Sayyed Sohail Hasan Gilani vs Election Commission Of Pakistan etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

W.P.No.9355/2019

Sayyed Sohail Hasan Gilani Versus Election Commision of Pakistan etc.

S. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties or counsel, where necessary Proceeding

04.03.2021 Mr. S.M. Areeb Abdul Khafid, Advocate for the petitioner.

Hafiza Mehnaz Nadeem Abbasi, Legal Advisor Election Commission of Pakistan.

Through this constitution petition the petitioner has prayed as under:- “In these circumstances, it is most respectfully and humbly prayed that while declaring respondent No.03 to be disqualified permanently in terms of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan 1973 on account of his using the pseudonymous, fake and forged degree of B.A. Examination, making false statement and on its basis posing himself to be a graduate and thereby contesting the general elections 2002 and 2013 respectively as stated above and the Election Commission of Pakistan, respondent No.01 may also please be directed to de-notify Sayyed Ali Hasan Gilani, respondent No.03 from the date when he for the first time entered upon his office in the year 2002 and 2013 accordingly and to initiate all legal proceedings against him including the recovery of entire financial benefits, privileges, perks, remuneration etc. so received by him for the whole period of his holding the office of the M.N.A. for both of the tenure of the National Assembly after the general elections of 2002 and 2013 respectively in the largest interest of justice and for maintaining and upholding the rule and majesty of law in letter and spirit. Any other and further relief deems fit and suitable may also please be granted.”

2.The petitioner seeks disqualification of respondent No.3 (“Respondent”) to contest general elections for the years 2002 & 2013 and to de-notify him with retrospective effect and initiate legal proceedings against him for

recovery of entire financial benefits, perks and remuneration etc. received by him for the afore-referred period when he remained an elected MNA for afore- referred two terms of five years by contending that the degree for B.A. possessed by the respondent has been declared as bogus by Islamia University, Bahawalpur.

3.The petitioner has been confronted with the question of maintainability of this petition on the grounds that the same has been filed belatedly after the respondent No.3 has ceased to hold the office of MNA, petition having been filed without availing the remedy before the Election Tribunal at the relevant time, under Article 63 of the Constitution of Islamic Republic of Pakistan the Speaker could have referred the question of disqualification to the Election Commission, which had not been done and involvement of some disputed questions requiring determination through deeper appreciation in this case, he states that through the judgments reported as 2013 CLJ 499 (“Mian Najeeb ud Din Owasi. v. Amir Yar Waran, etc.”) and PLD 2010 Lahore 583 (“Muhammad Jameel v. Amir Yar and 6 others”) the disqualification of candidate lacking requisite qualification with retrospective effect was considered and decided by the Superior Courts of this Country. Similarly in this case, as petitioner’s B.A. degree has been cancelled, hence, the Election Commission of Pakistan (ECP)/ Respondent No.1 may be directed to de- notify the petitioner by declaring him as disqualified permanently to contest elections with retrospective effect. When questioned whether the petitioner had approached any forum of competent jurisdiction or the ECP for seeking the same relief before invoking constitutional jurisdiction of this Court, he states that this Court may be pleased to refer the matter to the ECP to decide the same in terms of prayer made in this petition. The petitioner has not disclosed the provision of law under which this Court is obliged / required to refer the matter to the ECP to declare the

respondent as disqualified with retrospective effect especially when the petitioner himself has not approached the said forum before approaching this Court. Besides, as some disputed facts are involved in the matter requiring deeper appreciation, which cannot be decided in a summary manner, therefore, this Court is not inclined to issue direction to ECP in terms of the prayer of the petitioner, which is disposed of with observation that the petitioner shall be at liberty to seek appropriate remedy available under the law for redress of his grievance.

(MUZAMIL AKHTAR SHABIR)

Judge *WaqaR*