ZIA UR REHMAN vs Syed AHMED HUSSAIN and others

' TASSADUQ HUSSAIN JILLANI, C.J.---This judgment shall dispose of Civil Appeals Nos. 1308 and 1309 of 2013 as they are directed against the same judgment dated 2310-2013 passed by the learned Election Tribunal, Abbottabad vide which he allowed both the Election Petitions and set aside the election of Miau Zia ur Rehman appellant from PK-54 Mansehra held on 11-5-2013 and directed the Election Commission of Pakistan to hold fresh elections in the said constituency.

2. Facts briefly stated are that appellant was elected as Member of the Provincial Assembly of the afore-mentioned constituency in the General Elections held on 11-5-2013. The said election was challenged by respondents Syed Ahmed Hussain (respondent in Civil Appeal No,1308 of 2013) and Syed Mazhar Ali Qasim (respondent in Civil Appeal No,1309 of 2013) on the ground that he was not qualified to be elected or chosen as Member of the Parliament or Provincial Assembly in terms of Article 62(1)(f) of the Constitution because in the nomination papers filed for the General Elections held in 2008 he declared himself to be a graduate while in the nomination form of the Elections held in 2013 he declared himself to be a matriculate and thereby made a misstatement qua his qualification in the earlier elections. This misstatement was a proof that he was not `Sadiq', `ameen' and 'righteous' within the meaning of Article 62(1)(t) of the Constitution. The allegations levelled.

Were controverted through written statements. Appellant's plea in the written statements was that he had passed matriculation and acquired `deeni sanad' equivalent to B.A. Degree from an educational institution. It was explained that he passed his matriculation in the year 1996 and after 6/7 months obtained Deeni Sanad' in the same year. He also filed applications for dismissal of both the election petitions for noncompliance of the mandatory provisions of sections 54 and 55 of the Representation of the People Act, 1976. In view of the divergent pleas, the learned Tribunal framed following preliminary issues:-- "(1) Whether the election petition, for non-compliance of the provisions of sections 54 and 55 of the Representation of the People Act, 1976 and the rules framed thereunder is not maintainable?

(2) Whether the Election Appellate Tribunal/Peshawar High Court, -Peshawar has already recorded findings in an appeal on the issue of qualification/disqualification raised in the present proceedings by the petitioner which findings have not been upset by any higher forum, the present petition on such issue would be bar on the principle of 'constructive res judicata'?

(3) Whether this Tribunal has got the jurisdiction?

(4) Whether the respondent No, 1, on the nomination day was disqualified from being elected as a member of the Provincial Assembly, in view of the provisions of Article 62(1)(F) of the Constitution of the Islamic Republic of Pakistan read with Section 99(1)(D of the Representation of People Act, 1976 for concealment of fact or making wrong declaration regarding his educational qualification?

(5) Relief?"

' The learned Tribunal vide the impugned judgment allowed both the election petitions and set aside the election of the appellant.

3. Learned counsel for the appellant Mr. Tariq Mehmood submitted that appellant had filed applications before the Election Tribunal with the prayer that the question of maintainability of the election petitions in view of non-compliance of section 54 of the Representation of the People Act should have been decided as a preliminary issue but the learned Tribunal kept the applications pending for a long time and thereafter while accepting the applications of the respondents for amending the election petitions to remove the objection of non-compliance of section 54 of the Representation of the People Act, 1976 dismissed appellant's application qua the maintainability of the election petitions and allowed the election petitions. Learned counsel for the appellant further contended that admittedly the election petitions filed by the respondents were not verified on oath; that the applications filed by the respondents for amending and removing the objection were time-barred and could not have been entertained. In support of the submissions made, learned counsel relied on Malik Umer Aslam v. Sumera Malik (PLD 2007 SC 362), Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600), Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCM R 250 at 290).

4. Mr. Kamran Murtaza, learned counsel for the respondent in Civil Appeal No,1308 of 2013 defended the impugned judgment by submitting that non-compliance of section 54 of the Representation of the People Act was on account of inadvertence; that the annexures were duly verified; that the omission to have the election petitions verified on oath was a curable mistake and was not fatal; that the appellant had made a misstatement with regard to his qualification in the General Elections of 2008 and, therefore, was neither. `Sadiq' nor `ameen' and was hit by the mandatory provisions of section 62(1)(f) of the Constitution and has rightly been non-suited. In support of the submissions made, learned counsel relied on Abdul Qadir v. Abdul Wasay (2010 SCM R 1877).

Learned counsel added that notwithstanding the non-maintainability of an election petition, the Election Commission of Pakistan and the Court itself can take suo motu notice of the disqualification of a candidate on account of the mandatory Constitutional provisions. In the case in hand, he further added that uncontrovertable evidence has been led to show that appellant had made a misstatement about his educational qualification in the General Elections of 2008 and such a person cannot be a `Sadiq' and `ameen' therefore not qualified to be a Member of the Parliament or the Provincial Assembly.

5. Mr. Abdur Rauf, learned counsel for the respondent in Civil Appeal No,1309 of 2013 in addition to adopting the arguments of learned counsel for the respondent in the connected Civil Appeal No,1308 of 2013 referred to a judgment of this Court reported in Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828) to contend that this Court itself can take suo motu notice of such disqualification in view of the evidence led and candid findings of fact rendered by the Election Tribunal qua appellant's qualification. According to him the non-verification of the election petition is a curable defect and the learned Tribunal after permitting the respondent to amend the petition allowed the same.

