IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No.D-514 of 2018

Present:

Mr. Justice Rasheed Ahmed Soomro,

Mr. Justice Irshad Ali Shah,

Petitioner : Through Mr.Nisar Ahmed Bhanbhro,

Advocate.

Respondents : Through Mr.Athar Abbas Solangi, Advocate for private respondent,

Mr.Rafique Ahmed K. Abro, Advocate for Election Commission of Pakistan &

Mr.Abdul Rasheed Abro, Assistant Attorney General Pakistan.

Date of hearing : 10.07.2018

Date of decision : 12.07.2018

O R D E R

IRSHAD ALI SHAH, J- The facts in brief necessary for disposal of instant constitutional petition are that the petitioner filed a nomination paper to contest election from PS-16, Qamber Shahdadkot-III. It was rejected on 19.06.2018, by learned Returning Officer PS-16, Qamber-Shahdadkot-III, on objections, so raised, by the private respondent in writing. Such rejection of his nomination paper, the petitioner impugned before learned Election Appellate Tribunal Sukkur by preferring an election appeal, it was dismissed on 25.06.2018. The petitioner being aggrieved of rejection of his nomination paper by way of above said orders of learned Returning Officer PS-16, Qamber-Shahdadkot-III, and learned Election Appellate Tribunal Sukkur has impugned the same before this Court by way of instant constitutional petition.

2. It is contended by learned counsel for the petitioner that the nomination paper of the petitioner was rejected without any lawful justification. By contending so, he sought for acceptance of nomination paper of the petitioner. In support of his contention, he relied upon case of Fahad Malik vs. Mir Mumtaz Hussain Jakhrani and another (2008 CLC-457) (2). Case of Malik Muhammad Sameen Khan vs. Returning Officer and others (2012 CLC-820), and (3). Case of Fatehullah Khan vs. Ikramullah Khan Gandapur (2014 CLC-1725).

3. It was contended by learned counsel for private respondent that the nomination paper of the petitioner was rejected as he left therein the column necessary to Fill-in for Tax paid as blank, he concealed the landed property owned by him and the bank account, which he was having with United Bank Limited (UBL) Qamber Ali Khan, with malafide intention. By contending so, he sought for dismissal of the instant constitutional petition, as according to him, the controversy involved in the matter could not be resolved by this Court in exercise of its constitutional jurisdiction. In support of his contention he relied upon case of Muzaffar Ali Shah and others vs. Registrar Co-operative Societies, Karachi & ors (PLD 1968 Karachi-422), (2). Case of Government of Pakistan through Secretary Ministry of Interior and Narcotics Control (Interior Division) Board Islamabad vs. Muhammad Yasin, Sub Inspector WAPDA Anti Corruption and another (PLD 1997 Supreme Court-401), (3). Case of General Manager PEARL Continental Hotel, Lahore/Rawalpindi vs. Farhat Iqbal (PLD 2003 Supreme Court-952), (4). Case of M.Nazir Ahmad vs. Muhammad Aslam and others (2013 SCMR-363), (5). Case of Rana Muhammad Hayat Khan vs. Rana Imtiaz Ahmad Khan (PLD 2008 Supreme Court-85), (6). Case of Syed Fakhar Imam vs. Chief Election Commission of Pakistan and others (PLD 2008 Supreme Court-730), (7). Case of Secretary to the Government of Punjab Forest Department Punjab Lahore vs. Ghulam Nabi and others (PLD 2001 Supreme Court-415), (8). Case of Federation of Pakistan and others vs. Mian Muhammad Nawaz Sharif (PLD 2009 Supreme Court-644), (9). Case of Muhammad Shamim Siddiqui vs. Mrs.Kausar Aziz and others (1982 CLC-1972) and (10). Case of Aftab Shahban Mirani and others vs. Muhammad Ibrahim and others (PLD 2008 Supreme Court-779).

4. In rebuttal to above, it was contended by learned counsel for the petitioner that the petitioner has disclosed the survey numbers of the landed property owned by him in his nomination paper, he left the column for disclosure of tax paid therein as blank, as his income was not subject to payment of tax and the bank account he disclosed before learned Returning Officer, PS-16, Qamber-Shahdadkot-III, by filing bank statement.

5. Learned counsel for Election Commission of Pakistan as well as learned Assistant Attorney General Pakistan have sought for dismissal of the instant constitutional petition by contending that entire process necessary to conduct election has already been completed.

