This appeal under section 63 of the Elections Act, 2017 is directed against order dated 30.12.2023 of the Returning Officer whereby the nomination papers of the appellant as a candidate for PP-174 were rejected.
2. The rejection was occasioned by the fact that upon examination of the Voter Certificate of the proposer one Muhammad Ramzan his name was found not to exist on the electoral roll as a registered voter for the said constituency. Upon this finding of fact the Returning Officer proceeded to reject the nomination papers.
3. Learned counsel for the appellant has candidly admitted that the proposer of the appellant Muhammad Ramzan no longer figured on the electoral roll of registered voters for constituency PP- 174 but actually was from PP-173. He has argued that the mistake got committed by inadvertence and that "the same name and places of two PP-173 and PP-174 confused the appellant and seconder" as given at ground "e" of the grounds of appeal and that the name of the proposer Muhammad Ramzan fell in the electoral roll for PP-173 instead of PP-174 and that he acted as proposer which is an innocent mistake and that in the circumstances the Returning Officer on being approached with clarification was liable to entertain the request of the appellant to allow him to be substituted with one Waqas Tassawer son of Muhammad Tassawer Shaheen whose Voter Certificate is attempted to be submitted to the Appellate Tribunal for consideration and permission for substitution as well. He states that the error was bona fide and that the defect is curable. Reliance for the stance that such defect would be curable has been placed on Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 SC 277) and Sharafat Ali and another v. D.R.O. and others (2008 SCMR 539).
4. This has been vehemently opposed by learned Legal Advisor for the Election Commission of Pakistan who submits that the provisions dealing with the proposer are sections 60(1), 60(4), 62(6) and 62(9)(b) of the Elections Act, 2017 (the "Act") whose conjunctive reading shows that the role of the proposer is constitutive/foundational to the nomination process without which the process is not maintainable and the defect in the form of the proposer not being on the electoral roll as a registered voter of the constituency is not curable at the instance of the Returning Officer who upon arriving at an accurate finding of fact in this regard shall be bound by the ineluctable conclusion of there being no valid nomination before him. He submits that such defect shall not be curable. He submits that the role of the proposer and seconder as may be seen from the logic of the nomination process also gleaned from the diction of section 60(1) of the Act precedes the unveiling of the candidate who is brought in and introduced by the other two. Such nomination papers as the case in hand shall present a stillborn case. He submits that the law to cater for any bona fide mistakes affords any candidate under section 60(4) of the Act to file up to five nomination papers in the same constituency with the elaboration that one proposer and one seconder can only present themselves to the extent of one nomination paper meaning thereby that multiplicity of individuals may be ensured to prevent any error that may result in rejection. Five nomination papers are allowed precisely to preclude any mistake at this formative point which is safeguarded by proviso "i" to section 62 of the Act that enjoins against rejection of one set of nomination papers based on any other set of nomination papers of the candidates. The wisdom behind the proposer and seconder to belong to the voters list of the particular area is to establish them to be integral to the stakes held qua the particular territorial domain covered within the scope of that constituency.
He further submits that no ambiguity in any case existed in the instant case since as per appellant's own stance upon proper self-inquiry at subsequent stage the reality was revealed upon the candidate who appears to have proceeded in a negligent manner without due diligence.
He submits that the territorial domains dividing and carving the electoral landscape into constituencies is the exclusive constitutional province of the Election Commission of Pakistan that carries out an exercise in the form of delimitation and issues electoral rolls containing particulars of registered voters for that particular constituency upon completion of the delimitation process in accordance with law which is duly notified by the Election Commission of Pakistan on website and lists are available on application to any member of the public to ensure and ascertain their names on the voters list for any particular constituency.
5. He on Court query submits that this process has also been simplified by pushing 8300 on a phone which triggers the Short Messaging Service (SMS) disclosing the name of any particular individual in terms of block code and area which could easily be unpacked by any prudent person to ascertain the constituency within which his name occurs as voter. He submits that at the time the nomination papers are received scrutiny is made on the basis of documents submitted including the Voter Certificate that bears the particulars. When the candidate intends to file nomination papers and for the purpose aligns the support of a proposer and seconder it is expected that due diligence shall be thoroughly made especially when candidates offering themselves for election as representatives of the people are expected to be fully aware of the structure of rules and regulations that create institutions and bind them to follow the requirements of law. He concludes by relying upon Jamshed Iqbal Cheema v. The Election Appellate Tribunal and 19 others (2022 CLC 463) and an unreported Larger Bench judgment of this Court rendered in Ijaz v. Returning Officer PP-115, Faisalabad (W.P. No.223502 of 2018).
6. The appended documents have been carefully examined and the provisions of law duly considered with the able assistance of learned counsel from both sides. The delimitation process undoubtedly under the Constitution of the Islamic Republic of Pakistan, 1973 is a prerogative of Election Commission of Pakistan which in the instant case was completed by 30.11.2023. Electoral rolls were finalized by the Election Commission of Pakistan and material particulars were available to the members of the parliament on application. According to these lists on scrutiny by the Returning Officer the name of the proposer Muhammad Ramzan did not occur on the list of voters for PP-174. On inquiry it transpires that his name actually is part of the voters list for PP-173, as such, the proposer in the final electoral rolls duly issued after the delimitation process was made for the forthcoming general elections did not show the name of the proposer Muhammad Ramzan as a registered voter for PP-174. The Returning Officer being bound by the entries under section 62(6) of the Act in the electoral roll on scrutiny finding the name of the proposer not to occur on the electoral list for the said constituency in exercise of powers under section 62(9)(b) of the Act proceeded to reject the nomination papers. The precedent cited by the learned Legal Advisor in Jamshed Iqbal Cheema v. The Election Appellate Tribunal and 19 others (2022 CLC 463) as well as the Larger Bench Judgment Ijaz v. Returning Officer PP-115, Faisalabad (W.P. No.223502 of 2018) hold to the effect that the provisions qua proposer in the Act are mandatory in nature and any defect in respect thereof in the nomination was a defect of substantial nature and the same could not be cured at a subsequent stage and nomination papers invalid on such account could not be allowed to be validated afterwards in exercise of powers either by the Returning Officer or even by Appellate Tribunal.
7. Learned counsel for the appellant has attempted to argue that the defect is curable in nature and that there is discretion given to the Returning Officer to cure defects after providing opportunity to a candidate to remove them. This submission is meritless in view of the enunciation of law as made Order of the Larger Bench which bears that such discretion of curing defects in the nomination papers is limited to correction of error in name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder and that the same may be remedied forthwith but specifically holds against substitution of proposer or seconder which is declared to be impermissible. Sharafat Ali and another v. D.R.O. and others (2008 SCMR 539) cited by the learned counsel for the appellant is a leave granting Order encapsulating interim relief in distinguishable facts yet in flux. In the instant case after the delimitation process the constituencies are clearly defined, the lists of registered voters/electoral rolls for all constituencies are available in black and white and due diligence by any man of prudence would enable this error to be avoided which even otherwise could be well preempted by filing up to five nomination papers with different proposers and seconders in case of any ambiguity which in the instant case does not appear to be so. Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 SC 277) is not correctly pressed into service as on perusal its ratio appears to go against the appellant.
8. As upshot of the above the order of the Returning Officer is unexceptionable which does not call for any interference. This appeal being meritless is, accordingly, dismissed.