1. ' GHULAM MUSTAFA MUGHAL, CJ. --- This petition is filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 whereby order passed by the learned Election Tribunal dated 04.07.2013 has been challenged for having been passed without lawful authority.
2. ' Precise facts forming background of the captioned petition are that petitioner, herein, and respondent No, 2 contested election to the seat of Azad Jammu and Kashmir Legislative Assembly from constituency No, LA-XVI, Bagh-IV (Haveli). The petitioner was notified as returned candidate from the said constituency vide Notification dated 21.07.2011. Respondent No, 2, herein called into question the said notification of petitioner by filing election petition under Section 49 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The petitioner submitted his written statement. The learned Election Tribunal framed issues on 25.04.2012 and directed the parties to submit the list of witnesses. Fasial Mumtaz Rathore, petitioner herein, submitted an application on 05.11.2012 before the Election Tribunal praying therein that the arguments regarding maintainability of election petition may be heard because respondent No, 2, herein, has not complied with the provisions of Sections 50 and 51 of the AJ&K Legislative Assembly (Elections)
3. Ordinance and noncompliance of the said provisions entails dismissal of petition under Section 59 of the Ordinance. The learned Election Tribunal after hearing arguments on this legal issue dismissed the application vide order dated 04.07.2013. Against the said order the instant writ petition has been filed.
4. ' Raja Muhammad Hanif Khan, the learned Advocate while referring to Section 59 of the Election Ordinance submitted that Tribunal was bound to dismiss the election petition for non-compliance of Sections 50 and 51 of the Ordinance because respondent No, 2, herein had not verified the petition and annexures annexed thereto on oath. The learned Advocate contended that even the full particulars of a corrupt and illegal practice and name of the persons who have committed such corrupt practice have not been mentioned in the petition, hence, it was liable to be dismissed and Election Tribunal was not competent to proceed further on an incompetent petition. The learned Advocate argued that verification of the election petition as well as annexures annexed therewith has to be made in accordance with Order VI, Rule 15 of the C.P.C. And such verification is liable to be attested under Section 7 of the Oaths Act, 1873 read with Section 139 of C.P.C. And Rules 88 and 90 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984. He submitted that as the petitioner has neither got the verification attested by the Oath Commissioner nor annexures appended therewith have been verified by him, therefore, petition was liable to be dismissed and assumption of jurisdiction by the learned Election Tribunal on an incompetent petition was without lawful authority and unwarranted. In support of his submissions, the learned Advocate placed reliance on the following case-law:---
(1) Malik Umar Aslam v. Sumera Malik and another (PLD 2007 SC 362);
(2) Engineer Jameel Ahmed Malik v. Shaukat Aziz and 06 others (2007 CLC 1192);
(3) Lal Shakeel-ur-Rehman v. Dr. Muhammad Ashraf Chohan and 10 others (2009 CLC 1302);
(4) Dr. Gul Karim Khan v. Jawaz Hussain and others (2009 CLC 1337);
(5) Muhammad Mansha Sandhu v. Farooq Yousaf Ghurki and 8 others (2010 YLR 1552);
(6) Muhammad Rafique Nayyar v. Raja Nisar Ahmed Khan and 9 others (PLJ 2003 SC (AJK) 145);
(7) Muhammad Khan v. Zarina Begum (PLD 1975 AJK 27);
(8) Engineer Iqbal Zafar Jhagra and others v. Khalil-ur-Rehman and 4 others (2000 SCM R 250).
5. ' In the first case it was observed as under:--- "It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the Court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. Without calling for an affidavit in ex parte proof. We believe that there is no point to address ourselves on this question namely if verification on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of Almighty Allah if the truth is not spoken. Under Section 6 of the Oaths Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorized person. Admittedly in instant case, verification has not made on oath before an authorized person, therefore, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly."
6. ' In Engineer Jameel Ahmed Malik's case while relying upon AIR 2000 SC 388 and lqbal Zafar Jhagra's case (2000 SCM R 250) it was observed that "the trend of judicial approach reflected from the above is that apparently even sma ll and trivial deviations from procedure and form prescribed by the election laws has resulted in dismissal of the election petitions."
