ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(APPELLATE TRIBUNAL)
Election Appeal No.09 of 2024
Mir Muzammil Abro
v/s.
Assistant Commissioner, Ratodero and others
Appellant: Through M/s. Shakeel Ahmed Abro, Qazi Manzoor Ahmed and Muhammad Hanif Noonari, Advocates.
Respondents: Mr. Shafqat Rasool Narejo, Assistant Director/Law Officer, Election Commission of Pakistan, Larkana Division a/w Ms. Kainat Tufail, Assistant Commissioner, Ratodero / Returning Officer, P.S-10, Larkana-I.
Mr. Abdul Hamid Bhurgri, Additional Advocate General, Sindh assisted by Mr. Abdul Waris Bhutto, Assistant Advocate General, Sindh.
Mr. Ghulam Asghar Khichi, Deputy Attorney General for Pakistan.
Dates of hearing: 02.01.2024, 04.01.2024, 05.01.2024, 06.01.2024, 08.01.2024 and 09.01.2024.
Date of order: 10.01.2024
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O R D E R
Muhammad Saleem Jessar, J.- Through this election appeal, the appellant has assailed the order dated 30.12.2023, whereby nomination papers submitted by him to contest election of Member Provincial Assembly at P.S-10, Larkana-I were rejected by Assistant Commissioner, Ratodero / Returning Officer PS-10, Larkana-I/Respondent No.1, on the ground that the appellant has suppressed some of his properties and evaded tax as well as furnished false statement with regard to the said properties.
2. Learned counsels for the appellant have argued and drawn attention of this Court towards page 79 of the Court file, which depicts the detail of properties owned by the appellant; however, in the remarks the entire property is shown to have been gifted to him either by his brother or father. On query of the Court, learned counsel submits that it could be bonafide mistake or innocent omission, however, that alone cannot be made basis for rejection of his nomination papers. As far as the alleged evasion of tax is concerned, they submit that the appellant has filed tax return for three years, showing an amount of Rupees 3.10 Million in his account, said documents is annexed as Annexure “B”, therefore, he has not made concealment of any fact nor has furnished false statement, which may warrant rejection of his nomination papers, therefore, by allowing this appeal, impugned order may be set aside so that the appellant may participate and contest the current elections. In support of their contentions, they refer to the case reported as Yasir Aftab v/s. Irfan Gull and others (2023 SCMR 206).
3. The Law Officer of Election Commission of Pakistan, Larkana Division, duly assisted by learned Additional Advocate General, Sindh and learned Deputy Attorney General for Pakistan, oppose the appeal on the ground(s) that the appellant has not come to the Court with clean hands as at the time of scrutiny, his legal team was repeatedly asked by the Returning Officer to produce the record showing source of income of the appellant through which he purchased the properties in question, but they failed. As far as the claim that the properties in question were gifted to the appellant by his brother or father, the Law Officer submits that the appellant has not disclosed source of income through which he had purchased same. He further submits that the claim that properties in question were purchased by the appellant and later it was shown by his father to have been gifted to him carries no weight, as, according to law, the third person cannot gift the property to any individual or the legal heir. He further argued that father of the appellant, who is sitting Senator, in his annual tax return has suppressed some facts by showing properties purchased in the name of his son and in order to mask and/or justify such mistake, the appellant has attempted to save skin of his father. He, therefore, submits that it is not a bonafide mistake but clear malafide on the part of appellant, which is to be scrutinized properly. He lastly submits that the impugned order passed by the Returning Officer in terms of Section 62(9)(c) of the Elections Act, 2017 is speaking one and same may be maintained. In support of his contentions, he places reliance upon case law reported as 2023 CLC 538.
4. Heard arguments of the learned counsel for the parties and perused the material available on record.
5. Since the appellant is the owner of the property (agricultural land), which he claims to have purchased from a stranger through registered sale deed, hence, he is ostensible owner of the property on the basis of sale deed and in such circumstances the alleged gift deed, which the appellant claimed through his father is earlier to it, which has been admitted that when the appellant, as per his statement, was owner by gift deed then why he purchased said property through registered sale deed. All this shows that either the gift was not validly made or the registered sale deed was executed for some other motive. Furthermore, the appellant possessed an amount of Rs. 3.19 Million in his account and has not pinpointed the source of his income. Therefore, the appellant could not be allowed to be hot and cold in the same breath. Resultantly, there is no justifiable reason to set aside the impugned order. In such eventuality, the appeal in hand, being hit by mandatory provision of law, is not maintainable. Consequently, instant appeal being devoid of merit is dismissed, impugned order passed by Returning Officer PS-10, Larkana-I is hereby maintained.
Judge