7/2018 E.P Muzaffar Ali Brohi (Petitioner) V/S Meer Nadir Ali Magsi & others (Respondent)

7/2018 E.P Muzaffar Ali Brohi (Petitioner) V/S Meer Nadir Ali Magsi & others (Respondent) Sindh High Court

Bench: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui(Author) Order Date: 15-JAN-19

The question now which remains for resolution is whether the omission on part of the Oath Commissioner in mentioning, in the attestation of verification or the affidavit, if the oath had been administered to the appellant/deponent, shall have the effect of invalidating the election petition. As regards the above, suffice it to say that according to the provisions of Article 129, illustration (e) of the Qanun-e-Shahadat Order, 1984, there is presumption of correctness attached to an official act and it could not be controverted by the learned counsel for the respondent that the oath commissioner who is appointed by the respective High Courts under the law shall be performing the official acts for which he was appointed. However, he has stressed that the administration of oath before attestation by the Oath Commissioner should not be presumed in this case rather should reflect from the contents of attestation. 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).