SAHIBZADA ASADULLAH, J. Hina Bibi, the petitioner herein, through the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, "the Constitution" has prayed that:-
(a) The impugned order dated 17.01.2024 of the Election Appellate Tribunal may kindly be set aside/cancelled and may be declared against the Elections Act, 2017.
(b) The respondents may kindly be directed to maintain the necessary action in the nomination form of the petitioner which was made by the respondents as per interim order of the court, Or
(c) The second nomination form filed by the petitioner may kindly be accepted and declared valid being filed within time as per provisions of section 57(2)(a) of the Elections Act, 2017.
2. Crux of the petitioner's case is that she was listed at serial No.3 of the list, issued by the Jamiat Ulama-e-Islam Pakistan "JUI" against the seats, reserved for women, in National Assembly "NA", accordingly, after announcement of the election schedule by the Election Commission of Pakistan "ECP", she tiled her nomination papers on 21.12.2023 as a candidate of "JUI" against the seat, reserved for women, before the Returning Officer, but, inadvertently, in the nomination papers for the word "National Assembly", the word "Provisional Assembly", was mentioned in the nomination papers, subsequently, when she came to know about the mistake, filed an application for its correction, followed by filing fresh nomination papers on 26.12.2023 as a candidate of "JUI" against seats, reserved for women in National Assembly, but the same were returned on 28.12.2023, against which she filed a writ petition No. 6258-P/2023, which was, later on, converted to an Election Appeal No. 188-P/2024, which too was dismissed by the Election Appellate Tribunal, vide order dated 17.01.2024, hence, the instant writ petition.
3. The learned counsel for the petitioner alongwith the learned counsel representing the Election Commission of Pakistan were heard at length and with their valuable assistance the available record scanned through.
4. The record tells that the petitioner submitted her nomination paper before the Returning Officer, notified for the Provincial Assembly, as the petitioner like other candidates applied for the same, as by that time the priority list was not issued, so she while filling her nomination form opted for the Provincial Assembly and as such the nomination form clearly mentions, PK-17 Dir Lower. Not only this but rest of the documents attached with the form leave no ambiguity that the petitioner applied for the seat in the Provincial Assembly and as such the affidavit submitted alongwith the requisite documents contains the details regarding her option for the seat reserved in the Provincial Assembly and she also deposited the requisite fee for the purpose. The record further tells that under section 61 of the Elections Act, 2017, the term deposits has been mentioned and the section leaves no ambiguity regarding the amount to be submitted for the Provincial Assembly as well as for the National Assembly. As the petitioner while submitting the amount / fee instead of Rs.
30000/- she deposited Rs. 20000/- the same is the amount which is to be deposited by a candidate who wishes to contest election for the seat of the Provincial Assembly. As it is evident from the record that it was the petitioner who submitted her nomination form before the Returning Officer, notified for the Provincial Assembly, so under all circumstances the intent and purpose behind was that the petitioner wished for the seat in the Provincial Assembly. True that when the priority list was issued it was then, when the petitioner realized the blunder and as such she wanted the rectification of the same, but by then the time had come to an end and even the Returning Officer notified for the Provincial Assembly was incompetent to make correction in the nomination form and even he was lacking the jurisdiction to rectify the same and to transmit the sane to the Returning Officer notified for the women reserved seats' in the National Assembly. The situation brought the petitioner in a fix and by then she could not decide as what to do and what not. It is evident from the record that despite efforts the Returning Officer dealing with the Provincial Assembly could not be convinced and as such without waiting for any order from the Returning Officer the petitioner rushed to this Court and submitted writ petition. The record tells that though initially the writ petition was entertained and that this court was pleased to issue certain directions, while passing an interim order in favour of the petitioner and as such, the directions of this Court prevailed with the returning Officer dealing with seat for women at the National Assembly, that her name was placed in the list of validly nominated candidates.
5. It is interesting to note that when the writ petition of petitioner came for final adjudication, this Court confronted the learned counsel for the petitioner as to whether the matter was agitated before the Election Appellate Tribunal, to which he answered in negative. As under the Act, the petitioner was to approach this Court against an order passed by the Election Appellate Tribunal, but as no appeal was filed before the Election Appellate Tribunal, so this Court on the request of the learned counsel for the petitioner was pleased to treat the same as an appeal and the matter was remitted back to the worthy Election Appellate Tribunal for adjudication of the same on merits. it is pertinent to mention that the petitioner also submitted an application before the Retuning Officer notified for seats reserved for women in the National Assembly but the application when taken into consideration, was received to the concerned Returning Officer on 27.12.2023, much after the final date fixed for the scrutiny of the nomination papers. As on one hand the approach of the petitioner for the redressal of her grievance before the Returning Officer was beyond the allotted time, whereas on the other the election appeal of the petitioner was turned down by the worthy Election Appellate Tribunal vide the impugned judgment.
