IN THE HIGH COURT OF SINDH
CIRCUIT COURT AT LARKANA
Election Appeal S-05 of 2016
Ghulam Nabi Khaskheli
vs.
Federation of Pakistan and Others
For the Appellant: Mr. Imtiaz Ali Mugheri
Advocate
For the Federation: Mr. Nisar Ahmed Abro Deputy Attorney General
Abdul Rasheed Abro Assistant Attorney General.
For Respondent Nos.2 & 3: Mr. Rafiq Ahmed Abro Advocate
Date of Hearing: 09-10-2018
Date of Order: 09-10-2018
JUDGEMENT
Agha Faisal, J. Through this appeal, the appellant has assailed the order dated 27.09.2016, delivered by the learned Additional District Judge / Election Tribunal (Local Government Election-2015), Kamber-Shahdadkot @ Kamber in the Election Petition No. 31 of 2015 (Impugned Order).
2. The learned counsel for the appellant stated that the Impugned Order has been predicated upon hyper technicalities and without consideration of the merits of the case. The learned counsel further stated that while the appellant was otherwise entitled to the grant of the election petition, his rights were denied without consideration of the facts and circumstances. Learned counsel relied upon the judgment in the case of Sardar Muhammad Yaqoob Khan Nasir vs. Sardar Muhammad Israr Tareen & Others reported as 2011 CLC 1649 in order to augment his submissions. It was thus prayed that this Court may be pleased to accept the appeal and set aside the Impugned Order forthwith.
3. Mr. Rafiq Ahmed Abro, learned counsel for the Election Commission of Pakistan (ECP), supported the Impugned Order and submitted that the same was delivered in due consonance with the law. Per learned counsel, the basis upon which the election petition was dismissed was sound and no ground for interference was made out in respect thereof. Learned counsel further stated that an election petition is mandated by law to be instituted in the manner prescribed and any non-confirmity therewith renders the said petition compulsorily liable for dismissal. It was thus argued that the present appeal may be dismissed.
4. Learned Deputy Attorney General and Assistant Attorney General, appearing on behalf of the Federation of Pakistan, supported the Impugned Order and adopted the arguments advanced by learned counsel for the ECP.
5. This Court has considered the arguments and has also perused the record placed before it. It is observed that the election petition filed by the present appellant was dismissed on the grounds that the verification of the pleadings (documents filed therewith) was not undertaken in the manner prescribed and further that the notice of the said petition was not served upon the respondents prior to institution of the said petition. It is also borne from the record that the appellant did not implead all the contesting candidates as parties to the Election Petition and the same is manifest from the memorandum of appeal filed herewith, relevant constituent whereof stipulates as follows:
That, the appellant is also ready to implead all other contesting candidates as party to the proceedings, if this Honble Court is pleased to set aside the order dated 27.09.2016, remand the case to the learned Election Tribunal with directions to decide the election petition filed by the appellant purely on merits instead of technicalities.
6. The learned counsel for the appellant does not controvert the narrative enunciated in the Impugned Order with regard to the conditions precedent for verification and service not having been complied with. It was also admitted that all the contesting parties were not impleaded in the election petition. However, it was contended that the cited infractions were mere technicalities and required to be condoned, hence, the petition could not have been dismissed on such grounds alone.
7. It is considered expedient to initiate the deliberation hereupon by detailing the law relevant to the controversy at hand. The applicable law governing the institution of election petitions is the Sindh Local Government Act, 2013 (Act) and Section 46 thereof prescribes as follows:
46. Election petition.- (1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition.
(2) A candidate may, in the prescribed manner, file an election petition before the Election Tribunal challenging an election under this Act.
8. The term prescribed has been defined in Section 2 (lii) of the Act to stipulate prescribed means prescribed by rules. The reference to the rules is a reference to the Sindh Local Councils Election Rules, 2015 notified vide notification NO.RO(LG)/MISC/4/(18)/2014 Karachi (Rules).
9. Rule 62 (3) prescribes the manner in which an election petition is to be verified and it may be prudent to reproduce the pertinent content of said provision herein below:
62.(1) ..
(2) ..
(3) Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil procedure, 1908, for the verification of pleadings
(Underline added for emphasis.)
