1. ANWARUL HAQ, J.-This petition seeks leave to appeal against an order made by a Division Bench of the Lahore High Court on the 9th of August 1973, whereby a Constitutional petition, instituted by the present petitioner, to challenge the validity of the nomination of respondent No. 3 for election to the office of President of Pakistan, was dismissed in limine.
2. Six nomination papers were filed on behalf of the petitioner and four on behalf of respondent No. 3.
3. One nomination paper was also filed on behalf of a third candidate, Mr. Mohammad Salim Sety, who is, however, not a party too the present proceedings. At the time of the scrutiny of nomination papers, an objection was taken on behalf of the petitioner that all the four nomination papers filed for respondent No. 3 were invalid .As they were not accompanied by an attested copy of the extract from the electoral roll in which the respondent was enrolled as a voter for .Election to the National Assembly of Pakistan, as required by the mandatory provisions contained in sub-rule (2) of rule 3 of the Presidential Election Rules, 1973. An additional objection was also taken to the effect that in two of the nomination papers even the serial number at which the respondent was registered as a voter in the electoral roll of his constituency was not mentioned.
4. These objections were rejected by the learned Chief Election Commis--sioner, and all the four nomination papers filed on behalf of the respondent were accepted. All the six nomination papers filed by the petitioner were also similarly accepted, although the nomination paper filed on behalf of Mr. Mohammad Salim Sety was rejected. It may be stated that at the time of scrutiny of the nomination papers it came to light that an extract from the electoral roll in respect of respondent No. 3 was delivered at 8-30 p.m. On 7-8-1973, by the Private Secretary to the respondent, at the residence of the Joint Secretary to the Election Commission of Pakistan.. This fact was brought to the notice of the learned Chief Election Commis--sioner at 9 a.m. On the 8th of August 1973 and he directed that it be placed on the record for consideration further at the time of scrutiny of the nomination papers. It may be mentioned that at the polling, which took place on \ the 10th of August 1973, the respondent was declared elected as President of Pakistan.
5. Aggrieved by the acceptance of the nomination papers of the respondent,. The petitioner invoked the writ jurisdiction of the High Court, praying for a declaration that the acceptance of the nomination papers of respon--dent No. 3 was without lawful authority, and for a direction to the Chief Election Commissioner to declare the petitioner as the duly elected President of Pakistan under rule 8 of the Presidential Election Rules.
6. This petition was, as already stated, dismissed by the High Court at the preliminary hearing. The High Court took the view that the petition was not competent in view of the bar contained in clause
(6) of Article 41 of the Constitution of 1973 to the effect that "the validity of the election of the President shall not be called in question by or before any Court or other authority." It held that this provision of the permanent Con--stitution of the Islamic Republic of Pakistan had come into force immediately upon the enactment of the Constitution on the 12th of April 1973, in terms of clause (3) of Article 265 of the Constitution. The High Court further observed that the Term `election' as used in the aforementioned' clause connoted a process commencing with the filing of nomination papers.
7. Finally, the High Court observed that in any case the irregularity or defect,, complained of by the petitioner, was not of a substantial nature, as it was not asserted by the petitioner that the respondent's name did not exist on the- electoral roll concerned.
8. Leave to appeal is sought on the following grounds :-
(a) That the Chief Election Commissioner as well as the High Court were in error in thinking that non-compliance with the provisions of sub-rule t2) of rule 3 of the aforesaid Rules did not constitute -a substantial or material irregularity and did not invalidate the nomina--petition papers of the respondent, as these provisions were manda--tory in nature and the nomination papers had to be rejected as enjoined by rule 5(3)(e).
(b) That the High Court misdirected itself into thinking that the bar of jurisdiction contained in clause (6) of Article 41 of the Constitu--petition was operative at the relevant time, as this provision of the Constitution had not come into force in terms of Article 265, thereof ; and
(c) That even if this Article was operative, it was not attracted to the case, as the petitioner was not challenging the election of the President but merely an antecedent step which did not fall within the meaning of the term `election' as used in the ouster clause.
9. Rule 3 of the Presidential Election Rules, 1973, is as under :- "3. Nomination paper.-(L) The nomination paper by which a proposal can be made under paragraph 3 shall be in Form I.
(2) Every nomination paper shall be accompanied by an attested copy of the extract from the electoral roll in which the person nominated is enrolled as a voter."
10. Sub-rule (3) of rule 5 of these Rules lays down that:- "The Returning Officer may, either of his own motion or upon any objection, conduct such summary inquiry as he may think fit and reject any nomination paper if he is satisfied that-
(a) the candidate is not qualified under the Constitution to be elected as President, or is subject to any disqualification from being elected as, and from being, a member of the National Assembly ;
(b) the proposer or the seconder is not a voter ;
(c) the signature of the proposer or the seconder is not genuine ;
(d) the nomination was not filed before noon on the date fixed for the nomination of candidates ;
(e) any provision of rule 3 or sub-rule (.L)- of rule 4 has not been complied with; or (f ) the same proposer or the seconder has subscribed to more than one nomination paper: Provided that-
(i) the rejection of a nomination paper shall not invalidate the nomina--petition of a candidate by any other valid nomination paper ;
(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 such defect to be remedied forthwith; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, certified copy of which accompanies the nomination, or in the list of voters."
