MIRZA VIQAS RAUF, J. This appeal under Section 63 of the Elections Act, 2017 (hereinafter referred to as "Act, 2017") arises out of order dated 30th December, 2023, whereby the Returning Officer (hereinafter referred to as "R.O.") NA-50 Attock-II proceeded to reject the nomination of the appellant on the following grounds:- "As per letter No. 9885/Security/DPO dated 27.12.2023 received from the District Police Officer, Attock, Mst. Eman Waseem has been declared "Proclaimed Offender".
It is further added that as per Judgment Raees Gul Vs RO etc. CP No.(s) 87/2022 dated 12.05.2022.
Honorable Baluchistan High Court, quoted "it is settled principle of law that an proclaimed offender, who is fugitive of law has no right of audience", unless he surrenders himself before the court, while in case in hand till filing of the instant petition on the petitioner being fugitive of law in case FIR No.49 of 2000 levies station Jhal Magsi has not surrendered before any court of law, and, consequently has no right to contest the election"
In addition to mentioned above, the candidate, proposer and the Seconder were called to appear in person on scrutiny date but candidate, proposer and seconder did not appear before the undersigned on said date and time. Due to absence of candidate, proposer and seconder, the veracity of their signatures cannot be determined.
WHEREAS Mst. Eman Waseem is owner of land 311 Kanal 5 Marla but she did not deposit AIT in Government treasury and she herself acknowledged on affidavit submitted by the candidate as mentioned at Clause M of said affidavit."
2. Heard. Record perused.
3. In order to contest the upcoming election 2024 for the National Assembly Seat (NA-50 Attock-II), the appellant submitted her nomination paper before the "R.O.". The respondent No.2 being a voter member of the said constituency filed objection to the candidature of the appellant on the ground that signatures of her proposer namely Sajjad Haider Khan and seconder namely Muhammad Rafique Khan are forged, which should be verified and during scrutiny the "R.O." proceeded to reject the nomination paper of the appellant on the grounds mentioned hereinabove.
4. Before adjudging the validity of the objection or the propriety of the impugned order, it would be advantageous to first have an overview of the provisions of law prescribing disqualifications for membership of the Majlis-e-Shoora (Parliament). To this effect first of the series is Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as under:- "63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if--
(a) he is of unsound mind and has been so declared by a competent court; or
(b) he is an undischarged insolvent; or
(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or
(d) he holds an office of profit in the service of Pakistan other than an office declared by law not to disqualify its holder; or
(e) he is in the service of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest; or
(f) being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of 1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or
(g) he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or the integrity, or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has lapsed since his release; or
(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of five years has elapsed since his dismissal; or
(j) he has been removed or compulsorily retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct, unless a period of three years has elapsed since his removal or compulsory retirement; or
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service; or
(l) he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a cooperative society and Government, for the supply of goods to, or for the execution of any contract or for the performance of any service undertaken by, Government: Provided that the disqualification under this paragraph shall not apply to a person--
(i) where the share or interest in the contract devolves on him by inheritance or succession or as a legatee, executor or administrator, until the expiration of six months after it has so devolved on him;
(ii) where the contract has been entered into by or on behalf of a public company as defined in the Companies Ordinance, 1984 (XLVII of 1984), of which he is a shareholder but is not a director holding an office of profit under the company; or
(iii) where he is a member of a Hindu undivided family and the contract has been entered into by any other member of that family in the course of carrying on a separate business in which he has no share or interest; or Explanation.--In this Article "goods" does not include agricultural produce or commodity grown or produced by him or such goods as he is, under any directive of Government or any law for the time being in force, under a duty or obligation to supply; or
(m) he holds any office of profit in the service of Pakistan other than the following offices, namely : --
(i) an office which is not whole time office remunerated either by salary or by fee;
(ii) the office of Lumbardar, whether called by this or any other title;
(iii) the Qaumi Razakars;
(iv) any office the holder whereof, by virtue of such office, is liable to be called up for military training or military service under any law providing for the constitution or raising of a Force; or
(n) he has obtained a loan for an amount of two million rupees or more, from any bank, financial institution, cooperative society or cooperative body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date, or has got such loan written off; or
(o) he or his spouse or any of his dependents has defaulted in payment of government dues and utility expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees, for over six months, at the time of filing his nomination papers; or
(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 any law for the time being in force.
