Election for seat of Provincial Assembly
Election for seat of Provincial Assembly legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Rejection of nomination paper of the petitioner on the ground of non-submission of requisite NOCs. and attachment of transcript of his brother
Validity
As per NOCs no liability was existing against petitioner, who claimed that the same were presented before the Returning Officer before expiry of the scheduled date and time for scrutiny of nomination papers and this fact had not been negated by the other side
Omission to tender the NOCs while filing nomination papers was not a lapse/defect of such a grave nature which could invite extreme measure of rejection of the nomination papers and such an omission could have been fatal if it was designed to avoid the liability or intended to conceal some unlawful activity
Alleged mistake of filing transcript of petitioner's brother was not a defect of such a nature which could attract any express provision qua disqualification or rejection of nomination papers provided in the Elections Act, 2017
Neither any specific direction was issued by the Returning Officer nor a fair opportunity was provided to petitioner to cure the said defects/lapses, which was not a proper exercise of jurisdiction and such material aspect of the matter also escaped the notice of Election Tribunal
Constitutional petition was allowed, in circumstances.
According to the consolidation of the results by the Returning Officer for the constituency in question issued by dint of Form-48, for the polling stations which are the subject matter of the present controversy, it is revealed that out of the total 1234 registered voters in first polling station, 1089 votes were cast which makes total turnout of 88%
Similarly, in the second polling station, the total registered voters were 1524, with 1214 total votes cast, which makes a total turnout of 79%, while in the third polling station, out of 1746 registered voters, 1340 votes were cast, making a 76% turnout; whereas, in the fourth polling station, the total registered voters were 1304, out of which 1286 votes were cast showing a turnout of 99%
After considering the entire record and the report of the Returning Officer and hearing the concerned parties, the ECP reached the conclusion that turnout at said four (4) polling stations was unnatural due to some illegalities and irregularities which have ultimately affected the final results, and in exercise of powers conferred under sections 4, 8(c) and 9(1), (3) & (4) of the Elections Act, 2017 ('Act'), it ordered for re-poll at the four polling stations
Present case is predominantly focused on an abnormal or unrealistic turnout of votes at 04 polling stations which does not commensurate with or is not in consonance with the overall turnout behavior of voters in the entire constituency
Counsel for the appellant-candidate did not deny the inflated or outlandish turnout of votes
There was no illegality or perversity in the impugned order of re-polling on 4 polling stations passed by the ECP
Appeal was dismissed.
Returning officer rejected the nomination paper of the petitioner (candidate) for the reason that his signature on the paper did not match that on his CNIC
Validity
Petitioner had appeared throughout in the proceedings regarding his nomination, up to the Supreme Court, and had owned the nomination paper as filed
At no stage did he disown or repudiate the same or the signature thereon
Returning officer had the jurisdiction to reject a nomination paper in terms of section 62(9) of the Elections Act, 2017 ('Act') after a summary enquiry
Clause (d) of subsection (9) allows for rejection if the returning officer is satisfied that the signatures of either the proposer or the seconder are "not genuine"
Clause (d) (which deals specifically with the issue of signatures) does not at all speak of the candidate
Rejection of the petitioner's nomination paper for an alleged mismatch between his signatures as on the nomination paper and on his CNIC was therefore not possible in terms of this clause
Candidate does sign the nomination paper, which has to be in the form as set out in Annex A to the Act
As presently relevant, Form A relates to section 60(2)
Clause (c) of subsection (9) of section 62 allows for the rejection of the nomination paper if the returning officer is satisfied that "any provision of section 60 or section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular"
Thus, the matter of the alleged mismatch could, if at all, have been considered only in terms of this provision
Said provision was, however, not attracted in the facts and circumstances of the present case
First part thereof, namely that any provision of section 60 had not been complied with, was clearly not attracted: the nomination paper was signed by the petitioner who had never repudiated or disowned the same
Latter part, namely that any declaration or statement had been made which was false or incorrect in any material particular, was also not applicable
Firstly, the candidate's signature is neither a "declaration" nor a "statement" within the meaning of either this provision or section 60
Secondly, and more importantly, the falsity or incorrectness has to be "material"
It is a mandatory legal obligation for the returning officer to apply his mind to the test of materiality and record appropriate reasons in this regard
Order in the present case showed no such thing
Furthermore, the alleged mismatch in signatures was in any case not material
This conclusion is bolstered by a reference to para (ii) of the proviso to section 62(9)
Clearly, any mismatch in signatures could be "remedied forthwith" within the meaning thereof, and anything capable of being so dealt with (regardless of whether or not it is actually so rectified) cannot be "material" within the meaning of clause (c)
Thus, on any view of the matter, the objection ought to have been overruled by the returning officer instead of being sustained
Petitioner was entitled to participate in the general election to the Punjab Assembly as a candidate for PP 254
Leave petition was converted into an appeal and allowed; impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner/appellant for PP-254 were deemed accepted and his name was deemed included in the final list of candidates for the General Elections of 2024.