11. It will be seen that under sub-rule (3) of rule 5, the Returning Officer has been given discretion to conduct a summary enquiry as he may think fit, and he may reject any nomination paper if he is satisfied in terms .Of clauses (a) and (f ) of the sub-rule, provided that he shall not reject] a nomination paper on the ground of any defect which is not of a substantial nature, and may allow such defect to be remedied forthwith.
12. Now, in the present case, the requirement that every nomination paper shall be accompanied by an attested copy of the extract from the electoral roll in which the person nominated is enrolled as a voter, is intended for the purpose of ascertaining whether the candidate is qualified or not B under the Constitution to be elected as President. The learned Chief Election Commissioner has rightly remarked that he could, for this purpose, take judicial notice of the fact that respondent No. 3 was duly qualified for the reason that he was not only a sitting member of the National Assembly of Pakistan, but had also been presiding over its sessions as its Speaker. In the second place, the defect, if any, had been made good, before the time of scrutiny, by the production of a certified copy of the electoral roll before the Election Commission. In these circumstances, no occasion arose for the Chief Election Commissioner to reject the nomination papers of the respondent on account of the non-filing of the attested copy of the electoral roll in the first instance.
13. The learned counsel for the petitioner referred us to two cases from the Indian jurisdiction in support of his contention that the defect in the nomination papers of respondent No. 3 was of a substantial nature, having the necessary effect of invalidating them. In Baru Ram v. Sm. Parsanni (AIR 1958 Ph. 452the learned Judges were considering the effect of non-compliance with section 33(5) of the Representation of People Act, 1951, which required that "where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the Returning Officer at the time of scrutiny".
14. This section had to be read along with section 36 of the same Act, dealing with scrutiny of nomination, and empowering the Returning Officer to reject any nomination on the ground, inter alia, that there had been a failure to comply with any of the provisions of section 33 or section 34.
15. The learned Judges expressed the view that "a nomination cannot be rejected merely because of a defect which is not substantial in character, as is clearly indicated by section 36(4). But' in respect of certain matters form and form alone can be, and is, of vital importance and, in case Parliament has in the Act attached particular importance to form, any failure to comply with that form would be fatal. Thus the requirement of section 33(5) of the Act is extremely important at the stage of scrutiny, and failure to produce the electoral roll must be deemed a failure to comply with a substantial provision of the Statute. The requirement of section 33(5) is, therefore, mandatory and failure to comply with it is fatal to a candidate's claim to stand for election." It was added that the absence of the relevant electoral roll would completely obstruct the Returning Officer in the performance of his duty in connection with the scrutiny of nominations and it was difficult to see what the Returning Officer could do except to reject the nomination.
16. It will be noticed that the failure to file an attested copy of the electoral roll with the nomination paper is not fatal under the relevant provisions of the Indian statute, as subsection (5) of section 33 of that Act permits its production before the Returning Officer at the time of scrutiny, and only when it is not at all made available to enable the Returning Officer to determine the eligibility of the candidate, that the defect becomes substantial, justifying the rejection of the nomination paper. In other words, the reason for the defect being treated as substantial is that it prevents the Returning Officer from carrying out the essential task of scrutiny of the nomination paper. No such circumstances were present in the case before us, as there was only a technical non-compliance with the provisions of rule 3 of the Presidential Election Rules, 1973, the defect having been remedied before the nomination papers came up for scrutiny by the Returning Officer.
17. Laksham Prasad (2), it was held that where in a nomination paper only the electoral roll numbers were given but not the serial number of the part of the electoral roll in which they occur, it was not merely a clerical or technical error permissible under section 33(4) of the Representation of the People Act, 1951, but a defect of a substantial character within meaning of section 36(4), justifying the rejection of that nomination paper. It was observed that if such information was not supplied, the Returning Officer would have to take a long time in examining all the parts of' the electoral rolls before identifying the proposer or the candidate, a-- procedure which was not required of him under sections 36(5) of the Act. In that case the Returning Officer had rejected the nomination papers on the ground that the serial number was not given and he could not identify the two candidates concerned. The High Court refused to interfere with his action. There can be no dispute with the reasoning adopted by the learned Judges. The defect, or a non-compliance with the statute, would be a substantial or a material defect, if it made it impossible for the Returning Officer to satisfy himself as to the eligibility of the candidate or his proposer and seconder. This could not, however, be said about a --defect which had been remedied before the time of scrutiny.
18. For the foregoing reasons we are of the view that the learned Chief' Election Commissioner as well as the learned Judges in the High Court were right in holding that, in the circumstances of this case, the non--filing of an attested copy of the electoral roll with the nomination papers of respondent No. 3 was not a material defect, as the', eligibility of the respondent was already established by the fact that he was an elected member of the first National Assembly of Pakistan under the 1972 Interim Constitution as well as the 1973 permanent Constitution, and that he was its elected Speaker. Further, the defect had already been remedied before l the time of scrutiny. The learned Chief Election Commissioner was also right in observing that the provision contained in rule 3 in this behalf, must, therefore, be regarded as directory and not mandatory, and that under rule 5(3) he had the discretion not to reject the nomination papers in these circumstances.
19. On the conclusion reached by us in regard to the merits of the case as decided by the learned Chief Election Commissioner, it is not necessary to examine the other two contentions in relation to the bar of jurisdiction. Contained in clause (6) of Article 41 of the Constitution of 1973 read wits clause (3) of Article 265 thereof.
20. As a result, we see no merit in this petition which is hereby dismissed.