SHAKEEL AHMAD, J.- Aggrieved by and dissatisfied with the order dated 19th March 2024, passed by the Returning Officer for Senate Election 2024, for the Province of Khyber Pakhtunkhwa, the instant appeal and connected Election Appeal No.192-P/2024 titled "Muhammad Azam Khan Swati vs. Provincial Election Commissioner/ Returning Officer Senate Election, 2024, Peshawar & 3 others" have been filed under section 113 of the Elections Act, 2017 read with Rule 100 of the Election Rules, 2017. By the said order, the Returning Officer allowed the objection petition of the opposite party No.3, filed under section 112 of the Elections Act, 2017, and rejected the three separate nomination papers of the appellant Muhammad Azam Khan Swati, one General and two for Technocrat seats of the Senate for the Province of Khyber Pakhtunkhwa. As both the appeals raise common issues, therefore, they are taken up together and decided through this single order/judgment.
02. The factual matrix of the case in hand is that the appellant filed three separate nomination papers to contest Election for the two seats of Technocrat and one for General Seat of the Senate from the Province of Khyber Pakhtunkhwa. The opposite party No.3 (Taj Muhammad Afridi), who is also one of the contesting candidate for the General Seat of Senate, Capt Muhammad Safdar Awan and Ms. Faiza Malik filed objection petitions in terms of section 112 of the Elections Act, 2017, against the appellant, throwing challenge to his candidature for the said seat. All the three petitions were consolidated for having commonality, facts and legal grounds, and decided through the impugned order. It appears that the objection petitions submitted by Capt Muhammad Safdar Awan and Ms. Faiza Malik were turned down on the ground that, they are neither candidates nor proposers nor seconders nor authorized agents to file the objection petitions, whereas, the objection petition filed by the opposite party No.3 was allowed and nomination papers of the appellant were rejected for both categories of seats i.e. General and Technocrat, vide order dated 19th March 2024. With this factual scenario, the present and connected appeal have been filed.
03. It was pleaded by the learned counsel for the appellant that, no doubt, the nomination papers of the appellant for the seat of National Assembly of Pakistan from NA-15 Mansehra Torghar were rejected by the Returning Officer of the said constituency by holding that he is not qualified to contest the Election for the said seat vide order dated 30.12.2023, which was assailed before the Appellate Election Tribunal, and after providing the right of audience, his appeal was dismissed vide order dated 05.01.2024, rendered in Election Appeal No.09-A12024, but said order of the learned Tribunal was assailed before the Hon'ble Peshawar High Court, Peshawar through Constitutional Petition No.128-P/2024, which was disposed of without further proceedings as the appellant was not interested to contest the said election, therefore, the appellant could not be disqualified from being elected as Member of the Legislative Assembly of Pakistan on the basis of earlier order of the learned Appellate Tribunal. He next pleaded that even the proclaimed offender cannot be disqualified from being elected as a Member of Parliament. He further pleaded that he had appended the list of pending criminal cases against the appellant with the nomination papers six months prior to filing of the nomination papers, and went on to say that nothing was mis-stated, concealed or mis-declared by him. He further submitted that the appellant squarely falls within the definition of Technocrat as provided under clause (xxxix) of section 2 of the Elections Act, 2017.
According to the learned counsel for the appellant, previously, he was elected against the reserved seat for Technocrats, twice, he had been Federal Minister, he has rendered his services at different positions in the Parliament, and concluded his arguments by saying that the Returning Officer wrongly conceived the definition of Technocrat, thus, arrived at wrong conclusion, and rejected his nomination papers.
04. In rebuttal, the learned counsel appearing on behalf of the opposite party No.3 jointly argued that, no doubt, the appellant possesses Doctor of Jurisprudence DegTee of South Texas College of Law, but, he lacked practical knowledge in the profession of law and could not attain distinction in the professional field as required under clause (xxxix) of section 2 of the Act of 2017, which may constitute eligibility against reserved seat of Senate. It was added by Mr. Aamir Javed, the learned counsel appearing on behalf of the objector/opposite party No.3 that the appellant even does not qualify to contest Election for General Seat, as, he has been declared as proclaimed offender and his signatures and signatures of his proposer and seconder are not genuine on the nomination papers. He further added that Deposit Slip as required under Section 111 of the Act of 2017, was not appended with the nomination papers, and concluded his arguments by saying that there is no legal flaw in the impugned order, calling for interference.
05. On the basis of facts and relevant provisions of law, pleaded above, the following questions emerge for consideration:- i. Whether concealment or non-disclosure of criminal cases lodged against the appellant, mentioned in the nomination papers submitted for the seat of National Assembly or declaring the appellant as proclaimed offender would disqualify him from being elected as a member of Legislative Assembly of Pakistan or not? ii. Whether the appellant does not possess the requisite qualification to contest election for Technocrat Seat as required under (=ix) of Section 2 of the Act of 2017? iii. Whether the appellant has submitted a false affidavit with his nomination papers which rendered the nomination paper for General Seat as invalid or not?
