Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

C. P. No. D – 1303 of 2018

 

                                                                    Before :

                                                                                    Mr. Justice NaimatullahPhulpoto

                                                                                    Mr. Justice Shamsuddin Abbasi

 

 

Petitioner         :               MianRafique Ahmed,

through Mr. GhulamShabirDayoAdvocate.

 

Respondent No.5:            Khalid Ahmed Khan Lund,

through Mr.Sarfraz Ali MetloAdvocate.

 

Respondent No.1:            through Mr. Muhammad AslamJatoi, Assistant Attorney General.

 

Respondent No.2:            through Mr. Khuda Dino Sangi Advocate.

 

Date of hearing :              18.07.2018.

 

 

J U D G M E N T

 

NAIMATULLAHPHULPOTO, J. :Through instant Constitutional Petition, petitioner MianRafique Ahmed has called in question order dated 26.06.2018 passed by learned Election Tribunal at Sukkur whereby appeal filed by the petitioner was dismissed.

 

2.         Notices were issued against the respondents as well as learned DAG.

 

3.         Brief facts leading to the filing of the petition are that petitioner is voter of constituency NA-204 Ghotki-1. Respondent No.5 had submitted nomination paper on 08.06.2018 for contesting the General Election 2018 for NA-204 Ghotki-1 before Returning Officer. It is stated that on 13.06.2018 petitioner filed objections to the nomination paper of the respondent No.5. Learned Returning Officer after hearing the learned counsel for the parties and close scrutiny of the nomination paper accepted the nomination paper vide order dated 13.06.2018.

 

4.         Thereafter, MianRafique Ahmed filed Election Appeal No.69/2018 which was dismissed by learned Election Tribunal vide order dated 26.06.2018. The petitioner has further mentioned in the petition that a criminal case bearing No.80/2013 under Sections 324, 353 PPC and 7 ATA, 1997 was registered against respondent Khalid Ahmed Khan and others at Police Station Ubauroduring last Elections. It is further stated that respondent No.5 did not disclose the income of the Agricultural land knowingly. Mr. GhulamShabirDayo, learned counsel for the petitioner has filed statement that respondent No.5 owns four vehicles and details whereof have not been disclosed by him. Lastly, submitted that order of Tribunal is not sustainable under the law and requires interference by this Court.

 

5.         Mr. Sarfraz Ali Metlo,learned counsel for the respondent No.5Khalid Ahmed Khan Lund argued that he has disclosed all the assets in his nomination paper.He has submitted that objections were not filed against nomination paper of respondent No.5 and three (03) vehicles have already been sold by him. Mr. Maitlo placed on record copies of T.O. Forms of vehicles. It is also pointed out that respondent No.5 has already been acquitted in a criminal case. Lastly, argued that election process cannot be interfered with by invoking constitutional jurisdiction of this Court. In support of his contentions reliance has been placed upon the case of Ghulam Mustafa Jatoi V/S Additional Sessions Judge, 1994 SCMR 1299 and Election Commission of Pakistan V/S JavaidHashmi& others, PLD 1989 SC 396.

 

6.         Learned DAG as well as learned counsel appearing on behalf of Election Commission of Pakistan have supported the impugned order.

 

7.         We have carefully heard the learned counsel for the parties and perused the orderpassed by Returning Officer dated 13.06.2018and the order passed by learned Election Tribunal dated 26.06.2018. Relevant portion of the order of learned Election Tribunal is reproduced as under:

 

“It is a factual position that the alleged objections appear at page 29 of the file after acceptance of nomination form as per order of the learned Returning Officer. Besides the objections contain no objections at all and only the plea that was taken in objection that candidate is required to produce valid proof of documents. Since the appellant has not filed objections well in time before the learned Returning Officer; therefore, he may not be termed as objector as per provisions of Section 62, Subsection (i) of the Election Act, 2017, as such instant appeal is dismissed along with listed applications.”

 

8.         Contention of learned counsel for the petitioner that respondent No.5 has not disclosed the income of the agricultural land and details of the vehicles owned by him. It may be mentioned here that petitioner had not filed objections within time before the Returning Officer as required by law. Petitioner had also failed to satisfy the Election Tribunal with regard to substance in the objections. Same contentions are raised before this Court which were raised before learned Election Tribunal. Nothing substantial has been brought on record to disqualify the respondent No.5 from contesting the General Elections 2018.

