' Writ Petitions Nos.16625 of 2002, 16675 of 2002 and 16719 of 2002 are being disposed of through this order, as common questions of law and fact are involved in all these petitions.
2. The relevant facts in Writ Petition No,16625 of 2002 are that the petitioner, Mudassar Qayyum Nahra, submitted his nomination papers for contesting Election of Provincial Assembly from P,P-102, Gujranwala-X, on 24-8-2002. The Returning Officer/Respondent No,2, at the time of scrutiny on 28- 8-2002, rejected the petitioner's nomination papers on the ground that the proposer of the petitioner namely Sheikh Muhammad Mushtaq did not belong to the constituency for which the petitioner was contesting. The petitioner assailed the legality of the orders of the Returning Officer through an appeal before the Election Tribunal. The learned Tribunal, vide its order dated 6-9-2002, dismissed the appeal of the petitioner holding that the mistake was substantial in nature and was not remediable under second proviso to sub-clause (d) of section 14(3) of the Representation of the People Act, 1976, as well as under clause 50 of the Manual of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan.
3. The relevant facts in Writ Petition No,16675 of 2002 are that the petitioner, Sarfraz Ahmad, submitted his nomination papers for contesting election of Provincial Assembly from PP-102, Gujranwala-X, on 24-8-2002. The Returning Officer, at the time of scrutiny on 28-8-2002, rejected the nomination papers on the ground that neither the proposer Muhammad Malik nor the seconder Muhammad Masood belonged to the constituency for which the petitioner was contesting. The petitioner's appeal against the order of rejection of his nomination papers under section 14(5) of the Representation of the People. Act, 197,6, has been dismissed by the Election Tribunal on 3-9-2002, on the ground that the mistake committed .By the petitioner while filing nomination papers was substantial in nature and was not remediable as provided in second proviso of section 14(3)(d) of the Representation of the People Act, 1976 and clause 50 of the Instructions issued by the Election Commission of Pakistan.
4. The facts of Writ Petition No,16719 of 2002 are that the petitioner, Elahi Bukhsh Pervaiz, submitted his nomination papers for contesting election of the National Assembly from NA-121. The Returning Officer, vide his order dated 29-8-2002, rejected the nomination paper on the ground that the petitioner's proposer namely Ehsan-ur-Rehman did not belong to the constituency for which the petitioner was contesting. The petitioner's appeal has been dismissed by, the Election Tribunal on 4-9-2002 holding that under sections 12(1) and 14(3)(b) of the Representation of the People Act, 1976, read with Instruction No,39 in the Manual of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan, it is necessary that the persons proposing or seconding the nomination, of a duly qualified person to be a member from a constituency, must belong to that constituency and should be registered as elector in the electoral roll of any of the electoral areas comprised in that constituency and that the mistake committed by the petitioner while tiling nomination'papers was substantial in nature and was not remediable as provided in second proviso to sub-clause (d) of section 14(3) of the above Act as well as under clause 50 of the above Instructions.
5. We have heard the learned counsel for the petitioners in all these petitions and the learned counsel representing two of the respondents in Writ Petitions Nos.16625 of 2002 and 16675 of 2002 and Kh. Saeed-uzZafar, learned Deputy Attorney-General representing the Election Commission of Pakistan.
6. It is submitted by the learned counsel for the petitioners that section 99(1)(c) of the Representation of the People Act, 1976, provides that a person shall be qualified to be elected or chosen as member of an Assembly if he is enrolled as a voter in any electoral roll in the Province from where he seeks membership and on the same analogy, the proposer and seconder may belong to any area of the Province, that second proviso of section 14(3)(b) of the Representation of the People Act, 1976, provides that the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of substantial nature and the defect in the submission of the nomination papers through wrong proposers and seconders was not of a substantial nature and such defects could be remedied by allowing the petitioners to change their proposers or seconders, or both, as the case may be. Further reference has been made to para. 50 of the abovesaid Manual of Instructions, which also provides that the Returning Officer shall not reject the nomination papers because of any defect which is not of substantial nature. Learned counsel for the petitioners have also relied upon Ishaq Dar v. The Election Tribunal (Punjab, Lahore Bench at the Lahore High Court, Lahore constituted under the provisions of the Representation of the People Act, 1976 and others (KLR 1998 Civil Cases 374) wherein the Returning Officer rejected the nomination papers on the ground that the proposer of the candidate was not enrolled as a voter in the constituency of the candidate. The Election Tribunal accepted the appeal and allowed the candidate to substitute his proposer. A Full Bench of this Court upheld the decision of the Election Tribunal and dismissed the writ petition instituted by the rival candidate.
