' AMIR-UL-MULK MENGAL (ELECTION TRIBUNAL); -After framing of issues on 25-7-1994 the matter was fixed for hearing on 7-8-1994. At the very outset counsel for respondent No,5 Mr. Basharatullah raised two preliminary objections to the maintainability of petition and requested the Tribunal to dispose of these points before any further proceedings. The objections raised were as follows:--
(1) That the petition is liable to be dismissed under section 63 of the Representation of the People Act, 1976 (hereinafter referred to as the "Act") for non-compliance of subsection (3) of section 55 of the Act.
(2) The petition is barred by time.
(3) The counsel for the petitioner requested for a week's time enabling him to argue the matter.
Accordingly the matter was adjourned and fixed for hearing of the above preliminary objections on 15-8-1994.
2. Heard Mr. Tariq Mehmood for petitioner and Mr. Basharatullah for respondent No,5. (the remaining respondents were proceeded ex parte).
3. Mr. Basharatullah, while giving the brief background submitted that this Tribunal was constituted vide order issued by the Election Commission of Pakistan, Islamabad under No, F.10 (1)/93-Law, dated 30-10-1993 and the petition was referred to it vide Notification No, F.11 (14)/93-Law dated 25th November, 1993.
4. The same was placed before the Tribunal on 5-12-1993, whereby the following order was passed:-- "Petition is unsigned and unverified. It, therefore, be sent to Chief Election Commissioner at Islamabad."
It was further pointed out that the learned Commissioner again referred the matter for trial by this Tribunal upon which the following order was passed on 10-2-1994 by the Tribunal:-- "Register, Notice to parties for a date in office after vacations."
5. With this background the learned counsel contended that the Tribunal is competent to dismiss the Election Petition in exercise of its powers under section 63 of the Act as the petition was unsigned and it is not verified as provided under subsection (3) of section 55 of the Act.
6. As far as second reference is concerned the counsel submitted that it is of no consequence because the Tribunal is not vested with any power of referring the matter to the Commissioner for removing any legal defect. It was therefore, argued that the signatures were appended on the petition when the matter was referred by the Tribunal to the Commissioner, therefore, such signatures should altogether be ignored. Another limb of the argument was that the petition still suffers for want of verification, therefore, it is liable to be dismissed. Reliance has been placed on 1994 CLC (June Part) 1366. Besides according to the counsel, the petition is barred by time as the signatures have been appended much beyond 45 days of the publication in the official Gazette of the name of returned candidate.
7. The above contentions were strongly contested by Mr. Tariq Mehmood, Advocate who argued that the petition has now been signed, therefore the plea that the petition was not signed at the time of its presentation does not entail any consequence. As far as non-verification of the petition is concerned, the learned counsel submitted that it was a partial defect and can be over-looked and conveniently ignored. Reliance has been placed on PLD 1967 -SC 486. As to the point of limitation the learned counsel submitted that the petition had been sent by registered post within 45 days of the publication in the official Gazette of the name of the returned candidate, therefore the petition is within time. It was next contended that now the law is well settled that if a plaint is signed at a subsequent or later stage, it would be deemed to have been signed on the day when it was presented. Reference has been made on:--
(1) PLD 1978 Quetta 45.
(2) PLD 1983 Peshawar 64.
(3) PLD 1983 Karachi 99.
(4) PLD 1990 SC 13.
8. I have given my anxious consideration to the respective contentions as raised by the counsel for the parties. In the first instance it may be observed that the Act has clearly defined respective powers and jurisdiction of the Commissioner and that of the Tribunal in Chapter VII of the Act. For proper appreciation of the arguments, it is incumbent to draw a line of demarcation between the jurisdiction of the Commissioner and the Tribunal in respect of presentation and disposal of election petitions.
' An Election petition may be made by a candidate who shall present the same to the Commissioner within 45 days of the publication in the official Gazette of the name of the returned candidate (section 52). The same is presented before the Commissioner in the manner prescribed in section 53 of the Act. Then section 54 prescribes in term the parties to the petition whereas section 55 lays down the contents of the petition. Thus the petition is presented before the Commissioner within 45 days and it is the domain and competency of the Commissioner to scrutinise it in the light of sections 52, 53 or 54 of the Act. This power has been bestowed upon the Commissioner under section 56 of the Act which reads as under:-- "56. Procedure on receipt of petition by the Commissioner:--(,1) If the Commissioner finds that any provision of section 52, section 53 or section 54 has not been complied with the petition shall be dismissed forthwith.
