2004 PLP 914 (CLC)

3. It may also be noted that in some of the cases some evidence has also been recorded and issues were also framed as to the effect of non compliance of the provisions of sections 54 and

55. I, therefore, decided to hear all the learned counsel on the two questions firstly whether the provisions of sections 54 and 55 were mandatory particularly with regard to the verification of an election petition, whether defective verification was capable of rectification and, whether the procedure prescribed by notification dated 17‑3‑1985 was mandatory.

4. On behalf of the returned candidates Messrs Dr. Khalid Ranjha, Malik Noor Muhammad Awan, Syed Zain‑ul‑Abiddin, Syed Mohsin Abbas, Mr. Azmat Saeed, Mr. M. Ajmal Khan and Mr. M. Akbar Shad and Mian Abdul Quddous, Advocates made submissions.

5. On behalf of the petitioners, Rana Muhammad Arif, Ch. Bashir Ahmad, Mr. Fawad Hussain Chaudhry, Ch. Ghulam Sabir, Mr. Nazir Ahmad Ghazi, Mr. Sulman Makhdoom Tipu, Mr. Ejaz Feroze, Mr. Ahmad Awais and Ch. Manzoor Hussain, Advocates, made submissions. Petitioner in Election Petition No.111 of 2002 appeared in person and made submissions while nobody appeared in Election Petition No.151 of 2002 on any of the dates on which these cases were heard. The submission made on behalf of the returned candidates and the petitioners are being noted hereunder.

6. On behalf of the returned candidates reliance is placed on section 63 of Act No.LXXXV to contend that non‑compliance of the provisions of sections 54 and 55, entails the penalty of dismissal of an election petition. According to subsection (3) of section 55 of Act LXXXV of 1976 every election petition and every schedule and annex to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of the pleading. It is being maintained that verification of a pleading is required to be made on oath or solemn affirmation at the foot by the party is required by sub‑rule (1) of rule 15 of Order VI of the Code of Civil Procedure while according to sub‑rule (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 received and believed to be true. It is maintained that although the Code of Civil Procedure does not entail any penal consequence of non‑compliance of the provisions of rule 15 of Order VI of the said Code yet by virtue of section 63 of Act No.LXXXV of 1976, non‑compliance of the provision as to verification of a petition and every schedule or annex has been declared as mandatory.

7. In support of this submission the learned counsel for the returned candidates have placed reliance on a recent judgment of the Election Tribunal (Punjab) in Mst. Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896. In the said judgment, after surveying the case‑law exhaustively, my learned brother Sayed Zahid Hussain, J. reached the conclusion that verification of an election petition not with reference to the numbered paragraphs, and not attested by a duly authorized person even if it was accompanied with a separate affidavit did not comply with the requirements of rule 15 of Order VI of the Code of Civil Procedure the provisions of section 55(3) being mandatory, the Election Tribunal had no choice and an election petition was liable to be dismissed. Reliance was also placed on the order, dated 22‑9‑2003 passed by me in Election Petition No.55 of 2002 whereby the election petition was dismissed for non‑compliance of the provisions of section 55(3). It may be noted that in the said case (E.P.No.55 of 2002) there was no verification at all at the foot of the election petition but was verified with a separate affidavit and it was sought to be argued by the learned counsel for the petitioner in the said case that a separate affidavit was substantial compliance of the provisions of section 55(3). In addition to the aforesaid judgments reliance was placed on Engineer Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others 2000 SCMR 250, Sheikh Mushtaq Ali, Advocate v. Khalid Anwar 1999 MLD 1533, Muhammad Azad Gul v. Said Muneer Said and 11 others 1997 CLC 1132, Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1999 CLC 83 and Syed Iftikhar Hussain Gilani v. Anwar Kamal Khan and 3 others 1997 CLC 1724.

