Order maintained by Hon'ble Supreme Court vide order dated 23.5.2013 passed in Civil Petitions No.240 & 241 K of 2013.

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Constitutional Petition No. D- 1644 of 2013

Constitutional Petition No. D- 1721 of 2013

Date Order with signature of Judge

1) For orders on CMA No. 9216/2013.

2) For orders on CMA No. 9217/2013.

3) For hearing of CMA No. 9000/2013.

Present:

Mr. Justice Maqbool Baqar

Mr. Justice Abdul Rasool Memon

Mr. Justice Syed Muhammad Farooq Shah

Heard on 03.5.2013.

Mr. Faisal Kamal, Advocate for petitioners in

both the petitions.

Mr. Haq Nawaz Talpur, Advocate for respondent No.5

in C.P.No. 1644/2013 and for respondent No.1 in C.P.No. 1721/2013.

Mr. Ashfaq Ahmed Taggar, D.A.G. in both petitions.

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SYED MUHAMMAD FAROOQ SHAH, J.:- Both captioned Constitutional Petitions are arising from the identical order passed by Returning Officer/Election Tribunal, hence taken together. Through these petitions, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners alleged that in terms of Article 63(1)(c),(P) of the Constitution read with section 14 of Pakistan Citizenship Act, 1951 any person holding dual citizenship is disqualified from being elected or chosen as, and from being, a member of Majlis-e-Shora (Parliament). In petition No. 1721/2013 has been filed for the following relief:

I) Declare that the Order dated 13.04.2013 passed in Election Appeal No.92 of 2013 by the Hon’ble Election Tribunal, wherein directing the Respondent No.2 to accept the nomination paper of the Respondent No.1 in respect of General Election 2013 in Constituency NA 237, Thatta-I, is illegal void and liable to be set aside.

II) Also disqualify the Respondent No.1, in forthcoming General Election 2013 from NA 237, Thatta-I, by upholding the Order dated 06.04.2013 passed by the learned Respondent No.2.

III) Direct the Respondents No. 2, 3 and 4 to delete the name of the Respondent No.1 from the list of candidates of NA 237, Thatta-I as the Respondent No.1 is not qualified to contest the election being dishonest (not Sadiq, Ameen and righteous) and not trustworthy as provided in Articles 62 particularly (f) and 63(1) (C) (P) and 113 of the Constitution of the Islamic Republic of Pakistan read with Sections 11, 12, 14 and 19 of Representation of People Act, 1976 and in light of Judgment passed by the Hon’ble Supreme Court of Pakistan.

IV) Restrain the Respondent No.1 from printing the ballot papers of the concerned constituency NA 237,Thatta-I.

V) Any other better relief which this Hon’ble Court may deem fit and proper.

VI) Cost of the Petition.”

2. The C.P.No.D-1644/2013 was dismissed by maintaining the impugned order by this court vide order dated 18.4.2013, against which the petitioner has filed identical applications (CMA Nos. 9000 & 9217/2013) under section 114, 151 and Order 47 of CPC, wherein the petitioner has prayed to review and recall the order dated 18.4.2013 on the grounds set out in the supporting affidavits.

3. Precisely, the relevant facts are that the Returning Officer rejected the Nomination Papers of respondent No.5 in C.P.No.D-1644/2013 who is respondent No.1 in C.P.No.D-1721/2013 on the sole ground that he is dual national, holds Canadian nationality. Being aggrieved and dissatisfied with the order passed by learned Returning Officer, the answering respondent has preferred an Election Appeal viz. No. 92 of 2013, which was accepted by the Election Tribunal vide order dated 13.4.2013 and Returning Officer was directed to accept the Nomination Papers of the appellant/ Respondent Sadiq Ali Memon.

