GHULAM HUSSAIN Versus RETURNING OFFICER, ZILLA COUNCIL, BAHAWALPUR

Writ Petitions bearing No.1862 of 1998, 1906 of 1998, 1907 of 1998. 1962 of 1998, 1967 of 1998, 1881 of 1998, 1999 of 1998, 1882 of 1998, 1880 of 1998, 1855 of 1979 and 1898 entail a common question---whether nomination paper of a candidate could be rejected on the ground that although he was involved in criminal cases but hats failed to disclose this fact in the form captioned as required to be filled up in triplicate alongwith the nomination paper set out as Form III provided for under Rule 13 of the Local Council Election Rules,

All these writ petitions are being disposed of together.

1. In Writ Petition No. 1860 of 1998.

Haji Ghulam Hussain v. Returning Officer Zilla Council Bahawalpur etc.

It has been submitted that at the time of scrutiny objection was raised that the petitioner had not disclosed in column No. 16 of the sheet attached with the nomination papers that he was involved in a criminal case and had failed to disclose the same and, therefore, was not qualified within the meaning of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973, section 21(f) of the-Punjab Local Government Ordinance, 1979 and section 99(f) of the Representation of People Act, 1976. The order of rejection of nomination paper was upheld in appeal also.

2. Writ Petition No. 1906 of 1998.

Sultan Ahmed v. Assistant Commissioner/Returning Officer, Sadiqabad etc,

In this case, Sultan Ahmed (petitioner) had filed his nomination paper in respect of Ward No. 15 Municipal Committee, Sadiqabad District Rahimyar Khan. His nomination paper was rejected by the Returning Officer as he had failed to disclose in the sheet appended with the nomination form against column No. 16; that he was involved in criminal case F.I.R. No.38 of 1998. He had appealed against this order but his appeal was also dismissed by the Appellate Authority/Deputy Commissioner, Rahimyar Khan.

3. Writ Petition No. 1907 of 1998.

Faqir Bakhsh v. Assistant Commissioner/Returning Officer, Municipal Committee, Sadiqbabad etc.

Faqir Bakhsh (petitioner) had filed nomination paper from Ward No. 15, Municipal Committee Sadiq Abad. His nomination paper was rejected on the ground that in the form attached with the nomination paper against column No. 16, he had failed to disclose that he was involved in criminal cases i.e. F.I.R. No.350 of 1997 and F.I.R. No.342 of 1997. His appeal was also rejected by the Deputy Commissioner, Rahimyar Khan as Appellate Authority.

4. Writ Petition No. 1962 of 1998

Muhammad Bilal v. Deputy Commissioner/Appellate Authority Rahim Yar Khan and others ?

The petitioner has filed his nomination papers in respect of ward No. 18, Municipal Committee, Sadiqabad. His nomination paper was rejected as he had failed to disclose his involvement in case F.I.R. No.376 of 1990 in the sheet appended with the nomination paper. His appeal too dismissed by the Appellate Authority, Rahim Yar Khan.

5. Writ Petition No. 1967 of 1998.

Akhtar Riaz v. Returning Officer/Assistant Commissioner, Sadiqabad and others.

The petitioner (Akhtar Riaz) had failed to disclose in the sheet appended with the nomination paper in column No. 16 that he was involved in criminal case and his appeal too was dismissed.

6. Writ Petition No. 1881 of 1998.

Ch. Muhammad Sharif v. Appellate Authority Town Committee/A.D.C.(G), Rahim Yar Khan and others.

This is a petition by an, objection Tariq Hayat Jahangir (respondent No.2) had filed his nomination paper in respect of Ward No. 1 Hakimabad Town Committee, Liaqatpur. His nomination paper was rejected on the objection being raised that he failed to disclose that the Lahore High Court on 12-3-1996 convicted him for contempt of Court and sentenced him till rising of the Court with fine of Rs.1,000. This conviction had been upheld in appeal also by the Division Bench of this Court on 13-4-1998. He preferred an appeal against the rejection of his nomination paper before the Appellate Authority and the same was accepted on the ground that the High Court had not passed the sentence for imprisonment, therefore, he did' not suffer any disqualification under section 21 of the Punjab Local Government Ordinance, 1979. Through this petition the objector seeks that respondent No.2 be declared disqualified by virtue of section 21(d) of the Punjab Local Government Ordinance, 1979 as he had been convicted for an offence involving moral turpitude. It is argued by the learned counsel for petitioner that raison detre of section 21(d) of the Ordinance, 1979 was conviction and not imprisonment and respondent having been also sentenced till rising of the Court should be deemed to have been imprisoned. It was argued that as three years period had not elapsed, respondent was not qualified to contest the election. His nomination paper ought to be rejected.

