2025 PLP 1644 (CLC)

SULTAN TANVIR AHMAD, J.

The election-petitioner has challenged the election held on 08.02.2024 in PP-167 Lahore-XXIII, inter cilia, on the grounds that while consolidating the result, forms-45 issued to the polling agents have been discarded with ulterior motives and corrupt practices took place on the polling day. It has been prayed to set-aside the gazette notification of the given constituency. Some alternate relief is also sought.

2. Mr. Waqas Ahmad Mir, learned counsel for respondent No. 1 / returned candidate has raised preliminary objections regarding the defects in the verification of the election petition. He has argued that verification is not in accordance with section 144 of the Elections Act,2017 (the 'Act'), which requires that an election petition and its annexures shall be signed by the election-petitioner and the election petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (the 'Code') for the verification of pleadings. Further submitted that valid affidavit of service is not attached with the election petition which is again a mandatory requirement. He stated that section 144(2)(c) of the Act requires that affidavit of service must be attached with the election petition verifying that a copy of petition along with copies of all annexures including list of witnesses, affidavits and documentary evidence shall be sent to all the respondents by registered post or courier service. It is argued that respondent No. 1 was not served with a copy of petition in proper form, with all annexures. The objections are vehemently opposed by Mr. Waqas Mushtaaq Toor, the learned counsel for the election-petitioner. He states that once a notice is issued, the election petition cannot be rejected for non-compliance of law.

3. In order to properly appreciate the arguments of both sides, it is appropriate to first have a look at the relevant provision of the Act. Subsection (4) of section 144 of the Act reads as under:- "(4) An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings." (Emphasis supplied) The requirements, given in sections 142 to 144 of the Act for presentation of election petition, impleading parties to such petition and the contents of the election petition to challenge election in any constituency, are followed by section 145(1) of the Act which requires rejection of the election petition if aforesaid provisions are not complied with. The same reads as under:- "

145. Procedure before the Election Tribunal.- (1) If any provision of section 142, 143 or 144 has not been complied with, the Election Tribunal shall summarily reject the election petition." (Emphasis supplied)

4. The above reproduced provision as well as the identical provision in Representation of People Act, 1976 have been repeatedly interpreted by the Honourable Supreme Court of Pakistan in a number of judgments. In the said judgments principles of law have been enunciated which are bindings on this Tribunal, under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. In case titled "Sultan Mahmood Hinjra v. Malik, Ghulam Mustafa Khar and others" (2016 SCMR 1312) the Honourable Supreme Court of Pakistan has clearly observed that the details of the person identifying the election-petitioner must be mentioned in accordance with the provisions of law and the oath commissioner is bound to specify, at the foot of the affidavit, name of the person by whom the identification of the deponent was made and in this regard certificate has to be appended. The relevant extract reads as follows:- "...Secondly, it has not been specified whether the Respondent No. 1 was duly identified before the Oath Commissioner. In this regard, it has simply been stated at the foot of the affidavit that the Respondent No. 1 was present before the Oath Commissioner in person, however, the details of the person identifying the Respondent No. 1 have not been mentioned whereas according to the above quoted provisions, the Oath Commissioner is bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate has to be appended. Furthermore, it is also not clear from the affidavit that the Respondent No. 1 was identified with reference to his ID card and in this regard, no ID card number is given, as such the identification does not seem to have been made..." (Underlining is added)

5. A learned Tribunal in case titled "Abdul Wahab Baloch v. Imran Ahmad Khan Niazi and others" (PLD 2019 Lahore 119) after keeping in view the entire judgments of the Honourable Supreme Court of Pakistan, on the point under discussion, reached to the following conclusion:- "

