Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 15 of 2018

 

Before :

Mr. Justice Muhammad Shafi Siddiqui

 

 

Date of hearing        :           06.11.2018 & 09.11.2018.

 

Date of judgment     :           06.02.2019.

 

 

Mr. Ghulam Dastagir A. Shahani, 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. – The petitioner contested the General Election of PS-2 (Jacobabad-II). Aggrieved of the election process and the result, he filed this petition on 22.09.2018.

2.         Six objections were raised by the office of this Tribunal on the same date whereafter the matter was fixed on 01.10.2018 before this Tribunal, when counsel for the petitioner sought time. Again on 05.10.2018, counsel was reported to be busy at Principal Seat Karachi, and time was sought on his behalf. He then on 12.10.2018, appeared and the notices were ordered to be issued to the respondents, AAG Sindh and DAG.

3.         Respondent No.1, being returned candidate, filed written statement and objected to the maintainability of this petition on the touchstone of Sections 142, 143, 144 and 145(1) of the Elections Act, 2017. The issues were framed on 30.10.2018, which include a preliminary issue regarding maintainability of this petition under Section 142, 143 and 144 of the Elections Act, 2017. The Election Commission of Pakistan and the Provincial Election Commission despite service have failed to appear throughout the proceedings and thus have failed in their duty to assist this Court.

4.         Learned counsel for respondent No.1 submitted that in terms of Section 143(1) of the Elections Act, 2017, the petitioner was required to implead and join, as respondents to this election petition, all other contesting candidates; the petitioner was under the obligation to serve a copy of the election petition with all annexures on each respondent personally or by registered post or courier service before or at the time of filing election petition. In terms of Section 144(4) of the Elections Act, 2017, the election petition and its annexures should have been signed by the petitioner and the petition should have been verified in the manner as laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings.

5.         Learned counsel for respondent No.1 has relied upon the cases of Malik Umar Aslam v. Sumera Malik and another reported in PLD 2007 Supreme Court 362, Ch. Muhammad Ashraf v. Rana Tariq Javed and others reported in 2007 SCMR 34, Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others reported in PLD 2005 Supreme Court 600, Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others reported in 2000 SCMR 250, Dost Muhammad Rahimoon v. Abdur Razzak Rahimoon and 4 others reported in 2009 CLC 795, Imam Ali Samejo v. Ghulam Hyder Samejo and 11 others reported in 2009 CLC 771, Engineer Jameel Ahmed Malik v. Shaukat Aziz and 6 others reported in 2007 CLC 1192, Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others reported in 2005 CLC 172, Muhammad Ashraf Rasool v. Ali Abbas and 13 others reported in 2004 YLR 1742, Tariq Mahmood Bajwa v. Muhammad Afzal Sahi and others reported in 1994 CLC 1366, Lala Shakil-ur-Rehman v. Dr. Muhammad Ashraf Chohan and 10 others reported in 2009 CLC 1302, Asadullah v. Asghar Ali and another reported in 1995 CLC 150, Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others reported in 2015 SCMR 1585, Inayatullah v. Syed Khursheed Ahmed Shah and others reported in 2014 SCMR 1477, Muhammad Saeed v. Tahir Malik and others reported in 2005 CLC 1493 and Ch. Zawwar Hussain Warraich v. Muhammad Aamir Iqbal and others reported in 2015 SCMR 1186.

6.         Learned counsel for the petitioner, in response to the contentions of respondent No.1’s counsel, submitted that these verifications are not mandatory in nature and could be cured in terms of the rules framed in support of the Elections Act, 2017. He submitted that the defects and deficiencies of the nature as highlighted by the respondent should have been highlighted by the office of this Tribunal at the time of scrutiny and that could have been rectified as this petition was filed before the expiry of the limitation and, hence, such objections as have been taken now are misconceived. He further submitted that after the issuance of the notices in terms of Section 145(2) of the Elections Act, 2017, the proceedings in terms of Section 145(1) of the Elections Act, 2017 cannot be undertaken.

