1. ' Petitioner Hafiz Abdur Rauf Jan has impugned the election of Mr. Bashir Bilour respondent No.1 as a returned candidate from Constituency PF-3 Peshawar-III. The latter won the seat as a result of election count held on 10-10-2002. The petition, as required under, the provisions of the Representation of the People Act, 1976 (LXXXV of 1976) was filed before the Chief Election Commissioner who vide order dated 30-11-2002 entrusted it to this. Tribunal and on receiving the sameit was registered and notices in the prescribed manner were issued to the respondents but respondent No.1 alone came up to contest the same.
2. The respondent/returned candidate herein filed written statement wherein preliminary objections were taken to the maintainability of the petition, inter alia, on the following grounds:--
(i) That the election petition is not verified in the laid down manner.
(ii) None of the annexures to the election petition is signed by the petitioner nor it is verified by him in the prescribed manner.
3. These two objections out of 7 preliminary objections were made the subject of arguments, therefore, decision on the civil miscellaneous would remain confined to the same.
4. ' When arguments of the learned counsel for the parties were heard and concluded on 19-5-2003, in view of the importance of the law points involved, notice under section 60 of the ibid Act was given to the learned Advocate-General, N.-W.F.P. To assist this Tribunal by giving his own view point independent of the two conflicting views of the learned counsel for the parties. The learned Advocate-General appeared and addressed arguments on the law points involved.
5. ' In support of his view Ivc. Sardar Khan, the learned counsel for respondent No.1 vehemently contended that the election petition is liable to be dismissed at the threshold because no compliance has been made with the mandatory provisions of subsection (3) of the section 55 of the ibid Act and the mischief provision of section 63 of the Act is fully attracted to the instant case.
6. ' While elaborating his point of view he referred to different documents. Annexed with the petition which are B-1 to B/9., Annexures-C-1 to C-17, Anenx-D-1 and D-2 as well as E-1, E-2, F, G-1 to G-10, H, I, J and K which do not bear the mandatory required verification, therefore, the petition is not maintainable in the eye of law. In support of the above plea and assertions, the learned counsel placed reliance on a long chain of the precedent case-law wherein due to such default and omission election petitions were held not maintainable and were dismissed.
7. The learned counsel for the petitioner, namely, Fida Gul, however, maintained that the election petition is duly verified on oath and is signed by the petitioner as well as himself which fulfils the requirements of the provisions of section 55 ibid and that in similar circumstances a Division Bench of the Peshawar High Court in the ease of Fazal Khuda Khan vide judgment dated 11-9-2003 has held a view contrary to the one advocated at the bar by the learned counsel for the respondent and being a judgment of Division Bench shall prevail.
8. ' The lamed Advocate-General while making submissions was candid and frank enough and made endeavours to bridge the gap between the two extreme views expressed by different Tribunals and High Courts on the question in issue and thus expressed his view that a fair balance may be struck between the same for securing the ends of justice. The learned Advocate-General also referred to the rules issued by the Chief Election Commissioner prescribing/laying down procedure for trial of the election petition by the Tribunal which were published through Notification No.F1(7)/85-Cord dated 17-3-1985 (PLD 1985 CS 677) and argued that no penalty for dismissal of the petition has been provided therein if the Annexure/Schedule are not verified on oath as required under subsection (3) of section 55 of the. Ibid Act. Obviotisiy what could be inferred from his meaningful reference to the said rules/notification is that unless the notification/rules are declared ultra vires of the statute law the same holds good the field.
9. Before the determining the above law points it is essential to point out that at the foot of the petition the petitioner on duty sworn affidavit has verified the contents of the election petition which bears his signature and that of his learned counsel.
10. ' The rest of the Enclosures/Annexs (so-called) as mentioned above are the statements of vote- counts, consolidated result of vote counts of various polling stations of the said constituency and individual statement of counts of various polling stations while Annexs-G 1 to G-10 are the photocopies of some used ballot paper and Annex-H is the cutting of daily newspaper "Aaj Peshawar". Similarly Annex-1 is the copy of the application of the petitioner submitted to the Returning Officer PF-3 Peshawar praying for recount of the polled ballot papers of all the polling stations of the said constituency while Annex-J is the order of Returning Officer allowing the said application for recount and Annex-K are the cuttings of the newspapers daily ,"Mashriq" and daily "Aaj Peshawar" and these are all the documents filed in support of the petition.
11. Now so far as the verification of the petition is concerned that has been made and is duly signed by the petitioner. Of course the form of verification is not exactly the same which has been laid down/prescribed for verification of the pleadings by the provisions of Order 6 rule 15, C.P.C. The effect of such omission would be addressed to later on.
12. ' As the crux of the entire controversy relates to and is dependent upon the true interpretation of subsection (3) of section 55 read with section 63 of the ibid Act, therefore, these provisions are reproduced below:-- S.55.. Contents of petition.
