' The relevant facts for the decision of this election petition are that the respondents contested the election for special Seats of Technocrats in the Senate from the Province of Punjab. They were declared elected unopposed vide notification dated 13th of March, 1997 issued by the Election Commission of Pakistan.
2. The petitioner has challenged the election of respondent No,1 through this election petition, which was filed with the Election Commission of Pakistan and was entrusted to this Tribunal vide order dated 30th of April, 1997. The same was registered and notices were issued to the respondents. The respondent No,1 alone has appeared and contested the petition while the other respondents were proceeded ex parte. The election has been challenged on the sole ground that the respondent No,1 was neither resident of Lahore nor had an office of practice at Lahore nor his name appeared in the Provincial Roll of the Punjab Bar Council nor he was member of Lahore High Court Bar Association nor any other Bar Association in Punjab to identify his belonging to the Province of Punjab for the purpose of Election to a Special Seat of Technocrats of the Senate.
3. The respondent No,1 submitted the written statement denying the allegations. On merits it was pleaded that he possessed essential qualification for contesting the Election to Senate. It was added that he has been appearing in the Lahore High Court and for practice it is not necessary for an Advocate of the High Court/Supreme Court to be the Member of the Bar Association of that place. It was added that the respondent No,1 completed his basic education from FC College, Lahore his ancestral property, a bungalow is situated in Main Boulevard, Gulberg Lahore which he jointly owned with his brother and he also owned property No,98, Block-2, Phase-I, LCCHS, Lahore.
The petition was contested on law points inter alia that as the petitioner was not a candidate, therefore, he could not maintain the same as required under section 36(3) read with section 44(a) of the Representation of People Act, 1976, hereinafter to be referred to as Act of 1976; that the affidavit of the petitioner and his witnesses have not been filed and the petition was not accompanied by list of witnesses, therefore, no witness could be examined in support of the election petition by the petitioner and in the absence of any evidence it was a futile exercise to proceed with the election petition.
4. Mr. Makhdoom Ali Advocate, learned counsel for respondent No,1 has completed his arguments on preliminary objection on 23rd September, 1997 when the petition was adjourned on the request of counsel for the petitioner for his arguments. The same could not be taken up for variety of reasons including my absence from Principal Seat. The petitioner on 6th of December, 1997 moved application under Order 6 Rule 17 read with section 151 C.P.C. Wherein it was prayed: "(a) Annexures to the petition duly verified on oath may very kindly be allowed to be replaced which are annexed with this application.
(b) The enclosed list of witnesses containing the name of the petitioner only alongwith his affidavit that he will corroborate the petition may very kindly be allowed to be appended to the petition."
' Therefore, I would first take up this application (C.M. No,4/97). The parties have addressed arguments on this application as well and I would like to dispose of the same first.
5. The petitioner in support of the petition argued that he be allowed to place the annexures duly verified instead of original documents filed with the election petition. It is added that the petitioner alone is to appear in support of his election petition and he be allowed to append his affidavit. On the other hand learned counsel for the respondent No,1 argued that the petition is mala fide and the same was not moved even after going through the written statement which was filed on 30th of May, 1997. It is added that it was not infact application for amendment of election petition and covered by Order 6 Rule 17 C.P.C. And now if the same is allowed it would amount to re-opening the whole matter. This would defeat the provisions relating to the trial of the election petition.
6. I have given my anxious consideration to the arguments advanced on both the sides. This application by no stretch of imagination could be termed as application for amendment of pleadings as neither the petitioner has notified the precise amendment to be made nor the place where additional paras. Were to be added. This is in effect application for substitution of documents and permission to file affidavit of the petitioner as his own witness. The petition has been made with unconsciousable delay and as it would be discussed on merits even if it is allowed it will not serve any purpose except prolonging agony of the parties and wastage of time of this Court, therefore, this application (C.M. 4/97) is dismissed as incompetent and on merits.
7. Now coming to the main election petition argued that the respondent No,1 was not eligible to seek election against Special Seat of Technocrats in the Senate from the Province of Punjab because he was neither resident of Lahore nor had an office of practice at Lahore nor he was registered as an Advocate with the Punjab Bar Council nor he was member of the Lahore High Court or any other Bar Association in Punjab. It is argued that the petitioner raised objection before the Returning Officer but the same was rejected. The petitioner has no remedy against the rejection of this objection, therefore, he has filed this election petition. It is added that the election petition is duly verified and the verification of annexures while submission of list of witnesses and their affidavits is mere a technicality and formality and the petition cannot be dismissed for this ground. It is added that even the annexures appended with the written reply are not verified. It is argued that the written statement was not filed within seven days as required under Para 3 of the Procedure prescribed by the Election Commission of Pakistan for trial of the election petitions.