06. Adverting to first question, I find from the record that the appellant had given the details of criminal cases registered against him in different Police Stations of Pakistan in the affidavit appended with the nomination papers for the election of Senate for General Seat, which are reproduced hereinbelow:- {{TABLE}} {{IMAGE}}
07. No doubt, during submission of nomination papers for the seat of National Assembly from Mansehra in General Elections held on 8th February 2024, in clause "F", it was mentioned by the appellant that no criminal case is pending against him, six months prior to filing of that nomination papers, but, in the nomination papers submitted for the election of Senate for General Seat from the Province of Khyber Pakhtunkhwa, he had given detail of 19 criminal cases, wherein, he has been nominated as an accused. It is also not denied that his nomination papers in General Elections for the seat of Legislative Assembly (NA) were rejected by the Returning Officer on the ground that he was wanted to the police in different cases, and he has been declared as proclaimed offender in those cases, vide order dated 30th December 2023. The said order was assailed before the Appellate Tribunal, by filing an appeal, which was dismissed vide order dated 05.01.2024, maintaining the order of the Returning Officer. Both these orders were brought before the Hon'ble Peshawar High Court, Peshawar for consideration through Constitutional Petition No. 128-P of 2024, which was disposed of with the observation that the impugned order shall not be quoted as precedent, as, appellant was not interested to contest the said election. In view of the above, the Returning Officer fell into error by placing reliance on the earlier order of the Appellate Election Tribunal dated 05.01.2024. Even otherwise, this question has elaborately been settled by the Hon'ble Supreme Court of Pakistan in the judgment dated 29th January, 2024 in C.P No.150 & 152 of 2024, wherein, it was ruled that nomination papers of a candidate cannot be rejected on the ground of his being a proclaimed offender or involvement in criminal cases, is not disqualified for being elected or from being a member of Parliament. Article 62 & 63 of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 231 & 232 of the Act of 2017 deals with qualification and disqualification of a candidate, which does not mention that a "proclaimed offender" is disqualified from being elected as Member of the Legislative Assemblies of Pakistan. The grounds provided for rejection of a nomination paper in section 62(a) of the Act of 2017 do not empower the Returning Officer to reject the nomination papers on the ground of his being a proclaimed offender or because of involvement in the criminal cases. Even otherwise, this issue has been settled once for all by the August Supreme Court of Pakistan in the case, reported as "Murad Bux vs. Kareem Bux & others" (2016 SCMR 2042), wherein, it was held that non-disclosure of criminal cases in nomination papers is not fatal to a candidate for the reason that the fact which otherwise, if disclosed, could not debar the candidate from contesting election, could not be made a ground to preclude the candidate from contesting election, operative part of which is reproduced as under: - "7........ The only issue is the non-discloser of the pending criminal case in the affidavit before the Returning Officer and whether such non-disclosure would be construed as concealment of 'material particulars'. We, in the backdrop of these facts, are of the considered view that the non- disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made a ground to preclude the Petitioner from contesting the election."
08 In this context, further reliance can be placed on the judgment reported as "Syed Fida Hussain Shah vs. Election Appellate Tribunal & others" (PLD 2018 Lahore 788).
09. Thus, in view of the legal and factual aspect of the case, I am of the considered opinion that the Returning Officer fell into error by rejecting the nomination papers of the appellant for the election of Senate for General Seat for Province of Khyber Pakhtunkhwa merely on the ground that in the General Election held on 8th February 2024, the appellant had not disclosed criminal cases registered against him in different Police Stations in Pakistan, is factually and legally not sustainable.
10. Now adverting to validity and legal defensibility of the order of the Returning Officer, whereby and where-under, the nomination papers of the appellant for election to the Senate for reserved seat of Technocrat for Province of Khyber Pakhtunkhwa was rejected.
11. Article 59 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates that certain seats be reserved for specialized fields, the standard for selecting such persons has been kept considerably higher than merely normal. If marked distinction is not kept in consideration, while considering the reserved seats then perhaps the contributed intent of having people of eminence relating to specified field shall be completely frustrated. Article 59 of the Constitution deals with the seats of the Senate. For the sake of convenience, Article 59 of the Constitution is reproduced, as follows: - "59. Senate. (1) The Senate shall consist of one hundred and four members, of whom,--
(a) fourteen shall be elected by the members of each Provincial Assembly;
(b) eight shall be elected by direct and free vote from the Federally Administered Tribal Areas, in such manner as the President may, by Order, prescribe;
(c) two on general seats, and one woman and one technocrat including aalim shall be elected from the Federal Capital in such manner as the President may, by Order, prescribe;
(d) four women shall be elected by the members of each Provincial Assembly;
(e) four technocrats including ulema shall be elected by the members of each Provincial Assembly;
(2) Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system of proportional representation by means of the single transferable vote.
