2019 PLP 1110 (CLC)

MAMOON RASHID SHEIKH, J.

Judgment was reserved in the instant petition, on 23.11.2018, whereafter the petition was dismissed through a short order, dated 18.01.2019. The said short order reads as under: "For the reasons to be recorded later the instant petition is dismissed"

2. The Following are the reasons for the above short order.

3. The instant election petition, under Section 142 of the Elections Act, 2017 (the Act) read with all other enabling provisions of law, has been brought by the petitioner, the runner up candidate of the election held on 25.07.2018, for the constituency PP-52 (Gujranwala-II) of the Provincial Assembly of the Punjab.

4. The petitioner has called into question the election of the returned candidate (respondent No.1), inter alia, on the grounds that respondent No.1 made a false declaration on oath in his nomination paper. He, therefore, cannot be termed to be sagacious, righteous, honest, ameen, and non-profligate within the meaning of Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, and the election suffers from ballot stuffing, grave illegalities, massive rigging and malpractice as also tampering with the polling result and delay in the announcement of result, etc., etc.

5. The petition was filed on 19.09,2018 at 2:45 p.m. The petition came up for hearing for the first time, on 24.09.2018, when, subject to the question of maintainability, notices were issued to the respondents in terms of section 145 of the Act. Only respondents Nos.1, 2 and 5 entered appearance. As a consequence, ex parte proceedings were initiated against respondents Nos.3, 4 and 6 to 13, who failed to enter appearance, despite being served, inter alia, through publication of notice.

6. Respondents 1 and 5 filed their written statements wherein besides defending the petition on merits they took a number of preliminary objections regarding the maintainability of the petition. The said objections are, inter alia, to the effect that the petition and the affidavits attached thereto have not been duly attested by an Oath Commissioner as per the law as laid down by the Hon'ble Supreme Court in the judgments reported as "Lt.-Col.(Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana" (2015 SCMR 1585) and "Sultan Mahmood Hinjra v. Malik Ghulam Mustaffa Khan and others" (2016 SCMR 1312).

7. The learned counsel for respondent No.1, in support of the above objections, has drawn the attention of the Tribunal towards pages 18 and 31 of the paper book. Submits that page 18 is the last page of the election petition, whereas page 31 is the last page of the affidavit in support of the petition. Submits that the verification of the petition has not been done by the petitioner in accordance with the law as laid down by the Hon'ble Supreme Court in the cited judgments. Further submits that clear interpolations have been made in the verification and the affidavit.

8. Submits that on page 18 the verification clause has been typed out/printed and has been signed by the petitioner. The Oath Commissioner, namely Malik Shahid Pervaiz, Advocate, has put his signature and affixed stamps bearing the date and the word "Attested" next to the petitioner's signature. Below the verification clause and the above mentioned signature/stamps the words, "Identified by me Mr. Hassan Ijaz Cheema Advocate high court," have been typed/printed. The said words are followed by the typed/printed certificate of solemn affirmation signed by the Oath Commissioner. However, at the bottom of the page the Oath Commissioner has affixed his rubber stamp to the effect that the verification of the petition was made before him on oath and that the Oath Commissioner has himself identified the petitioner. However, the name "Hassan Ijaz Cheema" has been inserted in the blank space in the rubber stamp later on so as to bring the endorsements in the blank spaces of the rubber stamp in conformity with the typed/printed solemn affirmation.

9. Submits that the name "Hassan Ijaz Cheema" has been inserted in different writing with a different pen and in different ink. The verification of the petition, therefore, suffers from interpolation. The petition has, therefore, not been verified in accordance with the provisions of section 144(4) of the Act.

10. Further submits that he concedes that the petitioner has also filed an affidavit in support of his petition. And in absence of a valid verification the affidavit can be considered as the verification, subject to the caveat that the affidavit conforms to the law on the subject. However, the said affidavit also suffers from the same illegalities as the verification, therefore, the said affidavit cannot be taken into consideration. Refers to page 31 of the paper book.

11. Further submits that the affidavit of service (pages 521 and 521-A) is false. On page 520 the courier receipts in respect of the dispatch of the copies of the petition in terms of section 144(2)(c) have been appended. The said page has been signed by the petitioner, however, the date of the petitioner's signature has been changed. It means that the said signature is defective and / or the result of interpolation.

12. The learned counsel for the petitioner submits that the petition has been filed in accordance with the provisions of Sections 142 to 144 of the Act. The verification of the petition, the affidavit in support of the petition and the affidavit of service have been sworn in accordance with the law.

