w 
I
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
\Mr. Justice Umar Ala Bandial
Mr. Justice Qazi Muhammad Amin Ahmed
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
4-
CIVIL APPEAL NO.937 OF 2018
(Against the judgment dated 05.072018
of the Lahore High Court, Lahore passed
in Writ Petition No.222873/2018)
Rana Muhammad AsifTauseef
Appellant(s)
Versus
Election Commission of Pakistan through its Chairman, Islamabad and
others
Respondent(s)
For the Appellant(s): 
Sardar M. Latif Khan Khosa, Sr. ASC
Sardar M. Shahbaz Khosa, ASC
For the Respondent(s): 
Ex-parte
For the ECP: 
Mr. Muhammad Arshad, D.G. (Law)
Date of Hearing: 1811.2020
JUDGMENT
Sayved Mazahar All Akbar Na pvi, 3.- This appeal with leave of the
Court under Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973 is directed against the judgment passed by the learned
Division Bench of the Lahore High Court, Lahore dated 05.07.2018 in Writ
Petition No.222873/2018.
2. The brief facts leading to filing of the instant appeal are that
the appellant being ticket holder of a political party opted to contest the
general elections to be held in the year 2018 from constituency NA- 105
Faisalabad-V. The appellant filed three nomination papers to establish his
claim as a candidate on 08.06.2018. The objections were filed by
Civil Appeal No.937/2018 
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respondent No.5 calling in question the eligibility of the appellant as a
candidate before the Returning Officer in each nomination paper. The main
objection raised against the appellant was that he was not eligible to contest
the elections as he does not qualify the requirements of the law being hit by
Articles 62/63 of the Constitution. He is further disqualified on the basis
that a decree has already been passed by the learned Special Judge, Banking
Court-11, Faisalabad against the spouse of the appellant dated 13,06.2018. It
was lastly objected that the name of the appellant is duly mentioned in the
report of Credit Information Bureau (CIB) and that he has also obtained
loan from the financial institution against Rana Fabrics (Pvt.) Ltd., an
establishment to whom the appellant represents as a Director. The
objections raised by respondent No.5 were duly replied by the appellant
before the Returning Officer. The Returning Officer, after taking into
consideration arguments advanced by both sides, repelled the objections
raised while accepting the nomination papers of the appellant without any
reservation. Being aggrieved, respondent No.5 filed election appeal bearing
No.190-Al2018 before the learned Election Tribunal which was dismissed
vide order dated 25.06.2018.
3.
A constitutional petition was filed by respondent No.5 calling
in question the order of the Returning Officer dated 19.06.2018 as well as
the learned Election Tribunal dated 25.06.2018. The said petition was
adjudicated by the learned Division Bench especially constituted to deal
with election matters. The learned Bench, after hearing both the sides,
accepted the constitutional petition vide impugned judgment dated
05.07.2018, consequently it reversed the findings of both the courts below,
resultantly, the nomination papers filed by the appellant were ordered to be
rejected, he was further declared to be in-eligible to contest elections on the
grounds mentioned above, Hence this appeal with leave of the Court.
4.
At the very outset, learned counsel for the appellant has
submitted that the learned High Court has not properly appreciated the law
on the subject while rejecting the nomination papers of the appellant; that
the appellant was legally bound to file nomination papers supported by an
A
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affidavit disclosing any liability till 30062017; that the learned High Court
made basis for rejection of the nomination papers a decree which was
passed subsequent to the cut-off date on 04.12.2017; that the judgment of
the learned High Court was in defiance of the spirit of Section 60(2)(d) of
the Election Act, 2017; that the total shareholding of the spouse of the
appellant was nominal which do not comes within the ambit of major
shareholding which can be instrumental for declaring anybody a defaulter.
5.
On the other hand, the proceedings before this Court against
respondent No.5 are carried out ex-parte because he had already been
proceeded under Order XVI Rule 6 of the Supreme Court Rules, 1980 by
the office vide order dated 0508.2019. Mr. Muhammad Arshad, Director
General (Law) has appeared on behalf of the Election Commission of
Pakistan but he has not controverted any arguments advanced by the
learned counsel for the appellant.
6.
We have heard the learned counsel for the appellant and gone
through the record.
7.
The nomination papers filed by the appellant with respect to
candidature of NA-1 05 Faisalabad-V were objected by respondent No.5 on
two grounds: (I) that a decree has been passed by the Banking Court against
the spouse of the appellant; and (ii) that his name do figure in the report of
CIa The objections raised by respondent No.5 were discarded by the
Returning Officer as well as the learned Election Tribunal. However,
during the adjudication of constitutional petition, the learned Division
Bench of the Lahore High Court reversed the findings given by both the
fora below and as such a direction was given to declare the appellant in-
eligible to contest the elections and the nomination papers filed by the
appellant were ordered to be rejected. A further direction was issued to the
Returning Officer to delete the name of the appellant from the list of
eligible candidates vide order dated 05.07.2018.
