IBAD-UR-REHMAN LODHI, J: The proposed judgment to be delivered in captioned writ petitions has been placed before me. With all respect to my learned brothers Amin-ud-Din Khan, J. and Shahid Jamil Khan, J. in the Bench, I am not in agreement to the conclusion arrived at by my learned brothers and thus going to record my own independent findings.
2. There will be no benefit to repeat the facts of these matters as the same have already been noted down in the proposed judgment authored by my learned brother Amin-ud-Din Khan, J.
3. Precisely , the question to be answered by this Bench is with regard to the eligibility of respondent No.8, Mst.
Kalsoom Nawaz Sharif (hereinafter to be referred as "candidate ") to be a candidate in the forthcoming bye election for the constituency of National Assemb ly-120 Lahore-III, in view of the objections raised before the Returning Officer by the writ petitioners and as to whether the Returning Officer performing his functions in connection with the affairs of Federation has in fact perfor med his statutory duty which he was boun d to perform within the meaning of the provisions of the Representation of People Act, 1976 (hereinafter to be referred as " ROP A").
4. Challenging the qualification of respondent No.8 to be a candidate for the referred election, a number of objections were raised to be examined and answered by the Returning Officer on conclusion of process of scrutiny .
Such objections included the acceptance of the office of Deputy Chairperson of a Company under the name of Capital JAFZA on the basis of an Iqama in United Arab Emirates for the period from 06.06.2012 to 04.06.2015 and the entitlement of the said candidate to receive a salary from such company to the tune of DHS 75,000/- in view of employment contract but in the income tax return for the financial year 2014-15 and 2015-16 such income was not declared. It was further objected that income of the spouse of the candidate i.e. Mian Muhammad Nawaz Sharif, the ousted Prime Minister of Pakistan was not declared in the nomination papers to which he was declared entitled in his capacity of Chairman of the Board of the Capital FZE from 07.08.2006 to 20.04.2014. It was brought into the notice of the Returning Officer by the objectors that in column 10 and 12 of the nomination papers of candidate the declaration as to her ownership of jewelery , ornaments, metal and gemstone which although have not all been declared by leaving said columns blank specifically declared worth of Rs.1,00,000/- each in the income tax returns for the year 2014-15 and 2015-16. Implication of the candidate in a criminal case registered in Hyderabad, Sindh under the provisions of Sections 153, 153-A PPC, 16 of The West Pakistan Maintenance of Public Order Ordinance, 1960 and 7 Anti-T errorism Act, 1997 was also objected as to have been concealed by the candidate in her nomination papers.
5. On 17.08.2017, the Returning Of ficer has given his decision in the following term:- "Accepted"
Such acceptance of the nomination papers and implied rejection of the objections of the writ petitioners were called in question by the petitioners by means of appeals before the learned Appellate Tribunal constituted for the said purpose by the Election Commission of Pakistan. The appeals were dismissed by the Election Tribunal by means of order dated 21.08.2017 by declaring that in summary proceedings of appeals, the factual probe was not permissible and thus the nomination pape rs of the candidate were held not liable to be rejected on the basis of the objections raised by the petitioners.
To conduct the election honestly , justly , fairly and in accordance with law is the Constitutional duty of the Election Commission of Pakistan as provided in Article 218(3) of the Constitution of the Islamic Republic of Pakistan, 1973. The proceedings before the Returning Officer in filing the nomination papers scrutiny thereto and decision on the objections if raised by the objectors or adversaries in the election are the foundational steps for whole of the remaining election process to be concluded when result of the poll was to be announced.
6. To provide for the conduct of election to the National Assembly and the Provincial Assemblies and to guard against corrupt and illegal practices and other offences at or in connection with such elections and for the determination of doubts and disputes arising out of or in connection with such elections, and other matters arising out of or connected therewith, legislature has enacted Act No.LXXXV of 1976 i.e. The Representation of the People Act, 1976.
Section 14 of the Act deals with the process of scrutiny and in view of Section 14(2) of the Act, the Returning Officer is bound to examine the nomination papers and decide any objection raised by any person attending the scrutiny .
In view of sub Section (3) of Section 14 of the Act, the Returning Officer has been made competent to conduct such summary enquiry as he may think fit for the disposal of objections whereas sub Section (4) thereof binds the Returning Of ficer to endorse on each nomination papers, his decision accepting or rejecting the papers.
