P L D 2008 Karachi 60 (PLP)

NADEEM AZHAR SIDDIQI, J.

The appellant has challenged the order dated 28-11-2007 by which the nomination paper submitted by the respondent No.1 from Police Station 83, Sanghar-VI was accepted. The learned counsel for the appellant submits that the respondent No.1 is defaulter of Government dues and is involved in criminal activities and has been declared absconder and is not a man of good character and that has made false declaration while submitting the nomination paper. The learned counsel relied upon the reported case of Hussain Bux v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar 2002 CLC

281. The learned counsel for the respondent No.1 filed objections to the main appeal and submits that the appellant has no locus standi to file the above appeal, as neither he has. filed written objections nor orally objected the acceptance of nomination paper. The respondent No.1 does not mainly own properties and is not a defaulter and absconder and is on bail and that there is no evidence that the respondent Not is not a man of good character. He relied upon the case of Shabbir Ahmad v. Syed Akhtar Hussain Rizvi 1994 MLD

447. The learned A.A.-G. for the State and Assistant Election Commissioner Sindh has supported the order of Returning Officer. We first deal with the legal objection regarding locus standi of the appellant to file appeal. Subsection (5) of section 14 provides for filing of appeal by a candidate against the decision of Returning Officer rejecting or accepting the nomination paper. However, subsection (5-A) of section 14 provides that if on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under subjection (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes Government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show-cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had any loan written off or suffers from any disqualification, it may reject the nomination papers. Technically speaking the right of appeal was given to a candidate only against the acceptance or rejection of nomination paper, but the Tribunal on the basis of information or material brought to its knowledge is of the opinion that the candidate is a defaulter or has had any loan written off or suffers from any disqualification, may reject the nomination paper. This Tribunal has the power to treat the appeal as information or material brought to its knowledge for rejecting the nomination paper. The objection is therefore overruled. As far as the submissions of the learned counsel for the appellant that the respondent No.1, who is a defaulter, has no force as he has produced the documents which shows that he is not the exclusive owner of the property and is only a co-sharer and if the amount due is divided between the co-owners his share is less than the amount prescribed by clause (t) to subsection (1A) of section 99 of the Representation of the Peoples Act, 1976. The other contention of the learned counsel for the appellant is that the appellant is an absconder in a criminal case and is disqualified from contesting the election. Clause (h) to subsection (1A) of section 99 of the Representation of the Peoples Act, 1976 disqualified a person from being elected as and from being a member of an Assembly if has been convicted by a Court of competent jurisdiction on a charge of corrupt practice moral turpitude or misuse of power or authority under any law for the time being in force. From the above provision it is clear that mere involvement in a criminal case is not sufficient to disqualify the candidate. However, we find force in the submissions of the learned counsel for the appellant that due to remain absconder and fugitive from law and attachment of properties, it cannot be said that the respondent No. 1 is a man of good character. From the documents produced by the respondent No.1 it appears that he has secretly appeared before the Court and obtained bail on 27-11-2007 after filing of nomination paper on 26-11-2007. In the reported case of Hussain Bux v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar 2002 CLC 281 a learned Division Bench of this Court has held as under: "The conduct and behaviour of petitioner No.1 demonstrates that the petitioner No.1 has thwarted the process of the Court and is fugitive from law. Merely because the petitioner No.1 had sought protective bail, therefore, it cannot be said that the absconsion order and proclamation orders have been undone by the grant of protective bail which was granted for a very limited period. Consequently it cannot be said or declared that the petitioner No.1 was enjoying good character or possessing good reputation. The case of the petitioner No.1 was rightly held to have been hit by the provisions of section 14 of the Sindh Local Government Elections Ordinance and Rules, 2000." The facts of this case as well as the reported case are similar. The judgment of the learned Division Bench of this Court is binding upon us as held by the Hon'ble Supreme Court of Pakistan in the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC

423. After considering the material available and relying upon the above reported judgment, we are of the considered view that the respondent No.1 is not qualified to be elected or chosen as a member of an Assembly, hence we allow this appeal and reject the nomination paper of respondent No.1 from PS-83, Sanghar-VI. The Returning Officer and the Election Commissioner may be informed accordingly. H.B.T./G-29/K Appeal allowed.