2013 PLP 1017 (CLC)

Through this appeal, the appellant challenges the order dated 1-11-2012 passed by respondent No.1, the Returning Officer PP-226 Sahiwal-VII rejecting the objection petition filed by the appellant and accepting the nomination papers filed by Malik Iqbal Ahmed Langria1, respondent No.2. The seat in question fell vacant on account of respondent No.2 having been declared disqualified from being a member, vide judgment dated 8-8-2012 passed by his lordship Nasir Saeed Sheikh, J. in E.P.No.142 of 2008. His election was declared illegal and void. The Bye-Election to this seat was notified by the Election Commission. The appellant and respondents Nos.2 to 17 filed the nomination papers.

2. It is contended by the learned counsel for the appellant that the appellant was previously a candidate for NA-163 Sahiwal in the year 2002. His nomination papers were accepted. In appeal, the Tribunal was pleased to hold that the degrees held by respondent No.2 were fake and forged. The Returning Officer had illegally accepted his nomination papers. The appeal was accepted and the nomination papers stood rejected. He again contested the elections to the Provincial Assembly PP-226 Sahiwal-VII held in the year 2008. With his nomination papers, he appended the certificates issued by two religious institutions that were not recognized by the Election Commission of Pakistan. The degrees were not owned by these institutions. Thus respondent No.2 repeated the same wrongful act. It is further contended by the learned counsel for the appellant that respondent No.2 having been declared not being a righteous or honest or an Ameen person by the Election Tribunal was not and is not qualified and is disqualified from being elected and from being a member of the Parliament. His nomination papers should have been rejected by the Returning Officer. Relies on the judgment dated 8-8-2012 passed by the learned Tribunal seized with the election petition and the judgment 1-10-2012 passed in Civil Appeals Nos.812 and 813 of 2012 titled Malik Iqbal Ahmed Langrial v. Jamshaid Alam and others. In the latter judgment, the august Supreme Court of Pakistan declined to expunge the remarks made against respondent No.2 by the Election Tribunal. He also relies on the judgment in the case filed Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (C.P.No.5 of 2012).

3. Respondents Nos.3 to 17 in spite of their service in accordance with the provisions of section 14(7) of the Representation of the People Act, 1976 opted to remain absent. They are ordered to be proceeded ex parte. It is contended by learned counsel appearing on behalf of respondent No.2 that respondent No.2 is qualified to be elected as a member of the Parliament and is not disqualified from being elected and from being a member of the Majlis-e-Shoora. He has not been declared not to be sagacious, righteous; non profligate, honest and Ameen by a Court of law; that any such disqualification even if incurred by respondent No.2 by making a false declaration or by producing false and fabricated degrees from the Institutions not recognized by law in the elections held in the year 2002 or 2008 will not perpetually render the respondent disqualified from being elected and from being a member of the Parliament; that the condition of possessing certain qualifications is no more the law of the land. The respondent cannot be disqualified for not possessing the qualifications under the previous law and that even the august Supreme Court of Pakistan in its judgment in Civil Appeals Nos.812 and 813 of 2012 has not made the disqualification applicable in the future elections with perpetuity.

4. We have heard the learned counsel for the parties and also gone through the record.

5. In the judgment dated 26-12-2004 the Election Tribunal seized with E.P.No.384-A of 2002 had declared the respondent an imposter possessing and appending the forged documents and had rejected his nomination papers. In E.P.No.142 of 2008, the Election Tribunal seized with the election petition after coming to the conclusion that the respondent had in the year 2002, been declared an imposter and in view of the respondent being in possession of fake and forged degrees issued by unrecognized Institutions who did not own the issuance made the-following declaration in paragraph No.32 of the judgment. "The only conclusion possibly to be drawn is that respondent No.1 (present respondent No.2) was not only ineligible to contest the election for the seat of PP-226 Sahiwal-VII in the year 2008 but was also not a righteous or honest or an Ameen person." The election to the seat was declared illegal and void. The notification declaring respondent No.2 was set aside. The re-election was ordered. In our view, this judgment embodies a declaration by a competent court that disqualifies the respondent from being elected and from being a member of the Parliament. Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 and section 99(1)(f) of the Representation of the People Act, 1976, both postulate that a person who is not righteous, honest and Ameen is disqualified from being elected and from being a member of the Parliament. The question arises whether such a declaration is to stay put or shall such a declared disqualification erode by the passage of time. The provisions of Articles 62 and 63 of the Constitution ibid which correspond to the provisions of sections 91(1) and 91(1A) of the Act, 1976 ibid manifestly layout that some of the disqualifications are circumvented with the time. The passing time takes away these disqualifications. Such disqualifications are those, provided under subsections (g) (h) (i) (j) (k) of Article 63(1) of the Constitution and under subsection (L) of section 99 (1A) of the Representation of the People Act, 1976. Another such example is also the incompetence of a person to testify under Article 3 of the Qanun-e-Shahadat Order, 1984. This incompetence goes away after the removal of the disability or after the perjurer repents and mends his ways. There are some disqualifications which die with a person only and the time does not erode them away. The incompetence of a person who has been convicted for the offence of Qazaf liable to Hadd shall stay put. His evidence shall be inadmissible infinitely in any Court of law. Same is the case of disqualification of a person under sub-Article (f) of Article 63(1) of the Constitution of the Islamic Republic of Pakistan, 1973, when such a disqualification is declared by a Court of law which has also been done in the case of respondent No.2 in E.P.No.142 of 2008. Instead of repenting and mending his ways after 2002, he repeated the same wrongful act though adding boldness to it. The respondent No.2 is disqualified from being elected and from being a member of the Parliament for good.

6. For the foregoing reasons, we accept this appeal. The objection petition filed by the appellant stands accepted. The nomination papers filed by respondent No.2 stand rejected. The name of respondent No.2 shall be deleted from the list of the validly nominated candidates. SAK/S-20/L Appeal accepted.