Objection Case Diary No. 5107-2024.
Ali Baqar Najafi, J. Office objection is overruled. Office to allot the number to this petition which is being taken up today for hearing at the request of the learned counsel for the petitioner.
Main Case.
2. Through this constitutional petition, the petitioner has challenged the impugned orders dated 30.12.2023 and 07.01.2024 passed by Respondent No. 3/Returning Officer and the Election Tribunal whereby the nomination papers of the petitioner to contest the election in PP-154 Lahore-X were concurrently rejected.
3. The facts of the case are that the petitioner filed nomination papers to contest the election in PP- 154 Lahore-X which were scrutinized and rejected with the following objections: "These requirements are mandatory and found in the Constitution of Pakistan, 1973 under Articles 62(1)(g), 63(1)(g) as regards being a proclaimed offender on the above-mentioned FIRs, and under Article 63(1)(0) as regards in respect of default of utility dues over Rs. 10,000/- for over six months, at time of filing nomination papers. Failure to meet them are grounds for disqualification.
On these grounds, the nomination papers of Mr. Saeed Ahmad are rejected under Section 62(9)
(a) of the Elections Act, 2017"
4. Feeling aggrieved, the petitioner filed appeal before the Election Appellate Tribunal which was dismissed also on the ground that the appellant had not only been found involved in criminal cases but perpetual warrants of arrest has also been issued against him by the Administrative Judge ATCs Lahore in case-FIR No. 96/2023, dated 10.05.2023, registered at police station sarwar Road, District Lahore meaning thereby that the petitioner has concealed all these facts at the time of filing of his nomination papers. Hence this writ petition.
5. Arguments head. Record perused.
6. Admittedly the petitioner is involved in a criminal case relating to 9th May, 2023 in which state buildings and military installations were attacked, damaged and ransacked by the mobs headed by some miscreants, in big cities of the province which was responded by the state in careful but a definite manner. The criminal machinery was, therefore, put into motion, the culprits were identified by using the modern devices and evidence was collected against the suspects and accused persons. Some of them resorted to legal recourse but others opted to avoid process of law and then, ultimately, become fugitive from justice. Seizing the opportunity after announcement of General Elections, 2024, they preferred to contest elections by taking pride for what they did on the fateful day in anticipation of their support from general public. They thought it appropriate to offer themselves as candidates without surrender before the Court of competent jurisdiction. In some cases, they got a transitory bail from the High Court of another province for a period to enable them to surrender before the competent Court but, meanwhile, got submitted the nomination papers under the garb of the Ad-interim pre-arrest bail order.
7. The legal status of an absconder in the present context should be seen through the prism of "Doctrine of Fugitive Disentitlement" with particular reference to the rejection of nomination papers of a candidate for National or a Provincial Assembly in the forthcoming General Elections. While tracing the judicial precedents the top of the list in case titled "Chan Shah vs. The Crown" reported as PLD 1956 Federal Court 43, in which it was held that an absconder and fugitive from law should first conform to the judicial orders applicable to him to avoid contempt. Relevant extract at page 46 is reproduced as under: "It follows, from what has been said above, that Attorneys and Advocates who appear to present petitions, on the criminal side-other than those which lie as of right-are under a duty to see that they are acting in furtherance of justice. It seems to us that this duty is clearly violated when aid, for securing Interference Court to persons who, to their knowledge, are, in contempt, i.e., as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them."
The famous judgment delivered by the apex Court in the case titled "Gul Hassan and another vs. The State" reported as PLD 1969 SC 89, it was held that a fugitive from law is also a contemner who was not entitled to hearing, what to talk of a hearing before any other Court for the purpose of submitting the nomination papers in the General Elections. Relevant extract from page 94 is reproduced as under: "In this view Gul Hassan being a fugitive from law and a contemner was not entitled to hearing and leave granted to him on limited questions of law was liable to be rescinded."
