MUHAMMAD NAEEM ANWAR, J.- Impugned through instant election appeal filed u/s 63 (1) of the Elections Act, 2017 read with rule 54 of the Election Rules, 2017 is the order dated 25.12.2023, whereby the learned Returning Officer, while dismissing the objection of the present appellant, has accepted nomination papers of the respondent No.5 for contesting General Elections, 2024 from the Constituency of PK-12 Dir-II.
2. Learned counsel for the appellant contended that respondent No.5 and the appellant have submitted their nomination papers for contesting General Elections 2024 from the constituency of PK-12 Dir-II alongwith all particulars required under the law. Nevertheless, the appellant has submitted an objection that respondent No.5 was not qualified to be elected as Member of Provincial Assembly (MPA) in terms of Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution) on account of his disqualification in view of maneuvering fake, bogus and fabricated degree of Bachelor of Arts (B.A) through unfair means by impersonation, which was properly adjudicated and decided up-to the apex court against respondent No.5. He added that on the basis of bogus/ fabricated degree, earlier respondent No.5 had contested General Elections 2013 from the constituency of PK-93 Dir Upper-III; that he was declared as a returned candidate, however, Election Petition No.106 of 2013 titled "Sahibzada Sana Ullah Vs. Behram Khan and others" filed by the present appellant remained pending adjudication and ultimately, the learned Election Tribunal, Peshawar vide its judgment dated 23.07.2015 allowed the same, consequently the election of respondent no.5 from the constituency of PK-93 Upper Dir was set aside and the seat was declared vacant, with directions to the Election Commission of Pakistan
(ECP) to hold fresh election in accordance with law; that on the basis of said judgment in view of fake degree of the respondent No.5, Complaint No.01 of 2015 titled "The Election Commission of Pakistan through District Election Officer Vs. Bahram Khan" was filed against respondent No.5 under sections 94 (2) of the Representation of People Act, 1976 (the Act of 1976) read with sections 82 & 94 of ibid Act and sections 199, 200 & 471 of the Pakistan Penal Code, 1860 (P.P.C), which was properly contested by respondent No.5 but the learned Additional Sessions Judge, Dir Upper at Wari through judgment dated 26.03.2021 convicted the respondent No.5 u/ s 199 PPC read with sections 78 (3)(d) and 82 of the Act of 1976 and sentenced him to suffer two years rigorous imprisonment (R.I) with a fine of Rs.5,000/- or in default of payment of fine, he shall further undergo one month Simple Imprisonment (S.I), He was also convicted u/s 200 PPC read with section 78 (3
(d) and 82 of the Act of 1976 and sentenced to suffer one year R.I with a fine of Rs.5,000/- or in default to undergo one month S.I. He was further convicted u/s 471 PPC read with sections 78 (3)(d) and 82 of the Act of 1976 and sentenced to undergo one year R.I with a fine of Rs.5,000/- or in default to suffer further one-month S.I. According to him, the conviction of respondent No.5 shall be dealt with under Article 63(1)(h) of the Constitution, as such, respondent No.5 was not qualified to contest the elections. In support of his submissions, he placed reliance on the cases of Civil Appeal No.750 of 2015 titled "Behram Khan Vs. Sahibzada Sanaullah and others" decided by the apex Court on 17.08.2015, "Nasir Mehmood and another Vs. Umar Safid and others" (2019 SCMR 382), "Muhammad Nasrullah Vs. Election Commission of Pakistan and 09 others" (2009 CLC 1167, Lahore), "Ch. Zahid Iqbal vs. Returning Officer NA-162 Sahiwal-III and 03 others" (2013 CLC 1856, Lahore), "Abdul Kabir Vs. The State" (PLD 1990 SC 823), "Rizwan Zaka Gill Vs. Government of Punjab" (PLD 2015 Lahore 28), "Hail Nasir Mehmood Vs. /Man Imran Masood and others" (PLD 2020 SC 1089), "Urnar Saflad and others Vs. Nasir Mehmood and others" (2017 CLC Note. 194, Lahore), "Sarni Ullah Baloch and others Vs. Abdul Karim Nousherwani and others" (PLD 2018 SC 405), "Pir Mazhar-ul-Haque Vs. Election Tribunal-I (2003 CLC 300, Karachi) and "Bashir Hussain Vs. Zahirul Islam" (2003 MLD 1977, Peshawar).
