P L D 2010 Supreme Court 959 (PLP)

MIAN SAQIB NISAR, J.--With a view to contest the general election of 2007 from NA-74, Bhakkar, respondent No.3 (in C.P.No.242-L/2008), filed his nomination papers, whereas respondent No.3 (in C.P.No.243-L/2008) was the candidate for PP-49 (hereinafter both referred to as the respondents). The petitioners were also the candidates for the same constituencies respectively and at the time of the scrutiny of respondents' papers, they raised objections to their candidature, that:-- (i) They are not the graduates and, thus, not qualified to contest the election. (ii) They are absconders and, being fugitive at law, are disqualified. (iii) In the general elections of 2002, the respondents had filed bogus graduation degrees along with their nomination papers, and to this effect, when objection was raised by the petitioners, they were compelled to withdraw the papers, thus, the respondents are guilty of "concealment of facts" "false declaration" and "corrupt practice". (iv) On account of the filing of the bogus degrees with their nomination papers in the general elections of 2002, FIRs No.190 dated 26-10-2002 and 193 dated 2-11-2002 have been registered against the respondents the criminal case whereof is pending before the Court of competent jurisdiction, but in the declaration to their nomination papers, this material fact has been concealed and the relevant column is stated to be "not applicable", on this account too they were disqualified. By overruling the objections of the petitioners; the Returning Officer accepted the nomination papers of the respondents vide order dated 29-11-2007, holding that the degrees filed along with the present nomination papers are not shown to prima facie bogus, no order of the Court has been produced to prove the candidates are proclaimed offenders, whereas the police is not competent in law to do so, the criminal case to which reference has been made is not the one pending six months prior to the filing of nomination papers, rather if so pending is of the year 2002. The orders were challenged by the petitioners in appeals, but as those could not be decided by the tribunal constituted for this purpose, within the time prescribed by the law, resultantly, were deemed to have been rejected. In the situation, the petitioners therefore, challenged the said orders of the Returning Officer through constitution petitions bearing Nos.12230 & 12231/2007 before the Lahore High Court, which have been dismissed through the impugned judgment dated 31-1-2008. Hence, these petitions.

2. The learned High Court has mainly founded its decision upon the judgment of this Court reported as Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others (1986 SCMR 1736) and has held that the objections raised by the petitioners required a proper inquiry into the facts and the Returning Officer in the summary proceedings, to which under the law he was bound to adhere, could not determine such objections. It has, however, been categorically held that the respondents, at the time of filing of nomination papers for the general elections, 2007 were the graduates; it is not established on the record, if the criminal cases registered against then, (through the noted F.I.Rs.) were pending in the Court of law on account of which any concealment can be imputed to the respondents and/or they could be held to be the absconders in the matter as no order of the Court of competent jurisdiction passed by following the requisite procedure/proceedings prescribed by the Criminal Procedure Code has brought on the record.

3. Before proceeding further in the matter, it may be pertinent to mention here that in the meanwhile the election to the said constituencies have been held and respondents (in both matters) are declared as the Returned Candidates, consequently, in order to challenge their election, inter alia, on the same grounds, the petitioners filed the election petitions as required under section 52 of the Representation of People Act, 1976 (the Act) but those have been summarily dismissed by the Election Tribunal on account of the lack of verification in accordance with law. These orders are the subject-matter of Civil Appeals Nos.705 & 706-L/2009, which are beyond the prescribed period of limitation by six days and a separate application for the condonation of delay has been filed.

4. Be that as it may, learned counsel for the petitioners (in the two petitions) has argued that in the general election of 2002, the respondents had filed bogus graduation degrees and, when confronted with the above, they withdrew their nomination papers, this proves that the degrees were fake and ingenuine; on account of this, aforementioned criminal cases were got registered against the respondents which are yet pending in the Court and this fact has been concealed in the relevant column of declaration; in the bye-elections held in 2003, the respondents along with their nomination papers filed `Sanads' allegedly issued by some 'Madrasa' which were however disowned by that institution in unequivocal terms, thus, in view of the above incontrovertible facts, inference should be drawn against the genuineness of the degrees-filed by the respondents with their nomination papers in 2002. Consequently, it is a clea3'case that the respondents are not sagacious, righteous etc. and, resultantly, their nomination papers were liable to be rejected. And, in this behalf no extensive inquiry or trial was required, rather the facts as stated above were/are simple, undisputed and well established on the record. It is also submitted that the criminal cases on account of the said F.I.Rs. were pending before the criminal Court and requisite proof by the petitioners along with their objections were placed on record of the Returning Officer and this again was adequate for the decision of the objection that the respondents deliberately in the nomination papers have concealed the pendency of the case and thus, their nomination papers were liable to be straightaway rejected on this score alone; moreover, the respondents were declared as absconders in the noted criminal matters which fact, was concealed, in the requisite declaration, this also disqualified the respondents to contest the election. It is lastly submitted that pre-election disputes could always be decided in the constitutional jurisdiction and Article 225 of the Constitution is no bar in this behalf, reliance has been placed on the judgment reported as Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others PLD 2009 SC 644.

