' This is an application filed by the respondent No,1 under section 151, C.P.C. Read with section 55(3) of the Representation of People Act, 1976 for dismissal of main petition on the grounds that the petitioner has failed to comply with the mandatory requirements of section 55(3) of the Representation of People Act, 1976 (hereinafter referred as the Act 1976) since the petition as well as the annexures filed therewith are not in accordance with the said provision of law. Apparently, respondent No,1 has cited wrong provision of law which, however, would not defeat the instant application. In fact, respondent No,1 should have filed this application under section 63 of the Act 1976 which provides for the penal consequences for non-compliance of provisions of section 55 thereof.
2. I have heard Mr. Gul Zaman Khan, Advocate for petitioner as well as Mr. Faheem R.U. Siddiqui, Advocate for respondent No,
1. Since technical grounds have been raised, it would not be proper to discuss the petitioner's case on merits. In the instant case, petitioner and the respondents contested elections for the Provincial Assembly of Sindh Constituency PS-97 District Malir, Sindh.
Respondent No,1 was declared to be elected against which instant petition was filed calling in question the election of respondent No,l. The memo. Of petition does not bear verifications and has been simply signed by the petitioner and his counsel. Nor the annexures filed with the petition were verified. In support of the plea that a petition is liable to be dismissed for non-compliance of provisions of section 54 or 55 as provided in section 63 of the Act 1976, Mr. Faheem R.U. Siddiqui has referred to the cases Ali Ahmad Khan v. Muhammad Qasim Khan and others (PLD 1985 Jour. 277), Muhammad Ibrahim v. Muhammad Arif Sardar (1986 CLC 2050) and Peter John Sahotra v. The Returning Officer and 24 others (1995 CLC 687). Mr. Gul Zaman Khan wile opposing this application argued that the law of pleadings should not be strictly construed or rigorously applied as it frustrates the very intent of the Act 1976. It was further argued that mere non-verification of annexures is not fatal and in no manner makes the petition liable to be dismissed. He has relied upon a case of Full Bench of the Hon'ble Supreme Court of Pakistan, S.M. Ayub v. Syed Ousaf Shah and 2 others (PLD 1967 SC 486), Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175) and Haji Amanullah Khan v. Sahibzada Tariqullah (1995 CLC 158). He has also referred to the order dated 20-4-1994 in Election Petition No,95 of 1993.
3. Case of Ali Ahmed Khan pertains to Election Tribunal, Quetta which at the relevant time was being presided over by Justice Saleem Akhtar, J. (as his lordship then was). In the said case, the question involved was whether a petition is liable to be dismissed as one of the candidates was not joined in the petition as respondent. The election petition was dismissed with cost on the ground that one Hazrat Ali Karbala who was a contesting candidate was not joined as party in the petition.
It was held by the learned Single Judge that from the scrutiny of the provisions of the Act, 1976 it is clear that the legislature requires strict compliance of the requirements by the Act and that its noncompliance will follow dismissal unless it can be remedied by amendment in the petition which the Tribunal is permitted to allow under the law. Reference was also made to the case of Muhammad Hanif v. Ghulam Hyder Shah (PLD 1982 Karachi 957) where it was observed in reference to the Sindh Local Council Election Rules that such rules being procedural should be liberally construed. It is pertinent to note that section 62 of the Act, 1976 as originally enacted was substituted vide Ordinance No,XVIII of 1985 (PLD 1985 Central Statues 539) which now provides that subject to the provisions of the Act, 1976 and Rules framed thereunder, every Election Petition shall be tried in accordance with the procedure laid down by the Election Commission. Case of Muhammad Ibrahim (1986 CLC 2050) pertains to Election Tribunal, Punjab where similar question was raised and it was held that the requirement of signing and verification of the petition as contemplated in subsection (3) to section 55 of the Act, 1976 is on the same line as of Order VI, Rule 15, C.P.C. In that case, neither the petition was signed and verified in the manner as prescribed nor the appendices filed therewith were signed and verified. The learned Judge sustained the objection and dismissed the petition with the following observation:-- "5. I do not think in the context of election laws, verification of the petition or its annexures was merely a formality as could be supplied later by amendment. Section 63 of the Act leaves no option to the Tribunal to allow any such amendment as its absence shall result hi dismissal of the petition. There can be no two opinions about it. The authorities referred to in this behalf more or less relate to civil cases and not to the election petitions which are invariably dismissed even on technical grounds. In Rajendra Singh v. Mst. Usha Rani and others 1985 PSC 1208 such a petition was dismissed for having filed and supplied incorrect copies of the petition etc. To the opposite-party.
Likewise, in Ali Ahmed Khan v. Muhammad Qasim Khan and others. PLD 1985 Jour. 277 non- impleader of a party was held fatal."
