' Muhammad Ashraf Rasool, the election petitioner, alongwith respondents Nos.1 to 14, contested the general elections, held in the year 2002, for the seat of Provincial Assembly from Constituency PP-164, Sheikhupura-III, wherein Ali Abbas, respondent No.1, was declared as returned candidate and the Election Commission of Pakistan, on 20-10-2002, issued notification about his success as member of the Provincial Assembly. Seemingly aggrieved from the said results and the ensuing notification, the petitioner filed the instant election petition, under section 52 of the Representation of People Act, 1976 (hereinafter referred to as Act), before the Honourable Chief Election Commissioner and the same was referred to this Tribunal for trial and disposal in accordance with law.
2. The petitioner has challenged the afore-mentioned respondent No. l selection, as member of Provincial Assembly, on different grounds, as stated in the election petition, however, specifically pleading that respondent No.1 never passed Matriculation examination and that his graduation degree is false, fake and bogus. Respondents were summoned, and respondent No.1 only contested the election petition, while respondents Nos.2 to 14 remained absent, despite publication in the two daily newspapers, thus, they were proceeded ex parte vide order dated 28-2-2003.
Returned candidate resisted the election petition by filing the written statement, thereby controverting the allegations levelled in the petition, inter alia, pleading that the election petition lacks the compliance of mandatory provisions of sections 54 and 55 of the. Act and that the election petition as well as the documents annexed thereto have neither been signed nor verified by the petitioner as required under the law, therefore, the election petition deserves to be dismissed.
3. Out of divergent pleadings of the parties, this Tribunal on 3-4-2003, framed certain issues.
However, upon filing an application (C.M. No.3 of 2003) by respondent No. 1, this Tribunal, on 19-9- 2003, treated the following issues (Issues Nos.3, 4 and 5) as legal issues and proceeded to decide the same after hearing the parties:--
(3) Whether the petition lacks the compliance of mandatory provisions of sections 54 and 55 of the Representation of People Act, 1976? OPR-1.
(4) Whether the petition is not maintainable under the law? OPR1.
(5) Whether the documents, annexed with the election petition, have not been signed and verified by the petitioner, as required under the law, if so, its effect? OPR-1.
' On 6-10-2003, the election petitioner filed an application (C.M. No.4 of 2003) seeking amendment in the election petition, so as to get the election petition verified and attested by the Oath Commissioner, which application has been contested by respondent No.1 by filing its reply. Instant judgment shall decide the aforenoted issues, i.e. Issues Nos.3, 4 and 5 and the application for the amendment of the election petition.
4. Learned counsel for the election petitioner, while relying upon Raja Abid Hussain and another v.
Sardar Muhammad Rana and 12 others 2002 YLR 3148 and Abdul Nasir and another v. Election Tribunal T.T. Singh and others PLJ 2003 SC 934, has submitted that the verification of the election petition and the documents annexed with the petition, is in accordance with law and there is no need for attestation and verification of these documents before/by the Oath Commissioner. While arguing his petition, for the amendment of the election petition, he has submitted that the non- attestation of the said documents by the Oath Commissioner was a bona fide mistake, which can be rectified by this Tribunal at any stage of the proceedings, as this Tribunal has vast powers under the Act to allow the parties to amend their pleadings. Learned counsel while referring to an unreported judgment passed by this Tribunal in the case of "Sh. Alla-ud-Din v. Shahid Qayyum (E.P.
No.105 of 2002) has further submitted that in similar circumstances this Tribunal rejected the objection regarding the verification and attestation by the Oath Commissioner and sought for amendment was allowed in that case. Conversely, the learned counsel for respondent. No.1, while refuting the aforesaid contentions and supporting the legal issues, has submitted that the special procedure provided for deciding the election matters is to be strictly followed and the penal provisions in this regard are to be stringently construed. In this back drop he has added that the verification of the election petition and the annexes are to be attested by the Oath Commissioner or some other person, who is duly authorized to administer oath. While opposing the amendment application his stance is that on account of non-verification of the documents in accordance with law, valuable rights have accrued in favour of respondent No.1, which cannot be defeated by allowing amendment. He has referred to the judgments reported as Muhammad Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132; Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83 and Khawaja Muhammad Awan v. Alim Adil and 19 others 1998 CLC 272.