In case titled "Hayat Bakhsh and others vs. The State" reported as PLD 1981 SC 265, it was held that a fugitive from justice loses his right of hearing through representation by another person so that his plea might be heard despite his defiance of the Court order. While upholding the above said two views it was observed that the inherent powers of this Court cannot be exercised in favour of an absconder. Relevant extract is reproduced as under: "The principle laid down in the cases of Chan Shah and Gul Hassan do not in any way merit review. Rather, some of them need to be reiterated and reaffirmed: The Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is essential condition of the administration of justice that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the-dismissal of a matter on account of such a conduct of the person concerned, would afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal, justice, it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an appeal by the convict. Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan's case. if a person is fugitive from justice and is in the state of abscondence, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his abscondence and the same would apply to a power of attorney executed during abscondence; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah, is also a contemner and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under Section 374, Cr.P.C. if the convict decamps, he thereby for feights the right of audience and the High Court would, in such a situation, be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave."
In case titled "Awal Gul vs. Zawar Khan and others" reported as PLD 1985 SC 402, denial of the right of hearing by an absconder was clearly upheld. It was observed that the absconder must not be rewarded for his unexplained and Noticeable abscondence. Relevant extract from page 4041405 are reproduced as under: ".......It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law). The explanation of the learned counsel for the respondents that people some time abscond for fear of being killed in retaliation is too wide to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well-founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnish a better chance of protection than remaining at large and making oneself available always to the adversaries ......"
Besides, in case titled "Mian Shafique Ahmed and another vs. Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 5 others" reported as 2017 MLD 1975, it was held by a Division Bench of Sindh High Court while rejecting his nomination paper that an absconder of attacking on Courts deserves no leniency. Relevant extract from para 9 is reproduced as under: "9 Furthermore, the Petitioner No. 1 despite specific objection regarding his being proclaimed offender in a case involving attack on Courts, Judges and Advocates, having been raised before the Returning Officer he did not bother to join the proceedings before the learned trial Court i.e. Anti-Terrorism Court, Sukkur........"
In case titled "Hussain Bux and another vs. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar and 3 others" reported as 2002 CLC 281, a Division Bench of this Court held as under: "...........Criminal case was pending against the petitioner before Sessions Court for the last 6 years, and non-bailable warrants could not be executed upon him -- Order of his abscondence under 5.512, Cr.P.C. had been issued and proceedings under Ss.87 & 88, Cr.P.C. had been initiated against him-Protective bail granted to him by High Court for a limited period would not have the effect to undo the abscondence order and proclamation order, thus, it could not be said that petitioner was enjoying good character or possessing good reputation......"
However, in case titled "Muhammad Nawazish Ali Pirzada vs. Election Commission of Pakistan through Provincial Election Commissioner and 6 Others" reported as 2018 CLC 1301, the legal effect of abscondence in submission of nomination paper was discussed. It was held in para 17 as under: "17. Indeed a person who is fugitive of law, will have no right of criminal appeal in the matter, in which he has been declared absconder unless he surrenders, as held by august Supreme Court, in administration of criminal justice. However, it will be a fallacy to hold that a person who is declared absconder has no right to file any appeal before any forum, in respect of matters which have no nexus and relation to proceedings in which, he was declared absconder. By way of illustration, this will mean that a person who is absconder in a criminal case, cannot be allowed to file appeal even in any civil matters including banking matter, family matters etc before any Court of law. This will practically mean that all fundamental rights of said person for their enforcement through Court of law will be suspended, which is neither the intention of legislation under the Act nor same is permissible under the Constitution."
This view, we observe with respect, is not convincing and, therefore, cannot be approved for the reasons, firstly, the right to file a civil or a criminal case is the personal right and not the right agitated under Article 17 of the Constitution for representing the constituency. Secondly, under Article 225 of the Constitution the election laws fully apply to the process of holding elections under which personal attendance of a candidate may be required by the Returning Officer.
Thirdly, the election campaign by an absconder is a big question mark on the transparency and holding of fair and free elections. Fourthly, the status of a candidate with reference to the clearance of election laws at the time of scrutiny of the nomination papers is most relevant and he must establish himself as Mr./Mrs./Miss clean. Fifthly, playing the "hide and seek" game is against the acceptability of general tendency in the public who are otherwise law abiding and compliant to the laws of the country, therefore, in all fairness, they would like to choose a person which represent their beliefs and thoughts.
For what has been discussed above, this writ petition has been found meritless and is, therefore, dismissed.