2023 PLP 132 (MLD)

SHAHID JAMIL KHAN, J.

This judgment shall decide this and connected appeals (Election Appeals Nos. 06-R and 08-R of 2021) filed against orders dated 29.10.2021 and 30.10.2021 passed by the District Election Commissioner-III/Returning Officer Bye-Election NA-133, Lahore-XI ("Returning Officer").

2. Common question, requiring determination is: Whether rejection of nomination papers is justified for the reason that either of the subscriber (proposer or seconder) is not enrolled as voter in the Electoral Roll of the constituency? Consequent question is: Whether this defect is substantial or curable? Facts of the captioned appeal, being representative are that on the day of scrutiny, objection was raised by M/s Naseer Ahmad Bhutta, Muhammad Hafeez and Mirza Faisal Hussain, as voters of the constituency that the proposer Mr. Bilal Hussain son of Manzoor Hussain is not qualified to subscribe the nomination papers of the appellant and sought rejection of the nomination papers in view of section 62(9)(b) of the Elections Act, 2017 ("Act of 2017"). On a summary inquiry, the Returning Officer agreed with the objection and passed impugned order of rejecting nomination papers. It was further pleaded before the Returning Officer that an application dated 29.10.2021 was moved for substitution of name of the proposer, which was also rejected observing that last date under the election schedule for filing of nomination papers was 25.10.2021, therefore, the application could not be allowed, as it would change the election schedule, which is beyond competence of the Returning Officer. Operative part of the impugned order, in captioned appeal, is reproduced:- "I have considered the documentary evidence produced in support of objectors' claim and have also made a summary enquiry into the matter, I am satisfied that the proposer of the instant nomination paper is not registered as voter in the constituency, keeping in view that provisions relating to proposer and seconder of a candidate in the Elections Act, 2017 are mandatory in nature, and any defect in respect thereof is a defect of substantial nature, therefore, the nomination papers of Mr. Jamshed Iqbal Cheema are hereby rejected on the aforementioned grounds. Furthermore, another application filed by the nominated candidate Jamshed Iqbal Cheema whereby he requested to the undersigned to allow him to replace/change his proposer. As Election Commission of Pakistan has already issued the Election Schedule on 18.10.2021, as last date for filing of nomination papers with the Returning Officer by the candidates was 25.10.2021, whereby applicant filed an application in this office on 29.10.2021 for replacement of his proposer in the nomination papers. So at this belated stage the application cannot be entertained because there is no provision of law available in the Elections Act, 2017 to this effect, hence the application is also hereby rejected."

3. Mr. Mubeen Uddin Qazi, Advocate representing the appellant in this appeal submitted that due diligence was observed while preparing the nomination papers and signing of the same by Mr. Bilal Hussain, subscriber (proposer). He has referred to Voter's Certificate in nomination papers (available at Page 35), which is reproduced:- Referring to different columns of the certificate, he submitted that address and CNIC, noted in the certificate of Mr. Bilal Hussain falls within the constituency i.e. NA-133. Also submitted that votes of his family i.e. mother and brother are in voters list of NA-133 and has placed reliance on Annexure G/4 and G/5. Further submitted, under the facts and circumstances noted above, that this was a fit case for rectification or allowing the appellant to substitute the subscriber. Lastly, submitted that under the amended scheme in the Act of 2017, there is no prohibition for subscriber to be from the same constituency. For this submission, he has referred to section 60(1) of the Act of 2017. Reliance is placed on unreported judgment by the august Supreme Court of Pakistan in Civil Petition Nos.3083 to 3086 of 2015, which is an interim order, allowing the candidate to contest the election meanwhile. Another order in Sharafat Ali and another v. D.R.O. and others (2008 SCMR 539) is read, which also allows the aggrieved candidate to contest election pending decision. He has also read following paragraph from the judgment in Nadeem Shafi v. Tariq Shuja Butt and others (PLD 2016 Supreme Court 944). "

