MUHAMMAD ARSHAD vs RETURNING OFFICER and otherss
The petitioner challenged an order passed by the District Returning Officer accepting the appeal of respondents against the rejection of their nomination papers for the office of Nazim and Naib Nazim. The nomination papers had been initially rejected because one of the candidates, Ghulam Farid, was a convict in a criminal case. The District Returning Officer held that since the conviction was subject to a pending criminal appeal and the sentence had been suspended by the High Court, the candidate could not be considered a convict incurring disqualification under section 152(1) of the Punjab Local Government Ordinance, 2001. The Lahore High Court dismissed the writ petition, holding that as long as the criminal appeal is pending and the sentence is suspended, the candidate is not disqualified from contesting the election. The Court noted that an inbuilt mechanism exists under the law whereby if an elected member's conviction is ultimately maintained, the Chief Election Commissioner may remove them and disqualify them for four years. The writ petition was accordingly dismissed as devoid of force.
- Does the suspension of a sentence by an appellate court remove the disqualification of a candidate to contest local government elections under section 152(1) of the Punjab Local Government Ordinance, 2001?
- Can a person whose conviction is sub judice before an appellate court be considered a convict for the purpose of electoral disqualification?
- What is the remedy available under the Punjab Local Government Ordinance, 2001 if an elected member's conviction is upheld after winning the election?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 430, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 382, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 430, Code of Criminal Procedure 1898
- Section 152(1), Punjab Local Government Ordinance 2001
- Section 152(2)(b), Punjab Local Government Ordinance 2001
ORDER
' MUHAMMAD JEHANGIR ARSHAD, J.---The petitioner who is a candidate of Nazim from Union Council No.31 Tehsil and District Bahawalnagar, challenges the order dated 27-7-2005 passed by District Returning Officer/respondent No.1 accepting the appeal of respondents Nos.2 and 3 against the order of Returning OfilLer dated 24-7-2005 whereby Nomination Papers of respondents Nos.2 and 3 for the office of Nazim and Naib Nazim of the said Union Council were rejected on the ground that Ghulam Farid respondent No.3 candidate of Naib Nazim was a convict in case F.I.R. No.162 of 2000 under sections 302/324/148/149/ 430/114/382/ 411/109, P.P.C. The appeal of respondents Nos.2 and 3 was accepted by the learned District Returning Officer holding that as conviction of Ghulam Farid respondent was subject-matter of Criminal Appeal No.130 of 2002 and the sentence recorded by the trial Court was suspended by the Appellate Court vide order dated 15-1-2003 in Criminal Miscellaneous No.619-B of 2002, hence till final decision of the said appeal by this Court, Ghulam Farid respondent No.3 cannot be considered as a convict person to incur disqualification for contesting the election within the meaning of section 152(1) of the said Election Rules.
2. Learned counsel for the petitioner has vehemently argued that since Ghulam Farid is involved in a criminal case and was also convicted by the Court, hence, he was not qualified to contest the election and that Nomination Papers of respondents Nos.2 and 3 were rightly rejected by the Returning Officer.
3. On the other hand, Mian Muhammad Afzal Watto, Advocate has contended that in terms of section 430, Cr.P.C. It is the judgment of the appellate Court to which finality is attached and till the above said criminal appeal of the respondents remains pending before this Court, Ghulam Farid respondent could not be considered as convict so as to debar him from contesting election in terms of section 152(1) of the Punjab Local Government Ordinance, 2001. His further submission is that since the sentence of respondent Ghulam Farid stands suspended by this Court vide order dated 15-1-2003 hence there is no legal impediment in his way to contest the election and that if after he is elected as such, and his criminal appeal is dismissed and conviction is maintained he can then be disqualified by the Chief Election Commissioner in terms of section 2(b) of section 152 of the said Ordinance.
4. I have considered the arguments of learned counsel for the parties and perused the relevant record.
5. Prima facie the contentions of the learned counsel for respondents are well-founded. Since the matter of guilt or innocence of respondent Ghulam Farid is sub judice before this Court and it is the decision of this Court in terms of section 430, Cr.P.C. Which will finally determine his guilt or otherwise, hence for the time being he cannot be considered as disqualified within the meaning of section 152(1) of the above Ordinance. However, a remedy has also been provided in the above mentioned section itself whereby in case an elected member of a Local Government or holder of elective office of Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) of the said Ordinance i.e. Enumerating qualifications for candidate of elective member or holder or such office, he shall seize forthwith to be the elective member or to hold the office as such and stand disqualified from being a candidate for election of a Local Government for a period of four years. This remedy has been provided as an inbuilt mechanism for catering such-like situation. Hence, in case if respondent Ghulam Farid is elected and his appeal is subsequently dismissed maintaining his conviction and sentence, during his holding such office. He cannot only be removed from said office but also shall stand disqualified from being a candidate for election for Local Government for a period of four years.
6. For what has been discussed above, the order of the learned District Returning Officer does not suffer from any illegality or irregularity nor the same is without jurisdiction, hence this writ petition has no force and is dismissed as such.