8. The above survey of case law indicates the following principles qua valid verification of election petition: i) that election petition is to be verified on oath. Such verification is not to be signed in routine by the deponent but being on oath it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath, which is to be practically administered; ii) that verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory; iii) that there is no material difference between a verification on oath and a verification through an affidavit for, that is an affidavit is a sworn statement in writing while a verification is confirmation in law by Oath in writing to establish the truth, accuracy and reality of a statement of fact; iv) the purpose of taking oath is to bind down the deponent to speak truth otherwise he or she would be liable for the curse of Allah Almighty, if the truth is not spoken; v) that request for rectification of defective verification may be considered by the Tribunal according to the settled principle relating to amendment in the pleading during period of limitation for filing of election petition but once limitation period has already expired the defect in verification cannot be allowed to be removed; vi) that the objection that election petitioner in his verification has failed to give reference to the paragraphs of the pleadings as to what he happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true is not very material because at times the entire statement happens to be given on the basis of one's knowledge and at times on the basis of information received and, thus, it depends upon the facts of each case, as to what category assertions belong to; vii) that the amended election petition is also required to be verified in accordance with Order VI, Rule 15, C.P.C.; viii) that election petition is not required to be supported by a full affidavit. Short affidavit is sufficient if it duly fulfills the requirement of Order VI, Rule 15, C. P .C.; ix) that the words "solemn affirmation before me" in the stamp of the Oath Commissioner would be sufficient to indicate that election petitioner was duly present before the Oath Commissioner at the time of attestation and was administered oath; x) that identification of the deponent/election petitioner before Oath Commissioner should be made with reference to his/her National Identity Card; xi) that identification of the deponent/ election petitioner by an Advocate who has mentioned of knowing the election petitioner personally is sufficient for the purpose of identification before the Oath Commissioner; xii) that identification of the deponent by an Advocate, whose name and particulars are not mentioned on the verification, is not valid; xiii) that the date and place of verification, that is, at what date and at what place the verification was made by the deponent should be specified; xiv) That only that affidavit shall be treated valid for the purpose of verification of the election petition which is in conformity with the requirements mentioned in the High Court Rules and Orders read with Order XIX, C.P.C.; and, xv) that in order to meet with the real object and the spirit of the election laws which require verification on oath, Oath Commissioner at the time of verification of the election petition and also the affidavit, must record and endorse the verification/ attestation that the oath has been actually, physically and duly administered to the election petitioner/deponent; and it is the duty of election petitioner to insist and ensure that the said endorsement is made." (Emphasis supplied) In case titled "Lt.-Col (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585) it is settled that verification of an election petition is mandatory and a petition which lacks proper verification should be summarily dismissed by the Tribunal, even if the respondent has not asked or prayed for its dismissal. Comprehensive guideline was given by the Supreme Court of Pakistan as to the format and requirements of the verification and it is also settled that when an election petition is not verified in accordance with law, this cannot be treated as curable defect particularly after lapse of period of limitation prescribed for filing of election petition. The law in this regard has been made very clear in the Country, with the following observation:- " ..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)." (Underlining is added)

6. Learned counsel for respondent No. 1 has stated that the above discussed law has not been complied with. He referred to page number 12 of this petition, which is as under:-

7. The declaration given by the oath commissioner does not reveal if the election-petitioner is personally known to him. The identification is not with reference to his Computerized National Identity Card (CNIC). Learned counsel for the election-petitioner was asked to assist as to the identification part of the above declaration. He despite his earnest efforts could not give any answer as to the fact if the election-petitioner was personally known to the oath commissioner or he was identified by any learned Advocate.

8. There is yet, another aspect of the matter. There are eleven (11) affidavits attached with this election petition and all of them are in the printed form, leaving some blanks as to the names, polling stations and number of votes which were then filled by someone. Out of the said affidavits, eight are duplicate to each other. In case titled "Mir Mujib-ur Rehman Muhammad Hassani v. Returning Officer, PB-4I Washuk and others" (PLD 2020 Supreme Court 718) the Supreme Court of Pakistan observed that full particulars of any corrupt or illegal practices are required to be given by the petitioner, including the details as to date and place of commission of such acts of illegal practices together with documentary evidence in support of such allegations and when ex facie it is shown that the affidavits relied were all identical and duplicate of allegations, election petition is rendered entirely deficient by virtue of section 144 of the Act. Paragraph No. 23 of the said judgment reads as under:- "

23. The record shows that the allegations and insinuations made by the Appellant in his election petition were deficient in many respects. Section 144 of the Act provides for the contents of an election petition, the documents that must be attached with it, and the relief that can be claimed by the Appellant. In this respect, it is clear that the Appellant is required to provide the full particulars of any corrupt or illegal practices alleged by him to have taken place, the names and other details of the individuals he believes to be responsible for such practices, and the date and place of the commission of such practices or acts together with documentary evidence in support of such allegations. The Appellant has abysmally failed to provide these details. While the record shows that the Appellant did annex sixteen affidavits-in-evidence in support of his application, perusal of these affidavits ex facie shows that they are all identical and a duplicate of allegations made and details provided by the Appellant in every one of them. As a result, the Appellant's election petition is rendered entirely deficient by virtue of section 144 of the Act." (Emphasis supplied)

9. At this juncture, learned counsel for the election-petitioner has argued that once a notice has been issued in the election petition, the same cannot be rejected on account of failure to fulfill the above discussed law. This Court in case titled "Col. (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others"(PLD 2023 Lahore 458) has already held that above provision contemplates that if any provision contained in sections 142 to 144 of the Act is not complied with, this Tribunal cannot wait till the culmination of the proceedings through regular trial and it is mandate of law to reject the plaint.

10. Crux of above discussion is that the election petition is deficient in many respects, therefore, the same is rejected under section 145(1) of the Act. No order as to cost. UN/A-63/L Petition rejected.