Moonis Elahi Versus Election Commission of Pakistan & others

Writ Petition No.2431 of 2024, decided on 15th January, 2024.

Result: Petition Dismissed.

SHAHID BILAL HASSAN, J. Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioner/candidate has challenged order dated 10.01.2024 passed by the learned Election Tribunal as well as order dated 30.12.2023 passed by the Returning Officer whereby nomination papers of the petitioner against N.A. 64-Gujrat-III were concurrently rejected.

2.Briefly, the case of the petitioner is that he filed his nomination papers to contest the elections for the constituency of NA.64 Gujrat-III, in which respondent No.4 filed objection. The Returning Officer concerned after going through all the process rejected the nomination papers of the petitioner vide impugned order dated 30.12.2023 by observing that:-

The candidate namely Moonis Elahi s/o Pervez Elahi has submitted nomination forms for contesting General Elections 2024 for constituency of National Assembly NA-64. Scrutiny of documents was scheduled for 30.12.2023 at 02:00 pm. However, on said date and time, neither the candidate, nor his proposer/seconder or any authorized person appeared. One Mr. Muhammad Saleem s/o Rehmat Ali R/o Kunjah Tehsil & District Gujrat, voter of the constituency NA-64, filed following objections against the Candidature of Mr. Moonis Elahi;
i.That the candidate is Fugitive of Law in case FIR No. 149/2023 Dated: 29.06.2023 U/Ss 302, 34 & 109 PPC at P.S. P.S. Mangowal District Gujrat wherein vide order dated 19.09.2023 proclamation in the name of accused was issued & thereafter vide his order dated 19.10.2023 Muhammad Abbas Sherazi learned Judicial Magistrate, Gujrat issued perpetual warrants of arrest of aforesaid candidate.
ii.That the candidate is also an accused of another case FIR No. 364/2023 dated 28.07.2023 U/Ss 324,109,148 &149 PPC at P.S.Jalalpur Jattan District Gujrat when vide order dated 20.09.2023 proclamation was issued in his name and then vide order dated 21.10.2023 his perpetual warrants of arrest of aforesaid accused were issued by the Court of Faisal Mehmood learned Judicial Magistrate, Gujrat.
iii.That signatures of proposer and seconder in the above set nomination papers i.e. form-A are presumably fake and are not genuine, hence aforesaid both the proposer and seconder be called upon so as to ascertain about their genuineness or otherwise.
iv.That the candidate recorded his consent on the nomination papers on 20th December, 2023 in Spain prior to his nomination was made by the voters of the constituency as proposer and seconder, according to law, firstly A voter of the constituency proposes the name of the candidate and another seconds the nomination of that candidate, then the person, who was nominated, gives his consent. v. That the candidate consented on 20.12.2023 in any city of Spain and strangely the same papers were in the hands of proposer and seconder on the next day on 21.12.2023, which seems to be impossible.
vi.That nomination paper is totally fraud as in apparent from the statement of oath commissioner that Moonis Elahi presented papers himself before the oath commissioner, whereas admittedly he at the time and date of attestation of oath commissioner was in abroad.
vii.That another fact is sufficient to reject the nomination papers of aforesaid candidate that he is owner of land measuring 10 Marla falling in village Hardo Rairkah Tehsil Phalia District Mandi Bahauddin but he has not shown aforesaid property in the Form-B nor in his wealth statement filed along with Tax Returns, hence he does not possess the qualifications as mentioned in Article 62(1)(f) of The Constitution of Islamic Republic of Pakistan, 1973.
viii.That stamps affixed by an Oath Commissioner qua attestation of entire nomination papers/documents of the aforesaid candidate have no legal value in the eye of law qua the sole reason that the license of the oath commissioner attesting aforesaid documents has already been expired some years back, hence no sanctity can be given to the entire nomination papers of the accused candidate and the same will be presumed to be submitted unattested.
ix.That the candidate is in possession of two passports bearing numbers AB1746226 issued on 28.08.2014 with expiry date as 24.08.2024 and AB1746228 (GRATIS) issued on 15.01.2019 and will expire on 15.01.2024 and Z0031003 but the candidate has not declared his GRATIS passport in the Affidavit, the candidate has not disclosed correct expenses incurred or being incurred on his tours abroad and stay.

