.Judgment
Sheet
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C. P. No. D – 1321 of
2018
Before :
Mr. Justice NaimatullahPhulpoto
Mr. Justice ShamsuddinAbbasi
Petitioner : HabibullahShaikh,
through
Mr. Nisar Ahmed BhanbhroAdvocate.
Respondent
No.1: Syed
ZeerakShah,
through Mr.RazaRabbani Advocate
assisted by M/S Zeeshan Abdullah, Zulifqar Ali Sangi and Sajjad Muhammad
Zangejo Advocates.
Respondent No.2&4: through M/S Muhammad AslamJatoi,
Assistant Attorney General and Khuda
Dino Sangi Advocate for Election
Commission of Pakistan.
Respondents No.3,5,6: through Mr. Noor Hassan Malik Assistant
Advocate General Sindh.
Date
of hearing : 19.07.2018.
J U D G M E N T
NAIMATULLAHPHULPOTO,
J. : The petitioner, namely HabibullahShaikh, 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 Election Tribunal at Sukkur dated 27.06.2018 in
Election Appeal No.92/2018, whereby Appeal filed by petitioner was dismissed.
2. Notices
were issued against the respondents as well as learned DAG.
3. Brief
facts leading to the filing of the instant petition are that respondent No.1 Syed
ZeerakShah filed nomination paper to contest General Elections 2018 for the
seat of PS-24 Sukkur-III. Learned Returning Officer after scrutiny accepted
nomination form vide his order dated 13.06.2018. Petitioner filed appeal before
learned Appellate Election Tribunal at Sukkur. After hearing learned counsel
for the parties learned Tribunal dismissed Election Appeal No.92/2018,
thereafter petitioner has filed the instant constitutional petition and
challenged the orders passed by the Tribunal.
4. Mr.
Nisar Ahmed Bhanbhro counsel for petitioner has mainly contended that respondent
No.1 has shown 20 acres of land at Saleh Pat but amount in the Bank has not
been shown. It is further argued that oral objections were raised before
Returning Officer but the same were not entertained. It is also argued that
respondent No.1 has concealed other properties owned by him. Lastly, prayed for
rejecting the nomination paper of respondent No.1.
5. Mr.
RazaRabbani counsel appearing for respondent No.1 argued that petitioner did
not file objections against nomination paper of respondent No.1 before
Returning Officer and argued that appeal before Tribunal was not competent. Mr.
Rabbani submitted that respondent No.1 has opened Bank account for election
expenses and he has not concealed anything. Mr. Rabbani has referred to the
documents produced by the respondent No.1 along with his nomination paper and
in counter affidavit. Lastly, it is
argued that generally in election process High Court cannot interfere with by
invoking its constitutional jurisdiction in view of Article 225 of the
Constitution. In support of his contentions reliance is placed upon cases of
Ghulam Mustafa Jatoi V/S Additional Sessions Judge, 1994 SCMR 1299 and Election
Commission of Pakistan V/S JavaidHashmi& others, PLD 1989 SC 396.
6. Learned
Assistant Attorney General as well as learned counsel appearing on behalf of
Election Commission of Pakistan have supported the impugned orders and pointed
out that all the arrangements for holding General Elections 2018 have been
completed by Election Commission of Pakistan and prayed for dismissal of this
Constitution Petition.
7. We
have carefully heard learned counsel for the parties and perused the relevant
record. In order to appreciate contentions of learned counsel for the parties,
order of the Returning Officer dated 13.06.2018 is reproduced as under:-
8. Keeping in view the
peculiar circumstances of the case order of learned Tribunal dated 27.06.2018
is also reproduced as under:-
““ Through instant appeal, the appellant has questioned
the order of the learned Returning Officer whereby the nomination form/paper of
respondent No.1 has been accepted.
While pressing the
instant appeal, learned counsel for the appellant submits that the sole objection
against the acceptance of nomination paper of respondent No.1 was that he has
not declared his assets and source of income in his nomination form as well as
in affidavit.
