Shakeel Ahmad, J. Being aggrieved by the order dated 19.03.2024, passed by the Returning Officer for election to the Senate, 2024 from Khyber Pakhtunkhwa, whereby and whereunder, the nomination papers of party No.2 (Fida Muhammad) and party No.3 (Qaizer Khan) were accepted, the appellants have filed the instant appeal under Section 113 of the Elections Act, 2017 read with Rule 100 of the Elections Rules, 2017 questioning the correctness of the said order.
2. The facts of the case, in brief, are that the party No.2 (Fida Muhammad) filed his nomination papers for election to the Senate from Khyber Pakhtunkhwa on General Seat, whereas, the third party (Qaizer Khan) filed his nomination papers for the election to the Senate on Technocrat Seat.
The appellants, who are nominated candidates through their counsel filed objection to the nomination papers submitted by party No.2 and party No.3 inter-alia on the following grounds that; i. Ahmed Kundi proposed the name of Mr. Fida Muhammad for election on General Seat and at the same time, he has also proposed the name of Qaizer Khan for election to the Senate for Technocrat Seat. ii. Ms. Nilofer Baber subscribed the nomination papers of Fida Muhammad as seconder and at the same time, she also proposed the name of Ms. Rubina Khalid for election to the Senate on Women Seat, which is violative of Section 110 read with Section 112 of the Elections Act, 2017 and Form-A appended with the Elections Act, 2017.
3. After providing the right of audience to the learned counsel for the parties, the objection petition was dismissed and the nomination papers submitted by the party No.2 and party No.3 were accepted. Feeling aggrieved, the petitioner has filed the instant appeal.
It was argued by the learned counsel for the appellants that the proposer and seconder is not qualified to subscribe to more than one nomination paper at one and the same time, and if they did so, the nomination papers of the candidate is liable to be rejected. In support of his contention, the learned counsel for the appellants placed reliance on Section 110 read with Section 112 of the Elections Act, 2017 and the definition of Form-A as provided in Clause xxi of Section 2 of the Elections Act, 2017.
5. In rebuttal, the learned counsel appearing on behalf of the respondents and the learned counsel representing the Election Commission of Pakistan submitted that Article 59 of the Constitution of Islamic Republic of Pakistan, 1973 has made categorization of seats to the election for Senate, whereby and whereunder, Technocrats including Alim, Women and election to the General Seats is to be held and went on to say that all the above mentioned categories are different from each other and no prohibition exists under the election laws, whereby and whereunder, a proposer or seconder has been prohibited from subscribing the nomination papers of more than one candidate for different categories. They also placed reliance on Sections 110 and 112 of the Elections Act, 2017 and concluded their arguments by saying that the Returning Officer has not committed any legal error by accepting the nomination papers of the respondents and prayed for dismissal of the appeal.
6. I have given my anxious consideration to the arguments made by the learned counsel for the parties and scanned the record and relevant law with their valuable assistance.
7. Before proceeding on merit, I deem it appropriate to reproduce Section 60 of the Elections Act, 2017 as follows:- "60. Nomination for election.-- (1) Any voter of a constituency, may propose or second the name of any qualified person to be a candidate for Member for that constituency: Provided that no voter shall subscribe to more than one nomination papers either as proposer or seconder.
(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by--
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 for being elected as a Member;
(b) a declaration that he has opened an exclusive account with a scheduled bank for the purpose of election expenses;
(c) an attested copy of his National Identity Card; and
(d) a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B.
(3) Every nomination paper shall be delivered to the Returning Officer by the candidate or his proposer or seconder or if so authorized in writing by the candidate, by his nominee and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.
Explanation.-- Authorization in favour of an advocate shall be attested by a Notary appointed under the Notaries Ordinance 1961 (XIX of 1961) or an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1873) or any Government servant in basic pay scale 17 and above.
(4) A person may be nominated in the same constituency by not more than five nomination papers.
(5) The Returning Officer shall assign a serial number to every nomination paper and endorse on the nomination paper the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny.
(6) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate as shown in the nomination paper.
(7) The Returning Officer shall--
(a) make the nomination papers along with annexures open to inspection by the public; and
(b) issue certified copies of these documents in such manner and on payment of such fee as may be prescribed"
A perusal of the aforesaid provision of Section 60 reflects that it relates to the General Election and not for the election to the Senate.
8. At this stage, it will be advantageous to reproduce Section 110 of the Elections Act, 2017, which relates to the nomination for the election of the Senate as follows: -
110. Nomination for election.-- (1) A voter may propose or second the name of any person qualified for election to the Senate from a Province, Islamabad Capital Territory or the Federally Administered Tribal Areas, as the case may be.
