This Election Petition under section 34 of the Senate (Election)
Act, 1975, hereinafter referred to as the Act, has been filed by a contesting candidate Syed Iftikhar Hussain Gilani. It calls in question the election of the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra to the Senate of Pakistan against special seats reserved for Ulema, Technocrats and other professionals from the North West Frontier Province.
2. The facts are short and undisputed. Through Notification now 1(1)/97--Cord (3), dated 23rd February, 1997 issued by the Chief Election Commissioner the members of the Provincial Assembly N.-W.F.P. Were called upon to elect to the Senate three members against the seats reserved for Ulema, technorcrats and other professionals in place of the sitting members who were due to retire on the expiration of their term on the 20th March, 1997. Resultantly, nomination papers were filed by 6 candidates namely the petitioner, Qazi Muhammad Anwar, Advocate, Anwar Kamal Khan, Engineer Iqbal Zaffar Jhagra, Commander Khalilur Rehman and Mtfammad Azam Khan, Advocate.
The nomination paper of the respondent Anwar Kamal Khan was rejected by the Returning Officer for the reason that he had "utterly failed to establish himself by any stretch of imagination to be a person of distinction in his profession or to possess professional competence as is envisaged under the relevant provision of law which qualify him to contest election for Senate of Pakistan from N.-W.F.P. Against the seat, in his case. Reserved for professional". However, the appeal preferred by him was accepted by the Chief Election Commissioner and the order of the Returning Officer was set aside with the observations. Inter alia, that "to hold a person who has been practising for 24 years in district as a professional of no consequence would mean a very narrow interpretation of the word 'professional' Therefore, one of the contesting candidates Muhammad Azam Khan withdrew his candidature. The election was held on 12th March, 1997 and the respondent Anwer Kamal Khan and Engineer lqbal Zaffar Jhagra, nominees of the Pakistan Muslim League (Nawaz Group), and Qazi Muhammad Anwar, Advocate, nominated by the Awami National Party, were declared elected.
3. The petitioner had contested the election as an independent candidate. He has challenged the election of the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra on the ground that they were not qualified to be elected on the' special seats as they were neither 'Technocrats' nor other 'Professionals' within the contemplation of the relevant law and has prayed that their election be declared to be void and he be declared to be duly elected as a professional against a Special seat. The assertions made in the election petition vis a vis Anwar Kamal Khan are to the effect that he had admitted in his nomination paper that he was ,imply enrolled as an Advocate of the subordinate Courts and his present occupation. Was ' Farming' and that he had neither claimed nor is professional with the requisite practical experience at a high level in a specialized area of knowledge and had also not been practising in his specialization by adopting it as his principal calling, vocation or employment. About Engineer. Iqbal Zaffar Jhagra it has been alleged that according to the contents of his nomination paper he had served as an Assistant/Site Engineer and as Senior Engineer with private Firms from May, 1970 to July, 1981 and as such was not a 'Technocrat' of Nationally or Internationally recognized professional competence with at least 15 years experience and expertise at a high level for administering or managing an operational or policy making unit. Besides, his present occupation was 'Farming'.
4. The petition was strenuously resisted by the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra. They not only controverted the assertions made in the petition but also maintained vigorously that they were Technocrats/other professionals by any standard and were eminently qualified to be elected on the Special seats. Mr. Anwar Kamal Khan took the stance that he was a "Technocrat" as well as a "Professional" because besides being a practising lawyer since 1973 he was a distinguished Legislator and had an enviable career in Politics. He also re-counted his achievements in the Political filed and raised preliminary objections with regard to non-verification of the petition and its Annexures and estoppel. Engineer Iqbal Zaffar Jhagra also annexed many documents with his written statement pertaining to his career as an Engineer to substantiate his contention that he was a Technocrat within the meanings of the relevant law.
5. Keeping in view the preliminary objections raised in -the written statement of the respondent Anwar Kamal Khan and the procedure for the trial of election petitions laid down by the Chief Election Commissioner vide Notification No.FI (6) 85-Cord., dated 16th March, 1985 read with Notification No.F 1 (6) 85-Cord., dated 18th March, 1987 that where the election petition claims as a relief a declaration that the election of the returned candidate is void on the ground that he was not on the nomination day qualified or was disqualified from being elected as a Member the Tribunal may decide the question of such qualification or disqualification as a preliminary issue, the following preliminary issues were framed:-- (1)Whether respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra are not Professionals/Technocrats as defined in explanation to clause (1) of Article 5 of the Houses of Parliament and Provincial Assemblies (Election) Order,* 1977 and as such, on the nomination day, were not qualified to be elected as members of the Senate on Special seats?