Mr. Mukesh Kumar G.
Karara submits that the respondent No.1 has never made any concealment in the
assets and liabilities and has properly shown the same in the declaration of
nomination paper and in affidavit he has clearly mentioned the source of
income. Even otherwise the appellant has not filed any objections before
Returning Officer and the order of the Returning Officer is just and proper.
Mr. Muhammad AslamJatoi
Assistant Attorney and Khuda Dino Sangi supported the impugned order.
After hearing the
arguments I have scanned the available record. Although the appellant has questioned
that respondent No.1 has not shown the assets in his nomination form, even
otherwise the appellant has never filed any objections before Returning Officer
in this respect. In the existence position of affairs the instant appeal is
dismissed.”
9. From the
perusal of the order passed by Returning Officer dated 13.06.2018, it is clear
that no one has raised objection that respondent No.1 has suppressed assets and
liabilities in his name.We have come to the conclusion that respondent No.1 has
declared all his properties in his name and in the name of his wife before
Returning Officer. Nothing was concealed by him. As regards to the bank
account, bank account in the name of
respondent No.1 has also been mentioned, thus no material concealment or
mis-statement in the nomination paper has been established. Contentions raised
by learned counsel for petitioner are without any legal substance. It may be
observed here that process for General Elections, 2018 is in progress, under
Article 225 of the Constitution, this Court cannot interfere with the election
process without any legal justification, as held by Hon'ble Supreme Court in
the case of Ghulam Mustafa Jatoi V/S Additional Sessions Judge, 1994 SCMR 1299
and Election Commission of Pakistan V/S JavaidHashmi& others, PLD 1989 SC
396.
10. For
the aforesaid facts and reasons, we have come to the conclusion that Election
Tribunal rightly dismissed the appeal and finding recorded by Election Tribunal
requires no interference of this Court. This Constitutional Petition is without
merit and same is dismissed along with listed application.
__________________
J U D G E
__________________
J U D G E
Irfan/PA
.Judgment
Sheet
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C. P. No. D – 1320 of
2018
Before :
Mr.
Justice NaimatullahPhulpoto
Mr.
Justice ShamsuddinAbbasi
Petitioner : HabibullahShaikh,
through
Mr. Nisar Ahmed BhanbhroAdvocate.
Respondent
No.1: Syed
Farukh Ahmed Shah,
through Mr.RazaRabbani Advocate
assisted by M/S Zeeshan Abdullah, Zulifqar Ali Sangi and Sajjad Muhammad
Zangejo Advocates.
Respondent No.2&4: through M/S Muhammad AslamJatoi,
Assistant Attorney Generaland Khuda Dino Sangi Advocate for Election Commission
of Pakistan.
Respondents No.3,5,6: through Mr. Noor Hassan Malik Assistant
Advocate General Sindh.
Date
of hearing : 19.07.2018.
J U D G M E N T
NAIMATULLAHPHULPOTO,
J. : The petitioner, namelyHabibullahShaikh, 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 Election Tribunal at Sukkur dated 27.06.2018 in
Election Appeal No.93/2018, whereby Appeal filed by petitioner was dismissed.
2. Notices
were issued against the respondents as well as learned DAG.
3. In
order to appreciate the contention of learned counsel for the parties, order of
learned Election Tribunal dated 27.06.2018 is reproduced as under:
Brief facts leading to the filing of the petition
are that petitioner is voter of constituency NA-204 Ghotki-1. Respondent No.5
had submitted nomination paper on 08.06.2018 for contesting the General
Election 2018 for NA-204 Ghotki-1 before Returning Officer. It is stated that
on 13.06.2018 petitioner filed objections to the nomination paper of the
respondent No.5. Learned Returning Officer after hearing the learned counsel
for the parties and close scrutiny of the nomination paper accepted the
nomination paper vide order dated 13.06.2018.