(3) The Senate shall not be subject to dissolution but the term of its members, who shall retire as follows, shall be six years:
(a) of the members referred to in paragraph (a) of clause (1), seven shall retire after the expiration of the first three years and seven shall retire after the expiration of the next three years;
(b) of the members referred to in paragraph (b) of the aforesaid clause, four shall retire after the expiration of the first three years and four shall retire after the expiration of the next three years;
(c) of the members referred to in paragraph (c) of the aforesaid clause,--
(i) one elected on general seat shall retire after the expiration of the first three years and the other one shall retire after the expiration of the next three years; and
(ii) one elected on the seat reserved for technocrat shall retire after first three years and the one elected on the seat reserved for woman shall retire after the expiration of the next three years;
(d) of the members referred to in paragraph (d) of the aforesaid clause, two shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years;
(e) of the members referred to in paragraph (e) of the aforesaid clause, two shall retire after the expiration of the first three years and two shall retire after the expiration of the next three years; and Provided that the term of office of a person elected to fill a casual vacancy shall be the unexpired term of the member whose vacancy he has filled."
12. The word "Technocrat" has not been defined by the Constitution itself, but, clause (xxxix) of section 2 of the Elections Act, 2017 defines the word "Technocrat" which reads as under: - (xxxix) "technocrat" means a person who--
(a) holds a degree requiring conclusion of at least sixteen years of education recognized by the Higher Education Commission; and
(b) has at least twenty years of (post-qualification) experience including a record of achievement at the national or international level."
13. In the case in hand, the controversy between the parties revolves around the lack of practical knowledge/experience of at least twenty years in the profession of law and failure to attain distinction in the professional field, which may constitute eligibility against the reserved seat of the Senate. This controversy could be looked into from different angles.
14. Now looking at the credentials/testimonials of the appellant, I find that the appellant took his LLB Degree from Sindh Muslim Law College on 28.01.1974 with distinction. He obtained his Master Degree in Political Science from the University of Karachi on 07.07.1975. He also obtained Master Degrees in Economics and Law (LLM). He was awarded Degree of Doctor of Jurisproducen from South Texas College of Law in 19 May 1990. He was enrolled as an Advocate to appear and practice in the subordinate Judiciary in 1975 and as an Advocate of High Court in the year 1978. He was enrolled as an Attorney-atLaw and pleaded cases as Lawyer from 1990 to 1996 in United States of America. He remained as Legal Consultant/Advisor of different entities/companies from 1996 to 2001 in USA and also rendered his service as Director to Capital Bank, on honorary basis. In 2003, he contested election for Senate of Pakitan from Khyber Pakhtunkhwa on General Seat and was elected as such and remained as Senator till 2006, and again as Technocrat from 2006 to 2012, in 3rd and 4th run, he stood elected as Senator on General Seat from 2018 and as Technocrat from 2018 to 2024. He remained as Chairman Parliamentary Committee for appointment of the Judges of the High Courts and Supreme Court. He also worked as Member of the Parliamentary Committee on appointment of Chief Election Commissioner and Member Election Commission, Member of the Committee of Legislative Cases, Member of Standing Committee including Law, Justice & Parliamentary Affairs. He also remained as Federal Minister of Parliamentary Affairs. His representative capacity acquired amongst members of the Legislative Assembly reflects distinction and popularity. Thus, making further headway in his career which cannot be conveniently lost sight of and outrightly ignored. He, undoubtedly, possessed necessary educational qualifications from duly recognized Universities within the country and abroad. It is observed that in certain disciplines i.e. Law, Medical, and Engineering etc, student's experience starts during education. It is an admitted fact that the appellant did his Doctor of Jurisprudence Degree from South Texas College of Law, which shows that research work is mandatory requirement for a student of Law program for such a degree, thus, such a degree was nothing but practical performance/research work in the field, which also amounted to be an experience. If that period is also counted, it would show that he has an experience in the legal field, which was more than twenty years, therefore, in my view, requirement of 20 years experience in the field, by the appellant, was thus satisfied. The fact that the appellant is an Advocate of High Court, has been Member of Bar, and Member of Senate on four occasions coupled with the assignments discussed in the preceding paras, does portray that he is a person of distinction. Therefore, in my view, by all standards, he possessed suitable legal background and qualifications for nomination as Member of the Senate as Technocrat.
15. Taking into the facts and circumstances of the case and discussion made above, I am of the opinion that the appellant has the attributes of a Technocrat as contemplated in Article 59 of the Constitution read with clause (xxxix) of section 2 of the Elections Act, 2017, therefore, I am inclined to accept this and connected Election Appeal No.192-P/2024 filed by Muhammad Azam Khan Swati and set aside the impugned order dated 19th March 2024, passed by the Returning Officer for Senate Election 2024 for the Province of Khyber Pakhtunkhwa. He is directed to accept the nomination papers of the appellant for Technocrat and General Seats of the Senate of Pakistan. He is also directed to issue revise list in this regard. In the facts and circumstances of the case, no order as to costs.
16. Above are the detailed reasons of short order(s) of even date.