C.M. No, 1 of 2009 ' UMAR ATA BANDIAL, J.---This application is filed by the returned candidate to seek the dismissal of the election petition on the ground that the petition itself and a number of its annexs and schedules do not bear verification as required by section 55(3) of the Representation of the People Act, 1976 ("ROPA"). Under section 63(a) of ROPA default to satisfy the said requirement is visited with the penalty of dismissal of the election petition. It is settled in Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362) law that the provisions of section 55(3) ibid are mandatory in effect. The only dispute brought before the court is whether the verification affixed by the petitioner on the election petition and its attached documents suffice to satisfy the requirement of law and whether certain documents attached to the petition which lack verification by the petitioner do not require the same under section 55 ibid.
2. The election petition does not bear a verification of its foot, however, there is an affidavit accompanying it that verifies the contents of the election petition. In the light of the principle laid down in Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and otheRs, (PLD 2005 SC 600) the affidavit has curative effect to satisfy the mandatory requirement regarding verification of the election petition.
3. Section 55(3) of the ROPA also requires that "every schedule or annex" to the election petition to be signed by the petitioner and verified in accordance with the C.P.C. The learned counsel for the respondents has pointed out that a schedule of witnesses attached to the election petition (at page 60) lacks verification by the petitioner. Likewise for Annexure "B" to the petition (at page 90) which is a photocopy of the B.A. Degree of the respondent No,
1. He repeats the same objection with respect to the nomination paper of the respondent No,1 at Annexure "D" to the petition, copies of the pleadings in a writ petition at Annexure "F" to the petition, copy of F.I.R. At Annexure "I" to the petition, the application by the respondent No,1 for entrance to examination attached at page 55 to the petition, university letter dated 11-1-2005 attached at page 58 to the petition. All the aforementioned documents are photocopies which are neither certified by the authority maintaining their record nor are these verified by the petitioner in terms of section 53(3) of ROPA.
4. Learned counsel for the respondent No,1 has emphasized that the law draws a distinction between the public and private documents. Certified copies of public document attached to an .Election petition are not liable to be verified by the election petitioner but other documents attached to an election petition, whether these pertain to the petitioner or not, must be verified by the. Election petitioner in order to avoid dismissal of the election petition under section 63(a) ROPA.
5. The learned counsel for the petitioner has answered the objection by stating that all the documents attached to the petition are signed by the petitioner who has also filed a general affidavit which verifies the contents of all annexs to the petition. Furthermore, the documents mentioned above do not pertain to the petitioner personally and, therefore, cannot be verified by him. In any event, such documents are all mentioned in the election petition and since the contents of the election petition are duly verified, therefore, no separate verification for the said documents is required.
6. In the context of section 55 and section 63 ROPA, the honourable Supreme Court of Pakistan has interpreted pari materia provisions of section 59(3) of the National and Provincial Assemblies (Election) Act, 1964. In the case of S.M. Ayub v. Yousaf Shah (PLD 1967 SC 486) it has been laid down that a "schedule or annex" mentioned in the election law must be one that either makes additional allegations of substantive character against the opposite party or furnishes better particulars of the allegations made in the petition. In the assessment of the Tribunal the documents listed in paragraph 3 above bear the characteristic of disclosing or furnishing better particulars of substantive allegations made in the election petition. Therefore, the said documents fall within the meaning of schedule or annex as interpreted by the honourable Supreme Court of Pakistan in S.M.Ayub's case (supra).
7. However, an exception to the said category of documents has been carved out by the honourable Supreme Court of Pakistan in the case of Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (PLD 2004 SC 570) wherein it is observed that public documents attached to an election petition need not be verified by an election petitioner. Public documents are defined in Article 85 of the Qanun-e-Shahadat, Order 1984 ("QSA") which is reproduced below:-- "85. Public Documents.---The following documents are public documents:--
(1) documents forming the acts or records of the acts
(i) of the sovereign authority;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive of any part of Pakistan or of a foreign country;
(2) public records kept in Pakistan of private documents;
(3) documents forming part of the records of judicial proceedings;
(4) documents required to be maintained by a public servant under any law; and
(5) registered documents the execution of which is not disputed.
(6) Certificates deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance, 2002."
8. The documents forming the subject matter of present scrutiny, inter alia, pertain to the record kept by the Election Commission of Pakistan under the provisions of ROPA, 1976, the record of the University of Balochistan, Quetta, judicial record and police record. These documents fall within the categories of public documents comprising the record of acts of public officers, the record of judicial proceedings and documents required to be maintained by public servants under the law.
As such these documents qualify as public documents.
9. However, the important question that arises for consideration in the present context is whether a photocopy of a public document is admissible on the record of an Election Tribunal without bearing the verification provided in section 55(3) of the ROPA, 1976. In Bashir Ahmad Bhabhan's case (supra), para 7 of the judgment makes it plain that the documents attached to the election petition that were under consideration of the Hon'ble Supreme Court were either certified copies or attested copies of the original documents. Indeed under Articles 87 and 88 of the QSO a public document can possess any probative value when its certified copy is produced on a court's record.
Otherwise, a mere photocopy of a document cannot be relied or accepted as a correct copy of the original, free from alteration. Hence, the rule laid down in Bhabhan's case cannot apply in the present case wherein the documents noted above are all mere photocopies of public documents that are neither certified copies thereof nor are verified by the petitioner.
10. Section 63(a) of ROPA, 1976 states in emphatic terms that the requirement of section 55 of the ROPA, 1976 is of mandatory effect and violation thereof shall be visited with the penalty of dismissal of the election petition. Reliance is placed on Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362).
The statutory prescription of a penal consequence for non compliance with the requirements of Section 55(3) of the ROPA, 1976 conveys a clear statutory intent. The material sustaining the allegation made in an election petition, whether documentary or oral, must be reliable and truthful otherwise the election petition is liable to dismissal. The personal verification of an election petitioner on the annexs and schedules attached to his petition fixes upon him the responsibility for the copies of such documents being genuine and for the correctness of the allegations made in his election petition. He can be punished if his verification proves false. Therefore, the petitioner's verification lends credibility to the evidence relied by him and assures the seriousness of his claim.
11. The said statutory precaution filters out the false and frivolous claims thereby avoiding waste of the Tribunal's time and also saving undue harassment to the returned candidate. By judicial precedent the only exception to this rule would be those documents that have intrinsic probative value under the law. Such documents are the certified true copies of public documents as envisaged by Article 87 of the QSO. Indeed, a photocopy of a public document is no better than a piece of secondary evidence which cannot have any intrinsic probative value let alone the comfort of genuiness of a document demanded by the ROPA, 1976. For such a photocopy document, the requisite credibility may be lent to it upon verification by an election petitioner.
12. As the aforenoted photocopies of annexs attached to the election petition do not bear the verification of the election petitioner, therefore, this application is accepted and the main election petition is dismissed under section 63(a) of ROPA, 1976.