AMJAD ALI SAHIT O, J.----Through this petition, the petitioner has impugned orders passed by the Returning Officer of PS-43, (Jam Nawaz Ali Sanghar-1 11 and the Election Appellate Tribunal Karachi dated 31.12.2020 and 13.01.2021 respectively; whereby , the nomination form dated 28.12.2020 submitted by the Respondent No.3 to contest by-election from the constituency , PS-43, Jam Nawaz Ali had been accepted. The Election Appellant Tribunal maintains the order passed by the Returning Officer/Respondent No.1 for PS-43 Jam Nawaz Ali and dismissed the appeal filed by the petitioner under section 63(1) of The Election Act, 2017.
2. Briefly the facts as is envisaged in the captioned constitutional petition are that the petitioner is an advocate and also candidate for contesting bye-election from PS-43. The petitioner , Respondent No.3 and others have filed nomination forms for contesting the by-election from the constituency of PS-43 Jam Nawaz Ali, Sanghar-1 11.
During the scrutiny , theReturning Officer vide order dated 31.12.2020 accepted the nomination form of Respondent No.3. Upon such finding the petitioner has filed Election Appeal No.02 of 2021 before Election Appellate Tribunal Karachi, the said election appeal was dismissed by the Learned Election Tribunal vide its order dated 13.01.2021.
The petitioner challenged both the orders through this constitution petition.
3. The petitioner at the very outset contended that he will not press/argue on the non-filing of the income tax return and NTN number of the respondent No.3 and will confine himself on the arguments that the respondent No.3 has not opened an exclusive bank account for election expenses as required under section 133 of 2017, Act; that the impugned orders are contrary to law, against the facts and suffers from material irregularities; and as such are liable to be set aside; that the Act itself provides for rejection of nomination form if a candidate fails to open an exclusive bank account; that the candidate shall open an exclusive bank account for election expense before the date of scrutiny; that Section 60(2)(b) of the Act required a candidate to make a declaration on oath that he has opened an exclusive bank account for election expenses; that Section 62(9)(c) specifying the respondent No.1 to reject the nomination form if the provisions of Section 60 of the Act have not been complied; that the respondent No.3 had declared on oath that he had opened an exclusive election account with the MCB Sanghar Branch for election expenses; that he has filed a false declaration on oath because the account was opened in the Year, 2018, before this by-election to PS-43. He lastly contended that the impugned orders may be set aside and reject the nomination form of respondent No. 3. In support of his contention, he has relied upon the case laws reported as PLD 1989 Supreme Court 396 Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others , PLD 2009 SC 644 at 6960 Federation of Pakistan v. Muhammad Nawaz Sharif, 1998 SCMR 1863 at 1875 and 1876 Aftab Shahban Mirani v. President of Pakistan, 1994 SCMR 1299 at 1321 1 Ghulam Mustafa Jatoi v. Additional District and Session Judge, PLD 1989 Supreme Court 396 at 1321 1 Election Commission of Pakistan v. Javaid Hashmi, PLD 1989 Supreme Court 396 at 430U, 2015 SCMR 1303 at 1315K Raja Aamer Zaman v. Omar Ayub Khan, PLD 2017 SC 718 at 728D Pakistan Telecommunication Employees Trust v.
Pakistan, 2005 SCMR 1166 at 1171B Collector of Sales Tax v. Mega Tech, 1992 SCMR 1403 at 1413F Market Committee Khudian v. Town Committee Khudain, 2019 PTD 25 at 36C(PHC/ DB) Gas Master CNG Station v.