8. It is notable that in the Punjab Local Government Ordinance, 2001 general councilors to be elected as members of union council were elected from a multi number constituency comprised of the entire union council. In those circumstances perhaps the difference between different wards would not have been of material consequence but in the present scheme for election to the union council under the Punjab Local Government Act, 2013 the six general members of the union council are to be elected one from each ward of the union council. Therefore, the smallest unit in terms of a constituency is the ward which elects a general member to the union council. The proposer and seconder must therefore be from the same ward of the union council from where the candidate for election as general member of the union council is to be nominated." [emphasis supplied]

4. Barrister Ahmad Qayyum, Advocate representing respondent No.4 ('Objector'), in response to the notices, has read section 2(xli) of the Act of 2017 to submit that voter is one, whose name is reflecting in the Electoral Roll of the constituency. The definition is reproduced:

2. Definitions.

In this Act, unless there is anything repugnant in the subject or contest,- (xli). "voter" means - (a) In relation to an Assembly or a local government, as person who is enrolled as a voter on the electoral roll of any electoral area in a constituency; ..." He claimed that name of the proposers, in this and connected appeals (Election Appeal No.08-R/2021), is reflecting in Electoral Roll of NA-130, even for General Elections, 2018. This fact is verified by learned counsel for Election Commission of Pakistan ("ECP"), who has placed on record the relevant extract from Voter List for NA-130. On Court's query, why the constituency number does not reflect in the Voter's Certificate, he submitted that this format is to commensurate with NADRA data and is so prescribed. On further query, it is apprised that Electoral Roll of each constituency is displayed, after being finalized upon delimitation, for inviting any objections and consequent correction. Learned counsel for respondent has referred to section 62 of the Act of 2017 to submit that the Returning Officer is restrained from inquiring into the correctness or validity of any entry in the Electoral Roll and has to scrutinize the nomination papers on the basis of existing Electoral Roll. Also submitted that Voter's Certificate cannot be looked into in scrutiny process, which as per his assertion is only a document for personal information of a voter. Responding to the arguments that defect/mistake is not substantial and is liable to be corrected, under second proviso to section 62(9), he has placed reliance on the judgment Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277). Further submitted that section 60(4) of the Act of 2017 allows a person to be nominated through five nomination papers with one fee, which is meant to cater any surprising unknown situation, which is being faced by the appellant at this stage.

5. Mr. Ali Afzal Sahi, Advocate representing the appellant in Election Appeal No.08-R of 2021, in addition to the arguments advanced by Mr. Mubeen Uddin Qazi, Advocate and in response to the arguments by learned counsel for the respondent submitted that placing of the proposer's name in another Electoral Roll (NA-130) was not on his representation, therefore, was beyond his control. Explains that under section 36 of the Act of 2017, it is duty of the Election Commission to prepare a correct Electoral Roll as per qualification mentioned in sections 26 and 27 of the Act of 2017, in particular, with relation to his residence. On Court's query, whether any application for rectification before General Elections, 2018 was moved, the answer is in negative.

6. Mian Shabbir Hussain, Advocate, representing the appellant in Election Appeal No.6-R of 2021, submitted that the defect leading to impugned order is curable on cardinal principle that balance tilts in favour of the substantial and fundamental right and not the procedure. On his argument that mistake on the part of Election Commission should not be a cause to disfranchise a candidate, he is confronted with ground (c) of the appeal, signed by him, pleading that the appellant was misguided about his residence by the subscriber (seconder), to which he could not reply satisfactorily.

