IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA/

APPELLATE TRIBUNAL FOR 

General Seats in the National Assembly as well as Provincial Assembly of Sindh

of Larkana Division (NA-190 to NA-197) & (PS-01 to 17), constituted in

pursuance of sub-section (1) of Section 63 of the Elections Act, 2017,

by Election Commission of Pakistan, vide Notification No.F.2(7)/2023-Coord,

dated 24^th December, 2023).  

Election Appeal No. 26 of 2024.

Before:

Mr. Justice Muhammad Saleem Jessar.

Appellant       :           Wazir Ali Umrani.

Respondents  :          Returning Officer PS-12, Larkana & others.

            Mr. Muhammad Afzal Jagirani, Advocate for appellant.

            Mr. Abdul Hamid Bhurgri, Additional Advocate General along with Mr. Abdul Waris Bhutto, Asstt. A.G.

            Mr. Oshaq Ali Sangi, Assistant Attorney General.

            Mr. Shafquat Rasool Narejo, Assistant Director (Law), Election Commission of Pakistan, Larkana Division.

Date of hearing         :           06.01.2024.

Date of order             :           06.01.2024.

ORDER

Muhammad Saleem Jessar, J.- The appellant filed his nomination form for the seat of Member Provincial Assembly of Sindh from PS-12, which after scrutiny was rejected by the Returning Officer, on the ground that the seconder of the appellant was registered voter of PS-11, whereas the appellant intends to contest elections from PS-12. The appellant being aggrieved by and dissatisfied with the aforesaid decisions/ order dated 30.12.2023 passed by the Returning Officer has filed instant election appeal.

            At very outset learned counsel for the appellant submits that, the appellant is ready and willing to produce seconder of the same constituency, therefore, he may be allowed to substitute the seconder at this stage and appeal may be accepted and appellant may be allowed to contest the elections.

            On the other hand, the learned Addl. A.G; learned Assistant Attorney General as well as the Assistant Director (Law), Election Commission of Pakistan, Larkana Division have supported the impugned order and prayed that the appeal may be dismissed. Learned Addl. A.G. relied upon 2023 MLD 132 (Jamshed Iqbal Cheema Vs. The Returning Officer, N.A-133 and others) and submits that if the submissions if so advanced by the appellant may be considered the entire schedule of the election process is to be changed, which was beyond the authority of the Returning Officer and at this juncture, the Seconder cannot be replaced. 

            The contention as raised by learned Addl. A.G. has much force and the case law relied upon by him is also very relevant to the facts on instant case.

            The dicta laid down by learned Bench of Election Tribunal, Lahore in the case of Jamshed Iqbal Cheema (supra); the relevant portion of the judgment is reproduced as follows:

             10. An application for substituting of proposer was moved, in captioned appeal, admittedly after final date, which has also been rejected. Though it appeals to mind that a person prepared for contesting an election should not be knocked out technically, yet the philosophy and the procedure for this purpose, as couched in the provision of law, under the Act of 2017, requires a candidate to be proposed by a voter existing in the Electoral Roll of that constituency and these provisions have been interpreted by the august Supreme Court of Pakistan very unequivocally in Nadeem Shafi v. Tariq Shuja Butt and others (PLD 2016 Supreme Court 944) and Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277) holding that this defect is substantial and/or not curable.

            Relevant paragraphs from Tajammal Hussain's Case (supra) are reproduced:

            "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 there from. 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 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.

            In Tajammal Hussain's Case (supra), the provisions under The Representation of the People Act, 1976 ("Act of 1976") are interpreted, which in this Court's opinion, are in pari materia to the relevant provisions under the Act of 2017. Same principles are emanating from the provisions of the Punjab Local Governments (Conduct of Elections) Rules, 2013 ("Rules of 2013"), which have also been interpreted in Nadeem Shafi's Case (supra). Relevant excerpts from the judgment are reproduced:

            "It would appear that the only qualification for a proposer and/or seconder is that they are a voter of the constituency. Voter is defined at section 2(111) of the Punjab Local Government Act, 2013 as under:-

            "Voter" means a person, whose name for the time being appears on the electoral roll prepared or adapted for the purpose of the election under this Act".

            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. That takes us to the question of whether failure of the proposer and/or seconder to be a voter of the constituency from which a candidate is nominated is a defect of a substantial character in terms of Rule 14(7) of 2013 Rules.

            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. Rule 14(7) of the 2013 Rules only empower a Returning Officer to allow a defect other than one of a substantial nature to be remedied, such as the name, or the corresponding serial number in the electoral roll or other particulars of the candidates or his proposer or seconder and son as to ensure that the same are accurate. But if the name of the candidate and his particulars are altogether missing and/or same is the position of the proposer/seconder the Returning Officer cannot be allowed to add these afresh. The same shall be the position with regard to substitution as the said rule does not envisage substitution of the name of the disqualified proposer and/or seconder and the Returning Officer has no lawful authority to allow an altogether new person to be replaced as a seconder or proposer for a person who is absolutely disqualified or ineligible to propose or second. In the present case the petitioner, did not ask the Returning Officer for such substitution; in fact it is not his case in the memo of appeal that he either requested the Returning Officer to allow the substitution later allowed to him by the appellate forum. The Returning Officer and the Appellate authority are barred from correcting a defect of a substantial nature; if the fact that the proposer and/or seconder is not a voter of the constituency is not a defect of a substantial nature, then what is? Therefore, there can be no valid appellate orders allowing substitution or rectification of a defective nomination paper.

            In view of above, I am of the considered opinion that no different interpretation of a provision of law can be made by any lower forum, particularly by this Appellate Tribunal while exercising powers under Section 63 of the Elections Act, 2017, where it has already been interpreted by the Apex Court.  Resultantly, instant election appeal being devoid of merits is hereby dismissed.

                                                       Judge

Ansari