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Petitioner: Jamshed Iqbal Cheema VS Respondent: The Election Appellate Tribunal and others
Court Name: Lahore High Court Judge(s): Jawad Hassan, Muzamil Akhtar Shabir Title: Jamshed Iqbal Cheema vs The Election Appellate Tribunal and others Case No.: Writ Petition No.70103 of 2021 Date of Judgment:2021-11-16 Reported As: 2021 LHC 6800, PLJ 2022 Lahore 926, 2022 CLC 463 Result: Petition dismissed
JUDGMENT
JUDGMENT JAWAD HASSAN, J. This judgment will examine the relevant provisions of the Election Act, 2017 (the "Act") and the Election Rules, 2017 (the "Rules ") in the light of Part-VIII, Chapter 2 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution ") dealing with the electoral laws and conduct of elections. As the preamble of the Constitution specifically states that (i) principles of democracy shall be fully observed, (ii) dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny (iii) the State shall exercise its powers and authority through the chosen representatives of the people. While examining the relevant provisions of Section 60 and 62 of the Act, principles enun ciated by the Hon'ble Supreme Court of Pakistan has been followed which are binding on this Court under Article 189 of the Constitution. The preamble of the Election Act, 2017 read with Election Rules, 2017, clearly state that an Act to amend, consolidate and unify laws relating to the conduct of elections. 2. As all necessary parties are represented and have addressed full-fledged arguments, therefore, through this single judgment, this Writ Petition as well as Writ Petition No.70394 of 2021 treating the same as pacca cases are being decided collectively as question of law and facts are common in both these petitions. 3. Through these petitions, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "), the Petitioners seek to set aside the judgment dated 05.11.2021 (the "Impugned Judgment ") passed by the Election Appellate Tribunal /Respondent No.1 (the "Tribunal ") as well as order dated 30.10.2021 (the "Impugned Order ") passed by the Returning Officer/Respon dent No.2, respectively whereby objection petition filed by the Respondents No.3 to 5 against Petitioners' nomination papers for contesting bye-election for NA-133 was allowed and nomination papers were rejected. A. BRIEF F ACTS
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4. The Election Commission of Pakistan (the "ECP"), in order to elect representative as a member to fill National Assembly Seat which became vacant due to death of Muhammad Pervaiz Malik, elected MNA, called upon the electors of Constituency of National Asse mbly No.133 Lahore ("NA-133 ") and in this respect, an election schedule dated 18.10.2021 for holding of bye-elections in Constituency of NA-133 on 05.12.2021 was issued. The Petitioners submitted their nomination papers on 25.10.2021 under Section 60 of the Act read with Rule 51 of the Elections Rules, 2017 (the "Rules ") while Form-31 was issued by the Retur ning Officer on 26.10.2021. On the day of scrutiny , objection in terms of Section 62(9)(b) of the Elections Act 2017 (the "Act") against nomination papers submitted by the Petitioners was raised by the Respondents namely Naseer Ahmad Bhutta, Muhammad Hafeez and Mirza Faisal Hussain being voters of the constituency of NA-133 through three separate objection petitions that the proposers namely Bilal Hussain S/o Manzoor proposer of Petitioner in this petition and Ghulam Murtaza S/o Nazir Ahmad, proposer of the petitioner in connected petition, were not qualified to subscribe nomination papers of the Petitioners. The Returning Officer vide order dated 30.10.2021 rejected the nomination papers of the Petitioners. Feeling aggrieved, the Petitioners filed Election Appeals before the Tribunal under Section 63 of the Act read with Rule 54 of the Rules which were dismissed vide the Impugned Judgment dated 05.11.2021. Hence this petition. B. PETITIONERS SUBMISSIONS 5. Mr. Mubeen Uddin Qazi, ASC, inter alia contended that the impugned judgment and the impugned order are illegal and unconstitutional; that the proposers were fully qualified to subscribe the nomination papers of the Petitioners as they were not only the residents of Street No.3, Siddique Mohallah, Liaquat Abad, Kot Lakhpat, Lahore which exclusively falls within the electoral area of NA-133 but also their family members were the residents of same address which is also mentioned in electricity bills, domicile certificates and CNIC but these facts have totally been ignored by the Tribunal and the Returning Officer; that though the proposers' names were reflected in the electoral rolls of NA-130 instead NA-133 due to erroneous and misplaced entry of their Census Circle number yet the addresses of their residence situated in electoral area of NA-133 are mentioned