ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR____.

Const.Petition No.D- 1279 of 2018

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DATE ORDER WITH SIGNATURE OF JUDGE ________________________________________________________________

For hearing of case.

18-07-2016.

Mr.Shakeel Ahmed G. Ansari Advocate for petitioner.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

Mr. Khuda Dino Sangi, Legal Advisor Election Commission of Pakistan, Sukkur Division a/w……,.

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The petitioner, namelyMuhammad Isamail Khoso, has invoked the jurisdiction of this Court Under Article 199 of the Constitution of Islamic Republic of Pakistan,1973 (hereinafter referred to as the “Constitution”) challenging the order passed by learned Appellate Tribunal at Sukkur dated 25.06.2018 in Election Appeal No.17/2018, whereby Appeal filed by petitioner was dismissed.

2. Brief facts leading to the filing of the petition are that petitioner filed his nomination form for contesting General Elections-2018 from PS-24Sukku-II. Learned Returning Officer PS-24Sukkur-II after hearing learned counsel for the parties vide order dated 13.06.2018 rejected the nomination form mainly for the following reasons.

“ The filing of affidavit duly prescribed by the Honourable Supreme Court is mandatory in the nomination form/papers. The purpose of filing affidavit is to provide the assistance to the Returning Officer in respect of proper scrutiny of the nomination form/papers. The period of scrutiny has been over now. The non-mentioning of an important fact regarding of pendency of a criminal case against the appellant in his affidavit is not a technical mistake. I am of the view, it is a willful omission and the same cannot be cured. Resultant, instant appeal is dismissed.”

3. Petitioner impugned the order of Returning Officer in Election Appeal No. 17 of 2018 before learned Appellate Tribunal at Sukkur. Learned Tribunal after hearing the counsel of the parties vide order dated 25.06.2018 dismissed the appeal.Learned counsel for the petitioner filed constitution petition against respondents. Notices were issued to the other side.

4. Mr. Shakeel Ahmed G. Ansari learned counsel for the petitioner mainly contended that

petitioner disclosed all assets owned by him. As regards to undisclosed Agricultural land, 176 acres situated in District Ghotki, learned counsel for petitioner argued that petitioner purchased said land through sale deed dated 18.03.2014, while the same was gifted out by him to brother, through gift deed executed on 25.04.2014. It is further argued that explanation offered by petitioner was legally acceptable with regard to 176 acres of land. Lastly, it is argued that learned Returning Officer and Tribunal passed orders against petitioner without application of judicial mind and are liable to be set aside in the petition.

6. On the other hand, Mr. Ghulam Shabbir Dayo appearing on behalf of respondents Nos. 5 and 6 argued that appellant has willfully concealed 176 acres of agricultural land which was purchased by him through registered sale deed. It is further argued that unregistered gift deed has been subsequently prepared by the petitioner and it is forged document.It is also argued that land in question is still in the name of petitioner. Lastly argued that impugned orders passed by Returning Officer and Tribunal require no interference.

7. Learned D.A.G and counsel appearing on behalf of Election Commission of Pakistan have supported the impugned orders whereby nomination paper of the petitioner has been rejected and appeal has also been dismissed.

8. Heard learned counsel for the parties and perused the relevant record. It appears that learned Appellate Tribunal at Sukkur vide order dated 25.06.2018 dismissed appeal mainly for the following reasons.

“ I have heard arguments advanced by learned counsel and scanned the entire material and valued submissions made before me. It is the case of appellant that he has gifted out the property to his brother under an unregistered gift-deed.It is to be noted that property was purchased by appellant through sale-deed dated 18.03.2014 while the same was gifted out through the gift-deed executed on 25.04.2014. It is pertinent to mention here that registered document be equated by an unregistered documents. The record shows that the objections were filed on 13.06.2018 while gift was first time revealed on 18.06.2018. Although during this period there was Eid-holidays but sufficient time was available for managing the said gift. Being a Tribunal I can not say about anything of such gift but it can be said that gift itself dubious documents, it was filed before Returning Officer as such I am of the view that order of Returning Officer is proper, hence instant appeal is dismissed.

9. In order to appreciate the contentions of learned counsel for the parties, we are guided by the following Judgments of Honourable Supreme Court.

10. In the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shareef reported in PLD 2018 SC 1, it is held that a person when fails to disclose his own assets owned by him, his spouse or dependent in the Nomination Papers in terms of section 12 of Representative of the Peoples Act 1996,he exposes himself not only to disqualification but also prosecution for corrupt practices under Section 78 of the said Act besides any other liability prescribed by the law. Relevant portion of the Judgment is reproduced as under:

18. A bare reading of the aforesaid provisions of the Representation of the People Act, 1976 makes it clear and obvious that if a person fails to disclose any asset owned by him, his spouse or dependant in his Nomination Papers in terms of Section 12 of ROPA, he exposes himself not only to disqualification but also prosecution for corrupt practices under Section 78 of ROPA besides any other liability prescribed by the law.

