P L D 2020 Balochistan 47
Before Abdullah Baloch, J
ABDUL QAHAR KHAN WADAN--- Petitioner
Versus
ZAMARAK KHAN ACHAKZAI and 12 others ---Respondents
Election Petition No.20 of 2018, decided on 2nd August, 2019.
(a) Elections Act (XXXIII of 2017) ---
----S. 144(4) ---Civil Procedure Code (V of 1908), O. VI, R. 15 & O.VII, R. 11 & S. 139---
Notaries Ordinance (XIX of 1961), S. 8 (1) (e) ---Notaries (West Pakistan Amendment)
Ordinance (W. P. Ord. I of 1966), S. 2---Election petition, verification of ---Verif ication of
election petition from a Notary Public ---Effect ---Every election petition and Schedule or
Annexures was to be signed and verified by the petitioner in the manner as laid down in the
Civil Procedure Code, 1908 for verification of pleadings ---Pleadings had to be verified on
oath to be administered by a person who was duly authorized in that behalf by the High Court i.e. the Oath Commissioner and not the Notary Public ---In the present case, election
petition was neither verified nor attested by a pe rson authorized to administer oath---
Requirements of S.144(4) of Elections Act, 2017 had not been complied, in circumstances ---
Petitioner was bound to verify the election petition in the same manner as prescribed for
verification of plaint by the Civil Procedure Code, 1908---Only authorized person or officer before whom the oath was required to be administered or the contents of election petition had to be verified was the Oath Commissioner ---Oath had not been administered to the petitioner
by a person authorized to do so, in circumstances ---Petitioner having failed to comply with
the provisions of law with regard to verifying the election petition and administering oath through authorized person, election petition was not maintainable which was dismissed, i n
circumstances.
Iqbal Zafar Jhagra v. Khalil -ur-Rehman 2000 SCMR 250; Malik Umar Aslam v.
Sumera Malik and another PLD 2007 SC 362; Gatron (Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072; Haji Ch. Masood Akhtar v. Election Commission of Pakis tan
2005 CLC 172 and Zia ur Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.
(b) Administration of justice ---
---Ignorance of law is no excuse.
(c) Administration of justice ---
----If law had prescribed a method for doing of a thing in a partic ular manner then such
provision of law should be followed in letter and spirit and achieving or attaining the
objective of performing or doing of a thing in a manner other than the provided manner
would not be permitted under the law.
Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 rel.
M/s. Muhammad Amir Rana, Barrister Zahoor Hassan Jamot, Muhammad Dawood
and Muhammad Arif Achakzai for Applicant/Respondent No.1.
Naseebullah Tareen for Respondent No.1/Petitioner.
M/s. Nasrullah Khan Acha kzai and Abdul Khair Achakzai for Respsondent No.3.
Date of hearing: 26th July, 2019.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Election Petition No.20 of 2018,
on the basis of C.M.A. No.891 of 2019 filed by the applicant/respondent No.1 (Zamara k
Khan Achakzai) under Section 144(4) of the Elections Act 2017 read with Order VII, Rule
11, C.P.C. for rejection of the petition due to non- compliance of Section 144(4) of ibid Act.
