2013 C L C 1335
[Balochistan]
Before Muhammad Hashim Khan Kakar and Naeem Akhtar Afghan, JJ
MUNIR AHMED ----Appellant
Versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 3 others ----Respondents
Election Appeal No.31 of 2013, decided on 17th April, 2013.
(a) Representation of the People Act (LXXXV of 1976)---
----Ss. 7 & 14---Constitution of Pakistan, Art.218---Returning Officer ---Duties and powers ---
Scrutiny of nomination papers ---Returning Officer appointed under S.7 of Representa tion of the
People Act, 1976, is key -man in the entire exercise of conducting honest, just and fair elections
in accordance with law as contemplated under Art.218 of the Constitution---Returning Officer is
required to ensure that no person, who is not cons titutionally and legally qualified to contest any
election, is allowed to enter the arena---Returning Officer has immense powers to conduct such inquiries as he deems fit to make sure that only qualified persons are allowed to contest election---Returning Officers have not been left at the mercy of anyone and they are obliged to move in
the matter of their own motion without sitting there and waiting for objector to come forward so that they could reject nomination papers of unqualified person.
(b) Representation of the People Act (LXXXV of 1976) ---
----Ss. 12, 14 (5A) & 99---Representation of the People (Conduct of Election) Rules, 1977, R.5--
-Constitution of Pakistan, Arts.62 & 63---Nomination papers --- Scrutiny --- Disqualification ---
Sagacious and ri ghteous ---Sufficient documentary evidence was available to establish the fact
that respondent was not qualified to contest election for the seat of Provincial Assembly as well as Senate on the strength of fake and fictitious B.A. degree ---Respondent made declaration in
column meant for academic qualification and declared himself to be a graduate, though he was not---Effect ---Respondent had to face consequences of Arts.62 & 63 of the Constitution, once
there was disqualification, it was always disqualification---Election Tribunal directed the authorities to exclude name of respondent from list of validly nominated candidates and his nomination papers were rejected ---Appeal was allowed in circumstances.
Syed Ayaz Zahoor for Appellant.
Mujeeb Ahmed Has hmi for Private Respondent.
Amanullah Tareen, Addl. A.- G. and Muhammad Haroon Law Officer, Provincial
Election Commission for Respondent.
Date of hearing: 11th April, 2013.
JUDGMENT
MUHAMMAD HASH1M KHAN KAKAR, J. --- The appellant Munir Ahmed son of
Javed Ali, an elector from the constituency PB -23 Kohlu, has challenged the validity of order
dated 7th April, 2013 (the "impugned order"), passed by the Judicial Magistrate -cum-
Returning Officer, PB -23 Kohlu (the "Returning Officer"), by whi ch the nomination papers
submitted by the respondent No.4 Mir Mohabat Khan Marri (the "respondent") from the said
constituency were accepted.
2. Syed Ayaz Zahoor, learned counsel for the appellant, submitted that the nomination
papers of the respondent w ere required to be rejected in view of the definite findings of the
Election Commission of Pakistan (ECP) dated 5th April, 2013, which reads as under: ---
"The Senator is himself responsible for making a false declaration regarding his
academic quali fication and further has incurred the disqualification. Office is directed to
de-notify his name as Senator from the date he was elected to the office. The concerned
Returning Officer for General Election, 2013 be informed immediately so that the nomination
forms, if any, submitted by Mir Mohabat Khan Marri be rejected. Copy of the order may also be
passed to PEC, Balochistan for compliance."
He further maintained that in view of the findings mentioned hereinabove given by the ECP, the
respondent, for all practical purposes, stands disqualified to contest the forthcoming elections, as unmistakable findings with regard to his educational qualification has been recorded by the ECP. In this regard, he relied upon the order dated 1st April, 2013 pass ed by the Hon'ble Supreme
Court of Pakistan in Civil Miscellaneous Application No.1712 of 2013 in Civil Appeals Nos.191- L, and 409 of 2010, wherein it was observed: ---
"We have no reason to disagree with the Secretary about the cases, which have been
referred to the Sessions Court and in respect whereof F.I.Rs. were got registered and the cases
which are pending before the ECP. However, we have inquired from him that whether a
disqualification incurred during the course of the election for a member of the Parliament and the making of a false declaration on a nomination Form that he fulfils the conditions laid down under Articles 62 and 63 are different, because if a Parliamentarian before or after the election is disqualified on this account, he would have no right to hold the office as a Parliamentarian/member of the National/Provincial Assembly or the Senate and in such situation, it is obligatory upon the ECP to proceed against such person by de -notifying him."
