SHAHID WAHEED, J.---Challenge in this election petition under Section139 of the Elections Act, 2017 is to the election of respondent No,1 Mohsin Nawaz Ranjha, as a Member of National Assembly from Constituency No,89-Sargodha-II in General Elections, 2018. The said election has been questioned on two grounds: firstly, the respondent No,1 was not, on the nomination day, qualified for, or was disqualified from, being elected as a member of the National Assembly; and, secondly the election suffers from corrupt and illegal practices.
2. Vide order dated 05.10.2018, the process, subject to question of maintainability of the election petition, was issued through the modes suggested in subsection (2) of Section 145 of the Elections Act, 2017. In response to the notice respondent No,1 through Mr. Khalid Ishaq, Advocate entered appearance before this Tribunal, whereas respondents Nos,2 to 5 had not turned up and thus, through order dated 18.10.2018, they were proceeded against ex-parte. On the next date of hearing, that is, 25.10.2018, respondent No,1 submitted written statement wherein the allegations made in the election petition here traversed by raising preliminary objection qua maintainability of election petition. The case was therefore, fixed for arguments on maintainability of the election petition.
3. The first objection to the maintainability of the election petition is that it is hit by mandatory provision of Section 144 (1) (a), (b) of the Elections Act, 2017 which requires: (i) that every election petition shall contain a precise statement on which the petitioner relies; and, (ii) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including the names of the parties and modes and manner alleged to have committed corrupt practice or illegal acts. It is contended that term corrupt or illegal practice is not a term of art or something alien to the scheme of law relating to election disputes but instead corrupt practice has been defined in Section 167 of the Elections Act, 2017 which implies that for making the allegation of corrupt practice what contents have to be incorporated in an election petition; and; that in the present case no details or material particulars have been incorporated in this election petition and thus, the same is liable to be rejected for being based on vague, flimsy and unsubstantiated allegation.
4. Messrs Shan Gul, and Raja Muhammad Arif, learned Addl. Advocate General, in response to notice under Section 152 of the Elections Act, 2017 entered appearance and assisted this Tribunal on the preliminary objection, under discussion. According to them: (i) the term "and" appearing between Sections 144(a) and 144(b) is conjunctive and one cannot maintain an election petition by merely complying with Section 144(a) while ignoring Section 144(b) . The material facts naturally give rise either to a corrupt practice, an illegal practice or an illegal act and, therefore, the same have to be satisfied separately with respect to date and place; (ii) that while corrupt and illegal practice have been defined in Chapter X of the Elections Act, 2017, the term illegal act has not been defined, which may prompt the petitioner to suggest that it is only of case of corrupt or illegal practice that can be brought and not cases of other illegal acts. However, a perusal of Section 156 puts paid to such arguments because Section 156 specifically recognizes illegal acts other than corrupt and, illegal practices in the form of Section 156 clauses (a) & (b). In addition Section 231 incorporates by reference Articles 62 and 63 of the Constitution. Any violation thereof can also perpetuate an election petition, therefore, the material facts spoken of in Section 144(a) have to be complemented by the details of corrupt or illegal practice or illegal act. Elaborating this argument it is submitted that if a candidate is less than 25 years of age at the time of election then this fact after being mentioned as a material fact leads to the illegal act (when nomination paper was submitted and when he touted himself as eligible) shall have to be mentioned separately by way of amplification. According to them the above is the correct position also because the word "and" is employed to express the relation of addition, the adding of something to that which preceded. In support of above arguments reference has been made to words and phrases, 2003 Edition, Vol. I, page 381, "Muhammad Arshad Khan v. J & P Coats Pakistan Ltd. Karachi and 2 others" (PLD 1977 Kara 83), "Usman Dar and others v. Khawaja Muhammad Asif and others" (2017 SCMR 292), "Mir Saleem Ahmed Khosa v. Zafarullah Khan Jamali and others" (2017 SCMR 664) and "Nawab Ali Wassan v. Syed Ghous Ali Shah and others" (2018 SCMR 87).
5. Responding to the above noted arguments, the petitioner's counsel submits that the word "and" occurring between clause (a) and clause (b) of subsection (1) of Section 144 has not been used to convey the idea that the said two clauses must be read conjectively; that word "and" should be read as "or" so as to maintain harmony among different provisions of the Elections Act, 2017 and to avoid any redundancy of any provision; that clause (a) of subsection (1) of Section 144 relates to Section 156(1)(a) and (b) whereas provisions of clause (b) of Section 144(1) of the Elections Act, 2017 are related to clause (c) and clause (d) of Section 156(i) of the Elections Act, 2017; that since the election of respondent No,1 has been challenged on all grounds mentioned in Section 156 (1) of the Elections Act, 2017, the election petition cannot be held to be non-complainant with Section 144 of the Elections Act, 2017 by invoking the word "if any provision " used in Section 145 of the Elections Act, 2017; and, that if there is any deficiency in the contents of the election petition, the same may be allowed to be rectified by granting permission to the petitioner under Section 149 of the Elections Act, 2017 which contemplates that the Election Tribunal may, at any time before the commencement of recording of evidence and upon such term and on payment of such costs as it may direct, allow the petitioner to amend the election petition in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real question at issue but shall not permit raising of a new ground of challenge to the election through such amendment. He referred to the cases of "Saifi Development Corporation Ltd. v. Workers Union" "(PLD 1965 "(W.P.) Karachi 347), "Muhammad Hussain v. The Additional District Judge, Lahore and others" "(PLD 1966 (W.P.) Lahore 128), "Khan Nasrullah Khan v. (1) The Member, Election Commission, Government of Pakistan, Lahore (2) The Returning Officer, Constituency of the National Assembly of Pakistan No,NW-11, Peshawar II, and (3) Mian Jamal Shah" "(PLD 1966 (W.P.)
