' MIAN SAQIB NISAR, J.---This appeal under section 67(3) of the Representation of the People Act, 1976 (ROPA) has been filed against the judgment dated 18-3-2014 passed by the learned Election Tribunal, Faisalabad, whereby the election petition initiated by the appellant against respondent No,1 (the respondent; the relevant candidate) has been dismissed on the score that such petition is not duly verified per the provisions of section 55(3) of the ROPA, and therefore is liable to be dismissed in terms of section 63 of the said Act. In the context of the above, it may be pertinent to mention here, that the verification part of the election petition reads as follows:-- "VERIFICATION
1. Col. (R) Ghazanfar Abbas Shah son of Muhammad Nawaz Shah, Muslim, Adult, resident of Haveli Bahadur Shah, Tehsil Shorkot, District Jhang do hereby state oh oath that whatever is stated above is true to the best of my knowledge, information and belief or is based upon legal advice received by me in the above suit which I verily believe to be true.
' DEPONENT ' The deponent above named is known to me and is identified by me to the Commissioner for taking affidavit.
(note: underneath this there are two stamps of the Oath Commissioner, Cantt. Lahore, namely Muhammad Siddique. Both bears his initials and one of those postulates "ATTESTED": however there is no date mentioned or written by the Oath Commissioner or the fact that before the attestation any oath was administered to the appellant, the election petitioner.)
' With the election petition, an affidavit of the appellant was also enclosed, which is as reproduced below:- "AFFIDAVIT IN SUPPORT OF MAIN PETITION I. LI. Col. (R) Ghazanfar Abbas Shah son of Muhammad Nawaz Shah Resident of Haveli Bahadur Shah, Tehsil Shorkot, District Jhang, do hereby solemnly state on oath as under:--
(1) I say that I am the petitioner in the above case and as such fully conversant with the facts of the petition.
(2) I say that the contents of the main petition may kindly be treated as part and parcel of this affidavit as the same have not been repeated here for the sake of brevity.
(3) That whatever stated hereinabove is true and correct to the best of my knowledge and belief.
' DEPONENT"
(note: same is the position of the affidavit, as that of verification)
' The learned Election Tribunal while considering the above two documents summarily dismissed the election petition due to the following reason:- "Now comes the question of verification of the Election Petition itself. The returned candidate has objection to maintainability of the petition for want of due verification. The original Election petition at page 7 contains a verification clause signed by the deponent but the Oath Commissioner has merely put an attestation stamp, without certifying administration of Oath and giving the date of administration of Oath. A separate affidavit is also annexed to the petition at page-8 but, unfortunately, the same procedure was adopted, and no date of administration of Oath was provided by the Oath Commissioner and no date of administration of Oath was described. Such a procedure is surely violative of the provisions of section 55(3) of the Representation of the People Act, 1976 and it would necessarily attract the penal provision of dismissal of the Election Petition under section 63(a) of the Representation of the People Act 1976."
2. Learned counsel for the appellant has argued, that prior to the impugned judgment, the objection about due verification of the election petition was raised by the respondent/returned candidate before the learned Election Tribunal, but the Tribunal held that the petition was duly and validly verified. The respondent challenged inter alia the order through writ petition(s) (note:- some other orders of this tribunal were also assailed) before the learned High Court. The matter was remanded on some other points and not on the question of verification. The order pertaining to verification was never set aside, rather was kept intact. Therefore, in light of this legal position, not only will the principle of res judicator be applicable, rather the Tribunal in law shall have no authority to review its earlier decision.
' It is also argued, that omission on part of the oath commissioner in mentioning, at the time of attestation of verification, that oath has been duly administered to the appellant cannot be made a reason for depriving the appellant of his very valuable legal right; he cannot be knocked out on technical grounds. This is neither the purport nor the spirit of law. It is further argued, that where an election petition is duly supported by an affidavit, notwithstanding any lapse in verification of the petition, such affidavit should be treated as due compliance with the requirement of verification of the election petition. On this score, therefore, the election petition could not be dismissed.
' It is lastly submitted that no writ was competent against the interim order of the Election Tribunal, therefore the order of remand by the High Court dated 31-10-2013 is without jurisdiction and obviously the impugned order is absolutely invalid. In support of his various contentions, the learned counsel for the appellant has relied upon the judgments reported as Malik Umar Aslam v.
Sumera Malik and another (PLD 2007 SC 362), Engr. Lqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCMR 250), Moulvi Abdul Qadir and others v. Moulvi Abdul Wassay and others (2010 SCMR 1877), Zia-ur-Rehman v.Syed Ahmed Hussain and others (2014 SCMR 1015), Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233), Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600), S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others (2013 SCMR 338).