7. Writ Petition No. 1999 of 1998.

Abdul Hameed v. Returning Officer/Assistant Commissioner, Sadiqabad District Rahimyar Khan etc.

Abdul Hameed, petitioner, had filed his nomination papers from Ward No. 10, Municipal Committee Sadiqabad District Rahim Yar Khan. His nomination paper was rejected as he was involved in two cases and had failed to disclose this fact in the form attached to the regular nomination Form-III. He did not either file any appeal before the Appellate Authority/Deputy Commissioner, Rahim Yar Khan and claimed that as order of rejection of his nomination paper was ex facie void he could directly invoke the writ jurisdiction of this Court.

8. Writ Petition No. 1882 of 1998.

Muhammad Usman v. Returning Officer/Assistant Commissioner, Liaquatpur District Rahim Yar Khan etc.

Muhammad Sharif (respondent) had filed his nomination paper for contesting the election from Ward No. 1 Town Committee, Liaquatpur District Rahim Yar Khan. His nomination paper was accepted. Muhammad Usman (objector) sezks to be challenge) the order of the Returning Officer accepting the nomination paper on the ground that in the year. 1983 the respondent (Muhammad Sharif) was involved in case under section 307/34, P.P.C. vide F. I.R No. 127 of 1983 and he failed to disclose this fact in the sheet appended with the nomination paper.

9. Writ Petition Nn.I880 of 1998.

M. Saeed Iqbal v. Returning Officer/Assistant Commissioner Town Committee, Liaquatpur District Rehimyar Khan etc.

Fazal Ahmed (respondent) had filed his nomination papers from Ward No.7, Islam Nagar Town Committee, Liaquatpur District Rahimyar Khan. His nomination paper was accepted. The writ petition has been filed by M. Saeed Iqbal, the contesting candidate seeking that the order of acceptance of the nomination paper by the Returning Officer be set aside, as Fazal Ahmed (respondent) was involved in criminal case registered under section 427/186/189 P.P.C. dated 27-6-1983 and he had concealed this fact while filing his nomination paper and had thus, disqualified himself.

10. Writ Petition No. 1855 of 1998.

Nazir Hussain v. Returning Officer and others Syed Zamured, Hussain Bokhari (respondent No. 2) had filed nomination paper and in the column No. 16 of the form captioned as he had failed to disclose his involement in case F.I.R. No. 166 of 1994 and F. I. R. No. 167 of 1994. At the time of scrutiny objection was raised that he having failed to disclose the case in column No. 16, rendered him disqualified in view of the provisions of section 21 of the Punjab Local Government Ordinance, 1979. The Returning Officer, however, accepted the nomination paper holding that such concealment did not fall under any of the disqualification referred to in section 21 of the Local Council Ordinance, 1979

The objector (Nazir Hussain) as such preferred writ petition challenging the order dated 24-4-1998 accepting of the nomination paper.

11. Writ Petition No. 1879 of 1998.

Arshad Ali v. Returning Officer

In this case Muhammad Ashraf and Muhammad Arshad (respondents Nos.2 and 3) had filed their nomination papers for Ward No.9, Town Committee, Liaquatpur District Rahimyar Khan. Their nomination papers were accepted. Arshad Ali (petitioner) has challenged the acceptance of nomination papers on the ground that there were two cases registered against Muhammad Arshaf (respondent) under section 379/506. P.P.C. of 1994, but he had failed to disclose in the sheet captioned as and as such was disqualified.

