1. C.M.A No,18 of 2013.
2. ' DR. ZAFAR AHMAD KHAN SHERWANI, ELECTION TRIBUNAL SINDH.---This order will dispose of an application under section 63 of the Representation of the People Act, 1976 read with section 151, C.P.C., C.M.A. 18 of 2013 moved by the respondent No, 1 to dismiss this Election Petition filed by the unreturned candidate, the petitioner, against the Returned candidate, the respondent No,1 for impleading contesting candidates.
3. ' Brief facts leading to the instant application are that the petitioner through this petition has challenged under section 52 of the Representation of the People Act, 1976 the election of the returned candidate from the constituency, PS. 93, Karachi, held on 11-5-2013 on different grounds including corrupt and illegal practices allegedly committed by the respondent No, 1 in connivance with the officials responsible for holding free and fair election. The petition was initially filed before the Election Commission of Pakistan at Islamabad from where after processing the same formally it was transferred to this Tribunal. The respondent No, 1 and the respondent No, 24 contested the petition and filed their written objections/Written Statements and denied the allegations. Other respondents did not choose to contest the petition, therefore the petition is proceeding against them ex parte.
4. ' It has been prayed in the application that for the reason disclosed in the accompanying affidavit and on the consideration of annextures thereof the Election Petition may be dismissed at the threshold of the trial on the following grounds namely:--
(1) that the petitioner being a ticket holder of Jamat-e-Islami had contested the general election which on the polling day i.e, 11-5-2013 had boycotted the same, therefore, he may be estopped from challenging the duly held elections in which the respondent No,1 was declared as the returned candidate and for the same reason his constitution petition bearing Constitution Petition No,2205 of 2009 was dismissed by the High Court of Sindh holding that since his party had boycotted the elections, therefore, he was not an aggrieved person which finding has attained the finality,
(2) that the petitioner has failed to serve a copy of petition along with complete set of documents attached with his petition including affidavits in evidence to him before filing the Election Petition as required under the procedure provided in Notification No,F.1(7)/ 85-Cord. Issued by the Election Commission,
(3) that the Election Petition has also not been verified on oath as required by section 55(3) of the Act, ibid,
(4) that the petitioner has failed to give full particulars of the alleged corrupt and illegal practices or illegal acts in the petition as required under section 55(I)(b) of the Act, ibid,
(5) that the prayer clauses of the petition are contradictory with each other which are beyond the scope of the Act, ibid,
(6) that the consolidation of the result by the Returning Officer of the constituency was held in presence of the petitioner on the basis of Statements of Count (Form XIV) furnished by the Presiding Officers and copy of the were produced in the High Court by the petitioner, therefore the allegations made in the Petition have no merit and the petition is liable to be dismissed.
5. ' The petitioner in his counter affidavit has denied all the pleas taken by the petitioner in his, affidavit and has prayed to dismiss the application and to decide the petition on merit.
6. ' I have heard the learned counsel for the respondent No,1 and the learned counsel for the petitioner as well as the respondent No,24 in person.
7. ' The learned counsel for respondent No,1 in support of ground No, 1 contended that since the petitioner being a ticket holder of Jamat-e-lslami which party had boycotted the elections on polling day, therefore, the petitioner has no locus standi to challenge the result of election as held by the High Court in his C.P. No, 2205 of 2013.
8. ' In support of the ground No, 2 he contended that the petitioner has failed to supply copies of the petition as well as its annextures to the respondent No 1 before filing the same as required by Clause 1 of the Notification of the Election Commission of Pakistan issued under section 62 of the Act, ibid, laying down procedure of the trial of election petition, therefore, the petition is liable to be dismissed as held in Fazal Mabood v. Ihsanullah and 2 others, 1986 CLC 1864 and Muhammad Saeed v. Tahir Malik, 2005 CLC 1493.
9. ' In support of the ground No,3 he contended that the petition and the documents annexed with the petition were required to be verified in terms of Order VI of Rule 15, C.P.C. As provided under section 55(3) of the Act, ibid, therefore, the petition is liable to dismissed under section 63 of the Act ibid, for noncompliance of the mandatory provision of law by the petitioner. He has relied upon the cages of (1) Emirates Bank International Ltd. v. Super Drive 1990 M LD 538, (2) Qaiser Ahmed Sheikh v.