Disadvantage, if any, for being a proclaimed offender ordinarily relates only to the case in which a person has been so proclaimed, and not to the other cases or matters which have no nexus to that case
For instance, a proclaimed offender is not disentitled to institute or defend a civil suit, or an appeal arising therefrom, regarding his civil rights and obligations
Same is the position with the civil right of a person to contest an election; in the absence of any contrary provision in the Constitution or the Elections Act 2017 ("Act"), his status of being a proclaimed offender in a criminal case does not affect his said right.
Column No.3 of the declaration, provided in the nomination papers, by which a candidate is required to declare his/her bank account
Interpretation
Tenor of column No.3 of the declaration provides two options for a candidate
First, the candidate has to declare that he/she has opened an exclusive single signatory account, which means that before filing nomination papers, the candidate has opened an exclusive single signatory account for the purpose of documentary evidence of election expenses
If, for any reason, the candidate cannot open an exclusive single signatory account before filing the nomination papers, the other option for him/her is to declare that he/she will use his/her existing account for the purpose of election expenses
This implies two things: firstly, the existing account may be single or joint, and secondly, a candidate is given the opportunity, if their account is joint, to have it converted into a single signatory account for the purpose of election expenses later on
This option seems to be for those candidates who, due to some exigencies including illness, imprisonment, etc., cannot open their exclusive single signatory bank account or convert their existing joint account to a single signatory account before filing nomination papers
Purpose of providing such a facility can only be to ensure that the citizens are not deprived of their fundamental right, that is, to contest election freely
So the objection, if any, in the present case with regard to the joint bank account declared by the petitioner (candidate), it could not be held to be a defect which was substantial in nature as the petitioner had the option, as stated above, to rectify it under proviso (ii) to subsection (9) of section 62 of the Act, and convert it into single signatory account
This aspect of the matter escaped consideration of the High Court, and so, it misdirected itself while declining the petitioner's prayer
Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.
It is not mandatory for the bank account opened or dedicated for the purpose of election expenses to be a single signature account
However, the Election Commission of Pakistan ("ECP") exercising its delegated power under section 239 of the Elections Act, 2017 ('the Act') amended Rule 51 of the Election Rules, 2017 ('the Rules') with the effect that the bank account so opened for the purpose to document election expenditure should not be a joint signatory account
Stipulation in Rule 51 that the bank account so opened or dedicated should not be a joint signatory account is inconsistent with the express provision of section 60(2)(b) of the Act
Since Rule 51 (as amended) travels beyond the ambit of the Act, it is ultra vires and cannot be given any effect, and resultantly, based on it the nomination papers could not be rejected
Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.
Nomination papers of the petitioner-candidate, who was an under trial prisoner, were rejected by the High Court on the ground that her signatures and thumb impression on nomination papers, Form-B and the Affidavit were not properly attested and, therefore, not genuine
Validity
Scope of inquiry under section 62(9) of the Elections Act, 2017 does not permit the Returning Officer ("RO") to get the signature of the petitioner verified from the jail authorities, nor the non-verification or attestation of the nomination papers by the jail authorities is a condition precedent, nor was the difference in the candidate's signature a valid reason for rejecting the nomination papers, particularly when the petitioner/candidate filed an appeal admitting her signature, and then a constitutional petition
Thus, it could not be used as a basis to draw the inference that signatures were not genuine and to reject the nomination papers
Leave petition was converted into appeal and allowed, impugned judgment of the High Court as well as the orders of the fora below were set aside with the result that the nomination papers of the petitioner for PP-150 (Lahore) were deemed accepted and her name was deemed included in the final list of candidates for the General Elections of 2024.
Respondent No. 11/returned candidate received 21,103 votes which was the highest number, and the runner up was the appellant who received 19,093 votes
Returning Officer recounted the votes which resulted in the respondent No. 11's votes being reduced to 20,706 and the appellant's votes being reduced to 18,787; the difference of votes between them was 1,919 votes
Election Commission of Pakistan ('ECP') issued the requisite notification and declared respondent No. 11, who was recorded to have received the highest number of votes to have won the elections
Legality
Presiding Officers testified as court witnesses and the parties were given an opportunity to cross-examine them
Despite cross-examining them at length the alleged wrongdoing on their part could not be established nor could it be established that the copies of Form-45s produced by the appellant were copies of the actual Form-45s
Appellant's allegation that the respondent No. 11 had familial and other ties with the Presiding Officers was also not established
Appellant had questioned the declared results and had sought recounting which was allowed
Pursuant to the recounting the votes received by the winning candidate (respondent No. 11) were reduced and so too those received by the appellant, however, the respondent No. 11 still emerged as the victorious candidate having received 1,919 more votes than the appellant
Judge of the Tribunal independently examined the case from all angles and attended to the allegations levelled by the appellant and correctly concluded that his allegations were not established, and that the election results were fair
Appeal was dismissed.
