AMJAD ALI SAHIT O, J.---Through this common judgment, we intend to dispose of both the Constitution Petitions filed by the Petitioner being aggrieved and dissatisfied with the impugned Orders dated 22.02.2021 passed by Respondent No.1; in Election Appeal No.04/2021 and Election Appeal No.09/2021, whereby learned Tribunal allowed the. Election Appeals and rejected the nomination paper/form of the petitioner .
2. Precisely , facts of the case are that Election Commission of Pakistan announced the schedule of Senate Election, 2021 for which the petitioner filed his nomination paper/form on "Technocrat " seat. After scrutiny , the Returning Officer accepted his nomination form and therefore he was allowed to contest the election to Senate on Technocrat seat. However , Mr. G.M. Memon, Advocate High Court and one Mr. Shahid All Rind filed Election Appeals Nos. 04/2021 and 09/2021 respectively before the learned Senate Election Appellate Tribunal, Sindh whereby after hearing the parties, their appeals were allowed and the nomination paper of the petitioner was rejected.
3. Learned counsel representing the petitioner in both petitions inter alia contended that the impugned orders are the result of misreading and non-consideration of facts; that the impugned orders are flawed due to its lack of clarity and legal cogency; that it is erroneously noted in Paragraphs 14 and 15 of the impugned order that the projects completed by the petitioner do not amount to achievements as they are mere contractual obligation and that the same projects cannot be construed to be the petitioner's personal achievements and instead must be credited to the partnership; that the learned Tribunal misinterpreted section 113(3) of Elections Act, 2017; that learned Tribunal erred in assessing the maintainability cf the Election Appeal(s ) of respondent No.2 and has erroneously deemed the same to be maintainable by misreading and owing section 113(3) of the Act, 2017; that the candidature of the petitioner was revoked on the sole ground that he had no records of achievement in his credit; however , the petitioner is a qualified Engineer having 20 years of reputable experience in the field of construction and completed various projects which were recognized at national level and meets the criteria and requirement to contest Senate Election for the year 2021 as is evident in the Act, 2017. Further , learned counsel for the petitioner argued that while rejecting the form/paper of the petitioner , the learned Tribunal has failed to comply with subsection (3) of section 113 of Elections Act, 2017. He further argued that the election appeal was presented on 20.02.2021 and both petitions were fixed for orders, but on the very same day after hearing the parties the same was decided; that the requirement of the law is to issue show cause notice as to why the nomination form may not be rejected; but in this case, no show cause notice was issued to the petitioner; that in view of section 112 only the candidates their proposer and seconders and an agent authorized in writing on his behalf by each candidate may attend the scrutiny of the nomination papers but in this case both the objectors are outsider neither they are the candidates nor authorized in writing by any candidate. Lastly , learned counsel prayed that the impugned orders may be set aside and the petitioner may be allowed to contest the Senate Election of Pakistan for the year 2021. In support of his contentions, the learned has relied upon the cases (1) Nawab-ud-Din Saingal v. Additional District Judge and others (2015 YLR 1674 ), (2) Fawad Ahmed v. Election Appellate Tribunal Rawalpindi and others,
(3) Samuel Xaviour and another v. Provincial Election Commissioner (Sindh) and 34 others (2008 YLR 1958 ), (4) Haji Khuda Bux Nizamani v. Election Tribunal and others (2003 MLD 607), (5) Don Basco High School v. The Assistant Director E.O.B.I. and others, (6) Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary , Ministry of Defence and others (PLD 2006 Supreme Court 602), (7) Punjab Cooperative Board of Liquidation through Chairman v. Muhammad Ilyas (PLD 2014 Supreme Court 471),
