Aggrieved by the order dated 13.06.2018 passed by the Returning Officer, PP-259, Rahim Yar Khan wherein the appellant' s nomination papers were rejected on the ground that proposer and seconder of the appellant are not voters from the constituency from where the appellant is contesting the election, the appellant has filed the instant appeal under section 63 of the Elections Act, 2017 on the ground that on realizing the bonafide omission, an application was moved by the appellant before the Returning Officer requesting therein to remedy omission by presenting certificates of other two voters but the same was also rejected. Hence, the appellant is entitled to contest election as the defect is not of substantial nature.
2. The learned counsel for the appellant mainly argues that through clerical mistake, names of proposer and seconder were wrongly mentioned. However , the appellant filed an application before the Returning Officer for rectifying the defect at the time of scrutiny , which was dismissed on 13.06.2018. Learned counsel for the appellant argues that this defect is curable while placing reliance on the case reported as Mudassar Qayyum Nahra Vs Election Tribunal, Punjab, Lahore and 10 others (2003 PLD (Lahore) 1089 ) wherein substitution was requested there and then, on being pointed out before Returning Officer and same was allowed by the Returning Officer.
Prays that case of the appellant is on the same footings and the appellant can correct/rectify this defect by substituting proposer and seconder . Hence, the appellant is entitled to contest the election by rectifying the defect. I have heard the arguments of the learned counsel for the appellant and perused the documents attached with this appeal.
3. Against the decision of Returning Officer, based on summary inquiry , a candidate or the objector has a right to file an appeal before this Appellate Tribunal, constituted for this purpose under section 63 of Elections Act 2017 and Appellate Tribunal is empowered to summarily decide an appeal under subsection 2 of section 63 ibid, however , in, short, brief, concise and immediate manner and in contrast to a full fledge trial, especially on the substantial and genuine controversy about the facts or the application of law which is dependent upon the factual resolution, within such time as may be notified by the commission, on the basis of admitted/easily verifiable material/record to eminently and conclusively establish the qualification/ disqualification of the candidate. There is no denial of the fact that the appellant has filed the nomination papers on the last date of filing nomi nation papers i.e. 11.06.2018 by mentioning the names of Muhammad Ahmad as proposer and Naveed Abid as seconder . During scrutiny of nomination papers, on 13.06.2018, it was discovered that names of proposer and seconder were not in the electoral roll of the electoral area from where the appellant was/is contesting election as a candidate and the appellant filed application for correction of defect on 13.06.2018 after the last date of filing nomination papers i.e. 11.06.2018. This defect is of a substantial nature. Returning Officer is only empowered to allow a defect other than one of a substantial nature to be remedied, such as particulars of the candidate or his proposer and seconder , signature of proposer/seconder as to ensure that the same are accurate. But if the name of candidate and his particulars are altogether missing and/or same is the position of the proposer/ seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the position with regard to substitution as the Retuning Officer has no lawful authority to allow an altogether new person to be replaced as a proposer or seconder for a person who is absolutely disqualified or ineligible to propose or second.
The Hon'ble Supreme Court of Pakistan while dealing with an identical matter reported as "Nadeem Shafi Vs Tariq Shuja Butt and others ( PLD 2016 Supreme Court 944 ), has held as under: "The Returning Officer and the Appellate Authority are barred from correcting a defect of a substantial nature; if the fact that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substitution or rectification of a defective nomination paper."
4. Defect regarding proposer and seconder not being from the constituency from where a candidate files his nomination papers, can neither be left unnoticed nor remedied because it is an endorsement of the nominated candidate by voter(s) of same constituency and in case, it is discovered that the proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all. Hence, the Returning Officer was legally justified in rejecting the appellant' s nomination papers. Reliance is placed on judgments reported as Rana Muhammad Tajammal Hussain Vs. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277), Barkhurdar Vs. Appellate Tribunal / Additional District and Sessions Judge and 3 others (PLD 2016 Lahore 101), Muhammad Ilyas Vs. Returning Officer and others (PLD 2016 Lahore 179 ), Asif Khan Vs. Returning Officer (2003 MLD 230 ).
5. In view of above, I find no infirmity or illegality in the impugned order of the Returning Officer and consequently this appeal is dismissed.