.Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 1323 of 2018

Before :

Mr. Justice NaimatullahPhulpoto

Mr. Justice ShamsuddinAbbasi

Petitioner : Muhammad QasimKandhro,

through Mr. Nisar Ahmed BhanbhroAdvocate.

Respondent No.1: Syed Khursheed 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 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 Muhammad QasimKandhro, 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.113/2018, 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 Khurshed Ahmed Shah filed his nomination paper before Returning Officer NA-206 Sukkur-I for contesting the General Elections 2018. Returning Officer after scrutiny of paper vide his order dated 14.06.2018 accepted the nomination paper. Petitioner preferred appeal against the orders of Returning Officer before learned Appellate Tribunal at Sukkur. After hearing learned counsel for the parties, learned Election Tribunal at Sukkurvide order dated 27.06.2018 dismissed the Election Appeal No. 113/2018. Thereafter present Constitution Petition is filed by the petitioner.

4. Mr. Nisar Ahmed Bhanbhro counsel for petitioner has mainly argued that Returning Officer accepted the nomination paper without affording an opportunity of hearing to the petitioner and objections raised were overruled. It is also argued that learned Election Tribunal failed to appreciate the active concealment of the properties owned by respondent No.1 and spouse. It is also argued that respondent No.1 has shown Mst. BibiTallat and Mst. GulNaz as his spouses in column No. ‘D’ of the affidavit but he has concealed assets in their names. Mr. Bhanbhro further argued that respondent No.1 has shown total land holding of 123 acres but failed to disclose land and plots situated in Aquwat Nagar Society Airport Road Sukkur, in thename of his wives. Lastly, it is argued that orders passed by learned Election Tribunal are not sustainable under law and requires interference of this Court.

5. Mr. RazaRabbani counsel appearing for respondent No.1 has questioned the maintainability of the petition and argued that petitioner had not filed objections before the Returning officer. He has further argued that in sub-section (2) of Section 62 of the Elections Act-2017 voter may file objections in writing but in this case objections were not filed by petitioner as such Mr. Rabbanicontended that petitioner had no locus standi to file appeal. As regards to the contention of Mr. Bhanbhro that all properties have not been disclosed by the respondent No.1, Mr. Rabbani referred to the documents available on record and argued that all the landed property, plots and bungalows in his name and the in the name of his wives have been disclosed, documentary proof is available on record. It is also argued that nothing has been concealed by respondent No.1 who is Senior Politician. 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 uponcases 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.

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 14.06.2018 is reproduced as under:-

“ The candidate is present along with proper and seconder. During scrutiny of nomination form of candidate Syed Khurshed Ahmed Shah, the objections have been raised by objector Shahban Ali Jatoi. Notice was given to candidate, the objector made objection that candidate suppressed the name of dependents, declaration of 23.33% shares of spouse of candidate regarding Denam enterprises, the candidate availed facility of MNA lodge, the candidate having 2 acres and 07 ghuntas in dehGosergi, however no authentic document has been submitted, the some documents placed with statement but said documents are without signature or stamp of authority concerned. On scrutiny of nomination form, the documents found as per declaration in affidavit, therefore, nomination form accepted.”

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 who is objector before learned Returning Officer at the time of scrutiny of nomination paper has questioned the order of the learned Returning Officer whereby the nomination form/paper of respondent No.5 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 in his nomination form as well as in affidavit and also suppressed the name of dependent of 23.33% shares of spouse of candidate regarding Denam enterprising as well as no authentic documents has been filed in respect of lands.

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 submits that respondent No.1 has mentioned the details of 23.33% share of BibiTalat in the assets of M/S Denam Factory enterprises who is independent tax payer. Even otherwise the appellant has failed to file objections before Returning officer from 08.06.2018 to 14.06.2018 and the order of the Returning Officer is just and proper.

Mr. Muhammad AslamJatoi Assistant Attorney General 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, however, counsel for respondent No.1 has mentioned in his Counter-affidavit that respondent No.1 has mentioned assets and liabilities in his nomination form and affidavit. Even otherwise the appellant has failed to file objections before Returning Officer from 08.06.2018 to 14.06.2018. In the existence position of affairs the instant appeal is dismissed.”

9. From the perusal of the order passed by Returning Officer dated14.06.2018, it is clear that objections were raised by one Shahban Ali Jatoi that respondent No.1 has suppressed shares of the spouse and landed property in his name. Learned Returning Officer held that no proof was submitted by the objector and at the time of scrutiny assets were found as per declaration in the affidavit. Learned Election Tribunal also came to the conclusion that assets and liabilities are mentioned in the nomination form as well as in affidavit.We have come to the conclusion that 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 alongwith listed application.

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J U D G E

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J U D G E

Irfan/PA

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.

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J U D G E

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J U D G E

N.M.

no where, it is mentioned that petitioner was present before Returning Officer and raised objections at the time of scrutiny. Mr. Rabbani has contended that verbal objections has no value in the eye of law and he referred to sub-section (2) of Section 62 of Elections Act-2017. Mr. Bhanbhro argued that some properties were not disclosed by the respondent No.1 in his nomination paper but Mr. Rabbani counsel for respondent No.1 has explained that all the properties were disclosed by respondent No.1 in nomination paper and documents annexed. In our considered view respondent No.1 has disclosed all his properties in his name as well as in the name of his wives. It is settled position of law that no one can be deprived of his constitutional right to contest the Election, without legal justification.