Biland Khan Vs Shahram Khan

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JUDGMENT SHEET

PESHAW HIGH COURT. SHAWAR

JUDICIAL D PARTMENT

W.P. No.l15-P t2024 Biland Khan Vs.

Shahram Khan and others

Date of hearing 17.01.2024

For Petitioner(s): Syed Aziz-ud-Din Kakakhel' Advocate.

For Respondent(s): 1Ws. Amir Javed, Advocate General Khyber Pakhtunkhwa' Daulat Khan Mohmand, DAG, Mohsin Kamran Siddiqui' Advocate and Barrister Waqar Ali Khan alongwith Mr. Simran Jehangir, Assistant Director (Legal), ECP.

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JUDGMENT

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IJAZ AR. J. Through this single judgment, we intend to decide the instant writ petition and writ Petition listed below, since in all these cases, similar question of law and facts are involved. The connected petitions are:- i. W.P. No.l16-Pi2024 titled, Biland Khan Vs. Shahram Khan and others.

4 ii. W.P. No.148-P12024 titled, Ihsan Ut Haq Vs. Muhammad Atif and others.

t iii. W.P. No.149-P/2024 titled, Shah Nam Muhammad Vs. Muhammad Atif and others.

iv. W.P. No.l50'P12024 titled, Biland Iqbal Vs. Shahram Khan and others.

W.P. No.l ts-P12024

) In the instant writ petition, respondent No.1 has submitted his nomination papers for contesting General

Elections, 2024 fromthe constituency of pK-52 Swabi-IV. v Later, the present petitioner has filed objections before the Returning officer and after proceeding with the matter, the Returning officer rejected the nomination papers of respondent No.l vide order dated 30.12.2023 for the following reasons:-

"Nomination papers of Mr. Shahram Khan are hereby rejected as he is absconder.

Letter No.479lADC/GC/Swabi dated 27.12.2023 and Police report clearly indicate that he is an absconder. Moreover, as per BHC's C.P. No.(s)87 of 2022, an absconder cannot contest an election.

Similarly, reliance can be placed on pLD 1985 Supreme Court 182'.

Being aggrieved, respondent No.I filed appeal before the Hon'ble Election Appellate Tribunal and the Hon,ble Tribunal vide the impugned judgment dated 05.01 .2024 accepted his appeal and the impugned order of the Returning Officer was set-aside. Hence, this writ petition.

W.P. No.116-P 12024

3.In the instant writ petition, respondent No.l has submitted his nomination papers for contesting General c Elections, 2024 from the Constituency of PK-53 Swabi-V. a

Later, the present petitioner has filed objections before the Returning Officer and after proceeding with the matter, the Returning Officer rejected the nomination papers of respondent No.l vide order dated 30.12.2023 for the following reasons:-

"The nomination papers of Mr. Shahram Khan are rejected because the police

clearance mention him as ,,absconder, and also the circle oflicer ACE through DRO has also informed that he is a proclaimed offender BHC's Cp No.g7 of 2022 bars an absconder from contesting election'r.

Being aggrieved, respondent No.l filed appeal before the Hon'ble Election Appellate Tribunal and the Hon,ble Tribunal vide the impugned judgment dated 05.01 .2024 accepted his appeal and the impugned order of the Returning Officer was set-aside. Hence, this writ petition.

W.P. No.148-P/2024

4.In the instant writ petition, respondent No.l has submitted his nomination papers for contesting General Elections, 2024 from the constituency of pK-59 Mardan-vl.

Later, the present petitioner has filed objections before the Returning Officer and after proceeding with the matter, the Returning Officer rejected the nomination papers of respondent No.1 for the following reasons:- *The affidavit submitted by the candidate shows that a number of FIRs are registered against him. As per Police Department, the candidate has failed to surrender himself before any Court of law and is an also absconder in FIR No.832 dated 09.05.2023 d, lodged at city Police Station, Mardan. I As per BHCs C.P No(s).87 of 2022, an absconder cannot contest election.