8. In accordance with section 62 of Act LXXXV of 1976 an election petition is to be tried in accordance with the procedure laid down by the Election Commission. In pursuance of the aforesaid provision, the learned Election Commission of Pakistan issued the Notification which was published in the official Gazette on 17‑3‑1985. According to the procedure prescribed therein every election petition is to be filed with the Secretary Election Commission of Pakistan in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and affidavits annexed to the petition have been supplied to the respondent. Para. 2 of these instructions provides that the election petition shall be processed by the Secretary, Election Commission and in case the petition is not in accordance with the procedure laid down it shall not be entertained and the petitioner shall be informed accordingly. If the petition is found to be in order, the Secretary shall fix the date of hearing, notice of which is to be published through the Press, Radio and Television which shall be deemed to be a valid notice and no personal notice shall be necessary unless the Tribunal feels necessary to do so. Paragraph 3 provides that on receipt of the notice of the petition, the respondent shall file written statement within seven days together with all the documents relied upon him and the affidavits of the witnesses as are desired to be produced. On the basis of the aforesaid notification it is being maintained by the learned counsel for the returned candidates that the election petitions which were not accompanied with the list of witnesses or their affidavits could not be entertained and were liable to be dismissed. The precise contention is that since the aforesaid notification specifically provides for submission of the list of witnesses and their affidavits, the powers of the Election Tribunal as provided in section 64 of Act No.LXXXV of 1976 stand abridged. In support of this submission, reliance is being placed on Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others 1990 CLC 595, Syed Zafar Ali Shah v. Muhammad Nawaz Khokhar PLD 1986 Journal 160; Mrs. Rehana Hussain Mullick v. Sahibzadi Mahmooda Begum and another 1986 MLD 2707, Lt.‑Col. (Retd.) J. Abel v. Returning Officer and 34 others 1987 MLD 1372, Maulvi Abdur Rahim v. Shahzada Mohayuddin 1987 MLD 2460, Mahr Zafar Ahmad Haraj v. Dr. Khawar Ali Shah 1988 CLC 1289, Ihrar Khattak v. Mian Muzaffar Shah and others 1991 CLC 175, Dr. Abdul Hayee v. Mir Yar Muhammad Rind and others 1993 CLC 1090 and Jam Mashooq Ali v. Shahnawaz Junejo 1996 SCMR 426.

9. On the other hand, the learned counsel for the petitioners maintained that defect of verification pertains to matter of procedure and, therefore, it is capable of rectification. They are relying on the provisions of section 64 of Act No.LXXXV of 1976 to contend that the Election Tribunal has all the powers of a Civil Court and. it has even inherent powers to permit removal of defect in the form of an election petition, notwithstanding the provisions of section

63. It has vehemently been argue that under rule 15 of Order VI of the Code of Civil Procedure, ere is no express requirement that the oath shall be attested by a duly authorized person. With reference to the case of Engineer Iqbal Zafar Jhagra (supra) it is maintained that the rule laid down therein was with reference to section 139 of the C.P.C. which provides for attestation of an affidavit and not attestation of verification of an election petition by a duly authorized person. Reliance was placed on the order, dated 16‑10‑2003 passed by the Election Tribunal (Punjab) (My learned brother Mian Hamid Farooq, J) in Election Petition No.105 of 2002 according to which the petitioner in the said case was allowed to amend the election petition by rectifying the defect of non‑attestation of the verification by the Oath Commissioner. It may also be noted that in the said case, the judgment, of this Court Raja Abid Hussain and another v. Sardar Muhammad Rana and 12 others 2000 YLR 3148, according to which attestation of verification by the Oath Commissioner was not required was also referred. Reliance was also placed on the order, dated 9‑6‑2003 passed in E.P. No.50 of 2002 by my learned brother Rustam Ali Malik, J. This pertained to non‑verification of the schedule and the annexes which was allowed. Reliance was also placed on H. Amanullah Khan v. Sahibzada Tariqullah 1997 MLD 612, a judgment of the learned Election Tribunal N.‑W.F.P. according to which defect in verification was held to be curable. Haji Aziz‑ur‑Rehman Chan v. Mian Abbas Sharif and another 1994 MLD 2293 was also referred to contend that composite verification of an election petition met the requirement of section 55(3) of Act No.LXXXV of 1976. Reliance was also placed on Abdul Nasir and another v. Election Tribunal, T.T. Singh and others PLJ 2003 SC 934 to contend that defective verification of an election petition was not fatal.

