1998CLC83 (PLP)

Another case reported as State v. Muhammad Shabbir (1983 PCr.LJ 2405). In this case a writ petition was filed supported by an affidavit and it was also found that the writ petition was supported by an affidavit contained false assertion. The proceedings were initiated against the deponent under section 476, Cr.P.C. with a charge under section 193, P.P.C. read with section 471 and section 465, P.P.C., as there were allegations that the deponent has also filed some fraudulent documents with the writ petition. The deponent was ultimately acquitted of the charges under section 193, P.P.C. on the ground that the affidavit had not been filed in the prescribed form as to the specification of the paragraphs to be true about the knowledge or information of the deponent and it was observed‑ "

13. The learned counsel representing the respondent pointed out that the affidavit (Exh.P‑3) was not in the prescribed form inasmuch as the verification at the end of this affidavit did not specifically state as to which of the paragraphs therein were true and correct to the knowledge of the respondent and which of the same were true and correct in his belief. " In case reported as Habib Bux v. Zahoor‑ul‑Hasan (1986 CLC 1119), the affidavits filed which were not in conformity with Order XIX, Rule 3, C.P.C. held to be meaningless and valueless and, therefore, to be ignored.

9. Apart from the abovementioned defect which is fatal and rendered the affidavit/verification as illegal and unacceptable, the other defect is also of not less importance as when that is not sworn on "oath" but on solemn affirmation then the question arises that whether the verification on solemn affirmation by a Muslim would be a sufficient compliance of law in this respect or not and for which purpose recourse will be made to section 6 of Oaths Act, 1873 which was also amended through an Ordinance XXVII of 1981 which is reproduced below:‑‑ "

6. Oath by a Muslim or by a non‑Muslim who has no objection (1) Where the witness or interpreter is a Muslim he shall make an Oath; (2) Where the witness or interpreter is not a Muslim, he shall make an oath or if he has no objection to making an oath, an affirmation." The abovementioned amendment was brought in section 6 and 'before amendment the said section was to the following effect:‑ "

6. Affirmation by natives or by persons objecting to oaths.‑ Where the witness, interpreter or juror is a Hindu or Muhammadan, or has an objection to making an oath, he shall, instead of making an oath, make an affirmation. In every other case the witness, interpreter or juror shall make an oath." The option which was left to a Muslim deponent to make an oath or solemn affirmation that was taken away and he was left with no choice but to make an oath and not solemn affirmation, in view of the word "shall", as opposed to previous provisions. Such a point came up for consideration in case reported as Nazar Muhammad v. The State (PLD 1986 Peshawar 32). In this case the petitioner was proceeded against for perjury under section 193, P.P.C. by giving a false evidence but as his statement was found to have been recorded on solemn affirmation being administered by Courts was not an oath as envisaged by section 6 of the Oaths Act and the proceedings against him was dropped. In another case Jaffar Ali v. Muhammad Tufail (1991 MLD 48) whereby the statement made on solemn affirmation instead of oath was held to be inadmissible and that the same could not have been made the basis of the judgment and decree. The amendment in section 6 of the Oaths Act leaves no option or alternative for a Muslim to verify the pleading or petition in a way other than on oath as the word "shall" in the amended section 6 of the Oaths Act is significant. Such a question came up for consideration before the Sindh High Court in a case reported as Abdur Rehman v. The State (1988 PCr.LI 2347) wherein it was also held that the Muslim had got no option while he is giving the statement on affidavit that the same must be on oath. The relevant portion of the judgment reads as under:‑‑ "

9. It would therefore, appear that before the passing of Ordinance XXVII of 1981 a Muslim could make an oath or if he had any objection to making of an oath he could instead of it make an affirmation in the prescribed form but after the passing of Ordinance XXVII of 1981 whereas the Hindus had still such an option but a Muslim had no option of making an affirmation instead of an path. He was bound to take an oath and an oath alone. " In the abovementioned judgment ‑the deponent had been proceeded against under section 193, P.P.C. for filing a false affidavit in support of a transfer application but the proceedings were quashed, inter alia, on the grounds:‑‑ (i) That the affidavit was not sworn on oath although he was a Muslim; and (ii) That it was not stated as which of these paras were true to his knowledge and which were true to his belief. It was further held "Such affidavits or depositions, cannot even be treated as sworn testimony and cannot even form part of evidence".

10. The deposition on oath are generally of two types (i) when the I statement is given during the judicial proceedings in the Court (ii) on affidavit which is a declaration as to facts made in writing and sworn before a person having authority to administer oath, as mentioned above and which is done outside the Court and then it is filed in support of the plea of the deponent. The former is in the presence of the other party with certain exceptional circumstances e.g. ex parte proceedings or proceedings under section 512, Cr.P.C. but again amenable to setting aside the ex parte proceedings or examination of the witnesses again in the presence of the other party with opportunity to cross‑examine the witnesses and to raise any objection including on oath or solemen affirmation but in case of affidavit the deposition is made in absence of the other party and remains as such unless the other desires to cross examine the deponent or the allegations are controverted by counter‑affidavit and before which he has no opportunity to controvert the version of the deponent at the time of its making. But when the statement is given in judicial proceedings both the Courts and the other party having opportunity not to allow a defective deposition e.g. not given on oath in accordance with law or to raise an objection by other party, then any objection raised subsequently in that respect is generally not entertained and particularly when the witnesses had been examined. In the case of affidavit the other side gets opportunity after the same had been filed and the objection to it i.e. the affidavit not given or sworn properly, may be entertained if taken in the first available opportunity and the defect therein may be looked into.