(8) Commissioner Inland Revenue (Zone-I) LTU, Karachi v. Messers Linde Pak Ltd. Karachi (2020 SCMR 333), (9) Engr . Iqbal Zafar Jhagra and other s v. Khalilur Rehman and 4 others (2000 SCMR 250), (10) Sheikh Rafique Ahmed v. Zia Shahid and another (1999 SCMR 573), (11) Dr. Aon Muhammad Khan v. Lt. Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), (12) Sh. Ihsanul Haq Piracha v. Mr. Wasim Sajjad and others (PLD 1986 Supreme Court 200), (13) Malik Nawab Sher v. Ch. Muneer Ahmed and others (2013 SCMR 1035 ), (14) Raja Muhammad Afzal v.Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736 ), (15)
Nawabzada Mir Balach Khan Marri through Attorney v. Mir Mohabat Khan Marri (PLD 2003 Quetta 42), (16)
Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299 ), (17) Aftab Shahban Mirani v. Preside nt of Pakistan and others (1998 SCMR 1863 ), (18) Intesar Hussain Bhatti v. Vice-Chancellor , University of Punjab, Lahore and others (PLD 2008 Supreme Court 313), (19) Raja Pervaiz Ashraf v. Election Tribunal and others (PLD 2013 Lahore 552),
(20) Moulana Agha Muhammad v. Returning Officer, NA-261 Pishin Cum Ziarat and others (2013 SCMR 1158), (21) Raja Muhammad Safdar v. District Returning Officer, Rawalpindi and 2 others (2006 CLC 87), (22)
Asti Jatoi v. Election Commission of Pakistan and others (2004 YLR. 2192 ), (23) Ch. Muhammad Ayoob and another v. District Judge, Sanghar and others (2003 MLD 1956 ), (24) Motal Bai v. Abdul Aziz and others (PLD 1968 Karachi. 635), (25) Messers M. Rafique & Co., Gujranwala v. Badaruddin (1980 CLC 1300 ), (26)
Haji Bashir Ahmad and 9 others v. Federal Land Commission, Islamabad and 3 others (PLD 1985 Karachi 83) and (27) Mian Parvaiz Rafi v . Abdul Aziz ( 2014 YLR 1726 ).
4. On the other hand, Mr. Haseeb Jamali, learned counsel representing respondent No.2/objector in C.P. No. D- 1407 of 2021 maintained the validity of the impugned order . He contended that while accepting the nomination form of the petitioner , the Returning Officer did not give them ample opportunity of hearing; that the petitioner is involved in corruption and corrupt practices as such notice was issued to the petitioner now he is facing a Reference which is pending before the Accountability Court Multan however he admits that no conviction is recorded against him; that mere completing of the projects is not an achievement but it's a contractual obligation which was completed by the petitioner . He further contended that the scheme of Elections Act, 2017 provides that an order of election appeal shall be the final; that respondent No.2 are competent to raise the objection at the time of scrutiny of the papers of the petitioner and he has referred to the section 112 of the Act and relied upon the subsection (6) of section 112 of the Act; that the petitioner failed to submit any proof which shows that from 2007 till 2014 he was working with Messrs Qalandar Bux Abro Co. The petitioner did not qualify C.S.S. examination and was merely office staff. Such experience cannot, be counted to be the high level; that no achievement at national or international has been achieved by the petitioner; that nothing has been filed to show that the experience claimed was his and not his company , which is a juristic entity; that newspaper clipping shows that status of two bridges claimed to have been built by him so-calle d achievement; that the petitioner in view of above does not qualify to be a Technocrat. In support of his contentions, learned counsel has relied upon the cases (1) Mian Muhammad Nawaz Sharif and others v. Imran Khan Niazi and others, (2) Muhammad Ijaz Ahmed Chaudhry v. Mumtaz Ahmad Tarar (2016 SCMR 1), (3) Abdul Ghafoor Lehri v. Returning Officer, PB-29 Naseerabad-1 1 and others (2013 SCMR 1271 ), (4) Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 Supreme Court 482), (5) Rai Hassan Nawaz v. Haji Muhammad Ayub and others (PLD 2017 Supreme Court 70), (6) Moazam Ali Khan Abbasi v. Federation of Pakistan through Secretary Election Commission of Pakistan and 6 others (2000 CLC 1938), (7) Speaker , National Assembly of Pakistan, Islamabad and others v. Habib Akram and others (PLD 2018 Supreme Court 678), (8) Suo Motu Case No.1 1 of 2011 (PLD 2014 Supreme Court 389), (9) Muhammad Shakeel v. The State and others (PLD 2014 Supreme Court 458),
(10) Muhammad Nawazish Ali Pirzada v. Election. Commission of Pakistan and 6 others (PLD 2018 Lahore 318) and (1 1) Engr . Iqbal Zafar Jhagra and others v . Khalilur Rehman and 4 others ( 2000 SCMR 250 ).