5. I have heard the learned counsel for the parties at length and perused the available record. My findings on the said issues are as under:-- ' Issues Nos.3 and 4.
' These two issues are inter connected, therefore, I propose to decide these issues together.
' Main thrust of respondent No. l's argument is that as the election petitioner failed to verify and attest the election petition by not complying with the requirements of the provisions of section 55(3) of the Act, which provisions of law are mandatory, therefore, his election petition is not maintainable and liable to be dismissed under section 63 of the Act.
6. Turning to the verification made by the election petitioner in his election petition. I find that the petitioner has verified his election petition, in the following manner, which for the sake of convenience, is reproduced below:-- ' Verification:--- "Verified on oath this day of 26th of November, 2002, at Lahore that contents of paras 1 to 8 are true to the best of my knowledge and belief."
(Sd.)
Petitioner ' All the documents annexed with the election petition have not at all been verified.
' Section 55(3) of the Act, provides about the signing and verification of the election petition etc, which provisions of law, for facility of reference, is reproduced below:-- "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 63 of the Act, inter alia, provides that the Tribunal shall dismiss the election petition, if the provisions of section 54 or 55 have not been complied with.
' It flows from the joint reading of the aforenoted two provisions of law that the verification, of the election petition and schedule or annexes to the petition, shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of the pleadings and in case the provisions of section 55 have not been complied with, the Tribunal shall dismiss the election petition.
7. Now one has to revert to the provisions of Code of Civil Procedure regarding verification of pleadings, which has been laid down under Order VI, rule 15, C.P.C., which reads as follow:-- "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."
' Perusal of the provisions of Order VI, rule 15, C.P.C. Manifests that every pleading shall be verified on oath by the party and the person verifying shall specify by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what ' he verifies upon information received and believed to be true and that 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.
8. If the verification contained in the election petition is placed in juxtaposition with the aforenoted provisions of law, it leads to the irresistible conclusion that the verification although has been made under oath, signed by the petitioner, stating that contents of paras.1 to 8 are correct, which was also dated and showing the place of its signing, yet it does not show that which paragraphs of the election petition- have been verified of his own knowledge and which paragraphs have been verified upon information received and believed by him to be true. To further elaborate, in the instant case, although the rest of the ingredients for the verification of the election petition in the manner laid down in the Code of Civil Procedure, are present, yet a necessary component of verification of the numbered paragraphs with reference to his own knowledge and upon information received and believed to be true, is comprehensively lacking.
9. Now coming to the other more important aspect of the case that the election petition was not verified and attested by the Oath Commissioner. Suffice it to say that the election petitioner, in his amendment application, has candidly admitted that the non-verification by the Oath Commissioner is "absolutely bona fide mistake." It has been held in Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2002 YLR 3148 relied upon by the learned counsel of the petitioner that neither the provisions of C.P.C. Nor "High Court (Lahore) Rules and Orders" provides that the verification to be made in accordance with Order VI, rule 15, C.P.C., be attested by the Oath Commissioner. However, the apex Court of the Country in a case reported as Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCM R 250, while dilating upon the question about the verification of the pleading, has held that the pleadings are to be verified on oath and the oath is to be administered by a person who is duly authorized in that behalf. It would be appropriate to reproduce a portion of the judgment, which reads as follow:- "Subsection (3) of section 36 (ihid). Clearly requires that every petition and every schedule or Annexures shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order VI, rule 15, C.P.C. Which when read with section 39, C.P.C., clearly shows that the pleadings are to be verified on oath and the oath is to administered by a person, who is duly authorized in that behalf. It is an admitted position that the petition filed by Syed Iftikhar Hussain Gilani though mentions that it is on oath, the oath was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of section 36 of the Act were complied with." (Underlining is mine)
10. Another learned Election Tribunal of this Court, while deciding different election petitions, in a case Asif Nawaz Fataiyna v. Walayat Shah (Election Petition No.13 of 2002) after taking into consideration the numerous case-law on the subject from both sides and dilating upon various controversies, including the proposition in hand, has held as under:--
(a) The provisions of the Representation of People Act, 1976 insofar as these relate to the election disputes providing particular forum (Election Tribunal) and procedure are of special nature and will have primacy and overriding effect in case of any inconsistency and conflict with any other law of general nature.