(2)Whether nomination papers of the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra were invalid?
(3)Whether the petitioner is estopped from bringing. The petition?
(4)Whether the petition and its Annexures have not been duly verified as provided under the Law, if so to what effect?
(5)Relief.
At the stage of framing of the preliminary issues a consensus had emerged that the preliminary issues can be convenienctly decided in the light of the material available on record. The evidence of the contesting parties was thus not recorded. However, it will be pertinent to point out that the preliminary issues were framed on 5-5-1997 and on 12-5-1997 a notice of Recrimination and a Recriminatory petition were filed by the respondent Anwar Kamal Khan in the office wherein it was alleged that the election of the petitioner would have been declared void had .He been the returned candidate and had a petition been presented calling his election in question because; firstly, he was neither a Technocrat nor a Professional and, secondly, he was not Ameen, righteous, honest and sagacious as he had deliberately undervalued the immovable property detailed in his nomination paper and, was not only an evader of wealth tax but had also concealed in his taturn of election expenses the expenditure incurred in relation to the travelling back and forth from Islamabad to Peshawar and within Peshawar itself. The. Notice and the recriminatory petition were contested by the petitioner on the ground, inter alia, that they were time-barred having not been filed within fourteen days next following the commencement of the trial. A reply filed by the learned counsel for the petitioner in the office on 26-5-1997 is available on record.
7. Before adverting to the preliminary issues it is necessary to dispose of the petitioner's' objection subject to which the request for filing written statements on behalf of the contesting respondents was granted. The election petition was received fro the Chief Election Commissioner on 31-3-1997 and on 1-4-1997 notices were issued to the parties for 14-4-1997. It transpired on that date that the notices sent to the respondents Anwar Kama] Khan and Engineer Iqbal Zaffar Jhagra were not received back either served or unserved. Fresh notices were, therefore, issue to them for 28-4-1997 with direction to the office to ensure service by all possible means. On the said date Sheikh Saeed Ahmad and Afnan Karim Kundi, Advocates appeared on behalf of Anwar Kamal Khan, and Barrister Shahzad Jehangir entered appearance on behalf of Engineer Iqbal Zaffar Jhagra and made a request for a short adjournment to enable them to prepare and submit written statements as their clients were out of country and were served on 27-4-1997.' The request was opposed by the petitioner on the ground that he had given the requisite notice of the election petition to the respondents, therefore, in view of the mandatory, provisions of paragraph No.3 of the Election Commission of Pakistan Notification No.FI (6) 85-Cord., dated Islamabad the 16th March, 1985 they were obliged to submit written statements within seven days of the receipt of the said notice. The request was granted in the interest of justice subject to the aforesaid objection.
8.According to subsection (1) of Section 43 of the Act an election petition is to be tried by the Election Tribunal in accordance with the procedure laid A down by the Chief Election Commissioner. The procedure laid down by the Chief Election Commissioner is contained in Notification No. F. I (7)/85-Cord. Dated 16th March, 1985 read with Notification No. F.I/(6)/85-Cord., dated 18th March, 1987 which, inter alia, provides that the respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence.
9.The aforementioned Notifications have no doubt streamlined the procedure for trial of election petitions but they have empowered only the Secretary, Election Commission of Pakistan not to entertain an election petition A in case it is not in accordance with the procedure laid down therein and rightly so because had such a power been conferred on the Election Tribunal it would have been ultra vires the Act. The reason is that section 44 of the Act clearly provides that during trial an election petition can be dismissed by the Election Tribunal only if provisions of sections 35 and 36 have not been complied with. This would mean that the directions contained in the said Notifications are directory and clot mandatory in so far as the Election Tribunal is concerned and if any objection is raised in respect thereof during the trial of an election petition it is to be resolved in the light of the provisions of section 45 of the Act which makes it manifest that the Election Tribunal shall have all the powers of a Civil Court trying a suit under the code of Civil Procedure. Needless to mention. That a Civil Court is fully empowered to provide an opportunity to the defendant to submit his written statement within a specified time. The objection is, there from overall.
10. Now I propose to attend to preliminary issue No.4 which embodies a crucial preliminary objection raised by the respondent Anwar Kamal Khan that the election petition is liable to be dismissed straightaway as its contents and Annexures have not been verified in accordance with the provisions of Order VI Rule 15, C.P.C. The importance of this preliminary issue hardly needs any emphasis because a decision thereon against the petitioner would render adjudication on remaining preliminary issues as unnecessary and entail forthwith dismissal of the petition.