2. The record has been examined. Mr. Moonis Elahi s/o Pervez Elahi has been declared Proclaimed Offender in case FIR No. 149.2023 dated 29.06.2023 vide order dated 19.10.2023 passed by Mr. Muhammad Yousaf Hanjra learned Additional Sessions Judge Gujrat. In C.P. No. (S)87 of 2022, Division Bench of Honourable Balochistan High Court having its Bench in Quetta held as under:

"It is settled principle of law that a proclaimed offender, who is fugitive of law has no right of audience, unless he surrenders himself before the court."

3.Similarly, objection has been raised qua genuineness of the signature of proposer and seconder. The candidate and his proposer and seconder willfully absented themselves from appearance before undersigned for scrutiny of nomination papers. Hence, the objection remains uncontested.

4.The candidate signed nomination form and declaration/affidavit from Spain on 20.12.2023 whereas the proposer and seconder nominated him for contesting General Election from NA-64 on 21.12.2023. Moreover, the declaration/affidavit under section 60(2) of the Elections Act 2017 was attested by such Oath Commissioner whose license stood expired on 06.11.2018. Furthermore, no attestation from the Embassy of Pakistan in Spain/ consulate general/ Ministry of Foreign Affairs is embossed which is mandatory in cases where the person submitting his documents resides in abroad.

5.The candidate only mentioned passport No.AB1746226 in the declaration attached with nomination forms. Whereas, as per record, he also holds passport No.AB1746228 (GRATIS) which will expire on 15.01.2024. Furthermore, the candidate has concealed property measuring 10-Marla situated in village Hardo Rairkah Tehsil Phalia as per certified copy of Mutation No.5015 dated 30.11.2023.

6.In view of above, it is established beyond any iota of doubt that Mr. Moonis Elahi willfully submitted false affidavit, concealed facts and provided wrong information about his assets. Therefore, in the light of judgment of Division Bench of Balochistan High Court in C.P.NO.(S)87 of 2022 dated 12.05.2022 and violations of Section 60(2) of the Elections Act, 2017, the candidate does not qualify to be member of the National Assembly as envisaged in the Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan. The candidature of Mr. Moonis Elahi s/o Pervez Elahi from NA-64 Gujrat-III is hereby rejected u/s 62(9)(a) & 62(9)(d) of the Elections Act 2017.' 3. The petitioner being aggrieved preferred an appeal against the order of the Returning Officer before the learned Appellate Tribunal; however, the learned Appellate Tribunal vide impugned judgment dated 10.01.2024 dismissed the appeal; hence, the instant constitutional petition. 4. After hearing the learned counsel for the petitioner, learned counsel for Election Commission of Pakistan (ECP) assisted by the ECP officials, it is observed that for the purpose of disposal of the instant petition, the relevant provisions of Elections Act, 2017 are sub-clauses (a), (b), (c) and (d) of the sub-section (2) of Section 60 of the Act, 2017, which are reproduced infra for ease of reference:-

'(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by--

(a)a declaration that he has consented to the nomination and that he fulfills the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 for being elected as a Member.

(b)a declaration that before the date fixed for scrutiny of nomination papers he will open an exclusive account, or dedicate an existing account, with a scheduled bank for the purpose of election expenses, and has attached statement of the said bank account with the nomination paper, starting with entries of seven days prior to the election schedule;

(c)an attested copy of his National Identity Card; and

(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.'

In the present case, admittedly the petitioner is presently living abroad and he purportedly executed special power of attorney in favour of his mother namely Qaisra Elahi for filing his nomination papers, appearing at the time of scrutiny, for filing of appeal and doing further acts in this regard but the said power of attorney has not been got authenticated by a notary public or any Court, Judge, Magistrate, Pakistan Consul or Vice Consul, or representative of the Federal Government in the country where the petitioner has been residing, therefore, the presumption as to power of attorney as per mandate of Article 95 of Qanun-e-Shahadat Order, 1984 is not applicable in this case.

According to section 2 of the Attorney Act, 1882, power of attorney is written authorization, whereby the Principal' authorizes the agent to do the acts specified therein on behalf of Principal' which when executed will be binding on the Principal' as if done by him. Primary purpose of instrument of such nature is to assign authority of Principal to another person as his agent.