in electoral roll of NA-130; that the Petitioners have been non-suited to contest the election merely on the ground that their proposers names were not reflecting in the electoral rolls of NA-133; that the Tribunal has failed to appreciate that the Petitioners' case is not a case of defect in the nomination papers but a case of defect in the record of the ECP due to misplaced Census Circle for which the Petitioners filed application to ECP for rectification of error in ECP' s record but that application was also rejected vide order dated 02.11.2021; that the learned Tribunal has also failed to properly distinguish and appreciate the legal position that Section 2(xli) read with Section 60(1) of the Act conveys a different meaning than the provisions of Section 2(xii) read with Section 12(1) of the Representation of the People Act, 1976 according to which proposers and seconders are not required to be registered voters from the same constituency where the elections are being held rather their representation is based on resident of the constituency and not the presence in electoral roll as voter; that the Tribunal has wrongly interpreted the provisions of Section 62(9)(b)(i) of the Act because the proposers obtained Voter Certificates from the District Election Commissioner , Lahore for the purpose of subscribing the nomination papers of the Petitioners; that the Petitioners have been disenfranchised illegally and have been deprived of their fundamental rights as such the Impugned Judgment and Impugned Order are liable to be set aside. The counsel for the Petitioners has relied on "Nadeem Shafi Versus Tariq Shuja Butt and others" (PLD 2016 SC 944) and "Rana Muhammad Tajammal Hussain Versus Rana Shaukat Mahmood" ( PLD 2007 SC 277 ). C. RESPONDENTS SUBMISSIONS 6. On the contrary , Barrister Ahmad Qayyum, ASC appeared and while referring to Section 2(xli) of the Act stated that voter is a person who is enrolled as a voter on the electoral roll of the constituency and in the case in hand the Petitioners' proposers and seconders are on the electoral roll of NA-130 and as per law settled by the Courts, a proposer or seconder must be registered voter of the constituency from where the nomination papers are filed. He also referred to Section 62 of the Act and stated that Returning Officer has to scrutinize nomination papers on the basis of existing electoral roll and is restrained from inquiring into the correctness or validity of any entry in the electoral roll. Barrister Ahmad Qayyum, ASC relied
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on paragraph No.9 and 10 of the case law cited in "Rana Muhammad Tajammal Hussain Versus Rana Shaukat Mahmood" (PLD 2007 SC 277). He referred to paragraph Nos.2, 6 and 9 of the judgment of Full Bench of this Court bearing W.P.No.221907 of 2018 titled "Rao Muhammad Sarwar Versus Returning Officer, PP-77, Sargodha & another" D. GIST OF THE ISSUES 7. In the case in hand, the learned counsel for the Petitioners is of the view that representation of proposer and seconder is based on the resident of the constituency while the learned counsel for the Respondents are of the view that a proposer or seconder must be registered voter of the constituency on existing electoral roll from where the nomination papers are filed which is NA-133 and not NA-130. E. NUB OF THE MA TTER 8. The nub of the matter in this case is that who is qualified proposer and seconder to nominate a candidate for the member of that constituency because the proposer or seconder has to be a voter of a constituency and the word 'voter ' has been defined in the Act which includes a person who is enrolled as person on electoral roll of any electoral area in a constituency . 9. We have heard the arguments and perused the record. F. DETERMINA TION BY THE COURT 10. The anchor point involved in this case is to ascertain whether the eligibility and qualification of a voter who is proposing and seconding a candidate to contest election as a member of National Assembly is to be examined on the basis of his residence in the particular area where the elections are going to be held by the ECP or it is to be determined on the basis of his enrollment in the electoral roll of that particular area. In order to comprehend the position in true and correct perspective, it is pivotal to understand the relevant terms as defined under the Act. A candidate is defined in Section 2(vii) which means a person proposed and seconded as a candidate for, or seeking, election as a Member . This definition makes it ample clear that for a candidate to participate in an election as a Member of National Assembly he must be (i) proposed and (ii) seconded by a voter as evident from Section 60 of the Act wherein it has been categorically provided that any voter of a constituency may (i) propose or (ii) second the name of