ASIM HAFEEZ, J.--- Through this consolidated judgment, I propose to decide the legal questions, assiduously raised in almost all the election petitions -- listed in enclosed Schedule -A. Fundamentally , the controversy at hand touches upon and calls for determination of the scope and extent of the powers of Election , Tribunal (`Tribunal'), extended under sub-section (1) of section 145 of the Elections Act 2017 (`Act, 2017'). In pith and substance, the case canvassed is that, powers conferred under sub-section (1) of section 145, ibid, are exercisable subject to invoking Rule 140 of the Election Rules, 2017 (Rules, 2017) and only before the issuance of notices to the respondents in terms of sub-section. (2) of section 145 of Act. 2017, and not otherwise. It is expedient to reproduce section 145 of Act, 2017 and Rule 140 of Rules, 2017, for ease of reference: Section 145; Procedure before the Election T ribunal.
(1) If any provision of sections 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition.
(2). If an election petition is not rejected unde r sub-section (1), the Election Tribunal shall issue notice to each of the respondents through--
(a) registered post acknowledgment due;
(b) courier service or urgent mail service;
(c) any electronic mode of communication, which may include radio, television, email and short message service (sins); '(d) affixing a copy of the notice at some conspicuous part of the house, if any, in which the respondent is known to have last resided or at a place where the respondent is known to have last carried on business or personally worked for gain;
(e) publication in two widely circulated daily newspapers at the cost of the petitioner; and
(i) any other manner or mode as the T ribunal may deem fit.
Rule 140. Processing the petition. Every petition shall be processed by the Tribunal and in case the petition is not in accordance with the laid down procedure, the petitioner shall be informed accordingly indicating the deficiencies in the petition, if any, directing him to fulfill the same within seven days of the receipt of communication from the T ribunal failing which the petition shall be dismissed by the T ribunal.
[Emphasis supplied] Relevant facts in the context of controversy
2. Instant election petitions relate to General Elections of 2018, held on 27.07.2018 for the elections of National Assembly and Provincial Assemblies. The petitioners contested the elections from respective constituencies, vying for a seat in the National Assembly or Provincial Assembly , as the case may be., Upon tabulation of election results, Election Commission of Pakistan issued notification of returned candidates. Dissatisfied with the election results, with respect to the constituencies involved, petitioners invoked the remed y provided under section 142 of Act, 2017 and presented petitions before Tribunal(s) appointed in terms of section 140 of Act, 2017. Notices, subject to the question of maintainability , were issued in all the elect petitions. Respondents entered appearances and are represented through their respect ive legal counsels. Upon hearing election petitions, preliminary objections were raised by the respondents, alleging that election petitions are not duly verified, hence, liable to be rejected in exercise of powers under sub-section (1) of section 145 of Act, 2017. Conversely , petitioners objected to the jurisdiction of the Tribunal to adjudicate upon the question of want of verification of election petitions on two counts; firstly , that notices were already issued under sub-section (2) of section 145 of the Act, 2017, and secondly that without invoking Rule 140 of Rules, 2017, petitions are not liable to be rejected, for an alleged deficiency . To facilitate adjudication, questions of law were framed vide order dated 08.12.2020, which questions are reproduced hereunder , for ease of reference: - a) Whether the powers conferred on the Election Tribunal under sub-section (1) -of section 145 of the Act can be exercised retroactively once notices were issued in terms of sub-section (2) of section 145 of the Act and when respondents are duly represented and have submitted replies? and b) Whether the exercise of powers under sub-section (1) of section 145 of the Act is or has been encumbered / subjected to or regulated by virtue of Rule 140 of the Rules?
Snapshot of Submissions on behalf of the petitioners:
3. By and large all learned counsels addressed this Court, which submissions are overlapping therefore, substance thereof is narrated. Petitioners question powers of the Tribunal to ascertain and adjudicate that whether elections petitions are duly verified, once notices were issued. Submits that legislative intent, upon perusal of sub-section (2) of section 145 of Act, 2017 and Rule 140 of Rules, 2017; is clear purpose whereof is to quell mischief of dismissal of election petitions, simplicitor , due to non-verification(s) without appreciating the merits. It is averred that provisions of Act, 2017 and Rule 140 of Rules, 2017 have to be interpreted in the light of Heydon's rule of statutory interpretation is further emphasized that unless prescribed seven days are allowed, to cure alleged deficiency under Rule 140 of Rules, 2017, petitions cannot .be summarily rejected. Adds that allowance of additional seven days, would not offend limitation prescrib ed under section 142 of Act, 2017 -- provided election petition is initially filed within 45 days of the date of declaration of the returned candidate. Learned counsels referred and attempted to distinguish following decisions, reported as "MUHAMMAD AHMED CHA TTHA v. Ch. AADIL BAKSH CHA THA and others" (2019 CLC 1110), "USAMA AHMAD MELA v. MOHSIN NAWAZ RANJHA and others" (2019 MLD 294) and "MUSHT AQ AHMED v. Sardar AFTAB AKBAR KHAN and others" (2019 MLD 1313 ), "Abdul Wahab Baloch Vs. Imrart Ahmad Khan Niazi and others" (PLD 2019 Lahore 119) and "Malik Muhammad Nawaz Vs. Khayal Ahmad and others" (2019 CLC 960). Learned counsels punctiliously argued that judgment in the- ease of "Lt.Col (Rtd) Ghazanfar Abbas Shah Vs. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585 ) is distinguishable and inapplicable in the wake of sub-section (2) of section 145 of Act, 2017 and Rule 140 of Rules, 2017, alike of which were not available under previous enactment, dealing with the election disputes.
Submissions on behalf of the respondents:
4. Learned counsel for contesting respondents submits that notices were issued without any resignation on the part of the Tribunal qua the power available under sub-section (1) of section 145 of Act, 2017. Adds that absence of verification constitutes an incurable defect and petitions are liable to be dismissed summarily . It is argued that ratio of the decision in the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra) is fully applicable notwithstanding promulgation of Act, 2017, wherein too the requirement of due and proper verification is mandatory and consequences for noncompliance are specifically provided. And it is obligatory for the Tribunal to reject election petitions, suffering from want of verification. It is argued that Rule 140 of Rules, 2017 cannot be interpreted to defeat legislative command expressed in terms of subsection (I) of section 145 of Act, 2017 and Tribunal, irrespective of issuance of notices, is competent to reject election petition in case of non-compliance of any requirements of any provision of sections 142, 143 and 144 of Act, 2017. Learned counsels drew support from the ratio of the decisions in cases of "Abdul Wahab Baloch Vs. Imran Ahmad Khan Niazi and others" (PLD 2019 Lahore 119), "Malik Muhammad Nawaz Vs. Khayal Ahmad and others" (2019 CLC 960), "MUHAMMAD AHMED CHA TTHA v. Ch, AADIL BAKSH CHA THA and others" (2019 CLC 1110), "USAM4 AHMED MELA v.
