IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Election Appeal 41 of 2016

[Tariq Hussain Kubar v. Subhan Ali and others]

Date of hearing : 14.05.2018 and 21.05.2018.

Appellant : Tariq Hussain, through Mr. Nisar Ahmed Bhanbhro, Advocate.

Respondent No.1 : Subhan Ali, through Mr. Kalandar Bakhsh Phulpoto, Advocate.

Respondents 2-7 : Nemo.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

Mr. Ali Mutahir Shar, State Counsel.

Case law relied upon by the Appellant’s counsel.

1. P L D 2016 Supreme Court page-79

[Syed Hafeezuddin v. Abdul Razzaq and others] – Hafeezuddin case.

2. P L D 2017 Supreme Court page-70

[Rai Hassan Nawaz v. Haji Muhammad Ayub] – Rai Hassan case.

3. P L D 2017 Supreme Court page-692

[Imran Ahmed Khan and others v. Mian Muhammad Nawaz Sharif and others ] – Panama Case.

4. P L D 2016 Supreme Court page-689

[Ch. Muhammad Yousaf Kaselia v. Peer Ghulam Mohy-ud-Din Chishti] – Kaselia case.

5. 2016 S C M R page-1420

[Ms. Shamuna Badshah Qaisrani v. Khuwaja Muhammad Dawood] – Qaisrani case.

6. 2016 S C M R page-763

[Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema] – Chatta case.

7. P L D 2017 S.C. page-258

[Ali Muhammad Marri v. Province of Sindh and others] – Marri case.

Case law relied upon by Counsel for Respondent No.1

1. 2010 S C M R page-354

[Hasnat Ahmad Khan v. Institution Officer] – Hasnat case.

2. 2016 M L D page-1527

[Khalid Ahmed Memon v. Deen Muhammad Talpur and 2 others] –
Khalid Memon case.

3. P L D 2018 Lahore page-46

[Malik Farzand Ali and another v. Asad Ali and others] – Farzand case.

Other Precedents:

1. 2017 Y L R Note page-429

[Muhammad Ameen and another v. Jawaid Ali and 5 others] –
Amin Case.

2. 2016 S C M R page-733

[Shaikh Muhammad Akram v. Abdul Ghafoor and 19 others] –
Shaikh Akram Case.

3. 2006 SCMR page-1713

[Faqir Abdul Majeed Khan v. District Returning Officer and others] – Khan case.

Law under discussion: 1. Sindh Local Government Act, 2013 (“SLGA”)

2. Sindh Local Councils (Election) Rules, 2015 (“Election Rules”)

3. The Presentation of People Act, 1976 (“ROPA”).

4. The Conduct of Elections Rules, 1977

5. Civil Procedure Code, 1908 (“CPC”)

J U D G M E N T

Muhammad Faisal Kamal Alam, J: The Appellant has challenged the Judgment dated 09.12.2016, passed in Election Petition No.02 2015, filed by the present Appellant to challenge the election of Respondent No.1 (Subhan Ali) as a Returned Candidate to the seat of General Member Ward No. 6, Town Committee 16-Setharja, District Khairpur.

2. Upon service of notice, the Election Petition was contested. Issues were framed. Parties led their evidence and the learned Election Tribunal after hearing the learned counsel for the parties passed the above impugned Judgment. The present Appellant was also one of the contesting candidates for the above General Member seat besides private Respondents.

3. The main grievance of the Appellant is, which is mentioned in the present Appeal as well as in the Election Petition, that Respondent No.1 through pre-poll rigging and by resorting to corrupt practices as envisaged in the Sindh Local Government Act, 2013 (“SLGA”), managed to secure his success for the Local Bodies Elections 2015, otherwise the present Appellant would have won the Elections. It is further averred that Polling Staff appointed at the Polling Station were closely related to the PPP backed candidate and were close relatives of Mr. Imdad Ali Rind. In Subparagraph-G of paragraph-5 of the Election Petition, it has been specifically stated that Returning Officer, the then Assistant Commissioner, Taluka Mirwah, used to reside in the ‘Otaq’ (Guest Room) of PPP Taluka President, Ghulam Abbas Kubar, who is the brother-in-law of Respondent No.1. The said Ghulam Abbas Kubar, has been impleaded as Respondent No.7 in the Election Petition as well as in the present Appeal. It is pleaded in paragraph-7 of the Election Petition that Polling Staff at the instance of Respondent No.1 (successful candidate) robbed the ballot papers from the voters and did stamping in favour of Respondent No.1. In paragraph-10 of the Election Petition, it is stated that entire government machinery from Patwari to Mukhtiarkar and Police Constable to Station House Officer (S.H.O.), were involved in committing illegalities so that Respondent No.1 could win the elections. It is further stated that S.H.O. was the frontman of the sitting MPA of Ruling Party. It has further contended that the present Appellant has challenged the candidature of Respondent No.1 also on the ground that he had concealed his assets while submitting a declaration with the Nomination Paper and when it was objected to during scrutiny, the objection filed by Respondent No.4 was overruled. It is further contended that Respondent No.1 is a defaulter in paying taxes.