Federation of Pakistan, 2017 PLD 1181 at 1191A and 1192A (HC/DB) Telenor Pakistan (Pvt.) Ltd v. Appellate Tribunal Inland Revenue, 2002 CLD 1392 at 1402D (SHC/S13) Pakland Cement Limited; 1992 PLC 117 at 124B ISHC/DBI A.F.Ferguson & Cop. v. District Court Karachi, PLD 1977 Lahore 549 at 560B [LHC/DB] Fazal Elahi Ejaz v. Government of Punjab, PLD 1971 SC 252 at 313LL Rafiuddin v. Chief Settlement' and Rehabilitation Commissioner , PLD 2020 Islamabad 306 at 315C JZ Enterprises (Pvt.) Limited v. Federation of Pakistan, 2017 SCMR 1427 at 1437B The Collector of Sales Tax, Gujranwala and others v. Super Asia Mohammad Din & Sons, 2006 CLD 244 at 252F&G Habib Bank Limited v. Sabcos (Pvt.) and PLD 1974 Supreme Court 134 at 138C Niaz Muhammad Khan v. Mian Fazl Raqib and unreported case law C.P No.2315 of 2018 Siraj Ahmed v. Election Commission of Pakistan and others [SHC], C.P No.4898 of 2018 at paragraphs 8 Muhammad Sharjeel v. Returning Officer PS 95 and another (SHC) and C.P No.4950 of 2018 at paragraph 8 and 9 Syed. Mahmood Saeed v . Returning Of ficer and another [SHC].
4. On the other hand, learned counsel for the respondent No.3 has argued that an exclusive bank account was not opened timely because respondent No.3 opened such bank account for election expenses in the Election, 2018, and was under a bona fide impression that same would serve the purpose and fulfill the requirement for the present election; that when he came to know about the an objection to it he opened bank account in Habib Metro Bank for this purpose and undertakes that all election expense would be transacted through the said account; that neither the petitioner nor any other voter of the constituency had raise objection at the time of scrutiny of nomination form before the returning officer for acceptanc e of form but at the later stage he has field appeal before the Election Tribunal; that the section 62(9)(d)(ii) of the Act has two parts and provide a mandato ry guide to Returning officer not to reject a nomination form on the ground of defect which is not of substantial nature; that through notification Election Commission has announced the election program and out of ten, nine has been completed and tenth is only day of election, let the chance may be given to the candidate to contest the election and on petty objection the voters of the constituency cannot be deprived to elect the man of their choice. He lastly prayed for dismissal of the instant petition. In support of his contention, he has relied upon the case laws reported in SBLR 2008 875 [SHC], 2004 CLC 1060 , PLD 2005 Supreme Court 52 , PLD 1989 Supreme Court 396 and 2003 MLD 222 .
5. Representative of Election Commission of Pakistan, submitted that objections raised by the petitioner are minor in nature and curable except the default of respondent No.3 to open an exclusive bank account for election expenses before the scrutiny date.
6. We have heard the learned counsel for the parties and perused the material available on record. It is borne out from the record that neither the petitioner , his election agents, the proposers and seconders and one other person authorized in his behalf has filed objection within the period specified by the Election Commission for the scrutiny of nomination paper of candidate/respondent No.3 contesting the election, under subsection (1) of section 62 of The Elections Act, 2017 hereinafter referred as an (Act) nor on the date for scrutiny of nomination papers by the returning officer. The nomination paper/form of respondent No.3 remained unchallenged before the Returning officer, who after going through the same announced his decision and accepted the nomination form of the respondent No.3. It is appropriate to reproduce the said order .
"Accepted as it fulfills all requirements of sections 60, 61 and 62 of The Elections Act, 2017"
7. The matter concerning the validity of nomination form/paper , the scrutiny of nomination form/paper of the candidate and decision of the Returning officer in respect of objection thereof is attended to in Section 62 of the Act, it is appropriate to reproduce the relevant section, which is as under;-
62. Scrutiny .---(1) Any voter of 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) The candidates, their election agents, the proposers and seconders and one other person authorized in this behalf by each candidate, and a voter who has filed an objection under sub-sectio n (1), may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all the nomination papers delivered to him under section 60.
(3) A voter who has filed an objection to the candidature of a candidate shall only attend the scrutiny of the nomination paper of that candidate.
(4) The Returning Officer shall, in the presence of the persons attending the scrutiny , examine the nomination papers and decide any objection raised by any such person to any candidature,.
(5) The Returning Officer may, for the purpose of scrutiny , require any, authority or organization, including a financial institution, to produce any docu ment or record or to furnish any information as may be necessary to determine facts relating to an objection to the candidate of a candidate.
(6) The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.
(7) The Returning Officer while scrutinizing nomination paper of a candidate, 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 by him under this section.