2. Facts of the case are that the petitioner (Abdul Qahar Wadan) and res pondent No.1
(Zamarak Khan Achakzai) along with respondents Nos.2 to 13 contested the general elections from PB -2I Killah Abdullah -I, held on 25th July 2018. According to Final
Consolidated Result (Form -49), prepared by thc Returning Officer ("R.O.") of the said
Constituency, Zamarak Khan Achakzai, Respondent No.1 obtained 9878 votes, while the petitioner namely Abdul Qahar Khan Wadan secured 6413 votes, thus vide Notification No.F.2(42)/2018- Cord.- dated 7th August 2018, the Election Commission of Pakistan
declared Zamark Khan Achakzai, respondent No.1, as returned candidate from the said constituency. The petitioner being aggrieved of the said notification filed the present election petition, with the following reliefs:
"It is accordingly, respectfully prayed that this Hon'ble Tribunal may call for the whole record of the election of the constituency in question with the direction that the same may be kept in safe custody till final disposal of the matter and on examining the same coupled wi th recording evidence, recounting thumb impression examination
of the polling station mentioned above be made and also verified from NADRA, thereafter the election of the return candidate/respondent No.1 be declared void, and the petitioner be declared as elected representative of the constituency PB -21 Killa
Abdullah -1,
OR
To declare the election of returning candidate is partially void and that fresh poll be ordered on the following 11 polling stations or that the election as a whole be declared void an d fresh poll be conducted on the whole constituency
OR
To pass any other appropriate order as deems fit and proper in the circumstances of
the case with the cast [cost] of petition in the interest of justice."
3. The petition was contested by the respondent No.1 (returned candidate) and the
respondent No.3 (Haji Habibullah Kakozai) by filing their writtcn statements, while rest of the respondents were proceeded against ex parte. Hence, issues were framed and the petitioner (returned candidate) produced fo urteen (14) witnesses. The petitioner himself also
entered in the witness box and recorded his statement. In rebuttal, respondent No.1 has not produced any witness in his defense and has only recorded his own statement. After recording evidence, the C.M.A. No.1417 of 2018 for verification of thumb impressions of
voters put on counterfoils through NADRA was allowed, vide order dated 31st December 2018 and accordingly the NADRA has produced its report as Exb.C/1/Part -1/1-13 and
Exb.C/1/Part -2/1-132.
4, In the meantime, the applicant/respondent No.1 (retuned candidate) filed C.M.A.
No.891 of 2019 for rejection of petition due to non- compliance of section 144(4) of the
Elections Act, 2017. The petitioner contested the said application by filing rejoinder thereof .
Since, through the instant application, the maintainability of the petition has been questioned, thus before further proceeding with the matter, it would be appropriate to first decide the question of maintainability of the petition. Accordingly, argumen ts were heard from both the
sides.
5. Learned counsel for applicant/respondent No.1 (returned candidate) contended that
while filing this petition, the petitioner has verified the petition from a Notary Public, while the provisions of Section 144(4) of the Elections Act provides that such verification shall be
made as per provisions of Code of Civil Procedure, 1908 (Act V of 1908). He referred the Section 2 of the Notaries (West Pakistan Amendment) Ordinance, 1966 (W.P. Ordinance I of 1966), whereby the Sec tion 8(1)(e) of the Notaries (West Pakistan Amendment) Ordinance,
1961 was substituted, hence the Notary Public was not authorized to administer oath and to verify the contents of the petition, thus non -verification of pleadings on oath or solemn
affirmati on before the person authorized to administration oath, renders the petition to be
rejected.
6. On the other hand the learned counsel for petitioner (Abdul Qahar Wadan) and for
respondent No.3 (Habibullah Kakozai) unanimously contended that such objection cannot be taken at this belated stage, when otherwise, after filing written statements, issues were framed and this Tribunal has not only examined the entire evidence of parties, but also procured documentary evidence from the NADRA. It has further been contended that the petitioner was not obliged to verify the contents of the petition on oath before a person, who is authorized to administer the oath and the verification on oath made by the petitioner before the Notary Public would be sufficient to meet th e requirement of the law as provided under
Section 8 of the Notaries Ordinance, 1961 (XIX of 1961). It has also been contended that it has been remained the consistent view of the Superior Courts that the cases must be decided on its own merits nd not on t he basis of mere technicalities, thus prayed for rejection of
applicaion and decision of the case on merits.
7. Heard the learned counsel for parties and perused the record with their valuable
assistance. The moot question requires consideration in the mat ter is the interpretation of
Section 144(4) of the Elections Act, which reads as under:
"(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."
