The grievance voiced by the petitioner in the present constitutional petition is that respondent No,1 vide order dated 27.6.2018 allowed the election appeal filed by respondent No,2 and disqualified the petitioner from contesting General Election, 2018 from NA-67Jhelum-II.
2. Briefly, the facts necessary for the disposal of this petition are that the petitioner and respondent No,2 along-with other candidates filed their nomination papers for NA-67-Jhelum-II. Respondent No,1, filed objection petition and levelled certain allegations of suppressing material facts regarding avocation, income, evasion of income tax, making misdeclaration, incomplete affidavit, etc;. The Returning Officer did not entertain the objection petition as the nomination papers of the petitioner were accepted prior to objection petition. Respondent No,2 filed Election Appeal No,07/ 2018 in terms of section 63 of the Election Act, 2017, dismissed being incompetent by respondent No,1 vide order dated 20.6.2018. Thereafter, Election Appeal No,14 of 2018 filed by respondent No,2 against the petitioner, was allowed vide order dated 19.6.2018. Hence, this petition.
3. Learned counsel for the petitioner made the following submissions:
(i) that the impugned order was nullity in the eye of law as second appeal was not maintainable;
(ii) that Election Tribunal enjoys vast powers under section 63(4) of the Election Act, 2017 to scrutinize a matter but the learned Appellate Tribunal did not issued show cause notice to the petitioner;
(iii) that the appeal filed by the petitioner could not have been treated as knowledge of the Appellate Tribunal as no show cause notice has been issued to the petitioner calling upon him to show cause why his nomination papers may not be rejected;
(iv) that the appeal itself was incompetent;
(v) that there was no provision in Elections Act, 2017 regarding successive petitions; (vi)that petition of respondent No,2 was time barred on the day of scrutiny, thus, appeal was not maintainable;
(vii) that the appellate authority misconceived and misconstrued the criterion to disqualify a person from becoming the member of "Majlas-i-Shoora" as envisaged under Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 231 of the Elections Act, 2017;
(viii) that all the objections regarding candidature of the petitioner were mere oral assertions and respondent No,2 never provided any evidence to substantiate his claim;
(ix) that the Appellate Tribunal cannot be equated with a Court, of law having jurisdiction to make a declaration in summary proceedings;
(x) that there was no mandatory requirement that a fresh account shall be opened under section 60(2)(b) of the Election Act, 2017; (xi)that power of review can only be exercised if specifically provided by statute, thus, Suo Motu review of the earlier order by the appellate forum was illegal as after pronouncing judgment dated 20.6.2018, it became functus officio;
(xii) that complicated and disputed questions of facts cannot be decided while holding summary proceedings;
4. Conversely, learned counsel for respondent No,2 maintained the validity of the impugned order by submitting that principle of resjudicata was not attracted in this case. To augment his contention, learned counsel relied upon "Miss Sumaeea Zareen v. Selection Committee, Bolan Medical College, Quetta and others" (1991 SCM R 2099. Adds, there was sufficient material on the file that the petitioner submitted incorrect, incomplete and false affidavit concealing material particulars regarding assets/accounts, thus, the impugned order was unexceptionable.
5. We have heard the learned counsel for the parties and have also perused the record.
6. We first deal with the legal objections raised by the learned counsel for the petitioner regarding maintainability of the appeal. It is true that under section 63 of the Elections Act, 2017, only a candidate/