10. The reference to the Code of Civil Procedure in the aforesaid provision is a reference to Order VI Rule 15, C.P.C. Admittedly, the petition (and annexures thereo) filed by the present appellant before the learned Election Tribunal was not verified in the manner so prescribed. The learned counsel for the petitioner argued that the form of the petition could not have been the basis for dismissal of the petition and the learned Election tribunal ought to have considered the substance of the case. With utmost respect, this Court is unable to sustain the said argument in view of the settled law illuminated by the Superior Courts.
11. The issue of verification, of pleadings and annexures in election petitions, has been illumined by the honorable Supreme Court in the judgment titled Sultan Mahmood Hinjra vs. Malik Ghulam Mustafa Khar & Others reported as 2016 SCMR 1312, the relevant observations wherefrom are reproduced herein below:
6. Since the learned counsel for the Appellant at the very outset has raised the question with regard to the maintainability of the election petition filed by the Respondent No.1, hence we are fortified to address this issue first. It was objected by the learned counsel for the Appellant that the petition had not been verified in terms of the mandatory provisions of section 55 of the ROPA, 1976 read with Order VI, Rule 15, C.P.C. as neither the petition nor the annexures or schedules appended thereto had been verified, but instead an affidavit had been belatedly filed to cure such defect. It would be pertinent to reproduce the above quoted provisions of law.
55. Contents of Petition:-
(1) .
(2)
(3) 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.
Order VI, Rule 15. Verification of Pleadings (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 pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall not be signed by the person making it and shall state the date on which and the place at which it was signed.
From the above it is crystal clear that verification of an election petition in the prescribed manner is a mandatory requirement and that too in accordance with the provisions of Order VI, Rule 15, C.P.C. specifying to numbered paragraphs of the pleadings that he verifies of his own knowledge and what he verifies upon information received and believed to be true. From the record it reveals that the Appellant while filing his election petition did not comply with the mandatory requirements with regard to the verification of the election petition and to cure such defect subsequently submitted an affidavit in this regard, wherein the entire contents of his election petition were reproduced. It would be pertinent to mention at this juncture that although the provisions relating to the verification of pleading are generally directory in nature, the position is different in election laws by virtue of section 63 of the ROPA, 1976 which casts upon the Tribunal a duty to dismiss the election petition if the provisions of section 54 or 55 of the ROPA, 1976 have not been complied with, as such its compliance has been held to be mandatory in nature by virtue of the penal consequences prescribed under section 63 of the ROPA, 1976.
7. We would now proceed to examine the affidavit, which finds mention at the foot of the petition and purportedly serves to verify the same. In the said affidavit, the Respondent/Election Petitioner has reproduced the entire contents of his election petition. In order to determine the sufficiency of verification of affidavit, it would be useful to reproduce the provisions of High Courts Rules and Orders Chapter 12, Volume No. IV, Rules Nos. 11, 12, 14, 15 and 16 as these have material bearing on the case at hand:-
11. Identification of Deponent- Every person making an affidavit, shall, if not personally known to the Court, magistrate
12. Mode of attestation-
14. Attesting Officers duty
15. Attesting, signing and making of affidavit.
16. Manner of administering oath to deponent.
FORM OF VERIFICATION ON OATH OR
AFFIRMATION
(Vide paragraph 15 above)
Oath.
Solemnly swear that this my declaration is true, that it conceals nothing, and that no part of it is false ..so help me God.
Affirmation.
I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is false.
II-FORM OF CERTIFICATE
(vide paragraphs 12, 14 and 15 above)
Certified that the above was declared on (here enter oath) / affirmation as the case may be) before me this .(date) day of .. (month) (of 19, at place) in the district of (name of district) by .(full name and description declarant) who is .. here enter personally known to me or identified at (time and place of identification) by (full name and description of person making the identification), who is personally known to me
(Full Signature) A. B.
(Officer) District Judge (or as the case may be) of
..
II-A
The exhibits marked A.B.C. (as the case may be) above referred to are annexed hereto under this date and my initials.
Certified further that this affidavit has been read and explained to (name) ..the declarant who seemed perfectly to understand the same at the time of making thereof.
Placing reliance on the case of Lt. Col. (R) Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585), would be beneficial here, wherein, the issue of verification by an affidavit was agitated before this Court and while referring to the above Rules, this Court highlighted the following pre-requisites for a valid affidavit:
1. Identification of Deponent (Rule 11)
2. Particulars of deponent and identifier to be mentioned at the foot of the affidavit (Rule 11)
3. Time and place of making of the affidavit to be specified (Rule 11)
4. Certificate of court/magistrate/other officer at the foot of the affidavit that such affidavit was made before them. (Rule 12)
5. Date, Signature and name of the officer and designation of the court/magistrate/other officer to be subscribed underneath the Certification. (Rule 12)
6. Every exhibit referred to in the affidavit to be dated and initialed by the court/magistrate/other person. (Rule 12)
7. Where deponent of an affidavit does not understand the contents of an affidavit, the court/magistrate/other police officer administering oath must read out the contents of the affidavit to such person magistrate/other officer shall note the foot of the affidavit that the affidavit has been read out to the deponent and he understands its contents. (Rule 14).