8. The above provisions of the Elections Act provides that the petition shall be verified
in the manner as laid down in the Civil Procedure Code and in such behalf the provisions of Order VI, Rule 15, C.P.C. have provided the manner that is required to be adopted for
verification of an Election Petition, thus for facilitation Order VI, Rule 15 is reproduced herein 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."
9. In continuation of above provisions of law it is observed that Section 139, C.P.C. has
provided that any Court or Magistrate or any officer or other person appointed by High Court
for the purpose or any other Court or any officer specially empowered in this behalf, can only administer oath. The provisions of Section 139, C.P.C. reads as under:
"139. Oath on affidavit by whom to be administered.- In the case of any affidavit
under this Code --
(a) any Court or Magistrate, or
(b) any officer or other person whom a High Court may appoint in this behalf, or ;
(c) any officer appointed by any other Court which the [Provincial Government] has generally or specially empowered in this behalf may administer the oath t o the
deponent."
10. The subsection (b) of section 139,C.P.C. has made it clear that any officer or other
person whom a High Court may appoint in this behalf is empowered to administer oath and to verify the contents of the petition. Paragraph 5 of the Oat hs Act, 1873 provides the
appointment of Oath Commissioner, which reads as under: (sic)
"5. Oath Commissioners -their appointment, fees, etc. (i) Under section 139(b) of the
Code of Civil Procedure approximately two or four legal practitioners at the Headq uarters of each district and one all each station, where there is a Subordinate
Judge, are appointed as Commissioners for the purpose of administering oaths and
affirmations.
(ii) Such Commissioners are ordinarily appointed from among legal practitioners of not less than three years' standing at the Bar. They may continue as until the expiry of thirteen years reckoned from the date of first admission as a legal practitioner, provided their work is satisfactory, or until the further orders of the Hig Court,
whichever is earlier." [BOLD ADDED].
11. The above referred provisions of law 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 verificati on of pleadings. The verification of pleadings has been
provided under Order VI, Rule 15, C.P.C., which when read with Section 139 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 dul y authorized in that behalf by the High Court i.e. the Oath Commissioner
and not the Notary Public. It is an admitted position that the petition filed by the petitioner (Abdul Qahar Wadan) though mentions that is on oath administered by the Notary Public, but the legal position is that the petition was neither verified nor attested by a person authorized to administer oath and as such it could not be said that requirements of Section
144(4) of the Elections Act were complied with. Learned counsel counsel for petitioner
mentioned in his petition that the same is verified on oath and the stamp of Notary Public establish that the same was verified by the Notary Public, who otherwise has absolutely no powers in such behalf.
12. So far as the objection taken by t he learned counsel for the petitioner that verification
was made through Notary Public in view of section 8 of the Notaries Ordinance, 1961 (XIX
of 1961), however, for facilitation section 8 is reproduced herein below:
"8. Functions of notaries. - (1) A no tary may do all or any of the following acts by
virtue of his office, namely: -
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand bet ter security;
(c) note or protest the dis -honour by non- acceptance or non -payment of any
promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881, or serve notice of suc h
note or protest;
(d) note and draw up ships protest, boats protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottomry and respondantia bonds, charter parties and other mercantile documents;
(g) prepare, attest or authenticate any instrument intended to take effect in any
country or place outside Pakistan in such form and language as may conform to the
law of the place where such deed is intended to operate;
(h) translate, and verify the translation of, any document from one language into
another;
(i) any other act which may be prescribed.
(2) No act specified in subsection (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal."