MOHSIN NAWAZ RANJHA and others" (2019 MLD 294) and "MUSHT AQ AHMED v. Sardar AFTAB AKBAR KHAN and others" (2019 MLD 1313 ), "Sultan Mahmood Hinjra Vs. Malik Ghulam Mustafa Khar and others"
(2016 SCMR. 1312 ), "Zia Ur Rehman Vs. Syed Ahmed Hussain and others" (2014 SCMR 1015 ), "Ch. Muhammad Ayaz Vs, Asif Mehmood and others" (2016 SCMR 849), "Mir Mujib-ur-Rehman Muhammad Hassani Vs. Returning Of ficer, PB-41 W ashuk and others" (PLD 2020 Supreme Court 718).
Submissions by the Office of Advocate General Punjab in terms of section 152 of Act, 2017 and Election Commission of Pakistan.
5. Learned Law Officers submit that powers conferred in terms of sub-section (I) of section 145 of Act, 2017 are neither controlled by nor can be subjected to sub-section (2) of section 145 of Act, 2017 or Rule 140 of the Rules, 2017. Adds, that, in wake of the jurisprudence evolved over the years, election petitions suffering from want of verification are liable to be rejected summarily . Learned counsel representing Election Commission of Pakistan submits that no change was brought qua requirement of verification of election petitions under incumbent enactment, and election petition can be rejected for non-compliance of sub-section (4) of section 144 of Act, 2017.
Opinion of the Court.
6. It is essential to contextualize the controversy at hand; in the context whereof questions of law were framed.
Petitioners, in essence, questioned the act of exercise of powers by the Tribunal, under sub-section (1) of section 145 of the Act, 2017, after issuance of the notices in terms of sub-section (2) of section 145 of the Act, 2017, and that too without allowing opportunity to cure identified deficiencies by invoking Rule 140' of the Rules, 2017. In this backdrop, above-noted questions of law were framed. To dismiss any confusion, it is imperative to define the scope and extent of instant decision, which is confined to the consideration of effect and consequence of alleged non- compliance of sub-section (4) of section 144 of Act, 2017 -- requiring verification of the election petitions. And other requirements regarding any provision of sections 142, 143 and 144 of the Act, 2017 -- except sub-section (4) of section 144 - is not subjects of adjudication.
7. Right to elect, to contest election(s) and to be elected, as representative of the constituents, are all well acknowledged and recognized statutory rights. Ubi jus, ibi remedium' -- where there is a right, there is a remedy .
Right to dispute 1 question the elections is a right-cum-remedy , available when any enforceable statutory right is invaded or breached. The entire process of elections including remedy to challenge election result is governed and regulated by the Election Act, 2017 -- incumbent enactment. Common law has no application qua election disputes and determination thereof. It is observed in the case of "K.Kamaraja Nadar Vs. Kunju Thevar and others" (AIR 1958 SC 687) at page 693 "that an election contest is not an action at law or a suit in equity but is a purely statutory proceedings unknown to comfy on law and that the court possesses no common law power ." It is apt to refer to pertinent observations in the case of Satya Narain V. Dhuja Ram and Ors AIR 1974 Supreme Court 1185 that, "It is well settled that it is a special right conferred under a self-contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and tie powers of the court are circumscribed by its provisions. It is not a common law right and an election petition cannot be equated with, a plaint in a civil suit". The nature of the rights and remedies, relating to the election matters and disputes, in respect thereof, are elucidated in the case of "Jyoti Basu & others Vs. Debi. Ghosal & others" (1982 AIR SC 983) appropriate portion whereof is reproduced hereunder; 'A right to elect, fundamental though it is to democracy , is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple , a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation. An Election petition' is not an action at Common. Law, nor in equity . It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special Jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act."
[Emphasis supplied]
8. Remedy to question election has it origin in the Article 225 of Constitution of Islamic Republic of Pakistan, 1973, directing that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora [Parliament] -- Elections, Act 2017 is the manifestation of Act of the Parliament. Petitioners opted for the statutory remedy of challenging elections with respect to the constituencies involved, whereupon notices were issued.
Maintainability of election petition was questioned for want of verification(s) of petitions, determination of said questions involve adjudication of appurtenant legal issues earlier identified.
9. Fundamentally , construction and applicability of section 14.5 of Act, 2017 and Rule 140 of Rules 2017 is at the heart of the controversy . Petitioners seek s purposive interpretation thereof -- claiming that apparent mischief of summary dismissal of election petitions for want of verification of petitions was intended to be curbed. Another pressing question is that whether requirement of verification under incumbent enactment -- Elections Act 2017'- is mandatory or directory?
10. The condition of requirement of verification of election petitions, in the manner laid down in the Code of Civil Procedure, 1908 (`Code') for the verificati on of pleadings, is contained in subsection. (4) of section 144 of Act, 2017 -- which provision of law is similar to the erstwhile section 55(3) of Representation of Peoples Act, 1976 (`ROP A') *except a slight change that now annexures need not be verified but only the petition]. Sub section (1) of section 145 of Act. 2017 provides consequences, for non-fulfilment of condition of due verification of the election petition(s) -- which by and large is identical to clause (a) of section 63 of ROP A in terms whereof, Tribunal was empowered to dismiss the election petition, if provisions of section 54 and 55 of ROP A were not duly complied. There is notable variation in the procedure regarding presentation of the election petition(s), under ROP A and Act of 2017, which may not be relevant for the purposes of determining subject matter controversy .
