' MUHAMMAD ALAM, J.--- Petitioner has filed this writ petition seeking directions to the Returning Officer of GBLA-4 Hunza/Nagar, for accepting his nomination papers for contesting the elections in the suit constituency. Through this petition, petitioner has further questioned validity and correctness of the impugned orders of respondents as well as the appellate forum.
2. The circumstances in which petitioner felt aggrieved and filed this petition are that at about 4:12pm, on 27-04-2015, petitioner reached the office of respondent No.1 with his nomination papers for depositing the same in his office. Per election schedule for submission of the nomination forms, the target time was 4pm, and petitioner was late by only twelve (12) minutes. Respondent No.1 refused to receive the nomination papers so presented and verbally informed the petitioner about the target time. Thus the nomination papers of petitioner were returned to him with written endorsement showing late arrival of petitioner for presenting the nomination papers. Petitioner presented the same papers in the appellate forum and filed an appeal also. Through impugned order dated 09-05-2015, the appellate forum dismissed the appeal. For ready reference, we reproduce the paragraphs Nos.7 and 8 of the said order of appellate forum, which goes as under:-
7. "Subsection (5) of section 14 of the Act authorizes this Tribunal only to hear appeals of the candidates whose nomination papers either have accepted or rejected by the Returning Officer.
The function and the duty of the Tribunal has also been specified in the Act vide which this forum cannot decide any dispute beyond the scope of subsection (5) of section 14. It is worth to mention that if we propose to accept the in hand appeal then it becomes mandatory and necessary to issue directives to the Election Commission for issuance fresh schedule under section-11 of the Act.
In this regard we are of the clear opinion that this Tribunal cannot pass such an order beyond its domain. Moreover, this Tribunal has been constituted under a special law for specific purpose and function and while sitting in such capacity we even cannot invoke our writ jurisdiction to direct the Commission to issue fresh schedule as provided under section 11 of the Act. In this view, we are fortified by the Judgment reported in 2013 PLJ 165 Lahore."
8. "For the reasons what has been .Discussed above, we are of the opinion that this appeal is not maintainable and dismissed. File."
3. During arguments on preliminaries, we have come to the conclusion that the questions raised through this petition can be conveniently disposed of on the basis of the arguments on preliminaries. So, we direct for admission of this petition, but instead of issuing notices to respondents, we have come to the conclusion that the following order/judgment can be passed on the basis of arguments advanced by the learned counsel for petitioner.
4. We have heard arguments of the learned counsel for petitioner. The only point debated before us is that, whether respondent No.1 has rightly returned the nomination papers of the petitioner in the circumstances pleaded in paras Nos.2 and 3 of the petition? For ready reference, we reproduce the said two paragraphs of the petition hereunder:-
2. "That the petitioner is a candidate of Legislative Assembly of Gilgit-Baltistan GBLA-4 the petitioner submit his nomination paper before Returning Officer Nagar on 27/4/2015 at about 4:12 pm, the actual time is 4pm to submission of nomination paper."
3. "That the learned Returning Officer return the nomination paper without given any reason and verbally told that the nomination paper submitted by the petitioner after closing of fixed time."
5. In this connection, the available record on file is the judgment/order of the learned appellate forum, who, while giving findings in para No.2 of the same, has observed that the nomination papers were presented by the petitioner after delay of twelve (12) minutes. So at this stage of the case, we accept the version of the petitioner that he presented the nomination papers at 4:12 pm and per election schedule, he was bound to present the same at 4 pm. So, the questions for determination before us are:-
1. Whether respondent No.1 (Returning Officer) rightly returned the nomination papers of the petitioner?
2. If the answer to the first question is in the negative, then what remedy petitioner is entitled to?
3. Whether mistake of petitioner in presenting the nomination papers by delay of twelve (12) minutes is sufficient to deprive him from contesting the suit elections?