7.         I have heard the learned counsel and perused the material available on record.

8.         I shall first peruse the contents of the petition on the touchstone of Section 143(1) of the Elections Act, 2017. There were seven (07) additional contesting candidates which have not been arrayed as necessary and proper party as required in terms of Section 143(1) of the Elections Act, 2017. Although the list of contesting candidates is available along with the application under Section 145(1) of the Elections Act, 2017, but ‘Form-45’ available at page 231 and 233 also disclosed that there were at least seventeen (17) candidates who contested the election and a number of candidates which include Ms./Mrs. Feroza, Liaqat Ali, Muhammad Sharif, Muhammad Mohsin Khan Sarki, Moula Bakhsh, Nasrullah Buriro and Nawab Ali were not impleaded as contesting respondents to which the petitioner had no answer. Petitioner belatedly filed an application on 07.11.2018 to implead them but in this lis their impleadment would be beyond requisite time limit required to file this election petition. This would also decide the fate of the application to implead rest of the candidates. Had it been filed before the expiry of limitation prescribed for this petition, the Code of Civil Procedure could have been applied. This being special law has its own scope, limitation and frame. Applicability of Civil Procedure Code does not mean that such candidates could be impleaded at any stage after expiry of limitation. Reliance is placed on the case of Zia ur Rehman v. Syed Ahmed Hussain and others reported in 2014 SCMR 1015, wherein the Hon'ble Supreme Court observed as under:

“ In the instant case, the application for amendment dated 14th October, 2013 was apparently filed on 23rd October, 2013 well beyond the period of limitation i.e. 45 days for filing of an election petition, as provided by Section 52 Subsection (2) of the Representation of the People Act, 1976, hence, could not have been allowed by the Election Tribunal through the impugned judgment. ”

9.         Insofar as the verification of the contents of petition on oath is concerned, though the affidavit at page 17 is silent but an attempt was made by filing an affidavit in support of the memo of the election petition which contains the following text:

“ AFFIDAVIT IN SUPPORT OF MEMO OF ELECTION PETITION

 

Mr. Tahir Hussain Khoso Son of Fida Hussain Khoso, resident of Near Eid Gah Road, Muhalla Khosa, Sukkur, affirmed on oath before me at SUKKUR on this 22-SEP-2018 in the ‘Identity Section’ of this court.

 

Sd/-

Assistant Registrar

Affidavit & Identification Branch

High Court of Sindh

Bench at Sukkur

COMMISSIONER FOR TAKING AFFIDAVIT

 

Tag ID:22091861085

No. of Affidavit: 3/5

Cost received: Rs.50

Printed on 22-SEP-2018 at 11:48 am ”

10.       Since the affidavit in support of the petition satisfied the requirement of oath i.e. date and place of oath, taken before the Assistant Registrar to whom powers were delegated as far as the oath is concerned, therefore, this part of contention of respondent’s counsel regarding verification has lost its venom. The deponent was identified by NADRA Identification Section and, hence, no further authentication is required that the person who appeared was no one else but the petitioner. This second ground of the respondent which is a part of verification as such is not available for the rejection of the petition and the following referred judgment also covers the issue.

11.       The other part of verification that requires consideration is the verification of the contents of petition in terms of Order VI Rule 15, CPC. It required paragraphs to be distinguished separately i.e. as to which paragraphs contain the text as per his own knowledge and which were written on the advice.

12.       If a history is traced of the judicial pronouncement relating to the question in hand that concerns with the deficiencies in the election petition and deciding its fate, the first judgment that I came across is of S. M. Ayub v. Syed Yusaf Shah and others reported in PLD 1967 Supreme Court 486. It deals with the National and Provincial Assemblies (Elections) Act (VII of 1964). Section 59 of the aforesaid law is somehow peri materia to Sections 142, 143 and 144 of the present enactment of 2017. The Hon'ble Supreme Court maintained that Section 67 does not, in terms, say that the petition shall be dismissed even if there be a partial failure to comply with the provisions of Section 59, ex facie Section 67 of the Act would seem to be designed to cover a case where the petition as a whole made allegations of a vague and indefinite character, without being supported by full particulars of the corrupt or illegal practice alleged. The Hon'ble Supreme Court held that unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the legislature a desire to be hyper‑technical, so as to smother genuine litigation.