Explanation.-- For the purposes of this paragraph "law" shall not include an Ordinance promulgated under Article 89 or Article 128.
(2) If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall, unless he decides that no such question has arisen, refer the question to the Election Commission within thirty days and if he fails to do so within the aforesaid period it shall be deemed to have been referred to the Election Commission.
(3) The Election Commission shall decide the question within ninety days from its receipt or deemed to have been received and if it is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant."
Adverting to the grounds prevailed upon the "R.O." to reject the nomination of the appellant, it is observed that first ground was that the appellant is proclaimed offender as per report of the District Police Officer, Attock. It is manifestly clear that mere registration of a criminal case against a candidate or his purported abscondence would not impede as disqualification in his way to contest the election. Reliance in this respect can be placed on Sheikh MUHAMMAD AKRAM versus ABDUL GHAFOOR and 19 others (2016 SCMR 733).
5. So far failure by the appellant, her proposer and seconder to appear before the "R.O." is concerned, suffice to observe that Chapter V of the "Act, 2017" deals with the conduct of elections of the assemblies. Section 60 of the Act ibid provides the manner for nomination for election and in terms thereof any voter of a constituency, may propose or second the name of any qualified person to be a candidate for Member for that constituency. In terms whereof, the appellant submitted her nomination papers whereas Sajjad Haider Khan and Muhammad Rafique Khan stood her proposer and seconder, respectively. Section 62 of the "Act, 2017" provides the procedure for scrutiny of nomination papers and in terms of sub-section (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 "R.O." within the period specified by the Election Commission for the scrutiny of nomination papers of candidates contesting election to an Assembly. The respondent No.2 being the voter of the constituency filed the objections mentioned hereinabove.
6. There is no cavil that in terms of the "Act, 2017", the "R.O." is empowered to reject the nomination papers of a candidate if he is satisfied that the signature of the proposer or the seconder is not genuine. Sub-section (2) of Section 62 of the "Act, 2017" ordains that 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-section (1), may attend the scrutiny of nomination papers, and the "R.O." shall give them reasonable opportunity for examining all the nomination papers delivered to him under section 60. From the whole reading of Section 62, one thing becomes crystal clear that the presence of the proposer and seconder before the "R.O." is not mandatory, rather it is optional for them to be present at the time of scrutiny of the nomination papers.
7. Sub-section (9) of Section 62 of the "Act, 2017" has direct relevance to the proposition in hand. For ready reference and convenience same is reproduced below:- "62. Scrutiny.
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(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: Provided that--
(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. ; ; ; (Underlining supplied for emphasis)
It is thus manifestly clear from the above that if there arises a question about the genuineness of the signature of the proposer or the seconder before the "R.O.", he has to conduct a summary enquiry for his satisfaction. Admittedly no such enquiry was ever conducted rather the "R.O." proceeded to reject the nomination papers only on the ground that the candidate, proposer and seconder are not present which lends support to the objection of the objector that their signatures are not genuine. The "R.O." in the circumstances should have employed necessary measures for the production of the proposer and seconder if he was desirous to satisfy himself about the genuineness of their signatures. "R.O." was not supposed to carry the objection filed by the objector and pave way for him to knockout the candidate at his whims and capricious without conducting any enquiry. Reference to this effect can be made to MUKHTAR AHMAD versus RETURNING OFFICER and others (2017 MLD 282) where in similar facts and circumstances it is held as under:- "7. Plain reading of the above rule 3(d) would show that the Returning Officer is empowered to reject nomination paper of a candidate if he is satisfied that signature or thumb impression of the proposer or the seconder is not genuine. This means that if an objection is raised that the signature or thumb impression of the proposer or the seconder is not genuine the Returning Officer should satisfy him with regard to genuineness of the allegation and in this regard he can conduct a summary inquiry. The impugned order does not reveal that any such inquiry was conducted. So it cannot be inferred as to from which source the Returning Officer satisfied him that the signatures of the proposer and seconder were bogus. Once the law has provided a summary inquiry it was incumbent upon the Returning Officer to hold a (summary) inquiry to satisfy his conscience about genuineness of the signatures especially keeping in view peculiar facts and circumstances of this case and keeping in view earlier allegation by the petitioner that his proposer and seconder had been abducted and later that they have been won over by his rival candidates. In view of well established principle reiterated by the Hon'ble Supreme Court in Mst. Aziz Begum v. Federation of Pakistan and others (PLD 1990 SC 899) that the "law may be blind but the Judge is not", the most significant fact of this case which must not lose sight is that most of the population in rural areas of our country comprise of rustic humble families living under the influence of their masters/land lords and become easy prey and surrender to the pressure of the landlords. In view of the fact that after submission of a nomination paper the same cannot be changed at the time of scrutiny it may become very easy for a rival to defeat a candidate on technical ground by winning over his proposer or seconder because at this stage the candidate becomes helpless. Perhaps in order to cope with such situation, the legislature empowered a Returning Officer to conduct summary inquiry.