7. ' In Lala Shakeel-ur-Rehman's case referred to herein above the arguments of the petitioner therein that provisions of Section 53(3) of Representation of the People Act, 1976 being enabling have to be read alongwith the provisions of Order 6, Rule 15, C.P.C., was repelled and it was held that "Code of Civil Procedure is a general law and Order VI, Rule 15, C.P.C. Is a procedural provision, while Section 63 and Section 55(3) of the Representation of the People Act, 1976, are substantive provisions and part of a special stature, which clearly means that they are to be construed strictly and adhered to, especially when a penalty has been incorporated, thus, power of the Tribunal too is limited and it is beyond its authority to condone such lapse, if any, thus, deviation is to be visited with a penalty".
8. ' In Dr. Gul Karim Khan's case the same principle was followed.
9. ' In Muhammad Mansha Sandhu's case the election petition was dismissed for non-compliance of the legal requirements while taking strict view.
10. ' In Muhammad Khan's case a division bench of this Court observed as under:- "The decision of the Pakistan Supreme Court should have the same force in Azad Kashmir as they have in Pakistan. Although Azad Kashmir is not constitutionally a part of Pakistan as yet, it is practically as good as Pakistan. Defence, Foreign Affairs, Communications and Currency are being administered by Pakistan; there are no custom barriers whatsoever; deficit in normal budget and funds for development are streamed from Pakistan; legal systems in force are identical and what is more, both have the same ultimate goal, namely, creation of a socio-economic order wherein Muslims can order their lives in accordance with the basic tenets of Islam. Besides the Movement which brought Azad Kashmir into being aims at bringing about the State's accession to Pakistan."
11. ' The learned Advocate further submitted that as respondent No, 2, herein has not followed the statutory requirement of Sections 50 and 51 of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, which was sine qua non for assumption of jurisdiction by the Election Tribunal, hence, writ of prohibition may be issued against the Election Tribunal. In this regard the learned Advocate placed reliance on the following case-law:
(1) Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 02 others [PLD 1971 SC 61];
(2) 2009 YLR 1930;
(3) Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others [2012 SCR 213].
12. ' In Muhammad Younas Tahir's case it has been ruled that when a particular method for performance of an act was prescribed under an Act or rules, then such act must be performed according to that particular method or not at all.
13. ' M/s. Kh. Muhammad Naseem and Ch. Ghulam Nabi, the learned Advocates representing the respondents, submitted that respondent No, 2, herein, has verified the Election petition by filing separate affidavit, therefore, relevant rules have been complied with in letter and spirit and even otherwise this non-compliance is not fatal and the learned Tribunal has rightly repelled the objection and assumed the jurisdiction on the election petition filed by the private respondent, herein. In support of their submissions, the learned Advocates placed reliance on the following case-law:
(1) S.M. Ayub v. Syed Yusaf Shah and others (PLD 1967 SC 486);
(2) Engineer lqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others [2000 SCM R 250];
(3) Abdul Nasir and another v. Election Tribunal, Toba Tek Singh and others [2004 SCM R 602];
(4) M. Akhtar Cheema v. Additional District Judge and others [2007 M LD 153];
(5) Writ petition titled Ch. Arshad Hussain v. Rukhsar Ahmed and others decided on 19.11.2009;
(6) Writ petition titled Dr. Muhammad Najeeb Naqi Khan v. Election Tribunal and others decided on 02.07.2012.
14. ' In the first case relied upon by Kh. Muhammad Naseem, the learned Advocate it was ruled that due to failure of verification on the annexures annexed to the petition the same was not liable to be dismissed and defect if any is curable by amending the petition. This authority has been given prior to the amendment introduced in Order VI, Rule 15, C.P.C. Through Law Reforms Ordinance and has not been followed by larger bench of the apex Court of Pakistan in Engineer Iqbal Zafar Jhagra's case (ibid) in which it was held as under:--- "Sub-section (3) of Section 36 (ibid) clearly requires that every petition and every Schedule or 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 6, 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 authorised in that behalf. It is an admitted position that the petition filed by Syed Ifitkhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorised 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 the view that these reasons do not suffer from any legal infirmity."