3. Conversely, M/S. Khuram Mehmood Qureshi and Syed Abdul Hach Advocates representing respondent No.5 submitted at the bar that the declaration pertaining to fake decree in view of the judgment in Election Petition No.106 of 2013 dated 23.07.2015 and judgment of the apex Court' dated 17.08.2015 in Civil Appeal No.750 of 2015, whereby he was declared as disqualified and de- seated from of constituency of PK-93, being returned candidate, was a disqualification only to the extent of General Elections of 2013, in which, he was elected and declared as a returned candidate, as such, once again he could not be declared to be disqualified for contest of General Elections, 2024 being based upon the judgment of the learned Additional Sessions Judge, Dir Upper at Wari dated 26.03.2021 in Complaint No.1 of 2015 as same would amount to double jeopardy, which is against Article 18 of the Constitution. According to them, in view of the judgment of the apex court in Civil Appeal No.982of 2018 titled "Hamza Rasheed Khan Vs. Election Appellate Tribunal, Lahore High Court, Lahore and others') the interpretation of Article 62 (1) (f) of the Constitution pertaining to imposition of lifetime disqualification upon a person through an implied declaration of the Court of civil jurisdiction while adjudicating upon some civil rights and obligations of the parties is beyond the scope of said Article and amounts to reading into the Constitution, as such, since no such declaration in terms of Article 62 (1)(f) of the Constitution has been passed against respondent No.5 from the Court of competent jurisdiction, therefore, respondent No.5 could not be declared as disqualified under Article 62 (1) (f) of the Constitution. They submitted that even if a person was convicted and sentenced up-to two years and period of five years has not been elapsed is not a disqualification under Article 63 (1)(h) of the Constitution unless alleged offence is of moral turpitude. They further submitted that the conviction and sentence of respondent No.5 has been suspended by this Court, thus, same was not an obstacle in his way for contest of election.
They supported the impugned order and in order to fortify their submissions, they placed reliance on the cases of "Allah Dino Khan Bhayo Vs. Election Commission of Pakistan and others" (PLD 2020 SC 591), "Sami Ullah Baloch and others Vs. Abdul karim Nousherwani and others" (PLD 2018 SC 405), C.P No.3632 of 2018 titled "Roshan Ali Buriro Vs. Syed Murad Ali Shah and others" decided by the apex Court on 23.01.2019, "C.P No.D-1082 of 2023 decided by Hon'ble Sindh High Court Karachi on 19.10.2023, "Muhammad Faisal Vawda Vs. Election Commission of Pakistan through Secretary and others" (2023 SCMR 370), "Haleem Adil Sheikh Vs. Election Commission of Pakistan" (2022 CLC 16), "C.P No.D-265 of 2020 decided by Hon'ble Sindh High Court on 04.06.2021","Sardar Yar Muhammad Rind Vs. Election Tribunal Balochistan Quetta and others"
(PLD 2019 SC 137), and "Muhammad Ashraf Vs. The State" (2003 MLD 165).
4. The Learned law officer of the respondent/ Election Commission of Pakistan relied upon the submission of learned counsel for appellant.
5. Arguments heard and record perused.
6. The contest of general elections 2013 by respondent No.5 from the constituency of PK-93 Dir-III held on 11.05.2013 for Khyber Pakhtunkhwa Assembly and his declaration as a returned candidate by the ECP on 22.05.2013 through publication in official gazette followed by filing of Election Petition No.106 of 2013 titled "Sahibzada Sanaullah Vs. Behram Khan and others" and the judgment therein by the learned Election Tribunal, Peshawar on 23.07.2015 is an admitted fact. The learned Election Tribunal, after recording of the evidence, has reached to the conclusion that: "For what has been discussed above, Election Petition No.106 of 2023 is hereby allowed with cost.
As sequel to the aforesaid findings, the election of Behram Khan respondent from PK-93 Upper Dir is set aside with all the consequences noted in the above referred judgments of the apex Court. The seat of the said constituency is declared vacant and the Election Commission of Pakistan is directed to hold fresh election in the said constituency according to law. Aggrieved party may file appeal before the august Supreme Court of Pakistan against this judgment within thirty days in accordance with law."