11. Raja Muhammad Ibrahim Satti, learned counsel for the respondent Anwar Kamal khan, contended with vehemence that the petition was liable to be dismissed summarily under clause
(a) of aection 44 of the Act as the petitioner had not complied with the mandatory provisions of subsection (3) of section 36 of the Act that every election petition and its schedule or Annexure shall be signed by- the petitioner and verified in the manner laid down in the Code of Civil Procedure. Elucidating the contention the learned counsel submitted that, in view of the explicit provisions of subsection (3) of Section 36 of the Act and Order 6, rule I5' of the Code of Civil Procedure the election petition and its. Annexures were iequired to be signed by the petitioner and verified on Oath or solemn affirmation administered by a person having authority to administer oath under section 139, C.P.C. Read with section 4 of the Oaths Act and High Court Rules and Orders Volume IV, Chapter 12 but the petitioner had not signed the annexures at all and the election petition and the Annexures had not been verified on Oath or solemn affirmation. He further contended that the provisions of subsection (3) of section 36 of. The Act were mandatory as their non--compliance is visited by a penal consequence envisaged by section 44 (a) of the Act under which the Election Tribunal is bound to dismiss the petition. He next contended that the omission was fatal and incurable because it is hit by the harsh provision of section 44 (a) of the Act and is not governed by the general principles of the Code of Civil Procedure under which a defect in verification cannot serve as a ground for rejecting the plaint and can be cured at any stage. He also contended that the penal provision contained in section 44 of the Act was based on two principles: firstly, that when law provides a particular thing to be done in a particular manner then the thing must be done according to the prescribed procedure and in not other way and, secondly, no latitude should be given to the petitioner in an election petition as he wants to undo the will of the people., Reliance was placed on PLD 1964 SC 536, PLD 1971 SC 61, PLD 1994 Peshawar 48, AIR 1956 Allahabad 19, 1995 CLC 150-394-687, 1987 MLD 1372, PLD 1974 SC 134 and AIR 1963 Rajasthan 219.
12. The petitioner, on the other hand, argued that the provisions of section 36 (3) of the Act were directory and not mandatory. He further argued that all the documents annexed with the petition were attested by an Officer of the Election Commission of Pakistan, therefore, non-verification of the same was immaterial and non-verification of the election petition was curable and not fatal.
Reliance was placed on PLD 1967 SC 486 and 1994 MLD 2239. He lastly argued that as observed in PLD 1985 SC 345 the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate purpose of law and justice.
13. The main questions raised in this issue are to be appreciated and resolved in the light of the provisions of sections 36 (3) and 44(a) of the Act and Order 6, Rule 15 of the Code of Civil Procedure, therefore, it will be beneficial to reproduce the same before adverting to the rival contentions of the parties. Section 36 (3) of the Act reads as under:-- "(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."
Section 44-(a) of the Act is worded thus:--
44. Dismissal of petition Burin trial. The Tribunal shall dismiss an election petition, if
(a) the provisions of section 35 or section 36 have not been complied with. Order 6, rule 15 of the Code of Civil Procedure runs 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 arid believed to be true.
(3) The verification shall be signed by the person making it had shall state the date on which and the place at which it was signed."
14. Now the question for determination is whether the provisions of section 36 (3) of the Act are mandatory or directory. There exists no universal rule or absolute test for determining whether a provision of law is mandatory ordirectory. The determination is made in view of the intention of the legislature and the language in which the provision is couched but ordinarily where consequence of failure to comply with the provision are not stated the provision is directory and where the consequences are specifically mentioned the provision is mandatory. In Niaz Muhammad Khan v.
Mian Fazal Raqib (PLD 1974 SC I 134) it was held that as a general rule a statute is understood to be directory , when it contains matter merely of direction, but it is mandatory when those directions are followed up by an express provision that in default of following them the facts shall be null and void. In Farid-un-Nisa v. Chairman Federal Land Commission, Rawalpindi (PLD 1984 Karachi 449) it was observed that a provision is mandatory if its disobedience entails a serious legal consequence. In Major Shjat A.I v. Mst. Surra Begum (PLD 1978 SC (AJ&K) 118) it-was held ' that in the absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. Another authority E on the subject is reported as Muhammad Ismail v. Haji Muhammad & Sons (PLD 1978 Karachi 926) wherein it was observed that the normal rule of construction is that when the statute does not provide for consequences of failure F to comply with the directions contained in it, such direction is to be interpreted as directory and not mandatory. 1n the present case the penal provision is embodied in section 44 (a) of the Act which expressly provides that the Tribunal shall dismiss an election petition if the provisions of section 36 have not been complied with. Besides, the word "shall" stands out prominently in section 36(3) 6 of the Act and the intention of legislature is made manifest by the stringent nature of the provisions of section 44 of the Act. There is thus no difficulty in holding that the provisions of section 36 (3) are mandatory and not directory.
