ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Election Appeal No.S-02 of 2024.
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DATE |
ORDER WITH SIGNATURE OF JUDGE |
1. For orders on office objection.
2. For hearing of Main Case.
M/s Ebrahim Saifuddin and Sher Ali Jatoi, advocates for the appellant.
Mr. Abdul Hamid Bhurgri, Addl. A.G.
Mr. Oshaque Ali Sangi, Asst. Attorney General along with Shafquat Rasool Narejo, Assistant Director Law, Election Commission, Larkana Division.
Date of hearing : 04.01.2024.
Date of decision : 06 .01.2024.
Date of announcement : 08.01.2024.
O R D E R.
Through this appeal, filed under Section 63 of the Election Act, 2017, appellant Abdul Razzaque Khan Khoso has challenged the acceptance of nomination papers of respondent No.1 Sher Muhammad Mugheri by the respondent No.2/Returning Officer PS-01, Jacobabad.
2. Mr. Muhammad Zakir, Returning Officer PS-01, Jacobabad present in person. Mr.Salahuddin Ahmed advocate as well as Mr. Safdar Ali Ghouri advocate have filed their separate Vakalatnama on behalf of respondent No.1.
3. Learned Counsel for the appellant submitted that the respondent No.1 has not disclosed the real assets, therefore, the nomination accepted by respondent No.2 is unjustified; hence prayed for its rejection. In support, he drawn attention of the Court towards para-5 of the appeal as well as certain documents annexed with the appeal. He; however, admitted that the appellant is also contesting candidate and his nomination has also been accepted on almost same grounds. He, therefore, prayed for rejection of nomination paper of respondent No.1. Learned Counsel for the appellant also submitted statement along with set of documents, which are taken on record.
4. Mr. Salahuddin Ahmed, learned Counsel for respondent No.1, filed counter-affidavit/objections on the appeal along with set of documents and refers to Rule 64 of Election Rules, 2017. In support of his contentions, he also placed reliance upon the cases reported as Muhammad Nawazish Ali Pirzada v. Election Commission of Pakistan (PLD 2018 Lahore 318), Muhammad Aslam Kaira v. Returning Officer, PP-96 (1994 MLD 448), Naved Akhtar Kahut v. Returning Officer(NA-60) (2013 CLC 1258), Uman Hayet Lalika v. Nazar Muhammad Gondal (1994 CLC 58), Murad Bux v. Kareem Bux (2016 SCMR 2042) and Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128).
5. The respondent No.2 in his para-wise comments to the appeal has denied the averments of appeal and has submitted that during scrutiny the appellant did not file any objections against the nomination paper of respondent No.1 before the Returning Officer. Similarly, the respondent No.1 in his counter-affidavit has also stated that the appellant being a rival candidate was entitled and under obligation to attend the scrutiny and file objections, which he chosen not to do at the relevant time, therefore, the Returning Officer has rightly accepted his nomination form.
6. While confronting with objections raised by learned Counsel for the appellant, learned Counsel for the respondent No.1 submits that the basic objections which have not been raised are that the respondent No.1 is entitled to contest elections in terms of the provisions of Election Commission of Pakistan, as he is not below the age of 25 years, nor possess any dual nationality and even he is not a government servant. He further submitted that as far as declaration of assets with regard to the jewelry as well as the weapon, a lump sum amount is to be mentioned and likewise appellant has also submitted a list of assets along with his nomination, which he had also annexed along with his objections. He further submits that in view of Rule 54 of Election Rules, 2017 as well as sections 62 & 63 of Election Act, 2017, the appeal is not maintainable; hence, prayed for dismissal of the appeal.
7. I have heard the respective parties and have gone through the record.
8. Instant appeal has been maintained by the appellant mainly on the ground(s) that the respondent No.1 in his nomination paper, though has declared his 39 Bank Accounts within Pakistan and one in UAE, but has concealed one account being operated by him with Soneri Bank, Jacobabad branch and has also not furnished the detailed description of the weapons, though the value of such weapons was mentioned in the nomination form. So far non-disclosure of one of the above-mentioned accounts being operated by the respondent No.1 with Soneri Bank Jacobabad; it may be observed here that it may be an omission and could not be termed as concealment, for the simple reason that when a person declares his 39 accounts including the one in foreign(UAE), concealment of an only account which he is operating locally does not make any sense, therefore, the contention of the appellant to this extent has no force. In the reported case of Muhammad Asif (supra), the Apex Court has held as under:-
9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omission would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. . Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings.
9. So far the non-disclosure of detailed description of weapons held by the respondent No.1, undeniably the valuation of those weapons has been disclosed by the respondent No.1 and the appellant is unable to substantiate such argument that it was the requirement of election laws to mention the detailed description of the weapons by a candidate.
