' TARIQ SHAMIM, J.---Through this petition, the petitioner has prayed for transfer of investigation of case F.I.R. No.782 of 2006 dated 1-7-2006, for offences under sections 302, 201, 365 and 392, P.P.0 and section 7 of Anti-Terrorism Act, 1997, registered at Police Station Lower Mall, Lahore to any competent and honest police officer of Crime Branch, Punjab.
2. The petitioner, whose husband Muhammad Asif is one of the accused in the double murder case of Nadeem Jafri, Excise Inspector and Khalid Iqbal, Head Constable registered vide F.I.R. No.782 of 2006 on 1-7-2006 at Police Station Lower Mall, Lahore has preferred the instant writ petition on the premise that the investigating agency conducted the investigation of the case with mala tide intentions under the influence of the high-ups of the Excise Department and has implicated the husband of the petitioner falsely in the case. Despite repeated requests neither the legitimate demand of the petitioner to record and investigate the version of her accused husband had been accepted nor was the case investigated on merits. Thus, prayer has been made for the transfer of investigation beyond the jurisdiction of the District and to an honest police officer of the Crime Branch Punjab.
3. The learned counsel for the petitioner argued that the investigating agency under the influence of the' high-ups of the Excise Department, dishonestly ignored the version of the petitioner as well as relevant material regarding his innocence and that the investigation report was against the law and norms of justice and based on mala fide because the same was not prepared on merit.
Further argued that since the investigating agency on the level of the District cannot conduct investigation of the case on merit, honestly and impartially as such, in order to secure the ends of justice the investigation of the case be entrusted beyond the jurisdiction of the District Lahore to an honest police officer of the Crimes Branch, Punjab as otherwise the petitioner would suffer irreparable loss and injury.
4. The learned Assistant Advocate-General representing the police officials and the State and the learned counsel representing Khalid. Jafri contended that the investigation was conducted strictly in accordance with law firstly by Muhammad Hussain, Sub-Inspector (Investigation) Police Station Lower Mall, Lahore the DIG (Investigation), Lahore constituted a Special Team on 27-7-2006 headed by S.P. Organized Crime, Lahore for the recovery of the Officials of the Excise Department which arrested Muhammad Asif accused, the husband of the petitioner who during the course of investigation disclosed that the abductees (later deceased) had been sold to Pathans of Waziristan for Rs.3,00,000. During test identification parade, the accused had been duly identified by the witnesses. On the request of 'the Home Department, a joint investigation team comprising of representatives of the police department, Investigation Branch and Special Branch was constituted which conducted a thorough investigation on merits and consequently, the investigation report had been submitted in the court on 20-1-2007 which had examined six witnesses in the case. Lastly contended that since after submission of challan the trial was in progress as such, change of investigation or re-investigation in the matter would be an exercise in futility.
5. We have heard the learned counsel for the parties and the learned Assistant Advocate-General and perused the record with their able assistance.
