Order
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Election Petition No. S 07 of 2018
Before :
Mr. Justice
Muhammad Shafi Siddiqui
Date of hearing : 12.11.2018.
Date of announcement : 15.01.2019.
Mr.
Ghulam Murtaza Shaikh, Advocate for the petitioner.
M/s
Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo, Advocates for respondent
No.1.
Mr.
Shahryar Imdad Awan, Assistant Advocate General Sindh.
O
R D E R
MUHAMMAD SHAFI SIDDIQUI, J. Some preliminary objections have been
raised by respondent No.1 being returned candidate, for which a preliminary
issue has also been framed by this Court on 29.10.2018, which is reproduced as
under:
3. Whether the petition is maintainable in pursuance of Section 142,
143 and 144 of the Elections Act, 2017 and Rule 139(3) and (4) of the Elections
Rule?
Both
learned counsel have argued on this preliminary issue on 12.11.2018.
2. It
is a case of respondent No.1 that this petition suffers from mandatory
requirements as required in terms of Sections 142, 143 and 144 of the Elections
Act, 2017. Learned counsel for respondent No.1 submits that in terms of Section
144(4) of the Elections Act, 2017, this petition is required to be verified
strictly in terms of the provision of Order VI Rule 14 and 15, CPC, and the
consequences are provided under Section 145(1) of the Elections Act, 2017. He
submits that the consequences are rejection of the petition. He submits that
these objections are not curable and hence fatal. Counsel has taken me to the
contents of the petition and submits that the verification was not signed by
the petitioner / deponent, and the petition is not at all verified in terms of
Order VI Rule 15, CPC. Affidavit in support of the petition is also silent as
to the requirement of the ibid provision. The affidavit was only singed by
Assistant Registrar, Affidavit & Identification Branch of the High Court of
Sindh at Sukkur, and it does not meet the requirement of law. He submits that
the petitioner has not filed his affidavit-in-evidence and as such there is no
prime witness of the allegations raised in the memo of petition.
3. Learned
counsel for the petitioner, on the other hand, submits that these are
procedural defects and are curable in terms of Rule 140 of the Election Rules,
2017 framed under the Elections Act, 2017. Counsel submits that the petition
was presented on 19.09.2018, and the objections were raised by the office of
this Tribunal and no such defect to the above extent was pointed out, hence,
not cured. He submits that the present Elections Act is distinguishable from
the previous Election Law i.e. RoPA, 1976, which does not provide the remedy of
curing defects via rules as framed for procedural defects and, hence, these are
defects which are to be seen and cured through Rule 140 of the Election Rules,
2017.
4. I
have heard the learned counsel and perused the material available on record.
5. This
petition was filed by one Muzaffar Ali Brohi on 19.09.2018. A common notification
was issued on 07.08.2018, which include the nomination of the returned
candidate on page 29 of the memo of the petition. The verification clause is at
page 19, however, as a deponent of the verification clause it is NOT signed by
the petitioner. This verification clause at page 19 is followed by page 21,
which states that the contents of this
affidavit were first truly and audibly read over and explained to the deponent
in English language and he seems to have understood the same and put his
signature in presence of Commissioner. This page is also blank and
silent as far as Commissioner for taking affidavits is concerned. No signatures
of oath commissioner and/or commissioner for taking affidavit is available on
this page. This verification as such is not sworn as per requirement of the Oaths
Act, 1873.
6. This
petition accompanied by an affidavit of Muzaffar Ali Brohi / petitioner, at
page 23; the four paragraphs of this affidavit are also silent as far as the
requirement of Order VI Rule 15, CPC, is concerned. It only says that the
memo of petition has been drafted and moved under his instructions; the
contents whereof be read as part and parcel of said affidavit, which were not
repeated for the sake of brevity. Nothing substantial to cater the requirement
of Order VI Rule 15, CPC, was postulated. This affidavit was signed by
Assistant Registrar, Affidavit & Identification Branch of the High Court of
Sindh at Sukkur, and is absolutely silent to the requirement of the Oaths Act,
1873 and Order VI Rule 15, CPC. Another affidavit of Muzaffar Ali Brohi
is also available at the following page (after 25), (apparently inserted as it
does not have a page number on it), which is issued by the Identification
Branch. It is typed that deponent affirmed on oath before Assistant Registrar,
Affidavit & Identification Branch of the High Court of Sindh at Sukkur on 19.09.2018,
but is devoid of the requirement of Order VI Rule 15, CPC.
In the case of Lt. Col. (Rtd.) Ghazanfar Abbas Shah v.
Mehr Khalid Mehmood Sargana and others reported in 2015 SCMR 1585, Honble Supreme Court held as under:-
5. With regards to
verification of election petitions on oath, it is clear from the provisions of
section 55(3) of the ROPA that an election petition has to be verified in
accordance with the provisions of Order 6 Rule 15, C.P.C. which provide the
basics as to how pleadings have to be verified, what shall be the contents of
the verification of pleadings and how they have to be attested by the oath
commissioner when read with other relevant provisions of law. Be that as it
may, in addition to the law cited by both the sides (from some other dicta), it
is conclusively settled by this Court that verification of an election petition
is mandatory and a petition which lacks proper verification shall be summarily
dismissed by the tribunal, even if the respondent has not asked for or prayed
for its dismissal.
In reference to the
above, it shall be advantageous to reproduce the following part of the judgment
reported as Zia-ur-Rehman supra wherein it has been categorically held:--
"8. Every election petition and every
schedule or annexure to the election petition has to be signed by the
petitioner and verified in the manner laid down in Civil Procedure Code. Rule
15 of Order VI of C.P.C. lays down the procedure of verification, which reads
as under:--
15. (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.