4. The Returned Candidate (Respondent No.1) and 7 contested the matter by filing their common Written Statement and they have vehemently denied the allegations put forth by the Appellant.

5. It is the stance of learned counsel for Respondent No.1 that the latter secured highest number of votes on the basis of his election manifesto, therefore, he was declared as returned candidate. It is further mentioned in Written Statement of Respondent No. 1 so also argued by his counsel, that Respondent No.1 enjoys a good reputation in his locality / constituency. The allegation about rigging and employing other corrupt practices has also been categorically refuted. In the Written Statement it was specifically denied that Government Primary School (GPS) Ali Sher Kuber was used as an election office of Respondent No.1, because it cannot be used as such, being a public property. It is also specifically refuted by Respondents No.1 and 7 that any vote of the petitioner was spoiled or the officials ‘helped’ the Respondent No. 1 in winning the elections through illegal means. With regard to the concealment of assets, Respondent No.1 in pagargraph-11 of his Written Statement has averred that against acceptance of his nomination paper, the present Respondent No.4 (Shakil Ahmed) filed an Appeal No.215 of 2015, but the same was dismissed vide order dated 29.09.2015 passed by the learned District Judge, Khairpur, who was the designated Appellate Authority. It is further stated that Respondent No.1 has disclosed all his assets without concealing anything.

6. Following Issues were framed by the Election Tribunal_

1. Whether the election petition of the petitioner is maintainable according to law?

2. Whether the respondent No.1 was not qualified to contest the election?

3. Whether the respondent No.1 has procured result of the election in his favour through corrupt and illegal practice?

4. Whether relief if any the petitioner is entitled for?

5. What should the judgment be?

7. Contesting parties led the evidence in support of their respective claims.

8. Learned Election Tribunal has also dismissed the Election Petition of present Appellant on the ground of maintainability as the Appellant did not implead those persons / officials against whom, he has levelled specific allegations, in terms of Rule 61 of Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”).

9. The Issue of maintainability of Election Petition and of this Election Appeal for non-impleading those persons against whom specific allegations are levelled, is pivotal and should be considered first.

10. Secondly, it is to be examined that whether Respondent No.1 concealed his assets and filed a false declaration.

11. Mr. Nisar Ahmed Bhanbhro, learned counsel representing the Appellant, has vehemently argued that Rule 61 of the Elections Rules has not been violated by the present Appellant when he filed the Election Petition, because the main grievance of present Appellant is against Respondents No.1 and 7, who by committing illegalities and corrupt practice, as envisaged in Section 55 of SLGA, including organized rigging through exercise of undue influence, obtained favourable result in the said elections. It is further contended that Respondent No.1 dishonestly filed his declaration of assets and this is an act, which is unpardonable in view of various judicial pronouncements. Learned counsel has further argued that learned Election Tribunal erred in holding that the Election Petition filed by present Appellant was hit by Rule 64 of the Election Rules, because, Rule 61 of the Election Rules about impleading persons (against whom allegations are made) is not applicable to the facts of present case, for the reason that by following the said Rule 61 of the Election Rules, admittedly, all the contesting candidates have been impleaded as parties and under sub-Rule(b), since main allegations are against present Respondents No.1 and 7, therefore, non-impleading of Officials, that is, S.H.O., Patwari and Returning Officer, is not fatal. It is his (Appellant’s) stance that all the compliances as mentioned in afore-referred Election Rules have been complied with.

12. On the other hand, Mr. Kalandar Bakhsh Phulpoto, learned counsel representing contesting Respondent No.1 (the Returned Candidate) has controverted the arguments of Appellant’s side. It is his main defence that there is no requirement under the scheme of SLGA that contesting candidate should file declaration about his assets at the time of filing nomination paper (form), but this requirement is mentioned in Section 23 of SLGA, which is admittedly applicable when a person is duly elected and has taken oath of his Office in terms of Section 22 of SLGA. It is further submitted that the disqualification mentioned in Section 36 of SLGA is not applicable to the case of present Respondent No.1 and the Election Petition of present Appellant was rightly dismissed through the impugned Judgment.

13. Mr. Muhammad Aslam Jatoi, Assistant Attorney General and
Mr. Ali Mutahir Shar, State Counsel, have supported the impugned judgment by arguing that it has been passed after appreciation of evidence and after application of judicial mind as the relevant provisions of SLGA and the Election Rules are properly considered and applied, therefore, the impugned decision is unexceptionable.