6. Initially the F.I.R. Was lodged under section 365, P.P.C. At Police Station Lower Mall on the report of Muhammad Arif, Excise Constable for the abduction of Nadeen Jafri, Excise Inspector and Khalid Iqbal, Excise Head Constable against Muhammad Aamir, Muhammad Asif (the husband of the petitioner), Malik Hamid Mehmood and Waseem Aftab. The investigation was conducted by Muhammad Hussain, Sub-Inspector who recorded the statement of witnesses and associated the accused with the investigation. On 27-7-2006, the Deputy Inspector General of Police (Investigation), Lahore constituted a Special Team headed by Superintendent of Police (Organized Crime) Lahore for the recovery of the abductees. On 4-8-2006 Hamid Mehmood alias Bhola accused and on 15-10-2006 Muhammad Asif accused was arrested who during interrogation disclosed that the abductees had been sold for Rs.3,00,000 to some Pathans of Waziristan and consequently, vide Zimiii No.89 dated 27-11-2006 . Section 7 Anti- Terrorism Act was added to the offences. On the request of the Home Department, Punjab a joint investigation team comprising of the representatives of the police department, Investigation Branch and Special Branch, Punjab was constituted on 4-12-2006. -However, prior thereto, on the orders of the Hon'ble Supreme Court of Pakistan dated 29-11-2006 a team comprising of Babar Sarfraz Alpa, SP (Investigation) City Division, Masood Aziz S.P. (Organized Crimes) and others was constituted for the arrest of the accused and recovery of the abductees. Their efforts resulted in the arrest of Muhammad Aamir, thd main accused and brother of Muhammad Asif on 12-12-2006. Muhammad Aamir and Muhammad Asif accused during investigation conducted by the joint Investigation Team disclosed that the abductees had been murdered in their office and their dead bodies were thrown into the Nandipur Canal, Gujranwala. Subsequent investigation led to the recovery of ciead bodies which were recovered from the canal by the local police and buried as unidentified/unclaimed. Samples were obtained for DNA test from the dead bodies. Blood stains obtained from the office of the accused Aamir and Asif as well as from the vehicle used in the crime were found to be those of Khalid Iqbal, Head Constable, one of the deceased. The pistol and the empty recovered from the place of murder, i.e. The office of Aamir and Asif accused were sent to the arms expert, Forensic Science Laboratory for comparison which in its report dated 4-1-2007 opined that the crime empty had been fired from the said pistol. After finalization of investigation, in which the husband of the petitioner and others were found to be fully implicated in the murders, challan has been submitted and the prosecution evidence is being recorded by the learned trial Court.
7. From the above, it is evident that the investigation in the case has been conducted in a most transparent manner by senior police officials who have made painstaking efforts to uncover the true facts. Their efforts were appreciated by the Hon'ble Supreme Court in the order dated 10-1- 2007 passed in Human Rights Case No.5587 of 2006. We have minutely examined the record of the case which unequivocally discloses that the husband of the petitioner and others are culpable for the murder of the Excise Inspector and the Head Constable. The argument advanced by the learned counsel for the petitioner that the investigation has not been conducted on merits and that the version of the accused Muhammad Asif has not been considered during the investigation is devoid of any force. The argument is illusionary and remains unsubstantial from the record. The assertion as to the. Pendency of an application preferred by the petitioner for the transfer of investigation also does not appear to be correct. Even otherwise, mere pendency of an application at this stage, when the trial has commenced and partial prosecution evidence has been recorded by the learned trial court, is inconsequential. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31) has observed as under: ~ "At this stage, the learned Additional Advocate-General informs us that some Additional I-G. Police has passed some order on 15-7-2006 and had changed the investigation. We are surprised at this order passed by the-Additional I.-G- Police (Investigation.Branch), Punjab for more than one reasons.
Firstly, because the report under section 173, Cr.P.C. Had already reached the trial Court as noticed above where the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law. Secondly, because the matter related only to a document which had been examined in depth, by the learned Election Tribunal comprising an Hon'ble Judge of the High Court and which document had then been re- examined by this Court in an appeal filed by Mazhar respondent and what further investigation was required in the matter is beyond comprehension."
8. In the above noted circumstances while being fully mindful of the observations made by the Hon'ble Supreme Court in the order dated 23-2-2007 passed in Civil Petition No. 134 of 2007 we are convinced that no prejudice has been caused to the husband of the petitioner in the investigation resulting in submission of report under section 173, Cr.P.C. Further, no illegality,, procedural or otherwise, has been found by us in the investigation conducted by the police in the matter.
9. Resultantly., the petition being devoid of merit is dismissed.
2007 YLR 2165 [Quetta] Before Akhtar Zaman Malghani, J Dr. AZIZULLAH SATAKZAI-Petitioner versus RETURNING OFFICER/PROVINCIAL ELECTION COMMISSIONER BALOCHISTAN and 4 others-Respondents ??? Decided on 21st July, 2006.
Senate (Election) Act (LI of 1975)- -Ss.
