'ZIA-UD-DIN KHATTAK, ELECTION TRIBUNAL. --- Through this petition Dr. Gul Karim Khan, petitioner has assailed the election of Jawad Hussain, respondent No,1 as a returned candidate from Constituency NA-39 Orakzai Agency. It is alleged that the election of respondent No,1 has been procured by corrupt and illegal practice as detailed in the petition and also in violation of the relevant provisions of election laws.
2. On 2-6-2008, the respondent No,1 filed C.M. No,26 of 2008 under section 63 of the Representation of the People Act, 1976 (hereinafter referred to as the 'Act') followed by C.M.No,41 of 2008 praying therein for dismissal of the election petition for non-compliance of sections 54 and 55 of the Act on stated allegations that the election petition has neither been signed by the petitioner nor verified in the manner laid down in the Code of Civil Procedure, 1908 and that the copy of election petition received by the respondent No,1 through post did not include the annexures the list of witnesses and the affidavits of the witnesses, desired to be produced. The application was contested by the petitioner on the ground that the election petition was duly verified and that the petitioner has sent to the respondent No,1 as well as all other respondents, a copy of the petition along with all the documents through registered post and even now the petitioner was ready to furnish another copy of the petition along with other documents.
3. The learned counsel for the respondent No,1 has raised the following preliminary objections as to the maintainability of the election petition:--
(i) That the election petition was not signed and verified as required under subsection (3) of section 55 of the Act; and
(ii) That the documents, annexures and list of witnesses along with the affidavits of witnesses were not supplied to the respondent No,1 as required by clause (1) of Notification No,F.I(7) 85-Cord. Dated 16-3-1985.
' It is argued that the omissions are fatal and the petition is liable to be dismissed under section 63 of the Act.
4. Conversely, the learned counsel for the petitioner contended that the election petition was signed and verified/attested in accordance with law and that a copy of the election petition was sent to the respondent No,1 through registered post, which is sufficient compliance of section 55(3) of the Act.
5. I have considered the submission made by the learned counsel for the parties and perused the record appended with the petition. The preliminary objections raised by learned counsel for the respondent No,1 are dealt with adseriatem: Preliminary Objection No,(i)
6. Before proceeding any further it is worthwhile to refer to the verification of the election petition which reads as follows:--- Verification.
"The contents of paragraphs Nos.1 to 13 of the petition above are verified to be true and correct to the best of my knowledge and belief.
' Verified on oath at Peshawar this----- day of April, 2008."
' The respondent No,1 has urged for dismissal of the election petition mainly for non-compliance of section 55(3) of the Act, which relates to the, verification of the petition, its schedule and annexures.
Under the said section, it has been made obligatory upon the person, who has challenged the elections, to sign and verify the same in the manner prescribed for verification of plaint by C.P.C., thus by reference, the provisions of Order VI, rule 15, C.P.C. Have been made applicable. As per its, provision, every pleading is required to be verified on oath or solemn affirmation at the foot by the party or by one of the parties to pleadings or by some other person to the satisfaction of the Court acquainted with the facts of thy case. Learned counsel for the petitioner argued that although it is provided under section 53(3) of the Act that every election petition, schedule and other annexures attached to such petition shall be signed by the petitioner and are to be verified in a manner laid down in the C.P.C. But no consequence is provided in C.P.C. For non-compliance of provisions of Order VI. The argument is devoid of force inasmuch as in the instant case consequences of non- verification as contemplated by section 55(3) have been mentioned under section 63 of the Act that the petition shall be dismissed for such defect. The law itself having taken care of the situation i,e, dismissal of the petition for non-verification in terms of the law the requirement has to be regarded as mandatory nature. In Peter John Sahotra v. Returning officer 1995 CLC 394 it was observed that the compliance of the provisions of sections 54 and 55 of the Act is mandatory and the Tribunal has no choice but to dismiss the election petition. In this case, the verification (as it appears) has not been signed by the petitioner nor attested/verified by any oath commissioner or a person duly authorized to administer oath. Such as verification has been held by the apex Court in Engineer Iqbal Zafar Jhagra's case 2000 SCM R 250 as violative of section 36 of the Senate (Elections) Act, 1975 which is in pari materia with section 55 of the Act. Apart therefrom the verification of petition does not meet the requirement of sub-rule (2) of rule 15 of Order VI, C.P.C.
