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Petitioner: ILLAHI BUX SOOMRO VS Respondent: AIJAZ HUSSAIN JAKHRANI and 7 others
Court Name: Election Tribunal Judge(s): Amir Hani Muslim Title: ILLAHI BUX SOOMRO vs AIJAZ HUSSAIN JAKHRANI and 7 others Case No.: ElectionPetition No,92 of 2002 Date of Judgment:2003-11-15 Reported As: 2004 CLC 1060 Result: Election petition dismissed
JUDGMENT
JUDGMENT ' Through this election petition, petitioner has challenged the election of the respondent No,1 for the National Assembly from NA-208 Jacobabad-I. 2. The facts as it appear from the pleadings of the parties are that the petitioner filed objections to the nomination papers of the respondent No,1 before the Returning Officer, NA-208, Jacobabad-I, challenging the eligibility of the respondent No,1 to contest the said elections on the ground of false/incorrect declaration of the liabilities of his spouse in terms of section 12(2)(f) of the Representation of People Act, 1976 (hereinafter referred to as "the Act"). 3. According to the petitioner, the respondent No,1 has given false/incorrect declaration in his nomination paper that neither he nor his spouse was defaulter for a loan amount of Rs,2 million and also gave a false declaration under the heading "Statement of Assets and Liabilities" that neither he nor his spouse has any debts or liabilities. 4. It was further pleaded in the petition that the respondent No,1 deliberately misdeclared in the "Statement of Assets and Liabilities" of his nomination and failed to mention in the said nomination paper that the Banking Court No,1, Larkana, in Suit No,1400 of 1997 had passed a decree against his wife Mst. Afroz Bibi and others for a sum of Rs,9,323,350 with mark-up. It was further pleaded that the learned Banking Court No,I had ordered execution of the decree, inter alia, against the spouse of the respondent No,1 being Execution Application No,72 of 2002 on 18-3-2002 for the recovery of the decretal amount of Rs,10,254,286. 5. It was further pleaded in the petition that the respondent No,1 has wilfully misdeclared and or concealed the fact that on 18-9-2001 the Banking Court No,II, Larkana, in Suit No,7 of 2001 had
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passed a decree against the spouse of the respondent No,1, Mst. Afroz Bibi, for an amount of Rs,7,979,527.43 with mark-up and cost of Rs,17,492. 6. According to the petitioner, the respondent No,1 while making the aforesaid false declaration in the nomination paper had violated the provisions of Article 62 which attract disqualification under Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973, and, therefore, was liable to be declared disqualified for violating the mandatory provisions of section 12(2)(f) of the Act. 7. The objections to the nomination paper against the respondent No,1 were overruled by the learned Returning Officer on 31-8-2002 holding therein that the loan taken by the spouse of respondent No,1 was prior to her marriage with the respondent No,1 and the respondent No,1 was not defaulter. Therefore, according to the learned Returning Officer, there was no misdeclaration made by the respondent No,1. The petitioner preferred appeal against the order of the learned Returning Officer, which, too, was dismissed on 13-9-2002. 8. The petitioner filed present election petition in which he has pleaded that it further transpired that the respondent No,1, in addition to the aforesaid ground which qualifies to be false declaration by the respondent No,1, had further failed to declare in his nomination paper his personal liability, in the nature of mortgage for a sum of Rs,5,00,000 with Messrs Habib Bank Limited of a residential house jointly owned in Jacobabad. The petitioner has prayed that the wilful misdeclaration and of non-declaration of the aforesaid properties attracts thee penalty provided under sections 14(3)(c) and 12(2)(f) of the Act and, therefore, the nomination of the respondent No,1 be declared void. The petitioner claims to have secured highest number of votes after the respondent No,1 be declared duly elected from the constituency of the NA-208, Jacobabad-I. 9. Except the respondent No,1, the other respondents though served neither filed their written statements nor did they make appearance and were declared ex parte by order of this Tribunal, dated 13-12-2002. 10. The respondent No,1 filed his written statement disputing and denying the various averments made in the petition. The respondent No,1 has also filed amended written statement with the permission of this Tribunal. 