A power of attorney (known in Urdu as "Mukhtar Nama") is a legally binding document authorizing someone to manage a person's property, medical, or financial affairs, etc. or performa some other acts as enshrined in the power of attorney on behalf of the Principal. It is commonly used when a person cannot manage his affairs due to his absence, disability, incapacity, or infirmity; it allows an agent to make decisions on behalf of the principal. It empowers the agent to decide the principal's affairs. However, it becomes null and void when its purpose is accomplished, or else the person who executes it or the agent dies. Nonetheless, instructions for managing assets and affairs after death are listed in the last will or living trust. Moreover, Order III Rules 1 & 2 of the Code of Civil Procedure, 1908 deal with Recognized agents and Pleaders'. A study of Order III Rule 1 of the Code of Civil Procedure, 1908 shows that it empowers the party, his recognized agent, or his pleader to make an appearance, file an application, or act in or to any court required or approved by any law. Further, Order III Rule 2 of the Code, 1908 describes the recognized agents as persons with power of attorney and persons carrying on trade or business for and in the names of parties who are not residents within the local limits of the court's jurisdiction. Order III Rules 1 and 2 of the Code, 1908 also allows the agent/holder of power of attorney to "act" on behalf of the principal. Nevertheless, if the power of attorney holder has performed some "acts" according to the instrument, he may depose for the principal for those acts, but not for acts performed by the principal and not by him. Similarly, he cannot testify on behalf of the principal in matters about which only the principal has personal knowledge and about which the principal is entitled to cross-examination.

In the present case, as observed above, the purported special power of attorney has not been executed as per mandate of law, the same does not create any rights or authorization in favour of Mrs. Qaisra Elahi to act on behalf of the petitioner. Therefore, the acts performed by her on behalf of the petitioner have no legal footing.

5. In addition to the above, the petitioner is fugitive from law and has been declared proclaimed offender by a Court of competent jurisdiction in case FIR No.149 of 2023 under sections 302, 324, 34 PPC registered at Police Station Mangowal on 29.06.2023 and he has not surrendered before the Court of competent jurisdiction as yet. Same is situation with regards to another case FIR No.364 of 2023 p.s. Jalalpur Jattan, District Gujrat; therefore, he has rightly been adjudged to be not eligible to contest the election.

The record further divulges that the petitioner recorded his consent on the nomination papers on 20.12.2023 in Spain prior to his nomination made by the voters i.e. proposer and seconder of the constituency, as the same was made on 21.12.2023 as is evident from the nomination papers. Furthermore, it is an admitted fact that the petitioner is not in Pakistan, how he appeared before the Oath Commissioner in person, so the attestation by the Oath Commissioner was against facts. Even the Oath Commissioner was not authorized to attest the nomination papers and affidavit of the petitioner as the authority so conferred upon him had already expired. Moreover, the petitioner concealed the ownership of 10 marlas of land and possession of GRATIS passport issued on 15.01.2019 and will expire on 15.01.2024.

In judgment reported as Let.- Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 Supreme Court 735) it has been held that:-

'The scope of judicial review of the High Court under Article 199 of the Constitution in election matter is confined to the extent of an order passed by election authority without lawful authority or it is coram non judice or mala fide an judicial review of the High Court cannot be enlarged to the cases relating to factual inquiry or in cases in which another view of the matter was also possible and if such view would have been taken it would not be illegal or unconstitutional. The High Court is also not supposed to substitute its opinion on the question of fact with the opinion formed by election authority or a Tribunal of competent jurisdiction.'

Here, in this case, no mala fide or ill will towards the petitioner has been agitated or brought before us, warranting interference in view of the ratio of the judgment referred to supra. 5. In view of the above, when the petitioner has furnished wrong information and concealed his assets as well as is fugitive from law and has been declared proclaimed offender besides no valid authority was conferred upon the agent i.e. in the present case, mother of the petitioner namely Mrs. Qaisra Elahi for filing nomination papers and performing further acts in this respect on behalf of the petitioner, the Returning Officer concerned and the learned Appellate Tribunal while passing the impugned order dated 30.12.2023 and judgment dated 10.01.2024, respectively, have rightly exercised vested jurisdiction and have appropriately considered each and every aspect; therefore, the same are not open to any interference by us in exercise of extraordinary constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Resultantly, the constitutional petition in hand stands dismissed.

Judges on this bench

Ali Baqar Najafi481 judgments
Shahid Bilal Hassan462 judgments