IN THE HIGH COURT OF SINDH
CIRCUIT COURT AT LARKANA
Election Appeal S-03 of 2017
Mohammad Ali Hakro
vs.
Election Commission of Pakistan & Others
For the Appellant: None present.
For the Respondent No.17: Mr. Abdul Rehman Bhutto Advocate,
For the State: Mr. Naimatullah Bhurgri State Counsel
For Election Commission of Pakistan: Mr. Abdul Rasheed Abro Assistant Attorney General
Date of Hearing: 24-09-2018
Date of Announcement: 24-09-2018
O R D E R
Agha Faisal, J. None present for the appellant and the same appears to be the case on several previous dates of hearing. This appears to be a fit case for dismissal on the ground of non-prosecution, however, it is considered just and proper for this matter to be determined on merit by evaluating the pleadings / record filed by the appellant and with the assistance of the learned counsel for the respondents.
2. The present appeal assails the order dated 25.02.2017, delivered by the Additional District Judge/Election Tribunal Kambar Shahdadkot (“Impugned Order”), whereby the election petition filed by the present appellant was dismissed primarily on two grounds. Firstly, that the election petition had not been verified in the requisite manner and secondly that the notice of the petition required to be served upon the respondents prior to institution thereof had not been served.
3. The appellant has not deigned to file a copy of the pleadings in the present appeal to dispel the conclusion, arrived at in the Impugned Order, that the pleadings were not verified in accordance with the relevant provisions of the law. In view thereof the narrative with respect to the infirmities, outlined in respect of the pleadings in the Impugned Order, is presumed to be accurate. In so far as the discrepant pleadings are concerned the Impugned Order recorded as follows:
“… as election petition had not been verified by specifying by reference to numbered paragraphs of petition as to what paragraphs of the petition was verified of petitioner own knowledge and what he verified upon information received and believed to be true. The petitioner had also submitted some documents with his petition but same was neither signed by the petitioner nor was the same verified on oath within the ambit of law ….”
4. There is also no corroboration of any notice having been served by the present appellant upon the respondents in respect of the election petition, subject matter of the discussion herein. The record available before this Court raises no ground to doubt the accuracy of the observations made and the conclusions reached in the Impugned Order.
5. Mr. Abdul Rehman Bhutto, advocate for respondent No.17 stated that this is a frivolous appeal intended to circumvent the due process of law. Per learned counsel, Rule 64 of the Sindh Local Bodies Election Rules, 2015 (“Rules”) makes it mandatory for a petition to be dismissed if the prescribed conditions precedent have not been complied with. Learned counsel demonstrated from the Rules that verification of the pleadings, annexures filed therewith was required to be undertaken in due conformity with the provisions of the Civil Procedure Code and the reference to Civil Procedure Code in such regard was a reference to Order VI Rule 15 CPC, reproduced below:
15. (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(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
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
6. Learned counsel further stated that as per Rule 61(b) of the Rules it is imperative that notice of an election petition be served upon respondents prior to institution of the election petition, otherwise a petition merits summary dismissal. Learned counsel placed reliance on the pronouncement of the honorable Supreme Court in Inayatullah vs. Syed Khursheed Ahmed Shah & Others reported as 2014 SCMR 1477 in support of his contention.
7. Learned State Counsel and the learned Assistant Attorney General, appearing on behalf of respondent Nos. 1, 5 and 6, supported the Impugned Order and also adopted the arguments submitted by the learned counsel for the respondent No. 17. It was thus submitted that the present appeal is prima facie misconceived and without merit and therefore cannot be sustained by this Court.
8. This Court has considered the applicable law which requires the verification of the pleadings to be done in the manner prescribed under Order VI Rule 15 C.P.C. It is also within the contemplation of this Court that the learned Election Tribunal is bound to dismiss an election petition if the mandatory requirements of verification, or any other prescribed condition precedent, have not been complied with. Reliance is placed in this regard upon the judgment of the Honourable Supreme Court titled Sultan Mahmood Hinjra vs. Malik Ghulam Mustafa Khar & Others reported as 2016 SCMR 1312. It is also a trite law that service of notice upon the respondents is a condition precedent and the election petition is required to be filed along with evidence of such notice having been served. The Impugned Order records that no such notice has been served and there is nothing available on record to controvert the conclusion. It is thus the considered view of this Court that the mandatory provisions of the Rules have not been complied with and hence the learned Election Tribunal has rightly passed the Impugned Order in consonance with the prescriptions of Rule 64 of the Rules.
9. In view of the rationale and reasoning contained herein, the present appeal is hereby dismissed with no order as to costs.
Judge
Abdul Salam/P.A