PLJ 2025 Quetta 75
[Before Election Tribunal/H.C. Balochistan, Quetta]
Present: M UHAMMAD AAMIR NAWAZ RANA, J.
ALI NAWAZ --Appellant
versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and others --Respondents
E.A. No. 18 of 2023, heard on 22.3.2024.
Balochistan Local Government (Amendment) Act, 2022--
----S. 41- A--Balchistan Local Government (Election) Rules, 2013, Rr. 72, 73, 74 & 79--Civil
Procedure Code, (V of 1908), O.VI R. 15--Election of Vice- Chairman --Appellant and
respondent had secured equal votes --Spoiling of two votes of appellant --Election petition --
Dismissed --No inquiry was conducted --Challenge to --The Election Tribunal should had
considered actual controversy between parties and should had decided status of spoilt votes in
light of Rules, 2013 dealing with subject matter but instead of doing so, Election Tribunal
resorted to dismiss election petition filed by appellant purely on technical grounds --Substantial
compliance of Order VI Rule 15 CPC had been done --In such like petitions, hypertechnical
knockouts should always be avoided and matters should be decided on merits --Order passed by
Election Tribunal was not sustainable in eyes of law --Appeal allowed. [Pp.79, 80 & 82] A, B
& C
PLD 2005 SC 600 & 2016 SCMR 750 ref.
Messrs Syed Ayaz Zahoor and Aster Mehak, Advocates for Appellant.
Messrs Shahzad Aslam and Muhammad Raees, Assistant Directors (Law), Election Commission
of Pakistan (ECP) alongwith Mr. Naseer Ahmed Bangulzai, Senior Personal Assistant ECP and Mr. Muhammad Ali Rakhshani, Additional Advocate General for Respondent Nos. 1 to 3 & 5.
Mr. Sikandar Ali Junejo, Advocate for Respondent No. 4.
Date of hearing: 26.3.2024.
J
UDGMENT
The appellant was contesting the elections of Vice Chairman, District Council, Usta Muhammad,
which was held on 06.07.2023. It is the case of the appellant that for the seat of Vice Chairman, 28 votes had been cast and he had obtained 14 votes, whereas Respondent No. 4 had also obtained the same number of votes but 02 votes of appellant were illegally declared as “spoilt” by the Returning Officer just to favour Respondent No. 4, who was subsequently declared as returned candidate contrary to facts and law.
2. Record transpires that the appellant had filed Election Petition before the District
Judge/Election Tribunal, Usta Muhammad, which was dismissed vide impugned order dated 08.09.2023.
3. Learned counsel for the appellant mainly contended that 02 votes of appellant had
illegally been spoilt and no inquiry was conducted by the Returning Officer. Per learned counsel,
the Election Tribunal also ignored this aspect of the matter and merely on technical grounds dismissed the Election Petition so filed by the appellant.
4. On the contrary, learned counsel for Respondent No. 4, while supporting the impugned
order, submitted that the compliance of Rule 74 of the Balochistan Local Government (Election) Rules, 2013 ( ‘the Rules, 2013’ ) was mandatory. Per learned counsel, Rule 79 of the Rules, 2013
also envisages that the Election Tribunal may dismiss an Election Petition if the provisions of Rules 72, 73 and 74 are not complied with. In support of his contentions, learned counsel relied
upon the cases titled as Sardar Abdul Rehman v. Abdul Kareem Khetran, 1[1] Sardar Muhammad
Naseem Khan v. Returning Officer, PP -12,2[2] Hina Manzoor v. Malik Ibrar Ahmed, 3[3] Zia-ur-
Rehman v. Syed Ahmed Hussain, 4[4] Engineer Iqbal Hussain Jhagra v. Khalil -ur-Rehman 5[5]
and Lt. Col. (Retired) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana & others. 6[6]
5. Learned Assistant Director (Law), Election Commission of Pakistan ( ‘ECP’) supported
the impugned order.
Arguments heard. Relevant record perused.