4. The petitioner urged that respondent Mr. Sadiq Ali Memon, the candidate from NA-237, Thatta-I has contested bye elections in February 2010 from PS—84, Thatta-I by filing false affidavit/committing perjury. Learned counsel for the petitioner argued that admittedly respondent Mr. Sadiq Ali Memon once again surreptitiously wriggled out of Hon'ble Supreme Court’s pronouncement PLD 2012 SC 1089, when said respondent did not file fresh declaration/affidavit as directed by the Apex Court and admittedly is suffering from pre and post disqualification in terms of Articles 62(f) and 63(c) and (k) of the Constitution, read with section 12 & 99 of the Representation of People Act, 1976 as well as in light of dicta as laid down in PLD 2007 SC 52, as two years had not lapsed after his resignation from government service in view of above judgment of Hon'ble Supreme Court. Learned counsel next emphasized that the respondent Mr. Sadiq Ali intentionally and deliberately knowing well had given false statement hence defrauded and cheated the voters and the nation, is not a righteous, sagacious, honest or Ameen and cannot be allowed to gain entry into parliament since he does not meet the qualification prescribed under Article 62(1)(C),(d) and (f) of the Constitution of Pakistan, 1973. To support his contention, learned counsel placed reliance on the cases reported as SYED MEHMOOD AKHTAR NAQVI VS. FEDERATION OF PAKISTAN THROUGH SECRETARY LAW AND OTHERS (PLD 2012 SC 1089), MALIK IQBAL AHMED LANGRIAL VS. JAMSHED ALAM AND OTHERS (PLD 2013 SC 179), LET. GEN.(R) SALAHUDDIN TIRMIZI VS. ELECTION COMMISSION OF PAKISTAN (PLD 2008 SC 735), SYED MEHMOOD AKHTAR NAQVI VS. FEDERATION OF PAKISTAN THROUGH SECRETARY LAW AND OTHERS (2012 SCMR 1101), RAO TARIQ MEHMOOD VS. ELECTION TRIBUNAL, PUNJAB, LAHORE AND ANOTHER (PLD 2003 Lahore 169), MUHAMMAD JAMEEL VS. AMIR YAR AND 6 OTHERS (PLD 2010 Lahore 583) and OBAIDULLAH VS. SENATOR MIR MUHAMMAD ALI RIND AND 2 OTHERS (PLD 2012 Balochinstan 1). Learned counsel for the petitioner reiterated that admittedly the respondent Mr. Sadiq Ali Memon was a national of Canada, which he renounced on 11.12.2012 and the same fact is confirmed by the Canadian authority through their letter dated 09.1.2013. Learned counsel submitted that this court by order dated 18.2.2010 passed in an Election Appeal No. 1 of 2010 observed that the period of two years as stipulated under section 99 (1A)(K) of the ROPA, 1976 would be reckoned from the date of notification of retirement and thus he would become eligible after two years from the date of notification.

5. Conversely, learned counsel for respondent Mr. Sadiq Ali Memon submitted that disqualification under Article 63(1)(c) will continue as long as the person has the citizenship of foreign State. Admittedly, the respondent Mr. Sadiq Ali Memon renounced his Canadian citizenship and such renunciation was also accepted by the Canadian authorities much before his filing of the Nomination Papers, hence he is not disqualified. Learned counsel further submitted that perjury is an offence and in order to establish the offence of perjury trial is required to be conducted by the court of competent jurisdiction and mere filing of wrong declaration on oath may expose respondent Mr. Sadiq Ali Memon for criminal prosecution under relevant provisions of law but the same may not disqualify him to contest the elections for all time to come. It is next contended that respondent Mr. Sadiq Ali Memon has not been declared to be not Sadiq or Ameen, neither such issue is pending for adjudication before any court of law, therefore, the applications for review filed in C.P.No.D-1644/2013 and the Petition viz. C.P.No.D-1721/2013 are liable to be dismissed.

6. In the landmark judgment delivered by the full bench of Hon'ble Apex Court, in SYED MEHMOOD AKHTAR NAQVI V/S FEDERATION OF PAKISTAN (PLD 2012 SC 1089), it has been observed that the parliamentarians/members of provincial assemblies who have been declared to be disqualified, in view of the established fact that they have acquired the citizenship of foreign States, therefore, no question has arisen, which is to be determined by the Chairman/Speaker and the Election Commission of Pakistan was directed to examine all the cases of parliamentarians and the members of provincial assembly individually by obtaining fresh declaration on oath from all of them that they are not disqualified under Article 63(1)(c) of the Constitution.

7. Learned counsel for the petitioner while placing reliance on the case of Muhammad Jameel Vs. Amir Yar and 6 others (PLD 2010 lahore 583) submitted that the Judgment has confirmed by the Supreme Court, hence attained finality. The concluding paragraphs are reproduced herein below:

27. The declaration envisaged under Articles 62 (1)(f), therefore, has a special constitutional significance. It is to ensure that only sagacious, righteous, honest and amen enter the two Houses of the Parliament. The role of the courts is that of a GATE KEEPER. The constitutional test provided in Article 62(1)(f) has to be applied meticulously and punctiliously. Heavy responsibility lies on the courts who act as trustees on behalf of the people of Pakistan to ensure that no candidate, short of the standards prescribed in the Constitution be allowed to enter the sacred Houses of the Parliament. Any cheat slipping through the test would amount to abuse of trust reposed by the people of Pakistan in the courts besides resulting in lowering the majesty, dignity and honour of the Houses of the Parliament.

