ORDER SHEET

HIGH COURT OF SINDH CIRCUIT COURT, HYDERABAD

C.P No.D-2446 of 2022

DATE ORDER WITH SIGNATURE OF JUDGE

Mr. Ghulamullah Chang, advocate for petitioner.

Mr. Muhammad Hashim Leghari, Advocate files Power on behalf of respondent No.11, taken on record.

Mr. Ashfaque Nabi Qazi, Asst. Attorney General Pakistan

Mr. Allah Bachayo Soomro, Addl. A.G Sindh

Mr. Zaheer Abbas, Law Officer ECP

Date of hearing: 14.07.2022

Date of decision: 19.07.2022

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The petitioner’s grievance is that the Returning Officer-3 UC 19-24 rejected respondent No.11’s nomination papers due to concealment of assets vide order dated 19.06.2022 and then the respondent No.11 filed Election Appeal No. 02 of 2022 which was allowed by the Appellate Authority while setting aside the order passed by the R.O vide order dated 25.06.2022 and the nomination papers of the respondent No.11 were accepted.

In his nomination papers, respondent No.11 had disclosed 191-09 acres land situated in Deh Reechal Tapo Khokhar District Tando Allahyar while he failed to mention 95-20 acres of agricultural land under Survey No.203/1 entry No. 250 of Deh Form-VII in Deh Reechal Tapo Khokhar District Tando Allahyar because the same entry had allegedly been blocked.

Learned counsel for the petitioner primarily contended that respondent No.11 was required to disclose all his assets on solemn affirmation while submitting his nomination papers and in failing to do so, he was not qualified for contesting in the elections; that the blocking of entry did not mean that the same property stopped being in the name of respondent No.11 who still had it under his name in Deh Form VII; that the Appellate Authority wrongfully set aside the order of the Returning Officer while accepting the nomination papers of the petitioner, but had rejected the nomination papers of the brother of respondent No.11 in Election Appeal No. 01 of 2022 (Re: Zakir Hussain v. Provincial Election Commission and another).

Learned counsel for respondent No.11 on the other hand while citing the decision of this Court at its Sukkur Bench in C.P No. D-596 of 2022 and Tariq Hussain v Subhan Ali and 6 others (2019 CLC 1592) contended that the disclosure of assets at the time of nomination is not required under the Sindh Local Government Act 2013 and even otherwise the Entry No.250 of Survey No.203/1 was in dispute and had been blocked, relevant entries pertaining to the same were attached by the respondent No. 11 along with his nomination papers.

Learned Assistant Attorney General Pakistan along with learned Additional A.G Sindh and learned Law Officer ECP half-heartedly supported the impugned order.

We have considered the above arguments and perused the record. There is no denial to the fact that together with the nomination paper, the petitioner filed his affidavit stating therein on Oath that; statement of his assets and liabilities disclosed by him are correct and complete to his knowledge and belief. The first contention here is whether a candidate contesting the Local Government Elections is required to disclose/declare his assets at the time of filing his nomination papers and if so, is that requirement mandatory. The issue was discussed by this Court at its Sukkur Bench in C.P No. D-622, 623, 626, 628, 633 and 678 of 2022 through order dated 15.06.2022 wherein it was observed that:-

“Their precise case is that they did submit their nomination papers in the prescribed Form that did not require the disclosure or declaration of their assets and as such they were not liable to declare their assets. Their contention clearly appears to be misconceived and cannot be accepted as the declaration of assets on solemn affirmation is an integral part of the Forms subscribed by them. A nomination could be made only in the prescribed Forms mentioned in Rule 16(3) of the Rules of 2015 and not otherwise, therefore, the nomination papers that were not compliant of the said Forms could not be entertained and were liable to be rejected.”

Even though the counsel for respondent No.11 contended that such declaration was not necessary and that SLGA 2013 had no such provision, the respondent still submitted the said declaration of assets as it was a required form available under SLGA 2013. While SLGA 2013 itself does not provide the declaration of assets at the time of filing of nomination papers, S.71 of the Act specifically provides that the provisions of ROPA 1976 and Election Act 2017 are applicable to Local Government Elections as well. Under Section 60(2)(d) of the Elections Act the nomination papers filed by the candidate shall be on solemn affirmation, duly signed and accompanied by a statement of his assets and liabilities and those of his spouse and dependent children. The fact that the respondent No.11 failed to disclose all his assets and dependencies in the same meant that it was incomplete. This was an act of willful concealment by the respondent No. 11 which was in direct violation of the affidavit submitted by him. The Hon’ble Apex Court, in the case of Muhammad Ahmed Chatta v Iftikhar Ahmed Cheema and others (2016 SCMR 763) has been pleased to observe that:-

“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.”

Moreover, the contention that entry No. 250 for the concerned survey number had been blocked is also baseless. According to Chambers 21^st Century, the word “blocked” or “to block” means ‘to restrict or limit the use of (an area or place, etc)’. Merely because an entry had been blocked by the Revenue Board subject to decision of the Commissioner did not mean that the said entry seized to exist, rather it meant that the land in question was blocked and could not be used. The entry still existed on the record and in the name of the respondent No.11 which he has not denied, rather willfully decided not to disclose.

Learned Appellate Court wrongly set aside the order of the returning officer rejecting the nomination papers of respondent No.11. For these reasons, the impugned order dated 25.06.2022 passed by Appellate Authority Tando Allahyar is set aside and the order of the Returning Officer-3 UC 19-24 is restored. Respondent No.11 is disqualified from contesting in the elections. Returning Officer is directed to issue a revised list of contesting candidates after removing the name of respondent No.11 from the same.

Instant petition is allowed in the above terms.

JUDGE