11. Literal reading of sub-section (1) of section 145 of Act, 2017 suggests that legacy of section 55(3.) of aOPA continued unabated; requirement of verification of election petitions was mainta ined, without, compromising its sensitivity and absoluteness. In terms of sub-section (1) of section 145 of Act, 2017, power of the Tribunal to summarily reject election petition for non-compliance of any provision of sections 142,. 143 and 144 is prescribed.
It is notable that each provision of sections. 142, 143 and 144 of Act 2017, inter alia, provides for various requirements, each of which requirement calls for independent determination qua compliance or otherwise. And only the effect of non-verification of election petitions is subject of instant determination. Now coming to the question that whether the purpose of sub-section (2) of section 145 of Act, 2017 , read with Rule 140 of Rules, 2017, is to suppress alleged mischief of summary dismissals of election petition(s) for want of due and proper verification. Mischief Rule of statutory interpretation had its genesis in the `Heydon's case', and opinion expressed by Lord Coke was reproduced at, page 33.4 of N.S Bindrai's Interpretation of statutes 12th Edition, in following terms:- "It was resolved by them that for the sure and true interpretation of statutes in general be they penal or beneficial, restrictive or enlarging of the common law.., the obligation of all the judges is always to make such construction as shall suppress the mischief and advance the remedy , and to suppress subtle inventions and evasions for continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy , according to the true intent of the makers of the Act, pro bono public. This rule is popularly known as the 'mischief rule'. In a broader sense, this may be, understood as the purposive construction of statutes."
[Emphasis supplied]
12. In N.S Bindra's 'Interpretation of Statutes' 12th Edition -- page 335, following essential conditions were explained for invoking Mischief Rule of statutory interpretation; For an application of the mischief rule firstly' `it must be possible to determine from a consideration of the provisions of the Act read as a whole what the mischief was that was the purpose of the Act to remedy; secondly , it must be apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purposes of the Act was to be achieved; and thirdly , it must be possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attenti on been drawn to the omission before the Bill passed into law. Unless these three conditions are fulfilled any attempt by a court of justice to repair the omission in the Act and to determine what is the meaning of a writte n, law, which Parliament has passed cannot be justified as an exercise of its jurisdiction. Such an attempt crosses the boundary between interpretation and legislation. It becomes a usurpation of the function, which under the constitution of this country is vested in the legislature to the exclusion of the courts.
[Emphasis supplied]
13. Limitations, defining sphere of Mischief Rule, are discussed in the case of "Sri Ram Saha Vs. State of W.B. and others" (2004) 11 SCC 497 - reproduced in N.S Bindra's 'Interpretation of Statutes' 12th Edition at page 335 -- which reads as; ".......It observed that the courts could not re-write a statue in the guise of purposive interpretation. A purposive interpretation may permit a reading of the provision consistent which the purpose and object of the Act but the courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation."
[Emphasis supplied]
14. When, section 145 of Act, 2017 and Rule 140 of the Rules, 2017, are examine d in the context of prerequisites of cannons of purposive statutory const ruction, it is not difficult to hold that requirement of verification of the election petitions is conspicuously retained while legislating new law. Submissions by the counsels for petitioners regarding application of Mischief Rule are misconceived. The legislative intent, regarding requirement of verifications of petitions and effect of non-compliance, is unequivocally evident, which clear , unambiguous and emphatic intent cannot be compromised in the garb of proposed purposive construction.
15. The question is whether , under prevalent election law regime, the requirement of verification of election petition is mandatory or directory? The distinction qua a mandatory and directory provision of law was aptly explained in Bennion on Statutory Interpretation, Oliver Jones Sixth Edition, at page 27 -- while reproducing portion from William Blackstone Commentaries on the Laws of England, - which reads as; ".... it is but lost labour to say, "do this, or avoid that," unless we also declare, "this shall be the consequence of your non-compliance."
It was further elaborated by quoting a portion from the judgment in the case of Howard Vs. Bodington (1877) 2 PD 203 at 21 1), authored by Lord Penzance in following terms; "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look- to the subject matter , consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a. review of the case in that aspect decide whether the enactment is what is called imperative or only directory .
I have been very carefully through all the principal cases, but upon reading 'them all the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases.
They are on 011 sorts of subjects. It is very difficult to group them together . and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Compbell in the case of Liverpool Borough Bank v T urner ."
16. The requirement of verification of election petitions, and strict conformity thereto, is not alien to the election `laws - ROP A and now Act, 2017. Supe rior Courts of Pakistan have repeatedly upheld and affirmed the critical importance of requirement of verification of election petition(s) and indispensability thereto, declaring such requirement as mandatory . Reference is aptly made to the ratio laid in the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra), wherein it was held that 'it is conclusively settled by this court that verification of an election petition is mandatory and a petition which lacks prdper verification shall be summarily dismissed by the Tribunal, even if the respondent has not asked for or prayed for its dismissal'. In the case of Lt.Col (Rtd) Ghazanfar Abbas Shah (supra) reference was made to celebrate d decisions in the cases of "Zia Ur Rehman Vs. Syed Ahmed Huss ain and others" (2014 SCMR 1015 ) and Engr . Iqbal Zafar Jhagra and others Vs. Khalilur Rehman and 4 others"
(2000 SCMR 250 ).
