1. ' DR. ZAFAR AHMED KHAN SHERWANI (ELECTION TRIBUNAL).---This order will dispose of the subjected application moved by the learned counsel for respondent No,37 in the Election Petition praying therein that the same may be dismissed on the following grounds namely:- ' that the petitioner has failed to comply with mandatory provisions of section 53(3) of the Representation of the People Act, 1976 by not attesting the petition and documents annexed therewith in accordance with Order VI Rule 15, C.P.C., ' that the petitioner has failed to supply the copies of election petition and the annexures to the respondents before filing the Election Petition with the Secretary Election Commission as required by Clause 1 of the Notification No,F.1(7)/85-Cord, dated 16-3-1985 issued by the Election Commission, and that the petitioner has failed to file the list of witnesses and affidavits-in- evidence of the witnesses along with the petition as required again by the Clause 1, supra.
2. ' Brief facts leading to this application are that the petitioner who was one of the contesting candidates in the general election from constituency, PS-128 Karachi against his 38 peers held on 11-5-2013 but remained un-returned as compared to the respondent No,37, the returned candidate.
3. He resorted to challenge the election through this petition under sections 52, 53, 54 and 55 of the Act ibid. He has alleged in the petition that on the polling day at Dawood Chorangi two bombs exploded causing deaths of several innocent persons. The activists of terrorist groups attacked the polling stations at Malir in the constituency; the terrorist groups illegally and unlawfully occupied the polling stations over there and started cast fake and bogus votes. The Security Agencies were the silent spectators of the situation. Similarly at 4 polling stations at the UC Office Muslimabad there was hoax call of bomb on account of which the voters ran away. The petitioner moved different applications to the Provincial Election Commissioner for re-poling at the 6 polling stations where the rigging was held but his request was disallowed. Hence this petition praying, inter alia, to declare the result of constituency null and void and to conduct re-polling at all the polling stations of the constituency.
4. ' The respondent No,37 in his written statement has denied all the allegations and contended that the petitioner in connivance with the respondent No,22 had filed C.P. No,D-2$68 of 2013 in the Sindh High Court, Karachi to scandalize and defame the ECP and their subordinates and to victimize him to achieve ulterior motives malicious designs on the basis of concocted and fabricated facts. He pleaded that the petitioner obtained 5507 Votes whereas he obtained 23496 Votes on account of free and fair election during which the voters used their right of vote peacefully without fear and any hindrance and obstruction, therefore, the petition is liable to be dismisied.
5. ' I have heard the learned Counsel for the parties and perused the record very carefully.
6. ' The learned counsel for respondent No,37 contended elaborating the first ground of the application that the petitioner has failed to verify the petition as well as the documents annexed therewith in compliance of mandatory provisions of section 55(3) of the Act ibid, therefore, the Petition is liable to be dismissed under section 63 of the Act ibid. He relied upon the cases Lt. Col. (Retd.) J. ABEL v. Emmanuel Zafar and others, 1987 MLD 1372, Khawaja Muhammad Awan v. Alim Adil and others, 1998 CLC 272, Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others, PLD 2005 SC 600, Ch. Muhammad Ashraf v. Rana Tariq Javed and others, 2007 SCMR 34, Amar Lal v. Ishwar Das and others, 2007 SCMR 1776, Malik Umar Aslam v. Sumera Malik and others, PLD 2007 SC 362, Imam Ali Samejo v. Ghulam Hyder Samejo and others, 2009 CLC 771, Dost Muhammad Rahimoon v.Abdur Razzak Rahimoon and others, 2009 CLC 795, Moulvi Abdul Qadir v. Moulvi Abdul Wassay and others, 2010 SCMR 1877, Eng. Pesumal Ukrani v. Arbab Zulfiqar Ali and others, 2010 CLC 518, Shaikh All-ud- Din v. Election Tribunal, Lahore, 2009 YLR 1930, and Mst. Jannat Bibi v. Saras Khan and others, 2011 SCMR 1460.