(2)
It is evident from bare perusal of above section that the Commissioner is competent to dismiss an election petition if he finds that any provision of ' section 52, section 53 or section 54 has not been complied with. However, if the learned Commissioner does not dismiss the petition he shall refer it for trial to the Tribunal. It is further clear from the above provision of law that question whether a petition has been filed within time or is barred by time shall be decided by the Commissioner. In the instant case the Commissioner did not dismiss the petition as being barred by time, therefore, this Tribunal has no jurisdiction to exercise the powers of the Commissioner in absence of any express provision of law and to reopen a question already dealt with by the Commissioner. The objection as regards limitation is thus not tenable.
9. The other argument advanced on question of limitation i,e, signing the petition at a later stage does not require consideration in view of the above observation.
10. Adverting now to the second objection as regards the fact that the 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 shall be seen and determined not by the learned Commissioner but by the Tribunal. I have come to the said conclusion because the law is very clear on the point.
In section 56 learned Commissioner has been given authority to dismiss forthwith the petition. If he finds that any provision of section 52, section 53 or section 54 has not been complied with. But section 55 has not been mentioned meaning thereby that the legislature deliberately excluded section 55 and in section 63 this power has been given to the Tribunal to dismiss an election petition if the provisions of section 54 or section 55 have not been complied with. Thus the Commissioner and the Tribunal both are competent to dismiss an election petition if it is found that provisions of section 54 have not been complied with. But the Tribunal cannot dismiss a petition for non-compliance of section 52 and section 53 of the Act. Similarly the Commissioner is not competent to dismiss an election petition for non-compliance of provisions of section 55. The question to see if the petition is not signed or verified in accordance with the provisions of C.P.C. Is mentioned in section 55 of the Act and its non-compliance and power to dismiss a petition is laid down in section 63 within exclusive jurisdiction of the Tribunal.
11. After having discussed the respective jurisdiction of the Commissioner and the Tribunal I now proceed to determine the first preliminary issue raised by Mr. Basharatullh. It was urged by the counsel for respondent. No,5 that the petition was referred under section 56 (2) of the Act by the Commissioner to this Tribunal. Admittedly it was neither signed nor verified. In any case the Tribunal referred it back to the Commissioner where it was got signed by the petitioner and this signature does not validate the petition because the c Tribunal had no authority to refer back the petition to the Commissioner as the law does not confer any such power to the Tribunal. As such signatures appended on the petition after expiry of 45 days do not validate the inherent defect. The second important argument in this respect was that the petition is not verified as required under section 55 (3) of the Act, as such it is liable to be dismissed. The last contention was that the Schedule or annex to the petition have also not been signed or verified. Therefore, following the principle laid down in 1994 CLC 1366 the petition is liable to be dismissed.
12. In order to determine the above contention it is necessary to reproduce section 55 of the Act which reads as under:-- "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 committed 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."
' It is thus evident from plain reading of subsection (3) of section 55 of the Act that a petition shall be signed and verified in accordance with provisions of C.P.C. Order VI, Rule 15, C.P.C. Prescribes the manner of the pleadings in the following manner:-- "15. Verification of pleadings:--(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."
' The basic requirement being that the petition be verified on oath or solemn affirmation. The counsel for the petitioner admitted that the petition is not verified as provided by Order VI, Rule 15, C.P.C. But argued that this will have no material bearing on the maintainability of the petition for the reason that it is only a partial defect of the provisions of section 55 of the Act and thus a mere technicality having no penal consequences. To supplement the aforementioned argument the learned counsel relied on PLD 1967 SC 486. My attention was specially drawn to page 490 (supra) which reads as under:-- "We note at the outset that section 67 does not in terms say that the petition shall be dismissed even if there be a partial failure to comply with the provisions of section 59 ex facie section 67 of the Act would seem to be designed to cover a case where the petition as a whole made allegations of a vague and, indefinite character without being supported by full particulars of the corrupt or illegal practice alleged. On the view contended for by the learned counsel for the respondent even a single defective paragraph in the petition might entail the dismissal as a whole.
