JUDGMENT SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR.

Const.Petition No.D- 1285 of 2018

Before:

Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbassi

Petitioner : Manzoor Hussain Wassan through

Mr. Abid S. Zuberi Advocate for petitioner.

Respondents No.4 : Mir Zaheer Abbass Talpur

Through Mr. Haq Nawaz Talpur Advocate.

Respondent No. 1 to 3 : through M/SMuhammad Aslam Jatoi Assistant Attorney

General and Khuda Dino Sangi Advocate for Election

Commission of Pakistan.

Date of hearing: 18-07-2018

J U D G M E N T.

-.-.-.-.-.-

NAIMATULLAH PHULPOTO, J. The petitioner, namely Manzoor Hussain Wassan, has invoked the jurisdiction of this Court Under Article 199 of the Constitution of Islamic Republic of Pakistan,1973 (hereinafter referred to as the “Constitution”) challenging the order passed by learned Appellate Tribunal at Sukkurdated26.06.2018in Election Appeal No.100/2018, whereby appeal filed by respondent No.4 was allowed and nomination paper of petitioner accepted by Returning Officer PS-27 Kotdiji was rejected.

2. Brief facts leading to the filing of instant petition are that for the purpose of contesting the General Elections-2018 petitioner filed his nomination paper on 11.06.2018 as a candidate for constituency of PS-27, Khairpur-II before respondent No.3. The respondent No.4 filed his objections under Section 62 of the Elections Act, 2017 to the petitioner’s nomination paper before Returning Officer. The respondent No.3 / Returning Officer vide his order dated 19.06.2018 accepted the nomination paper of the petitioner. However,the respondent No.4 filed Election Appeal No. 100/2018 and challenged the orders of the Returning Officer for acceptance of the nomination paper of the petitioner.

3. Learned Election Tribunal at Sukkur after hearing the counsel for parties vide order dated 26.06.2018 allowed the appeal filed by respondent No.4 and nomination paper of the petitioner, accepted by Returning Officer was rejected.

4. Petitioner being aggrieved and dissatisfied by Order of Tribunal,filed this constitutional petition. Notices were issued to respondents and DAG for filing the comments.

5. Mr.Abid S.Zuberi learned counsel for the petitioner filed following documents along with his statement dated 05.07.2018.

1) Sale Contract of Shares & Amendment Addendum of Articles of Association of Wassan General Trading LLC (Arabic Version);

2) English Translation of the Sale Contract of shares & Amendment Addendum of Articles of Association of Wassan General Trading LLC,

3) Copy of United Arab Emirates Visa dated 29.04.2018 issued to Mr. Manzoor Hussain Wassan Haji i.e the petitioner;

4) Copy of Commercial license of Wassan General Trading LLC dated 29.02.2012.

6. Copies were supplied to respondents.

7. Mr. Zuberi learned counsel for petitioner mainly argued that petitioner has made full disclosure of all his assets and income in his nomination paper. It is further argued that there was no mis-declaration on the part of the petitioner and rejection of his nomination paper by Tribunal was unjustified and unwarranted. Learned counsel for the petitioner contended that there was no declaration of the Court; Iqama of the petitioner was already cancelled and company was closed in the year of 2016. Thereafter, petitioner visited Dubai on his normal viza. As regards the nomination form of 2013, it is argued that petitioner remained Member for five years and nomination paper was not challenged before any Court of law. It is also argued by Mr. Zuberi that other crucial constitutional issues have been raised in another petition, pending at Principal Seat Karachi. Presently, petitioner is pressing this petition against orders passed by the Tribunal. It is also argued by Mr. Zuberi that counter affidavit has also not been filed by the respondent No.4 as well as by Election Commission of Pakistan. It is also argued that in the similar circumstances appeal has been allowed by Hon'ble Supreme Court in Civil Petition No.1616/2018 in the case of Khuwaja Muhammad Asif V/S Muhammad Usman Dar and others by short orders and reasons are still awaited. It is also argued that Tribunal did not appreciate the legal and factual aspects of the case.There was no concealment on the part of the petitioner. judgment of the Tribunal, according to learned counsel for the petitioner, was devoid of any legal force. Counsel for petitioner in support of his contentions relied upon Sale Contract of Shares and Amendment Addendum of Articles of Association of Wassan General Trading LLC, Copy of United Arab Emirates Visa dated 29.04.2018 issued to the petitioner and copy of Commerciallicense of Wassan General Trading LLC dated 29.02.2012.Counsel for petitioner argued that Company in which petitioner was working as Manager at UAE was closed in 2016. Lastly, argued that finding of Tribunal is against the spirit of law and as such calls for interference.