Moreover, reliance can also be made on PLD 1985 Supreme Court 182.

Hence, the nomination papers of Mr.

Muhammad Atif Khan based on above mentioned facts are hereby rejected".

Being aggrieved, respondent No.1 filed appeal before the Hon'ble Election Appellate Tribunal and the Hon,ble Tribunal vide the impugned judgment dated 05.01 .2024

accepted his appeal and the impugned order of the Returning v Officer was set-aside. Hence, this writ petition.

w.P. No.149-P 024

5.In the instant writ petition, respondent No.l has submitted his nomination papers for contesting General Elections, 2024 from the constituency of NA-22 Mardan-Il.

Later, the present petitioner has filed objections before the Returning officer and after proceeding with the matter, the Returning Officer rejected the nomination papers of respondent No.l vide order dated 30.12.2023 for the following reasons:-

o'i. The candidate has submitted three nomination forms with different proposer and seconder. However, all forms are without thumb impression and with difference in signatures, Since the applicant was not present, the signatures could not be verified and the counsel could not advance any plausible explanation for inconsistencies in signatures and non- availability of his thumb impression on the d nomination papers.

'/ ii. All the three nomination papers mention the constituency for candidatures as 59. iii. Two of nomination paper submitted by the candidate show the party as PTI while one form shows "Party affiliation to be produced at the time of allotment of symbol".

iv. Most columns of the affidavit submitted by the candidate are blank and the counsel did not bother to fill in these blank spaces which renders the affidavit doubtful. v. The alfidavit submitted by the candidate shows that five numbers of FIRs have been lodged against him on different counts. As per report of local police, the candidate has failed to appear before the court and defend himself against the allegations leveled against him. The police have

further informed that the candidate is on absconder in FIR No.832 dated 09.05.2023 Iodged at City Police Station, Mardan.

4.The summary Inquiry and verification of facts conducted under Section 62 of the Elections Act, 2017, the above mentioned discrepancies and absconding of the candidate have been proved and his nomination papers are rejected,r.

Being aggrieved, respondent No.I filed appeal before the Hon'ble Election Appellate Tribunal and the Hon,ble Tribunal vide the impugned judgment dated 05.01 .2024 accepted his appeal and the impugned order of the Returning Officer was set-aside. Hence, this writ petition.

w.P. No.150-P

6, In the instant writ petition, respondent No.l has submitted his nomination papers for contesting General Elections, 2024 from the Constituency of NA-20 Swabi-II.

Later, the present petitioner has filed objections before the Returning Officer and after proceeding with the matter, the Returning Officer rejected the nomination papers of respondent No.1 for the following reasons:- a ooThis is vide letter No.479lADC/GC/Swabi

dated 23.12.2023 by ADC sent to all

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returning officer of Swabi which has enclosed letter of Circle Officer, Anti- Corruption Swabi stating that the candidate was required in FIR No.l dated 02.06.2023 and has been declared as proclaimed offender (PO). Furthermore, it has attached judgment of Baluchistan High Court according to which, absconder cannot contest election. The nomination papers are therefore rejected".

Being aggrieved, respondent No.l filed appeal before the Hon'ble Election Appellate Tribunal and the Hon'ble

Tribunal vide the impugned judgment dated 05.0r .2024 accepted his appeal and the impugned order of the Returning

Officer was set-aside. Hence, this writ petition.

7.While hearing W.p. No.l4g_p/2024, we have noticed that the matter in hand required an authoritative judgment involving an important question of law i.e. "as to

ln to

the t of law. can he be owed to the el

as such, the matter was referred to the Hon'ble chief Justice for constitution of a Larger Bench. This is how, we are hearing this and the connected petitions having the same question of law involved.

