JAWAD HASSAN, J. Through this single judgment, this Election Tribunal (the "Tribunal") will decide this appeal alongwith Election Appeal No.04 of 2022/BWP filed by Sohail Ahmed under Section 63 of the Election Act, 2017 (the "Act") read with Rule 54 of the Election Rules, 2017 (the "Rules") as these are the outcome of same impugned order dated 11.08.2022 (the "impugned order") passed by the Respondent No.2/Returning Officer, Constituency PP-241, Bahawalnagar-V and involve same question of law and facts.
I. FACTS OF THE CASE
2. The facts of instant appeal as well as Election Appeal No.04 of 2022 (the "appeals") are identical with only slight difference that the Appellant of instant appeal namely Ch. Muhammad Ashraf is a candidate and registered voter while the Appellant/Sohail Ahmed is a registered voter of same constituency PP-241 Bahawalnagar-V (both Ch. Muhammad Ashraf and Sohail Ahmed hereinafter to be called the "Appellants"). The Appellants have challenged the impugned order whereby nomination papers for the Bye election of Respondent No.1 were accepted by rejecting objections of the Appellants/Objectors. The Respondent No.2 decided the issue of acceptance of the nomination papers by observing that Respondent No.1 rectified the actual position as per requirement of Section 62(9)(d)(ii) of the Act by disclosing this later on through an amendment allowed therein.
II. PROCEEDINGS BEFORE THE COURT
3. These appeals have been heard on 17th and 18th of August, 2022 at length and in terms of Section 63(3) of the Act and are being decided by this Tribunal within the time frame specified under aforesaid Section. It is to be noted that under Section 63(2) of the Act the appeal has to be decided by this Tribunal within the time notified by the ECP vide notification dated 28.07.2022 to be decided till 22.08.2022. Since it is a time specific Tribunal with the mandate to decide the appeals within time frame specified under the law and the notification of the ECP therefore, this Tribunal, being time specific, is deciding these appeals in the light of case law reported in "SHAHEEN MERCHANT Versus FEDERATION OF PAKISTAN etc" (2021 PTD 2126 Lahore), wherein the Court has elaborated and enunciated the principles of law regarding the time bound and time specific forum with time bound mandate to the Tribunals to decide appeal within time frame given under the legislation, which is also the requirement of Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"). The Court has held as under: "The accumulative effect of this discussion is that when the statute has provided specific remedies of appeal to the Petitioner against Final Determination, already impugned before the Appellate Tribunal and when right of another appeal is still available after the decision of the Appellate Tribunal, then in such a situation, the impugned Final Determination cannot be given effect because doing so will not only frustrate the pending appeal before the Tribunal but it will also jeopardize the whole purpose of provision of remedy of Appeal under the Act. Needless to emphasize that making the process of hearing appeal by the Tribunal and also by the High Court in a specific time-bound manner within a definite period of 45 days and 90 days respectively, was also to streamline the whole process of ascertaining the correctness of the decisions of the Commission in a timely fashion, so that if found justified under the law, it can be given effect to or if not affirmed can be rectified in a timely manner, so that both the parties may have a definite decision to pursue their course of action within a reasonable and specific time".
III. APPELLANT'S SUBMISSION
4. Mr. A. R. Aurangzeb, ASC submits that the Respondent No.2 has not considered the relevant provisions of the Act as well as the rules framed thereunder in true perspective while deciding the matter, specifically, the basic principles prescribed under Section 62(9)(c) of the Act, which clearly states that the Returning Officer may reject the nomination papers if he satisfies that the provisions of Section 60 or Section 61 of the Act have not been complied with or the candidate has submitted a declaration or statement which is false or incorrect because though Respondent No.1 filed his nomination papers as per Section 60 of the Act alongwith Form-A and Form-B attached therein but he did not mention assets of his spouse in Form-B, which act comes within the meaning of providing false or incorrect information in light of the judgment passed by the Hon'ble Supreme Court of Pakistan in the cases of Shamona Badshah Qaisarani versus Election Tribunal, Multan and others (2021 SCMR 988), Muhammad Ahmad Chatta versus Iftikhar Ahmad Cheema and others (2016 SCMR 763), Rana Muhammad Tajammal Hussain versus Rana Shaukat Mahmood (PLD 2007 SC 277). Reliance is also placed on the judgments passed by this Court in the cases of Muzafar Abbas versus Maulana Muhammad Ahmad Lukhianvi and 31 others (PLD 2017 Lahore 394) and Dr. Shahzad Niazi versus Election Appellate Tribunal and 3 others (PLD 2018 Lahore 748). He further submits that the application filed by Respondent No.1 to rectify his mistake so done is to cover the anomaly falls within the definition of false and incorrect information at the time of filing of nomination papers, which is not sustainable in the eye of law.
