Saeed Ullah Vs Returning Officer of PK-56 District Mardan.

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V JUDGMENT SHEET

PESHAWAR HIGH COURT. PESHAWAR

JUDICIAL DEPARTMENT

W.P No.134-PDA24 Saeed Ullah Vs.

The Returning Officer of PK-56 District Mardan and others

Date of hearing 11.01.2024 Petitioner(s) by: Mr. Asim Shamshad, Advocate. Respondent(s) by: Nemo (Motion).

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JUDGMENT

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IJAZ ANWAR. J. Through this single judgment, we intend to decide the instant writ petition, as well as the connected writ petitions bearine titled and No. '(Dost Muhammad Khan Vs Returnins Officer NA-21. Mardan-I and others' No.165 - P/2024 as in both these petitions, similar questions of law and facts are involved.

2.In the instant writ petition, petitioner has prayed for the following relief: -

nlt is, therefore, most humbly prayed that on acceptance of the instant petition, the impugned order of respondents No.l and 4 l- tl may hindly be set aside, the nomination papers of the petitioner may kindly be accepted, the petitioner moy be declared as qualified candidute for contesting General Elections-2L24for PK-56 Mardan or provide an opportunity to the petitioner to replace the

v name of the seconder in nomination papers in the interest ofjustice".

3.Brief facts of the instant case are that the petitioner had earlier submitted nomination papers before the Returning Officer of PK-56, Mardan-III, as a candidate for the seat of Provincial Assembly of Khyber pakhtunkhwa, however, his nomination papers were rejected on the ground that his seconder is not registered voter of his constituency (PK-56 Mardan-III). The petitioner filed an application to respondent No.1, however, the same was rejected. Being aggrieved he filed an appeal before the Appellate Tribunal, which was also dismissed. Hence the instant and the connected writ petitions.

4.Arguments heard and record perused.

5.In Saeedullah's case, the returning officer rejected his nomination papers for the following reasons: - "Mr. Saeedullah submitted papers for candidature to the seat of PK-56 Mardan-III for the upcoming GE to be held on $th Feb 2024. During the scrutiny, it was found that the seconder Mr. Shehbaz Ali's vote does not belong to PK-56, Mardan-III. Therefore, according to the Election Act 2017, Section 62(9) Clause O), L R.O for the PK-56 Mardan-III reject the nomination papers of Mr. 0 Saeedullah".

; 6. Similarly, the nomination papers of Dost Muhammad Khan were rejected for the following reasons: - "The proposer and seconder provided by the above- named candidate namely Mr. Pervez Khan S/o Wahid Zaman (as Proposer) and Mr. Muzafar Khan S/o Muhammad Israr (as seconder) were

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required to be eligible Voter of the contesting constituency (NA-21) under Section 60- Nominaiton for Election, however, the above proposq and seconder were not voter of the constituency NA-21 (Mardan-I)',.

7.Section 60 of the Election Act Z0l7 deals with the matter of nomination for election, it being relevant is reproduced as under:-

"60. Nomination for election.- (1) Any voter of a constituency, may propose or second the name of ony qualified person to be a candidate for Member for that constituency:

Provided that no voter shall subscribe to more than one nomination papers either as proposer ot seconder.

(2)Every nomination shall be made by a separate nomination paper on Form A sigued both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied bln

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

(b)a declaration that he has opened an exclusive aecount with a scheduled bankfor the purpose of election expenses;

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

(d)astatement of his assets and liabilities and // of his spouse and dependent children as on the preceding thirtieth day of June on Form-

B.

/ (3) Every nomination paper shall be delivered to the Returning Offtcer by the candidate or his proposer or seconder or if so authorized in writing by the candidate, by his nominee and the Returning Officer shaU acknowledge receipt of the nomination paper specifying the date and time of receipt.

Explanation.- Authorization in favour of an advocate shall be attested by a Notary appointed

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v under the Notaries Ordinance 196l (XD( of 1961) or an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1573) or any Government servant in basic pay scale 17 and above.

