AMIN-UD-DIN KHAN, J.--- Through this judgment we are going to decide instant writ petition as well as Writ Petition No.65211 of 2017 and Writ Petition No.65192 of 2017 as all the three petitions have been filed against the dismissal of the appeal, of each petitioner by the Tribunal constituted by the Election Commission of Pakistan, which were against the acceptance of nomination papers of Mst.
Kalsoom Nawaz Sharif (hereinafter to be referred as "contesting respondent") who is respondent No.8 in the instant writ petition whereas respondent No.3 in Writ Petition No. 65211 of 2017 and respondent No.1 in Writ Petition No.65192 of 2017, for Election of Constituency No. NA-120.
2. The petitioners in the instant writ petition as well as in Writ Petition No.65211 of 2017 are also contesting candidates whereas petitioner of 3rd petition is a voter of the Constituency No.NA-120.
The process of the election of the Constituency started with the issuance of notification by the Election Commission of Pakistan on 1st August, 2017, which is reproduce:-- "ELECTION COMMISSION OF PAKISTAN NOTIFICATION Islamabad, the 1st August, 2017 No. F.8(8)/2017-Cord.(1)- In pursuance of the provisions of Section 11 of the Representation of the People Act, 1976 (LXXXV of 1976), read with Section 108 thereof and clause (4) of Article 224 of the Constitution of the Islamic Republic of Pakistan, the Election Commission hereby calls upon the electors of the Constituency No. NA-120 Lahore-III, to elect a Member to fill the seat from the said constituency, which has become vacant due to de-notification of Mr. Muhammad Nawaz Sharif as Member of the National Assembly of Pakistan and specifies in relation thereto the following dates for Bye-Election:- PROGRAMME Sr.
No.EVENTS DATE 1 2 3 1 Public Notice to be issued by the Returning Officer on07.09.2017 2 Dates for filing of nomination papers With the Returning Officer by the candidates10.08.2017 to 12.08.2017 3 Dates for Scrutiny of nomination papers by the Returning Officer15.08.2017 to 17.08.2017 4 Last date for filing of appeals against Decisions of the Returning Officers rejecting/accepting the nomination papers21.08.2017 5 Last date for deciding of appeals by the Appellate Tribunal24.08.2017 6 Last date for withdrawal of candidature25.08.2017 7 Publication of revised list of candidates26.08.2017 8 Polling day 17.09.2017 By order of the Election Commission of Pakistan.
Sd/- (Waqas Ahmed Malik)
Deputy Director (Cord.)
OFFICE OF THE PROVINCIAL ELECTION COMMISSIONER, PUNJAB LAHORE No. F. NA-120 Lahore-III (Bye-Election)Lahore, the 1st August, 2017 Copy forwarded for information and necessary action to:-
1. The Regional Election Commissioner, Faisalabad/DRO for NA- 120 Lahore-III.
2. The District Election Commissioner, Bahawalnagar/RO for NA-120 Lahore-III.
3. All Branches PEC(HQ) Lahore. Copy also forwarded for information to:-
1. The Chief Secretary, Government of the Punjab, Lahore.
2. The Home Secretary, Government of the Punjab, Lahore.
3. The Commissioner, Lahore.
4. The Deputy Commissioner, Lahore.
5. The Capital City Police Officer, Lahore.
6. The Regional Election Commissioner, Lahore.
7. The District Election Commissioner, Lahore.
Sd/- (Roy Sultan Bhatty)
Deputy Director (Elections)"
3. As per the pleadings, all the three petitioners filed objection petitions upon the nomination papers filed by the contesting respondent and after the rejection of their objections they preferred their respective appeals before the Election Tribunal of Lahore High Court, Lahore, same have been dismissed on 21.8.2017. Hence, these writ petitions.
4. It will not be out of place to note that the instant writ petition was filed on 29.8.2017 whereas Writ Petition No 65211 of 2017 and Writ Petition No. 65192 of 2017 were filed on 5.9.2017. At the time of preliminary hearing on 11.9.2017 we noticed that none of the petitioners has appended the order of Returning Officer rejecting the objections filed by each writ petitioner, therefore, at the very outset learned counsel was confronted whether Returning Officer has passed the order while rejecting the objections raised by the petitioners, the reply was that the order is not available with the petitioner, therefore, we issued notices to the respondents for today and directed the office to issue notices to the Returning Officer to arrange for production of record of decision of the objections raised by the petitioners and office was further directed to ensure availability of the record of learned Appellate Tribunal. It was directed that notice through Radio, Television, ordinary means, courier service and postal acknowledgement due at the expense of the petitioners be also issued but office has reported that neither the process fee nor expenses were deposited by the petitioners. As the office issued notice through ordinary means, the contesting respondent as well as other respondents arranged for representation noted supra, the Returning Officer appeared in person along with record.
