Scrutiny

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.

There is no requirement for the candidate to be in attendance before the returning officer at the time of scrutiny of his nomination papers

Subsection (2) of section 62 of the Elections Act, 2017 is an enabling provision, which makes it permissible (but not mandatory) for, inter alia, a candidate to attend the scrutiny of his nomination paper.

Dispute was with regard to invoices issued by suppliers who had either been declared blacklisted or were non-existent with "registration suspended" status

Show-Cause Notices for refund claims issued by authorities were rejected by Appellate Tribunal Inland Revenue

Validity

Findings of facts were given by Appellate Tribunal Inland Revenue that respondent-taxpayer produced relevant documents including invoices, proof of purchases and payments through banks and compliance of S.73 of Sales Tax Act,1990 was also made

Authorities failed to show that findings of facts made by Appellate Tribunal Inland Revenue were either perverse or contrary to record

High Court decided the question against authorities and in favour of respondent-taxpayer

Reference was dismissed, in circumstances.

Question before Election Tribunal was whether a candidate who had filed nomination papers as per requirement of S. 60(2)(d) of the Elections Act, 2017 read with Form-A and Form-B, could move an application for rectification of some information before the closing date as notified by the Election Commission of Pakistan

Held; that plain reading of S. 62(9)(d)(ii) of Elections Act, 2017 revealed in unequivocal terms that the Returning Officer shall not reject a nomination paper on the ground of any defect which was not of a substantial nature and might 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 corresponding entries in the electoral roll

Candidate himself had pointed out the omission, therefore, the same was not substantial in nature

Application for rectification was filed within the timeframe given by Election Commission

No illegality or perversity was found in the impugned orders

Appeals were dismissed.

Case of appellant was that as per election schedule, the last date of scrutiny of nomination papers was fixed as 11-08-2022, but the Returning Officer conducted the scrutiny on 10-08-2022 without issuing any notice or providing any opportunity of hearing as such it was violation of S.62 of the Elections Act, 2017

Validity

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 another candidate was done on the same day at 3:00 p.m., 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.

Scrutiny process was conducted by the Returning Officer in presence of the appellant on 10-08-2022

Appellant had no locus standi to be heard by the Election Tribunal

Appeal was dismissed.

Section 62 of the Elections Act, 2017 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.

Appellate Authority rejected joint nomination papers of petitioners on ground of non-declaration of share regarding ancestral agricultural land

Contention raised by petitioners was that objection as to said non-declaration had been raised for the first time before Appellate Authority, and that they had not been provided opportunity to cure the defect

Validity

Candidate, who intended to contest elections, was required to submit complete and correct Nomination Papers along with annexures as required under relevant law and rules

Any deliberate omission or default, which was of substantial nature, could not be allowed to be validated at subsequent stage

If an error or omission in nomination papers on part of candidate, was not of substantial nature, and the same could be cured at very initial stage of scrutiny by Returning Officer or before Appellate Authority, then opportunity was to be given to candidate to remove such defect or deficiency, so that he might not be defranchised or prevented from contesting election, which was fundamental right of every citizen

Petitioners were otherwise qualified to contest election and there was no objection with regard to their eligibility except ground of incomplete declaration of assets

Respondents could not show as to how such non-declaration of share in ancestral agricultural land was deliberate act of concealment by petitioners or that petitioners wanted to gain any benefit out of such non-declaration

Non-declaration of small share in ancestral agricultural land by petitioners was not deliberate act of concealment of assets

Said omission did not fall within mischief of Ss. 12 & 14 of Representation of the People Act, 1976

High Court, setting aside impugned order of Appellate Authority, allowed petitioner to file complete and true declaration of his assets before Returning Officer

Constitutional petition was accepted in circumstances.

Appeal against the decision of Returning Officer rejecting or accepting the nomination papers could be preferred by any "person present at the time of scrutiny".

Both Returning Officer and appellate authority rejected nomination papers of petitioners for local bodies elections on ground that either proposer or seconder of the candidate was not registered voters of the same electoral unit (constituency)

Petitioners contended that the defect, being not of substantial nature, could be cured in terms of R.18(3) second proviso of Sindh Local Council (Election) Rules, 2015, and the proposer or seconder could therefore be replaced as per law

Validity

Provisions of Rr.16 & 18 of Sindh Local Councils (Election) Rules, 2015 were similar to provisions of Ss.12 & 14 of Representation of the People Act, 1976

Section 14(3)(b) of Representation of the People Act, 1976 provided that Returning Officer might reject the nomination papers if he was satisfied that the proposer or seconder was not qualified to subscribe to the nomination papers

Unqualified proposer or seconder had lead to rejection of the nomination papers as provided under the said provision

Such defect could not be held to be not of substantial nature, because the same could be removed only by substitution of the nomination paper, and the law did not provide for substitution of proposer or seconder

Keeping in view the intention of the legislature word 'may' used in S.12(1) of Representation of the People Act, 1976 had to be read as `shall'

Any substantial defect or deficiency in nomination forms could not be ignored or condoned by Returning Officer at subsequent stage, as the same would deprive the contesting candidates of their substantial right, who, otherwise, would have filed proper nomination forms after complying with the law and relevant rules within stipulated period

Provisions relating to proposer and seconder of candidate were mandatory in nature, and the proposer or seconder, therefore, had to be of the same electoral unit from which petitioners had filed their nomination papers and was contesting elections

Said defect could not be cured at any subsequent stage and the nomination papers, having been found invalid on that account, could not be allowed to be validated afterwards in exercise of powers either by Returning Officer or Election Tribunal or for that matter by High Court or Supreme Court

High Court maintained impugned orders of rejection

Constitutional petitions were dismissed in circumstances.