The grounds, on the basis of which, the election petition was filed before the Election Tribunal, were as under:
(a) That the nomination papers of respondent containing false statement is invalid, his election and consequent notification based thereon was void, not in accordance with law and Rules on the subject. Besides, the same is in violation of Article 4 of the Constitution of Pakistan, 1973.
(b) That the respondent has not passed BA examination from Malakand University. He is holding provisional B.A Certificate of another person, having similar name, who has passed the said examination from the said University. Even the original BA degree has not been issued to the respondent or real person/student, who passed the BA examination, as the original BA degree is still lying with the University.
(c) That the BA degree from Malakand University, which the respondent is claiming to be his, belongs to a person resident of Swat as per university record, whereas respondent is domiciled of and permanently lives in Dir Upper. No doubt the name and parentage, with slight difference, of respondent and original person/student, who passed the BA examination, are identical but their addresses, face in the photographs, age and signatures are absolutely different.
(d) That the respondent has applied with photograph for the grant of BA degree to the Controller of examination, Malakand University, who, in his deficiency letter, directed him to visit office personally along with the NIC, Domicile and original documents of Matric (DMC)/ provisional Certificate), two recent colored photos and BA/BSC Part I and Part II DMCs but respondent did not appear before him till date, as he, on the face of it is not the one who passed BA examination from the said University.
(e) That the respondent's application carrying his photograph does not match with the photograph of original degree holder available in the University record. Further, the signature and address of respondent on the application is different from the signature and address in the University record. Even the father's name in the application and University record are slightly different.
(f) That the signature and the photo posted on the attendance sheets of examination center do not tolly with the signature and photo of the respondent, which indicates that respondent is not the person who appeared in the B.A examination but he is reaping undue benefit from the provisional B.A certificate of another person having similar name and parentage.
(g) That respondent in order to bring his age in conformity with the age of original graduate available in the University record, tampered his date of birth in the NADFtA office, which further indicates that respondent is not the person who passed BA examination from Malakand University but using the provisional BA certificate of another person by impersonation, fraud, cheating and misrepresentation.
(h) That the respondent, in view of the above, is guilty of corrupt practices in terms of section 78, RPA, 1967 and not qualified/disqualified to contest the election under section 99 and 100, RPA 1967 read with Articles 62 and 63, particularly Articles 62 If) and 63 (s) of the Constitution.
It is also an admitted fact that Civil Appeal No.750 of 2015 was filed before Hon'ble Supreme Court of Pakistan by respondent No.5 against the judgment of the Election Tribunal in Election Petition No.106 of 2023 dated 23.07.2015, which was dismissed by the apex Court on 17.08.2015, wherein it was held that: "19. The appellant within the contemplation of Articles 62(f) and 63(p) of the Constitution, 1973 read with sections 78(3)(d) and 99(f) of the RoPA, 1976 when found to have made a false statement in respect of his educational qualification for contesting general election, such persons by no standard could be considered to be sagacious, righteous non-profligate, honest and ameen and thus lack inherent qualification as prescribed under referred provisions to become Member of the Parliament and for the matter of the Provincial Assembly was rightly de- seated. In view of the foregoing discussion, we do not find any merit in this Appeal, the same is accordingly dismissed."
7. In addition to the above, it is also not denied by respondent No.5 that ECP through District Election Officer has filed Complaint No.1 of 2015 on 28.09.2015 before the learned Additional Sessions Judge, Dir Upper at Wan for awarding punishment to respondent No.5 in respect of commission of offence under the provisions of the Act of 1976 read with those of Pakistan Penal Code, 1860. The said complaint was contested by respondent No.5, however, after completion of trial, the learned Additional Sessions Judge, Dir Upper at Wari through his judgment dated 26.03.2021 convicted respondent No.5 u/s 199 PPC read with sections 78 (3)(d) and 82 of the Act of 1976 and sentenced to suffer two years rigorous imprisonment (R.I) with a fine of Rs.5000/- or in default of payment of fine, he shall further undergo one month Simple Imprisonment (S.I), He was also convicted u/s 200 PPC read with section 78 (3
(d) and 82 of the Act of 1976 and sentenced to suffer one year R.I with a fine of Rs.5000/- or in default to undergo one month S.I. He was further convicted u/s 471 PPC read with sections 78 (3)(d) and 82 of the Act of 1976 and sentenced to undergo one year R.I with a fine of Rs.5000/- or in default to suffer further one-month S.I. It is also undisputed that Criminal Appeal No.98-M/2021 has been filed by respondent No.5 before this Court, which is still pending adjudication. It has not been disputed by either of the parties that operation of conviction and sentence of respondent No.5 has been suspended by this Court u/s 426 Cr.P.C and respondent No.5 was released on bail vide order dated 09.04.2021.