3. Conversely, learned counsel for the respondent, Khawaja Saced-uz-Zafar, has submitted that there are three shortcomings in the verification of the election petition as well as the affidavit, in that, it was not mentioned that oath had been administered by the oath commissioner at the time of attestation of both those documents which is mandatory/imperative in terms of Articles 101 and 102 of Qanun-eShahadat Order, 1984; no date and place has been mentioned as to when the petition was verified and attested. The verification of the election petition (mentioned in this petition) being flawed and defective cannot be made valid and rectified through an affidavit.
' Learned counsel for the respondent has further submitted that the noted is no affidavit in the eyes of law and for the purposes of elucidating as to what an affidavit is and should be, lie has referred to the format (of affidavit) given in High Court Rules and Orders, Chapter No,12, Volume No, IV, Rule 9, Sub-Rules (iii) and (iv) and Rules Nos.11, 12, 15 and 16. Hi this context reliance has also been placed upon the judgment reported as Bashir Ahmad v. Abdul Wahid (PLD 1995 Lahore 98) and Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others (1998 CLC 83). He has further argued that on the basis of the judgment reported as S.M. Waseem Ashraf supra, the reasons provided by the learned Tribunal are apt and cogent for the dismissal of the election petition (note:- Learned counsel for the appellant in rebuttal has relied upon page No, 80 of the paper book filed by him or the CMA filed by learned counsel for the other side as also the judgment reported as Moulvi Abdul Qadir supra).
4. Heard. The main argument propounded by the learned counsel for the appellant is that where an election petition is supported by a valid affidavit, notwithstanding any deficiencies and flaws in the verification of the election petition, such affidavit should be treated as a substitute for verification of the election petition and therefore in such circumstances, due compliance with the requirement of verification of the election petition shall be established. In order to cater to this proposition, we find it expedient to reproduce the relevant portion of the Sardarzada Zafar Abbas case, upon which reliance has been placed by the learned counsel for the appellant. This Court, in the said case, held as under:-- "We have Considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath."
' It is in the light of the above law (Sardarzada Zafar Abbas Case) that the question of whether the election petition was duly verified either through verification on oath or through an affidavit needs to be established. In order to do so, we will, first have to look at the legal requirements for both, a valid verification on oath and verification through an affidavit and then proceed onto assessing whether in the instant case either or both of the documents met the requirements laid out in law and were valid or otherwise.
5. With regards to verification of election petitions on oath, it is clear from the provisions of section 55(3) of the ROPA that an election petition has to be, verified in accordance with the provisions of Order 6 Rule 15, C.P.C. Which provide the basics as to how pleadings have to be verified, what shall be the contents of the verification of pleadings and how they have to be attested by the oath commissioner when read with other relevant provisions of law. Be that as it may, in addition to the law cited by both the sides (from some other dicta), it is conclusively settled by this Court that verification of an election petition is mandatory and a petition which lacks proper verification shall be summarily dismissed by the tribunal, even if the respondent has not asked for or prayed for its dismissal.'
' In reference to the above, it shall be advantageous to reproduce the following part of the judgment reported as Zia-ur-Rehman supra wherein it has been categorically held:-- ''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 {{FOOT NOTE}} Malik Umar Aslam v. Sumera Malik and another (PLD 2007 SC 362) {{FOOT NOTE}} 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 he 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 lqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 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 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 authorized in that behalf. It is an admitted position that the petition filed by Syed Iflikhar 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 Ifiikhar 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."
6. Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date or place mentioned in the verification i,e, at what date and what place the verification was made by the appellant. The two stamps of the oath commissioner, Lahore Cantt, affixed at the bottom of the verification also do not postulate the date on which the verification was made by the election petitioner. Besides, it is not reflected from the verification whether the appellant was present at the time of verification before the oath commissioner because he has not been identified with reference to his national identity card, rather by some Advocate, whose name and particulars are not even mentioned on the said verification. Therefore on account of the deficiencies identified above, we hardly find the verification to be valid in terms of spirit of provisions of section 55(3) of the ROPA and in line with the law laid down by this Court in various dicta. Resultantly, we have no hesitation to hold that the verification is not in accord with the law.
7. We shall now turn to the second limb of the proposition i,e, whether the affidavit enclosed with the election petition was sufficient for establishing that the election petition has been duly verified in accordance with law or not. For this purpose, so as to determine the prerequisites of a valid affidavit, the provisions .Of High Court Rules and Orders, Chapter No,12, Volume No, IV, Rules Nos.11, 12, 14, 15 and 16 are reproduced below:-- "11. Identification of deponent. ---Every person making an affidavit shall, if not personally known to the Court, Magistrate or other officer appointed to administer the oath or affirmation, be identified to such Court, Magistrate or officer by some person known to him; and such Court, Magistrate or officer shall specify at the foot of the affidavit, the same and description of the person by whom the identification is made, as well as the time and place of the making of the affidavit.
