ABID AZIZ SHEIKH, J.---This constitutional petition has been filed with following prayer: "The impugned order dated 17.02.2018 may very kindly be set aside and the order dated 12.02.2018 passed by Returning Officer/respondent No,3 may very kindly be restored, resultantly the nomination papers of the respondent No,4 from the seat of Technocrat, Province of Punjab, Senate Elections 2018 may very kindly be rejected and respondent No,3 may be directed to delete the name of the respondent No,4 from the list of validly nominated contesting candidates".
2. Brief facts are that respondent No,4 submitted his nomination papers for the seat of technocrat in Senate from Province of Punjab. The nomination papers of respondent No,4 were objected on various grounds by objectors. Respondent No,3 rejected the nomination papers of respondent No,4 on 12.2.2018. The respondent No,4 tiled appeal against rejection of his nomination papers which was accepted vide impugned order dated 17.2.2018. The petitioner who was neither an objector to the nomination papers of respondent No,4 nor filed formal application before Appellate Tribunal to be impleaded as party, appeared before Tribunal during course of arguments on appeal filed by respondent No,4 seeking right of audience. However, through impugned order, he was declined right of audience in appeal being not an objector to the nomination papers of respondent No,4 and ultimately, the appeal was allowed. The petitioner being aggrieved of order passed by Appellate Tribunal dated 17.2.2018 has filed this constitutional petition.
3. Learned counsel for the respondent No,4 at the very outset raised preliminary objection that petitioner being not an objector to the nomination papers of respondent No,4 during scrutiny is not aggrieved person, therefore, he could neither file appeal before Appellate Tribunal (Tribunal) nor can he file this constitutional petition challenging the order of Tribunal, whereby nomination papers of respondent No,4 were accepted. He submits that petitioner being a candidate can only file election petition under section 156 of the Elections Act. 2017 (Act) in the post election proceedings.
Learned counsel further submits that without prejudice to the question of maintainability of this petition, even otherwise, respondent No,4 could file appeal before Tribunal against rejection of his nomination papers under the Act despite being an absconder in some other proceedings and that order passed by the Tribunal is legal and duly justified on merits. He finally concluded that question of maintainability of petition is required to be decided at the first instance as repeatedly held by august Supreme Court in number of judgments including judgments reported as Abbas Hussain v.
State (1992 SCMR 320) and Abdul All v. Haji Bismillah (2002 SCMR 203).
4. Learned counsel for the petitioner in response to the above preliminary objection on the maintainability of this petition argued that no doubt, petitioner was not an objector to the nomination papers filed by respondent No,4 but he was aggrieved when appeal filed by a fugitive from law has been entertained by the Tribunal through impugned order dated 17.2.2018. He submits that petitioner being also a candidate for seat of technocrat in Senate, has become aggrieved when appeal filed by respondent No,4 was entertained and allowed. Learned counsel submits that august Supreme Court in Gul Hassan and another v. The State (PLD 1969 Supreme Court 69) and Hayat Bakhsh and others v. The State (PLD 1981 Supreme Court 265) held that fugitive from law cannot file appeal. He adds that same view was expressed by this Court in Ghulam Mustafa v.
District Police Officer Kasur and 3 others (PLD 2014 Lahore 82). He finally argued that petitioner can file this constitutional petition under Article 199(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution).
5. Learned Law Officer supported the arguments of the respondent No,4 and submits that that provision of sections 13(5) and 13(6) of the Senate (Election) Act, 1975 (Act of 1975) is identical to sections 112 and 113 of the Act, under which only an objector to a nomination paper is an aggrieved person to file appeal before Tribunal or to file constitutional petition to challenge order of Tribunal.
6. We have heard arguments of learned counsel for the parties and perused the record with their able assistance. The law is well settled by august Supreme Court that an objection pertaining to maintainability of petition should be decided at the first instance before touching merits of case which will otherwise a futile exercise. Therefore, we intend to decide question of maintainability of this petition at the initial stage.