15. ' In Abdul Nasir's case (2004 SCM R 602) the argument of the learned counsel for the petitioner that election petition was liable to be dismissed on the ground that annexures appended with the same were not verified as required by law was repelled and observed that mere defect regarding verification of election petition would not render the same unmaintainable.
16. ' In M. Akhtar Cheema's case the same principle has been approved.
17. ' In Civil Appeal No, 90/06 titled Ch. Arshad Hussain v. Rukhsar Ahmed and others decided on 19.11.2009 referred to herein above the apex Court observed as under:- "We have very carefully examined the verifications made at the foot of both the election petitions filed by the appellants and found that the substantial compliance is made with the requirements of rule 15 of Order VI of the Code of Civil Procedure. The averments made in the petitions are verified under the signatures of the appellants. Besides the verification at the foot of the petitions, an affidavit duly verified by the Oath Commissioner is also attached with the petitions swearing that the contents accompanying the petition are correct to the best of knowledge and belief of the appellants and nothing has been concealed. The purpose of the verification is that the person filing the pleadings must take upon him the responsibility of the truth of the pleadings or averments placed before the Tribunal. This has to be substantively considered, not mechanically. Had the law- makers visualized the mechanical compliance with the provision of the Code of Civil Procedure, a proforma would have been provided for the purpose, as visualized by schedule attached with Order LII of the Civil Procedure Code, in relation to the relevant rules. Similarly a penal provision like Section 59 of the Ordinance would have been provided for not complying with the rules of the Code, in case of verification. A balance has to be struck between Order VI, rule 15 and Sections 59 and 60 of the Ordinance. The Code does not provide any penalty for non-compliance and substantial compliance is made in verification, hence the penal provisions shall not be strictly applicable.
18. ' The Code of Civil Procedure is made applicable to the proceedings of the Tribunal and it is a Civil Court under Section 60 of the Ordinance and has to try the petition as a suit under Section 59(2) of the Ordinance. The Ordinance also authorises amendment in the petition under Section 59(3) which in fact means that the defects of the formal nature can be cured by amendment even at a later stage or ensuring a fair and effective trial and for determining the real questions in issue, except raising new grounds."
19. ' In Dr. Najeeb Naqi Khan's case it was observed by this Court as under:--- "The petitioner has though filed a separate affidavit alongwith the petition but has specifically affirmed the contents of the petition. Though affidavit is on a separate leaf but it refers to the contents of election petition and same has been attested by the Oath Commissioner, therefore, we have come to the conclusion that there is no illegality and defect in the order passed by the learned Election Tribunal and the same is hereby approved."
20. ' We have perused the record with utmost care and given our anxious thought to the case-law relied upon by the learned Advocates for the parties.
21. ' The objection of the petitioner regarding non-verification of the election petition as well as annexures on oath has been rejected by the learned Election Tribunal, while observing as under:--- "So far as, the issue of verification of petition is concerned, it may be noted that the petitioner himself has signed the verification on foot of election petition and has verified all the contents of the petition as correct on the basis of his knowledge. Subparagraphs of the petition have also been verified on oath by the petitioner himself. The case-law referred to on behalf of the non-petitioners does not specify any situation where the petition was verified on oath by the petitioner himself but was not attested by the Oath Commissioner. The verification on oath in the instant case obviously fulfills requirements of Order 6, Rule 15 of the C.P.C. And the issue has already been resolved by the Hon'ble High Court of AJK in writ petition filed by Dr. Muhammad Najeeb Naqi, Hon'ble Chief Justice of High Court of AJK has discussed at length the provisions of Sections 50, 51(3) and 52 of Election Ordinance, 1970. The provision contained by Order 6, Rule 15 of C.P.C. Has also been discussed at length and Hon'ble High Court after taking into consideration, the case-law referred to on behalf of the parties has concluded that verification of the petition fulfils requirement of the CPC, wherein a petition is not verified at its foot but a separate affidavit fulfills the requirements of verification. In the instant case, the petition has been verified at its foot as per requirements of Order 6, Rule 15, C.P.C. And I am not convinced that non-attestation of verification by an Oath Commissioner can render such verification invalid. The objection to the extent of non-verification or illegal verification is, thus, repelled."
