MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal has been directed against the judgment passed by the Election Tribunal on 10-9-2002, whereby the election petition filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the appellant challenged the election of respondent No.1 who was declared successful from Constituency LA-XII, Kotli, 5 in the election of Azad Jammu and Kashmir Legislative Assembly held on 5-7-2001. It was alleged that the returned candidate secured 14141 votes whereas the appellant bagged 13802 votes. It is alleged that the results of election were materially affected due to illegal acts and corrupt practices committed by and on behalf of respondent and mainly for the reasons that 2773 voters were deprived of their right of franchise as their identity cards were snatched away from the Mobile Team by the son-in-law of respondent No.1. The appellant filed election petition before the Chief Election Commissioner who made it over to Election Tribunal (Judge Ehtesab Court No. 1 Muzaffarabad) for hearing and disposal. Respondent No. 1 submitted an application before the Election Tribunal on 6-4-2002 for dismissal of election petition under section 59 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, (hereinafter to be referred as the Election Ordinance), stating therein that the appellant was bound to give full particulars of any illegal act or corrupt practice including full statements of parties who committed such illegal act or corrupt practice with the date and place of commission of such acts. The appellant has not given any detail of facts with respect to commission of any illegal act or corrupt practice or other illegal acts nor he has mentioned the names of parties who committed such illegal acts or corrupt practices. Likewise the appellant has not given full statement with respect to date and place of commission of such acts. The appellant has not complied with mandatory provisions of section 59 of the Election Ordinance, therefore, the petition is liable to be dismissed under section 59 of the Election Ordinance summarily without any further proceedings. It was also alleged by the respondent in his application that in view of provisions of section 51(3) of the Election Ordinance, the appellant has not verified the contents of election petition as well as the documents which were annexed with the election petition as required by law. A prayer was thus made that the appellant has not complied with mandatory provisions of law at the time of filing of petition, therefore, without taking any further proceedings for the trial of election petition, the same may be dismissed summarily.
3. The appellant herein filed objections to the application of respondent and repudiated the allegations made by him. The Election Tribunal vide its judgment dated 10-9-2002 dismissed the election petition filed by the appellant summarily on the following two fold grounds:-
(i) that the contents of election petition were not verified by the appellant in accordance with Order VI, rule 15 of the Code of Civil Procedure read with section 51(3) of the Election Ordinance. It was opined by the Election Tribunal that the verification was to be made of each any every paragraph of election petition and of the facts disclosed in the election petition to be correct and true to the best of knowledge and belief of 'the appellant. It was also observed that the verification was to be made in accordance with the manner that the place where the said verification was made was to be disclosed along with the date; and
(ii) that the corrupt and illegal practices which were mentioned in the election petition, their particulars were to be disclosed. It was enjoined upon the appellant to disclose the names of parties who committed the corrupt and illegal practices and where the same were committed in accordance with provisions of section 51(1) of the Election Ordinance. The Election Tribunal observed that the detail of illegal act or corrupt practice alongwith the names of parties who committed the same and the place where the same were committed were necessary requirement of law to be mentioned otherwise the election petition entailed dismissal under section 59 of the Election Ordinance. The Election Tribunal observed that in para 4 of the election petition it has been disclosed by the appellant that the son-in-law of respondent No.1, two days prior to elections snatched 2773 identity cards from Mobile Team No.3 in the way which were to be distributed amongst the voters. The name of son-in-law of respondent No.1 was also not disclosed nor the place was mentioned where the identity cards were snatched away. In support of this allegation, an F.I.R was got registered wherein nobody has been named who snatched the identity cards. As a matter of fact there is do mention that identity cards were snatched away or the same were stolen.
On the other hand the allegation in the F.I.R is that some Government official handed over the identity cards to somebody else and the same have not reached the concerned persons. It is also alleged in the F.I.R that the negligence on the part of Government officials appears to have been made, therefore, they may be proceeded in accordance with law. Thus it was observed by the Election Tribunal that the F.I.R which was produced in support of allegation of appellant is contradictory to the stand taken by him in his election petition.
