SHAKEEL AHMAD, J.- Being aggrieved of the impugned order dated 30.12.2023, passed by the Returning Officer of PK-56 Mardan-III, whereby and whereunder, the nomination papers submitted by the appellant before the Returning Officer, were rejected, the appellant Saeed-Ullah has filed the instant appeal under section 63 of the Elections Act, 2017.
02. The brief facts giving rise to the instant appeal are that the appellant filed his nomination papers before the Returning Officer of PK-56 Mardan-III, as a candidate for the seat of Provincial Assembly of Khyber Pakhtunkhwa. Vide order dated 30th December 2023, the Returning Officer rejected the nomination papers of the appellant on the ground that his seconder Mr. Shehbaz Ali is not registered voter of his constituency (PK-56 Mardan-III), which necessitated to file the instant appeal.
3. The learned counsel for the appellant pleaded that the Returning Officer wrongly rejected his nomination papers, and that he was under obligation to allow him to substitute the name of the seconder Shehbaz Ali. He next pleaded that it was a minor defect, which could be rectified at the time of scrutiny of nomination papers and prayed for setting aside the impugned order.
4. In response, the learned counsel appearing on behalf of the Election Commission of Pakistan submitted that the admitted defect of the appellant's seconder not being from the constituency of the appellant was a defect of a substantial nature, which could not be cured/rectified by allowing substitution of new seconder.
05. Having considered the arguments of the learned counsel for the parties, I am of the view that following legal questions require consideration by this Tribunal: -
(i) What is the object or purpose of nomination of proposer and seconder?
(ii) Whether the provisions of section 60 of the Elections Act, 2017 are mandatory? and
(iii) If there is a defect in nomination papers with respect to the proposer or seconder or both not being from the constituency, is the same amenable to rectification or not?
06. After consulting section 60 of the Elections Act, 2017, I find that the only qualification of a proposer and/or seconder is that they be a voter of the constituency of a qualified candidate for Member of that constituency in terms of section 60 of the Elections Act, 2017. The word "vo ter" is defined in clause (xli) of section 2 of the Act of 2017. For the sake of convenience, it is reproduced herein below: - "(xli) "voter" means--
(a) in relation to an Assembly or a local government, a person who is enrolled as a voter on the electoral roll of any electoral area in a constituency; and
(b) in relation to the Senate, a person who-- I. for election to a seat from a Province, is a Member of the Provincial Assembly; and II. for election to seats from the Islamabad Capital Territory, is a Member of the National Assembly".
07. The Returning Officer in the absence of qualification, mentioned above, is obliged to reject the nomination papers under clause (b) of sub-section (9) of section 62 of the Act of 2017, and that power for remedying and rectifying defect under clause (d)(ii) of sub-section (9) of section 62 of the Act of 2017 is limited to a defect of a clerical nature. A defect with respect to the proposer and/or seconder not being a voter of the constituency, as happened in this case, would go to the root of his qualification to be a proposer or seconder as the same was the only qualification required for such person and the same is not amenable to rectification, as only the Commission has been empowered to modify electoral roll by including in an electoral roll of the name of any person entitled to be enrolled on such electoral in terms of section 40, but subject to section 39 of the Act of 2017. However, under no circumstances, the Returning Officer could allow substitution as it was limited by the scope of powers conferred to the Returning Officer for scrutiny, rejection, and rectification of the nomination papers.
08. A perusal of the nomination Form "Alif"' for General Elections to the National/Provincial Assemblies reflects that it requires declaration by the proposer or seconder to the effect that he is registered as voter at serial # such and such of electoral roll for the electoral area of the constituency of the candidate. The declaration with respect to the proposer and/or seconder being the attributes of his qualification, therefore, if he is not such a voter of the relevant constituency, he cannot act as proposer and/or seconder. The question of the object and purpose of nomination by a proposer and/or seconder has elaborately been discussed in the judgment reported as "Federation of Pakistan and others vs. Mian Muhammad Nawaz Sharif and others" (PLD 2009 SC 284), wherein, it was held that proposer and seconder are the recommendees of the candidate nominated for election. Thus, it can safely be concluded that the proposer and seconder must be voters of the same constituency, who put forward the name of a duly qualified candidate whom they considered suitable to represent the electorate, rather it is an endorsement of the nominated candidate by voter(s) of the same constituency, therefore, if discovered that the proposer and/or seconder are not the voters of the said constituency, it would be tantamount to no nomination at all and thus a defect of a substantial nature, which cannot be rectified or cured by substituting another one, whereas clause (d)(ii) of sub-section (9) of section 62 of the Act of 2017 only empowers a Returning Officer to allow a defect other than one of a substantial nature to be remedied, i.e. the name, or the corresponding serial number in the electoral roll or the other particulars of the candidates or his proposer or seconder to bring them in conformity with the corresponding entries in the electoral roll. But if the name of the candidate or his particulars are altogether missing and/or same is the position of his proposer/seconder, the Returning Officer has no power to add these afresh. The same shall be the position with regard to substitution as the provisions of clause (d)(ii) of sub-section (9) of section 62 do not envisage substitution of the name of a disqualified proposer and/or seconder and the Returning Officer or Tribunal does not enjoy the power under the law to allow altogether new person to be replaced as proposer and/or seconder for a person who is absolutely disqualified or ineligible to propose or second. In this behalf, reference may be made to the case reported as "Mudassar Qayyu m Nahra vs. Election Tribunal Punjab, Lahore" (2003 MLD 1089), wherein, the Full Bench of the Hon'ble Lahore High Court held that: - "The unqualified proposer or seconder leads to the rejection of nomination papers as provided in section 14(3)(b) and, therefore, such a defect cannot be held to be not of substantial nature because such a defect can be removed only by the substitution of the proposers or the seconders and the safety valve has been provided to the candidates by permitting them by filing up to five nomination papers".
09. As a result of the conclusions as aforesaid recorded by this Tribunal, the appellant has not made out a case for interference. Consequently, this appeal is dismissed.