8. Deponent to sign/mark and verify the affidavit and the court, magistrate or other officer administering the oath or affirmation to attest the affidavit. (Rule 15)
9. Oath to be administered by the court/magistrate/other officer in accordance with the Indian Oaths Act 1878 and affidavit to be verified by the deponent and attested by court/magistrate/other officer on forms appended thereto (Rule 16)
When the affidavit at hand is examined in the light of the above it transpires that certain essential requirements are missing therefrom. Firstly, it has not been mentioned whether the Respondent No.1 was administered oath by the Oath Commissioner before the attestation was made. Secondly, it has not been specified whether the Respondent No.1 was duly identified before the Oath Commissioner. In this regard, it has simply been stated at the foot of the affidavit that the Respondent No.1 was present before the Oath Commissioner in person, however, the details of the person identifying the Respondent No.1 have not been mentioned whereas according to above quoted provisions, the Oath Commissioner is bound to specify at the foot of the affidavit the name and description of the person by whom identification of the deponent was made and in this regard a certificate has to be appended. Furthermore, it is also not clear from the affidavit that the Respondent No.1 was identified with reference to his ID card and in this regard, no ID card number is given, as such the identification does not seem to have been made. There is yet, another aspect of the matter. The affidavit in question does not make any reference to the numbered paragraphs contained therein which the Respondent No.1 verifies on his own knowledge and what he verifies upon information received and believed to be true. Further, the affidavit in question also does not make any reference to the verification of the annexures appended along with the petition, which although have been mentioned in the said affidavit.
8. This Court in a chain of judgments has addressed the issue of verification of pleadings wherefrom reproducing the relevant portions would be beneficial here. In the case of Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCME 1015) it has been held as under:-
10. Admittedly both the election petitions filed by the respondents in the afore-mentioned appeals were not verified on oath in the manner prescribed under the afore-quoted provision. If the law requires a particular thing to be done in a particular manner it has to be done accordingly. Otherwise it would not be in compliance with the legislative intent. Non-compliance of this provision carries a penal consequences in terms of section 63 of the Representation of the People Act whereas no penal provision is prescribed for non-compliance with Order VI, Rule 15 of the Civil Procedure Code. The effect of non-compliance of section 55 of the Representation of the People Act, 1976 came up for consideration before this Court in Iqbal Zafar Jhagra v. Khalilur Rehman (2000 SCMR 250) wherein at page 290 it was candidly held that the verification of pleadings has been provided under Order VI, 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 authorized 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 authorized 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.
And in the case of Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others (PLD 2005 SC 600), this Court has laid the following guidelines:-
The verification on oath of the contents of an election petition, is provided under section 55(3) of the Representation of the People Act of 1976, (hereinafter to be referred to as the Act). It provides that every election petition and every schedule or annexure to petition shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908, which requires the verification under Order VI, rule 15, which requires the verification of pleadings, on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered.
So far as, the provisions of civil law are concerned, such verifications generally are of directory nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification. While, on the other hand, under election laws such verification on oath is mandatory because of being followed by penal consequences under section 63(a) of the Act that makes it mandatory for the Tribunal to dismiss election petition if the provisions of section 54 and 55 of the Act have not been complied with. Similar view was taken by this Court in Iqbal Zafar Jhagras case (2000 SCMR 250), though related to the Senate elections. It is, therefore, settled that the verification on oath of an election petition through mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory.
9. In the above perspective, and while placing reliance on the case of Lt. Col. (R) Ghazanfar Abbas Shah(supra), the affidavit at hand, can hardly be considered to be a proper verification. The learned Election Tribunal therefore, erred in holding that the election petition had been duly verified. In our considered opinion, the election petition had not been duly verified in accordance with law and even the affidavit annexed thereto could also not be considered to be proper verification as it failed to meet the criteria mentioned above, therefore, the election petition merited outright dismissal by the election tribunal.