(4)A person may be nominated in the same constttuency by not more than Jive nomination papers,

(5)The Returning Offrcer shall assign a serial number to every nomination poper and endorse on the nomination paper the name of the person presenting it, and the date and time of its recetpt, ond inform such person of the time and place at which he shall hold scrutiny,

(6)The Returning Olftcer shall cause to be affrxed at a conspicuous place in his office a notice of every nomination pilper received by him containing the particulars of the candidate as shown in the nomination paper.

(7)The Returning Officer shall-

(a)make the nomination papers along wilh annexures open to inspection by the public; and (b) issue certifted copies ofthese documents in such manner and on payment of such fee as may be prescribed".

8.It is pertinent to mention here that the coresponding provision in the Representation of the People Act, 1976, was Section 12, it is also being relevant is reproduced below for the convenience of the Court, because earlier the Superior Courts have interpreted this provision of law

"12. Nomination for election. 19(1) Any elector of a constituency may propose or second the name of any duly qualiJied person to be a member for that constituency.

(2)Every nomination shall be made by a I separate nominafion paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany-

(a)a declaration that he has consented to the nomination and that hefu$ils the quaffications

specifted in Article 62 and is not subject to any of the disqualilications specifred in Article 63 or any other law for the time being in force for being elected as a memberl

(b)Omitted.

(c)o declaration that no loanfor an amount of two million rupees or more, obtained from any ban k, financial institution, cooperative s ociety or corporate body in his own name or in the name of his spouse ot any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaidfor more than one year from the due date, or has got such loan wrttten off;

(d)a declaration that he, his spouse ot any of his dependents or a business concern mainly owned by him or the aforesaid, is not in defaalt in payment of government dues or utility charges, including telephone, electricity, gas ond water charges of an amount in excess of ten thousand rupeesrfor over six months, at the time offtling of nomination papers;

(e)a statement specifying his educattonal qualifications, occupation, National ldentity Card number and National Tax Number, tf any, along with attested copies thereof; and (l) a statement of his assets and liabilities and those of his spouse and dependents on the prescribedform as on the preceding thirtieth day of lune;

Explanation.-For the purpose of this section, the expression-

(i)"loan" shall mean any loan, advance, credtt orftnance obtained or written offon or afier the 3lst day of December, 1985, but shall not include the loan the recovery of which has been stayed or suspended by any order of a court or tribunal, ( including the High Court and the Supremc Court ; (ii) "mainly owned" shall mean holding or controlling a majority interest in a business I concern ;

(iii)'laxes' include all toxes levied by Federal Government, Provincial Government or a local government, but shall not include taxes the recovery of which has been stayed or suspended by any order of a court or ffibunal; (t, "government dues and atility charges" shall, inter alia, include rent, charges of rest

houses or lodges owned by the Federal Government, Provincial Governments, local governments or corporations established or controlled by such governments, but shall not include the government dues and utilities charges the recovery of whtch has been stayed or suspended by any order of a court or tribunal (3) Every nomination paper shall be delivered to the Returning Officer by the candidate in person and the Returning Oficer shall acknowledge receipt of the nomination paper specifying the date and time of receipt

(4)A person may be nominated in the same constituency by not more than five nomination papefs.

(5)[omittedJ

(6)The Returning Offtcer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the fimc and place at which he shall hold scrutiny.

(7)The Returning OfJicer shall cause to be affixed at a conspicuous place in hk office a notice of every nomination paper received by him containing the parttculars of the candidate as shown in the nomination paper.

(8)The nomination form and accompanying declarations and statements shall be open to inspection by the public, and copies thereof may be made available by the Commission in such monnet and on payment of such fee as may be prescribed".

9 In the series ofjudgments on this point, we may d 4 first refer to the case titled "Mudassar Oawum Nahra Vs Election Tribunal, Puniab. Lahore and others" (2003 MLD 1089 Lahoret decided by larger bench of Hon'ble Lahore High Court, the relevant portion of which is reproduced as under:-

"8. Section 12(1) of the Representation of the People Act, 1976, provides that any elector of a constituency may propose ot second the name