5. We have heard the arguments of learned counsel for the parties at length and perused the record, which was produced by the Returning Officer who himself appeared before us, the office produced the record of appeals decided by the learned Tribunal. When confronted to the Returning Officer whether he has recorded his reasons while deciding the objections filed by the petitioners and whether to substantiate the objections petitioners have produced any material before him, stated that he has decided the objections only through acceptance of the nomination papers and no separate order was passed, further that no material was produced by the objectors to substantiate the objections.
6. As we have noted supra that it is not the case of the petitioners that their objections have not been decided, rather before the Tribunal and before us it is the case of the petitioners that objections have wrongly been decided. After the first date of hearing before us it seems that now petitioners want to build a case that their objections have not been decided at this stage when the date of polling is fixed as 17.9.2017. In our view the Returning Officer was bound under the law to decide the objections raised by the objectors in accordance with subsection (2) of Section 14 of the Representation of the People Act, 1976. We do not want to go into further details of the objections, as per pleadings the objections are general in nature, without any specific detail and furthermore no material was produced before the Returning Officer to substantiate the objections, despite that we are of the view that the Returning Officer was bound to decide the objections.
7. The filing of these writ petitions on the dates noted supra show the conduct of the petitioners when learned Appellate Tribunal decided the matter through judgment dated 21.8.2017 and the petitions have been filed with such a long delay as noted above and during the proceedings one of the learned counsel opted to attend his other professional engagements before the Hon'ble Sindh High Court and prayed for adjournment in the case and further when notice was ordered to be issued and petitioners were directed to deposit the expenses, none of the petitioners even bothered to deposit the process fee or expenses for issuance of process. All these facts are relevant when the petitioners have approached this Court through invoking constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
8. The petitioners have a right to file post-election petition under the Representation of the People Act, 1976 before the appropriate Tribunal, the petitioners may raise all the objections against the acceptance or nomination papers and non-decision of their objections or rejection of their objections, as at the time of filing and scrutiny of nomination papers, the inquiries and all the proceedings are summary in nature. As I have noted supra that no material has been produced by the petitioners and even no specific defect for rejection of the nomination papers has been pleaded.
9. Learned DAG and learned counsel for contesting respondent on the basis of bar contained in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 have raised the objection with regard to maintainability of writ petitions, on the other hand, case of the petitioners that no other remedy is available to them, therefore, writ petitions are competent. We would like to take light from the judgment of august Supreme Court of Pakistan reported as "Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others" (PLD 1989 Supreme Court 396) and quote relevant paragraph for ready, reference:- "In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks on matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of two attacks on a matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again the words "except by an election petition" in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all courts in regard to election matters and to prescribe only one mode of challenge. The purpose is not far to seek as in all democratic constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage."
We have also gone through the judgment of august Supreme Court of Pakistan reported as "Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A.158, Naushero Feroze and others" (1994 SCM R 1299). The only exception given in this judgment for entertaining a constitutional petition by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is that if anyone is being disfranchised and no legal remedy is available to any aggrieved party during the process of election or after its completion. Paragraph 26 of the judgment is reproduced for ready reference:- "The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove."
10. The cases in hand are against the acceptance of nomination papers and no one is going to be disfranchised. In this view of the matter, all the above three writ petitions being not competent in the light of the judgments of august Supreme Court of Pakistan referred supra stand dismissed with majority view with no order as to costs.
Sd/- Amin-ud-Din Khan, J Sd/- Ibad-ur-Rehman Lodhi, J Sd/- Shahid Jamil Khan, J 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 Assembly-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 performed his statutory duty which he was bound to perform within the meaning of the provisions of the Representation of People Act, 1976 (hereinafter to be referred as "ROPA").
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 years 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 years 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, P.P.C., 16 of The West Pakistan Maintenance of Public Order Ordinance, 1960 and 7 Anti-Terrorism Act, 1997 was also objected as to have been concealed by the candidate in her nomination papers.
5. On 17.08.2017, the Returning Officer 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 or appeals, the factual probe was not permissible and thus the nomination papers 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 subsection (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 subsection (4) thereof binds the Returning Officer 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 v.
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 ROPA. 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 effect 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 Rolling day.
14.With these observations, all the writ petitions are allowed.