ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

(APPELLATE TRIBUNAL)

Election Appeal No. S – 07 of 2019

Before: Mr. Justice Muhammad Junaid Ghaffar

Date of hearing : 25.06.2019

Date of Order : 25.06.2019

Appellant : Shabrati Khan through

M/s Shaikh Jawaid Mir and 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 Mehmood Khan Yousfi,

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

Respondent No.4 : Muhammad Bux 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. Learned Counsel for the Appellant on merits of the case submits that respondent No.4 has failed to disclose 2030 Acres of land allotted to him by the Federal Government in the nomination papers; that in terms of letter dated 24.02.2005, he had approached the Chief Minister for extension in lease, and therefore, the property ought to have been disclosed; that the letter dated 18.06.2019 issued by Mukhtiarkar of Khangarh @ Khanpur Mahar, is a forged and managed document and was issued subsequent to the filing of nomination papers, whereas, Mukhtiarkar Pano Aqil vide his certificated dated 20.06.2019 filed through statement in this Appeal, has confirmed that the said land is in possession of respondent No.4; that another land of 176 Acres of which the sale deed has been shown is a bogus transaction as per the record and report / rubkari of the concerned Mukhtiarkar dated 24.04.2014, and therefore, respondent No.4 has made a false declaration by relying on a bogus document; that various foreign trips were made by respondent No.4, however, in the affidavit along with the nomination papers, he has mentioned only two trips and mere filing of passport copies does not cure the defect; that earlier nomination papers of Respondent No.4 in the General Elections of 2018 in PS-20 have been rejected and such order was maintained up to the level of Hon'ble Supreme Court, therefore, he is disqualified; that the net wealth declared with FBR does not match with the amount mentioned in the nomination form; hence, by making a false declaration respondent No.4 is disqualified. In support of his contention he has relied upon cases of Sadiq Ali Memon v. Returning Officer, NA‑237, Thatta-I and others reported as 2013 SCMR 1246, Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others reported as PLD 2018 Supreme Court 1 and Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others reported as PLD 2018 Supreme Court 114.

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.

5. On merits, learned Counsel for respondent No.4 submits that insofar as the land of 2030 Acres is concerned, the same admittedly belongs to the Government, presently being in dispute, and therefore, respondent No.4 was not required to disclose the same in his assets; that the certificate dated 20.06.2019 has been subsequently obtained and filed through statement, whereas, it was not produced before the Returning Officer, hence, cannot be considered by this Tribunal; that as per admitted documents the concerned Mukhtiarkar of Khangarh is the custodian of the said land, therefore, no case is made out; that insofar as alleged illegal transfer of 176 acres of land is concerned, he submits that at the most it is a dispute between two private persons and not in respect of any Government land, whereas, a registered Sale Deed is in existence which has not been challenged, therefore, any rubkari issued by the Mukhtiarkar’s office is illegal; that insofar as the travelling issue is concerned, respondent No.4 has given details of his travelling up to 30.06.2018 for the past three years as required in law, whereas, it is only the expenses and the duration of stay which is to be disclosed and not each and every trip, not only this passport was also furnished, hence, this is no disqualification; that insofar as the earlier proceedings are concerned, they were merely in respect of rejection of the nomination papers, and is not a declaration by a competent Court of law, whereas, in terms of proviso to Section 62(9) of the Elections Act, 2017, a candidate can even contest if one nomination is rejected and the other is accepted in the same elections; that the earlier election has no bearing on the present proceedings; that the property which was a matter of dispute in the earlier rejection of nomination has now been properly gifted to the brother by way of a registered instrument as observed by the Hon'ble Supreme Court, and therefore, no case is made out; that insofar as the difference in the net wealth filed with FBR and in the nomination papers is concerned, the same is also not maintainable as in the nomination papers the cost of asset has to be mentioned and there are various assets which have no cost involved being gifted or inherited, therefore, the difference would remain and both figures cannot be reconciled. In support of his contention he has relied upon cases of Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others reported as PLD 2016 Supreme Court 872, Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others reported as 2005 SCMR 931, Syed Muhammad Abbas Hassan Abdi v. Ikram-ul-Haq reported as 2010 MLD 466, Khawaja Muhammad Asif v. Muhammad Usman Dar and others reported as 2018 SCMR 2128, Sher Baz Khan Gaadhi v. Muhammad Ramzan and others reported as 2018 SCMR 1952, 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 Muhammad Hanif Abbasi v. Imran Khan Niazi and others reported as PLD 2018 Supreme Court 189.

