MUHAMMAD NAEEM ANWAR, J.- Impugned through instant election appeal filed under sub-section 1 of section 63 of the Elections Act, 2017 read with rule 54 of the Election Rules, 2017 is the order of the learned Returning Officer of the Constituency of NA-5 Dir Upper dated 29.12.2023, whereby nomination papers of the appellant were rejected.
2. Learned counsel for the appellant contended that the learned Returning Officer is not vested with any powers to determine the validity and correctness of the signature on the nomination papers of the candidate or his proposer or seconder. According to him, the nomination papers were properly submitted by Nasir Said, the brother of the appellant, who was duly authorized by the appellant for submission of same before the learned Returning Officer. He added that the appellant namely Zakir Said is at London, United Kingdom (HA12QX) on work permit along with his family, wherefrom he has sent the authority letter to his brother Nasir Said for submission of his nomination papers, thus, Nasir Said was competent not only for submission of the nomination papers but to represent him too during the process of scrutiny before the Returning Officer besides filing of the appeal, if any, within the purview of section 60 (3) of the Elections Act, 2017. While making reliance on the case of Mukhtar Ahmad Vs. Returning Officer and others' (2017 MLD 282, Lahore), he contended that if there was any error in the nomination papers, same could be corrected but in any way the appellant could be debarred from participation in General Elections, 2024.
3. As against that, the learned Law Officer of the respondents/ Election Commission of Pakistan supported the impugned order.
4. Arguments heard and record perused.
5. C.M No.40-M/2024: This application has been submitted by the appellant for placing on file the power of attorney prepared at Landon (United Kingdom) in favour of Nasir Said, the attorney. As the document appended with the application is essential for the decision of the instant appeal qua the law officer of the respondents has not resisted the same and more-so, the contents of the application have duly been verified on oath by Nasir Said, the attorney for the appellant, therefore, it stands allowed and the document ibid is hereby read as part and parcel of the instant election appeal.
6. The question for resolution of the controversy in this appeal was as to whether the nomination papers in absence of a candidate could be submitted and whether the Returning Officer could decide the question of validit / correctness of signatures of the candidate on the nomination papers and the documents annexed therewith or otherwise? Section 60 (3) of the Elections Act, 2017 pertains to the submission of nomination papers, which reads as under: "(3) Every nomination paper shall be delivered to the Returning Officer by the candidate or his proposer or seconder of 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.
Explanation: Authorization in favour of an advocate shall be attested by a Notary appointed under the Notaries Ordinance, 1961 (XIX of 1961) or an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1873) or any Government servant in basic pay scale 17 and above."
A bare look at the above reproduced provision of law has mandated it in explicit terms that the nomination paper of the candidate may be submitted to the Returning Officer by (i) candidate or ii) his proposer; or (iii) seconder or if so, authorized in writing by the candidate, by his nominee, thereafter the Returning Officer shall acknowledge the receipt of the nomination papers specifying the date and time of receipt. Under sub-section 9 of section 62 of the Elections Act, 2017, the Returning Officer may, either on his own motion or upon an objection, conduct a summary enquiry and may reject a nomination paper if he is satisfied that: a..... b..... c.....
(d) the signature of the proposer or the seconder is not genuine provided that:
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; or
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.
It is an admitted fact that the appellant was not in the country, as such, he himself has not obtained the nomination paper from the office of the Returning Officer for its submission before the returning officer for contest of election from the subject constituency. It is indisputable rather admitted that the appellant is in United -Kingdom for the last two years. Since the learned Returning Officer was directed for his personal appearance before this Tribunal, who apprised that the nomination papers of the appellant were obtained by the brother of appellant and same were submitted before him on 21.12.2023. Nasir Said, the brother of the appellant and learned counsel representing the appellant also admitted that the nomination papers were handed over to Nasir Said by the Returning Officer on 20.12.2023 and same were submitted before the Returning Officer on 21.12.2023. Pages No.3, 4, 9 & 11 of the nomination papers, the affidavit, overleaf of the stamp paper last page of the affidavit, affidavit dated 24.12.2023, police clearance certificate bear the signatures of the appellant. During the course of arguments, though the brother of the appellant submitted at the bar that the nomination papers were sent to London, United Kingdom and were later on received by him and thereafter same were submitted before the Returning Officer, however, in support of his submission, neither there is any document for sending the nomination papers to United Kingdom or receipt thereof by the brother of the appellant, after proper signatures of the appellant thereon. It is not acceptable to a prudent mind that within 24 hours, the documents could have been sent from Pakistan to United Kingdom and were received back for its submission before the Returning Officer after doing the needful by the appellant. In view of the objection of learned counsel for the appellant that the Returning Officer could not determine the validity/ correctness of the signature of the candidate, this Tribunal with able assistance of learned counsel for the appellant and the learned law officer of the respondents has gone through from section 62 (9) (d) of the Act of 2017, which is self-explanatory that the signature of the proposer or seconder could adjudged by the Returning Officer and similarly the Returning Officer may conduct a summary inquiry sub-section 9 of ibid section 62. Though, there is a proviso to said sub-section 9 that the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper; or the Returning Officer shall not reject a nomination paper on the ground of any defect, which is not of a substantial nature and may allow any such defect to be remedied forthwith. Nevertheless, the case in hand does not fall within the purview of sub-clause
(i) of clause (d) of sub section 9 of section 62 of the Act of 2017 as no other valid nomination paper of the appellant was before the Returning Officer and secondly the signature of the appellant could not be corrected at the time of scrutiny when the appellant himself was abroad at United Kingdom.
