MUHAMMAD ESSA KHAN and another Versus Dr. GOHAR IJAZ KHAN and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑ ‑---This petition calls in question judgment dated 16th April, 2003 passed by the learned Division Bench of the High Court of Balochistan, Quetta whereby Constitution Petition No.31 of 2003 filed by the respondents against the order of Election Tribunal constituted under, Balochistan Local Government (Election Rules), 2000, (hereinafter referred to as "the Rules., 2000") dated 25 th January, 2002, has been allowed.

2. Facts in brief giving rise to instant petition are that respondents contested the election for the office of Nazim and Naib Nazim respectively from the District Pishin in Local Government Elections, 2001. Petitioners were also contesting for the same positions. Polling for both the positions took place at Pishin on 2 nd August, 2001. In the first round of election, petitioners, secured 235 votes, whereas the private respondents secured 236 votes. As the parties could not secure more than 50% of votes, therefore runoff. election was directed by the Election Commission of Pakistan and in consequence thereof, the voting took place on 8th August, 2001 at Pishin. At the end of the polling, respondents (1 and 2) secured 268 votes comparing to petitioners' votes i.e. 238 as such Returning Officer vide Notification No.F1567 dated 9 th August, 2001 declared the private respondents as returned candidates for the post of District Nazim and District Naib Nazim, District Council of District, Pishin. Election of the respondents was challenged by the petitioners before the Election Tribunal mainly on the ground that respondent No.1 was disqualified to contest the election for the post of District Nazim in terms of section 14(k) of the Rules, 2000 as he stood convicted under the Provisions of NAB Ordinance, 1999 in Reference No. 3 of 2000.

3. It may be noted that allegation against respondent No.1 regarding criminal case is that to set up Pak Iran Refinery at Hub, 1200 Acres land was required to be purchased. In 1995, the officials of PERAC alongwith the Local Administration purchased the property at higher rates and made payment of crores of rupees to unauthorized persons on account of which, it is alleged that a huge loss was caused to the State exchequer. Statedly respondent No.1 Gohar Ijaz received Rs.50 lacs through Cheque No.39/DT, dated 19 th December, 1995 as petty contractor, allegedly engaged by Bella Associates for PERAC for getting vacated the land on which refinery was to be constructed. It so happened that the project for which the land was acquired could not be established and in the meantime parties locked themselves into litigation and in this context, to fix the responsibilities of the persons, who had caused loss to the public exchequer, Arbitrator was appointed and as per Arbitration Award, respondent No.1 was found liable for Rs.50 lacs to PERAC. This amount was deposited by him with the NAB Authorities during investigation, therefore, on such premises he was stated to be convicted under section 15 read with section 25(b) of the NAB Ordinance, 2000.

4. Learned Election Tribunal i.e. Additional District Judge vide judgment, dated 25 th January 2003 accepted the petition instituted by the petitioners and declared the election of respondent No. 1 as Nazim District Council Pishin, void. Respondent No. 1 challenged the said order by invoking the Constitutional jurisdiction, of the High Court, which has been allowed vide impugned judgment. As such instant petition for leave to appeal has been filed.

5. Learned counsel appearing for petitioner contended that admittedly respondent No. 1 deposited the amount of Rs.30 lacs out of Rs.50 lacs during investigation by the NAB for the purpose of discharging his liabilities, therefore, under section 15 read with section 25(b) of the NAB Ordinance, he would be deemed to have been convicted notwithstanding the fact whether for such allegation he was put to trial or not.

6. On the other hand learned counsel appearing for respondent No.1 repudiated the allegation and contended that the amount of Rs.30 lacs was deposited by respondent No.1 in pursuance of award pronounced by one S.M. Nizami (late) who was appointed as Arbitrator during the pendency of the matter between the PERAC and Bella Associates, therefore, respondent No.1 would not be deemed to be convicted in terms of section 25(b) of the NAB Ordinance, as such learned High Court after having taken into consideration the law prevailing at the time of filing of nomination papers rightly concluded that he was not disqualified to contest the election of the District Nazim of District Pishin.

7. We have heard learned counsel for the parties and have also gone through the material available on record including the statement of respondent No.1, got recorded by him before the Election Tribunal. Relevant portion therefrom for sake of convenience is reproduced hereinbelow: ‑‑

After hearing learned counsel for the parties and having gone through the relevant record so made available before us, we grant leave to appeal, inter alia, to examine as to whether respondent No.1 was disqualified to contest the election of District Nazim in view of the provisions of Rule 14(k) of the Rules, 2000 read with sections 15 and 25(b) of the NAB Ordinance because he has deposited Rs.30 lacs with the NAB Authorities, which he has obtained from PERAC as petty contractor. As respondent No.1 is holding the office of Nazim of Zila Council Pishin, therefore, office may fix the appeal arising out of this petition, before summer vacations. Appeal be prepared, on present: record, with liberty to the parties to file additional documents if need be, in support of their respective contentions.

M.B.A./M‑99/S Leave granted.