8.The learned Advocate General Khyber Pakhtunkhwa, while assisting the court, referred to Section 60 of the Elections Act, 2017 (hereinafter to be referred as "the Act") which deals with the 'nomination for election,. He specifically referred to Section 60(2)(a) of .,the Act,' which provides that "the candidate shall submit a declaration that he has consented to the nomination and that he fulfills the in Ar

o-f the disquali.{ication spectfied in Article 63.for being elected as a Member". He then referred to Section 62(9)(c) of "the Act" and contended that since respondent No.1 was involved in numerous cases and has not surrendered to the Court of law, as such, in terms of Article 62(I)(f) of the Constitution

of Islamic Republic of pakistan, lgT3,he cannot be termed v as

sagacious, righteous, non-profligate, honest and ameen and as

such, the Returning Officer has rightly rejected his nomination papers. He further argued that Article 5(2) of the constitution of Islamic Republic of pakistan, 1973 provides that

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Thus,

according to him, where respondent No.l has failed to surrender to the court of law, how such person can be allowed to contest election. He placed reliance on the cases titled "Election commission of pakistan throueh its Secretarv Vs. Javaid Hashmi and others (pLD l9g9 SC 396). Mu Asif Tauseef Vs.

com-issio, of Pakistan throush chai"man. Isla-abad and othe"s (2022 scMR 1344). Ghula- Mustafa Jatoi vs.

Additional District & sessions Judge/Returnine officer.

NA. 158. Naushero Feroze and others 0994 SCMR . tzggl".

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Learned counsel representing the petitioner

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adopted the arguments of the worthy Advocate General, Khyber Pakhtunkhwa.

10.Learned counsel representing respondent No.l argued that Articles 62 and 63 of "the Act" have not provided for any such disqualification which could include mere absconsion. He fuither contended that under the provisions of

sections 60, 6l and 63 of "the Act" rlw Rule 54 of the Election Rules, 2017, the nomination papers as well as appeal can be submitted through an authorized person and there is no

need of submitting the same in person, according to him, the objections of the Returning officer were technical in nature and not recognized by law. He further argued that Article 62(l)(t) of the constitution of Islamic Republic of pakistan, 1973 is clear enough as there is no such declaration against respondent No.l that he is not sagacious, righteous, non_ profligate, honest or ameen. He further argued that inclusion of absconcion as one of the disqualifications would be reading into the constitution as well as in the Election laws.

11.The worthy Advocate General Khyber Pakhtunkhwa also assistant the court on the maintainability of these petitions and argued that in terms of Article 225 of the Constitution of Islamic Republic of pakistan, 1973, these petitions cannot further proceed as according to him, the election schedule has since been announced and that even ballot papers have been sent for printing. He placed reliance on the cases titled 66Gul ff an and another Vs- The State (PLD 1969 SC 89). Havat Bakhsh and others Vs. The State (PLD 1981 SC 26il. Ghulam Mustafa VS. District Police , Officer and others (PLD 2Ol4 Lahore 82).

Muhammad Mushtaq Vs. Additional Inspector General of Police (Investieation)" Lahore and others (2005 YLR 2427).

Mst. Mubarak Salman and others Vs. The State (PLD 2006

G M V

others (2002 cLC 281) and Intra court Appeal No.5696 of

12.Learned counsel representing the Election commission of Pakistan, however, stated that in view of Article 225 of the constitution of Isramic Republic of Pakistan, 1973, he has the instructions to question the maintainability of this and the connected petitions, as according to him, these petitions are not maintainable in view of the bar contained in Article 225 of the constitution of Islamic Republic of Pakistan, 1973.

13.Arguments heard and record perused.

14.Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 is relevant to the maintainability of this and the connected petitions. It is reproduced for the convenience of the Court as under:-

u225. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)".

15.This Article is considered in some cases as bar for the maintainability of writ petition against the orders of the Election Appellate Tribunals. The view of the superior

Court is that ' a

law

does not orov onv to him to seek redress the th e 199

can always be invoked".

16.In the case titled, 66Gh ulam Mu J Vs.