Resultantly the election petition, as stated earlier, was dismissed by the Election Tribunal summarily vide its judgment dated 10-9-2002. If is the aforesaid judgment of the Election Tribunal which is the subject-matter of present appeal.
4. In support of appeal it was vehemently contended by Ch. Muhammad Ibrahim Zia, the learned counsel for the appellant, that the Election Tribunal has failed to appreciate the true spirit of law on the subject and fell in error while dismissing the election, petition on technical grounds which amounts to miscarriage of justice. The learned counsel submitted that the appellant has fulfilled the legal requirements, the petition is verified on behalf of the appellant and mere non-mentioning of para numbers does not call for dismissal of election petition. The learned counsel has pressed into service the submission that the appellant has stated in his election petition the necessary facts which have materially affected the results of election. It is not the requirement of law'that details should have been given. The precise statement of facts as far as possible has been duly mentioned. The learned counsel contended that the election petition contains sufficient details and if the same are proved by production of evidence, the election of respondent No.1 can be declared as illegal. The learned counsel further submitted that there is only difference of 339 votes and if the identity cards of eligible voters of 2773 persons, as alleged by the appellant, would not have been snatched away and those persons had cast their votes, the result would have been different. The Election Tribunal, according to the learned counsel, committed a legal error by dismissing the petition on technical grounds. The learned counsel submitted that as the Code of Civil Procedure is applicable in the trial of Election Tribunal, therefore, if there was any defect in the verification or in the details of corrupt and illegal practices, the same is not fatal and it was curable.
In the circumstances of the case it was enjoined upon the Election Tribunal to record the evidence of parties and then to decide the petition in accordance with law. The learned counsel in support of his contentions relied upon, the following case---law.
1994 MLD 2293) it was observed that the verification of election petition in the composite form which demonstrated that contents of petition were true and correct not only to the best of petitioner's knowledge and information but also to his belief, could not be objected to as being not in accordance with the dictates of law.
1994 SCMR 1555 at page 1563 of the authority it was observed while deciding an amendment application that the objection of the learned counsel for the appellant that the learned Judge in Chambers could not grant the relief of possession in absence of an appeal from respondent against the part heard decree of trial Court which denied him the relief for possession and the omission to file a cross-objection in the appeal preferred by appellant are based on procedural technicalities only and not germane to the jurisdiction of Court to grant relief. It was further observed that there was nothing in law which prevented the Court from treating the application under section 151 C.P.C therefore, procedural laws and rules cannot be used as means of denying relief to aggrieved party on the ground of technicality and non-observance of these rules or procedural rules.
PLD 1967 SC 486) it was observed as under: "By 'schedule or annex' mentioned in subsection (3) of section 59 of the Act is apparently meant such a schedule and annexure as either makes additional allegations of a substantive character against the opposite party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of "schedule or annex' mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition. "
1991 CLC 175) it was observed that annexure attached to election petition neither made any additional allegation of substantive character nor furnished better particulars of allegation made in petition. Non-verification of such annexure attached to election petition was held to be not fatal to election petition.
5. The learned counsel for the appellant on the basis of above authorities submitted that the Election Tribunal fell in grave error in dismissing the election petition merely on technical grounds.
6. Controverting the arguments raised by the learned counsel for the appellant, Raja Muhammad Hanif Khan, the learned counsel for respondent No.1, submitted that the Election Tribunal had not fallen in error by dismissing the election petition on technical grounds. On the other hand under the Election Ordinance it was enjoined upon the Election Tribunal to dismiss an election petition summarily if the verification of petition is not in accordance with law and the particulars of place, time of corrupt or illegal practices and names of parties who committed the same have not been mentioned in detail. The leaned counsel referred to subsection (1) and (3) of section 51 of the Election Ordinance 1970 which reads as follows:-- "51. (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) .................................