10. Muhammad Tahir Shah and others, 2005 CLC 1521. (3) Shaikh Mushtaq Ali v. Khalid Anwar, 1999 M LD 1533, (4) Dost Muhammed v. Abdul Razak Rahamoon 2009 CLC 795, (5) Ch. Muhammad Ashraf v.
11. Rana Javed and others, 2007 SCM R 34, (6) Malik Umer Aslam v. Sumera Malik and others, PLD 2007 Supreme Court 362, (7) Haji Ch. Masood Akhtar v. Election Commission of Pakistan, 2005 CLC 172,
(8) Muhammad Tariq Khan Swati v. Shujah Salam Khan, 2007 CLC 671, (9) Qaiser Ahmed Sheikh v.
12. Muhammad Tahir Shah, 2005 CLC 1521.
13. ' In support of ground No, 4 the learned counsel contended that the petitioner has challenged the election on ground of corrupt and illegal practices allegedly committed by the respondent No,1 but failed to give complete details of such corrupt or illegal practices which he was under legal obligation to give in term of section 55(I)(b) of the Act, ibid. Therefore, his petition is liable to be dismissed under section 63 of the Act, ibid. He has relied upon (1) Muhammad Hashim Siddiqui v.
14. Lqbal Muhammad Ali Khan, 2004 YLR 381, (2) Yar Qand Khan v. Taj Bar Khan and others, 1987 M LD 84, (4) Engineer Jameel Ahmed Malik v. Shaukat Aziz and others, 2007 CLC 1192, (5) lzhar Hussain Khoso v. Mir Faridullah, 1999 M LD 3052 and Capt. Syed Muhammad Ali v. The Returning Officer, Police Station 19, District Court, Karachi, 1999 CLC 2039.
15. ' In support of ground No,5 the learned counsel argued that as per prayer clause of the petition the petitioner has approbated and reprobated simultaneously, therefore such prayer is defective in law and the Petition is liable to be dismissed.
16. ' In support of the ground No,6, the last ground, the learned counsel argued that the process required under the law for consolidation of the result was completed by the Returning Officer after the due notice to all the contesting candidates on the basis of Statements of Count furnished by the Presiding Officers of the polling stations and the copies of the same have been produced by respondent No,1 along with written statement. Whereas the documents produced by the petitioner in this regard with his petition on plain papers are of no value, therefore, he submitted that the petition is liable to be dismissed, at this threshold otherwise same will ultimately meet the same fate on conclusion of the trial and precious time of tribunal can be saved which is the spirit of the Act, ibid. ' Mr. Abid Zubairi, the learned counsel for petitioner in reply of the arguments on the 1st. Ground contended that the alleged boycott was made by the Jamat-e-Islami on the polling day and the same cannot be used as an estoppel against the petitioner from challenging the election for, firstly, he did not accept decision of the boycott and secondly, thee is no provision in the Act, ibid, which restrains such boycotting candidate from challenging the election of his constituency through such petition under the Act, ibid. With regard to finding of the Hon'ble. High Court in the Constitution Petition filed by the petitioner on the point of "aggrieved person" he contended that this findings was with reference to the scope of writ jurisdiction of the High Court under Article 199 of the Constitution of Pakistan which has no effect upon the legal right of the petitioner to file this election petition before this tribunal which is an ultimate forum to decide all the issues involved therein after due inquiry under the Act, ibid. ' On the 2nd Ground of the application he replied the arguments contending that these copies had been supplied to the respondent before filing the petition as well as after filing the same in this Tribunal, therefore this ground is baseless. Moreover he contended that this requirement as provided in Clause (1) of the Notification of the Election Commission of Pakistan No,1(7)/85-Cord dated 17th, March, 1985 pertaining to the procedure of the trial of Election Petitions is only directory in nature and in case of any violation there is no clause providing dismissal of the petition as consequence thereof. He has relied upon the case of Sardar Khan v. Amanullah Khan. Masood, SBLR 2011 Sindh 563 (2) Jamil Ahmed v. Mir Mehboob Ali 2003 YLR 3032, (3) Sardar Akhtar Ali v. Wasim Ahmed, 1992 CLC 1437 and (4) Dewan Kumar Willi v. Giaynoomal. 1999 CLC 441, (5) Rai Asghar Ali Khan v. RO and others, 1999 CLC 565, (6) Haji Amanullah Khan v. Shahzada Tariqullah, 1995 CLC 158 (163a) and (7) Ihsanul Haq v. Dr. Siddique Hussain, 1995 CLC 382 (386 para a andpara 7) and (388 para 9)
17. ' With regard to the. Arguments of learned counsel for respondent No,1 on the 3rd ground of the application regarding non verification of the petition and the documents annexed with it under Order VI Rule 15, C.P.C., he contended that petition as well as all the documents attached with it have been duly verified under the law, therefore the application is liable to be dismissed. He relied upon the cases of (1) S.M Ayoub v. Syed Yousuf Shah and others, PLD 1967 SC 486 (2) Eng. Zafar Iqbal Jhagra v. Khalil ur Rehman 2000 SCM R 250 and (3) Abdul Qadir v. Abdul Wassay, 2010 SCM R 1877, (4) Bashir Ahmed Bhabhan v. Shaukut Ali Rajpar PLD 2004 SC 570.
