' The petitioner contested the elections as a candidate of Provincial seat from PP-10, Rawalpindi.
Respondents Nos.3 to 8 were the contesting candidates. Respondent No,3 was declared a returned candidate by the Chief Election Commissioner and a notification in this behalf was issued.
2. The notification was initially challenged through Writ Petition No,3014 of 2002. Upon the constitution of Election Tribunal vide the Election Commissioner's Notification dated 24-10-2002, the writ petition was dismissed under Rule 70 of the Punjab Local Government Election Rules vide order, dated 25-10-2002. Subsequently, the petitioner filed the present election petition before the Chief Election Commissioner of Pakistan which has been transmitted to this Tribunal for its disposal.
3. Respondent No,3 submitted his reply to the election petition wherein a preliminary objection was taken that the petition was not maintainable in the eye of law. The contentions raised by the petitioner were also controverted upon merits.
4. Respondent No,3 moved an application bearing C.M. No,340 of 2004 wherein it was specifically stated that the election petition and its accompanying Annexures have not been verified/signed by the petitioner and hence was liable to be dismissed as laid down in section 63(a) of the Representation of People Act, 1976. It was further submitted that the affidavits of the witnesses were not filed along with the election petition which rendered the petition fatally defective.
' The objections were further raised to the election petition that no particulars of any corrupt or illegal practice of any other illegal act were given in the petition and as the election petition was deficient in material detail, it was not competent.
5. The petitioner submitted the reply to this application. It was contended that no such objection was raised at any earlier stage and that the challenge to the maintainability at this belated stage would amount to a waiver of the right of respondent No,3, if any. It is further submitted that the object of moving this application was to protect the proceedings and was for the ulterior motive of deriving undue benefit on account of delay.
6. As the question of maintainability of the election petition goes to the root of the matter, this objection is taken up first for disposal.
7. The manner of calling in question of an election has been provided in Chapter 7 sections 52 to 77 of the Representation of People Act, 1976. The necessary election petition is to be presented to the Chief Election Commissioner within 45 days of the publication in the official Gazette of the name of the returned candidate. The election petition is then referred to the Election Tribunal constituted for the purpose. Section 55 (ibid) deals with the contents of the petition and reads as under : "55. Contents of petition.--- (1) Every election petition shall contain---
(a) A precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely:--
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) 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."
8. As per section 55(1)(b), full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice etc. Has to be stated in the petition. Under section 55(3) (ibid), the election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in Code of Civil Procedure, 1908 for this purpose.
9. In accordance with section 65 (ibid), the Tribunal shall dismiss the election petition if the provisions of sections 54 or 55 (supra) have not been complied with. Under section 64 (ibid), the Election Tribunal enjoys all the powers of a Civil Court trying a suit under the Code of Civil Procedure.
10. Mr. Mujeeb-ur-Rehman Kiani, Advocate for respondent No,3 submits that the election petition is legally defective as it has not been verified in accordance with law. He has further submitted that the separate affidavit accompanying the election petition does not fulfil the requirement of effective and legal verification as it does not specify the number of the paragraphs which are deposed to be correct according to the knowledge of the petitioner and which paras are correct as per information received. He further states that even the affidavit refers to the contents of the "accompanying writ petition", while there is no mention of the contents of the instant election petition. He further referred to the Annexures and stated that the verification upon the annexed documents also suffers from the same legal defect that they are not validly signed or verified by the petitioner.
11. The learned counsel for respondent No,3 has placed reliance upon the cases of Mst. Asif Nawaz Fatiana v. Walayat Shah 2003 CLC 1896, Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83, Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCM R 250 and Rafaqat Hussain Awan v. Deewan Ali Chughtai and 18 others 2004 CLC 432 to contend that the provisions of the Representation of People Act, 1976 as contained in the afore-stated provisions of law were mandatory in nature and non-compliance with the said provisions rendered an election petition as incompetent and not maintainable.
