UMAR SAJJAD Versus NASIR MEHMOOD
ORDER
MUHAMMAD FARRUKH IRFAN KHAN, J.--- The petitioners who are joint candidates for the seats of Chairman and Vice-Chairman, U.C. No.3, Municipal Corporation, Gujrat filed objection on the nomination papers of their opposing candidates namely Nasir Mehmood and Naeem Akhtar (respondents Nos.1 and 2). The Returning Officer vide impugned order dated 17.09.2015 overruled the objections of the petitioners and accepted nomination papers of respondents Nos. 1 and 2. Against the said order, the petitioners preferred appeal before the Appellate Authority which was dismissed vide impugned judgment dated 30.09.2015. Hence, this writ petition.
2. Learned counsel for the petitioners submits that both the forums below erred in law while accepting nomination papers of respondents Nos. 1 and 2; that respondent No.1 has been convicted for different offences and sentenced for a period of seventy two months on four counts; that according to section 27(2)(i) of the Punjab Local Government Act, 2013, a candidate who has been sentenced to more than two years imprisonment, will not be considered for elections as such respondent No.1 is disqualified to contest the elections; that respondent No.1 had also attempted to contest general elections in the year 2008 and 2013 when objections were raised against him. In the first election of 2008, respondent No.1 was found by the Election Tribunal to be failing to meet the test 'Sadiq' and 'Ameen' while he could not participate in the subsequent election of 2013 as there was a finding against him by this Court. He argues that the learned Returning Officer did not advert to the objections raised by the petitioners and he without passing a speaking order accepted nomination papers of respondents Nos.1 and 2; that the learned Appellate Authority has also not appreciated the law and fact on the subject in its true perspective while dismissing appeal of the petitioners.
3. Conversely, learned counsel for respondents Nos.1 and 2 submits that the impugned order/judgment are well reasoned; that the qualification or disqualification of a candidate in the local body elections is to be determined in accordance with the provisions of the Punjab Local Government Act, 2013, that there is no provision in the said Act that a candidate must meet the criteria laid down in Articles 62 and 63 of the Constitution; that respondent No.1 has been sentenced to RI for one year and six months each on four different counts and the sentence was ordered to be run concurrently, therefore, the conviction of respondent No.1 being less than two years does not come within the ambit of provisions of section 27(2)(i) of the Act ibid; that since the sentence awarded to respondent No.1 has been suspended by this Court as such he cannot be deprived from contesting the elections on this score.
4. I have heard the arguments advanced by the learned counsel for the parties at length and gone through the record.
5. It is evident from the record that earlier respondent No.1 contested the election for the seat of PPP-III, Gujrat and was elected as Member of Provincial Assembly. However, a challenge was thrown on his election by the opposing candidate by filing election petition before this Court which was allowed vide judgment dated 03.02.2010 passed in Election Petition No.147 of 2008. This order was assailed by respondent No.1 in appeal before the Hon'ble apex Court which was dismissed vide iudgment reported as Haji Nasir Mehmood v. Mian Imran Masood (PLD 2010 Supreme Court 1089) with the following observations:-
"In such circumstances how a visionary leadership could be emerged. The matter at hand is more fundamental and involved a crucial issue of trust. Nothing good can be expected from such fakers who not only betrayed the confidence of the voters of their Constituency but cheated them in a shameless manner. How can they watch the legitimate interest of people with a dead conscience which never pricked while defrauding the nation. They deserve exemplary punishment so that such shameful instances could not be repeated. The Election Commission of Pakistan shall initiate criminal proceedings against the appellant under intimation to this Court. The appellant is further directed to return all salaries and allowances received as a Member within two weeks and in case of failure, it shall be recovered as arrears of land revenue. The criminal wastage of tax payer's money cannot be allowed. The burden to prove a valid, genuine and bona fide qualifications lies on the appellant which in this case could not be discharged."
6. In compliance with the aforesaid directions of the Hon'ble apex Court, the then Deputy Election Commissioner, Gujranwala moved a written complaint against the petitioner for registration of a criminal case and a case bearing FIR No.24 dated 31.01.2011, under sections 199/200, 471, P.P.C. and sections 72, 82, 94 of the Representation of the People Act, 1976 was registered against respondent No.1 at police station Civil Lines, Gujrat.
7. Respondent No.1 was tried by the learned Trial Court and he was convicted by the learned Trial Court vide judgment dated 10.09.2013 in the following terms:- "i. Under section 82 read with section 78 of the People Act 1976 to imprisonment for one year and six months with fine of Rs.5000/-, in default whereof to further undergo imprisonment for one month. ii. Under section 199 of P.P.C. to Rigorous imprisonment for one year and six months and fine of Rs.50,000/- in default whereof to further undergo R.I. for three months. iii. Under section 200 of P.P.C. to Rigorous imprisonment for one year ad six months, with fine of Rs.50,000/-, in default whereof to further undergo R.I. for three months. vi. Under section 471 of P.P.C. to Rigorous imprisonment for one year and six months and fine of Rs.50,000/-, in default whereof to further undergo R.I. for three months.