12. Mode of attestation.--The Court, Magistrate, or other officer as aforesaid, before whom an affidavit is made, shall certify at the foot of the affidavit the fact of the making of such affidavit before him, and shall enter the date and subscribe his signature to such certificate, and shall, for the purpose of identification, mark date, and initial every exhibit referred to in the affidavit. The name of the verifying authority must be signed in full, and care must be taken that his proper designation as a Civil Court or Magistrate is added.
14. Attesting Officer's duty.--If any person making an affidavit appears to the Court, Magistrate or other officer administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand the contents of the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate or officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court. Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it.
15. Attesting, signing and verification or affidavit.---Every affidavit shall be signed or marked and verified at foot by the declarant and attested by the Court, Magistrate or other officer administering the oath or affirmation, the verification, by the declarant shall be in one of the forms attached thereto, and shall be signed or marked by the declarant the attestation of the Court, Magistrate or other officer administering the oath or affirmation shall also be in the form prescribed below.
16. Manner of administering oath to deponent.--In administering an oath or affirmation to the declarant in the case of any affidavit under the Code of Civil Procedure, the Court, Magistrate or other officer appointed in that behalf shall be guided by the rules under the Indian Oaths Act, 1878, printed in Part A of this Chapter and shall follow the form of verification by oath or affirmation thereto appended 1-FORM OF VERIFICATION OF OATH OR AFFIRAMTION (Vide paragraph 15 above)
' Oath.
' I solemnly swear that this may declaration is true, that it conceals nothing, and that no part of it is false so help me God.
' Affirmation.
' I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is false.
II-FORM OF CERTIFICATE (vide paragraphs 12, 14 and /5 above)
Certified that the above was declared on (here enter oath)/affirmation as the case may be) before me this (date) day of (month)......................................................................................... (of 19 at (place) in the district of (name of district) by (full name and description of declarant) who is here enter "personally known to me" or identified at (time and place of identification) by (full name and descriptor: of person marking the identification), who is personally known to me".
(Full Signature) A. B.
(Officer) District Judge (or as the case may be) of II-A ' The exhibits marked A.B.C. (as the case may be) above referred to are annexed hereto under this date and my initials.
' Certified further that this affidavit has been read and explained to (name) the declarant who seemed perfectly to understand the same at the time of making thereof.
' From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites:
1. Identification of deponent (Rule 11)
2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)
3. Time and place of the making of the affidavit to be specified (Rule 11)
4. Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12)
5. Date, Signature and name of office and designation of the Court/ Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12)
6. Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12)
7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/ Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/ Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14)
8. Deponent to sign/mark and verify the affidavit and the Court, Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15)
9. Oath to be administered by the Court/Magistrate/Other officer in accordance with the Indian Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16)
' The format of an affidavit is as has been mentioned in the law reproduced supra. But in the affidavit in question, it is conspicuous that the following essential elements are missing:--
(a) date on which and the place where the verification was made, have not been specified;
(b) no date has been mentioned on the stamp(s) of attestation fixed by the Oath Commissioner;
(c) it has also not been mentioned that the appellant was administered oath by the Oath Commissioner before the attestation was made;
(d) whether the appellant was duly identified before the Oath Commissioner is another important question the answer to which is also not clear from the said verification;
(e) it does not appear from the affidavit that appellant was identified with reference to his ID card which is the ordinary, usual and general course for identification of a person or even by an Advocate; and (f) no ID Card Number is given; the identification does not seem to have been made; the particulars of the identifier are also conspicuously missing.
' This affidavit, therefore, can hardly be considered to be verification of the election petition in terms of the law. To reiterate the reasons, neither have the date and place of attestation been specified nor was the appellant properly identified. With regard to what a valid affidavit should contain, we also draw support from the judgment of the Lahore High Court in the case reported as Bashir Ahmed v. Abdul Wahid (PLD 1995 Lahore 98), which in our view is good law. The relevant portion of the said judgment reads as follows]:-- "The main requirements of the affidavit according to the High Court (Lahore) Rules and Orders, Volume IV, Part B, Chapter 12-B, Rules 8, 9, 14 and 15 are:--
(i) the name of the Court, title of the proceedings;
(ii) subject of the suit or petition;
(iii) name of the deponent, the date and place;
(iv) the affidavit is to be divided into paragraphs which shall be numbered consecutively and shall be confined to distinct portion of the subject;
(v) the deponent, other than the party to the suit, shall be described in such a manner as would serve to identify him clearly i,e, full name father's name, profession or trade and place of his residence;
(vi) the declarant in affidavit while referring the facts within his knowledge must do so directly and positively using the words 'I affirm' or 'I make oath and say';
(vii) when making reference as to the information obtained from others, the declarant must use the expression '1 am informed', and should add 'and verily believe it to be true', or he may state the source from which he received such information. Every affidavit shall be signed or thumb-marked; and
(viii) it shall be verified in accordance with the verification in the form given in Rule 16 of the High Court (Lahore) Rules and Orders. The verification shall be signed and thumb-marked by the declaration. The affidavit shall be attested by the Oath Commissioner.