13. The minute perusal of subsection (1) of clause (e) of Section 8 of ibid Ordinance
reflects though such powers were earlier bestowed upon the Notary Public, but subsequently the same were amended/substituted in the Notaries (West Pakistan Amendment) Ordinance,
1966 (W.P. Ordinance I of 1966), in the following manner:
2. Amendment of section 8 of Ordinance XIX of 1961.- In the Notaries Ordinance,
1961 (XIX of 1961), in its application to the Province of West Pakistan, in section 8,
in such- section (1), for clause (e), the following clause shall be substituted namely: -
"(e) administer oath to, or take affidavit from, any person, in relation to the matters enumerated in this section"
14. The ab ove provisions of law and more particularly the provisions of section 144(4) of
the Elections Act, 2017, have made it obligatory upon the person, who has challenged the Elections, to verify the petition in the same manner as prescribed for verification of plaint by the Code of Civil Procedure and in such behalf the provisions of Order VI, Rule 15, of C.P.C. referred above have, been made applicable and after amendment in the Notaries (West
Pakistan Amendment) Ordinance, 1966 (W.P. Ordinance I of 1966), the only authorized
person or officer before whom the oath was required to be administered or to whom had to verified the contents of petition, is Oath Commissioner. Admittedly, in the case in hand such verification of petition or administration of oath was no t taken by the Oath Commissioner.
Hence, I have no hesitation to hold that the oath has not been administered to the petitioner by a person authorized to do so as per requirements of Order VI, Rule 15 read with Section 139, C.P.C., while for maintainabilit y of an Election Petition it was essential that such
verification of petition or administration of oath was carried out through the Oath Commissioner. The larger Bench of the Hon'ble Supreme Court comprising of Seven Hon'ble Judges, in an identical case of Iqbal Zafar Jhagra v. Khalil -ur-Rehman, 2000 SCMR 250,
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 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 ad minister oath and as such it could not, be said that
requirements 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 Ifiikhar Hussain Gillani did not co mply the provisions of section 36 of the Act, 1976
and are of the view that these reasons do not suffer from any legal infirmity."
15. Similar view has also been taken in the case of Malik Umar Aslam v. Sumera Malik
and another PLD 2007 Supreme Court 362, wherein it has held as under:
"5. We have heard parties' counsel at length and have also taken into consideration the material so made available on record. A perusal of the scheme of the Act, 1976 relating to filing of Election Petition under Chapter VII reveals that the lawgivers, to ensure expeditious decision of election disputes, has authorized the Election Tribunal to regularize the proceedings itself, instead of following the technicalities of C.P.C. except application of some provisions specifically made applicable for limited
perposes. Under section 55(3) of the Act, 1976 it has been made obligatory upon the person, who has challenged the Elections, to verify the same in the manner prescribed for verification of plaint by C.P.C., thus by reference, the provisions of Order VI, Rule 15, C.P.C. have been made applicable. As per its provision, every pleading is required to be verified on oath or solemn affirmation at the foot by the party or by one
of the parties to pleadings or by some other person to t he satisfaction of the Court
acquainted with the facts of the case. It may not be out of context to note that the
verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with section 6 of the Oaths Act, 1873, by adding the words "on
oath or solemn affirmation after the word verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath, the Court has been empow ered to proceed case
ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. without calling for an affidavit in ex parte proof. We believe that there is no point to address ourselves on this question namely if verification" on oath has not been made before the person authorized to administer the oath, the same would not be considered to be valid verification because for the purpose of taking oath one has to bind down himself to speak the truth otherwise he or she would be liable for the curse of
Almighty Allah if the truth is not spoken. Under section 6 of the Oaths Act, 1873, the procedure has been prescribed for taking the oath duly attested by an authorized person. Admittedly in instant case, verification has not made on oath before an
authorized person, therefore, the appellant, on realizing the major defect in the Election Petition, submitted an application seeking amendment in the petition, to the extent of verifying it on oath, accordingly."
It has further been observed in the above judgement (supra) that:
"...Therefore, we are of the opinion that amendment in the verification clause of the petition was not permissible, as the application was submitted much after the period of limitation i.e. 45 days as provided in section 52(2) of the Act 1976 for filing of
Election Petition. In addition to it, a right in favour of the respondent has been created, as such we are not persuaded to subscribe to the view point of the learned counsel for appellant.
