C.M. No, 1 of 2010 and Main case.
' SH. NAJAM-UL-HASAN, J.---Through the Election Petition No,49 of 2008 the election of Ahmad Khan Baloch, applicant/respondent No,1, who is the returned candidate for the Constituency PP 211 Lodhran-V in the General Election, 2008 held on 18-2-2008, has been assailed by Capt. (Retd.) Izzat Javaid Khan, petitioner by invoking the provisions of Section 52 of the Representation of the People Act, 1976 (hereinafter to be called the Act) for declaring the election of respondent No,1 as null and void on a number of grounds mentioned in the election Petition.
2. Ahmad Khan Baloch, respondent No,1 has moved C. M. No, 1 of 2010 under section 63 of the Act for dismissal of the election petition on the ground that the same is violative of the provisions of section 55(3) ibid which prescribe contents of an Election petition and also Notification No,F.1(6)85- Cord. Dated 16-3-1985 issued by the Election Commission in exercise of powers conferred by subsection (1) of section 62 of the Representation of the People Act, 1976 laying down procedure for trial of election petitions.
3. Learned counsel for the applicant/respondent No,1 submits that specific procedure has been laid down in section 55 of the Act according to which every election petition must contain a precise statement of the material facts on which the petitioner relies and the same is to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings but the said procedure has not been adopted in the present election petition inasmuch as the election petitioner has not specified the paragraphs of the petition which he verifies of his own knowledge and the paragraphs which he believes to be true as per his information; that the verification does not disclose the date on which the same was made and the place at which the petition has been verified; that the annexures appended with the election petition have not been verified as required by law; that list of the witnesses has not been appended nor precise statement of material facts on which the petitioner relies has been appended with the election petition which is violation of mandatory provisions of section 55 of the Act of 1976 and Notification issued by the Election Commission laying down procedure for trial of election petition, therefore, the election petition is liable to be dismissed and that when the law required a particular thing to be done in a particular manner, it should be done in the same manner. In support of his contentions, learned counsel has relied on Sh. Allud-Din v. Election Tribunal Lahore High Court, Lahore (2009 YLR 1930), Malik Umer Aslam v. Sumera Malik and another (PLD 2007 SC 362), Sardarzada Zafar Abbas v. Syed Hassan, Murtaza (PLD 2005 SC 600), Tariq Muhammad Bajwa v. Muhammad Afzal Sahi (1994 CLC 1366), Asif Naw' az Fatiana v. Walayat Shah (2007 CLC 610) and Engineer Jameel Ahmad Malik v.
Ghulam Sarwar Khan and 6 others (2004 CLC 914).
4. On the other hand Learned counsel for the election petitioner has argued that the instant Election Petition though not verified in accordance with the prescribed manner yet the verification made by the petitioner on the foot of the petition is sufficient to comply with the provisions of Order VI Rule 15 of the C.P.C. Further submits that the defect if any in the verification was mere irregularity which would not affect merits of the case and could be allowed to be made good in view of section 62(3) of the Act with leave of the Court. Learned counsel also argues that precise statement of the material facts on which the petitioner relies have been fully described in the petition itself. Also argues that as per notification of the Election Commission the list of only official witnesses is necessary to be filed with the petition whereas in the present case, the petitioner does not want to produce any official witness, hence there was hardly any need to append list of witnesses with the petition and that in any case justice demands that the lis should be decided on merits and technicalities cannot be resorted to the extent of defeating the process of justice and heavy duty was cast upon the courts to do substantial justice and not to deny the same on mere technicalities. Places reliance on S. M. Ayub v. Yousaf Shah (PLD 1967 SC 486), Aman Ullah Khan v.
Tariqullah (1997 M LD 612), Haji Liaqat Ali v. Ch. Muhammad Afzal Sahi and 7 others (2004 M LD 1089), Nasir Hamid Qureshi vs. Mst. Abbasi Begum and others (2003 SCM R 1553) and Hussain Spinning Unit No,2 v. Authority under the payment of wages and another (2008 PLC 280).
5. I have heard the arguments of the learned counsel for the parties and have also carefully examined the election petition and its annexures in the light of the submissions made by them.
6. Section 55 of the Representation of the People Act, 1976 deals with the contents of an election petition. As per subsection (3) to this section every election petition and every schedule or annexure to that petition is required to be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Order VI Rule 15 of the C.P.C. Deals with the verification of pleadings. For better appreciation, I would like to reproduce the said provision which is as under: "15. Verification of pleadings. - (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, 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."