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of any duly qualtfrcd person to be a member of that constituency. Similarly, para. 39 of the Manual of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan, provides that it is necessary that the person proposing ot seconding the nomination of a , duly qualified person to be a memberfrom a constituenql must belong to that constituency and should be registered as elector in the electoral roll of any one of the electoral areas comprised in the constituency. Furthermore, law has taken into consideration the commission of such a mistake, Section U@ of the abovesaid Act provides that a person may be nominated in the same constituency by .ftve nomination papers. Similarly, para. 40 of the abovesaid Manual of Instructions provides that a candidate may.file ftve nomination papers from a constituency. Section 14(3)(b) of the Representatton of the People Act, 1976, provides that the Returning Olficer may reject the nomination papers if he is satisfied that the proposer ot the seconder is not qualifted to subscribe to the nomination paper. Similarly, section U(3)(c) provides for the rejection of the nomination papers, tf any provision of sectio4 12 or section 13 has not been complied with.

9.The above mentioned shows that a person not belonging to the concerned constituency cannot be a proposer ot a seconder and the nomination papers of a candidate are liable to be rejected if the proposers or the seconder are not qualifrcd to subscribe to the nomination papers. Second proviso to section 14(3)(d) of the Representation of the People Act, 1976, provides that the Retarning. Officer can allow the removal of only those defects which are not of substantial nature. The unqualiJied proposer or the seconder leads to the rejection of nominafion papers as provided in section 14(3)(b) and, therefore, such a defect cannot be d held to be not of substantial nature because such a defect can be removed only by the substitution of a nominafion paper and the law does not ) provide for the substitution of the proposers or the seconders and the safety valve has been provided to the candidates by permitting them by Jiling up toJive nomination papers.

10.Similarly, in case titled "Nadeem Shafi Vs Tariq Shuiq Butt snd others" (PLD 2016 SC 944t, the Apex Court

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while relying upon the judgment of larger bench of the High Court determined the matter in the following manner: - "7. The nomination form nft) for election to general seats of wards in Union Councils/ Municipal Committees requires a declaration by the proposer and the seconder to the effect that he is registered as a voter at serial # such and such of electoral rollfor the electoral area of ward # such and such of the union council/municipal committee. The declaration with respect to the proposer and/or seconder being the essence of his qualiftcation, therefore, if he is not such a voter of the relevant constituency he cannot act as proposer and/or seconder. The question of the object and purpose of nomination by a proposer and/or seconder have been dealt with by a judgment of this Court cited as Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284) wherein at paragraphs 78 and 79 this Court held that the proposer and seconder are recommcndees with respect to the candidate nominated for election. The ineluctable conclusion is that the proposer and the seconder must be voters of the same constituency, who put forward the name of a duly qualiJied candidate whom they considered suitable to represent the electorate. It is an endorsement of the nominated candidate by voter(s) of the samc constituency. Therefore, should it be discovered that the proposer and/or seconder are not voters ofthe said constituency it would be tantamaunt to no nomination at all ond thus a defect of a substantial nature. Rule 14(7) of the 2013 Rules only empowers a Returning Offrcer to allow a defect other than one of a substantial nature to be remedied, such as the name, or the corresponding serial number in the electoral roll or other particulars of the candi.dates or his proposet or seconder and son as to ensure that the same are accutate. But if the name of the candidate and his particulars are altogether missing and/or same is I the positton of the proposer/seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the posttion with regard to substitution as the said rule does not envisage substitution of the name of the disqualifud proposer and/or seconder and the Returning

Officer has no lawful authority to allow an altogether new person to be replaced as a seconder or proposer for a penon who is absolutely disqualiJied or ineligible to propose or second. In the present case the petitioner, did not ask the Returning Officer for such substitution; in fact it is not his case in the mcmo of appeal that he either requested the Returning Ofricer to allow the substitution later allowed to him by the appellate forum. The Returning Ofricer and the Appellate authority are barred.from correcting a defect of a substantial nature; if the foct that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substttution or rectiJication of a defective nomination paper. In the case reported as Mudassar Qayyum Nahra Vs. Election Tribunal, Punjab, Lahore (2003 MLD 1089) (full bench of the Lahore High Court), it has been held:-

"The unqaaliftedproposer or seconder leads to the rejection of nomination papers as provided in section l4(3)(b) and, therefore, such a defect cannot be held to be not of substantial nature because such a defect can be removed only by the substitution of the proposers ot the seconders and the safety valve has been provided to the candidates by permitting them by Jiling up to fwe nomination papers".

