IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Constitutional Petition No.D-496 of 2018

Present

Mr.Justice Rasheed Ahmed Soomro,

Mr.Justice Irshad Ali Shah

Petitioner : Through Mr.Asif Ali Abdul Razak Soomro,

Mr.Inayatullah G.Morio, Advocates

Respondents : Through Mr.Qurban Ali Malano,

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 : 19.07.2018

Date of decision : 19.07.2018

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-11, Larkana-II. It was objected by the private respondent by filing his objections, those were over-ruled, consequently nomination paper of the petitioner to contest Election from the above said constituency was accepted by learned Returning Officer vide his order dated 14.06.2018, which was impugned by the private respondent before learned Election Appellate Tribunal Sukkur by way of preferring an Election Appeal. It was accepted by way of impugned order dated 27.06.2018, consequently the nomination paper of the petitioner to contest the Election from the above said constituency was rejected. The operative part of impugned order reads as under;

“From the above facts disclosed by the respondent No.7 on oath, it is sufficient to say that he has at least not mentioned his minor daughter Kismat Nisar Khuhro. Family Tree of Kismat Nisar indicates that she was born on 06.10.2008 meaning thereby that she is still minor. Under Muhammadan Law an unmarried woman remains under dependency and care of his father. A man after the birth of his child cannot devolve the responsibility of his child, as done by respondent No.7. Although the respondent No.7 has not filed any proof of divorce to Mst.Tania but it can be said that atleast he has willfully not disclosed his real daughter and he is not taking the responsibility of the same as per his own statement as after divorce by father he is not required to take responsibility of maintenance from his daughter after separation. I am of the view that there is active concealment of certain valuable landed properties and bungalows in the name of his wife and minor/major children. I, therefore, came to conclusion that nomination form of respondent No.7 was improperly accepted by learned Returning Officer as such the impugned order is set aside and the nomination form of respondent No.7 is rejected”.

2. The petitioner being aggrieved of the above said order of learned Election Appellate Tribunal Sukkur has impugned the same before this Court by filing the instant constitutional petition.

3. It is contended by learned counsel for the petitioner that the nomination paper of the petitioner was rejected by learned Election Appellate Tribunal Sukkur, on the basis of grounds other than those which were taken by the objector in his objections without issuance of formal show-cause notice to the petitioner. It is further contended by them that Mst.Tania was divorced by the petitioner and his daughter baby Kismat is residing with her mother Mst.Tania, she was no more dependent upon the petitioner, it is why her name was not disclosed by the petitioner in his affidavit which he filed in support of his nomination paper before learned Returning Officer, the right of inheritance of baby Kismat are fully protected under Islamic Law, in these circumstances, according to them the petitioner could not be said to have disqualified to contest the Election. It is further contended by them that there was no concealment of assets/property on the part of petitioner as the landed property which he sold by way of an agreement was owned by his sons Muhammad Moosa and Muhammad Nawaz, it was done by the petitioner in capacity of their natural guardian, the record whereof would be transferred in favour of purchaser Allah Warrayo Gaad after obtaining necessary permission to do so from the Guardian Court having jurisdiction. In end, they sought for setting aside of the impugned order of learned Election Appellate Tribunal Sukkur, as same according to them is passed without lawful justification. In support of their contention, they relied upon case of Haji Abdullah Khan and others vs. Nisar Muhammad Khan and others (PLD 1959(W.P) Peshawar-81, (2). Case of Muhammad Bakhsh vs. Mst.Ghulam Aisha (1997 MLD-491), (3). Case of Umar Ayub Khan vs. Returning Officer NA-19, N.W.F.P District Haripur/Additional District & Sessions Judge, Haripur and another(2003 MLD-222), (4).Case of Illahi Bux Soomro vs. Aijaz Hussain Jakhrani and others (2004 CLC-1060), (5).Case of Muhammad Shavez Khan and another vs. District Returning Officer, Attock and another (2002 CLC-342), (6).Case of Mst.Ghulam Sakina vs. Umar Bakhsh and another (PLD 1964 Supreme Court-456), (7).Case of Haji Nowroz Khan vs. Hussain Gul and others (1980 CLC-17), (8). Case of Yamin Khan and others vs. Rais Jhangli Khan and another (1999 CLC-1755), (9).Case of Manzoor Hussain and others vs. Bhole Khan and others (1991 CLC-640), (10). Case of Fida Hussain vs.Najma and another (PLJ 2000 Quetta-73 (DB) and (11). Photo stat copy of judgment dated 20.03.2018 of Hon’ble Supreme Court of Pakistan passed in Civil Appeal No.647 of 2015(Re.Malik Shakeel Awan vs. Sheikh Rasheed Ahmed and others).

