2017 PLP 282 (MLD)

ZAFARULLAH KHAN KHAKWANI, J.

Brief facts of the case are that Mukhtar Ahmad, petitioner submitted his nomination paper as candidate for the Seat of General Member of Ward No. 2, Union Council No. 130 Rindan, Tehsil Liaqat Pur of Rahim Yar Khan being proposed by Muhammad Maqbool and seconded by Irfan Ali, respondents Nos. 3 and 4 respectively. Later on 12.10.2015 the petitioner submitted an application for permission to replace his proposer and seconder on the ground that both of them had been won over by his rival candidates. The said application was dismissed and nomination paper of the petitioner was also rejected on the ground of absence of proposer and seconder before the Returning Officer. By not accepting the decision, the petitioner filed an appeal which was accepted by the appellate authority and matter was remanded to the Returning Officer to decide the same afresh. In post remand proceedings the Returning Officer vide order dated 30.10.2015 again rejected nomination paper of the petitioner on the ground that the proposer and seconder of the petitioner have given affidavits against the petitioner. The appeal filed by the petitioner was also dismissed by the appellate authority/respondent No. 2 vide order dated 31.10.2015. Hence this petition.

2. Learned counsel for the petitioner submits that respondents Nos. 3 and 4 had proposed and seconded nomination of the petitioner and had duly signed and thumb marked nomination paper in presence of the petitioner who has duly sworn affidavit in this respect but the respondents have failed to appreciate this aspect. Further submits that simple denial of the signatures by the proposer and seconder was not enough and in such a situation it was obligation of respondent No. 1 under the law to conduct inquiry to ascertain genuineness or otherwise of the claim of respondents Nos.3 and

4. He adds that to conduct a summary inquiry the respondents could have adverted to the provisions of Article 84 of the Qanun-e-Shahadat Order, 1984 whereby they have been empowered to make a comparison of signatures, finger-impressions etc. in order to ascertain whether the same have been made by the person to whom the same is attributed or not but the respondents did not bother to accede to this submission of the petitioner and straightway rejected the nomination paper without application of judicious mind and as such the impugned orders are liable to be set aside and nomination paper merits to be accepted.

3. In the wake of provisions of Article 84 of the Qanun-e-Shahadat Order, 1984, the learned Law Officer does not seriously defend the impugned orders. Learned counsel for respondents Nos. 4 and 5, however, strenuously contested the petition. He submitted that respondents Nos. 3 and 4 never signed the nomination papers of the petitioner and that signatures of the said respondents on the nomination paper were bogus as such the respondents have rightly rejected nomination paper of the petitioner.

4. Arguments heard and record perused.

5. The impugned order dated 30.10.2015 passed by respondent No. 1 evinces that nomination paper of the petitioner was rejected on the ground that his proposer and seconder have denied having signed the nomination paper. The said order does not depict as to whether the Returning Officer conducted any summary inquiry into the matter or he straightway held the signatures/thumb impression of the proposer and seconder bogus one only on relying on their statements/affidavits.

6. The Punjab Local Governments (Conduct of Elections) Rules 2013 provide a procedure for submission and process of nomination papers. Rule 12 of the said Rules deals with Nomination for elections which says that after announcement of the Election Schedule by the Election Commission, the Returning Officer shall give public notice inviting nominations upon which any voter of a union council or ward may propose or second the name of any duly qualified person to be a candidate for an election of a member or the Chairman and the Vice Chairman of a Union Council by a prescribed nomination paper, which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made, be signed by the candidate. Rule 14 relates to scrutiny of the nomination paper by the Returning Officer. Since this rule is of vital importance for the purpose of adjudication of this petition as such relevant portion of the same is reproduced hereunder:-- Scrutiny.- (1) The scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers, and any voter of the constituency with the permission of the Returning Officer before the commencement of the scrutiny, and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 12. (2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination. (3) The Returning Officer may, either on his own accord or on an objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that: (a) the candidate is not qualified to be elected as a member, Chairman and Vice-Chairman, or Mayor and Deputy Mayor; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (c) any provision of Rule 12 or Rule 13 has not been complied with; (d) the signature or thumb impression of the proposer or the seconder is not genuine.

