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June 14, 2018

SC dismisses plea seeking Sh Rashid’s disqualification

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June 14, 2018

ISLAMABAD: Sheikh Rashid Ahmed, chief of Awami Muslim League (AML), on Wednesday remained safe after the Supreme Court dismissed a PML-N petition seeking his disqualification for avoiding accurate information about his assets in the nomination papers during 2013 general elections.

A three-member bench of the apex court, comprising Justice Sheikh Azmat Saeed, Justice Qazi Faez Isa and Justice Sajjad Ali Shah, announced a reserved verdict on an appeal filed by Malik Shakeel Awan of the PML-N, seeking disqualification of Sheikh Rahid Ahmed for misdeclaring his assets in the nomination forms for 2013 general elections.

Awan who had lost the 2013 general election against Sheikh Rashid Ahmed from Rawalpindi constituency NA-55 had challenged Rashid victory first before the Election Tribunal and latter in Supreme Court, alleging that he had not provided accurate information about his assets in the nomination papers for 2013 general elections.

The court however dismissed Awan petition with 2-1 decision with dissenting note of Justice Qazi Faiz Isa, suggesting for constitution of a full court to determine some legal questions.

Following the judgment, Sheikh Rashid is eligible to contest the forthcoming general elections scheduled to be held on July 25.

“This Civil Appeal filed by Malik Shakil Awan is hereby dismissed by a majority of two to one, with Qazi Faez Isa, holding that first the matter be referred to a bench comprising full court to decide the questions of law identified and enumerated by him,” Justice Sheikh Azmat Saeed announced a short order in the court.

The court ruled that it cannot be held that Respondent No.1 (Sheikh Rashid Ahmed) made any misstatement regarding the value of the said property, the ownership of which has been mentioned in the nomination papers along with the consideration paid therefor.

“In the circumstances, the finding by the learned election tribunal that there is no misstatement, on this behalf, with regard to the aforesaid House in the nomination papers is borne out from the record, says the judgment adding that no ground for interference with such findings has been made out by the learned counsel for the appellant.

“Such income is reflected in the Income Tax Returns of the said Respondent which are also available on the record and appended with the nomination papers as well as for earlier financial years produced by the appellant himself wherein the source of income is set fourth”, the court ruled adding that the appellant could not through evidence disprove the declaration made by the respondent in this behalf.

The court held that some allegations with regard to the conduct of the election on the day of the election and thereafter were raised before the learned election tribunal but not proved and not pressed before us during the course of hearing of this appeal.

The court observed that in view of the details, no exception can be taken to the findings returned and judgment delivered by the learned election tribunal while dismissing the election petition filed by the appellant. “Consequently, this appeal must fail and is dismissed accordingly,” the court ruled.

The court ruled that the appellant also questioned the property i.e. House No.40, Sector-A, Golf City, Expressway, which the respondent claimed to have acquired from Bahria Town. The said property is mentioned in the nomination papers. The payments made for acquiring the same is also not disputed. Only issue raised by the appellant is that its correct market value has not been disclosed in the nomination papers. In support of such contentions, the learned counsel for the appellant referred to the statement of PW-7 an employee of Bahria Town.

Meanwhile, in his dissenting note, Justice Qazi Faez Isa observed that as general elections will be held, confusion would result when returning officers throughout the country apply different Supreme Court decisions in accepting or rejecting candidates’ nomination forms.

He said confusion will be further perpetuated when, after the elections have been held, election petitions are filed before election tribunals designated to hear and decide them in the absence of a clear legal pronouncement on the subject.

Matters would then come up before this court in its appellate jurisdiction and possibly too in its extraordinary original jurisdiction under Article 184(3) of the Constitution.

He observed that legal uncertainty may undermine the credibility of the electoral process, embitter political adversaries, encourage political commentators and the public to cast uncalled for aspersions on the returning officers, the election tribunals and possibly on this court as well if the interpretation of the law favourable to a party is not applied.

“We must make every effort to dispel any impression that different persons are treated differently”, Justice Isa ruled adding that justice must not only be done but be seen to be done too. He held that every endeavour therefore should be made to resolve the prevailing legal uncertainty. Justice Isa ruled the eligibility of members of parliament should be “decided in accordance with one single and definite measure.

He requested the chief justice to constitute a bench, preferably the full court, saying since every judge of this court has heard election disputes and acquired invaluable knowledge which will undoubtedly better help to decide the following questions of law, which have arisen in this appeal, and which will also arise in other cases:

Q.1. Does every nondisclosure or misdeclaration in the nomination form result in the disqualification of a candidate or only those whereby one has circumvented some inherent legal disability to participate in an election?

Q.2. If a petition does not disclose the particular facts, on the basis of which disqualification is sought, can these be considered when subsequently disclosed in the affidavit-in-evidence of the petitioner or which may otherwise be discovered during the hearing before the tribunal/court?

Q.3. Does Article 225 of the Constitution exclude the application of Article 184(3) of the Constitution to election disputes?

Q.4. If the answer to the foregoing question is in the negative, then is an election dispute regarding an individual’s qualification or disqualification a matter of “public importance” which requires the “enforcement” of a Fundamental Right and if so can it be determined under Article 184(3) of the Constitution?

Q.5. If the answer to the foregoing question is in the affirmative, are the procedural and evidentiary rules governing election petitions and appeals under the ROPA the same as those governing petitions under Article 184(3) of the Constitution?

Q.6. Does the “court of law” mentioned in Article 62(1)(f) of the Constitution include the Supreme Court when exercising jurisdiction under Article 184 (3)?

Q.7. If a candidate is disqualified on account of nondisclosure or misdeclaration does such disqualification subsist only till the next elections or is it permanent?

Justice Isa observed that since the aforesaid questions require interpretation of the Constitution and the ROPA, notices be given to the attorney-general for Pakistan, the advocate generals of the four provinces and the law officer representing the Islamabad Capital Territory, all of whom should submit in writing their respective answers to the questions and support their answers with reasons.

He said notices be also issued to the Chief Election Commissioner and the Election Commission of Pakistan. He ruled that this appeal be listed for hearing after the aforesaid questions, and any other which the Court hearing the matter may deem necessary to formulate, have been answered.

Meanwhile soon after the court announced the judgment, Sheikh Rashid Ahmed while talking to media outside the Supreme Court thanked God for bestowing him with respect.

“I have done nothing wrong and never hide any of my assets,” he said, adding that Allah has bestowed him with respect yet again.”

Similarly, Malik Shakil Awan while talking to journalists said his case was in the election tribunal for 18 months. “The verdict on my case was reserved for 84 days,” Awan said.

He however, said that he trusted the judiciary and would continue to knock at the doors of courts to seek justice.

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