(b) Provisions of section 55(3) of the Act read with section 63 thereof are of mandatory nature and non- verification or defective verification as contemplated by it would entail the consequence of dismissal of election petition.
(c) It is equally an established principle of law that where the law prescribes the method of doing a thing in a particular manner the same has to be done in that manner failure whereof may ensue the legal consequence.
(d) The pleadings are to be verified on oath and the oath is to be' administered by a person who is duly authorized in that behalf (2000 SCM R 250) (294).
(e) The scrutiny of the election petition by the Election Commission and its reference to the Tribunal does not denude the Tribunal of the power to dismiss the same for nonobservance of sections 54 and 55 of the Act, otherwise the provisions of section 63 of the Act would be rendered redundant and nugatory.
(0 Although the Election Tribunal has powers of a, civil Court under the Code of Civil Procedure yet for' the trial of election petitions the Election Tribunal is to follow the procedure prescribed by the Election Commission (1996 SCM R 426).
11. Now adverting to the judgments referred to by the learned counsel for the petitioner. As regards the case of Raja Abid Hussain, ibid, the same has been taken note of in the preceding paras.
Coming to the case of Abdul Nasir and another, supra, the Bench of the Honourable Supreme Court of Pakistan, consisting of two Honourable Judges, while relying upon S. M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 has held "that mere defect regarding verification of election petition would not render the same unmaintainable" . In the said case the argument raised, as is evident from para.4 of the judgment, was "that the election petition was liable to be dismissed on the ground that the annexes appended with the same were not verified as required by law". It was in the said context of non-verification of the annexes only that it was held by the Honourable Supreme Court that the election petition is maintainable. I have had also the advantage of perusing the judgment rendered by the Honourable Supreme Court in S.M. Ayub's case, ibid, (which has been relied upon in the case of Abdul Nasir) and find that the question involved in the said case was only as to whether the election petition was liable to be dismissed because the annexes to the election petition were not verified according to law. It is pertinent to note here that in the case of S.M. Ayub, main election petition was properly signed and verified and there was no dispute about the signatures or/and verification of the election petition. It was observed by the Honourable Supreme Court of Pakistan, in the said judgment at page 493 in line 20, that "the main petition, it is conceded, is properly signed and verified". In the said case of S.M. Ayub the Honourable Supreme Court in the final analysis has held as under:-- "The contents of those having been characterized in the main petition itself, as malicious untruths, it would be too much to expect the petitioner to verify them in the manner 'contended for. 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 signature or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition."
' Additionally, I find that in the case of Abdul Nasir and another, ibid, the judgment of Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCM R 250 was not considered, while in the latter judgment, the judgment of S.M. Ayub's case was duly considered.
' Another important factor, which cannot be ignored here is that in the judgment of Abdul Nasir and another, ibid, the view expressed by the Honourable Bench of the Supreme Court was of two Honourable Judges, while the case of Engr. Iqbal Zafar Jhagra, supra, was decided by the .Bench of Honourable Supreme Court consisting of seven Judges. It has been held in Babar Shehzad v. Said Akbar and another 1999 SCM R 2518 that the view expressed by a Bench of Supreme Court consisting of five Judges being contrary to the view expressed by the two Judges of the Court would prevail.