28. The constitutional courts need not wait for any declaration to be placed before them (by and large assumed to be procured from the lower courts). There is no stopping them from making such a declaration if there is evidence before them.

29. The words “sagacious….ameen” have to be understood in the general parlance. Sagacious means “showing good judgment and understanding. Righteous means “morally right and good.” Honest means “always telling the truth, and never stealing or cheating…Not hiding the truth about something” Ameen means honest. The meanings given above are broad and wide enough to detect and catch even the smallest of taint or blemish appearing on or attached with the name of the aspiring candidate. Framers of the Constitution have intentionally kept these qualifications wide and simple in order to ensure that the best of the best make it to these sacred Houses, which in turn would guarantee progress and development of our nation.

8. In CMA No. 4089/2012 and CMA No. 354 of 2013 in Constitutional Petition No. 5 of 2012, the Hon'ble Supreme Court has been pleased to observe on 28.3.2013 that 20 parliamentarians named in CMA No.4089/2012, the name of respondent Mr. Sadiq Ali Memon is appearing at serial No.16 being disqualified under Article 63(1)(c) of the Constitution to be elected or chosen as member of the parliament have resigned. The Hon'ble Apex Court enquired from concerned that as to whether proceedings for recovery of the monetary benefits which they have enjoyed and the action as contemplated under the law for making a mis-declaration/ contrary to the Constitution have been initiated in the light of judgment in the case of Syed Mehmood Akhtar Naqvi V/S Federation of Pakistan through Secretary law and others (PLD 2012 SC 1089). It shall be advantageous to reproduce para 2 of the above order of the Hon'ble Supreme Court as under:

“ Let a notice be issued to the above named persons to appear and explain as to why they may not be directed to refund the monetary benefits, which they have drawn during the tenure when they were occupying the public offices in the capacity of a public representative, and were disqualified in terms of Article 63(1)(c) of the Constitution and also with regard to making mis-declaration as to why they should not be ordered to be prosecuted accordingly. The ECP shall furnish in the office of the Registrar of this Court their complete addresses on the basis of nomination, which they have already filed and on receipt of the same, notices shall be issued for their appearance in person or through an Advocate on the date already noted hereinabove.”

9. In a recent judgment delivered by Hon'ble Supreme Court, on dated 01.4.2013 in unreported case of MIAN NAJEEBUDDIN OWAISI AND ANOTHER V/S AMEERYAR WARAN AND ANOTHER in Civil Misc. Application No. 1712 of 2013 in Civil Appeal Nos. 191-L and 409 of 2010, the Hon'ble Supreme Court has been pleased to direct the ECP at penultimate para 14 that ECP must adopt a distinction in between making of a declaration, which is against the provisions of Article 62 & 63 of the Constitution and the process of criminal proceedings as a result of making misrepresentation and observed that once there is a disqualification, it is always a disqualification and further that,

“Once a person has filed a declaration under his signatures declaring that he fulfills the conditions of Article 62 and 63 of the Constitution and he undertakes that the statement is correct and if such declaration is incorrect the ECP, shall de-notify him for such misrepresentation, retrospectively.”

10. It is an admitted fact that at the time of contesting previous election for the constituency PS-84 Thatta-I, the respondent Mr. Sadiq Ali Memon had made a false declaration and committed perjury by categorically misstating on oath that he did not suffer from any disqualification. In bye elections the Nomination Papers of respondent Mr. Sadiq Ali Memon were accepted in respect of constituency PS-84, Thatta-I and that Election Tribunal by an order dated 06.2.2010 reversed the order of Returning Officer by rejecting the Nomination Papers of respondent Mr. Sadiq Ali Memon.

11. For the foregoing reasons and in light of Supreme Court judgments referred to above, the order dated 18.4.2013 passed in C.P.No.D-1644/2013 is recalled, consequently, review applications bearing Nos. 9000 & 9217 of 2013 are allowed. Accordingly, the impugned order dated 13.4.2013 passed by Election Tribunal is set aside.

12. Both the petitions alongwith pending applications are disposed of in the above terms.

13. Let a copy of this order be transmitted to Secretary, Election Commission of Pakistan and Provincial Election Commission/District Returning Officer/Returning Officer, concerned. The Registrar of this Court shall communicate the copy of this order instantly.

J U D G E

Aamir/PS J U D G E