5. Mr. Qadir Khan Mandokhail Advocate undertakes to file Vakalatnama for respondent No.2 in C.P. No.D-1408 of 2021 in the office; however , he has adop ted the arguments advanced by Mr. Haseeb Jamali, learned counsel for respondent No.2 in C.P . No.D-1408 of 2021.
6. Learned Assistant Attorney General for Pakistan duly assisted by Law Officer, Election Commission of Pakistan
(ECP) has supported the order dated 18.02.2021 passed by Provincial Election Commissioner (Sindh)/ Returning Officer for Senate Election-2021 from Sindh Province. Law Officer ECP submits that the reports were called from the FIA, FBR, SBP and NAB and as per reports, the petitioner was not convicted nor tax defaulter . However , the National Accountability Bureau has submitted its report that one Reference No.5/2019 (State v. Shabbir Khan Sabzoi and others) is pending for trial in Accountability Court, Multan. He further submitted that in view of section 112 of the Elections Act, 2017 at the time of scrutiny , the candidate, his proposer , seconder and an agent authorized in writing on -his behalf by each candidate, may attend the security of the nomination papers. He further contended that both objectors do not qualify to raise objections in the light of the subsections (1) (2) of section 112 of the Act.
7. We have heard the learned counsel for the parties and have gone through the material available on record. The petitioner has filed his nomination paper for Senate Election, 2021 on "Technocrat Seat". The scrutiny of the nomination paper was held on 18.02.2021 before the office of the Returning Officer for Senate Election 2021. The candidates, their proposers and seconders were present at the time of the scrutiny .
The office of the Returning Officer received an objection from G.M. Memon Advocate and one Mr. Shahid Ali Rind against the petitioner . The objections were mainly relating to declaration of the candidate's family members, valuation and declarations of his assets and cases pending against him in NAB. After rejecting the objections raised by respondent No.2, the nominatio n paper of the petitioner was accepted. It is appropriate to reproduce the relevant paras 3 and 4 of the order dated 18.02.2021 passed by the Provincial Election Commissioner Sindh/ Returning Of ficer for Senate Election, 2021.
"3. The candidate was further asked for his qualification in terms of section 2 (xxxix) ibid which requires sixteen years of education as well as twenty years of experience with record of achievements at national or international level. In reply whereof, the candidate informed that he obtained the degree of B.E. (Civil) from Mehran University of Engineering and Technology , Jamshoro in 1991. As mentioned at para "G" of the affidavit annexed to the nomination form, which proves that he possesses the requisite education. While describing his achievements at national level, he briefed that as a professional Engineer / Chief Executive Officer of Qalandar Bux Abro and Company , he made several contributions in construction of various flyovers and structures in different cities of the country . The detailed account of said achievements are available on record.
4. Having heard both the parties present, and after examining nomination form and other material available on record, I am of the view that the above-referred objectors do not qualify to raise the objections in light of section 112 (1&2) ibid, hence the same are dismissed. Moreover , keeping in view the educational qualification as well as professional achievements made by the candidate in the field of construction and engineering, I am of the considered opinion that the candidate Mr. Saifullah Abro he is qualified to contest election to Senate as T echnocrat. His nomination papers are hereby accepted."
