Succinctly, the appellant, for the purpose of contesting elections of Senate-2024 for the Women Reserve Seat from Province of Punjab, submitted her nomination papers through proposer and seconder in the office of Returning Officer. The scrutiny of the nomination papers was conducted on 19.03.2024 and the same were rejected vide impugned order of even-date; hence, the instant appeal.
2. Learned counsel for the appellant has argued that mother of the appellant namely Rubina Javaid Khan, who is also attorney of the appellant, approached the Anti-Terrorism Court, Lahore for permission to access of the appellant in Central Jail, Kot Lakhpat for obtaining her signatures on nomination papers, which application was allowed vide order dated 16.03.2024; that after obtaining the said permission, the parents of the appellant alongwith Special Messenger of the said Court and also Barrister Raja Abdul Qadeer visited the Central Jail, Kot Lakhpat, Lahore on 16.03.2024; that in presence of the Jail Superintendent, the appellant put her signatures and thumb impressions on the nomination papers, however, the Jail Superintendent refused to attest the signatures and thumb impressions of the appellant in-spite of order of the Judge, Anti-Terrorism Court; that compliance report was also prepared on the attested copy of the order of the Anti-Terrorism Court and it is clearly mentioned therein that the appellant had signed and put her thumb impressions in front of Mr. Mohsin, Court Staff and Barrister Raja Abdul Qadeer; that the said nomination papers of the appellant were submitted before the Returning Officer through her proposer and seconder on 16.03.2024, however, the Returning Officer rejected the nomination papers without plausible justification and reasoning; that earlier in General Elections, 2024 objections similar to the present impugned order were made and at the end, Supreme Court of Pakistan allowed the appellant to contest the General Elections, 2024; that the appellant is in jail for the last 11 months in 9th May incident in various cases and her original CNIC was with her at the time of her arrest, which is in possession of the police but this fact has not been considered by the Returning Officer; that statement of assets and liabilities of husband of the appellant were provided to the Returning Officer at the time of scrutiny of the nomination papers but the same were not accepted by the Returning Officer illegally and with mala fide; that the purported defects mentioned in the impugned order of rejection are not of substantial nature; that the husband of the appellant was imprisoned for the last 8 months in 9th May incident and was released a month ago, therefore, his returns for the year ending 2023 were not filed, however, the appellant has attached his tax returns for the years ending 2020, 2021 and 2022 alongwith statement of Assets and Liabilities which were not accepted by the Returning Officer at the time of scrutiny; that the nomination papers of the appellant have been rejected on technical grounds and the circumstances, now a days, the appellant has been facing, have not been considered while passing the impugned order; therefore, the same is not sustainable in the eye of law and liable to be set aside by allowing the appeal in hand, consequent whereof the nomination papers of the appellant may be accepted.
3. On the contrary, learned Legal Advisor (ECP) by supporting the impugned order has prayed for dismissal of the appeal in hand.
4. Heard.
5. The nomination papers of the present appellant have been rejected with following reasoning:-
2. The nomination papers of the candidate were examined and it was found that the nomination papers and affidavit submitted by her proposer and seconder do not bear any stamp from Jail Superintendent as any document from Jail must be attested by the Jail Authorities as required under the Pakistan Prison Rules, 1978. It is a trite law that when a law required a thing to be done in a particular manner, that thing should be done in that manner and in no other way or it should not be done at all and if the prescribed procedure is not followed it would be presumed that same had not been done in accordance with law. Reliance is placed on (2013 CLC 185) titled as Sharafat Kaleem versus Additional District Judge, Bahawalnagar, (PLD 2014 Lahore 87) titled as Bakht Munir versus Qadir Khan, (2014 SCMR 1015) Zia Ur Rehman versus Syed Ahmed Hussain. Furthermore, the copy of CNIC attached with the nomination papers is not legible to check the veracity and genuineness of the signature of the candidate as the original CNIC is not available. The proposer and seconder of the candidate were asked to provide the clear copies but they failed to do so.