It was further observed that: ---
"Yet if a candidate has made a declaration in the column meant for academic
qualification and declared himself to be a graduate, but subsequently, it is found that he was not
a graduate then he would equally be liable to face the consequences under Articles 62 and 63 of
the Constitution or other relevant provisions of the P.P.C. It is further to be observed that once there is a disqualification, it is always a disqualification; therefore, while making declaration in the nomination papers, a candidate must provi de, a crystal clear statement about his credentials
and antecedents. There is no scope of making or providing information, which is not correct,
because he is one of the persons whom the electorate of a constituency, which may be having a
strength of 50 thousand, or going to elect their representative. Therefore, whatever, he possesses in terms of academic qualification, bank credits and taxes etc, he shall have to declare each and every thing required for the qualification to contest the election."
3. Mr. Mujeeb Ahmed Hashmi, learned counsel for the respondent, while questioning the
maintainability of the appeal, submitted that the appellant has no locus standi to file the above
appeal, as neither he has filed written objections, nor orally objected the a cceptance of
nomination papers at the time of scrutiny before the Returning Officer and that there is no sufficient evidence available on record to establish that the degree possessed by the respondent was fake or fictitious.
4. Before dealing with the l egal objection regarding locus standi of the appellant, it would
be relevant to reproduce hereinbelow the impugned order, which reads as under: ---
"Representative of candidate, seconder and proposer also present. No objection in black
and white so far r eceived from any corner. It is now 4:00 p.m. dated 7- 4-2013. Hence nomination
papers accepted."
5. While considering the contentions raised by the learned counsel for the parties in the light
of the relevant provisions of law, we are of the confident view that the appeal is
maintainable. Subsection (5) of section 14 of the Representation of the People Act 1976 (the
"Act of 1976") provides for filing of an appeal by a candidate against the decision of the Returning Officer rejecting or accepting the nomination papers. However, subsection (5A) of section 14 thereof provides that if on the basis of any information or material brought to its
knowledge by any source, a Tribunal constituted under subsection (5) is of the opinion that a candidate, whose nomination papers have been accepted, is a defaulter of loan, taxes, government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribuna l is satisfied that the candidate is actually a defaulter or has had any loan written off or
suffers from any other disqualification, it may reject the nomination papers, while treating the appeal as an information.
6. After having gone through the impugned order as well as the relevant provisions of law,
we are of the opinion that the nomination papers of the respondent have been accepted by the
Returning Officer simply for the reason that, purportedly, no objections were received by him. It
may be n oted that the Returning Officer appointed under section 7 of the Act of 1976 is the
key-man in the entire exercise of conducting an honest, a just and a fair election in
accordance with law as commanded by Article 218 of the Cons titution of the Islamic
Republic of Pakistan, 1973 (the "Constitution"). The Returning Officer is required to ensure
that no person, who is not constitutionally and legally qualified to contest any such election,
is allowed to enter the arena. In this regard, he has immense powers to conduct such inquiries as
he deems fit to make sure that only the qualified persons are allowed to contest an election. The
Returning Officers have not been left at the mercy of anyone and they are obliged to move i n the
matter of their own motion without sitting there and waiting for an objector to come forward so that they could reject the nomination papers of an unqualified person. In this respect, reference can be made to subsection (3) of section 14 of the Act of 1976, which reads as under: ---
14. Scrutiny.--- (1) ………………………………………………………..
(2) …………………………………………………………………………….
(3) The Returning Officer may, either of his own motion or upon any objection, either by an
elector or by any person referred to in sub- section (1), conduct such summary enquiry as he may
think fit and may reject nomination paper if he is satisfied that----
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 12 or section 13 has not been complied with or submits any false
or incorrect declaration or statement in any material particular; or
(d) the signature of the proposer or the seconder is not genuine:
Provided that: ---
the rejection of a nomination paper shall not invalidate the nomination of a candidate by
any other valid nomination paper;
(la) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to
produce any doc ument or record;
(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 any such defect to be remedied forthwith,
including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or second so as to bring them in conformity with the corresponding entries in the electoral roll; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the
electoral roll."
