2009 PLP 1930 (YLR)

IQBAL HAMEED-UR-REHMAN, J.

Through the instant writ petition, the petitioner has assailed the dismissal of the application filed by him under section '63 of the Representation of People Act, 1976 read with Order VII rule 11, C.P.C. for the rejection of the election petition due to non-compliance of the mandatory provisions as to verification of the petition as well as of the affidavit.

2. Brief facts succinctly required for the determination of this writ petition are that the petitioner and respondents Nos.2 to 13 contested elections to the seat of PP-181, Kasur held on 18th of February, 2008. The petitioner was declared returned candidate having obtained 20401 votes. Respondent No.2 called in question the validity of the said election by filing the election petition, which is pending before respondent No.1/(Election Tribunal, Lahore High Court, Lahore). The petitioner filed an application under section 63 of the Representation of the People Act, 1976 read with Order VII, Rule 11, C.P.C. for the rejection of the election petition and the same was dismissed by the learned Election Tribunal (respondent No.1) vide order dated 9-2-2009. Being aggrieved of the said order, the petitioner has filed this writ petition.

3. Learned counsel for the petitioner contends that the petitioner moved an application under section 63 of the Representation of People Act, 1976 read with Order VII rule 11, C.P.C. for the dismissal of election petition due to non-compliance of the mandatory provisions of law as to verification of election petition as well as the verification of the affidavit being in violation of section 55(3) of the Representation of the People Act, 1976 as well as Order VI rule 15(2), C.P.C. Further that the affidavit was attested by the Oath Commissioner on 17-3-2008, whereas the election petition and the affidavit were verified by respondent No.2 on 18-3-2008, therefore, the verification made by respondent No.2 is defective in the eyes of law and as such, the learned Election Tribunal, while passing the impugned order, has overlooked to take) into consideration the mandatory provisions of law which entails the rejection of the petition under Order VII, rule 11, C.P.C. due to non-compliance of the mandatory requirements of law under section 55(3) of the Representation of People Act, 1976. Learned counsel for the petitioner in this regard has firstly drawn our attention towards the verification of the petition at page 15 of the petition as well as the verification of the affidavit wherein similarly it is so stated as under:

"Verified on oath at Chunian this 18th day of March, 2009 that paras Nos.1 to 4 of the above election petition are correct to the best of my information and paras. Nos.5 to 6 are correct to the best of my belief." Therefore, he has reverted to the mandatory provisions of section 55(3) of the Representation of the People Act, 1976, wherein it is stated as under:-- S.55(3). "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 of 1908), for the verification of pleadings".

4. Now for proper appreciation of his contention the learned counsel for the petitioner has read the relevant provision of Order VI rule 15, C.P.C. which, according to section 55(3) ibid, has to be adopted for the verification of the election petition and the same is reproduced below:-- Order VI rule, 15. "Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every proceedings 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 provided to the satisfaction of the Court to be acquainted under the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he vet-Wes 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".

5. Keeping in view the above provisions of law learned counsel for the petitioner has drawn our attention to the verification made by the respondent No.2 on his election petition as quoted above that the same has not been made according to Order VI 'rule 15(2), C.P.C. as also the verification has not been made according to the respondent No.2 own knowledge rather on information, whereas the provisions of Order VI rule 15(2), C.P.C. requires mandatory verification 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 perusal of the verification of the respondent No.2 shows that he has not verified the petition according to his own knowledge, as such, his absolute own knowledge is missing he is only making the verification according to information, as such, the verification has not been made by respondent No.2 in accordance with law and the same being so, the mandatory provision of section 55(3) of Representation of People Act, 1976 has not been complied with. The deficiency being very visible and non-compliance being fatal, as such the petition was liable to rejection under Order VII rule 11, C.P.C. Reliance is placed on Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34 and Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362.

6. Secondly, the learned counsel for the petitioner reverting to verification of the affidavit attached with the petition states that its perusal further reveals that another illegality has been committed that is that the date of attestation of both the verification on election petition and the, affidavit clearly indicates that Oath Commissioner's seal was affixed on the 17th of March, 2008 while the verification disclosed that the alleged depositions have been made on the 18th March, 2008 and this discrepancy is irreconcilable in nature' and rendered the attestation made by the Oath Commissioner, if not illegal and unlawful, but also based on fabrication and concoction of facts. The purpose of administration of Oath stands nullified from the record when on 17th March, 2008, there could not be any document sworn to before the Oath Commissioner. This very vital aspect has not been dealt with by the learned Tribunal while dismissing the application of the petitioner under section 63 of the Representation of People, Act, 1976 seeking rejection of the election petition when sub-rule (3) of rule 15 of Order VI, C.P.C. makes the attestation obligatory as under: - "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." In the circumstances to proceed with election petition would be an exercise in futility. Reliance in this behalf is placed upon Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC 362.

7. It is further vehemently stressed that the impugned order dated 9-2-2009 is a complete misreading of record as such reliance , is placed on Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others PLD 2005 SC 600 and Engineer Jamal Ahmad Malik, v. Shaukat Aziz and 6 others 2007 CLC 1192. Further contends that the learned Election Tribunal has overlooked the mandatory provisions of law and precedents on the subject in passing the impugned order which is a palpably order contrary to law.