3. Furthermore, she has not attached the Statement of Assets and Liabilities of her husband which is the mandatory requirement under Section 110(2)(e) of the Elections Act, 2017 which is reproduced as under:- "110. Nomination for elections.---
(1) ............
(2) Every nomination shall be made by a separate nomination paper on Form A signed both the proposer and the seconder and shall, on solemn affirmation, be made and signed by the candidate and shall be accompanied by--- (a)......
(b)......
(c)......
(d)......
(e) a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form-B.
(3) .......
(4) .......
(5) .......
(6) .......
(7) .......
(8) ......."
With regards to the first two grounds and reasoning it is observed that on 16.03.2024, Mrs. Rubina Javaid Khan, mother of the appellant, who is also her attorney, moved an application to the Judge, Anti-Terrorism Court-I, Lahore for permission to facilitate the under trial prisoner for preparation and singing of nomination papers and other documents relating to Senate Elections upcoming in year 2024 and in the first paragraph of the said application it was averred, "That the applicant's daughter namely i.e. Mst. Sanam Javaid Khan is currently confined in jail and facing the severe hardships for the preparation of nomination papers for upcoming Senate elections of year 2024.'
On the said application, the learned Judge, Anti-Terrorism Court No.III, Lahore passed the following order:- "This application has been preferred for seeking permission to facilitate the under trial prisoner Mst. Sanam Javed for preparation and signing of nomination papers and other relevant documents pertaining to Senate Election, 2024. Let instant application be forwarded to Superintendent Central Jail, Kot Lakhpat, Lahore with the direction to do the needful as prayed for in the instant application forthwith. Special messenger alongwith her representative Barrister Raja Abdul Qadeer is appointed to convey the order of this court for compliance."
On the same day, the Special Messenger of the Court alongwith representative of the appellant namely Barrister Raja Abdul Qadeer went to the above said jail and presented the order of the Judge, Anti-Terrorism Court where-after the signatures and thumb impressions of the appellant on her nomination papers were obtained in presence of the jail authorities but the Jail Authorities with mala fide intention did not verify the signatures and thumb impressions of the appellant, which they were bound to do as per Prison Rules, 1978. Therefore, it cannot be said that the fault is on the part of the appellant rather the same is due to mala fide act of the Jail Authorities, especially Jail Superintendent, Central Jail, Kot Lakhpat, Lahore, who knowingly left this lacuna so that the appellant should face hurdle in acceptance of her nomination papers for Senate Election, 2024, despite the fact that nomination papers of another candidate i.e. Umar Sarfraz Cheema, who is also imprisoned in the same jail, were verified/attested and stamped by the Jail Authorities in compliance with order passed in this regard by the learned Judge, Anti-Terrorism Court, Lahore on the same date i.e. 16.03.2024, as have been admitted by the Election Commission representative(s) preset in Court and nomination papers of the said Umar Sarfraz Cheema, in original, have been perused and returned. Every citizen is to be treated equally and discrimination on the basis of sex is not allowed as guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
However, this aspect has not been considered and overlooked by the Returning Officer while passing the impugned order. Moreover, earlier at the time of General Elections, 2024, the said objection was crept in the nomination papers of the appellant and the Supreme Court of Pakistan in order dated 26.01.2024 passed in C.P.L.A.No.184/2024 held that:- "8. The second ground which prevailed with the High Court to reject the nomination papers of the petitioner was that her signatures and thumb impression on nomination papers, Form-B and the Affidavit were not properly attested and, therefore, not genuine. The High Court has taken this view because the petitioner is an undertrial prisoner, and the said documents were not verified or attested by the Superintendent Jail. We are afraid that while forming this opinion the High Court did not consider the provision of sub-section (9) of section 62 of the Act which provides for inquiry by RO to reject the nomination papers. According to it, the RO may conduct a summary inquiry and may reject the nomination papers if he is satisfied that (a) the candidate is not qualified to be elected as a Member; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 60 or section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular; or
(d) the signature of the proposer or the seconder is not genuine. This scope of inquiry does not permit the RO to get the signature of the petitioner verified from the jail authorities, nor the non- verification or attestation of the nomination papers by the jail authorities is a condition precedent, nor was the difference in the candidate's signature a valid reason for rejecting the nomination papers, particularly when the petitioner/candidate filed an appeal admitting her signature and then a constitutional petition. Thus, this ground could not be used as a basis to draw the inference that signatures were not genuine and to reject the nomination papers.'