6. The learned counsel for the petitioner wanted to convince that the petitioner has been punished for her no fault and that the mistake if, any, was bona fide, he further submitted that the petitioner hails from a far flung area and that she was alien to the process and that if she committed any mistake the same was bona fide and that the Returning Officers were not justified to knock out the petitioner on technical grounds. We are not convinced with what the learned counsel for the petitioner submitted, as on one hand the petitioner by herself is an advocate, practicing law whereas, her brother who put his appearance before the court is also an advocate, so much so, the father of the petitioner who also addressed the court, is a qualified person. When such is the state of affairs then this court is not reluctant in holding that the petitioner and all related had the requisite knowledge regarding the filling and submission of the nomination papers. Even otherwise, if the submissions of the learned counsel for the petitioner are taken into consideration, whether the same would persuade this court to adopt a process which is alien to the law on the subject and for which no specific Mechanism has been provided under the Act. We are impressed with the status of the petitioner, being a woman, but we cannot stretch our discretion to an extent which is not permitted by the law and for which this court is lacking the competence. There is no ambiguity regarding the requirements for filing and filling the nomination papers for the Provincial Assembly and that for the seats reserved for women in the National Assembly. As the requisite formalities, which the petitioner fulfilled, were purely, for the seat in the Provincial Assembly and so the sworn affidavit, so in our understanding the petitioner was confident regarding her option for the Provincial Assembly and that she validly submitted the same before the Returning. Officer nominated for the purpose. As the priority list was to determine the fate of the petitioner and when the same was issued surprisingly, the name of the petitioner figured for the seats reserved for women in the National Assembly and as such her nomination form with the Returning Officer for Provincial Assembly, was of no utility. The petitioner struggled hard to convince the Returning Officer for making correction and rectification, but she failed, even if she would have persuaded the Returning Officer for making the necessary corrections, even he was not competent to allow and make the corrections, what to say of transmitting the same to the Retuning Officer, who was notified, for the seats reserved for women in the National Assembly. Under all circumstances the petitioner was from the Provincial Assembly and she was to approach the Returning Officer who was dealing with the National Assembly, but by then it was too late. We are to understand the matter in essence, so we went through the schedule issued by the ECP and we found that that the nomination papers were to be submitted from 20.12.2023 to 24.12.2023, which the petitioner could not and as such her prayer was hopelessly time barred. The learned counsel for the petitioner invited the attention of this Court to a notification issued by the ECP bearing No. F.2(3)/2023. Cord dated 15th December, 2023 where initially the dates for filing of nomination papers with the Retuning Officer by the candidates were given as 20.12.2023 to 22.12.2023. When subsequently a corrigendum in the shape of a second notification was issued, where the date was extended from 20.12.2023 to 24.12.2023. The learned counsel wanted to convince that when the extended time is taken into consideration then under all circumstances the last date for the submission of the nomination papers was 28.12.2023. We are not convinced, with what the learned counsel submitted, if the submission of the learned counsel for the petitioner would prevail then drastic changes are to be brought in the schedule and then in our understanding the country would be unable to go for poll on 08.02.2024, rather it would go beyond the allotted time. The learned counsel further agitated the competence and power of the Election Commission of Pakistan (ECP), and wanted to convince that the subsequent notification where the date was extended from 22.12.2023 to 24.12.2023 was not in its domain and that when the Commission exercised unbridled discretion, then the case of the petitioner should be taken into consideration on humanitarian grounds as well. The learned counsel for the petitioner fell into error while highlighting this particular aspect of the case, as section 58 of the Act, does empower the Election Commission of Pakistan to make necessary changes in the program of the Election and to our understanding the subsequent notification finds indemnity under this section.
7. The worthy Election Tribunal dealt with the matter comprehensively and nearly all and relevant aspects of the case were taken into consideration, more particularly, the interim order passed by this court in favour of the petitioner in the earlier submitted writ petition. We do subscribe to the observations rendered by the worthy appellate tribunal regarding the validity and applicability of the interim order passed by this Court. The worthy appellate tribunal was competent in holding that as through the interim order the petitioner for the time being succeeded to bring the desirous changes in her favour and that her name was placed in the list of validly nominated candidates but the same was subject to the final determination of the then writ petition. As the earlier writ petition was no more in the field, so in our understanding when the appeal of the petitioner was turned down by the appellate tribunal, so the benefits accrued through the interim order came to an end and as such the petitioner did not deserve for placing herself in the list of validly nominated candidates, for the seats reserved for women in the National Assembly, and as such the limitation did come into play and it was because of submission of the nomination form after the allotted period, that the petitioner lost her right to be placed in the list of the validly nominated candidates, for the seats reserved for women, in the National Assembly, and as such the claim of the petitioner can neither be considered nor entertained.
8. The assistance was sought from the learned counsel representing the Election Commission of Pakistan (ECP), who took us through various provisions of law and the relevant sections in the Act.
No ambiguity is left that under the Act the Returning Officer is blessed with limited powers to make correction in a nomination form submitted for the seats he is dealing with, but never ever a Returning Officer is authorized to bring substantial changes to the nomination form and that the case of the petitioner by no stretch of imagination could provide competence to the Returning Officer notified for the seats in Provincial Assembly, to make those changes and to transmit the nomination form of the petitioner to the Returning Officer who was dealing with the seats reserved for women in the National Assembly. It was the attending circumstances of the present case which did not permit the concerned Returning Officer to bring substantial changes as per wishes of the petitioner and as such it was the petitioner and it was her wrong selection which knocked out her. of the contest.
9. The cumulative effect of what has been stated above, leads this court to an irresistible conclusion that the petitioner could not succeed in making out a case for indulgence of this Court and the impugned order is neither arbitrary nor mechanical which would call for interference. The instant writ petition being bereft of any merit is hereby dismissed.