13.       The second judgment of the Hon'ble Supreme Court is of Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others reported in 2000 SCMR 250. It is a seven members’ Bench and dealt with the issues arising out of, Houses of Parliament and Provincial Assemblies (Election) Order (P.O.5 of 1977), which deals with the election of Senate, Technocrats. The situation under discussion was also dealt with by the seven members’ Bench of Hon'ble Supreme Court in the following manner:

“ Subsection (3) of section 36 (ibid) 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 6, 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 authorised in that behalf. It is an admitted position that the petition filed by Syed Iftikhar 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 Iftikhar 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. ”

14.       Section 36 of the above Act is peri materia to Sections 142, 143 and 144 of the Elections Act, 2017, and is reproduced as under:

“    Contents of petition.--(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)  A petitioner may claim as relief any of the following declarations namely—

(a)  that the election of the returned candidate is void; or

(b)  that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or

(c)  that the election as a whole is void.

(3)  Every election petition and every Schedule or Annexure to that petition shall be signed by the petitioner and verified to the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings. ”

15.       The next case is of Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others reported in PLD 2005 Supreme Court 600. The Hon'ble Supreme Court dealing with an ancillary issue regarding the jurisdiction of Tribunal maintained that just because the election petition under the Representation of the People Act, 1976 was forwarded by the Election Commissioner to the Tribunal, the Tribunal was competent to consider the requirements of Sections 55 of the aforesaid Act and would not be precluded to enter into the question of verification. The Hon'ble Supreme Court held that it is significant that the lawmaker, having specifically referred to Sections 52, 53 and 54 of the Act, has distinctly omitted to mention Section 55 of the Act. Meaning thereby, that the requirements of Section 55 of the Act would be gone into by the Tribunal itself and not by the Chief Election Commissioner. Such objections can validly be raised before the Tribunal and Tribunal alone. The Hon'ble Supreme Court, however, kept the two verifications at par; that a verification which is at the end of the election petition on the same page or a verification given on a separate page would meet the requirement though in the shape of an affidavit. In respect of an issue of verification when it failed to give reference to the paragraphs of the pleadings as to what he happened to verify upon his own knowledge and what he happened to believe upon information received and believed to be true were not considered very material because at times the entire statement happened to be given on the basis of one's knowledge and at times on the basis of information received. The Hon'ble Supreme Court observed that this particular issue depends on facts of each case, as to what category the assertions belonged to and situation was likely to differ from case to case.

16.       The next judgment is of Malik Umar Aslam v. Sumera Malik and another reported in PLD 2007 Supreme Court 362, which is also under Representation of the People Act, 1976. The Hon'ble Supreme Court held as under:

“ 5.      ………… It may not he out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the Court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. without calling for an affidavit in ex park proof. We believe that there is no point to address ourselves on this question namely if verification" on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of Almighty Allah if the truth is not spoken. Under section 6 of the Oath Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorized person. Admittedly in instant case, verification has not made on oath before an authorized person, therefore, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly.

6.         On our query, learned counsel appearing for appellant stated that without prejudice to his above argument such application was moved on behalf of appellant by way of abundant caution. Be that as it may, we are of the considered opinion that as per admitted position the oath has not been administered to appellant by a person authorized to do so, as per requirements of Order VI Rule 15 read with section 139, C.P.C. Thus, the pleadings shall be deemed not duly verified on "oath. …………

10.       ………… It may also be added at this juncture that notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty. ”

17.       The last para 10 reproduced above also responds to the arguments of petitioner’s counsel that once notice under section 145(2) is issued, no cognizance under section 145(1) could be taken.

