'ABDUL AZIZ KUNDI, i.-:-Adnan Khan son of Sikandar Muhammadzai was allowed by Peshawar High Court, vide its order dated 25-2-2009, passed in W.P.No,362 of 2009 to contest Elections for one of the two seats of "technocrats", for which his nomination papers had been rejected both by the Returning Officer and the Election Commission of Pakistan. The relevant concluding portion of the order passed by the High Court on 25-2-2009 is reproduced hereunder:-- "The points agitated before us and because of the view held by the apex Court in various case-law cited at the Bar particularly one held in Sheikh Rafique Ahmad's case would require very extensive arguments to consider the fate of Chief Executive Order 7 of 2002 as to whether it is still the law of the land or has become dead and excised/spent out law, therefore, this petition is admitted to full hearing.
Interim Relief.
' Not because the writ petition has been admitted to full hearing but also for the reason that the matter relates to the fundamental right enshrined by the provisions of the Constitution particularly Article 17, therefore, keeping in view the consistent view of the Courts that right of franchise cannot be snatched nor such matter shall be stayed pending disposal of the main petition/appeal and because except the added respondent before us who opposed the grant of interim relief none else has opposed the same, therefore, the petitioner is allowed to contest the election on the seat of "technocrat" for which he has submitted nomination papers. The Election Commission and all the authorities acting under it are directed to make all necessary arrangements for his notification as a candidate and to facilitate him under the law in contesting election on the said seat, however, in case petitioner is elected, then the retaining of such office shall be subject to the final decision to be given on the main petition."
2. After having contested the election held on 4-3-2009, he was declared as a returned candidate for one of the two reserved seats of the "technocrat" and accordingly notified by Election Commission of Pakistan on 5-3-2009, vide Notification No,F.3(4) of 2009-CORD.
3. Ali Gohar Khan son of Munawar Khan, who had also contested the said election felt aggrieved and thus questioned election of Adnan Khan, respondent No,1 through his Election Petition under section 31 of the Senate (Elections) Act, 1975.
4. Adnan Khan, respondent No,1 on being served in- the said Election Petition contested the same by filing his written statement on 1-6-2009.
' Simultaneously, he filed an application under section 44 of the Senate (Election) Act, 1975, praying for dismissal of the petitioi with special costs. In his said application, he averred that the Election Petition is in defiance of the provision of sections 35 and 36 of the Act ibid and that the preliminary submissions/objections raised by him in his reply to the main Election Petition be also read as an integral part of the said application. This application was registered as C.M.No,8 of 2009 and contested by Ali Gohar Khan, who is petitioner in the Election Petition and respondent in this C.M.
5. Arguments of the learned counsel for both sides were heara on 17-5-2010.
6. Learned counsel for the petitioner placed reliance on the provisions of sections 35 and 36, Act ibid besides pressing into service ground No,2 of the preliminary objection raised by him in his written statement to the main Election Petition, which reads as under:-- "That it is very humbly submitted before this honourable Tribunal that the instant election petition is not competent in view of the fact that the verification of the same has not been done in accordance with the governing law. In this view of the matter, the petition needs to, be dismissed in limine, as per the dictates of the law of the land."
7. As against that, learned counsel for Ali Gohar Khan in this CM argued that the Election Petition is not hit by section 44 of the Act ibid as the provisions of sections 35 and 36 have been complied with in letter and spirit at the time of filing the Election Petition.
8. Learned counsel for the CM petitioner could not point out any violation of section 35 ibid. However while reading section 36, he stated that the Election Petition is silent about particulars of any corrupt or illegal practice or other illegal act alleged to have been committed and that the verification as required under section 36 (3) of the Act ibid both of the Election Petition and the documents annexed therewith is not in the manner laid down in the Code of Civil Procedure, 1908 for verification of the pleadings.
9. Perusal of the Election Petition would show that the only ground taken in the Election Petition is respondent's disqualification as a "technocrat" per definition of the "technocrat" in section 2 (d) of the "Conduct of General Elections Order , 2002" (Chief Executive's Order No,7 of 2002) and thus the only question to be answered is applicability or otherwise of the said order.
10. Section 44, Act ibid makes it mandatory to dismiss an election petition, if provisions of section 36 have not been complied with.
11. Section 36 (3) of the same Act requires an election petition and every schedule or Annexure to that petition to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908.
12. Perusal of the election petition would show that though there is a verification at the end at page 5 of the petition, duly signed by petitioner-respondent but not attested by Oath Commissioner and thus this verification was hit by the provisions of law. This should have been sufficient for dismissing the election petition but because of availability of a duly sworn attested affidavit on the next page, the defect stands cured. The said affidavit, which was attested by Oath Commissioner on 7-3-2009 reads as under:-- "I, Ali Gohar Khan son of Munawar Khan resident of Tegram K.D. Teshil Oghi, District Mansehra, petitioner, do hereby solemnly declare and affirm on oath that para 1 to 8 of the facts and 1 para
(A) to (E) of the grounds of the attached Election Petition are true and correct to the best of my knowledge and belief and nothing has been kept secret from this Honourable Commission.
Sd/- Deponent."