6. The second ground making basis of rejection of nomination papers is that the appellant could not produce the legible copy of CNIC; the same is not tangible defect and on such ground the nomination papers, in presence of above observations of the Supreme Court of Pakistan, cannot be rejected.
7. So far as the third ground as to non-submission of Assets and Liabilities of husband of the appellant as on the preceding thirtieth day of June on Form B as required by Section 110(2)(e) of the Election Act, 2017 is concerned, it is observed that at the time of General Elections, 2024, the appellant also submitted her nomination papers against constituencies NA-19, Lahore-III, NA-120, Lahore-IV and PP-150, Lahore-VI. In the said nomination papers the appellant narrated the same facts as to Assets and Liabilities of her husband as have been incorporated in her nomination papers for the Senate Election, 2024. For ready reference the same is reproduced:- "My husband is Professor in Skam College and his monthly salary was 350,000/- to 450,000/- as my knowledge (FBR Record not available to be due to I am in jail since last more than 10 months."(Emphasis supplied)
The above 'emphasized' line is sufficient to extend discretionary relief to the appellant, because in exigencies including illness, imprisonment and unavoidable circumstances, one cannot be knocked out and cannot be deprived of his/her fundamental right, in the present case, to contest the election. Even, it is also an admitted fact that husband of the appellant was also imprisoned in 9th May incident and he could not submit his Returns for the year 2023. In such scenario, when, statedly, the statements of accounts, Assets and Liabilities was presented before the Returning Officer at the time of scrutiny, the same should have been considered, because non-submission of Returns by the husband of the appellant with regards to preceding year i.e. 2023 was due to inevitable circumstance, not in control either of the appellant or of her husband. In a judgment dated 26.01.2024, passed in C.P.No.183 of 2024, the Supreme Court of Pakistan has observed:- "Elections are the bedrock of a democracy; and as the 16th President of the United States of America, Abraham Lincoln, once said, elections belong to the people. Therefore, it is essential that those wishing to contest elections be facilitated as far as is legally permissible. It goes without saying that it is against democratic norms and principles to add technical bottlenecks in the way of any individual, who is a citizen of this country, trying to contest elections. And in this backdrop, it is pertinent to say that electoral laws and rules cannot be used as an arbitrary filtering mechanism, dependent on the whims of a Returning Officer. Therefore, a Returning Officer should exercise the discretional powers available to him in a rational and meticulous manner."
It was further observed that:- "Returning Officers are an integral part of the electoral process and it is highly unbecoming of a Returning Officer to exercise the authority conferred upon him or her in a manner which sabotages the electoral process. Returning Officers must remember that it is a fundamental right of an individual to contest elections and if they sabotage an individual not only do they rob the individual of their fundamental right but they also rob the populace at large of voting for that individual, which is also a fundamental right protected by the Constitution."
Therefore, to contest election is a fundamental right as guaranteed by Article 17(2) of the Constitution of Islamic Republic of Pakistan and the same has been upheld by the Supreme Court of Pakistan in judgments reported as Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan (PLD 2002 SC 994) and Javed Jabbar v. Federation of Pakistan (PLD 2003 SC 955). Keeping in view the attending unavoidable circumstances, the nomination papers of the appellant should not have been rejected.
8. For the foregoing reasons and while placing reliance on the judgments supra, the appeal in hand is allowed, impugned order is set aside, consequent whereof the nomination papers of the appellant for Senate Election, 2024 against Reserve Seat for Women from Province of Punjab are accepted. The Returning Officer is directed to include her name in the list of contesting candidate as per rules.