14. It would be advantageous to reproduce relevant provisions of Sections 22 and 23 of SLGA and the Rules 60 to 64 of the said Election Rules herein under:

“Section 22. Oath of Office:- (1) A member shall, before taking his seat in a Council make and subscribe to an oath in such form as may be prescribed.

(2) …………………

(3) …………………

Section 23. Declaration of Assets:- (1) …………………

Member of the Council shall within thirty days of making oath file a declaration of his or her assets and liabilities before such authority…”

Rule 60. (1) No election shall be called in question except by an election petition made by a candidate or panel for that election, hereinafter in this Chapter referred to as the “petitioner”.

(2) An election petition shall be presented to the Tribunal within forty five days of the publication in the official Gazette, the names of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Election Commission, a fee of rupees two thousand.

(3) An election petition shall be presented by a petitioner in the manner prescribed by the Election Commission and shall be deemed to have been presented-

(a) when it is delivered in person to Tribunal as may be appointed by the Election Commission; or

(b) when delivered by courier service or registered post to the Tribunal appointed by the Election Commission.

61. The Petitioner shall join as respondents to his election petition-

(a). all contesting candidates; and

(b). any other person against whom any allegation, if any, of corrupt or illegal practice is made and shall serve personally or by courier service or registered post on each such respondent a copy of his petition.

62. (1) Every election petition shall contain-

(a) a precise statement of the material facts on which the Petitioner relies;

(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and

(c) the relief claimed by the petitioner.

(3). Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.

63.(1). For the trial of election petitions under these rules, the Election Commission shall appoint as many Election Tribunals as may be necessary.

(2). A Tribunal shall consist of a person who is or has been a District and Sessions Judge or Additional District and Sessions Judge.

64. If the Tribunal is satisfied that all or any of the preceding provisions have not been complied with, the petition shall be dismissed forthwith and submit its report to the Election Commission."

(Under lined to add emphasis).

15. Rule 64 of the Election Rules provides a consequence that in case the Election Petition is not instituted / filed while complying the Rules 60, 61 and 62, then said Election Petition is liable to be dismissed. This Court in number of its earlier decisions has already interpreted and held that since Rule 64 provides a consequence, therefore, it is mandatory to follow Rules 60, 61 and 62 of the Election Rules while filing an Election Petition under SLGA. A reported decision of this Court in Ameen Case (ibid) is relevant and applicable here, besides, in the Judgment handed down in number of appeals, Election Appeal No.3 of 2017 being the leading one having title Jam Javed Ahmed Khan Dahar versus Haji Muhammad Akbar and 14 others, this Court has elaborated the nature and effect of these statutory rules. It would be advantageous to reproduce the said discussion herein under_

“19. After thoughtfully considering this legal aspect, it was held that like a statute, if the statutory rules also provide a consequence, then they should also be interpreted as mandatory. Relevant portion of the referred unreported Judgment is mentioned herein under:

“11. I have given a thoughtful consideration to the above proposition of law. Undoubtedly, afore-referred Election Rules have been framed under the statute; SLGA 2013. Going through different treatises on the Interpretation of Statutes, the position, which emerges is that if the Rules are framed under an enabling clause of a main statute then such Rules become Statutory Rules and are to be considered part and parcel of the Statute; consequently, such Statutory Rules then deserve to be governed by same principle of interpretation which is applicable to the Enactment itself. Meaning thereby that if a Rule provides a penalty or punishment for its non-compliance, then that Rule shall be interpreted as a mandatory Rule. It is also necessary to give reference of well-known commentaries on the above point of law (i) Understanding Statutes ‘Cannons of Construction’ by Mr. S. M. Zafar, Second Edition (2002), relevant pages-783 and 784, and the relevant paragraphs whereof are reproduced hereunder: -

“. . . . . . . . . . Statutory rules stand on a different footing. Though a byelaw must not be repugnant to the statute or the general law, byelaws and rules made under a rule-making power conferred by a statute do not stand on the same footing as rules are part and parcel of the statute. Parliament or Legislature instead of incorporating them into the statute itself ordinarily authorizes Government to carry out the details of the policy laid down by the Legislature by framing rules under the statute and once the rules are framed, they are incorporated in the statute itself, and become part of the statute and the rules must be governed by the same rules as the statute itself. Hence, a statutory rule cannot be challenged as unreasonable.”

“Mandatory and Directory rules:

A rule is mandatory if violation thereof entails any penalty or punishment. If non-compliance of a rule entails no penalty, rule is directory. Act done in disregard of a mandatory provision of law or rule is only invalid and unlawful. Such is not the case where only some rule of directory nature has been violated.”