22. ' Before attending the controversy, we deem it necessary to reproduce verification made on the petition by respondent herein, as well as contents of the affidavit filed by him separately which is available at page 108 of the file of the learned Election Tribunal as under:- "VERI FICATION AT MUZAFFARABAD ON 24.08.2011.
23. ' I, Ch. Muhammad Aziz son of Ch. Meer Muhammad, do hereby verify on oath:-
(I) that the contents of paras 1 to 6 alongwith sub-paras (i) to (x) of election petition are correct and I verify the same on the basis of my own knowledge.
(ii) The (i) to (x) sub-paragraphs are also verified on the basis of information received by me which information I believe to be true and correct.
24. ' Chaudhry Muhammad Aziz.
25. ' Petitioner."
26. "AFFIDAVIT IN SUPPORT OF CONTENTS OF ELECTION PETITION.
27. ' I, Chaudhry Muhammad Aziz son of Mir Muhammad, do hereby solemnly affirm and declare on oath as under:---
(1) That the contents of the election petition from paras 1 to 6 alongwith sub-paras (i) to (x) alongwith the prayer clause are true and correct to the best of my knowledge and belief.
(2) That the contents of this affidavit are also true and correct. Nothing has been concealed or hidden.
28. ' Deponent ' MUZAFFARABAD Ch. Muhammad Aziz"
29. ' DATED: 25.08.2011 ' The contention of Raja Muhammad Hanif Khan that petitioner/respondent herein, has not verified annexures appended with the petition and the verification made at the foot of the election petition is also not in line with the provisions of Order VI, Rule 15, C.P.C. Because the same has not been attested by the Oath Commissioner has a substance. It may be stated that a specific proforma has been provided in the rules for drafting affidavit which has to be used in the Court for the purpose of evidence under Rule 88 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984.
30. For proper appreciation of the matter, Rules 88, 89 and 90 are reproduced as under:- "88. An affidavit intended for use in the Court may be sworn before any authority mentioned in Section 139 of the Code or before any Officer of the Court, or before the Presiding Officer of any Court or before a Magistrate or a Sub-Registrar or before an Oath Commissioner, appointed under these rules.
89. (1) All documents referred to in the affidavits shall be referred to as Annexures and shall be marked in the same manner as exhibits and shall bear a certificate signed by the Officer before whom the affidavit is sworn in the following form, namely:--- "This is the Annexure marked Exhibit A or Exhibit I (as the case may be) referred to in affidavit of A son of B resident of C sworn or confirmed before me this---day of----------------- ' Signed (CD)
31. Designation".
(2) When the affidavit is sworn by the appellant or applicant the annexures referred to therein shall be marked in numerical order and when the affidavit is sworn by the respondent or now-applicant the annexures therewith shall be marked in alphabetical order.
90. (1) The officer or authority before whom an affidavit is made shall state the day when and the place where the same is sworn and sign his name and designation at the end in the following form: "Sworn (or solemnly affirmed) at ............................................................... On this day of before me by who is identified by. Or who is personally know to me.
32. ' Signed (CD)
33. Designation.
34. ' Signature or the Thumb- Signature of the Thumb- ' Impression of the deponent Impression of the Identifying Witness.
(2) Where the deponent is a Parda Nashin lady, she shall be identified by a person to whom she is known and that person shall prove the identification by a separate affidavit.
(3) The deponent, if not personally known to the officer or person whom the affidavit is sworn, shall be identified by some person known to the officer or person, and the officer or person shall specify at the foot of the affidavit the name and description of the person identifying the declarant.
