' The petitioner and respondents Nos. 2 to 25 contested the General Election held on 7th October, 1993 for the National Assembly for non-Muslim seats (Christians), wherein respondent No, 2 secured the highest votes and was declared elected. Notification of his election was issued on 18- 10-1993.
The petitioner has challenged the election of respondent No, 2 through this Election Petition. It is pleaded that the petitioner, in fact, obtained 20270 votes whereas respondent No, 2 obtained 18158.
It is, therefore, prayed that the petitioner be declared having been elected instead of respondent No,2. The petition was filed with the Election Commission of Pakistan. The same was assigned to this Tribunal vide order dated 14-12-1993 for decision in accordance with law.
' The petition was placed before the Tribunal on 20-12-1993 when notices were issued to the parties for 9-1-1994. The petitioner as well as the counsel for respondents Nos.2 and 11 appeared while respondent No, 7 was present in person. The perusal of the file showed that the petitioner had not given complete and latest addresses of the respondents, therefore, he was directed to furnish latest addresses and process fee for 31-1-1994 when respondent No,20 was present in person while nobody appeared for respondent No,17 in spite of service, therefore, he was proceeded ex parte.
The office reported that A.D. Receipts of the notices sent to respondents Nos.1, 4 to 6, 9, 10, 12, 14, 16 and 18 to 25 are still awaited while notices sent to respondents Nos. 3, 8 and 15 have been received with the remarks that nobody is residing at the given addresses. In this view of the matter, the remaining respondents were directed to be served through publication of the notice in the Daily `Nawa-e-Waqt for 21-3-1994. The notice was published. The respondents except respondents Nos. 1, 2 and 11 did not appear, therefore, were proceeded ex parte.
2. The learned counsel for respondents Nos. 2 and 11 have raised the following preliminary objections as to the competency of the Election Petition:-- ' Firstly, that the petitioner has not given complete names and addresses of the respondents which were essential for effecting service of the notices as required by para. 1 of the Procedure notified by the Election Commission under subsection (1) of section 62 (hereinafter referred to as the Procedure) of the Representation of the People Act, 1976 (hereinafter referred to as the Act 1976). It is, clear from the title of the petition that the petitioner has simply given the names of respondents Nos.6, 8, 12, 15, 19, 20,
21. Even their parentage and the names of the cities and towns have not been given. Therefore, this was entirely insufficient to serve the copy of the petition on them. It is explained that even the address of respondent No, 2 was incomplete. Therefore, copies of the petition were not served on the respondents as required under para. 1 of the Procedure.
' Secondly, all the documents Annexures 'A' to 'F' appended with the Election Petition were not signed and verified as required under subsection (3) of section 55 of the Act 1976.
' The arguments are concluded with the submission that the omissions are fatal and the petition is liable to be dismissed under section 63 of the Act 1976 and on facts there is nothing on record to warrant trial.
3. On the other hand, the learned counsel for the petitioner argued that the petitioner gave the addresses of the respondents as were given in the 'list of contesting candidates' issued in Form V by the Election Commission. It is added that this was sufficient compliance of the provisions of Act 1976 and Procedure notified therein. It is argued as to the singing and verification of the documents that the originals are available with Election Commission. This Tribunal can send for the same and determine the genuineness of the annexures appended with the Election Petition. The arguments are summed up with the submission that omission to sign, and verify the documents is a mere procedural irregularity which is curable.
4. Mr. Bilal Hassan Minto, Advocate while summing up the arguments on the preliminary objections argued that the provisions of sections 54 and 55 of Act 1976 are mandatory and the petitioner's failure to comply with the same renders the petition incompetent and the same is liable to be dismissed. The learned counsel in support of the legal objections has referred to Yusaf Ali Shah v.