From the above, it is concluded that the only valid nomination papers could be submitted by the proposer or the seconder or the Advocate subject to the authorization as provided under sub- section 3 of section 60 of the Act of 2017, however, in the matter in hand no valid nomination papers were submitted either by the proposer or the seconder or by the authorized Advocate.
7. Moreover, the submission of the affidavit along with the nomination papers was one of the requirements in accordance with the judgment of the apex Court in the case of "Speaker National Assembly of Pakistan Islamabad and others Vs. Habib Akram and others" (PLD 2018 SC 678). The stamp papers reflect to have been purchased by the appellant himself as appear from the overleaf of the same. Likewise, there is another affidavit submitted along with nomination paper dated 24.12.2023, which also reflects the signature of the appellant besides the character certificate dated 29.12.2023 also bears the signature of the appellant, which prima facie, reflects that the documents were signed by the appellant himself but in fact all the referred to above papers were prepared by Nasir Said, his brother, who has submitted the instant appeal before this Tribunal through Muhammad Riaz Muhammadzai, Advocate as the wakalatnama reflects the signature of Nasir Said. The affidavit and the other documents annexed with nomination papers were incorrectly prepared by the brother of the appellant who has signed all the papers not as an attorney but as that if he was the appellant.
8. Furthermore, the authorization for the purpose of submission of the nomination papers has been explained by the legislature through the explanation with sub-section 3 of section 60 of the Act of 2017 (reproduced above) according to which the nomination paper could be submitted by the advocate of the candidate before the Returning Officer. The original document on the subject of "appointment of Nasir Said as a signatory and representative" is before this Tribunal, whereby the appellant has appointed his brother namely Nasir Said as his signatory and representative in Pakistan for legal matters. Neither this document was attested by the Notary Public in consonance with the Notaries Ordinance, 1961 nor by any Oath Commissioner in accordance with the Oaths Act, 1873, thus, this authorization was not in consonance with the provision of explanation to sub- section 3 of section 60 of the Act of 2017. Moreover, referred to above provision relates to submission of nomination papers of the candidate through the agent before the Returning Officer thus, the documents annexed with the application could only be used or considered for the said purpose but for appointment of a counsel to represent the appellant before this Tribunal neither the principal/ appellant, has authorized his brother nor the document (authority letter) contains any specific clause in this regard. The authority letter could not be construed as the power of attorney in favour of Nasir Said by the appellant and in turn thereof, Nasir Said could not appoint any advocate on the basis of the powers given to him as the power of attorney has been defined by the Hon'ble Supreme Court in the case of "Imam Din vs. Bashir Ahmed" [PLD 2005 SC 418] wherein, it was held that: "The power of attorney is a written authorization by virtue of which the principal assigns to a person as his agent and confers upon him the authority to perform specified acts on his behalf and thus primary purpose of instrument of this nature is to assign the authority of the principal to another person as his agent. The main object of such type of agency is that the agent has to act in the name of principal and the principal also purports to rectify all the acts and deeds of his agent done by him under the authority conferred through the instrument. In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument."
9. Likewise, the power of attorney is commonly used when a person cannot manage his affairs due to his absence, disability, incapacity, or infirmity; it allows an agent to make decisions on behalf of the principal. It empowers the agent to decide the principal's affairs. Section 2 of the Powers-of - Attorney Act, 1882 deals with the execution of power-of -attorney ,whereby the donee of a power- of-attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the powers; and every assurance, instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. Order 3 Rules 1 & 2 of the Civil Procedure Code, 1908 deals with 'Recognized agents and Pleaders'. Sections 2 & 4 of the Power of Attorney Act, 1882 stipulate that power of attorney has to be created by an instrument. It must be in writing.