Lahore 850), "Farooq Ahmad Khan Laghari and 37 others v. Sh. Muhammad Rashid, Chairman, Federal Land Commission and another" "(PLD 1981 Lahore 159) and "Khadim Hussain and another v. The Addl. District Judge, Faisalabad and others" (PLD 1990 Supreme Court 632).
6. Before examining the rival contentions canvassed at the Bar qua the requirements of subsection
(1) of Section 144 of the Elections Act, 2017 it would be apposite to observe here that role of the Court/Tribunal while interpreting any Statute is not to alter its provisions but to iron out its creases so as to avoid any absurdity or inconsistency or redundancy. In other words it is the duty of the Court /Tribunal to avoid "head on A clesh"(sic) between two Sections of the same Act and, "whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonies". It is also said that a statute is an edict of Legislature. The elementary principle of interpreting or construing statute is to gather the mens or sententia legis of the Legislature.(sic)
Keeping the said principles in mind, a conjoint reading of different provisions of the Elections Act, 2017 suggests that any election to a House and Provincial Assembly which is tainted with corrupt practice or illegal practice or illegal acts cannot be allowed to be sustained. It is for that reason Section 156 and Section 158 of the Elections Act, 2017 provide different grounds for challenging election, which may relate to either corrupt practice or illegal practice or illegal acts. It appears that the Legislature, for the said reason, through Section 144 of the Elections Act, 2017 has made election petition composite of material facts and material particulars. Clause (a) of subsection (1) of Section 144 which corresponds to Order VI Rule 2 enjoins the petitioner to narrate precise statement of the material facts, in the election petition, on which he relies while clause (b) of Section 144(1) is analogous to Order VI, Rules 4 & 6 of C.P.C. calls for full particulars, which are necessary to amplify, refine and emblish the material facts. The purpose of clause (a) of subsection (1) of Section 144 is: (i) to give to returned candidate intimation of the case so that the case may be met, (ii) to enable the Tribunal to determine what is really at issue between the parties; and, (iii) to prevent deviations from the course which litigation on particular cause of action must take whereas the object of clause (b) of subsection (1) of Section 144 of the Elections Act, 2017 is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will, have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. The distinction between "material fact" and "full particulars/ material particulars" used in the said two clauses of Section 144(1) of the Elections Act, 2017 is B important because different consequences may flow from deficiency of such facts or particulars in the pleadings. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order VI, Rule 16, C.P.C. If the election petition is based solely on those allegations which are vague and general in nature or lacking in material facts, the petition is liable to be summarily rejected for want of cause of action. In the case of a petition suffering from a deficiency of material particulars, the Tribunal has discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. In this regard it would be pertinent to refer the following extract from the judgment handed down by the Indian Supreme Court in the case of "H.D. Revana v. G. Puttaswa my Gowda and others" (AIR 1999 Supreme Court 768):-- "This Court has repeatedly pointed out the distinction between `material facts" and "particulars". In so far as "material facts" are concerned, this court has held that they should be fully set out in the Election Petition and if any fact is not set out, the petitioner cannot be permitted to adduce the evidence relating thereto later; nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an Election Petition. As regards particulars, the consistent view expressed by this Court, is that the petition cannot be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars."
7. In the above backdrop, I have examined the contents of the present election petition and found that it contains a precise statement of the material facts with regard to the ground that respondent No,1 was not, on the nomination day, qualified for, or was disqualified from, being elected as a member of the National Assembly but it is lacking in material particulars of corrupt or illegal practice. The said omission is not fatal as under Section 149 of the Elections Act, 2017 the petitioner may be allowed to amend the election petition for determining the real question. Thus, the objection that the election petition is non-complaint with Section 144(1) of the Elections Act, 2017 is without any substance and, it is hereby repelled.
8. There is another objection to the instant election petition. According to subsection (4) of Section 144 of the Elections Act, 2017, the election petition and its annexures are required to be signed by petitioner and petition shall be verified in the manners laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Grouse of respondent No,1 is that election petition has not been verified in accordance with the provisions of the Code of Civil Procedure, 1908 and, thus the same is summarily liable to be rejected.