13. Submits that the preliminary objections raised by respondent No.1 are false and frivolous. Respondent No.1 is guilty of failure to disclose his assets. Indeed, he has concealed the detail of his bank accounts. He has filed a false affidavit along with his nomination paper. He has, therefore, violated the law as laid down by the Hon'ble Supreme in the judgment reported as "Speaker National Assembly of Pakistan, Islamabad and others v. Habib Akram and others" (PLD 2018 Supreme Court 678), in that, he has failed to give a statement of his assets and liabilities and of his spouse and dependent children as envisaged by section 60(2) of the Act. Reiterates that respondent No.1 has given a false affidavit in support of the nomination form.

14. Further submits that Mr. Hassan Ijaz Cheema, Advocate, is one of the counsel for the petitioner. He knows the petitioner, therefore, he identified the petitioner to the Oath Commissioner. Hence, the mentioning of the learned counsel's name.

15. Further submits that respondent No.1 has admitted that he has not disclosed the assets of his spouse in his nomination paper by stating in his written statement that the omission was due to a mistaken impression and bona fide mistake. Submits that it is a simplistic answer. The concealment is apparent on the face of the record. The petitioner's declaration of assets filed along with his nomination paper was, therefore, false. The petitioner has violated the Constitution and the Act and the law as laid down by the Hon'ble Supreme Court in the "Speaker National Assembly of Pakistan's case (supra).

16. Further submits that the election of respondent No.1 suffer from corrupt practices, therefore, it is liable to be declared as void.

17. Further submits that, in any event, on the basis of the above information the Tribunal is empowered to take action against the petitioner under Section 165 of the Act.

18. Submits that, without prejudice to the above, the petitioner has filed the petition in accordance with the manner prescribed in Sections 142, 143 and 144 of the Act. Further submits that it was only after this Tribunal was satisfied that the said procedure had been complied with, that notices were issued to the respondents.

19. Further submits that the objections being raised by the learned counsel for respondent No.1 relate to the merits of the case and are not in the nature of preliminary objections. Denies that any interpolation has taken place in the process of verification of the petition and/or the verification of the affidavit in support of the petition or that the date has been changed on page 520 of the paper book.

20. Further submits that, in any event, the issues raised through the preliminary objections cannot be determined without recording of evidence. These issues may, therefore, be resolved at the time of recording of evidence in the main trial.

21. I have considered the arguments of the learned counsel for the parties and have also gone through the record with their able assistance. It is settled law that verification of an election petition as envisaged by Section 144(4) of the Act is to be done in accordance with the procedure as laid down in Order VI, Rule 15 of the C.P.C. The object of the whole exercise is to ensure that false and frivolous allegations are not made in election petitions. And the person making the allegations assumes the responsibility in respect thereof. Lt.-Col.(Rtd.) Ghazanfar Abbas Shah's case (supra) and Sultan Mahmood Hinjra's case (supra), as cited by the learned counsel for the petitioner, and the .judgments reported as "Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi and others" (2016 SCMR 750) refer.

22. Section 145 of the Act envisages that an election petition has to conform to the provisions of Sections 142, 143 and 144 of the Act. If any of the provisions of the said sections has not been complied with the petition merits summary rejection. One of such requirements is the verification of the petition in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. The said requirement is contained in Section 144(4) of the Act and is mandatory, as has been held in "Lt.-Col. (Rtd.) Ghazanfar Abbas Shah's case (supra).

23. The learned counsel for the petitioner has tried to maintain that since initially no questions were asked by the Tribunal in respect of the maintainability of the petition, therefore, the petition would be deemed to have been filed in accordance with the provisions of section 145 read with sections 142 to 144 of the Act. The said argument does not come to the aid of the petitioner, as through the order, dated 24.09.2018, notices were issued to the respondents, subject to the question of maintainability of the petition, moreover, in "Lt.-Col. (Rtd) Ghazanfar Abbas Shah's case (supra) in Paras 7 and 8 it has inter alia been held that:-- "It is also relevant to note here that in an ordinary lis (suit etc.) requiring verification and support by an affidavit, if the verification or affidavit is flawed, such lapse may be considered an irregularity and be treated as a curable defect, but we are not laying down any hard and fast rule, because the matter before us is not pertaining to ordinary litigation, however in the case of an election petition the law is very stringent and imperative. Therefore, if the election petition has not been verified in accordance with law, this cannot be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, cannot permit the election petitioner to cure the same." "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 this the election petition shall be liable to be, inter alia, dismissed on the above score."

24. In view thereof the preliminary objections raised by the learned counsel for respondent No.1 are required to be decided before proceeding with the trial of the petition on merits, as the preliminary objections relate to the alleged flaws/defects in the verification of the petition and / or the affidavit in support of the petition.