11. On 20-11-2003, following consent issues were framed:-- (1) Whether the decision of the Election Tribunal is constructive resjudicata, if so, what effect? (2) Whether the grounds urged in the present petition fall within the purview of section 68 of the Representation of the People Act, 1976? (3) Whether the rejection of the objections in respect of non disclosure of alleged debts as mentioned in the petition by the Returning Officer and not calling upon the respondent No,1 to correct and/or rectify such omission would cure the defect, if any, in the Nomination Form and Would not subsequently, render such Form void or creating any disqualification in the respondent No,1 to contest the election? (4) Whether the debts alleged in the petition were the personal debts/liabilities of the respondent No,1 and/or the personal loans/liabilities of his spouse? If so, whether the disclosure of such. Liabilities in the Nomination Form was a mandatory requirement rendering Nomination Form void for noncompliance of such requirement? (5) What should the order be?" 12. The petitioner (P.W.1) examined himself as Exhibit-1 and produced his affidavit-in-evidence as Exhibit-2. Election petition as Exhibit-3, Notification, dated 20-10-2002 issued by the Election Commission of Pakistan declaring the respondent No,1 as the "Returned Candidate" Exhibit-4, copy of the nomination form of the respondent No,1 as Exhibit-5, certified copy of the decree in Suit No,1400 of 1997 passed by the Banking Court No,I, Larkana, as Exhibit-6 showing Mst. Afroze Bibi as one of the defendants, certified copy of judgment of Banking Court No,I, Larkana in Suit No,1400 of 1997 showing Mst. Afroze Bibi as one of the defendants as Exhibit-7. Certified copy of the Execution
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Application filed by the decree-holder in Suit No,1400 of 1997, before the Banking Court No], Larkana. As Exhibit-8, certified copy of the judgment passed by the Banking Court No,II, Larkana in Suit No,7 of 2001 showing Mst. Afroze Bibi as one of the defendants as Exhibit-9, certified copy of the order of the Returning Officer overruling the objections of the petitioner on the nomination paper of respondent No,1, as Exhibit-10, certified copy of the order, dated 17-9-2002 passed in appeal by the Election Tribunal of Sindh dismissing the appeal of the petitioner as Exhibit-11. Certified copy of the extract of the property register as Exhibit-12, copy of the letter addressed by the Manager Habib Bank Limited to the Returning Officer as Exhibit-13, copy of the objections of the petitioner's counsel to the nomination paper of respondent No,1 as Exhibit-14 and copy of the objection filed by the petitioner against the acceptance of nomination paper of respondent No,1 as Exhibit-15. The petitioner also examined two other witnesses, namely, Rafiuddin Junejo. Senior Vice-President of Habib Bank Limited (P.W.2) as Exhibit-16. Who appeared and produced certified copies of the record pertaining to the Suit No,1400 of 1997 of the Banking Court No,II, Larkana, as Exhibit-17. Photo copy of mortgage deed in respect of the property situated on Survey No,2/308/2-A, Jacobabad, as Exhibit-18 and Haider Ali Khan (P.W.3) Exhibit-19, who appeared and produced the record of the Suit No,7 of 2001 of Banking Court No,II, Larkana, as Exhibit-20. 13. As against this the respondent No,1 examined himself as (R.W.1) Exhibit-21 and produced his written statement as Exhibit-22, copy of the order, dated 15-4-2002 passed in Suit No,7 of 2001 of Banking Court No,II, Larkana, as Exhibit-23, counterobjections of the respondent No,1 before the Returning Officer as Exhibit-24, copy of the plaint in Suit No,307 of 1998 filed before the High Court of Sindh at Karachi as Exhibit-25, "Faisala", dated 20-102000 as Exhibit-26, acceptance of "Faisala" dated 30-10-2000 as Exhibit-27, amended written statement as Exhibit-28 and his affidavit- inevidence as Exhibit-29. The respondent No,1 also examined his father Ahmed Nawaz (R.W.2) Exhibit-30 who produced his affidavit-in-evidence as Exhibit-31. 14. Mr. Munir A. Malik, learned counsel for the petitioner at the outset has submitted that he is not relying upon section 12(2)(c) of the Act under which a candidate was required to give a declaration at the time of filing of nomination to the effect that no loan for an amount of Rs,2 million or more was obtained from any bank, financial institutions or cooperative society either by the candidate in his own name or in the name of his spouse or any of his dependent nor any business mainly owned by him or the aforesaid loan stands unpaid for more than one year from the due date. Mr. Munir A. Malik, submitted that for the purpose of present proceedings he relies upon the sub-clause (f) of subsection (2) of section 12 of the Act. According to him the respondent No,1 has not made a declaration in regard to the fact that his spouse Mst. Afroze Bibi was liable to pay a sum of Rs,5,308,152 to the Habib Bank Limited pursuant to the decree, dated 25-5-1998 in Suit No,1400 of 1997 filed by Habib Bank Limited, Quaid-e-Azam Road Branch, Larkana. He submitted that the respondent No,1 did not mention in his nomination paper this liability of his spouse though her liability was "adjudged liability" and, therefore, the respondent No,1 has submitted a false declaration in his nomination paper, which attracts the provision of section 14(3)(c) of the Act. In this regard, Mr. Munir A. Malik, has argued that there were two decrees against the spouse of the