4. In the case of Peter John Sahotra (1995 CLC 687) several case-law including S. Yusaf Ali Shah v.
The Election Tribunal, West Pakistan, Lahore (PLD 1967 Peshawar 207), Muhammad Zubair v. Rana Phool Muhammad and others (PU 1973 Tribunal Cases (Election) 3) and Lt. Col. ,(Retd.) J. Abel v.
Emmanual Zafar and others (1987 MLD 1372) was considered and it was held that the non- compliance of mandatory provisions of section 55 of the Act, 1976 being mandatory is fatal and that the Tribunal has no choice but to dismiss the Election Petition as provided under section 63 of the Act, 1976. The Election Petition was dismissed for not signing and verifying the Annexures filed therewith.
5. In order to appreciate the arguments of both the learned counsel as well as the case-law, it would be necessary to quote the relevant provisions of the Act, 1976, which are as follows:-- Contents of petition.--(1) ...
(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 pleadings.
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."
6. Mr. Gul Zaman Khan has referred to the case of S.M. Ayub (supra) which was not referred in either of the three cases cited by Mr. Faheem R.U. Siddiqui. It was argued that section 59 of the National and Provincial Assemblies (Elections) Act, 1964 (now repealed) is para materia to section 55 of the Act, 1976 and so section 67 of the repealed Act is para materia to section 63 of the Act, 1976. In the case of S.M. Ayub the effect of non-compliance of section 59(3) of the Act VII of 1964 which is admittedly para materia to section 55(3) of the Act 1976 was not considered. This effect has been considered in other cases which are referred in the latter part of this order. It was held by the Hon'ble Supreme Court in the case of S.M. Ayub that there was nothing in the repealed Act of 1964 that even a single defect in the petition in respect of one paragraph would justify throwing out of an election petition. The plea that the annexures filed with the main petition were not properly verified was not upheld and it was ruled such omission not to be fatal to the prosecution of an election petition as these annexures were merely cuttings from the newspapers and were held not to be additional evidence. Another case cited by Mr. Gul Zaman, Ihrar Khatak (1991 CLC 175) involves two objections, firstly, that the annexures attached to the Election Petition were neither signed nor verified as provided under the Act, 1976 which objection was not sustained by the learned Election Tribunal N.-W.F.P. In view of the case of S.M. Ayub (supra) as it was held that the Annexure attached to the Election Petition neither revealed any additional allegation of substantive character nor furnished better particulars of allegations made in the petition. Therefore, non- verification of such Annexures was held not fatal. However, there was second objection that the petition was neither accompanied by list of witnesses nor affidavits of witnesses. The said objection was sustained in view of the rule laid down in the cases Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar (PLD 1986 Jour. 160), Mehr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah (1988 CLC 1289), Abdur Rauf Khan v. Haji Muhammad Nawaz Khan and 2 others (1986 MLD 2338) and the case of Mrs. Rehana Husain Mullick v. Sahibzadi Mahmooda Begum and another (1986 MLD 2707) and, therefore, it was further held that non-supply of annexed documents, list of witnesses and affidavit of witnesses were fatal to the maintainability of the petition which was dismissed.
7. Mr. Gul Zaman Khan has also referred to the order dated 20-4-1994 passed in Election Petition 95 of 1993 by Justice Salahuddin Mirza (as he then was) where preliminary objections as of the instant case were over ruled as the said learned Judge did not find non compliance of any provisions of section 55(3) of the Act 1976. Reference to the case bearing Petition No,8 of 1985 (Fidaur Rehman Darkhwasti v. Mir Nawaz Khan Marwat and others) is of no help to the petitioner as in that case there is no discussion on the point involved in this petition which may advance the case of either party. I would also like to refer here a case from the Punjab Election Tribunal Ch. Muhammad Sarwar Jaura v. Mian Abdul Rashid Pagganwala and others (1987 MUD 1309) where the question of non-compliance of section 55 and its consequences were also considered. It was held by Justice Rustam S. Sidhwa (as his lordship then was) that a Tribunal can dismiss an Election Petition, if the provisions of section 54 or section 55 of the Act, 1976 have not been complied with. Petition was dismissed on the grounds, inter alia, that the petition was not signed and verified according to law.