7. Besides the above provisions of law, reference can also be made to Rule 5 of the
Representation of the People (Conduct of Election) Rules, 1977 (the "Rules of 1977"), which
clothe the objector to file an appeal. It speaks as under: ---
"5. Appeal against acceptance or rejection of nomination by the Returning Officer.--- (1) An
appeal under subsection (5) of section 14 may be presented by the candidate himself or by an
elector who has filed an objection to the nomination of a candidate or by a person authorised in this behalf in writing by the candidate or, as the case may be, such elector.
(2) The appeal shall be addressed to the Tribunal consti tuted for the consistency to which the
nomination relates.
(3) An appeal shall be in the form of a memorandum which shall state the date of acceptance
or rejection of the nomination and the grounds of appeal and shall be accompanied by a certified
copy of the order accepting or rejecting the nomination.
(4) The memorandum of appeal shall be submitted in quadruplicate.
(5) [***]
(6) If the appeal is allowed, the Returning Officer shall revise the list of validly nominated
candidates accordingly."
8. A perusal of above provisions of law would reveal that the Returning Officer was fully
empowered to reject the papers of the respondent being disqualified on account of corrupt
practices committed by him, while contesting the election of the year 2002 and, subsequently, became Senator in the Upper House of Parliament in the year 2006, on the strength of a fake and fictitious degree of BA. Even the Tribunal has the power to treat the appeal as information or material brought in its knowledge for rejecting the nomination papers. Thus, the objection is overruled.
9. The contention of the learned counsel for the respondent that neither the appellant filed
written objections, nor orally objected the acceptance of the nomination papers, is absolutely
devoid of force, for the simple reason that the copy of the written objections filed by the appellant before the Returning Officer is available on record and it may also be noted that, besides the said copy, the order dated 5th April, 2013 of the ECP is also indicative of the fact that the said order was communicated to the Provincial Election Commissioner (PEC) for its onward transmission to the concerned Returning Officers in order to decide the fate of the
nomination papers. We have pa infully observed that it is a classic case, where the Returning
Officer seems to have joined hands with the respondent for ulterior motives just to save him from disqualification, while not mentioning in the impugned order regarding the written objections filed by the appellant at the time of scrutiny. Moreover, the Returning Officer was well aware about the letter dated 5th August 2010 of HEC addressed to ECP as well as de -notifying of the
respondent from the seat of Senate, which was duly published in all prominent newspapers of the
country. The letter, signed by Assistant Controller (Examinations), addressed to HEC by the University of the Punjab reads as under: ---
"Mir Mohabat Khan Marri:
The tampered record of Mir Mohabat Khan Marri exists in University of the Punjab. He
actually never appeared in the First Annual Examination 1986. By fraudulent means, an entry
has been made in the record against Roll Number 33083 which is actually cancelled/blank. The copy of degree provided by HEC has not been issued by the University of the Punjab."
10. It would also be relevant to mention here that an opportunity of full hearing was provided
to the respondent by the ECP, however, as per order dated 5th April, 2013 passed by the ECP,
the responde nt, instead of defending the status of his degree submitted by him during the course
of scrutiny, had delivered a political speech, which reads as under: ---
"6. The Senator was heard by the full Commission said nothing about the degree but gave a
general lecture with an effort to sensitize the Commission about the law and order situation in
Balochistan with the allegation that the same was the result of ill- treatment of the masses of
Balochistan by deprivation of their rights. We have no concern with his remarks, rather, strictly
speaking we have confined ourselves to the genuineness or otherwise of the academic degree appended with the nomination papers."
11. There is sufficient documentary evidence to establish the fact that the respondent was not
qualified to contest the election for the seat of Provincial Assembly as well as Senate on the
strength of a fake, bogus and fictitious BA degree. The respondent has made a declaration in the
column meant for academic qualification and declared himself to be a graduate, though he was
not a graduate, thus, he has to face the consequences of Articles 62 and 63 of the Constitution. As observed by the Hon'ble Supreme Court of Pakistan, once there is a disqualification, it is always a disqualification.
12. In view of the above peculiar facts and circumstances of the case, the appeal is allowed
and the nomination papers of the respondent for contesting the election from PB -23 Kohlu are
hereby rejected. The Returning Officer is directed to exclude the name of the res pondent from
the list of validly nominated candidates.
Before, parting with the judgment, we have painfully observed that, in the instant case,
the Returning Officer appears not to have taken any step at all to determine the eligibility of the
respondent in view of the objections, as well as letter of the ECP, addressed to him. The
Returning Officer needs to be more careful in future being the judicial officer.
MH/48/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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