17. In view of the aforesaid, there is no gain-saying that requirement of verification of election petition is mandatory , and not directory . Whether this mandator y requirement can be compromised / diluted by interpreting sub-section
(2) of section 145 of Act, 2017 in a manner suggested by the petitioners -- who averred that since election petition was not rejected under sub-section (1) by the Election Tribunal before issuing notices to each of the respondents, under sub-section (2) of section 145 of Act, 2017, hence, same cannot be rejected now, irrespective of defect of non-verification of petitions. This argument is bordering an obvious absurdity . The mandatory requirement of verification of election petitions cannot, otherwise, be compromised merely upon issuing notices under subsection
(2) of section 145 of Act, 2017. Sub-section (2) of section 145 cannot be interpreted, in the guise of purposive interpretation, to render sub-section (1) of section 145 ineffective / redundant or otherwise restrict / limit its applicability only before the stage of issuance of notices. Merely upon issuance of notices it cannot be held that Tribunal is denuded of its power under sub-section (1) of section 145 of Act, 2017. Act of issuance of notices by the Tribunal would not be construed as prejudicial to the rights, otherwise extende d to the succeeded candidate, necessarily requiring verification of the petition containing allegations of corrupt and illegal practices. Such rights of the respondents, to question maintainability of election petitions suffering from want of proper verification, cannot be denied, in the guise of alleged action of issuance of notices by the Tribunal. The power of the Tribunal to proceed to ascertain fulfilment of requirem ent of verification cannot be restricted to a particular time frame - before issuance of notices. The requirement of verification, by all means, can be adjudged even after issuances of notices, irrespective that no objection was raised by the respondents. Tribunal is, otherwise, obligated to examine and unsure that requirement of verification of election petition is met -- as election dispute is not solely between candidates but involves the entire constituency . Sub-section (2) of section 145 of Act, 2017 cannot be construed in a manner to attribute redundancy to the subsection (1) of Act, 2017, or making the latter provision subservient to the former , when no such intent is manifested, explicitly or implicitly . It is, otherwise, an absurd argument that notwithstanding a nonconforming election petition -- suffering from want of verification -- mere issuance of notices would legitimize such non-conformity , when consequences for non-compliance are specifically provided. Tribunal cannot, otherwise, be divested of its power , to reject election petition summarily , once it reaches conclusion that election petition suffers from want of verification, notwithstanding notices were earlier issued under sub-section (2) of section 145 of Act, 2017, which constru ction defeats the very spirit and purpose of the Act, 2017. In these cases, notices were otherwise issued subject to the question of maintainability .
18. Learned counsel for the, petitioners, in fact, attributed acquiescence on the part of the Tribunal, alleging that Tribunal, upon issuing notices acquiesced to the alleged non-conformity . The argument on its face is fallacious. No acquiescence is attributable to the Tribunal with respect to the statutory powers conferred thereupon, In the case of "Justice Muhammad Farrukh Irfan Khan, Judge Lahore High Court, Lahore Vs. Federation of Pakistan through Secretary , Ministry of Law, Justice and Parliamentary Affairs. Division Governmen t of Pakistan, Islamabad and 4 others" (PLD 2019 Supreme Court 509), it was observed that acquiescence is a specie of estoppel and there is no estoppel against the law .
19. Petitioners argued against retroactive application of sub section (1) of section 145, once notices were issued.
The presumption against retro activity is generally , an invariable rule, and unless a statute explicitly or by clear implication suggests retroactive applicati on no such presumption can be drawn. No such intent is evident from perusal of sub-section (2) of section 145 of Act, 2017.
20. There is another aspect of the matter . There is no dispute that doctrine of, curability , is available, and liberally applied to the civil suits, when plaints are not verified in accordance with the procedure laid down in Order VI Rule 15 of the Code. Whether doctrine of curability is attracted when issue of non-verification of election petitions arises.
Tribunal under section 141 of Act, 2017 enjoys all the powers of the Civil Court, trying a suit under the Code of Civil Procedure 1908, and is deemed as Civil Court within the meaning of sections 476, 480 and 482 of the Code, but still there is no room for invoking doctrine of curability , with respect to non-verification of election petition(s), when non-compliance of the condition entails hostile consequences under sub-section (1) of section 145, ibid. Significance of requirement of verification of election petition is otherwise affirmed upon perusal of clause (a) of sub-section (1) of section 144 of Act, 2017 , which requires that election petition(s) shall contain a precise statement of material facts, accompanied with particulars of corrupt and illegal practice or alleged illegal act. The, allegations of corrupt and illegal practices entail serious consequences for the person, subjected to such allegations, which if substantiated, would disentitle such person from claiming any right qua election, besides attracting penalties in terms of sections 174 and 183 -of Act, 2017. Allegations of corrupt and illegal practices are in the nature of quasi- criminal charge, therefore same must be clearly stated in the election petition, to justify and support an attack launched, besides enabling a fair opportunity to defend. Order VI Rule 15 of the Code, incorporated through reference in sub-section (4) of section 144 of Act, 2017, calls for verification, on oath or sworn affirmation, which requirement essentially intended to discourage wild, undependable and ambiguous allegations; to fix responsibility / ownership, unto the deponent, qua allegations; to ensure seriousness and soundness of the allegations, besides testing their genuineness. The significance of essential disclosure of material facts came under discussion in the case of "HD. Revanna Vs. Puttaswamy Gowda and others" (AIR 1999 SC 768 at page 774), relevant portion is reproduced as:- `'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."
The significance of stating material facts can be gauged from the-decision in the case of "Zia Ur Rehman Vs. Syed Ahmed Hussain and others" ( 2014 SCMR 1015 ), relevant portion whereof is reproduced as; "While dilating with the import and effect of the afore-referred provision and as to whether non-compliance of this is a curable defect, the Indian Supreme Court in Dr. (Snit.) Shipra etc. V. Shanti Lal Khoiwal etc. (AIR 1.996 SC 1691) held that "verification by a Notary or any other prescribed authority is a vital act which assures that the election petition 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 the 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 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".
21. The question, therefore, is that whether election petition(s) without statement of material facts is proceedable in law. There is no cavil that lack of disclosure of material facts would imply absence of a valid' and legitimate cause 'of action. Whether an election petition containing statement of material facts -- supported by full particulars of corrupt and illegal practices - but not duly verified, can be treated as a valid and potentially triable petition, disclosing a tangible cause of action? A mere statement of material facts without due and proper verification of election petition, as required under sub-section (4) of section 144 .of Act; 2017, would, for all intent and purposes, be construed as devoid of any triable cause of action. Argument that upon issuance of notices power to reject an election petition is not available or exercisable otherwise appears to be ludicrous, suggesting that election petition containing unverified statement of material facts -being devoid of cause of action - can still be put to trial. Sensitivity of the requirement of stating material facts in the election petition, which is needed to be verified in the manner laid in Order VI Rule 15 of the Code, can be adjudged from another angle. Perusal of section 83 of the Representation of People Act 1951 - Election law regulating election matters / dispute in our eastern neighborhood - manifest requirement of Affidavit, in support of allegation of corrupt practice. It is expedient to reproduce section 83, ibid, hereunder as; 1183. 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 C'ode of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: 2 [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed from 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.] [Emphasis supplied]
22. When examined in the context of controversy at hand--requirement of verification of election petitions - Representation of People Act 1951 does not contain a provision similar to sub-section (1) of section 145 of Act, 2017, prescribing consequences for nonverification of election petitions. It sugge sts that doctrine of curability of defect relating to verification of election petition is attracted under Representation of People Act 1951. However , learned three Member Bench of Hon'ble Supreme Court of India in case of "V. Narayanaswamy v. C. P.
