Form No.

HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Election Appeal No.18381 of 2024

Sanam Javaid Khan through attorney Rubina Javaid

Versus
Returning Officer for Senate Election 2024 & another
Sr. No. of order/ Date of order/ Order with signature of Judge, and that of
Proceeding Proceeding parties or counsel, where necessary

21.03.2024 Mr. Moiz Tariq, Advocate for the appellant

Mr. Muhammad Haroon Kasi, Director Law
(ECP) with Miss Bushra Rasheed, Deputy
Director law (ECP) and Mr. Imran Arif Ranjha,
Legal Advisor ECP

Succinctly, the appellant, for the purpose of

contesting elections of Senate-2024 for the Women Reserve

Seat from Province of Punjab, submitted her nomination

papers through proposer and seconder in the office of

Returning Officer. The scrutiny of the nomination papers was

conducted on 19.03.2024 and the same were rejected vide

impugned order of even-date; hence, the instant appeal.

2. Learned counsel for the appellant has argued that

mother of the appellant namely Rubina Javaid Khan, who is

also attorney of the appellant, approached the Anti-Terrorism

Court, Lahore for permission to access of the appellant in

Central Jail, Kot Lakhpat for obtaining her signatures on

nomination papers, which application was allowed vide order

dated 16.03.2024; that after obtaining the said permission, the

parents of the appellant alongwith Special Messenger of the

Election Appeal No.18381 of 2024 2

said Court and also Barrister Raja Abdul Qadeer visited the

Central Jail, Kot Lakhpat, Lahore on 16.03.2024; that in

presence of the Jail Superintendent, the appellant put her

signatures and thumb impressions on the nomination papers,

however, the Jail Superintendent refused to attest the

signatures and thumb impressions of the appellant in-spite of

order of the Judge, Anti-Terrorism Court; that compliance

report was also prepared on the attested copy of the order of

the Anti-Terrorism Court and it is clearly mentioned therein

that the appellant had signed and put her thumb impressions in

front of Mr. Mohsin, Court Staff and Barrister Raja Abdul

Qadeer; that the said nomination papers of the appellant were

submitted before the Returning Officer through her proposer

and seconder on 16.03.2024, however, the Returning Officer

rejected the nomination papers without plausible justification

and reasoning; that earlier in General Elections, 2024

objections similar to the present impugned order were made

and at the end, Supreme Court of Pakistan allowed the

appellant to contest the General Elections, 2024; that the

appellant is in jail for the last 11 months in 9th May incident in

various cases and her original CNIC was with her at the time

of her arrest, which is in possession of the police but this fact

has not been considered by the Returning Officer; that

statement of assets and liabilities of husband of the appellant

were provided to the Returning Officer at the time of scrutiny

Election Appeal No.18381 of 2024 3

of the nomination papers but the same were not accepted by

the Returning Officer illegally and with mala fide; that the

purported defects mentioned in the impugned order of

rejection are not of substantial nature; that the husband of the

appellant was imprisoned for the last 8 months in 9 th May

incident and was released a month ago, therefore, his returns

for the year ending 2023 were not filed, however, the

appellant has attached his tax returns for the years ending

2020, 2021 and 2022 alongwith statement of Assets and

Liabilities which were not accepted by the Returning Officer

at the time of scrutiny; that the nomination papers of the

appellant have been rejected on technical grounds and the

circumstances, now a days, the appellant has been facing,

have not been considered while passing the impugned order;

therefore, the same is not sustainable in the eye of law and

liable to be set aside by allowing the appeal in hand,

consequent whereof the nomination papers of the appellant

may be accepted.

3. On the contrary, learned Legal Advisor (ECP) by

supporting the impugned order has prayed for dismissal of the

appeal in hand.

4. Heard.

5. The nomination papers of the present appellant

have been rejected with following reasoning:-

„2. The nomination papers of the candidate

were examined and it was found that the
Election Appeal No.18381 of 2024 4

nomination papers and affidavit submitted by her

proposer and seconder do not bear any stamp
from Jail Superintendent as any document from
Jail must be attested by the Jail Authorities as
required under the Pakistan Prison Rules, 1978.
It is a trite law that when a law required a thing
to be done in a particular manner, that thing
should be done in that manner and in no other
way or it should not be done at all and if the
prescribed procedure is not followed it would be
presumed that same had not been done in
accordance with law. Reliance is placed on
(2013 CLC 185) titled as Sharafat Kaleem versus
Additional District Judge, Bahawalnagar, (PLD
2014 Lahore 87) titled as Bakht Munir versus
Qadir Khan, (2014 SCMR 1015) Zia Ur Rehman
versus Syed Ahmed Hussain. Furthermore, the
copy of CNIC attached with the nomination
papers is not legible to check the veracity and
genuineness of the signature of the candidate as
the original CNIC is not available. The proposer
and seconder of the candidate were asked to
provide the clear copies but they failed to do so.
3. Furthermore, she has not attached the
Statement of Assets and Liabilities of her
husband which is the mandatory requirement
under Section 110(2)(e) of the Elections Act,
2017 which is reproduced as under:-
“110. Nomination for elections.---
(1) …………..
(2) Every nomination shall be made by a
separate nomination paper on Form A
signed both the proposer and the
seconder and shall, on solemn
affirmation, be made and signed by the
Election Appeal No.18381 of 2024 5

