1. 'SYED MAHMOOD ALAM RIZVI, J.-- This is an application under section 63 of the Representation of the Peoples Act, 1976 A (hereinafter referred as the Act of 1976) moved by the learned counsel for the Respondent No,1, praying therein that the petition may be dismissed as neither the petition has been verified by the oath commissioner nor supported by an affidavit, which is violating of the mandatory provision of section 55(3) of the Act, 1976, read with Order VI, rule 15, C.P.C.
2. ' The learned counsel for the respondent further argued that the petition is also hit by section, 55(i)
(b) of the Act, 1976, as the petitioner has not given the full particulars including statements and the names of the parties, who had committed corrupt practice or illegal act on the date and place of commission of such practice or act. He further argued that the annexures filed in support of petition have not been verified by the Petitioner, therefore, the petition ,is liable to be dismissed as there is no need of further proceeding. The learned counsel for the respondent in support of his arguments has relied upon the following judgments:---
(I) Amar Lal Ishwar Das and others v. Ishwar Das and others 2007 SCM R 1776, (2) Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCM R 34, (3) Dost Muhammad Rahimo v. Abdul Razzak Rahimo and others Election Petition No,50 of 2008 (Karachi), (4) Imam Ali Samejo v. Ghulam Haider Samejo and others, Election Petition No,51 of 2008 (Karachi).
3. ' Conversely, Messrs Haq Nawaz Talpur and Irfan A. Memon, have argued that the instant application itself is liable to be dismissed as the specific provision whereby this petition said to have not been maintainable has not been mentioned neither in the application nor in supporting affidavit or in the written statement. He further argued that the objection raised by the learned counsel for the respondents are mere technical in nature and on such grounds the petition cannot be dismissed. He further argued that all the annexure have been verified by the counsel by making his initial and endorsement as "T.C"; that the memo of petition is based on the public documents annexed with the petition and if the same has not been verified properly even then it cannot be rejected on the sole ground. He further argued that once the Election Commissioner has entertained the petition, hence it cannot be dismissed by the tribunal. In support of his arguments the learned counsel has relied upon the following judgments:
(1) Century Link Development Corporation Limited v. Habib Bank Limited PLD 2000 Kar. 269, (2)
4. Azizur Rehman Chan v. Abbas Ashraf 1994 M LD 2293, (3) Bashir Ahmed Bhamban v. Shaukat Ali Rajput and others PLD 2004 SC 570, (4) Iqbal Zafar Jhangrra v. Khalil ur Rehman 2000 SCM R 250,
(5) Central Act, PLD 1964 page 210 @ 227, (6) S.M. Ayub v. S. Yousaf Shah and others PLD 1967 SC 486 @ 489 and 490, (7) Muhammad Saeed Khan v. Election Tribunal and another 1986 CLC 753, (8)
5. Jamal Ahmed v. Mir Mehboob Ali 2003 YLR 3032, (9) Amanullah Khan v. Tariqullah and 2 others 1995 CLC 158, (10) Syed Muhammad Shah v. Marvi Mazhar and others 2003 M LD 1842, (11) Muzafar Abbas v. Hassan Murtaza and others PLD 2005 SC 600, (12) Malik Asad Ali v. Federation of Pakistan and others PLD 1998 SC 161, (13) Hamidullah Khan and another v. Ch. Muhammad Jameel and others 2003 SCM R 995.
6. ' Heard the learned counsel for the petitioner, the respondents, perused the record, relevant law and the judgments cited by the respective parties.
7. ' It is necessary first to go through the relevant provision of the Act, 1976, for disposal of this application, the same are reproduced as under:---
55. Contents of petition.--- (1) Every election petition shall contain
(a) ..
8. (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) ..
(2) A petitioner may claim as relief any of the following declarations, namely:-
(a) ..
(b) .
(c) ..
(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.
56. Procedure on receipt of petition by the Commissioner.--- (1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with, the petition shall be dismissed forthwith.
(2) If an election petition is not dismissed under subsection (1), the Commissioner shall refer it for trial to a Tribunal.