7. The main argument of learned counsel for the respondent No,4 is that petitioner being not an objector during scrutiny to the nomination papers of respondent No,4, had no locus standi to file appeal before Appellate Tribunal, therefore, he is also not entitled to file this constitutional petition challenging the impugned order passed by Tribunal. On the other hand, learned counsel for the petitioner is claiming that because appeal was entertained by the Tribunal illegally on behalf of fugitive of law, therefore, he being also a candidate has secured a locus standi to challenge the impugned judgment passed by the Tribunal. To better appreciate the respective contentions of the parties and to decide the question of maintainability, it is necessary to go through relevant provision of the Act which deals with filing of appeal before Tribunal. Section 113 of the Act provide appeal before Tribunal against scrutiny order. For convenience, provision of section 113 of the Act is reproduced hereunder:-
113. Appeal against scrutiny order,---(1) A candidate or an objector may, within the time specified by the Commission, file an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting a nomination paper to the Tribunal constituted for the purpose consisting of a person who is a Judge of a High Court, appointed by the Commission in consultation with the Chief Justice of the High Court concerned.
(2) An appeal filed under subsection (1) shall be summarily decided within such time as may be notified by the Commission and any order passed on the appeal shall be final.
(3) If, on the basis of information or material coming to its knowledge by any source, a Tribunal constituted under subsection (1) is of the opinion that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, government dues and utility expenses or has had any loan written off or has willfully concealed such fact or suffers from any other disqualification from being elected as a Member of the Senate, it may, on its own motion, call upon such candidate to show-cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter or has had a loan written off or suffers from any disqualification, it may reject the nomination paper of the candidate.
(4)Announcement of the day and time appointed for the hearing of an appeal under this section over the radio or television or by publication in the newspaper shall be deemed to be sufficient notice of the day and time so appointed."
(emphasis supplied)
8. The plain reading of section 113 of the Act shows that a candidate or an objector can file appeal against the decision of Returning Officer rejecting or accepting the nomination papers. The words "as the case may be" used in section 113 of the Act postulates the intention of law makers that the candidate can only file appeal against rejection of his nomination papers whereas an objector can file appeal against the acceptance of nomination papers. The holistic reading of section 113 of the Act makes abundantly clear that a candidate who is not an objector to nomination paper during scrutiny cannot file appeal against rejection of nomination papers of another candidate. This interpretation of section 113 of the Act is also supported by the fact that scrutiny of nomination papers before the Returning Officer and its appeal before Appellate Tribunal are in the manner of summary proceedings and therefore, only those persons who objected to nomination papers are allowed to file appeals before Tribunal. Further under subsection (3) of section 113 of the Act, the suo motu power of Tribunal on basis of information or material coming to its knowledge by any source can only be exercised where nomination papers of candidate has been accepted and not when same are rejected. The rejection of nomination can only be challenged under subsection (1) of section 113 of the Act by the candidate himself. However, under section 156 of the Act, any candidate whether he was objector or not can file election petition, in the post election proceedings for seeking declaration of any election of returned candidate void, if the nomination of returned candidate was invalid or he was not qualified.
9. The provision of sections 105 to 112 in Chapter VII of the Act, which relates to conduct of election of senate, also support the above legal position. Section 112 specifically relates to the scrutiny of nomination papers. Subsection (1) of section 112 of the Act, provides that the candidate, through proposer, seconder and agent authorized by candidate may attend the scrutiny of nomination papers. Candidate is defined under section 2(vii) of the Act means a person proposed and seconded as a candidate for seeking election as a member. Subsection (6) of section 112 of the Act provides that Returning Officer may either on his own motion or upon objection reject the nomination papers for grounds specified in the said subsection. This depicts the scheme of law under the Act, that unless a candidate appeared at the time of scrutiny and object to the nomination papers of another candidate, he cannot be aggrieved of acceptance or rejection of nomination papers of said candidate. Any other interpretation of these provisions will not only change the entire complexion of scrutiny process under Chapter VII of the Act but will also render certain sub clauses of sections 112 and 113 redundant.
10.The same view was also expressed by this Court while interpreting sections 112 and 113 of the Act in writ petition No,168265/2018 vide judgment dated 01.3.2018. Relevant observation is reproduced hereunder:- "Plain and holistic reading of section 113 of the Act shows that candidate can file Appeal before Appellate Tribunal if his nomination papers are rejected. Where an objector can file Appeal before Appellate Tribunal if nomination papers are accepted. The candidate cannot file Appeal against rejection of nomination' paper of another candidate unless he was objector to those nomination papers.
