ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR____.

Const.Petition No.D- 1313 of 2018

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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……,.

 

-.-.-.-.-.-

 

                        Through the instant constitution petition petitioner Mubeen Ahmed Phulpoto has called in question order dated 26.06.2018 passed by learned Election Tribunal in Election Appeal No. 19 of 2018 whereby appeal was dismissed.

2.                     Mr. Nisar Ahmed Bhanbhrolearned counsel for the petitioner mainly argued that petitioner is not defaulter of SEPOand proposer does not belong to other constituency. It is further submitted that learned Tribunal has dismissed the appeal without appreciating the legal and factual aspects of the case.

3.                     Counsel for the Election Commission of Pakistan and DAG supported the Judgment of the Tribunal and argued that proposer and seconder could not be changed at subsequent stage. Moreover, it is stated that petitioner is defaulter of SEPCO.

4.                     We have carefully perused the order of the Returning Officer NA-208 Khairpur-I dated 14.06.2018. Nomination paper of the petitioner Mubeen Ahmed has been rejected mainly for the following reason.

“In the circumstances discussed above, it is clear that the proposer of the candidate is not a qualified to subscribe the nomination form and further the candidate MubeenPhulpoto has defaulted in payment of electric charges in excess of Rs.10,000/-(Ten thousand rupees) for over six months at the time of filing of his nomination papers. Therefore, I eject the nomination form of the candidate MubeenPhulpoto U/S 62(9) (b) of Elections Act, 2017 and Article 63(1) (o) of the Constitution of Islamic Republic of Pakistan, 1973.

 

5.                     Petitioner filed Election Appeal No. 19/2018 against Election Commission of Pakistan and others. Learned Tribunal after hearing counsel for the parties agreed with Assistant Attorney General that proposer and seconder could not be changed at subsequent stage. It amounts to file fresh nomination paper which could not be done after expiry date of the filing of nomination paper. We agree that finding of Tribunal that after expiry of the filing of nomination paper proposer and seconder could not be changed. Order of the Tribunal is well reasoned and requires no interference. Petition 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.