12. At the very out set, objection was raised by the learned A.A.-G and the learned counsel for the respondents that the writ petitions were not maintainable as the petitioners had not availed the alternate remedy available to them before the Election Authority under section 17 of the Punjab Local Government Ordinance, 1979. Relying on Ahmed Saeed Kirmani v. Muhammad Nawaz Cheema (PLD 1966 (W.P.) Lahore 88), it is argued that the right to contest an election was not a Common Law Right. It was rather creation of statute. And not being an ordinary civil right or common law right it could be enforced only within the frame work of the law that had created it. Section 17 of the Ordinance, it was urged, provided adequate remedy to the petitioners in respect of their grievances, they should have invoked the jurisdiction of the Election Authority under the aforesaid provision rather than filing petition in this Court. Election Authority is vested with vast powers to redress grievances forming subject-matter of these petitions. Section 17 provides that:-

"The Election Authority may issue such instructions and exercise such powers including the power to review an order passed by an officer under the Ordinance or the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."

Reference was also made to Emmanual Mashih v. The Punjab Local Councils Election Authority and others (1985 SCMR 729) wherein after rejection of nomination paper by the Returning Officer, the candidate had failed even before the Appellate Authority. He then be approached the Election Authority which set aside both the orders of the Returning Officer and Appellate Authority and ordered acceptance of the nomination paper. The Supreme Court upheld the intervention of the Election Authority. Learned A.A.-G. also relied on Khaliq Dad Khan v. Chairman, Punjab Election Authority Lahore and another (PLD 1992 Lahore 434) wherein it was held that the Election Authority was competent to adjudicate upon the issue of rejection or otherwise of nomination papers under section 17 of the Ordinance, 1979. It was thus urged that when Election Authority was there to provide an efficacious and adequate remedy there was no occasion to entertain a writ petition on such issues. Reference was also made to Ahmed Khan v. Punjab Local Council Election Authority and others (1981 SCMR 1250) to canvas the vastness of the scope of the Election Authority in the matter of disputes relating to acceptance or rejection of a nomination paper.

13. The learned counsel for the petitioners, on the other hand, submitted that the election was scheduled to be held on 20th of May, 1998 only a week from today and as such it would not be proper to say at this stage, that the petitioners had an efficacious alternate remedy of making motion to the Election Authority under section 17 of the Punjab Local Ordinance. Reliance was placed on Mehboob Ali Malik v. The Province of West Pakistan and The Lahore Municipal Corporation (PLD 1963 (W.P.) Lahore 575) where Full Bench of this Court determined the scope and extent of adequacy of alternate remedy and laid down the tests for regulating the same i.e. adequacy of the alternate remedy has to be judged by comparison in speed, expense and convenience of the parties before the alternate forum as compared to the Constitutional jurisdiction of this Court. In view of the above test laid down by the Full Bench of this Court, it was submitted that these matters ought to be decided by this Court, rather than refer the parties to the Election Authority, largely so when the election is to take place only in a weeks time. Reference was made to Pervez Iqbal and 2 others v. Provincial Transport Authority, Sindh and another (1996 CLC 182) wherein it was held that:

"Where alternate remedy was not equally efficacious or speedy or where order impugned on the face of it, was patently illegal or without lawful authority or suffered from such legal infirmity which was patent on the very face of the impugned order, Court, may, in spite of existence of alternate remedy, exercise its jurisdiction under Article 199 of the Constitution and grant relief to aggrieved party."

It was further argued that although the Election Authority is vested with power to examine such orders as are in issue before this Court, all the same section 17 of the Ordinance, 1979 did not vest a right in the petitioners to approach the Election Authority. It is discretionary with the Election Authority to interfere or not.

In such a situation, I feel failure on the part of the petitioners to invoke the jurisdiction of election authority would not disentitle them from filing the election petition.

14. The learned counsel for the petitioners, further argued that a candidate was required by tote Returning Officer to o file form captioned as a duly filled alongwith the nomination papers in the pattern of Form II. It is submitted that this form relating to particulars of a candidate has no legal sanctity behind it and as such failure to fill up the same correctly could not effect adversely on the nomination at the time of scrutiny. Reliance was placed on Rule 13 of the Punjab Local Councils (Election) Rules, 1979. According to rule 13(1) any voter of an electoral unit may propose the name of any person duly qualified to be a member for that electoral unit. The format of Nomination paper is spelt out in Rule 13 (2) of the Local Councils (Election) Rules, 1979, which reads as under:--

13(2) Every proposal shall be made by a separate nomination paper, in Form-III which shall be signed by the proposer and shall contain:

(a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; and

(b) a declaration signed by the proposer that he had not subscribed to any other nomination paper as proposer.