It would be advantageous if the observation of the learned Judge is reproduced which is material for the determination of the present controversy:-- "..On the contrary, the learned counsel strongly contended that the procedural requirements of the law could not be permitted to defeat substantial justice and that the procedural law should only be allowed to facilitate justice and not to hinder it. I am afraid the submissions of the learned counsel for the petitioner have no force. Section 63 of the President's (Post Proclamation) Order No,5 of 1977 clearly shows that a Tribunal can dismiss an election petition if the provisions of section 54 or section 55 have not been complied with. It is clear in the instant case that under section 55(3), the petitioner should have signed the election petition in the manner laid down in the Code of Civil Procedure, 1908. Neither the petitioner signed the petition, as required by law, but wilfully failed to take any steps to supply the omission. The petitioner, through his counsel, persisted in supplying verbal protection to his omission. In view of the petitioner's omission to sign the election petition and wilful and deliberate attempt not to correct the defect, I have no alternative but to dismiss the election petition under section 63."
8. Section 63 of the Act 1976 provides penal consequences i,e, dismissal of an election petition if provisions of sections 54 and 55 have not been complied with or if the petitioner fails to make further deposit as required under section 62(4) of the Act 1976. It is due to this provision that strict compliance of sections 54 and 55 are held to be mandatory. Although, it is provided under section 55(3) of the Act of 1976 that every election petition, Schedule and other Annexures attached to such petition shall be signed by the petitioner and are to be verified in a manner laid down in the Code of Civil Procedure, 1908 but no consequence is provided in C.P.C. For non-compliance of provisions of Order VI but in the instant case there is a penal consequence as envisaged in section 63 of the Act, 1976, which, in my considered view, is to be construed strictly. The language of section 63 leaves no scope for the Tribunal to exercise its discretion in favour of such petitioner who has committed non-compliance of sections 54 and 55 of the Act, 1976. In the instant case, the election petition was filed without any verification as provided under Order VI, Rule 15 of C.P.C. Rule 15 to Order VI, C.P.C. Provides that every pleadings shall be verified on oath or on solemn affirmation, to be made at the foot of such pleading by such party or by some other person(s) who, to the satisfaction of the Court, is acquainted with the facts of the case. It is further provided in Sub-Rule
(2) to Rule 15 of Order VI, C.P.C. That the person verifying such pleadings shall specify by referring to the numbered paragraphs of the pleadings what is based on his own knowledge and what is based upon information received and believed to be true. In the present case, all such elements of verification are absent. Mr. Gul Zaman Khan has referred to an affidavit of the petitioner, filed in support of this petition, which is available at pages 19 to 22 of the case file but perusal of the same indicates that although the same is in the format of an affidavit with a declaration of verification at the foot of the same but it was not administered before any Commissioner for taking affidavits so it cannot be said that an affidavit was filed in support of these pleadings, which still would not amount to compliance of Order VI, Rule 15, C.P.C. For further reference, see Harchand Rai v. Manga Ram and others (1986 CLC 985) where it was held by Justice Sajjad Ali Shah (as his lordship then was) that the provisions of section 55 are mandatory in nature and since the allegations in that petition was very vague and no full particulars of illegal practice or act were disclosed, the election petition was dismissed under section 63 of the Act of 1976 at the preliminary stage. In the case of Sardar Khalid Nawaz v. Mian Manzoor Ahmed Wattoo (1987 CLC 1167), it was held by the Punjab Election Tribunal that the rules of procedure for trial of election petitions have binding force and that such rules are not mere instructions. In that case, election petition was dismissed at preliminary stage since the petitioner had failed to furnish any affidavit alongwith the said petition.
I am also fortified in my view by the case Muhammad Zahir Shah Khan and another v. Nasiruddin and others (1986 CLC 2463) where it was held by Mr. Saeeduzzaman Sidiqui, J. (as his lordship then was) that the compliance of provisions of section 55 is mandatory and its non-compliance invites application of section 63 of the Act, 1976. Following are the relevant observations:-- " .There cannot be two opinions that the provisions of section 55 are mandatory in nature as under section 63 of the Act it is provided that the Tribunal shall dismiss the election petition if the provisions of section 54 or 55 have not been complied with. I am, therefore, of the view that additionally for reason of non-compliance of section 55(1)(b) this petition is also liable to be dismissed...."
9. The petitioner has also filed several Annexures alongwith his petition which again have not been verified in a manner prescribed by section 55(3) of the Act, 1976. However, there are certain documents which are not to be treated as an additional evidence filed in support of the petition but still there are other documents which amount to additional evidence filed in support of election petition which require verification. However, I would not like to dilate upon this question as neither the respondents raised this objection nor any of the counsel advanced any argument on this aspect of the case.
10. As a result of the above discussion, I am of the view that there is a serious non-compliance of subsection (3) to section 55 of the Act, 1976 and, therefore, this petition is liable to be dismissed as provided under section 63 of the Representation of the People Act, 1976. Let the record of this petition be forwarded to the learned Commissioner under section 72(2) of the Act, 1976.
' Order accordingly.
Election .