1993 PLP 2497 (MLD)

S.M. Ayub v. Syed Yousuf Shah and others PLD 1967 SC 486 ref. Dr.A. Basit for Appellant. Date of hearing; 12th September 1993. RAJA AFRASIAB HAN, J.‑‑‑The appellant, Muhammad Naseer Khan has instituted Election Appeal No.33/1993 and Election Appeal No.41 of 1993 before this Election Tribunal challenging the validity of the orders dated 1‑9‑1993 and 2‑9‑1993 passed by the Returning Officer NA.‑89 Sialkot‑VI and P.P.‑110‑Sialkot‑Cum Narowal‑I whereby the nomination papers of the appellant were rejected on the ground that the nomination papers as also the declaration and oath appended to the said papers were not signed by him (candidate) and that no other person could be, authorized to sign the same. Both the appeals shall be disposed of together because common question of law is involved. 2. Shortly mentioned the facts are that Muhammad Nasir Khan met an accident while playing Polo and in consequence thereof, he was injured. He, therefore, went to England for treatment and remained under treatment for some time. On 27‑8‑1993, on knowing that elections will shortly be held in Pakistan, he authorized one Muhammad Hanif Khan to act and sign the necessary papers regarding the election to the Assemblies. Muhammad Hanif Khan acting on behalf of the appellant signed the nomination papers in respect of NA‑89 Sher Muhammad and Muhammad Ayub Khan signed the nomination papers as a proposer and seconder, respectively. Similarly Muhammad Hanif Khan also signed the requisite declarations in respect of PP‑110. The nomination in respect of the said constituency was proposed by Ali Muhammad and seconded by Nazir Ahmad. In these cases the Returning Officer took up the nomination papers of the appellant for scrutiny and rejected the same observing that the nomination papers as also the declaration and oath are all to be signed by the candidate himself and as he has not done so, the same were liable to rejection.. 3. DrA. Basit, learned counsel for the appellant was of view that as the presence of the candidate at the time of submission of the nomination papers was not necessary and the same can be lawfully submitted on behalf of the candidate by his nominee, proposer or seconder, it should be inferred that nomination papers as well as the declaration appended thereto can also be lawfully signed on behalf of the candidate by his authorized agent or nominee. Learned counsel submitted that Hanif Khan was regularly and lawfully authorized by the appellant to sign the nomination papers for any constituency of any Assembly. He has drawn our attention to the authority letter issued by the appellant to Muhammad Hanif Khan in this behalf. Learned counsel also argues that even if it was an error, it could not be termed as substantial in nature within the meaning of proviso (ii) to clause (ii) to sub‑section (3) of Section 14 of the Representation of the People Act, 1976 (hereinafter referred to as the Act). This being so, he contends that the Returning Officer has failed to exercise his jurisdiction vested in him by law in not accepting his nomination papers. Learned counsel has relied upon S.M. Ayub v. Syed Yousuf Shah etc. PLD 1967 S.C. 486 to contend that the provisions of Election Laws are directory in nature and the impugned orders are liable to be set aside for that reason alone. 4. There appears to be no force in the contenti8n of the learned counsel. On 27th August 1993, an authority letter was sent to Muhammad Hanif Khan by the appellant to sign all the requisite papers in respect of elections of the Assemblies. This would not advance the case of the appellant because the amendments introduced in Section 12 of the Act inserting sub?section (2‑A), (2‑B), (2‑C) and (2‑D) providing for the details of the? declaration mentioned in clause ‑(IV) of sub‑section (2) of the Act were made on 27‑8‑1993. It is ‑an admitted position that earlier amendments in section 12 of the Act by substituting sub‑section (2) for the‑then existing sub‑section (2) of the Act was made on 19‑8‑1993. Learned counsel for the appellant quite sanguinely stated that the appellant was not aware of either the substitution of sub‑section (2) alongwith its clauses (i) (ii) (iii) and (iv) dated 19‑8‑1993 or of the details of the declaration, subsequently amended on 27‑8‑1993. The position that emerges is that the mandate of law that the candidate has to make declaration on oath under his own signatures cannot but be held not to have been complied with by him if he is content with sending a fax to Muhammad Hanif Khan on 27‑8‑1993 which was received by the later on 28‑8‑1993 authorizing him to sign all the papers in respect of the elections. What was required to be done of the candidate personally can hardly be considered to be so done if the candidate admits that he did not do it and that some body else ran his erran4 dated 27/28‑8‑1993. 5. In view of the admission that all the requisite documents were not signed by the appellant himself and were signed by Muhammad Hanif Khan, we are of the consider? view that the so‑called agent of the appellant could neither accept the proposal on behalf of the appellant nor make a declaration in terms of sub‑section (2‑A) to (2‑D) of section 12 of the Act nor have taken oath as provided under the law. This being so, there is no substances in these appeals, which are hereby dismissed. H.B.T./90/E ??????????????????????????????????????????????????????????????????????????? Appeals dismissed.