RASAAL HASAN SYED, J. This appeal under section 63 of the Election Act, 2017 (the "Act" ) calls into question order dated 11.6.2022 of the District Election Commissioner/Returning Officer PP-217, Multan-VII (respondent No.2) whereby the objection of the appellant against the candidature of respondent No.1 to contest bye-elections for the Punjab Assembly from the noted constituency was rejected and the nomination papers of respondent No.1 were accepted.
2. The main objections as pressed on behalf of the appellant by his learned counsel for assailing the qualification of respondent No. 1 and acceptance of his nomination papers by respondent No.2 may be boiled down to two. The first one is that respondent No.1 has been established as a defector by order dated 20.5.2022 of a three-member bench of the Election Commission of Pakistan and that respondent No.2 failed to consider the true import of the said order as well as order dated 17.5.2022 of the honourable Supreme Court of Pakistan in Reference No.2 of 2022 as also the judgments in Pir Sabir Shah v. Shad Muhammd Khan, Member Provincial Assembly , N.W.F.P. and another (PLD 1995 SC 66) and Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others (PLD 1998 SC 1263 ) whereby having indulged in defection respondent No.1 could no longer be received as "righteous" or "truthful" in terms of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution" ) and that he was also guilty of "immoral practices" contrary to injunctions of Islam that attracted the bar under Article 62(1)(d) of the Constitution. The second objection is based on the plea of dishonest concealment of true age and use of two identities simultaneously when respondent No.1 submitted the nomination papers for General Elections 2018 wherein it was concealed that he was underage (i.e. less than 25- years) at the time of filing his nomination papers and that the old CNIC was used for many years prior to 2018 wherein the date of birth of the respondent was recorded as 28.1.1994 whereas a new CNIC was got issued from NADRA on 30.5.2017 i.e. a year before holding of the General Elections 2018 reflecting his date of birth as 01.2.1993 and that by virtue of this act he stood disqualified and his nomination papers were accordingly liable to be rejected. Learned counsel for the appellant to substantiate this objection, which otherwise being based on determination of factual controversy which cannot possibly be safely resolved in summary jurisdiction under section 63(2) of the Act, has relied on order dated 01.10.2018 of the Election Commission of Pakistan and taken the Tribunal through portions of that order in this context. Submits that the Returning Officer while dealing with the objections filed by the appellant has passed a perfunctory order without according adequate opportunity of hearing and that rejection of objection on both these grounds by respondent No.2 by the impugned order was unjustified.
3. Learned counsel for respondent No.1 has also been heard who has supported the order and submits that the objections were mala fide and designed to thwart the ability of people to choose their representatives through the mechanism of election which is the lifeline of representative democracy .
4. The honourable Supreme Court of Pakistan has most recently considered the question of defection in Order dated 17.5.2022 in Reference No.1 of 2022, C.P.No.2 of 2022 and C.P. No.9 of 2022 which is pointedly directed at authoritative interpretation of Article 63A of the Constitution. This provision, of course, deals specifically with defection from political party which is the substance of the objection at hand. The honourable Supreme Court while turning its gaze upon the phenomenon of defection duly characterizes it to be one of the most pernicious ways in which political parties can be destabilized and finds the collectivity of the political party to trump over the rights of an individual in analysis of fundamental rights. In returning on the specific question of whether declaration of defection in terms of Article 63A of the Constitution can be a disqualification under Article 63 thereof, however , it has been held as follows: "4. As regards the third question, it is our view that a declaration of defection in terms of Article 63A can be disqualification under Article 63, in terms of an appropriate law made by Parliament under para (p) of clause (1) thereof. While it is for Parliament to enact such legislation it must be said that it is high time that such law is placed on the statute book . If such legislation is enacted it shou ld not amount to a mere slap on the wrist but must be a robust and proportionate response to the evil that it is designed to thwart and eradicate. The question stands answered accordingly ."