9. There is no cavil to the proposition that the verification of the election petition is required by subsection (4) of Section 144 of the Elections Act, 2017 and it must be made in the manners laid down by Order VI, Rule 15 of the Code of Civil Procedure, 1908. The object of requiring verification of election petition is to fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. It is for that reason verification of contents of the election petition is required to be made on oath to be administered by the Oath Commissioner, who has been bound down to record and to endorse verification/attestation that oath has been actually, physically and duly administered to the election petitioner/ deponent. The mode and manner of verification/attestation has been settled by the Hon'ble Supreme Court of Pakistan in the case of "Lt.-Col. (Reid.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585) and the relevant paragraph thereof reads as under: "Taking into account the verification of the election petition independent of the affidavit, it has been conspicuously noticed that there is no date of 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 law"
Now in the light of above cited paragraph the attestation of verification, of the contents of the election petition, made by the Oath Commissioner is examined. In the case on hands, oath commissioner beneath the verification affixed his rubber stamp which reads as under: Declared on oath before me On 22-9-18 Mr. Usman Ahmed Mela S/o Ghias Ahmed Mela Rio Sargodha Identified by In person at 9.00 A. M.
Sd/- (ABDUL SHAKOOR)
Oath Commissioner Lahore High Court, Lahore Notification No,24 /General/X . B . 9(b)1.
Date Lahore 06-1-2017 Term Expiry Date 26-12-2019 Perusal of the rubber stamp of the Oath Commissioner makes it clear that the petitioner was not present at the time of verification before the Oath Commissioner because he was not identified with reference to his computerized national identity card. It is also not clear from the stamp as to at what place, the oath was practically and physically administered. The words "declared on oath before me" used in the stamp of Oath Commissioner are not sufficient being ambiguous as they do not indicate as to what was declared on oath or whether the contents of the verification were made on oath before the Oath Commissioner. The said statement being patently ambiguous does not meet with the criterion determined by the Hon'ble Supreme Court of Pakistan for due attestation of verification, thus irresistible conclusion is that verification of the election petition is not in accordance with law.
10. The petitioner has also enclosed his affidavit with the election petition. The question arises as to whether the affidavit enclosed with the election petition is sufficient for establishing the fact that the election petition has been verified in accordance with law. The law governing this question has been examined by the Hon'ble Supreme Court of Pakistan in the case of Ghazanfar Abbas Shah (supra). Appraising the affidavit enclosed with the election petition on the basis of above cited precedent it becomes clear that the game is also not valid for the reason: firstly, that the same rubber stamp, reproduced above, affixed by the Oath Commissioner beneath verification, has also been used by the Oath Commissioner for attesting the verification of this affidavit. Since the identification of the deponent was not made with reference to his computerized national identity card it cannot be held valid attestation; secondly, the time and place of making of affidavit has not been specified and, thirdly, the affidavit does not fulfill the requirements of the High Court Rules and Order. Non-verification of the election petition in accordance with the mandatory provision of subsection (4) of Section 144 of Elections Act, 2017 is fatal as this defect after the expiry of limitation cannot be allowed to be rectified. This flaw is thus sufficient to reject the election petition under subsection (1) of Section 145 of the Elections Act, 2017.
11.Last objection to the election petition is that election petitioner has not attached with this petition an affidavit of service to the effect that a copy of the petition along with copies of all annexures, including list of witnesses, affidavit and documentary evidence, have been sent to all respondents by registered post or courier service and thus, it is liable to be rejected. On being confronted with this objection the petitioner's counsel took me to page No,148 of the Election Petition and submitted that due compliance of clause (c) of subsection (2) of Section 144 of the Elections Act, 2017 was made at the time of filing of election petition; and, thus this objection has no substance. I have examined the contents of the affidavit of service which reads as under:- "I, the above named deponent do hereby solemnly affirm and declare as under:- That I have served the respondents with notice sent under registered A.D. post (along with copies of petition and Annexures thereto); That I have today filed an election petition regarding election of NA-89-Sargodha-II before the Hon'ble Election Tribunal."
The above cited contents of the affidavit indicate that along with notices the petitioner had only sent copy of the petition and annexures thereto. According to clause (c) of subsection (2) of Section 144 of the Elections Act, 2017, the petitioner was required to send a copy of election petition along with copies of all annexures including list of witnesses, affidavit and documentary evidence.
It appears that the petitioner had only sent copy of election petition and its annexures but not the list of witnesses, affidavit and documentary evidence. This omission makes the service, as contemplated in the above said provision of law, defective. Second flaw is that this affidavit has also not been made in accordance with the mandatory provisions of the High Court Rules and Order. Thus, this affidavit being defective renders election petition incompetent before this Tribunal.
12. Upshot of the above discussion is that the election petition in hands is not compliant with the mandatory provisions of Section 144 of the Elections Act, 2017 and thus the same is summarily rejected.