ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Constt. Petition No. D- 496 of 2018.
|
Date of hearing |
Order with signature of Judge |
06.07.2018.
1. For orders on office objections.
2. For orders on M.A. No.2581 of 2018 (Stay Application).
3. For hearing of main case.
Messrs Farooq H. Naik, Asif Ali Abdul Razzak Soomro and Inayatullah G. Morio, Advocates for petitioner.
Messrs Qurban Ali Malano, Nisar Ahmed Bhanbhro and Allah Bux, Advocates for respondent No.5.
Mr. Rafique Ahmed K. Abro, Advocate for respondent No.3.
Mr. Nisar Ahmed G. Abro, Deputy Attorney General.
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2. The petitioner by way of instant constitutional petition has impugned order dated 27.06.2018, of learned Election Appellate Tribunal Sukkur, whereby on appeal of respondent No.5, the nomination paper of the petitioner to contest Election from PS-11, Larkana-II, was rejected.
3. The facts in brief necessary leading to passing of the instant order are that the petitioner filed a nomination paper to contest Election from PS-11, Larkana-II. It was objected by respondent No.5, by filing his objections thereto, those were over-ruled, consequently nomination paper of the petitioner to contest Election from the above said constituency was accepted by learned Returning Officer vide his order dated 14.06.2018. The respondent No.5 being aggrieved of above said order of learned Returning Officer impugned the same before learned Election Appellate Tribunal Sukkur by way of filing an Election Appeal, it was accepted, consequently the nomination paper of the petitioner to contest the Election from the above said constituency was rejected vide order dated 27.06.2018. The petitioner being aggrieved of above said order of learned Election Appellate Tribunal Sukkur has impugned the same before this Court by way of filing the instant constitutional petition. In the meanwhile, as interim relief subject to decision in main constitutional petition, the petitioner by way of instant application (stay application) has sought for suspension of operation of the impugned order of learned Election Appellate Tribunal Sukkur with an opportunity to him to contest Election from the above said constituency.
4. It is contended by learned counsel for the petitioner that the nomination paper of the petitioner has been rejected by Election Appellate Tribunal Sukkur, on the grounds other than those which were taken by the objector in his objections, that too without issuing a formal show-cause notice to the petitioner, which was mandatory in nature as provided by Sub-section (4) to Section 63 of Election Act, 2017. It is further contended by learned counsel for the petitioner that Mst.Tania was divorced by the petitioner and his daughter baby Kismat is residing with her mother Mst.Tania, she was no more dependent upon the petitioner to have been made public by him in his nomination paper or affidavit attached thereto, which in no case rendered the petitioner to be disqualified from contesting the Election. It is further submitted by learned counsel for the petitioner that there was no concealment of assets/property on the part of petitioner as the landed property which he sold by way of an agreement to sell to Allah Warrayo Gaad, was owned by his sons Muhammad Moosa and Muhammad Nawaz and he sold the same in capacity of their natural guardian, the mutation whereof would be recorded in favour of the purchaser after getting the permission to do so from the competent Court of law. By contending so, he sought for interim relief in favour of the petitioner by ordering to suspend the operation of impugned order of learned Election Appellate Tribunal Sukkur with an opportunity to the petitioner to contest the Election from the above said constituency subject to final decision of main constitutional petition. In support of his contention, he relied upon case of Haji Abdullah Khan and others vs. Nisar Muhammad Khan and others (PLD 1959(W.P) Peshawar-81, (2). Case of Muhammad Bakhsh vs. Mst.Ghulam Aisha (1997 MLD-491), (3). Case of Umar Ayub Khan vs. Returning Officer NA-19, N.W.F.P District Haripur/Additional District & Sessions Judge, Haripur and another(2003 MLD-222), (4).Case of Illahi Bux Soomro vs. Aijaz Hussain Jakhrani and others (2004 CLC-1060), (5).Case of Muhammad Shavez Khan and another vs. District Returning Officer, Attock and another (2002 CLC-342), (6).Case of Mst.Ghulam Sakina vs. Umar Bakhsh and another (PLD 1964 Supreme Court-456), (7).Case of Haji Nowroz Khan vs. Hussain Gul and others (1980 CLC-17), (8). Case of Yamin Khan and others vs. Rais Jhangli Khan and another (1999 CLC-1755), (9).Case of Manzoor Hussain and others vs. Bhole Khan and others (1991 CLC-640), (10). Case of Fida Hussain vs.Najma and another (PLJ 2000 Quetta-73 (DB) and (11). Photo stat copy of judgment dated 20.03.2018 of Hon’ble Supreme Court of Pakistan passed in Civil Appeal No.647 of 2015(Re.Malik Shakeel Awan vs. Sheikh Rasheed Ahmed and others.