10. Lastly, it was contended by the learned counsel that the appellant could not move
application for amendment of verification clause immediately after filing of the
written statement by respondent No.1 because there was no such objection nor issue was framed in this behalf. In this context, suffice to observe that ignorance of law is
no excuse. The appellant who had approached the Election Tribunal was bound to fulfil the requirement of the law including the verification of petition in terms of section 55(3) of the Act, 1976. It may also be added at this juncture that
notwithstanding the fact that the defect has been pointed out by the respondent or not, the Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully particularly in the cases where non -
compliance of mandatory provision prescribes a penalty."
16. The objection so taken by the learned counsel for petitioner as well as the learned
counsesl for respondent No.3 that such objection cannot be taken at this belated stage, as
during filing written statements, no such objection was taken and even no issue in such behalf was framed. In this context, it is necessary to mention here that ignorance of law is no excuse. The petitioner who had approached the Tribuna l was bound to fulfill all the
requirements of the law including the verification of petition in terms of section 144 of the
Act, 1976. Irrespective of the fact that either the parties have pointed out any legal defect or
otherwise, this Court is always empowered to ensure that the law under which proceedings have been initiated before it stands complied with fully, particularly in the cases where . non-compliance of mandatory provision prescribes penal consequences. Even otherwise, it is settled law that a challenge to the maintainability of the petition, can be raised at any stage,
even before the Hon'ble Supreme Court. Thus, the objection of the learned counsel for the petitioner is without any substance. Reliance in this regard is placed on the case of G atron
(Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072, wherein it has been held as
under:
"It is also well -settled that a pure question of law could be raised at any stage of the
appeal depending upon the facts and circumstances of each case. R efer Haji Abdullah
Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690), wherein it was held that in proceeding before Original and Appellate Courts and not in Revisional Courts whose jurisdiction to interfere is determined by the statute th at
creates the jurisdiction, a question of law can be raised at any stage."
Likewise, similar view has been taken in the case of Haji Ch. Masood Akhtar v.
Election Commission of Pakistan 2005 CLC 172, wherein it was held as under:
"17. I am also not impr essed by the submissions that there is delay in taking this
objection by respondent No.3 or that such delay would amount to waiver or estoppel. Once the consensus of legal opinion is found to be that the provisions of Act, 1976 are mandatory in nature, the re is no difficulty in arriving at the conclusion that there
cannot be any waiver or estoppel against a Statute."
The Hon'ble Court in another case titled Zia ur Rehman v. Syed Ahmed Hussain and
others, reported in 2014 SCMR 1015, has held as under:
"Therefore, compliance of the statutory reqauirement is an integral part of the election
petition and true copy supplied to the returned candidate should as a sine qua non
contain the due verification and attestation by the prescribed authority and certifi ed to
be true copy by the election petitioner in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation." The Court in the said judgment further came to the conclusion that if an objection with reference to the
afore -referred provision qua the maintainability is raised, it has to decide it as a
preliminary objection. The Court held "when so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the elect ion petition, the Court is required to go into the question and decide the
preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold as the Court is left with no option
except to dismiss the same." [BOLD ADDED]
17. It is well settled principle of law that, if the law had prescribed a method for doing of
a thing in a particular manner, such provision of law was to be followed strictly in letter and
spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided manner, would not be permitted under the law. The Hon'ble apex Court
in the case of Zia- ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015, has held
that, "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-complian ce of this provision carries a penal consequence 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".
18. In view of above discussion with reference to cited provisions of law and the referred
law citations, it has been established that the petitioner while filing the petition has failed to comply with the provisions of law with regard to verifying the petition and administering oath through the authorized person, thus the petition is not maintainable at all. The application under Section 144(4) of the Elections Act 2017 filed by the petitioner is accepted/allowed and in consequence thereof the election petition, is dismissed.
ZC/125/Bal . Petition dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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