.1, to the election petition and find that the respondent did not take any objection about non-verification of the Election Petition in his written statement. When the learned counsel of respondent No.1 was confronted with this aspect, he conceded that no such objection, regarding non-verification of the election petition with reference to sections 55(3) and 63 of Representation of People Act, was taken in the written statement. By not agitating the said plea in the written statement, the respondent had, in fact, acquiesced over the matter and of course the principal of estopel would operate against him. The principle laid down in the case of Sheikh Alla-ud-Din, is completely attracted to the facts and circumstances of the present case. In the said case, in the similar circumstances the election petitioner was allowed to amend his election petition, so as to get verified his election petition by oath commissioner.
17. Net result of the above discussion is that although the election petitioner did not verify the election petition and the annexes, as provided under the law and the law declared by the apex Court of the country in Engineer Iqbal Zafar Jhagra's case (supra), yet in the peculiar circumstances of the particular case in hand, I am inclined to allow sought for amendment to the petitioner.
18. In the above perspective, the application filed by the election petitioner (Civil Miscellaneous No.3 of 2003) is allowed and he is permitted to amend his election petition and annexures thereto so far as it relates to the verification and attestation from the oath commissioner.
' C.M. Stands disposed of in the above terms.
MAIN CASE ' Main petition is to be relisted on 9-2-2004 for recording petitioner's evidence.