ABDULLAH BALOCH, J.---This order disposes of Election Petition No.02 of 2019 on the basis of C.M.A. No.328 of 2019 filed by the applicant/responden t No.2 with the prayer for rejecting the petition under the provisions of Section 145 of the Elections Act, 2017 (XXXIII of 2017) (hereinafter referred as, "the Act") on the ground of limitation as well as filing the petition in violation of mandatory provisions of Sections 142, 143, 144(2)(c) and 144(4) of the Act.
2. Facts of the case are that the petitioner Wali Muhammad and respondent No.2 Qadir Ali, along with respondents Nos.3 to 18 contested the By-Election of 2018 from the constituency of PB-26 Quetta-III, which was held on 31st December 2018. At this juncture, it is necessary to mention here that the By-E lections are the continuation of general elections of 2018 as in the general elections 2018, the elections were held in the said constituency and accordingly one Ahmed All Kohzad was declared as returned candidate, but subsequently he being an Afghan National and alien was disqualified. However , after conduct of By-elections on 31st December 2018 Final Consolidated Result (Form-49) was prepared by the Returning Officer ("R.O.") of the said Constituency , according to which the respondent No.2, Qadir Ali secured more votes than all the contesting candidates, while the petitioner secured second highest votes and thus the respondent No.2 was declared as returned candidate by the Election Commission of Pakistan, vide Notification No.F.8(11)/2018-Cord.(I)-dated 3rd January 2019. The petitioner being aggrieved of the same filed the oresent election petition with the allegations that massive rigging was committed on the day of election by casting bogus votes of those persons, who have either died or are residing abroad.
3. On service, the petition was contested by the respondent No.2 (returned candidate) by filing written statement, whereby he has mainly raised objection on the maintainability of the petition and refuted the allegations levelled by the petitioner . The respondent No.2 has also filed C.M.A No.328 of 2019 and prayed for dismissal of the petition.
Since, the respondent Nos. 2 has objected the maintainability of the petition, thus without deciding the fate of the application filed by the respondent No.2, further proceeding in the matter would be a futile exercise, thus under the peculiar circumstances of the case, it would be appropriate to first decide the fate of such application.
4. Learned counsel for applicant (respo ndent No.2) contended that the petition er whilst filing the petition has committed glaring illegalities not curable under the law as the petition has been filed after the expiry of stipulated period as provided under Section 142 of the Elections Act, 2017 i.e. within 45-days of the publication in the official gazette; that the petition is also hit by provisions of Section 143 of the Act due to mis-joinder of necessary parties; that the petition is also not maintainable in view of Section 144(2)(c) of the Elections Act as prior to filing of the petition, the copies of petition and its annexures were not dispatched to the contesting candidates and no affidavit is annexed in this regard; that the petitio n has also not been verified on oath as per mandatory requirement of Section 144(4) of the Elections Act, 2017; that the legal defects are apparent on the face of record, thus the petition is not maintainable and deserves to be rejected/dismissed.
5. Learned counsel for petitioner contended that during election process the respondent No.2 (returned candidate) has committed massive rigging and in order to prove the same, evidence is required in the matter and the petitioner cannot be knocked out on the basts of mere technicalities. Even otherwise, it has been remained the consistent view of the Hon'ble apex Court that the cases should be decided on its own merits and not on the basis of mere technicalities, thus prayed for dismissal of the application and allowing the petitioner to produce his evidence.
6. Heard the learned counsel for parties and perused the available record with their valuable assistance. Perusal of record reveals that the petition so filed before this Tribunal is suffering from legal defects not curable under the law.
It has been observed that after declaring disqualified to the then returned candidate i.e. Ahmed Ali Kozad , the Election Commission of Pakistan announced schedule for by-election in the cons tituency , which was accordingly held on 31st December 2018 and after counting, it appeared that the respondent No.2 has secured highest votes, thus the Election Commission of Pakistan vide Notification dated 3rd January 2019 declared the respondent No.2 as returned candidate from the said constituency . Since, the petitioner was not satisfied from the conduct of the election in the constituency and has alleged massive rigging, thus he was required to present an election petition before this Court within the meaning of Section 139 of the Elections Act, 2017. The provisions of Section 142(1) of the Act provides that an election petition shall be presented to the Election Tribunal within forty-five (45) days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposit ed at any branch of the National Bank of Pakistan or at any other government treasury in favour of the Commission as security for the costs of the petition.
By following such provisions of Section 142(1) of the Elections Act, 2017, I have perused the record and observed that the Election Commission of Pakistan vide notification dated 3rd January 2019 declared the respondent No.2 as returned candidate, thus the petition was required to be filed or presented before this Tribunal by or before 17th February 2019, but the petition was filed on 18th February 2019, while the presc ribed costs of the petition were deposited in National Bank of Pakistan M.A. Jinnah Road Quetta vide receipt No.33 dated 19th February , 2019.
Meaning thereby that at the time of prese nting the petition on 18th February 2019 before this Tribunal the costs of the petition was not deposited rather after filing of petition cost was deposited on 19th February 2019.
7. Be that as it may, on both cases either the petition is considered to have been presented on 18th or on 19th February 2019, the same is barred by time as stipulated under the provisions of Section.142 (1) of the Act, as the same should have been presented within the period of 45-days, but this has not been done and a time barred petition was presented before this Tribun al. For facilitation, the provisions of Section 142(1) of the Act, reads as under:
142. Presentation of petition.-- (1) An election petition shall be presented to the Election Tribunal within forty-five days of the publication in the official Gaze tte of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-T reasury in favour of the Commission, under the prescribed head of account, as security for the costs of the petition, such amount as may be prescribed.