10. As far as the procedure prescribed by the Election Commission of Pakistan is concerned, the contention was that the aforesaid procedure is directory and the only consequence of non‑compliance as given in para. 2 of the said notification dated 17‑3‑1985 is that an election petition is not to be entertained and the petitioner informed accordingly. The contention is that once the Election Commission entrusts a petition for trial to an Election Tribunal, the defect in procedure shall be deemed to have been condoned by the Election Commission, the author of the notification dated 17‑3‑1985. It is being further contended that since an Election Tribunal has all the power of a Civil Court under section 64, a subordinate legislation could not curtail those powers. In support of the submission that the procedure prescribed vide notification dated 17‑3‑1985 was regulatory and directory reliance was placed on Ihsanul Haq v. Dr. Saddique Hussain and another 1995 CLC 382 and Rai Asghar Ali Khan v. Returning Officer and others PLJ 1999 Lah. 632.

11. As to the verification of the schedule and annexes the contention on behalf of the petitioners is that reference to schedule and annexes in section 55 of Act LXXXV of 1976 is to those documents which contain additional information and grounds to challenge the election and in case the documents filed with the petition are copies of the documents of public record to support the election petition no verification would be required. Reliance was placed on S.M. Ayub v. Syed Yusuf Shah and others PLD 1967 SC 486.

12. In Election Petition No.111 of 2002 the petitioner personally appeared and submitted that amendment in the pleadings for the purpose of removal of defect of form is to be liberally allowed. It was further contended that defect in verification is only a procedural matter and the technicalities should .not be allowed to defeat the ends of justice. He relied on Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC

678. It was further contended that the issue whether the petition is not maintainable for want of proper verification should be decided at the conclusion of the trial. Reliance was placed on the order, dated 1‑7‑2003 of a Division Bench of this Court whereby Writ Petition No.8873 of 2003 directed against an order of Election Tribunal not to treat an issue as preliminary was dismissed. Reliance was also placed on Abdul Latif v. Additional District Judge/Election Tribunal/M.C. Arifwala 2000 YLR 946 a judgment of this Court in Constitutional jurisdiction according to which the defect in verification was not considered to be fatal. Reliance was also placed on Haji Amanullah Khan v. Sahibzada Tariqullah and 2 others 1995 CLC 158.

13. On the question of attestation of verification by the Oath Commissioner, Engineer Jameel Ahmad contended that some declarations in the nomination papers are required to be made on oath but no nomination paper has ever been rejected for want of attestation of the oath or the declarations therein by a duly authorized person. He also relied on Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, Mir Mazar v. Azim PLD 1993 SC 332, Munir Ahmad and 7 others v. Additional District Judge, Kasur and 14 others PLD 2001 Lah. 149 and Meraj Din v. Safdar Khan and 4 others 2003 CLC 1841.

14. I have considered the submissions made by the learned counsel for the parties and the petitioner in E.P. No.111 of 2002. It has not been disputed that provisions of section 55(3) of Act LXXXV of 1976 are mandatory. This aspect of the matter was elaborately dealt with by my learned brother Syed Zahid Hussain, J. It is also being contended that a composite verification on oath at the foot of the election petition, even if not attested or verified by duly authorized person, is substantial compliance of the provisions of section 55(3) of Act No.LXXXV of 1976.

15. The requisites of a valid verification, according to rule 15 of Order VI of the Code of Civil Procedure are:‑‑ (a) should be at the foot of the election petition on oath or solemn affirmation; (b) 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 received and believed to be true; (c) the verification shall be signed by person making it.

16. It is vehemently argued that there is no express requirement of rule 15 of Order VI of the Code of Civil Procedure for attestation of verification of an election petition by an Oath Commissioner or a person duly authorized in this behalf. It was also asserted that a plaint is required to be verified on oath and no plaint has ever been rejected on the ground that the verification of a plaint was not attested by a person duly authorized. The rule laid down in the case, of Engineer Iqbal Zafar Jhaghra was tried, to be distinguished.