Thirunavukkarasu" (AIR 2000 SC 694) affirmed the order passed by High Court , whereby election petition was dismissed in limine for non-compliance of section 83, found lacking in material facts and suffering from a defective affidavit. Relevant portion is reproduced hereunder:- "There is difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., Clause (a) of Sub-section (1) of Section 83. Then under Clause (b) of Sub-section (1) of Section 83 the election petition must conta in full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. "It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability , on the principles contained in the CPC. Noncompliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule I I of the CPC."
[Emphasis Supplied]
23. Summing up the analysis, it is held that requirement of verification of the electio n petition -- in accordance with the requirements prescribed in Order VI Rule 15 of the Code - is mandatory and non-compliance thereof constitute an incurable and fatal defect, which default situation does not attract doctrine of curability under Act, 2017.
24. Therefore, notwithstanding issuance of notices under subsection (2) of section 145 of Act, 2017, an election petition can be rejected summarily , if found lacking or deficient in verification. Issuance of notices, simplicitor , cannot be construed as supplying legitimacy , otherwise lacking. Hence, power under sub-section (1) of section 145 of Act 2017, regarding non-verification of election petition(s) can be exercised before and after issuance of notices -- in the cases at hand stage, determination of factum of non-compliance arose after notices were issued, before the initiation of trial. First question is answered in affirmative. No bar can be plead ed or attracted qua exercise of the jurisdiction / power to reject election petitions summarily , which are failing to meet requirement under sub- section (4) of section 144 of the Act, 2017. Each election petition will be exam ined separately with regard to compliance of requirement of verification of the election petitions.
25. Now I take up second question of law. Snap submissions are that Rule 140 of Rules, 2017 creates rights, by affording an opportunity to cure deficienc y within prescribed time, and unless such opportunity is provided, sub- section (I) of section 145 cannot be invoked to reject election petitions summarily .
26. There is no cavil that delegated legislation -- Rules, 2017 -- cannot be construed to outshine the scope of the Enabling Act, which Rules would alway s remain subservient thereto. And any attempt to construe the Rules otherwise would certainly attract the doctr ine of ultravires. Whether the Rules can be harmoniously interpreted, or requisite declaration of invalidity is indispensable? There is no objection qua exercise of authority by the rule making authority , in terms of section 239 of Act, 2017. The controversy , hinges on the applicability or otherwise of Rule 140 of the Rules 2017 in the context of sub-section (1) of section 145 of the Act, 2017, read with sub-section
(4) of section 144 of Act, 2017. To construe Rule 140, ibid, it is essential to ascertain its legal character .
27. Pertinent question is that whether Rule 140 of Rules, 2017 enacts a procedure or enunciates a condition touching substantial rights. Reading of Rule 140 of Rules. 2017 clearly suggests that particular rule enacts a rule of procedure. Conversely , sub-section (1) of section 145 of Act, 2017 substantially affects a right of action prescribes consequences for non-compliance of one of the requirements of verification of election petitions -- and creates enforceable rights once limitation prescribed, for presentation of the election petition, is lapsed. To comprehend the distinction between a procedural and subs tantive law, reference is made to the ratio of decision in the case of "Nabi Ahmed and another Vs. Home Secretary , Government of West Pakistan'Lahore and 4 others" (PLD 1969 Supreme Court 599), relevant portion whereof is reproduced hereunder; "True, it is not easy to draw a line between substantive and procedural law, but the task is not impossible if the essential dif ference is kept in mind. According to Salmond's Jurisprudence, 12th Edition of 1966 at Page 128-- "The law of procedure may be defined as that branch of the law which governs the process of litigation....... All the residue is substantive law , and relates, not to the process of litigation, but to its purposes and subject matter ,"
Thus: "a right of appeal a right to give evidence on one's own behalf, a right to interrogate the other party ," 'rules defining the remedy . .... as those which define the right itself" that part of criminal law which deals. not with crimes alone, but with punishments also, as the measure of liability and many rules of procedure which, in their practical operation, are wholly or substantially equivalent to rules of substantive law ," and as such must be treated as falling within the classification of substantive law. In this category has been included by this Court the change of forum- "If in the process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice."
28. While explaining the Rules of Construction regarding procedural and substantive law, N.S Bindra's Interpretation of Statutes -- 12th Edition at page 752 - quoted Lord Penzance' opinion in the case of Kendall v.
Hamilton - [1879] 4 AC 504 - in following terms; "Procedure is but the machinery of law, after all the channels and means, whereby law is administered and justice reached It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights and is thus made to govern where it ought to subserve."
29. There is no cavil that no person can claim to have a vested right in procedure, but an exception is made with respect to cases where lapse of limitation results in extinguishment of a right, in which case provision dealing with limitation would be construed as substantive provision of law. The principle is elaborated in the case of "M's Bharat Barrel & Drum Mfg Co. Private Ltd and another Vs. The Employees Estate Insurance Corporation" (AIR 1972 Supreme Court 1935, at pages 1937, 1939 & 1941). Relevant portions are reproduced as under:- "While this is so there are two aspects of the statutes of limitation the one concerns the extinguishment of the right i f a claim or action is not commenced with a particular time and the other merely bars the claim without affecting the right which either remain merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where,a statute prescribing the limitation extinguishes the right it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural. ............. "It is therefore apparent that whether the fulfillment of a particular formality as a condition of enforceability of a particular right is procedural or substantive has not been as we had already noticed free from difficulty . What appears to be a self-evident principle will not become so evident when we being . to devise tests for distinguishing procedural rule from substantive law. It appears to us that there is a difference between the matter in which the jurisprudential lawyers consider the question and the way in which the Judges view the matter . The present tendency is that where a question of limitation arises, the distinction between so called substantive and procedural statutes of limitation may not prove to be a determining factor but what has to be considered is,whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy . Instead of generalizing on a principal the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive right and extinguishes them or 'Whether it merely concerns a procedural rule only dealing with remedies or whether the intendment to prescribe, limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc."