(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, for the verification of pleadings."
The learned counsel for respondent submitted that in the instant case the verification of the election petition has been made by the counsel for the appellant wherein the date has been mentioned but it has not been mentioned as to where the verification was made. The contents of election petition were stated to be correct and true to the best of knowledge and belief of the counsel for the appellant who had no personal knowledge or was conversant with the allegations of the facts alleged in the petition. Similarly the details of corrupt practices which materially affected the result of election were not given by the appellant. The names of person or parties who committed the illegal practices and the place where the same were committed were also not mentioned in the election petition nor the time was mentioned. According to the learned counsel for the respondent sections 50 and 51 of the Election Ordinance are controlled by section 59 which reads as under:- "59. The Tribunal shall dismiss an election petition, if
(a) the provisions of section 50 or section 51 have not been complied with; or
(b) the petitioner fails to make the further deposit required under subsection (4) of section 58. "
According to the learned counsel for the respondent the above provision of law shows it beyond any manner of doubt that the provisions of sections 50 and 51 of the Election Ordinance are not directory but mandatory in nature as the penal clause in the shape of section 59 has been provided in the statute which clearly lays down that if the provisions of section 50 and 51 are not complied with, the Tribunal shall dismiss the election petition. The learned counsel further submitted that the Code of Civil Procedure is applicable in the election petition to all limited extent and the whole of the Code is not applicable in the election petition. The learned counsel also contended that appeal before the Supreme Court is competent only against the decision of the Election Tribunal after the trial of the election petition otherwise no appeal lies before the Supreme Court. The learned counsel for the respondent in support of his contentions relied upon the following case law.
PLD 1974 SC 134) it was observed that as a general rule 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 up differently, if the act is directory, its disobedience does not entail any invalidity; if the act is mandatory, its disobedience entails serious legal consequences amounting to invalidity of act done in disobedience to the provision.
1987 CLC 1167) it was observed that verification of election petition on oath as required under Order V.I, rule 15 C.P.C was quite distinct from filing of affidavit alongwith the election petition as envisaged in mandatory provision of section 52 of Act LXXXV of 1976. It was held that failure of petitioner to furnish such affidavit alongwith election petition would render the election petition incapable of being substantiated by any evidence whatsoever even if the election petition was verified on oath by the petitioner.
PLD 1985 SC(AJ&K) 85) it was observed that it is correct that according to rule 35-D the ballot papers were to be signed on the backside but signatures of any of the relevant authorities even on the front side of ballot papers would not be visited by a penalty especially so when no penalty has been envisaged for such an omission in rule 41-A.
1995 CLC 150) it was observed that the election petition was neither signed nor verified and the Election Tribunal referred the same back to Chief Election Commissioner where it was got signed by the petitioner and then again referred to the Election Tribunal. Such signature would not validate the election petition because the Election Tribunal had no authority to refer back the petition to Chief Election Commissioner as no such power was vested in the Election Tribunal under the Representatives of Peoples Act, 1976. Signatures of petitioners appended on election petition after expiry of statutory period of 45 days would not validate such inherent defect. Apart from signatures, the election petition was not valid in accordance with law, therefore, the same was liable to be dismissed. It was further observed that non--verification of main election petition was not only a mere technicality of formality but being mandatory provision, its non--compliance would result in dismissal of the same.
1995 CLC 394) it was observed that the election petition is to be signed and verified in terms of Order VI, rule 15, C.P.C. Failure to observe the provisions of Order VI, rule 15 however is not visited by any penalty. The defect in 'signing verification or presentation of plaint in a civil suit is thus not fatal but curable at any stage of proceedings. The provisions of section 63 of the Representatives of Peoples Act, 1976, however, provides that election petition would be dismissed for non-- compliance of provisions of sections 54 and 55 of the Act relating to signing and verification of election petition which is mandatory. Election petition having not been signed and verified was dismissed in the circumstances. It was further observed in the above stated authority that the proceedings in election petition are pare materia to criminal trial, therefore, the petitioner has to place all the data on record before asking for trial. It was further observed that as a general rule 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, its disobedience entails serious legal consequences amounting to invalidity of act done in disobedience to the provision.
