' IFTIKHAR MUHAMMAD CHAUDHARY, C J.---Listed appeals have been filed under section 67(3) of the Representation of the People Act, 1976 (hereinafter referred to as "the Act, 1976") against the judgment of Election Tribunal Punjab, Lahore High Court, Lahore in Election Petition No,28 of 2002, which was consolidated with E.P. No,221 of 2002 as in both the petitions the election of the Provincial Assembly from Constituency No,PP.157 was questioned.
2. Precisely stating relevant facts for the decision of the appeals are that Rana Muhammad Tajammal Hussain appellant in Civil Appeals Nos.1417 and 1418 of 2006 (hereinafter referred to as 'the appellant') won the election from PP-157 as 14,000 votes were polled by him. It may be noted that Rana Shaukat Mahmood (hereinafter referred to as `the respondent') stood at second position as he secured 10,000 votes. Consequently the appellant was notified as a member, Punjab Provincial Assembly. The respondent and Malik Javed Awan, respondent in Civil Appeal No,1418 of 2006 questioned the election of the appellant before the Election Tribunal, Lahore High Court, Lahore on various grounds including that his proposer and seconder were not electors of PP-157.
Appellant contested the election petition by filing reply repudiating the contents of the election petition and specifically stated that Asif and Shafqat, proposer and seconder were lawfully competent to propose and second his candidature. The nomination papers filed by him were declared to be correct by the competent authority and in view of this situation 'petitioner (respondent before us) was estopped by his own conduct for raising the objection in this regard".
3. Learned Tribunal carved out as many as 13 points out of the pleading including the one whether proposer and seconder of the appellant were not electors of PP-157? If so, with what effect? OP."
Parties produced evidence for and against to supplement their respective pleas. The Election Tribunal recorded its findings in respect of the point noted hereinbefore holding after examining the evidence on record, as noted above it is concluded that the proposer and seconder of respondent were not electors of PP-157 at the time of filing of nomination papers by the respondent. Most importantly the respondent has himself admitted in his cross-examination, as noted that proposer and seconder of his nomination papers are the voters of the Constituency No,PP-158. The issue is decided in favour of the petitioners". As a result of such findings it was further held "if a person is elector of that constituency, only in that case he can propose and second the nomination of any duly qualified person to contest a member from that constituency." As far as the plea of the respondent to declare him a returned candidate from PP-l57 because of declaring the election of the appellant void is concerned it was also turned down for the reasons noted in the impugned judgment. The appellant has instituted two appeals because of the fact that two election petitions were filed against him whereas Rana Shaukat Mahmood respondent has also filed a petition seeking relief to the effect that he be declared the returned candidate in place of the appellant. As in all the appeals common question of facts and law is involved, therefore, they are being disposed of by means of instant judgment.
4. Now before taking up ,the arguments raised on behalf of the appellant, it is to be observed that learned counsel for appellant candidly conceded that his proposer and seconder belong to PP-158 but his explanation was that on account of completion of the process, of delimitation just before Election of 2002, the appellant in good faith believed that his proposer and seconder are electors of PP-157 and the contesting respondents had also no knowledge that they belong to another Constituency i,e, PP-158 and due to this reason no objection was raised by them at the time of scrutiny of nomination papers, because in case, such objection was raised it was quite convenient for the appellant to have substituted the names of his proposer and seconder. According to him as he was declared successful on securing highest votes therefore, even no permission can be accorded to him to make his nomination papers valid by substituting the names of proposer and seconder amongst the electors of PP-157.