15. The next question for determination is whether non-verification of the election petition and its Annexures on oath is fatal or curable: In so far as notification on' oath of the Annexures to the petition is concerned it is by now well-settled that an election petition cannot be dismissed summarily if the H annexures do not spell out any additional allegation of substantial character or furnish better particulars of the allegations made in the petition. Reference in this context may be made to Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175). The non-verification on oath of the election petition is, however, fatal and incurable in view of the express penal provisions of section 44 of the Act under which an election petition is liable to be dismissed for non- compliance with the provisions of Section 36 of the Act. It is true that under the Code of Civil Procedure the omission to verify is not fatal and can be remedied at a subsequent stage but the omission to verify a plaint cannot be equated with the omission to verify an election petition inasmuch as there is no provision in the Code of Civil Procedure akin to the one incorporated iii section 44 of the, Act. The authority S.M. Ayub v. Syed Yousaf Shah (PLD 1967 SC 486) cited by the petitioner is not applicable at all as it is altogether silent about the effect of non-verification of the election petition and the questions considered therein were whether the newspaper clippings attached to the election petition amounted to "Schedule or Annexure" and whether the failure of the petitioner to verify the same was fatal or not. Similarly, the second authority Haji Mian Azizur Rehman Chah v. Mian Abbas Sharif and another (1994 MLD 2293) cited by him is distinguishable because the questions determined in that case pertained to the non-verification of documents and failure of the petitioner to indicate source of verification of the petition as required under Order 6, Rule 15 (3) of the Code of Civil Procedure and the question of non-verification of the election petition was not considered.
16. An oath or solemn affirmation is to be made before a person authorised under the law to administer oaths. And affirmations. Besides, an oath is practically administered to the deponent.
Admittedly, the election petition has not been verified on oath or solemn affirmation. The simple verification done by the petitioner at the foot of the petition does not meet the requirements of section 36(3) of the Act and Order 6, Rule 15 of the Code of Civil Procedure. In E.A. Evans. v.
Muhammad Ashraf (PLD 1964 SC 536) it was observed that if doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful. In Atta Muhammad Qureshi. v.The Settlement Commissioner .Lahore and 2 others (PLD 1971 SC 61) it was held that neglect of plain requirement of an absolute statutory enactment prescribing how something is to be done would invalidate thing being done in some other manner. Reference may also be made to Muhammad Ashraf v. Ziarat Gul (PLD 1994 Peshawar 48) in which it was observed that a thing ordered to be done in a particular manner must be done in that manner or not at all and doing something in conflict with that would be unlawful. As mentioned earlier the provisions of section 43(3) of the Act are mandatory and non-verficiation or the elect on petition on oath is fatal as it attracts the penal provision of Section 44 of the Act. Pet it would thus follow that the election petition is liable to be dismissed. There is no dearth of case-law on the point but it will be enough to refer to the authority reported as Peter John Sahotra v. The Returning .Officer and 24 others. (1995 CLC 687) which fully supports the view. It will not be out of place to mention that it is all the more necessary to verify an election petition on oath which does not involve recording of evidence and is to be decided on a preliminary issue concerning the disqualification of the elected candidate. The contention of the` petitioner that substantial justice should be preferred to technicalities cannot N prevail because non-compliance with the mandatory provisions of section 36 (3)of the Act is a fatal omission and not a mere technicality. As a matter of fact the contention is not available to him because he also wants to scrore a knock out on a technical ground. The principle enunciated in PLD 1985 SC 345 that the rules of procedure are meant to advance justice is indeed cardinal but it does not apply to the present case in view of the mandatory nature of the provisions ofsection 36(3) of the Act and stringent nature of section 44 of the Act. In that case leave to amend the plaint was declined by the High Court on a technical ground and it wag held that liberal view should be taken for allowing amendment of pleadings. It is scarcely necessary to mention that the ambit and scope of Order 6 Rule 17 C.P.C. Is entirely different from the ambit and scope. OfSection 44 (a) of the Act. Preliminary issue No .4 is, therefore, decided in favour. Of the respondents.
M.B.A55/ETPetr revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.