(Underling is to add emphasis)

and (ii) NS Bindra’s, Interpretation of Statutes, Ninth Edition, the relevant paragraph whereof is reproduced hereunder: -

“ The right to hold an election, to stand in an election, and to be elected thereto as commissioner, are all rights which spring under the statute. There is no common law right which is involved. Therefore, the provisions of the Act and the rules made there under must be strictly followed in constituting the municipality and in regulating the functions thereof. Similarly, a disqualifying or disabling provision of law, for instance election rules, must be subject to strict construction.”

(Underling is to add emphasis)

12. Secondly, the Honourable Supreme Court of Pakistan in one of its reported Judgments, viz. P L D 1985 SC 282 (Shah Muhammad Vs. Election Tribunal, Urban Local Council, Christian and others), after taking into account various case laws, has interpreted the provisions of Punjab Local Council (Election) Rules, 1979 to be mandatory in nature and held as under: -

“. . . . . . . . Thus there is no escape from the conclusion that the law requires that every ballot-paper must be signed by the Presiding Officer, and when the ballot-boxes are opened for the purpose of counting the ballot-papers, all these ballot-papers which do not bear the signatures of the Presiding Officer must be excluded. These provisions are express and categorical and there is no scope for considering these provisions to be of a directory nature.” (Underlining is to add emphasis)”

13. Thirdly, even in the above mentioned reported case of Zia-ur- Rehman Vs. Syed Ahmed Hussain and others(2014 SCMR 1015), the Honourable Supreme Court in paragraph-7 has held, that when the law prescribed certain form for Election Petition and its verification on oath and entails a penal consequence for its noncompliance, the provision is to be interpreted as mandatory. It is also a settled Rule that the term “Law” is of wide import and it does include the Statutory Rules. Fourthly, the relevant law in the instant case is the SLGA 2013 and its Section 46 pertains to Election Petitions. It would be advantageous to reproduce Section 46 of SLGA 2013 as under: -

“46. Election petition.- (1) Subject to this Act, an election to an office of a council shall not be called in question except by an election petition.

(2) A candidate may, in the prescribed manner, file an election petition before the Election Tribunal challenging an election under this Act.”

14. From the above, it is not difficult to ascertain the mandate of law, that is, the governing statute SLGA, which enjoins that Election Petitions are to be filed in the “Prescribed Manner”. This term ‘Prescribed’ is mentioned in the definition clause of the said SLGA 2013; Section 2 (lii), which means Prescribed by Rules. It means that the Election Petitions are to be filed as mentioned in the relevant Election Rules, which have already been referred to in the preceding paragraphs. If the main Statute-SLGA 2013 had contained the provisions about verification of Petitions / Pleadings without a consequence or penalty, then the arguments of learned counsel for the Appellants would have been sustained, that if the main Statute is not providing a penal consequence then the Rules governing the same subject cannot travel beyond the express statutory provisions. But here the undisputed factual and legal position is altogether different. It is basically the Election Rules, which regulate the proceedings at the Election Tribunals and the Rule 65 in an unequivocal term has provided a penalty / penal consequence of dismissal of petition if the same is not filed in compliance of Rules 60 to 63 of the Election Rules 2015. The above legal position with regard to the status of Statutory Rules is further reinforced by another learned Division Bench Judgment of this Court reported in PLD 1984 Karachi 426 (Shahenshah Humayun Co-operative Housing Society Ltd., and 2 others Vs. House Building Finance Corporation and another), wherein, it has been held, inter alia, that if the rule-making authority validly frames / makes Regulations then such Regulations which are intra vires, be regarded as part of the enactment itself. In a subsequent decision of this Court reported in PLD 1992 Karachi Page-302 (Saeeduddin Versus Third Senior Civil Judge, East, Karachi), the above principle relating to the mandatory nature of the statutory rules has been reiterated.”

20. In view of the above, since Rule 64 of the Election Rules is mandatory in nature, therefore, non-compliance of Rule 61 by not impleading the above named SHO against whom specific allegations were levelled, the Election Petition No.13 of 2015 suffered from a non-curable defect and is not maintainable. Despite giving an adverse observation about the impugned order in the foregoing paragraphs, the present Appeal cannot be accepted, in view of the above discussion, therefore, the present Appeal No.09 of 2016 is also dismissed.”

