Kh. Muhammad Nasim, J. This is an appeal under Section 94(3) of the Azad Jammu and Kashmir Elections Act, 2020 (Elections Act) against order of the Azad Jammu and Kashmir Election Tribunal dated 12.06.2023, whereby, the election petition filed by the appellant, herein, has been dismissed.
2. The appellant, who contested the local bodies elections for the seat of Councillor from Ward No. 7, Municipal Committee, Islamgarh, Mirpur, asserts that discrepancies, illegal voting, and non- compliance with laws and rules occurred on election day. The appellant's application for a vote recount was rejected and Respondent No. 5 was declared the returned candidate vide notification dated 16.12.2022. Dissatisfied with this, the appellant filed an election petition before the Election Tribunal, contesting the aforesaid notification on various grounds. Respondent No. 5 filed the objections as well as an application for dismissal of the petition under Section 90 of the Elections Act. The Election Tribunal dismissed the petition, citing therein that the petition is not duly verified and attested in accordance with Order VI, Rule 15 of the Code of Civil Procedure, 1908 (CPC).
3. The learned counsel for the appellant contended that the election petition has been dismissed on the ground that the petitioner has not specified by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information. The fact of the matter is that the appellant has verified the petition on the basis of his knowledge and belief and nothing is there to be verified on the basis of information, hence, dismissal of the petition on this hyper technical ground is not warranted. So far as the attestation of the verification by the Notary Public, is concerned, this Court has recently held in a case titled Ch. Maqbool Ahmed vs. Ch. Muhammad Ismail [Civil Appeal No. 114 of 2023 decided on 25.07.2023] that the Notary Public is empowered to attest the verification. The learned counsel further argued that the trial of election petitions in the cases of elections of local bodies is conducted under Chapter VI of the Azad Jammu and Kashmir Local Government Elections Rules, 1983, whereas, trial of election petitions in the cases of general elections of Legislative Assembly is conducted under Chapter IX of the Elections Act. The verification of an election petition is requirement of Rule 56(6) of Rules, 1983 and rule 59(1) speaks that in case of non-compliance of any provision of the rules the Election Tribunal "may" dismiss the election petition, whereas, quite contrary to this under Section 90 of the Elections Act the word "shall" has been used, hence, in the cases of elections of local bodies an election petition cannot be dismissed due to any defect in the verification rather the same can be cured in exercise of the powers vested under the CPC. He lastly requested for acceptance of this appeal and setting aside the impugned judgment of the Election Tribunal.
4. Conversely, Ch. Khurram Saif Ali, Advocate, the learned counsel for Respondent No. 5 submitted that under Section 83(3) of the Elections Act every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the CPC, for the verification of pleadings. The appellant has failed to verify the election petition in accordance with law as he has not specified with reference to numbered paragraphs that what he verifies of his own knowledge and what he verifies upon information, hence, the Election Tribunal has rightly dismissed the election petition under Section 90 of the Elections Act. He further submitted that sections 83 and 90 fall in Chapter IX of the Elections Act and under Section 125-K, the provisions of Chapter VI, Chapter, IX and Chapter X of the Elections Act are applicable to the local government elections, hence, in case of any conflict between the Act and Rules the provisions of Act shall prevail. Under Section 90 of the Elections Act, the Election Tribunal shall dismiss the petition if the provisions of Section 82 and 83 are not complied with, hence, the Election Tribunal has rightly dismissed the Election petition due to failure of the appellant to verify the same in accordance with law. He further argued that the manner of attestation of verification by the appellant is also not in accordance with law. The Notary Public has merely put an attestation stamp, without verifying administration of oath and giving the date and place of administration of oath to prove that the oath had been actually, physical and duly administered to the deponent. In this state of affairs, the Election Tribunal has rightly dismissed the election petition. In support of his contentions, he placed reliance on the cases reported as Lt. Col. Rtd. Ghazanfar Abbas Shah vs. Mehr Khaldi Mehmood Sargana & others [2015 SCMR 1585], Alam Zaib Khan vs. Muhammad Nawaz Khan & others [1998 CLC 83] and Zia-ur-Rehman vs. Syed Ahmed Hussain & others [2014 SCMR 1015].
5. We have heard the learned counsel for the parties and gone through the record.
6. In this case, the appellant contested the local bodies elections for the seat of Councillor from Ward No. 7, Municipal Committee, Islamgarh, Mirpur. His contention is that on the election day some discrepancies, illegal voting, and non-compliance with laws and rules occurred, however, his application for recounting of the votes stood rejected and the Respondent No. 5 was declared as returned candidate. The appellant filed an election petition. The verification at the foot of the election petition speaks as under: "VERIFICATION: It is verified that the contents of the petition are true and correct to the best of my knowledge and belief and nothing has been concealed thereupon."
