Non-Verification of Election Petition and Application to Condone Legal Defect

Non-Verification of Election Petition and Application to Condone Legal Defect Case Laws Civil Law Condonation of Delay Election Grounds Beyond Pleadings Inheritance Knowledge - Civil Law Litigation & Arbitration Misdeclaration of Assets Solutions - Civil Law Supreme Court Verification Mr. Justice Iqbal Hameedur Rahman in his judgment has decided the issue regarding non-verification of election petition and application to condone legal defect in Civil Appeal No. 946 of 2014.

1. This appeal is directed against the judgment dated 03.06.2014 passed by the Election Tribunal, Rawalpindi (hereinafter to be referred as “the Tribunal”), in E. P. No. 188/2013/RWP/05/2013, whereby the said petition has been dismissed by holding that the appellant has failed to produce authentic and reliable evidence in support of his petition.

2. The relevant facts are that the appellant and respondents contested election for the slot of Member Provincial Assembly (MPA) from the constituency of PP-9 Rawalpindi-IX during the general elections held on 11.05.2013. The respondent No. 1, Asif Mehmood, was declared as a Returned Candidate who had secured 29797 votes while the appellant was the runner up candidate by securing 29524 votes, there being a difference of 273 votes. The appellant through his election petition averred that respondent No. 1 had maneuvered his win through corrupt and illegal practices with the assistance of polling staff during the process of election who had exhorted and instigated the voters to vote for Pakistan Tehreek-e-Insaf (PTI) candidate i.e., respondent No. 1. It was further averred that the polling staff performed their duties in a partial manner on the premises of paradigm shift in the politics of the country. The appellant had stated in his petition that a complaint had been moved by one Muhammad Asim Afzal Kiani to the Returning Officer (RO) concerned against the Presiding Officer (PO) of polling station No. 53, but the same was not adhered to. It was also alleged that at polling station No. 78, from where the PO handed over a statement of count in Form-XIV to appellant’s polling agent namely Talia Kanwal, respondent No. 1 had secured 413 votes whereas Form-XIV depicts that he got 295 votes which figure was tampered with after comparing the results of the constituency of NA-54. The appellant in this regard had immediately moved an application to the RO on the same day alongwith Form-XIV as a fax copy and the appellant also moved an application on the next day to the DRO, Rawalpindi, which was stated to have been forwarded to the RO, but it was not decided till 15.05.2013. In this regard the appellant asserted that he had obtained the copy of the order dated 15.05.2013, but he found that the said application had already been dismissed on 12.05.2013 instead of 15.05.2013.

It was also alleged that massive irregularities and illegalities had been committed during the election process by the PO along with polling staff who extended undue advantage to respondent No. 1, a PTI candidate. That the RO did not count/check the rejected votes, many votes were cast in different polling stations where either the voters had died or their votes had already been casted especially indicating that such exercise was committed in Askari-14. The appellant had further alleged that mal-practices had been committed in polling stations No. 1, 2, 4 to 12, 22, 24, 32, 38, 48, 62 & 78 wherein results were handed over to the polling agent of the appellant on plain paper instead of Form-XIV. It was also alleged that polling papers had not been got signed by the POs. The appellant also alleged that respondent No. 1 was also disqualified to contest the election having violated Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as “the Constitution”) as he neither showed his assets nor disclosed his spouse as serving lady. That respondent No. 1 was also a tax evader. In the light of the above, the appellant had prayed that the election of respondent No. 1 be declared void and he be declared as duly elected MPA from PP-9 Rawalpindi-IX. The petition had duly been contested by respondent No. 1 who filed written replies. Thereafter, on framing of issues and recording of pro and contra evidence, the Tribunal dismissed the election petition of the appellant vide impugned judgment by holding that he has failed to produce any authentic and reliable evidence which could entail acceptance of the petition. Being aggrieved, the appellant has now filed the instant appeal.

3. The learned counsel for the appellant at the very outset argued that there is a very minor difference of 273 votes between the appellant and respondent No. 1 and that had occurred on account of clear interpolation of the result of polling station No. 78 wherein on the maneuvering of respondent No. 1 the PO had made interpolation on the statement of count by cutting the figure of 295 and awarding the respondent No. 1 with 413 votes, and if those are reversed the result would be in favour of the appellant and the said error had not been rectified through any counter signature by the PO as such the figure of 413 in favour of respondent No. 1 stands disputed, hence it could not have been taken into consideration. That respondent No. 1 in this regard failed to produce the PO, Mrs. Shaista Banu, in order to discharge his burden that the statement of count was correctly prepared whereas the appellant in support of his case produced Sabir Ayaz (PW-1) and Mst. Shaban Jumshad (PW-10) and their evidence had not been rebutted by respondent No. 1. He next vehemently argued that it was an established fact that in seven polling stations counting was done in the absence of the polling agent of the appellant and in this regard an application had been moved for recount, but the same had not been done. The main stress of the learned counsel for the appellant was that respondent No. 1 stood disqualified under Sections 12 & 14 of the Representation of the People Act, 1976 (hereinafter to be referred as “the Act”) and Articles 62 & 63 of the Constitution for concealment of his assets while filing nomination papers as was required under an oath but he had failed to give complete details of his property i.e., H. No. 39/10-B-III, Usman Street, Abadi No. 2, Tench Bhata, Rawalpindi, and in this regard the Tribunal had only held that the same being inherited property does not come within the circumference of assets. While relying upon the case of Iqbal Zafar Jhagra and others vs. Khalilur Rehman and 4 others (2000 SCMR 250), he argued that respondent No. 1 while filing his nomination papers was required to declare the same and by not declaring the said property he stood disqualified under the above referred provisions of laws because his mother had passed away on 07.03.2012 and he inherited H. No. 39/10-B-III, Usman Street, Abadi No.2, Tench Bhata, Rawalpindi, but the said property had not been declared by respondent No.1 and in this regard adverted our attention to nomination papers wherein respondent No. 1 under solemn affirmation had filed the said papers without declaring the said ancestral property as his asset. It was also further argued that there is a verification under oath that he has made a correct declaration, but by concealing the said property the respondent No. 1 comes within the purview of Articles 62 & 63 of the Constitution, which the Tribunal has failed to appreciate as such the instant appeal deserves acceptance and impugned judgment be set aside.

4. On the other hand, learned counsel for respondent No. 1 submitted that respondent No. 1 had filed written reply with certain preliminary objections that the election petition of the appellant is liable to be dismissed under Section 63 of the Act because the requirements of Section 55 of the Act have not been fulfilled. The appellant did not verify the contents of the petition along with schedule and annexures which was clear violation of Section 55 of the Act. Even the affidavit was not filed with the titled petition and the same fact was admitted by the appellant when he had filed an application under Section 62 of the Act seeking amendment in the election petition wherein para-2 he admitted that, “at the time of filing of election petition by inadvertence, the petitioner has not signed the verification, however the counsel for the petitioner has signed the certificate underneath the verification. This act of the petitioner was a human error as to overlook to do the needful.” It was further stated in the application that non-signing of the verification is a mere irregularity. The learned counsel further submitted that the said application had been filed with a considerable delay as such an application for condonation of delay was also filed. Even the petition had not been sworn on solemn affirmation.

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