Ch. Abdul Aziz, J. Through this single judgment, I intend to decide Election Appeal No.29 of 2024 & Election Appeal No.30 of 2024 since both are tied with the common knot of similar facts and background in which the Returning Officers rejected the nomination papers of Raja Safeer Akbar (appellant) from two different constituencies of Jhelum.
2. The brief facts which led to the filing of afore-mentioned Election Appeals are to the effect that Raja Safeer Akbar (appellant) submitted his nomination papers from NA-60 Jhelum-I and PP-24 Jhelum-1 for contesting election of National Assembly and Provincial Assembly in accordance with the schedule given by the Election Commission of Pakistan; that Raja Safeer Akbar (appellant) mentioned all the details required to be furnished through his nominees duly authorized in this behalf; that during security, the nomination papers of the appellant were rejected mainly on the ground that he did not sign his nomination papers nor sworn affidavit by himself; that the appellant even did not appear before the Returning Officer for affixing sign or verification and in consequence thereof the nomination papers of Raja Safeer Akbar (appellant) were rejected by the Returning Officer NA 60 Jhelum and Returning Officer PP-24 Jhelum through orders dated 30.12.2023.
3. Learned counsel for the appellant argued that the impugned orders are passed without adhering to the provisions of Section 62 of the Election Act, 2017; that admittedly, the appellant mentioned all the necessary details in Form-A & Form-B annexed with the nomination papers; that the appellant fully authorized his agent to sign, file, present and plead his case before all election authorities and that since the impugned orders are contrary to law on the subject, thus are to be set-aside.
4. Assistant Director (Law) Election Commission of Pakistan and the Assistant Attorney General for Pakistan vociferously argued that the impugned orders are in accordance with the Election Act, 2017 and do not suffer from any perversity.
5. Arguments heard. Record perused.
6. A wade through the record reveals that for contesting upcoming election, Raja Safeer Akbar (appellant) filed his nomination papers from NA-60, Jhelum-I and PP-24 Jhelum-I. The nomination papers in both the constituencies were signed and submitted by Muhammad Waseem as attorney. During scrutiny carried out in terms of section 62 of the Election Act, 2017, the nomination papers of Raja Safeer Akbar (appellant) were rejected by both the Returning Officers through separate orders dated 30.12.2023. The perusal of impugned orders reveals that rejection was mainly structured upon the ground that nomination papers were not personally signed by Raja Safeer Akbar (appellant) and instead the needful was done by his attorney Muhammad Waseem.
7. According to the scheme of things provided in the Election Act, 2017, the nomination papers along with declarations ought to be signed by the candidate, desirous of contesting the election, as is evident from section 60(2) which for reference sake is being reproduced hereunder:- "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 ...."
(emphasis provided)
The language of section 60(2) ibid is explicit in sense and leaves no room for discussion that the nomination papers (Form-A) and declarations are required to be submitted in terms of clause (a) and (b) of the foregoing provision ought to be signed by none other than the candidate himself.
From the use of word shall in section 60(2) it can be gathered that requirement of signing the nomination papers and declarations by the contestant is mandatory in nature and cannot be relaxed. The Supreme Court of Pakistan in a case reported as "Province of Punjab through Secretary Excise and Taxation Department, Lahore and others vs. Murree Brewery Company Limited (MBCL) and another" (2021 SCMR 305) interpreted the word shall in following words:- "The test to determine whether a provision is directory or mandatory is by ascertaining the legislative intent behind the same. The general rule expounded by this Court is that the usage of the word 'shall' generally carries the connotation that a provision is mandatory in nature."
I feel a pressing need to mention here that the power of Returning Officer to reject the nomination papers are embedded in Section 62 (9) of the Election Act, 2017. According to Section 62(9)(c) of the Election Act, 2017, the nomination papers can be rejected if filed without adhering to the provisions of section 60 and 61. In the backdrop of section 60(2) it can inevitably be gathered that the nomination papers of the appellant were not in consonance with the legal requirement thus as a necessary consequence the same were rightly rejected by the Returning Officer in accordance with section 62(9)(c).
8. During arguments, learned counsel in pursuance of a query raised by the Tribunal candidly conceded that even at present Raja Safeer Akbar (appellant) is abroad. The learned counsel, however, made a last-ditch effort for the acceptance of instant appeal with the arguments that the needful of signing nomination papers can be done by an authorized person through the enabling provision of section 60(3) of the Election Act, 2017. The submission so made by the learned counsel for the appellant since runs contrary to the framework of Election Act, 2017 thus is destined to be discarded. Section 60(3) of the Election Act, 2017 upon which learned counsel for the appellant placed reliance does not deal with the signing of the nomination papers rather pertains to their submissions before the Returning Officer. For the clarity of proposition sub-section 3 of section 60 of Election Act, 2017 is referred hereunder:- "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."
(emphasis provided)
I have also pondered upon the "Explanation" given in Section 60 by the legislature which is annexed with sub-section 3 thus the authorization in favour of an Advocate is restricted only to the extent of submission of nomination papers and cannot be stretched to an extent of permitting a person other than the candidate to sign the document required to be submitted in terms of sub-section 2.
The learned counsel for the appellant was confronted with all the aforementioned facts and legal provisions upon which he went speechless. It is settled principle of law that if the law requires things to be done in particular manner then these must be done accordingly. This rule emanates from the maxim "a communi observantia non est recedendum." which is even acknowledged by the Supreme Court of Pakistan in the case titled as "Muhammad Akram vs. Mst. Zainab Bibi"
(2007 SCMR 1086), wherein the Supreme Court of Pakistan held as under:- "When the law requires a thing to be done in a particular manner then it would be a nullity in the yes of law, if not performed in that very prescribed manner."
9. For what has been discussed above the titled election appeals are dismissed.