IV. RESPONDENTS SUBMISSION
(i) Arguments of Raja Sohail Iftikhar, ASC
5. Raja Sohail Iftikhar, ASC supports the impugned order by submitting that it has clearly mentioned that Respondent No.1 has not concealed any fact intentionally and in-fact, he has filed an application to rectify the aspect that detail of assets of his wife could not be filed due to certain omission. Moreover, in the said order, the Returning Officer has also observed that the candidate has himself pointed out this omission with request to rectify it during the process of scrutiny strictly as per provisions of Sub-Section 9(d)(ii) of Section 62 of the Act, therefore, the same does not seem to be of substantial nature. He maintains that this application was filed by Respondent No.1 within the time frame, therefore, order was rightly passed by the Returning Officer.
(ii) Arguments of Mr. Muhammad Sarwar Chaudhary, ASC
6. In addition to arguments rendered by Raja Sohail Iftikhar, ASC, Mr. Muhammad Sarwar Chaudhary, ASC submits that application for rectification was filed by Respondent No.1 on 05.08.2022, which was received by the concerned authority of the Election Commission of Pakistan (the "ECP") on 06.08.2022 and as per the schedule fixed by the ECP vide notification dated 28.07.2022/Annexure-A, the same has been filed within the timeframe and also acknowledged by the ECP. He contends that the order of the Respondent No.2 follows that principles/guidelines settled by this Court in the judgments reported as Luqman Sajid versus Returning Officer and 5 others (2018 YLR 2319) and Muhammad Iqbal and another versus District Returning Officer, Bhakkar and another (PLD 2006 Lahore 13). He maintains that the Appellants have alleged concealment of facts by Respondent No.1 under the pretext that he submitted false and incorrect information, which could be rectified through an application and he referred to the recent judgment of this Court passed on the issue of rectification in the case of Abdullah Khan Usmani versus Securities and Exchange Commission of Pakistan and others (2022 CLD 821) in which this Court has elaborated the words (i) fraudulent act; (ii) fraud by misrepresentation; (iii) fraud by disclosing fake information; and (iv) the concept of rectification in detail by enunciating the principles of law, Pathology and Anatomy of certain sections of relevant law and specifically, Judicial Anthology of Fraud/Fraudulent/Fraudulently. The relevant portions (from paragraph-12) of the said judgment are reproduced hereunder for ease of the matter:- "Literal study of Section 126(1)(a) of the Act provides a right to make an application before the Court for the purposes of rectification of register of members or register of debenture holders of a company in a case Civil Original No.227628 of 2018 where name of a person "fraudulently" or "without sufficient cause" was entered in or omitted from said registers."
V. NUB OF THE MATTER
7. The nub of the matter in the appeals is whether a candidate, who files nomination papers as per requirement of Section 60(2)(d) of the Act read with Form-A and Form-B, can move an application for rectification of some information before the closing date as notified by the ECP?.
VI. DETERMINATION BY THE TRIBUNAL
8. In this case, the plea of the Appellants is that Respondent No.1 filed his nomination papers alongwith Form-A and Form-B read with the provisions of Section 60 of the Act but in Form-B, he did not mention the detail of assets of his spouse, which is considered as false and incorrect declaration made by him under Section 62(9)(c) of the Act. This Tribunal will examine the scheme of law given in Section 62 of the Act alongwith the provisions for rectification of such an anomaly within the timeframe as provided in relevant Section of the Act. Before proceedings further, the Tribunal examines the certain/relevant provisions of the Act, Section 62(9)(c) of which reads as follows:- "any provision of section 60 or section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular"
9. In order to better understand this Section it is also pertinent to reproduce Section 60(2)(d) of the Act which deals with the statement of assets and liabilities, which is also given below:- "(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by--
(a) ---------;
(b) ---------;
(c) ---------;and
(d) statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B."
10. From the above provisions of law/Act, the emphasis is added for the candidate to sign the Form-A and Form-B with the statement of assets and liabilities of his spouse and dependent children in Form-B and the contents of Form-B are also attached with the Act. Form-B is reproduced hereunder for ready reference:- FORM B [See sections 60, 110 & 137] STATEMENT OF ASSETS AND LIABILITIES I,........candidate/ Member,*National Assembly/Senate, Provincial Assembly, Punjab/ Sindh/ Khyber Pakhtunkhwa/ Balochistan from constituency......../ from the seats reserved for women/ non- Muslims hereby declare that no immovable and moveable property, including bonds, shares, certificates, securities, insurance policies and jewelry, other than specified herein below, is held by me, my spouse(s) and dependent children on 30th day of June,____________.
ASSETS ASSETS COSTS OF ASSET REMARKS 1 2 3
1. IMMOVABLE PROPERTY Open plots, houses, apartments, commercial buildings, under construction properties, agricultural property, etc.