7. ' On the second ground with regard to non-supply of the copies of the petition and documents to the Respondents before filing the petition with the Secretary, EC? He contended that this default is also fatal and calls for dismissal of the petition at the initial stage for non-compliance of the mandatory Clause 1,of the Notification No,F1 (7)/85-Cord, dated 16-3-1985 issued by the ECP.
8. ' On the third ground of the application he contended that the petitioner failed to file the list of witnesses and the affidavit-in-evidence along with petition as per requirement of the same Clause 1 of the Notification, ibid. Therefore, the petition is also liable to dismissed. He relied upon Peter John Sahotra v. Returning Officer and others 1995 CLC 394.
9. ' In reply of the above arguments the learned counsel for the petitioner contended that the petitioner has verified the petition as per requirements of section 53(3) of the Act, ibid, therefore, the same cannot be dismissed. With regard to the verification of the documents attached with the petition, he contended that these documents are either copies of the public documents in support of the allegations made in the petition or cuttings of Newspapers in support of the allegations made in the petition, therefore, the same are not legally required to be verified in terms of Order VI Rule 15, C.P.C. As provided under section 55(3) of the Act, ibid. ' On the second ground of the application he contended that the petition as well as its documents had been supplied to the respondents before submitting the petition to the Election Commissioner and produced such receipts.
10. ' On the third ground of the application he contended that although he had not filed the list of the witnesses and the affidavits in evidence with the petition, for, he had met with a Road accident and was unable to move physically and prepare the same. For condonation of this short coming, he has filed an application, C.M.A. No,22 of 2013 for extension of time to file the same and the respondent No,37 has been issued notice thereon. He contended that if these documents had not been filed along with petition he could not be unsuited on technical grounds as held in the case of Mst. Jannat Bibi v. Saras Khan, 2011 SCMR page 1460.
11. ' I have carefully considered the above arguments in the light of the record and the case-law cited at the Bar.
12. The first part of the first ground of the application for dismissal of the petition is non-compliance of section 55(3) of the Act, ibid by the petitioner as agitated by the learned Advocate for the respondent No,1 is in respect of non-verification of the petition and is to be looked into very seriously in view of the mandatory nature of the provision. Section 63 of the Act, ibid this provides a direction to the Tribunal for the dismissal of the Election Petition as a consequence of non- compliance of same. The case-law mentioned above which has been relied upon by the learned Counsel for the respondent No, 37 has made it abundantly clear about the mandatory nature of the provision. In these circumstances there cannot be any doubt that in case the petition has not been verified in terms of Order VI, Rule 15, C.P.C. The same entails dismissal without any loss of time at the threshold of the Petition.
13. ' The Petition has been verified at its bottom by the petitioner as under:-- "I Sultan Khan Johri son of Haji Hawaldar Khan, Muslim, Adult, R/O Karachi, the petitioner in the above matter and am well conversant with the facts of the case and at Karachi do hereby on oath and verify the entire of the above paras, say the same are true to the best of my knowledge and belief"
14. ' The requisites of a valid verification, according to Rule 15 of Order VI of the Code of Civil Procedure are:--
(a) should be at the foot of the election petition on oath or solemn affirmation;
(b) 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;
(c) the verification shall be signed by person making it.
15. ' The verification reproduced above fulfills all the above prerequisites, for the verification is at the foot of the Petition is on oath, the petitioner, has specified by reference to all the paragraphs of the petition to be true to the best of his knowledge and belief which has been signed by the petitioner.
16. Besides this, the Oath has been taken by the petitioner at Karachi before the Oath commissioner having been authorized in this regard.