Election Tribunal West Pakistan (PLD 1967 Peshawar 207) and Muhammad Zubair v. Rana Phool Muhammad (PLJ 1973 Tr.C. (Election) 3).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. Before proceeding any further, it is worthwhile to refer to subsection (3) of section 55 as to verification which reads as under:-- "55. Contents of petition.---
(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 election petition, every Schedule and Annexures to the petition shall be signed and verified in the manner prescribed in the Civil Procedure Code for the verification of the pleadings. The procedure for verification of pleadings is prescribed in Rule 15, Order VI, C.P.C., which reads as under:-- "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 pleading, 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 following are the salient features of the verification in accordance with the provisions of the Code of Civil Procedure:--
(i) It has to be on oath or solemn affirmation;
(ii) the person verifying shall specify the paragraphs, which he verifies of his own knowledge and the paragraphs, which are believed to be true by him separately;
(iii) the verification shall be signed by the person making it;
(iv) it shall contain the date and place when and where the signatures were appended ; and
(v) it shall be attested by the Oath Commissioner.
' Now coming to the case in hand. The documents Annexures 'A' to 'F" are neither signed nor verified by the petitioner. This is not all. Even the verification of the petition is not in accordance with the provisions of rule 15 quoted above and it is not attested by the Oath Commissioner. It is clear therefrom that it does not comply with the main requirements noted above, therefore, there is no merit in the plea of the learned counsel for the petitioner that the verification of the Election Petition is in accordance with law while the documents Annexures 'A' to 'F' need not be at all signed or verified by the petitioner."
6. The question, in the circumstances, which would arise for determination is what is the consequence of defective verification of the petition and omission to verify the documents annexed therewith? Before proceeding any further it is worthwhile to note that the petitioner has neither appended his own affidavit with the Election Petition nor any of his witnesses as required under para. 3 of the Procedure. The answer to the abovenoted question depends on the interpretation of section 63 of the Act 1976, 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."
' It is clear from the provisions of the Code of Civil Procedure that failure to observe the provisions of Order VI, Rule 15, C.P.C. Is not visited by a penalty. Therefore, the general consensus is that in the civil suit defect in signing, verification or presentation of the plaint is not fatal. It is curable by amendment at any stage of the proceedings. In this behalf reference may be made to the case reported as Shafiq Metal Works v. Bank of Bahawalpur (PLD 1973 Note 33, p.41) However, this argument overlooks the provision of section 63 of the Act 1976 which provides that the election petition shall be dismissed for such non-compliance. This makes the provisions relating to signing and verification of the election petition and documents mandatory. Although this is fine yet very clear difference between the provisions of the Code of Civil Procedure and of the Act 1976. The test whether the provision is mandatory or directory in nature has been laid down by the Hon'ble Supreme Court in the Judgment of Mian Muhammad Khan v. Mian Fazal (PLD 1974 SC 134). The relevant portion reads as under:-- "As a general rule, however, a statute is understood to be directory when it contains matter merely of direction but not when those directions are followed up by an express provision that, in default of following them, the facts shall be null and void. To put it differently, if the Act is directory, its disobedience does not entail any invalidity; if the Act is mandatory disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision."
When this test is applied to the case in hand it is clear that the compliance of the provisions of sections 54 and 55 of the Act 1976 is mandatory. The Tribunal A has no choice but to dismiss the election petition. Mr. Bilal Hassan Minto, Advocate has rightly referred to the judgments in the cases of Yusaf Ali Shah (supra) and Muhammad Zubair (supra). In this behalf reference can also be made to the judgment in the case reported as J. Abel v. Emmanual Zafar (1987 M LD 1372). The relevant portions read as under:-- "(7) The procedure laid down in the above notification is mandatory and since the election petition itself has not been verified either on oath or solemn affirmation and there is no separate affidavit of the petitioner in support thereof appended therewith, therefore, there remains nothing capable of proof by the petitioner and muchless is there anything which some witness may be competent to depose to.