8. On the other hand, Mr. Haq Nawaz Talpur learned counsel for respondent No.4 argued that learned Returning Officer did not consider the objections of the respondent No.4 and accepted the nomination form of the petitioner in ahasty manner. He has submitted that petitioner had not shown his all immoveable properties in his nomination form. It is further argued that petitioner has disclosed his shares in Company in Dubai in the name and style M/S Wassan General Trading LLC but same has not been shown in his assets. Mr. Talpur submitted that petitioner was working in the said company as Manager but salaryreceived from company has not been declared.Learned counsel for the respondent No.4 has filed some documents along with his statement and notification of the Election Commission of Pakistan dated 02.01.2015 and statement of assets and liabilities filed by Mr. Manzoor Hussain Wassan Member Provincial Assembly from constituency 32. Learned counsel for the respondent No.4 submits that with regard to business capital outside the Pakistan it is mentioned nil. It is further argued that it has been admitted by the petitioner that he owned share in the company in Dubai in Februay 2012 according to the documents produced by the petitioner. It is argued that petitioner retained those assets till 2015. It is also argued that in the assets it is mentioned nil. It is further argued that the same position was in another notification issued by Election Commission of Pakistan in March 22, 2016 in which capital outside Pakistan and assets brought from outside Pakistan have been shown as Nil.Lastly, argued that order of Tribunal is well reasoned and requires no interference.

9. Mr. Khuda Dino Sangi Legal Advisor on behalf of Election Commission of Paksitan as well as D.A.G supported the orders passedby learned Tribunal.

10. After hearing learned counsel for the parties, we have perused the impugned order passed by learned Tribunal dated 26.06.2018, relevant portion is reproduced as under:-

“I have heard the arguments advanced and has gone through the material available on record. The respondent No.3 remained Member Provincial Assembly Sindh. It is an admitted position that respondent No.3 was holding an ‘Iqama’ of UAE and the Company under the name and style of M/S Wassan General Trading LLC was established in Dubai in which the respondent No.3 has share. The document annexed with the instant appeal at page 99, 101 issued by the Government of Dubai, Dubai Economy shows that respondent No.3 is working as Manager of the company but these facts have been concealed by the respondent No.3 in the present and previous nomination form. It is worth mentioning that fact of establishment of company in Dubai/UAE have been brought in notice by the appellant but the same has been admitted by the respondent No.3 during the course of arguments. Learned counsel for the respondent No.3 submits that said company has been closed. It is pertinent to mention that appellant has annexed an Iqama but he has not disclosed any document with the instant appeal as shown at page 99 and 101. The respondent No.3 is working as Manager in the said company having shares of 25%. The income generated from that company in respect of his salary as Manager and / or profit generated from 25% has not been disclosed any where in his nomination paper of Election 2018 as well as Election of 2013 at column No.5 in respect of statement of assets and liability and has also shown business capital outside Pakistan has been shown as NIL. Admittedly M/S Wassan General Trading LLC, was established in 2012, therefore, the business shown in para No.5 (b) and the business carried outside of Pakistan, the name of business and capital amount should have been shown by respondent No.3 which was not done by him. If the aforesaid company closed then the amount of earned from the company should also be shown in the nomination form as well as affidavit furnished by respondent No.3 before learned R.O. People of Pakistan consider that their choosen representative should be of upright character in all respects. In this respect I would like to take guidance from the case of Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others wherein it is held by the Honourable Apex Court as under:-

