2016 PLP 2042 (SCMR)

AMIR HANI MUSLIM, J.

This Petition for leave to appeal is filed against the judgment dated 19.10.2015, whereby the Constitutional Petition filed by Respondent No.1 was allowed by the High Court of Sindh and the nomination papers filed by the Petitioner were rejected.

2. The facts necessary for the present proceedings are that the Petitioner filed nomination papers for the elections to the direct seat of District Council from the Union Council Ghano Wah, in the Sindh Local Government Elections 2015. On the date of scrutiny of the nomination papers, Respondent No. 1 filed objections before the Returning Officer, praying for the rejection of Petitioner's nomination papers, inter alia, on the ground that the Petitioner has sworn a false affidavit that reflected that no criminal case is pending against him. The objections were rejected by the Returning Officer and the Petitioner was allowed to contest the elections, against which the Respondent No.1 filed an Appeal under section 18(5) of the Sindh Local Council (Election) Rules, 2015, before the Appellate Authority, which was also dismissed by the order dated 28.9.2015. Feeling aggrieved, the Respondent No.1 filed a Constitutional Petition before the Sindh High Court against the dismissal of his Appeal, which was allowed by the impugned judgment and the nomination papers filed by the Petitioner were rejected.

3. The learned Counsel for the Petitioner has contended that mere fact that an FIR had been registered against a contesting candidate of the Local Government Elections does not put a bar on him from contesting for elections. The language of section 36(1)(f) of the Sindh Local Government Act, 2013 [hereinafter referred to as the 'Act'], would only debar a candidate from contesting the elections if he is convicted by any Court of law and that the mere pendency of criminal proceedings against a candidate would not come in the way of his right to contest in elections. He next contended that the learned High Court erred in law while rejecting the nomination papers filed by the Petitioner, on the ground that the Petitioner has concealed the fact that an FIR had been lodged against him. He submitted that the plausible explanation of the Petitioner that the criminal proceedings were pending and he was not convicted, was not considered by the learned High Court while passing the impugned judgment.

4. On the other hand, the learned Counsel for the Respondent No.1 has contended that the Petitioner has sworn a false affidavit, concealing the fact that no criminal case is pending against him, therefore, he earned a disqualification from being elected and his nomination papers were rightly rejected by the learned High Court under section 36(1)(f) the Act.

5. We have heard the learned Counsel for the parties and have perused the record with their assistance. The language of section 36(1)(f) and (g) of the Act is very clear, which states that a person shall be disqualified from being elected or chosen as and from being a member of such council if he has been convicted by a Court of competent jurisdiction for an offence involving moral turpitude or misuse of power or authority under any law, unless a period of three years has elapsed since his release.

6. The bar of disqualification contained in section 36(1)(f) or (g) (ibid) of the Act cannot be applied to the case of the Petitioner. The contention of the learned Counsel for the Respondent No.1 that the Petitioner has concealed the fact that a criminal case was pending against him, has been properly explained by the Petitioner. It is the case of the Petitioner that on 17.09.2014 an FIR was registered against him and after investigation, he was informed by the Police that his case has been disposed of in class "C". Thereafter, the Petitioner filed nomination papers with an affidavit incorporating the factum of registration of FIR against him.

7. Admittedly, even if the Petitioner has disclosed this information regarding the pendency of a criminal case in his affidavit sworn before the Returning Officer, he would not have been declared disqualified from contesting the election. In such like cases it has been held by the Courts that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest for elections. On similar facts, a case reported as Illahi Bux Soomro v. Aijaz Hussain Jakhrani (2004 CLC 1060) was dealt with by the Election Tribunal, Sindh, where the Tribunal had reached the conclusion that if the explanation given by a party is plausible, the Court should not deprive such party from contesting the election. However, if the party has willfully made a false and or incorrect statement in the affidavit sworn in with the nomination papers concealing material particulars in order to avoid disqualification, then the Tribunal would not travel deeper into the explanation, once it is established that the disclosure of such material particulars would have exposed him to disqualification. As against this if non-disclosure about pendency of a criminal case has been made, for which the Petitioner has offered a reasonably plausible explanation, then the affidavit could not be considered as a false or incorrect declaration. It is well settled that the provisions of disqualification of a candidate are to be strictly construed. In the case in hand, the disqualification of the Petitioner is not an issue. The only issue is the non-discloser of the pending criminal case in the affidavit before the Returning Officer and whether such non-disclosure would be construed as concealment of 'material particulars'. We, in the backdrop of these facts, are of the considered view that the non-disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made a ground to preclude the Petitioner from contesting the election.

8. We, for the aforesaid reasons, convert this Petition into Appeal and allow the same. The impugned order of the learned High Court is set aside and the order dated 28.09.2015 of the Appellate Authority rejecting the objections of the Respondent No.1, is restored. MWA/M-53/SC Appeal allowed.