 

9.         It may be mentioned here that attributing dishonesty to every omission to disclose an asset should not be made as a rule set in stone and applied to disqualify a member on the touchstone of Section 99(1)(f) of RoPA or Article 62(1)(f) of the Constitution. This Court cannot close its eyes to an omission which on the face of it could not be said to be dishonest. In the present case, learned counsel for the petitioner could not point out non-disclosure of the assets. Hon'ble Supreme Court in the case of Muhammad Hanif Abbasi V/S Imran Khan Niazi, PLD 2018 SC 189 has laid down the following principle:-

 

“10.     In our jurisprudence, like in any other, one common penalty is never imposed for all kinds of dishonest acts, what to speak of imposing penalty for a dishonest act as well as for an omission made on account of negligence or bad judgment. Attributing dishonesty to every omission to disclose an asset should not be made a rule set in stone and applied to disqualify a member on the touchstone of Section 99(1)(f) of RoPA or Article 62(1)(f) of the Constitution. The courts should not close its eyes to an omission which on the face of it could not be said to be dishonest. It would turn Sections 12(2)(f) and 42A of RoPA into the sword of Damocles hanging over the heads of the members of the National Assembly and the Provincial Assemblies, embroiling many of them in frivolous litigation even with regard to assets acquired prior to assuming the responsibilities of their office or acquired with clean money. Where an asset is acquired by a member or his spouse or any of his dependents after becoming a member and it surfaces through any source, which he has failed to disclose, the member in quo warranto proceedings can be called to explain the means of its acquisition. If he is unable to extend a judicially acceptable explanation, only then such nondisclosure would be regarded as a failure to pass the test of honestly as envisaged under Section 99(1)(f) of RoPA read with Article 62(1)(f) of the Constitution. Apart from being declared disqualified from holding his office, the member will also face charges for possessing wealth beyond his known sources of income. Thus concealment of an asset from the public eye that was acquired after entering upon office, for which the member is unable to give a judicially acceptable explanation, is to be treated as an act of concealment with dishonest intentions. This is the difference in attributing dishonesty with regard to an omission to disclose an asset acquired before and after becoming a member of the National Assembly or a Provincial Assembly.”

 

10.       In our considered view, learned Tribunal has already considered the submissions made by the petitioner minutely and found without any substance. Learned Tribunal in the order dated 26.06.2018 has clearly mentioned that objections were not filed before the Returning Officer within time. Learned DAG as well as learned counsel appearing on behalf of Election Commission of Pakistan have also supported the orders of the Tribunal. As regards the contention of Mr. Dayo that Khalid Ahmed Khan Lund owned three more vehicles and there was no mention of these vehicles in the nomination paper. It may be mentioned here that petitioner did not raise objection of purchase of three more vehicles before Returning Officer as well as Tribunal. In spite of that learned counsel for the respondent No.5 has placed on record copies of the TO Forms and argued that respondent No.5 has already sold three vehicles. Factual controversies cannot be resolved in Constitutional Petition.

 

11.       Learned counsel for the respondent No.5 has also relied upon the judgment of this Court in the case of KhudaBuxNizamani V/S Election Tribunal, 2003 MLD 607 wherein it was held as under:

 

“20.     Learned Attorney General further argued that it might not be appropriate to exercise discretionary jurisdiction under Article 199 on the ground that there were allegations as to the petitioner being a bank defaulter which were disposed of by the Returning Officer in a cursory manner and were not considered by the learned Tribunal. We agree to the extent that such allegationscould have been scrutinized more appropriately and the learned Tribunal could possibly issue a show-cause notice requiring him to explain the same. Nevertheless, we cannot assume the jurisdiction of the Tribunal and it would be entirely unwarranted to debar him from contesting elections in the absence of sufficient proof as to his being disqualified. Even otherwise the law regarding disqualification of the candidate ought to be strictly construed. In any event if he is elected and his nomination is found to e invalid the same could always be assailed by way of an election petition under Section 68(a) of the Representation of the Peoples Act. For the foregoing reasons we allowed this petition in terms of the short order passed on 16.09.2002.”

 

12.       Nothing substantial against respondent No.5 regarding concealment of the assets has been brought on record.It may be observed here that process for General Elections, 2018 is in progress, under Article 225 of the Constitution, this Court cannot interfere in the election process without any legal justification, as held by Hon'ble Supreme Court in the case of Ghulam Mustafa Jatoi V/S Additional Sessions Judge, 1994 SCMR 1299 and Election Commission of Pakistan V/S JavaidHashmi& others, PLD 1989 SC 396.

 

13.       For the aforesaid facts and reasons, we have come to the conclusion that finding of Tribunal requires no interference. This Constitutional Petition is without merit and same is dismissed along with listed application.

 

 

                        __________________

                        J U D G E

 

                                             __________________

           J U D G E

N.M.