Judgment Sheet

16

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR.

JUDICIAL DEPARTMENT

Election Appeal No.04-P/2014.

JUDGMENT

Date of hearing

Appellant (Air Marshall ® Syed Qaiser Hussain) by M/s. Taipu Sultan Makhdoom and Syed Abuzar Pirzada, advocates.

Respondents (Sajid Hussain Tori etc) by Mr. Ghulam Mohyuddin, advocate.

MAZHAR ALAM KHAN MIANKHEL, CJ.- Air Marshal ® Syed Qaiser Hussain, appellant, has filed this appeal against the judgment dated 02.09.2013 passed by the learned Election Tribunal Peshawar in Election Petition No.74/2013, whereby the election petition of appellant was dismissed under Section 63(a) of the Representation of People Act, 1976 for not having complied with the provision of Section 55(3) of the Act ibid.

2. Briefly stated, the facts of the instant case are that appellant alongwith Respondents No.1 to 31, contested General Elections in the year 2013 as candidate for the National Assembly from Constituency No. NA-37, Kurram Agency. Respondent No.1 was declared as returned candidate having secured highest number of votes. On the objection of rival candidates, recounting of 27 polling stations was conducted which decreased the difference of votes between appellant and respondent No.1 from 901 to 526. Thus, the appellant challenged the returned candidature ship of respondent No.1 by filing an election petition before the learned Election Tribunal on the ground of large scale rigging committed by respondent No.1. Respondent No.1 contested the petition and filed an application for framing of preliminary issues as to the maintainability and legality of the Election Petition, which request was accepted and the following preliminary issues were framed:-

1. Whether the Election Petition is liable to dismissal under section 63 of Act of 1976 for non-compliance of provisions of section 55 of the Representation of People Act 1976?

2. Relief.

The learned Election Tribunal vide impugned judgment dated 02.09.2013 accepted the preliminary objections raised by respondent No.1 and dismissed the election petition of the appellant.

3. Learned counsel for the appellant argued that there was a short margin of votes between respondent No.1 and the appellant, therefore, it was expedient for the Tribunal to have looked into the facts of the case very carefully but instead the learned Tribunal dismissed the election petition in haste just on the basis of technical grounds. Further contended that the learned Tribunal has misread and misconstrued the provisions of relevant laws i.e. sections 54 and 55 of the Representation of People Act, 1976 as well as Order-VI Rule 15 of the Civil Procedure Code, 1908 with respect to the verification of the petition, so the impugned judgment is liable to be set aside, in that, appellant had a good case on merits because of committing a large number of illegalities, material irregularities, corrupt and illegal practices by the respondent No.1 himself or through his supporters / representatives. The learned counsel in support of his arguments placed reliance on the cases of Engr. Iqbal Zafar Jhagra and others vs. Khalilur Rehman and 4 others (2000 SCMR 250), S.M. Ayub vs. Syed Yousaf Shah etc. (PLD 1967 SC 486), Sardarzada Zafar Abbas and others vs. Syed Hassan Murtaza (PLD 2005 SC 600), Moulvi Abdul Qadir and others vs. Moulvi Abdul Wassay and others (2010 SCMR 1877), Hussain Warraich vs. Amir Iqbal and others (2015 SCMR 1186) and Feroze Ahmed Jamali Versus Masroor Ahmad Khan Jatoi etc. (2016 SCMR 750).

4. On the other hand, learned counsel for respondent No.1 defended the impugned judgment and submitted that the appellant had not verified each and every annexure/document appended with the Election Petition as required by law; that the appellant had also not signed each and every document annexed with the Election Petition on oath or solemn affirmation coupled with the fact that verification of the numbered paragraphs with reference to appellant’s own knowledge and upon information received and believed to be true were also conspicuously lacking and, therefore, the Election Petition of appellant has rightly been dismissed. The learned counsel also raised the question of limitation, as the appeal, after its return from the august Supreme Court of Pakistan, was not filed within time. The learned counsel in support of his arguments placed reliance on the cases of Ch. Muhammad Ashraf vs. Ranan Tariq Javed and others (2007 SCMR 34), Malik Umar Aslam vs. Sumera Malik and another (PLD 2007 SC 362), and Ch. Muhammad Ayaz vs. Asif Mehmood and others (2016 SCMR 849).

5. We have considered the arguments of learned counsel for the parties in the light of relevant provisions of law, the available record and the case law laid down by the apex Court. 6. Perusal of the impugned judgment would reveal that the election petition was dismissed on two grounds i) that the same was not signed, and ii) that the annexures were not attested. For the sake of convenience the relevant observations from the impugned judgment are hereby reproduced as under:-

“When the Election Petition and the annexures attached herewith are examined in juxtaposition with the provisions of law reproduced above, it cannot be maintained that the petitioner has complied with the provision of section 55(3) of the Act of 1976 thereby entailing penalty of dismissal of Election Petition under section 63 of Act of 1976………Coming to the case in hand, the various documents attached with the Election Petition are photo copies of the public documents not authenticated by the Competent Authority and private documents are also not attested even by Oath Commissioner and are of substantive nature to provide additional grounds to the case of the petitioner and are furnishing better particulars of allegations made in the Election Petition. The cassette attached with Election Petition is going to the root of allegation and required verification and authentication by the petitioner, therefore, joint affidavit at page 27 of the Election Petition cannot be considered compliance of section 55(3) of Act of 1976.”