6. The appellant was contesting the elections for the seat of Vice Chairman, District
Council, Usta Muhammad and as per statement of count and declaration of result, 28 votes were
polled. The Respondent No. 4 obtained 14 votes, whereas the appellant obtained 12 votes and 02 votes of appellant were rejected by the Returning Officer by declaring the same as spoilt. The
appellant has alleged that his 02 votes were illegally rejected by the Returning Officer without
conducting any inquiry.
7. Record transpires that the Election Petition filed by the appellant was dismissed by the
Election Tribunal, Usta Muhammad on the ground that the same was not properly verified in
accordance with Rule 74 of the Rules, 2013, which contemplates verification of pleadings in
accordance with Order VI Rule 15 CPC. Learned Election Tribunal also rejected the verification
on oath by the Oath Commissioner Mubarak Ali Siyal, Advocate High Court, referring the same
as contrary to law.
8. For resolving the controversy, Rule 74, 79 of the Rules, 2013 as well as Order VI Rule 15
CPC are relevant, which are reproduced herein below:
“74. Contents of petition. --(1) 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 as possible as statement 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; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely: -
(a) that the election of the returned candidate is void and that the petitioner or some other
person has been duly elected, or
(b) that the election as a whole is void.
(3) Every election petition and every document annexed 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 the pleadings and documents.
75. ------
76. ------
78. ------
79. Dismissal of petition during trial. --The Tribunal may dismiss an election petition
if,--
(a) the provisions of Rules 72, 73 or 74 have not been complied with; or
1[1]. 2021 SCMR 82.
2[2]. 2015 SCMR 1698.
3[3]. PLD 2015 SC 369.
4[4]. 2014 SCMR 1015.
5[5]. 2000 SCMR 250.
6[6]. 2015 SCMR 1585.
(b) the allegations contained therein are vague or do not disclose the commission of any
corrupt practice, material irregularity, or other illegal act.
Order VI, Rule 15
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 be signed by the person making it and shall state the date
on which and the place at which it was signed.”
9. Learned counsel for Respondent No. 4 has also raised objection that as per Rule 74 (3) of
the Rules, 2013, every document annexed with the petition had to be signed and verified by the appellant. Learned counsel has stated that since the documents filed with the Election Petition before the Election Tribunal were not either signed or verified by the appellant, therefore, the Election Tribunal had rightly dismissed the Election Petition filed by the appellant.
10. I have examined the documents appended by the appellant alongwith the Election
Petition before the Election Tribunal which include instructions for elections of Chairman and Vice Chairman of District Council, Province of Balochistan, nomination form, ballot paper account, statement of count, declaration of result and certain applications to Returning Officers, District Returning Officers as well as to ECP. The perusal of documents annexed by the appellant with the Election Petition reveals that said documents are not those documents propounding and setting out any independent or additional substantial grounds for challenging the election or furnishing at least better particulars of the allegations in the petition so as to give such documents a status of independent and substantial grounds of the petition itself challenging
the election on the basis thereof, rather the case of the appellant before the Election Tribunal was whether 02 votes declared spoilt by the Returning Officer were in fact legal votes or otherwise? The Election Tribunal should have considered the actual controversy between the parties and should have decided the status of spoilt votes in the light of the Rules, 2013 dealing with the subject matter but instead of doing so, the Election Tribunal resorted to dismiss the election petition filed by the appellant purely on technical grounds.
11. The second objection which prevailed upon the Election Tribunal was that the appellant
had not verified the Election Petition by specifically mentioning that which paragraphs of
Election Petition are true as per knowledge of appellant and which paras are verified upon the information received and believed to be true by the appellant.
12. The Supreme Court, in number of cases, has held that validity of verification shall depend
on facts of each case. In the case titled as Sardarzada Zafar Abbas v. Syed Hassan, Murtaza, 7
[7]
the Supreme Court has held that such objections are of trivial in nature. Admittedly, the Election Petition filed by the appellant had been signed by the appellant, which fact had been verified by the Oath Commissioner, Mr. Mubarak Ali Siyal, Advocate High Court; the place of verification is also mentioned therein as Dera Murad Jamali and the date is also mentioned upon the page as 21.07.2023. The Advocate of appellant i.e . Mr. Niaz Muhammad Satakzai Advocate has also
signed the same, so substantial compliance of Order VI Rule 15 CPC has been done. Even otherwise, in such like petitions, hypertechnical knockouts should always be avoided and the matters should be decided on merits. Reliance in this regard is being placed upon the case tilted as Feroze Ahmed Jamali v. Masroor Ahmad Khan Jatoi, 8
[8] relevant excerpt whereof is
reproduced:
“6. For resolving the first question it may be stated that the learned Tribunal has
non-suited the appellant on the reasoning that he has not specifically mentioned as to
which paragraphs of the election petition are verified upon his own knowledge and which
are upon information received and believed to be true, suffice it to say that this Court in
7[7]. 2005 PLD 600 SC.
