ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR____.

Const.Petition No.D- 1304 of 2018

_________________________________________________________________ 

DATE             ORDER WITH SIGNATURE OF JUDGE ________________________________________________________________

 

1.     Forhearing of CMA 6761/2018 (S/A)

2.     For hearing of main case.

18-07-2018.

 

 

Mr.Zulifqar Ali Channa Advocate for petitioner.

Mr. Muhammad Aslam Jatoi, Assistant Attorney General.

Mr. Khuda Dino Sangi, Legal Advisor Election Commission of Pakistan, Sukkur Division.

-.-.-.-.-.-

 

                        Through the instant constitution petition, the petitioner Gohar Ali Khoso has called in question order dated 27.06.2018 passed by learned Tribunal in Election Appeal No. S-09 of 2018who vide order dated 27.06.2018 dismissed the appeal.

2.                     Notices were issued against the respondents.

3.                     Learned counsel for petitioner mainly contended that Tribunal did not allow the petitioner to change proposer and seconder and dismissed the appeal without any legal justification.

4.                     Learned counsel appearing for Election Commission of Pakistan and D.A.G supported the order of the Tribunal. It is provided in Section 60 of Elections Act 2017 that any voter of a constituency may propose or second the name of any qualified person to be a candidate for Member for that constituency. In this case proposer and seconder did not belong to the constituency from where petitioner submitted the nomination paper. Change at subsequent stage was rightly disallowed by the Tribunal while observing as under :

                        In view of the valued submissions I have gone through the relevant record. I am fully agreed with the learned Assistant Attorney that at this juncture the proposer and seconder cannot be changed as it amounts to file fresh nomination which cannot be done after expiry of date of filing of nomination form/paper. Resultantly, the instant appeal is dismissed.”

                                    For the above stated reasons petition is without merit and same is dismissed.

 

                                                                         JUDGE

 

                                                                        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:

 

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).

 

                        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”.

                       

      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.