candidate and shall be accompanied

by---
(a) …..
(b) …..
(c) …..
(d) …..
(e) 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) …….
(4) …….
(5) …….
(6) …….
(7) …….
(8) …….”

With regards to the first two grounds and reasoning it is

observed that on 16.03.2024, Mrs. Rubina Javaid Khan,

mother of the appellant, who is also her attorney, moved an

application to the Judge, Anti-Terrorism Court-I, Lahore for

permission to facilitate the under trial prisoner for preparation

and singing of nomination papers and other documents

relating to Senate Elections upcoming in year 2024 and in the

first paragraph of the said application it was averred, „That the

applicant‟s daughter namely i.e. Mst. Sanam Javaid Khan is

currently confined in jail and facing the severe hardships for

the preparation of nomination papers for upcoming Senate

elections of year 2024.‟ On the said application, the learned

Judge, Anti-Terrorism Court No.III, Lahore passed the

following order:-

„This application has been preferred for seeking

permission to facilitate the under trial prisoner
Mst. Sanam Javed for preparation and signing of
nomination papers and other relevant documents
Election Appeal No.18381 of 2024 6

pertaining to Senate Election, 2024. Let instant

application be forwarded to Superintendent
Central Jail, Kot Lakhpat, Lahore with the
direction to do the needful as prayed for in the
instant application forthwith. Special messenger
alongwith her representative Barrister Raja
Abdul Qadeer is appointed to convey the order
of this court for compliance.‟

On the same day, the Special Messenger of the Court

alongwith representative of the appellant namely Barrister

Raja Abdul Qadeer went to the above said jail and presented

the order of the Judge, Anti-Terrorism Court where-after the

signatures and thumb impressions of the appellant on her

nomination papers were obtained in presence of the jail

authorities but the Jail Authorities with mala fide intention did

not verify the signatures and thumb impressions of the

appellant, which they were bound to do as per Prison Rules,

1978. Therefore, it cannot be said that the fault is on the part

of the appellant rather the same is due to mala fide act of the

Jail Authorities, especially Jail Superintendent, Central Jail,

Kot Lakhpat, Lahore, who knowingly left this lacuna so that

the appellant should face hurdle in acceptance of her

nomination papers for Senate Election, 2024, despite the fact

that nomination papers of another candidate i.e. Umar Sarfraz

Cheema, who is also imprisoned in the same jail, were

verified/attested and stamped by the Jail Authorities in

compliance with order passed in this regard by the learned

Judge, Anti-Terrorism Court, Lahore on the same date i.e.

16.03.2024, as have been admitted by the Election

Election Appeal No.18381 of 2024 7

Commission representative(s) preset in Court and nomination

papers of the said Umar Sarfraz Cheema, in original, have

been perused and returned. Every citizen is to be treated

equally and discrimination on the basis of sex is not allowed

as guaranteed under Article 25 of the Constitution of Islamic

Republic of Pakistan, 1973. However, this aspect has not been

considered and overlooked by the Returning Officer while

passing the impugned order. Moreover, earlier at the time of

General Elections, 2024, the said objection was crept in the

nomination papers of the appellant and the Supreme Court of

Pakistan in order dated 26.01.2024 passed in

C.P.L.A.No.184/2024 held that:-

„8. The second ground which prevailed with

the High Court to reject the nomination papers of
the petitioner was that her signatures and thumb
impression on nomination papers, Form-B and
the Affidavit were not properly attested and,
therefore, not genuine. The High Court has taken
this view because the petitioner is an undertrial
prisoner, and the said documents were not
verified or attested by the Superintendent Jail.
We are afraid that while forming this opinion the
High Court did not consider the provision of sub-
section (9) of section 62 of the Act which
provides for inquiry by RO to reject the
nomination papers. According to it, the RO may
conduct a summary inquiry and may reject the
nomination papers 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
Election Appeal No.18381 of 2024 8

qualified to subscribe to the nomination paper;