25. Contrary to what has been argued by the learned counsel for the petitioner, the question, whether the verification of the petition or the affidavit in support of the petition is in accordance with the law or not, is a question which does not require recording of evidence for its determination, as the question of the proper consideration of a document is a question of law and not of fact. Reliance in this respect is placed on the judgments reported as "Gulzar Khan v. Shahzad Bibi and another" (PLJ 1974 SC 179), "Amir Abdullah Khan through Legal Heirs and others v. Col. Muhammad Attaullah Khan "(PLD 1990 SC 972) and "Mst. Maryam Bibi and others v. Muhammad Ali through L.Rs. (2007 SCMR 281).

26. I first of all take up the objections of respondent No.1 raised in respect of the verification of the petition and the reply thereto by the petitioner. The verification of the petition appears at page 18 of the paper book. For ease of reference the scanned copy of page 18 is being reproduced hereunder:-

27. As will be clear, the verification clause is typed/printed. It is followed by the petitioner's signature as deponent. The signature of the petitioner is attested by the Oath Commissioner with the date mentioned therein. The verification clause is followed by the typed/printed words, "Identified by me Mr. Hassan Ijaz Cheema Advocate High Court," However, the said words are not supported by the said learned counsel's signature nor his full particulars are mentioned therein. The verification clause is then followed by the typed/printed certificate of the Oath Commissioner. It has been signed by the Oath Commissioner. Underneath the Oath Commissioner's certificate a certificate has been given by the counsel for the petitioner to the effect that it is the first petition on the subject before this Tribunal. The said certificate appears to have been signed by an Advocate but the name and / or particulars of the Advocate have not been given.

28. At the bottom of the page a rubber stamp has been affixed by the Oath Commissioner. The blank spaces in the rubber stamp have been filled in the writing of the Oath Commissioner. In the space left out for filling the name of the identifier the following endorsement is present:- "Hassan Ijaz Cheema/ Self" Underneath the said stamp the Oath Commissioner has affixed a stamp bearing his particulars and has also put his signatures.

29. It is apparent to the naked eye that the name "Hassan Ijaz Cheema" appears to have been inserted in the blank space reserved for the name of the identifier in handwriting which is different from the handwriting used for the other endorsements in the above mentioned stamp. Moreover, the pen and the ink which has been used for the said purpose also appear to be different.

30. I, therefore, tend to agree with the learned counsel for respondent No.1 that the verification of the petition appears to be the result of interpolation.

31. However, in case I accept the arguments of the learned counsel for the petitioner that there is no interpolation in the verification process, even then the case of the petitioner is not advanced. The reason being that the mere fact that the name of an Advocate ("Hassan Ijaz Cheema") has been entered in the above stamp as the identifier of the deponent/petitioner followed by a forward slash ("/") and the endorsement of "Self" by the Oath Commissioner as the identifier, makes the document ambiguous. Or in other words there is a patent ambiguity in the endorsements made. It is settled law that when the deed or document in question contains ungrammatical language and cannot be read literally so as to give a clear meaning without adding or removing some words then the document shall be said to he suffering from a patent ambiguity and oral evidence is not admissible to cure the defect. Reliance in this respect is placed on the maxim ambiguitas verborum patens nulla verificatione excluditur (that which is patently ambiguous on its face cannot be made clear by external proof).

32. In view of the above, the above patent ambiguity renders the attestation/certificate of the Oath Commissioner in respect of the verification void for uncertainty.

33. It is further observed that, under the law as laid down by the Hon'ble Supreme Court, through the afore-referred 'judgments, the Oath Commissioner at the time of verification of the election petition must take care that he records and endorses the verification/attestation in the manner that he states that the oath has been actually, physically and duly administered to the election petitioner / deponent and additionally the full particulars of the person who has identified the election petitioner/ deponent to the Oath Commissioner are also to be mentioned in the verification.

34. In the instant case, as is apparent from page 18, the Oath Commissioner has not given the full particulars of Mr. Hassan Ijaz Cheema Advocate, who is stated to have identified the petitioner to the Oath Commissioner. Moreover, there is no endorsement to the effect as to how the Oath Commissioner claims to know the said learned counsel or to the effect that he has either examined the CNIC of the learned counsel or his Bar Council/Association Identity Card.

35. In view of the above I am constrained to hold that the verification of the petition was not made in accordance with the law.

