1. M. Tabassum Aftab Alvi, J.--The above captioned writ petition has been directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby legality and propriety of three consecutive even dated orders 11th August, 2016, passed by the learned Chief Election Commissioner, Respondent No, 2, have been challenged for having been issued as without lawful authority.
2. 2.The precise facts culminating into filing of the instant writ petition are that Chief Election Commissioner Azad Jammu & Kashmir, Respondent No, 2. in pursuance of sub-section (2) of Section 5 of the. Azad Jammu & Kashmir Interim Constitution Act, 1974, read with Rules 3, 4 and 14 of the Azad Jammu & Kashmir President (Election) Rules, 1985, scheduled to conduct election for the office of the President of Azad Jammu & Kashmir vide notification dated 31st July, 2016. As per schedule for filing nomination papers with the Chief Election Commissioner/Returning Officer, the date was fixed by 11th August, 2016, from 10:00 a.m. to 12:00 noon. The date for scrutinty of nomination papers was determined the same immediately after filing of nomination papers, however, the date for withdrawal of nomination papers was fixed as 12th August, 2016, till 12 0' Clock noon. The date for polling was, however, fixed by 16th August, 2016, from 10:00 a.m. to 3:00 p.m. to be immediately followed by counting of votes. The petitioner, inter alia, announced his candidature for the slot of the President Azad Jammu & Kashmir. It is maintained that electoral college of joint sitting is comprising of 49 Members of the Legislative Assembly, the Federal Minister Incharge of Council Secretariat and 06 elected Members of the Azad Jammu & Kashmir Council. The constituency, therefore, to the election pertaining to the office of the President thus separated over throughout Pakistan i,e, started from Karachi to Khyber Toorkhum and whole of Azad Jammu & Kashmir, from Grase/Taobutt to Chamb Jorian, hence, considering the time as too short, petitioner moved an application for extension of time before Respondent No, 2, on 10th August, 2016, which after hearing was rejected vide impugned order dated 11th August, 2016. The petitioner, Ch. Latif Akbar, former Finance Minister Azad Jammu & Kashmir Government, Respondent No, 7, and Mr. Muhammad Masood Khan, Respondent No, 8, on the fixed date filed nomination papers with the Chief Election Commissioner/Returning Officer i,e, on nth August, 2016. It is alleged that as proposer and seconder of petitioner, who were Members of Legislative Assembly, were travelling from outside of Muzaffarabad, hence, expected to reach the office of the Chief Election Commissioner at 2:30 p.m. to 3:00 p.m., however, they arrived at 3:30 pm, meanwhile his nomination papers were rejected vide the second impugned order dated 11th August, 2016. The petitioner by preferring an application to the Chief Election Commissioner, Respondent No, 2, also raised several objections against candidature of Respondent No, 8, which after hearing were turned down and nomination papers of the said respondent were accepted vide the last impugned order dated 11th August, 2016.
3. The petitioner has challenged vires of the aforesaid even dated consecutive three orders through the instant constitution petition.
4. 3.The writ petition, on pre-admission notice, has been resisted by Respondents Nos.1 to 3, through comments dated 03.10.2016, wherein, the contents of writ petitiop have been controverted. It is stated that petitioner has got no locus-standi to file the instant petition. It is maintained that under the Azad Jammu & Kashmir President (Election) Rules, 1985, only a candidate or his proposer or seconder could raise objections against a candidate at the time of scrutiny. It is claimed that petitioner was neither nominated or proposed nor seconded by any Member of the Legislative Assembly or by any elected Member of the Azad Jammu & Kashmir Council for position of the President, therefore, his objections were turned down in light of Rule 7 of the aforesaid Rules. The contents of writ petition have been refuted on all counts by Respondents Nos. 1 to 3, who submitted for dismissal of the same in limine.
