1. IFTIKHAR- MUHAMMAD CHAUDHRY, J.---Appellant Haji Muhammad Hayat Jamaldini, feeling aggrieved from following order, passed by Returning Officer for PB-5, Chaghi, has preferred instant appeal:-- "I have examined this nomination paper in accordance with the provision of section 14 of the Representative of the People Act. 1976 and decide as follows:-- The nomination paper of the candidate was delivered to the undersigned through authorization.
2. The authorized person appearing on behalf of the candidate disclosed that the candidate is out of Pakistan. However, the nomination paper was received.
3. On the date of scrutiny the candidate was not present. Nor any authorized person was appeared on his behalf. The signature of the candidate was also found doubtful. It is further believed from the list provided by the WAPDA authorities through E.x i.e. Rs.43,789 are outstanding as WAPDA dues against the candidate. Therefore, the nomination paper is rejected.
4. (Sd.)
5. Dated: 27-12-1996.Returning Officer.
6. P. W.5 Chagai. "
7. Mr. Shakeel Ahmad, learned counsel, argued that under section 14 of the Representation of the People Act, 1976, presence of a candidate is directory before the Returning Officer, on the date fixed for scrutiny and if the Returning Officer was incapacitated to satisfy himself; whether candidate is qualified to contest sections, he would have directed his presence, by postponing the scrutiny process for another date. Since in impugned order, nothing has been mentioned in this behalf, therefore, merely for want of presence of candidate or his authorised agent, he was not competent to reject his nomination papers. It was also urged by him that apprehension expressed by Returning Officer, that signatures of candidate on nomination papers are doubtful, is also incorrect, because he is present in Court and admits his signatures on the nomination papers. As for as the default in payment of utility charges to WAPDA Department, is concerned, the candidate had already made payment of same with concerned authorities and in this behalf, a Certificate has laso been annexed. To substantiate his contention, learned counsel placed reliance on 1991 CLC 571 and 1994 M LD 499.
8. Chaudhry Ejaz Yousaf, learned Advocate General, vehemently opposed the appeal, as according to him, appellant was out of Pakistan, as per the statement of his authorized agent, who filed his nomination papers before the Returning Officer. He referred to section 14(2)(3) & (d) and section 99 of the Representation of the People Act, 1976, as well as Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 19/3, and contended that on day of scrutiny, either the candidate or his Authorised person alongwith Proposer and Seconder, must be present to satisfy the Returning Officer, that he is qualified to contest the election, as required under the law and further that Proposer and Seconder have also put their genuine signatures in the nomination papers. He lastly stated that in given circumstances of case, the Returning Officer has rightly rejected the nomination papers of Appellant.
9. Mr. M.S. Rukhshani, learned Deputy Attorney-General, on reading Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, argued that requirement laid down therein for a person, to be qualified to contest elections, cannot be examined, unless the candidate or his agent dilly authorised, is not present before the Returning Officer. Since appellant avoided to appear before the Returning Officer, therefore, he could not satisfy himself, concerning his qualification and disqualification. He also stated that in this behalf at least the Proposer and Seconder could have appeared for the purpose of pointing out to Returning Officer, that appellant is not available, for one or the other reasons, because the Proposer was authorised to submit the nomination papers, therefore, he was in a position to ansv(er the query, if any, put by the Returning Officer with regard to the norninaon papers etc, but as they also did not appear, therefore, the nomination papers of appellant, have been rightly rejected.
10. We have gone through the nomination papers filed by appellant, which contained his signatures.
11. The same were compared with his, contained in the National Identity Card. He was also asked to put specimen signatures on the paper, which was done so. Apparently there is difference in all the three signatures. However, it would not be material at this stage, because appellant has accepted his signatures on the nomination papers. As for as the question of default is concerned, that stands rectified, because Abdul Ghaffar, Executive Engineer, WAPDA had confirmed that outstanding utility expresses have been paid by the Candidate and in this behalf, department has also issued certificate.
12. Now adverting towards the crucial question regarding non-appearnce of appellant before Returning .Officer, on day of scrutiny. It is to be seen that in terms of section 14 of the Representation of the People Act, 1976, the candidates, their election agents, the Proposers and Seconders, and one other person authorised in this behalf by each candidate, is allowed to attend the scrutiny of all the nomination papers, received by Returning Officer under section 12 of the Act.
13. From this subsection, it emerges that if the candidate for one or the other reason is not available to attend the officer of Returning Officer, he can depute his election agent to attend the serutiny alongwith Proposer and Seconder, because subsection (2) cast a duty upon the Returning Officer to examine the nomination papers and any objection raised by any such person on nomination papers in presence of persons attending the scrutiny under subsection (1) of Section 14 of the Act.
14. Besides it, under subsection (3) of section 14, it is the duty of Returning Officer to satisfy himself, as to whether candidate is not qualified to be elected as a Member and for examining this aspect of the case, he would refer to section 99 of the Act. Read with Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, wherein number of provisions have P been incorporated which makes a candidate, qualified or disqualified, for the purpose of contesting elections. There could be a case, where it is not physically possible for a candidate to appear in.Person, then for that matter, law has provided a facility to him, to appoint a person duly authorised to appear on his behalf, either appointing him as an election agent or authorising him to submit the nomination papers and to answer all queries if put by Returning Officer. In the instant case, Haji Akhtar Khan, Proposer of appellant submitted nomination papers being authorized agent, therefore, if appellant was not in a position to attend scrutiny, at least he should have came forward.
15. Mr. Shakeel Ahmad, learned counsel, contended that on day of scrutiny, Proposer and Seconder, both were present and he is ready to file their affidavits.
16. Suffice it to observe, that no such affidavits have been filed alongwith the Memo. Of appeal, therefore, concession to now submit affidavits, cannot be allowed, as it would amount to filling up of lecunas.
17. It is further necessary to observe that in presence of candidate himself or his authorized agent, the Returning Officer has not only to examine; whether he is qualified or not, but he has also to see; whether proposer or seconder are B qualified to subscribe nomination papers, therefore, their presence was also mandatory. Similarly, he has to examine; whether the provisions of sections 12 and 13 have been complied with or not. Likewise the signatures of Proposer and Seconder are genuine or otherwise. Thus, in the given circumstances, where neither the candidate himself nor his duly authorised agent or Proposer or 8 Seconder, were present, the Returning Officer had no option but to reject the nomination papers.
18. As for as the judgments relied upon by learned counsel are concerned, those are not applicable in view of the facts of instant case.
19. For the foregoing reasons, we see no merits in appeal which is accordingly dismissed.