8.
Leave to appeal was granted by this Court vide order dated
10.07.2018 mainly on the ground that the learned High Court has
Civil Appeal No.93712018 
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overlooked Section 60(2)(d) of the Act and the same has been interpreted in
contravention of spirit of the aforesaid provision of law. It was further
observed by this Court that the decree issued by the court which was made
basis for declaration qua rejection of the nomination papers filed by the
appellant was passed against the spouse of the appellant on 04.12.2017
after the cut-off date as envisaged in Section 60(2)(d) of the Act. To
appreciate the arguments, it seems advantageous to reproduce the provision
of Section 60(2)(d) of the Act which reads as below:-
"60. 
Nomination for election.— (I) ...............
(2) Every nomination shall be made by a separate
nomination paper on For A signed both by the
proposer and the seconder and shall, on solemn
affirmation made and signed by the candidate, be
accompanied by:-
(a)
(b)
(c)
(d)
a statement of his assets and liabilities and of
his spouse and dependent children as on the preceding
thirtieth day of June on Form B.
(3)
Plain reading of the above said provision demonstrates without any
ambiguity that the assets, liabilities of the appellant, his spouse and
dependent children were to be disclosed on the preceding thirtieth day of
June as required in Form B duly issued by the ECP i.e. 30.06.2017. There is
no denial to this fact that according to election schedule announced by the
ECP, general election was to be held in 2018 while the appellant was
supposed to furnish the details of personal assets and liabilities and
dependents including spouse till 30° June, 2017 as per the demand of law
duly mentioned in Section 60(2)(d) of the Act. The learned High Court
while pressing into Section 62(9)(c) of the Act declared the appellant in-
eligible to contest elections while directing the Returning Officer to delete
the name from the list of the candidates. Perusal of the aforesaid provision
clearly reveals that the said provision revolves around the Returning Officer
Civil Appeal No.937/2018 
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and its authority to proceed with the matter of his own or on the objection
raised by any of the objector before it. The said provision further authorizes
the Returning Officer a discretionary power to conduct preliminary inquiry
while exercising the authority of the office to ascertain the facts and
circumstances to arrive at a just conclusion in order to satisfy the spirit of
Section 62(9)(c) of the Act.
9. Academically speaking the learned High Court while
exercising constitutional jurisdiction under Article 199 of the Constitution,
inter alia, provides a relief in the form of a declaration, prohibitory order,
mandatory order or an order in the nature of quo-warranto, subject to one
commonality in the exercise ofjurisdiction that it is discretionary in nature.
Therefore, it is incumbent duty of the court to deliberate in a manner with
extra care and caution eliminating any element of unfairness/injustice.
Undeniably the constitutional jurisdiction is wide in its scope and ordinarily
it is not subject to any judicial constraints. This aspect further burden its
exercise because of the reason that it is subject to extra-ordinary
circumstances, it has to be exercised in so classified manner while creating
a balance in its exercise so that no one should suffer because of the exercise
of discretionary power. The contention of the learned counsel that no one
should suffer because of an act of court is directly related to the dictum of
administration of justice. In a democratic State, political activity is a
common feature, however, there are certain limitations which might vary
from one State to another. In our homeland the right to form an association
or a union is a constitutional right which has been made part of
fundamental rights under Article 17 of the Constitution of the Islamic
Republic of Pakistan, 1973. It is advantageous to reproduce the said Article
which reads as follows:
"17. (1) Every Citizen shall have the right to
form associations or unions, subject to any reasonable
restrictions imposed by law in the interest of
sovereignty or integrity of Pakistan, public order or
morality.
(2) 
Every citizen, not being in the service of
Pakistan, shall have the right to form or be a member
UviI Appeal No.937120 IS 
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of a political party, subject to any reasonable
restrictions imposed by law in the interest of the
sovereignty or integrity of Pakistan and such law shall
provide that where the Federal Government declares
that any political party has been formed or is
operating in a manner prejudicial to the sovereignty or
integrity of Pakistan, the Federal Government shall,
within fifteen days of such declaration, refer the
matter to the Supreme Court whose decision on such
reference shall be final.