18. ' With regard to the arguments of the respondent No,1 on the 4th ground that the petitioner has not mentioned in detail the alleged corrupt practice or illegal practice, he contended that in the 1st instance these *details have been provided in the petition and secondly even if no such allegation has been leveled in the petition the same cannot be dismissed on this ground as held in Sheela B Charles v. Qaiser Hussain Saraya. 1996 CMR page 455.
19. ' The learned advocate for the petitioner denied the argument on the 5th, Ground as well as on the 6th. Ground of the application. He submitted that if the Returning Officer had given the notice to the contesting candidates before consolidation of result, the proceedings before him are illegal. He relied upon the case of Moulana Atta ur Rehman v. Alhajj Sardar Umer Farooq, PLD 2008 SC 663 and Asif Manzoor Mohal v. Muhammad Yar Mamoonka, 2007 CLC 368.
20. ' The respondent No, 24 Mr. Muhammad Atiq Qureshi, one of the contesting candidates has fully supported the arguments of the learned counsel for respondent No,1 and prayed for dismissal of the petition.
21. ' I have carefully considered the above arguments advanced by the learned counsel for the parties and of the respondent No, 24 in the light of the record and the case law cited by them. My findings on each of the grounds of the application and the reasons therefor are as under:-- The ground No,1 raised by the learned counsel for the respondent No,1 that since the petitioner being ticket-holder of Jamat-e-Islami.Had boycotted the election on the polling day, therefore he has no locus standi to file this petition appears to be misconceived because as rightly pointed by the learned counsel for petitioner that there is no provision in the Act ibid on the subject on the basis of which the petitioner can be non-suited. Any such finding would be whimsical and not in accordance with the law. Section 52 of the Act ibid clearly provides that no election shall be called in question except by the election petition made by the candidate for that election. This does not provide any such condition.
22. The observation regarding "aggrieved person" by the Hon'ble High Court in C.P. No,2205 of 2013 filed by the petitioner for the same reason cannot come in his way on the maintainability of this petition before this tribunal under the Act ibid. In these circumstances, I hold that the election petition filed by the petitioner cannot be dismissed on this ground.