respondent No, 1. First decree was that of Habib Bank Limited, Quaid-e-Azam Road Branch, Larkana. In Suit No,1400 of 1997, which decree was against the spouse of respondent No,1, namely, Mst. Afroze Bibi and four others. In terms of this decree the spouse and the other defendants in the said suit were jointly and severally liable to pay a sum of Rs,5,308.152 with costs and an amount for cushion period of 210 days upto 30-6-1996 with markup from the date of suit till realization to the Habib Bank Limited. He submitted that an Execution Application No,72 of 2000 was also filed before the Banking Court No,I, Larkana, which application was produced in evidence as Exhibit-8 in which an amount of Rs,10,254,286 has been claimed as decretal amount against the spouse of the respondent No,1 and four others. The suit filed by Habib Bank Limited is Exhibit-6 and the judgment
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is Exhibit-7. According to Mr. Munir A. Malik no appeal was preferred against this decretal amount nor any material has been produced by the respondent No,1, which could reflect that the decree against his spouse.And others was either suspended or set aside. 15. It was further argued by Mr. Munir A. Malik that there was another judgment in Suit No,7 of 2001 of the Banking Court No,II, Larkana. These proceedings were filed by the I.D.B.P. Against seven defendants including the spouse of the respondent No,1 and was decreed for an amount of Rs,19,79,527.43 on 19-9-2001. He, however, submits that since this decree was set aside he does not press this decree as the grounds for misdeclaration in these proceedings for the purposes of section 12(2)(f). 16. Mr. Munir A. Malik has submitted that the decree in Suit No,1400 of 1997 was a liability adjudged by the competent Court of law and the respondent No,1, in law, was required to have mentioned such liability of his spouse in the column of Assets and Liability in his nomination paper as the liability of his spouse. According to the learned counsel non-mentioning of this adjudged liability brings the case within the ambit of false/incorrect declaration under section 14(3)(c) of the Act. 17. The second leg of arguments of Mr. Munir A. Malik was that the respondent No,1 has failed to declare in his nomination paper that he was co-owner in the joint property No,2/308/2A, Ward No,2, Jacobabad. He submitted that this property was mortgaged with Habib Bank Limited which liability was also not mentioned in the column of liability by the respondent No, 1 . He, however, submits that he would not be pressing the issue of liability of the respondent No,1 in regard to the aforesaid property but states that non-disclosure of the said property as an asset of the respondent No,1 was clearly violative of section 12(2)(f) of the Act and, therefore, falls within the ambit of section 14(3)(c) of the Act which speaks of false declaration and or incorrect declaration. He submitted that Exhibit- 12 is the extract of the said property which reflects the name of respondent No,1 as one of the co- owners. 18. Mr. Munir A. Malik submitted that the defence of the respondent No,1 in these proceedings is that the Suit No,1400 of 1997 filed by Habib Bank Limited pertains to the loan advanced to Messrs Jakhrani Roller Flour Mills Limited, which loan was neither taken by the respondent No,1 nor by his spouse Mst. Afroze Bibi. Mr. Munir Malik submits that the defence set up was that of section 12(2)(c) while such liability has neither been mentioned nor any explanation has been given. He submitted that the provisions of section 12(2)(c) are independent of the provisions of section 12(2)(f). According to him section 12(2)(c) relates to a bank default of a specified amount or of a specified category whereas the provisions of section 12(2)(f) require a candidate to declare all the assets and liabilities owned by him and or his spouse or his dependents. According to him even a loan from personal friend should be mentioned in the column of liability. 19. Mr. Munir A. Malik submitted that private Faisala Exhibit-26 which is produced by the respondent No,1 only reflects that an arrangement was reached by which the respondent No,1 after realizing a sum of Rs,1,00,000 as consideration alienated his interest in the joint property in favour of his younger brother. He submitted that even the arrangement of the nature would not exonerate the respondent No,1 from declaring the joint ownership of the property in question as his assets irrespective of the arrangement and liability-ought to have been shown in the column of nomination paper till such time the property was redeemed. 20. Mr. Munir A. Malik then advanced his arguments issues-wise. He submitted that the present proceedings in no way could attract the doctrine of constructive resjudicata. He submitted that there is no estoppel against statute and the proceedings before the Returning Officer under section 14 of the Act and appeal before the Appellate Forum impugning the order of the Returning Officer were of summary nature and the provisions of section 52 of the Act authorizes this Tribunal to review all such orders of the authorities passed in exercise of power under section 14 of the Act. According to him, the scope of section 52 of the Act is wide enough to cover any pre or post-