Form-III referred to in rule 13 is appended to the rules. The sheer captioned as does not figure in the frame-work of Rule 13 or Form-III attached to the rules. It was, therefore, contended that as the Returning Officer was not entitled to seek for particulars beyond the scope of Form-III. Nothing, therefore, turned on information revealed or concealed in the said additional form.

It was further argued that although a candidate was required to disclose his involvement in any criminal case yet mere involvement in a case or F.I.R. did not constitute disqualification. Reference was made to section 21 of the Punjab Local Government Ordinance, 1979 and it was submitted that it was no where provided that merely being accused in a case F.I.R. was a disqualification.

15. The learned counsel for the objectors, on the other hand, submitted that section 21(f) of the Punjab Local Government Ordinance, 1979 provided that a person shall be disqualified to be a member, if for the time being, he was not disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force. It was argued that where a person fails to disclose a fact which he is required to disclose especially whether he is involved in a criminal case or not. He ceases to be a truthful person and hit by mischief of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 as well as section 99(f) of the Representation People Act, 1976. In aid of this submission reference was also made to Full Bench decision in Writ Petition 23121 of 1996 wherein this Court directed the Election Commissioner of Pakistan and all other functionaries acting under it to give full effect to Articles 62 and 63 of the Constitution while determining the eligibility of the candidates to contest the forthcoming elections. These provisions, it was observed, should be implemented by the Authorities in letter and spirit.

16. I have considered the arguments of both sides at length. As far as the objection to the maintainability of these petitions is concerned, Election Authority, no doubt, has the power to examine the orders rejecting or accepting the nomination papers. I feel that when the Election is going to be held in a e week's time, it would be apt that the controversies be settled in writ jurisdiction, largely so when no factual dispute is in issue. Moreover, the only question which requires to be answered is whether non-disclosure of information about a candidate being involved in a criminal case would operate as a disqualification?

In the cases in hand the Returning Officer has rejected the nomination paper on the sole ground that in column No. 16 of the sheet captioned as a candidate was required to disclose whether he had been ever involved in a criminal case, and failure to disclose amounted to non compliance with the requirement of nomination papers. Non-furnishing of information has also been construed as an act which renders a candidate disqualified in terms of Article 62 of the Constitution.

17. I am afraid, such an inference is both unwarranted and uncalled for. In the first place there was no legal sanction behind issuance of the paper captioned. This is not a part of nomination paper within the meaning of rule 13 of the Ordinance, 1979. As such any information withheld in this sheet would not amount to withholding of information relateable to nomination papers and, thus, bore no consequence. Moreover, mere involvement in an F.I.R. any way cannot form basis of passing judgment on character of a person, Qualification/disqualification referred to Articles 62 and 63 of the Constitution of-Islamic Republic of Pakistan, 1973 cannot be proven or dis-proven by reference to an F.I.R. alone.

In these circumstances, I think that the nomination papers of the petitioners have been illegally and unlawfully rejected by the Returning Officer on the ground that a candidate had filed to disclose his involvement in a criminal case in the column provided on the above captioned as Resultantly, Writ Petitions being Nos. 1862 of 1998, 1906 of 1998, 1907 of 1998, 1962 of 1998, 1967 of 1998, 1999 of 1998, and 1881 of 1998 are accepted, and the impugned orders are set aside. The petitioners nomination papers are ordered to be accepted and the Returning Officer is directed to enlist them in the list of candidates and issue them symbols. Writ Petition No. 1881 of 1998 is accepted. The order of the Appellate Authority in favour of respondent No.2 is set aside. Having been sentenced till rising of the Court, he is held to suffer from disqualification of having been convicted and sentenced for an I offence entailing moral turpitude.

However, for reasons given above, Writ Petitions Nos. 1880 of 1998, 1882 of 1998, 1879 of 1998 and 1855 of 1998 are dismissed. Parties to- bear their own costs.

M.B.A./G-93/L Petition dismissed.