Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 03 of 2018

Hearing of case (priority)

1. For orders on office objections at Flag-A

2. For hearing of main case

3. For orders on CMA No.09/2018 (Stay)

4. For orders on CMA No.58/2018 (U/S 101)

5. For orders on CMA No.59/2018 (Recounting)

6. For orders on CMA No.69/2018 (U/S 145(1) of the Elections Act)

Date of hearing : 30.10.2018.

Date of announcement : 26.11.2018.

M/s Mehfooz Ahmed Awan and Abdul Rauf Korai, Advocates for the petitioner.

M/s Mukesh Kumar G. Karara and Sajjad Muhammad Zangejo, Advocates for respondent No.9.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – By consent of the parties, application at S. No.6 bearing CMA No.69 of 2018 under Section 145(1) of the Elections Act, 2017 is taken up, which is for rejection of the election petition on the grounds that the provisions of Sections 142, 143 and 144 of the ibid Act have not been complied. Since these are legal issues, therefore, petitioner argued on the strength of record.

2. Learned counsel for respondent No.9 submits that since the present Election Laws are being applied for the first time, therefore, to understand the scheme and the relevant consequential provision i.e. Section 144(4) of the Elections Act, 2017, the scheme of the previous Act i.e. the Representation of the People Act (RoPA), 1976 is very relevant. He submits that Section 144(4) of the Elections Act, 2017 is peri materia to Section 55(3) of the RoPA, 1976. He submits that the aforesaid peri materia provision provides that the election petition and every annexure attached to the petition should be signed by the petitioner and the petition shall be verified in the manner as laid down under the provisions of Order VI Rule 15 of Civil Procedure Code. He submits that the provision of Order VI Rule 15, CPC, deals with the verification of the pleadings and it requires every para of pleading to be verified on oath or solemn affirmation at the foot of petition by the party pleading and is further required to specifically verify it with reference to the paragraphs of the pleading stating and specifying therein as to what he verifies on his own knowledge and/or upon information received and believed to be true and what he verifies to be true upon instructions received. He submits that the date and place at which it is signed and verified on oath have to be adhered in the letter and spirit. He submits that under the present enactment i.e. the Elections Act, 2017, the aforesaid procedure has not been followed and the petition is liable to be summarily rejected under Section 145(1) of the ibid Act. He submits that the Election Tribunal is required to itself examine the aforesaid requirement in terms of Section 144(4) to determine whether the petition is in order or not and in case of non-compliance, the provisions of Section 145(1) would be activated on its own. He submits that such deficiency is not curable. In support of the above contention, learned counsel has relied upon cases of Malik Umar Aslam v. Sumera Malik and another reported in PLD 2007 Supreme Court 362, Ch. Muhammad Ashraf v. Rana Tariq Javed and others reported in 2007 SCMR 34, Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others reported in PLD 2005 Supreme Court 600 and Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others reported in 2015 SCMR 1585.

3. On the other hand, learned counsel for the petitioner submits that the scheme of RoPA, 1976 and of Elections Act, 2017 is quite different and distinct inasmuch as there was no room in the earlier enactment, for making up of deficiency as provided under Rule 140 in the present enactment of 2017 under which the process of scrutiny is to be carried out and only then the deficiency could be cured within time prescribed under the aforesaid rules. He submits that the cognizance has already been taken by this Tribunal when notices of main petition were issued to respondents under Section 145(2) of the Elections Act, 2017. He further submits that the provisions of Civil Procedure Code are made applicable and, hence, had any deficiency been pointed out by the office of the Tribunal, it would have been cured or amended either in terms of Rule 140 of the Election Rules, 2017, Order VI Rule 17, CPC or under Section 149 of the Elections Act, 2017.

4. I have heard the learned counsel and perused the material available on record.

5. Section 55(3) of the RoPA, 1976 to the extent of verification and signing of the schedule or annexure is peri materia to Section 144(4) of the Elections Act, 2017, however, this relevant provision is to be adjudged and tested along with the rules framed under the Elections Act, 2017. Previously, there were no such rules except (Conduct of Election) Rules, 1977 which catered the process of election (pre-election process). Rule 140 offers that every petition shall be processed by the Tribunal and in case the petition is found deficient of laid down procedure, the petitioner shall be informed accordingly, indicating the deficiency/ies in the petition, directing him to fulfill the same within seven (07) days of the receipt of communication from the Tribunal, failing which the petition is liable to be “dismissed” by the Tribunal. The moot question thus is whether Rule 140 has any application to Sections 142, 143 and 144 of the Elections Act, 2017.