5. In rebuttal to above, it is contended by learned counsel for respondent No.5 that the petitioner has concealed the property owned by him in the names of his sons, the agreement to sell whereof in favour of Allah Warrayo Gaad is managed, Mst.Tania is still in “Nikah” of the petitioner, he could not be permitted to escape from such bond under the pretext that he has divorced her orally, baby Kismat is dependent upon the petitioner, he could not be permitted to escape from such liability under the pretext that she is residing and is depending upon her mother Mst.Tania, the petitioner is not qualified to contest Election, as such his nomination paper was rightly rejected by learned Election Appellate Tribunal Sukkur. By contending so, he sought for dismissal of the instant/listed application, as according to him the petitioner is not entitled even for interim relief. In support of his contention, he relied upon case of Muhammad Ahmad Chatta vs. Iftikhar Ahmad Cheema (2016 SCMR-367), wherein nomination paper of the candidate was rejected mainly for the reason that he has failed to disclose the bank account and properties belonging to his spouse.
6. Learned counsel for the Election Commission by supporting the order of learned Returning Officer recorded no objection to grant of interim relief in shape of acceptance of nomination paper of the petitioner subject to final decision of the main constitutional petition.
7. Learned D.A.G has supported the impugned order of learned Election Appellate Tribunal Sukkur by contending that it is well reasoned. By contending so, he sought for dismissal of the instant/listed application.
8. We have considered the above arguments and perused the record.
9. Section 63 (4) of Election Act, 2017 reads as under;
“If, on the basis of information or material coming to its knowledge by any source, an Appellate Tribunal is of the opinion that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, government dues and utility expenses or has had any loan written off or has willfully concealed such fact 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 Appellate Tribunal is satisfied that the candidate is actually a defaulter or has had a loan written off or suffers from any disqualification, it may reject the nomination paper”.
10. Perhaps, on the basis of above provision of law, the petitioner is advancing his grievance that his nomination paper has been rejected by Election Appellate Tribunal Sukkur without issuing him show-cause notice, as according to him it was rejected on the basis of material other than the one which was shown in the objections filed against his nomination paper by respondent No.5. The petitioner before rejection of his nomination paper in pursuant to service of notice upon him put his appearance before learned Election Appellate Tribunal Sukkur then filed his counter affidavit. He was heard through his learned counsel to his entire satisfaction prior to rejection of his nomination paper. In that circumstance, he could not claim that the impugned order has been passed against him by learned Election Appellate Tribunal Sukkur without service of show-cause notice upon him. Needless to observe that the issuance of notice against the petitioner for his hearing on Election Appeal, for all the purposes was notice against him to show-cause, as to why his nomination paper should not be rejected.
11. The petitioner in his affidavit which he filed in support of his nomination paper before learned Returning Officer has disclosed the names of his spouses and dependents to be as under;
01.Gul-E-Lala Khuhro (Wife)
02.Sehar Aman Khuhro (Daughter)
03.Maham Khuhro (Daughter)
04.Khatija Nisar (Wife)
05.Muhammad Moosa Khuhro (Son)
06.Muhammad Nawaz Khuhro (Son)
12. No-where, in his affidavit the petitioner has disclosed the names of Mst.Tania to be his wife and baby Kismat to be his daughter. If for the sake of arguments, it is believed that Mst.Tania was divorced by the petitioner orally, even then he was under obligation to have disclosed the name of his daughter Kismat from Mst.Tania as dependent/children in his above said affidavit.
13. Section 337 of Mahomedan Law reads as under;
“337.Paternity and maternity.--Parentage is the relation of parents to their children. Paternity is the legal relation between father and child. Maternity is the legal relation between mother and child. These legal relations give rise to certain rights and liabilities as regards to inheritance, guardianship and maintenance”.
14. The above provision of law provides right and liabilities to children with regard to inheritance, guardianship and maintenance. In these circumstances, the petitioner was under lawful obligation to have disclosed the name of her daughter baby Kismat as one of his dependent/children to have her above said rights. The failure of the petitioner to disclose name of his daughter baby Kismat as the dependent/legal heir/children obviously constitutes an act of mens-rea on his part.
15. Further, Section 370 of Mahomedan Law lays down that; a father is bound to maintain his daughters until they are married. Nothing has been brought on the record by the petitioner which may indicate that baby Kismat is married. In that situation, the petitioner cannot be permitted to escape from the liability of maintaining his daughter under the pretext that she at present is residing with her mother Mst.Tania and is depending upon her.
16. It was verified on oath by the petitioner at the time of filing his affidavit in support of his nomination paper that to the best of his knowledge and belief the contents of his affidavit are correct and nothing has been concealed there-from. The declaration so made by the petitioner on oath by way of his affidavit was apparently false, as he deliberately has concealed the name of his daughter baby Kismat from the list of his dependents/legal heirs/children.
17. If for the sake of arguments, it is believed that the petitioner has sold the landed property owned by his sons Muhammad Moosa and Muhammad Nawaz to Allah Warrayo Gaad in capacity of their natural guardian by way of an agreement to sell, without change of Khata, even then the petitioner could not be permitted to contest election from the above said constituency as a interim relief by suspending the operation of impugned order simply for the reason that he has filed false declaration.