' One can divide the affidavit into following three parts in accordance with the above requirements:--
(1) name of the Court, title and subject of the proceedings and name etc. Of the deponent;
(2) declaration of facts sought to be proved by the affidavit duly signed by the declarant; and
(3) verification duly signed by the deponent and attested by the Oath Commissioner."
' This affidavit, even if considered to be verification of the election petition in terms of the Sardarzada Zafar Abbas supra, as mentioned earlier, can hardly be held to be proper verification. It may be pertinent to mention here, that neither does the affidavit in the instant case fulfill the requirements in the High Court Rules and Orders supra nor does it meet the essentials laid out in the judgment reported as Bashir Ahmad supra. We, therefore, are of the candid view that the affidavit in question is a flawed one.
'It is also relevant to note here that in an ordinary lis (suit etc.) requiring verification and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matter before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same.
8. The question now which remains for resolution is whether the omission on part of the Oath Commissioner in mentioning, in the attestation of verification or the affidavit, if the oath had been administered to the appellant/deponent, shall have the effect of invalidating the election petition.
As regards the above, suffice it to say that according to the provisions of Article 129, illustration (e) of the Qanun-e-Shahadat Order, 1984, there is presumption of correctness attached to an official act and it could not be controverted by the learned counsel for the respondent that the oath commissioner who is appointed by the respective High Courts under the law shall be performing the official acts for which he was appointed. However, he has stressed that the administration of oath before attestation by the Oath Commissioner should not be presumed in this case rather should reflect from the contents of attestation.
'We have applied our mind to this aspect of the matter and hold that in order to meet the real object and the spirit of the election laws which require verification on oath, in an ideal situation, the Oath Commissioner at the time of verification of the petition etc. And also the affidavit, must record and endorse verification/attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent. But as the law has not been very clear till now, we should resort to the principle of presumption stipulated by Article 129(e) ibid in this case for avoiding the knock out of the petition for an omission and lapse on part of the Oath Commissioner.
But for the future we hold that where the election petition or the affidavit is sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath is made, otherwise the election petition/affidavit shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed on the above score. We consciously and deliberately neither apply this rule to the instant case nor any other matter pending at any forum (election tribunal or in appeals).
' Resultantly, we are not inclined to accept the plea of the learned counsel for the respondents that the omission on part of the oath commissioner must be made the basis of dismissal of the petition of the appellant. This, as we have mentioned above, should be taken into account in case of future election petitions, i,e, filed after enunciation of the law herein laid down.
9. With regard to the argument raised by the learned counsel for the appellant that in an earlier order, the learned Tribunal had held that the verification of the election petition was valid and, therefore, it could not review such order, it may be held that inter alia such order dated 12-9-2013 was challenged by the respondent in various writ petitions and with the consent of the learned counsel for the parties all such orders including the one which held that the verification was valid, were set aside. The relevant portion of the judgment of the learned high Court is reproduced as below:- "In this view of the matter with the consent of the parties, the impugned orders are set-aside. The matter is remanded to the Election Tribunal to hear both sides, examine the various pleas raised by them in light of the case-law cited by both sides which has been noted above and decide the matter afresh through a reasoned order."
10. We will now respond to the argument that intralocutory orders passed by the learned Tribunal could not be challenged in writ petition to propound which reliance had been placed upon the case reported as Muhammad Raza Hayat Hiraj and others supra. As regards the above, suffice it to say that the order of the learned High Court was passed on 31-10-2013. This order was never challenged by the appellant before the Supreme Court, rather the order was a consent order and, therefore the law laid down in the judgment supra shall have no relevance to the matter in hand.
11. In view of the above, we are of the considered view that election petition of the appellant has not been verified in accordance with law and same is true with regards to the affidavit. The case of the appellant squarely falls within the mischief of the provisions of section 55(3) of the ROPA and thus it warranted 'summary dismissal per the provisions of section 63 of the said Act. The appeal being without merit is hereby dismissed and the impugned judgment of the learned Election Tribunal dated 18-3-2014 is upheld. These are the reasoning of our short order of even date which reads as under:- "For the reasons to be recorded later, this appeal has no merit and is, accordingly, dismissed."