Appellate Authority rejected joint nomination papers of petitioner for position of Chairman and Vice Chairman on ground of default in payment of utility charges and registration of FIR against him

Validity

Respondent-objector had not filed any objection when nomination papers of petitioner were being scrutinized by Returning Officer

Respondent had objected to eligibility of petitioner for first time by filing appeal on ground that petitioner was defaulter in utility charges and FIR was registered against him

Petitioner had already paid alleged outstanding amount of utility charges before impugned order was passed as reflected from 'No Dues Certificate'

Parties had lodged FIR's against each other due to enmity

Petitioner was shown to have been accused in counter FIR

Returning Officer had found petitioner an eligible candidate

Appellate Court, while passing impugned order, had not examined relevant facts and law

High Court, setting aside impugned order, restored acceptance of candidature of petitioner by Returning Officer

Constitutional petition was allowed in circumstances.

Question raised by importer could not be decided as it involved a factual controversy, which High Court could not look into in its Constitutional jurisdiction

Question that as to whether goods in question were for "ground handling equipment" or not was to be determined by Adjudicating Collectorate and before such factual determination was done, question of interpreting applicability of restricted list of Import Policy Order, 2013, could not be decided

Petition was dismissed in circumstances.

Sufficient documentary evidence was available to establish the fact that respondent was not qualified to contest election for the seat of Provincial Assembly as well as Senate on the strength of fake and fictitious B.A. degree

Respondent made declaration in column meant for academic qualification and declared himself to be a graduate, though he was not

Effect

Respondent had to face consequences of Arts.62 & 63 of the Constitution, once there was disqualification, it was always disqualification

Election Tribunal directed the authorities to exclude name of respondent from list of validly nominated candidates and his nomination papers were rejected

Appeal was allowed in circumstances.

Questions put by Returning Officer regarding Islamic provisions of the Constitution were not justified and were uncalled for

Failure to give correct replies of such questions could not form basis for rejecting nomination papers of candidate in election.

Respondent was advisor to Infrastructure Project Development Facility (IPDF) and resigned few weeks before filing of nomination papers

Validity

Respondent was in service of corporate body wholly owned and controlled by government and two years had not elapsed since resignation as Advisor to IPDF

Candidature of respondent was hit by provisions of Art.62(1)(e) read with Art.63(1)(k) of the Constitution

Respondent was not qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament)

Election Tribunal directed to delete name of respondent from list of validly nominated candidates of the constituency concerned and rejected his papers of nomination

Appeal was allowed in circumstances.

Person whose spouse or children/dependents had acquired citizenship of foreign country was not disqualified to be member of Majlis-e-Shoora (Parliament) under Art.63(1)(c) of the Constitution

Order passed by Returning Officer did not suffer from any illegality or infirmity

Appeal was dismissed in circumstances.

Plea raised by appellant was that he had been acquitted by criminal court in the case of holding fake educational degree

Validity

Merely because appellant secured acquittal from criminal court, would not mean that he had become graduate

Criminal court had no power to grant degree or determine whether degree was to be recognized in Pakistan; it was only recognized institution, i.e. Higher Education Commission, which could determine validity or otherwise of a degree

Any person might have attended college or university, which was not recognized by Higher Education Commission, and in such circumstances, such person could not state that paper in his possession was a 'graduation' degree in Pakistan

To hold otherwise would grant criminal courts jurisdiction to determine matter of recognition of degrees, affiliation of colleges/universities, equivalency or otherwise of `degree'

Such were the matters in respect of which criminal courts had no jurisdiction nor they had necessary expertise

Appellant by stating that 'degree' was a degree that was recognized in Pakistan made "false statement" or submitted "false or incorrect declaration" in respect of his "educational qualifications" as stipulated in section 78 (3) (d) of Representation of the People Act, 1976, by making/submitting false declaration in respect of his educational qualifications, and the same amounted to corrupt practice, for which penalty had been provided in S.82 of Representation of the People Act, 1976 and further the offence was cognizable under S.94 of Representation of the People Act, 1976

As determination of Higher Education Commission with regard to validity of degree of appellant stood the appellant was guilty of corrupt practice, therefore, in spite of his acquittal, he was not eligible to participate in elections

Appeal was dismissed in circumstances.

Respondent was declared as returned candidate and petitioner assailed his election on the ground that his certificates of matriculation and intermediate were bogus and result of impersonation

Plea raised by petitioner was that after declaring respondent, as disqualified, he be declared as returned candidate

Validity

When Intermediate certificate issued by the Board was result of impersonation then automatically Bachelor degree held by respondent had lost its value also

As the respondent obtained Intermediate certificate through impersonation, so he was disqualified to contest election

Declaration of petitioner to be elected candidate would mean that in fact voters who cast their votes in favour of respondent would be deprived of their right of representation in Provincial Assembly for no fault of them, since they did not know that respondent was not qualified to contest election

Election Tribunal directed Election Commission to conduct re-election in accordance with law

Petition was allowed accordingly.

Para. 29-Scrutiny-Chairman, powers of-Contention that power possessed under para. 29 of Regulation having in fact been exercised by member of Commission when he scrutinized impugned alienations and recommended review of same by Chief Land Commissioner, such scrutiny, determination, and direction in effect exhausted power possessed by Member under para. 29 and could not be exercised subsequently by Chairman of Commission-Order on whose strength power under para. 29 alleged to be exhausted not placed on record-Interpretation of such order or determination of its effect on subsequent proceeding in circumstances, not possible-Order of Chief Land Commissioner, however, showing member of Commission, instead of exercising big authority under para. 29 referred case to Chief Land Commissioner for review No power under para. 29 consequently, held, exercised, or exhausted so as not to be available to Chairman to deal with dispute.