30. A reference is made to the decision in the case of N.K Bajai v. Union of India & Anr. (AIR 2012 SC 1310), relevant portion as appearing in paragraph 48 is reproduced as;
48. Earlier , the nature of law, as substantive or procedural, was taken as one of the determinative factors for judging the retrospective operation of a statute. However ,' with the development of law, this distinction has become finer and of less significance. Justice G.P. Singh, in his Principles of Statutory Interpretation (12th Edition, 2010) has stated that the classification of a statute, as either a substantive or procedural law, does not necessarily determine whether it may have retrospective operation. For example, a statute of limitation is generally regarded as procedural, but its application to a past cause of action has the effect of reviving or extinguishing a right to sue.
Such an operation cannot be said to be procedural. It has also been noted that the rule of retrospective construction is not applicable merely because a part of the requisites for its action is drawn from a time antecedent to the -passing of the relevant law. For these reasons, the rule against retrospe ctivity has also been stated, in recent years, to avoid the classification of statutes into substantive and procedural and the usage of words like 'existing' -or 'vested'. Referring to a judgment of the Australian High Court in the case of Maxwell v. Murphy [(1957)
96 CLR 261J, it is recorded as follows: "One such formulation by Dixon C.J. is as follows: 'The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty , to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But given rights and liabilities fixed by reference to the past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."
[Emphasis supplied]
31. In view of the aforesaid, significance and preferability extended to a substantive provision of law vis--vis procedural provision begs no further elaboration. Hence, Rule 140 of. Rules, 2017 cannot be interpreted in a manner to encumber sub-section (1) of section 145 of Act, 2017, including obligations prescribed.
32. Now turning to elemental question that whether Rule 140 of Rules, 2017 attracts doctrine of curability , as argued by the counsels representing petitioners. The question of curability of defect qua verification has to be considered in the context of the section 142 of Act, 2017 -- which provides limitation of 45 days for initiating an action for throwing, challenge to the declaration of a returned candidate. Limitation of 45 days is to be reckoned from the date of declaration. Whether a non-verified election petition(s) is curable after lapse of prescribed period of limitation. Under the provisions of ROP A, defect of want of verification -- after lapse of period of limitation prescribed -- was treated as an incurable defect, as held by various judicial pronouncements, which legal position is not denied. by the counsels, but they argued that effect and consequence of defect regarding verification of election petition, have had to be examined and appreciated in the context of Rule 140 of Rules, 2017. It is not the case of any of the petitioners that limitatio n provided is extendable or same when lapsed can be condoned for the purposes of entertaining election petition. It is. however , argued that election petition(s) when filed within the provided 45 days, any subsequent allowance of time, for rectification of alleged deficiency , within additional seven days, would not attract section 142 of the Act, 2017. Comparison was drawn to the practice followed for allowing time for the removal of objections, by the office, once petitions are filed within limitation by referring to Rules and Orders of the Lahore High Court, Lahore. Argument is misconceived, impliedly suggesting, that subordinate legislative instrument, i.e., the Rules would prevail / defy the provisions of Enabling Act, which proposed construction falls within the realm of a legal impossibility . Rules cannot control, defy or militate against the provisions of the parent Act. The suggested interpretation is also contrary to the principle of harmonious interpretation -- jeopardizing the very existence of Rule 140 of Rules, 2017. The applicability of doctrine of curability has to be considered in the context of election law, being statutory and calls for strict compliance. Election petition(s) lacking in due and proper verification, once statutory period of limitation expires, are infested with an incurable malaise. Any concession, by allowing time to cure the defect after lapse of 45 days, from the date of notification of returned candidate(s), would clearly defeat the mandate of section 142 of Act, 2017. Rule 140 of Rules, 2017 cannot be elevated to a status of a parent statute, allowing change in the limitation prescribed. This aspect was discussed in the case of M/s Bharat Barrel & Drum Mfq Co. Private Ltd and another (supra), relevant portion whereof is reproduced hereunder as:- ....It appears to us that where the legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder . It cannot be considered to have left such matters in respect of claim under some similar provisions to be provided for by the rules to he made by the Governmen t under its delegated powers to prescribe the procedure to be followed in proceedings before such Court."
The significance of period of limitation qua defect of non-verification came up for discussion in the case of "Nina Manzoor Vs. Malik Ibrar Ahmed and others" ( PLD 2015 SC 396 ), relevant portion whereof is reproduced as:- "6. It is, indeed true that in suitable cases and where the amendment sought is necessary for the purposes of determining the real issue, the bar of limitation may be overlooked, however , the amendment, rather the making up of the lacuna, sought to be allowed cannot be considered to be an amendment necessary for the adjudication of the controversy/allegations pertaining to rigging and corrupt practices in the election process, as were involved in the present case. Furthermore, since the petition suffered with the inherent defect of noncompliance of section 55(3) of the ROP A, consequently resulting in its summary dismissal as prescribed by section 63 of the ROP A, the petitioner cannot be allowed to circumven t the purpose of law in the manner sought by him. Reliance in this regard is placed on the case of Malik Umar Aslam; (supra), where amendment sought in the memo of an election petition in similar circumstances was dealt with as - "9 This Court in the case: of Ghulam Bibi (ibid) observed that the question of limitation can be overlooked, once the Court decides that amendment is necess ary for the purpose of determining the real question. Applying this test on the case in hand, even if we were to allow the application for amendment, we have to conclude that as far as the amendment in the verification clause is concerned, it would not essentially determine the real issue i.e. controversy between the parties namely respondent No.1 was not a graduate and as such was not qualified to contest election or she has secured false and fictitious bachelor degree through foul means or she is a loan defaulter , etc. It may be noted that in the case of S.M. Ayub (ibid), which has been heavily relied upon by the learned counsel for appellant, this Court noticed that if defect in the pleadings is of such a nature that same would not be sufficient to nonsuit the petitioner , amendment can be allowed, but if defect is of such a nature which if allowed to be cured will change the complexion of the proceedings, then the amendment cannot be allowed, but if defect is of such a nature which if the amendment cannot be allowed Had the appellant sought amendment in pleadings for determination of real- issue, relating to merits of the case. the Court could have considered the request of amendment but verification on oath in absence of administration oath by an authorized person, by no stretch of imagination. is an amendment to determine the real -issue between the parties 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 appellant.