63. Dismissal of petition during trial.---The Tribunal shall dismiss an election petition, if---
(a) the provisions of section 54 or section 55 have not been complied with; or
(b) if the Petitioner fails to make the further deposit required under sub-section (4) of section 62.
9. ' It is, an admitted fact that the instant petition has not been verified as provided in Order VI, rule 15, C.P.C.; though signed by the petitioner and identified by the then learned counsel for the petitioner.
10. It has been rightly pointed out by the learned counsel for the respondents that even the petition has not been supported by a separate affidavit and in-as-much as none of the annexure is verified by the Petitioner himself as provided in law, it appears that the objections raised by the learned counsel for the Respondents are correct.
11. ' No doubt, by virtue of section 56 of the Act if the Commissioner finds that any provision of section 52, 53 or 54 has not been complied with, the petition shall be dismissed forthwith and by virtue of subsection 2 of section 56 if the same is not dismissed, the Election Commissioner shall refer it for trial to a Tribunal. The arguments of the learned counsel for the petitioner could have some force if section 63 was not available, as by virtue of section 63, the tribunal shall dismiss the election petition if the provisions of section 54 or 55 have not been complied with therefore, the contention of the learned counsel for the petitioner that once the petition has not been dismissed by the Election Commissioner then it should be decided on merits, have no force.
12. ' Similar point was raised in the case of Ch. Muhammad Ashraf (supra) the honourable apex Court has held that Election Tribunal was justified in holding that no affidavit was annexed to election petition which admittedly was not verified in accordance with law and the election petition has not been filed in compliance with the provisions of section 55(3) of the Act, 1976, was liable to be dismissed under section 63 of the Act, as requirement of both the sections were mandatory, therefore, declined to interfere with the order passed by the Election Tribunal.
13. ' In the case of Amar 'Lai (supra), it has been held by the Honourable Supreme Court that due to non-compliance of mandatory provision of section 54(a) of the Act, 1976, petition was rightly dismissed by the Election Tribunal, it is settled law that a direction is mandatory if its disobedience entails serious legal consequences amounting to the invalidity of the act done in-disobedience to the provision.
14. ' In the case of Sardar Zafar Abbas (supra) the Honourable Supreme Court allowed the petition as a separate page containing the oath has been annexed with the petition.
15. ' In the case of Sardar Khalid Nawaz v. Mian Ahmed Wattoo reported in 1987 CLC 1167, the petition was dismissed as no supporting affidavit has been filed with the election petition.
16. ' In the case of Bashir Ahmed Bhamban (supra), the election petition was duly verified by the Oath Commissioner and the apex Court held that in the verification clause not only the petition was verified by the Oath Commissioner inasmuch as the affidavit has been attached in support of the contents of petition. Similar legal issue was raised in the cases of Aziz ur Rehman Chan (supra) and Zafar Iqbal Jaghrra (supra) and in the latter case it has been held as under:--- "Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule of Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, rule 15, C.P:C. Which when read with section 39, C.P.C., clearly shows 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 tli,e, view that these reasons do not suffer from any legal infirmity."
17. ' In the cases. Of S.M. Ayub (supra), Muhammad Saeed Khan (supra), Haji Amanullah (supra), Jamil Ahmed (supra) and Syed Muhammad Shah (supra) relied upon by the learned counsel for . The petitioner are also not applicable in this case as in the above judgments the issue was the Annexures filed with the petitions were not properly erified and the Courts held that it was mere a technical ground while the petitions were duly verified as per law by the Oath Commissioners.
18. ' In the case of Hameedullah Khan (supra) it was held that the case should be decided on merits and technical knocked out should sparingly be resorted to as in the above case the Election Tribunal closed the side of the Petitioner and proceeded further, therefore, the above case is also not applicable in the instant case.
19. ' In the case of Malik Asad (supra), the facts and law were entirely different as the above case was against the then Chief Justice of Pakistan and there were multiple issues regarding the formation of benches and seniority etc, therefore, the above case is also not applicable in the instant case.
20. ' In view of the above facts, circumstances and the findings of the apex Court in series of cases, the petition is hit by the mandatory provision of section 55(3) of the Act of 1976, therefore, the application is allowed, hence the petition is dismissed along with the listed application.