any qualified person to be a candidate for Member of that constituency whereas sub-section 4 of Section 60 has laid a condition that a person as a candidate may be nominated in the same constituency by not more than five nomination papers. Now it is necessary to elucidate the meaning and scope of the term "voter" because it is the most important and essential requirement which is to be fulfilled by a proposer and seconder in order to nominate any candidate to be a Member from a constituency . Section 2 (xli) defines "voter" in relation to an Assembly as a person who is enrolled as a voter on the electoral roll of any electoral area in a constituency . Electoral roll is defined as per Section 2(xx) as an electoral roll prepared, revised or corrected under this Act and includes the electoral rolls prepared under the Electoral Rolls Act, 1974 as already existed before commencement of the present Act. On the other hand, "electoral area" is defined under Section 2 (xvi) and "constituency" is defined under Section 2 (xi) of the Act as a constituency delimited under the Act. 11. It is well founded that being a voter in any of electoral area of the constituency is mandatory requirement for a voter to propose and second the nomination of a candidate for becoming a Member of the National Assembly . Perusal of Section 2 (xli) of the Act evidently signifies that voter in relation to an Assembly is a person who is enrolled as a voter on the electoral roll of any electoral area in a constituency . This definition makes it abundantly clear that enrollment in the electoral roll is basic and fundamental requirement for a person to be a voter of a particular electoral area and mere residing in an area or having a temporary or permanent resident in any part of the electoral area of a constituency is not a determinative factor to term a person as voter within the meaning of the Act. Even though Section 27 of the Act postulates a criterion with respect to having place of residence in an electoral area as to be generally included within the electoral roll, however , the determinant factor is not being a resident of the constituency but being enrolled in the electoral roll of any of the electoral area which is part of the said constituency . The plain meaning and intent behind the scheme of things as discernable from bare reading of the Act and by applying general and literal rule of interpretation leads to the irresistible conclusion that residing
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within an electoral area forming part of a constituency may be one of the vital ground to be enrolled as a voter in the electoral roll of said constituency but it is not an alternative or equivalent to actually being in an electoral roll, which is indeed the sine qua non for becoming a voter within the spectrum of the Act to become a proposer and seconder of a nominee for contesting an election of the Assembly . 12. It is settled principle of law that when law requires an act to be done in a partic ular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law. The Honorable Supreme Court in "MUHAMMAD HANIF ABBASI Versus IMRAN KHAN NIAZI and others" ( PLD 2018 SC 189 ) laid down the principle as follows: "It is settled law that where the law requires something to be done in a particular manner , it must be done in that manner . Another important canon of law is that what cannot be done directly cannot be done indirectly". Similar view was earlier expressed by the august Supreme Court in "THE COLLECT OR OF SALES TAX, GUJRANW ALA Versus MESSRS SUPER ASIA MOHAMMAD DIN AND SONS" (2017 SCMR 1427 ), wherein it was observed that "when a statute requires that a thing should be done in a particular manner or form, it has to be done in such manner". In "ZIA UR REHMAN Versus SYED AHMED HUSSAIN" (2014 SCMR 1015 ) the Honorable Supreme Court laid down the same principle by holding that "If the law requires a particular thing to be done in a particular manner it has to be done accor dingly , otherwise it would not be in-compliance with the legislative intent. Same view was expressed earlier by the Honorable Supreme Court in "HAKIM ALI Versus MUHAMMAD SALIM " (1992 SCMR 46) wherein it has held that "it is well settled that when the law gives direction to do a thing in a particular manner , it shall be done in that manner or not at all". 13. The combined result as emanating from the above discussion leads to a definite conclusion that a candidate in order to become a Member of the Assembly requires nomination from a (i) proposer and (ii) seconder who must be enrolled as a voter on the electoral roll of any electoral area in that constituency and proving the factum of having a temporary or permanent residence in the area falling within the constituency is not an alternative to the mandatory requirement of having enrolled in the electoral roll of the Commission. 