18.       In the case of Ch. Muhammad Ashraf v. Rana Tariq Javed and others reported in 2007 SCMR 34, the Hon'ble Supreme Court dealing with the mandatory requirement of election petition dealt with it as under:

“ 6.      ………… The Election Tribunal, was thus, justified in holding that no affidavit was annexed to the election petition which admittedly was not verified in accordance with law. As such refusal of the Election Tribunal to place reliance on the pronouncement of this Court in the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 and relying on the pronouncement made by this Court in the cases of Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCMR 250 and Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 (supra) that an election petition not having been filed in compliance with the provisions of section 55(3) of the Act, not accompanied by an affidavit would be liable to be dismissed under section 63 of the Act as the requirement of both the sections were held by this Court as mandatory. ”

19.       In the case of Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others reported in 2015 SCMR 1585, the Hon'ble Supreme Court dealt with the issue of verification and oath under the Representation of the People Act, 1976. This judgment was in particular with reference to the verification on oath or affirmation and dealing with the High Court Rules and orders of Lahore High Court, the Hon'ble Supreme Court observed as under:

“ 8.      …………

            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). ”

20.       In the case of Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others reported in 2016 SCMR 750 (heard on 11th January 2016 and decided on 26th January 2016), the Hon'ble Supreme Court held that as under:

“ 6.      For resolving the first question it may be stated that the learned Tribunal has non-suited the appellant on the reasoning that he has not specifically mentioned as to which paragraphs of the election petition are verified upon his own knowledge and which are upon information received and believed to be true, suffice it to say that this Court in the case reported as Sardarzada Zafar Abbas and others v. Syed Hassan, Murtaza and others (PLD 2005 SC 600) has held such objection to not be very material. Although the Court in Zafar Abbas (supra) held that the validity of the verification shall depend on the facts of each case, but in the instant matter we do not find the so-called lapse indicated by the learned Tribunal to be of any material consequence, warranting dismissal of the election petition on this ground simpliciter. The case of Zafar Abbas (supra) has been endorsed in Moulvi Abdul Qadir (supra) and reliance by the learned counsel upon the latter in this regard is rightly placed and his case/plea quite aptly falls within the ratio of the law laid down therein. Besides we have examined the verification part of the election petition and we find that it complies with the provisions of Order VI, Rule 15 of the Code of Civil Procedure, 1908 (C.P.C.) in letter and spirit. The reasons of the learned Tribunal and the argument of the respondent that it does not mention the date, day and place of the verification or the proper identification of the appellant, suffice it to say that at the bottom of the petition (in the verification portion), though not in typed form the date has been clearly written by hand. There is another stamp of the Oath Commissioner appearing on the left of the verification portion of the election petition which mentions the date as 26.6.2013 (albeit also written by hand). With respect to attestation, the Oath Commissioner in clear and unequivocal terms has stamped 'on S.A. before me' (i.e. on solemn affirmation before me), which clearly indicates that the appellant was duly present before the Oath Commissioner at the time of attestation and was administered oath. It is also spelt out from the Oath Commissioner's stamp that the election petition was attested at Sukkur. As regards identification of the appellant, he has been duly identified by Mukesh Kumar, Advocate who has mentioned of knowing the appellant personally; thus we are of the candid view that in light of the law laid down by this Court in Lt.-Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others (2015 SCMR 1585) there is no defect in the verification. ”

21.       In the case of Ch. Muhammad Ayaz v. Asif Mehmood and others reported in 2016 SCMR 849 (heard and decided on 7th December 2015), dealing with the issue of verification, the Hon'ble Supreme Court held that verification is to be made at the time of filing of election petition and any default in this regard would be considered to be a significant omission and fatal. It was further held that verification of the election petition was a mandatory requirement and that too in accordance with the provisions of Order VI Rule 15(2), CPC, specifying to numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The Hon'ble Supreme Court observed that the verification is amongst mandatory provisions and once it is not done in the manner as laid down, cannot be cured after expiry of limitation period though by filing an application for amendment.

22.       In the case of Muhammad Nawaz Chandio v. Muhammad Ismail Raho and others reported in 2016 SCMR 875 (heard and decided on 10th December 2015), the Hon'ble Supreme Court observed the requirement of Order VI Rule 15, CPC, has in essence been complied with, if an election petition bears verification on solemn affirmation that what has been stated therein is true to the best of knowledge and belief of the election petitioner, stamped and signed by Oath Commissioner and showing the place and date where the contents of election petition were verified.