Although the objector is not defined under the Act but as and when any objection is filed by an objector the same is dealt with under section 112 of the Act.
This interpretation is also inconsonance with the scheme of the Act, where section 112 of the Act clearly depicts that the Returning Officer shall examine the nomination papers of the candidates and decide any objection raised by any such person to any nomination. Chapter VII of the Act deals with the conduct of Election to the Senate in which under section 105 the Returning Officer and Dealing Officers have been appointed with the functions under section 106. Section 110 deals with the nomination of the Election and the entire scrutiny of the candidates is stated in section 112(1) of the Act in which the Returning Officer shall give the candidates, their proposers and seconders, and an agent authorized in writing in this behalf, reasonable opportunity for examining all the nomination papers including any nomination by the objector. Only the candidates or the objectors were permitted to file an Appeal before the Appellate Tribunal under section 113 of the Act in case of rejection or acceptance of nomination papers as the case may be, therefore, the locus standi to file an Appeal against rejection of nomination papers only lies with the objector.
Subsection (3) of section 113 of the Act further clarifies that the Tribunal can also deal with the matters of the candidates.
In this case it is admitted and apparent from the record that the Petitioner had not filed any objection as provided under section 112 of the Act to the nomination papers of Respondent No,4, therefore, he had no locus standi to be heard before the Appellate Tribunal. It is further noted that the only remedy available to the Petitioner being a candidate and not objector is under section 156 of the Act in post-election proceedings where the Petitioner will have grounds for seeking declaration of any election of returned candidate void if the nomination of the returned candidate is invalid or lie is not qualified.
11.In the present case, it is admitted on all hands that petitioner though was a candidate but he never filed objection against nomination papers of respondent No,4 at the time of scrutiny. It is also not disputed that petitioner also not filed any formal application before Appellate Tribunal for being impleaded as party. In the circumstances, the Appellate Tribunal had rightly held in para 3 of the impugned judgment that petitioner had no right of audience being not an objector, however, he could place any information through counsel already representing respondent No,2 in appeal.
12.The next argument that petitioner can file constitutional petition under Article 199(1)(a) of the Constitution to challenge impugned judgment is also mis-conceived. Under Article 199(1)(a) of the Constitution, only an aggrieved party can approach this Court. The petitioner who was not an objector to the nomination papers of respondent No,4 cannot be treated as aggrieved party against acceptance of nomination papers of respondent No,4, specially when petitioner's own nomination papers are already accepted and not affected at all in any manner by the impugned judgment passed by Tribunal.
13. The question whether third party, who is just an informer like petitioner, can file writ petition against the acceptance of nomination papers filed by a candidate has been dealt with by Full Bench of august Supreme Court in Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644) relating to similar provisions under Representation of People Act, 1976 (ROPA now repealed). The august Supreme Court in said judgment held that such person is an informer and is not an aggrieved person within the meaning of Article 199 of the Constitution. Relevant observation is reproduced as under:- The standing of a person who furnishes information under subsection (5-A) can in no way be equated with that of the appellant under subsection (5-A), who has a personal interest in the outcome of the proceedings. The status of such a person is simply of an informer laying information before the Tribunal of certain facts, which he believes disqualifies a candidate to contest the election. He has not been bestowed with any vested right to pursue the 'natter on a personal level to get a candidate disqualified. Needless to state that like all powers exercisable suo motu, the Tribunal is empowered to summon the informer, or for that matter anyone, to appear before it to substantiate, clarify or throw light upon the contents of the show cause-notice. The informer however does not become a party in the legal sense of the term to the proceedings before the Tribunal. The Tribunal's order rejecting the information and declaring the candidate concerned qualified cannot be termed as an order adverse to the interest of the informer. Such informer, therefore, would not be an aggrieved person within the meaning of Article 199 of the Constitution entitling him to file petition for issuance of a writ of Certiorari or Mandamus.
(emphasis supplied)
The same view was expressed by this Court in Aziz Masood v. Khawaja Ahmad Hassan and S others (2016 CLC 706), where it is held as under:- Therefore, a baseline question arises in the instant matter. Whether the petitioner was present at the time of the scrutiny and did raise an objection validly and properly before the Returning Officer?
