2022 PLP 1842 (CLC)

JAWAD HASSAN, J.

This election appeal has been filed by the Appellant under Section 63 of the Elections Act, 2017 (the "Act") read with Rule 54 of the Election Rules, 2017 (the "Rules") for setting aside order dated 11.08.2022 (the "impugned order") passed by the Respondent No.2/Returning Officer, Constituency PP-241, Bahawalnagar-V who rejected the objections filed by the Appellant and the Respondents Nos.4 and 5 by accepting the nomination papers of the Respondent No.3/Amman Ullah Sattar. I. FACTS OF THE CASE

2. As per contents of petition, the Appellant and the Respondent No.3, submitted their nomination papers for bye-election of PP-241, Bahawalnagar-V. During the course of scrutiny, the Appellant along with Respondents Nos.4 and 5 submitted objections by challenging nomination papers of the Respondent No.3, which were rejected through the impugned order on the ground that the same were not filed at the time of scrutiny. II. PROCEEDINGS BEFORE THE COURT

3. The case has been heard on 17th and 18th of August, 2022 at length and in terms of Section 63(3) of the Act this appeal is being decided by this Tribunal within the time frame specified under aforesaid Section. It is to be noted that under Section 63(2) of the Act the appeal has to be decided by this Tribunal within the time notified by the ECP vide notification dated 28.07.2022 to be decided till 22.08.2022. Since it is a time specific Tribunal with the mandate to decide the appeal within time frame specified under the law and the notification of the ECP therefore, this Tribunal, being time specific, is deciding the appeal in hand in the light of case law reported in "Shaheen Merchant v. Federation of Pakistan and others" (2021 PTD 2126 Lahore), wherein the Court has elaborated and enunciated the principles of law regarding the time bound and time specific forum with time bound mandate to the Tribunals to decide appeal within time frame given under the legislation, which is also the requirement of Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). The Court has held as under: "The accumulative effect of this discussion is that when the statute has provided specific remedies of appeal to the Petitioner against Final Determination, already impugned before the Appellate Tribunal and when right of another appeal is still available after the decision of the Appellate Tribunal, then in such a situation, the impugned Final Determination cannot be given effect because doing so will not only frustrate the pending appeal before the Tribunal but it will also jeopardize the whole purpose of provision of remedy of Appeal under the Act. Needless to emphasize that making the process of hearing appeal by the Tribunal and also by the High Court in a specific time-bound manner within a definite period of 45 days and 90 days respectively, was also to streamline the whole process of ascertaining the correctness of the decisions of the Commission in a timely fashion, so that if found justified under the law, it can be given effect to or if not affirmed can be rectified in a timely manner, so that both the parties may have a definite decision to pursue their course of action within a reasonable and specific time". III. APPELLANT'S SUBMISSION

4. Learned counsel for the Appellant Mr. Muhammad Sarwar Chaudhry, ASC inter alia argues that the Respondent No.3 has concealed information about his two wives, their assets and bank accounts as well in his affidavit rather he has only mentioned one son and one daughter in nomination papers; that the said Respondent has also made concealment of his dual nationality, assets, his business in UAE, source of income, arm license and other valuable property through which he is receiving huge amount of rent as such it is violation of Section 60(2)(d) of the Act hence the impugned order is liable to set-aside. IV. RESPONDENTS SUBMISSION (i) Submission of Election Commission of Pakistan

5. Mr. Muhammad Jaffar, Law Officer, Election Commission of Pakistan has submitted the original record and stated that all the objections were properly heard by the Respondent No.2 through the mechanism provided under the law/Act. Further stated that once the nomination papers in respect of PP-241 Bahawalnagar-V were filed on 05th August, 2022 the detailed Schedule for their Scrutiny was issued with specific time and date. Consequently, the scrutiny of nomination papers of the Appellant was made on 10.08.2022 at 02:45 PM and that of Respondent No.3 was done on the same day at 03:00 PM, therefore, the Appellant was well aware of the same but he filed his objections on 11.08.2022, for the reasons best known to him. (ii) Submission of Respondent No.3

6. Mr. A.R. Aurangzeb, ASC for the Respondent No.3 has vehemently opposed this appeal and defended the impugned order by stating that the Respondent No.2 has rightly passed the impugned order by categorically mentioning the date and time of scrutiny. Further stated that the scrutiny of nomination paper of the Appellant was also conducted on the same date at 02:45 PM much prior to the scrutiny of the Respondent No.3. He relied on the judgments reported as "Rana Aftab Ahmad Khan v. Muhammad Ajmal and another" (PLD 2010 SC 1066) and "Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan and 6 others" (PLD 2018 Lahore 318). V. NUB OF THE MATTER

7. The nub of the matter in this appeal is whether the Respondent No.2 has rightly decided the objections as per the requirement of Section 62 of the Act read with Schedule/Notification dated 28th July, 2022 issued by the Election Commission of Pakistan. VI. DETERMINATION BY THE TRIBUNAL

8. Primarily, the Appellant has challenged the impugned order whereby his objection petition was not entertained and relevant portion thereof is as follows: "The scrutiny of nomination form of Mr. Aman Ullah Sattar was conducted at 3:00 P.M. on 10th August, 2022, the objectors filed objections on 11th August, 2022 at 02:45 PM. The objectors had not filed/raised objections at the time of scrutiny and no solid evidence presented/enclosed. The nomination paper has already been accepted, therefore, the objections cannot be entertained".

