SULTAN TANVIR AHMAD, J. Through this single judgment, I intend to decide the captioned appeal along with appeals bearing E. A. No. 04 of 2024/BWP, E. A. No. 18 of 2024/BWP, E. A. No. 21 of 2024/BWP and E. A. No. 67 of 2024/BWP, filed under section 63 of the Elections Act, 2017 (the 'Act') read with rule 54 of the Election Rules, 2017 (the 'Rules'). These appeals are interlinked and substantially connected to each other.
2. Mr. Shaukat Mahmood and Mrs. Rizwana Nawaz filed their nomination papers to contest the forthcoming elections from the constituencies numbers, NA-163 Bahawalnagar-VI and PP-241 Bahawalnagar-V. In order to fulfill the requirement given in section 60(2)(b) of the Act, the aforesaid candidates declared / mentioned a joint bank account bearing No. 3149301000001084 being maintained in Faysal Bank on their nomination papers instead of personal separate accounts. The nomination papers were rejected for common reasons through separate orders dated 30.12.2023 passed by the Returning Officers of NA-163 BahawalnagarVI and PP-241 Bahawalnagar-V (hereinafter the said orders shall be called as the 'impugned orders'). The order dated 30.12.2023 which is passed in the captioned appeal by the Returning Officer of NA-163 Bahawalnagar-VI reads as follows:- "Subject: Decision of Returning Officer NA-163 against Nomination Papers 01 and 02 of Mst.
Rizwana Nawaz
1. Whereas section 60, subsection (2)(b) of The Election's Act, 2017 states as under:- "A declaration that before the date fixed for scrutiny of nomination papers he will open an exclusive account, or dedicate an existing account, with a scheduled bank for the purpose of election expenses, and has attached statement of the said bank account with the nomination paper, starting with entries of seven days prior to the election schedule".
2. And whereas the candidate namely Mst. Rizwana Nawaz has mentioned a joint Bank Account No. 3149301000001084 on his nomination paper instead of her personal account;
3. Therefore owing to the reasons mentioned above, the nomination paper of Mst. Rizwana Nawaz is hereby rejected as per section 62, subsection 9c of the Election Act, 2017."
3. Mr. Nadeem Iqbal Chaudhary, learned counsel for the appellants has submitted that the provision relied by the Returning Officer i.e. section 60(2)(b) of the Act is not mandatory, as no penal consequence of the same is provided in the Act. He has further submitted that the purpose of the said provision is to open or dedicate an account for the purposes of election and the word 'exclusive' used therein cannot be interpreted as a separate account as opposed to a joint account of husband and wife (two independent candidates from the given constituencies).
4. Conversely, Mr. Muhammad Jaffar, Law Officer/Assistant Director (Law) Election Commission of Pakistan has submitted that the legislature has required to give an exclusive account number, newly opened or dedicated for the purposes of election, has simple meaning that a particular candidate must give a separate account in order to facilitate the Election Commission of Pakistan (the 'Commission') to ensure that restriction contained in section 132 of the Act is not violated; that non-compliance of section 60(2)(b) read with sections 132 & 133 of the Act, has serious consequences of imprisonment upto two years or fine, therefore, the provision is mandatory. Mr. Zafar Iqbal Awan, learned Additional Advocate General and Mr. Mukhtar Ahmad Khan, learned Assistant Attorney General have supported the arguments of learned Law Officer of the Commission.
5. I have heard the learned counsel for the parties and perused the record with their able assistance.
6. The two sides, besides the factual controversy, have read and interpreted the following provisions of law in the Court:-
60. Nomination for election.-
(1) xxx
(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) xxx
(b) a declaration that before the date fixed for scrutiny of nomination papers he will open an exclusive account, or dedicate an existing account, with a scheduled bank for the purpose of election expenses, and has attached statement of the said bank account with the nomination paper, starting with entries of seven days prior to the election schedule;
(c) xxx
(d) xxx
62. Scrutiny.-
(1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) xxx
(6) xxx
(7) xxx
(8) xxx
(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) xxx
(b) xxx
(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) xxx (Underlining is added)
7. Section 60(2)(b) of the Act is substituted by way of recent amendment made through Elections (Second Amendment) Act, 2023, dated 5th August, 2023 (the 'Second Amendment') which requires a declaration that before the date fixed for scrutiny of nomination papers, opening an exclusive account or dedicating an existing account, for the election purposes and to attach a statement of account along with the nomination papers that starts with the entries of seven days prior to the election schedule. Section 62(9) of the Act empowers the concerned Returning Officer, on his own motion or upon an objection, to reject nomination papers if he is satisfied that any provision of section 60 or 61 of the Act is violated.
8. Clause 3 of form A under section 60(2) and 110(2) of the Act require from every candidate to give on oath declaration stating therein to the effect that individual candidate has opened an exclusive account or he intends to use his existing account. The relevant clause in form A, which was amended vide the Second Amendment, reads as follows:- "3. I the above mentioned candidate, declare that I have opened an exclusive Account No. _____ with ______ (Name and Branch of Scheduled Bank).
OR I will use my existing Account No. __________ with _______ (Name and Branch of Scheduled Bank for the purpose of Election expenses) (Please enclose statement of the Bank Account)."
9. The on oath declaration requires to state "I" not "we" or "us". One of the obvious object behind the above discussed part of the Second Amendment read with other provisions, is to ensure compliance of restriction that election expenses of contesting candidate must not exceed ten million rupees for election to a seat in National Assembly and four million rupees for election to a seat in Provincial Assembly as stipulated in section 132(3) of the Act, which once again requires from every candidate, for the purpose of election expenses, to open an exclusive account or to dedicate one, before the date fixed for scrutiny of nomination papers. A candidate is not permitted to make any transaction towards election expenses through any other account but the one dedicated for the election purposes. It is appropriate to reproduce section 132(3) and section 133 of the Act, which reads as under:-
132. Restriction on election expenses.-
(1) xxx
(2) xxx
(3) The election expenses of a contesting candidate shall not exceed-
(a) one million and five hundred thousand rupees for election to a seat in the Senate;
(b) ten million rupees for election to a seat in the National Assembly; and
(c) four million rupees for election to a seat in a Provincial Assembly.