14. Even otherwise, Section 26 of the Act provides for preparation of preliminary electoral rolls on the superintendence, directions and control of the Election Commission and laid down requirements criterion for the same including the requirement with respe ct to place of residence as ordained in Section 27 of the Act which states a general rule that ordinarily a person shall be deemed to be resident in an electoral area if his temporary or permanent address in the CNIC lies in the said electoral area. Section 28 stipulat es for preliminary publication of the electoral rolls and Section 30 provides a remedy to the person whose name is excluded or requires rectification to file application for inclusion of name or such other correction within the period of thirty days or within a time as determined by the Commission. However , Section 31 postulates mechanism for transfer of name from one electoral area to another and Section 34 provides for correction of electoral rolls by Registration Officer as per decision of the Revising Authority under Section 33 or for correction of other errors and thereafter final publication of electoral roll is made under Section 35, which is not to be revised, corrected or the names transferred after constituency is called upon to elect its representative as provided under Section 39. This holistic scheme under the Act and the Rules regarding preparing, rectifying and authenticating of electoral rolls leads to definite conclusion that if the name of a voter is missed out from being included in the electoral rolls, he has been given adequate remedial forum to set it right but if he failed to do so and his name is not in the electoral roll of a constituency when a schedule for election in the same is issued by the Commission, then at this stage, the same cannot be rectified, altered or modified. 15. It is even otherwise beyond the competence of the Returning Officer to go into the question of correctness or validity of any entry in the electoral roll since it is defined function of the Registration Officer under the superintendence and command of the Election Commission through the procedure as discussed above. Section 62(6) has laid it down specifically that Returning Officer shall not enquire into the correctness and validity of the entry in electoral roll. Although under second proviso of Section 62(9) the Returning Officer is empowered to allow removal of any such defects in the nomination papers, which are not of substantial nature, yet the requirements that only a voter of a constituency is competent to propose and second a candidate to contest election for
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Assembly being the only criteria for a candidate to participate in the election for National Assembly speaks volume about the significance of the role of such a voter who proposes and seconds a candidate. It was therefore, quite logical that the proposer and the seconder must be a voter enrolled in the electo ral roll of that very constituency , which is to be represented in the National Assembly by such a candidate so nominated. The statutory requirement imposed upon a candidate to be named by a proposer and seconder is definitive and substantial in nature, which cannot be remedied and rectified by the Returning Of ficer under second proviso of Section 62(9) of the Act. 16. The Honorable Supreme Court in "NADEEM SHAFI Versus TARIQ SHUJA BUTT and others" (PLD 2016 SC 944) elaborated the role of proposer and seconder while interpreting the same under Punjab Local Government (Conduct of Elections) Rules, 2013 which in essence laid down similar principles as provided under the Act observed as under:- "Proposer and/or seconder are not defined anywhere in the Act ibid or the 2013 Rules, therefore, it would appear that the only qualification of a proposer and/or seconder are that he/she be a voter of the constituency . As this is the sole qualification of a proposer and/or seconder a defect with respect to said qualification would go to the heart of the qualification of such proposer and/or seconder to subscribe to the nomination papers and the same would be liable for rejection under Rule 14(3)(b) of the 2013 Rules". The Court further held:- "7. The nomination form II(b) for election to general seats of wards in Union Councils/ Municipal Committees requires a declaration by the proposer and the seconder to the effect that he is registered as a voter at serial # such and such of electoral roll for the electoral area of ward # such and such of the union council/municipal committee. The declaration with respect to the proposer and/or seconder being the essence of his qualification, therefore, if he is not such a voter of the relevant constituency he cannot act as proposer and/or seconder . The question of the object