4. It is contended by learned counsel for the private respondent that the petitioner has concealed the landed property which he was having in the names of his sons Muhammad Moosa and Muhammad Nawaz, the agreement to sell in respect of that landed property is managed one, Mst.Tania is legally wedded wife of the petitioner, the petitioner could not be permitted to make escape from such wedlock under the pretext that he has divorced her verbally, baby Kismat under the Islamic Law is dependent of the petitioner, the petitioner could not be permitted to make escape from such liability under the pretext that she (baby Kismat) is residing and is depending upon her mother Mst.Tania, the petitioner is disqualified to contest Election, as such his nomination paper was rightly rejected by learned Election Appellate Tribunal Sukkur. By contending so, he sought for dismissal of the instant constitutional petition. In support of his contention, he relied upon case of Muhammad Ahmad Chatta vs. Iftikhar Ahmad Cheema (2016 SCMR-367).

5. Learned counsel for the Election Commission of Pakistan did not support the impugned order of learned Election Appellate Tribunal Sukkur.

6. Learned Assistant Attorney General Pakistan did support the impugned order of learned Election Appellate Tribunal Sukkur.

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

8. Section 63 (4) of Election Act, 2017 reads as under;

“If, on the basis of information or material coming to its knowledge by any source, an Appellate Tribunal 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 an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Appellate 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”.

9. Perhaps, on the basis of above provision of law, the arguments were advanced by learned counsel for the petitioner that the nomination paper of the petitioner was rejected by Election Appellate Tribunal Sukkur without issuing show-cause notice, as same according to them was rejected on the basis of material other than the one pleaded in objections. The nomination paper of the petitioner was not rejected by learned Election Appellate Tribunal Sukkur on its own motion but on appeal preferred by the private respondent. The petitioner prior to rejection of his nomination paper put his appearance before learned Election Appellate Tribunal Sukkur, filed his counter-affidavit to the Election Appeal, so filed against him by the private respondent and he on that appeal was heard by learned Election Appellate Tribunal Sukkur to his satisfaction through his learned counsel. In that situation, there was hardly a need for Election Appellate Tribunal Sukkur to issue formal show-cause notice to the petitioner to have his reply.

10. The petitioner in his affidavit which he filed in support of his nomination paper before learned Returning Officer has disclosed the names of his spouses and dependents to be as under;

01.Gul-e-Lala Khuhro (Wife)

02.Sehar Aman Khuhro (Daughter)

03.Maham Khuhro (Daughter)

04.Khatija Nisar (Wife)

05.Muhammad Moosa Khuhro (Son)

06.Muhammad Nawaz Khuhro (Son)

11. No-where, in his affidavit the petitioner has disclosed the names of Mst.Tania to be his wife and baby Kismat to be his daughter from Mst.Tania. If for the sake of arguments, it is believed that Mst.Tania has been divorced by the petitioner verbally even then he was under lawful obligation to have disclosed name of his daughter baby Kismat from Mst.Tania to be his dependent/children in his above said affidavit.

12. Section 337 of Mahomedan Law reads as under;

“337.Paternity and maternity.--Parentage is the relation of parents to their children. Paternity is the legal relation between father and child. Maternity is the legal relation between mother and child. These legal relations give rise to certain rights and liabilities as regards to inheritance, guardianship and maintenance”.

13. As per requirement of above provision of law, the petitioner was under obligation to have disclosed name of his daughter baby Kismat as one of his dependent/children to have her above said rights, his failure to do so constitute an act of mens-rea on the part of petitioner.

14. As per Section 370 of Mahomedan Law; a father is bound to maintain his daughters until they are married. Nothing has been brought on the record by the petitioner which may show that baby Kismat is married. In that situation, the petitioner cannot be permitted to exclude baby Kismat from the list of his dependents under the pretext that she at present is residing and depending upon her mother Mst.Tania to whom he has divorced verbally.

15. Section 7 of Muslim Family Laws Ordinance, 1961, reads as under;

7. Talaq.---(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of sub-section(1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both.

16. If for the sake of arguments, it is believed that the petitioner has divorced his wife Mst.Tania verbally, then as per requirement of Section 7 (1) of Muslim Family Laws Ordinance 1961, he was under lawful obligation to have given the Chairman a notice of his having done so. It apparently was not done by him. As such, as per requirement of Sub section (2) of Section 7 of Muslim Family Laws Ordinance, 1961, the petitioner has made him liable for punishment.

17. As said above, the petitioner in support of his nomination paper filed his affidavit making the declaration on oath to the following effect;

“I, Nisar Ahmed Khuhro s/o Muhammad Nawaz Khuhro do hereby declare that, to the best of my knowledge and belief, the above statement of the assets and liabilities of myself, my spouse(s) and dependent children is correct and complete as on 30^th June, 2017 and nothing has been concealed there-from”.

18. The declaration so made by the petitioner on oath apparently was false and/or untrue, as he has deliberately concealed the name of his daughter baby Kismat from the list of his dependents/legal heirs/children.

19. On issue of false declaration while deicing C.P.No.2342/18 and C.P.No.2618/18 (Dr.Fahmida Mirza vs. Bibi Yasmeen and others), 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”.