Candidate for general electionsfiled appeal before the Election Appellate Tribunal against the acceptance of the nomination papers submitted by respondent (opposing /contesting candidate )
Objection ofthe appellant was that the respondent deliberately ,with mala fide intention , withheld the required information by disclosing only one lac as bank loan whereas he was defaulter of Rs. 9.90 million
Validity
Record revealed that in the form submitted by respondent in the column of LIABILITIES, "Rs. 1 Million loan was mentioned
In the impugned order passed by the Returning Officer it was observed that the candidate was not declared as defaulter by any institution and that the deficiencies pointed out by the objector were not substantial in nature
Stance of the respondent was that his wife was independent and an affidavit to said extent was produced before the Returning Officer who, of course, had to satisfy himself through an affidavit
As per a certificate issued by the concerned bank, about half of the loan (Rs. 9.90 million) was already paid as 1st installment, whereas 2nd installment and the remaining amount would be paid/adjusted on two promised dates of near future
After settlement of the loan, respondent would not be considered as a defaulter
Appeal filed by the candidate against acceptance of nomination papers of opposing / contesting candidate, was dismissed, in circumstances.
Election was required to be held in a free, fair and transparent manner, and the electorate must be given an unqualified, free and unconditional choice to vote for the candidates of their choice without fear or intimidation
Record of present case showed that the election was not held in a free and fair manner
Serious law and order lapses occurred at various polling stations which had been taken over by supporters of rival candidates
Election Commission had found that some of the Presiding Officers had been won-over and were taking sides and facilitating rigging
Night before the election, security personnel were attacked and a complaint was lodged with the competent forum
Number of FIRs were also lodged against the returned candidate in which admittedly he was on bail
Analysis of the voting pattern undertaken by the Election Commission also suggested rigging in so far as the percentage of votes allegedly cast in certain polling stations was unreasonably high
Ballot paper books were taken away by creating law and order situation and female staff of female polling stations was harassed and intimidated
On the day of election, certain polling stations were taken over by the parties including the returned candidate
Election was not held in a peaceful, free and fair manner and there were major violations of the election laws which could neither be condoned nor ignored
Election Commission had no choice but to declare the election null and void and direct the constituency to elect its representative in accordance with law without fear or intimidation
Appeal was dismissed accordingly.
Constituency in question contained a total of 51 polling stations and the runner-up candidate (apellant) alleged rigging, corrupt and illegal practices in 41 polling stations
Out of the said 41 disputed polling stations, returned-candidate prevailed in only 10
In the remaining 31 polling stations, either the runner-up candidate or other candidates secured higher number of votes
Comparative table of votes obtained by the runner-up candidate and some of the other candidates showed that even in those polling stations where returned-candidate won there was no apparent or marked abnormality in the number of votes polled in favour of the returned-candidate
Votes polled were almost evenly divided amongst the candidates
Perusal of statements of the witnesses produced by the runner-up candidate showed that they did not adequately support the statements made in their affidavits, contradicted themselves in cross-examination, and did not inspire confidence as to their truthfulness and veracity
Despite allegations of illegal and corrupt practices, and dereliction of duty and connivance on the part of the election officials, no written application was filed before any competent authority at any stage
Allegation of casting of bogus votes remained unproved and unsubstantiated by any independent and reliable evidence
None of the election agents of returned-candidate or the Election Commission officials allegedly involved in rigging or corrupt practices were named or identified
No documentary evidence of any nature to substantiate allegation of shifting of polling stations and appointment of Returning Officers and Deputy Returning Officers at the behest or under the influence of returned-candidate was brought on record
Runner-up candidate admitted in his cross-examination that he did not have any proof of the unauthorized change of election staff, and no written complaint had been filed by him or his polling agents regarding polling of bogus votes or the use of illegal and corrupt practices in any of the disputed 41 polling stations, despite the fact that he admittedly had polling agents in each of the said polling stations
On the basis of unreliable oral evidence which was unsubstantiated by any credible independent evidence and in the absence of documentary evidence, it would be unjust and unfair to unseat a returned candidate and disenfranchise the entire constituency
Appeal was dismissed accordingly.