8. The resolution of the controversy requires to be made by this Tribunal by determining the following points: 1) As to whether the conviction and sentence awarded to the respondent No.5 by the learned Additional Sessions Judge, Dir Upper at Wari through judgment dated 26.03.2021 under the provisions of the Act of 1976 read with those of Pakistan Penal Code, 1860 in Complaint No.1 of 2015 in juxtaposition with disqualification as a returned candidate by de-seating him from the Constituency of PK-93 Dir Upper-III in Election Petition No.106 of 2013 amounts to a double jeopardy?
2) As to whether the offence committed and conviction awarded to respondent No.5 shall be considered as conviction and sentence in the case of moral turpitude and if so, the suspension of his conviction and sentence by this Court u/s 426 Cr.P.C. would qualify him to contest the General Elections 2024? and 3) As to whether the decision of Election Tribunal dated 23.07.2015 and that of the apex Court dated 17.08.2015 is a declaration in accordance with Article 62 MO) of the Constitution pertaining to lifetime disqualification of respondent No.5 from contest of elections?
Record transpires that present appellant Sahibzada Sanaullah was the petitioner of Election Petition No.106 of 2013 titled "Sahibzada Sanaullah Vs. Behram Khan and others" filed u/s 52 of the Act of 1976, wherein he was seeking declaration that the nomination of respondent No.1 may be declared as invalid, his election and subsequent notification be declared to be void, the scat of PK- 93, Dir Upper be declared vacant, with directions to the Election Commission of Pakistan to hold fresh election. Said case against respondent No.5 succeeded and prayer of the appellant was granted by the learned Election Tribunal on 23.07.2015, against which, Civil Appeal No.750 of 2015 was filed by respondent No.5 but same was dismissed by the Hon'ble Supreme Court of Pakistan on 17.08.2015 wherein, it was observed by the apex Court that such a person by no standard could be considered to be sagacious, righteous, non-profligate, honest and ameen and thus lacks inherent qualification as prescribed under the referred to above provisions to become Member of the Parliament and for the matter of the Provincial Assembly was rightly de-seated. However, said disqualification in view of article 62 (1) (f) of the Constitution would not come in way of respondent No.5 for his lifelong disqualification from contest of elections as this controversy has been laid to rest by the apex Court in the Civil Appeals No.982 of 2018, 984 of 2018 and 880 of 2015 etc. through consolidated judgment in C.A No.982 of 2018, wherein through short order, it has been held that: i. Article 62 (1)(f) of the Constitution of the Islamic Republic of Pakistan (Constitution) is not a self- executory provision as it does not by itself specify the Court of law that is to make the declaration mentioned therein nor does it prove for any procedure for making and any period for disqualification, incurred by, such declaration. ii. ................................. iii. ................................. iv. ................................. v. Until a law is enacted to make its provisions of executory article 62 (1)(f) of the Constitution stands on a similar footing as article 62 (1)(d)(e) and (g) and serves as a guideline for voters in exercising their right to vote; and vi. The view taken in Sami Ullah Baloch Vs. Abdul Karim Nousherwani (PLD 2018 SC 405) treating the declaration made by a Court of civil jurisdiction regarding breach of certain civil rights obligations as a declaration mentioned in Article 62 (1)(f) of the Constitution and making such declaration to have a lifelong disqualifying effect amounts to reading into the Constitution and is therefore overruled".