6. 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.

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

8. 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.

9. Insofar as the merits of the case are concerned, the first objection is in respect of 2030 Acres of land which according to the Appellant is owned by respondent No.4 and has not been disclosed in his nomination papers. The Returning Officer on such objection was addressed a letter by the Mukhtiarkar Khangarh on 18.06.2019 on Deputy Commissioner’s directions, and in such letter it has been stated that pursuant to approved summary of the Hon’ble Chief Minister Sindh dated 15.03.2005, this office was ordered to resume the captioned land and the record reveals that the said order was complied with and the land has been resumed, whereas, according to the Field Book maintained by the Tapedar it is confirmed that the captioned land is still in possession of Government as the State land. It further appears that when respondent No.4 approached through his application dated 24.02.2005 for extension in the lease, a summary was placed by the Senior Member, Board of Revenue, Sindh before the Chief Minister, in which directions were given to the Mukhtiarkar Khangarh to look after the land and ensure its management, whereas, the request of respondent No.4 be kept in abeyance until further orders. In these circumstances, it cannot be said at the present moment that the land in question was owned by respondent No.4 and therefore, he was not required to disclose the same in his nomination form.

10. Insofar as the other land of 176 acres is concerned, it is not in dispute that there exists a Sale Deed in favor of respondent No.4, whereas, this can’t be a government land at least. It has been disclosed as a land previously owned and now gifted to his brother. Moreover, it is on the basis of a registered instrument i.e. the Sale Deed, and therefore, any dispute by a private party can only be adjudicated by a competent Court and this Tribunal at least must show restraint in castings any doubt regarding any illegal possession of the land as alleged.

11. Insofar as the objection regarding foreign trips are concerned, the case of the Appellant is that respondent No.4 has failed to disclose his travel details for the year 2019, however, in the nomination form he was only required to give details up to 30.06.2018, which has been done, and therefore, this objection is also misconceived and is hereby rejected.

12. Insofar as the difference in the wealth statement of FBR and the nomination papers is concerned, again the contention of the Counsel of respondent No.4 appears to be justified as in the nomination form, the cost of the assets has to be mentioned, whereas, admittedly there are various assets owned by respondent No.4 which have either been gifted or inherited, and therefore, this objection also appears to be misconceived.

13. Lastly, the objection that in the General Elections-2018, respondent No.4 was disqualified on the ground that he had not disclosed one property which was owned by him on the basis of a Sale Deed and was shown as gifted to his brother is concerned, notwithstanding the fact that the said order was maintained up to the level of Hon'ble Supreme Court, it may be observed that presently no such objection regarding concealment of the property in question has been made out. It appears that pursuant to the observations by the Election Tribunal in the said order dated 25.06.2018 and the Hon'ble Supreme Court, respondent No.4 has now executed a registered gift deed of the said property in favor of his brother, and therefore, for the present purposes the said property is not owned by him.