10. In conclusion to our discussion we are of the opinion that when an objection with regard to the maintainability of an election petition for non-compliance of a mandatory provision is raised then the Tribunal should decide that very objection first because if such objection sustained then the Tribunal left with no option but to dismiss the election petition. Mentioning the case of Zia ur Rehman (supra) would again be beneficial here wherein it has been held as under:-
7. If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition ..
11. For what has been discussed above, this appeal is allowed, impugned judgment dated 18.07.2014 passed by the Election Tribunal is set aside and the election petition filed by the Respondent No.1 is hereby dismissed under section 63 of the ROPA, 1976 as not being in conformity with the mandatory provisions of section 55 of the ROPA, 1976.
12. It is thus manifest that the provisions with regard to verification of pleadings (and annexures filed therewith) are mandatory in nature and do not confer an Election Tribunal with any discretion to condone any infraction thereof.
13. In addition to violating the law with regards to verification the appellant also admittedly failed to join all contesting candidates as respondents and also failed to serve prior notice of the proceedings upon the respondents. The requirements in regard hereof are enumerated in the Rule 61 which stipulates as follows:
61. The petitioner shall join as respondents to his election petition:
a) all contesting candidates; and
b) any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on oath such respondent a copy of his petition
(Underline added for emphasis.)
14. The present appellant has admittedly violated the provisions of Rules 61 and 62(3) and the mandatory consequence thereof is prescribed in Rule 64, which stipulates as follows:
64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission.
(Underline added for emphasis.)
15. This Court has delved into similar issues in the past and a pronouncement in such regard was delivered in the case of Jaleel Ahmed vs. Election Commission of Pakistan & Others reported as 2017 YLR 557, wherein it was determined as follows:
10. The provision of section 62 (3) of Sindh Local Councils (Election) Rules, 2015 is mandatory and provision of law, as mentioned above, has been violated by the Petitioner. The reference is made on a case of Zafar Abbas v. Hassan Murtaza (PLD 2005 SC 600), it is held that It is, therefore, settled that the verification on oath of an election petition though mannered in accordance with civil law yet it entails upon penal consequences and hence is mandatory.
11. It is pertinent to mention the section 64 of the said Rules for the necessary purpose, which is as follows:-
64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission.
12. On careful reading of above rules, it is clear that it was mandatory upon the petitioner to sign the annexures of petition and to verify the same in the manner laid down in the Code of Civil Procedure, 1908 and also service of notice on each respondents personally or by courier service or registered post and enclosed such copy of notice with the petition, but from the perusal of election petition, it is evident that neither the appellant/petitioner has complied with the above provisions of law nor produced any documentary proof of service on each Respondents or signing the memo of the petition in support of his contention.
13. The contention of the learned counsel for the appellant is that appellant/petitioner has filed affidavit along with its petition and affidavit is more affective then the verification. The contents of affidavit of appellant/petitioner are reproduced as follows:-
(1) That I am petitioner in above petition and is well conversant with the facts of the case.
(2) That the election petition under rule of Sindh Local Election Rules, 2015 for recounting of polled ballot papers has been moved and drafted under my instructions.
(3) That I have good prima facie case and the balance of convenience is also lying in my favour.
(4) That the contents of petition may be treated as part and parcel of this affidavit.
(5) That the contents of this affidavit have been read over to me in Sindh language which I know and say that the same are true and correct to the best of my knowledge and belief.
14. The contents of affidavit of the appellant/Petitioner clearly reflects that the contents of the main petition may be treated as part and parcel of his affidavit, as the same have not been repeated for the sake of brevity and Petitioner has not stated in his affidavit that the contents of his petition are true to the best of his knowledge, information and beliefs, hence the contents of the affidavit of the petitioner cannot be treated as verification, as the above provision is mandatory and the said affidavit does not fulfill the pre-requisite of a valid affidavit as prescribed under the law. The second contention of the learned counsel for the appellant is that according to Order VI Rule XVII, C.P.C., the Court may at any stage allow the petitioner to move application for amendment of the pleadings, therefore, Petitioner/appellant may be allowed to amend the petition and he may be permitted to verify the contents of the petition. In this regard, there is nothing on record to show that appellant/ Petitioner moved any application before the learned tribunal for such amendment or asked for, therefore, in my view that on account of such deficiencies at this stage cannot be allowed to fill the lacunas after lapse of period of limitation prescribed for fling of election petition. In this context, I am fortified with reported case law of Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585), wherein the Honourable apex Court held as follows:--
(a) Representation of the People Act (LXXXV of 1976)---
"----S. 55(3)--- Civil Procedure Code (V of 1908), O.VI, R.15---Election petition, verification of---Mandatory requirement---Verification of an election petition was mandatory and a petition which lacked proper verification shall be summarily dismissed by the Election Tribunal, even if the respondent had not asked for or prayed for its dismissal---Where the election petition had not been verified in accordance with law, the same could not be treated as a curable defect and the Election Tribunal particularly after the lapse of the period of limitation prescribed for filing of election petition, could not permit the election Petitioner to cure the same".