16. Thus, nature of the afore-referred Rules is mandatory and effect of its non-compliance is adverse; dismissal of election petition. Now reverting to the arguments of the Appellant’s side in this regard. The reported decision of the Honourable Supreme Court handed down in the Muree Case (supra), has been examined, which is relied upon by Appellant side to support the arguments that non-impleading of officials against whom allegations are made, is not fatal; Rule 61 [ibid]. In the above cited case, the returned candidate, who was elected on the reserved seat for Labourer was held to be disqualified. The said returned candidate / respondent No.5 (of the reported case) was found to be a well-to-do person, hailing from a well-known political family of Sindh. The Honourable Apex Court overturned the decision of the learned Division Bench of this Court, which has ruled that an Appeal against the rejection of nomination form can only be filed by a person whose nomination form has been rejected and not anyone else. In the reported case, the Honourable Supreme Court has explained the scope of Rule 18 and 51 of the above referred Election Rules, which pertained to the pre-election disputes. In the reported case, the returned candidate / respondent No.5 after loosing the election of General Member seat, submitted nomination papers to contest the elections on the reserved seat as ‘labourer’ and his nomination was accepted and he consequently got elected on the reserved seat. In the intervening period, the petitioner (of the reported case) filed the Appeal challenging the acceptance of the nomination papers by the Returning Officer, but the objection of Petitioner was overruled. A bare reading of Rule 18 and 51 of the Elections Rules makes it abundantly clear that in the latter Rule (Rule 51) only a candidate whose nomination paper is rejected can file an Appeal, whereas, in the former Rule (Rule 18), there is no such requirement, as to who may file an Appeal. In the preceding
background facts, the reported decision was pronounced by the Hon’ble Apex Court.

The above reported decision is entirely on a different premise and point of law and in my considered view, it is not applicable to the undisputed facts of present case relating to an election dispute, which is to be adjudicated upon by an Election Tribunal under the relevant provisions of the Election Rules, particularly, by adhering to the Rules 60 to 64, which are mandatory in nature, as already held in number of decisions, mentioned in the foregoing paragraphs.

17. The Appellant’s side has failed to justify that why those Officials, against whom specific allegations were levelled and who are easily ascertainable, were not impleaded as Respondents as enjoined by Rule 61 of the Election Rules.

18. Not only this, the evidence adduced by the parties has also been taken into the account. The Appellant’s side did not examine the Presiding Officer, namely, Manzoor Hussain Rind, of one of the Polling Stations and he was given up on the ground that the said Officer was won over by Respondent No.1; the Statement of the learned counsel dated 21.01.2016, is at page-211 of the Paper Book. Similarly, despite levelling specific allegations against Returning Officer, who was the then Assistant Commissioner, was not impleaded as one of the Respondents though there is no justification for not joining him as Respondent. If the officials were joined as Respondents, their version could have been easily available before the Election Tribunal, particularly about the allegations of corrupt practices, as put forth by the present Appellant.

19. In view of the above, the finding of the learned Election Tribunal, on Issue No.1, is unexceptionable and does not require any interference. Non-joinder / non-impleading of Officials, who were otherwise identifiable, is fatal to the case of the Appellant and since sub-Rule (b) of Rule 61 of the Election Rules was violated by the Appellant, therefore, his Election Petition was not maintainable and was correctly dismissed.

20. Adverting to the other ground that was strenuously argued by Appellant’s counsel about concealment of assets by Respondent No.1. It is argued that on this sole ground, Respondent No.1 should have been disqualified and his election be declared as void.

21. It is further argued that the issue of concealment of assets should have been examined separately by the learned Tribunal below, even if the Election Petition of the present appellant was dismissed on the ground of maintainability. It is contended that since under Section 71 of the SLGA, the provisions of ROPA are also applicable therefore in term of Section 76-A of the ROPA, the Tribunal should have exercised its powers. The learned counsel for the Appellant has placed reliance on Rai Hassan case (supra). Mr. Nisar Ahmed Bhanbhro, the learned counsel, argued that the requirement of disclosure of assets and liabilities is to be strictly construed, as held by the Honourable Supreme Court in number of its decisions (which are mentioned in the opening part/title page of this decision). It is contended that that the rule laid down in the reported decisions is that non-disclosure of assets and financial liability entails adverse consequences of disqualification of a returned candidate. The other limb of the rule is that under Section 76A of ROPA, the Election Tribunal is vested with an independent and additional power to declare an election of a returned candidate void on the grounds mentioned therein and even this power is exercisable suo moto.

22. However, Mr. Kalandar Bakhsh Phulpoto, learned counsel representing Respondent No.1, has relied upon a reported case of Khalid Memon (supra) handed down by the learned Division Bench of our Court, to fortify his arguments that the requirement of declaring assets under the scheme of SLGA and the Elections Rules, is after the elections and not prior. To further fortify his arguments, has placed reliance on Farzand Ali case (ibid) of the learned Lahore High Court, in which it was held that if a contesting candidate submits an incorrect declaration of assets and liabilities under Rule 12 (5) of the Punjab Local Government (Conduct of Elections) Rules 2013, then the same cannot be a ground for his disqualification as the said provision is not mandatory but directory.

