' SYED SAJJAD HASSAN SHAH, J.--- Since identical question is involved in both the above mentioned civil miscellaneous applications, therefore, I propose to decide both the applications by this single order.
2. In Election Petition No,53 of 2008, the petitioner and the respondents contested the elections of Provincial Assembly PF-71 held on 18th February, 2008. The respondent No,1 was declared as returned candidate by the Election Commission of Pakistan through Gazette notification. The petitioner being runner up, has challenged the elections of respondent No,1 through the instant Election Petition before the Election Commission of Pakistan, which has been forwarded to this Tribunal for disposal.
3. The respondent No,1 contested the petition by filing his written reply. In view of the divergent pleas arising out of the pleadings of the parties, issues were framed. During the course of proceedings, the respondent No,1 moved an application, on 20-2-2010 for dismissal of the Election Petition under section 63 of the Representation of the People Act, 1976, (hereinafter to be referred as Act) on the grounds enunciated in section 55(3) that the Election Petition and annexures appended with the petition have not been verified in accordance with the provision of Order VI, Rule 15, C.P.C.
4. In the Election Petition No,32 of 2008 (Syed Hussain Ali Shah Al-Hussaini v. Pir Hafiz Khurshid Ali Khan and others) similar application has been filed for the dismissal of the Election Petition on the sole ground that "schedule & Annexure" attached therewith have not been verified in accordance with the requirements of section 55(3) of the Act.
5. The brief facts of the Election Petition No,32 of .2008 are that the petitioner and respondents simultaneously contested the elections of Provincial Assemblies for NA-16, Hangu and PF-32, Hangu-1, held on 18th February, 2008. Respondent No,5 has been declared as returned candidate whereas petitioner has been shown as runner up. As such the petitioner challenged the election of respondent No,5 through the instant Election Petition before the Election Commission of Pakistan which has been referred to this Tribunal for decision. The respondent No,5 contested the Election Petition by filing his written reply. The evidence of four witnesses has been recorded.
6. At this stage, the respondent No,5 moved an application for dismissal of the Election Petition under section 63 of the Act (ibid) for want of verification of annexure document by Oath Commissioner appended with the Election Petition.
7. The learned counsel for the applicants contented that the provision of section 55(3) of the Act
(ibid) is mandatory in nature form and its non-compliance entails the dismissal of the Election Petition summarily as provided under section 63 "a" of the Act. Baz Muhammad, the petitioner did not verify the petition and the annexures appended thereto as per provision of law, thus the petition has been filed in clear violation of law. The other petitioner namely Syed Hussain Ali Shah has filed the petition that the annexures/documents appended therewith were not verified as required under the law, thus, the same is also not competent. The learned counsel placed reliance upon the cases titled Eng. Lqbal Zafar Jhagra v. Khalil-ur-Rehman (2000 SCM R 250), Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 Supreme Court 600), Malik Umer Aslam v. Sumera Malik and another (PLD 2007 Supreme Court 362) and Amir Lal v. Ishwar Dad and others (2007 SCM R 1776).
8. They further argued that the law as expounded in above referred dicta of the august Supreme Court is to the effect that the slightest deviation from the provision contained in Order VI, Rule 15 read with section 139, C.P.C. Would entail the penal consequences culminating into dismissal of Election Petition, inasmuch as the rectification has not been permitted in the Election Petition beyond the period of limitation.
9. On the other hand, learned counsel for the respondents in both the applications contended that the procedural defects would not be permitted to deprive the litigants of their valuable rights. Baz Muhammad the petitioner has verified his petition on 27-3-2008, whereas same is attested by the Oath Commissioner on 28-3-2008, which is usual practice being observed by the lawyers that first they prepare the brief and then get it attested by the Oath Commissioner. His petition and the documents/Annexures appended thereto are' duly attested by the Oath Commissioner. They argued that in the dictum laid down in PLD 2004 SC 570, it is observed that the copies of the documents of the public record are not required to be attested. The documents appended with the petitions are mostly the copies of the public record. Further argued that the precedent law relied upon by the learned counsel for the applicants is distinguishable and does not apply to the facts of the instant petitions. They added that the form of verification required for the Election Petition has not been prescribed under the law, therefore, the verification of the Election Petition and of the supporting documents is in conformity with law, as such, the arguments of the learned counsel of the applicants are not tenable. The learned counsel pointed out that according to the consistent view of august Supreme Court of Pakistan, the rights of litigants are to be decided on their merits and they may not be knocked out on the basis of hyper technicalities to defeat the spirit of substantial justice. Furthermore, the cases should not be thrown out on the pretext of non- performance of procedural requirements which are of trivial nature. Reliance was placed on PLD 1991 SC 2293, 2010 SCM R 1877, 1994 M LD 2293 and 1997 M LD 612v
10. The arguments of the learned counsel for the parties considered and record carefully perused, in the light of which my discussion is as under:---
11. In the instant case the moot question is that whether the Election Petitions are liable to be dismissed on the ground that the verification of petitions has not been made in accordance with Order VI, Rule 15, C.P.C. And similarly, the Annexures/documents appended with the petition are also found defective. It is also an added ground that the petitions and their Annexures are also violative, therefore, these are liable to be dismissed under section 63 "a" of the Representative of People Act 1976.
