2025 PLP 1042 (MLD)

Anwaar Hussain, J.

Respondent No.1/returned candidate has filed C.P. No.7/2024, under Order XIV Rule 2 and Order XV Rule 3 of Code of Civil Procedure, 1908 ("CPC") for decision of issue No.3 as preliminary issue, pertaining to the maintainability of the main election petition, with averments that the Election Tribunal is obligated to take into account the mandate of Section 145 of the Elections Act, 2017 ("the Act, 2017") and if the petition is defective, the same shall be summarily rejected. Inter alia, ground has been raised that the election petition is barred by time. Confronted with the situation, learned counsel for the petitioner submits that he is prepared with the brief on question of maintainability and has no objection for decision thereto. Also submits that C.M. No.5 of 2024 has been filed for condonation of delay, occurred in filing the election petition. Issue No.3 reads as under: "

3. Whether any provision of sections 142, 143 and 144 of the Elections Act, 2017 (the 'Act') has been violated that requires dismissal of this petition? OPR

2. The election petition under Section 139 of the Act, 2017 has been filed by the petitioner who was contesting candidate of general election of PP-182 (Kasur-VIII), held on 08.02.2024, assailing notification dated 17.02.2024 whereby respondent No.1 has been declared as returned candidate, inter alia, on the ground that the election result in favour of the returned candidate is result of corrupt and illegal practices. Through reply available on record, objection qua maintainability of the petition has been raised that the petition is barred by time by 04 days as the notification was issued on 17.02.2024 whereas the petition has been filed on 08.04.2024, which is beyond period of 45 days contemplated under Section 142 of the Act, 2017. Similarly, it is contended that the verification of the petition, affidavits of the petitioner as well as witnesses are defective.

3. Learned counsel for respondent No.1/returned candidate submits that Section 5 of the Limitation Act, 1908 ("the Act, 1908") is not applicable in view of Section 29(2) (b) thereof and hence, the application bearing C.M. No.5/2024 filed by the petitioner for condonation of delay is liable to be dismissed and resultantly, the petition merits rejection. Further contends that perusal of verification, at page 8, as also separate affidavit of the petitioner available at page-8A of the case file indicates that the same are not in consonance with applicable law on the subject as interpreted in case reported as "Lt. Col. (Retd) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585). Adds that the verification of the petition is also defective inasmuch as reference to the affidavits of the witnesses has been made in ground 15(e) of the petition and the petition is statedly prepared on 05.04.2024 whereas computerized stamp papers used for affidavits of the witnesses were issued on 06.04.2024. In this regard, further adds that even verification of said affidavits of the witnesses is defective and places reliance on the case reported as "Mian Imtiaz Ahmad v. Javed Iqbal and 10 others" [2019 CLC 824 Lahore (Bahawalpur Bench)). Drawing attention of this Court to affidavit of the petitioner available at page 342 regrading service of advance copies of the petition and annexes to the respondents, submits that petitioner stated to have taken oath on 05.04.2024, whereas stamp of the Oath Commissioner envisaged the date as 06.04.2024, which prima facie renders the said affidavit defective. Concludes the arguments with the averments that the petition is third round of litigation in respect of the impugned election process inasmuch as in the earlier rounds of litigation prior to issuance of notification dated 17.02.2024, constitutional petition bearing W.P. No. 9366/2024 was filed by the petitioner, which was dismissed as withdrawn on 13.02.2024 when permission was sought to approach the ECP in view of order dated 12.02.2024 passed in W.P. No. 8932/2024 titled "Salman Akram Raja v. Returning Officer and others" 2024 CLC 1094 whereafter the petition was filed before the ECP, which was also dismissed on 02.04.2024 on the ground that the Election Tribunals had been constituted and appropriate remedy was to file petition under Section 139 of the Act, 2017 and in all the earlier rounds of litigation, the ground taken was regarding wrong doing in respect of consolidation of result, which is conspicuously missing in this petition and a somersault has been taken by resort to the allegation of corrupt practices.

4. Learned counsel for ECP has adopted the arguments of learned counsel for respondent No.1/returned candidate.

5. Conversely, learned counsel for the petitioner submits that in the interest of justice, the delay, if any, is to be condoned inasmuch as the petitioner had no remedy when the consolidation of result was not carried out in accordance with law and the petitioner approached the Lahore High Court by filing constitutional petition bearing W.P. No.9366/2024 and it is in compliance of order of Lahore High Court that the ECP was approached by the petitioner and the matter remained pending before the said forums, therefore, the petitioner is not at fault for the time consumed during said proceedings. Insofar as the verification is concerned, learned counsel for the petitioner submits that the ratio decidendi laid down in case of Ghazanfar Abbas Shah supra is not applicable to the present case and places reliance on case reported as "Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others" (2016 SCMR 750).