6. This petition was filed on 18.09.2018 that is within forty-five (45) days of the issuance of subject notification of returned candidates. Notification was issued on 07.08.2018 available at page 1047 to page 1065. The office of this Tribunal raised as many as six (06) objections, which were related to the list of witnesses, affidavit of service, annexures to be signed, prayer to be in consonance with the ibid Act, Court fee and the legible copies, and the compliance was ordered to be made within one (01) week. Respondent has not objected to this. All these objections did not include the objection relating to the verification clause. The matter was placed before this Tribunal on 01.10.2018 when the counsel stated that he would be filing list of witnesses and said date be considered as a date of filing of the election petition as he thought that he has sufficient time available. The question was then argued at length and this Court observed that list of witnesses, as pointed out by the office of this Tribunal, was never a deficiency to be considered under the law as a petitioner may file a petition without the support of any witness or as he/she may choose to, hence, a detailed order was passed on 22.10.2018 to resolve the above initial controversy relating witness and/or number of witnesses. The other objections regarding legible copies etc. have also been addressed, and the only point that remained unattended is the issue of verification for which a separate application was filed.

7. Section 144(4) of Elections Act, 2017, Rule 140 of Election Rules, 2017 and Order VI Rule 15, CPC, for the sake of convenience are reproduced as under:

Section 144(4) of Elections Act, 2017

“ 144. Contents of petition.— (1) ………

(2) ………

(3) ………

(4) An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. ”

Rule 140 of Election Rules, 2017

“ 140. Processing the Petition.— Every petition shall be processed by the Tribunal and in case the petition is not in accordance with the laid down procedure, the petitioner shall be informed accordingly indicating the deficiencies in the petition, if any, directing him to fulfill the same within seven days of the receipt of communication from the Tribunal failing which the petition shall be dismissed by the Tribunal. ”

Order VI Rule 15, CPC

“ 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 pleasing or by some other person provided 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 received and believed to be true.

(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. ”

8. Dealing first with the supporting arguments of petitioner’s counsel, regarding notice of main petition, the act of issuance of notices of main petition under Sections 145(2) of the Elections Act, 2017, shall not wash out the earlier cognizance, if at all to be taken under Section 145(1). Requirement of Sections 142, 143 and 144 of the Elections Act, 2017 has its own and independent importance and to be seen by the Tribunal independently and subsequent proceeding by means of issuance of notices cannot distract the Tribunal from considering the patent defect in pleading. Similarly, Section 149 which relates to the amendment of petition, also, does not relate to such defect as is under discussion. Section 149 of Elections Act, 2017 offers amendment to ensure fair and effective trial and for determining the real questions at issue without raising a new ground to challenge the election through such amendment, hence, does not support petitioner’s contention. Following observation of Hon'ble Supreme Court supports the above conclusion:

In the case of Hina Manzoor v. Malik Ibrar Ahmed and others reported in PLD 2015 SC 396, the Hon'ble Supreme Court held as under:

“ 6. It is, indeed true that in suitable cases and where the amendment sought is necessary for the purposes of determining the real issue, the bar of limitation may be overlooked, however, the amendment, rather the making up of lacuna, sought to be allowed cannot be considered to be an amendment necessary for the adjudication of the controversy / allegation pertaining to rigging and corrupt practices in the election process, as were involved in the present case. Furthermore, since the petition suffered with the inherent defect of non-compliance of Section 55(3) of the ROPA, consequently resulting in its summary dismissal as prescribed by Section 63 of the ROPA, the petitioner cannot be allowed to circumvent the purpose of law in the manner sought by him …… ”

In the case of Zia ur Rehman v. Syed Ahmed Hussain and others reported in 2014 SCMR 1015, the Hon'ble Supreme Court held as under:

“ In the instant case, the application for amendment dated 14^th October, 2013 was apparently filed on 23^rd October, 2013 well beyond the period of limitation i.e. 45 days for filing of an election petition, as provided by Section 52 Subsection (2) of the Representation of the People Act, 1976, hence, could not have been allowed by the Election Tribunal through the impugned judgment. ”

It is pertinent to note that in the case in hand no such application for amendment, even beyond time, was filed by petitioner.

9. Coming to the main point, it is a case of the respondent that a person verifying the contents of the petition shall specify, by referring the number of paragraphs of the pleadings as to what he verifies on his own knowledge and what he verifies upon information received and believed to be true. Admittedly, the contents of the petition are not verified paragraph wise and it is a general verification which the petitioner, who was claiming to be conversant with the facts of the case, considered them to be true, whereas, it does not distinguish as to which paragraphs were believed to be true as per his own information and the others which he believed to be true on account of advice received by him, being legal or having other sources.

