Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 19 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 27.11.2018, 13.12.2018, 22.01.2019

and 13.02.2019.

Date of announcement : 24.04.2019.

Mr. Salahuddin Ahmed assisted by Mr. Sheikh Arsalan, Advocates for the petitioner.

Mr. Abdul Sattar Pirzada assisted by M/s Mamoon N. Chaudhry and Deedar Ali M. Chohan, Advocates for respondent No.3.

Mr. Irfan Ahmed Memon, Deputy Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – Before counsels addressed their arguments in respect of CMA no.62 of 2018, the preliminary issues that deal with maintainability of this petition is to be taken up first.

2. In substance respondent No.3 raised three preliminary points regarding maintainability of the petition:

i) That the petition ought to have been verified in the manner laid down by the Civil Procedure Code;

ii) That an election petition and its annexures must be signed by the petitioner and the petitioner shall be verified in the manner laid down in the Civil Procedure Code for the verification of the pleadings;

iii) That full particulars of any corrupt or illegal practice or other illegal acts alleged to have been committed, date and place of commission of such practice or acts to be provided.

3. In response to the first point regarding verification of the petition, it is claimed that the petitioner while verifying the petition has not taken care of the requirement of Rule 15 of Order VI CPC, which requires that a person verifying shall specify by reference to the number of paragraph of such pleading, what he verifies on his own knowledge and what he verifies upon information received and believed to be true.

4. Learned counsel has relied upon the case of Sultan Mahmood Hinjra v. Malik Ghulam Mustafa Khar reported in 2016 SCMR 1312 (relevant page 325[E]) that deals with deciding the preliminary issue first. In the said judgment the Bench has also highlighted that the details of a person identifying the respondent No.1 have not been mentioned whereas according to the above quoted Rule of Order VI CPC, the Oath Commissioner was bound to specify at the foot of the affidavit the name and description of person by whom identification of the deponent was made. Similar question was raised in the case of Zia ur Rehman v. Syed Ahmed Hussain reported in 2014 SCMR 1015 and also in the case of Sardarzada Zafar Abbas v. Syed Hassan Murtaza reported in PLD 2005 SC 600.

5. These all referred cases were dealt with while the ROPA was effective. Before analyzing the pari materia of the two sections i.e. Section 56 of ROPA 1976 and Section 144 of the Elections Act, 2017, it is necessary to see whether such contravention, in fact, is otherwise available, as only then the comparison of the two and application of order based on ROPA, could be made applicable.

6. The verification in the present petition was made through an affidavit sworn on oath before person duly authorized to administer oath i.e. Assistant Registrar of Affidavits & Identification Branch of the Sindh High Court at Sukkur. The said Assistant Registrar identified the petitioner and through his CNIC and NADRA website online, verification of his thumb impression was made. The Assistant Registrar also affirmed the administration of oath and the time and venue thereof. Thus, the verification in the petition was made through accompanying affidavit rather than by a clause at the foot of the petition itself.

7. The link issue as far as point No.1 is concerned is that the paragraphs were not specified as far as personal knowledge and advice of an expert is concerned. Again perusal of the ultimate clause of the petition provides that the contents of the petition, insofar as the facts and prayers are concerned, were true and correct to the best of petitioners’ knowledge and belief whereas he had been informed by his counsel of all the grounds upon which the petition was filed and he verily believe them to be true. Thus, the two offshoots in a petition, one that concerns with the facts and the other that deals with the application of law, have been segregated and that was the scheme and requirement of law where it required to be segregated. The verification of the factual contents on the basis of personal knowledge and belief and the legal contents of the petition on the basis of professional advice were dealt with separately. The purpose is the identification of the paragraphs and not numbering them. In my view the substantial compliance with reference to verification of the pleading has been made. It is only when the Tribunal faces difficulty in segregating them, the strict application could be applied.

8. The next argument raised by respondent’s counsel is with regard to the annexures that accompanied the petition and the verification in the manner laid down in Civil Procedure Code. It is argued that while going through the annexures attached in support of the petition, it is apparent that these are not verified and hence it is liable to be “dismissed”.

9. Let us first explore the present enactment of Election Act, 2017. Section 144(4) of the Election Act provides that an Election Petition and its annexure shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure Code, 1908 for the verification of the pleadings. This clearly overcomes the earlier provision of Section 55(3) of ROPA which provides that every election petition and schedule or annexure to the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908. Thus, it is no longer required under present enactment that the annexures are to be verified as was the requirement earlier under ROPA. As far as the signatures on the annexures/schedule are concerned, the record shows that perhaps on an objection raised by the office it was complied with.

10. Third and the last point as raised by respondent No.3 in support of the issue of maintainability is that particulars of any corrupt or illegal practice to be provided. Let us see the particulars and the contents of the petition itself before applying the law.

11. The petitioner has made an attempt to particularize the illegal and corrupt practices of respondent No.3 and the government officials and the electoral officials. Specific paragraphs provide the names of the government officials involved in the election campaign of respondent No.3, the dishonesty was alleged as it is claimed that Iqrarnama of UAE was concealed. The Petitioner has also attempted to identify the polling stations in the petition from where the agents of the petitioner were removed and were not allowed to participate in the counting process. Petitioner has also pointed out in the memo of petition that only few officials were involved in preparation of Form 45 instead of designated presiding officers who were required to prepare and finalize them in terms of Elections Act, 2017 in terms of Section 90 ibid as could be ascertained from handwriting apparent on these Forms 45.

12. The post-election phase is covered by a claim of recounting when the application was rejected by the Returning Officer, as alleged. Prima facie what is required for pleading is available and it is now depend on evidence which may come in support.

13. I have already held in several other cases, the pleadings are supposed to provide a structural model which would then be supported by evidence and the pleadings itself need not to be an encyclopedia.

14. In view of the above, I do not consider at this stage to oust the petitioner by rejecting petition on the grounds as raised. The petition, thus, is maintainable.

J U D G E