P L D 2008 Lahore 432 (PLP)

According to the learned counsel for the petitioner, respondent No.1 submitted his nomination papers to PP-48 Bhakkar-II, wherein he had sworn a false declaration that he was qualified in terms of Article 62 of the Constitution and suffered no disqualification in terms of Article 63 of the Constitution. An objection was raised by one Malik Nazar Abbas to the nomination papers which was rejected. Resultantly nomination papers of respondent No.1 were accepted on 16-5-2008. In the above background, the petitioner (not a candidate) filed an application under section 14(5A) of the Representation of People Act, 1976 (hereinafter to be called the Act) to prove that respondent No.1 was disqualified from being elected as a Member of the Provincial Assembly, Punjab before the Tribunal consisting of two learned Judges of this Court. The application of the petitioner was decided along with Appeal No.26-A of 2008 by a single order. According to the learned counsel, one learned Member allowed the application of the petitioner and set aside the order of the learned Returning Officer, whereas the other learned Member dismissed the application of the petitioner. The matter was referred to the learned Chief Election Commissioner/Election Commission of Pakistan who observed (as enshrined in order signed by Secretary of the Election Commission, dated 1-6-2008) as under: "The proposal highlighted in para.18/ante is .approved as it is squarely in line with the mandatory provision of section 14(6) of the Representation of People Act, 1976 that an appeal not disposed of within the period specified in Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to Election Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or rejection of Nomination papers by the appellate Tribunals was 31st May, 2008."

2. The learned counsel for the petitioner has challenged the above mentioned three orders, particularly, order of the learned Chief Election Commissioner/Election Commission of Pakistan dated 1-6-2008 and order of the learned Election Tribunal dated 31-5-2008.

3. We have heard the learned counsel for the petitioner and Raja Abdul Rehman, the learned Deputy Attorney-General.

4. Both the impugned orders i.e. of the learned Election Tribunal as well as the learned Chief Election Commissioner/Election Commission of Pakistan treated the application of the petitioner as an appeal under section 14(5) of the Act. The title of the application, copy of which is available on page 26 of the file of this Writ Petition clearly mentions application under section 14(5) of the Act. The prayer also reads as under:-- In view of the submissions made above it is respectfully prayed that in exercise of powers conferred upon this Hon'ble Tribunal, under section 14(5A) of the Representation of People Act, 1976, on the basis of the information/material, brought to the knowledge of this Hon'ble Tribunal, through this application, regarding disqualification of respondent No.1 from being elected as a member of Provincial Assembly, Punjab from PP-48 Bhakkar-II, the respondent No.1 may graciously be called upon to show cause why his nomination papers may not be rejected, and thereafter reject his nomination papers." .

5. In the presence of the above material, it is strange how the learned Tribunal treated the application of the petitioner as an appeal and decided to same along with an appeal filed by one Noor Elahi through single order dated 31-5-2008. Likewise, the Chief Election Commissioner/Election Commission of Pakistan also treated the application of the petitioner as an appeal which is reflected in the order dated 1-6-2008. Under section 14(5) of the Act, a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination papers of the candidate to the Tribunal constituted for the constituency to which the nomination papers 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.

6. On the other hand, subsection (5A) of section 14 of the Act reads as under:-- "If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under subsection (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." The difference between subsections (5) and (5A) is evident. Under subsection (5) an appeal may be preferred by a candidate, c whereas, subsection (5A) deals with any information or material brought to .the knowledge of Tribunal by any source, it may be from a candidate or an elector/citizen.

7. Subsection (6) of section 14 of the Act reads as under:-- An appeal not disposed of within the period specified in subsection (5) shall be. deemed to have been rejected. The reading of subsection (6) manifestly shows that it relates to subsection (1) or an appeal filed by a candidate. It has no nexus with subsection (5A) of section 14 of the Act. Thus, it is noted with concern as to how could the learned Tribunal and the learned Chief Election Commissioner/Election Commission of Pakistan decide the application of the petitioner along with an appeal filed by one Noor Elahi? Likewise, how could the learned Chief Election Commissioner/Election Commission of Pakistan reject application of the petitioner on the basis of mandatory provision of section 14(6) of the Act.

8. At this juncture, section 11A of the Act may be alluded to, which reads as under:-- "Notwithstanding anything contained in section 11, the Commission may at any time after the issue of a notification under subsection (I) of that section, make such alterations in the programme announced in that notification for the different stages of the election as may, in its opinion, be necessary." Section 11A was not originally part of the Act of 1976, it was later made Dart of the Act i.e. inserted vide Ordinance No.LIV of 1979, with effect from 7-10-1979. It appears that section 11A was inserted in the Act to meet situations like the one as obtained in the facts and circumstances of the instant case. The Election Commission could have taken advantage of provisions of section 11 A of the Act in the interest of justice and fair play. At this stage, it may also be pointed out that the present petitioner cannot file an election petition after the election, not being a candidate hence he will have no remedy before an Election Tribunal.

9. In view of the above reasons, we hold that the learned Election Tribunal and the learned Chief Election Commissioner/Election Commission of Pakistan had fallen in error by treating the application of the petitioner as an appeal and to tag the same with another appeal subject matter of the impugned order. As a result of the above, the impugned orders of the Chief Election Commissioner/Election Commission of Pakistan dated 1-6-2008 and of the Tribunal dated 31-5-2008 are hereby set aside and are declared to be unlawful and without any lawful authority. The application of the petitioner shall be deemed to be pending. The learned Chief Election Commissioner is hereby required to constitute another Tribunal consisting of three Judges of the High Court to decide the application of the petitioner including his disqualification. Until then, respondent No.1 may continue to perform his functions as Chief Minister of the Punjab and Member of the Provincial Assembly. This writ petition is allowed in the. above terms. M.B.A./K-23/L Order accordingly.