6. Heard. Record perused.

7. Taking up the ground of limitation first, admittedly, the petition was barred by 04 days and the time consumed before the wrong forums was petitioner's own choice or on the basis of legal advice, as the case may be and not the direction of the Lahore High Court, Lahore, and the same cannot be condoned by invoking Section 5 of the Act, 1908, which is not applicable to the present case by virtue of mandate of Section 29(2)(b) of the Act, 1908. For reference, Section 29 is reproduced as under: "

29. Saving. (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872. (2) Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law: (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. (Emphasis supplied)

8. Adverting to the maintainability of the petition on the ground of defective verification, learned counsel for the petitioner was confronted with pages 8, 8A, 323, 324, 325, 326 and 342 of the case file. At page-8, the verification of the petition does not carry the stamp of the Oath Commissioner. Similarly, it does not specify as to which paragraphs are verified on the basis of knowledge and which paragraphs are verified on the basis of information received. Insofar as page-8A is concerned, it is affidavit of the petitioner, verifying contents of an "appeal" and not the "petition (election petition)". Even if the word "appeal" used in the said affidavit is taken as a clerical error and read as the petition (present election petition), perusal of page-8A indicates that neither the name of identifier is mentioned nor CNIC of the petitioner is reflected. Insofar as the affidavits of the witnesses available at pages 323, 324, 325 and 326 are concerned, the e-stamp papers used for the said affidavits were issued on 06.04.2024 whereas there is no verification of the Oath Commissioner and only attestation of said stamp papers is available and not the oath taken by the deponents (i.e., the witnesses). In this regard, there was no explanation available with learned counsel for the petitioner except to contend that in light of dicta laid down in case of Feroze Ahmed Jamali supra, the said defects are not fatal. This Tribunal is of the opinion that the argument is misconceived. Mere fact that the verification at the bottom of the petition is without stamp of the Oath Commissioner is fatal inasmuch as in the light of dicta laid down in case reported as "Abdul Wahab Baloch v. Imran Ahmad Khan Niazi and others" (PLD 2019 Lahore 119), the same does not fulfil the requirements of Order VI Rule 15 of C.P.C. It is settled principle of law that if the petitioner is not personally known to the Oath Commissioner concerned, he can be identified by some other person including an Advocate, who is then required to state that the election petitioner is personally known to him-identifier. However, in the present case, the name of the identifier is not reflected at page-8A. The law is well settled on the subject. In case of Ghazanfar Abbas Shah supra, the Supreme Court of Pakistan has 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 VI 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 Iqbal 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 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." In case of Ghazanfar Abbas supra, the Supreme Court has also held that in future, verification of affidavits in election cases is to be strictly done in accordance with law as interpreted in the said case. The Supreme Court further held 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)."

9. The argument of learned counsel for the petitioner that judgment in case of Ghazanfar Abbas Shah supra is not applicable to the present case in view of the dicta laid down in case of Feroze Ahmed Jamali supra is also misconceived on account of distinguishable facts inasmuch as in case of Feroze Ahmed Jamali supra, the entire trial was conducted by the Tribunal therein, and prior to passing of the final order, the Tribunal dismissed the application for dismissal of the election petition through summary proceedings while holding that the petition is duly verified, however, while passing the final order, a different view was taken and therefore, the Supreme Court held as under: "7........ Having already decided the issue of verification vide the abovementioned order, it was not open for the learned Tribunal to reverse its own order, when that was not being done in the exercise of any power of review (if review was permissible) and such order operated as a res judicata inter se the parties with respect to the said issue having been finally and conclusively settled by the learned Tribunal itself. Further even if the principle of res judicata is considered not stricto sensu applicable, it is not comprehended that when the learned Tribunal earlier took up the firm view that the election petition and the annexures are duly verified but without meeting the reasons assigned in the previous order subsequently changed its opinion and held otherwise, without even adverting to the said order. Be that as it may, in light of the above we are of the candid view that the election petition and the annexures both have been duly verified in accordance with law and the finding of the learned Tribunal in this regard is unfounded." (Emphasis supplied)

10. Moreover, on the top of it is the fact that the petitioner took the following ground, while laying challenge to the election result: "e) That the petitioner has attached List of Witnesses as Annexure- and the Affidavits are annexed as Annexure- Election Agents and Polling Agents of the Petitioner have consented to appear as witnesses and have given their affidavits and are annexed with this Election Petition." (Emphasis supplied) This ground forming part of the petition was verified on 05.04.2024 albeit without any stamp of the Oath Commissioner by appending a defective affidavit at page-8A. The affidavits of the witnesses are prepared on 06.04.2024 and the Oath Commissioner has not mentioned any date. One such scanned copy of affidavit of the witness is pasted as under: Meaning thereby that the election petition along with annexures was verified when the annexures were not even ready. So is the position with respect to affidavit of service available at Page-342 of the case file. In this view of the matter, this Tribunal is of the opinion that the petition and its annexures are not properly verified.

11. The above analysis, on issue No.3, propels to conclude that the petition is not maintainable on account of limitation and defective verification of the petition as well as affidavits appended therewith, as the delay occurred in filing the petition cannot be condoned and, inter alia, no plausible explanation is available for submitting defective affidavits. Suffice to observe that further proceedings in the matter will be a futile exercise, having unnecessary toll on the precious time of this Tribunal. C.M. No.07/2024 stands accepted and issue No.3, while being treated as preliminary issue is decided against the petitioner. As a natural corollary, C.M. No.05 of 2024 is dismissed.

12. For what has been discussed above, the titled election petition is also rejected, being not maintainable under Section 145(1) of the Act, 2017. UN/A-31/L Petition dismissed.