36. & 44-Election .Petition-Nonverification of petition-Effect-Election petition filed by petitioner was not verified as required by law and affidavits appended with the petition had also not been duly sworn before authorized person- Subsection (3) of S. 36 of Senate (Election) Act, 1975 had provided that every election petition and every schedule or annexure to the election petition, would be signed by petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings which had been provided under O.VI, R.15, C.P.C. Requiring verification of pleading on oath- Such verification was not only to be signed by the deponent, but being on oath or solemn affirmation was required to be attested by Oath Commissioner or any other authority competent to administer oath- Contention of counsel for petitioner that attestation by Oath Commissioner or any authority authorized in that behalf was not mandatory was repelled- Compliance of provisions contained in subsection (3) of S.36 of Senate (Election) Act, 1975, was mandatory in nature as penal consequences had been provided under S.44 of the Senate (Election) Act, 1975 making it mandatory for the Tribunal to dismiss election petition if provisions of S.35 or 36 of Senate (Election) Act, 1975 had not been complied with-Petitioner had contended that petition was'^verified before Chief Election Commissioner, he would have returned same to petitioner instead"of sending it to the Tribunal for disposal-Validity- Verification was to be attested by Oath Commissioner or any other person authorized to administer oath-Contention was repelled being without foundation- Chief Election Commissioner could only return petition to the petitioner, if he would find that it* had not been presented within time or not accompanied by receipt of deposit as required under S.34 of Senate (Election) Act, 1975; and the . Question whether provisions of Ss. 35 & 36 of the Act had been complied with or not fell under the exclusive domain of Tribunal- Verification of petition and affidavit annexed having not been attested by Oath Commissioner or any other person authorized to administer oath, petition was liable to be dismissed and the same was dismissed accordingly.
Fpp. 2167, 2168, 2169] A, B, C, D & E Iqbal Zafar Jhagra's case 2000 SCMR 250; PLD 2005 SC 600; PLD 1973 SC 160; 1995 CLC 150; 2004 MLD 1331; 2004 MLD 1775; PLD 1980 Lah. 626 and 2000 SCMR 250 ref.
Kamran Murtaza for Petitioner.
Aminuddin Bazai, A.A.-G., Babar Awan, M. Riaz Ahmed, M. Mohsin Javed and Rashid Bhatti, Assistant Commissioner, Election Head Quarter for Respondents.
Date of hearing: 30th June, 2006.
' AKHTAR ZAMAN MALGHANI, J.-By this order, I intend to dispose of application filed under section 36(3) read with 44(a) of the Senate (Elections) Act, 1975 praying for dismissal of petition without further proceedings, notice whereof was given to the' learned counsel who did not opt to file rejoinder to the application, instead argued the application.
2. I have heard the learned counsel for the respondent No.2, respondents Nos.7 and 8 as well as counsel for the petitioner.
3. The learned counsel for the respondent No.2 vehemently argued that the petition is liable to be dismissed because it has not been verified as required by law.
' Similarly, affidavit appended with the petition has not been duly sworn, before the authorized person. He further contended that the provisions of section 44 of the Senate (Election) Act, 1975 are special law and has to be construed strictly providing " for dismissal of petition on account of non- compliance of provisions of section 36(3) requiring the petition and every schedule or annex to the petition to be signed by the petitioner and verified in the manner as laid down, in C.P.C. For verification of pleadings. He next contended that under section 36(1 )(b) full particulars of the corrupt and illegal practice including as full a statement as possible of the names of the parties alleged to have committed corrupt or illegal practice along with date and place of such practice or act were to be pleaded in the petition but perusal of petition indicates that the petitioner himself was not sure who manipulated or committed fraud or to whom benefit was given and full particulars of such manipulation and fraud have not been furnished in the petition as required under the above-said provisions. According to him even prayer clause was vague and ambiguous one and relief claimed for could not be granted. The learned counsel further contended that the defects pointed out could not be allowed to be rectified after expiry of period of limitation which has already expired. In support of his arguments learned counsel placed reliance on the judgments reported in 2000 SCMR 250, PLD 2005 SC 600, PLD 1973 SC 160 and 1995 CLC 150.