23. The crux of the case law relied upon by the Appellant's side is {i} that non-disclosure of assets and liability results in disqualification of a returned candidate; {ii} that under Section 76A of ROPA, the Election Tribunal is vested with an independent and additional power to declare an election of a returned candidate void, even if for any plausible reason, an election petition of a contesting candidate (challenger) is dismissed; {iii} a disclosure of liability by a candidate is more important, inter alia, for the reason, that if while holding public office the liability incurred prior to the elections is liquidated, then a person can be called upon to explain the source from which the liability was paid off.

24. There cannot be any other view than what has been discussed and mentioned in the preceding paragraph, but, what is to be seen is that to what extent the above principle(s) is applicable to the present case. To appreciate the rival submissions of the learned counsel for the parties, the relevant statutory provisions and rules of ROPA and SLGA have been examined and compared. Under ROPA a nomination by a candidate is filed under Section 12 read with Rule 3 of the Conduct of Elections Rules, 1997 (“Rules 1977”). The prescribed nomination form is appended with the Rules 1977 and the applicable nomination form is Form-1, which relates to the election to the General Seat, whereas,
Form-1A and Form-1B pertain to seats reserved for Non-Muslim and Women, respectively. In Section 12 (of ROPA) itself requirement of disclosure of business, national tax number, assets and liabilities are specifically mentioned; under Clause (c) of sub-Section 2, the candidate has to give a declaration about the outstanding loan, if any, which was obtained from any Bank, Financial Institution, Cooperative Society or Corporate Body, either in the name of candidate or his spouse or any of his dependents. Similarly, the Nomination Form-1 is accompanied by a declaration on oath by a candidate, who is contesting the elections on a seat of National or Provincial Assemblies. At the foot of the nomination form there is a further provision for declaration of assets and liabilities in the form of prescribed table; whereas, nomination Form required to be filled up by a candidate contesting (local government) election on a General Seat under SLGA, he / she has to fill up Nomination Form-II, nomination paper in prescribed Form-III or nomination paper in Form-II(A). The nomination Form-II is for the members, who are contesting elections for Union Councils / Union Committees; Form-III is for the election of District Council and Form-IIIA is for members of Ward in Municipal Committee / Town Committees. Section 32 of SLGA speaks about local government elections. Section 35 and 36 of SLGA deal with the qualification and disqualification of a candidate. Rules 16 to 19 of the Election Rules govern the pre-election process; in particular Rule 16 of the Election Rules governs the above Nomination Forms. It would be advantageous to reproduce Rule 16 of Elections Rules as under_

16. (1) The Returning Officer shall, as soon as may be after the publication of the election programme under sub-rule (2) of rule 12, give a public notice in Form-I inviting nominations and specifying the time before which and the place at which, the nomination papers shall be received by the Returning Officer.

(2) Any elector of an electoral unit may propose or second the name of any duly qualified person to be a member for that unit.

(3) Every proposal shall be made by a separate nomination paper in Form-I I(English or Urdu or Sindhi), Form-III, Form-III(A) and Form-III(B),which shall be signed by the proposer and the seconder and shall contain –

(a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; and

(b) a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder.

(4) Every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt.

(5) A person may be nominated in the same electoral unit by not more than five nomination papers.

(6) If any person subscribes to more than one nomination paper, all such nomination papers, except the one received first by the Returning Officer, shall be void.

(7) The Returning Officer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny.

(8) The Returning Officer shall cause to be affixed at some conspicuous place in office a notice in Form-VI of every nomination paper received by him containing the particulars of each candidate and the names of the proposer and seconder as shown in the nomination paper for general information and inviting objections from the voters of the local area within such time as may be specified in the Election Progamme.

(9) The representation, if any, received under sub-rule (8) shall be taken into consideration at the time of scrutiny of nomination papers.

25. A comparison of the above provisions of ROPA, which, inter alia, governs the General Elections for National and Provincial Assemblies’ and SLGA, regulating Local Government Elections for the Province of Sindh, leads to the conclusion that in the provisions of SLGA and the Elections Rules, there is no requirement of disclosure of assets and liabilities while submitting their nomination forms {by the candidates}, as is required under ROPA and its Rules 1977, but, under SLGA a returned candidate, who has taken oath of his Office in terms of Section 22 will then declare his / her assets as enjoined under Section 23 of SLGA in the prescribed Form XVII relating to the ‘Declaration of Assets’. The language of this Form XVII is quite clear, that it is a declaration required to be given by an ‘elected member’.

26. Secondly, when there is no requirement for filing a declaration of assets and liabilities by a candidate, who is a contestant in a Local Government Election, under the SLGA and its Elections Rules, as discussed hereinabove, then this requirement of disclosure of assets and liabilities as mentioned in ROPA read with its Rules 1977, cannot be read into the scheme of SLGA and the provisions whereof, which are especially enacted for Local Bodies Elections. It is a settled rule of interpretation that unless a penal provision is expressly mentioned either in the statute itself or a rule made thereunder, a person cannot be penalized or disqualified on any assumption or by invoking a provision from some other statute; in the instant case ROPA. The intentional omission by legislature as is obvious in the SLGA and its Election Rules (supra), cannot be filled up by this Court by declaring or holding that non-disclosure or erroneous disclosure of assets and liabilities by a contesting candidate while submitting his nomination paper, is a disqualification under SLGA or Election Rules framed thereunder. The principle of ‘casus omissus’ is attracted here.