7. After hearing the respective contentions of the learned counsel for the parties and close survey of the case-law, it becomes abundantly clear that under the provisions of Election Ordinance an election petition must contain precise statement of the material facts on which the petitioner relies 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 alleges 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 the relief claimed by the petitioner. It may also be stated that it is also mandatory that every election petition should be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The appellant in the instant case in the first instance did not verify the election petition himself rather it was signed by his counsel. Obviously the counsel for the petitioner could not have verified the allegations of facts made basis for acceptance of election petition as mentioned in para. 4, sub-paras. (i) to (vii) of the election petition. The counsel could have verified the legal grounds but he was not conversant or having knowledge with regard to allegations of facts mentioned in aforesaid para. Of the election petition. Thus, the election petition was not signed in accordance with the provisions of subsection (3) of section 51 of the Elections Ordinance. Similarly the petitioner failed to mention the particulars of any corrupt or illegal practice except that the son-in-law of respondent No.1 on 3rd July, 2001 snatched away 2773 identity cards from the Mobile Team No.3 of Kotli Registration Office, when the Team was on its way to hand over the cards to concerned voters of the area. The name of the person who allegedly snatched away the identity cards was not disclosed nor the time and place from where those were snatched were disclosed. In sub-para. 3 of para.4 of the election petition it was stated that respondent with mala fide intention used illegal and corrupt practices to be elected as Member of AJ&K Legislative Assembly. There is strong and unrebuttable evidence available of the corrupt practice used by respondent but the mala fide intention or illegal or corrupt practices have not been disclosed. Thus, the provisions of section 51, subsection (1)(b) of the Election Ordinance were not complied with by the appellant.
8. No doubt section 99 of the Code of Civil Procedure provides that no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. But in the trial of election petition, the Cote of Civil Procedure has a limited application to the extent it has been provided in the statute itself and not beyond that. It is correct that normally a statute is to be regarded as directory in nature unless the penalty is provided in the statute itself. If the penalty is provided then the provisions of statute do not remain directory but they become mandatory in nature. Section 59 of the Election Ordinance clearly postulates that if the provisions of sections 50 and 51 have not been complied with, the Tribunal shall dismiss the election petition. Thus, the provisions of sections 50 and 51 being mandatory in nature, the Election Tribunal was left with no option except to dismiss the election petition filed by the appellant as the same was not verified nor the details and particulars of the corrupt and illegal practices were disclosed or mentioned by appellant in the election petition.
9. The contention raised by Raja Muhammad Hanif Khan, the learned counsel for respondent No. 1, that the appeal before the Supreme Court is competent only against the decision of the Election Tribunal after the trial of the election petition otherwise no appeal lies before the Supreme Court.
The contention of the learned counsel for the respondent is misconceived for the simple reason that subsection (3) of section 63 of the Election Ordinance provides that any person aggrieved by a decision of the Tribunal may, within 30 days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final. The words aggrieved by a decision of the Tribunal' used in the afore-stated section are of great significance which show that if the election petition of a person is dismissed by the Election Tribunal even summarily, its decision shall be appealable to the Supreme Court. Therefore this objection of the learned counsel for the respondent merits no consideration and thus stands repelled.
10. The authority cited by the learned counsel for the appellant titled S.M. Ayub v. Syed Yusuf Shah and others (PLD 1967 SC 486) is distinguishable as in the that case the annexures were not verified but in the instant case the verification of the contents of election petition was not made in accordance with law. Therefore the Election Tribunal committed no error in dismissing the election petition summarily.
11. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed. In the circumstances of the case we pass no order as to costs.