Incorrect Particulars of Seconder and Non-Disclosure of Criminal Case in Election

Incorrect Particulars of Seconder and Non-Disclosure of Criminal Case in Election Case Laws Civil Law Election Knowledge - Civil Law Litigation & Arbitration Non-Disclosure of Criminal Case Proposer and Seconder Solutions - Civil Law Supreme Court Mr. Justice Qazi Faez Isa in his judgment has decided the issue regarding incorrect particulars of seconder and non-disclosure of criminal case in election nomination paper in Civil Appeals No. 616 of 2014 etc.

1. These two appeals assail the common judgment dated 9th April 2014 of the Election Tribunal, Faisalabad (hereinafter referred as the “Tribunal”) which had consolidated, heard and decided Election Petition Nos. 33 and 54 of 2013. The appellant was elected from the National Assembly constituency of NA-89 Jhang-I in the general elections held on 11th May 2013. The election petitions were accepted on two grounds, firstly, that the appellant did not disclose that a criminal case was pending against him at the place provided for such disclosure in the nomination form and, secondly, that incorrect particulars were written of the person who had seconded him. The Tribunal not only set aside the election of the appellant on the said two grounds, but also declared elected the runner up candidate, namely, Muhammad Ahmed (referred to in the impugned judgment as Maulana Muhammad Ahmed Ludhianvi), who had filed Election Petition No. 54/2013.

2. Mr. Makhdoom Ali Khan, the learned counsel for the appellant, stated that a total of 168,551 valid votes were polled, out of which the appellant got 75,053 votes, Muhammad Ahmed obtained 72,320 votes and Abdul Ghafoor (who had filed Election Petition No. 33/2013) only 59 votes. The remaining votes were distributed amongst eighteen other candidates. The thrust of the arguments of the learned counsel was that on account of minor discrepancies in the appellant’s nomination paper, which were also correctable in terms of the second proviso to subsection (3) of section 14 of the Representation of the People Act, 1976 (“the said proviso” and “the Act”), the election of the appellant could not have been set aside. He further contended that the nomination papers of the appellant were accepted without any objection and no appeal against the acceptance thereof was preferred, therefore, the defects, if any, in the nomination papers were waived and / or the matter with regard to the nomination paper had attained finality and could not be reopened in the election petitions after the elections had been held. He urged that the mandate given by the majority of the people, who had voted for the appellant, should be respected. It was additionally submitted, that the said discrepancies / objections were not such that disqualified the appellant from contesting elections in terms of section 99 of the Act and / or Articles 62 or 63 of the Constitution of the Islamic Republic of Pakistan (“the Constitution”).

3. With regard to the non-disclosure of the criminal case, the learned counsel stated that the criminal case against the appellant was basically a traffic offence, which was registered under section 337-F read with section 279 of the Pakistan Penal Code (“PPC”). The complainant of the said case subsequently resiled from his own complaint and the appellant was acquitted, and no appeal against his acquittal was preferred; in this regard the learned counsel referred to the acquittal order dated 17th September 2013, wherefrom the following extract is reproduced:

“Complainant appeared before the court and submitted his affidavit and got recorded his statement on the back side of said affidavit. Complainant has resiled from his earlier statement and does not want to pursue the case further.”

“In this case, complainant is the star witness of the prosecution, who has resiled from his earlier statement. In these circumstances, if all the remaining witnesses are summoned and recorded, even then, there is no probability of conviction of accused in this case. The charge against the accused has become groundless and there is no probability of conviction of accused in this case. Hence, accused is hereby acquitted from this case.”

Alternatively, the learned counsel contended that, the language with regard to the disclosure of pending criminal case/s, as per paragraph 4 of the nomination form, is so worded that it could be easily misinterpreted, leading a candidate to genuinely presume that disclosure is required only of such case/s which had been lodged six months prior to the submission of the nomination form. The said paragraph 4 is reproduced here under:

“4. I hereby declare on oath that following cases of criminal offences were pending against me, six months prior to filing of this nomination: or

I hereby declare on oath that no case of criminal offences was pending against me, six months prior to filing of this nomination.”

A further alternative argument advanced by the learned counsel was that the appellant had not derived any benefit by not disclosing the said criminal case, and relied upon a three member Bench judgment of the Balochistan High Court in the case of Tariq Hussain v Sarfaraz Ahmed (2013 CLC 1620). He stated that the offence which the appellant was alleged to have committed was basically a traffic offence and did not disqualify the appellant from contesting elections.

4. As regards the purported incorrect particulars of the person who had seconded the candidature of the appellant (categorized in the nomination paper as ‘seconder’) the learned counsel stated that unnecessary controversy had been created. The petitioners before the Tribunal had merely picked upon an inconsequential mistake, which was the seconder mistakenly mentioning the computerized national identity card (“CNIC”) number of another member of his family, which was 33202-2453953-3, instead of his own correct CNIC number, which was 33202-5145367-3. The other discrepancy was that the seconder’s CNIC contained a patent mistake committed by the authority which issues CNICs, i.e. the National Database Registration Authority (NADRA), as instead of mentioning ‘Haji Zulfiqar Khan’ as the seconder’s father the seconder’s own name had been repeated in the place where his father’s name should have been written. Such mistake was subsequently corrected. The learned counsel stated that this apparent error was of no consequence as a copy of the seconder’s CNIC was attached with the nomination paper and the seconder’s identity was not disputed by anyone. He further contended that the nomination paper does not require that the seconder’s father’s name be mentioned. The learned counsel for the appellant further stated, that the only requirement of a legal / valid seconder is that he should be registered as an elector in the electoral roll of the electoral area from where a person is a candidate, as provided in subsection (1) of section 12 of the Act, rule 3 of the Representation of the People (Conduct of Election) Rules, 1977 (“the Rules”) and in the prescribed Nomination Form I; the seconder admittedly was a voter of the constituency, therefore, he was qualified and competent to nominate the appellant, resultantly, the said discrepancies were inconsequential. Reliance was also placed upon the cases of Ghulam Nabi v. Khuda Bakhsh (PLD 1984 Karachi 245), Iqbal Begum v. District Returning Officer (2001 MLD 1796) and Muhammad Tajammal Husain v. Shaukat Mahmood (PLD 2007 Supreme Court 277).

5. Mr. Makhdoom Ali Khan also challenged the finding of the Tribunal on issue No.1, regarding the verification of the election petitions, which, according to him, was not in accordance with the law, and relied upon the cases of Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1585) and Zafar Abbas v. Hasan Murtaza (PLD 2005 Supreme Court 600).

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