11. Thus in case of affidavit, in view of amendments made in section 6 of the Oaths Act whereby the word "shall" has been used in case of Muslim, such a defect would hardly be curable under section 13 of the Oaths Act if objected to at the first available opportunity and particularly the election petitions would be liable to dismissal, if not verified in accordance with law, a condition precedent for taking cognizance which includes non‑verification on oath.

12. In the instant case though the verification has been made and affidavit in support of the petition has also been filed by the petitioner but both the verification as well as the affidavit lack in these basic ingredients necessary for a proper and legal verification/affidavit in addition to the other particulars required for verification and affidavits i.e. the date on which and the place at which it was signed. Moreover, the verification has not been made on oath or solemn affirmation at all and even not' before an authority who can administer oath and the affidavit appended with the petition was also not on oath. In this respect the verification made at the foot of the petition and the affidavit filed alongwith it by the petitioner are reproduced hereunder:‑‑ "VERIFICATION , I Alam Zaib Khan S/o Jan Muhammad Khan Caste Swati, Village and P/O Thakot, Tehsil and District Battagram do hereby verify that all the contents of this petition are true and correct up to the best of knowledge and belief & nothing material has been concealed/suppressed from this August forum. DEPONENT ALAM ZAIB KHAN Identified by (Sd.) Amanullah Khan Salik Advocate Battagram." I Alain Zaib Khan S/o Jan Muhammad Khan Village and P/O Thakot Tehsil and District Battagram do hereby solemnly affirm and declare that all the contents of this petition are true and correct up to the best of my knowledge and belief and nothing material has been concealed from this hounourable forum. DEPONENT (Sd.) ALAM ZAIB KHAN." Thus, the petition filed by the petitioner and the documents filed by the petitioner consisting of the nomination papers of the candidates, the contents of which are not in dispute, according to the learned counsel the verification was not necessary as required under section 55(3) of the Act. But, these are not the only documents and the petitioner has placed on file a ' Goshwara' (schedule of the property of the petitioner) and the same has also not been verified as required under the law. The list of the witnesses indicates that he wished to produce the Revenue Officer of Tehsil Allai, Revenue Officer of Battagram and an officer of the British Embassy, but except the schedule of property of Moza Allai, for verification of which witness No.2 has been cited to be examined, no documents had been placed on the file in support of which witnesses Nos.3 and 4 were going to be examined and it has not been mentioned that the petitioner was unable to obtain the copy or certified copies of the documents for which these witnesses had to be examined. The non‑filing of such documents would amount to non‑compliance of the provisions of Notification No.F.1(7)85‑Cord. (Para. 5). The documents mentioned against the names of the witnesses have not been filed which he was required to file. As para. l of the Notification which states "‑‑‑‑the petition shall be accompanied by all such documents and affidavits of the witnesses as desired to be produced by the petitioner‑‑‑" and this in turn lead to non‑compliance of section 55(3) of the Act as when no document, the filing of which with the petition was necessary, not filed, no question of verification arises and by this device the petitioner cannot be allowed to hoodwink (sidetract) the compliance of mandatory provisions of law and this is not only violation of Notification, referred to above, but also of section 55(3) of the Act as the filing of annexures/schedule in support of the petition was necessary and its verification was a must then non‑filing of Annexures/schedule in order to get away with the mandatory provisions of law to verify it will not absolve the petitioner of his liability and this will amount to non‑verification of documents not filed which were to be filed i.e. non‑compliance of section 55(3) of the Act. On this analogy there is a judgment of the Indian jurisdiction Rajendra Singh v. (Smt.) Usha Rani and others and J.P. Goyal, v. Raj Narain and others and Bishambhar Nathpande and others v. Raj Narain and others (1985 PSC 1208) wherein the filing of copies with the petitions were necessary and the copies were filed but not correct copies wherein it was held that filing of copies means correct copies and non‑filing of correct copies would amount to non compliance of the provisions of law with the resultant consequences of dismissal of the petition, by making reference to the Representation of People Act (43 of 1951), the relevant portion of which is reproduced below:‑‑

"A perusal of sections 81(3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner disregards the mandate contained in section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86 .....If out of the copies filed the respondent's copy is found to be an incorrect one. It amounts to non‑compliance of the provisions of section 81(3) which is sufficient to entail a dismissal of the election petition. "

13. Here in this case non‑filing of necessary annexures amount to their non -verification with consequential result. Even the non‑compliance of the provisions of Notification otherwise was held as fatal with the resultant dismissal of the petition. In this respect reference can be made to 1987 MLD 2460, 1991 CLC 175 and 1988 CLC 1289.