An order of the Election Tribunal permitting amendment to cure the defect in the verification sought after expiry of the period of limitation was set aside by this Court in the case of Engr. Zafar Iqbal Jhagra (supra) which view has been reiterated by this Court in the case of Zia-ur-Rehman (supra) in the following words:- "13.
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."
[Emphasis supplied]
33. The argument that alleged lack of verification may be construed as a mere deficiency and time be allowed for curing such deficiency , by allowing amendments in the petitions, is misconceived. The question allowing applications seeking amendments for the purposes of attending the defect Of verification of petition was also dealt with in the case of "Malik Umar Aslam Vs. Sumera Malik and another" (PLD 2007 S.0 362), relevant portion is reproduced as under:- "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 !earned counsel for appellant.
In this context, suffice to observe that ignorance of law is no excuse. The appellant who had approached the Election Tribunal was bound to fulfill the requirement of the law including the verification of petition in terms of section 55(3) of the Act, 1976. It may also be added at this juncture that notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before. it stands complied with fully particularly in the cases where noncompliance of mandatory provision prescribes a penalty ."
[Emphasis supplied]
34. Reference is also made to the case of "K Venkateswara Rao and another Vs. Bekkam Narasimha Reddi and others" (AIR 1969 SC 872), which is reproduced as:- "It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment: the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however . the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and selfcontained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act."
It is to be noted however that even though the Indian Limitation Act, 1963 does not apply to an election petition provisions like sections 9 and 10 of the General Clauses Act 1897 providing for computation of time which are in pari materia with the Sections 12(1) and 4 of the Limitation Act would apply to such a petition [Emphasis supplied]
35. In all the petitions, 45 days stood lapsed, hence, defect becomes incurable, which non-conformity can be examined and adjudged by the Tribunal in exercise of its jurisdiction. Certainly , it is a different scenario if due and proper verification is accordingly supplied, before lapse of statutory period of limitation, either upon fresh filing of the election petition or re-verification, as the case may be. Tribunal, while processing election petitions cannot allow time for removing objections by resorting to the Rules and Orders of Lahore High Court Lahore, when period of limitation was prescribed, for presentation of election petitions, under the Act, 2017 and Rules, 2017. Needless the mention that lack of due and proper verifi cation, after lapse of 45 days, creates / extends an acknowledgeable and enforceable right to the returned candid ate, which substantive right is fully acknowledged under election law.
Limitation prescribed in section 142 of the Act, 2017 cannot be extended by construing Rule 140 of the Rules, 2017, in a manner to allow it to, to affect substantive right's, acknowledged under the Enabling Act. Any such construction would jeopardize the legitimacy of the rule and tantamount to transgression / misuse of rule-making power . Upon expiry of period of limitation, provided for presentation of election petition and determination of question of requirement of verification of election petitions, sub-section (1) of section 145 of Act, 2017, read with section 142 of Act, 2017 shall, for all intent and purposes, be construed as a provision extending substantive / enforceable rights and powers thereunder are exercisable by the Tribunal accordingly .
36. In view of the above, there is no room for attracting the doctrine of curability as far as requirement of verification of election petition is concerned -- once limitation provided stood lapsed. The question that whether doctrine of curability or principle of substantial compliance are attracted with reference to non-fulfilment of any other requirement under any provision of section 142, 143 and 144 of Act, 2017 -- other than the requirement of nonverification - is not the subject of adjudication. In a recent decision in the case of "Sardar Abdul Rehman Vs. Abdul Kareem Khetran and others" (2021 SCMR 82), Hon'ble Supreme Court of Pakistan reaffirmed mandatory nature of requirement of verification of election petition(s) under the Election Act, 2017, which per se excludes applicability of doctrine of curability of defect regarding verification of election petition.
37. Hence, Tribunal upon finding inciden ce of non- fulfillment of sub section (4) of Section 144 is empowered, competent and entitled to reject election petition summarily , after lapse of limitation of 45 days. And Rule 140 of Rules 2017 cannot be construed to encumber or restraint the powers of the Tribunal under sub section (1) of section 145. Rule 140. Question No.2 is answered in negative.
38. Questions of law are accordingly decided, which determination would be read as part of the decision of other connected petitions -- each of which will separately be decided in the context of objection of absence of due and proper verification. Since questions of law are decided in instant petition, therefore, I now proceed to decide the issue that whether petition is duly verified or not, and ef fect thereof.
DETERMINA TION OF REQUIREMENT OF VERIFICA TION OF INST ANT PETITION, ON MERITS:
39. Petitioner through instant Election Petition calls in question election of Electoral Constituency PP-225, Laodhran-lI. 'T ribunal now proceeds to examine factum of due and proper verification of instant election petition.
40. I have examined verification on instant election petition and finds it deficient / non-compliant, when examined in the context of Order VI Rule 15 of the Code and ratio of the decision in the case of 'Lt. Col. (Retd.) GHZANF AR ABBAS SHAH' (supra). The petition though mentions that verification is on oath, which contained a certificate by the Oath Commissioner , and stamped as attested, however , it cannot be held and declared -- in view of the deficiencies and shortcomings apparent that petitioner was personally / physically present, duly and adequately identified and oath affirmation was duly administered. The certification is deficient in material details, where words to the effect that petitioner was present before the oath commissioner and oath was evidently administered were lacking. Mere statement of identification by the person, be it an Advocate, without details and description is insuf ficient to meet the requirement of sub-section (4) of section 144 of Act, 2017, read with Order VI Rule 15 of the Code. Instant verification cannot be construed as a valid and proper verification for the purposes of election petition.
41. The election petition is accompanied with full affidavit of the petitioner , which is also examined and found to be deficient and noncompliant in terms of section 139 of the Code, Rule (3) of Order XIX of the Code and provisions of High Court Rules and Orders, Chapter 12, Volume IV, Part-B Rules 11, 12, 14, 15 and 16 thereof. The certification on affidavit also suffers from same defects, as observed in the verification of the petition. The certificate is not as per the format provided under the Rules and Orders, ibid. Hence, Affidavit also fails to meet statutory requirements.
42. In view thereof, petition is hereby summarily rejected in exercise of powers under sub-section (I) of section 145 of the Act, 2017, being non-compliant and suf fering from want of due and proper verification.