23.       In the case of Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar and others reported in 2016 SCMR 1312 (heard and decided on 20th April 2016), the Hon'ble Supreme Court again highlighted the requirement of verification in terms of Order VI Rule 15, CPC. It provides that the verification is supposed to be done in a manner prescribed under the law. It further provides that the verification in terms of law and in terms of Order VI Rule 15, CPC, is a mandatory requirement. In the referred case, the affidavit was examined in the light of the above requisites and it transpired that the affidavit was lacking with reference to the prerequisites of Order VI Rule 15, CPC, as it did not make any reference to the numbered paragraphs contained therein which the petitioner verified of his own knowledge and verified upon information received and believed to be true. Though it was cumulative effect of other prerequisites as well, such as deficiency in the oath requirement and the annexures appended therewith, however, the provisions of Order VI Rule 15, CPC, were never seen independently or alone. The observation of Hon'ble Supreme Court is reproduced as under:

“ 6.      ……

55.Contents of Petition:-

(1)…………………

(2) …………………

(3)……

Order VI, Rule 15. ……

(2)……

(3)……

From the above it is crystal clear that verification of an election petition in the prescribed manner is a mandatory requirement and that too in accordance with the provisions of Order VI, Rule 15, C.P.C. specifying to numbered paragraphs of the pleadings what he verifies of his own knowledge and what he verifies upon information received and believed to be true. From the record it reveals that the Appellant while filing this election petition did not comply with the mandatory requirements with regard to the verification of the election petition and to cure such defect subsequently submitted an affidavit in this regard, wherein the entire contents of his election petition were reproduced. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleadings are generally directory in nature, the position is different in election laws by virtue of section 63 of the ROPA, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of section 54 or 55 of the ROPA, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under section 63 of the ROPA, 1976. ”

24.       In the case of Hina Manzoor v. Malik Ibrar Ahmed and others reported in PLD 2015 Supreme Court 396, the Hon'ble Supreme Court made following observations:

“ 6.      It is, indeed true that in suitable cases and where the amendment sought is necessary for the purposes of determining the real issue, the bar of limitation may be overlooked, however, the amendment, rather the making up of lacuna, sought to be allowed cannot be considered to be an amendment necessary for the adjudication of the controversy/allegation pertaining to rigging and corrupt practices in the election process, as were involved in the present case. Furthermore, since the petition suffered with the inherent defect of non-compliance of section 55(3) of the ROPA, consequently resulting in its summary dismissal as prescribed by section 63 of the ROPA, the petitioner cannot be allowed to circumvent the purpose of law in the manner sought by him. ………… ”

25.       All these referred judgments dealt with the situation whereby the statue provided dismissal of an election petition on account of deficiencies, whereas, the present enactment provides a lesser punishment, which deals with the rejection. The petitioner, as a consequence of rejection, may re‑agitate his/her grievance before the same forum, whereas, a dismissal would oust him/her to re-agitate his/her grievance before the same forum. The Hon'ble Supreme Court, in the above referred judgments, has provided a punishment which is more significant in nature than the present statue provides. Even the first judgment of S.M. Ayub of 1967, which is a full Bench judgment, categorically observed that if the language of the law is intractable and clearly provides for a dismissal of a petition for a technical defect, the Court should not be astute to ascribe to the legislature a desire to be hyper‑technical.

26.       In the instant case also the verification clause is lacking to be in line with Order VI Rule 15-16, CPC. Previous law calls for dismissal, whereas, present law calls for rejection. Rejection of petition on such grounds, however, does not exclude petitioner from refiling such lis in case the limitation survives. In this matter, petitioner filed this petition on 22.09.2018, which is 46th day. Even if two gazetted holidays of 20th and 21st September 2018 being Ashura are excluded, it could be considered to be the last day of filing being first opening day after gazetted holidays, as 44th day had fallen during those two days. He, thus, had no time left except to file it on the same day, had it been rejected on the same day.

27.       However, one thing is common i.e. all these matters were governed by Statute/law which does not cater for “rejection”. All cases dealt the situation of dismissal on the alleged deficiencies which dismissal was found to be lawful and at times harsh by some of the Benches. However, present enactment provides a room for rejection of petition on such deficiencies which situation was never existed before. The difference between the two is that on rejection, the petitioner can re-agitate his/her lis provided he/she has time left which is to be reckoned from the date of filing of petition and not from the date of order of rejection. The order of rejection deemed to have been passed on the day when it was filed.