“The argument that even if it is assumed that un-withdrawn salary constitutes an asset, omission to disclose it involving a violation of sections 12 and 13 of the Representation of Peoples Act calls for the rejection of nomination papers or at its worst, removal of the petitioner from the public office and not his disqualification in terms of section 99(1)(f) of the ROPA and Article 62(1)(f) of the Constitution is devoid of force when the petitioner deliberately concealed his assets and willfully and dishonestly made a false declaration on solemn affirmation in his nomination papers. It is not something to be looked at with a casual eye and outlook. It is not only a legal duty but a qualifying test for the candidates who in the later days preside over the destiny of the people. This duty has to be performed without a taint of misrepresentation. This test has to be qualified without resorting to unfair means. Any concession at this stage or any leniency to the candidates or the person elected would be a prelude to a catastrophe in politics, which has already had enough of it. Since it is already touching the extreme, extreme measures have to be taken. The culture of passing the candidates by granting grace marks has not delivered the goods. It has rather corrupted the people and corrupted the system. This aspect of the case has been beautifully highlighted in the case of Rai Hassan Nawaz v. Haji Muhammad Ayub and others (PLD 2017 SC 170) by holding as under:-

"7. An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. His statement of assets and liabilities along with other financial disclosures contemplated by section 12(2) of the ROPA provide the Election Commission of Pakistan and the general public with a picture of both his wealth and income. Such disclosures are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate. In other words, they said disclosures show the returns received from his economic activities and can indicate if these activities may be tainted with illegality, corruption or misuse of office and authority. This important aspect of the financial disclosures by a contesting candidate has been noticed by this Court in Muhammad Yousaf Kaselia v. Peer Ghulam (PLD 2016 SC 689)".

From these facts, it is apparent that respondent No.3 has concealed some material facts in his present as well as previous nomination papers. The upshot of the above discussion is that the instant appeal is allowed and the impugned order of learned R.O for acceptance of nomination paper of respondent No.3 is set aside and nomination form/paper of respondent No.3 is rejected.”

11. In order to appreciate the contentions of learned counsel for the parties, we are guided by the following Judgments of Honourable Supreme Court.

12. In the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shareef reported in PLD 2017 SC 265, it is held that when a person failed to disclose any assets owned by him, his spouse or dependent in his Nomination Papers in terms of section 12 of Representation of the Peoples Act 1976,he exposed himself not only to disqualification but also prosecution for corrupt practices under Section 78 of the said Act besides any other liability prescribed by the law. Relevant portion of the Judgment is reproduced as under:

18. A bare reading of the aforesaid provisions of the Representation of the People Act, 1976 makes it clear and obvious that if a person fails to disclose any asset owned by him, his spouse or dependant in his Nomination Papers in terms of Section 12 of ROPA, he exposes himself not only to disqualification but also prosecution for corrupt practices under Section 78 of ROPA besides any other liability prescribed by the law.

19. In the aforesaid provisions reference to the source of funds for acquisition of such undisclosed assets is conspicuous by its absence, hence, wholly irrelevant. Even, if a delinquent person offers a perfect, legally acceptable explanation for the source of funds for acquiring the undeclared assets, he cannot escape the penalty of rejection of his Nomination Papers or annulment of his election. Such is the law of the land as has been repeatedly and consistently interpreted by this Court, including in the judgments, reported as (1) Muhamamd Jamil v. Munawar Khan and others (PLD 2006 SC 24), (2) Khaleefa Muhamamd Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others (2008 SCMR 504), and (3) Muhammad Ahmed Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763).

13. In another case of Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others reported in 2016 SCMR 763 (Supreme Court), it is held as under:-

“9. From the perusal of record, it is established that while submitting the nomination papers, the respondent has not submitted statement regarding assets of his spouse as required under section 12 of the Act, 1976. The learned Election Tribunal, without taking into consideration this aspect of the case and while holding that respondent has not disclosed assets owned by his spouse and the account maintained by him, dismissed the election petition merely on the ground that mens rea is not proved and further the government exchequer has not suffered any loss on account of non-disclosure of these material facts. This finding of the Tribunal is against the spirit of law and as such calls for interference”.