8. Being aggrieved and dissatisfied with the order dated 18.02.2021 passed by the Learned Returning Officer, respondent No.2 in both petitions filed appeals under section 113 of the Elections Act, 2017 (Act), before Senate Appellate Tribunal, Sindh/High Court of Sindh at Karachi. It is important to note here that the Election Petition was presented on 20.02.2021 and on 22.02.20 21 the matter was fixed for hearing. On the very same day, after hearing the parties the learned Tribunal passed the order and rejected the nomination form/paper of the petitioner by observing that two aspects are involved in this case. As far as the educational qualification of the petitioner is concerned, the record demonstrates that the petitioner is, a qualified Civil Engineer having 20 years' experience in the field to which his educational qualification pertains; therefore, this aspect appears to be satisfied. It is appropriate to reproduce para 1 1 of the order which is as under: "11. Proceeding to the second facet, being experience, attention was drawn to the nomination papers, wherein the experience of the respondent is stated. It is manifest therefrom that the respondent has over 20 years of experience in a field to which his educational qualifications pertained. Therefore, the second aspect of the relevant definition appears also to be satisfied."
9. But the learned Tribunal was not satisfied with the achievements. of the petitioner and observed that the completion of any contract within the stipulated time can only be lawfully expected and mere compliance of a contractual obligation, by a third party , cannot be considered an achievement at a national or international level.
Based on the observation, the appeal was allowed and the nomination form of the petitioner was rejected. It is appropriate to reproduce para 14 of the impugned order which reads as under: "14. Even if the record of Qalander Bux Abro and Co, completed 13 construc tion projects, is accepted, it is the record of that entity itself and not that of the respondent personally and nothing has been articulated before this T ribunal to suggest the completion of these projects is an achievement of respondent himself.
Even though the learned counsel for the appellant has argued that there is no corroboration from the record that this booklet was ever submitted before the RO, it is considered appropriate to observe that the list of 13 projects in para ,materia to the one certificate which is on record, demonstrating that the firm had completed a project within a certain time The completion of any contract within the stipulated time can only be lawfully expected and mere compliance of a contractual obligation, by a third party , cannot be considered an achievement at a national or international level."
10. The controversy in the above appeals revolves around that interpretation of the word "Technocrat and achievement ". In the instant case, the petitioner himself is claiming to be a technocrat and per the petitioner , he has completed 16 years of education recognized by the Higher Education Commission of Pakistan and has 20 years of experience including records of achievement at the national level. The learned Tribunal after analyzing the qualification and bio-data of the petitioner Saifullah Abro concluded that the first facet of the definition of technocrat per section 2(xxxix)(a) of the Act appears to have been complied with and the petitioner has over 20 years of experience in a field which his educational qualification pertained, hence the second aspect of the relevant definition appears to be satisfied. It is appropriate to reproduce section 2(xxxix)(a) of the Elections Act, 2017.