(3)
Plain reading of the aforesaid provision of Article 17 clearly envisages that
it ensures freedom of association or union but subject to certain reasonable
restrictions imposed by the law. The aforesaid restrictions are further
classified to the extent of interest, sovereignty or integrity of Pakistan,
public order or morality. Superior courts of this country while interpreting
Article 17 of the Constitution of the Islamic Republic of Pakistan, 1973
have broadened its scope and same has been brought to its logical
conclusion. The ordinary meaning of language of Article 17 becomes
meaningless if an activist who becomes part of association or union is not
let to further participate in political activities within the limits prescribed by
the law which ultimately relates to election process. The interpretation of
Article 17 while elaborating its scope the same has been broadened while
associating with it the election process so that the participant becomes
useful entity to be recognized while strengthening the process of
Parliamentary system. This Court in Miss Benazir Bhutto Vs. Federation of
Pakistan and others (PLD 1988 SC 416), Mrs. Benazir Bhutto and another
Vs. Federation of Pakistan and another (PLD 1989 SC 66), Muhammad
Nawaz Sharif Vs. President of Pakistan (PLD 1993 SC 473) and Workers'
Party Pakistan Vs. Federation of Pakistan (PLD 2012 SC 681) has held that
participation in elections is a constitutional right. According to Article
17(2) every citizen, who is not in service of Pakistan, has a right to form a
political party or he can become member of any party. Every party is made
up of several individual persons. If one individual is not allowed to contest
elections imposing upon him certain restrictions, then the question of
Civil Appeal No.93712018 
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forming a political party does not arise, because these are the individuals
who collectively form a party.
10. There is no second cavil to this proposition that according to
the Constitution the general elections are held after the expiry of a term
which ordinarily comprises of five years. The learned Division Bench of
the High Court while adjudicating the matter mis-interpreted Section
62(9)(c) and as such a declaration was issued. In ordinary jurisdiction the
scheme of law is loaded with so many remedies to redress the grievance but
in such like situation in which the litigant has to wait for the expiry of the
term of elections, that too, if the credentials are fully satisfied and make the
appellant eligible to contest election, that sounds inapt regarding exercise of
extra-ordinary jurisdiction to deprive someone of his constitutional right. It
is an established law that every Judge must wear all the laws of the country
on the sleeve of his robes. Reference is placed on Muhammad Sarwar Vs.
The State (PLD 1969 SC 278) and Muhammad Aamir Khan Vs.
Government of Khyber Pakhtunkhwi (2019 SCMR 1021). This Court in
Muhammad Sanvar's case has observed as follows:-
"It appears that the learned Judges were not properly
advised, but it falls to be said that there is a
well-known adage that a Judge must wear all the
laws of the country on the sleeve of his robe."
11 Now the question which erupts in the mind of this Court is
whether, in the given facts and circumstances, the appellant is victimized
due to an act of court, has any relevance. In order to meet the aforesaid
contention, this Court is clear to hold that no doubt the impugned order has
deprived the appellant to participate in political activities for a specific
period but to establish this aspect, there should be some material placed on
the record to establish that the act of the court was based upon some
specific consideration which is missing in this case. Hence it can safely be
said that the judgment passed by the learned High Court was merely due to
an omission of a provision of law. However, the responsibility of the Court
to be vigilant while exercising the authority either in original jurisdiction or
 
constitutional jurisdiction cannot be absolved. In this regard, reliance can
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Uvil Appeal No.937/2018
be placed on the judgment reported as Rod ger Vs. The Comptoir
d'Escompte de Paris [(1871)3 PC 465] in which the Court has observed as
follows:-
"One of the first and highest duties of all Courts is to
take care that the act of the Courts does not cause
injury to any of the suitors and when the expression
'the act of the Court', is used, it does not mean
merely the act of the Primary Court, or of any
intermediate Court of Appeal, but the act of the Court
as a whole from the lowest Court which entertains
jurisdiction over the matter up to the highest Court
which finally disposes of the case."
As a consequence, when it is established that the appellant has finally
succeeded in making out a case in his favour it clearly reflected that he was
not a sufferer of the act of the court, rather finally his grievance was
redressed and as such he can claim that he is not a victim of law, rather a
beneficiary of the process of law.
12. For what has been discussed above, we are constrained to
hold that the judgment of the learned High Court is based upon
misconception of law and the same could not prevail in the eyes of law.
Resultantly, we allow this appeal, set aside the impugned judgment passed
by the Lahore High Court, Lahore dated 0507.2018 and restore that of the
learned Election Tribunal dated 25.06.20 18 and the Returning Officer dated
19.06.2018 accepting the nomination papers submitted by the appellant.
Islamabad, the
18th of November, 2020
Approved for reporting
Waqas Naseer