36. Having held that the petition has not been verified in accordance with the law, it is now proposed to consider if the affidavit filed in support of the petition would suffice, in absence of the verification, to render the petition maintainable. For this purpose page 31 of the paper book, the scanned copy whereof is being reproduced hereunder is of relevance:-

37. It has been held in "Lt.-Col.(Rtd.) Ghazanfar Abbas Shah's case (supra) that an affidavit in support of an election petition in order to be accepted to have been duly sworn in accordance with the law has to conform to the following requirements:-- "From the High Court Rules and Orders reproduced in the preceding para, it is clear to our mind that an affidavit has to meet the following requisites:

1. Identification of deponent (Rule 11)

2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)

3. Time and place of the making of the affidavit to be specified (Rule 11)

4. Certification by Court/Magistrate/Other Officer at the foot of the affidavit that such affidavit was made before him (Rule 12)

5. Date, signature and name of the office and designation of the Court/Magistrate/Other Officer to be subscribed underneath the Certification (Rule 12)

6. Every exhibit referred to in the affidavit to be dated and initialed by the Court/Magistrate/Other Officer (Rule 12)

7. Where deponent of an affidavit does not understand the contents of an affidavit, the Court/Magistrate/Other officer administering oath must read out the contents of an affidavit to such person so that he understands. Where such is the case, the Court/Magistrate/Other officer shall note at the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents (Rule 14)

8. Deponent to sign/mark and verify the affidavit and the Court Magistrate or other officer administering the oath or affirmation to attest the affidavit (Rule 15)

9. Oath to be administered by the Court/Magistrate/Other officer in accordance with the Oaths Act, 1878 and affidavit to be verified by deponent and attested by Court/Magistrate/Other officer on forms appended thereto (Rule 16)"

38. A perusal of the scanned copy of the affidavit in the light of the above rule of law establishes two things. Firstly, the verification of the affidavit suffers from the same defects as the verification of the election petition. Moreover, the rubber stamp of the Oath Commissioner has been superimposed/affixed upon the typed/printed certificate at the bottom of the page, therefore, the rubber stamp for all intents and purposes has superseded the typed/printed certificate. There is, however, one difference in the verification, that is to say, the identifier, an Advocate, has signed the statement to the effect that he has identified the deponent to the Oath Commissioner. However, the requisite details of the identifier, including his CNIC and / or Bar Council/Association Identity Card are missing. And secondly, the time of making of the affidavit has not been specified in the verification/certificate portion of the affidavit. Item 3 in para 37 above refers.

39. I am, therefore, constrained to hold that the affidavit in support of the petition not only suffers from the legal flaws and defects as the verification of the election petition but also that the affidavit has not been sworn in accordance with the rules as laid down in Lt.-Col. (Rtd.) Ghazanfar Abbas Shah's case (supra). 40 There is another aspect of the case and that is the legality of the affidavit of service filed by the petitioner under Section 144(2)(c) of the Act. For ease of reference a scanned copy of the affidavit of service is being reproduced hereunder:-

41. As will be evident, the affidavit of service has not been verified in accordance with the principles of law mentioned hereinabove. At the risk of repetition, it is observed that the time of making the affidavit has not been specified nor are the requisite details of the learned counsel who identified the petitioner/deponent to the Oath Commissioner including the counsel's CNIC and / or Bar Council/Association Identity Card have not been mentioned in the verification portion of the affidavit. Moreover, the Oath Commissioner has not signed the typed / printed certificate to the effect that the affidavit was made before him and that the learned counsel's named therein identified the petitioner/deponent to him. The Oath Commissioner has instead affixed his rubber stamp at the bottom of the page and signed it. The Oath Commissioner has, however, not mentioned the name of the identifier in the rubber stamp. Since the typed/printed certificate has not been signed by the Oath Commissioner, therefore, the rubber stamp signed by the Oath Commissioner shall have to be considered but as said above the name of the identifier has not been mentioned therein.

42. In view thereof I am constrained to hold that the affidavit of service has not been made in accordance with the law. The petition, therefore, cannot be said to have been filed after complying with the provisions of section 144(2)(c) of the Act.

43. Under the circumstances, it is held that the instant election petition has not been filed in compliance with the mandatory provisions of Section 144 of the Elections Act, 2017. It is, therefore, not maintainable and is thus liable to be dismissed.

44. Before parting with the judgment, I would like to address the contention of the learned counsel for the petitioner to the effect that since respondent No.1 has conceded that he has not declared his assets/accounts required under the law, albeit due to a bona fide omission, therefore, respondent No.1 is liable to be proceeded against under Section 165 of the Act, suffice it to say that, since the petition is not maintainable the said objections cannot be entertained as they relate to the merits of the petition.

45. Dismissed. MWA/M-90/L Petition dismissed.