1988 PLP 1330 (CLC)

Faqir Muhammad Khokhar for Appellant. Date of hearing: 20th February, 1988. The appellant filed two nomination papers for election to the Senate against one of the seven general seats on 11-2-1988, which were duly presented to and acknowledged by the Returning Officer on the same date.

2. One of nomination papers of the appellant was proposed by Mr. Abdul Hakim Qazi and seconded by Haji Maqsood Ahmad Butt. The seconder Haji Maqsood Ahmad Butt, however, appeared personally before the Returning Officer at the time of scrutiny and withdrew his proposal to the nomination paper in writing.

3. The second nomination of the appellant was proposed by Mian Fazal Haq and seconded by Haji Muhammad Afzal Chan, Members of the Provincial Assembly. However, on the date fixed for scrutiny of nomination papers i.e. 13--2-1988 the nomination of the appellant was withdrawn by the proposer and the seconder as per their letters dated 13-2-1988 and 11-2-1988 respectively. According to the learned Returning Officer, who is present, both these letters were not delivered to him personally by Mian Fazal Haq or Haji Muhammad Afzal Chan but were delivered to his peon by some one on the very date of scrutiny sometime before 10-00 a.m. when the scrutiny was to start. The genuineness of the letters was, however, not doubted by the Returning Officer.

4. The Returning Officer rejected both the nomination papers on the ground of such withdrawal of nominations by the proposers and the seconders. He further held that the appellant's case was hit by Article 12(1) of the P.O. No.5 of 1977, inasmuch as he was a candidate for two different seats in the same house namely as a 'technocrat' against reserved seats and also as a candidate for one of the general seats.

5. It was contended by the learned counsel for the appellant that the Returning Officer had no jurisdiction under subsection (3) of section 13 of the Senate (Election) Act, 1975, to reject the nomination paper on the ground stated in his order. It was pointed out that there existed no provision in the said Act for the withdrawal of nomination by a proposer or the seconder and a candidate alone was empowered to withdraw his nomination as provided in section 15 of the Act. On the legal plane, it was contended that the proposer and the seconder after having signed the nomination paper had no power to withdraw their nomination after the nomination paper of the appellant was lodged with the Returning Officer and acknowledged by him on the date fixed for the purpose. According to the learned counsel the option to withdraw the candidature of the appellant could be exercised by the proposer or the seconder before the nomination paper was filed but in no case after the time for the submission of the nomination papers had expired and the appellant was left with no opportunity to file any other nomination paper. According to the learned counsel the principle of locus poenitentiae was attracted in the case and reliance was placed by him on the judgment of the Supreme Court in the case of Pakistan v. Muhammad Himayatullah Farukhi P L D 1969 SC 407.

6. The appellant had submitted his duly proposed and seconder nomination papers on 11-2-1988, which was the only date fixed for the filing of nomination papers for election to the Senate. The nomination papers were to be filed between 9-00 a.m. to 4-00 p.m. on the said date and admittedly neither the proposer nor the seconder had chosen to come forward and withdraw the candidature of the appellant on the said date. They were, in the circumstances, left with the locus poenitentiae to withdraw the candidature of the appellant who had come to acquire a vested right in the matter. It was t A late in the day for the proposer and the seconder to have quietly sent their letters of withdrawal as mentioned hereinabove. Such withdrawal is of no legal consequence.

7. The order of the Returning Officer, rejecting the nomination papers of the appellant on this ground is, therefore, not sustainable and is set aside.

8. As regards the second ground for the rejection of the nomination paper it was contended by the learned counsel for the appellant that the present elections to the Senate were being held under the provisions of the Constitution and the Senate (Election) Act, 1975 and not under the provisions of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 (P.O. No.5 of 1977). According to him the qualifications and disqualifications as laid down in the Constitution or the Senate Act alone were applicable. The learned counsel relied upon the provisions contained in clause (2) of Article 223 of the Constitution which permits a person from being a candidate for two or more seats at the same time, whether in the same body or in different bodies and provides that if he is elected to more then one seat he shall, within a period of 30 days after the declaration of the result for the last such seat, resign all but one of his seats. It was contended that the provisions contained in Article 12(1) of the P.O. No.5 of 1977, which placed an embargo against double membership, was directly in conflict with the aforesaid Constitutional provision and as such it must yield to the provisions of the Constitution more so as the Constitutional provision confers a right while the other provision curtails the same. The contention of the learned counsel has obvious force. I am, therefore, inclined to agree with him that in the face of the clear enabling provisions contained in Article 223 B of the Constitution, the provision in P.O. No.s of 1977 curtailing the right of the appellant must yield to the enabling and beneficial provision embodied in the Constitution and the benefit of the same should no be denied to the appellant. In this view of the matter, the order of the Returning Officer rejecting the nomination paper on the second ground mentioned in his order is also set aside.

9. For the reasons mentioned above, the orders of the Returning Officer having been set aside, the nomination papers of the appellant stand accepted and it is directed that his name may be included in the list of validly nominated candidates. H.B.T./31/E Appeal accepted.