20. If for the sake of arguments, as is contended to be by learned counsel for the petitioner, it is believed that the rights of inheritance of baby Kismat being daughter of the petitioner are protected under Islamic Law even then such protection may not be enough to qualify the petitioner to contest election from the above said constituency ignoring his false and/or untrue declaration.

21. The case law which is relied upon by learned counsel for the petitioner is on distinguishable facts and circumstances, the same hardly support the case of petitioner.

22. In case of Haji Abdullah Khan and others (supra), the issue of specific performance of contract was involved. In that context, it was observed by Hon’ble Court that the decision of a case cannot be based on grounds outside of the pleading of the parties. No issue of specific performance of contract is involved in the instant matter. In Case of Muhammad Bakhsh (supra), the issue of pre-emption was involved, in that context, it was observed by the Hon’ble Court that the appellant’s additional grounds could not be taken beyond pleading and issues framed by trial Court. No issue of pre-emption is involved in the instant matter. In case of Umar Ayub Khan (supra), the declaration of assets were filed by the respondent on the basis of “Goshwara Milkiat” issued by “Patwari” and verified by “Tehsildar”. In that context, it was observed by the Hon’ble Court that “Patwari” later-on has rectified his mistake for that the respondent could not be penalized for such act of “Patwari”. In the instant matter, no issue of “Goshwara Milkiat” issued by “Patwari” or verified by “Tehsildar” is involved. The petitioner apparently has filed a false declaration whereby he has concealed his daughter baby Kismat to be one of his dependent/legal heir/children. In case of Illahi Bux Soomro (supra), the allegation against the returned candidate was that at the time of filing of nomination paper he has not declared the liability of his spouse. Decree against the wife of returned candidate was in respect of the loan advanced to the company prior to her marriage with the returned candidate and she was only a guarantor for return of the loan. In the instant matter, no issue of loan or liability of the wife prior to marriage with the petitioner is involved. In case of Muhammad Shavez Khan (supra), it was observed by the Hon’ble Court that the Returning Officer or Appellate Authority as the case may be, under the provisions of Election Rules may either Suo-moto or upon objection conduct summary inquiry before rejecting the nomination paper. It was the exercise which was undertaken by the learned Election Appellate Tribunal Sukkur before rejecting the nomination paper of the petitioner. In case of Mst.Ghulam Sakina (supra), the issue of transfer of property was involved; in that context it was observed by the Hon’ble Court that the transferor nor any one claiming under him entitled to enforce any right against transferee in respect of property transferred. In the instant case, if for the sake of arguments, it is believed that the petitioner has transferred the property of his sons with possession to Allah Warrayo Gaad by way of an agreement to sell even then he could not be absolved of liability of making concealment of his daughter baby Kismat to be his dependent/legal heir/children. In case of Haji Nowroz Khan (supra), it was observed by the Hon’ble Court that 30 years old document has got presumption of correctness. In the instant case, no issue of 30 years old document is involved. In case of Yamin Khan and others (supra), it was observed by the Hon’ble Court that duly appointed guardian or father being natural guardian may enter into contract on behalf of his sons or daughters. If for the sake of arguments, it is believed that the petitioner has signed contract/agreement of sale on behalf of his sons in favour of Allah Warrayo Gaad, even then the petitioner could not be absolved of liability of making concealment of the name of his daughter baby Kismat to be his dependent/legal heir/children by way of filing an affidavit which was on oath. In case of Manzoor Hussain and others (supra), it was observed by Hon’ble Court that the father being legal guardian of his minor children is empowered to alienate their property. If for the sake of arguments, it is believed that the petitioner being father of his minor sons is empowered to alienate their property, even then he could not be absolved of the liability of making concealment of the name of his daughter baby Kismat from the list of his dependent/legal heir/children. In case of Fida Hussain (supra), it was held by Hon’ble Court that oral “Talak” was binding inspite of its non-compliance with requirement of section 7 of Family Laws Ordinance, 1961. If for the sake of arguments, it is believed that the petitioner has divorced his wife Mst.Tania orally even then he could not be absolved of the liability of making concealment of name of his daughter baby Kismat from the list of his dependent/legal heir/children. In case of Malik Shakeel Awan (supra), it was observed by the Hon’ble Court that the question of “strict liability” does not arise with regard to misstatement in nomination paper. In the instant matter, the petitioner has made misstatement in affidavit on oath by concealing the name of his daughter baby Kismat from the list of his dependent/legal heir/children.

23. The simple statement of learned counsel for the Election Commission of Pakistan that he did not support the impugned order of learned Election Appellate Tribunal Sukkur is not enough to declare the same to be illegal and un-valid, which otherwise is found to be well reasoned.

24. For what has been discussed above, it could be concluded safely that no illegality or irregularity is committed by the leaned Election Appellate Tribunal Sukkur while passing the impugned order which may justify making interference with it by this Court in exercise of its constitutional jurisdiction.

25. The instant constitutional petition is dismissed accordingly. No order as to costs.

J U D G E

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