The other rule of interpretation, which is applicable here is expressio unis est exclusio alterius (express enactment shuts the door to further implication); when a statute directs a thing to be done in a particular manner, or by certain persons, then it should be done in the manner and by the persons so mentioned. In afore-mentioned Hasnat Khan Case, the Honourable Supreme Court while reiterating the rule of interpretation of statute has held that, "no word used by lawmakers is either redundant and can be subtracted, substituted, added or read in a piece of legislation or a document, ........" (Underlying is done for emphasis).

Thirdly, under Section 71 of SLGA, only those provisions of ROPA can be invoked or made applicable to the elections and the electoral process, held and conducted, regarding which SLGA is silent. The requirement of disclosure of assets and liabilities under ROPA as discussed hereinabove, cannot by implication be incorporated or read into SLGA, for the purpose of disqualifying candidates or the present (incumbent) Respondent No.1.

27. Therefore, in view of the above, the case law cited by the learned counsel for the Appellant is not applicable to the facts of present case and are clearly distinguishable.

28. Conversely, Shaikh Akram case (supra) provides a further guiding principle. In the reported decision, the Honourable Apex Court set aside the decision of Election Tribunal, which has disqualified the returned candidate (Appellant of the reported case) and declared one of the contesting candidates as a successful one. Reason given by the Election Tribunal was that the appellant did not disclose the criminal case pending against him. The Honourable Supreme Court after considering the relevant provisions of ROPA and format of the nomination form, has held that non-disclosure of a criminal case by the returned candidate was not a ground to disqualify him. It was further observed that in the criminal case the returned candidate was subsequently acquitted. Consequently, the impugned decision of the Election Tribunal was set aside. The Honourable Supreme Court ruled that a candidate must make complete disclosure as required by nomination Form-1 prescribed in the Rules. One of the grounds which weighed with the Honourable Apex Court for not de-seating the returned candidate, was the language of paragraph-4 of the nomination form, under which disclosure of a pending criminal case was to be given, was misunderstood by the returned candidate / appellant (of the reported case). The other factor, which was considered by the Honourable Supreme Court is, that the returned candidate was not provided an opportunity to correct his nomination form with regard to the above mistake.

Similarly, the Honourable Supreme Court in the afore-referred Rai Hassan case, has held, that a candidate would not be disqualified if certain error or omission is highlighted in a nomination form, which is not material. What can be deduced from the above is, that a candidate would not be penalized or disqualified for something he/she is not required to do.

Thus, in SLGA and the Election Rules framed thereunder, when there is no requirement for disclosure of assets and liabilities at the time of filing the nomination form, as discussed herein above, then the incumbent Respondent No.1 cannot be disqualified on this ground. The cited decision handed down in Khalid Memon case (supra) is on all fours with the issues involved in the subject Appeal, because this reported decision (Khalid Memon case) has interpreted the relevant provisions of SLGA and the Election Rules in detail, while holding that there is no such requirement of disclosure of assets and liabilities by a candidate. It is relevant to reproduce here under the pargraph-7 of the above decision:

“7. We have heard the learned counsel as well as learned Amicus Curiae in the matter. Insofar as the declaration of the assets is concerned, we are of the view that the provisions of Sindh Local Government Act, 2013 as well as the rules framed thereunder do not provide any necessity or mandatory requirement to submit the details of the assets at the time of submitting nomination papers. The need only arises when a successful candidate takes oath of an office, where after, within a period of 30 days, he shall disclose his assets in terms of the section 23 ibid. Similarly in terms of the rules framed thereunder, i.e. rule 18(3) provides four conditions to disqualify a candidate in addition to section 36 of the Act of 2013. All the subject clauses from (a) to (k) of section 36 does not provide any room for disqualifying a candidate on such summary assumption as relied upon by petitioner insofar as the assets are concerned. The same is the situation under rule 18 (3) framed under the Act, 2013 hence, it is inconceivable as to what could be the mala fide approach of the candidate by not disclosing such assets at the time of submitting nomination papers when it is not required under section 23 of the Act. Even the petitioner's counsel submits that though it may not be a mala fide concealments but it amounts to simple non-disclosure. The counsel is unable to justify as to why one should be penalized for not disclosing the assets when the law does not require him to disclose such assets under the law as it would be a premature demand in terms of section 23 of the Act, 2013.”