Since, the judgment in the case of "Sami Ullah Balock Vs. Abdul Karim Nausherwani" (PLD 2018 SC 405) has been revisited by the apex Court by majority of opinion pertaining to lifelong disqualification, as such, respondent No.5 could contest the elections, however, he has been convicted and sentenced by the Court of competent jurisdiction under the provisions of the Act of 1976 and was penalized for penalty of corrupt practices u/s 82 of Act of 1976 and u/s 199 of the PPC pertaining to false statement made in declaration, which is by law receivable as evidence and u/s 200 PPC for using as true such declaration knowing it to be a false qua section 471 PPC for using as genuine a forged document. He was convicted and sentenced on 26.03.2021 by the learned trial Court (Additional Sessions Judge, Dir Upper), against which, he has filed Cr.A No.98-M of 2021 before this Court along with an application u/s 426 Cr.P.C. for suspension of operation of his conviction and sentence awarded to him by the learned trial' Court, his application was allowed by this Court 09.04.2021, operation of his conviction and sentence was suspended and resultantly, he was released on bail but said suspension, within the purview of section 426 Cr.P.C, would have no consequences for the purpose of being qualified to contest the General Elections. The Hon'ble Supreme Court of Pakistan in the case of "Nasir Mehmood and another Vs. Umar Saud and others" (2019 SCMR 382) has held that: "It is the conviction of the accused which is relevant in the context of Article 63(1)(h) of the Constitution and section 27(2)(i) of the PLGA. The suspension of sentence would have no consequence on the conviction of the appellants for the purposes of being qualified to contest either the local bodies elections or the elections for the Legislative Assemblies. Unless the conviction is specifically suspended by the Appellate Court by assigning cogent reasons therefor, or the appeal of the Appellant is ultimately allowed and his conviction as well as sentence are set aside by the Appellate Court, the conviction of the Appellant would continue to hold the field and the disqualification incurred by him, by reason of this conviction, shall remain intact.".
The order passed by this Court on the application of the respondent No.5 filed u/s 426 Cr.P.C. reflects that due to huge backlog of criminal cases before the Court and no possibility of fixation of his appeal before the Court in near future, operation of his conviction and sentence was suspended and he was directed to be released on bail provided he furnishes bail bonds in the sum of Rs.1,00,000/- (rupees one hundred thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court/Duty Judge. The full Bench of the Hon'ble Lahore High Court in the case of "Ch. Zahid Iqbal vs. Returning Officer NA-162 Sahiwal-111 and 03 others" (2013 CLC 1856, Lahore) has held that: "Conviction was complete as soon as the person charged had been found guilty by a court of competent jurisdiction and nomination papers of the petitioner were liable to be rejected on the ground that only his sentence had been suspended which did not mean that his conviction had also been suspended. Suspension of sentence without a specific order for suspension of conviction did not mean or include suspension of conviction, and despite suspension of sentence, conviction would remain intact. Distinction existed between a conviction and sentence and suspension of a sentence did not mean automatic suspension of conviction. No bar however existed on the Appellate Court under 3.426, Cr.P.C. to suspend sentence and also suspend the conviction in appropriate cases where an application was moved before such court if the adverse consequences of maintaining such conviction were brought to the notice of the Appellate Court and a specific prayer was made in such regard."
Reliance may also be placed on the case of Abdul Kabir Vs. The State (PLD 1990 SC 823), wherein the apex Court has held "the suspension of sentence is only a concession to an accused under section 426, Cr.P. C. but it does not mean that the conviction is erased". Thus, without mentioning the reasons for suspension of the operation of the conviction in the above order u/s 426 Cr.P.C and that too when the prayer of the appellant/ respondent No.5 in the said appeal was only for suspension of operation of his conviction and sentence and for his release on bail, the conviction and sentence of the appellant challenged by respondent No.5 through ibid criminal appeal before this Court, in view of the principle laid down by the apex Court in the referred to above cases, still holds the filed.
9. Turning to another aspect as to whether the conviction and sentence of respondent No.5 falls under clause (h) of Article 63 (1) of the Constitution, whereby the framer of the Constitution has intended that a person shall be disqualified from being elected or chosen as, from being a member of MaJlis-e-Shora (Parliament), if.- a) .......................... b) ..........................
C) .......................... d) .......................... e) .......................... f) .......................... g) .......................... h) he has been on convictions for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has been elapsed since his release."
In the instant matter, respondent No.5 has been convicted and sentenced to two years and the period of five years has not been elapsed from the date of his conviction and only question as to whether the offence committed by him, for which, he was convicted and sentenced is of moral turpitude, which term has not specifically been defined by the Pakistan Penal Code or by any other special law, thus, it requires discussion in view of the offence committed by the respondentNo.5.