4. The learned counsel for respondents Nos.7 and 8 adopted the arguments of learned counsel for respondent No.2.
5. The learned counsel for petitioner contended that verification has been signed by the petitioner as required under Order VI, rule 15, C.P.C. But it has not been attested by Oath Commissioner which is not mandatory. He further contended that the petition was verified before the Chief Election Commissioner at the time 'of presentation of petition. He next argued that the Chief Election Commissioner did not object the verification and sent the petition for disposal to this Tribunal, therefore, no such objection could be taken before this Tribunal. He further argued that full particulars of corrupt practice have been mentioned in para. 3 of the petition which has to be read with ground 'C' wherein specific allegations have been levelled against the. Respondent No.l. He was of the view that relief could be modified, altered and .Varied by the Tribunal at the time of final decision of petition as the provisions of C.P.C. Have been made applicable to the trial under the Act, 1975. In support of his contentions he referred to the judgment reported in 2004 MLD 1331, 2004 MLD 1775 and PLD 1980 Lah.
626.
6. I have carefully considered the contentions put forth by the parties learned counsel and have also gone through the relevant provisions of law. In order to correct appreciate the respective contentions of the learned counsel it would be just and appropriate to reproduce the provisions of section 44 of the Senate (Election) Act, 1975 which reads as under: - "The Tribunal shall dismiss an election petition, if-
(a) the provisions of section 35 or section 36 have not been complied with; or
(b) the petitioner fails to make the further deposit required under subsection (4) of section 43.
Whereas, subsection (3) of section 36 provides that every election petition and every schedule or annexure 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 pleadings which has been provided under Order VI, rule 15, C.P.C. Requiring the verification of pleadings on oath. Such verification is not only to be signed by the deponent but being on oath or solemn affirmation, is required to be attested by Oath Commissioner or any other authority competent to administer oath. In the judgment reported in 2000 SCMR 250 it was observed as under:- "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 maimer laid down in the Code of Civil Procedure for verification of pleadings. The verification of ' pleadings has been provided under Order VI, rules 15, C.P.C. Which when read with section 39, C.P.C. Clearly show's 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 is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani 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. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity."
Therefore, the contention of learned counsel for the petitioner that attestation by the Oath Commissioner or any authority authorized in this behalf is not mandatory, has no substance.
Likewise, in the judgment reported in PLD 2005 SC 600 while interpreting sections 55(3), 54 and 63(a) of Representation of the People Act, 1976 containing similar provisions observed as under:- "The verification on oath of the contents of an election petition, is provided under section 55(3) of the Representation of the People Act of 1976 (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or Annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. 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 foutine 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.
' So far as the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, 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(n)), 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. "
In view of above-referred judgment it could be safely concluded that non- compliance of provisions contained in subsection (3) of section 36 are mandatory in nature as penal consequences have been provided under section 44 of the Senate (Election) Act,- 1975 making it mandatory for the Tribunal to dismiss the election petition if the provisions of section 35 or 36 have not been complied with."
7. Adverting to the next contention of learned counsel for the petitioner that the petition was.
Verified before the Chief Election Commissioner, otherwise he would have returned the petition instead of sending it to this Tribunal for disposal, suffice to say that the verification is to be attested by Oath Commissioner or any other person authorized to administer oath, therefore, such arguments . Are without foundation. Similarly, Chief 4; Election Commissioner can only return the petition to the petitioner if he finds that it has not been presented within time or not accompanied by receipt of deposit as required under section 34 and the question whether the provisions of sections 35 and 36 have been complied with or otherwise fall under the exclusive domain, of Tribunal.
' The judgments referred to by the learned counsel for the petitioner are found not relevant in the context of present petition as those judgments pertain to provisions of Punjab Local Government (Elections) Rules, 2000 and Cantonment (Election and Election Petition) Rules, 1979, wherein, word "may" has been used in the relevant sections, whereas, the word "shall" used in section 44 of the Senate (Election) Act, 1975 makes it mandatory. Likewise, I am unable to follow the rule laid down in the judgment reported in 2004 MLD 1775 in view of the judgment of Hon'ble Supreme Court of Pakistan, reported in PLD 2005 SC 600 which I am bound to follow.
Undisputedly, the verification of petition and affidavit annexed have not been attested by Oath Commissioner or any other person authorized to administer the Oath, as such, in view of above discussion petition is liable to be dismissed and I order accordingly.
' Parties are left to bear their own costs.