Article 84 of the Qanun-e-Shahadat provides a mechanism for verification of signatures/thumb impressions in summary proceedings/inquiry. It says as under: "84. Comparison of signature, writing or seal with others admitted or proved.---(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
(3) This Article applies also, with any necessary modifications, to finger-impressions.
Bare reading of this Article would make it clear that in order to ascertain the genuineness or otherwise of the signatures, the Courts have been empowered to make the comparison of the signatures, words or figures written over the disputed documents with those of the admitted one and to exercise their judgments of resemblance of admitted writing on record. It appears that this provision of law escaped notice of consideration by the respondents which could be very helpful in checking the genuineness of signatures of the proposer and seconder in summary proceedings.
While dealing with Article 84 of Qanun-e-Shahadat Order, 1984 the Hon'ble Supreme Court in the case titled Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCMR 85) held as under:-- "It is settled principle that in certain eventualities Court enjoins plenary powers to itself compare the signature along with other relevant material to effectively resolve the main controversy."
Under the aforementioned provision of law empowering the court to itself compare the signatures and the dictum laid down by the apex Court in this regard, I have carefully gone through the process. Both the proposer and the seconder are present in person. With the assistance of learned counsel for the parties, both Muhammad Maqbool, proposer/ respondent No. 3 and Irfan Ali, seconder/respondent No. 4 have been directed to put their signatures and thumb impressions on the plain white papers given to them. Muhammad Maqbool respondent has put his thumb marks on the given paper whereas Irfan Ali respondent has put his thumb mark and also signatures on the other paper given to him. I have put both these papers carrying signatures/thumb mark and the disputed one on the nomination paper, in juxtaposition and found after comparison that these thumb marks/signatures have more than 95% similarity and resemblance. Even learned counsel for the private respondents could not deny this resemblance. These papers have been Marked-A, B & C, signed by me and placed on the file. In this view of the matter possibility of respondents Nos. 3 and 4 having been won over by the rival candidate of the petitioner after putting their signatures/thumb marks on nomination paper, cannot be ruled out."
Reference to the above effect can also be made to ABDUL KARIM versus THE RETURNING OFFICER/THE ASSISTANT COMMISSIONER, HUB AT HUB and another (PLD 1999 Quetta 78).
8. Even otherwise apparently the question with regard to the mgenuineness or otherwise of the signatures/handwriting of a person ordinarily cannot be agitated by a third person having no acquaintance with the signature/handwriting of such person. The objector has failed to demonstrate as to what made him to believe that the signatures of proposer and seconder are not genuine. It appears that the objection was raised by respondent No.2 being hand in gloves with the adversaries of the appellant to craft a ground for rejection of her nomination papers. In case of a question about genuineness of signatures of a proposer or seconder they are the most relevant persons who can blow the whistle but neither the proposer nor the seconder has complained till date that they have not consented for such status.
9. There is yet another important aspect that the appellant has expressed serious complaint against the highhandedness of the law enforcement agencies to stop her at any cost to contest the election due to political rivalry. Learned counsel for the appellant though during hearing made an offer that the appellant can produce the proposer and seconder if they be given necessary protection to approach the Tribunal but learned Law Officer when confronted has expressed his inability to this effect, which tentatively justifies the apprehension expressed by the appellant that if the proposer and seconder emerge in the scene, they shall be dealt with illegally and unlawfully.