8. On the other hand Mr. Makhdoom Ali, Advocate argued that neither the petition nor the annexures are verified in terms of section 63(3) of the Act, 1976 read with section 44, therefore, the petition is liable to be dismissed. In this behalf learned counsel has referred to the Judgments reported as Sardar Khalid Nawaz v. Manzoor Ahmed Wattoo (1987 CLC 1167), J. Abel v. Emmanuel Zafar (1987 MLD 1372), Muhammad Ibrahim v. Muhammad Asif Sardar (1986 CLC 2050) and Muhammad Azad Gul v. Said Muneer Said and 11 others (1997 CLC 1132). It is argued that the petitioner has neither furnished the list of witnesses nor their affidavits including his own, therefore, the petition is liable to be dismissed. In this behalf reference is made to the case of Sardar Khalid Nawaz (supra) and judgments reported as Peter John Sahotra v. Returning Officer 1995 CLC 394, Muhammad Aslam v. Waheed-ud-Din (1990 ALD 170(1)], Hazrat Khan v. N. Khalid Khan and others (1997 CLC 1765), Ihrar Khattak V. Mian Muzaffar Shah (1991 CLC 175) and Rehana Hussain Mullick v.
Sahibzadi Mahmooda Begum (1986 MLD 2707). It is argued that the election petition could only be filed by a contesting candidate. In this behalf reference is made to section 52 and reliance is placed on the judgment reported as Muhammad Tariq Chaudhry, Member Senate of Pakistan Islamabad v. Syed Masroor Ahsan and 3 others (PLD 1991 Lahore 200) and Babu Muhammad Munir v. S.A. Hameed and others (1997 MLD 3027). On merits it is argued that the respondent No,1 was listed as voter at Karachi. He moved application on 18th November, 1996 Annexure-1 for deletion of his and wife's vote. The application was accepted and accordingly Annexure 2 was issued thereafter on 27th of November, 1996 he moved application for entry of his vote at Lahore and the same was granted on 27th November, 1996 as is clear from Annexure-3. It is added that respondent No,1 owned not only ancestral property at Lahore but also he was member of the LCCHS since 1986 and was allotted plot in 1986 as it clear from Pages 29-B and 29-A, therefore, he was eligible to be registered as voter in terms of section 6(2) of the Electoral Rolls Act, 1974 read with Article 62(c) of the Constitution of Islamic Republic of Pakistan, 1973. It is added that the registration as voter cannot be challenged in election petition. In this behalf reliance is placed on the judgment reported as Din Muhammad Balouch v. The Returning Officer P.S.77 (1986 CLC 1386). It is argued that the Annexures appended with the written statement are verified as required under the law. The verification was not to be attested by the Oath Commissioner in view of the provisions of Order VI Rule 15, C.P.C. The petitioner while summing up the arguments submitted that the verification on the documents filed by the respondent No,1 required attestation by the Oath Commissioner in view of section 139, C.P.C. It was a case of transfer of vote, which was not registered at Lahore properly in accordance with law therefore, it was void.
9. I have given my anxious consideration to the arguments advanced on behalf of the parties and gone through the record, relevant provisions of law and precedents. It is clear not only from Pages 29-A & B as well as affidavit of the respondent No,1 that he owned immovable property at Lahore, therefore, he was legally entitled to be registered as a voter at Lahore in view of the provisions of section 6 of the Electoral Rolls Act, 1974 hereinafter to be referred as Act 1974 read with Article 62(c) of the Constitution of Islamic Republic of Pakistan, 1973. By this time it is settled law that entry in the Voter List cannot be questioned in an election petition. The learned counsel for the respondent No,1 has rightly referred to the judgment reported as Din Muhammad Balouch v. The Returning Officer P.S.77 (1986 CLC 1386).
10. Now coming to the preliminary objections. The petitioner admittedly was not a contesting candidate therefore, he could not maintain the election petition. The learned counsel for the respondent has rightly referred to the Judgment reported as Muhammad Tariq Chaudhry, Member Senate of Pakistan Islamabad v. Syed Masroor Ahsan and 3 others (PLD 1991 Lahore 200) and recent judgment in the case of Babu Muhammad Munir (supra) wherein it was held:-- ' "It is clear from the scheme of the Act, 1976 that it provides for Election Tribunals at two junctures of election process. The first one is constituted under section 14(5) to hear the appeals against the decision of Returning Officer accepting or rejecting nomination papers. This Tribunal is to decide the .Appeals in a summary manner and within the specified period otherwise the appeals are to be deemed to have been rejected. Thereafter, the election process continues upto declaration of the result. Then comes into play Chapter VII dealing with the election disputes. The election can be challenged only by election petition by a candidate under the provisions of section 52 of Act 1976, which reads as under:-- "52. Election Petition.---(1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner)."