18. In C.P.No.2342/18 and C.P.No.2618/18 (Dr.Fahmida Mirza vs. Bibi Yasmeen and others), on issue of false declaration, it was observed by the Hon’ble Supreme Court of Pakistan that;
“It is declared that the respondent has never been a B.A Graduate as per the record. Thus, having given a false declaration, she is disqualified in terms of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 from contesting the general elections”.
19. The case law which is relied upon by learned counsel for the petitioner is on distinguishable facts and circumstances, the same hardly support the case of petitioner.
20. In case of Haji Abdullah Khan and others (supra), the issue of specific performance of contract was involved. In that context, it was observed by Hon’ble Court that the decision of a case cannot be based on grounds outside of the pleading of the parties. No issue of specific performance of contract is involved in the instant matter. In Case of Muhammad Bakhsh (supra), the issue of pre-emption was involved, in that context, it was observed by the Hon’ble Court that the appellant’s additional grounds could not be taken beyond pleading and issues framed by trial Court. No issue of pre-emption is involved in the instant matter. In case of Umar Ayub Khan (supra), the declaration of assets were filed by the respondent on the basis of “Goshwara Milkiat” issued by “Patwari” and verified by “Tehsildar”. In that context, it was observed by the Hon’ble Court that “Patwari” later-on has rectified his mistake for that the respondent could not be penalized for such act of “Patwari”. In the instant matter, no issue of “Goshwara Milkiat” issued by “Patwari” or verified by “Tehsildar” is involved. The petitioner apparently has filed a false declaration whereby he has concealed his daughter baby Kismat to be one of his dependent/legal heir/children. In case of Illahi Bux Soomro (supra), the allegation against the returned candidate was that at the time of filing of nomination paper he has not declared the liability of his spouse. Decree against the wife of returned candidate was in respect of the loan advanced to the company prior to her marriage with the returned candidate and she was only a guarantor for return of the loan. In the instant matter, no issue of loan or liability of the wife prior to marriage with the petitioner is involved. In case of Muhammad Shavez Khan (supra), it was observed by the Hon’ble Court that the Returning Officer or Appellate Authority as the case may be, under the provisions of Election Rules may either Suo-moto or upon objection conduct summary inquiry before rejecting the nomination paper. It was the exercise which was undertaken by the learned Election Appellate Tribunal Sukkur before rejecting the nomination paper of the petitioner. In case of Mst.Ghulam Sakina (supra), the issue of transfer of property was involved; in that context it was observed by the Hon’ble Court that the transferor nor any one claiming under him entitled to enforce any right against transferee in respect of property transferred. In the instant case, if for the sake of arguments, it is believed that the petitioner has transferred the property of his sons with possession to Allah Warrayo Gaad by way of an agreement to sell even then he could not be absolved of liability of making concealment of his daughter baby Kismat to be his dependent/legal heir/children. In case of Haji Nowroz Khan (supra), it was observed by the Hon’ble Court that 30 years old document has got presumption of correctness. In the instant case, no issue of 30 years old document is involved. In case of Yamin Khan and others (supra), it was observed by the Hon’ble Court that duly appointed guardian or father being natural guardian may enter into contract on behalf of his sons or daughters. If for the sake of arguments, it is believed that the petitioner has signed contract/agreement of sale on behalf of his sons in favour of Allah Warrayo Gaad, even then the petitioner could not be absolved of liability of making concealment of the name of his daughter baby Kismat to be his dependent/legal heir/children by way of filing an affidavit which was on oath. In case of Manzoor Hussain and others (supra), it was observed by Hon’ble Court that the father being legal guardian of his minor children is empowered to alienate their property. If for the sake of arguments, it is believed that the petitioner being father of his minor sons is empowered to alienate their property, even then he could not be absolved of the liability of making concealment of the name of his daughter baby Kismat from the list of his dependent/legal heir/children. In case of Fida Hussain (supra), it was held by Hon’ble Court that oral “Talak” was binding inspite of its non-compliance with requirement of section 7 of Family Laws Ordinance, 1961. If for the sake of arguments, it is believed that the petitioner has divorced his wife Mst.Tania orally even then he could not be absolved of the liability of making concealment of name of his daughter baby Kismat from the list of his dependent/legal heir/children. In case of Malik Shakeel Awan (supra), it was observed by the Hon’ble Court that the question of “strict liability” does not arise with regard to misstatement in nomination paper. In the instant matter, the petitioner has made misstatement in affidavit on oath by concealing the name of his daughter baby Kismat from the list of his dependent/legal heir/children.
21. Needles to state that learned counsel for the Election Commission has recorded no objection to grant of interim relief in favour of the petitioner in shape of acceptance of his nomination paper subject to final decision of the main constitutional petition, but there could be made no denial to the fact that recording of simple no objection by learned counsel for the Election Commission for the above relief in favour of the petitioner is not enough to over-ride the above stated/discussed legal and factual position.
22. In view of facts and reasons discussed above, the listed/stay application (Misc.Appln.No.2581 of 2018) is dismissed.
J U D G E
J U D G E.