5. We have heard the learned counsel for the parties. As regards the question about bogus degrees of the respondents filed along with the nomination papers of 2002 are concerned, suffice it to say that no determination by any forum of competent jurisdiction in this behalf has so far been made against them and even according to the case of the petitioners the criminal cases in this context is yet pending adjudication; only for the reason that the nomination papers were subsequently withdrawn by the respondents or in the bye-election they relied upon the `Sanads' which were disowned by the `Madrasa', cannot by itself be taken as a conclusive proof against them; rather the determination of such facts require considerable degree of inquiry by a Court of Tribunal of competent jurisdiction, in which the respondents should be enabled to propound their defence, which is their legal right, and to produce evidence to disprove the allegations against them; this obviously could not be so done in the "summary proceedings", which the Returning Officer in law is supposed to adhere and follow , while conducting the scrutiny of the nomination papers and deciding the objections thereto. As regards the question about the omission to mention the criminal case by the respondents in their nomination papers is concerned, suffice it to say that it was not established by the petitioners before the Returning Officer if the said case at the relevant time was pending before any Court; only the copy of the F.I.R. was perhaps produced with the objection; besides, in the constitution petitions it is stated "the challan submitted in the Court in which the respondent was declared absconder is missing from the Court file. This was the reason that an application was filed before the learned Returning Officer to get the proper adjudication after summoning the record". Moreover, in the said application (for the summoning of record), it is mentioned:-- Besides, the grounds `d' `and `e' of this petition, it has been stated that:- (d) That the learned Judges of the Lahore High Court while dealing with the matter have totally ignored the fact that the DPO was not competent to order the re-investigation in the case i.e. by transferring the same under the Police Order, 2002 and it was only the Additional I.G. Investigation who is competent to transfer the investigation after constituting a Board and obtaining the report from a Board duly constituted. (e) That the report received from the concerned department clearly indicates that after the submission of the challan, the same was recalled from the Court which could not be done in the light of the judgment as reported in PLD 2007 SC

31. From the above, it is also clear that the criminal case on the date when the nomination papers were filed by the respondents, was not surely shown/established to the Returning Officer as being pending, particularly, in the circumstances when according to the petitioners own assertion (reproduced above) the case had not yet crossed the investigation stage; may be, such process of re-investigation as per the petitioners was not legally and competently ordered. Anyway in the written statements of the respondents filed to the appellants' writ petitions, they have categorically taken the defence that "alleged FIRs have been cancelled being found false". The above factors are sufficient to exclude the case from the realm of "summary adjudication" because the probe in some detail was/is required vis-a-vis the factual controversy between the parties.

6. As regards the absconsion of the respondents is concerned, the petitioners were not able to place before the. Returning Officer or even before the High Court any order of the Court which declared them to be the proclaimed offenders. The learned High Court has considered this aspect of the matter in the impugned judgment exegetically and has, rightly, held that such order at the level of the investigating agencies in terms of section 512, Cr.P.C. was not legally passed, the reference in this behalf can be made to paragraph 11 thereof, wherein the correct exposition of law has been rendered in the context of this case and held "since no proceedings under sections 87, 88 had been taken by the Court against the respondents, therefore, they could not have been declared as absconders and no case was pending trial against them prior to the submission of nomination papers. Therefore, there was no concealment in filing the nomination papers. They did not conceal this fact". In any case, all the objections, taken by the petitioners viewed from any angle entails detailed inquiry into the matter and could not be subjected to the limited "summary proceedings" of the Returning Officer as has been held in the judgment of this Court (supra). The petitioners thus had ample opportunity of challenging the election of the respondents through election petitions, inter alia, on the grounds raised before the Returning Officer and even this was so done, however, such petitions have been dismissed for the lack of observing the provisions of section 63 of the Act, 1976 qua the non-verification; and this order has been assailed in the belated appeals. It may be pertinent to mention here that we are not persuaded to dilate in this case regarding the non-application or otherwise about the bar contained in Article 225 of the Constitution of the Islamic Republic of Pakistan, as deciphered by the learned counsel for the petitioners on the touchstone of pre and post election disputes, as this proposition shall not be much relevant in the view of the facts of this case and because of the reasons given in this judgment for the dismissal of these petitions.

7. Now adverting to the two time barred appeals, the arguments of the learned counsel for the appellants that it is due to the negligence of the AOR that the appeals were not filed in time, is belied by the contents of the application for the condonation of the delay, in which, it is stated that due to the indisposition of the appellants, the needful could not be done. The submission that such plea is incorrect and wrong, the appellants never instructed the AOR to move the application and state so therein. Be that as it may, if the application on that account is ignored, then there is no application at all before this Court for the condonation of delay and, therefore due to the unexplained reasons and making out no `sufficient cause' for condoning the delay, these appeals are hereby dismissed as time barred.

8. In the light of the above, the titled petitions as also the appeals, are, accordingly, dismissed. M.H./M-57/S Petition dismissed.