PESHAWAR: A Peshawar High Court larger bench on Wednesday dismissed petitions against an election tribunal’s decision to accept nomination papers of two PTI leaders and former provincial senior ministers, Mohammad Atif Khan and Shahram Khan Tarakai, clearing them to contest the Feb 8 general polls.

Justice Ishtiaq Ibrahim, Justice Ijaz Anwar and Justice Sahibzada Asadullah also disposed of the petitions of PTI leaders and former federal ministers Senator Azam Swati and Murad Saeed against the rejection of their nomination papers by the respective returning officers observing that the bench would give its “findings” on the matter in the detailed judgement.

Lawyers for Mr Swati informed the bench that their client didn’t intend to contest the Feb 8 general elections.

The bench was constituted for deciding the legal question whether a person absconding from the law was eligible to contest polls or not.

Disposes of petitions of Murad, Swati for acceptance of their nominations

Both Murad Saeed and Azam Swati had challenged the rejection of their nomination papers for National Assembly seats in Swat and Mansehra, respectively, by the respective returning officer on the ground of their being absconding from law.

Separate election appellate tribunals in Swat and Abbottabad had upheld the decisions of the returning officers and declared both of them disqualified from contesting polls.

Similarly, the nomination papers of Atif Khan and Shahram Tarakai for National Assembly and Khyber Pakhtunkhwa Assembly from Mardan and Swabi, respectively, were rejected by the concerned returning officer on the same grounds.

However, their appeals were accepted by the appellate tribunal in Peshawar and they were declared eligible for contesting polls. Some voters of their constituencies have filed instant petitions requesting the court to declare them disqualified from contesting polls as they were absconding from law.

Several lawyers appeared for the PTI leaders. They included Shah Faisal Uthmankhel, Mohammad Inam Yousafzai, Barrister Waqar Ali and Barrister Qasim Wadud.

Provincial advocate general Aamir Javed and Election Commission of Pakistan’s counsel Mohsin Kamran Siddique also advanced arguments in the petitions.

AG Aamir Javed contended that once a person was declared an absconder from the law, they couldn’t claim several of their rights guaranteed under the Constitution. He referred to a judgement of the Sindh High Court of 2016 stating that the court had categorised proclaimed offenders and had ruled that they couldn’t claim their rights provided from Article 15 up to Article 20 of the Constitution.

The AG referred to different judgements of the Supreme Court about the curtailing of the rights of an absconder.

Barrister Waqar contended that those judgements were related to criminal cases, and one of the judgements was about local government law and not the general elections.

When the bench inquired whether Murad Saeed had surrendered to the law, his lawyers replied in negative saying there was severe threat to his life as he had also been receiving threats from Afghanistan.

The bench wondered when a person had not been surrendering to the law, then how his papers could be accepted.

The bench also inquired that at this stage when the ECP had started printing of ballot papers, the high court could interfere in those matters.

The judges also asked whether on the basis of power of attorneys, nomination papers could be submitted and accepted in the absence of a candidate.

The AG said that power of attorneys could be used for filing of nomination papers and appeals before the tribunals, but it should not be used for the purpose of filing writ petitions.

He pointed out that the Rawalpindi bench of the Lahore High Court had now declared that an absconder could not contest polls.

The AG also pointed out that any judgement delivered by the high court contrary to the prevalent position at this stage would affect the election plan as printing of ballot papers had already been started.

About Azam Swati, Barrister Waqar said the RO rejected the PTI leader’s papers on two grounds i.e. that he is an absconder and that his signatures didn’t match on the power of attorney.

He added that Azam Swati had returned his party ticket and was no longer interested to contest polls.

The bench wondered when the PTI leader was not contesting polls, then why it should give any “findings” on his plea.

The counsel said that being a senator, any positive finding by the court would benefit Mr Swati in future.

About Shahram Tarakai, the counsel for the petitioner, Biland Khan, contended that the RO had rejected his papers as he was absconder but the tribunal had accepted his appeal on the ground that there was no specific bar on an absconding candidate.

He argued that if he was allowed to contest polls and he won it then an absconder would be making laws in the assembly for the people.

He argued that scores of PTI leaders had surrendered to the law but Shahram had still been absconding.

About Atif Khan, the counsel for the petitioner Ihsanul Haq claimed that a court in Islamabad had already started proceedings to declare him a proclaimed offender. He requested the court to declare him disqualified from contesting polls.

The lawyers for Shahram and Atif contended that the petitioners against both of them were not contesting candidates and they couldn’t file a petition against orders of the tribunals.

The bench rejected petitions against Shahram and Atif and upheld their candidature for the polls, whereas the petitions of Murad Saeed and Azam Swati were disposed of.

Published in Dawn, January 18th, 2024