2. ..................
3. .................
Undoubtedly , the petition presented before this Tribunal is barred by time and no plausible reasons have been mentioned by the petitioner for delay so occasioned in presenting the petition. Even A otherwise, the petitioner has also not filed an application for condonation of delay . Thus legally the petition is not maintainable and sustainable on this ground alone.
8. Now adverting to the remaining objections of the respondent No.2 suffice to state here that I have perused the case file thoroughly and it has been observed that prior to filing of the petition before this Court, it was mandatory that the copy of the petition along with copies of all annexures, including the list of witnesses, affidavits and documentary evidence must have been sent to the contesting respondents by registered post or Courier Service and after doing so the petitioner should have annexed with the petition an 'Affidavit of Service' to the effect that he has complied with the provisions of Section 144(2)(c) of the Act by dispatching the copies of petition and its annexures to all the respondents arrayed in the petition, but this has not been done so. The petitioner has directly filed the petition before this Court and has failed to dispatch all required document s to the respondents, thus while doing so, the petitioner has committed another illegality and thus rendered the petition as not maintainable in view of Section 144(2)(c) of Act.
9.I have also gone through the petition along with its annexures and observed that the petition has also not been signed and verified in the manner as laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. Though, the petitioner has affixed signature at the foot of the election petition as well as on the annexures, but the same have not been attested/verified by an Oath Commissioner . Mere the signatures of petitioner himself without its verification by the Oath Commissioner is not enough to meet the requirement of verification provided under Order VI, Rule 15, C.P.C. and if the provisions of Order VI, Rule 15, C.P.C. is read with the provisions of Section 139, C.P.C., it will be crystal clear that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in such behalf. Since, the petition along with its annexures have not been verified on oath, thus the same is hit by the provisions of Section 144(4) of the Act, thus has rendered the petition as not maintainable. The Hon'ble Supreme Court of Pakistan in the case titled as Hina Manzoor v. Malik Ibrar Ahmed and others PLD 2015 SC 396, while dealing with the question of non-verification of the petition and its annexures has held: It is now well settled that merely affixing signature at the foot of the election petition and/or under its verification clause, without the same being attested/ verified by an Oath Commissioner , or some other authorized person, by itself, does not meet the requirement of verification as prescribed by Order VI, Rule 15, and thus renders the petition non-compliant with the provisions of section 55(3) of the ROP A, essentially entailing its dismissal in terms of section 63(a) of the ROP A. The first in the line of judgments in this regard is in the case of Engr. Iqbal Zafar Jhagra and others v. Khalil-ur -Rehman and 4 others (2000 SCMR 250), rendered by seven member Bench of this Court, and authored by the then Chief Justice, Hon'ble Justice Saiduzzaman Siddi qui, where objection with regard to the maintainability of an election petition in respect of election of the Senate was dealt with as follows:-- "Subsection (3) of section 36 (ibid) clearly requires that every petition and every Schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order Rule 15, C.P.C. which when read with section 139, C.P.C. clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with.
We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer from any legal infirmity ."
The Hon'ble Supreme Court of Pakistan has also taken a similar view in a case titled Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 , wherein it has been held that:
10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly , otherwise it would not be in compliance with the legislative intent. Non-compliance of this provision carries a penal consequence in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effec t of non-compliance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in lqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that "the verification of pleadings has been provided under Order VI, Rule 15, C.P. C. which when read with section 39, C.P. C., clearly shows that the pleadings are to be verified on oath and the oath is to be administered by a person, who is duly authorised in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gillani though mentions that it is on oath, the oath was neither verified nor attested by a person authorised to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with. We have considered the reasons given by the learned Tribunal in holding that the petition filed by Syed Iftikhar Hussain Gillani did not comply the provisions of section 36 of the Act and are of the view that these reasons do not suffer' from any legal infirmity ." [BOLD AND UNDERLINE ADDED ]
10. The next objection taken by the respondent No.2 with regard to mis-joinder of necessary parties also appears to be reasonable and in accordance with law. In the petition, the petitioner has joined nineteen (19) respondents, out of which the respondent No. 1 is the Returning Officer of the Constituency and the respondent No.19 is the NADRA, while the respondents Nos.2 to 18 are the contesting candidates. The provisions of Section 143 of the Election Petition are clear that only the contesting candidates can be made respondents and any other party cannot be joined as respondent unless otherwise directed by the Election Tribunal, while in the instant petition without seeking any permission from the Tribunal or the direction of the Tribunal, the respondents Nos.1 (R.O.) and 19 (NADRA) have been arrayed unnecessarily and thus the petition is also hit by the provisions of Section 143 Cr.P.C.
11. The provisions of Section 145 of the Act has made it clear that if any provision of Sections 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition. Admittedly , the petition in hand is hit by the above referred provisio ns of law. Neither the petitioner could explain the reasons for filing a time barred petition nor he was in a position to explain the reasons for non-verific ation of petition along with its annexures on oath and have also could not satisfy this Tribunal for not dispatchi ng the copies of petition and its annexures to the contesting respondents. The legal defects are apparent on the face of record, thus further trial in the matter would be nothing, but a futile exercise and wastage of precious time of this Tribunal. According to consistent view of the Hon'ble Supreme Court and has also held in the above referred case of Zia ur Rehman , that if the law requires a particular thing to be done in a particular manner it has to be done accordingly , otherwise it would not be in compliance with the legislative intent.
For the above reasons, the C.M.A. 328 of 2019 is accepted and accordingly the petition being not maintainable is hereby rejected under Section 145 of the Act, with no orders as to cost.