1999 PLP 441 (CLC)

These two miscellaneous applications in the two Election Petitions were heard together as the facts and circumstances of both these miscellaneous applications are similar and common and, therefore, the same are being disposed of by this common order. These miscellaneous applications have been moved on behalf of respondent No. l in Election Petition No. 32 of 1997 and. respondent No. 3 in Election Petition No. 115 of 1997, who is one of the successful candidates and, therefore, interested in contesting these election petitions against him. The prayer in these applications is that since the petitioner had not complied with the mandatory requirement of the provisions of section 63 of the Representation of People Act, 1976, inasmuch as the names and Particulars of the witnesses and their affidavits were not filed alongwith the petition, the petition should be dismissed at this early stage without proceeding further. While objecting to this prayer of respondent No.1, the petitioner filed the objections to the effect that the spirit of law required decision on merits rather than hyper technicalities like the one for which the prayer was for the rejection of the petition. The arguments of the learned counsel for the parries were heard in detail. Mr. Ghulam Murtaza, who had moved these applications laid much stress on the fact that the petition was not verified on oath and, therefore, it could not be entertained. The learned counsel for the petitioner, however, brought to the notice of the Court the contents with regard to the verification and pointed out that it bore the endorsement and signature of Muhammad Shahabuddin, Advocate, Oath Commissioner, who had put his signatures as "Commissioner for taking affidavits" and further pleaded that section 63 of the People Representations Act, 1976 depends on sections 54 and 55 of the same Act for passing the orders for dismissal of the Election Petition. Section 54 merely provides mentioning of the names of the contesting candidates to be joined as respondents and any other candidate against whom any allegation of corrupt or illegal practice is alleged. This section is, therefore, not applicable as regards the present application, as no such ground is taken by the respondent No. l in this application. Section 55 is, however, attracted as in subsection (3) of section 55 it is required that the election petition should be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure as required for verification of pleadings. The relevant provision of Code of Civil Procedure is Order 6, Rule, 15, which as amended by Ordinance XII of 1972 requires that the pleadings should be verified on oath or solemn affirmation by the party. The verification in the present election petition is clearly mentioned as verified on solemn affirmation, but at the same time an Oath Commissioner has attested the same. The Oath Commissioner, who has put his stamp, name and date, presumably acted as Oath Commissioner, must have administered the oath as otherwise he had no business to put his stamp on the said verification. Not only this, but the learned counsel for the respondent No.3 has not expressly taken the ground in this miscellaneous application that the oath was not administered to the petitioner. In absence of such express and clear ground having not been taken in this miscellaneous application and the appearance of the Oath Commissioner endorsement on the verification, it cannot, be said at this stage without recording of evidence, that the verification was not on oath. The other ground, which is expressly taken in the miscellaneous application for dismissing the petition is that the names and particulars of the witnesses and their affidavits have not been filed as required by section 55 of the Representation of People Act. Learned counsel for the respondent No.3 has relied on Notification No.F‑1(7)‑85 Cord., dated 16‑3‑1985, issued by the Election Commission of Pakistan in support of his arguments. This notification is promulgated by the Election Commission under section 62 of the Representation of People Act, 1976. which provides for laying down of the procedure for deciding the Election Petitions while section 63 of the said Act specifically lays down that the election petition should be dismissed:‑‑

(a) If the provisions of section 54 or 55 have not been complied with, or (b) If the petitioner fails to make the further deposit required under subsection (4) of section

62. In this case, it has not been pleaded that subsection (4) of section 62 is violated that the substance of this miscellaneous application is that the procedure laid down under subsection (1) of section 62 is violated. The Legislature has provided only subsection (4) of section 62 to be fatal for the petitioner in case he has violated the same but not other provision of section 62 of the Act. Therefore, in my view even if there is violation of the procedure as laid down by this Notification, which is a matter of procedure, the election petition will not be hit by provisions of section 63 of the Representation of People Act, which is the only provision for dismissal of the petition under the Act during the trial before passing final judgment on the same. No doubt, the Notification in question is sub‑legislation of the commission, as required by section 62, but since it does not carry the penal consequences in shape of dismissal of election petition for non‑compliance of such procedure as laid down by this Notification, I do not think that an election petition could be dismissed at any stage before passing a final judgment, on account of violation of a provision of this Notification. In support of my above view, I am supported by an unreported order of an Election Tribunal headed by Justice Salahuddin Mirza, as he then was in Election Petition No.95 of 1993 passed on 20th April, 1994. In addition to his arguments, opposing this application, counsel for the petitioner had stated that the petitioner will examine himself and some documents from the office of the Returning Officer. In addition to what has been stated above, the stage of the petition is recording of the evidence as the issues had been framed already by the Court and a part of one of such issues is whether the petition is not in proper form and what was its effect. Therefore, I am clear in my mind that this miscellaneous application cannot be allowed to shut the doors for the petitioner to proceed further in this petition for the technical lacunas, if any, as suggested by the respondent in this miscellaneous application. Consequently, this miscellaneous application is dismissed. Q.M.H./175/E Application dismissed.