' In the above perspective, to my mind, the reliance of the learned counsel on Abdul Nasir's case or/and S.M. Ayub's case is misconceived and the principles laid down therein are not applicable to the facts and circumstances of the present case.
12. Now turning to the unreported judgment, rendered in the case of Sh. Allaud-Din, relied upon by the learned counsel for the election petitioner. In the said case, this Tribunal on the basis of somewhat similar ' reasons and findings, as noted above, came to the conclusion that as the verification has not been made before and attested by the Oath Commissioner and the same is violative of the view and the principle laid down in Iqbal Zafar Jhagra's case, ibid, therefore, the verification on the election petition is not in accordance with law. However, this Tribunal, under the peculiar circumstances of that particular case, allowed the sought for amendment primarily on the basis of findings incorporated in para.13 of the judgment, which para for facility of reference is reproduced below. It needs to be emphasized here that the said peculiar circumstances of the case are conspicuously absent in the present case:-- "13. Another equally important factor which has really persuaded me to allow the amendment to the election petitioner and annexures, as noted above, is the acquiescence and the estoppel on the part of the respondent No.l. As noted above, the respondent Isjo.1 did not raise the said crucial plea, about non-verification of the pleadings in his written statement, inasmuch as the written statement filed by him has neither been signed nor at all been verified by him. I am of the considered view that the legality and validity of the written statement is questionable and it is yet to be decided as to whether the said written statement can be considered as proper and legal written statement as provided under the law. By not agitating the said plea of non-verification, the respondent had in fact acquiesced over the matter and the principle of estoppel would operate against him. It is settled law that a plea, which has not been raised in the written statement cannot be allowed to be agitated and proved in subsequent proceedings and a defendant cannot be allowed to improve his case other than made out in the written statement."
' The case of Sh. Alla-ud-Din has distinguishing features from the case in hand. As noted above, which peculiar aspects of the case are lacking in the present case, therefore, the reliance of the learned counsel on the judgment of Sh. Alla-ud-Din is misconceived and, thus, is of no avail to the petitioner.
13. Having gone through the provisions of sections 55(3) and 63 of the Act, I am of the considered view that section 55(3) is mandatory provision of law, as the violation and non-compliance of the said provision of law entails the penal consequences of the dismissal of the election petition, as envisaged under section 63 of the Act. Additionally, as noted above, another learned Tribunal in Election Petition No.13 of 2002, has held that the provisions of section 55(3) read with section 63 of the Act are mandatory in nature.
14. In the above perspective, I am of the considered view that the verification made by the election petitioner on his election petition has not been attested or verified by any Oath Commissioner or before any person duly authorized to administer the oath, which verification was held by the Honourable Supreme Court in Engr. Iqbal Zafar Jhagra's case (supra) violative of section 36 of Senate (Election' Act, 1975) which is para materia of section 55 of the Representation of People Act, 1976. Hence to my mind, the verification made by the petitioner on the election petition is not in accordance with law, therefore, election petition deserves dismissal as envisaged under section 63 of the Act.
In view of the above findings, Issues Nos. 3 and 4 are decided against the election petitioner and it is held that the election petition lacks the compliance of mandatory provisions of section 55(3) of Act and, thus, not maintainable in law.
' Issue No.5.
15. Admittedly, the documents attached with theelection petition are neither, at all, verified nor attested - by the Oath Commissioner. In view of the principle laid down by the Honourable Supreme Court of Pakistan in the case of S.M. Ayub, ibid, as noted above, Issue No.5 is decided in favour of the election petitioner.
16. Now coming to the amendment of application. In view c the findings rendered on Issues Nos.3 and 4, as I have held that the election petition deserves to be dismissed, therefore, the application seeking amendment has become infructuous, thus, disposed of accordingly.
' In the above perspective, for the reasons stated hereinbefore and on the basis of finding on Issues Nos.3 and 4 the election petition is not maintainable and is hereby dismissed, leaving the parties to bear their own costs.