Syed Wajahat Shah Vs ECP through its Secretary etc.

HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 3113 of 2024 Syed Wajahat Hussain Shah versus Election Commission of Pakistan and 6 others

JUDGMENT

Date of hearing: 16.01.2024 Ch. Ishtiaq Ahmad, Ch.

Petitioner(s) by: Zulfiqar Ahmad and Mr. Shafqat Hussain Naqvi, learned Advocates.

Ms. Bushra Rasheed Ch., Deputy Director / learned Senior Law Officer, Election Respondent(s) Commission of Pakistan.

No. 1 to 5 by: Hafiz Muhammad Saleem, learned Legal Advisor for Election Commission of Pakistan with Mujtaba Ahmad, Assistant Returning Officer NA-65 in person.

Mr. Muhammad Nasim Saqlain and Mir Haroon ul Rasheed, learned Assistant Attorney General.

Respondent No. 7 In person.

Sultan Tanvir Ahmad, J:- The present petition is filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 with the following prayer:-

“It is, therefore, most respectfully prayed that the Impugned action of the

respondents No. 4 & 6 regarding withdrawal of candidature of the petitioner as well as exclusion of name of the petitioner from the list of valid candidates dated 12-01-2024 from the Constituency of NA-65, Gujrat-IV may kindly be declared null and void being illegal and unlawful and result of political victimization and the appropriate direction may kindly be issued to the respondent No. 4 to include the name of the petitioner in Form-32 as a valid nominated candidate of Pakistan Tehreek-e- Insaf from the Constituency of NA-65, Gujrat-IV.

It is further prayed that during the pendency of the instant Petition, the operation of the Impugned list (Form-32) dated 12.01.2024 may kindly be suspended to the extent of the petitioner and the name of the petitioner be included in the list of contesting candidates of NA-65/Gujrat-IV. Any other relief, which this Hon’ble Court deems fit and proper, may also kindly be awarded to the appellant.”

2.Mr. Ishtiaq Ahmad Khan, learned counsel for the petitioner has submitted that the petitioner filed his nomination paper under section 60 of the Elections Act, 2017 (the “Act”) to contest the forthcoming election from constituency of NA-65 Gujrat-IV on 22.12.2023 through his duly authorized agent Syed Shafqat Hussain Naqvi-Advocate; that the nomination paper of the petitioner was accepted by the Returning Officer as evident from Form- 32 (list of validly nominated candidates) published on 11.01.2024, reflecting the name of the petitioner at serial No. 14, however, when the petitioner approached the office of the

Returning Officer on 12.01.2024 he heard rumor that his nomination paper has been withdrawn and later petitioner was shocked to know that respondent No. 6 / Ijaz Ahmad, illegally and unlawfully has withdrawn the nomination paper of the petitioner.

3.Conversely, Ms. Bushra Rasheed Ch.

Deputy Director / Senior Law Officer and Hafiz Muhammad Saleem, learned Legal Advisor for Election Commission of Pakistan as well as Mr.

Muhammad Nasim Saqlain & Mir Haroon ul Rasheed, learned Assistant Attorney General have opposed this petition and they have relied upon an undated authority letter (the “authority letter”) and stated that one Ijaz Ahmad son of Muhammad Shafi appeared before the Returning Officer, who has produced notice of withdrawal of candidature, containing signatures of the petitioner. They contended that section 65(1) of the Act requires notice in writing by a validly nominated candidate; there is no requirement in the said section that a validly nominated candidate or his authorized attorney should appear. It is further submitted that sub-section 2 of section 65 of the Act

provides that in no circumstances it is open to recall the cancellation.

4.I have heard the learned counsel for the parties and perused the record with their able assistance.

5.Both sides have given their different interpretation of section 65 of the Act. It is appropriate to reproduce the said section, which reads as follows:-

“65. Withdrawal.-

(1)A validly nominated candidate may, by notice in writing signed by him and delivered to the Returning Officer on or before the withdrawal date either by the candidate himself or by an advocate authorized in writing by the candidate, withdraw his candidature Explanation.- Authorization in favour of an advocate shall be attested by a Notary appointed under the Notaries Ordinance 1961 (XIX of 1961) or an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1873) or a Government servant in basic pay scale 17 and above.

