ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

(APPELLATE TRIBUNAL)

Election Appeal No. S – 06 of 2019

Before: Mr. Justice Muhammad Junaid Ghaffar

Date of hearing : 25.06.2019

Date of Order: 25.06.2019

Appellant: Muhammad Abbas through

Mr. A. R. Faruq Pirzada assisted by Mr. Ghulam Hyder Daudpota, Advocates

Respondents 1 to 3: Chief Election Commissioner,

Islamabad, Provincial Election Commissioner, Karachi and Returning Officer of By-Election-2019 of NA-205 (Ghotki-II) through

Mr. Muhammad Mahmood Khan Yousfi,

Deputy Attorney General along with Sohail Hussain Memon, Election Officer, Ghotki holding the charge of District Election Commissioner, Ghotki

Respondent No.4 : Bangul Khan through

Mr. Haq Nawaz Talpur assisted by M/s Muhammad Asad Ashfaq and Ali Raza Baloch, Advocates

O R D E R

Muhammad Junaid Ghaffar, J. – Through this Appeal filed under Section 63 of The Election Act, 2017 read with Rule 54 of The Elections Rules, 2017, the Appellant has impugned order dated 18.06.2019 passed by the Returning Officer of Bye-Election in NA-205 (Ghotki-II) whereby he has accepted the nomination papers of respondent No.4. As per office objections, the Appeal is time barred as well.

2. Learned Counsel for the Appellant in response to the office objections submits that the last date for filing of Appeal as notified by the Election Commission was 21.06.2019 and since this is an Election Tribunal of the Election Commission, therefore, the timings being observed by the Election Commission were to be followed for accepting the Appeals; however, when the Appeal was presented on 21.6.2019 around 12:35 p.m., the Additional Registrar refused to receive the same on the ground that the time has expired; that the affidavits in support of the Appeal were sworn on 21.06.2019 around 10:16 a.m. by his associate and when the Additional Registrar was approached, he refused to receive the Appeal; that thereafter he called the Additional Registrar on his cellphone and subsequently also sent messages by informing him that the Appeals must be received till 05:00 p.m. as per notified time of the Election Commission; that having left with no other choice, the Appeal was sent through courier on the same date within the stipulated time i.e. before 05:00 p.m.; that a personal affidavit has also been filed by him to this effect, and therefore, there is no question of any limitation or the Appeal being time barred.

3. On merits, learned Counsel for the Appellant submits that the only ground being urged on behalf of the Appellant is to the effect that in 2018, vide order dated 25.06.2018 in Election Appeal No. S-70 of 2018, the Election Tribunal had approved the order of the then Returning Officer, rejecting the nomination papers of the brother of respondent No.4, by holding that the gift in question in favor of present respondent No.4 is dubious, and such order was upheld up to the level of Hon'ble Supreme Court; hence, respondent No.4 is disqualified; that on such basis he is a dishonest person for having involved with his brother in manipulating documents; that such disqualification would apply on respondent No.4 permanently in terms of Article 62(1)(f) of the Constitution, and is, therefore, ineligible to contest elections. In support he has relied upon cases of Abdul Ghafoor Lehri v. Returning Officer, PB-29, Naseerabad-II and others reported as 2013 SCMR 1271, Masood Ahmad Abbasi v. Shahid Khaqan and others reported as PLD 2018 Lahore 752, Munir Ahmed v. Election Commission of Pakistan, Islamabad and 3 others reported as 2013 CLC 1335, Chaudhry Umar Javed v. Intesar Hussain and others reported as 2008 CLC 1422, Rai Hussain Nawaz v. Haji Muhammad Ayub and others reported as PLD 2017 Supreme Court 70 and Syed Khaliq Shah v. Abdul Raheem Ziaratwal and others reported as PLD 2017 Supreme Court 684.