4. Whether returning the nomination papers by respondent No.1 is a mistake on his part? If so, who to face the consequences?
5. Whether the nomination papers contain other defects also if his mistake of presenting the nomination papers by delay of twelve (12) minutes is held negligible or condonable?
6. As to answers to the first and second questions, the opinion of the learned appellate forum in paras Nos.5 and 6 are very important, wherein, the learned appellate forum has clearly opined that returning of the nomination papers of petitioner, in the manner adopted by respondent No.1, are wrong but while giving findings, the learned appellate forum has dismissed the appeal with the remarks in para No.7 of the impugned order/judgment. In our opinion, the opinion of the first appellate forum expressed in paras No.5 to 7. Is not only important but is very interesting also. The learned appellate forum has come to the conclusion that returning the nomination papers by the respondent No.1 is a mistake on the part of respondent No.l. So, the opinion expressed in paras Nos.5 to 7 of the impugned judgment is answer to the above first and second questions. That is, the petition in hand is clear result of mistake of respondent No.1 and petitioner cannot be condemned for mistakes of respondent No.
1. For ready reference, we reproduce para No.7 of the impugned judgment hereunder:-
7. "Subsection (5) of Section 14 of the Act authorizes this Tribunal only to hear appeals of the candidates whose nomination papers either have accepted or rejected by the Returning Officer.
The function and the duty of the Tribunal has also been specified in the Act vide which this forum cannot decide any dispute beyond the scope of subsection (5) of section 14. It is worth to mention that if we propose to accept the in hand appeal then it becomes mandatory and necessary to issue directives to the Election Commission for issuance fresh schedule under section-11 of the Act.
In this regard we are of the clear opinion that this Tribunal cannot pass such an order beyond its domain. Moreover, this Tribunal has been constituted under a special law for specific purpose and function and while sitting in such capacity we even cannot invoke our writ jurisdiction to direct the Commission to issue fresh schedule as provided under section 11 of the Act. In this view, we are fortified by the Judgment reported in 2013 PLJ 165 Lahore."
7. In our opinion, while returning the nomination papers of the petitioner, respondent No.1 adopted a procedure not provided in the election laws that governed the receiving and rejecting of nomination papers, therefore, the petition in hand is competent and the only remedy available to the petitioner. Contesting elections is right of petitioner and cannot be deprived of the same only because of any mistake or omission on the part of respondents. In this connection, our opinion is in consensus with the appellate forum, therefore, is sufficient answer to the questions Nos.3 and 4 above and the same goes in favour of petitioner.
8. Once it is concluded by us that the return of the nomination papers by respondent No.1 is a wrong practice or mistake on the part of respondent. No.
1. We hold that the delay of twelve (12) minutes in presenting the nomination papers is negligible, but the Returning Officer has the power to reject the nomination papers of the petitioner on the basis of any other defect, if any, in the light of relevant laws. We, therefore, consider it indispensible for re-scheduling the process of accepting or rejecting the nomination papers of the petitioner. We, therefore, accept this petition, setting aside the impugned order of appellate forum as well as of respondents but with the following directions of re-scheduling the process of scrutinizing the nomination papers of the petitioner:-
1. Petitioner to present the nomination papers before the respondents after obtaining the same from the appellate forum, if the same are already submitted there, till 6pm today. Petitioner is free to present his nomination papers even in the house of respondents. The appellate forum to return the nomination papers of the petitioner as and when petitioner approached the appellate forum for the same purpose.
2 Respondents are directed to obtain the nomination papers of the petitioner ignoring the delay of presenting the same and go through the scrutinizing process till 4pm tomorrow. Respondents to obtain objections before passing any order regarding acceptance of the nomination papers of the petitioner, from the candidates whose papers, respondent No.1 has already accepted. Petitioner as well as the other candidates may file any appeal on the day after tomorrow and the appellate forum shall pass orders on the same on the very day.
9. Accordingly. File be consigned to record. No order as to costs.