(8) The declaration submitted under subse ction (2) of section 60 shall only be questioned by the Returning Officer if there is tangible material to the contrary available on record.
(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) 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 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; or
(d) the signature of the proposer or the seconder is not genuine;
(i) The rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; or
(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.
(10) Notwithstanding anything contained in subsection (9), 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.
(11) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall in the case of rejection or objection to acceptance, record brief reasons for his decision.
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. The objection against the respondent No.3 was that at the time of filing of nomination papers he had not opened an exclusive bank account for the purposes of election expenses and given false declaration on oath that he has fulfilled the qualification specified in Articles 62 and 63 of the constitution. In the year 2018 the respondent No. 3 had opened his bank account for election expenses, after the death of the returned candidate the bye-election was announced and the respondent No.3 also filed his nomination form/paper and has given bank account for election expenses which he has already opened in the Year, 2018, under impression that the same would serve the purpose and fulfill the requirement for present election as and when he came to know of an objection to it, he opened the bank account in Habib Metro Bank for this purpose and undertakes that all election expenses could be transacted through the said account. From the perusal of declaration form which is available in the file at page No.51, it appears in Para 3 that "I, the above-mentioned candidate, declare that I have opened an exclusive Account No. 100907381 1004552 with MCB Sanghar Branch". Here, in this case, the petitioner had mentioned in his nomination form/paper the exclusive Bank account which he has opened in the year 2018 for election expenses under the impression that the same will serve the purpose of section 133 of the Act and subsequently he has rectified his mistake and opened a fresh Bank account for election expenses and provide the same to the Returning officer, who has accepted his nomination form. The case law relied upon the petitioner is distinguishable from the facts of the present case, in Constitutional Petition No. D-4950/2018 the petitioner has impugned/challenged the order (s) passed by Returning Officer and learned Election Tribunal; whereby , the nomination paper(s) for contesting General Elections was rejected. Further , the petitioner had also failed to mention the requisite exclusive bank account for the expenditure. But in this case, the respondent No.3 mentioned the exclusive bank account for the election expenditure in the nomination form/paper but due to bona fide mistake has mentioned the account opened by him for election expenses in the year, 2018 under the impression that the same will serve out the purpose . as required in Section 133 of the Act. More so, since objection was not filed/raised by the petitioner and another contesting candidate before the Returning Officer at the time of scrutiny of nomination paper of respondent No.3 and did not confront with him; when the respondent No.3 realized the mistake, he had opened a fresh exclusive bank account for election expenses and submitted before the Returning Officer. The Returning Officer accepted his nomination form as it fulfils the entire requirement(s) as provided under Sections 60, 61 and 62 of the Elections Act, 2017. So in our view substantial compliance has been made.
9. In so far the impugned orders challenged by the petitioner are concerned, the proceedings before Returning officer and Election Tribunal are summarily in nature. Further , the learned Counsel for respondent No.3 pointed out that the election program has been announced by the Election Commission of Pakistan in which the. respondent No.3 has completed nine stages now only one stage is the polling day which is scheduled on 16.02.2021. In the case of Election Commission of Pakistan v. Javeed Hashmi and others PLD 1989 Supreme Court 396 the Hon'ble Supreme Court of Pakistan has held that;- "The scheme of the electoral laws and conduct of election accordingly appears to be that any twitter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brough t up at an intermediate stage before any court as otherwise Article 225 of the Constitution would be deprived of its meaning and content."
10. The appeal was filed under Section 63 of Elections Act, 2017, clarifies that the Election Tribunal has been constituted for limited purpose in terms of Section 63 of Elections Act, 2017 and is not an Election Tribunal formed in terms of Section 140 of the Act. The difference is to be kept in mind, as any order of the Election Tribunal in respect of allegation and, acceptance of form paper cannot be equated with an order or decision/judgment of Election Tribunal constituted in terms of Section 140 of the Act, for deciding the election petition.
11. We have examined the orders passed by the forums below and find that the impugned orders do not call for any interference by this Court in the exercise of Constitutional jurisdiction. Conse quently , the instant Constitution Petition is dismissed along with the listed application.