10. Dealing with RoPA, 1976, the subject issue resolved by the Hon'ble Supreme Court in the case of Sardarzada Zafar Abbas reported in PLD 2005 Supreme Court 600. It resolved that verification at the end of the 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. Hon'ble Court found that there was no difference whatsoever by verifying a statement on oath and by verifying the same statement on affidavit, and any objection in this regard was found immature, to be taken notice of and sustained. Dealing with the issue of numbered paragraph, the Hon’ble Supreme in para 8 of the judgment observed as under:

“ 8. Learned counsel for the respondent raised another objection that the election petitioners in their verifications have failed to give reference to the paragraphs of the pleading as to what he either happened to verify on his own knowledge and what he happened to verify upon information received and believed to be true. Such objection is not very material because at time the entire statement happens to be given on the basis of one’s knowledge and at time on the basis of information received. It depends upon the facts of each case, as to what category the assertions belong. The situation is likely to differ from case to case. ”

11. Section 55(3) of the Representation of the People Act, 1976, is peri materia to Section 144(4) of the Elections Act, 2017, therefore, it would be beneficial to have a view of the wisdom laid down earlier by the apex Court, insofar as interpretation and the mandatory requirement of Order VI Rule 15, CPC is concerned. Earlier, under Representation of the People Act, 1976, the non-compliance of such mandatory provisions, as is under discussion, led to “dismissal” of petition rather than “rejection”.

12. In the case of Malik Umar Aslam v. Sumera Malik and another reported in PLD 2007 Supreme Court 362, the Hon’ble Supreme Court while discussing the aforesaid law ruled that a petition should be dismissed if found to have been filed without compliance of the requirements prescribed (verification of petition) under section 55(3) of the Representation of the People Act, 1976.

13. In the case of Ch. Muhammad Ashraf v. Rana Tariq Javed and others reported in 2007 SCMR 34, the Hon'ble Supreme Court observed that Election Petition not having been filed in compliance with the provision of Section 55(3) of RoPA, 1976, was liable to be dismissed.

14. In the case of Zia-ur-Rehman v. Syed Ahmed Hussain reported in PLD 2014 SC 1015, the Hon’ble Supreme Court while considering the case under the Representation of the People Act, 1976 held that when a law prescribes a format of an Election Petition and its verification on oath and entails a penal consequence of its non-compliance, it is mandatory provision. In the same case the Hon’ble Supreme Court also laid down that when an objection as to the maintainability of election petition was raised on the touchstone of non-compliance of mandatory provision (verification), the Tribunal should decide preliminary objection first. Similar view was taken in the case of Muhammad Ibrahim Jatoi v. Aftab Shaban Mirani reported in 2016 SCMR 722.

15. View also followed in the case of Ch. Zawwar reported in 2015 SCMR 1186, and, the affidavit in compliance and in support of petition was stated to be sufficient compliance of Section 55(3) of the RoPA, 1976.

16. Section 144(4) of the Elections Act, 2017 has laid down the importance of signing the annexures and the verification of the Election Petition, as laid down in Code of Civil Procedure. The Code of Civil Procedure requires verification on the basis of information with reference to paragraph that is being referred i.e. on account of knowledge of the party and on account of knowledge received from someone, including the counsel, if it is a legal advice. The consequence of non-compliance with the provisions of Sections 142, 143 and 144 of the Elections Act, 2017 are embodied under Section 144(1), which requires “rejection of the petition summarily”. (Underlining is for emphasis).

17. Coming to the main point, the scope of this application is to test the applicability of Rule 140 for curing inherent and patent defect in petition under Sections 142, 143 and 144 of the Elections Act, 2017.

18. Sections 142, 143 and 144 of the Elections Act, 2017, for the sake of convenience, are reproduced as under:

“ 142. Presentation of petition.— (1) An election petition shall be presented to the Election Tribunal within forty-five days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or Sub-Treasury in favour of the Commission, under the prescribed head of account, as security for the costs of the petition, such amount as may be prescribed.

(2) An election petition shall be deemed to have been presented—

(a) when delivered to the Election Tribunal appointed under section 140—

(i) by the petitioner in person; or

(ii) by a person authorized in writing in this behalf by the petitioner; or

(b) when sent by registered post or courier service to the Election Tribunal by the petitioner.

