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.
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.