[Underlying is done to add emphasis]

29. But, due to peculiar facts of the present appeal, the issue for
non-disclosure of assets and liabilities still remains unresolved even after an elaborate discussion mentioned in the foregoing paragraphs, because the present Respondent No. 1 while filing his nomination paper had also submitted declaration of assets. The learned counsel for the Appellant, while referring to the evidence, has pointed out that on page-227, the details of assets of Respondent No.1 is mentioned. It has been exhibited as 46/B(i). The other document was referred having a heading ‘declaration of assets’, which is exhibited as 46/H(2). The learned counsel submits that comparison of the two documents clearly leads to the conclusion that there is a marked difference of particulars / items mentioned in both the disclosure of assets / documents.

30. I have examined both the documents and to this extent, the contention of Appellant’s counsel has substance. While examining the testimonies of the parties, particularly with regard to the issue of declaration of assets, it is not difficult to conclude that in his cross-examination, the Respondent No.1 has admitted that two documents of declaration of assets have been signed by him, viz. Exhibits 46/B-(i) and 46/H(2), as referred hereinabove. At the same time, it is also an admitted fact that the second declaration was filed after the appeal of opponent / that of present Respondent No.4 (Shakil Ahmed), who was admittedly the covering candidate of present Appellant, was dismissed by the designated Appellate Authority as mentioned herein above. The said order of 29.09.2015 (exhibit 40/C) is at page-193, in which the undertaking of present Respondent No.1 is recorded that he undertook to file details of any other asset, which was left out. Accordingly, the second document about declaration of the assets and liabilities by Respondent No.1 was filed, which has been produced in the evidence as Exhibit 46/H(2); at page 247 of the Paper Book.

31. Admittedly, the present Respondent No.1 was notified as a successful / returned candidate by the Election Commission of Pakistan. In my considered view, for determining the ‘qualification’ or ‘disqualification’ of returned candidate-incumbent Respondent No.1, it is necessary to compare his declaration / disclosure of assets and liabilities, which he is required to submit under Section 23 of the SLGA after being elected, with that of the above last declaration - Exhibit 46/H(2) and if it is found that there is material difference in the two documents, only then an appropriate order can be passed against the Respondent No.1. Undisputedly, the document – Form XVII, in which the Respondent No.1 has declared his assets after being elected as a member, in terms of Section 23 of SLGA is not on record, which should have been produced by either of the parties, as that document is in the public domain. In absence of the information and particulars, which are to be mentioned under the declaration of assets as enjoined by Section 23 of the SLGA, the present controversy cannot be decided.

32. It is also clarified that the order, which I am inclined to pass does not require that finding of learned Election Tribunal on other two Issues be considered, as the Election Petition of the present Appellant is already held to be not maintainable.

33. Now the sole question remains that if the Election Petition of present Appellant has been rightly dismissed by the learned Election Tribunal, which order is maintained in the present Appeal, whether the learned Election Tribunal can inquire into the disqualification of the present Respondent No.1, in view of the evidence that has come on record and particularly his (Respondent No.1) cross-examination, so also the observation in the preceding paragraphs, that the post-election declaration of assets in Form XVII is to be compared with the aforementioned last document-Exhibit 46/H(2).

34. Under Section 71 of the SLGA, provisions of ROPA are applicable to the elections and the electoral process under SLGA to the extent as mentioned in the above Section 71 itself. The Hon’ble Supreme Court in the case of Faqir Abdul Majeed Khan Versus District Returning Officer, and others, reported in 2006 SCMR 1713, inter alia, while interpreting the provisions of Punjab Local Government Rules, 2005, has held that the “principle announced in the Judgment pertaining to Election held under the Constitutional Provision shall also be applicable on the Election under Local Government Ordinance…”. Similarly, the case law cited by the Appellants side, particularly the Rai Hassan and Qaisrani cases provide a guidance that Section 76A of ROPA gives additional and adequate powers to the Election Tribunal for ascertaining, inter alia, the non-disclosure of assets and liabilities and deciding its effect. Thus, in my considered view the learned Election Tribunal exercising jurisdiction under the SLGA and its said Election Rules can invoke Section 76 (A) of the ROPA for deciding the matter before it, for the reasons mentioned hereinabove.

35. The upshot of the above discussion is that the impugned order to the extent of finding given under Issue No.2 about the qualification of Respondent No.1 cannot be sustained and is set-aside. Case is remanded to the learned Election Tribunal for deciding only the above Issue afresh. The Tribunal will give its decision within four weeks from the date of receipt of this order along with the record of the case. The learned Tribunal may allow the parties to lead evidence and while giving its finding on Issue No.2, will also consider the evidence already recorded in the matter.

36. Parties to bear their own costs.

Judge

Sukkur,

Dated: _____________

Riaz / P.S.*