2015 PLP 1674 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this single order we propose to decide three Election Appeals Nos.168-A/2013, 169-A/2013 and 181-R/ 2013 as the question of law about the maintainability of appeal is involved in all the three appeals.

2. The appellants are not contesting candidates from the respective constituencies of National Assembly and Provincial Assembly detailed in the memo of appeal but are the voters of the respective constituencies.

3. Learned counsel for the appellants contends that under section 14(5A) of the Representation of People Act, 1976 (hereinafter referred to as the ROPA) the Election Tribunal has the jurisdiction to take cognizance of any information or material brought into its knowledge by any source. Learned counsel submits that word "by any source" denotes that any person even not the voter of constituency who has information regarding disqualification of the candidates will be deemed to be a candidate in terms of Section 14(5) of ROPA as he/she is performing his/her duties according to the Constitution of Islamic Republic of Pakistan. Learned counsel submits that memo of appeal may be treated as information about the disqualification of the respondent No.2, who is not fulfilling the mandatory requirements of Constitution and law. Learned counsel has relied on Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others (PLD 2009 Supreme Court 237) and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644).

4. Learned counsel for the respondent No.2 who appeared at admission stage and opposed the appeal and submits that appeal is not maintainable. Learned Additional Advocate General submits that appellant is not an aggrieved person in terms of section 14(5-A) of the ROPA 1976 and the right of appeal is available to the candidate only. No doubt right of objection is given to the third party objector but it is restricted to the extent of returning officer and its acceptance is an appealable order whereas its rejection did not give rise of an appealable right.

5. For appreciating the arguments of learned counsel for the appellants sections 14(5) and 14(5-A) of ROPA are reproduced as under:-- "14. .................. (5) A candidate, may prefer an appeal against the decision of the Returning Officer, rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final. (5-A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes, government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers. Note: inserted vide Ordinance No.XXXVI of 2002, dated 31-7-2002 ".

6. The plain reading of two provisions of law will show that the Election Tribunal is the creation of Election Commission of Pakistan with the approval of President of Pakistan for hearing appeals under section 14(5) of ROPA against the order of Returning Officer passed under Section 14 of the ROPA.

7. The word used in Section 14(5) ibid are "a candidate" may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal who shall decide the appeal summarily within the time notified by the Election Commission and any order passed by the Tribunal shall be final. This mean that tribunal is a persona designata and is not a court as defined in the Code of Civil Procedure, the mandate of the Tribunal is to decide the appeal summarily against the rejection or acceptance of the nomination papers of the candidates. It is an established principle of law that right of appeal is the creation of a statute, so far ascertaining the right of appeal of voter or objector. It has to be seen whether ROPA has granted right to appeal to any third party may be aggrieved person or not but is not a candidate, the plain reading of above provision of law gives its answer in negative, the wisdom for not providing the right to appeal to any aggrieved party other than the candidate is that aggrieved party has the option not to cast vote in favour of the candidate if he/she thinks that the candidate does not fulfil the requirements of law but if the candidate is debarred to file an appeal, the candidate will be at the mercy of returning officer and his right to be elected member of Parliament is compromised. If we for the sake of arguments accept the arguments of learned counsel for appellant that word "any source" used in Section 14(5-A) of the Act ibid means the aggrieved person or candidate than we are reading in section 14(5) of the ROPA the word "as a candidate or any other person" no doubt in section 14(5-A) of ROPA the words used are "by any source" but enabling Section for filing appeal is section 14(5) of ROPA which provides the right of appeal against the order of Returning Officer only to the candidate.

8. The argument of learned counsel for the appellants that if the third party has no right of appeal then what is the need to enact Section 14(5-A) of ROPA, is concerned the legislator has enacted section 14(5-A) to give further powers to Tribunal to ensure the transparency of election and to ensure that the right person should be elected to represent the voter specially if the candidate fails to raise any objection which falls within the definition of disqualification due to his lack of knowledge or otherwise, subsection (5-A) of Section 14 even confer suo motu powers to Tribunal, to confer suo motu powers to Tribunal shows that legislator wants the transparency of election of the member parliament at every costs. To confer the suo motu powers to tribunal is intentional on the part of legislator as they were aware of the fact that objector/elector if fails to convince the Returning officer about the disqualification of the candidate he will not be able to file an appeal so to safeguard the transparency of the election of member of parliament, the suo motu powers thus have been given to the Tribunal to ensure the perfect qualification of the candidate. The objector/elector may file an application before the tribunal but he could not be treated as the appellant. The tribunal enjoys the powers to consider the objection of the elector itself and has the powers to pass an appropriate order after considering the facts before it. Prior to the amendment in the ROPA Ordinance No.XXXVI of 2002, the elector was not entitled to file objections against the proposed candidate and under subsection (1) of section 14 the Returning Officer was to conduct the scrutiny in the presence of the candidates, their election agents, proposers and seconders and one person authorized by each candidate and through the above amendment the elector was made entitled to raise objection to the nomination of any candidate of his constituency, but subsection (5) of section 14 was not amended which clarify the intention of legislator that the elector was made entitled to raise objection at the initial stage before returning officer about the disqualification of the candidate and in case his/her objections are rejected, suo motu powers are given to the tribunal to examine the objection, this means that objections of the elector raised before the returning officer can be looked into by the tribunal while deciding the appeal of the candidate if pending and even if not pending if the tribunal comes to know through any source including the information on the part of objector about the disqualification of the candidate has the powers to issue show-cause notice to the candidate why his nomination papers may not be rejected, hence in our humble view the status of objector /elector is restricted to the extent of informer and he/she could not be termed as the candidate and in case rejection or acceptance of nomination papers, the candidate alone has the right to file an appeal to a Tribunal under section 14(5) of Act ibid.