It is also instructive to reproduce Article 63(1)(p) of the Constitution for better contextualization of the discussion: "63(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Majlis- e-Shoora (Parliament), If - "
(which, of course, by virtue of Article 113 of the Constitution will be read as reference to "Provincial Assembly" for present purposes)
"...
(p) he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under the law for the time being in force."
5. From its direct enunciation of legal repercussions of defection in terms of disqualification for an individual from being elected or chosen as a member of the Provincial Assembly by the Supreme Court of Pakistan, as set down in its authoritative interpretation of the spec ific Constitutional provision on the subje ct of defection by Order dated 17.5.2022 supra, it may be understood that the legislative organ itself must structure the field by enactment of law on the statute book that provides for disqualification for defecting individual who by his action undermines political party' s collectivity which is held to be a higher manifestation of Article 17 of the Constitution and which should be commensurate with its gravity and not amount to mere slap on the wrist if so enacted; but must be robust and proportionate response to the evil it is designed to thwart and eradicate. By careful reading of this Order it is clear that as things stand the legal consequences of defection, although characterized in most negative terms, could not translate into the formal consequence of disqualification till the legislature carries out enactment of a specific law that shall be expected to be more than a slap on the wrist in being carved out. The objection of the appellant that declaration of defection shall ipso facto operate as disqualification from contesting the oncoming bye-election of the Provincial Assembly in light of the Order of the honourable Supreme Court of Pakistan could not be imposed at this point of time as to structure such disqualification and its consequences for the defecting individual has been held to fall to the authority of the legislative organ of the state by the highest Court of the land.
6. The judgments referred to by the learned counsel for the appellant including Pir Sabir Shah case and Wukala Mahaz case read in this context may not be understood to entail disqualification as an automatic legal trigger of declaration of defection although deprecated in strong political and moral terms. In fact the ultimate paragraph of the precedent highlighted by learned counsel in Pir Sabir Shah case on holding the act of defection to be morally reprehensible requires the defector to quit and seek fresh mandate as the more honourable course in case the individual is unable to subscribe to party programme and policy whereas in Wukala Mahaz case while making strong condemnation of defection being immoral does not provide future disqualification as a legal entailment. The objection of the appellant that defection while being encapsulated and founde d in specific provisions of the Constitution and dealt with as such by the honourable Supreme Court qua its legal consequences shall yet be transplantable as a separate and automa tic instance of disqualification under Article 62(1)(f) and Article 62(1)(d) of the Constitution appears to be without warrant. The objection, as such, is held to be not maintainable.
7. The second objection of the appellant is based on the factual controversy of respondent No.1 having used two identity cards that also involved passport and tax return entries; with the date of birth being mentioned in the later identity card to be such that it prematu rely qualified him to be eligible for the General Elections 2018. For consideration of the matter in summary jurisdiction it required determination by a court of competent jurisdiction by inquiry through trial and production of evidence. The appellant' s learned counsel has relied on the decision of the Election Commission of Pakistan dated 01.10.2018 in cases Nos. 30(26)/2018 and 1(19)/2018 whereby his poll was avoided by the Election Commission from which order the counsel had read chapter and verse. The propriety of giving this order operative role in determination of the factual controversy underlying the allegations must, however , be considered by "Muhammad Salman v. Naveed Anjum and others" (2021 SCMR 1675 ) on appeal under section 9(5) of the Act against order dated 01.10.2018 of the Election Commission of Pakistan supra wherein by a majority of two to one this order was quashed as being beyond and without jurisdiction and declared to be of no legal effect. Reliance upon a non-existent order would hardly be of any value as a valid declaration qua the respondent' s conduct leaving the appellant with no preceding authoritative declaration that could enable this averment to be processed with any reliability which is neither appropriate nor possible in the summary jurisdiction of this Tribunal under section 63(2) of the Act. Interference on this score also must therefore be declined.
8. As a result of the above this appeal fails and is accordingly dismissed.