17. ' The above verification is strictly in accordance of Order VI, Rule 15, C.P.C. And therefore compliance of section 55(3) of the Act, ibid, had been made by the petitioner at the time of filing the same. This ground is therefore is misconceived and rejected With regard to the second leg of this ground i,e, verification of the documents attached with the petition in compliance of section 53(3) of the Act, ibid there cannot be any cavil to the proposition that if these are "Annex" or "Schedule" as provided in the provision, ibid, the same are also to be verified in the same form as the petition itself. The words "Annex" and "Schedule" used in the Provision of the Act, ibid, has been defined by the Hon'ble Supreme Court in S.M. Ayoub v. Syed Yousuf Shah and others, PLD 1967 SC page 486(P-492)(P-493) in the following manner: "This brings us to the second question, arising for decision in the case, namely, the effect of the omission of the petitioner appellant to subscribe his signatures or verification to the documents annexed to the petition. The learned Judges of the High Court commented adversely on the finding of the Tribunal that none of these documents was a "schedule or annex," within the meaning of subsection (3) of section 59 of the Act, such as would require to be signed and verified in the manner laid down in the Code of Civil Procedure, under the mandate of subsection (3) of section 59 of the Act. In this connection, they referred to the definition of "annex" as given in the Law Lexicon. The word "Annex" is defined as follows in that book:- "Annex" is to attach at the end, subjoin, affix, as to annex a codicil to a will. In law it implies physical connection which, however, is often dispensed with, when not reasonably practicable. To unite, as a smaller thing to a greater; join; make an integral part of: as, to annex a conquered province to a kingdom."
18. ' By "schedule or annex" mentioned in subsection (3) of section 59 of the Act, is apparently meant such a schedule and annexure as either makes additional allegations 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 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 of "schedule or annex", 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 as substantive grounds or expansion of those grounds."
19. ' It is essential to point out that the provisions of sections 59 and 67 of the National and Provincial Assemblies (Election) Act, 1964 (since repealed is pari materia to the provisions of sections 55 and 63 of the Act, ibid. ' The interpretation in S.M Ayoub case, supra, has been followed by the Hon'ble Supreme Court in other cases also e.g. In Sardarzada Zafar Abbas v. Syed Hassan Murtaza and others, PLD 2005 SC 600, lqbal Zafar Jhgra v. Syed Hassan Murtaza, PLD 2005 SC 250, Ch. Muhammad Ashraf v. Rana Tariq Javed and others, 2007 SCMR 34, Amar Lal v. Ishwar Das and others, 2007 SCMR 1776, Malik Umar Aslam v. Sumera Malik and others PLD 2007 SC 362, Moulvi Abdul Qadir v. Moulvi Abdul Wassay and others, 2010 SCMR 1877.
20. ' Now the Tribunal proceeds to examine whether the documents attached with this petition qualify the words "Annex" and "Schedule" in the light of the above observation of the apex court, and if so, whether the same have been verified by the petitioner as required by the law.
21. The petitioner has produced with his petition different documents. None of them has been verified by the petitioner. These documents comprise record of the Returning Officer in respect of the constituency, Newspapers Cuttings showing the News Item published with regard to the incident of Bomb explosion at ANP Election Camp at Qaidabad, Karachi and other places on the Election Day and with regard to rejection of results by different persons on the ground of mass rigging etc. These documents are therefore, either Public Documents within the definition as provided in Article 55 of the Qanun-e-Shahadat Order, 1984 and therefore exempted from such verification (as held in Bashir Ahmed Bhanbhan v. Shoukat Ali Rajpau, PLD 2004 SC 570) or only supporting the allegations made in the petition on the same subject, therefore do not come within the definition of "document" or "schedule" within the scope of documents, therefore need no verification. However there is not a single document attached with the petition which provides substantive grounds or expansion of those grounds which have been mentioned in the petition."
22. ' In view of the above situation, it is cleared that the petitioner has not violated the provision of section 55(3) of the Act ibid. The case-law relied upon learned counsel for petitioner is altogether on different facts and situation because in the case in which the petition was dismissed. The petitioner has failed to comply with the provision.
23. With regard to second ground of the application to dismiss the Petition that the petitioner has not supplied the copies of petition and document to the respondent No,37 before filing the same before Election. Commission. In this regard, it will be suffice to mention that since the petitioner has produced the copies of the postal receipt to the which copies of the petition along with annexure sent to the respondents and on the basis of the same the ECP processed the Election Petition in compliance of the Notification supra, and the petition was admitted which was later on transferred to this tribunal. After receipt of the petition by this tribunal the parties were again issued the notices to the respondents including Respondent No,37. He did not file any such application before 05-8- 2013 in which such plea was taken. In this situation, I am of the view that this plea appears to be afterthought and cannot be a valid ground for dismissal of the Petition.
