Muhammad Bilal Vs Appellate Election Tribunal Punjab etc.

Stereo HCJ DA 38

JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.1770 of 2024

Muhammad Bilal V/S Appellate Election Tribunal and others

JUDGMENT

Date of hearing 11.01.2024 Petitioner(s) by Mr. Sohail Shafiq, Advocate. Respondent(s) by Mr. Imran Arif Ranjha, Advocate with Ms. Bushra Rasheed, Deputy Director Law and Hafiz Adeel Ashraf, A.D for Election Commission of Pakistan.

Mr. Abid Saqi, ASC for Respondent No.3.

Muhammad Adeel, R.O. NA-58.

JAWAD HASSAN, J. Muhammad Bilal has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) with prayer to set aside the judgment dated 05.01.2024 (the “Impugned Judgment”) passed by the Election Appellate Tribunal/Respondent No.1 (the “Tribunal”) whereby appeal filed by the Respondent No.3/Ayaz Amir against the order dated 30.12.2023 passed by the Returning Officer of NA-58, Chakwal-I rejecting his nomination papers, was allowed.

A. BRIEF FACTS

2.In order to contest election, the Respondent No.3 (Ayaz Amir) filed his nomination papers from NA-58, Chakwal-I as per schedule of The Election Commission of Pakistan (the “ECP”). The Petitioner filed his objections before the Returning Officer in writing seeking rejection of nomination papers on the grounds of concealment of assets and properties and vide order dated 30.12.2023, the Returning Officer rejected nomination paper of aforesaid Respondent. Being dissatisfied from order of Returning

Officer, the Respondent No.3 filed Election Appeal No.33 of 2024 before the “Tribunal” which was allowed vide the “Impugned Judgment”, hence this petition.

B. PETITIONERS SUBMISSIONS

3.Learned counsel for the Petitioner inter alia argued that the “Impugned Judgment” is illegal and unconstitutional; that the “Tribunal” has not properly taken into consideration the revenue record as the Respondent No.3, at the one hand made concealment of income and assets of his own as well as his dependent children while on the other hand the worth of assets and their description has also been concealed in his nomination papers.

C. RESPONDENTS SUBMISSIONS

4.On the contrary, Mr. Abid Saqi, ASC appeared and vehemently controverted the arguments advanced by the learned counsel for the Petitioner and submitted that the “Impugned Judgment” has been passed strictly in accordance with the law, therefore, does not warrant any interference by this Bench.

5.We have heard the arguments and perused the record.

D. DETERMINATION BY THE BENCH

6.Before proceeding further it would be relevant to discuss the limited scope for interference in the “Impugned Judgment” passed by the “Tribunal”. The scope of judicial review of the High Court under Article 199 of the “Constitution” in election matter is confined to the extent of an order passed by election authority without lawful authority or it is coram non judice or mala fide and judicial review of the High Court cannot be enlarged to the cases relating to factual inquiry or in cases in which another view of the matter was also possible and if such view would have been taken it would not be illegal or unconstitutional. Reliance in this regard is placed on “Let. -Gen. (R) SALAHUDDIN TIRMIZI versus ELECTION COMMISSION OF PAKISTAN” (PLD 2008 Supreme Court 735) wherein it was further held that “the High Court is also not supposed to substitute its opinion on the question

of fact with the opinion formed by election authority or a Tribunal of competent jurisdiction”. The Petitioner has disputed the “Impugned Judgment” on the grounds that the “Tribunal” has overlooked the concealment made by the Respondent No.3 about his own as well as his dependents’ properties in the nomination paper. Pertinently, the procedure and mode for submission of statements of assets and liabilities through Form-B are dealt with under Section 60(2)(d) of the Election Act, 2017 (the “Act”) Act which is of much importance and reads as under:

60.Nomination for election.—(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by—

(a)a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 for being elected as a Member;

(b)a declaration that he has opened an exclusive account with a scheduled bank for the purpose of election expenses;

(c)an attested copy of his National Identity Card; and

(d)a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B.

Bare reading of above said section makes it quite obvious that clause 2(d) of Section 60 of the “Act” only demonstrates about nomination papers to be filed through Form-B by mentioning statement of assets and liabilities of a candidate, his spouse and dependent children on the preceding thirtieth day of June which the Respondent No.3 submitted before the Respondent No.2 and is not disputed by learned counsel for the Respondent- ECP. However, the only point for controversy is non-mentioning of the details of properties mentioned therein. It is to be noted that

Chapter-5 deals with the establishment of Returning Officer, duties, elections officials, notifications of election program, polling stations and Section 60 of the “Act” deals with nomination of elections. The process of scrutiny is given in detail under Section 62 of the “Act” where the law has permitted the voter of a constituency to file objections against the candidate of that constituency. Under Section 62(9)(b) of the “Act” the Returning Officer is empowered to reject nomination paper of a candidate of his own motion or upon an objection raised and found substantiated before him. We have examined the record carefully and noted that the Petitioner had filed the objections which are available at Page 98 of this petition which reads as under: a. Mr. Ayaz Ameer owned Land measuring 17 kanals and 7 marlas situated at Udherwal in Khewat number 670 as per record of right for the year 2021-22.

b. Mr. Ayaz Ameer owned Land measuring 1 kanal and 9 marlas situated at Bhagwal in Khewat number 346/343 as per record of right for year 2019-20.

c. Ayesha Ameer Khan (Ayaz Ameers daughter) owned 27 kanals 17 marlas in Balkasar in Khewat 1936, 1937 and 1938 as per record of rights for year 2020-21.

d. Rabia Ameer D/O Ayaz Ameer owned 17 kanals and 16 marlas in Khewat number 1277 in Balkasar as per record of right for year 2020-21.

e. Mehrun Nisa D/o Ayaz Ameer owned 17 kanals and 16 marlas in Khewat number 1277 in Balkasar as per record of right for year 2020-21.

7.We have seen that five properties belonging to District Chakwal were mentioned by the Respondent No.3 in Form-B appended with this petition (Page-11). It evinces from the “Impugned Judgment” that the “Tribunal”, after taking into consideration all grounds, observed that failure to mention the

location of properties, is not an error of substantial nature which could be remedied by the Respondent No.2 under proviso (ii) of Section 62(9)(d) of the “Act”. This Court while interpreting section 62(9)(d)(ii) of Elections Act, 2017, in CH. MUHAMMAD ASHRAF Versus Malik MUHAMMAD MUZAFFAR KHAN and others (2022 CLC 2045), held as under:

“Plain reading of above said section reveals in unequivocal terms that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.”

8.Even otherwise, Section 62(5) of the “Act” empowers the Respondent No.2 to require any authority or organization including a financial institution to produce any document or record or to furnish any information as may be necessary to determine facts relating to an objection to the candidature of a candidate but the said Respondent instead of complying with said requirement, straightaway rejected the nomination papers of the Respondent No.3, which is not warranted by law. It is settled principle of law that when law requires an act to be done in a particular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law. The Supreme Court in “MUHAMMAD HANIF ABBASI Versus IMRAN KHAN NIAZI and others” (PLD 2018 SC 189) laid down the principle as follows: “It is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly”.

9.In this view of the matter, we fully agree with the findings of the “Tribunal” and do not see any illegality or perversity in the “Impugned Judgment” which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the writ petition in hand, being devoid of any merit is hereby dismissed.

(ALI BAQAR NAJAFI) (JAWAD HASSAN)

JUDGE JUDGE

(SHAHID BILAL HASSAN)

JUDGE

Usman*