23. On the ground No,2, that the petitioner had not supplied the copies of petition and its Annexures before filing the same before the Election Commission as required by Clause (1) of the Notification ibid. I am of the view that the petitioner who filed this petition before the Election Commission in term of paragraph No,1 of the Notification ibid which was then forwarded to this tribunal after the due process in terms of the procedure provided therein must have been examined the compliance of such requirement. The learned counsel for petitioner has produced receipts of the registered post through which the petitioner had sent the copies of the petition. These receipts though show that the petitioner had paid a sum of Rs,50, as postal charges for each envelope sent to the petitioner but there is nothing on record to say that this envelope did contain only the petition and not its Annexures. However, the Secretary, ECP did not take any objection and did not call for any proof regarding sending the copies of the election petition to the respondent along with its Annexures. Moreover, after receiving the petition by this tribunal it had issued separate notices to each respondent along with copies of the annexures before 27th July, 2013 on which date respondent No,1 and some other respondents filed their written statements. In my view, in this situation even if the respondent No,1had not received a copy of the petition and its Annexures as per requirement of Notification ibid the petition cannot be dismissed on this ground on this technical ground because the petitioner has not made default of any mandatory provision of the Act, ibid but of clause (1) of the Notification, ibid, which is directory in nature as held in the above referred reported cases relied upon by the learned Advocate for the petitioner. I may again reiterate that the mischief of dismissal of the petition for non compliance of section 54 with reference to service of a copy of the petition in term of subsection (b) of section 54 of the Act ibid, as provided in section 63 of the Act, ibid, relates to non-service of a copy of the petition personally or through registered post on each of such respondent. There is nothing in this provision that the copy of the petition with the Annexures is to be served before filing the petition. The cases relied upon by the learned Advocate for the respondent No,1 are related to different situation and cannot be relied upon.
24. With regard to the 3rd ground taken by the respondent No,1 for the dismissal of the petition for his alleged non-verification of the petition and the documents attached therewith, it may be appreciated that as a matter of fact the petitioner has verified his petition on solemn affirmation on 15th June, 2013 at Karachi before the Oath Commissioner Mr. Mukhtar Ahmed. The contention of the learned counsel for the respondent No,1 that this verification does not fulfil the requirement of law as provided in Order VI, Rule 15, C.P.C. Because the petitioner-being a Muslim was to verify the petition on Oath and not on solemn affirmation. This contention also appears to be devoid of any merit because such verification is perfectly in accordance with the law for, the main feature of verification i.e, either it should be ,Oath or on solemn affirmation, is available. In Abdul Salem Thahim v. Returning Officer and others 1998 CLC 250 the petition was also verified on solemn affirmation by the petitioner who was also Muslim but it was held that the verification on Oath is there and the objection as regard non-verification was dismissed.
25. ' Besides this, the petition has been signed by the petitioner and it contains the date and the place where the signature was appended. Similarly the petitioner has specifically verified each of the paragraphs of the petition as based on his personal knowledge and he believed them to be true and correct.
26. With regard to the documents attached with the petition, I found that each and every document has been verified by the petitioner at its bottom before the Oath Commissioner even though being public documents i.e, Statement of Counts, Result sheet and copies of the Order of the High Court etc which require no verification under Order VI Rule 15 as held in Bashir Ahmed Bhabhan v. Shukat Ali Rajpar PLD 2004 SC 570 or do not come within the definition of "Annex" or "Schedule" mentioned in section in 55(3) of the Act, ibid. As defined in the case of S.M Ayoub v. Syed Yousuf Shah and others, PLD 1967 SC 486 followed in many other cases including Zafar Iqbal Jhagra v. Khalil- urRehman 2000 SCM R 250 and Abdul Qadir v. Abdul Wassay, 2010 SCM R 1877 referred by the learned counsel for petitioner. The case law relied upon by the learned counsel for respondent No,1 relates to those cases in which either verification was not provided at all by the petitioner on the petition as well as the documents within the definition of "Annex" as provided in the S.M. Ayub case, supra or verification was made after filing the petition in term of the provision of law as indicated in the case of Sardar Zada Zafar Abbas, supra. In these circumstances, this ground is also not valid for the dismissal of the petition.