Section 55 of the Act 1976 is regarding Contents of petition. Sub-section (1) says that:

Every election petition shall contain__ (a) A precise statement of the material facts on which the petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties 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.

Sub-section (3) of Section 55 of the Act ibid is to the following effect:-

“(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.

The penal provision for not complying with the provisions of Section 55 of the Act is contained in Section 63 of the Act.

7. A look at the original Election Petition would reveal that it consists of 17 pages. Each page has been signed by the appellant. At the end of the petition, although the signature of appellant is there, but the same is at the bottom and not at the conclusion of the petition. The verification has also been duly signed by him and attested by the Oath Commissioner. Similarly, all the annexures too have been signed by the appellant and at the end an Affidavit/Verification has been given on a separate Page whereunder annexures A1 to ZA and the contents therein as well as the contents of the accompanied election petition have been verified on oath.

8. The above discussion makes it clear that each and every page of the memo of appeal has been signed by the appellant. Duly attested verification of the appeal is there. The only discrepancy pointed out by the respondents regarding the appeal is that it does not bear the signatures of the appellant just after its conclusion (which is signed by his counsel). Yes, it is so but at the same time the memo of appeal bear the signatures of the appellant at its bottom in the right corner. To us, it does not fall in the mischief of Section 55(3) of the Act. The appellant cannot be ousted on the alleged short coming. This at the most can be termed as a hyper technicality and the respondent cannot get any benefit from it. We in our view are clear in our mind that such a hyper technicality cannot be allowed to be a stumbling block in the way of dispensation of justice. The question of verification of the numbered paragraphs with reference to appellant’s own knowledge and upon information received and believed to be true has once for all been settled by the apex Court in the case of Zafar Abbas and others vs. Syed Hassan Murtaza and others (PLD 2005 SC 600). The same view was also considered and endorsed in the case of Moulvi Abdul Qadir and others vs. Moulvi Abdul Wassay and others (2010 SCMR 1877) and again relied upon in the case of Feroze Ahmed Jamali vs. Masroor Ahmed Khan Jatoi etc. (2016 SCMR 750).

9. While coming to the second limb of the arguments of learned counsel for respondents, that the schedule and the annexures were also not verified within the meaning of Section 55 (3) of the Act, the perusal of the entire reecord would confirm that fact that each page and annexure has been signed by the appellant whereas instead of verifying each annexure, the appellant at the end has duly verified on Oath all the annexures from A1 to ZA on a separate page and said verification was duly attested by a person competent to administer Oath. The above said verification if considered within the meaning of Section 53 of the Act, then there is nothing left to be discussed. Though the law requires that each and every schedule and annexure has to be verified on Oath within the meaning of Order VI Rule 15 of Civil Procedure Code but this single verification on a separate page, verifying all the annexure, to our mind, would be substantial compliance of the provision of law. Verification of Annexure and Schedule has elaborately been discussed by a Larger Bench comprising Seven Honourable Judges of the apex Court in the case of Zafar Iqbal Jhagra and others vs. Khalil-ur-Rehman and others (2000 SCMR 250). While rendering the judgment, the Hon’ble Judges placed reliance on the case of S.M. Ayub vs. Yousaf Shah (PLD 1967 SC 486). Relevant citation from the Zafar Iqbal’s case (ibid) is reproduced for ready reference:-

“By ‘schedule or annex’ mentioned in subsection (3) of section 59 of the Act,’ is apparently meant such a Schedule and Annexure as either makes additional allegation of a substantive character against the opposite party, or at least furnishes better particulars of the allegations made in the petition, so as to give them the status of substantive grounds of the petition itself. The documents under consideration in the instant case, however, are not of that character and, in our opinion, they should not be understood to fall within the meaning of ‘schedule or annex’, mentioned in subsection (3) of section 59. As has been said above, they are referred to merely as supporting evidence of the particular corrupt or illegal practice mentioned in paragraph 10 of the petition and not as substantive grounds or expansion of those grounds. We are, consequently, disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signatures or the verification, required for Schedules and Annexures to the petition, was not fatal to the prosecution of the petition.

We are inclined to follow the law laid down in S.M. Ayub v. Yousaf Shah (supra) and accordingly, hold that the learned Tribunal rightly declined to dismiss the petition filed by Khalilur Rehman challenging the election of Anwar Kamal Khan.”

In the case of Sardarzada Zafar Abbas and others vs. Syed Hassan Murtaza and others (PLD 2005 Supreme Court 600), their lordships have observed that:-

“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.”

Similar view has been again expressed by the learned Apex Court in the case of Hussain Warraich vs. Amir Iqbal and others (2015 SCMR 1186), which runs as under:-

“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”…………….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 alongwith 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.”

As stated above, in this case not only the election petition has been duly attested from an Oath Commissioner but the annexures to the election petition have also been verified on a separate page before an Oath Commissioner and the objection of learned counsel for the respondent is that the same should have been on each and every page. From the verification and affidavit it is evident that the same were attested on 25.06.2013 at Islamabad before an Oath Commissioner and thus the requirement of Order-VI Rule 15 of the CPC have also been complied with.