5. The argument so raised by the learned counsel is not acceptable, firstly for the reasons that he should have been vigilant while selecting the names of his proposer and seconder should have ensured whether they belonged to the constituency wherefrom he was contesting the election or not; secondly if at the time of the scrutiny no objection was raised by the contesting candidates, on nomination papers it would not mean that by afflux of time any deficiency in the nomination papers would stand removed particularly when the same is of a permanent nature and has a reflection/adverse effect on his election; thirdly, instant plea was never put forward on behalf of the appellant at any stage i,e, at the time of filing of reply to the election petition as it is evident from its contents, reference of the relevant para therefrom has already been made hereinabove, wherein the appellant himself admitted during his cross-examination that his proposer and seconder belong to a different constituency and permission be accorded to him to substitute the same; and fourthly, no such plea has been raised in the memo: of the appeal under examination. Learned counsel however, contended' that the compliance of such provision of law i,e, section 12(1)(2) of the Act, 1976 is not mandatory but directory and due to its non-compliance the election of a candidate cannot be declared void and such defect can be cured by allowing substitution of qualified proposers and seconders in exercise of powers under section 14(3) proviso (ii) of the Act, 1976.. In this behalf he has referred the judgment in the case of Ishaq Dar v. The Election. Tribunal Punjab KLR 1998 Civil Cases 374 (Lahore).
6. It would be appropriate to reproduce herein below the provision of section 12(1)(2) of the Act, 1976 as well as section 14(3) proviso (ii) for convenience:-- "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---
(a) a declaration that he has consented to the nomination and that he fulfills the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member;
(b) a declaration about his party affiliation, if any, along with a certificate from the political party showing that he is a party candidate from the constituency for which nomination papers are being filed;
(c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in' the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
(d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;
(e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, along with attested copies thereof; and
(t) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June."
13. ...................................................................................................................
14. Security.--- (1)
(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 subsection (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 member;
(b) the proposer or 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; ' law the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;
(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
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."
The theme of providing representation to the electors of a constituency seems to be that they may choose their representative to voice their rights and obligations in the Parliament and Provincial Assemblies and to achieve the object, the language employed in section 12(1) of the Act, 1976 clearly demonstrates that any elector of a constituency may propose or second any duly qualified person to be a member for the constituency. Although the law gives have used the word 'may' in section 12(1) of the Act, 1976 but it does not mean that any other person who is not elector of the constituency would be qualified to propose or second a candidate for contesting election from the said constituency. To explore the intention of the law givers, it would be appropriate to examine the provisions of section 12(1) of the Act, 1976 as a whole because as per the well-recognized principles of interpretation of statute, a specific provision provided in an enactment has to be followed. It is well-settled by now that when legislation is unambiguous the doctrine of telescoping C and doctrine of pragmatic construction and contemporaneous construction has to be avoided.
Particularly, the statutes relating to the collective rights of the community like electing a Member of Parliament or Provincial Assembly to represent them on their behalf to agitate for their rights and also realizing their obligation to them are to be construed strictly. Thus the word 'may' employed in section 12(1) of the Act, 1976 would not empower a candidate to put up himself a candidate in a constituency from where he could not procure two electors to propose and second him for contesting election from the said constituency.
7. As has been stated hereinabove, the right to choose is available to electors to vote for a candidate, who could prove himself to be their `due representative' and used the word 'due'. It means that the elector must know about his antecedent. A perusal of section 12(2) clauses (a), (c), (d), (e) and (f) placed an obligation upon the elector, proposer and seconder to a candidate, who is in a position to declare on solemn affirmation that he has consented to the nomination and he fulfills the qualification specified in Article 62 of the Constitution of Islamic Republic of Pakistan (herein after referred to as "the Constitution") and is not subject to any of the disqualification specified in Article 63 of the Constitution or any other law. Looking in this scenario one can safely conclude that the word 'may' used in section 12(1), to achieve the object of the law, is to be used as 'shall' or 'must'. Reference in this behalf may be made "Understanding Statutes" by S.M. Zafar.
Relevant para therefrom is reproduced herein below for convenience:- "May---meaning of---It is not always correct to say- that where the word 'may' has been used, the statute is only permissive or directory. The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, and the consequence which would follow it one way or the other. May is a permissive or enabling expression but there are cases in which for various reasons as soon as the person who is within the statute is entrusted with the power, it becomes his duty to exercise it. It is, therefore, clear that in each case it has to be determined. 'whether there is anything that makes it the duty of the person on whom the power 'is conferred to exercise that 'power' and 'when that power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative'. On the other hand, in 'cases' in which the donee of the power has only his own interests or conveniences to consult, the word 'may' is plainly permissible only and a mere privilege or licence is conferred which he may exercise or not at pleasure."