Furthermore, Article 95 of the Qanun-e-Shahadat Order of 1984 demands that every document asserting to be a power of attorney executed before and attested by a Notary Public or any Court or representative of the Federal Government shall be presumed lawful by the Courts. Unless a power of attorney in the shape of the written document is filed before the court, neither any assumption of its existence could be made, nor the Court would make any presumption as required under the aforesaid article. In addition, two persons must witness and put their signatures/thumb impressions on a power of attorney. A power of attorney, which is neither appropriately endorsed nor executed under Article 95 of Qanun-e-Shahadat Order, 1984, such power of attorney is legally ineffective. It is well settled law that power of attorney shall be construed strictly, and only such powers, which are expressly and specifically mentioned in a power of attorney, must be exercised by the agent as considered to have been delegated to him. It only confers the authority that is expressly or impliedly given and cannot authorize beyond what it actually conveyed. Power of attorney is not open to liberal interpretation. It is subject to narrow elucidation because it delegates powers that must be construed in strict terms and in the manner required to carry out the mainly conferred authority. One of the essential rules for constructing power of attorney is to pay attention to the recitals, which will regulate entire general terms in the operative part of the document as they show the scope and object of the power. When an agent is permitted to undertake a particular task that is followed or led by general words, those words are restricted to what is essential for the proper performance of a specific act. It is by now a settled law that power of attorney shall be strictly construed and that nothing can be read in it unless the same is specifically provided therein and the attorney is to act within the scope of the authority as described in the instrument. In this respect, reliance may be placed upon the cases of ''Khalil Ahmad and another vs. Mst. Muhammad Jan and others" (2004 SCMR 1034), "Imam Din and 4 others v. Bashir Ahmad and 10 others" (PLD 2005 SC 418), "Muhammad Yousuf Siddiqui v. Haji Sharif Khan (since deceased) through his legal heirs and others" (PLD 2005 SC 705) "Jamal Din v. Syed Altaf Hussain Shah and others" (2005 MLD 1351) and "Babu Muhammad Aslam v. Mst.
Rehana Parveen" (PLD 1989 Peshawar 185).
10. In the instant matter, neither there was any power of attorney as defined under the law nor the attorney has been authorized or delegated with the powers to appoint a counsel for the purpose of filing of the instant appeal. The relationship between Nasir Said and the appellant to the extent of nomination paper could be viewed in terms of sub-clause 3 of section 60 of the Act of 2017 but for the purpose of filing of the instant appeal, by no stretch of imagination, it could be considered to be a valid document, thus, there is no relation of the learned counsel with his agent being based upon the authority letter for the purpose of institution of the instant election appeal on behalf of the appellant. When confronted, learned counsel for the appellant admitted it at the bar that neither there is any power of attorney nor he has been engaged by the attorney for the purpose of filing of the instant appeal on behalf of the appellant. More-so, the letter of authorization executed by the appellant in favour of his brother namely Nasir Said has also not been registered in Pakistan, in accordance with law. The authorization in favour of an advocate was required to be in accordance with the format of the explanation to sub-section 3 of section 60 of the Act of 2017, but no such authorization either is available on record nor the Nasir Said or learned counsel for the appellant could produce any document before this Tribunal in that respect. The intention of the legislature for a valid nomination was that any voter of a particular constituency may propose any qualified person as a candidate to contest the election and his proposer may be seconded by any voter of the said constituency but since the nomination paper requires to be signed by the candidate himself and in the instant matter, the candidate is/was residing at United Kingdom and has not signed the nomination paper for the purpose of contest of the General Elections, 2024 while the contention of the brother of the appellant is repelled from the documents annexed with the instant appeal i.e., the affidavit in Urdu, affidavit in Englis etc. as required by the law along with Police Clearance Certificate because the appellant has never come to the country for the last two years.
Even the submission of the affidavit with false contents and false signatures may entail the consequences as enunciated by the apex Court in the case reported as PLD 2018 SC 678 (supra).
The wakalatnama in favour of the learned counsel signed by the brother of appellant who was not the attorney, and the signatures of the appellant on the nomination papers along with the annexures is a question mark on the validity of the nomination papers and once the Returning Officer has reached to the conclusion that the candidate has not signed the nomination papers and that the nomination papers could not be rectified through a valid nomination of the candidate, then the Returning Officer had got no other option but to reject the nomination paper being invalid. The learned Returning Officer, after analyzing the documents during summary inquiry as required under the law on the subject for non-appearance of the appellant and for invalid nomination papers, has rightly rejected the nomination papers of the appellant through impugned order, to which, neither learned counsel for the appellant or brother of the appellant could point out any illegality, jurisdictional defect or exercise of jurisdiction by the Returning Officer beyond the legal scope.
11. When so, the instant appeal, being devoid of merits, is hereby dismissed.
12. These are the reasons of my short order of the even date.