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July 23, 2019

Convicted person can’t be qualified for polls on suspension of sentence: SC

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July 23, 2019

ISLAMABAD: The Supreme Court (SC) on Monday held that the suspension of sentence would have no consequence on the conviction of a person for the purpose of being qualified to contest either the local bodies elections or the elections for the legislative assemblies.

The court dismissed an appeal of one Haji Nasir Mahmood and another against the judgement of the Lahore High Court dated October 27, 2015, passed in a writ petition filed by the respondents Umar Sajjad and others.

The respondents had filed objections to the joint candidacy of the appellants for the election chairman and vice chairman of Union Council No 3, Municipal Corporation, Gujrat. As per the case, the main ground of objection was that they had been convicted of criminal offences in an earlier round of litigation and such litigation emanated for the declaration of dishonesty, given by the High Court and upheld by the Supreme Court against the appellant.

The eight-page verdict authored by Justice Ijazul Ahssen held that unless the conviction is specifically suspended by the appellate court by assigning cogent reasons; therefore, or the appeal of the appellant is ultimately allowed and his conviction as well as sentence are set aside by the appellate court, the conviction of the appellant would continue to hold the field and the disqualification incurred by him, by reason of this conviction, shall remain intact.

According to the judgement, Appellant Nasir Mahmood contested for and was declared as the returned candidate for PPP-III, Gujrat in the general elections 2008.

His election was, however, challenged by way of Election Petition and his election was set aside by the Election Tribunal vide judgement dated February 3, 2010 and an appeal by the appellant against the judgement of the Tribunal was dismissed by this court as reported as Haji Nasir Mahmood verses Mian Imran Masood (PLD 2010 SC 1089).

The court held that pursuant to the decision of the courts against the appellant and findings of dishonesty in terms of Article 62 (1) (f) of the constitution, the deputy election commissioner, Gujranwala, filed a written complaint against the appellant for action under the criminal laws, an FIR was accordingly registered against him.

He was tried and convicted under the provisions of law on four count, for a term of one year and six months against each count and these sentences were ordered by the trial court to run concurrently, says the verdict and recalled that counsel for the appellants argued that the bar of disqualification to contest election in case of conviction and sentence for a term exceeding 2 years would not be attracted to instant case and the same should not have been impediment against the appellant for contesting the subsequent election for the seat of chairman, Union Council No 3, Municipal Corporation, Gujrat.

The court noted that the learned counsel pointed out that the sentence of appellant No 1 has been ordered to run concurrently hence his total sentence is in effect 1 and half years, he is, therefore, not hit by the mischief of Section 27(2) (i) of the Punjab Local Government Act (2013) read with Article 63(1)(h) of the constitution.

The court further observed that the counsel for appellant further argued that the sentences awarded to him (Appellant No 1) have been suspended by the High Court in the appeal filed by him against the judgement of the trial court and as a result of such suspension he can contest the election while the final verdict in his case is awaited.

The court, however, held that both the arguments of the learned counsel for the appellants are misconceived and devoid of force. The court ruled that Article 63(1) (h) of the constitution mandates that a persons convicted of an offence involving moral turpitude, and sentenced for a period not less than two years, would be disentitled to contest election for a further period of five years after his release.

“It is quite evident from a plan reading of both provisions that apart from the words ‘has been convicted by a court of competent jurisdiction’ Article 63 (1)(h) of the Constitution and Section 27 (2)(1) of the Punjab Local Government Act (2013) are identical,” says the verdict. The court noted that the issue is the case at hand whether the conviction of the appellant was for a crime involving moral turpitude or whether the court of competent jurisdiction had rendered the sentence (which are admitted facts). Rather the pivotal issue is whether the convictions awarded to appellant No 1 would be taken on a whole in a cumulative manner, the effect whereof would be a conviction, followed by sentence on four counts for an aggregate period of 6 years in terms of the provisions of PLGA.

“In our opinion, it is the conviction and sentencing that is the determining factor rather than the actual time spent behind bars and any other interpretation would lead to absurd results,” the court held and dismissed the appeal.

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