Similarly, according to "Crawford's Statutory Construction, Interpretation of law", 'may' ordinarily denotes permission and not command,. Where the word as used in a statute concerns the pliable interest or affects the rights of third persons, it will be construed to mean `must'.
8. It is well-settled that the word 'may' used in the statute, in the circumstances of the particular case, can also be used as 'shall'. Reference in this behalf may be made to Muhammad Saleh v. The Chief Settlement Commissioner, Lahore PLD 1972 SC 326, Fida Jan v. State 2001 SCMR 36 and Nasiruddin and others v. Sita Ram Agarwal AIR 2003 SC 1543. In the case of Muhammad' Saleh
(ibid) it has been observed that "it is now well-settled that the word 'may' and 'shall' in the legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance." Similarly in Nasiruddin's case (ibid) it is observed that "it is well-settled that the real intention of the Legislature must be gathered from the language used. It may be true that use of expression 'shall or may' is not decisive for arriving at a finding as to whether a statute is directory or mandatory., but the intention of the Legislature must be found out from the scheme of the Act." Moreover, in our considered opinion, with reference to a duty cost upon a 'qualified elector to propose or second a candidate to represent the members of the constituency in an 'elected house is mandatory and not directory. Two judgments can be cited for determining the intention of the Legislature to ascertain whether section 12(1) of the Act, 1976 is mandatory or directory. Firstly in Re. Presidential Election, 1974 (AIR 1974 SC 1682), a principle has been laid down that where- a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It has been further observed that "it is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus impoundments, the intention of the law maker expressed in the law itself, taken as whole. Secondly, in Lachmi Narain v. Union of India AIR 197(6 SC 714 the principle discussed hereinabove has been followed. Similarly the same principle' has been highlighted in the case of Ahmed Hassan v.
Government of Punjab PLD 2004 SC 694.
9. It has been pointed out hereinabove that the object of section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency, clearly spells out the intention of the legislature.
Therefore, keeping in view that intention of the legislature the word 'may' used in section 12(1) has to be read as `shall' and on having held that the word 'may' can be interchanged with the word 'shall' to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom. There is no cavil with the proposition that once it is found out that a provision of the law is mandatory by its implication, the same is bound to be strictly following as has been held in Dalchand v. Municipal Corporation Bhopal AIR 1983 SC 303.
10. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder, at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 374) is not approved for the reasons mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated after wards, even in exercise of powers either by the Returning Officer or the Election Tribunal or for that matter High Court or this Court, in terms of section 14(1)(2) of the Act, 1976. A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of' substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer 1993 MLD 2509, Qaisir Iqbal v. Ch. Asad Raza 2002 YLR 2401, Asif Khan v. Returning Officer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089. Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved.
11. Ch. Bashir Ahmed, learned Advocate Supreme Court contended that the appellant Rana Shaukat Mehmood had secured the highest votes, therefore, the disqualification of appellant Rana Muhammad Tajammal Hussian being notorious would entitle him to be declared as successful candidate.
12. It may be noted that learned High Court rejected his such plea, keeping in view the doctrine of throwaway votes discussed in the case of Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 and concluded that as through evidence it has not been established that disqualification of Rana Muhammad Tajammal Hussian was notorious in constituency, therefore, he cannot be declared successful. This very principle of throwing away votes was followed in Shaukat Ali v. District Returning Officer PLD 2006 SC 78. The conclusion drawn by the Election Tribunal in the light of the evidence available on record as well as the judgments referred to hereinabove seem to be unexceptionable therefore no interference is called for.
' For the foregoing reasons, appeals are dismissed.