All the above mentioned sentences awarded to the above named convict shall run concurrently. He shall also be entitled for the benefit of section 382-B of Cr.P.C., if any."
8. Subsection 2(i) of section 27 of the Punjab Local Government Act, 2013 reads as under:-
"(2). A person shall be disqualified from being elected or chosen as, and from being, an elected member of a local government, if he
(i) has been convicted by a court of competent jurisdiction for a term not less than two years for an offence involving moral turpitude or misuse of power or authority under any law unless a period of five years has elapsed since his release."
9. Now the question for determination is whether the sentences awarded to respondent No.1 would be construed concurrently, as a whole of one year six months duration which is less than two years as urged by the learned counsel for respondent No.1 or the quantum of sentence would be considered on each count and added together to consider as the total sum of the sentences on all four counts. This question has exhaustively been dealt with by a Full Bench of this Court in case reported as Ch. Zahid Iqbal v. Returning Officer NA 162 (Sahiwal III) and 3 others (2013 CLC 1856) wherein it has been laid down as under:-
"Admittedly, the petitioner has been sentenced by a Court of Session on three different counts namely for violation of section 82 of Representation of the People Act, 1976, under sections 199 and 200 of P.P.C. Further he has been punished for a period of thirteen months on each count. Therefore, the cumulative effect of the three different convictions is that he has inter alia been sentenced to imprisonment for an aggregate period of 39 months. Although the benefit of running of the sentences concurrently has been granted to the petitioner, the same does not mean that he has not been sentenced for a period of 39 months. The concurrent running of sentence is for the purpose of calculating the actual period for which the petitioner will be held in jail, if his appeal does not succeed. However, the same has no effect on the quantum of sentence awarded by the trial Court on each count for the purpose of Article 63(1)(h) of the Constitution read with section 99(1-A)(h) of Representation of the People Act."
10. Next argument of the learned counsel for respondent No.1 is that sentence awarded to his client has been suspended by this Court as such till the decision of his appeal, respondent No.1 could not be considered as a convicted person. It is settled principle of law that a conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. Reliance is placed on case reported as Abdul Kabir v. The State (PLD 1990 Supreme Court 823), wherein it has been laid down as under:
"A conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. During the pendency of an appeal, appellate Court may suspend the sentence under section 426, Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set aside by the higher appellate Courts. Pendency of the appeal for decision does not ipso facto mean that the conviction is wiped out. The appellate Court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under section 426, Cr.P.C. but it does not mean that the conviction is erased."
11. For the reasons stated above, I am of the view that sentence awarded to respondent No.1 on the charges of moral turpitude is exceeding two years and the same is still holding field, therefore, having regard to the provisions of section 27(2)(i) of the Act ibid the said respondent is not eligible to contest the elections of the local bodies.
12. The ground urged by the learned counsel for respondent No.1 that the disqualifications specified in Articles 62 and 63 of the Constitution for a candidate to be elected as a member of Parliament or Provincial Assemblies does not find mention in section 27 of the Punjab Local Government Act, 2015, therefore, respondent No.1 cannot be declared ineligible to contest the election in hand is not tenable. Non-inclusion of entire disqualifications mandated in Articles 62 and 63 of the Constitution in the Punjab Local Government Act, is perhaps for the reason that different functions and responsibilities are to be performed by the Local Government on the one hand and the Federal and the Provincial Assemblies on the other hand. However, disqualifying conditions laid down in section 27(2)(i) of the Act reproduced supra have a very wide import. These cover the conditions of integrity and good character laid down in the aforesaid Articles. In the case of respondent No.1 the Hon'ble apex Court has already held that he is a faker who not only betrayed the confidence of voters but cheated them in a shameless manner, therefore, a person against whom such findings have been given by the Hon'ble apex Court cannot be said to be a person of integrity and good character who can be allowed to contest the elections of local bodies.
13. Both the authorities below while accepting nomination papers of respondents Nos.1 and 2 have failed to comprehend the question of law as such conclusion arrived at by them cannot be allowed to remain intact. Resultantly, this writ petition is allowed as a consequence whereof impugned orders of the Returning Officer and Appellate Authority dated 17.09.2015 and 30.09.2015 are set aside. Nomination papers of respondents No.1 & 2 filed for the joint seat of Chairman and Vice Chairman of Union Council No.3, Municipal Corporation, Gujrat are rejected.
14. Copy Dasti on payment of usual charges.
ZC/U-11/L Petition allowed.