The Hontble Lahore High Court in the case of "Rizwan Zaka Gill Vs. Government of Punktb" (PLD 2015 Lahore 28) has held that: "Disqualifying conditions under S.27(2)(i) of Punjab Local Government Act, 2013, namely, conviction of offences involving moral turpitude and misuse of authority had a wide import, and largely encompassed the conditions of integrity and good character that were present in Art. 62(f) of the Constitution. For an allegation of dishonesty or corruption a fair standard was laid down in S.27(2)
(1) of Punjab Local Government Act, 2013, that there should be a determination by a competent court of law before actually disenfranchising or excluding a candidate from exercising his right to contest an election to a Local Government office. Same principle was also enshrined in Art. 62(f) of the Constitution, thus in such respect there was parity and harmony between the qualifications prescribed for eligibility to contest Local Government elections and Parliamentary elections."
It has been proved on record that respondent No.5 has committed the offence of impersonation and forgery, on the basis of which, he was elected as a member of legislative assembly and on proving the allegations, not only he was declared as disqualified by the Election Tribunal but later on he was also convicted and sentenced for the said offence by the court of competent jurisdiction and said decision is still intact. Reliance may also be placed on the case of Umar Safiad another Vs. Nasir Mehmood and others" (2017 CLC Note. 194, Lahore).
10. Learned counsel for the respondent No.5 for assistance with respect to the offence of 'moral turpitude' has made a reference form the definitions of 'moral turpitude' from American Immigration Law and from other different dictionaries but since the offence committed under different provisions of the Act of 1976 in juxtaposition with Article 62 (1) (I) of the Constitution and disqualification of respondent No.5 through Election Petition No.106 of 2013 and his conviction under the specific provisions of law by the Court of competent jurisdiction in Complaint No.1 of 2015 for the offence committed is an offence of morality, as such, it falls under the definition of moral turpitude as contemplated by Article 63 (1)(h) of the Constitution.
11. Insofar as the submission of learned counsel for the respondent No.5 that disqualification of respondent No.5, being based upon the allegations of corrupt practices, though was proved against him and he was de-seated from the seat of PK-93 after being elected as the member of Provincial Assembly, he could not once again be debarred or disqualified from the upcoming elections as it would amount to double jeopardy on the analogy that a man cannot be punished twice for a single offence is concerned, same is misconceived: in said matter (election petition), he was held disqualified from being elected as a member of the legislative assembly from the Constituency of PK-93 whereas in Complaint No.1 of 2015, he has been convicted and sentenced for the offence. The word "conviction" has been used by the framer of Constitution under Article 63 (1)
(h) and respondent No.5 was convicted and sentenced for two years, but neither said conviction has been set aside nor the period of five years has been elapsed, therefore, neither the rejection of nomination papers of respondent No.5 would amount to double jeopardy nor for hammering him twice for the same offence. Needless to note here that the conviction cannot be equated with the declaration of disqualification of a candidate but the conviction is a ground for disqualification, so disqualification follows the conviction as provided under article 63 (1) (h) of the Constitution.
12. Insofar as the contention of learned counsel for the appellant that respondent No.5 has not specifically mentioned his conviction and sentence and pending adjudication of appeal except a complaint in the affidavit submitted pertaining to his disqualification is concerned, this submission of learned counsel for the appellant is misconceived.
13. Thus, keeping in view the facts of the case, submissions of learned counsel for the parties and while seeking guidance from the dicta laid down by the superior Courts in juxtaposition with the provisions of Article 63 (1)(h) of the Constitution read with section 62 of the Elections Act, 2017, it is held that: i. Respondent No.5 was convicted and sentenced for the offence of moral turpitude through order by the court of competent jurisdiction dated 26.03.2021, which order is still in field, against which, his appeal is pending adjudication before this Court irrespective of his release on bail u/s 426 Cr.P.C when this Court has not suspended the conviction for any specific reason as required under the law and principle enunciated by the apex court; ii. Until completion of period of five years from the date of release after serving the conviction and sentence of two years or setting aside of the same by the Court of competent jurisdiction, the respondent No.5 shall be considered as disqualified from contest of elections; and iii. The learned Returning Officer has wrongly held respondent No.5 as qualified for contesting General Elections, 2024 through impugned order, as such, the learned Returning Officer has committed an illegality.
14. Thus, for the reasons discussed above, this election appeal is allowed, resultantly the impugned order of the learned Returning Officer dated 25.12.2023 is hereby set aside and nomination papers of respondent No.5 for contesting General Elections, 2024 from Constituency of PK-12 Dir Upper-II are rejected.
15. These are the reasons of my short order of the even date.