15. In the case reported as Zia Ur Rehman v. Syed Ahmed Hussain (2014 SCMR 1015), wherein the Honourable apex Court has held that when the law prescribes a certain format of an Election Petition and its verification on oath and entails a penal consequences of its non-compliance, it is a mandatory provision. If an objection is raised with regard to maintainability of such a petition for non-compliance of a mandatory provision, the Court/Tribunal should decide that preliminary objection. Because if that objection is sustained then the Court is left with no option but to dismiss the petition.
16. The law cited at the bar by the learned counsel for the appellant are distinguishable from the facts and circumstances of the present case, hence the same are not helpful to the appellant's case.
17. Keeping in view the above facts and circumstances coupled with case laws cited at the bar by the learned counsel for the Respondents, I am of the considered view that election petition is incompetent, as the same has not been instituted in accordance with the provisions of law, as stated above. Consequently, the instant appeal being without merit and the same is hereby dismissed and the impugned order of the learned tribunal/Ist. Additional District Judge, Badin is maintained.
16. It is pertinent to observe that the case law relied upon supra refers to national and provincial elections held pursuant to the Representation of Peoples Act 1976 and not to local government elections under the Act or the Rules. The honorable Supreme Court has interpreted the provisions of the Representation of Peoples Act 1976, section 55(3) in particular, and maintained that the prescriptions therein regarding the verification of pleadings and annexures are mandatory in nature. Rule 62(3) is precisely the same as section 55(3) of the Representation of Peoples Act 1976, and the said prescription of the Rules is anchored by section 46 of the Act. In addition thereto section 71 of the Act stipulates that Save as provided under this Act the provisions of the Representation of Peoples Act 1976 shall be applicable to the elections and the electoral process under this Act. Therefore, the requirements for verification of pleadings and annexures imposed by the Representation of Peoples Act 1976 are identical to the requirements prescribed by the Act (and the Rules) and hence the interpretation of the said requirements, undertaken by the superior Courts in matters pertaining to the Representation of Peoples Act 1976, shall apply mutatis mutandis to requirements prescribed by the Act (and the Rules).
17. This Court is bulwarked in regard hereof by another judgment of this Court, titled Muhammad Ameen & Another vs. Jawaid Ali & Others reported as 2017 YLR Note 429, wherein it was maintained as follows:
In the present Appeals, the applicable law, as already discussed in foregoing paragraphs, is the SLGA, 2013 and the Election Rules and the SLGA being the governing statute has given the authority through enabling clause that matters relating to Election Disputes shall be regulated by the Statutory Rules, viz. the Election Rules 2015. Relevant Election Rules since are mandatory in nature, therefore, they have to be applied accordingly.
17. Therefore, in view of the above discussion, I can safely hold that (a) as an analogy and by virtue of section 71 of SLGA 2013, the principle laid down through judicial pronouncements vis-ΰ-vis ROPA is also applicable to the Local Government Elections, that is, present Election Appeal, and, (b) submissions of Appellants side carry hardly any force and the mandatory effect of the afore-referred Election Rules 2015 cannot be curtailed or abridged in any manner whatsoever.
.
The aforementioned provisions of the Election Rules providing penalty and/or adverse consequence for its non-compliance, particular, relating to the Election Petitions/casrs, are mandatory in nature and failure to act accordingly will attract the penalty provided in Rule 64 of the Election Rules, that is, dismissal of the Election Petition.
18. In view of the law settled by the superior Courts, as cited hereinabove, it is apparent that the learned Election Tribunal had no discretion to condone the admitted infractions of the relevant statutory provisions and it is thus held that the Impugned Order was delivered in due consonance with the law and merits no interference in appeal.
19. In view of the reasoning and rationale delineated herein above, the present appeal is found to be devoid of merit and hence dismissed with no order as to costs.
Judge
Manzoor