IN THE HIGH COURT OF SINDH BENCH AT SUKKUR____.
Const.Petition
No.D- 1314 of 2018
_________________________________________________________________
DATE ORDER WITH SIGNATURE
OF JUDGE ________________________________________________________________
For hearing of
case.
18-07-2016.
Mr.Nisar Ahmed BhanbhroAdvocate
for petitioner.
Mr. Muhammad AslamJatoi,
Assistant Attorney General.
Mr. Khuda Dino Sangi, Legal Advisor
Election Commission of Pakistan, Sukkur Division a/w……,.
-.-.-.-.-.-
The petitioner, namelySher Muhammad Phulpoto,
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 Sukkurdated 26.06.2018 in Election Appeal No.18/2018, whereby
Appeal filed by petitioner was dismissed.
2. Brief facts leading to the filing of
the petition are that petitioner filed his nomination form for contesting
General Elections-2018 from PS-26Khairpur-I. Learned Returning Officer PS-26Khairpur-I
after hearing learned counsel for the parties vide order dated 14.06.2018
rejected the nomination form mainly for the following reasons.
“ I have heard the
arguments advanced and perused the material available on record. As far as
SEPCO bill is concerned no doubt the matter between the parties has been
compromised in respect of one bill but two other bills of SEPCO being Reference
No. 06-38132-0353701 amounting to Rs.24011/- and Reference No. 06-38132-0353702
amounting to Rs. 29104/- are still outstanding. As far as dispute regarding
SSGC is concerned there is no stay order / injunction granted in favour of
appellant hence civil Suit is still pending and has not yet been finalized in
favour of appellant. In such a situation I am of the view that the nomination
paper has rightly been rejected by learned Returning Officer who has passed
well speaking order. Instant election appeals are dismissed. “
3. Petitioner impugned the
order of Returning Officer in Election Appeal No. 18 of 2018 before learned
Appellate Tribunal at Sukkur. Learned Tribunal after hearing the counsel of the
parties vide order dated 26.06.2018 dismissed the appeal.Learned counsel for
the petitioner filed constitution petition against respondents. Notices were
issued to the other side.
4. Mr.
Nisar Ahmed Bhanbhrolearned counsel for the petitioner mainly contended that
petitioner is not residing in the premises since long. He applied for installments
to Executive Engineer SEPCOKhairpur who refused to receive the dues in the installments.
Mr. Bhanbhrofurther submits that now all the dues have been cleared by the
petitioner.
5. Learned
D.A.G and counsel appearing on behalf of Election Commission of Pakistan have
supported the impugned orders of Tribunal and argued that petitioner is
defaulter.
6. We
have carefully perused the order dated 26.06.2018 passed by learned Tribunal in
Election Appeal No. 18/2018 and 21/2018 in which it is mentioned that as far as
SEPCO bill is concerned no doubt matter between the parties has been
compromised in respect of one bill but two other bills of SEPCO amounting to
Rs.24011/- and Rs. 29104/- are still outstanding. As far as dispute regarding
SSGC is concerned no stay order was produced before Returning Officer or
Tribunal. In this regardwe would like to quote article 63(1)(o) of Constitution
of Islamic Republic of Pakistan 1973, which reads as under:
“he or his spouse or any of his
dependents has defaulted in payment of government dues and utility expenses
including telephone, electricity, gas and water charges in excess of ten
thousand rupees, for over six months, at the time of filing of his nomination
papers”.
7. In our considered view, nomination
paper of the candidate has rightly been rejected by the Returning Officer and
for the valid and sound reasons appeal has been dismissed by the Tribunal which
requires no interference of this Court. The constitution petition is without
merit and same is dismissed.
JUDGE
JUDGE
Irfan/PA.
Learned Appellate
Tribunal while hearing the appeal found order of Returning Officer proper and
cme to conclusion that gift document prepared by the petitioner appears to be
dubious. Learned counsel for the petitioner reiterated more or less same
arguments, advanced before Returning Officer and learned Appellate Tribunal.
Learned counsel for the petitioner could not satisfy the Court that prior to
filing of the nomination form, he had gifted out 176 acres of Agricultural land
to his brother in the revenue record, still said land is in the name of
petitioner. It is a matter of record that objections were filed on 13.06.2018
by respondents Nos. 5 and 6 before Returning Officer but gift for the first
time was disclosed by the petitioner on 18.06.2018. It is clear that petitioner
failed to disclose his land / asset owned by him in his nomination paper and prima
facie exposed himself to
disqualification.
In
the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shareef reported in
PLD 2018 SC 1, it is held that when a person fails to disclose his own assets
owned by him, his spouse or dependant in the Nomination Papers in terms of
section 12 of Representative of the Peoples Act 1996,he exposes 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 acquisting 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) MuhamamdJamil v. Munawar Khan and others (PLD 2006 SC 24), (2) KhaleefaMuhamamdMunawar
Butt and another v. Hafix Muhammad JamilNasir and others (2008 SCMR 504),
and (3) Muhammad Ahmed Chatta v. Iftikhar Ahmad Cheema and others (2016
SCMR 763).
In another case of Muhammad AhmandChatta 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 mensrea 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”.
In view of facts and reasons discussed
above, prima facie basic ingredients for granting ad-interim injunction are not
made out . Therefore, no case is made out for allowing listed / stay
application,(CMA No. 6682/2018) same is dismissed. Office is directed to fix
this C.P in the second week of August 2018 for hearing.