(2)A notice of withdrawal under sub-section (1) shall, in no circumstances, be open to recall or cancellation.

(3)On receiving a notice of withdrawal under sub- section (1), the Returning Officer shall, if he is satisfied that the signature on the notice is that of the candidate, cause a copy of the notice to be affixed at a conspicuous place in his office. ” (Emphasis supplied)

6.Sub-section (1) of section 65 of the Act has two requirements; (i) a validly nominated candidate to give notice in writing for withdrawal of candidature, and (ii) it is delivered to the Returning Officer either by candidate himself or by an advocate authorized in writing by the candidate. Once the said requirements of law are fulfilled, the Returning Officer if satisfied that signature on the notice is that of the candidate, can cause a copy of notice to be affixed at conspicuous place in his office. The notice of withdrawal, if in accordance with law, in no circumstances is opened to be recalled or cancelled. In order to show that the candidate has delivered the notice of withdrawal himself or by an authorized advocate, the authority letter in favour of Ijaz Ahmad son of Muhammad Shafi is relied upon.

This authority letter contains stamp and initial of one Ch. Farhat Ullah purportedly an Oath Commissioner. Somehow, Ch. Farhat Ullah has appeared in the Court and gave his affidavit that he never stamped the authority letter or administered any oath or signed and attested the same. Notification No. 234 Genl/X.B.9(b) 4(2) dated 04.07.2014 (the “notification”) is also produced reflecting that Ch. Farhat Ullah was appointed as an Oath Commissioner under section 139(b) of the Code of Civil Procedure, 1908 and section 539 of the Code of Criminal Procedure 1898 from 04.07.2014 to 03.07.2017.

It is not disputed by anyone in the Court that the period for which Ch. Farhat Ullah was appointed as Oath Commissioner is not extended. The notification for appointment of Oath Commissioner has already expired. Ch.

Farhat Ullah Advocate has also stated at bar that his appointment was never extended and no attestation was made by him since 2017. The CNIC No. 34202-0711406-9 (his actual CNIC number) is also different from the one given in the authority letter.

7.Sub-section (1) of section 65 of the Act specifically provides that a candidate can appoint an advocate in writing to withdraw his candidature. The explanation to the said sub- section further explains the manners in which an advocate can be authorized to withdraw the candidature. The authority letter does not provide if Ijaz Ahmad son of Muhammad Shafi is an advocate. Ch. Farhat Ullah has negated that he is an Oath Commissioner appointed under Oaths Act, 1873 as already discussed and elaborated in his affidavit brought on record.

Moreover, the candidate himself appeared before this Court. He tendered his original affidavit and stated before the Court that his nomination paper has been withdrawn on the strength of fake power of attorney and he has never signed any such power in favour of Ijaz Ahmad.

8.On 15.01.2024 notices were issued with the direction that office of the Returning Officer must be represented. Today when this case was heard at 09:30 A.M. specific direction was given, in the presence of the representatives of Election Commission of

Pakistan, to ensure appearance of the Returning Officer. This case is then taken up at about 4:00 P.M., yet the Returning Officer has failed to appear. No reason is assigned for his non- appearance. The Assistant Returning Officer is present, who stated that the person who appeared in his office to withdraw the candidature was wearing uniform of advocates.

He confirmed that he has never seen Ijaz Ahmad appearing before the Returning Officer or attending the office but what he stated before the Court is heard by him from the Returning Officer. Learned Legal Advisor for Election Commission of Pakistan kept defending the case but could not deny that in order to substantiate his arguments no direct statement is available.

9.Hardly any fact has remained

disputed, which require any enquiry. The facts and circumstances of the case lead to irresistible conclusion that the authority letter is not in accordance with the law and factual stance taken by the respondents as to withdrawal of nomination paper, on the face of it, is incorrect. Therefore, the present petition is

accepted and the order of withdrawal of candidature of the petitioner is set-aside. The respondent / Election Commission of Pakistan to ensure deleting the name of the petitioner from the list of those candidates who have withdrawn their candidature and to issue appropriate list forthwith. The Returning Officer to proceed in accordance with law.

(Sultan Tanvir Ahmad) Iqbal* Judge