4. Thereafter,
MianRafique Ahmed filed Election Appeal No.69/2018 which was dismissed by
learned Election Tribunal vide order dated 26.06.2018. The petitioner has
further mentioned in the petition that a criminal case bearing No.80/2013 under
Sections 324, 353 PPC and 7 ATA, 1997 was registered against respondent Khalid
Ahmed Khan and others at Police Station Ubauroduring last Elections. It is
further stated that respondent No.5 did not disclose the income of the
Agricultural land knowingly. Mr. GhulamShabirDayo, learned counsel for the
petitioner has filed statement that respondent No.5 owns four vehicles and
details whereof have not been disclosed by him. Lastly, submitted that order of
Tribunal is not sustainable under the law and requires interference by this
Court.
5. Mr. Sarfraz
Ali Metlo,learned counsel for the respondent No.5Khalid Ahmed Khan Lund argued
that he has disclosed all the assets in his nomination paper.He has submitted
that objections were not filed against nomination paper of respondent No.5 and
three (03) vehicles have already been sold by him. Mr. Maitlo placed on record
copies of T.O. Forms of vehicles. It is also pointed out that respondent No.5
has already been acquitted in a criminal case. Lastly, argued that election
process cannot be interfered with by invoking constitutional jurisdiction of
this Court. In support of his contentions reliance has been placed upon the
case of Ghulam Mustafa Jatoi V/S Additional Sessions Judge, 1994 SCMR 1299 and
Election Commission of Pakistan V/S JavaidHashmi& others, PLD 1989 SC 396.
6. Learned
DAG as well as learned counsel appearing on behalf of Election Commission of
Pakistan have supported the impugned order.
7. We have
carefully heard the learned counsel for the parties and perused the orderpassed
by Returning Officer dated 13.06.2018and the order passed by learned Election
Tribunal dated 26.06.2018. Relevant portion of the order of learned Election
Tribunal is reproduced as under:
“It is a factual
position that the alleged objections appear at page 29 of the file after
acceptance of nomination form as per order of the learned Returning Officer.
Besides the objections contain no objections at all and only the plea that was
taken in objection that candidate is required to produce valid proof of
documents. Since the appellant has not filed objections well in time before the
learned Returning Officer; therefore, he may not be termed as objector as per
provisions of Section 62, Subsection (i) of the Election Act, 2017, as such
instant appeal is dismissed along with listed applications.”
8. Contention of learned counsel for the
petitioner that respondent No.5 has not disclosed the income of the
agricultural land and details of the vehicles owned by him. It may be mentioned
here that petitioner had not filed objections within time before the Returning
Officer as required by law. Petitioner had also failed to satisfy the Election
Tribunal with regard to substance in the objections. Same contentions are
raised before this Court which were raised before learned Election Tribunal.
Nothing substantial has been brought on record to disqualify the respondent
No.5 from contesting the General Elections 2018.