(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.
9. The penal consequence of non-compliance
with sections 54 and 55 of the Representation of the People Act is provided in
section 63 of the Representation of the People Act, which reads as follows:--
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."
10. Admittedly both the election petitions
filed by the respondents in the afore-mentioned appeals were not verified on
oath in the manner prescribed under the afore-quoted provision. If the law
requires a particular thing to be done in a particular manner it has to be done
accordingly, otherwise it would not be in-compliance with the legislative
intent. Non-compliance of this provision carries a penal consequence in terms
of section 63 of the Representation of the People Act whereas no penal
provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil
Procedure Code. The effect of non-compliance of section 55 of the
Representation of the People Act, 1976 came up for consideration before this
Court in lqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page
290 it was candidly held that "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 be administered by a person, who is duly authorized in that behalf.
It is an admitted position that the petition filed by Syed Iflikhar Hussain
Gillani though mentions that it is on oath, the oath was neither verified nor
attested by a person authorised to administer oath and as such it could not be
said that requirements of section 36 of the Act were complied with. We have
considered the reasons given by the learned Tribunal in holding that the
petition filed by Syed Ifiikhar Hussain Gillani did not comply the provisions
of section 36 of the Act and are of the view that these reasons do not suffer
from any legal infirmity."
6. Taking into account the
verification of the election petition independent of the affidavit, it has been
conspicuously noticed that there is no date or place mentioned in the
verification i.e. at what date and what place the verification was made by the
appellant. The two stamps of the oath commissioner, Lahore Cantt, affixed at
the bottom of the verification also do not postulate the date on which the
verification was made by the election petitioner. Besides, it is not reflected
from the verification whether the appellant was present at the time of
verification before the oath commissioner because he has not been identified
with reference to his national identity card, rather by some Advocate, whose
name and particulars are not even mentioned on the said verification. Therefore
on account of the deficiencies identified above, we hardly find the
verification to be valid in terms of spirit of provisions of section 55(3) of
the ROPA and in line with the law laid down by this Court in various dicta.
Resultantly, we have no hesitation to hold that the verification is not in
accord with the law.
7.
.
8. The question now which
remains for resolution is whether the omission on part of the Oath Commissioner
in mentioning, in the attestation of verification or the affidavit, if the oath
had been administered to the appellant/deponent, shall have the effect of
invalidating the election petition. As regards the above, suffice it to say
that according to the provisions of Article 129, illustration (e) of the
Qanun-e-Shahadat Order, 1984, there is presumption of correctness attached to
an official act and it could not be controverted by the learned counsel for the
respondent that the oath commissioner who is appointed by the respective High
Courts under the law shall be performing the official acts for which he was
appointed. However, he has stressed that the administration of oath before
attestation by the Oath Commissioner should not be presumed in this case rather
should reflect from the contents of attestation.
We have applied our
mind to this aspect of the matter and hold that in order to meet the real
object and the spirit of the election laws which require verification on oath,
in an ideal situation, the Oath Commissioner at the time of verification of the
petition etc. and also the affidavit, must record and endorse
verification/attestation that the oath has been actually, physically and duly
administered to the election petitioner/deponent. But as the law has not been
very clear till now, we should resort to the principle of presumption
stipulated by Article 129(e) ibid in this case for avoiding the knock out of
the petition for an omission and lapse on part of the Oath Commissioner. But
for the future we hold that where the election petition or the affidavit is
sought to be attested by the Oath Commissioner, the election petitioner shall
insist and shall ensure that the requisite endorsement about the administration
of oath is made, otherwise the election petition/affidavit shall not be
considered to have been attested on oath and thus the election petition shall
be liable to be, inter alia, dismissed on the above score. We consciously and
deliberately neither apply this rule to the instant case nor any other matter
pending at any forum (election tribunal or in appeals).
Resultantly, we are
not inclined to accept the plea of the learned counsel for the respondents that
the omission on part of the oath commissioner must be made the basis of
dismissal of the petition of the appellant. This, as we have mentioned above,
should be taken into account in case of future election petitions, i.e. filed
after enunciation of the law herein laid down.
7. I
have already held in another case i.e. Election Petition No. S-03 of 2018 that
Rule 140 of Election Rules is not meant to cater shortfalls of mandatory
requirements such as verification etc. as it relates to dismissal of petition
rather than rejection.
8. I
have also perused the entire file and have not been able to locate 8he
affidavit for effecting service before or at the time of filing this petition.
This petition was filed on 19.09.2018. Some receipts of the registered post are
available on record, but these are without the support of an affidavit and are
dated 22.09.2018. At the very outset, it cannot be ascertained that these
receipts pertain to the requirement of Section 143(3) of the Elections Act,
2017, for effecting service upon the respondents at the time of filing this petition
or before as these are not supported by an affidavit. Secondly, even if the
receipts are taken into consideration, the respondents cannot be deemed to have
been served before or at the time of filing this petition as these receipts are
dated 22.09.2018. Since the law requires the petitioner to have served notice
before or at the time of filing petition, therefore, these belated receipts
cannot constituted towards mandatory requirement of Section 143(3) of Election
Act.
8. The requirement of law is that it
should either it is served prior to the presentation of the petition or at
the time of presentation of the petition. The law has already defined the
words at the time of presentation of the petition and it cannot be
stretched down to a considerable delay of more than three (03) days. Minimum
threshold is that notice of petition ought to have been sent AT the time of
petition being filed.
9. The
cumulative effect of the above discussion is that the petition is liable to be rejected and hence order accordingly.
J U D G
E
Abdul Basit