7. The term " scrutiny " is defined in the following manner in Oxford Concise Dictionary: "i. critical gaze ii. a close investigation or examination of details And in the same dictionary the word "decision" is defined in the following term: "i. a conclusion or resolution reached, esp. as to future action, after consideration (have made my decision) ii. (a) the settlement of a question (b) a formal judgment On appearance the Returning Officer, who otherwise is employee in the Election Commission of Pakistan as Deputy Election Commissioner on regular basis, was asked as to whether except his above referred decision of "accepting " the nomination papers of the candidate, any separate reasoning were recorded and whether objections raised before him by the candidates/objectors as to the qualification of the candidate were decided separately , to which he has candidly admitted that except his decision of "accepted" no other reasons were separately recorded and the objections noted hereinabove were never decided in any manner whatsoever by him on conclusion of process of scrutiny .
8. Learned Deputy Attorney General, who was appearing for the Federation and also for the Election Commission of Pakistan when asked, has straightway given his opinion that Returning Officer has not performed his function in accordance with law by not deciding the objections by means of any speaking order and by not giving reasons of ignoring at all the objections raised before him challenging the qualification of the candidate.
9. Our Parliament has been in the attempts to reach to some consensus over electoral reforms after improving the present Election Laws but till such reforms come into existence, we have to regulate our election affairs under the law which is in force for the time being. Our conduct towards the present law clearly indicates our intention that we are not ready to pay any respect to the existing laws and wherever and whoever is in a position, he in very convenient manner would feel pride to disrespect the laws by not observing the regulatory provisions of such existing laws. The foundational step, where we can put a check over the induction of the elements into our democratic setup, who on the face of it have no respect of law or their Curriculum Vitae carries no such contribution entitling them to be treated as a useful addition in our setup and during such scrutiny process by adopting a casual attitude we permit such undesirable elements to successfully cross all the hurdles of scrutiny and to become the part of our democratic setup. This practice of letting off such elements to go through such process without any meaningful filtering would constitute a position that after entering into such set up such elements after embedding their clutches in setup would adopt such role that subsequent thereto they would violate every law and if at all some proceedings under any law are initiated against them, they by exploiting their such position which they have already attained on the basis of such above referred background, would never allow such proceedings to be carried out in a smooth manner. After having become the part of setup they treat all steps which may create threat for them as a trifle.
10. In such a situation if an objector appears before me in the High Court and I being under an Oath to do right to all manner of people according to law, without fear and favour or affection or ill will would not allow myself to take a refuge in a shell of expedience and being a promoter of rule of law which always is a fundamental point of my sermons commonly delivered in the seminar organized in soothing and cool atmosphere of Five Star Hotels, rather being torch bearer of the healthy traditions of our respectable judiciary, it would be my bounden duty to force the authorities, who were bound to perform functions in accordance with law to do the same in the manner they are required by law to do so. Otherwise if I fail to discharge my such Constitutional duty I would be guilty to my conscience and my such conduct would conveniently be termed as offending to my position which I am holding and if I question myself as to which role is to be adopted, the answer from my inner side would be that "decide the lis in accordance with law and do right to all manner of people without fear and favour.
11. The Hon'ble Supreme Court of Pakistan in case titled "Arshad Mehmood and others versus Government of Punjab through Secretary , Transport Civil Secretariat, Lahore and others" (PLD 2005 Supreme Court 193) has provided guiding principles that judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.
It is high time now that judicature must play its meaningful role in the affairs of the State by deciding the questions put before it in a meaningful manner .
12. Examining the act of the Returning Officer on the touchstone of Constitution and Law, it is my irresistible conclusion that the Returning Officer has completely failed to perform his function in accordance with law and he has arbitrarily proceeded to accept the nomination papers of the candidate without giving any reasons and without disposal of the objections raised by the petitioners as to the qualification of an aspiring candidate for National Assembly .
13. The learned Appellate Tribunal also has completely failed to take into consideration the arbitrariness in the conduct of Returning Officer when he has violated the requirements of Article 218(3) of the Constitution and Section 14 of the ROP A. The order passed by the learned Appellate Tribunal on 21.08.2017 and the decision of the Returning Officer dated 17.08.2017 accepting nomination papers of the candidate are result of an arbitrary exercise and having no legal ef fect and thus are set aside.
The result would be that nomination papers of the candidate and the objections raised thereon by the petitioners would be deemed to be pending before the Returning Officer, who will conduct the scrutiny strictly within the meaning of Section 14 of the ROPA and schedule for election of the Constituency No.NA-120 Lahore-III issued on 01.08.2017 through notification No.F.8(8)/2017-Cord.(1) is suspended from the stage of scrutiny and Election Commission of Pakistan will issue a fresh schedule for fresh scrutiny process and subsequent activities including the last date for filing of appeals against decisions of the Returning Officers rejecting/accepting the nomination papers, providing the last date for deciding of appeals by the Appellate Tribunal, last date for withdrawal of candidature, Publication of revised list of candidates and fixation of Polling day.
14. With these observations, all the writ petitions are allowed.