MUHAMMAD JAMIL Versus MUNAWAR KHAN

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.-- -This petition has been filed for leave to appeal against the judgment dated 23-9-2005 passed by Peshawar High Court, Peshawar.

2. Precisely stating the facts of the case are that respondent No.1 being the candidate for the office of District Nazim, Lakki Marwat, submitted his nomination papers along with Form XIX under Rule 12(4) of the N.-W.F.P. Local Government (Conduct of Elections) Rules 2005 (hereinafter referred to as the Rules of 2005) meant for declaration of assets. On the day of scrutiny i.e. 16-9-2005, the Returning Officer obtained a fresh Form of declaration containing details of assets owned by him. The nomination papers submitted by respondent No.1 were accepted vide order dated 16-9-2005.

3. Petitioner, Muhammad Jamil Khan being a voter presented appeal before District Returning Officer which was allowed on 29-9-2005. Relevant para. therefrom is reproduced below:-

"The previous Form-19 filed with the nomination papers was considered incomplete by the Returning Officer only on the ground that the candidate/respondent had not stated the income of Bannu Sugar Mills mentioned at S.No.4 of the Form, and the position of subsequently filed Form-19 is the same. In column No.7 of the subsequently filed declaration Form-19, submitted by respondent, it is stated that

Strange enough that the Bannu Sugar Mills is a limited company governed by the Companies Ordinance, but since 1998 till 2004, as per the opinion of respondent the income and expenditure account is not recorded. It is not only against the crux of sections 230 and 233 of the Companies Ordinance, but in my humble opinion it also amounts to concealment of income and assets. Learned counsel for the petitioner/appellant during the course of arguments produced the certified copy pertaining to share of respondent at Bannu Suggar Mills, which is self-explanatory wherein respondent is shown to be the owner of 393, 517 shares, but these shares are not specifically stated in the relevant column, what to say about the annual income of the Sugar Mill.

For my above discussion, I am guided by the principles as laid down by the august Supreme Court of Pakistan in the judgment reported as 2002 SCMR Page 398, 2001 CLC p. 911, 2002 MLD p.36.

Resultantly, I have left with no option but to allow the present appeal. The nomination papers filed by Munawar Khan stands rejected.

4. Respondent preferred Constitution Petition before Peshawar High Court which has been allowed vide impugned judgment dated 23-9-2005.

5. Learned counsel for petitioner stated that:-

(i) The Returning Officer had no jurisdiction/authority to provide another opportunity to respondent to submit details of his assets after the expiry of date of filing of nomination paper.

(ii) The respondent No.1 is owner of 3,93,517 shares in Bannu Sugar Mills but no declaration was made in this behalf in declaration form submitted along with nomination papers, in as much as in second declaration form as well, details were not given by him. Although it was obligatory upon him to disclose the number of shares owned by him.

(iii) The respondent No.1 also failed to disclose net annual income from the business of Bannu Sugar Mills to the extent of his shares as per column meant for this purpose.

6. Learned counsel for respondent No.1 contended that:-

(a) The form of declaration of assets submitted by the respondent along with the nomination papers contained full description of the ownership of the petitioner in the Bannu Sugar Mills, therefore, second form of declaration of assets obtained by the Returning Officer on the day of scrutiny may be ignored. The respondent had no obligation to disclose number of shares owned by him, in the mills, in view of the fact that he has already disclosed that he is its owner.

(b) To ascertain net annual income of respondent No.1 from Sugar Mill the audit report being prepared from time to time, which can be seen by the persons who wanted to raise objections on the income of the petitioner, as such non-disclosing of annual income by respondent No.1 from Sugar Mill against his shares is not important therefore for this reason he can not to be disqualified to contest election.

7. We have heard the learned counsel for the parties carefully and have gone through the relevant provisions of Rule 12, sub-Rule 4 of the Rules 2005 according to which, a candidate contesting election is required to fill up Form XIX meant for declaration of assets of a candidate and it is to be filed along with nomination paper on or before the date fixed by the Election Commission for filing of nomination papers. Subsequent thereto, nomination papers shall be subjected to scrutiny by the Returning Officer in exercise of powers under Rule 14 of the Rules 2005. According to which a nomination paper can be rejected inter alia on the ground if compliance of Rule 12 (3)(4) has not been made. The Returning Officer is empowered to reject a nomination form on conducting summary enquiry and he had no jurisdiction to allow a candidate to submit further explanation of the assets owned by him during the process of secrutiny. It is to be observed that such concession if extended to a candidate, would tantamount to allow him an opportunity to make up deficiency if any in submitting nomination papers. Essentially such concession can not be extended to candidate after the expiry of date of filing of nomination papers, as it would mean that period of filing nomination papers along with Declaration Form No.XIX has been extended to his benefit, which is prohibited in view of following principle of Law highlighted in Bindra's (7th Edition 1984 678) Dr. Haq Nawaz v. Balochistan Public Service Commission and others (1996 CLC 58 at page 63) is reproduce herein:-

"As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within specified time and makes his rights dependent on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual is the person not complying, he has no grounds for complaint. Under statutes of procedure, failure to complete required steps within the time specified is fatal to the case."

8. Thus it is held that Returning Officer had no jurisdiction to procure fresh Declaration Form XIX from respondent No.1 therefore, for all intents and purposes it is ought to be kept out of consideration.

9. In instant case in original Declaration Form XIX submitted along with the nomination papers, respondent No.1 though had shown himself to be the owner of Bannu Sugar Mills but as for as his shares are concerned those were not disclosed at all contrary to Rule 12(4) of the Rules. It is a fact that respondent No.1 has admitted before District Returning Officer/Appellate Authority that he is owner of 3,93,517 shares in "Bannu Sugar Mills". This fact has been verified from certificate issued by the Registrar Companies. It is equally important to note that in the column meant for the value of property in respect of Bannu Sugar Mills respondent No.1 disclosed an amount of rupees 13 D crore and 39 lac approximately but without disclosing income of each year. It is interesting to note that as far as the column meant for the net yearly income is concerned, nothing was mentioned therein except the year of 1998. One, failed to understand that a person who has got a major share and is stated to be the Chief Executive of the Bannu Sugar Mill fails to disclose his annual income without any justification. Thus no other inference can be drawn except that respondent No.1 concealed his income arising from the share owned by him without any justification therefore his nomination papers were liable to be rejected under Rule 14(3)(iii) of the Rules. To substantiate the argument reference may be made to Abbas Khan and another v. Appellate Authority, District & Session Judge, Attock and others (2002 SCMR 398).

10. Thus it is held that under the circumstance the District Returning) Officer/Appellate Authority in appeal rightly intervened in the order of the Returning Officer.

11. For the foregoing reasons petition is allowed and order impugned herein is set aside as a result whereof the order of the District Returning Officer/Appellate Authority dated 20-9-2005 is restored. Election Commission of Pakistan is directed to delete the name of the respondent No.1 from the list of candidates contesting election for the office of District Nazim, Lakki Marwat.

12. Petition is converted into appeal and disposed of accordingly leaving the parties to bear their own costs.

M.B.A./M-305/S Appeal allowed.