(3) An election petition, if sent by registered post or courier service, shall be deemed to have been presented in time if it is posted or sent within the period specified in sub-section (1).

143. Parties to the petition.— (1) The petitioner shall join as respondents to his election petition all other contesting candidates.

(2) The Election Tribunal may direct the petitioner to join any other person as respondent against whom any specific allegation of contravention of this Act has been made.

(3) The petitioner shall serve a copy of the election petition with all annexures on each respondent, personally or by registered post or courier service, before or at the time of filing the election petition.

144. Contents of petition.— (1) An election petition shall contain—

(a) a precise statement of the material facts on which the petitioner relies; and

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including names of the parties who are alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act.

(2) The following documents shall be attached with the petition—

(a) complete list of witnesses and their statements on affidavits;

(b) documentary evidence relied upon by the petitioner in support of allegations referred to in para (b);

(c) affidavit of service to the effect that a copy of the petition along with copies of all annexures, including list of witnesses, affidavits and documentary evidence, have been sent to all the respondents by registered post or courier service; and

(d) the relief claimed by the petitioner.

(3) A petitioner may claim as relief any of the following declarations—

(a) that the election of the returned candidate is void and petitioner or some other candidate has been elected; or

(b) that the election of the returned candidate is partially void and that fresh poll be ordered in one or more polling stations; or

(c) that the election as a whole is void and fresh poll be conducted in the entire constituency.

(4) An election petition and its annexures shall be signed by the petitioner and the petition shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings. ”

19. In the entire scheme of Sections 142, 143 and 144 of the Elections Act, 2017, the legislature was clear as to what is mandatorily required by the petitioner to be fulfilled except Sections 143(2) and 144(3) wherein the language was discretionary. What was made mandatory, the legislature has intentionally used the word “shall”, whereas, under Sections 143(2) and 144(3), this was relaxed. The Election Tribunal may direct the petitioner to join any other person (other than contesting candidate), as respondent against whom any specific allegation of the contravention of this Act has been raised, whereas, it was made compulsory for the petitioner to join all contesting candidates in the main petition at the time of filing petition within time prescribed. Similarly, as the statue provides different reliefs to the petitioner and the petitioner may opt to choose any of the referred reliefs / declarations such as 144(3)(a), 144(3)(b) and 144(3)(c) as stated above, and it was not made necessary for the petitioner to avail all remedies simultaneously. This is the distinction which is apparent on the face of these provisions.

20. Rule 140 of the Election Rules, 2017, as claimed to have been framed under the Act, relates to procedural processing of the petition by the Tribunal and/or its office and in case of any deficiency found, the petitioner was required to be informed accordingly, indicating the deficiencies in the petition, if any, to fulfill the same within seven days from the receipt of communication from the Tribunal, failing which the petition was required to be “dismissed” by the Tribunal. The legislature has intentionally and deliberately used the word “dismissed” in Rule 140 framed under the Elections Act, whereas under Rule 145(1) the Tribunal was empowered to “reject” the petition on account of non-compliance of Sections 142, 143 and 144. Rule 140, thus, on account of its language used, as it relates to dismissal of petition, appears to have no nexus with Section 145(1) which is meant for rejection. The two words i.e. “rejection of petition” and “dismissal of petition” are distinguishable. Sections 142, 143 and 144 of the Elections Act, 2017 relates to presentation of the petition and the mandatory requirements to be followed, failing whereof the consequences are of rejection of the petition.

21. The concept of “rejection” originates from Order VII Rule 11, CPC, and except one that may require a Judge to extend time for depositing the “deficient” Court fee, none of the other grounds held curable. Thus, the concept of curing a patent defect is not made out as far as alleged deficiencies in the instant petition are concerned. The procedural deficiencies, as referred to under Rule 140, are certainly those which are curable and not those mentioned in Sections 142, 143 and 144 of the Elections Act, 2017, which demonstrate patent and inherent defect.

22. In the main statute the petition is liable to be “dismissed” under Section 154 of the Elections Act, 2107. The provisions of Section 154, in order to understand its application and nexus with reference to Rule 140 is reproduced as under:

“ 154. Decision of the Election Tribunal.—(1) The Election Tribunal may, upon the conclusion of the trial of an election petition, make an order –

(a) Dismissing the petition;

(b) Declaring—

(i) The election of the returned candidate to be void and directing that fresh poll be held in one or more polling stations;

(ii) The election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected; or

(iii) The election as a whole to be void and directing that fresh election be held in the entire constituency.