4. On the other hand, learned Counsel for respondent No.4 in respect of the objection regarding limitation submits that the reply in this regard is hearsay and without supporting affidavit; that no Appeal is permitted to be filed through courier in terms of Rule 54 of the Election Rules, 2017 read with Section 63 of the Elections Act, 2017; that in case of election petitions under Section 142(3) of the Elections Act, 2017, it has been specifically provided to file such petitions through courier or post whereas, in respect of Appeals under s.63 ibid, the said facility is conspicuously missing; that the law of limitation has to be strictly applied and no hardship can be claimed; that no certified copy of the impugned order has been annexed; that the provisions of Order XLI and XLIII, CPC are analogous to the present proceedings insofar as Appeal is concerned, therefore, the precedents in respect of non-maintainability of an Appeal without order and decree would equally apply to the present case; that the defect in limitation cannot be cured, whereas, in terms of Section 29(2) of the Limitation Act before this Tribunal, even a condonation application under Section 5 ibid is incompetent, and therefore, the Appeal, being time barred is liable to be dismissed. Insofar as merits are concerned, learned Counsel has relied upon case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister’s House, Islamabad and others reported as PLD 2017 Supreme Court 265 and submits that the findings of the Appellate Tribunal, notwithstanding the fact that such order has been maintained up to the level of Hon'ble Supreme Court; cannot be termed as a declaration regarding any document being dubious in nature; that the present respondent has no connection with the earlier issue, therefore, the Appeal is liable to be dismissed.

5. Learned DAG along with representative of Election Commission namely Sohail Hussain Memon, Election Officer, Ghotki holding the charge of District Election Commissioner, Ghotki submits that the timings of Election Commission are from 09:00 a.m. to 05:00 p.m. even on Fridays, whereas, according to the learned DAG the order impugned is not a reasoned order, and therefore, he does not support the same.

6. I have heard all the learned Counsel as well as learned DAG and perused the record.

7. Insofar as the objection regarding limitation is concerned as per the Notification dated 10.6.2019 issued by the Election Commission of Pakistan, the last date for filing of Appeals against decisions of the Returning Officer in respect of rejection / acceptance of the nomination papers was 21.06.2019. In this case neither the Election Commission had issued any directions; nor had notified the timings for receiving of the Appeals. Similarly, the office of this Tribunal had also not done so. It appears that the Appellant has sworn his affidavit on 21.06.2019 around 10:16 a.m. before the Identification Branch of this Court and as per the record, the Appeal has been presented on 22.06.2019 through courier and in response to the office objection, the Counsel for the Appellant has responded by stating that the Appeal was presented before the Additional Registrar on 21.06.2019 around 12:35 p.m., who refused to receive the same, and thereafter he was telephonically approached by the senior Counsel of the Appellant and subsequently messages were also sent to him around 03:51 p.m. on 21.06.2019. Extracts and printouts of such messages have been placed on record through statement. It further appears that the Counsel for the Appellant has filed his supporting affidavit personally narrating the facts and whatever happened on 21.06.2019. Moreover, it is also pertinent to note that this Election Tribunal is per-se not a “High Court”; though it is being presided over by a Judge of the High Court of Sindh. Therefore, it would not be appropriate to strictly apply the timings notified for receiving of Appeals in respect of matters pertaining to the High Court itself, on Appeals under the Elections Act, 2017 in respect of Bye‑Election being held in NA-205 (Ghotki-II). Since no restrictions and timings were specified, neither by the office of this Tribunal nor by the Election Commission of Pakistan, therefore, in view of the discussion made hereinabove, I am of the view that the Appeal in question is to be treated as having been filed within time, as apparently the affidavits were sworn within time and an attempt was also made to present the same on 21.06.2019, whereas, they were immediately dispatched through courier service on the very date, and therefore, the objection regarding limitation is overruled.

8. Insofar as the merits of this case are concerned, the Appellant relies upon order dated 25.06.2018 passed in Election Appeal No. S-70 of 2018 whereby the rejection of nomination papers of the brother of respondent No.4 was upheld and subsequently was maintained up to the level of Hon'ble Supreme Court. At the very outset, it needs to be appreciated that the present respondent No.4 was not a party to those proceedings, and therefore, it would be highly unfair to disqualify respondent No.4 on this ground alone. It is settled law that nobody should be condemned unheard, whereas, even otherwise the proceedings in that case were summary in nature in respect of acceptance and/or rejection of the nomination papers of brother of Respondent No.4, and therefore, he cannot be saddled with the adverse findings in the said order. The Appellant has made an attempt to have respondent No.4 disqualified on this ground alone which is devoid of any merits. Therefore, this Tribunal is of the view that no case is made out on behalf of the Appellant; hence, the Appeal is hereby dismissed.

J U D G E

Abdul Basit