8. On the other hand, it is stated by the learned counsel for the respondent No.2 that by virtue of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, there is a complete bar to exercise of constitutional jurisdiction of this Court under Article 199 of the Constitution and in view of the same, this writ petition is not maintainable. Further, all the judgments relied upon by the learned counsel for the petitioner with regard to maintainability of the petition are prior or before the filing of the election petition and not a single judgment relates to an interlocutory order and in the election laws no forum is provided to challenge interlocutory orders arising out of an election petition. Party affected has to wait till it matures into a final order and then to attack it in the proper forums. Reliance is placed on Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165. Therefore, this Court cannot exercise jurisdiction under-Article 199 of Constitu?tion of Islamic Republic of Pakistan, 1973 and this writ petition merits dismissal. Further contends that no illegality has been committed by the learned Election Tribunal while passing the impugned order.

9. We have heard learned counsel for the parties and also perused the impugned order.

10. Perusal of the election petition along with its verification as well as the verification of the affidavits as elaborated during the course of the arguments of the learned counsel for the petitioner and as reproduced above along with relevant provisions of law finds our appreciation as it is apparent that respondent No.2 while filing the election petition did not comply with the mandatory requirements of law regarding verification of petition and affidavit. There is a very significant omission in both the verification of the election petition and also in the affidavit i.e. "verifies of his own knowledge". Respondent No.2 was required to verify according to his "own knowledge" and not only on information which he believes to be true, as required under the provisions of Order VI rule 15(2), C.P.C. which is reproduced below:-- Rule 15(2) "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". It appears that while filing the election petition, respondent No.2 failed to .comply with this mandatory provisions of the law regarding the verification of pleadings. and non-compliance of the same is resultantly fatal, as such, section 55(3) of the Representation of People Act, 1976 also entails that every election and every schedule or annex thereto shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act of 1908) for the verification of pleadings. In this regard we are fortified by dictum laid down by the apex Court in the case of Ch. Muhammad Ashraf v. Rana Tariq Javed and others 2007 SCMR 34:-- "Election Tribunal was justified in holding that no affidavit was annexed to election petition which admittedly was not verified in accordance with law

Election petition not having been filed in compliance with the provisions of S.55(3) of Representation of People Act, 1976, was liable to be dismissed under S.63 of the Act, as requirement of both the sections were mandatory."

11. Secondly the factum of the affidavit being attested on 17th of March, 2008 by the Oath Commissioner while the verification of the deposition has been made on the 18th of March, 2008 is irreconcil?able in nature which nullifies the attestation made by the Oath Commissioner on the 17th of March, 2008 when the same is being sworn a day of the attestation, such affidavit would be deemed not duly verified on oath as has been held by the Honourable Supreme Court of Pakistan in the case of Malik Umar Aslam v. Sumera Malik and another PLD 2007 SC

362. As such the requirements of law including verification of petition in terms of section 55(3) of Representation of People Act, 1976 for having prescribed a penalty of dismissal of petition for its non-compliance had become mandatory

Such defect in verification, whether pointed out by respondent or not. Tribunal would be bound to ensure compliance of such mandatory provisions.

12. Now coming to question whether this constitutional petition is maintain-able or not in view of the bar under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 as well as to the question whether the same is interlocutory order arising out of the election petition, as such, can this Court exercise the jurisdiction under Article 199 of the Constitution.

13. In order to better comprehend this proposition we seek guidance from the dictum of apex Court as elucidated in the following judgments. In Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487, it has been observed that : -- "Bar as contained in Art.225 of the Constitution on the jurisdiction of High Court under Art. 199 of the Constitution and that of Election Commission of Pakistan, scope and extent

Absolute bar of jurisdiction of the High Court in election matters is based on misconception of law

Power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Art.225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute

In all election matters at all stages, the jurisdiction of the High Court under Art. 199 of the Constitution or that of Election Commissioner of Pakistan, a constitutional forum is not completely ousted by virtue of Art.225 of the Constitution." In Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 429, it has been observed that:-- "A dispute concerning with the election, would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is ,not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict with the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution, no doubt, can be placed on higher footing to that of power emanating from Article 225 of the Constitution and not-withstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein." In Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others PLD 2008 SC 495, it has been observed that:-- "Bar of jurisdiction contained in Art.225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Art.199, in all matters directly or indirectly concerned with the election

Constitutional jurisdiction of High Court can surely be involved in certain situations, particularly in cases, in which a pure question of law is raised in the constitutional petition and a question of fact or a mixed question of law and fact is not involved

Question relating to exercise of jurisdictions by the High Court under Art. 199 of the Constitution in election matters due to bar contained in Art.225 of the Constitution must be determined in the light of facts and circumstances of each case as concept of complete bar of jurisdiction of the High Court may not be in the wisdom of the Constitution."

14. Keeping in view the principles laid down in the above cited judgments of the apex Court as well as the determination of question of law involved in the instant writ petition, constitutional jurisdiction under Article 199 of the Constitution as per judgments of the Honourable Supreme Court, can be exercised at any stage in all matters of elections involving questions of law or interpretation of law in respect of an election dispute.

15. It has also been propounded that powers of High Court cannot be curtailed on mere fact that question of law brought before the High Court directly or indirectly relates to the election dispute rather the High Court has to determine the. question of its jurisdiction in the light of facts of a case before it and the points involved therein, therefore, relying upon dictum of apex Court laid down in Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others PLD 2008 SC 487, Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and 10 others PLD 2008 SC 429 and Muhammad Hussain Babar v. Election Commission of Pakistan, through Secretary and others PLD 2008 SC 495, we are inclined to exercise the constitutional jurisdiction under- Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and accept this writ petition. Resultantly, the application of the petitioner under section 63 of the Representation of People Act, 1976 stands accepted and the election petition would be deemed to have been rejected under Order VII rule 11, C.P.C. for non-compliance of the mandatory provisions of law as required under section 55(3) of the Representation of People Act, 1976. M.Y./A-212/L???????????????????????????????????????????????????????????????????????? Petition dismissed.