9. It may be mentioned here that
attributing dishonesty to every omission to disclose an asset should not be
made as a rule set in stone and applied to disqualify a member on the touchstone
of Section 99(1)(f) of RoPA or Article 62(1)(f) of the Constitution. This Court
cannot close its eyes to an omission which on the face of it could not be said
to be dishonest. In the present case, learned counsel for the petitioner could
not point out non-disclosure of the assets. Hon'ble Supreme Court in the case
of Muhammad HanifAbbasi V/S Imran Khan Niazi, PLD 2018 SC 189 has laid down the
following principle:-
“10. In our jurisprudence, like in any other,
one common penalty is never imposed for all kinds of dishonest acts, what to
speak of imposing penalty for a dishonest act as well as for an omission made
on account of negligence or bad judgment. Attributing dishonesty to every
omission to disclose an asset should not be made a rule set in stone and
applied to disqualify a member on the touchstone of Section 99(1)(f) of RoPA or
Article 62(1)(f) of the Constitution. The courts should not close its eyes to
an omission which on the face of it could not be said to be dishonest. It would
turn Sections 12(2)(f) and 42A of RoPA into the sword of Damocles hanging over
the heads of the members of the National Assembly and the Provincial
Assemblies, embroiling many of them in frivolous litigation even with regard to
assets acquired prior to assuming the responsibilities of their office or
acquired with clean money. Where an asset is acquired by a member or his spouse
or any of his dependents after becoming a member and it surfaces through any
source, which he has failed to disclose, the member in quo warranto proceedings
can be called to explain the means of its acquisition. If he is unable to
extend a judicially acceptable explanation, only then such nondisclosure would
be regarded as a failure to pass the test of honestly as envisaged under
Section 99(1)(f) of RoPA read with Article 62(1)(f) of the Constitution. Apart
from being declared disqualified from holding his office, the member will also
face charges for possessing wealth beyond his known sources of income. Thus
concealment of an asset from the public eye that was acquired after entering
upon office, for which the member is unable to give a judicially acceptable
explanation, is to be treated as an act of concealment with dishonest
intentions. This is the difference in attributing dishonesty with regard to an
omission to disclose an asset acquired before and after becoming a member of
the National Assembly or a Provincial Assembly.”
10. In
our considered view, learned Tribunal has already considered the submissions
made by the petitioner minutely and found without any substance. Learned Tribunal
in the order dated 26.06.2018 has clearly mentioned that objections were not
filed before the Returning Officer within time. Learned DAG as well as learned
counsel appearing on behalf of Election Commission of Pakistan have also
supported the orders of the Tribunal. As regards the contention of Mr. Dayo
that Khalid Ahmed Khan Lund owned three more vehicles and there was no mention
of these vehicles in the nomination paper. It may be mentioned here that petitioner
did not raise objection of purchase of three more vehicles before Returning
Officer as well as Tribunal. In spite of that learned counsel for the
respondent No.5 has placed on record copies of the TO Forms and argued that
respondent No.5 has already sold three vehicles. Factual controversies cannot
be resolved in Constitutional Petition.
11. Learned
counsel for the respondent No.5 has also relied upon the judgment of this Court
in the case of KhudaBuxNizamani V/S Election Tribunal, 2003 MLD 607 wherein it
was held as under:
“20. Learned Attorney General further argued that
it might not be appropriate to exercise discretionary jurisdiction under
Article 199 on the ground that there were allegations as to the petitioner
being a bank defaulter which were disposed of by the Returning Officer in a
cursory manner and were not considered by the learned Tribunal. We agree to the
extent that such allegationscould have been scrutinized more appropriately and
the learned Tribunal could possibly issue a show-cause notice requiring him to
explain the same. Nevertheless, we cannot assume the jurisdiction of the
Tribunal and it would be entirely unwarranted to debar him from contesting
elections in the absence of sufficient proof as to his being disqualified. Even
otherwise the law regarding disqualification of the candidate ought to be
strictly construed. In any event if he is elected and his nomination is found
to e invalid the same could always be assailed by way of an election petition
under Section 68(a) of the Representation of the Peoples Act. For the foregoing
reasons we allowed this petition in terms of the short order passed on
16.09.2002.”
12. Nothing
substantial against respondent No.5 regarding concealment of the assets has
been brought on record.It may be observed here that process for General
Elections, 2018 is in progress, under Article 225 of the Constitution, this
Court cannot interfere in the election process without any legal justification,
as held by Hon'ble Supreme Court in the case of Ghulam Mustafa Jatoi V/S
Additional Sessions Judge, 1994 SCMR 1299 and Election Commission of Pakistan
V/S JavaidHashmi& others, PLD 1989 SC 396.
13. For
the aforesaid facts and reasons, we have come to the conclusion that finding of
Tribunal requires no interference. This Constitutional Petition is without
merit and same is dismissed along with listed application.
__________________
J U D G E
__________________
J U D G E
N.M.