and purpose of nomination by a proposer and/or seconder have been dealt with by a judgment of this Court cited as Federation of Pakistan v. Mian Muhammad Nawaz Sharif (PLD 2009 SC 284) wherein at paragraphs 78 and 79 this Court held that the proposer and seconder are recommendees with respect to the candidate nominated for election. The ineluctable conclusion is that the proposer and the seconder must be voters of the same constituency , who put forward the name of a duly qualified candidate whom they considered suitable to represent the electorate. It is an endorsement of the nominated candidate by voter(s) of the same constituency . Therefore, should it be discovered that the proposer and/or seconder are not voters of the said constituency it would be tantamount to no nomination at all and thus a defect of a substantial nature". (underlined for emphasis) 17. The Honorable Supreme Court in "RANA MUHAMMAD TAJAMMAL HUSSAIN Versus RANA SHAUKA T MAHMOOD" (PLD 2007 SC 277) further held that any defect in submitting nomination paper , duly proposed and seconded by a candidate, is of a substantial nature. The Court observed as follows:- "9. It has been pointed out hereinabove that the object of section 12(1) of the Act, 1976 is that elector of the constituency may propose or second the name of any duly qualified person as a candidate for election as a member for that constituency , clearly spells out the intention of the legislature. Therefore, keeping in view that intention of the legislature the word `may' used in section 12(1) has to be read as `shall' and on having held that the word `may' can be interchanged with the word `shall' to enhance the intention of the legislature, the candidate is bound and under mandatory obligation to ensure filing of nomination papers from the constituency duly proposed and seconded by the electors therefrom. There is no cavil with the proposition that once it is found out that a provision of the law is mandatory by its implication, the same is bound to be strictly following as has been held in Dalchand v . Municipal Corporation Bhopal AIR 1983 SC 303. 10. Thus it is held that the plea of the learned counsel for appellant that permission be accorded to him to substitute the names of the proposer and seconder , at this stage, seems to be not acceptable. Therefore, opinion expressed in the case of Ishaq Dar v. Election Tribunal (KLR 1998 Civil Cases 374) is not approved for the reasons mentioned herein above because of the fact that this provision of law is mandatory in its nature and would have substantial effect on the election, for which schedule is to be announced and any nomination paper found invalid cannot be allowed to be validated afterwards, even in exercise of powers either by the Returning Officer or
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the Election Tribunal or for that matter High Court or this Court, in terms of section 14(1)(2) of the Act, 1976 . A perusal of this provision also indicates that the powers of the Returning Officer have been controlled for not rejecting the nomination papers on any defect which is not of substantial nature, whereas defect in any submitted nomination papers, duly proposed and seconded by a candidate, is of a substantial nature and provisions of sections 12 and 14 of the Act, 1976 are mandatory in nature as held in Muhammad Abbas v. Returning Officer 1993 MLD 2509 , Qaisir Iqbal v. Ch. Asad Raza 2002 YLR 2401 , Asif Khan v. Returning Officer 2003 MLD 230 and Mudassar Qayyum Nahra v. Election Tribunal 2003 MLD 1089 . Thus on having approved the principle discussed in these judgments, the earlier judgment in the case of Ishaq Dar (ibid) on the point is not approved". (underlined for emphasis) 18. In "MUDASSAR QAYYUM NAHRA Versus ELECTION TRIBUNAL, PUNJAB, LAHORE and 10 others" (2003 MLD 1089 ) similar view was expressed in the following manner:- "---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 not of substantial nature becaus e 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." 19. In "HAFIZ MUHAMMAD ABBAS Versus RETRUNING OFFICER and 16 others" (1993 MLD 2509 ) same view was expressed as under:- "In the case in hand a clear provision of Representation of People Act, 1976 has been violated, in that the seconder with whose signatures the nomination papers were filed was found to be not belonging to the constituency for which the candidate had filed nomination papers. Such a violation could not have been left unnoticed nor could the same, be remedied" 20. In view of the above, by examining the relevant provisions of the Act and the Rules, and the judgments of the Hon'ble Supreme Court of Pakistan and under the jurisprudence of democracy , a voter is the proposer or seconder , of a selected candidate, from the same constituency ,…
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