2013 PLP 1620 (CLC)

QAZI FAEZ ISA, C.J.

The petitioner was a candidate for the Provincial Assembly Constituency of Dera Bugti (PB-24) in the General Elections held on 11th May, 2013. The petitioner had objected to the candidature of Mr. Sarfaraz Ahmed (respondent No.1), another candidate of the same constituency, but his objections were not considered and the Nomination Form of respondent No.1 was accepted. Mr. Muhammad Amir Rana, the learned counsel for the petitioner, stated that the petitioner objected to the candidature of the respondent No.1 on two grounds. Firstly, there were a number of criminal cases registered against the respondent No.1 which he did not disclose in his Nomination Form and therefore made a false declaration. Secondly, that the respondent No.1 was a Member of the Board of Management, Pakistan State Oil Company Limited ("PSO") and as such he could not contest elections in view of Article 63(1)(k) of the Constitution of the Islamic Republic of Pakistan ("the Constitution").

3. Mr. Kamran Murtaza, Advocate for respondent No.1, and Mr. Muhammad Haroon Kasi, Law Officer of the Provincial Election Commissioner for the official respondents, relied upon the order of the Returning Officer accepting respondent No.1's Nomination Form and the judgment of the Election Tribunal Balochistan ("Tribunal"). Through a common judgment dated 17th April, 2013, impugned herein, the Hon'ble Tribunal had decided Election Appeals Nos.66, 79 and 117 of 2013; the petitioner had filed Election Appeal No.79 of 2013 against the respondent No.1. Mr. Kamran Murtaza, Advocate stated that the respondent No.1 had not been convicted in any case and the reason for not mentioning the said criminal cases in his Nomination Form was because he was not aware of them. He further stated that the mere fact that a criminal case is pending against a person does not disqualify a candidate and respondent No.1 had nothing to gain by not disclosing the pending cases against him, but he did not do so as he did not know about them. As regards the petitioner serving as a member of Board of Management of PSO, learned counsel for respondent No.1 stated that the same does not constitute being in the service of Pakistan or of any statutory or anybody which is owned or controlled by the Government as the respondent No.1 was not receiving any salary.

4. The Nomination Form requires disclosure of criminal cases that are pending six months prior to the submission of the Nomination Form. The initial burden is on the petitioner to show that the respondent No.1 had knowledge of criminal cases registered against him, and that he had consequently made a false declaration in his Nomination Form. The petitioner however failed to establish the respondent No.1 's knowledge about the said cases. We also do not see any advantage accruing to the respondent No.1 in not disclosing that cases were pending against him as non-disclosure does not entail disqualification. Admittedly, respondent No.1 was not convicted in any of the criminal cases. The petitioner would only stand to gain if he did not mention in his Nomination Form the criminal cases in which he had been convicted, and which may have entailed his disqualification.

5. As regards Mr. Muhammad Rana's contention, that respondent No.1 is a member of the Board of Management of PSO and therefore not eligible to contest election, it would be useful to reproduce Article 63(1)(k) of the Constitution, relied upon by the petitioner:

"63(1) A person shall not be disqualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless

(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service." The petitioner has not been able to show that the respondent No.1 was a paid employee of PSO. Generally, other than Executive Directors, the directors on the Board of Public Corporations and Companies, owned by the Government or wherein the Government holds controlling shares are not paid for their services. The respondent No.1 had filed a certificate of the Company Secretary of PSO, before the Hon'ble Tribunal, which stated, that: "Mr. Sarfraz Bugti, Member PSO Board of Management is not an employee [of] PSO or of Government of Pakistan. The office of Member, Board of Management is not an office of profit. Mr. Bugti is not paid a monthly salary, remuneration or other benefits being a Member of the Board." The petitioner did not rebut the said certificate. It was for the petitioner to show that the respondent No.1 was paid for his services to bring the respondent No.1 within the disqualification contained in Article 63(1)(k) of the Constitution. Simply serving as a Member of the Board of Management of PSO cannot be construed to be in the service of Pakistan.

6. The impugned judgment of the Hon'ble Tribunal cannot be stated to be in contravention of any law or constitutional provision and the same is upheld. We had dismissed this petition vide short order dated 19th April, 2013 and the aforesaid are our reasons for doing so. JJK/55/Q Petition dismissed.