(8)... There is no reason why legal consequences may not follow upon the defects found in this case. The election petition is liable to be dismissed under section 63 of the Act and is also rendered incapable of being proceeded with on account of its failure to comply with the requirements of the aforecited Notification."
' The same was the position in the case of Sardar Khalid Nawaz v. Mian Manzoor Ahmad Wattoo (1987 CLC 1167) where the Tribunal dismissed the election petition on the same ground. Then reference may be made to the case of Ch. Muhammad Aslam v. Mian Waheed-ud-Din (1990 ALD 170). In this case also the election petition was dismissed because the petition and its Annexures were not verified by the petitioner in accordance with law. The question came for consideration in the Election Petition No, 28 of 1990 titled `Air Marshal Asghar Khan v. Mian Muhammad Nawaz Shari?.
The learned Election Tribunal seized of the petition framed issue which reads as under:-- "Whether the Election Petition is liable to be dismissed on account of non-compliance of the provisions of sections 54 and 55 of the Representation of the People Act, 1976 and clause I(1) of the Notification dated 16-3-1985 as contemplated under section 63 of the aforesaid Act?"
' The Tribunal answered the issue in positive and proceeded to dismiss the election petition. The same was the view expressed by this Tribunal in Election Petition No, 97 of 1993 titled `Tariq Mahmood Bajwa v. Mian Muhammad Afzal etc.'
7. Now coming to the first argument that the petitioner has not given complete names and addresses of the respondents with the result that the notices as provided in para. 1 of the Procedure were not served on them. In this behalf, before proceeding any further, it is relevant to refer to para. 1 of the Procedure which reads as under:-- "(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block 'S', Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and affidavits annexed to the petition has been supplied to the respondent."
' The Procedure has been, as already noted, notified by the Election Commission of Pakistan in exercise of its powers under section 62 of the Act 1976. Election petition, after it is filed, is to be processed by the Secretary, Election Commission and in case it is not in accordance with the Procedure laid down then it shall not be entertained. This way the penalty for noncompliance of the provisions of para. 1 of the Procedure is prescribed in para.2. The violation of section 62 entails the penalty of dismissal of the election petition only to the extent of further deposit of security. The Secretary, Election Commission has not exercised the powers under para. 2 of the Procedure probably as nobody raised the question before him. Therefore, it is not desirable to take up this question at this belated stage specially when affected respondents opted not to appear and contest the petition.
8. Now coming to the merits. The learned counsel for the contesting respondents argued that if the differences of votes pointed out by the petitioner in paras. 3 to 7 are taken into consideration then the total comes to 200 and even if the petitioner is given credit of these votes still the result of the election remains unaffected. The petitioner has not placed on record his own affidavit or the affidavit of any of his witnesses or any document in the prescribed manner to support his plea. The proceedings in the election petition are pari 'materia to the criminal trial, therefore, the petitioner has to place all the data on the record before asking for trial. The Legislature in its own wisdom has prescribed the periods for trial and the rationale in making the trial of election petition expeditious seems to be as noted by the Supreme Court of India in the case reported as Azhar Hussain v. Rajiv Gandhi' (AIR 1986 SC 1253). The relevant portion reads as under:-- "So long as the Sword of Damocles of the election petition remains hanging on elected member of the Legislature would not feel sufficiently free to devote his wholehearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the, residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win vote of the people but also to win the vote of the Court in a long drawn out litigation before he can whole-heartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a hindrance if he be entrusted with some public office in his elected capacity.
All these factors lend support to the view that election petition should be presented to the Election Commission complete in every respect in accordance with law and Procedure so that the Tribunal can straightaway proceed with the trial. The Procedure of the Election Commission of Pakistan, therefore, should be observed in letter and spirit by the parties as well as by the Election Commission itself. There being no evidence on the record and even the allegations being too vague, therefore further, proceedings in the matter will serve no useful purpose.
9. The upshot of the above discussion is that this petition is dismissed with costs.