1994 PLP 1505 (CLC)

4. It may be convenient if section 24 is also reproduced hereinbelow:‑‑ "

24. Proceedings at the close of poll.‑‑(1) Immediately after the close of poll, the Returning Officer shall proceed with the counting of votes in the prescribed manner. (2) On the completion of counting, the Returning Officer shall prepare and certify a return of the Election and submit the same to the Commissioner in the prescribed manner."

5. Now, considering the memorandum of appeal quoted hereinbefore it is obvious that the appeal is not against the count of votes or it does not relate to the count and I have jurisdiction to hear appeal under section 32 of the Act against the count only.

6. The learned counsel for the appellant/petitioner has also relied on sections 84 and 85 of the Act. Section 84 and 85 read as follows:‑ "

84. Commissioner to ensure fair election. etc .‑‑Save as otherwise provided, the Commissioner may issue such instructions and exercise such powers including the power to review an order passed by any officer under this Act or the rules, and make such consequential orders, as may, in his opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of this Act and the rules.

85. Directions of Commissioner in certain matters.‑‑Anything required to be done to carry out the purposes of this Act for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commissioner may direct."

7. Under section 84 Commissioner is enabled to issue such instructions and exercise such powers including the power to review the order passed by any Officer under the Act or the rules and make such consequential orders as may in his opinion, be necessary for ensuring that election is conducted honestly, justly and fairly and in accordance with the provisions of the Act and the rules.

8. However, firstly this power is controlled by the word "save as otherwise provided" and I find that provision of sections 32 and 34 of the Act control the exercise of such power and secondly, no review of any order passed by the Returning Officer or any other officer is sought in the appeal.

9. In so far as the questions of default in payment of loan or false declarations are concerned the first stage to raise such objection to the nomination of the Respondent concerned' namely Mrs. Nasreen Jalil was before the Returning Officer. But no such objection was admittedly raised before the Returning Officer, therefore, if he accepted the nomination paper without any objection being raised by the Appellant or any other candidate or even by the Banks concerned and the order of acceptance of nomination paper became final for no appeal is provided against the acceptance of the nomination paper; appeal is provided only against the rejection of nomination paper and that too within two days of the day of scrutiny to the Commissioner as mentioned in section 13(5) of‑the Act. If the Respondent was not qualified then the Appellant or any other candidate was not without remedy. His remedy was under section 34 of the Act by way of the election petition. Therefore, if, I interfere under section 84 or 85 I would be acting indisregard of the law.

10. Learned Counsel for the Appellant Mr. Abdul Hafeez Pirzada submitted that he has filed comprehensive statement in support of the petition dated 5th March, 1994 under Articles 63 and 219 of the Constitution of the Islamic Republic of Pakistan read with sections 32, 84 and 85 of the Senate (Election) Act, 1975. This comprehensive statement was filed on 7th March, 1994. Now, firstly this comprehensive statement is a different statement filed admittedly beyond the time prescribed in section 32 of the Act. It is mainly under Articles 63 and 219 of the Constitution which are then altogether different provisions under which the first appeal/petition was filed. However, I will deal with these briefly.

11. Mr. Abdul Hafeez Pirzada relied in his argument on Article 63 and clause `(p)' thereof which reads as follow:‑ "

63. Disgualifications for membership of Majlis‑e‑Shoora (Parliament).‑ (1) A person shall be disqualified from being elected or chosen as and from being, a member of the Majlis‑e‑Shoora (Parliament), if‑‑ (a) ........................... (b) ........................ (c) . (d) (e) .......................... (f) ........................... (g) .. (h) .. (i) ........................... (j) ........................ (k) .......................... (l) ........................... (m) ........................... (n) ........................... (o) ........................... (p) he is for the time being disqualified from being elected or chosen as a member of the Majlis‑e‑Shoora (Parliament) or of : a Provincial Assembly under any law for the time being in force."

12. The perusal of the above‑quoted provisions would show that the question of disqualification can be raised at two stages (1) at the stage when the candidate is being elected or chosen (2) from being a member. In this case first stage was over when the nomination paper without any objection from the Appellant/Petitioner or from any other candidate was accepted by the Returning Officer. So far as second stage is concerned that question can be considered by the Chief Election Commissioner under clause (2) of the Article 63 if the question of disqualification from being a member is referred to the Chief Election Commissioner by the Chairman of the Senate.

13. In this case it may be useful for ready reference‑ if. clause (2) of Article 63 is also quoted below. Clause (2) reads as follows:‑ "(2) If any question arises whether a member of the Majlis‑e‑Shoora, (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant:" otherwise the other remedy provided by the law is under section 34 of, the Senate (Election) Act which provides for an election petition. The election tribunal is competent to go into the question of default in E payment of loans etc for the definition of `corrupt practice' has been amended. In section 58 of the Act a new clause "(aa)" is added which now provides a person shall be guilty of corrupt practice if he (a) contravene of provision of section 28. "(aa) files a declaration under subsection (2) of section ‑ 11 which is knowingly false."

14. Therefore, reliance on Article 63 of the Constitution before me at this stage is misconceived.

15. In the comprehensive statement filed on 7‑3‑1994 the petitioner/appellant has prayed that the Chief Election Commissioner may be pleased to withhold the issuance of Notification in favour of the respondent and direct that the petitioner may be declared as elected to the Senate of Pakistan from the Province of Sindh.

16. I have already observed that in appeal under section 32 of the Act my powers are limited as thereunder appeal lies against the question relating to the count only and not otherwise. The question of disqualification has been raised but that too could be raised before the Returning Officer but it was not so raised. So far as merits are concerned the question of the disqualification on the grounds of default in payment of loan or writing off the loan are concerned, the Appellant relied on certain press clippings or other papers, but none of these are authentic, signed or reliable documents or admissible in evidence or are evidence of defaults on the relevant date. The first paper annexed is entitled. `Details of overdue loans of Rs.l million and above as on June 30, 1993' but is dated nil. The second paper annexed is entitled `Details of overdue loans of Rs.l million and above as on June 30, 1993 but is again dated nil. The third documents annexed is entitled `Details of overdue loans of Rs.l million and above as on December 31, 1992' but is, dated August 31, 1993. The fourth documents annexed is entitled Details of loans of Rs.l million and above written off (from March 1, 1985 to date but it is dated August 29, 1993. None of the papers show that on the date of filing of the nomination paper or the date of signing the declaration these default existed or the spouse of Respondent concerned was so indebted or he had got the‑ loan written off. Further, the Appellant/petitioner has not verified the appeal or petition on oath or has not supported the same with an affidavit. Therefore, no question arose of discharging burden of proof on the part of the concerned respondent at this stage. I am not going into this question in detail because it is beyond the scope of section 32 of the Act under which I have jurisdiction to deal with the question of count whether it was proper and in accordance with the law and rules or not, but not otherwise. If the appellant/petitioner is still aggrieved he may persue his remedy in accordance with the law but I have no jurisdiction, as stated before, to entertain the question at this stage. I therefore, finds no merit in this appeal and accordingly dismiss it. AA/116/E. Appeal dismissed.