7. It has also been argued, in all these petitions, that the concerned Returning Officers were asked to allow the rectification but the same was refused.
8. Section 12(1) of the Representation of the People Act, 1976, provides that any elector of a constituency may propose or second the name of any duly qualified person to be a member of that constituency. Similarly, para. 39 of the Manual of Instructions for the Guidance of the Returning Officers, issued by the Election Commission of Pakistan, provides that it is necessary that the person proposing or seconding the nomination of a duly qualified person to be a member from a constituency must belong to that constituency and should be registered as elector in the electoral roll of any one of the electoral areas comprised in the constituency. Furthermore, law' has taken into consideration the commission of such a mistake. Section 14(4) of the abovesaid Act provides that a person may be nominated in the same constituency by five nomination papers. Similarly, para. 40 of the abovesaid Manual of Instructions provides that a candidate may file five nomination papers from a constituency. Section 14(3)(b) of the Representation of the People Act, 1976, provides that the Returning Officer may reject the nomination papers if he is satisfied that the proposer or the seconder is not qualified to subscribe to the nomination paper. Similarly, section 14(3)(c) provides for the rejection of the nomination papers, if any provision of section 12 or section 13 has not been complied with.
9. The above mentioned shows that a person not belonging to the concerned constituency cannot be a proposer or a seconder and the nomination papers of a candidate are liable to be rejected if the proposers or the seconder are not qualified to subscribe to the nomination papers. Second proviso to section 14(3)(d) of the Representation of the People Act, 1976, provides that the Returning Officer can allow the removal of only those defects which are not of substantial nature. The unqualified proposer or the seconder leads to the rejection of nomination papers as provided in section 14(3)(b) and, therefore, such a defect cannot be held to be nor of substantial nature because such a defect can be removed only by the substitution of a nomination paper and the law does not provide for the substitution of the proposers or the seconders and the safety valve has been provided to the candidates by permitting them by filing up to 'five nomination papers.
Reliance on Ishaq Dar's case is of no avail as in the said case, the substitution was requested there and then, on being pointed out, before the Returning Officer and the same was allowed by the Election Tribunal, whereas in the present case no such request was made by the petitioners at the time of scrutiny before the Returning Officers. The assertions to the contrary before us not supported by any material on record and the concurrent findings of fact in this regard by the forums below are against the petitioners. It may further be mentioned . Here that the writ petition,.
In the said case, was dismissed by refusing to exercise discretion. In Hafiz Muhammad Abbas v.
Returning Officer and 16 others (1993 MLD 2509), the Election Tribunal, Punjab, presided by three Hon'ble Judges of this Court, it was held that the provisions of sections 12 and 14 of the Representation of the People Act, 1976, are mandatory in nature. In the said case, the nomination papers of the candidate were rejected for the reason that seconder of the candidate was not a registered voter of the constituency from which candidate wanted to contest the election. The Election Tribunal dismissed the appeal holding that the fact that the seconder was not a registered voter of concerned constituency could neither go unnoticed nor could be remedied. The contention that even if there was no seconder, the nomination of candidate was valid was also repelled. In Ishaq Dar's case (supra), the above-referred judgment too delivered by the Election Tribunal (Hafiz Muhammad Abbas v. Returning Officer and 16 others) was cited and while refusing to exercise the discretion and while dismissing the writ petition, this Court, in the Ishaq Dar's case 'did not disapprove the law laid down in the case of Hafiz Muhammad Abbas (supra).
10. We may add that the wording of Proviso II of section 14(3)(d) shows that an error only in regard to the particulars of the proposer or seconder can be rectified by the Returning Officer qua the corresponding entries in .The electoral roll and this proviso cannot be stretched permitting substitution of a proposer or a seconder at the time of scrutiny.
11. In view of what has been discussed above, we see no merit in these petitions, which are accordingly dismissed.