14. The learned counsel for the petitioner has contended that unless annexures make additional allegations of substantive nature against the other party and furnishes better particulars of allegations made in the petition so as to give them the status of the petitioner itself, the non‑verification of the anneaures would not render the election petition as invalid and to make it liable to dismissal. In this respect he relied on S.M. Ayub v. (1) Syed Yusaf Shah, (2) Major Tilla Khan Sadozai and (3) Election Tribual, West Pakistan, Lahore (PLD 1967 SC 486).

15. By looking at the petition the allegations of the petitioner against the respondent that he has not submitted correct declaration of his assets and liabilities, only general allegations have been made without full particulars. In view of amendment in section 12 of the Act, the candidate will have to file statement of his assets and liabilities and the default in that regard i.e. not submitting correct statement has been brought within the meaning of corrupt practice under section 78 of the Act. According to section 55(1)(b) full particulars of any corrupt or illegal practice will have to be given but here no such full particulars of the incorrect declaration have been given except general allegations and without any supporting annexure except the one which is also not verified and in the absence of which it cannot be said that the statement given is incorrect unless the correct statement has been filed with the petition and the petitioner cannot file it later on as for which (non‑filing) no reason has been advanced. Moreover, in the abovecited judgment the disputed Annexures were cutting of the newspapers run by the respondent and distinguishable as that did not raise a substantial new grounds. But, here in the instant case in the absence of the relevant documents showing the correct statement of the assets and liabilities of the respondent, which documents must have been filed with the petition and cannot be filed later on, which could have been taken to provide better particulars in support of the case of the petitioner and without which the allegations of the petitioner which are general in nature cannot be proved. He also relied on Haji Amanullah Khan v. Sahibzada Tariquallah and 2 others (1995 CLC 158) but in that case the Annexures were admitted in evidence through statements on oath without any objection or questioning the authenticity of the documents. Thus, the petition tiled by the petitioner is not in conformity with the requirements of section 55(3) of the Act and the non‑compliance has been visited by section 63 of the Act with the dismissal of the petition.

16. Similarly, the petitioner has also not complied with the provisions of Notification No.F.1(7)85‑Cord. Though he has not cited any official witness, the affidavit of whom was required to be filed, but it has not been stated in specific terms to justify his production/examination.

17. The election petition was filed under section 52 of the Act will have to be in accordance with the procedure laid down in the Act with the consequential results for compliance and non‑compliance of the said procedure but the petition under section 76‑A (added section) incorporated through Ordinances Nos.XVIII and XXI/97 in the Act is free from such limitations and more so that the Election Tribunal can take suo motu cognizance even on the basis of information received by the Tribunal in connection with the violation of section 12 of the amended Act but because of its standing repealed on account of lapse of period prescribed for an Ordinance and also relates (under section 76‑A) to the powers and jurisdiction/procedure of the Tribunal, the Tribunal now lacks such powers and jurisdiction to adjudicate upon matters not have been brought through election petition under section 52 of the Act.

18. A strict compliance of the election laws with regard to the trial of election cases had been desired by the Courts and the law applicable thereto and non‑compliance was held to entail dismissal of the election petition at the threshhold. Reliance can be placed on a case reported as 1995 CLC 394 and 687 (same judgment) the relevant portion of which is reproduced hereunder‑ ‑‑‑‑The proceedings in the election petition are pari materia to the criminal trial, therefore, the petitioner has to place all the date on the record before asking for trial. The legislature in its own wisdom has prescribed the periods for trial and the rationale in making the trial of election petition expeditious seems to be as noted by the Supreme Court of India in the case reported as Azhar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253). The relevant portion reads as under:‑ "So long as the Sword of Damocles of the election petition remains hanging on elected member of the Legislature would not feel sufficiently free to devote his wholehearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win vote of the people but also to win the vote of the Court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a‑ hindrance if he be entrusted with some public office in his elected capacity ...... All these factors lend support to the view that election petition should be presented to the Election Commission complete in every respect in accordance with law and procedure so that the Tribunal can straightaway proceed with the trial. The procedure of the Election Commission of Pakistan, therefore, should be observed in letter and spirit by the parties as well as by the Election Commission itself." In this respect the judgment which has been referred above, 1985 PSC 1208 may also be referred to and the relevant portion of which is reproduced below:‑‑ "

9. Hence, the mandate contained in section 81 (3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity. No such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved. An election dispute concerns the entire constituency and in a parliamentary democracy it is of paramount importance that duly elected representatives should be available to share the responsibility in the due discharge of their duties. That is why the law provides time‑bound disposal of election disputes and holds out a mandate for procedural compliance."

19. As a result of the above discussion, the election petition in hand is dismissed having not been filed in accordance with the mandatory provisions of section 55 (3) of the Representation of People Act, 1976. Thus, holding, the Tribunal has been left with no powers under section 76‑A of the Act on account of the repeal of the Ordinance and answering issue No.3 by holding the election petition not competent, not maintainable and liable to dismissal, rest of the issues need no discussion. A.A./2198/P Election petition dismissed.