In support of the election petition, the appellant has also filed an affidavit, which is reproduced as under: "AFFIDAVIT IN SUPPORT OF ELECTION PETITION I, Ahsan Shoaib, s/o Muhammad Shoaib, r/o Muhala Dheri, Islamghar, Tehsil and District Mirpur do hereby solemnly affirm and declare as under:
1. That the contents of election petition from Para 1 to last and sub para 1 to XIII are true and correct to the best of my knowledge, belief and information.
2. That the contents of this affidavit are also true and correct to the best of my knowledge, belief and wisdom.
DEPONENT"
The first ground which prevailed with the Election Tribunal for dismissal of the election petition is that under Rule 83(3) of the Elections Act, every election petition and Every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the CPC.
Order VI, Rule 15(2) provides that the person specifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information. According to the Election Tribunal the appellant has not complied with the provisions of Order VI, Rule 15(2), CPC. We are fully in agreement with the argument of learned counsel for the appellant that the appellant has verified all the contents of the petition on the basis of his own knowledge and belief and nothing is there to be verified on the basis of information. Had there been anything to be verified on the basis of information then failure of the appellant to verify the same with reference to numbered paragraphs would have been fatal but no such eventuality exists in this case, hence, dismissal of the election petition on this hyper technical ground is not warranted under law.
7. The second proposition involved in this case is regarding the manner of attestation of the verification by the Notary Public. It is worth mentioning that this Court has already held in the case titled Ch. Maqbool Ahmed vs. Ch. Muhammad Ismail [Civil Appeal No. 114 of 2023 decided on 25.07.2023] that the Notary Public is empowered to attest the verification. The relevant portion of the judgment is reproduced as under: "9. Connected to this proposition, another point raised by the learned counsel for the appellant is that under Order VI, Rule 15, CPC every pleading shall be verified on oath or solemn affirmation and under Section 139, CPC oath is to be administered before the Oath Commissioner, hence, the attestation by the Notary Public (in the instant case does not fulfill the requirement of law. We are afraid, of the contention of the learned counsel which is having no substance. This proposition has already been resolved by this Court in Ch. Muhammad Aziz's case, supra, in the following manner: 'Thus, following rule of law laid down in Iqbal Zaffar Jhagra's case [2000 SCMR 250], Malik Umar Aslam v/s Sumera Malik & another [PLD 2007 Supreme Court 362], Sardarzada Zafar Abbas & others v/s Syed Hassan Murtaza & others [PLD 2005 Supreme Court 600], [Zia ur Rehman v/s Syed Ahmed Hussain & others [2014 SCMR 1015] and the judgment of this Court delivered in Muhammad Rafique Nayya r's case [PLJ 2003 SC (AJ&K) 145], we conclude that the attestation - of verification by any Court or Magistrate, any officer or other person appointed in this behalf by the High Court or any officer appointed by any other Court or provincial Government, is mandatory -and non-attestation merits dismissal of election petition. A separate affidavit is not a substitute of verification of the election petition.
Thus, the attestation of verification may be done by any Court or Magistrate, or any officer appointed by any other Court or Provincial Government. Under Section 3 of the Notaries Act, 1985, the Government of Azad Jammu and Kashmir is empowered to appoint notaries. Such notaries under Section 8(a) and (e) of Notaries Act, 1985 can verify, authenticate, certify or attest the execution of any instrument, administer oath to, or take affidavit from, any person, hence, the Notary Public is empowered to attest the verification and the objection of the learned counsel for the appellant in this regard has no force."
The learned counsel for the respondent has mainly objected to the manner of the attestation by the Notary Public. According to him, at the time of attestation, the Notary Public must record and endorse verification/attestation that oath had been actually, physically and duly administered to petitioner/deponent but in this case the attestation does not disclose that the appellant actually appeared before the Notary Public for administration of oath. We have no cavil with the argument of the learned counsel for the respondent., however, if at all the Notary Public has not mentioned the details regarding the attestation by him, the appellant cannot be penalized for that rather presence of stamp of Notary Public itself indicates and carries the presumption that appellant actually appeared before the Notary Public. In this state of affairs, this argument is also repelled.
8. The learned counsel for the parties have spent most of their time in arguing that under Chapter VI of the Rules, 1983 an election petition may be dismissed for non compliance of any provisions of Rules and the use of word "may" indicates that any defect in the verification is curable, however, according to the Notification No. SLG/62-74/2023 dated 02.01.2023 the aforesaid Chapter has been deleted being in contravention with the Elections Act, hence, this issue is no more alive.
In view of the above, we have no hesitation in holding that the learned Election Tribunal erred in law while dismissing the election petition. Resultantly, while accepting this appeal the impugned judgment is set aside. The Election Tribunal is directed to decide the petition on merits.