5. 4.The petitioner himself argued his case and submitted that through notification dated 31st July, 2016, insufficient time was provided by the Chief Election Commissioner, Respondent No, 2, whereby nomination papers were directed to be filed on 11th August, 2016, from 10:00 a.m. to 12:00 noon, while polling was declared to be held on 16th August, 2016, from 10:00 a.m. to 3:00 p.m. He further contended that his proposer and seconder, who were travelling from outside of Muzaffarabad, expected to reach in the office of the Chief Election Commissioner at 2:00 to 2:30 p.m., however, they reached at 3:30 p.m., hence, it was enjoined upon Election Commission, to provide him an opportunity to file fresh nomination papers, however, without extending a fair and reasonable time his nomination papers were rejected vide order dated 11th August, 2016. The petitioner while referring various documents appended with writ petition, emphasized that nomination papers of Respondent No, 8, were unlawfully accepted, hence, submitted that as provisions of the Azad Jammu & Kashmir President (Election) Rules, 1985, need interpretation of this Court, therefore, craved for admission of writ petition.
6. 5.Kh. Muhammad Naseem, the learned counsel for contesting respondents strenuously argued that for postponement of election pertaining to the position of the President of Azad Jammu & Kashmir, on the ground of insufficient time, previously a writ petition filed by petitioner was dismissed in limine by Full Bench of this Court on 08th August, 2016, hence, his application for the same purpose was baseless, which was rightly turned down by the Election Commission. He agitated that it was enjoined upon petitioner to file his nomination papers on 11th August, 2016, from 10:00 a.m. to 12:00 noon, for the reason that as per notification dated 31st August, 2016, the same time schedule was fixed which was followed by all other candidates. The learned counsel pressed into service that petitioner filed nomination papers without proposer and seconder, which were unlawful, hence; could not be entertained. He emphasized that as petitioner was not candidate pertaining to the position of the President, therefore, he cannot raise any objection about candidature of private Respondent No, 8, hence, submitted for dismissal of writ petition in limine.
7. 6.We have heard the petitioner as well as the learned counsel for contesting respondents at length, examined the appended documents and have given our earnest thought to the points raised by them.
8. 7.A contemplate perusal of file reveals that petitioner previously filed Writ Petition No, 2330/2016 titled "Mujahid Hussain Naqvi vs. Election Commission of Azad Jammu & Kashmir and 06 others", for postponement of election pertaining to the office of the President of Azad Jammu & Kashmir, on the ground of providing insufficient time through notification dated 313t July, 2016, which after hearing was dismissed in limine by Full Bench of this Court vide judgment dated 08.08.2016. The relevant portion, in this regard, mentioned in Paragraphs Nos. 8 to 11 of the aforesaid judgment are reproduced as under: "8. As per sub-section (3-A) election to office of the President shall be held not earlier than sixty days not later than thirty days before the expiration of the term of the President. Admittedly the term of the office of the President is likely to be expired on August 24, 2016. The schedule announced by the learned Chief Election Commissioner for conducting presidential election is, therefore, in accordance with provisions of Section 5 of the Interim Constitution Act, 1974.
9. 9.According to Rule 3 of the Azad Jammu & Kashmir President (Election) Rules, 1985, the Chief Election Commissioner shall hold and conduct election for the office of President and shall be the Returning officer for the election. According to Rule 4 the Chief Election Commissioner shall by notification in official Gazette fix date, time and place for filing of nomination papers of candidates, and for scrutiny of the nomination papers, as well as the final date for withdrawal of candidature and the date time and place for taking of poll. The steps, therefore, taken by the Chief Election Commissioner are strictly in accordance with the basic provisions of the Interim Constitution Act, 1974 and President (Election) Rules, 1985. The petitioner failed to point out violation of any law on the part of respondents. It is well settled principle of law that writ petition can be issued in violation of any law.
10. 10.As petitioner failed to point out violation of either any provision of the interim constitution or President (Election) Rules, hence, we are of the considered view that writ petition is frivolous.
11. 11.The gist of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed in limine. The costs shall follow the eventuality."
