' Respondent No,1 the returned Member of the NA-92 Lahore-I has moved this application under section 63 of the Representation of the People Act, 1976 (hereinafter referred to as 'the Act') praying for summary dismissal of the Election Petition for non-compliance of mandatory provisions of sections 53, 54 and 55 of the Act read with Notification No,F.1(6)85-Cord dated 16th of March, 1985 of the Election Commission of Pakistan.
2. Arguments have been advanced that the election petition has not been verified in accordance with the provisions of the Act as it has not been specifically stated that which of the paragraphs of the pleadings have been verified of petitioner's own knowledge and what others have been verified upon information received and believed to be true as envisaged under section 55(3) of the Act read with Order 6, Rule 15(2), C.P.C. The Annexures/Schedules appended with the election petition have also not been verified in accordance with law and rules. Lastly it is argued that the verification of the election petition has not been done at the foot as required under Order 6, Rule 15(1), C.P.C. In support of his contentions learned counsel for the applicant has relied upon certain precedents.
3. Learned counsel appearing for the election petitioner has opposed this application and he too has relied upon certain precedents from this Court in support of his contentions.
4. I would have straightway rejected this application seeking technical knock out in view of the law laid down by the Hon'ble Supreme Court in Manager, Jammu & Kashmir Estate Property in Pakistan v. Khudadad and another PLD 1975 SC 678 and Imtiaz Ahmad v. Ghulam All PLD 1963 SC 382. In the former precedent while reiterating the view taken by Kaikaus, J. In the Supreme Court in the latter case it was held as under:- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transaction from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends' of justice. It was , observed by Kaikaus, J. In Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 at p.399 = 400 as follows:- 'I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defects substantive right is defective to that extent. The ideal must always be a system that gives to every person what is his'."
' It is also the cardinal principle of law that the dispute between the parties shall be adjudicated upon merits and technical knock out shall be sparingly undertaken.
' However, in the case in hand being the Election Petition the situation is otherwise as section 63 of the Act has mandated as under:--- "Dismissal of petition during trial.---The Tribunal shall dismiss an election petition, if--
(a) the provisions of section 54 or section 55 have not been complied with; Or
(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62.
' Here in this case it is to be seen whether the petitioner has committed non-compliance of such a nature which attracts the stringent provisions of section 63 of the Act. In order to appreciate the case of the parties in its true perspective it is appropriate to reproduce sections 53, 54 and 55 in extenso which are as under:--- "53. Presentation of petition.---(1) An election petition shall be presented by a petitioner and shall be deemed to have presented--
(a) when it is delivered in person to the Secretary to the Commission or to such other officer as may be appointed by the Commission in that
(i) by the petitioner; or
(ii) by a person authorised in writing in this behalf by the petitioner; or
(b) when delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid.
(2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52.
54. Parties to the petition.---The petitioner shall join as respondents to his election petition---
(a) all contesting candidates; and
(b) any other candidate against whom any allegation of any corrupt or illegal practice is made and shall serve personally or by registered post on each such respondent a copy of the petition.
' Explanation.---In this section and in the following provisions of this chapter, "corrupt or illegal practice" means a "corrupt practice" or an "illegal practice" within the meaning of Chapter VIII.
55. Contents of petition.---(1) Every election petition shall contain--
(a) a precise statement of the material facts on which the petitioner relies,
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have wmmitted such' corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) the,relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely--
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil procedure, 1908 (Act V of 1908), for the verification of pleadings."
' The argument that the petitioner while verifying the petition has not indicated the source of its verification as required under Order 6, Rule 15(3), C.P.C. Is devoid of any force. The petitioner verified the petition in the following terms:- "Verified on oath at Lahore this 22nd day of January, 1994 that the contents of the above petition are true and correct to the best of my knowledge/information and belief of the petitioner and nothing has been concealed therein."
' This verification is in composite form which demonstrates that the contents of the petition are true and correct not only to the best of petitioner's knowledge and information but also belief. In the presence of verification of this nature it would be too hypertechnical to hold that the verification is not in accordance with the dictates of the provisions of law.
' The second argument that the annexures and schedule were not verified in accordance with law and rules would also be of no avail to the respondents. It is to' e seen whether the annexures or schedule are of such a nature which required their verifications as envisaged under section 53(3) of the Act and non-verification thereof would be visited with the penalty of dismissal of the election petition itself. In a peri materia law the expression `annexure and schedule' came up for consideration before the Supreme Court in case titled "S.M. Ayyub v. Syed Yousuf Shah etc..PLD 1967 SC 486. The Hon'ble Supreme Court while interpreting the pan materia provisions of National and Provincial Assemblies (Elections) Act (VII of 1964) held as under:--- "By 'schedule or annex' mentioned in subsection (3) of section 59 of the Act, is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite-party, are at least furnishes better particulars of the allegations make in the petition, so as to give them the status of substantive grounds of the petitioner itself. The documents under consideration in the instant case, however, are not of that character, and, in our opinion, they should not be understood to fall within the meaning of "schedule or annex", mentioned in subsection (3) , of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive ground or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition."