8[8]. 2016 SCMR 750.
the case reported as Sardarzada Zafar Abbas and others v. Syed Hassan, Murtaza and
others (PLD 2005 SC 600) has held such objection to not be very material. Although the
Court in Zafar Abbas (supra) held that the validity of the verification shall depend on the facts of each case, but in the instant matter we do not find the so- called lapse indicated
by the learned Tribunal to be of any material consequence, warranting dismissal of the election petition on this ground simpliciter. The case of Zafar Abbas (s upra) has been
endorsed in Moulvi Abdul Qadir (supra) and reliance by the learned counsel upon the latter in this regard is rightly placed and his case/plea quite aptly falls within the ratio of the law laid down therein. Besides we have examined the verification part of the election petition and we find that it complies with the provisions of Order VI, Rule 15 of the Code of Civil Procedure, 1908 (C.P.C.) in letter and spirit. The reasons of the learned Tribunal and the argument of the respondent that it does not mention the date, day and place of the verification or the proper identification of the appellant, suffice it to say that at the bottom of the petition (in the verification portion), though not in typed form the date has been clearly written by hand. There is another stamp of the Oath Commissioner appearing on the left of the verification portion of the election petition which mentions the date as 26.6.2013 (albeit also written by hand). With respect to attestation, the Oath Commissioner in clear and unequivocal terms has stamped ‘on S.A. before me’ (i.e. on solemn affirmation before me), which clearly indicates that the appellant was duly present before the Oath Commissioner at the time of attestation and was administered oath. It is also spelt out from the Oath Commissioner’s stamp that the election petition was attested at Sukkur. As regards identification of the appellant, he has been duly identified by Mukesh Kumar, Advocate who has mentioned of knowing the appellant personally; thus we are of the candid view that in light of the law laid down by this Court in Lt. -Col. (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others
(2015 SCMR 1585) there is no defect in the verification.
7. Now coming to the annexures, we have examined all the documents which were
appended by the appellant along with the election petition and they comprise of the notification of the ECP dated 22.5.2013, statements of count, various provisional results, applications for recounting of votes and complaints made by the appellant regarding anomalies in the election process. Suffice it to say that these are not the documents
propounding and setting out any independent or additional substantial grounds for
challen ging the election or furnishing at least better particulars of the allegations in
the petition so as to give such documents a status of independent and substantial
grounds of the petition itself challenging the election on the basis thereof (emphasis
supplied) which can be said to be the annexures requiring verification in terms of the law laid down by this Court in the case reported as S. M. Ayub v. (1) Syed Yusaf Shah, (2) Major Tilla Khan Sadozai and (3) Election Tribunal, West Pakistan, Lahore (PLD 1967 SC 486) the relevant paragraph of which is reproduced below: --
“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 allegations 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 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.”
Thus only those annexures require verification which fall within the category mentioned above, but we find that this is not the situation in the instant matter”.
(Emphasis supplied)
In the light of dictum laid down by the Supreme Court in somewhat identical case ( supra), the
impugned order dated 08.09.2023 passed by the District Judge/Election Tribunal, Usta Muhammad is not sustainable in the eyes of law, therefore, same is set -aside and the matter is
remanded to the Election Tribunal. The Election Tribunal is directed to decide the Election
Petition filed by the appellant on merits in accordance with law.
The case law referred by learned counsel for Respondent No. 4 is distinguishable from the facts and circumstances of the instant case.
The above shall constitute reasoning of my short order dated 22.03.2024.
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