(c) any provision of section 60 or section 61 has
not been complied with or the candidate has
submitted a declaration or statement which is
false or incorrect in any material particular; or
(d) the signature of the proposer or the seconder
is not genuine. This scope of inquiry does not
permit the RO to get the signature of the
petitioner verified from the jail authorities, nor
the non-verification or attestation of the
nomination papers by the jail authorities is a
condition precedent, nor was the difference in the
candidate‟s signature a valid reason for rejecting
the nomination papers, particularly when the
petitioner/candidate filed an appeal admitting
her signature and then a constitutional petition.
Thus, this ground could not be used as a basis to
draw the inference that signatures were not
genuine and to reject the nomination papers.‟

6. The second ground making basis of rejection of

nomination papers is that the appellant could not produce the

legible copy of CNIC; the same is not tangible defect and on

such ground the nomination papers, in presence of above

observations of the Supreme Court of Pakistan, cannot be

rejected.

7. So far as the third ground as to non-submission

of Assets and Liabilities of husband of the appellant as on the

preceding thirtieth day of June on Form B as required by

Section 110(2)(e) of the Election Act, 2017 is concerned, it is

observed that at the time of General Elections, 2024, the

Election Appeal No.18381 of 2024 9

appellant also submitted her nomination papers against

constituencies NA-19, Lahore-III, NA-120, Lahore-IV and

PP-150, Lahore-VI. In the said nomination papers the

appellant narrated the same facts as to Assets and Liabilities

of her husband as have been incorporated in her nomination

papers for the Senate Election, 2024. For ready reference the

same is reproduced:-

„My husband is Professor in Skam College and

his monthly salary was 350,000/- to 450,000/- as
my knowledge (FBR Record not available to be
due to I am in jail since last more than 10
months.‟ (Emphasis supplied)

The above ‘emphasized’ line is sufficient to extend

discretionary relief to the appellant, because in exigencies

including illness, imprisonment and unavoidable

circumstances, one cannot be knocked out and cannot be

deprived of his/her fundamental right, in the present case, to

contest the election. Even, it is also an admitted fact that

husband of the appellant was also imprisoned in 9th May

incident and he could not submit his Returns for the year

2023. In such scenario, when, statedly, the statements of

accounts, Assets and Liabilities was presented before the

Returning Officer at the time of scrutiny, the same should

have been considered, because non-submission of Returns by

the husband of the appellant with regards to preceding year

i.e. 2023 was due to inevitable circumstance, not in control

Election Appeal No.18381 of 2024 10

either of the appellant or of her husband. In a judgment dated

26.01.2024, passed in C.P.No.183 of 2024, the Supreme Court

of Pakistan has observed:-

„Elections are the bedrock of a democracy; and

as the 16th President of the United States of
America, Abraham Lincoln, once said, elections
belong to the people. Therefore, it is essential
that those wishing to contest elections be
facilitated as far as is legally permissible. It goes
without saying that it is against democratic
norms and principles to add technical
bottlenecks in the way of any individual, who is a
citizen of this country, trying to contest elections.
And in this backdrop, it is pertinent to say that
electoral laws and rules cannot be used as an
arbitrary filtering mechanism, dependent on the
whims of a Returning Officer. Therefore, a
Returning Officer should exercise the
discretional powers available to him in a rational
and meticulous manner.‟

It was further observed that:-

„Returning Officers are an integral part of the

electoral process and it is highly unbecoming of
a Returning Officer to exercise the authority
conferred upon him or her in a manner which
sabotages the electoral process. Returning
Officers must remember that it is a fundamental
right of an individual to contest elections and if
they sabotage an individual not only do they rob
the individual of their fundamental right but they
also rob the populace at large of voting for that
 Election Appeal No.18381 of 2024 11

individual, which is also a fundamental right

protected by the Constitution.‟

Therefore, to contest election is a fundamental right as

guaranteed by Article 17(2) of the Constitution of Islamic

Republic of Pakistan and the same has been upheld by the

Supreme Court of Pakistan in judgments reported as Nawaz

Sharif v. President of Pakistan (PLD 1993 SC 473), Pakistan

Muslim League (Q) v. Chief Executive of Islamic Republic of

Pakistan (PLD 2002 SC 994) and Javed Jabbar v. Federation

of Pakistan (PLD 2003 SC 955). Keeping in view the

attending unavoidable circumstances, the nomination papers

of the appellant should not have been rejected.

8. For the foregoing reasons and while placing

reliance on the judgments supra, the appeal in hand is

allowed, impugned order is set aside, consequent whereof the

nomination papers of the appellant for Senate Election, 2024

against Reserve Seat for Women from Province of Punjab are

accepted. The Returning Officer is directed to include her

name in the list of contesting candidate as per rules.

(Shahid Bilal Hassan)

Judge

Approved for reporting.

Judge
M.A.Hassan