Whilst the aforesaid Jinding is with respect to the equivalent provision of the Representation of the People Act, 1976 we see no reason to differ from an eminently logical interpretation of the same. The sameJinding is therefore upheld with respect to Rule 14 (7) ibid; tt does not allow substitution of proposer or seconder who is found to be unquaffied to subscribe to a nomination paper",

11.Similarly, In case titled "Rana MuhammAd Taiammal Hussain Vs Rana Shaukat Mahmood" (PLD 2007 Supreme Court 2771, it is held as under:-

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8.Moreover, in our considered opinion, wtth reference to a duty cost upon a quatijied elector to propose or second a candidate to represent the mcmbers of the constituency in an elected house is mandatory and not directory. Two judgmcnts can be cited for determining the intention of the Legislature to ascertain whether section l2(l) of the Act, 1976 is mandatory or directory. Firstly in Re. Presidential Election, 1974 (AIR I9Z4 SC 1682), a principle has been laid down that where a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision ts directory or mandatory.It has beenfurther observed that t,it is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as whole. Secondly, in Lachmi Narain v. Union of India AIR 1976 SC 714, the principle discussed hereinabove has been followed, Similarly, the same principle has been highlighted in the case of Ahmed Hassan v. Government of Punjab PLD 2004 sc 694.

9.It has been pointed out hereinabove that the object of section 12(1) of the Act, 1976 is that elector of the constituency may prcpose or second the name of any duly quaffied person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word'may' used in section 12(1) has to be read as 'shall' and on having held that the word 'may' can be u tnterchanged with the word'shall' to enhance the I intention of the legislature, the candidate is bound and under mandatory obligation to ensure/iling of / nominafion papers from the constttuency duly proposed and seconded by the electors therefrom. There is no cavil with the proposition that once tt is found out that a provision of the law is mandatory by its implication, the same is bound to be strictlyfollowing as has been held in Dalchand

v. Municipal Corporation Bhopal AIR lgg3 SC

10.Thus it is held that the plea of the learned counselfor appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR l99t Civil Cases 374) is not approved for the reasons mentioned herein above because of thefact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule ts to be announced and any nomination paper found invalid cannot be allowed to be validated afierwards, even in exercise of powers either by the Returning Oflicer or the Election Tribunal or for that matter High Court or this Court, in terms of section 14(1)(2) of theAct, 1976. A perasal of this provision also indicates that the poh,ers of the Returning Officer have been controlledfor not rejecting the nomination papers on any defect which ts not of substantial nature, whereas defect in any submttted nomination paperc, duly proposed and seconded by a candidate, is of a substantial nature and provisions of sections 12 and 14 of the Act, 1976 are mandatory in nature as held in MuhammadAbbas v. Returning Officer 1993 MLD 2509, Qaisir lqbal v. Ch. Asad Raza 2002 YLR 2401, Asif Khan v. Returning Offtcer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089. Thus on having approved the principle discussed in these judgmcnts, the earlier judgment in the case of Ishaq Dar (ibtd) on the point is not approved",

12.The arguments of the learned counsel for the petitioner that in view of the recent delimitation carried out by the Election Commission of Pakistan the name of the / seconder or for that matter the proposer has been shown in another constifuency is of no help to the petitioners, because the Election Commission of Pakistan has completed the

delimitation process on 30.fi.2023 and the electoral rolls were finalizedby the Election commission of pakistan and material particulars were available on the application of any candidate. Even otherwise, the Returning officer is bound by the entries made inthe nominationpapers withinthe meaning of Section 62(6) of the Act ibid, in the electoral rolls on scrutiny finding the name of the proposer or seconder not to occur on the electoral list for the said constituency, as such, the Returning officer was having no other option but to reject the nomination papers.

13, Keeping in view the above, we find no merit in the instant and the connected writ petition, it is accordingly dismissed.

Announced Dt211.01.2024.

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JUDGE

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JUDGE

(DB)Hon'ble Mr. Justice Iiaz Anwar and Hon'ble Mr. Justice Sved Arshad Ali.

*Amir Shehzad*