"2(xxxix) "technocrat" means a person who---
(a) holds a degree requiring conclusion of at least sixteen years of education recognized by the Higher Education Commission, and
(b) has at least twenty years of experience including a record of achievement at the national or international level;"
11. We are unable to agree with the conclusion of the learned Tribunal regarding completion of any contract within the stipulated time can only be lawfully expected and mere compliance of a contractual obligation, by a third party , cannot be considered an achievement at a national level. In the present case, the petitioner's company has completed near about 13 projects including Metro Bus Project, Multan, Overhead Bridge on Railway Line between Kotri City, Industrial Area Kotri and others. The petitioner has also produced a performance certificate issued by Project Manager Hyderabad-Mipurkhas Dual Carriageway Project dated 01.01.2020 that M/s. Qalandar Bux Abro and Co. completed a huge project even before the stipulated completion date which is a major icon in its achievement. In the end, it is written that "It is a great achievement at a national level in the supervision of Chief Executive Officer Engr. Saifullah Abro." Further, a letter is also available on Page-249 in the file in which it has been written that "With the help and grace of Allah Almighty great danger was evaded and a significant achievement was accomplished by the team of Messrs Qalandar Bux Abro & Co. such efforts of Messrs Qalandar Bux Abro and Co. secured the safety of the Canal and also saved human lives, public properties, and Government's interests." He has also produced certain documents and pictures which show that the projects, which he has started, have been completed within time. From the perusal of the file, it reveals that the petitioner is a resident of Village Aghan No.2 of Bangal Dero Mullan Kalhoro Ratodero Larkana and has completed his Bachelo r of Engineering (Civil Engineer) from Mehran University of Engineering and Technology , Jamshoro in the year 1991. From 1993 to 2006, the petitioner was a government servant and employed on the post of Sub-Engineer (Civil) with the Highways Department, Government of Sindh. However , after resigning from the aforesaid position, the petitioner began working with the Qalandar Bux Abro and Co. as Project Manager/Engineer in 2007 and remained in this position till October 2014. During the said period, his position entailed overseeing various construction projects and providing his expertise for the same as a Civil Engineer .
12. The deed of partnership was made in the year 2015 in which the shares of Mst. Laila Abro was decreased from 50% to 10% whereas shares of the petitioner were increased by 50% to 90% so, in this way, he has become a major partner in the Messrs Qalandar Bux Abro and Co. The Partnership Act, 1932 defines the law pertaining to partnership. Section 2(a) of the Partnership Act, 1932 defines an "act of firm" as any act or omission by all the partners or by any partner or agent of the firm which give rise to a right enforceable by or against the firm. It is therefore evident that each partner incurs legal liability for his/her own action. Furthermore, section 18 of Partnership Act, 1932 stipulates that "A partner is the agent of the firm for the purpose of the business of the firm."
Reliance is placed in the case of Haji Bashir Ahmed and 9 others v. Federal Law Commission, Islamabad (PLD 1985 Karachi 38). A certificate of Pakistan Engineering Council is available in the file which shows that the petitioner's company was registered as No limit construction company and he remained it's a Civil Engineer from 2008 and completed so many projects which are available in the file. From the above-narrated facts, it can safely be said that petitioner Saifullah Abro has professional qualification. The findings of learned Tribunal that the petitioner has completed 13 projects which are not his achievement in the field are not correct.
13. The second objection raised by the learned counsel for the petitioner was/is that neither respondent No.2 is a candidate of the Senate Election nor he was authorized in writing by any candidate to file an objection. He has also referred section 112 of the Elections Act, 2017. Section 112 of the Act provid es Scrutiny of the nomination form/paper for the Senate election, which reads as under;- "112. Scrutiny .---(1) The candidate, their proposers and seconders, and an agent authorized in writing in this behalf by each candidate may attend the scrutiny of the nomination papers and the Returning Officer shall give them a reasonable opportunity for examining all the nomination papers.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, for the purpose of scrutiny , require any agency , authority or organization, including a financial institution, to produce any document or record or to furnish any such information as may be necessary to determine facts relating to an objection to the candidature of a candidate.
(4) The Returning Officer , while scruti nizing nomination paper of a candidat e, shall not ask any question which---
(a) has no nexus with the information supplied in the nomination paper; or
(b) has not arisen from the objections raised by any person or from information received under subsection (3).
(5) The declaration submitted under clause (a) of sub-section (2) of section 110 shall only be questioned by the Returning Officer if tangible material to the contrary is available on record.
(6) The Returning Officer may, either on his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a Member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 110 or section 111 has not been complied with or the declaration or statement submitted by the candidate is false or incorrect in any material particular; or
(d) the signature of the proposer or seconder is not genuine: Provided that-
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith; and
(iii) the Returning Officer shall not inquire into the correctness or validity of any entry in the electoral roll.
