Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Petition No. S – 09 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Date of hearing : 05.12.2018 and 19.12.2018.

Date of judgment : 27.02.2019.

Mr. Nisar Ahmed Bhanbhro, Advocate for the petitioner.

Mir Haq Nawaz Talpur, Advocate for respondent No.1.

Mr. Irfan Ahmed Memon, Deputy Attorney General.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – This Election Petition is in respect of Provincial Assembly seat PS-31 (Khairpur-VI). Petitioner contested the elections along with other private respondents, as arrayed. Respondent No.1 was declared as returned candidate in terms of notification dated 7^th August 2018. The solitary allegation raised in para 6 of the petition is that the nomination form of respondent No.1 accompanied his statement showing assets and liabilities does not disclose a debt over his property in respect of a gas meter installed in the house, which gas connection is in the name of his brother, wherein the liabilities of Rs.5,92,750/- were outstanding against respondent No.1. Thus, he claimed to have filed a false declaration by concealing the aforesaid default and liability, rendering himself ineligible to be a member of the Provincial Assembly and being disqualified under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973.

2. Respondents were served and respondent No.1 filed written statement. Para 8 of the petition was denied. Para 8 of the written statement discussed the two gas meters installed, however, it is pleaded that he was not required to disclose the liabilities of his late brother. He pleaded that the meter, as referred by the petitioner, was installed in 1970s in the name of his deceased elder brother, whereas, the current meter in use of the returned candidate was installed on 30.04.1995.

3. The issues were framed on 01.11.2018, which are as under:

“ 1. Whether the nomination of the returned candidate was invalid?

2. Whether the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a Member?

3. Whether the election of the returned candidate has been procured or induced by any corrupt or illegal practice?

4. Whether a corrupt or illegal practice has been made by the returned candidate or his election agent or by any other person with the consent or connivance of the candidate or his election agent?

5. What should the order be? ”

4. Petitioner recorded his evidence as well as of Zonal Manager, SSGC, Khairpur namely Abdul Saeed Memon, whereas, Mr. Talpur, learned counsel for the returned candidate / respondent No.1, opted not to lead any evidence in defence and intended to argue the matter directly.

5. I have heard the learned counsel and perused the material available on record.

6. Findings are as follows:

Issues No. 1 to 4 - - - - - - - - - - - - - - - - - - - - Negative

Issue No. 5 - - - - - - - - - - - - - - - - Petition Dismissed

Issues No.1 to 4

7. The four issues apparently are interconnected and dependent upon the outcome of the reasoning and finding of this Court regarding the gas meter viz. Account No.6117971000 (1), in which the liability of deceased brother of returned candidate was shown to the tune of Rs.5,92,750/-.

8. The witness Abdul Saeed Memon, Zonal Manager of SSGC Khairpur was examined first by Mr. Nisar Bhanbhro, learned counsel for the petitioner. In his examination-in-chief, he stated that no arrears were found against utility bills of SSGC in respect of the residential bungalow of the returned candidate. The witness further stated in the examination-in-chief that the only bill found outstanding was of brother of the returned candidate. He produced the utility bills of the returned candidate and that of his brother as Exhibit ‘P-1/A’ and ‘P-1/B’. The witness was not cross-examined by Mr. Talpur, learned counsel for respondent No.1.

9. The affidavit filed by the petitioner on 19.09.2018 is taken as affidavit-in-evidence, which is in consonance with the pleadings of the petition, hence, para 8 of the affidavit-in-evidence deals with the related issue of subject gas meter. He produced his affidavit-in-evidence as Exhibit ‘P-2/A’ and was subjected to cross-examination. He agreed to a question in the cross-examination that he was required to disclose the liabilities of his own, his wife and that of dependent children and similarly, the returned candidate was also required to disclose his/her assets and that of spouses and dependent children. The petitioner agreed to a suggestion that the subject bill, bearing consumer No.6117971000 (1), I.D. No.611798619882 is in the name of returned candidate’s brother (deceased). The witness, however, voluntarily said that the returned candidate has admitted in his pleadings that after the sad demise of Naseem Ahmed Kharal, the brother of respondent No.1, he now owns the subject property. He stated in the cross-examination that one of the meter in the name of the returned candidate is installed in a bungalow, whereas, the other meter is installed in an “otaq” in Mochi Muhallah, Khairpur. He agreed to a suggestion that there are no outstanding dues as far as SSGC is concerned against respondent No.1, the returned candidate.

10. The requirement of the nomination form is the disclosure of candidate’s assets and liabilities and that of dependents. The returned candidate did disclose the liabilities on him or his dependents as Rs.88,53,710/-, however, the heads of these liabilities are not available nor was it questioned by petitioner’s counsel. Though he is only required to disclose his assets and liabilities, he was not required to disclose the liabilities of independent children or of his elder brother, who is now deceased, and has a family, which in no way, was/is dependent on him.

11. An attempt was made in the petition as well as in the cross-examination that these two meters are in fact installed in a same bungalow, that is a main bungalow and otaq. By virtue of solitary statement, he does not become the owner when no supporting documents are available and in absence of any evidence on behalf of legal heirs of deceased brother. In case it is jointly owned property, the debt is recoverable from such property where it is installed. It may be a liability upon his deceased brother and now upon his family but cannot be considered as a liability upon the returned candidate / respondent No.1. Under the law of SSGC and Revenue laws, it may have been recoverable from a property where it is installed but not as liability of the returned candidate. Petitioner cannot succeed on the weaknesses of Respondent’s case. He has to present case by documentary evidence that it is a debt on his property and not on joint property. Moreover, the disclosure in the nomination form is of liability on him and it does not make any reference to the recovery as under the law it is recoverable from the premises it is installed but as liability of brother who is not dependent on returned candidate.

12. In view of the above, the issues No.1 to 4 are answered in the negative.

Issue No.5

13. In view of the above reasoning, the petition is dismissed along with the pending application(s), if any.

J U D G E

Abdul Basit