13. (1), --------------------------------
(a) ------------------------------
(b) ------------------------------
(c) ------------------------------ ' S.S.3. Every election petition and every schedule or annex to that petition shell 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 the pleadings.
14. ' S.63. Dismissal of Petition during Trial.
15. ' The Tribunal shall dismiss an election petition. If
(a) The provisions of section 54 or section 55 have not been complied with; or
(b) ----------------------- Not relevant.
16. ' Now the moot question requiring determination is as to what is the true import and meaning of the words "schedule" or "Annex".
17. ' The above legal terms came up for decision/determination before the Hon'ble Supreme Court in the case of N.M. Ayub v. Syed Yousaf Shah and 2 others (PLD 1967 SC 486) because one of the main grounds therein seeking dismissal of the election petition was the non-verification of the schedule or Annexure attached to the election petition. The Full Bench of the Hon'ble Supreme Court headedby the then Hon'ble Chief Justice placed the following construction on the above two words:-- "These cuttings do not really amount to allegations on which the petitioner-appellant was seeking avoidance of the election but they were in the nature of evidence cited in support of allegations of corrupt or illegal practices, such as, if established, could avoid the election"
18. "The main petition, it is conceded, is properly signed and verified. Instead of reproducing the contents of the cuttings in paragraph 10 of the petition itself, they have been briefly described therein and then collected at the end of the petition. The contents of those cuttings have 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.
19. ' By "Schedule" or "Annexure" mentioned in subsection (3) of section 59 of the Act, is apparently meant such as schedule and annexure as either makes additional allegation 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 the 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 "scheduled or "annexures" 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 a substantive ground or explanation 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 schedule or annexures to the petition, was not fatal to the prosecution of the petition".
20. ' It is essential to point out that the provisions of sections 59 and 67 of the National and Provincial Assemblies (Elections) Act (VII of 1964) (repealed) is pari materia to the provisions of section 55 and section 63 of the Act LXXXV of 1976.
21. According to Corpus Juris Secundum the word 'annex' has been defined to meet joining together.
22. Physical connection of one thing with another which signifies and implies to add or unite to something already existing: to affix: as, to unite, to subjoin: to join by some physical means: to connect: to attach: or to make an integral part of something larger than the annex.
23. ' While the term "schedule" has been defined therein implies something written: a written or printed formal list: a catalogue: a document: a tablet: a leaf of paper or an inventory.
24. The above two terms/phrases in subsection (3) of section 55 of the Act appear to have been used in a wider sense and meaning which imply that any annex or schedule which contains allegations of substantial nature supplementing or supporting/augumenting the main allegations contained in the election petition regarding the corrupt or illegal practices or other illegal acts alleged to have been committed for procuring a favourable election result by the Returned Candidate.
25. ' In view of the above observation made by the apex Court and the definition given of the two terms in Corups Juris Secundum, the true meaning of the above two terms stands resolved and require no further debate or discussion.
26. ' Again in view of the provision of section 61 of Act, 1976 and also in view of the empowering and enabling provisions of Order 3 C.P.C. And the Bar Council Act and Rules, duly appointed, constituted and authorized counsel is competent to verify and sign any document/annex appended to election petition which would have the same force and effect as are done by the petitioner himself.
27. The document mentioned in the earlier part of this judgment annexed to the election petition are nothing but the result of counts of vote polled having been issued by the competent authority which was entrusted with the duty/obligation by the Election Commission for conducting the election/holding the polling. All these are certified copies duly authenticated by the authorities concerned. The object behind the same is to use it as pieces of evidence in support of the contentions taken in the election petition, therefore, these documents do not fall within the definition of annexures or schedule and do not require the signature or verification by the petitioner and in view of the official authentication of such documents as certified copies Of public record, any further verification and signing by the petitioner of all these documents would be a superfluous act not required by the law.
28. The election petition has been duly verified on oath and has been signed by the petitioner as well as his counsel albeit the form of verification is not up to the mark as envisaged by the provisions of Order 6 rule 15, C.P.C., however, total absence of verification on election petition may be fatal and would attract the mischief contained in the provision of section 63 of the Act but any defect of form in the verification would not be so fatal because it becomes a matter of technicality which shall/cannot be made a device for killing an election petition in its infancy.
29. ' In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) the Hon'ble Supreme Court has laid down a cardinal and golden principle wherein it was held that technicalities have to be avoided for doing substantial justice and the same should not be made as a device to defeat substantive rights.
30. ' Respectfully following the above principle of law, if there is some defect in the verification of the petition etc., the same cannot and shall not be fatal and, on such ground the petition cannot be dismissed.
31. ' For the foregoing reasons the preliminary objections are not found sustainable, hence rejected.
32. Case to come up for framing of issues. The parties may if they so desire submit additional list of witnesses.
33. ' These are the detailed reasons for the short order of the evendate.
34. Objection rejected.