Additional District & sessions Judee/Returnine officer (1994 SCMR 1299)". the Hon'ble Supreme Court of pakistan has held as under:-

"26. The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegaUwithout jurisdiction and the effect of which is to disfranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable.

We may clarify that we do not intend to I overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove".

t7. Similarly, in the case titled 6'Election Commission Pakistan throush its Sec . Vs. Javaid Hashmi and others (PLD 1989 SC 396)". the Hon'ble Supreme Court of Pakistan, after examining the provisions of

Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, has held as under:-

"The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content".

18.Similar view was also expressed by the Hon'ble Supreme Court of Pakistan in the cases titled ,,Muhammad Azhar Siddiqui Vs. Federation of Pakistan and others (PLD 2012 SC 774). Auranezeb Khan Vs. Election Commissioner of Pakistan. Islamabad throueh Secretarv and others (PLD 2010 sc 34). Ali Raza Fatiana Vs. Aooellate Authoritv. Local Government. Sahiwal and others (2016 SCMR 439). fntesar lfu Bhatti Vs. Vice Chancellor- l( Universitv of Puniab. Lahore and others (PLD 2008 SC 310). Asha Ourban Ali and others Vs. Election Commission f of Pakistan throush Chief Election Commissioner and others (2020 CLC 01 Sindh). Rao Naeem Sarfaraz Vs.

Election Commission of Pakistan throush Chief Election Commissioner and others 2013 Lahore 67$. Haii Khuda Bux Nizamani Vs. Election Tribunal and others (2003 MLD 607 Karachi)- Israr Ahmed Jakhrani Vs.

District Returnins & Sessions Judse.

Jacobabad and others (PLD 2005 Karachi 598) and

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Muha mmad Vs. .I Kaim Ali and others fig97 MLD 2819 Karachi),,.

19.Thus, in view of the law laid down by the Hon'ble Supreme court of pakistan, the petitioner, in this case, is not, in any manner, disenfranchised rather he is seeking disenfranchisement of respondent No.1 and since the election schedule is already finalized and even notification of the validly nominated candidates have been frnarized,, as such, we are of the view that the bar contained in Article 225 of the constitution of Islamic Republic of pakistan, 1973 is equally applicable to the case of the petitioner, besides, as referred in the judgments of the superior Court, even in case, such a candidate is declared as returned candidate, yet his such election can be questioned before the Election Tribunal to be constituted thereafter.

20.For the reasons stated above, we hold that this and the connected writ petitions are not maintainable in view of the bar contained in Article 225 of the Constitution of Islamic Republic of Pakistan , 1973. The same are accordingly dismissed.

These are the detailed reasons for our short order even dated which is reproduced as under:-

ttFor the reasons to be recorded later, we are of the view that this and the connected petitions are hit by the provisions of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 duly interpreted by the Hon'ble Supreme Court of Pakistan in PLD 1989 SC 396

"Election Commission of Pakistan Vs Javaid Hashmi" 1994 SCMR 1299 *Ghulam Mustafa Jatoi Vs Additional District & Judee/Returnins Ses Officer. NA. 158. Naushero Feroze and others" and 2022 SCMR 1344 "Rana Muhammad Asif Tauseef Vs Election Commission of Pakistan throueh Chairman. Islamabad and others." Accordingly, this as well as the connected W.Ps No. 116-P1202 4 66Bilnnd tr(hen Vs Shahram Khan and others", No. 148- P12024 o'Ihsan Ul Haq Vs Muhammad Atif and others". No. 149-Pl2024 'o Shah Nam Muhammad Vs Muhammad Atif and others" and No. 150-P12024 ('Biland Iqbal Vs Shahram Khan and others" are dismissed".

Announced Dt:17.01.2024

I ne Judge

7 Judge

Judge

Hon'ble Mr. Justice Ishtiao Ibrflhim. Hon'ble Mr. Justice liaz Anwar and Hon'ble Mr. Justice Sahibzada Asadullah *Muhammadullah*