(4) If the declarant is not known to the officer or person before whom the affidavit is made and cannot be identified as in sub-rule (3) above, the impression of the thumb of the declarant's left hand shall be taken at the foot of the last page of the affidavit and the following certificate shall be added to it, namely:- "Certified that this is the impression of the thumb of the left hand of the declarant of the above affidavit.
35. ' Signed (AB) Designation."
(5) if the declarant is ignorant of the language in which the affidavit is written, or appears to be illiterate or blind, the officer or person before whom it is made shall cause the affidavit to be read out and explained to the person in his presence in the language which the declarant understands.
36. When the affidavit has been explained to the declarant and admitted by him to be correct he shall be sworn or affirmed in the usual manner and the following certificate shall be recorded at the foot of the affidavit by the person before whom it is sworn or affirmed:--- "Sworn (or solemnly affirmed) at . On this day of before me. The contents of this affidavit and the exhibits (if any) referred to therein have been first truly audibly read over to the declarant in he being acquainted with (or being blind) in . Who appeared perfectly to understand the same and made his mark thereof (or signed his name) in my presence.
37. ' Signature or thumb-impression Signed (AB) ' of the deponent. Designation.
(6) All alterations, erasures and interlineations, if any, shall, before the affidavit is sworn and affirmed, be authenticated by the initials of the officer or person before whom the affidavit is sworn, and no affidavit having any alterations, erasures or interlineations not so authenticated shall, expect with the leave of the Court, be filed or made use of in any manner."
38. ' According to the above reproduced rules the contents of the affidavit as well as annexures appended therewith shall be verified by the person in the manner stated therein. Such an affidavit has to be attested by an officer authorized in this behalf 'under Section 7 of the Oaths Act. The verification reproduced herein above as well as affidavit filed on behalf of respondent herein, does not fulfill the required conditions because the verification on the election petition has not been attested by the Oath Commissioner. Moreover, the petitioner has also not verified the annexures appended with the petition. The affidavit though is on a separate leaf but is silent about the annexures and has not been written in an approved manner as was required by Order VI, Rule 15, C.P.C. And Rules 88, 89 and 90 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984. In Sardarzada Zaffar Abbas's case (PLD 2005 SC 600) the provisions contained in Sections 55(3), 54 and 63(a) of the Representation of People Act, 1976 which is in pari meteria of the provisions of Section 59 of the Azad Jammu & Kashmir Election Ordinance, 1970 were considered by the apex Court of Pakistan. At page 603 in paras 3 & 4 of the report it was observed as under:--- "The verification on oath of the contents of an election petition, is provided under Section 55(3) of the Representation of the People Act of 1976 (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908. The Code contained such provision under Order VI, rule 15, which requires the verification of pleadings on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered.
4. So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under Section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of Sections 54 and 55 of the Act have not been complied with. Similar view was taken by. This Court in Iqbal Zafar Jhagra's case (2000 SCM R 250(n), though related to the Senate elections. It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory."
39. ' The same principle has been reiterated in Malik Umar Aslam's case (PLD 2007 SC 362), relevant observation has been reproduced in an earlier part of the judgment.
40. ' The same view has been approved in Imam Ali Samejo's case (2009 CLC 771) wherein at page 774 it was observed as under:--- "Thus, if rule 15 of Order VI, C.P.C. And sub-section (3) of Section 55 of the Act are seen in juxtaposition, it would emerge that a petitioner should sign each and every document annexed by him with his petition on oath or solemn affirmation at the foot and also state the date on which and the place at which it was signed. None of these requirements have been fulfilled by the petitioner."
41. ' The contention of Kh. Muhammad Naseem & Ch. Ghulam Nabi, the learned Advocates for respondent No, 2 that non-verification of the election petition as well as annexures appended thereto is not fatal in view of the judgment of the apex Court rendered in Ch. Arshad Hussain's case is devoid of any force. With all humbleness and humility we would like to observe that the controversy raised in the case in hand has not been raised before the apex Court in Ch. Arshad Hussain's case and has also not been considered from that angle. The judgment reported as Engineer Jameel Ahmad Malik v. Shaukat Aziz and 6 others (2007 CLC 1192) has not been referred to their lordships in the aforesaid case wherein at page 1201 of the report observed as under:- "It needs no reiteration that whenever there is any uncertainty or obscurity about a legal position qua any particular proposition, the view expressed by a larger bench prevails and when the learned Benches are of equal strength then the latest expression by the Bench holds the field. Thus, to the present case the view expressed by the Larger Bench in Iqbal Zafar Jhagra's case and the latest in Malik Umar Aslam's case is attracted."