10. Adverting to the question of default in payment of Agricultural Income Tax (AIT) in government treasury is concerned, it is observed that to this effect neither any assessment was made nor the appellant was served with any notice to pay the amount in question, which even otherwise is undetermined so far. In the case of NADEEM SARWAR versus ELECTION COMMISSION OF PAKISTAN through Election Commissioner, Punjab and 3 others (2013 CLC 1481) a similar question came under consideration before a Larger Bench and it was ruled as under :- "8. Perusal of nomination paper indicates that there are four columns in item 14 of the nomination paper which is as under:--- Tax YearLand HoldingAgricultural IncomeTotal Agricultural Income Tax Paid The third and fourth columns are of significance. Third column requires the candidate to disclose his agricultural income. The word "agricultural income" and "total agricultural income" have been separately defined in the Act in the following manner:--- 2(1)(a) any rent or revenue derived from land which is situated in the Punjab and is used for agricultural purposes; 2(1)(k) "total agricultural income' means the total amount of agricultural income, computed in the matter laid down in this Act.
9. The significance of the difference in the above provisions is highlighted in section 3(3) of the Act which provides that agricultural income tax is to be charged on "total agriculture income" and not on agriculture income. This legal position is also admitted by the respondents. Column three of the nomination paper is ambiguous and does not clearly show whether the candidate is to declare his "agricultural income" or "total agricultural income".
10. Sections 3(3), 4 and 4-A of the Act read with Rules 5, 9, 10, 12, 13 of the Rules, 2001 reveal that the assessee has to work out the "total agricultural income" and then submit his return which has to be duly assessed by the Collector. It is after assessment of the return that the liability of an assessee can be determined. Hence the question of default, if any, can only arise post assessment.
11. The other dimension is where an assessee fails to furnish his return. Under section 8 of the Act the assessee is slapped with a penalty. Penalty can also be imposed for concealments of cultivated land or default in payment of tax under sections 9 and 10 of the Act. These penalties can only be imposed after a reasonable opportunity is granted to the assessee of being heard. In the present case, neither the assessm ent has taken place nor any penalty for lack of furnishing a return, has been imposed on the petitioners.
12. In this background, we called Member (Taxation), Board of Revenue. He stated that the Agricultural Tax even though levied under the Act, has not taken root on an operational level due to lack of proper infrastructure. On a question posed by the Court he submitted that there have been no assessm ents of agricultural tax in Punjab according to his record and same is the case with the imposition of penalties under the Act. The statement made by the Member (Taxation) made it clear that the Agricultural Tax has not been operationalized in the field and is presently source than a still-born tax which needs to be properly enforced. The Member failed to show any record of recovery maintained under section 6 of the Act read with Rule 19 of the Rules to establish that the agricultural tax is being collected under the Act. With this ground reality, it cannot be held by this Court with any level of certainty that the petitioners had committed default in the payment of agricultural income tax.
13. Even for the sake of arguments, if there was ambiguity in the interpretation of the third column, benefit of the same is to go to the candidate-assessee, whose fundamental right to contest election under Article 17(2) of the Constitution is at stake (reliance is placed on, Workers' Party Pakistan through Akhtar Hussain, Advocate-General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) and just on the basis of the technicalities, he cannot be thrown out of the election process.
14. This Court is hopeful that in future, the Election Commission of Pakistan will establish better co- operation with the Revenue authorities and reframe Column No.14 soliciting correct information from a prospective candidate in accordance with the Act."
11. It appears that the "R.O." while rejecting the nomination of the appellant rested his findings on judgment from the Balochistan High Court passed in CP No.87 of 2022 on 12th May, 2022, perusal whereof reveals that the judgment is relatable to candidate contesting the local government elections under the Balochistan Local Government Act, 2010 specifying different disqualifications for the candidates contesting such election. Facts of the said case and even principles laid down therein are thus clearly distinguishable.
12. For the foregoing reasons, impugned order cannot sustain, resultantly while allowing this appeal, order of the "R.O." dated 30th December, 2023 is set aside, as a sequel whereof, nomination papers of the appellant shall stand accepted. Office to transmit the copy of this judgment to the "R.O." concerned for its compliance in terms of Rule 54(5) of the Election Rules, 2017.