17. The provisions of section 36(3) of the Senate Election Act (No.LI), 1975, which are in para materia with section 55(3) of Act No.LXXXV of 1976, came under consideration of the learned Peshawar High Court in the case of Syed Iftikhar Hussain Gillani (supra) and the view taken was that provisions of section 36(3) were mandatory, an oath or solemn affirmation was required to be made before a person authorized under the law to administer oath or affirmation and therefore, non‑compliance of section 36(3) entails penal consequence. Accordingly, the election petition was dismissed. The matter was then taken to the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhaghra (supra) and the judgment of the learned Peshawar High Court was affirmed with the following observations:‑‑ "Subsection (3) of section 36 ibid clearly requires that every petition and every schedule or annexures shall be signed by the, petitioner and verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. The verification of pleadings has been provided under Order 6, 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 authorised in that behalf. It is an admitted position that the petition filed by Syed Iftikhar 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."

18. The aforesaid judgment was followed by the learned Election Tribunal of Punjab in the case of Asif Nawaz Fatayana (supra). I also happened to examine the issue in Election Petition No.55 of 2002. In the said case there was no verification at all at the foot of the election petition. I, therefore, considered it necessary to hear all the learned counsel for the petitioners to further examine the matter as to the effect of verification of an election petition not being attested by a duly authorized person.

19. Oaths are administered under Oaths Act (X) of 1873. Section 3 of the said Act provides as follows:‑‑ "

3. Saving of certain oaths and affirmation. Nothing herein contained applies to proceedings before Courts Martial, or to oaths, affirmations or declarations prescribed by or under any law President's warrants or for the time being in force." Section 4 specifies the persons competent to administer oaths and affirmations while section 5 thereof identifies the persons who are bound to make oaths and affirmations. According to section 5 not only a witness but also a person who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence is bound to make an oath. Petitioner in an election petition is a person who could be lawfully examined or be required to give evidence before the Election Tribunal. Although on the first sight it appeared that the Oaths Act will not apply to oaths and affirmation or declarations prescribed by or under any other law and, therefore, the said Act will not apply to an oath or affirmation prescribed by rule 15 of Order VI of the Code of Civil Procedure. However, on a deeper examination it is clear that it is not only a witness who has to make an oath on affirmation but even a person who may be lawfully examined or give evidence is also bound to make oath or affirmation. Thus, the oath contemplated by rule 15 of Order VI of the Civil Procedure is governed by section 5 of the Oaths Act. It may also be observed that a person cannot administer oath to himself. The object of an oath is that there will be a super human retaliation in case of falsehood and the purpose of giving oath is to confront a party to the Almighty Allah. Therefore, somebody has to attest or affirm that the oath was made by the maker thereof. Section 139 of the Code of Civil Procedure refers to an affidavit but the heading of the section is "Oath on affidavit by whom to be administered", it is not an affidavit of a person which is required to be attested by person mentioned in section 139 of the Code of Civil Procedure. It is, in fact, attestation of the oath on the affidavit. However, in view of the rule categorically laid down by the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra (supra) with which I am respectfully bound there cannot be any scope for an argument before this Court that in the absence of specific requirement of rule 15 of Order VI of the Code of Civil Procedure verification of oath on an election petition is not required to be attested by a duly authorized person.

20. It may be observed that the requirement of rule 15 of Order VI of the Code of Civil Procedure is verification at the foot of the election petition and in the case of Muhammad Ibrahim (supra) the Election Tribunal (Punjab) held that even a separate affidavit filed with the election petition did not cure the defect. It was followed in the case of Asif Nawaz Fatyana (supra). I also followed the said rule in L.P. No.55 of 2002. This aspect has been reconsidered by me. "At the foot" of the election petition does not necessarily mean that it should be on the same page because in a case an election petition may be concluded on the last page without leaving any space for verification which has necessarily to be made on the next page. Therefore, could it be said that requirement of verification at the foot of the election petition has not been complied, with. The plain answer is in the negative. Verification of an election petition with an affidavit separately filed with an election petition could not be thrown out on the ground that it is not "at the foot" of the election petition. It may, however, be noted that the verification of an election petition to be valid has to be with reference to the numbered paragraphs I verified by the maker on the basis of his knowledge and the paragraphs which he verifies on the basis of information believed to be true. However, in the scheme of Code of Civil Procedure, defective verification does not entail any penal consequence. The Legislature was fully alive to this situation but nevertheless chose to prescribe a penal consequence clearly. The manner of verification prescribed in rule 15 of Order VI of the Code of Civil Procedure is also mandatory because if a law requires a particular thing to be done in a particular manner, it has to be done in the same manner otherwise the command of the Legislature is not obeyed. The question was examined in the case of Alam Zaib Khan (supra) by the learned Election Tribunal of N.‑W.F.P. In the said case the verification without reference to the numbered paragraphs was held to be fatal with the following observations:‑‑ "These provisions signify the importance of distinction between these two terms knowledge and belief (on information) to have been used with different purposes and with different intention and these are not mere words of art. The person making oath specify by reference to the numbered paragraphs of the petition that what he verifies of his own knowledge and what he verifies upon information received and by not doing so it would be fatal and the affidavit will not be a legal affidavit as the person making an oath would not incur any liability." (Underlining is mine). Therefore, I am of the view that in case a separate affidavit has been filed with an election petition verifying its contents which is duly attested by an authorized person and fulfills the requirements of rule 15 of Order VI of the Code of Civil Procedure, an election petition is not rendered defective thereby attracting section 63 of Act No.LXXXV of 1976.