12. 8.The petitioner while concealing the aforesaid judgment of this Court, latter on, preferred an application to the Chief Election Commissioner (Returning Officer), Respondent No, 2, for the same purpose on 10th August 2016, which after hearing was rejected on the ground of Full Bench judgment supra. As per our humble view, moving application on the part of petitioner after Full Bench judgment of this Court and seeking postponement of election was contemptuous, therefore, the same was rightly buried by the Chief Election Commissioner through the impugned order dated 11th August, 2016. The petitioner admittedly failed to challenge vires of the aforesaid judgment before the Apex Court, which attained finality under law, hence, again filing application for postponement of election pertaining to the high constitutional post of the President, in the hierarchy of the Interim Constitution Act, 1974, was accordingly bad in law.
13. 9.A perusal of nomination papers of petitioner (Annexure "PH") appended along with writ petition reveals that the same were filed without proposer and seconder. According to Rule 5 of the Azad Jammu & Kashmir President (Election) Rules, 1985, any Member of the Legislative Assembly or elected Member of the Council, may A nominate a candidate for election of President as proposer and another member of Assembly or elected Member of council as seconder. The aforesaid Rule speaks as follows: "5. At any time on the day fixed for nomination, any member of Assembly or elected member of Council, may nominate for election as President, a person qualified vide sub-section (4) of Section 5 of the Constitution for election as president, by delivering to the Commissioner, or in his absence to the secretary, Election Commission, a nomination paper set out in Schedule I signed by himself as proposer and another member of Assembly or elected member of Council as seconder, together with a declaration signed by the person nominated that the consents to his nomination and believes in the ideology of Pakistan and the ideology of the State's accession to Pakistan and that he does not suffer from any disqualification:' Provided that no person shall subscribe, whether as proposer or seconder more than one nomination paper at any one election, and if any person subscribes more than one nomination paper, whether as proposer or a seconder, all such nomination papers shall be invalid."
14. 10.The nomination papers of petitioner, therefore, without proposer and seconder, were unlawful on the basis of Rule 5 ibid, hence, the same were correctly rejected through the impugned order dated 11th August, 2016. The stance of petitioner that his proposer and seconder were travelling from out of Muzaffarabad, who were excepted to reach at 2:30 p.m. to 3:00 p.m., however, they reached at 3:30 p.m. makes it crystal clear that they allegedly reached after expiry of the prescribed time. As per notification dated 31st July, 2016, time for filing nomination papers with the Chief Election Commissioner (Returning Officer), was fixed on 11th August, 2016, from 10:00 a.m. to 12:00 noon, therefore, it was mandatory for petitioner that his proposer and seconder must remained present at the fixed time in the office of the Chief Election Commissioner, like the other candidates. Even in this regard neither any proof nor affidavits of the concerned Members were placed on record which belied the stance of petitioner, hence, order dated 11th August, 2016, pertaining to rejection of his nominander: "7. Each candidate, or his propeser or seconder, shall be entitled to attention papers is also in accordance with the aforesaid Statutory Rules, hardly need any interpretation of this Court.
15. 11.The contention of petitioner that nomination papers of Respondent No, 8, were unlawfully accepted by Chief Election Commissioner, despite his several objections is also misconceived. As per Rule 7 of the Azad Jammu & Kashmir President (Election) Rules, 1985, only a candidate or his proposer or seconder can raise objection of candidature of any other candidate at the time of scrutiny. The aforesaid Rule is reproduced as ud the proceedings for scrutiny of nomination papers and to raise objections in respect of nomination papers of other candidates. The Returning Officer after deciding the objection publish a list of validly nominated candidates." ' As petitioner was neither nominated or proposed by any Member of the Legislative Assembly nor by any elected Member of the Azad Jammu & Kashmir Council, therefore, his objections were correctly overruled by the learned Chief Election Commissioner vide the last even dated impugned order 11th August, 2016.
16. 12.The crux of above discussion is that admission of writ petition will be a futile exercise to create false hopes, therefore, the same is dismissed in limine.