SHAKEEL AHMAD, J. The petitioner, Ali Amin Khan Gandapur, who is contesting election for the seat of National Assembly of Pakistan from the constituency NA-44, D.I.Khan-I, being aggrieved by the Form-33, whereby and whereunder, his election Symbol was changed by the Returning Officer from "Queen" to "Radio", has preferred this petition.
2. The facts narrated in brief, necessary for disposal of this writ petition, are that, petitioner is one of the persons, who had submitted his nomination papers for the upcoming election to the National Assembly of Pakistan from NA-44, D.I.Khan-I. The Returning Officer of that constituency allocated/allotted the symbol of "Queen" to him on 14.01.2024 in terms of Rule 56(2) of the Elections Rules, 2017, as is reflected from Form-33. In pursuance thereof, he published pamphlet etc. under the symbol "Queen", then again on 14.01.2024, the Returning Officer of the said constituency issued antedated Form-33, whereby and whereunder, his election symbol was changed from "Queen" to "Radio" of his own, that too, without assigning any reason or legal justification, which necessitated him to file the instant petition.
3. It is the contention of the learned counsel for the petitioner that the manner in which the election symbol of the petitioner has been changed from "Queen" to "Radio" by the Returning Officer of NA- 44, D.I.Khan-I, itself speaks of mala-fide. He next contended that once an election symbol is allotted on the choice of a candidate by the Returning Officer, it cannot be changed under any circumstances, subsequently, and if such change in election symbol is brought by the Returning Officer, that would be illegal and in conflict with the provisions of Section 67 of the Elections Act, 2017 (hereinafter referred to as "the Act of 2017") read with Rule 56 of the Elections Rules, 2017, therefore, the impugned Form-33, reflecting the change of symbol of the petitioner from "Queen" to "Radio" is factually and legally not maintainable in the eye of law and the same is liable to be set aside.
4. The learned counsel appearing on behalf of Election Commission of Pakistan frankly conceded that the Returning Officer has no power under the law to change the symbol, once allotted to a candidate. However, he was of the view that the symbols allotted to the candidates have been sent to Printing Corporation of Pakistan for depiction on the ballot papers and, at this stage, it would not be feasible to make any interference, on this he was asked to inquire from Election Commission of Pakistan as to whether ballot papers of the constituency NA-44, D.I.Khan-I have been printed or not? After collecting the information from Election Commission of Pakistan, he stated at the bar that the ballot papers of the said constituency have not yet been printed and requested to send the matter to Election Commission of Pakistan for an appropriate decision in accordance with law.
5. We have given careful consideration to the submissions made by the learned counsel for the parties and perused the material on record.
6. It is not in dispute that petitioner is one of the persons, who had submitted his nomination papers to contest upcoming election for the seat of National Assembly from NA-44, D.I.Khan-I. After following all legal and codal formalities, he was declared as validly nominated candidate for the said seat. It is also not disputed that on his choice, he was allotted/allocated symbol of "Queen" by the Returning Officer of NA-44, D.I.Khan-I in terms of Section 67(3) of the Act of 2017. There is no rival claimant of the symbol of "Queen" in the said constituency. In pursuance thereof, Form-33 was also issued, wherein his name is reflected at Serial No.12 and at Column No.4, his allotted symbol was shown as "Queen". However, the reasons best-known to the Returning Officer of that constituency, the said allotted symbol of the petitioner was changed to "Radio", that too, without any legal justification, which clearly offends the provisions of Section 67 of the Act of 2017 read with Rule 56 of the Elections Rules, 2017.
7. We are of the considered view that once symbol is allotted/allocated to a candidate on his choice, the Returning Officer becomes functus officio and he has no authority to change it with another symbol and any change or alteration of symbol, if made subsequently would be illegal and violative of the Act of 2017 and Rules framed thereunder and the same is liable to be struck down.
8. Before parting with the judgement, it is observed that Article 1 of the Constitution of Islamic Republic of Pakistan, 1973, declares Pakistan to be an Islamic Republic. The people of Pakistan have relentlessly struggled for democracy and for attaining the ideals of a Federal, Islamic, democratic, parliamentary and modern progressive welfare State, wherein the rights of the citizens are secured and the Provinces have equitable share in the Federation. Democracy is the basic feature of our Constitution. Democracy is sustained by free and fair elections. Only free and fair elections to the various legislative bodies in the country can guarantee the growth of democratic policy. It is a cherished privilege of a citizen to participate in the electoral processes, which places persons in the seats of power. At a general election, an electorate of millions go to the polls to elect members for the National/Provincial Assemblies. In the case reported as "N. P. Ponnuswami Vs. The Returning Officer, 1 Namakkal Constituency" (AIR 1952 SC 64 at 71), the Supreme Court of India held that; "The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitation imposed by it."
In the case reported as "Jumuna Prasad Mukhariya and others vs Lachhi Ram and others" (AIR 1954 SC 686), it was observed as under:- "The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute, the fundamental right has no bearing on a right like this created by statute."
In the case reported as "Jyoti Basu & others vs Debi Ghosal & other" (AIR 1982 SC 983), it was held that:- "A right to elect, fundamental though it is to democracy, is, anomalously neither a fundamental right nor a common Law Right. It is pure and simple, statutory right. So is the right to be elected, and the right to dispute an election. Outside of statute, there is no right to elect, creations they are, and therefore, subject to statutory limitations."
9. In order to ensure free, fair and impartial elections, the Constitution establishes the Election Commission, a body autonomous in characteristic and insulated from political pressure or executive influence. Care has been taken to ensure that the Commission functions as an independent agency free from external pressures from the executive of the country. Pakistan is a country which consists of millions of voters, although they are quite conscious of their duties.
Politically, but, unfortunately, large parentage of them are still illiterate. Hence, there is a need for election symbol to denote the candidates who contest election so the illiterate voters may cast their votes in secrecy in favour of the candidate of their choice by identifying them with the help of symbol allocated to the candidates at their choice, printed on the ballot papers against their names, for this very reason, the Returning Officers was not empowered to change election symbol, once allotted by him, particularly, when symbol was allotted on the choice of a candidate, in the absence of any rival claimant of the allotted symbol to any candidate.
10. In the result, this writ petition is admitted and allowed by setting aside the impugned Form-33, whereby and whereunder, the election symbol of the petitioner was changed from "Queen" to "Radio" by declaring the said act of the Returning Officer of NA-44, D.I.Khan-I as illegal, without lawful authority, without jurisdiction, mala-fide, in conflict with the provisions of Section 67 of the Act of 2017 read with Rule 56 of the Elections Rules, 2017, therefore, the same is laid to eternal peace, directing the Returning Officer of NA-44, D.I.Khan-I to issue the symbol of "Queen" to the petitioner earlier allotted/allocated to him on 14.01.2024 and proceed with the matter in accordance with law.
No order as to costs.
11. These are the detailed reasons of our short order of even date.