10. Apart from above, instant appeal is not maintainable inasmuch as it is an undeniable fact on record that the appellant at the time of scrutiny of the nomination forms by the Returning Officer did neither file objections against the nomination form of his rival candidate i.e. the respondent No.1 nor attended such proceedings on the date and time specified by the Returning Officer. In the case of Naveed Akhtar Kahut (supra), the Election Tribunal while dismissing the appeal in somewhat identical situation observed as under:-
5. The applicant did not apply for issuance of the copies as is clear from the application moved by him before the learned Returning Officer and order passed thereon but as per order of the learned Returning Officer no objection was filed. A presumption of correctness is attached to this order. No tangible proof is available to show that the appellant had in fact filed any objection qua nomination of the respondent No.2. Under section 14(5) of the Representation of the People Act, 1976, only a candidate can file an appeal against acceptance of the nomination papers of the rival candidate. No doubt, this right is given to an elector, who has filed objections under rule 5(I) of the Representation of the People Rules, 1977. The appellant has neither filed the objections before the Returning Officer being elector nor is a candidate so lacks the locus standi to file the appeal.
11. In the case of Muhammad Aslam Kaira (supra), the Election Tribunal at Punjab, has held as follows:-
2. In all these cases the acceptance of the nomination papers of the respondents has been questioned. The impugned orders in all the cases show that the appellants had not raised objections at the time of scrutiny. According to the provisions of subsection (5) of section 14 of the Representation of the People Act (No.LXXXV of 1976), as substituted by Representation of the People (Amendment) Ordinance (No. V of 1990), only that candidate or voter can file appeal against the acceptance of the nomination papers, who had raised objection at the time of the scrutiny.
It is apparent from the above provisions that the appeals filed by the appellants who had not raised any objection at the time of scrutiny of the acceptance of the nomination papers were not competent. Although the learned counsel for the appellants submitted that their clients had raised objections but we are unable to consider the argument as presumption of truth is attached to the regularity of the proceedings recorded by the learned Returning Officer. We also cannot resort to recording evidence as it is provided that the appeals shall be disposed of summarily.
12. In the reported case of Muhammad Nawazish Ali Pirzada (supra), a writ petition on the similar grounds was dismissed with the following observations:-
5. Before touching merits of the case, we would like to dilate upon the question of maintainability of this petition on the touchstone of locus standi. At the outset when confronted with the fact that whether the Petitioner has filed any objection to the nomination papers of the Respondent No.4 before the Returning Officer, the Petitioner submitted that he did not file any objection but argued that the learned Appellate Tribunal was required under the law to consider Petitioners point of view and therefore, this writ petition is also maintainable.
6. We have considered this argument in the context of applicable law. The bare reading of the Section 113 of the Election Act, 2017 (the Act) reveals that only a candidate or an objector may file an Appeal against the decision of the Returning Officer in rejecting or accepting the nomination papers of a candidate. For the sake of brevity the said Section 113 is reproduced below and is as follows:
113. Appeal against scrutiny order. (1) A candidate or an objector may, within the time specified by the Commission, file an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting a nomination paper to the Tribunal constituted for the purpose consisting of a person who is a Judge of a High Court, appointed by the Commission in consultation with the Chief Justice of the High Court concerned.
(2) An appeal filed under sub-section (1) shall be summarily decided within such time as may be notified by the Commission and any order passed on the appeal shall be final.
(3) If, on the basis of information or material coming to its knowledge by any source, a Tribunal constituted under sub-section (1) is of the opinion that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, government dues and utility expenses or has had any loan written off or has willfully concealed such fact or suffers from any other disqualification from being elected as a Member of the Senate, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter or has had a loan written off or suffers from any disqualification, it may reject the nomination paper of the candidate.
(4) Announcement of the day and time appointed for the hearing of an appeal under this section over the radio or television or by publication in the newspaper shall be deemed to be sufficient notice of the day and time so appointed. (emphasis supplied)
7. A candidate is defined in Section 2-vii of the Act as under:
(vii) candidate means a person proposed and seconded as a candidate for, or seeking, election as a Member.
8. Plain and holistic reading of Section 113 of the Act shows that candidate can file Appeal before Appellate Tribunal if nomination papers are rejected. Wehreas an objector can file Appeal before the Appellate Tribunal if nomination papers are accepted. The candidate cannot file Appeal against rejection of nomination paper of another candidate unless he was objector to those nomination papers. Although the objector is not defined under the Act but as and when any objection is filed by an objector the same is dealt with under Section 112 of the Act.
13. In instant case, the appellant had neither participated the scrutiny process nor had filed objection before the Returning Officer and at this juncture to raise objection against the acceptance of respondents candidature appears to be nothing but to deprive him of right to contest the elections. The appellant has not followed the mandatory provisions of law, therefore, he cannot be permitted to raise objection at this juncture.
14. In view of above discussion, I see no illegality in the impugned order of acceptance of nomination paper of respondent No.1 by the respondent No.2/Returning Officer, therefore, instant appeal being devoid of merit is hereby dismissed.
JUDGE
Qazi Tahir PA/*