' Taking into consideration the non-verification of the list of witnesses or the affidavits and the National Identity Cards of the persons who have deposed through these questioned affidavits would not be material. These affidavits are not of a nature as either making additional allegation of a substantive character against the applicant or giving some better particulars of the allegations made in this petition. They are merely in support of the contentions/allegations levelled in the election petition that the election at the disputed polling stations were held under disturbed situation. These affidavits do not independently furnish any allegation. They have to be read in juxtaposition of the election petition particulars whereof are given in the election petition. Similarly, the non-verification of the list of witnesses can also not be visited with the penalty of the dismissal of the election petition. The petitioner has given the names of those persons as witnesses in the list whose affidavits have either been appended alongwith their National Identity Cards to support the contentions raised in the election' petition or of some other officials who were instrumental in the holding of the election. The non-verification of the list of witnesses, in the circumstances, cannot be visited with the dismissal of the election petition. The last ground that the petition has been verified not at the foot but on the succeeding page is too hypertechnical to be accepted. The verification is always done at the conclusion of the pleadings and merely because there was no space on the last page of the petition, the verification made on the succeeding page would not be violative of any provisions of law.
'As far as the non-compliance of the procedure laid down by the Election Commission through notification dated 16th of March, 1985 is concerned nothing has been said much. Even otherwise section 63 of the Act does not envisage summary rejection or dismissal of the election petition for non-compliance of any rule or the procedure laid down by the Election E Commission through notification which is in the nature of the departmental instructions. A learned Tribunal in an unreported case titled Ijaz Cheema v. Syed Iftikhar etc., in Election Petition No,9/93 on this very issue has observed as under:--- "Reverting to the question of non-compliance of the requirements of paragraphs 1, 4 and 6 of the procedure laid down by the Election Commission through Notification, dated 16-3-1985, it may be mentioned at the very outset that section 63 does not envisage summary rejection or dismissal of the election petition for noncompliance of any rule or the procedure laid down by the Election Commission through notification which is in the nature of a departmental instructions. The law requires that penal provisions of the statute should be construed strictly and if any of the conditions is not fulfilled as laid down in such provisions of law the same should not be applied.
Section 63 provides that an election petition can be dismissed only if the provisions of section 54 or section 55 have not been complied with or the petitioner fails to make further deposit required under subsection (4) of section 62 and it does not speak of any non-compliance of the procedure laid down by the Election Commission as a ground for rejection of the election petition. According to the section 55 which defines the expression election petition it only means a document containing a precise statement of the material facts on which the petitioner relies which also include full particulars of any corrupt or illegal practice etc. And the relief claimed. It does not bring within its ambit the documents attached with the election petition, the list of witnesses and other material of which mention has been made in the Notification dated 16-3-1985, issued by the Election Commission. Under section 63 an election petition could only be rejected summarily if the same was violative of the provisions of sections 53, 54 and 55 and not the rule of procedure laid down by the Commission through notification. Even if the said rule of procedure itself had provided for rejection of an election petition for non-compliance of any of its clauses the same would have been ultra vires of section 53 and could not be given effect to."
' The reliance of the learned counsel for the applicant on Lt.-Col. (Retd.) J. Abel v. Emmanual Zafar and others 1987 MLD 372 has no application as in that case the petition itself was not verified either on oath or solemn affirmation. There was no separate affidavit, of the petitioner in support of ,his petition and the Election Commission dismissed the election petition as the procedure notified by it in Notification dated 16th of March, 1985 was not complied with. Similarly, case titled Ch. Muhammad Aslam v. Mian Salah-udDin 1990 ALD 170(1) is also not applicable as in that case the election petition was neither itself verified on oath nor solemn affirmation nor the petitioner filed a separate affidavit in support thereof. Similar is the position in Sardar Khalid Nawaz v. Mian Manzoor Ahmad Wattoo 1987 CLC 1167 which was dismissed due to the failure of the petitioner to furnish affidavit in support of his election petition and the last case titled Tariq Mehmood Bajwa v.
Muhammad Afzal Sahi and others 1994 CLC 1366 would not advance applicant's cause as in that case the ratio laid down by the Hon'ble Supreme Court in interpreting annexures/schedules in PLD 1967 SC 486 was not considered.
' I am also fortified in my view by the observation made by the Election Tribunal, N.-W.F.P. In case titled Syed Niamat All Shah v. Sabir Shah 1988 CLC 1906.
' For what has been stated above there is no force in this application which is hereby dismissed.