12. The stance of applicants mainly is that the provision of Order VI, Rule 15, C.P.C. Is mandatory and its non-compliance would result in action under section 63 "a" of the Representative of People Act 1976. In this connection I may rely on the case titled Molvi Abdul Qadir and others v. Molvi Abdul Wassay and others (2010 SCM R 1877), handed down by honourable the Chief Justice, which has set at rest the dispute finally. In the said reported judgment the honourable apex Court examined the provisions contained in Order VI, Rule 15, C.P.C. And that of subsection (3) of section 55 of the Representative of People Act, 1976. The honourable apex Court in the same judgment has also discussed in detail the reported 'cases relied upon by the learned counsel for the applicants. The observations of the honourable apex Court are reproduced as below:- "8. It is well-settled that question of law, pronounced or declared by this Court in terms of Article 189 of the Constitution has binding effect on all the functionaries, both executive and particularly he Judicial Authorities. The Superior Courts, Tribunals have obligation to implement and adhere to the judgment of the Supreme Court. We feel no hesitation in holding that the Election Tribunal, perhaps on account of non-availability of proper assistance, proceeded to decide the cases against the appellants for the reasons mentioned hereinabove. This Court in the case of Bashir Ahmed Bhanbhan (supra) has settled the question with regard to verifying the pleadings not withstanding the numbered paragraphs or the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. This provision of law intact cannot be considered to be mandatory as a person can verify the paras in the pleadings on his own knowledge without verifying any para upon receipt of the information, same are believed to be true. Directly such question has been attended in another judgment in the case of Sardar Zada Zaffar Abbas v. Syed Hassan Murtaza and others (PLD 2005 SC 600). Relevant para therefrom is reproduced hereinbelow:--- "Learned Counsel for the respondent raised another objection that the Election Petitioners in their verifications have failed to give reference to the paragraphs of the pleadings as to what he either happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true. Such objection is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at time on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case."
"9 Now turning towards the judgment, which has been relied upon by the learned counsel in the case Malik Umer Aslam; (ibid) it is to be noted that in this case the question with regard to non- verifying pleadings on oath was under consideration because the pleadings have not been attested by the person competent to administer the oath. The instant question relates to mentioning the numbers of paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true, therefore, the contentions raised in this behalf by the learned counsel for the respondent have no substance, as such the same are repelled." #TBS appended with the Election Petitions, as the expression "schedule orl #TBE
13. The arguments of the learned counsel for the applicants are not in consonance with the precedent law relied upon by them in support of their respective contentions about the verification of the documents annexure" has not been defined in the Act (ibid). The above legal terms came up for decision/determination before the honourable Supreme Court in the case of S.M. Ayub v. Syed Yousaf Shah and 2 others (PLD 1967 SC 486) because one of the main grounds involved therein seeking the dismissal of the Election Petition was the non verification of the schedule or annexure attached to the Election Petition. The Full Bench of the honourable Supreme Court placed the following construction on the above mentioned words:--- "These cuttings do not really amount to allegations on which the petitioner-appellant was seeking avoidance of the election but they were in the nature of evidence cited in support of allegations of corrupt or illegal practices, such as, if established, could avoid the election."
"The main petition, it is conceded, is properly signed and verified. Instead of reproducing the contents of the cuttings in paragraph 10 of the petition itself, they have been briefly described there in and then collected at the end of the petition. The contents of those cuttings have been characterized in the main petition itself as malicious untruths, it would be too much to expect the petitioner to verify them in the manner contended for."
"By "Schedule" or "Annexure" mentioned in subsection (3) of section 59 of the Act, is apparently meant such as schedule and annexure as either makes additional allegation of a substantive character against the opposite party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of the substantive grounds of the petition itself.
The documents under consideration in the instant case, however, are not of that character and in our opinion, they should not be understood to fall within the meaning "scheduled" or "annexures" mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not a substantive ground or explanation of those grounds. We are, consequently disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signature or the verification, required for schedule or annexures to the petition, was not fatal to the prosecution of the petition."
14. The above referred construction regarding meaning and import of words "Schedule" or "Annexure" made by honourable apex Court also leaves no room for further discussion on the subject.
15. The same view has been taken by the august Supreme Court in the case of Molvi Abdul Qadir and others v. Molvi Abdul Wassay and others (2010 SCM R 1877) which is reproduced as under:--- "Second limb of the arguments of the learned counsel for the respondents, particularly, Chaudhry Ali Muhammad, Advocate Supreme Court, is his emphasis upon the strict adherence of subsection
(3) of section 55 of the Representation of the People Act 1976. A larger Bench of this Court comprising seven honourable Judges had an occasion to examine the question of verifying every schedule or annexure of the petition in the manner laid down in the procedure of Civil Code according to subsection (3) of section 55 of the Representation of the People Act, 1976, in the case of Zaffar Iqbal Jhagra v. Khalil-urRehman (2000 SCM R 250) and declined to interfere in the judgment of the Election Tribunal, which has refused to dismiss the Election Petition on the ground of non-compliance of corresponding provision under section 36 of the Senate. (Election) Act (LI), 1975. To further elaborate the point G involved in this case, it would be appropriate to note that in Zaffar Iqbal Jhagra's case learned Tribunal decline to dismissed the Election Petition because some of the annexure filed along with it were not verified on oath, holding that annexures have admittedly not been verified on oath but the omission is not fatal as annexure neither go to the root of the allegations nor disclosed any additional allegation of substantive character or furnish better particulars of allegations made in the petition. The view formed by the Tribunal as well as this Court is based on the earlier case of S.M. Ayub v. Yousaf Shah (PLD 1967 SC 486)."
16. Keeping in view the above discussion the honourable apex Court allowed appeals and remitted the cases to the Election Tribunal concerned, for decision in accordance with law.
17. In the eases in hand the identical question is involved which has been adequately answered by the august Supreme Court and there is no need for further arguments and discussion.
18. In view of the above discussion, this Tribunal has no option but to dismiss both the applications i.e. C.M. No,3 of 2010 in Election Petition No,53 of 2008 and C.M. No,10 of 2010 in Election Petition No,32 of 2008. The Election Petitions are pending since long, therefore, it is advised that no further adjournment be obtained, so that the petitions may be disposed of expeditiously.