6. We have heard learned counsel for the parties at some length and have gone through the impugned judgment.

7. When the law prescribes a certain format of an Election Petition and its verification on oath and entails a penal consequence of its non compliance, it is a mandatory provision. If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition. In view of this legislative intent, we are minded to decide the appeals primarily on issue No, 1 . The preliminary objection was raised with reference to sections 54 and 55 of the Representation of the People Act, which are as under:-- "54. Parties to the petition.---The petitioner shall join as respondents to his election petition--

(a) all contesting candidates; and

(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.

' Explanation. ---In this section and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal practice" within the meaning of Chapter VIII."

55. Contents of petition.---(1) Every election peiition shall contain--

(a) A precise statement of the material facts on which the petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

(2) A petitioner may claim as relief any of the following declarations, namely:-

(a) that the election of the returned candidate is void;

(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or

(c) that the election as a whole is void.

(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."

8. Every election petition and every schedule or annexure to the election petition has to be signed by the petitioner and verified in the manner laid down in Civil Procedure Code. Rule 15 of Order VI of C.P.C. Lays down the procedure of verification, which reads as under:--

15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) 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.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

9. The penal consequence of non-compliance with sections 54 and 55 of the Representation of the People Act is provided in section 63 of the Representation of the People Act, which reads as follows:-

63. Dismissal of petition during trial.---The Tribunal shall dismiss an election petition, if-

(a) the provisions of section 54 or section 55 have not been complied with; or

(b) if the petitioner fails to make the further deposit required under subsection (4) .Of section 62."

10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in-compliance with the legislative intent. Non-compliance of this provision carries a penal consequence in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effect of non-compliance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCM R 250) wherein at page 290 it was candidly held that "the verification of pleadings has been provided under Order VI, Rule 15, C.P.C. Which when read with sectton 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 Iftikhar 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."

11. Similarly in Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600), this Court reiterated the similar view and it was held at page 604 as under:- "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."

12. In Abdul Qadir v. Abdul Wassay (2010 SCM R 1877), this Court had set aside the judgment of the Election Tribunal in connected appeals because the issue involved in those cases was absence of verification clause signed and verified on oath with reference to the numbered paragraphs of the pleadings and the Court was pleased to hold as follows:-- "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 notwithstanding 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 in fact 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 atiended in another judgment in the case of Sardarzada Zafar 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 pleading 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."

13. In Umar Aslam v. Sumera Malik (PLD 2007 SC 362), this Court upheld the dismissal of the election petition by the Tribunal for noncompliance of section 55(3) of the Representation of the People Act, 1976. In this case as well, the view taken in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCM R 250) was followed. The matter of amendment in the election petition so as to cure the defect of its non- verification also came up and in this behalf, it was held as follows:-- . . Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i,e, 45 days as provided in section 52(2) of the Act 1976 for filing of Election Petition. In addition to it, a right in favour of the respondent has been created, as such we are not persuaded to subscribe to the view point of the learned counsel for the appellant."

In the instant case, the application for amendment dated 14th October, 2013 was apparently filed on 23rd October, 2013 well beyond the period of limitation i,e, 45 days for filing of an election petition, as provided by section 52 subsection (2) of the Representation of the People Act, 1976, hence, could not have been allowed by the Election Tribunal through the impugned judgment.

14. We have considered the judgment of this Court in Muhammad Rizwan Gill v. Nadia Aziz (PLD 2010 SC 828) and Umer Aslam v. Sumera Malik (2014 SCMR 215). In both the judgments the issue of non- compliance of section 55 of the Representation of the People Act and its effect was not a moot point and, therefore, would not be relevant.

15. It would be instructive to refer to section 83 of the Indian Representation of the People Act, 1951 which is pari materia with section 55 of the Pakistani Representation of the People Act, 1976. The language in section 55(3) of the Representation of the People Act, 1976 and section 83(1)(c) of the Indian Representation of the People Act, 1951 is almost the same. They read as follow:-- {{TABLE}} ' Pakistani Representation of the People Act, 1976 Indian Representation of the People Act, 1951 "55. Contents of petition.---(1) Every election petition shall contain--

(a) A precise statement of the material facts on which the petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged' to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

"83. Contents of petition.---(1) An election petition--

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: #TBS Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." #TBE

(2) A petitioner may claim as relief any of the following declarations, namely:--

(a) that the election of the returned candidate is void;

(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or

(c) that the election as a whole is void.

(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings." {{TABLE}}

16. While dilating with the import and effect of the afore-referred provision and as to whether the non-compliance of this is a curable defect, the Indian Supreme Court in Dr. (Smt.) Shipra etc. v.

Shanti Lal Khoiwal etc. (AIR 1996 SC 1691) held that "verification by a Notary or any other prescribed authority is a vital act which assures that the election petitioner had affirmed before the notary etc. That the statement containing imputation of corrupt practices, was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity. Allegations of corrupt practices are very serious imputations which, if proved, would entail civil consequences of declaring that he became disqualified for election to a maximum period of six years under section 8A, apart from conviction under section 136(2). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation." The Court in the said judgment further came to the conclusion that if an objection with reference to the afore-referred provision qua the maintainability is raised, it has to decide it as a preliminary objection. The Court held "when so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same."

17. For what has been discussed above, both these appeals are allowed and the impugned judgment is set aside with no order as to costs. However, before parting with the judgment, we may like to add that the observations made in this judgment are without prejudice to any other remedy against the appellant which the respondents-objectors may have under the law.