9. Before proceeding further, it would be advantageous to examine the Election Schedule/Notification and the relevant provision of law i.e. Section 62 of the Act. Section 62 states that any voter of a constituency may file objections to the candidature of a candidate before the Returning Officer within the period specified by the Commission for the scrutiny of nomination papers of candidates. For ready reference Section 62(1)(2)(3)(4)(5) of the Act is reproduced as under: "

62. Scrutiny.

(1) Any voter of a constituency may file objections to the candidature of a candidate of that constituency who has been nominated or whose name has been included in the party list submitted by a political party for election to an Assembly before the Returning Officer within the period specified by the Commission for the scrutiny of nomination papers of candidates contesting election to an Assembly. (2) The candidates, their election agents, the proposers and seconders and one other person authorized in this behalf by each candidate, and a voter who has filed an objection under subsection (1), may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all the nomination papers delivered to him under section 60. (3) A voter who has filed an objection to the candidature of a candidate shall only attend the scrutiny of the nomination paper of that candidate. (4) The Returning Officer shall, in the presence of the persons attending the scrutiny, examine the nomination papers and decide any objection raised by any such person to any candidature. (5) The Returning Officer may, for the purpose of scrutiny, require any, authority or organization, including a financial institution, to produce any document or record or to furnish any information as may be necessary to determine facts relating to an objection to the candidature of a candidate.

10. Pertinently, election schedule for bye-election of Provincial Assembly Constituency No.PP-241 Bahawalnagar-V was issued by the Election Commission of Pakistan on 28.07.2022 and date for filing of nomination papers was fixed from 03.08.2022 to 05.08.2022 and accordingly the Appellant and the Respondent No.3 submitted their nomination papers. After scrutiny by the Respondent No.2, the nomination papers of the Respondent No.3 were accepted on 10.08.2022. Moreover, the date of publication of names of nominated candidates was fixed as 06.08.2022, whereas last date for scrutiny of nomination papers by the Respondent No.2 was fixed as 11.08.2022. The stance of the Appellant is that as per election schedule, the last date of scrutiny of nomination papers was fixed as 11.08.2022, but the Respondent No.2 has conducted the scrutiny on 10.08.2022 without issuing any notice or providing any opportunity of hearing as such it is violation of Section 62 of the Act. While the counsel for the Respondent-ECP has submitted original record according to which the Respondent No.2 has provided/given proper right/chance of hearing on 10th August, 2022 as per Section 62(3) and (4) of the Act by clearly mentioning that the scrutiny of nomination papers of the Respondent No.3/Aman Ullah Sattar was conducted on 10th August at 03:00 P.M. and the objector/Appellant filed objections on 11th August 2022 at 02:45PM. For the sake of arguments, if it is presumed that the Appellant filed objections soon after the date of publication of nominated candidates even then, he has neither mentioned the exact date of filing objections in this appeal nor the date of filing is mentioned in the objection petition annexed with this petition. It is observed that the Appellant has not filed objections from 07.08.2022 to 10.08.2022 but surprisingly, he filed the same on 11.08.2022 at 2:45 P.M without any cogent evidence. It is also important to mention here that the scrutiny of nomination papers of the Appellant was conducted on 10.08.2022 at 2:45 P.M. and thereafter, the scrutiny of nomination papers of Respondent No.3 was done on the same day at 03:00 PM, therefore, the Appellant was aware of the same but he remained quiet for twenty four hours and filed his objections on 11.08.2022 at 2:45 P.M as observed by the Respondent No.2 in the impugned order.

11. It evinces from the record that the scrutiny process was conducted by the Respondent No.2 in presence of the Appellant on 10.08.2022, and filing of objections by the Appellant after the acceptance of nomination papers of the Respondent No.3, had no locus-standi to be heard by this Tribunal. Learned Division Bench of this Court in "Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan and 6 others" (PLD 2018 Lahore 318) has held that "where the petitioner candidate had not filed objection as provided under S.112 of the Act against the nomination papers of respondent-candidate, he (petitioner) had no locus-standi to be heard before the Appellate Tribunal". The original record produced by learned counsel for the Respondent-ECP reveals that the Appellant was present at the time of scrutiny on 10.08.2022 at 2:45 PM as reflected in schedule for scrutiny of nomination papers at Sr.No.19.

12. From the above it can safely be said that the Appellant having full knowledge for filing objections before the date of scrutiny, filed the same on 11.08.2022 at 2:45 P.M. when the scrutiny process had already been done in his presence on 10.08.2022. The Appellant is not an ordinary man but a political figure and contesting the election with all seriousness. He was under obligation to file objections before the Respondent No.2 well before the scrutiny of nomination papers and non-mentioning of exact date in this appeal as well as annexed objection petition makes a serious question mark on his credibility.

13. In view of above, this appeal holds no merit as the Tribunal does not find any illegality or perversity in the impugned order which even otherwise has been passed aptly as per the provisions of Section 62 of the Act. Therefore, the same is hereby dismissed. SA/F-20/L Appeal dismissed.