21. In Election Petition No.105 of 2002 the rule laid down in the case of Engineer Iqbal Zafar Jhagra (supra) was followed to hold that the provisions of section 55(3) were mandatory. However, the learned Election Tribunal allowed the petitioner to amend the election petition and annexes thereof so far as these related to verification and attestation of the Oath Commissioner. With utmost respect I do not find myself in agreement with the view expressed in the said case because non compliance of a mandatory provision entails penal consequence and by condoning it, its mandatory nature stands diluted. There is ample authority that if a provision is mandatory, the Court has to give effect to it. This was the view taken by me while deciding Election Petition No.55 of 2002 vide order, dated 22‑9‑2003. Similar view was taken in the case of Asif Nawaz Fatayana (supra).

22. Reliance was also placed by the petitioners on the cases of Abdul Latif, Raja Abid Hussain and Abdul Nasir to contend that non- verification of the election petition as required by rule 15 of Order VI of the Code of Civil Procedure was not fatal. The aforesaid cases arose out, of the elections to the Local Bodies. Sub‑rule (3) of rule 5 of the Punjab Local Councils Election Petitions (Rules), 1979 contains exactly the same requirement which is prescribed by section 55(3) of Act No.LXXXV of 1976. However, according to section 9 of the said Rules, an election petition may be dismissed for non‑compliance of the provision of rule

5. Likewise, there is a similar requirement of rule 72(3) of the Punjab Local Government Election Rules, 2000 but again according to rule 77 thereof the Tribunal has the discretion to dismiss an election petition. Thus, in the aforesaid 1979 and 2000 Rules, the provision of verification of an election petition is directory and not mandatory.

23. In the order, dated 9‑6‑2003 passed in Election Petition No.50 of 2002 the annexes were found not to have been verified. The judgment of the Honourable Supreme Court in the case of Engineer Iqbal Zafar Jhagra was relied upon and the petitioner was allowed to amend the annexes/schedule to the extent of their verification. The said order does not show as to what was the nature of the annexes and schedule. The expression "schedule or annex" has not been defined in Act LXXXV of 1976. However, the same expression was used in the National and Provincial Assemblies (Election) Act (No. VII), of 1964 which came up under consideration of the Honourable Supreme Court in the case of S.M. Ayub (supra) and the view taken by the Honourable Supreme Court was that the expression only means an additional allegations of substantial character or which furnish better particulars. The question was also agitated in the case of Syed Iftikhar Hussain Gillani (supra). It was observed that if annexes to an election petition do not spell out any additional allegation of substantial character or furnish better particulars, an election petition cannot be thrown out. The observations of the Honourable Supreme Court in the case of S.M. Ayub (supra) were followed in the case of Ihrar Khattak (supra). Similar view was taken in Bostan Ali Hoti v. Haji Aziz Karim 1988 MLD 2116. Therefore, I am of the view that if the documents accompanying an election petition do not meet the test laid down by the Honourable Supreme Court in S.M. Ayub (supra), there is no non‑compliance of the provision of section 55(3) of Act LXXXV of 1976. It may also be noted that section 83 of the Indian Representation of People Act (No.43), 1951, also provides for verification of an election petition, schedule and Annexures in accordance with the requirement of the Code of Civil Procedure. However, in the scheme of the said Act, the said provision is only directory because according to section 86 of the said Act a petition is liable to be dismissed for non‑compliance of the provisions of sections 81, 82 or section 117 of the said Act. Section 83 does not find any mention in the aforesaid penal provision. Section 81(3) of the said Act provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy. Although the said requirement of section 81 is procedural in nature yet non‑compliance entails a penal consequence. The effect of non‑compliance of section 81(3) came under consideration of the Supreme Court of India in M. Karunanidhi v. H.V. Honda AIR 1983 SC