Miscalculation, omissions and arithmetical errors by Presiding Officer at the time of formulation of consolidated result
Constitutional petition filed before the High Court seeking recount of votes casted at a polling station
Maintainability
Petitioner and respondent contested for seat of Provincial Assembly
After consolidation of results petitioner was shown to have bagged 15743 votes, while respondent got 15640 votes
Respondent filed applications before the Presiding Officer and District Returning Officer seeking recounting of votes at a polling stations on the basis that there were miscalculation, omissions and arithmetical errors at the time of formulation of consolidated result
Said applications were not adjudicated upon by the Election Commission of Pakistan, whereafter respondent filed a constitutional petition before the High Court seeking recounting of votes
High Court allowed the constitutional petition and directed that recounting of votes should be conducted and notification (of successful candidate) should be notified only after recounting of votes casted at the polling station
Contention of petitioner was that prior to filing constitutional petition before the High Court respondent had already submitted applications to the Presiding Officer and District Returning Officer alleging that results at different polling stations had not been properly given; that in such circumstances High Court should not have interfered in the proceedings of the Election Commission of Pakistan in view of the bar under Art. 225 of the Constitution, and that only remedy available to the respondent was to file an election petition before the Election Tribunal, thus the constitutional petition filed before the High Court was not maintainable
Contention of respondent was that on account of miscalculation and arithmetical errors which crept in at the time of formulation of consolidated results, he immediately filed applications before the Presiding Officer and District Returning Officer, which remained pending before the Election Commission and were not considered; that in such circumstances he filed constitutional petition, which was in the form of mandamus, seeking a direction to the Election Commission of Pakistan for recounting of votes
Validity
Constitutional petition filed by the respondent before the High Court was in the form of mandamus seeking issuance of direction for deciding his applications which were filed before the Presiding Officer and District Returning Officer to rectify erroneous and arithmetical errors
Since said applications of respondent were not attended to by the Election Commission, therefore, the High Court accordingly issued directions to the Election Commission in such regard and to issue a final notification
Said direction by High Court did not amount to disenfranchising the petitioner, therefore, constitutional petition filed by respondent was not barred under Art. 225 of the Constitution
After recounting of votes respondent was declared as the successful candidate and a notification in such regard was also issued, therefore, bar of Art. 225 of the Constitution would now apply (to the petitioner), on account of which an election petition was required to be filed before the Election Tribunal
Petition for leave to appeal was dismissed accordingly.
"Election for seat of Provincial Assembly", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124942379
Precedents & Case Laws citing "Election for seat of Provincial Assembly"
P L D 2024 Supreme Court 571
PERVEZ ELAHI — Petitioner Versus ELECTION COMMISSION OF PAKISTAN and others — Respondents
Court: High Court2024 M L D 1257
Sardar Muhammad AwaIs Nakai — Appellant Versus Rana Sikandar Hayat and another — Respondents
Court: Lahore2024 S C M R 819
SANAM JAVAID KHAN through Attorney — Appellant Versus ELECTION APPELLATE TRIBUNAL, PUNJAB and others — Respondents
Court: Supreme Court of Pakistan2005 C L C 599
MASOOD AHMAD — Appellant Versus SECRETARY, LOCAL GOVERNMENT and others — Respondents
Court: Lahore2024 S C M R 1202
Malik AHMAD USMAN NAWAZ — Petitioner Versus The APPELLATE TRIBUNAL (ELECTIONS ACT, 2017) for PP-254
Court: Supreme Court of PakistanP L D 2020 Supreme Court 591
ALLAH DINO KHAN BHAYO — Petitioner Versus ELECTION COMMISSION OF PAKISTAN and others — Respondents
Court: Supreme Court of PakistanP L D 2016 Supreme Court 689
Ch. MUHAMMAD YOUSAF KASELIA — Appellant Versus PEER GHULAM MOHY-UD-DIN CHISHTI and others — Respondents
Court: High Court2024 M L D 1463
Muhammad Faizan Babar — Appellant Versus Returning Officer PK-40 Mansehra and 3 others — Respondents
Court: Peshawar (Abbottabad Bench)2013 S C M R 1676
MUHAMMAD ASLAM ABRO — Petitioner Versus Sardar MUHAMMAD MUQEEM KHOSA and others — Respondents
Court: Supreme Court of Pakistan2019 S C M R 61
Sardar MASOOD KHAN LUNI — Appellant Versus ELECTION COMMISSION OF PAKISTAN and others — Respondents
Court: Supreme Court of Pakistan