9. There is another aspect of the case, that the legislator has used the word in subsection (5-A) of Section 14 Act ibid, If, on the basis of any information or material brought to its knowledge by any source (underline is ours). The selection of above words "information" or "material" is intentional, if it was the intention of the legislator that electors/objectors has the right to file an appeal against the orders of returning officer then words should have been against the "orders of returning officer", but the words used are information or material, meaning thereby the information or material which could not be brought before the returning officer, as the earlier information or material was examined by the returning officer but were not considered and if some fresh information is received before the decision of statutory period of appeal that information and material can be examined by the tribunal. Hence the construction of section 14(5-A) is that it is an addition to the examined facts and law by the returning officer.

10. The judgments relied upon by the learned counsel for appellants Federation of Pakistan through Secretary, Cabinet Division, Islamabad and others v. Mian Muhammad Shahbaz Sharif and others (PLD 2009 Supreme Court 237) and Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 284) were reviewed by the Hon'ble Supreme Court of Pakistan in a judgment reported as Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644) when the apex court ruled as under:-- "Since the short order by which these petitions were allowed did not touch the merits of the grounds of disqualification of the petitioners, it will not be appropriate to dilate upon the issue whether the powers of the Tribunal under subsection (5-A) are restricted to the specific grounds mentioned therein. The question posing determination is the standing of a person furnishing information under the above provision to pursue the matter before the Tribunal and further before the Courts. The power conferred upon the Tribunal under subsection (5-A) of section 14 is expressed to be exercised by it "on its own motion", based upon the knowledge it gains from source information or any material placed before it that might lead to the disqualification of a candidate. The "source" has not been defined in the Act and it could be an individual, an agency or Govern-ment department, a bank or any organization or body. Whereas the proceedings under subsection (5) is formally initiated upon filing of an appeal, the process under subsection (5-A) commences upon the issuance of show-cause notice by the Tribunal to the concerned candidate. Since the show cause notice is based upon the information or material received or acquired by the Tribunal, it has first to evaluate tentatively its sufficiency and credibility. The standing of a person who furnishes information under subsection (5-A) can in no way be equated with that of the appellant under subsection (5-A), who has a personal interest in the outcome of the proceedings. The status of such a person is simply of an informer laying information before the Tribunal of certain facts, which he believes disqualifies a candidate to contest the election. He has not been bestowed with any vested right to pursue the matter on a personal level to get a candidate disqualified. Needless to state that like all powers exercisable suo motu, the Tribunal is empowered to summon the informer, or for that matter anyone, to appear before it to substantiate, clarify or throw light upon the contents of the show cause notice. The informer however does not become a party in the legal sense of the term "to the proceedings before the Tribunal".

11. In the instant appeals the appellants are voters and they are agitating that the returning officer has not attended to their objections and the findings of the Returning Officer are against the facts and admittedly have not brought any fresh information or material before the tribunal.

12. The appellants thus are challenging the impugned order of respondent No.1 as a matter of right which right is not available to appellants. The memo of appeal if we consider the information laid before the Tribunal under section 14(5-A) of the Act ibid as the information or material, but these information or material are not fresh, hence under the garb of information or material these could be allowed to entertain.

13. We have heard the learned counsel for appellant at length but appellants are unable to establish that the memo of appeal is based on fresh information which can be considered by this Tribunal under Section 14(5-A) of the Act ibid. Respondent No.1 has considered all the objections of appellants and the tribunal in the absence of any new information or material is unable to consider the same.

14. What has been discussed above it is established that appellants are not the aggrieved persons in terms of section 14(5) of ROPA nor they have brought any fresh information or material for the consideration of Tribunal, hence these appeals are dismissed being not maintainable. MWA/N-22/L Appeals dismissed.