42. ' It may be stated that the authorities referred to and relied upon by the learned Advocates for the respondents have also been considered by the larger bench of apex Court of Pakistan in Engr. Iqbal Zafar Jhagra and others' case supra, which has also been relied upon by the learned Advocates for respondent No,
2. The earlier view taken by the apex Court that mere failure of petitioner to verify all the annexures appended with the petition is not fatal has been departed with and it was held that verification by Syed Iftikhar Hussain Gillani is on oath, which was neither verified nor attested by a person authorized to administer oath, hence, it could not be said that the requirement of Section 36 of the Senate (Election) Act, 1975 were complied with. In case titled Lala Shakeel-ur-Rehman v. Dr. Muhammad Ashraf Chohan and 10 others (2009 CLC 1302) at page 1307 in para 4 it was observed as under:--- "A bare reading of the verification reflects that it is not in consonance with the requirements of Order VI, rule 15(2), C.P.C., firstly as it is not clear as to what para of the petition has been verified on the petitioner's personal knowledge and what para has been verified upon information he received and believes to be true, the language used also is in coherent and alien to the requirements of language used by Order VI, rule 15(2), C.P.C. Further the same has not been attested in accordance with the legal requirements. Though an affidavit of the petitioner has been appended to the election petition, it is general and vague and not in consonance with the paragraphs and contents of the Election petition, thus, it does not comply also with the provisions of Order VI, rule 15, C.P.C.
43. Though it is verified by an Oath Commissioner, but as the election petition and affidavit are not in harmony with each other, therefore the petitioner cannot be granted any premium on this score also. As far as the annexes are concerned they are not verified at all in consonance with the requirements of Order VI, rule 15, C.P.C. Only the word verified has been written at the foot of each page and signed by the petitioner, thus verification as ordained by law has not been made. It also is interesting to note that Annexure "A", appended with the petition, bears the stamp of Oath Commissioner, while some annexures bear-verification. The Register Haqdaran Zameen, though is verified, bit is not attested, likewise Form XIV is verified but not attested, statement of count of various polling stations is verified but not attested, but interestingly the affidavits of witnesses are fully verified and attested on oath. Therefore, the argument of the learned counsel for the election petitioner that public documents are not required to be verified stands contradicted as verification to some of them has been made by the election petitioner himself. Thus, the argument made is self-destructive and cannot advance his cause. A reference was made to Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others (PLD 2004 SC 570), but the same, was distinguished in the matter of Malik Umar Aslam v. Sumera Malik and another (PLD 2007 SC 362) which is later in time and shall prevail over the foriiier. As far as other documents are concerned verification made is not in consonance with the requirements of Order VI, rule 15, C.P.C. As it has not been duly attested by an Oath Commissioner, as required by law, Section 55(3) of the Representation of the People Act, 1976, enjoins that the petitioner shall sign the contents and verify the same in the manner and mode as ordained under Order VI, rule 15, C.P.C., but it also is required to be attested by an Oath Commissioner, which is non-existent, thus, compliance in terms of Section 55(3) of the Representation of the People Act, 1976, has not been made."
44. ' The dismissal of the election petition on the ground of non-compliance of Sections 50 and 51 of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 was also upheld by the apex Court of Azad Jammu & Kashmir in Muhammad Rafique Nayyar's case referred to herein above. The rule of law laid down in that case is fully attracted to the facts of the present case in which it was also stated that where the election petition has been filed in violation of Rules 50 and 51 of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 the same is liable to be dismissed under the preceding Rule 59 of the said Ordinance.