6. We have considered the above arguments and perused the record.

7. 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 nomination paper of the petitioner was rejected by learned Returning Officer PS-16, Qamber-Shahdadkot-III, on the basis of written objections which were filed by the private respondent. The appeal preferred by the appellant against rejection of his nomination paper was also dismissed by learned Election Appellate Tribunal Sukkur. During course of hearing of his appeal before learned Election Appellate Tribunal Sukkur, it transpired that the appellant has concealed a bank account, which he was having with United Bank Limited (UBL), Qamber Ali Khan, vide No.292085095. On the basis of such disclosure of bank account by considering the reasons recorded by learned Returning Officer PS-16, Qamber-Shahdadkot-III, the Election Appeal filed by the petitioner was dismissed by learned Election Appellate Tribunal Sukkur. If for the sake of arguments, it is believed that; the area of the land owned by the petitioner is covered under the survey numbers which he has disclosed in his nomination paper and his income is not subject to payment of tax, even then such fact is not enough to ignore the concealment of the bank account with United Bank Limited (UBL) Qamber Ali Khan, which the appellant was having. The nomination paper to contest the election from PS-16, Qamber-Shahdadkot-III, was filed by the petitioner on 11.06.2018. The bank statement which the petitioner claims to have filed in support of his nomination paper was issued by the bank on 18.06.2018. It was on 7^th day to filing of nomination paper by the petitioner before learned Returning Officer PS-16, Qamber-Shahdadkot-III. The bank statement issued on 18.06.2018 could not be filed with nomination paper on 11.06.2018. Even otherwise, nothing has been brought on record by the petitioner which may show that the above said bank statement was actually filed by him before learned Returning Officer PS-16, Qamber-Shahdadkot-III, prior to scrutiny of his nomination paper. It was observed by learned Election Appellate Tribunal Sukkur, in its order dated 25.06.2018 that during course of hearing of Election Appeal, learned counsel for the petitioner after consulting with the petitioner has verified/confirmed that the petitioner is having above said account with United Bank Limited (UBL) Qamber Ali Khan. The observation so recorded by learned Election Appellate Tribunal Sukkur prima facie indicates that it was the first time during course of hearing the appeal of the petitioner, the petitioner confirmed the existence of his above said account with the above said bank, when he was confronted with the same by learned counsel for the private respondent. It apparently was an act of willful concealment of the bank account on the part of petitioner and was in violation of his affidavit, which he filed in support of his nomination paper stating therein that information furnished by him to his knowledge and belief is correct and complete. In that situation, the nomination paper of the petitioner to contest election from the above constituency was rightly rejected by learned Returning Officer, PS-16, Qamber-Shahdadkot-III, and such rejection was rightly maintained by learned Election Appellate Tribunal Sukkur by way of impugned orders, those are not calling for any interference by this Court in exercise of its constitutional jurisdiction.

8. In case of Muhammad Ahmad Chatta vs. Iftikhar Ahmed Cheema and others (2016 SCMR-763), on account of non-disclosure of bank account of “spouse” even, the election of returned candidate was declared to be void with the following observation;

“---Ss. 12(2)(f)& 76A---Nomination papers, rejection of---Non-disclosure of Bank account and properties belonging to spouse---When the case record established that returned candidate neither submitted statement regarding assets of his spouse nor disclosed one of his Bank accounts at the time of filing nomination papers, the Election Tribunal should not have dismissed the election petition on the grounds that mens rea was not proved and that Government exchequer had not suffered any loss on account of such non-disclosure---Supreme Court declared election of returned candidate as void”.

9. In very recent case while hearing C.P.No.2342/18 and C.P.No.2618/18 (Dr.Fahmida Mirza vs. Bibi Yasmeen & Ors), on issue of false declaration, it was observed by the Hon’ble Supreme Court of Pakistan that;

“It is declared that the respondent has never been a B.A Graduate as per the record. Thus, having given a false declaration, she is disqualified in terms of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 from contesting the general elections”.

10. The case law which is relied upon by learned counsel for the petitioner is on distinguishable facts and circumstances. In case of Fahad Malik (supra), the issue of error or difference in payment of land revenue was involved and it was found to be bonafide mistake on the part of candidate. In the instant matter, no error or difference in payment of land revenue is involved which could be said to be bonafide mistake on the part of petitioner. It was case of concealment of bank account which is appearing to be malafide act on the part of petitioner. In case of Malik Muhammad Sameen Khan (supra), amount of loan availed by the appellant was not correctly mentioned in his statement of assets and liabilities. There was no allegation of default in payment of such loan. It was in that context, rejection of nomination paper was overruled. In the instant matter, no issue of loan or default in payment whereof is involved. In case of Fatehullah Khan (supra), it was observed by the Hon’ble Court that the omission to mention educational qualification did not amount to concealment of the fact. In the instant matter, no issue of omission to disclose educational qualification on the part of petitioner is involved, he has willfully concealed his bank account.

11. In view of the facts and reasons discussed above, the instant constitutional petition is dismissed.

JUDGE

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