27. ' Now coming to the 4th ground of the application that the petitioner has not given full details of corrupt and illegal practice in term of section 55(1)(b) of the Act ibid. The contents of the petition were perused very carefully. The prayer of the petitioner is that the election of the respondent No, 1 be declared as null and void and he (the petitioner) be declared as returned candidate because as per copies of statements of count in respect of Polling Stations Nos.2, 18, 23, 29, 32, 55, 68, 71 and 77 of the constituency provided to his Polling agents he had obtained more votes than the respondent No, 1 but the Returning Officer during the consolidation proceeding which was held without notice to him and on the basis of forged Statement of Counts of these polling stations reduced the votes of the petitioner fraudulently and increased the votes of the respondent No, 1 by illegal practice. This shows that the petitioner has mentioned the details of corrupt practice as defined in section 83(1)(b) of the Act, ibid which provides that a person is guilty of illegal practice if he inter alia, obtains or procures or attempts to obtain or procure, the assistance of any person in the service of Pakistan to further or hinder the election of a candidate. There cannot be any cavil with regard to the fact that the Returning. Officer and the Presiding Officers are the persons in the service of Pakistan being public servants. The petitioner has provided details of such illegal practice as far as possible showing a prima facie case and the rest depends upon the evidence. It has been held in Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Loni, 1999 SCM R 284 that no candidate who had adequately pleaded the corrupt or illegal practice at his election, should unjustifiably be discouraged, by undue strictness in applying the law of evidence, from proving his case. It will be advantageous to reproduce the relevant para of the judgment as under:-- 'It seems to us that the allegations contained in the petition only remotely touched upon corrupt or illegal practices, since, skirting the legal requirements of sections 78 and 83 of the Representation of the People Act, 1976, little or no specific role was assigned to the successful candidate or his representatives for what, allegedly, had actually come to transpire at the polls.
28. The contesting candidate had, essentially, directed his attack on the failure of the election staff to comply with the provisions of the Act, possibly, attracting section 70(a) of the Act, something which, if established, could have occasioned the declaration of the election as a whole to be void.
29. Emphasis, however, was laid before the Tribunal from the side of the returned candidate that the allegations in the election petition were not specific and, therefore, no relief could be granted. The rule has been identified and summarized by. Muhammad Munir, C.J., in Muhammad Saeed v.
30. Election Petitions Tribunal, PLD 1975 SC (Pak.) 91 as follows:--- "The law relating to the trial of election -petitions, though volumes have been written on it, insofar as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars,- that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial,. The commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed. In the present case each and every one of these basis principles have been violated and as result of the trial held in contravention of these principles six returned candidates have been unseated. A clear case for the interposition of this Court therefore exists.
31. ' While the rule as to specific pleadings is invokable in election petitions, such, as discernible from section 55 read with sections 78 and 83 of the Act, is necessarily confined to corrupt or illegal practices, attributable to the candidates or their representatives. It also goes only as far as matters of detail, which the candidate, in the ordinary course, knew or should reasonably have known. Many an illegal or corrupt practices, within the knowledge of a candidate, due to an election being a closed door affair, may turn out only to be the tip of an iceberg, the bulk of the deviations coming to unfold during the trial of the election petition and duly established on record by evidence. Thus, once the candidate concerned had pleaded his case with all details of corrupt or illegal practices coining to his knowledge, he should be free, within the parameters fixed by his own pleadings, to resort to the powers of the Tribunal to come to his aid in virtue of the jurisdiction of a Civil Court residing in the Tribunal, as extended by section 64 of the Representation of the People Act, 1976. No candidate, who has adequately pleaded the corrupt or illegal practices at his election should unjustifiable be discouraged, by undue strictness in applying the law of evidence, from proving his case. As it is, holding free and fair elections is, a duty cast by law and Judges can be doing no more than discharging their obligations to the electorate by ensuring that no one is returned to an elected office without having duly and lawfully been elected. The rule pertaining to non-compliance of the applicable provisions of law by the officers and staff conducting an election figure at yet another plane. Indeed where, in a constituency, there is a general failure of the election machinery, involving non-compliance with the provisions of the Act and the Rules the allegations can be only as much detailed as is plausible in the given circumstances of a case. To that extent, keeping in view the brevity and preciseness enjoined by section 55(I)(a), the petition seems to have satisfied such requirements as there may have been."
32. ' The above dicta laid down by the apex court is sufficient to hold that since the petition has prima facie been able to disclose the illegal practice committed by the respondent No 1 within the purview of section 83(1)(b) of the Act, ibid, therefore, he has substantially complied with the provision of section 55(1)(b) of the Act, ibid. The ground has therefore no merit and rejected.
33. ' Coming to the 5th and the 6th Grounds of the application regarding the alleged contradiction in the relief claimed in different clauses of the prayer in the petition and the alleged none-service of notice on the petitioner before consolidation of result by the Retuning Officer it is suffice to hold that these grounds can only be decided on merits on conclusion of the trial.
34. ' The upshot of the above discussion and the findings is that the application is devoid of any merit and therefore entails dismissal. Order accordingly.