(2) Save as provided in section 155, the decision of any Election Tribunal on an election petition shall be final. ”

23. Thus, the Election Tribunal at the conclusion of the trial of an Election Petition may dismiss the lis and Rule 140, which talks about dismissal, has a direct nexus with Section 154 and not with the earlier one i.e. 145(1), which talks about rejection of a petition. Deficiency highlighted in Rule 140 is not a procedural deficiency but legal deficiency. Section 148 talks about procedure before Election Tribunal and the only provision which says that subject to the Act and Rules, the trial shall be in accordance with the procedure applicable under the Code of Civil Procedure.

24. Distinction is that, on account of non-compliance of these mandatory provisions, as highlighted under Sections 142 to 144 of the Elections Act, 2017, may lead to rejection of petition rather than dismissal. At the time of drafting this particular law of 2017 the lawmakers were clear in their mind that the consequences of non-compliance of mandatory provision, as highlighted under the aforesaid provision of Sections 142 to 144 of the Elections Act, 2017, would lead to rejection of petition rather than dismissal. Keeping this in mind, the Rules were framed and Rule 140 talks about dismissal and not rejection, therefore, I conclude that this Rule 140 has no nexus with Section 144(4) of the Elections Act, 2017.

25. No doubt in the instant petition a separate affidavit in support of petition was filed but it does not improve the case of the petitioner as this affidavit also lacks in the same way as the verification clause of the petition does.

26. In the case of Iqbal Zafar Jhagra v. Khalil-ur-Rehman reported in 2000 SCMR 250, the Hon'ble Supreme Court held as under:

“ 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 VI, Rule 15, C.P.C. which when read with Section 29, C.P.C. clearly shows that the pleadings are to be verified on oath and the oath is to 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 the requirement of Section 36 of the Act, 1976 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 with the provisions of Section 36 of the Act, 1976 and are of the view that these reasons do not suffer from any legal infirmity. ”

27. The Hon’ble Supreme Court in the case of Lt. Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others reported in 2015 SCMR 1585 has finally set the mandatory nature of the verification requirements in election disputes governed under special law and thus there is no escape from lapses in the verification, in violation of requirement of Order VI Rule 15 CPC. The judgment of Lt. Col. (Rtd.) Ghazanfar Abbas Shah (supra) was no doubt under RoPA, 1976 but the judgment also endorsed the verdict about the enforcement for administering oath under the concept that a thing that is required to be done in a manner, as required under the law, should be done accordingly. Keeping in view this judgment of the Hon’ble Supreme Court, I reach to an irresistible conclusion that there is no escape from the strict requirement from Order VI Rule 15, CPC. In the said judgment, the Hon'ble Supreme Court also held that omission on the part of Oath Commissioner in certifying administration of oath and giving date and place of administration of oath, the Election Tribunal was competent to dismiss the election petition on account of such omissions. Consequently, the Bench observed as under:

“ We have applied our mind to this aspect of the matter and hold that in order to meet the real object and the spirit of the election laws which require verification on oath, in an ideal situation, the Oath Commissioner at the time of verification of the petition etc. and also the affidavit, must record and endorse verification / attestation that the oath has been actually, physically and duly administered to the election petitioner / deponent. But as the law has not been very clear till now, we should resort to the principle of presumption stipulated by Article 129(e) ibid in this case for avoiding the knock out of the petition for an omission and lapse on part of the Oath Commissioner. But for the future we hold that where the election petition or the affidavit is sought to be attested by the Oath Commissioner, the election petitioner shall insist and shall ensure that the requisite endorsement about the administration of oath is made, otherwise the election petition / affidavit shall not be considered to have been attested on oath and thus the election petition shall be liable to be, inter alia, dismissed on the above score. We consciously and deliberately neither apply this rule to the instant case nor any other matter pending at any forum (election tribunal or in appeals). ”

28. Another reason in reaching this conclusion is that Rules are always framed subservient to main Statute. The main statute requires rejection of petition on account of non-compliance of Sections 142 to 144 of the Election Act, 2017 and we would be making this provision of rejection of petition i.e. 145(1) redundant in case the penal consequences of main statue are not followed and the Rule 140 be made applicable to these inherent and patent shortfalls as well to supersede the provision of main statue. Deficiencies as discussed in Sections 142 to 144, in my view, are not procedural but legal.

29. The conclusion of the above is that provisions of Sections 142, 143 and 144 of the Elections Act, 2017 are mandatory and require strict compliance, and failure or departure from them entail penal consequences. The application is allowed and the petition is rejected.

J U D G E

Abdul Basit