7. Plain reading of the above rule 3(d) would show that the Returning Officer is empowered to reject nomination paper of a candidate if he is satisfied that signature or thumb impression of the proposer or the seconder is not genuine. This means that if an objection is raised that the signature or thumb impression of the proposer or the seconder is not genuine the Returning Officer should satisfy him with regard to genuineness of the allegation and in this regard he can conduct a summary inquiry. The impugned order does not reveal that any such inquiry was conducted. So it cannot be inferred as to from which source the Returning Officer satisfied him that the signatures of the proposer and seconder were bogus. Once the law has provided a summary inquiry it was incumbent upon the Returning Officer to hold a (summary) inquiry to satisfy his conscience about genuineness of the signatures especially keeping in view peculiar facts and circumstances of this case and keeping in view earlier allegation by the petitioner that his proposer and seconder had been abducted and later that they have been won over by his rival candidates. In view of well established principle reiterated by the Hon'ble Supreme Court in Mst. Aziz Begum v. Federation of Pakistan and others (PLD 1990 SC 899) that the "law may be blind but the Judge is not", the most significant fact of this case which must not lose sight is that most of the population in rural areas of our country comprise of rustic humble families living under the influence of their masters/land lords and become easy prey and surrender to the pressure of the landlords. In view of the fact that after submission of a nomination paper the same cannot be changed at the time of scrutiny it may become very easy for a rival to defeat a candidate on technical ground by winning over his proposer or seconder because at this stage the candidate becomes helpless. Perhaps in order to cope with such situation, the legislature empowered a Returning Officer to conduct summary inquiry. Article 84 of the Qanun-e-Shahadat provides a mechanism for verification of signatures/thumb impressions in summary proceedings/inquiry. It says as under: "

84. Comparison of signature, writing or seal with others admitted or proved.

(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. (2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. (3) This Article applies also, with any necessary modifications, to finger-impressions. Bare reading of this Article would make it clear that in order to ascertain the genuineness or otherwise of the signatures, the Courts have been empowered to make the comparison of the signatures, words or figures written over the disputed documents with those of the admitted one and to exercise their judgments of resemblance of admitted writing on record. It appears that this provision of law escaped notice of consideration by the respondents which could be very helpful in checking the genuineness of signatures of the proposer and seconder in summary proceedings. While dealing with Article 84 of Qanun-e-Shahadat Order, 1984 the Hon'ble Supreme Court in the case titled Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85) held as under:-- "It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy." Under the aforementioned provision of law empowering the court to itself compare the signatures and the dictum laid down by the apex Court in this regard, I have carefully gone through the process. Both the proposer and the seconder are present in person. With the assistance of learned counsel for the parties, both Muhammad Maqbool, proposer/ respondent No. 3 and Irfan Ali, seconder/respondent No. 4 have been directed to put their signatures and thumb impressions on the plain white papers given to them. Muhammad Maqbool respondent has put his thumb marks on the given paper whereas Irfan Ali respondent has put his thumb mark and also signatures on the other paper given to him. I have put both these papers carrying signatures/thumb mark and the disputed one on the nomination paper, in juxtaposition and found after comparison that these thumb marks/signatures have more than 95% similarity and resemblance. Even learned counsel for the private respondents could not deny this resemblance. These papers have been Marked-A, B & C, signed by me and placed on the file. In this view of the matter possibility of respondents Nos. 3 and 4 having been won over by the rival candidate of the petitioner after putting their signatures/thumb marks on nomination paper, cannot be ruled out.

8. In the light of above, this petition is allowed, the impugned orders of respondents Nos. 1 and 2 are set aside and respondent No. 1 is directed to accept nomination papers of the petitioner and to proceed further in accordance with law.

9. It may, however, be mentioned that this petition has been allowed on the basis of tentative assessment permitted by law. If the petitioner is declared returned candidate and respondents Nos. 3 and 4, if so advised, want to challenge genuineness of the signatures/thumb impression, they would be at liberty to avail their remedy before the Election Tribunal where they would have full opportunity to substantiate their stance by producing evidence. ZC/M-14/L Petition allowed.