45. ' The contention of Kh. Muhammad Naseem & Ch. Ghulam Nabi, the learned Advocates for the respondents that rule of law laid down in case titled Dr. Muhammad Najeeb Naqi Khan v. Election Tribunal and others is fully attracted in the case in hand, is devoid of any force. In Dr. Muhammad Najeeb Naqi Khan's case the question of verification of election petition was raised and it was held by the Division Bench of this Court that though the affidavit is on separate leaf but the same refers to the contents of the election petition and is also attested by the Oath Commissioner, therefore, substantial compliance of Rule 51(3) of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 has been made. The question of verification of annexures was neither raised in that case nor was considered in light of the cases referred to and relied upon by the learned Advocate for the petitioner, therein as has been raised in the case in hand.
46. ' The contention of Ch, Ghulam Nabi, the learned Advocate for private respondent that verification on the petition has properly been made by respondent, herein, and separate affidavit has also been sworn by him, in view of the case-law cited herein above and provisions contained in Order VI, Rule 15 of C.P.C. Is devoid of force. The learned Advocate also submitted that a document which is true copy of the official record can be taken into consideration and verification is not required.
47. The contention of the learned Advocate is not tenable because the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 is a special law which has to prevail on general law in which a special procedure is provided for drafting the petition and its verification. The authorities referred to by the learned Advocate reported as 1988 M LD 113 and PLD 1990 Lah. 290 have no nexus with the facts of the case in hand. In Mian Ghulam Dastgir Bari's case (1986 CLC 2499) it was held that documents making no additional allegations of a substantive character or furnishing better particulars of allegations made in petition, so as to give them status of substantive ground to the petition itself do not require the signatures of the petitioner or verification. The observation has been recorded by the Election Tribunal in light of the judgment of the apex Court of Pakistan reported as PLD 1967 SC 486. As stated above, this judgment has been considered subsequently by the larger bench in 2000 SCM R 250 and has not been followed.
48. ' Before parting with the case it may be stated that petitions under the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 are heard by a Tribunal of special jurisdiction.
49. Tribunal can assume the jurisdiction on a petition which has been drafted and filed strictly in accordance with Sections 50 and 51 of the said Ordinance. If anything is missing then the assumption of jurisdiction on an incompetent petition _would be illegal and without lawful authority. A writ of prohibition in such circumstances can be issued against the Tribunal to refrain from proceeding on an incompetent petition. In a case titled Rashid Ahmad v. The State [PLD 1972 SC 271], it was observed that " if a mandatory condition for the exercise of a jurisdiction before a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction."
50. ' In case titled Azad Government of the State of Jammu & Kashmir v. Muhammad Shafi (PLD 1971 AJ&K 33) a Division Bench of this Court after survey of case-law observed that where conditions for assumption of jurisdiction by a statutory authority are prescribed in the statute then such statutory authority cannot waive any of the conditions mentioned for assumption of the jurisdiction. At page 42 of the judgment observations of the learned Division Bench have been recorded as under:--- "As a result of the above discussion and agreeing with the view expressed in AIR 1946 Mad. 184 I hold that the Collector acting under Part III of the Land Acquisition Act, in which Section 18 is included, acts as a statutory authority and that he is not acting as an agent of the Government and, therefore, he is not competent to waive the objection of limitation and if the Collector refers a reference application made by an owner beyond the prescribed time, the reference Court is competent to go into the question of limitation. It is competent for the reference Court to see that the four conditions enunciated by me above are there in which is also included the condition of the limitation so as to clothe himself with the jurisdiction to hear and decide the reference application.
51. The reference Court can go behind the reference (though not beyond the reference) to see that the four conditions existed."
52. ' The upshot of the above discussion is that petition filed by respondent No, 2 before the Election Tribunal is not verified in accordance with Section 51(3) of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, hence, was liable to be dismissed under Section 59 of the said Ordinance. Therefore, by accepting the instant writ petition we dismiss the election petition titled Ch. Muhammad Aziz v. Faisal Mumtaz Rathore and others pending before the learned Election Tribunal. No order as to costs. /Election petition stood dismissed.