(4) xxx
(5) xxx
133. Bank account for election expenses.-
(1) For purposes of his election expenses, a candidate shall open an exclusive account or dedicate his existing account with any branch of a scheduled bank before the date fixed for scrutiny of nomination papers and maintain, or cause to be maintained, a register of receipts and expenditures.
(2) A candidate shall not make any transaction towards the election expenses through an account other than the account opened or dedicated under sub-section (1) for the purpose.
(3) A candidate may open or dedicate the bank account for election expenses with an amount not exceeding the limit of election expenses provided under section 132 Provided that if a candidate intends to use his existing account for the purpose, he shall submit statement of account to the Returning Officer at the time of filing of nomination papers: Provided further that any transaction other than the election expenses shall not be made through the exclusively opened or dedicated existing account from filing of nomination papers till filing of return of election expenses.
(Emphasis Supplied)
10. Every candidate, individually, is required by law to submit the return of expenses on Form C. The Commission if is of the view that a candidate has acted in contravention of the above said restriction is required to direct authorized officer to file a complaint against such candidate. As per section 175 of the Act, a person is guilty of an offence of illegal practice if he fails to comply with section 134 of the Act relating to election expenses, which eventually is punishable under section 183 of the Act with imprisonment for a term that can extend for two years or with fine upto one hundred thousand rupees or with both.
11. Most of the provisions discussed above contain the word "shall" commanding that every candidate has to open or dedicate exclusive account, enabling the Commission to make inspection and to verify if the individual candidate has remained within the limit provided by law and not exceeded the permissible expenses. The violation thereof has consequence that Commission "shall" direct an authorized officer to file a complaint against such candidate for committing the offence of corrupt practice. In this regard section 136(3) of the Act provides as under:- Where after scrutiny of returns under sub-section (1), the Commission is of the view that a candidate has acted in contravention of the provisions of section 132, the Commission shall direct an authorized officer to file a complaint against such candidate for committing the offence of corrupt practice.
(Emphasis Provided)
12. Admittedly, Mr. Shaukat Mahmood and Mrs. Rizwana Nawaz instead of dedicating or opening an exclusive account have declared a joint account. Both of them are candidates in the forthcoming elections. The legislature in the discussed provisions has used the words "he will open an exclusive or dedicate an existing account". The restriction contained in section 132 of the Act also provides that election expenses of "a candidate" shall not exceed the permissible limits. This is the position in all the related provisions of the Act. After reading of the discussed provisions as well as other sections which relate to the subject in hand, I have no doubt in my mind that the legislature intended that each candidate, individually and separately, has to open or dedicate an exclusive account for the election purposes. Giving the number of a joint account, appears to be against the very object and the rational behind the Second Amendment read with the other provisions of the Act. Otherwise, it will make it difficult or may be impossible for the Commission to make proper verification or to hold an enquiry and to reach as to the conclusion of corrupt practice during the election or in connection with the election. I am not in agreement with the learned counsel for the appellants that even a joint account, if opened or dedicated for the purposes, is sufficient.
13. Learned counsel for the appellants has contended that the appellants, upon some realization, on 30.12.2023 instituted application(s) before the Returning Officer(s) intimating separate accounts, exclusively opened or dedicated for the given purpose. I have gone through the record very carefully. The application(s) are available in two (2) files out of five (5), which were rejected being filed after office hours and not fulfilling criteria given in section 60 of the Act. Order passed by the Returning Officer of NA-163 on the application of Mr. Shaukat Mahmood, reads as under:- "Application was submitted after due office hours & not considered due to some reason.
Moreover, due to not fulfilling the criteria given in section 60 of Election Act, it is not considered."
14. A reading of sub-section (2) of section 60 and sub section (1) of section 133 of the Act reveals that exclusive account is required to be declared "before the date fixed for scrutiny of nomination papers" and then to maintain or caused to be maintained a register of receipt and expenditures.
The time of scrutiny in NA-163 Bahawalnagar-VI was scheduled for Mrs. Rizwana Nawaz at 02:00 p.m. and for Mr. Shaukat Mahmood at 03:00 p.m. There is nothing brought on record to reflect that such application(s) were instituted before the time fixed for scrutiny. Reading of record of PP-241 reflects that no such application is available at all. It was not difficult for the appellants to append a certificate of the relevant bank with these appeals but they have not done it.
15. Mr. Shaukat Mahmood has even failed to show substantial compliance of the provisions of the Act. It is not denied before this Court that Mr. Shaukat Mahmood has not appended the statement of account or any certificate from the concerned bank, with the application that he instituted before the Returning Officers.
16. I have perused the record produced by the concerned Returning Officer, which confirms this position. It is required by section 60(2)(b) of the Act that a candidate should append, with the declaration, statement of the given bank account with nomination papers, starting with the entries of seven days prior to the election schedule. Moreover, no statement of account is appended with titled appeal or the connected appeals by Mr. Shaukat Mahmood and Mrs. Rizwana Nawaz.
17. In the wake of above discussion, present appeal along with E. A. No. 04 of 2024/BWP, E. A. No. 18 of 2024/BWP, E. A. No. 21 of 2024/BWP and E. A. No. 67 of 2024/BWP are dismissed and the impugned orders are upheld. No order as to costs.