ALI BAQAR NAJAFI, J. Through this Constitutional petition under Article 199 of the Constitution of Islamic of Pakistan, 1973 petitioner/objector has challenged the order dated 09.01.2024 passed by the learned Election Tribunal whereby the appeal filed by respondent No. 1 against rejection of his nomination papers was allowed.
2. The facts of the case are that respondent No.1 filed his nomination papers for contesting the elections for the constituency of PP 59 Gujranwala in which the petitioner filed objection. After the process of scrutiny, the nomination papers of respondent No.1 were rejected by the Returning Officer vide order dated 30.12.2023, which is reproduced as under: "In response to public notice dated 19-12-2023 Mr. Muhammad Nasir Cheema has filed his nomination papers to undersigned through his authorized representative Mr. Nadeem Ashraf Khokhar on 22.12.2023.
Meanwhile the particulars of the candidate had been shared with Election Commission online facilitation center for further Inquiry.
Scrutiny of nomination papers was conducted on 28.12.2023 as per the given schedule. During the process of scrutiny, objections raised by the applicant were examined in the light of the available records/ documents. Moreover, a hearing notice was served to the candidate to provide a fair opportunity of hearing. The counsel of the candidate appeared before the undersigned on the date of scrutiny. He was heard at length and record was perused. He was given a reasonable opportunity of hearing to defend the allegation leveled against the candidate.
On the basis of data provided by ECP Online Facilitation Center and objections raised by the applicant, following discrepancies were found in the nomination papers of the said candidate as prescribed under the Elections Act 2017.
1. The candidate has deliberately concealed the details of weapons. He has Eleven (11) arms weapons in his possession, out of which 8 Non-Prohibited Bore (NPB) Arms Weapons were issued by home department, Government of Punjab and rest were issued by Ministry of Interior Islamabad.
He has not mentioned the details of weapons in his nomination papers.
2. As per the letter PP-59-0010/No. BCPD/CPU-01/122/34101-9497912-5/2023 dated 24-12-2023 of State Bank of Pakistan, he owned a company named Ittefaq Rice Mills which is defaulter of 48.568 million rupees of Albaraqa Islamic Bank.
3. On the perusal of record there is a discrepancy in land holding and its income of years 2020- 2021, 2021-2022, 2022-2023.
Keeping in view all above, I Touseef Hassan, Returning Officer PP. 59 Gujraranwala, after the perusal of record available, hereby reject nomination papers of Mr. Muhammad Nasir Cheema candidate under sections 62, 112 and 173 of Elections Act 2017."
3. However, the appeal filed by respondent No.1 was allowed by the learned Election Tribunal vide judgment dated 09.01.2024. Paras Nos. 4 to 8 of the order is reproduced as under: "4. Arguments have been heard. Record produced by the Returning Officer has been perused.
5. As regards the first objection, it is case of the appellant that he did not conceal any document regarding weapons and all the documents were attached with the nomination papers, however, the same were misplaced due to fault on the part of the Returning Officer. It is further claimed that copies of all concerned licences are attached to the titled appeal.
In somewhat similar situation it has been held by this Tribunal while allowing Election Appeal No.01 of 2024 that since the error upon which the said ground for rejection of nomination papers has been structured, admittedly is not of substantial, nature and the Returning Officer should have acceded to the request made on behalf of the appellant for remedying the said defect. While holding so, reference has been made to the case of Ch. Muhammad Ashraf v. Malik Muhammad Muzaffar Khan and others (2022 CLC 2045) wherein it has been held us under:- "Plain reading of above said sanction reveals in unequivocal terms that 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.
Therefore, the appellant cannot be disfranchised on the basis of said objection.
6. As far as second abjection is concerned, it is case of the appellant that he is not owner of Ittefaq Rice Mills as is reflected from partnership deed 14.09.2005 between Jamal Nasir Cheema, Akhtar Jameel and Mst. Sabeeri Naveed, available on the file. It is also claimed that in a suit filed by Al- Baraka Bank (Pakistan) Limited against M/s Ittefaq Rice Mills, etc. before Lahore High Court, Lahore, on 04.12.2023 a copy of settlement agreement dated 14.07.2023 was produced on the basis of which decree was passed. The said order is also annexed with the titled appeal. It is further contended that according to a letter dated 27.12.2023 issued by the Al-Baraka Bank to Ittefaq Rice Mills, available on the file; the due date of requisite liability has been extended to March, 2025, The said documents prima facie do not support the objection raised by the Returning Officer and at this stage of summary proceedings it cannot be determined that the appellant has any concern with the said Rice Mills or anything is liable against him in that regard. Thus, the said objection is not sustainable.
12. So far as the third objection is concerned, the alleged discrepancies in land holding and its income have not been specifically pointed out in the impugned order. Even otherwise, at this stage of summary proceedings the said practice cannot be undertaken rather the same is a subject matter of post-election proceedings. The said objection is also not sustainable.
13. In view of the foregoing, this appeal is allowed and impugned order dated 30.12.2023 of the Returning Officer is set aside. Consequently, the nomination papers of the appellant stands accepted and his name shall be duly reflected in the list of validly nominated candidates for PP-59, Gujranwala-I for the (General Elections, 2024)."
3. (sic) After hearing the learned counsel for the petitioner, learned counsel for the ECP assisted by the ECP officials and perusing the files, it is straightway observed that the learned appellate tribunal has rightly held that the non-disclosure of the licensed weapons of both prohibited as well as non-prohibited bores, is not an omission of a substantial nature as the official record duly certifies the existence of this fact. It might be an overlook as held by the appellate tribunal. Besides, a settlement agreement admittedly reached in this Court on 04.12.2023 whereby the date of discharge of the liability has been extended to March, 2025. The third objection was repelled by observing that discrepancies in land holding and income cannot be ascertained with expenditure in the summary proceedings, and therefore, can be agitated in post-election scenario.
4. In this view of the matter, this writ petition has been found meritless and is, therefore, dismissed.