ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D- 2358 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

12.07.2018.

M/s Jhamat Jethanad and Sundardas, Advocates for petitioner.

Mr. Allah Bachayo Soomro, Additional A.G.

Mr. Jan Ali Junejo, Assistant Attorney General.

Mr. Shahnawaz Brohi, Advocate for Election Commission of Pakistan.

This is a constitution petition, wherein the petitioner has impugned the decision of Returning Officer dated 19.06.2018 and the order of learned Appellate Tribunal dated 25.06.2018, whereby the petitioner has not been entertained in respect to his nomination form for PS 80 Jamshoro-I.

2. Learned counsel for the petitioner contends that nomination papers of the petitioner were rejected by the Returning Officer on the ground of default which was brought up by Zarai Tarqyati Bank however, the same was not in knowledge of the petitioner and that the learned Returning Officer as well as learned Appellate Tribunal had not given him the opportunity to deposit the same. Learned counsel further contends that an opportunity has to be given to the candidate u/s 62 (10) of the Election Act, 2017. It is further contended that material particulars only are liable to be considered for disqualification which were absent in the present matter as such the appeal being a continuation of the original proceeding before which the undertaken was given for the deposit of amount was liable to be considered. It is further contended that order without consideration of the fore-given as such are in violation of the rights given in the relevant law and as such the impugned orders are liable to set aside being in violation of the fundamental rights of the petitioner. It is also contended that a wrong claim was made by the Zarai Tarqyati Bank before the Returning Officer being in the sum of Rs.7,51,485/-, whereas, the actual amount as paid by the petitioner was Rs.6,51,485/-. Learned counsel in support of his contentions has relied upon the cases reported as Illahi Bux Soomro v. Aijaz Hussain Jakhrani and 7 others (2004 CLC page 1060), Fahad Malik v. Mir Mumtaz Hussain Jakhrani and another (2008 CLC page 457), Haji Khuda Bux Nizamani v. Election Tribunal and others (2003 MLD page 607), Rai Hassan Nawaz v. The Election Commission of Pakistan and others (2013 CLC 1101) and Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR page 733) alongwith Article 62 of the Constitution of Islamic Republic of Pakistan, 1973.

3. Learned D.A.G however, contends that the matter was not only of default but concealment and that the outstanding amount was paid subsequent to the decision of the learned Appellate Tribunal. It is further contended that the petitioner had claimed no liability in the affidavit as required being ‘Nil’ as given therein and that it was not the duty of the Returning Officer to require payment.

4. Learned counsel for Election Commission of Pakistan also supports the impugned orders and adopts the arguments of learned D.A.G.

5. Learned A.A.G has also not opposed the impugned orders.

6. Learned counsel for the petitioner in rebuttal reiterates the matter of material particulars as argued by him and further contended that the Returning Officer has wrongly considered Article 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973.

7. Having heard the learned counsel and perused the record. It is observed that the petitioner had not mentioned the liability as was present in the affidavit filed on his part. It is rather difficult to comprehend that the petitioner was not in knowledge of the existence of the loan altogether, especially when such a declaration was to be made specifically and as such it was required for the petitioner to ascertain its actuality. It is further observed that the payment in regard to the said liability was made after exhausting the remedy of appeal although as to the difference of amount as is presented then recourse was available to the petitioner from payment to be made without prejudice to his rights which apparently was not availed by the petitioner. We having gone through the matter for the foregoing reasons, do not find the orders made in the proceedings liable to be disturbed on account of the foregoing discussion. As to the matter of competency under Article 62 and 63 the same may be questioned but that in the present circumstances now is an academic exercise and as such need no indulgence. These are the reasons of short order of dismissal of the petition as was ordered on 12.07.2018, whereby the petition stood dismissed with costs.

JUDGE

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