Inasmuch as it does not specify by reference to the numbered paragraphs of the petition what the petitioner verifies of his knowledge and what he verifies upon information received and believes to be true. In such circumstances, the petition file by the petitioner is not in conformity with the requirement of section 55(3) of the Act and the non-compliance has to be visited by a penalty envisaged in section 63 of the Act. The petition is thus liable to be dismissed for this reason as was ordered in Syed Iftikhar Hussain Gillani's case 1997 CLC 1724: Preliminary Objection No,(ii).
7. The plea of respondent No,1 is that the documents, annexures and list of witnesses along with affidavits of witnesses relied on by the petitioner were not supplied to him and that in fact a copy of the election petition without any annexure was sent to him by pest in violation of section 54 of the Act. There is no evidence to show that the documents and the affidavits of the witnesses desired to be produced be the petitioner were in fact supplied to the respondent No,1 before filing of the election petition. The acknowledgement regarding receipt of documents and annexures has not been brought on record. So the question for consideration is whether non-compliance with the procedure laid down by the Election Commission of Pakistan in clause (1) of Notification No,F.1(7)85-Cord, dated 16-3-1985 will entail dismissal of the election petition or not? The law/rules regulating the election petition are reproduced below:--- ' Section 62 of the Act.--- (1) "Subject to the provisions of this Act and the rules, every election petition shall be tried in accordance with the procedure laid down by the Election Commission. "
' Notification issued by the Election Commission of Pakistan on 16-3-1985.--- (1) "Every election petition shall be filed with the Secretary Election Commission of Pakistan, Secretariat Block "S", Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner along with the receipt indicating that the copies of the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent."
"The respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence."
8. A perusal of the above provisions make it manifest that Clause (1) of the Notification requires that every election petition shall not only be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner No,1 but also by an acknowledgement receipt from the respondent indicating that copy of the petition, documents and affidavits annexed thereto had been supplied to him and this means that the petitioner must provide the respondent copy of the petition, documents upon which he intends to rely, the names of the witnesses which he proposes to examine and the substance of their evidence, before filing election petition with the Secretary Election Commission of Pakistan. Clause (3) of the Notification requires the respondent to file written statement with all documents relied on by him and affidavits of the witnesses as are desired to be produced within seven days of the receipt of the notice of the petition. On reading clauses (1) and (3) together it becomes crystal clear that the wisdom of Clause (1) of the Notification was to give the respondent intimation of the fact that election petition was being filed by a particular candidate against him on the allegations contained therein; the names of the witnesses of the petitioner; the substance of their evidence and the documents to be used against him, so that he may not be taken by surprise. Since Clause (3) of the Notification requires the respondent to file his written statement along with documents relied upon by him and the affidavits of the witnesses as are desired to be produced by him. I feel that unless requirement of clause (1) of the Notification regarding, the supply of the documents and the affidavits of witnesses of the petitioner to the respondent, is complied with and he knows before hand the documents which he has to meet and the names of the witnesses as well as substance of their evidence which he has to represent, it will not be possible for him to comply with clause (3) of the Notification which requires him to file written statement together with all documents relied by him and the affidavits of the witnesses as are desired to be produced in defence, within seven days of the receipt of the notice of the petition and defend his case properly and effectively. Clause (1) of the Notification has conferred a valuable right on the respondent to know before hand the documents and the substance of the evidence of the witnesses as desired to be produced by the petitioner in proof of his election petition and it will certainly not been possible for him to append with the written statement, counter documents and counter oral evidence unless he is aware of the kind of documents and the nature of the evidence intended to be produced against him.The failure on the part of petitioner to supply documents and the affidavits of the witnesses as desired to be produced by him will certainly cause incurable prejudice to the defence of the respondent. It seems that clause (1) of the Notification is not of general policy but conferred valuable right and privilege on the respondent to know the documents relied upon by the petitioner, the names of the witnesses he intends to produce and the substance of their evidence before he is called upon to file written statement. So, mere delivery of petition to the respondent without documents and the affidavits of the witnesses mentioned in clause (1) of the Notification will not serve the object of clauses (1) and (3) of the Notification and failure on the part of the petitioner to annex documents, the affidavits of the witnesses and the receipt of acknowledgement with the petition will render the provision of clause (1) as well as clause (3) of the Notification futile and nugatory. For all these reasons, I am of the view that clause (1) of the Notification is a mandatory provision which obliges the petition to supply documents etc. Desired to be produced by him and also attach acknowledgement receipt from the respondent indicating that he had received not only the petition but also the documents etc. Attached thereto and a petition which is not accompanied by these documents will not be maintainable.
9. In the result, the preliminary objections prevail and by allowing C.Ms. Nos.26 and 41 of 2008, the election petition is dismissed under section 63 of the Act, leaving the parties to bear their own costs.