' This election petition calls in question the election of Mian Manzoor Ahmed Wattoo from Constituency No. PP-217 Okara-VII on the only ground alleged therein that he is a Qadiani by faith and is not qualified to be a candidate or be returned as a Muslim Member of the Punjab Provincial Assembly. It is alleged also that, even otherwise, by swearing a false affidavit he has rendered himself disqualified for the said election and in support of this allegation, reliance is placed on Annexure 'A', described as "the extract from the relevant record".
2. The returned candidate has filed a written reply to stoutly refute the allegation for various reasons and has described it as misconceived wrong and tentamounting to a false charge. He has unequivocally stated that he is a true Muslim having belief in the injunctions of Holy Quran and Sunnah so that he honestly believes that Hazrat Muhammad Mustafa (peace be upon him) is the last Prophet of Allah and no other Prophet or Nabi either Zilli or Brozi will come after him and that he has no concern with or faith, whatsoever, in Qadianism or Lahori group or in their false preachings.
3. Respondent has also raised some preliminary objections, whereof two are reproduced as under:
(a) The petitioner has not filed any affidavit in support of his allegations as made in the petition hence the same is not supported by any evidence worth the name. In view of the mandatory provision as contained in section 63 read with rule 1 of the Rules framed under the Act, the petitioner himself also cannot appear as witness in this case.
(b) That the alleged document mentioned as Annexure 'A' is no document in the eye of law, It is merely a copy of an alleged photo copy of certain non-existent entries. Such document cannot be produced in evidence being not admissible in law. It is neither original nor certified copy thereof nor it has been shown as to who prepared the same and who issued it to the petitioner. As such under the law no reliance can be placed upon it.
4. Petitioner has filed a replication to reiterate his stand in the petition and refute the preliminary objections.
5. I have heard the learned counsel for parties. As regards the first objection, there is no affidavit furnished either of the petitioner in support of the election petition or of any witness with regard to the evidence desired to be led. Reference for the respondent is made to Notification No.F.1 (1)/ 85- Cord, issued by the Election Commission on 16-3-1985, in exercise of its power under section 62 (1) of the Representation of the People Act (LXXXV of 1976), to lay down the procedure for trial of election petitions. Clauses (1) and (4) thereof are relevant hereto. In Clause (i) ibid, it is provided that the election petition shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner. Clause (4) thereof makes provision for production by the petitioner on the first day of hearing of such witnesses for cross-examination, whose affidavits are filed with the petition. On its basis, Mr. Zaki-ud-Din Pal, learned counsel for respondent No.1 argues that in the absence of any affidavit, neither the petitioner himself nor any other witness would be competent to appear in support of the election-petition which will therefore, have to be ultimately dismissed as unsubtantiated. In reply, learned counsel for the petitioner submits that the election petition itself having been verified on oath duly attested by an Oath Commissioner, would sufficiently meet the requirement in so far as a separate affidavit to the same effect sworn by the petitioner before an Oath Commissioner would be a mere surplusage and, therefore, at least the petitioner will not be treated to be disqualified as a witness and will be able to depose in support of his petition. However, learned counsel has not denied the need for filing affidavits of witnesses but contends that this is not the stage for attending to disqualifications resulting from absence of affidavit which should appropriately fall to be considered when a particular person is desired to be produced as a witness. I do not find any basis for making a distinction with regard to a petitioner so as to consider him exempted from filing affidavit in support of the pleas raised in the election petition and be qualified to give evidence on the basis merely of verification on oath of his election petition because such is the requirement of Order VI, Rule 15 of the C.P. C. Which is distinct from the affidavit envisaged by the abovequoted rules of procedure and would not be a substitute for the affidavit required to be filed thereunder. Even under the C.P.C. Evidence to be furnished by affidavits is a separate matter provided for in Order XIX thereof. The said rules of procedure for trial of election petitions have binding force and they are not mere instructions issued for the guidance of the Election Tribunal, as has been contended by the petitioner's Advocate. In my view, failure to furnish any affidavit alongwith the election petition renders it incapable of being substantiated by any evidence whatever and it will be a sheer waste of time of all concerned to keep this case pending.
6. On the above view of the matter, no finding is called for with regard to the other preliminary objection and the election petition is dismissed and the parties are left to bear their own costs.
Election