' Section 53 deals with the presentation while 55 deals with the contents. The other important provision is section 54, which deals with the parties to the petition and provides that the petitioner shall join all contesting respondents and any other candidate against whom any allegation of any corrupt or illegal practice is made as respondent. Section 56 provides for procedure on the receipt of the election petition by the Commissioner & then comes 57 which requires the Commissioner to appoint Election Tribunals for the trial of election petitions under this Act. Section 58 deals with the powers of transfer. The other relevant provision is contained in section 64 (1), which provides that Tribunal shall have all the powers of civil Court trying a suit under Civil Procedure Code of 1908. It is therefore, clear from section 52 of Act 1976 that election could be challenged through an election petition by a candidate only."
11. Now coming to the second preliminary objection that the petition and the annexure appended with the same were not verified in accordance with law. The petitioner maintained that the verification of the petition is at Page 7 but the perusal of the same shows that it was an affidavit, which was not in continuation of page 6. Moreover, if it was meant to the verification then could have atleast partially been typed out at the foot of the petition at page 6. As to the annexures appended with the election petition the argument is that the same have been signed by the petitioner. The petitioner lost sight of the fact that signing and verification are two different sets and not one and the same thing. The requirement of section 55 of Act of 1976 is that the election petition and annexures shall be verified in terms of provisions of the C.P.C. The verification of pleading is covered by Order VI Rule 15(1) C.P.C. Which reads as under:-- ' "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 Court to be acquainted with the facts of the case."
12. The petitioner has objected to the verification of the annexures appended with the written statement as according to him the same were not verified in accordance with law as required under section 139 C.P.C. Which reads as under:-- ' "In the case of any affidavit under this Code:--
(a) any Court or Magistrate, or
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the (Provincial Government) has generally or specially empowered in this behalf may administer the oath to the deponent."
' It is clear from the above provisions of the C.P.C. That section 139 C.P.C. Deals with the affidavits and not with the verification of pleading and documents while Rule 15(1) of Order VI, C.P.C. Dealt with the verification of pleading and it is not required to be attested by the Oath Commissioner. The rationale in enacting this provisions seemed to be that the pleading and documents appended therewith should be prima facie made authentic because these anything being false in the election petition or any document being forged or fabricated the party at fault could be punished by the Tribunal or concerned Court itself. This controversy has been dealt at length in the case of Peter John Sahotra (Supra). The relevant portion reads as under:- ' "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 c to the case reported as Shafiq Metal Works v. Bank of Bahawalpur (PLD 1973 Note 33, P.41) However, this argument overlooks the provisions 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 provisions 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 provisions 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 consequence 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 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 Zabair (supra). In this behalf reference can also be made to the judgment in the case reported as J. Abel v. Emmanual Zafar (1987 MLD 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 Annexuers 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 Aghar Khan v. Mian Muhammad Nawaz Sharif'.
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 (1) of the Notification, dated 16-3-1985 as completed 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 title 'Tariq Mahmood Bajwa v. Mian Muhammad Afzal etc.- The documents appended with the written statement are verified correctly. The petitioner had failed to verify the petition and documents appended with the petition, therefore, the petition is not maintainable and liable to be dismissed. The learned counsel for the petitioner had rightly referred to case-law in this behalf.
' The petitioner has not also cared of list of witnesses and their affidavits. The petitioner is also liable to be dismissed on this score in view of the cases of Sardar Khalid Nawaz, Peter John Sahotra, Muhammad Aslam, Hazrat Khan, Ihrar Khattak and Rehana Hussain Mullick (supra) relied by the learned counsel for the respondent.
13. It is clear from the above discussion that the petitioner had no locus standi to maintain the election petition but the tragedy is that even some learned members of the Bar do not care to study the law and legal position before filing frivolous and incompetent petitions in the Courts and they just proceed like professional litigants which results of lot wastage of precious time of the Courts. This Court otherwise be utilized for disposal of genuine litigation. This is high time to discourage this tendency to resort of frivolous litigation just for cheap popularity through publication of news items in the papers, therefore, I would be awarding special costs. It may be made clear that still a lenient view has been taken in this behalf.
14. The learned counsel for the respondent No,1 feebly argued that election of his client was challenged through W.P. No,12281 of 1997 which was dismissed by the learned Division Bench of this Court. The learned counsel, however when asked whether this Tribunal is bound by this judgment very candidly submitted that this Tribunal is not bound. The election disputes are liable to be adjudicated by special forum i.e, Election Tribunal and the High Court had no jurisdiction in view of the judgment of the Hon'ble Supreme Court reported as Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396). In any case if Constitutional jurisdiction of the High Court is invoked then the best course would be to wait for the decision of the election petition otherwise the returned candidate may defeat the purpose of election petition by getting a Constitutional petition filed and dismissed collusively.
15. The upshot of this dicussion is that this election petition is dismissed with Rs,30,000 as costs.