14. Insofar as the argument that respondent No.4 was once disqualified, hence, the same is of permeant nature and cannot be cured, I am of the view that this argument is not maintainable as mere rejection of a nomination paper cannot be equated with a declaration by the Court of law, whereas, it was only to the extent of a claim of gift of the property to his brother, which was under consideration and was not accepted by the then Tribunal as well as by the Hon'ble Supreme Court. This does not permanently disqualifies a candidate from contesting elections. It is also to be noted that this Election Tribunal has been constituted for a very limited purposes in terms of Section 63 of the Election Act, 2017, and is not an Election Tribunal formed in terms of S.140 ibid, in respect of post-election disputes by way of Election Petitions. This difference is to be kept in mind, as any order of an Election Tribunal in respect of rejection and or acceptance of nomination papers cannot be equated with, an order or decision / judgment of the Election Tribunal constituted in terms of s.140 for deciding the Election Petition. That Tribunal may be a Court of law for a declaration in respect of Article 62(1) (f) of the Constitution on the basis of evidence and material placed before it; however, insofar as this present Tribunal is concerned, the proceedings before it are summary in nature, and cannot give a declaration of such nature, as it would be against the principles of natural justice and fair play, and will so also be in violation of Article 10A of the Constitution

15. Reliance in this regard may also be placed on the case of Imran Ahmed Khan Niazi (Supra) relied upon by the learned Counsel for Respondent No.4. The relevant observations are at para 20 at pg:489-490 in the opinion by Mr. Ejaz Afzal Khan, J, as his lordship then was, and reads as under;

20. The next question emerging for the consideration of this Court is what are the fora provided by the Constitution and the law to deal with the questions emerging from Articles 62(1) (f) and 63(2) of the Constitution. To answer this question we will have to fall back upon Articles 62 and 63 of the Constitution. A careful reading of the said Articles would reveal that the one deals with qualifications of a person to be elected or chosen as a member of Parliament while the other deals with disqualifications of a person not only from being elected or chosen but also from being a member of Parliament. If a candidate is not qualified or is disqualified from being elected or chosen as a member of Parliament in terms of Articles 62 and 63 of the Constitution, his nomination could be rejected by the Returning Officer or any other forum functioning in the hierarchy. But where the returned candidate was not, on the nomination day, qualified for or disqualified from being elected or chosen as a member, his election could be declared void by the Election Tribunal constituted under Article 225 of the Constitution. While election of a member whose disqualification was overlooked, illegally condoned or went unquestioned on the nomination day before the Returning Officer or before the Election Tribunal, could still be challenged under Article 199(1)(b)(ii) or Article 184(3) of the Constitution of Pakistan, 1973 as was held in the cases of Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054). However, disqualifications envisaged by Article 62(1) (f) and Article 63(2) of the Constitution in view of words used therein have to be dealt with differently. In the former case the Returning Officer or any other fora in the hierarchy would not reject the nomination of a person from being elected as a Member of Parliament unless a court of law has given a declaration that he is not sagacious, righteous, non-profligate, honest and ameen. Even the Election Tribunal, unless it itself proceeds to give the requisite declaration on the basis of the material before it, would not disqualify the returned candidate where no declaration, as mentioned above, has been given by a court of law. The expression a court of law has not been defined in Article 62 or any other provision of the Constitution but it essentially means a court of plenary jurisdiction, which has the power to record evidence and give a declaration on the basis of the evidence so recorded. Such a court would include a court exercising original, appellate or revisional jurisdiction in civil and criminal cases. But in any case a court or a forum lacking plenary jurisdiction cannot decide questions of this nature at least when disputed. In the latter case when any question arises whether a member of Parliament has become disqualified it shall be dealt with only by the Election Commission on a reference from the Speaker of the Parliament in terms of Articles 63(2) and 63(3) of the Constitution. (Emphasis supplied). We would have sent this case to the Speaker in terms of 63(2) or the Election Commission in terms of Article 63(3) of the Constitution but we do not think a question of such nature has arisen in this case as respondent No. 1 has been alleged to be disqualified even on the nomination day on account of having failed to disclose his assets and those of his dependents.

16. In view of hereinabove facts and circumstances this Tribunal is of the opinion that the Appellant has failed to make out a case for indulgence, as the impugned order appears to be correct in law and facts and therefore, instant Appeal does not merits any consideration and is accordingly dismissed. The Returning Officer / Election Commission shall proceed accordingly.

J U D G E

Abdul Basit