24. ' With regard to third ground that the petitioner has not filed list of witness and the affidavit-in- evidence along with petition, therefore he has violated the provision of the Notification, supra, and the Petition is liable to be dismissed, it will be sufficed to mention that in the first instance by now, it is the very much clear position with regard to the Notification supra, that none of its clauses are mandatory character but directory and therefore if a violation thereof has been made its consequences cannot be fatal to extent of dismissal of the Petition. In this regard, reliance is placed on case of Ehsanullah Reeki v. Abdul Qadir Baloch PLD 2009 Quetta 16 (DB) in which after considering plethora of case-law on the subject it has been held in unequivocal terms in paragraph 8 of the judgment that- "15. The survey of above discussed judgments would indicate that there is conflict of view with regard to mandatory nature of section 62 of the Act, 1976 read with Notification dated 16-3-1985.
25. After having gone through the above referred judgments as well as relevant provisions of law we would respectfully endorse the view wherein it has been observed that provisions of section 62 of the Act, 1976 read with Notification dated 16-3-1985 are directory in nature; because no penal consequences have been provided in the Act for its noncompliance. It may be noted that penal consequences entailing in dismissal of election petition have been provided in section 63 of the Act, 1976 which envisages that Tribunal shall dismiss the petition, if the provisions of sections 54 or 55 have not been complied with or if the petitioner fails to make further deposit required under subsection (4) of section 62 of the Act, 1976. Omission of section 62(1) from the above said provisions clearly indicates the intent of legislature, otherwise section 62(1) could have conveniently been added along with other provisions, noncompliance whereof empowers the Tribunal to dismiss the petition. Even otherwise; the notification in itself empowers Tribunal by virtue of para No,6 to examine any witness whose name is not mentioned in petition, therefore, in our considered view the learned Tribunal neither acted illegally nor in excess of jurisdiction whereby it allowed respondent No, 1 to produce the witnesses mentioned in the list filed after framing of issues".
26. ' I will also refer a judgment of the Election Tribunal Sindh DEWAN KUMAR MALH-I v. GIYANOOMAL and 83 others 1999 CLC 441 in which it has been held as under:- "Therefore,. In my view even if there is violation of the procedure as laid down by this Notification, which is a matter of procedure, the election petition will not be hit by provisions of section 63 of the Representation of the People Act, which is the only provision for dismissal of the petition under the Act during the trial before passing final judgment on the same. No doubt, the Notification in question is sub-legislation of the commission, as required by section 62, but since it does not carry the penal consequences in shape of dismissal of election petition for noncompliance of such procedure as laid down by this Notification, I do not think that an election petition could be dismissed at any stage before passing a final judgment, on account of violation of a provision of this Notification."
27. ' Similarly in another case the Election Tribunal Sindh in JAMIL AHMED v. Mir MEHBOOB ALI, 2003 YLR 303 in which same point was under consideration it has been held as under:-- "Obviously, the procedure laid down by the Election Commission under section 62 of the Act is primarily meant for expeditious adjudication of the Election Petitions. Noncompliance of procedural requirements such as non-filing of affidavit and the documents has not been made a ground for dismissal of an Election Petition as even the provisions or the notification as pointed out by the learned counsel for respondent No, 1 are apparently directory in nature, having no consequential provision, thus will not render the Election Petition liable to dismissal."
28. This ratio laid down by the Hon'ble High Court and the Election Tribunals Sindh it has made very much clear that if petitioner has not filed the list of witnesses and affidavit-in-evidence, still the petition cannot be dismissed by this tribunal on his sole ground. The case relied upon by the learned counsel for respondent No,37 is on different point. It was also important to mention here that the petitioner has already filed his application for extension time to submit the list of witnesses and affidavit-in-evidence of those witnesses and the same is pending for adjudication on merit and therefore, the petitioner cannot be non-suited prior to any decision on the same. The upshot of the above discussion is that the application has no merit and the same is, therefore, dismissed. #TBS . #TBE