(7) Notwithstanding any contained in subsection (8), where a candidate deposits any amount of loan, tax or government dues and utility expenses payable by him of which, he is unaware at the time of filing of his nomination paper such nomination paper shall not be rejected on the ground of default in payment of such loan, taxes or government dues and utility expenses: Provided that where the Returning Officer is satisfied that the candidate has willfully concealed such loan, tax or government dues and utility expenses, he shall reject his nomination paper .
(8) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record a brief statement of the reasons his decision."
14. Admittedly , respondent No.2 in both petitions neither were candidates nor they were proposers, Seconder and they were not agents authorized in writing on behalf of by each Candidate to appe ar in the Office of the Returning Officer to raise/file an objection against the petitioner . The learned Counsel appearing on behalf the respondent No.2 has read subsection (6) of section 112 of the Act and Submit that it gives power to any person to raise/file an objection against the Candidate who is contesting Senate Election. Subsection (1) of section 112 of the Act provides the details of the persons who can raise the objection i.e. the candidates, their proposers and seconders, and an agent authorized in writing in his behalf by each candidate, may attend the scrutiny of the nomination papers and raise objections. In this case, the learned counsel for the respondents failed to produce documentary evidence that the objectors were author ized by the candidates to file an objection on his behalf or they were candidates for Senate Election. The learned Returning Officer rightly observed that "I am of the view that the above-referred objectors do not qualify to raise the objections in the light of the section 112(1&2) ibid, hence the same are dismissed." Further , the difference between sections 62 and 112 of the Act is to be kept in mind. Section 62 provides that any voter of a constituency may file objections to the candidature of a candidate of that constituency who has been nomina ted or whose name has been included in the party list submitted by a political party for election to an assembly before returning officer within the period specified by the Commission for scrutiny of nomination papers of a candidate contesting election to assembly . In the Senate Election, a list of specified person has been given in subsection (1) of section 112 of the Act, who can raise objections for the Senate election. The intention of the Legislature is very much clear therefore we are of the firm view, that respondent No.2 could not file the objection and Returning Of ficer has rightly denied the same.
15. Learned Senate Appellate Tribunal while deciding the maintainability of the appeals relied on the powers conferred under section 113(3) of the Elections Act, 2017 and held that Tribunal may consider the issue of nomination of the candidate on the basis of any information, material coming to its knowledge by any source.
Relying on this provision, the learned Tribunal entertained the appeals and rejected the nomination form.
Subsection (1) of section 113 of the Act provides that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, government dues and utility expenses or has had willfully concealed such facts or suffers from any other disqualification from being elected as a Member of the Senate, the Tribunal, on its motion, call upon such candidate to show cause why his nomination papers may not be rejected, and in the instant case no show cause notice was issued to the petitioner . The perusal of record reveals that the Election Petitions Nos. 04 and 09 of 2021 was presented on 20.02.2021 and the matter was fixed for hearing on 22.02.2021. After hearing the parties the appeals were allowed and the nomination paper/form of the petitioner was rejected. It is clear from a plain reading of section 113(3) of the Act that the power conferred on the Appellate Tribunal is exercisable on its motion based on the material brought to its knowledge from any source but in our humb le view, the requirement of the subsection (3) of section 113 of the Act was not complied with in which issua nce of show cause notice was mandatory to reject the nomination paper by the learned Tribunal on its own motion which has not been done in this case.
16. In view of the foregoing discussion, we are of the considered view that petitio ner Saifullah Abro is qualified to contest the Senate Election, 2021 and objectors had no locus standi to file an objection before Returning Officer for Senate Election-2021. The instant Constitution Petitions were allowed by short order. Consequently the impugned orders dated 22.02.2021 passed by learned Senate Appellate Tribunal, Sindh are set aside. Above are the reasons of our short order dated 25.02.2021.