(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation, be made and signed by the candidate and shall be accompanied by--
(a) a declaration that he has consented to the nomination and that he fulfills the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 for being elected as a Member of the Senate;
(b) a declaration that he is a technocrat or alim, if the nomination papers are filed for a seat reserved for technocrat or aalim;
(c) a declaration that he has opened an exclusive account with a scheduled bank for the purpose of election expenses;
(d) an attested copy of his National Identity Card; and
(e) a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B.
(3) Every nomination paper shall be delivered to the Returning Officer by the candidate or by his proposer or seconder or if so authorized in writing by the candidate, by his nominee and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.
(4) A person may be nominated by not more than five nomination papers.
(5) Every nomination paper shall be accompanied by a certified copy of the relevant extract from the electoral rolls in which the name of the person nominated is enrolled.
(6) The Returning Officer shall assign a serial number to every nomination paper and endorse on it the name of the person presenting it and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny of the nomination papers.
(7) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper containing the particulars of the candidates as shown in the nomination paper.
(8) The Form and accompanying declarations and statements shall be open to inspection by the public, and the Commission shall make available copies of these documents in such manner and on payment of such fee as may be prescribed "
9. A perusal of the aforesaid Sections reflect that the proviso provided in Section 60 of the Elections Act, 2017 has not been made part of this Section. Such omission seems to have been made purposely. Thus, the embargo placed on the voter not to subscribe more than one nomination paper either as proposer or seconder has been mollified by omitting proviso in Section 110 of the Act of 2017 as provided in Section 60 of the Act. The question which requires determination by this Tribunal is whether a proposer or seconder can subscribe for more than one nomination papers for different category for the election of Senate at one and the same time or not?
By not making the proviso of Section 60 part of Section 110 of Elections Act, 2017, clearly indicates intention of the legislature, allowing the voter to subscribe to more than one nomination paper either as proposer or seconder, but for different categories to the election for Senate i.e. Technocrat, General Seats and Seats for women. However, a voter under no circumstance shall be allowed to subscribe to more than one nomination paper either as proposer or seconder for one and the same category. Form-A issued in terms of Section 110(2) of the Election Act, 2017, when examined in Juxtaposition with the provisions of Section 110 of the Act of 2017, it can safely be concluded that no embargo has placed on the way of voter to subscribe more than one candidate either as proposer or seconder to different categories for election to the Senate as provided in proviso to Section 60 of the Act of 2017 in case of a candidate for General Election. Under Section 110, there is no prohibition regarding nomination of more than one candidate for different categories for the election of Senate. It has now been settled that whatever is not specifically prohibited, is permissible and as a matter of general principle, prohibition cannot be presumed. In this context, reliance can be made on the judgements reported as "Additional Collector -H Sales Tax, Lahore Vs. Messrs Abdullah Sugar Mills Ltd (2003 SCMR 1026) and Asma Zafar-ul-Hassan Vs. United Bank Ltd (1981 SCMR 108)."
11. The learned counsel for the appellants also attempted to press into service in his arguments the concept of `casus omissus'. Casus Omissus is a point or case un-provided for.
When a given state of affairs does not come within the obvious meaning of the words of the same statute, that is, when the words do not embrace the particular question in hand, it is a case of `casus omissus'. Reference is made to "Bhadramma Vs. Kotam Rai (AIR 1955 Hyderabad 140)." By the recognized principles of construction of statutes I am not entitled to read words into a statute unless clear reason for it is to be found within the four corners of the statute itself. In the case reported as "Dr. L. Raymond Vs. Florence B. Yakehee (AIR 1957 Allahabad 212)" the process of casus omissus was deprecated in the following words: - "A Court can construe or interpret existing words but cannot supply missing word in a statute."
In "Kamalaranlan vs. Secretary of State (AIR 1938 PC 281)" this rule of construction was disapproved in the following paragraph at page 383 of the report: - "The Court cannot put into the Act words which are not expressed and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court."
Again it is a well-established principle of construction of statutes that the Court cannot supply omissions by implication and analogy, unless existing provisions of a statute by necessary intendment so compel the Court.
Reference is made to "Rajammal Vs. The Chief Justice (AIR 1950 Madras 185)." That is only possible that it effectuates the legislative intention.
12. From perusal of Section 110 of the Elections Act, 2017, in the case in hand, it is not at all implied that omission to provide for complete prohibition for a voter to subscribe more than one candidate either as proposer or seconder of different categories for the election to the Senate was unintentional. If there is supposed gap either tacit or implied in the statute, it is not for the Tribunal/Court to fill it in, but for the legislative body.
13. For the foregoing reasons, I find no illegality, irregularity or mis-appreciation of law, calling for interference. Consequently, this appeal is dismissed. Costs made easy.