558. In the said case, copy of the election petition supplied to the opponent was not accompanied with the copy of a fancy banner on which the petitioner was relying. The Madras High Court condoned the lapse. The Indian Supreme Court interfered in the matter by relying on the following observations in their earlier judgment in Staya Narain v. Dhuja Ram and others AIR 1974 SC 1185. "It is true that subsection (3) of section 89 of the Act was purely procedural in character and that ordinarily procedural law should not be given that primacy by Courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, the Courts have no option but to enforce the law as it is." It was also observed that "mandatory provision must be fulfilled exactly". (emphasis supplied).

24. I am fully conscious that while a returned candidate commands the will of the electorate, the election petitioner can legitimately insist that he is represented by a duly qualified and duly elected person, and thus, an election dispute is not necessarily a lis inter parties because it involves the entire constituency. However, the trend of authority both in Pakistan and India is that a mandatory provision of election law should be rigidly applied which necessarily excludes even the consideration of the interest of the entire constituency.

25. The other question which requires determination is whether the procedure prescribed by Notification, dated 17‑3‑1985 is mandatory or directory. There is a difference of opinion on this question. However, as would be noted hereunder the recent judgments of the Punjab Election Tribunal are to the effect that it is directory. In the cases of Malik Iqbal Ahmad, Syed Zafar Ali Shah, Mrs. Rehana Mullick, Lt.‑Col. (Retd.) J. Abel, Mahr Zafar Ahmad Hiraj (supra) the Punjab Election Tribunal in the case of Moulvi Abdur Rahim (supra) the Election Tribunal, N.‑W.F.P., and in Mir Tariq Mahmood Khan 1992 CLC 1766 and Dr. Abdul Hayee (supra) in Election Tribunal Balochistan it was held that the procedure prescribed by Notification dated 17‑3‑1985 was mandatory as far as the non‑submission of the list of witnesses and their affidavits alongwith the election petition is concerned. However, the case of Diwan Kumar Malhi's case 1999 CLC 441, the Election Commission of Pakistan and in Rai Asghar Ali Khan and Ihsan‑ul‑Haq (supra) the! Punjab Election Tribunal took contrary view and held that the procedure prescribed by the said Notification was directory. I had the advantage of, going through the said judgments. I am of the view that the object of the procedure prescribed by the said Notification was to ensure expeditious disposal of an election petition which essentially enures to the benefit of the petitioner before an Election Tribunal. The effect of the procedure prescribed by the said Notification is that it becomes part of section 62(1) of Act LXXXV of 1976. However, neither in the aforesaid procedure nor in Act LXXXV aforesaid no penalty is provided for non compliance of the said procedure. Section 63 of Act LXXXV provides for dismissal of an election petition if provisions of sections 54 and 55 or section 62(4) have not been complied with. Section 62(4) refers to the failure to make further deposit as required thereunder. The omission of section 62(1), under which the Notification of 17‑3‑1985 has been issued, is significantly missing from section

63. Although the aforesaid Notification was issued on 10‑3‑1985 but till date the Legislature has not thought it fit to amend Act LXXXV, aforesaid to include non‑compliance of the procedure prescribed by the Election Commission as fatal. I may add that under section 64 the Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure. Therefore, unless the powers available to an Election Tribunal under the Code of Civil Procedure are specifically abridged or curtailed, an Election Tribunal is fully competent to examine the witnesses even if their list is not submitted or their affidavits have not been filed. Even paragraph 6 of the notification, dated 17‑3‑1985 empowers an Election Tribunal to examine a witness whose name is not mentioned in the petition. The aforesaid notification has been issued by the Election Commission of Pakistan according to which the only consequence of non‑compliance thereof is that a petition is not to be entertained. All these election petitions were routed through the Election Commission of Pakistan with the result that submission of list of witnesses and their affidavits shall be deemed to have been condoned by the learned Election Commission. It is added that, in any case, the notification of 17‑3‑1985 is a subordinate legislation and, therefore, will not control the powers of the Tribunal as Civil Court as given in section 64 of Act LXXXV of 1976.