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election dispute. He submitted that the findings of the Returning Officer affirmed by the appellate forum under section 14 of the Act could not come in the way of the petitioner estopping him to challenge the elections of respondent No,1 in these proceedings on such grounds. Additionally, he submitted that even as an alternate argument, the issues of joint ownership of the property mentioned hereinabove and its non-declaration in the assets of the respondent No,1 in his nomination paper were never raised either before the Returning Officer or in appeal and, therefore, on that score alone the doctrine of constructive resjudicata would not apply. In this respect, Mr. Munir Malik has relied upon an unreported judgment in the case of Pir Syed Bachal Shah v. Syed Sadruddin Shah and others passed in Constitution Petition No,D-1657 of 2002 of this Court. 21. Mr. Malik further submitted that misstatement under section 12(2)(f) in regard to assets and liability of candidate is covered by section 68(a) of the Act and such omission before the Returning Officer was incurable. Mr. Munir A. Malik submitted that in the nomination paper (Exhibit-5) the respondent No,1 has only declared assets of Rs,28 lacs without any liability and has excluded the adjudicated liability of his spouse in Suit No,1400 of 1997 besides his own liability in respect of the joint property and, therefore, the material particulars in terms of section 14(3)(c) were not declared. He submitted that the Faisala Exhibit-28, itself does not exonerate the respondent No,1 from declaring his said joint property in the column of assets. He has relied upon the case of Tariq Mahmud v. Election Tribunal, reported in PLD 2003 Lah. 169, decided by an Election Tribunal. According to him, the findings in the said case are fully attracted to the present proceedings. He submitted that the reliefs claimed by him in this petition are covered by section 69. In regard to the interpretation of phrase "material particulars" he has relied upon the case of the King v. Kylsant (Lord) reported in (1932) 1 KB 442. 22. Mr. Munir A. Malik lastly submitted that it is crystal clear that the "adjudged liability" of the spouse of the respondent No,1 has not been declared by him and, therefore, it is violative of the provisions of section 12(2)(f) of the Act, being a false/incorrect declaration and so also the respondent No,1 has failed to declare his said joint property in the column of assets, therefore, on both these two counts the respondent No,1 having made incorrect statements in the nomination paper has violated the provisions of section 12(2)(f) of the Act and, therefore, is liable to be declared as .Disqualified in terms of section 69 of the Act thus, this petition be allowed. He, however, conceded that since the disqualification of the respondent No,1 was not notorious, therefore, the relief under section 70 of the Act could not be extended to the petitioner. 23. Mr. Abdul Hafeez Lakho, learned counsel for the respondent No,1, in reply has argued that:-- (I) petitioner cannot travel beyond his pleadings made in the election petition nor can he be permitted to change the nature of the allegations; (II) petitioner has to prove each and every allegation like criminal charge and if there is any doubt arising out of the evidence, the benefit of the same has to be resolved in favour of the Returned Candidate; (III) election petition is barred by "resjudicata" in view of the decision of the Appellate Tribunal constituted. Under section 14(5) of the Act wherein the identical plea raised before ' this Tribunal was rejected. He submitted that the decision by the Appellate Tribunal under section 14(5) of the Act was binding on the parties as they are forbidden to re-agitate the same issue before this Tribunal. He submitted that section 68(a) of the Act speaks that the election of a Returned Candidate could be challenged before this Tribunal on the ground that the nomination of the Returned Candidate was invalid. Mr. Lakho submitted that this ground of invalidity of the nomination paper is not available to the petitioner to be raised in these proceedings; (IV) he further argued that the Returned Candidate did not make a false and or incorrect statement in the nomination paper in order to push through his nomination under the scrutiny process;