Learned counsel proceeded to justify his extreme stand on the assumption that the policy of the law was to discourage election petitions. He contended that the rights given by the Act were statutory rights and had to be exercised subject to the limitations imposed by the Act itself as they were creatures of the statute and were not common law rights. This principle may be accepted as unexceptionable. Moreover we are unable to agree with the learned counsel that the policy of the Act is to discourage election petitions even if genuine grounds for challenging an election exist. We can discover no words in the Act which could lead to such a conclusion. On the contrary, subsection, (3) of section 66 of the Act evinces the anxiety of the Legislature to provide for the adjudication of the substantial dispute between the parties in so far as it allows amendment of a petition to bring out the real points at issue. The Act provides the machinery for redress in cases where an election is vitiated by resort to corrupt or illegal practice or to some other illegalities, of course subject to the technical restrictions imposed by the provisions of the Act as regards the form of the petition, its contents and the procedure applicable to it. The provisions of section 67 of the Act should receive a reasonable interpretation such as would advance the cause of adjudication of the substantial dispute between the parties, falling within the purview of the Act rather than shut out the decision of even genuine cases. We are disposed to hold, therefore that the extreme view which found favour in the High Court as to the construction of section 67 is erroneous. There is nothing in the Act to give countenance to the contention that even a single defect in the petition in respect of one paragraph would justify its being thrown out as a whole. This construction would amount to reading into section 67 words that do not exist therein. The true construction of this section seems to be that if the petition taken as a whole fails to comply with the provisions of section 59 it shall be dismissed as revealing no cause of action."
' Mr. Tariq Mehmood argued that National and Provincial Assemblies (Election) Act, 1964 (Act VII of 1964) contained identical provisions and section 59 as well section 67 of Act VII of 1964 are pari materia to section 55 and section 63 of the Act. While interpreting section 59 and section 67 it was held by the Hon'ble Supreme Court that there is nothing in the Act to conclude that even a single defect in the petition in respect of one paragraph would justify its being thrown out as a whole. It is only that if the petition taken as a whole fails to comply with the provisions of section 59, it shall be dismissed as revealing no cause of action. Learned counsel then upon this premises argued that non-verification of the petition is merely a partial defect and the petition cannot be thrown out as a whole.
14: There remains hardly any doubt that section 59 of Act VII of 1964 is similar and identical to section 55 of the Act, so also section 67 of Act VII of 1964 is ditto of section 63 of the Act but as far as the observations of the Hon'ble Supreme Court were concerned those related not to the technical restrictions but in respect of section 59 (1) and (2) of Act of 1964. Even in the above- quoted para. It was clearly observed that the Act provides the machinery for redress in cases where an election is vitiated by resort to illegal or corrupt practice or to some other illegalities of course subject to the technical restrictions imposed by the provisions of the Act as regards the form of the petition, its contents and the procedure applicable to it.
15. From minute and careful examination of the aforementioned case (ibid) it is found that the main petition was properly signed and duly verified. It was only the schedule or annex which had not been signed or verified. This view finds support from page 493 of the judgment in which it was observed as under:-- "The main petition, it is conceded, is properly signed and verified."
' Thus the observations that no strict view on the technical plain of such pleadings without regard to the substance of the matter, should be taken which would defeat the ends of justice and Court should not be astute to ascribe to the legislature a desire to be hypertechnical so as to smother genuine litigation are inapt to the facts of the present case. Having all respect for the aforementioned observations it may be pointed out that it is not a mere formality if the main petition is not signed or verified in accordance with provisions of C.P.C.. Such observations were relating to the schedule or annex with the petition whereas the main petition as noted earlier were signed and verified but in the case in hand the admitted position being that the petition is not verified in accordance with law although signatures have been appended much after its presentation. Furthermore the petitioner has not filed any affidavit to the main petition. Irrespective of the fact whether signatures were appended on the petition when it was referred to the Commissioner it is an admitted positio n that the main petition is not verified in accordance with the provisions of C.P.C. As provided irt subsection (3) of section 55 of the Act. The same is therefore liable to be dismissed and the ratio decidendi of PLD 1967 SC 486 does not apply to this case for the simple reason that it had discussed section 59 (1) and (2) and as far as section 59 (3) it was only in respect of schedule or annex to the petition whereas in the instant case the main petition was not signed and is not verified.
16. Another important factor in this respect which has got a far-reaching effect is that Order VI, Rule 15, C.P.C. Was amended by Law Reforms Ordinance, 1972 with a view that plaints be verified on oath or solemn affirmations because decree could be passed on mere contents of the plaint in case where defendants are proceeded ex parte. Thus verification of a plaint on solemn affirmation or oath entails consequences which was not the case prior to 1972 when the Hon'ble Supreme Court had delivered judgment (PLD 1967 SC 486). Thus non-verification of the main petition is not only a mere technicality or formality but it is a mandatory provision failing or noncompliance of which results in the dismissal of the petition as provided under section 63 of the Act which reads as under:-- "63. 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".
' The upshot of the above discussion would be that the petition is liable to be dismissed and I order accordingly. Parties are left to bear their own costs.