26. The submissions of the election petitioner in E.P. No.111 of 2002 for allowing amendments in the pleadings liberally, preference to the rule of substantial justice as against a technicality, or that maintainability of the petition should be decided at the conclusion of the trial of the petition have not impressed me. The first two pleas are not available against a mandatory provision of law. As far as the submission to defer the decision on the preliminary questions is concerned, reference to decision dated 1‑7‑2003 of a Division Bench of this Court (of which I was a member) rendered in Writ Petition No.8873 of 2003 is inapt. In the said case the Election Tribunal had refused to treat an issue as preliminary on the ground that it was not purely a legal issue and was a mixed question of law and fact. While dismissing the aforesaid writ petition, which was directed against an interim order the Division Bench declined to interfere so as to interrupt the process of adjudication of the election petition. It was further noted that to treat an issue as preliminary was discretionary. It may be observed that there is no express requirement either in Act LXXXV of 1976 or the procedure prescribed by Notification of 17‑3‑1985 that issues must be framed. These are framed only to facilitate the trial of an election petition. The inference which follows from an admitted fact is a question of law and, therefore the question as to maintainability of these petitions could be decided at any stage.

27. In view of the above discussion the conclusions I have reached are as under:‑‑ (a) An election petition is required to be verified on oath exactly in the same manner as laid down in rule 15 of Order VI of the Code of Civil Procedure and it is required to be attested by a person competent to administer oath; (b) A separate affidavit filed with an election petition which exactly fulfills the requirements of rule 15 of Order VI of the Code of Civil Procedure will be due compliance of the provision of section 55(3) of Act LXXXV of 1976; (c) Unless a schedule or annex to the petition furnishes an additional information on facts so as to form part of an election petition, the documents submitted in support of an election petition do not come within the expression "schedule or annex" and, therefore, there is no requirement that these documents should be verified in the manner laid down in rule 15 of Order VI of the Code of Civil Procedure. (d) The procedure prescribed by notification of 17‑3‑1985 insofar as it relates to submission of list of witnesses and their affidavits is directory.

28. The defects in the election petition have been examined in the light of the aforesaid conclusions; (i) Although the verification is with reference to a numbered paragraphs yet it has not been attested by a duly authorized person. (ii) The verification is neither with reference to numbered paragraphs nor is attested by a duly authorized person. (iii) This petition has not been verified at all at the foot but is accompanied with a separate affidavit but the verification therein is not with reference to numbered paragraphs. (iv) The petition has been verified with reference to numbered paragraphs but is not attested by an authorized person. (v) The petition has not been verified at all nor there is a separate affidavit. (vi) The verification on the petition is attested by an Oath Commissioner but is not with reference to numbered paragraphs. The separate affidavit filed with the petition also does not verify the petition with reference to numbered paragraphs. (vii) The petition has neither been verified with reference to the numbered paragraphs not it is attested by a duly authorized person. (viii) This petition has been verified on oath but not with reference to the numbered paragraphs nor it is attested by an authorized person. No separate affidavit has been filed. (ix) The petition has been verified with reference to the numbered paragraphs but is not attested by a competent person. No separate affidavit has been filed. (x) The petition has been verified on oath but is not with reference to numbered paragraphs and has not been attested by a duly authorized person. Further, Haji Muhammad Ishaq was one of the contesting candidates who was not impleaded to this petition with the result that the provisions of section 54(a) was violated which entails dismissal of petition by virtue of the provisions contained in section 63 of Act No.LXXXV of 1976.

29. Accordingly, all these petitions are dismissed for non compliance of the provisions of section 55(3) of Act LXXXV of 1976 insofar as verification of these petitions is concerned. Election Petition No.89 of 2002 is also dismissed for non‑compliance of the provision of section 54(a) of Act No.LXXXV of 1976. M.A.W./J‑5/L Petitions dismissed.