28.       It may be clarified that this petition ought to have been filed on 20th September 2018 i.e. 44th day of the issuance of the notification of the returned candidate, but owing to declaration of Public Holidays throughout the province and the country as well on 20th and 21st September 2018 on the occasion of Ashura (9th and 10th Moharram-ul-Haram 1440 A.H), the 44th day was supposed to be on 20th September 2018. However, 22.09.2018 is first opening day after public holidays and is within time. While computing days, 1st day of notification of returned candidates has already been excluded.

The rules as relied upon by petitioner’s counsel for curing deficiencies also considered by me in another judgment in Election Petition No.S-03 of 2018 as under:-

17. Coming to the main point, the scope of this application is to test the applicability of Rule 140 for curing inherent and patent defect in petition under Sections 142, 143 and 144 of the Elections Act, 2017.

18. Sections 142, 143 and 144 of the Elections Act, 2017, for the sake of convenience, are reproduced as under:

“142. …

143. ……

144. …..

19. In the entire scheme of Sections 142, 143 and 144 of the Elections Act, 2017, the legislature was clear as to what is mandatorily required by the petitioner to be fulfilled except Sections 143(2) and 144(3) wherein the language was discretionary. What was made mandatory, the legislature has intentionally used the word “shall”, whereas, under Sections 143(2) and 144(3), this was relaxed. The Election Tribunal may direct the petitioner to join any other person (other than contesting candidate), as respondent against whom any specific allegation of the contravention of this Act has been raised, whereas, it was made compulsory for the petitioner to join all contesting candidates in the main petition at the time of filing petition within time prescribed. Similarly, as the statue provides different reliefs to the petitioner and the petitioner may opt to choose any of the referred reliefs / declarations such as 144(3)(a), 144(3)(b) and 144(3)(c) as stated above, and it was not made necessary for the petitioner to avail all remedies simultaneously. This is the distinction which is apparent on the face of these provisions.

20. Rule 140 of the Election Rules, 2017, as claimed to have been framed under the Act, relates to procedural processing of the petition by the Tribunal and/or its office and in case of any deficiency found, the petitioner was required to be informed accordingly, indicating the deficiencies in the petition, if any, to fulfill the same within seven days from the receipt of communication from the Tribunal, failing which the petition was required to be “dismissed” by the Tribunal. The legislature has intentionally and deliberately used the word “dismissed” in Rule 140 framed under the Elections Act, whereas under Rule 145(1) the Tribunal was empowered to “reject” the petition on account of non-compliance of Sections 142, 143 and 144. Rule 140, thus, on account of its language used, as it relates to dismissal of petition, appears to have no nexus with Section 145(1) which is meant for rejection. The two words i.e. “rejection of petition” and “dismissal of petition” are distinguishable. Sections 142, 143 and 144 of the Elections Act, 2017 relates to presentation of the petition and the mandatory requirements to be followed, failing whereof the consequences are of rejection of the petition.

29.       Section 143(3) of the Elections Act, 2017 requires that the petitioner shall serve the copy of the election petition with all annexures on each respondent personally or by registered post or courier before or at the time of filing election petition. There is nothing available on record that this provision has been complied either by registered post or courier. The petition is supported only by an affidavit that the notices were served. It is not the requirement of law. Had the law required “sending” of notices, the affidavit could have been considered but the provision requires service of notice and the legislature used the word “serve”. If it was served personally an acknowledgement should have been taken and provided to the Court. The presumption as such is that it was never “served” upon the contesting respondents before or at the time of filing the petition.

30.       Section 142(2)(b) used the word “sent” as against ‘serve’ in Section 143(3). It was neither served through registered post nor through courier service. Presumption is only attached to registered post had it been sent through, but it is neither of the two in the instant case.