(a) Held within Pakistan*
(i) ________
(ii) _______
(iii) ______
(b) Held outside Pakistan*
(i) ________
(ii) _______
2. MOVABLE ASSETS
(a) Business capital within Pakistan
(i) Name of business
(ii) Capital amount
(b) Business capital outside Pakistan
(i) Name of business
(ii) Capital amount
(c) Assets brought or remitted from outside Pakistan*
(i) Bank drafts/ Remittances
(ii) Machinery
(iii) Other
(d) Assets brought out of remittance from abroad*
(e) Investments
(i) Stock and Shares
(ii) Debentures
(iii) National Investment
(Unit) Trust
(iv) ICP Certificates
(v) National Savings Schemes -- Defence Savings Certificate -- Special Savings Certificate -- Regular Income Certificate
(vi) Unsecured loans
(vii) Mortgages
(viii) Any other
(f) Motor Vehicles* Make Model Reg. No.
(i) ______ ______ ______
(ii) ______ ______ ______
(g) Jewelry etc.
(i) Weight
(ii) Description
(h) Cash and Bank Accounts*
(i) Cash in hand (ii) Cash at Bank Account No. Bank & Branch Current ______ ______ ______ Deposit ______ ______ ______ Saving ______ ______ ______ Other Deposit ______
(i) Furniture, Fittings &articles of personal use-
(j) Assets transferred to any person-
(i) Without adequate consideration, or
(ii) by revocable transfer
(k) Any other assets.
(i) Mortgages secured on Property or land
(ii) Unsecured Loans owing
(iii) Bank Overdraft
(iv) Bank Loans
(v) Amounts due under Hire Purchase Agreement
(vi) House Building Loans
(vii) Advances from Provident Funds etc.
(viii) Other debts due*
(ix) Liabilities in the names of dependent children (in respect of assets standing in their names)
Total *Details to be annexed.
VERIFICATION I, .........S/o,W/o,D/o ......... do hereby declare that, to the best of my knowledge and belief, the above statement of the assets and liabilities of myself, my spouse(s), dependent children is correct and complete as on 30th June........... and nothing has been concealed therefrom.
Date............Signature of the Candidate/ Member
11. The word "assets of spouse" is already the requirement of Form-B if read with Section 60(2)(d) of the Act because it itself states that certain assets held by a candidate or his dependents. The version as taken by the Appellants is that the Respondent No.2 has violated the basic principles prescribed under Section 62(9)(c) of the Act by not mentioning certain information intentionally in Form-B hence this act comes within the meaning of providing false or incorrect information. While on the other hand, the stance of the Respondent No.1 is that he has not concealed any fact rather at the time of filing nomination papers submitted on 05.08.2022 as evident from schedule of scrutiny at Sr.Nos.17,18 and 19, due to certain omission, he could not incorporate the details of assets of his wife for which he immediately filed application for rectification and same was received and acknowledged by the Respondent No.2 hence his application was within time as per the schedule fixed by ECP vide Notification dated 28.07.2022.
12. Original record produced by the learned counsel for the Respondent ECP reveals that in Form-B, though Respondent No.1 did not mention assets of his spouse yet before the date of scrutiny i.e.10.08.2022, an application dated 05.08.2022 seeking permission to incorporate the assets of his wife and arm license was moved before the Respondent No.2 which was received and acknowledged by his office on 06.08.2022. Bare reading of contents of application reveals that the Respondent No.1 besides mentioning that he, being candidate for PP-241, could not, inadvertently, submit detail of assets of his spouse alongwith account numbers of Allied Bank, also prayed that as there is no impediment in the law/Act to rectify such anomaly/ situation, the same may be rectified. The perusal of the impugned order reveals that the Respondent No.2, after hearing the parties, has held that Respondent No.1 did not conceal the facts intentionally and submitted an application that he made omission with regard to statement of assets and liability of his spouse and because he himself pointed out the said omission, his request for the rectification was as per law, and it could not be considered as an omission of substantial nature, therefore, he rectified the same by allowing the said application.
13. When something is given in a proviso in the law (Act, Rules or Regulations), its purpose has to be seen from the intent of the legislature and in this regard, reference can be made to the judgments passed by this Court in the cases of Abwa Knowledge Village Pvt. Ltd. etc. versus Federation of Pakistan etc. (PLD 2021 Lahore 436) and Jamshed Iqbal Cheema versus The Election Appellate Tribunal and 19 others (2022 CLC 463). The preamble of the Act clearly states that the Act has been introduced to amend, consolidate and unify laws relating to the conduct of elections and matters connected therewith or ancillary thereto and the purpose of filing nomination papers is specified in Section 60 while the process of scrutiny is given in Section 62 of the Act. The question looms large before the Tribunal is whether the Respondent No.2 can allow rectification during scrutiny process or not. In this regard, Section 62(9)(d)(ii) of the Act is of much importance which deals with the process of scrutiny. The said section reads as under:
62. Scrutiny.--(1) Any voter of a constituency may file objections to the candidature of a candidate of that constituency who has been nominated or whose name has been included in the party list submitted by a political party for election to an Assembly before the Returning Officer within the period specified by the Commission for the scrutiny of nomination papers of candidates contesting election to an Assembly.
