GHULAM RABBANI, J.---Through this petition the petitioner has made the following prayer: "Therefore, the appellant prayed that this Hon'ble Court after going through the record may be pleased to set aside the order, dated 11-9-2002 passed by the learned respondent No.1 directing the respondent No.2 to accept his nomination paper and include his name in the list of validly nominated candidates for N.A. 252 Karachi XIV (East)."
2. It is contended by the learned counsel for petitioner that the nomination Form of the petitioner in respect of Constituency No. 252 'Karachi XIV (East) proposed by Nisar Ahmed Ghafoori and seconded by one Shabbir Ahmed, was filed before the Returning Officer of the said constituency. At the time of scrutiny of the nomination paper, within terms of section 14 of the Representation of the People Act, 1976 (hereinafter to be referred to the said Act), it came to light that the seconder above named was not the elector of the concerned constituency. It is further contended that in such a situation, a request was made to learned Returning Officer to allow substitution of the seconder in the nomination Form but such request was turned down and nomination paper was rejected. Subsequently, it is stated that the petitioner filed an appeal before the Election Tribunal No.1 Karachi which also met the same fate.
3. It is argued by the petitioner that the order of the two forums below is patently illegal as the provisions of section 14(3)(d) of the said Act have not been adhered to.
4. The above submissions have been controverted by the learned D.A.-G. and learned A.A.-G vehemently. They have expressed that learned Returning Officer as well as learned Tribunal have strictly adhered to the law and passed well-reasoned orders, which need no interference.
5. Before we consider the above missions it will be advantageous to reproduce as follows the relevant provisions of the law from the said Act: Section 12(1)(2) and (4): "12. Nomination for election.---(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate accompany.
(3) ....................
(4) A person may be nominated in the same constituency by not more than five nomination papers.
Section 14(3). "14. Scrutiny.---(1) and (2)...:........
(3) The Returning Officer may either of his own motion or upon any objection (either by an elector or) (by any person referred to in sub-section (1) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 12 or section 13 has not been complied with (or submits any false or incorrect declaration or statement in any material particular); or
(d) the signature of the proposer or the seconder is not genuine: Provided that---
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; (1-a) .................
(ii) 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 corresponding entries in the electoral roll; and"
6. Besides above, paragraph No.39 of. Manual of Instruction for the Guidance of District Returning Officers, Returning Officers and Assistant Returning Officers is also relevant, which is also reproduced as follows:--
39. It is necessary that the person proposing or seconding the nomination of a duly qualified person to be a member from a constituency must belong to that constituency and should be registered as elector in the electoral roll of any one of the electoral areas comprised in that constituency. A nomination paper shall be delivered to the Returning Officer by a candidate himself or by his proposer or seconder or, if so authorized in writing by the candidate, by his nominee.
7. On examination of the order, dated 31-8-2002 passed by the learned Returning Officer N.A. 252 Karachi XIV (East), we find nothing in the said order to indicate that at the time of scrutiny of the nomination paper of the petitioner a request was made for substitution of name of the seconder Shabbir Ahmed. When confronted with this position, learned counsel stated that such request was orally made, therefore, it is not made as part of the order passed by the Returning Officer. It is also an admitted position that seconder Shabbir Ahmed was not an elector of the constituency named above.
8. Perusal of the above mentioned section 12(1) of the said Act clearly provides that it is only for an elector of constituency to propose or second the name of any duly qualified person to be a member for that constituency. It is also very clear from subsection (2) of section 12 of the said Act that the nomination paper needs to be signed by both the proposer and the seconder. Subsection
(3) of section 14 of the said Act empowers the Returning Officer, either of his own motion or upon any objection, conduct such summary enquiry as he deems fit and may reject nomination paper if he is satisfied that the proposer or seconder is not qualified to subscribe to the nomination paper.
In the instant case it is an admitted position that the seconder, namely Shabbir Ahmed is not elector of the constituency hence not qualified to subscribe to the nomination paper.
9. Learned counsel for petitioner laid much emphasis on proviso (ii) to clause (d) of subsection (3) of section 14 of the said Act to contend that Returning Officer could have allowed substitution of seconder in exercise of his discretionary powers laid down in the above proviso. We are afraid, we are not in agreement with his view. From the perusal of said proviso, which is reproduced above, it is quite apparent that the Returning Officer could only allow rectification of defect which was not of substantial nature. He had also power to allow such defect to be remedied forthwith including an error in regard to name and serial number in the electoral roll or other particulars of the candidate or his proposer or seconder with sole intention to bring them in conformity with the corresponding entries in the electoral roll. For better understanding for instance, where it came to the knowledge of the Returning Officer that the name of proposer or seconder is correctly mentioned in the nomination form but their serial numbers in the electoral roll are differently mentioned, such an error or discrepancy could have been allowed by rectification to bring in conformity the entries of serial numbers to the entries of the names of those two persons. In this case it is not so but altogether substitution of all the entries were sought in respect of seconder. In our view, during the course of scrutiny, learned Returning Officer while . processing the nomination form was not competent to allow such substitution.
10. Learned counsel for petitioner in his oral submission placed reliance on the case of Ishad Dar v.
The Election Tribunal (Punjab) Lahore and others reported in KLR 1998 Civil Cases 374 in support of his contention. In the instant case, beside other features distinguishable to the cited case, it is found that learned Returning Officer and learned Tribunal both have given concurrent findings as a result whereof nomination forms of the petitioner stood rejected, whereas, in the cited case there was conflict in decisions of learned Returning Officer and the learned Tribunal. Full Bench of Lahore High Court refrained to exercise its discretionary jurisdiction under Article 199 of the Constitution to interfere with the order of the Tribunal. In the circumstances, we also do not want to exercise our discretionary jurisdiction under Article 199 of Constitution to interfere with the concurrent decisions of lower Tribunals.
11. Before parting, it is, however, observed that within terms of section 12(4) of Representation of the People Act, 1976 a person may be nominated in the same constituency by not more than five nomination papers so also, as provided by proviso (i) to subsection (3)(d) of section 14 of the said Act the rejection of a nomination paper shall not invalidate the nomination of candidate by any other valid nomination paper.
12. Upshot of above discussion is that, we do not see any merit in this petition, which is dismissed in limine alongwith listed application.