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(V) it was argued by Mr. Abdul Hafeez Lako that neither the Returned Candidate nor his spouse had obtained loan. According to the learned counsel the loan against the immovable property which was jointly owned by the family members including the Returned Candidate was mortgaged against the loan advanced to Messrs Jakhrani Mills; (VI) he submitted that the decree in Suit No,1400 of 1997 is a decree against the loan advanced to Messrs Jakhrani Mills and spouse of his client was a guarantor only. He submitted that in the election petition filed before this Tribunal the petitioner in paragraphs 6, 8, 12 and 14 read with the prayer clause had pleaded that the Returned Candidate has misdeclared and or misstated in the relevant column of nomination paper his liability as well as the liability of his spouse by failing to mention the fact that the Returned Candidate was guarantor of the plot jointly owned by the family members, which was mortgaged with the bank against the loan advanced to Messrs Jakhrani Mills and also not declaring the loan in the said column of asset and liability of the nomination paper by not mentioning liability of his spouse who stood guarantor for the loan advanced to Messrs Jakhrani Mills; (VII) Mr. Abdul Hafeez Lakho has argued that the contents of paragraphs 6, 8, 10 and 14 and the prayer clause in the election petition suggest that the Returned Candidate in order to evade the rigour of the penalty provided under section 12(3)(c) of the Act have not declared the liability as referred to hereinabove. He submitted that in order to unseat a Returned Candidate on the ground that he was disqualified either to contest the elections or otherwise, "mens rea" has to be proved by the party alleging disqualification. It was argued by the learned counsel for the Returned Candidate that section 12(1) speaks of nomination for elections and section 12(2)(f) speaks of the declaration which is independent act from that of filing of the Nomination Paper. Mr. Abdul Hafeez Lakho has submitted that declaration form in regard to assets and liabilities is independent of the Nomination Paper, which a candidate files, and therefore, section 68(a) of the Act would only apply to the invalidity of nomination paper. He submitted that for the aforesaid reasons the declaration in regard to assets and liabilities accompanying such Nomination Paper cannot be made a ground to seek invalidation of the nomination paper of a Returned Candidate under section 68(a) of the Act; (VIII) it was further submitted by the learned counsel for the respondent No,1 that section 14(3) of the Act requires a Returning Officer to decide the objections filed either by elector or by any person referred to in subsection (1) of section 14 by conducting summary inquiry and may reject, the Nomination Paper for the grounds mentioned thereunder. An appeal against such order preferred by an aggrieved party under section 14(5) of the Act also requires to be decided within the stipulated time in the same manner and if such appeal is not decided within the stipulated time it will deem to have been rejected; (IX) Mr. Lakho submitted that the Nomination Paper of the Returned Candidate was objected to by the petitioner, inter alia, on the ground that the respondent did not declare the liability of his spouse in the column of the assets and liabilities. The Returning Officer overruled the objection against which the petitioner preferred appeal before the Appellate Forum which appeal too was dismissed. Mr. Lakho submits that since the order passed in appeal attained finality as the petitioner admittedly did not challenge the said orders, therefore, these proceedings which are based on the identical pleas are covered by the doctrine of "constructive resjudicata". He submitted that as far as the liability of the spouse of the respondent No,1 is concerned, the Appellate Forum has already held that the guarantor of a loan could not be declared to be disqualified from contesting elections as has been held by the Honourable Supreme Court in the case of Ghulam Mustafa Jatoi v. The Additional District and Sessions Judge reported in 1994 SCMR 1299. He submitted that the order/judgment of the learned Appellate Tribunal under provisions of section 14(5) of the Act would attract the doctrine of resjudicata and, therefore, the election
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petition was liable to be dismissed. He submitted that in regard to Issue No,4 pertaining to the mortgage of the plot jointly owned by the respondent No,1 and his family members, the objection was not raised on such an issue before the Returning Officer. He, however, submitted that once the Appellate Tribunal has held that a guarantor was qualified to contest the elections irrespective of the fact that such liability has not been shown in the relevant column. The case of respondent No,1 was also covered by the finding of the Appellate Tribunal which would extend to cover this liability of the respondent No,1 on the principles of "constructive resjudicata". (X) he submitted that the immovable property (plot) was mortgaged which was a family property and the Returned Candidate owned 1/5th of the undivided share in it. He submitted that the property was mortgaged by the father of the respondent No,1 who was the attorney of all the co- owners of the family. After…
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