12. On the other hand, Mr. Muhammad Ikram Chaudhry, Advocate for the petitioner in the election petition has maintained that the election petition was fully competent. He has made reference to section 56 of the Act, 1976 to contend that the Commissioner did not find any defect as contended by respondent No,3 and it was for this reason that instead of dismissing the election petition summarily, he referred the same to this Election Tribunal. The precise argument by the learned counsel for the petitioner is that once the reference is made to the Tribunal, it will be deemed that the election petition filed before the Commissioner fulfilled all the requirements of law. It is next contended that respondent No,3 had not raised any such specific objection in his reply to the election petition and that taking these objections now at such a belated stage is not permissible at law. By this long in action, it shall be deemed that respondent No,3 had waived his right, if any to raise such an objection. It is further pleaded that respondent No,3 shall be estopped to raise these objections. It is lastly. Contended that the object of relying upon these technical objections is to inordinately delay the proceedings before the Tribunal.
13. Arguments have been heard and record perused.
14. There is no cavil with the proposition that the Representation of People Act, 1976 is a Special Act which provides for the establishment of Tribunals for resolving election disputes. The Act is indeed a complete and self-contained Code. The provisions of section 55 are not merely directory but are mandatory in nature. Section 55(3) requires that every election petition and every schedule or annex to that petition shall be signed and verified in the manner laid down in the Code of Civil A Procedure. The effect of non-compliance of this mandatory provision of law or of defective verification is provided in section 63 (ibid) where the Tribunal is obliged to dismiss an election petition if the provisions of sections 54 or 55 have not been complied with. This penal consequence provided under a special law makes the requirement of valid verification of the petition as a sine qua non of the election petition itself and a defect or omission in this behalf shall render the election petition as incompetent. It is trite law that where the law prescribes the method of doing the thing in a particular manner, the same has to be done in that manner or not at all. It is noticed that the verification of an election petition under the Representation of People Act, 1976 is not merely a procedural requirement. This verification has to be made by an Oath Commissioner or a person duly authorized to administer the oath. The verification under section 55(3) (ibid) has also to be made in accordance with the requirement of C.P.C. Under Order 6, rule 15, C.P.C., it is obligatory upon the petitioner to verify the election petition and specify the numbered paragraphs of the petitioner which he states to be true according to his own knowledge and what he verified upon information received and believed to be true. None of these requirements have been fulfilled by the petitioner as regards the election petition. The view expressed by the Honourable Supreme Court in Engr. Iqbal Zafar Jhagra's case (supra) is illuminating. While dealing with section 36 of the Senate (Election) Act, 1975, which is in pari meteria with the provisions of section 55 of the Act, 1976), it was held that the failure to verify the petition in accordance with the said provisions was fatal to the election petition. The Honourable Judges of the Supreme Court were pleased to dismiss the petition for the aforesaid legal infirmity. This view has been consistently followed in the cases of Mst. Asif Nawaz Fatiana (supra), Alam Zaib Khan (supra) and Rafaqat Hussain Awan (supra).
15. There is no force in the submission of the learned counsel for the petitioner that non-verification of the election petition in accordance with the Election Laws was a mere formal irregularity. As discussed hereinbefore, it is a mandatory requirement of law, the failure to comply with which would entail the dismissal of the election petition.
16. The further submission made by the learned counsel for the petitioner that after the election petition has been referred to this Tribunal by the Commissioner, it would amount to a valid presentation/ filing of the election petition is also devoid of force. Section 56 (ibid) deals with the powers of the Commissioner if any provisions of sections 52, 53 or 54 was not found to have been complied with. On the contrary, after the reference is made by the Commissioner to the Tribunal, the Tribunal is fully authorized under section 63(a) to dismiss the election petition if the provisions of section 55 have not been complied with. The provision regarding the verification of the election petition is contained in section 55(3) and a non-compliance thereof can validly be noticed by the Election Tribunal upon reference.
17. I am also not impressed by the submissions that there is delay in taking this objection by respondent No,3 or that such delay would amount to waiver or estoppel. Once the consensus of legal opinion is found to be that the provisions of Act, 1976 are mandatory in nature, there is no difficulty in arriving at the conclusion that there cannot be any waiver or estoppel against a Statute.
18. The last contention that the objection has been taken only to protect the proceedings has no merits.
19. In this view of the matter, as admittedly the petition has not been verified in accordance with section 55(3) of the Act, 1976, the election petition is not competent and is hereby dismissed.
Election .