' I would also like to reproduce the verification made by the election petitioner on the foot of the present election petition for better appreciation:- "VERIFICATION:- ' Verified on oath that the contents of the election petition are true and correct to the best of my knowledge and belief and nothing has been concealed therefrom the facts."
' A cursory glance over the provision of law quoted above and the verification of the election petition reproduced above would show that by no stretch of imagination it can be said to be in accordance with the prescribed manner inasmuch the verification on the foot of election petition does not bifurcate the paragraphs which the petitioner verifies of his own knowledge and which are the paragraphs which he verifies upon information received and believed to be true. Not only this rather the verification does not disclose the date on which the petitioner verified the, petition nor states the place at which the verification was made.
7. Section 63 of the Act lays down that if the provisions of section 55 ibid have not been complied with, the election petition shall be dismissed. This penal provision of law makes the compliance of section 55 of the Act mandatory failing which penal consequences have to follow. The question is as to whether defective verification is fatal to the petitioner's case or deficiency in the verification can be rectified. To my mind the provisions of law which entail penal consequences are mandatory in nature and the lacunae entailing penal consequences of these mandatory provisions cannot be allowed to be filled. Although verification of a plaint in. a suit filed under the C.P.C. Is the same as in the election petition, yet there is great difference between the two. Under the C.P.C. No penal provision is prescribed for non-compliance of Order VI Rule 15, C.P.C. As such the same can be considered as directory in nature whereas non compliance of the provisions of section 55(3) of the Representation of People Act, 1976 entail penal consequences in terms of Section 63(a) ibid, hence the same are mandatory and must be fulfilled exactly. It has been held by the Full Bench of the Apex Court in Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362, that notwithstanding the fact that the defect has been pointed out by the respondent or not, the court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where noncompliance of mandatory provision prescribes a penalty.
8. So far as contention of the learned counsel for the election petitioner that the Tribunal is empowered to allow amendment in the petition and should allow the petitioner to remove defects in the petition verification in view of provision of section 62(3) of the Act, is concerned, I would like to refer to the precedent case noted above wherein it has been held that it depends upon the nature of amendment sought in the pleadings. The amendment can be allowed if it was necessary for the purpose of determining the real question but verification on oath in absence of administration of oath by an authorized person, by no stretch of imagination, is an amendment to determine the real issue between the parties. It has also been held by the Apex Court in S.M. Ayub v.
Yousaf Shah (PLD 1967 SC 486) referred above that if defect in the pleadings is of such a nature that same would not be sufficient to non-suit the petitioner, amendment can be allowed, but if defect is of such a nature which if allowed to be cured will change the complexion of the proceedings, then the amendment cannot be allowed. Thus the deficiency in verification, being very visible and noncompliance being fatal, cannot be allowed to be cured.
9. A perusal of the verification of the election petition would show that the election petitioner while filing the election petition did not comply with the mandatory requirements of law regarding verification of petition and omitted to bifurcate the paragraphs verified on his own knowledge and on information received by him and believed to be true non-compliance of which is fatal. It was mandatory for the election petitioner to specifically mention as to which paragraphs of the election petition were verified as per his own knowledge and what he believed to be true on the basis of information received as the same was not a formality but might have different consequences. Not only this rather the petitioner neither mentioned the place where said verification was made nor did he mention the date on which contents of the election petition were verified. As such the verification has not been made by the election petitioner in accordance with law and the same being so, the mandatory provision of section 55(3) of Representation of People Act, 1976 has not been complied with. The petitioner even did not consider it necessary to support the contents of the election petition with his affidavit. I have also gone through the annexures appended with the petition. The petitioner has also not verified the annexures appended with the petition as required by the provisions of Section 55(3) of the Act. The petitioner has not even appended list of witnesses to whom he desires to produce at trial or the gist of facts which they have to prove at trial along with precise statement of the material facts on which the petitioner relies. I have also gone through the case law relied upon by both the parties and have come to a definite conclusion that requirement of law being mandatory in nature such defects in verification are fatal to the petitioner's case.
10. In view of what has been noticed and discussed above, C.M. No,1 of 2010 filed by respondent No,1 in the main election petition is accepted as a result whereof Election Petition No,49 of 2008 is dismissed.