Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Ghulam Qadir Leghari .

C.P.No.D-3889 of 2015

For Katcha Peshi

03.11.2015

Mr. Shabir Ali Bozdar Advocate for Petitioner.

Mr. Gulzar Ahmed Malano Advocate for respondent.

Mr. Noor Hassan Malik, Assistant Advocate General.

Mian Mumtaz Rabbani, Deputy Attorney General.

O R D E R

AQEEL AHAMED ABBASI, J. Through instant petition, the petitioner has impugned the order passed by the Appellate Authority i.e. District & Sessions Judge, Naushahro Feroze, in Appeal No.167/2015 whereby vide order dated 12.10.2015 the appeal filed on behalf of respondent No.5 against acceptance of Nomination Papers of petitioner by the Returning Officer has been allowed and the joint Nomination Paper of the petitioners has been rejected for alleged violation of section 12 of Representation of the Peoples Act, 1976.

Learned counsel for the petitioners submits that both the petitioners are eligible to contest elections as they filed their nomination form as per election laws and rules, whereas, allegation in respect of petitioner No.1 that he has not declared his true assets, is false and frivolous as, the petitioner No.1 has declared all the assets which are in his name. However, per learned counsel, due to inadvertence, and by mistake, the small share in one of the ancestral agricultural lands could not be declared by the petitioner, which has formed basis of rejection of joint Nomination Papers of the petitioner. Per learned counsel, if such objection would have been raised before the Returning Officer, the petitioner would have cured such defect by including his share in the ancestral agricultural land, in the list of assets, however, since such objection was raised, for the first time, before the Appellate Authority by the respondent who did not provide any opportunity to remove such mistake or defect in terms of rule 18 of Sindh Local Councils (Elections) Rules, 2015, therefore, petitioners could not do the needful. It has been prayed that the petitioner No.1, may be allowed to file fresh declaration of assets by including his share in the ancestral agricultural land and the Returning Officer may be directed to pass order of acceptance on the joint Nomination Paper of the petitioners in accordance with law. In support of his contentions, learned counsel has relied upon the case of Ghazanfar Ali v. Noor Muhammad and others, (PLD 2011 Lahore 11).

Notices were issued, pursuant to which Mr.Gulzar Ahmed Malano has shown appearance and submitted that since the petitioner deliberately concealed such fact, therefore, he is not entitled to contest elections.

Mr. Noor Hassan Malik, learned Assistant Advocate General and Mian Mumtaz Rabbani, learned Deputy Attorney General, in view of hereinabove facts, and circumstances of this case and the ratio of the case-law relied upon by the learned counsel for the petitioners, submit that petitioner No.1 appears to have not disclosed the share in the ancestral agricultural land due to inadvertence, whereas, such mistake could have been allowed to be cured or remedied by allowing the petitioner to file complete declaration of assets before the Returning Officer, or even before appellate authority, however, it appears that no such opportunity has been provided to the petitioners by the two authorities in terms of 2^nd proviso to sub-rule (3) of rule 18 of Sindh Local Council (Elections) Rules, 2015.

We have heard learned counsel for the parties, learned AAG and DAG and perused the record.

There is no cavil to the proposition that a candidate who, intends to contest elections is required to submit complete and correct Nomination Papers along with annexures as required under relevant law and rules, whereas, any deliberate omission or default, which is of substantial nature, cannot be allowed to be validated at a subsequent stage. Reliance is placed in the case of Rana Muhammad Tajammal Hussain V/S Rana Shaukat Mahmood reported in PLD 2007 SC 277 and Mudassar Qayyum Nahra versus Election Tribunal Punjab, Lahore and 10 others reported in 2003 MLD 1089. However, if there is an error or omission on the part of candidate in the Nomination Papers, which is not substantial in nature and can be cured at a very initial stage of scrutiny by the Returning Officer or before the Appellate Authority, in such situation, we are of the opinion that, an opportunity is to be given to the candidate to remove such defect or deficiency so that he may not be disfranchised or prevented from contesting elections which is a fundamental right of every citizen as per constitution, however, subject to law. We are of the tentative view that, the petitioners, otherwise qualify to contest elections, and there is no objection with regard to their eligibility except, the ground of incomplete declaration of assets by petitioner No.1, which according to the petitioner was on account of omission by the petitioner, whereas, respondents have not been able to demonstrate as to how such non-declaration of assets of the ancestral agricultural land by the petitioner No.1 is a deliberate act of concealment or the petitioner wanted to gain any benefit out of such non-declaration.

In view of hereinabove facts and circumstances of the case and while agreeing with the ratio of the decision of the Lahore High Court, as referred to hereinabove, we are of the opinion that non-declaration of small share in the ancestral agricultural land by the petitioner No.1, was not a deliberate act of concealment of assets, hence, does not fall within the mischief of section 12 and 14 of the Representation of the Peoples Act, 1976. Accordingly, instant petition is allowed, impugned order passed by Appellate Authority is hereby set aside and the petitioner is directed to submit complete and true declaration of assets before the Returning Officer, which shall be examined by him and, thereafter, order of acceptance shall be passed in accordance with law and Form-VIII shall be issued immediately.

Petition stands allowed in above terms.

JUDGE

JUDGE

N.M.