(2) ----------
(3) ----------
(4) ----------
(5) ----------
(6) ----------
(7) ----------
(8) ---------- 9) Subject to this section, the Returning Officer may, on either of his own motion or upon an objection, conduct a summary enquiry and may reject a nomination paper if he is satisfied that--
(a) ----------
(b) ----------
(c) ----------
(d) ---------- Provided that--
(i) ----------
(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, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.
14. Plain reading of above said section reveals in unequivocal terms that 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, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll. The order passed by the Returning Officer also specifically mentions that Respondent No.1 himself pointed out the omission, therefore, the same is not a substantial in nature. The judgment of the Hon'ble Supreme Court of Pakistan passed in Shamona Badshah Qaisarani Case (supra), on which learned counsel for the Appellant is basing his case, highlights the aspect that the returned candidate would be disqualified only when if he/she had dishonestly acquired assets and was hiding them to derive certain benefits but in this case, Respondent No.1 has himself admitted the mistake/error on his part by moving an application for rectification to that extent, which was also filed within the timeframe given by the ECP in notification dated 28.07.2022. Moreover, Section 62(9)
(d)(ii) of the Act has already been interpreted by learned Division Bench in "JAM ZEESHAN ALI Versus RETURNING OFFICER and others" (2022 CLC 119) and this Tribunal is in agreement with the observation which reads as under: "8. A bare perusal of above, prima facie reveals that power of Returning Officer to scrutinize nomination paper raised thereon, is summarily in nature without recording evidence as such the order of the Returning Officer cannot be equated with a decision which is made after recording evidence. Further, the Section 62 of the Act provides that the Returning Officer shall not reject nomination paper on the ground of any defect which is not substantial and may allow any such defect to be remedied forthwith, including an error concerning the name, serial number in the electro roll or other particulars to the candidate or his proposer or seconder to bring them in conformity with the supplementary entries in the electro roll"
15. In another case "UMAR AYUB KHAN Versus returning officer NA-19, N.W.F.P., DISTRICT HARIPUR/ADDITIONAL DISTRICT AND SESSIONS JUDGE, HARIPUR and another" (2003 MLD 222), the Court held that "It is, therefore, that section 14 of the Act itself contains subclause (d)(ii) whereunder the Returning Officer could not reject a paper on ground of any defect which is not of substantial nature and may allow that any such defect to be remedied forthwith. This clearly shows that intent of the Legislature that mere existence of a defect in nomination papers unless it is of a substantial nature and a defect which can be remedied should not be made ground for dismissal of nomination papers. In the instant case if there was an objection raised by the appellant on the assets of the two respondents, the Returning Officer could have asked the two respondents to get fresh' Goshwara Malkiat' as it was within the power of the Returning Officer, and if this process had been followed, the appellant would have no objection left and there would not have been filed any appeal."
16. In "AITBAR and another Versus PROVINCIAL ELECTION COMMISSION through DEO, District N/Feroze, through A.A.G. Sindh and 5 others" (2017 CLC Note 179), the question involved in this case has been dilated upon and it was observed that "if any error or omission in nomination paper or part of candidate, was not of substantial nature, and the same could be cured at very initial stage of scrutiny by Returning Officer or before Appellate Authority, then opportunity was to be given to the candidate to remove such defect or deficiency, so that he might not be defranchised or prevented from contesting election, which was fundamental right of every citizen. Petitioners were otherwise qualified to contest election and there was no objection with regard to their eligibility except ground of incomplete declaration of assets"
17. The record produced by ECP established that the Respondent No.1 did file application for rectification within time and the case law, mentioned above, empowers the Respondent No.2 to rectify omission during scrutiny process because the principles developed by the Election Tribunal in the case of Umar Ayub Khan supra, states that "statement made by a nominee on the basis of a document supplied to him by a Government functionary, if not correct, but was corrected, later on, would not be made basis for denying a guaranteed fundamental right to a contesting candidate, which could not and should not be the spirit of law".
18. In view of the law laid down in the aforesaid judgments, these appeals hold no merit as the Tribunal does not find any illegality or perversity in the impugned orders which even otherwise have been passed aptly as per the provisions of Section 62(9)(d)(ii) of the Act. Therefore, the same are hereby dismissed.