7. In rebuttal to the arguments advanced by learned counsel for the respondent, Mr. Mubeen Uddin Qazi, Advocate, submitted that the rational of representation through a proposer and seconder is based on resident of the constituency and not presence in Electoral Roll as voter. Explained that in this case, mistake occurred during census, when the census circle belonging to the proposer was wrongly placed in some other charge. Responding to the arguments from respondent's side that certificate is meant only for information of a voter, he submitted that no voter can be a subscriber (proposer or seconder) unless he obtains a Voter's Certificate for this purpose from the District Election Commissioner. Explains that after obtaining certificate, the subscriber in this case was under bona fide impression to be a valid voter under the Electoral Roll of NA-133. He reiterated that it is a mistake, beyond control, due to non-mentioning of constituency number on the Voter's Certificate. On Court's query, learned counsel for the Election Commission has endorsed that though this is not required under any rule yet this is a precondition, as practice, for the subscribers. It is explained that Voter's Certificate, to become a subscriber, was obtained in this appeal for Bye-Election, in particular, for NA-133, which was not refused by the Election Authorities. Supporting his arguments that any voter of any constituency can propose a candidate in any constituency, he has read section 60(1) of the Act of 2017. Explains that word 'a constituency' is used instead of 'the constituency'. Lastly, submitted that case law referred by learned counsel for the respondent is on law relating to the Local Government Elections.

8. Arguments heard. Record perused.

9. On facts, there is weight in submissions from appellant's side that ECP's procedure for preparing Electoral Roll vis-a-vis issuance of Voter's Certificate is defective, particularly, when Voter's Certificate is to be necessarily obtained from the District Election Commissioner, which in this case was obtained for Bye-Election in a specific constituency (NA-133) and the Election Commission knowing this purpose could not point out that the intending subscriber does not exist in Electoral Roll of NA-133. Conversely, arguments by respondent's side cannot be brushed aside that a candidate, intending to contest the election and his subscriber should be extra cautious. The subscriber should be satisfied that his name is enrolled in the Electoral Roll of the same constituency. In captioned appeal, the proposer is undeniably in the Electoral Roll of NA-130 even before the General Elections, 2018 and never applied for correction. So far philosophy, as pleaded by Mr. Mubeen Uddin Qazi, Advocate, of being a resident is concerned, it appears to be rational theoretically but being couched in section 60(1) of the Act of 2017, requires extra qualification for proposer or seconder to be an enrolled voter in Electoral Roll. Learned counsel for the appellant's contention that a constituency should be considered as 'any constituency' has no force. It has to be read as voter of 'the constituency' where he intends to propose or second a candidate. Needless to observe that for election purposes, different constituencies, smaller or maximum, are notified through delimitation. In the instant case, the constituency is NA-133 and admittedly, the proposers or seconders in this and connected appeals are not enrolled in the Electoral Roll of NA-133. Due diligence is lacking in this case, as permission of filing up to five nomination papers is also not availed. Section 60(4) is to be read with section 62(9)(b)(i) of the Act of 2017, which clearly says that rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination papers. Both the provisions are reproduced:- "

60. Nomination for election.-(1) .. .. .. (4) A person may be nominated in the same constituency by not more than five nomination papers." "

62. Scrutiny.-(1) . . (9) Subject to this section, the Returning Officer may, on either of his own motion or upon an objection, conduct a summary enquiry and may reject a nomination paper if he is satisfied that- (a) (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; "

10. An application for substituting of proposer was moved, in captioned appeal, admittedly after final date, which has also been rejected. Though it appeals to mind that a person prepared for contesting an election should not be knocked out technically, yet the philosophy and the procedure for this purpose, as couched in the provision of law, under the Act of 2017, requires a candidate to be proposed by a voter existing in the Electoral Roll of that constituency and these provisions have been interpreted by the august Supreme Court of Pakistan very unequivocally in Nadeem Shafi v. Tariq Shuja Butt and others (PLD 2016 Supreme Court 944) and Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277), holding that this defect is substantial and/or not curable. Relevant paragraphs from Tajammal Hussain's Case (supra) are reproduced: "

9. It has been pointed out hereinabove that the object of section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word `may' used in section 12(1) has to be read as `shall' and on having held that the word `may' can be interchanged with the word `shall' to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom. There is no cavil with the proposition that once it is found out that a provision of the law is mandatory by its implication, the same is bound to be strictly following as has been held in Dalchand v. Municipal Corporation Bhopal AIR 1983 SC 303.

10. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 374) is not approved for the reasons mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer or the Election Tribunal or for that matter High Court or this Court, in terms of section 14(1)(2) of the Act, 1976. A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer 1993 MLD 2509, Qaisir Iqbal v. Ch. Asad Raza 2002 YLR 2401, Asif Khan v. Returning Officer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089. Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved. [emphasis supplied] In Tajammal Hussain's Case (supra), the provisions under The Representation of the People Act, 1976 ("Act of 1976") are interpreted, which in this Court's opinion, are in pari materia to the relevant provisions under the Act of 2017. Same principles are emanating from the provisions of the Punjab Local Governments (Conduct of Elections) Rules, 2013 ("Rules of 2013"), which have also been interpreted in Nadeem Shafi's Case (supra). Relevant excerpts from the judgment are reproduced: "It would appear that the only qualification for a proposer and/or seconder is that they are a voter of the constituency. Voter is defined at section 2(111) of the Punjab Local Government Act, 2013 as under:- "Voter" means a person, whose name for the time being appears on the electoral roll prepared or adapted for the purpose of the election under this Act". Proposer and/or seconder are not defined anywhere in the Act ibid or the 2013 Rules, therefore, it would appear that the only qualification of a proposer and/or seconder are that he/she be a voter of the constituency. As this is the sole qualification of a proposer and/or seconder a defect with respect to said qualification would go to the heart of the qualification of such proposer and/or seconder to subscribe to the nomination papers and the same would be liable for rejection under Rule 14(3)(b) of the 2013 Rules. That takes us to the question of whether failure of the proposer and/or seconder to be a voter of the constituency from which a candidate is nominated is a defect of a substantial character in terms of Rule 14(7) of 2013 Rules.

7. The nomination form II(b) for election to general seats of wards in Union Councils/Municipal Committees requires a declaration by the proposer and the seconder to the effect that he is registered as a voter at serial # such and such of electoral roll for the electoral area of ward # such and such of the union council/municipal committee. The declaration with respect to the proposer and/or seconder being the essence of his qualification, therefore, if he is not such a voter of the relevant constituency he cannot act as proposer and/or seconder. The question of the object and purpose of nomination by a proposer and/or seconder have been dealt with by a judgment of this Court cited as Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284) wherein at paragraphs 78 and 79 this Court held that the proposer and seconder are recommendees with respect to the candidate nominated for election. The ineluctable conclusion is that the proposer and the seconder must be voters of the same constituency, who put forward the name of a duly qualified candidate whom they considered suitable to represent the electorate. It is an endorsement of the nominated candidate by voter(s) of the same constituency. Therefore, should it be discovered that the proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all and thus a defect of a substantial nature. Rule 14(7) of the 2013 Rules only empower a Returning Officer to allow a defect other than one of a substantial nature to be remedied, such as the name, or the corresponding serial number in the electoral roll or other particulars of the candidates or his proposer or seconder and son as to ensure that the same are accurate. But if the name of the candidate and his particulars are altogether missing and/or same is the position of the proposer/seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the position with regard to substitution as the said rule does not envisage substitution of the name of the disqualified proposer and/or seconder and the Returning Officer has no lawful authority to allow an altogether new person to be replaced as a seconder or proposer for a person who is absolutely disqualified or ineligible to propose or second. In the present case the petitioner, did not ask the Returning Officer for such substitution; in fact it is not his case in the memo of appeal that he either requested the Returning Officer to allow the substitution later allowed to him by the appellate forum. The Returning Officer and the Appellate authority are barred from correcting a defect of a substantial nature; if the fact that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substitution or rectification of a defective nomination paper. [emphasis supplied]

11. This Appellate Tribunal is exercising powers under section 63 of the Act of 2017, therefore, cannot venture to differently interpret the already interpreted provisions by the August Supreme Court of Pakistan. Being bound under Article 189 the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the ratio in judgments, ibid, is followed. Resultantly, this and connected appeals are dismissed. MH/J-15/L Appeals dismissed.