2025 PLP 1115 (YLR)

Jawad Hassan, J.

Usman Yasin has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") with prayer to set aside the judgment dated 10.01.2024 (the "Impugned Judgment") passed by the Election Appellate Tribunal (the "Tribunal") whereby appeal filed by the Respondent No.2 against rejection of her nomination papers was allowed. A. BRIEF FACTS

2. In order to contest election, the Respondent No.2 (Sonia) filed her nomination papers from PP-124 Toba Tek Singh-VI as per schedule of The Election Commission of Pakistan (the "ECP") which were rejected on the grounds encapsulated in order dated 29.12.2023 passed by the Respondent No.4. Being dissatisfied from order of Returning Officer, the Respondent No.2 filed Election Appeal No.302 of 2024 before the "Tribunal" which was allowed vide the "Impugned Judgment", hence this petition. B. PETITIONERS SUBMISSIONS

3. Learned counsel for the Petitioner inter alia argued that the "Impugned Judgment" is illegal and unconstitutional; that non-disclosure of assets raises serious questions about the honesty and transparency of the Respondent No.2's candidacy in terms of Article 62(1)(f) of the "Constitution" but this provision of law has not been taken into consideration by the "Tribunal". C. RESPONDENTS SUBMISSIONS

4. Learned counsel for the Respondent No.2 submitted that the "Impugned Judgment" has been passed strictly in accordance with law, therefore, do not warrant any interference by this Bench. On the other hand, learned counsel for the Respondent-ECP appeared and stated that the Respondent No.4 has rightly rejected the nomination papers of the Respondent No.2 but the "Tribunal" while passing the "Impugned Judgment" has not taken into consideration the provisions of the "Constitution".

5. We have heard the arguments and perused the record. D. DETERMINATION BY THE BENCH

6. Before proceeding further, it would be relevant to discuss the scope for interference in the "Impugned Judgment" passed by the "Tribunal". The scope of judicial review of the High Court under Article 199 of the "Constitution" in election matter is confined to the extent of an order passed by election authority unlawfully or it is coram non judice or mala fide and such scope cannot be enlarged to the cases relating to factual inquiry or in the cases in which another view of the matter was also possible and if such view would have been taken it would not be illegal or unconstitutional. Reliance in this regard is placed on "Let.-Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan" (PLD 2008 Supreme Court 735) wherein it was held that "the High Court is also not supposed to substitute its opinion on the question of fact with the opinion formed by election authority or a Tribunal of competent jurisdiction". We have seen the record which reveals that the candidatures of the Respondent No.2 was rejected by the Returning Officer on the ground of non-payment of government dues and non-mentioning certain assets at the time of submission of nomination papers. Section 62(9) of the "Act" demonstrate that the Returning Officer may conduct summary inquiry for the purpose of accepting or rejecting the nomination papers on the grounds mentioned under subsections of Section 62(9) of the "Act". The "Tribunal" in the "Impugned Judgment" has observed that "the Returning Officer was required to afford the appellant an opportunity to clear the outstanding liability but unfortunately the same has not been done and her nomination papers were rejected straightaway. Now the appellant has paid token tax of all the three vehicles and receipts in this regard are available on record, as such she cannot be debarred from contesting the elections on that account". This observation makes it abundantly clear that neither any notice was issued to the Respondent No.2 nor she was provided any opportunity to defend the allegations leveled in objection petition in terms of Section 62(9) of the "Act". It is well settled preposition of law that when an adverse action is contemplated to be taken against the person/persons, he/ they has/have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. Based on this principle, the observations of the "Tribunal" are inconsonance with case law reported in "Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others" (2005 SCMR 678) wherein the Supreme Court of Pakistan has held that "The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings". In "Board of Governors Cadet College through Chairman and 3 others v. Naveed Ahmed and others" (2006 PLC (C.S.) 313), the Supreme Court has held that "no person can be condemned unheard and a notice for an action against a person is the natural right of the person and every law and rule has to be read in a manner that the natural law is to be read in it, unless the law or rule itself excludes notice before taking action". Similarly, in "Pakistan International Airlines Corporation, through MD, Karachi v. Nadeem Murtaza Khan" (2007 PLC (C.S.) 334) it has been held that "no one should be condemned unheard and if an order adverse to the interest of, a person is passed behind his back and without providing him an opportunity of hearing, the order is illegal". Likewise, the Supreme Court of Pakistan in "Ali Muhammad v. The State" (PLD 2010 Supreme Court 623) has held that "issuing of notice to the parties is an essential requirement of the law to hear the parties as it is a well settled principle of law that no body should be condemned unheard and no adverse order, concerning his right can be passed against any party without hearing him. This rule is a rule of natural justice, which unless prohibited by wording of statute, must be read in each and every statute, as held by this Court in the cases of "Abdul Majeed Zafar v. Governor of the Punjab 2007 SCMR' 330 and Asim Khan v. Zahir Shah 2007 SCMR 1451".

7. Furthermore, under Section 62(9)(b) of the "Act" the Returning Officer is empowered to reject nomination paper of a candidate of his own motion or upon an objection raised and found substantiated before him. It evinces from the "Impugned Judgment" that the "Tribunal", after taking into consideration all grounds, observed that the Returning Officer by way of impugned order declared the appellant ineligible to contest the elections under Article 62(1)(f) of the Constitution, which is beyond the prerogative in summary proceedings. We observed that mere mis-declaration does not constitute disqualification in terms of aforesaid Article, and it cannot be termed as an error of such a nature which could be remedied by the Respondent No.4 under proviso (ii) of Section 62(9)(d) of the "Act". This Court while interpreting section 62(9)(d)(ii) of Elections Act, 2017, in Ch. Muhammad Ashraf v. Malik Muhammad Muzaffar Khan and others (2022 CLC 2045), held as under: "Plain reading of above said section reveals in unequivocal terms that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corres-ponding entries in the electoral roll."

8. Even otherwise, Section 62(5) of the "Act" empowers the Respondent No.4 to 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 but the said Respondent instead of complying with said requirement, straightaway rejected the nomination papers of the Respondent No.2, which is not warranted by law. It is settled principle of law that when law requires an act to be done in a particular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law. The Supreme Court in "Muhammad Hanif Abbasi v. Imran Khan Niazi and others" (PLD 2018 SC 189) laid down the principle as follows: "It is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly".

9. In this view of the matter, we fully agree with the findings of the "Tribunal" and do not see any illegality or perversity in the "Impugned Judgment" which has been passed strictly in accordance with law, as such do not warrant any interference by us. Consequently, the writ petition being devoid of any merit is hereby dismissed. MQ/U-10/L Petition dismissed.