31.       In the case of Inayatullah v. Syed Khursheed Ahmed Shah and others reported in 2014 SCMR 1477. Dealing with the Representation of the People Act, 1976, the Hon'ble Supreme Court observed as under:

“ 3.      Considering the provisions of the various statutes including the Civil Procedure Code (C.P.C.) the distinction between personal, service/appearance etc. and appearance/service etc. through an agent is well recognized. The courier service can at best be treated as an agent of the appellant. Service through an agent, keeping in mind the similar provisions of the Civil Procedure Code (C.P.C.) and other statutes will not constitute service effected personally. As far as service through registered post is concerned, that has not even been claimed by the appellant. In any event, the Postal Service of Pakistan has been created under the Post Office Act, 1898. There are a number of courier services operating in Pakistan. Our research staff has accessed reports which show that legislative efforts are a foot to regulate the services of couriers. As a result, the Pakistan Private Courier Regulatory Bill, 2012, was prepared. However, the said Bill has not become a law. In any event, service through registered post raises statutory presumptions in the ordinary course. No such presumption attaches to service through courier. Learned counsel for the appellant made a feeble attempt to argue that service through courier could be considered valid on the ground of practice and usage. This plea is not legally tenable in view of the express wording of the Act.

3(sic.)  The second issue relates to the verification of the Election Petition which was filed by the appellant before the Election Tribunal. We have seen the original record and from the same it is apparent that the petition was sent to the respondents through courier on 18-6-2013. In this view of the matter, the verification of the affidavit of service, is patently incorrect. Likewise, the verification of the affidavit annexed with the petition is incorrect for the same reason. The rubber stamp of the Oath Commissioner wherein blank spaces have been filled show that the affidavit was sworn on 17-6-2013. However, the attestation has been made on 18-6-2013. The verification on the petition itself, for whatever it is worth, also states in its body that the verification was made on 17th June, 2013, but this verification is also incorrect bearing in mind that the copy of the Election Petition was sent to the respondents on the following day i.e. 18-6-2013. The affidavit of service which has been signed by the appellant states on oath "that before filing of petition [appellant] [sic] have served it to the respondents through notice by courier, the receipts of those are appended herewith". This statement has been verified on 17-6-2013 and the attestation has also been made on 17-6-2013. This affidavit of service is itself belied and rendered false by the courier receipts which show that the copy of the petition was sent on 18-6-2013 and not on 17-6-2013.

4.         In view of the above discussion, this appeal has no merit. The same is therefore, dismissed. No order as to costs. ”

32.       Dealing with the supporting arguments of petitioner’s counsel, regarding notice of main petition, the act of issuance of notices of main petition under Sections 145(2) of the Elections Act, 2017, shall not wash out the earlier cognizance, if at all to be taken under Section 145(1). Requirement of Sections 142, 143 and 144 of the Elections Act, 2017 has its own and independent importance and to be seen by the Tribunal independently and subsequent proceeding by means of issuance of notices cannot distract the Tribunal from considering the patent defect in pleading. Similarly, Section 149 which relates to the amendment of petition, also, does not relate to such defect as is under discussion. Section 149 of Elections Act, 2017 offers amendment to ensure fair and effective trial and for determining the real questions at issue without raising a new ground to challenge the election through such amendment, hence, does not support petitioner’s contention. Following observation of Hon'ble Supreme Court supports the above conclusion:

33.       In the case of Hina Manzoor v. Malik Ibrar Ahmed and others reported in PLD 2015 SC 396, the Hon'ble Supreme Court held as under:

“ 6.      It is, indeed true that in suitable cases and where the amendment sought is necessary for the purposes of determining the real issue, the bar of limitation may be overlooked, however, the amendment, rather the making up of lacuna, sought to be allowed cannot be considered to be an amendment necessary for the adjudication of the controversy / allegation pertaining to rigging and corrupt practices in the election process, as were involved in the present case. Furthermore, since the petition suffered with the inherent defect of non-compliance of Section 55(3) of the ROPA, consequently resulting in its summary dismissal as prescribed by Section 63 of the ROPA, the petitioner cannot be allowed to circumvent the purpose of law in the manner sought by him …… ”

34.       The cumulative effect of the above is that the petition is liable to be rejected in terms of Section 145(1) of the Elections Act, 2017. Order accordingly.

 

 

 

J U D G E

Abdul Basit