Unless, the petitioner is able to cross this threshold, it will be deemed that his appeal before the Appellate Authority was not competent and, therefore, the Appellate Authority was correct in concluding that there were, in fact, no objections and thus an appeal was not competent.
In Faisal Mir v. Election Commission of Pakistan and others (2018 CLC page 1), the Full Bench of this Court held as under:- 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.
14.The solitary principle of law settled in above judgments is that a person who is not an objector during the scrutiny of nomination papers but only wants to pass on some information will not be an aggrieved party against the acceptance of nomination papers of another candidate, unless through impugned order, he has been disfranchised or any of his own right has been affected. In the present case, neither petitioner has been disfranchised through impugned order nor his right to contest election has been affected in any manner. Therefore, having not filed any objection to nomination papers of respondent No,4, the petitioner cannot be treated as aggrieved person.
15.Learned counsel for the petitioner vehemently argued that petitioner is aggrieved because respondent No,4, being fugitive from law could not file appeal before Appellate Tribunal in view of law laid down by august Supreme Court in Hayat Bakhsh and Gul Hassan cases supra. We have carefully considered this argument. The provision of section 113 of the Act ibid deals with appeal before Appellate Tribunal against the scrutiny order. Under said provision of section 113, a candidate or an objector may file appeal before Appellate Tribunal against the rejection or acceptance of nomination papers as the case may be. In the present case, admittedly, respondent No,4 was a candidate whose nomination papers were rejected by the Returning Officer, therefore, under section 113 of the Act, he was entitled to file appeal against order of Returning Officer rejecting his nomination papers. We have also noted that nomination papers of respondent No,4 were not rejected on the ground that respondent No,4 was as absconder or fugitive from law. This plea was also not raised before Appellate Tribunal by the objector who was respondent No,2 in the said appeal.
16.The case law relied upon by petitioner is not applicable to the facts and circumstances of this case. In case of Hayat Bakhsh supra, appeal arose out of a murder case and august Supreme Court held that when a convicted become a fugitive before filing of appeal, he will be dis-entitled to a relief unless he surrenders. Hon'ble Supreme Court in said judgment also observed that this finding is in accordance with the basic principles governing administration of criminal justice and would apply to other proceedings, only subject to the law applicable thereto. In case of Gull Hassan supra, again the matter arose out of criminal appeal and same principle was applied by august Supreme Court. In present case, matter is not relating to any criminal proceedings against respondent No,4, rather he had filed an appeal against order passed by Returning Officer rejecting his nomination papers under section 112 of the Act before the Appellate Tribunal. Further the applicable law is section 113 of the Act, which authorizes a candidate to file appeal before Tribunal.
There is no specific requirement under the Act that appellant must be present and cannot file appeal through authorized person.
17. Indeed a person who is fugitive of law, will have no right of criminal appeal in the matter, in which he has been declared absconder unless he surrenders, as held by august Supreme Court, in administration of criminal justice. However, it will be a fallacy to hold that a person who is declared absconder has no right to file any appeal before any forum, in respect of matters which have no nexus and relation to proceedings in which, he was declared absconder. By way of illustration, this will mean that a person who is absconder in a criminal case, cannot be allowed to file appeal even in any civil matters including banking matter, family matters etc before any Court of law. This will practically mean that all fundamental rights of said person for their enforcement through Court of law will be suspended, which is neither the intention of legislation under the Act nor same is permissible under the Constitution.
18. We also found substance in argument of learned counsel for the respondents that under Article 225 of the Constitution, election is to be challenged through election petition. In the present case when neither petitioner is disfranchised nor any of his right to contest election is effected, the challenging of election process through constitutional petition will circumvent the intention of legislation under Article 225 of the Constitution. Further interference in constitutional petition will also be against the scheme of the Act, where against acceptance of nomination papers, only objector can file appeal, whereas a candidate has right under section 156 of the Act to file election petition in the post election proceedings. In this regard, reliance is placed on Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396), Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158 Naushero Feroze and others (1994 SCMR 1299) and Muhammad Raw Havat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233).
19.The above discussion leads us to ineluctable conclusion that the petitioner has no locus standi to file this constitutional petition being not an objector to the nomination papers of respondent No,4 before the Returning Officer. Resultantly, this petition is dismissed, with no order as to cost.