13. In my view this is sufficient compliance of the requirement of law as laid down under section 36
(3) of the Senate (Election) Act, 1975, read with Order VI, rule 15, C.P.C., dealing with the verification of the pleadings. In somewhat similar circumstances, the question of alike nature came up before the august Supreme Court of Pakistan in the case titled Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600) and their Lordships have in paras 6 and 7 of the judgment, resolved the controversy as under:-- "(6) Learned counsel for the respondents drew our attention to judgment of Election Tribunal in case of Muhammad Azad Gul (1997 CLC 1132) that happens to be authored by me as Tribunal of Peshawar High Court. In that judgment too, such verification was considered mandatory but the point of distinction is that in that case the petitioner had neither signed the petition nor had got it verified on oath as provided under section 55 (3) of the Act read with Order VI, Rule 15 of the C.P.C.
The distinguishing aspect in the instant case is that though the verification on oath on the last page of the election petition is not attested by the Oath Commissioner yet the appellant has filed the same verification in the shape of affidavit on a separate page which is duly attested by the Oath Commissioner on the same date. The controversy now boils down to the only point as to whether the verification should be at the end of election petition on the same page or any verification given on a separate page would meet the requirement though in the shape of an affidavit.
(7) We have considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath. The objection as to why such verification is on a separate page or leaf, is rather, too immature to be taken notice of and sustained."
' Though the verifications of the documents couched in the following words:-- "I verified the contents of this annexure on oath", are duly signed by the petitioner-respondent and also attested by the. Oath Commissioner but in my view to verification is not sufficient compliance of the relevant legal provisions. This defect, however, can not be made basis for dismissal of the Election Petition because in the instant case, as observed earlier, the only question raised and agitated is the applicability of "Conduct of General Election Order, 2002", which at appropriate time would be determined on the basis of arguments. The law laid down in PLD 2005 SC 600 was also reiterated by the Honourable apex Court in the case of Malik Umer Aslam v. Sumaira Malik and another PLD 2007 SC 362).
15. The ultimate result of the above discussion is that the Election Petition is not liable to dismissal under section 44 of the Senate (Election) Act. C.M.No,8 of 2009 thus stands dismissed.
C M. No, 11/2009.
' Through this C.M. Moved under sections 47, 49 of the Senate (Election) Act, 1975, Adnan Khan, respondent No,1 while claiming recrimination prayed for the reliefs extensively stated in the application, but I defer its decision till the decision of W.P.No,362 of 2009 by Peshawar High Court, Peshawar, lest it may cause prejudice to either side.
C.M.No,9 of 2009.
'This application has been moved by respondent No,1 in the Election Petition under section 45 of the Senate (Election) Act, 1975, read with sections 10 and 151, C.P.C. 1908 for stay of the proceedings in the Election Petition pending final disposal of writ Petition. It is the case of the petitioner-respondent that since he was allowed to contest election pursuant to an interim order passed by Peshawar High Court, Peshawar in W.P.No,362 of 2009 and that the said participation in the election was subject to the final decision to be given on the main petition by the High Court; that both, the writ petition and this Election petition involve a common question of law which has to be answered/resolved in either of the two matters; that since the writ petition is earlier in time, thus while applying the principles of section 10, C.P.C., the proceedings in the instant petition be stayed.
The learned counsel also stated that under section 45 Senate (Election) Act, 1975, this Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, Ott, Before, the said powers are available.
16. As against that, learned counsel for the respondent (petitioner in the Election Petition), argued that as required under section 43 of Senate (Election) Act, 1975, procedure to be adopted by the Tribunal should be the one, which has been laid down by the Election Commissioner and that provisions of section 10, C.P.C. Are neither applicable, nor attracted to the case in question. The learned counsel also argued that the powers of the High Court in its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and those of this Tribunal are concurrent, therefore, whichever forum decides the questions involved, proceedings before the other forum would become infructuous.
17. I have considered the respective arguments and also gone through the relevant provisions of law. Section 45 of the Act ibid empowers the Tribunal to have all the powers of the civil Court trying the suit under the Code of Civil Procedure, 1908. The provisions of section 10, C.P.C. Are meant to meet the situation like the one in hand and rather makes it obligatory upon the court not to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title.
18. A look at the Election Petition would reveal that even the Election Petition petitioner was conscious of this legal position, therefore, in para-8 of the Election Petition it has been stated as under:- "That since writ petition of respondent No,1 is pending before the High Court in which petitioner is party and since the process of attendance of parties is not yet complete and the writ petition has not yet been fixed for final hearing, therefore, without prejudice to the rights of petitioner in the aforesaid pending writ petition this election petition is being filed as time fixed for filing of election petition under section 34 of the Senate Act is expiring on 18/19th April, 2009, thus, this election petition."
19. The above would show that the Election Petition was filed to arrest time, though the actual controversy has to be resolved in the writ petition. As respondent No,1 had been allowed to contest the Senate election subject to the final decision of the writ petition and even the Notification declaring him as a returned candidate has also been added with the following note:-- "The Notification, to the extent of Mr. Adnan Khan son of Sikandar Muhammadzai will, however, be subject to the final decision in Writ Petition No,362 of 2009 (Adnan Khan. v. Election Commission and another) of the Peshawar High Court, Peshawar."
' Therefore, it would be appropriate and in the interest of justice to stay the proceedings in this petition till the final disposal of the writ petition. Parties or any one of them may approach the honourable Chief Justice of Peshawar High Court for early fixation and disposal of the writ petition, which is also the object of the election laws, particularly in the light of the amendment brought in section 67, Representation of Peoples Act, 1976, vide Act 1V of 2009. Thus while allowing C.M.No,9 of 2009, proceedings in Election Petition No, 2 of 2009 are stayed and the same is adjourned sine die.
After the decision of the writ petition, parties or any one of them may apply for its restoration and fixation.
Proceedings stayed.