14. In the present case, after hearing learned counsel for the parties we have come to the conclusion that petitioner failed to disclose his 25% shares in M/S Wassan General Trading LLC at Dubai as well as his salary as Manager in the said companyin the nomination paper submitted before Returning Officer for General Elections 2018. We have also observed that in the nomination paper submitted by the petitioner in the last General Elections held in the year 2013 business capital outside of Pakistan and assets were not disclosed. Moreover statement of the assets and liabilities filed by petitioner Manzoor Hussain Wassan as a Member of provincial assembly from constituency PS-32 for the year 2014, business capital outside of Pakistan has been shown NIL as well as in the statement of assets and liabilities furnished by the petitioner for the year 2013-14, 2014-15, 2015-16. It is a matter of record that petitioner did not disclose the assets outside of Pakistan. Petitioner Manzoor Hussain Wassan in his statement of assets and liabilities submitted before Election Commission of Pakistan on 30.06.2014 mentioned that his business capital outside of Pakistan was nil. The same position was in his statement of assets and liabilities on 30.06.2015. Learned Tribunal rightly came to the conclusion that petitioner Manzoor Hussain Wassan worked as Manager in the said company having shares of 25%. The income generated from that company in respect of his salary as Manager / or profit generated from 25% has not been disclosed any where in his nomination paper of Election 2018. In the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shareef reported in PLD 2017 SC 265, it is held that when a person failed to disclose any assets owned by him, his spouse or dependent in his Nomination Papers in terms of section 12 of Representation of the Peoples Act 1976,he exposed himself not only to disqualification but also prosecution for corrupt practices under Section 78 of the said Act besides any other liability prescribed by the law. It is established that petitioner while submitting nomination paper before Returning Officer for the constituency PS-27 Kotdiji Khairpur for General Election 2018 failed to disclose his shares and salary received as Manager from the Company established in Dubai. Returning Officer failed to examine the nomination paper carefully and accepted form in hasty manner. Findings of Tribunal are based upon sound reasons and require no interference by this Court.Generally in an election process this Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. Reliance is placed upon the case of Ghulam Mustafa Jatoi vs. Additional Sessions Judge / Returning Officer NA-158 Naushehro Feroze and others, 1994 SCMR 1299 and 2003 M L D 607 Haji Khuda Bakhsh Nizamani vs. Election Tribunal and others.

15. Consequently, the petition is without merit and the same is dismissed.

JUDGE

Irfan/PA.

14. In the present case, it is admitted fact that petitioner Manzoor Hussain Wassan was holding “ Iqama” in UAE company in the name and style of M/S Wassan General Trading LLC, it was established in Dubai in which petitioner has shares, however, Mr. Zuberi has argued that M/S Wassan General Trading LLC, had been closed in 2016. It is an admitted fact that petitioner was holding Iqama in UAE, the company under the name and style of M/S Wassan General Trading LLC was established in UAE and petitioner had shares. The documents annexed with the appeal filed before learned Tribunal clearly show that petitioner was working as Manager of the company having shares of 25%. Income generated from that company in respect of his salary as Manager and / or profit generated from 25% has not been disclosed anywhere in his nomination paper of Elections 2018. If the aforesaid company had been closed then amount earned from the company should have been shown in the nomination form as well as affidavit filed by the petitioner before Returning Officer. We have no hesitation to hold that finding of Tribunal is based upon documentary material. Admittedly petitioner was working as Manager in the said Company at Dubai/UAE, having shares of 25%. Income generated from that Company, and Salary as Manager and profit from 25% shares have not been disclosed in the nomination paper of General Election 2018, in respect of statement of assets and liability. It is matter of record that M/S Wassan General Trading Company was established in 2012, Capital amount was also not disclosed. Learned Tribunal has rightly relied upon the case of Imran Khan Niazi vs. Mian Muhammad Nawaz Shareef (PLD 2018 SC 1).