Through the instant petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner seeks setting aside of the judgment dated 26.06.2018, passed by the Election Appellate Tribunal/Respondent No,1 as well as order dated 19.06.2018 passed by the Returning Officer/ Respondent No,2, respectively whereby his objection petition was dismissed.
2. Brief facts of the case are that the Petitioner filed an objection petition against the Respondent No,3 alleging that he was not qualified to contest the election as he was hit by the disqualification on the ground of concealment of material facts while offering his candidature before the Respondent No,2 who dismissed the same vide the impugned order dated 19.06.2018. The Petitioner challenged the said order before the Respondent No,1 which too met to the same fate vide the impugned judgment dated 26.06.2018. Hence this petition.
3. Learned counsel for the petitioner inter alia submitted that the impugned judgment and the order are against the law and facts; that the findings of the Respondents Nos,1 and 2 are result of misreading and non-reading of material available on record; that the Respondents No,1 has not taken into consideration the valid proof produced by the Petitioner regarding concealment made by the Respondent No,3 rather he only relied upon the affidavit produced by the Respondent No,3 during the hearing of the case; that concealment of second marriage and children therefrom makes the Respondents No,3 disqualified to contest the elections but despite production of valid proof in this regard, the said fact has been overlooked.
4. On the contrary, learned counsel appearing on behalf of the Election Commission of Pakistan has vehemently opposed the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition.
5. We have heard the arguments and perused the record.
6. The perusal of record reveals that the basic grievance of the Petitioner is that in the General Elections, 2013 the Respondent No,3 sworn a false affidavit whereby he denied the factum of his second marriage and the children born out of the said wedlock; that he concealed his second marriage and a child therefrom, as such he made a false declaration which resulted into his disqualification under Article 62(1)(f) of the Constitution. On the other hand the record reveals that this fact has been flatly refused by the Respondent No,3 which situation carries the case to factual controversy that cannot be resolved by invoicing the constitutional jurisdiction of this Court rather the same can be done through proper procedure. As such, the Respondent No,1 has rightly observed that the Respondent No,3 has mentioned about his spouse namely Mat. Tania Kanwal at Serial No,3 of the related column. Since he has categorically denied his relationship with Mst.
Abbhia, so this question can only be determined after recording of evidence, which is not within the domain of Election Appellate Tribunal. It is observed here that the Election Commission of Pakistan is not precluded from looking into this matter and exercise of its powers under the provisions of Elections Act, 2017 and Elections Rules, 2017 in case a misdeclaration is discovered at any stage regarding concealment of material facts viz: family members and their assets etc. Guidance in this regard can be sought from the judgment passed by the Hon'ble Full Bench of this Court in case reported as Rai Hassan Nawaz v. The Election Commission of Pakistan and others (2013 CLC 1101) wherein it was held as under: "17. In the facts and circumstances of the present case, the question whether the declaration/statements of the candidate in the nomination paper were false or incorrect in any material particular, cannot be ascertained without carrying out a factual probe. This exercise cannot be undertaken in the present constitutional jurisdiction and could not have been gone into by the Returning Officer or the learned Appellate Tribunal in summary jurisdiction. Therefore, keeping in view the constitutional requirement of due process laid down in Articles 4 and 10-A of the Constitution, this Court cannot determine with certainty, at this stage, whether qualifications/disqualifications under Articles 62 and 63 of the Constitution are attracted against the candidate.
18. In view of the above, it is best that this matter be taken up by the Election Commission of Pakistan under Representation of the People Act, 1976 and dealt with in accordance with law in terms of pronouncements of the august Supreme Court of Pakistan in Syed Mehmood Akhtar Nagvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089)."
7. Moreover, the record also reflects that the same objection was also raised by the Petitioner in the 2013 General Elections but his objection petition was dismissed and the record does not show that the same was ever challenged by the Petitioner and thus has attained finality, therefore, the same, on which already findings have attained finality, cannot be agitated. We are in concurrence with the findings of the learned Election Appellate Tribunal who strengthened his findings by relying upon the case reported as Worker Party Pakistan through Akhtar Hussain, Advocate General Secretary and 6 others v. Federation of Pakistan and 2 others (PLD 2012 SC 681) and observed that such objections cannot be made basis to abridge the fundamental right of a citizen to contest the election as guaranteed under Article 17 of the Constitution.
8. We, therefore, agree with the findings of the Respondents Nos,1 and 2 which rightly dismissed the objection petition filed by the Petitioner and do not see any illegality or perversity in the impugned judgment and the order which have been passed strictly in consonance with the spirit of law, as such does not warrant any interference by us. Consequently, the petition in hand, being devoid of any merit, is hereby dismissed in limine.