KARACHI, Sept 27: Three constitutional petitions have been filed in the Sindh High Court by the attorney of Ms Benazir Bhutto, against the dismissal of her nomination papers for the two NA constituencies of Larkana and one reserved seat for women, by the returning officers and subsequently by the Election Tribunal.

Ms Bhutto’s nomination papers were rejected on the ground that the petitioner has been convicted and sentenced to imprisonment under Section 31-A of NAB ordinance 1999 by NAB Court Rawalpindi / Islamabad in Reference No.23/2000, the disqualification prescribed under clause (n) of Sub-Article 2 of Article 8-D of the Conduct of General Election Order 2002 and clause(r) of Sub-section (1A) of section 99 of the Representation of People Act 1976 is attracted.

Being aggrieved by the order she preferred an appeal bearing Election Appeal which was dismissed.

Ms Bhutto’s attorney Farooq H.Naek claims in the memo that having no other efficacious and alternate remedy he filed the petition on the grounds that the impugned orders are bad on facts and in law. They are based upon surmises and conjectures and contrary to the law applicable thereto and the judgments of the superior courts in the matter.

It is his case that the respondents erred in holding that having been convicted by the Accountability Court Rawalpindi the appellant is disqualified to contest election.

He maintains that the respondent No.1 erred in holding that the judgment/order of the Accountability Court cannot be looked into by the Tribunal and that it has no domain to nullify the said judgment and set aside the conviction awarded by the said court.

He also maintains that the respondent erred in holding that the terms convict, conviction, criminal trial, nolo-contender and sentence cannot be considered while deciding the appeal and that there is no illegality or infirmity in the order passed by the respondent.

Farooq Naek maintains that the petitioner never absconded in terms of Section 31-A, of the NAB Ordinance, 1999, as she had left the country with the permission of the Lahore High Court, dated 30-12-1998. Thus, no question of disqualification under clause 2(n) of Article 8D of C.E.O No.7 of 2002, amended by C.E.O 21 of 2002 and under Article 63(1) (P) of Legal Frame Work Order arises.

Article 8D 2(n) and Article 63(1)(p) of Legal Frame Work order 2002 only applies where a person has been ‘convicted’ and sentenced for absconcion. Under Section 31-A of NAB Ordinance 1999 the guilt is determined by operation of law and not as a result of conviction.

Thus, the disqualification envisaged under Article 8D 2(n) and Article 63 (1)(p) does not apply in the case of the petitioner.

Even otherwise the NAB Courts do not have the jurisdiction to convict and sentence the petitioner and any order passed without jurisdiction is a nullity in the eye of law and has to be discarded.

Even otherwise Section 31-A of the Ordinance, 1999, only applies where a person absconds in order to avoid being served with any process, the attorney maintains.

It is the petitioner’s contention that Section 31-A of the NAB Ordinance, 1999, is violative of Article 175 of the Constitution as it interferes with the judicial functions which the Courts are required to perform in accordance with, inter alia, the Criminal Procedure Code, while dealing with cases of absconcion. The legislative fiat reflected by Section 31-A of the Ordinance, 1999, flouts the independence of judiciary.

The petitioner has already filed a constitution petition bearing No. D-1427/2002 challenging the vires of section 31-A of NAB Ordinance 1999 as well as of Article 8D 2(n) of C.E.O 7 of 2002 as amended and Article 63(1)(p) of the Legal Frame Work Order 2002, and the same is pending adjudication before the full bench of the SHC.

It is his contention that orders of Accountability Court Rawalpindi have been assailed by Mr Muhammad Sardar Latif Khoso Advocate, who was allowed to appear on behalf of the petitioner in all the references before various courts vide order dated 30-12-1998 by the Lahore High Court Lahore, and intra court appeal in this regard is pending adjudication before the LHC, Rawalpindi Bench.

The petitioner has prayed for declaring that the orders passed by the respondents are illegal, without jurisdiction and of no legal effect and for setting aside the same and directing the respondents to revise the list of validity nominated candidates for election to the national assembly by incorporating her name.