19. In the aforesaid provisions reference to the source of funds for acquisition of such undisclosed assets is conspicuous by its absence, hence, wholly irrelevant. Even, if a delinquent person offers a perfect, legally acceptable explanation for the source of funds for acquisting the undeclared assets, he cannot escape the penalty of rejection of his Nomination Papers or annulment of his election. Such is the law of the land as has been repeatedly and consistently interpreted by this Court, including in the judgments, reported as (1) Muhamamd Jamil v. Munawar Khan and others (PLD 2006 SC 24), (2) Khaleefa Muhamamd Munawar Butt and another v. Hafix Muhammad Jamil Nasir and others (2008 SCMR 504), and (3) Muhammad Ahmed Chatta v. Iftikhar Ahmad Cheema and others (2016 SCMR 763).

11. In another case of Muhammad Ahmand Chatta v. Iftikhar Ahmad Cheema and others reported in 2016 SCMR 763 (Supreme Court), it is held as under:-

“9. From the perusal of record, it is established that while submitting the nomination papers, the respondent has not submitted statement regarding assets of his spouse as required under section 12 of the Act, 1976. The learned Election Tribunal, without taking into consideration this aspect of the case and while holding that respondent has not disclosed assets owned by his spouse and the account maintained by him, dismissed the election petition merely on the ground that mens rea is not proved and further the government exchequer has not suffered any loss on account of non-disclosure of these material facts. This finding of the Tribunal is against the spirit of law and as such calls for interference”.

12. We have carefully heard the arguments of learned counsel for the parties and have gone through available record.

13. In the present case wehave come to the conclusion that learned Returning Officer by assigning sound reasons rejected the nomination form mainly for the reasons that petitioner purchased 176 acres of land situatedin deh Satiyaro Chak No.1, (Lass) alias Murad Waro Patt, Tapo Kundalo Taluka Khangarh District Ghotki. Petitioner had not disclosed purchase of 176 acres land in nomination paper as well as in the affidavit, it was requirement of law.Petitioner offered explanation after filing of objections that he purchased land through sale deed dated 18.03.2014 while the same has been gifted out by him to his brother on 25.04.2014 through unregistered gift deed. In our considered view, explanation furnished by petitioner is not legally acceptable for the reasons that purchase of 176 acres of land was concealed by petitioner in From ‘B’ and affidavit. Returning Officer, on non-disclosure of above land, for the sound reasons rejected nomination paper of the petitioner. Tribunal agreed with the finding of Returning Officer and dismissed appeal.

14. In the view of above stated facts and circumstances we have come to the conclusion that learned Returning Officer rightly rejected the nomination form of the petitioner and Tribunal by assigning the sound reasons dismissed the appeal.

15. For the aforesaid facts and reasons we are of the considered view that the petitioner has earned disqualification and ineligibility to contest election, therefore, this constitution petition is without merit and it is dismissed.

JUDGE

Irfan/PA.

Learned Appellate Tribunal while hearing the appeal found order of Returning Officer proper and cme to conclusion that gift document prepared by the petitioner appears to be dubious. Learned counsel for the petitioner reiterated more or less same arguments, advanced before Returning Officer and learned Appellate Tribunal. Learned counsel for the petitioner could not satisfy the Court that prior to filing of the nomination form, he had gifted out 176 acres of Agricultural land to his brother in the revenue record, still said land is in the name of petitioner. It is a matter of record that objections were filed on 13.06.2018 by respondents Nos. 5 and 6 before Returning Officer but gift for the first time was disclosed by the petitioner on 18.06.2018. It is clear that petitioner failed to disclose his land / asset owned by him in his nomination paper and prima facie exposed himself to disqualification.

In the case of Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shareef reported in PLD 2018 SC 1, it is held that when a person fails to disclose his own assets owned by him, his spouse or dependant in the Nomination Papers in terms of section 12 of Representative of the Peoples Act 1996,he exposes himself not only to disqualification but also prosecution for corrupt practices under Section 78 of the said Act besides any other liability prescribed by the law. Relevant portion of the Judgment is reproduced as under:

In another case of Muhammad Ahmand Chatta v. Iftikhar Ahmad Cheema and others reported in 2016 SCMR 763 (Supreme Court), it is held as under:-

In view of facts and reasons discussed above, prima facie basic ingredients for granting ad-interim injunction are not made out . Therefore, no case is made out for allowing listed / stay application,(CMA No. 6682/2018) same is dismissed. Office is directed to fix this C.P in the second week of August 2018 for hearing.