2015 PLP 1186 (SCMR)

JAWWAD S. KHAWAJA, J.

This is a direct appeal under section 67(3) of the Representation of the Peoples Act, 1976 (ROPA), relating to election to the provincial constituency PP-207, Lodhran.

2. Respondent No.1, Muhammad Aamir Iqbal, was declared as a returned candidate and his election was duly notified by the Election Commission of Pakistan, vide notification dated 25-5-2013. The appellant, Ch. Zawwar Hussain Warraich, was the runner up. It was a close contest between these two contenders as the respondent received 30,244 votes while the appellant received 29,531 votes. The difference between the two was of 731 votes.

3. The appellant filed an election petition to challenge the election of the respondent. The same was dismissed by the Election Tribunal for reasons which are noted in the impugned order dated 9-7-2013. It has been observed that the appellant had failed to meet the mandatory requirement of section 55(3) of ROPA and as a consequence, the penalty provided in section 63(a) of the said statute was attracted, thus leading to the dismissal of the election petition.

4. Although the impugned judgment has proceeded on the above premise, the main contention and dispute between the parties has not been discussed or addressed in it. It was the respondent's case before the Election Tribunal that the election petition had not been duly verified in terms of section 55(3) of the ROPA. For ease of reference, the same is reproduced as under:- "Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings." In response, it was the case of the appellant that he had sought permission to verify the petition at its foot, as a way of abundant caution only. It was further contended that the original petition had been properly verified through an affidavit annexed thereto and verified on oath.

5. Therefore, the question to be decided by us is whether such an affidavit could be treated as a verification complying with the provision of section 55(3) reproduced above. The answer to this question is given in the case titled Zaffar Abbas v. Hassan Murtaza (PLD 2005 SC 600). The question which arose in the cited precedent was noted by the Court which held that "the controversy now boils down to the only point as to whether the verification should be at the end of election petition on the same page or any verification given on a separate page would meet the requirement though in the shape of an affidavit." After framing the aforesaid question, the Bench held as under:- "We have considered this aspect thoroughly and have come to the conclusion that in the given circumstances, there is no material difference between a verification on oath and a verification through an affidavit. An affidavit is a sworn statement in writing while a verification is a confirmation in law by oath in order to establish the truth, accuracy and reality of a statement of fact. Thus, there is practically no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit. It also loses significance when such affidavit on oath is attested by the authority competent to administer oath. The objection as to why such verification is on a separate page or leaf, is rather, too immature to be taken notice of and sustained." The afore-cited precedent is at all fours with the facts arising in the present case. Following the ratio in the above precedent, we have come to the conclusion that, since the affidavit had been filed along with the election petition and had been duly attested by the Oath Commissioner, there was sufficient compliance with the provision of section 55(3) of the ROPA and as a consequence, the penalty under section 63(a) is not attracted. We say with respect to the Tribunal that the precedent referred to in the impugned judgment has not been properly construed and distinguished.

6. In view of the foregoing discussion, this appeal is allowed. The impugned judgment is set aside. As a consequence, the election petition shall be deemed pending before the Election Tribunal which shall be decided expeditiously as required by law. MH/Z-4/SC Case remande