43. There is another aspect of the matte r. While perusing the contents of the petition, it is evident that various allegations have been levelled against the returned candidate, respondent No.1, which constitutes information in terms of section 165 of Act, 2017. Referen ce is made to allegation in paragraph No.3(i). It is expedient to reproduce section 165 of Act, 2017, which reads as;
165. Additional powers of Election Tribunal.
(1) If an Election Tribunal, on the basis of any material coining to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues and utility expenses, or has submitted a false or incorrect declaration regarding _payment of loans taxes government dues and utility expenses or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents to show-cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability which such candidates may have incurred, under this Act or under any other law for the time being in force, make an order--
(a) declaring the election of the returned candidate to be void; and -
(b) declaring any other contesting candidate to have been duly elected if any of the conditions specified in Section.
157 are proved to the satisfaction of the Election Tribunal.
(2) No order shall be made under sub-se ction (1) unless the returned candidate has been provided an opportunity of being heard".
[Emphasis supplied]
44. It appears that upon availability of information and forming an opinion -- that show cause is essential to verify and affirm the factum of allegations -- the Tribunal, is competent to -- notwithstanding any order in the Election petition -- issue show cause notice and call for explanation. Whether such a course can be adopted by this Tribunal, after rejection of the election petition, being deficient of the requirement of verification? Guidance is found regarding availability of jurisdiction and due exercise thereof, notwithstanding rejection of election petition -- from the Law enunciated by Hon'ble Supreme Court of Pakistan in case of "Rai HASSAN NAWAZ v. Haji MUHAMMAD AYUB and others" (PLD 2017. Supreme Court 70), relevant portion whereof is referred hereunder:-
14. Be that as it may, notwithstanding the bar of limitation it must be observed that the matter does not end here.
By the incorporation of Section 76A in the ROP A, the Legislature has invested an extra-ordinary jurisdiction in the Election Tribunal, inter alia, in matters pertaining to financial statements, declarations and disclosures made by returned candidates in their nomination forms. The said provision is reproduced hereunder:- 76A. Additional Powers of Election Tribun al-(1) If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues or utility charges, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues or utility charges, or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents under section 12, it may, on its own motion or otherwise, call upon such candidate to show cause why his election should not be declared void and if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or has been made on an election petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order --
(a) declaring the election of the returned candidate to be void; and
(b) declaring any other contesting candidate to have been duly elected.
(2) If on examining the material or inform ation referred to in subsection (1), an Election Tribunal finds that there appear reasonable grounds for believing that a returned-candidate is a defaulter or has submitted a false or incorrect declaration referred to in subsection (I) it Hafeez, may, pending decision of the motion wider subsection (1), direct that the result of the returned candidate shall not be published in the of ficial Gazette.
(3) No.order under subsection (I) or subsection (2) shall be made unless the returned candidate is provided an opportunity of being heard. (emphasis supplied)
It is clear from a plain reading of Section 76A of the ROP A that the power conferred on the Election Tribunal is exercisable on its own motion on the basis of material brought to its knowledge from any source, The Election Tribunal is therefore vested with a suo mow power to scrutinize, inter cilia, false or incorrect statements made by a returned candidate in respect of his own assets and liabilities and those of his spouse or his dependents. These attributes dispense with any locus siandi requirement for the informant, excludes any constraint of a prescribed limitation period, empowers the Election Tribunal to adopt a summary procedure initiated from a show cause notice. Section 76A ibid does note envisage opposing parties in its proceedings which are therefore not adversarial in nature. It is also clear that to obtain its satisfaction an Election Tribunal can summon requisite evidence on its own motion.
45. This Election Tribunal is vested with additional power , to be exercised 'under Section 165 of the Act, 2017. I find that ex-facie information provided in the petition is adequate enough to issue a show cause notice to the returned candidate in exercise of power under Section 165 of the Act. 2017.
46. In these circumstances, office is directed to issue show cause notice to the returned candidate, i.e., respondent No.1, who may, if advised, file written reply to the allegations in the election petition - in the context of Section 165 of the Act, 2017. Let this matter be fixed for hearing before the Tribunal in the third week of April, 2021: Order accordingly .
Result was announced in open Court on 31st day of December-2020, however , written judgment is released on 12.03.2021.
Sr. #Case # Title
01. Election Petition No. 8/2018 Begum Tehmina. Daultana Vs. ECP, etc.
02. Election Petition No. 1/2018 Mst. Ayesha Nazir. Vs. ECP, etc.
03. Election Petition No. 12/2018 Mian Shahzad Maqbool Bhutta Vs. ECP , etc.
04. Election Petition No. 14/2018Rana Muhammad Faraz Noon Vs. Shah Muhammad, etc.
05. Election Petition No. 15/2018Syed Muhammad Rafi Ud Din Bukhari Vs. Nazir Ahmad Khan, etc.
06. Election Petition No. 16/2018Nawab Amanullah Khan Vs. Khan Muhammad Sadiq Baloch, etc.
07. Election Petition No. 17/2018Muhammad Amir lqbal Shah Vs. Zawar Hussain Warraich, etc.
08. Election Petition No: 19/2018Amir Hayat Hiraj Vs. ECP, etc.
09. Election Petition No. 22/2018 C.M No. 2483/2020Muhammad Akhtar Khan Kanj000 Vs. Abdul Raman Khan.
10. Election Petition No. 23/2018Malik Muhammad Akram Vs. Naghma Mushtaq etc.
11. Election Petition No. 25/2018 C.M No. 2448/2020Ahmad Yar Hiraj Vs. Muhammad Khan Daha, etc.
12. Election Petition No. 26/2018Bilal Akbar Bhatti Vs. Muhammad ljaz Hussain, etc.
13. Election Petition No. 27/2018Muhammad Jamshed Shaukat Vs. Babar Hussain Abid, etc.
14. Election Petition No. 28/2018 Syed Abdul Qadir Gillani Vs. Ahmad Hassan Dehar , etc.
15. Election Petition No. 29/2018 Mian Kamran Abdullah Vs. ECP , etc.
16. Election Petition No. 32/2018 Muhammad Tariq Rasheed. Vs. Malik Muhammad Amer Dogar , etc.
17. Election Petition No. 20/2018 C.M No. 2965/2020Pir Muhammad Aslam Bodla Vs. Zahoor Ahmad Qureshi, etc.