Ayesha Nazir vs Ecp etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Election Petition No.01/2018

Ayesha Nazir Versus Election Commission of Pakistan, etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of parties of proceeding Proceeding counsel, where necessary 31.05.2022 Mr. Muhammad Zubair Khalid Ch, Advocate for petitioner.

M/s Barrister Husnain Ahmad, Barrister Meeran Muqsit and Shahmeer Ubeid, Advocates for respondent No.3.

Mr. Ahmad Raja, Advocate for NADRA.

Ch. Umar Hayat, Director Legal ECP.

Hafiz Adeel Ashraf, Legal Assistant ECP. Hafiz Muhammad Bilal Azhar, Legal Assistant

ECP.

Ayesha Nazir, being the runner-up candidate in constituency NA 162 Vehar-1, presented election petition, under section 139 of the Elections Act, 2017 (‘Act, 2017’), against returned candidate – respondent No.3. Election petition was found non-compliant in terms of sub-section (4) of section 144 of the Act, 2017, and was dismissed vide order of 21.12.2020.

Notwithstanding dismissal of the election petition, proceedings were initiated in exercise of powers under section 165 of the Act, 2017 and respondent No.3 was show-caused in the context of the allegations, apparently, falling within the scope of section 165, ibid. Respondent No.3 submitted reply / response to the show cause notice and provided documents in support of explanations tendered qua the allegations.

To comprehend the context and edges of instant proceedings, it is appropriate to reproduce the text of subject matter allegations – referred in the order dated 21.12.2020 and contained in paragraphs No.2(a) to 2(j) of the election petition – which read as, “(a) that he gave bank account No.037100660, UBL, Main Brach, Burewala for the purpose of election use but he did not use this account during election and some fictitious account has been used. Copy of bank statement of A/c No.037100660 is attached as Annex-

B.

(b)that at the time of election, in account, mentioned above, total balance was of Rs.10150/- in PKR. But this figure was also fictitious. So, he (respondent No.3) is not an honest person.

(c)that the nomination papers filed by Ch. Faqir Ahmad (respondent No.3) were supported by an affidavit sworn by him. In said affidavit, he has given the name of his wife as “Saima Ahmad”but he has not mentioned the name of his children.

(d)that respondent No.3/Ch. Faqir Ahmad has also not mentioned the exact detail of property, which is in the name of his wife. She has land measuring two acres in her name but he did not mention the property of his wife and his children. His children are also owners of property. His elder son is owner of property measuring 5-kanal 6-mara. His second son has also equal share, whereas his 3rd son has also property of same share. He has also property in Lahore which was purchased by father. Copy of record of rights is attached as Annexure C.

(e)that respondent No.3/Ch. Faqir Ahmad maintaining a foreign currency account No.PK34UNIL0112 039111100561 in UBL, Mission Chown Branch, Sahiwal but he has not mentioned this fact in his nomination papers as well as in affidavit sworn by him. Copy of bank statement is attached as Annexure C/1.

(f)that the respondent No.3/Ch. Faqir Ahmad also maintain different bank accounts in different banks but intentionally, he has not mentioned those bank accounts in nomination papers and in his affidavit. Copy of list is attached as Annexure D.

(g)that detail of property given by the respondent No.3/returned candidate is 18 acres agricultural land and according to government value, value of that agricultural land is more that Rs.2,30,00,000/-. But respondent No.3 has not correctly valued the price of agricultural land and has shown its value Rs.1,30,00,000/- for the purpose of property tax evasion;

(h)that respondent No.3 has also not correctly valued the price of residential house as well as plot;

(i)that respondent No.3 has mentioned the price of his dairy farm as Rs.2,00,00,000/-, which is also incorrect and bank account number of said farm is not mentioned in the nomination papers. It is also material that ban account No.000226816281 of dairy farm is used by his son namely Osama Ahmad but in legal heirs, he has shown no son. This fact shows that he has filed incorrect affidavit and nomination papers. Copy of bank statement is attached as Annexure D/1.

(j)that respondent No.3 has also given incorrect balance detail of currency account No.0548037103784, UBL, Multan Road, Burewala and bank account No.141937100660 at the time of filing of nomination papers. In support of these facts, detail affidavit has been filed. Copy of bank statement of account No.0548037103784 is enclosed as Annexure E.

2.Allegations appearing at grounds (a), (b) & (c) were dropped, being outside the scope of the instances / conditions prescribed in section 165 of the Act, 2017.

For the sake of clarity, instant proceedings are restricted to the allegations of false / incorrect statement of assets and liabilities of respondent No.3, his spouse and the dependents – grounds (d) to (j).

3.Instant proceedings are inquisitorial in nature – as observed by the august Supreme Court of Pakistan in the case of Rai Hassan Nawaz V. Haji Muhammad Ayub and others (PLD 2017 Supreme Court 70) – still opportunity was extended to learned counsel for Ayesha Nazir to assist the Tribunal. Learned counsel has primarily emphasized on three allegations. Firstly, that respondent No.3 withheld disclosure of details of landed property - 2 Acres of land - purchased by his spouse and acquired through sale deed dated 20.03.2017. Second allegation was regarding the

withholding of variously held accounts – details of each one of them separately may not be relevant in the context of admission qua existence of the accounts and the explanation offered by the respondent No.3, discussed in the latter part of the decision. Thirdly, learned counsel emphasized that bank account identified for incurring election expenses was not utilized and expenses were expanded from the account, other than the declared bank account.

Another objection was that details of assets held by the children of the respondent No.3 were not disclosed.

Elaborating submissions, learned counsel submits that withholding of details of assets tantamount to deliberate and dishonest concealment, which attracts mischief of submission of false and incorrect statement of assets and liabilities – in terms of Form- B of the nomination form – and affidavit provided in the light of the directions by the august Supreme Court of Pakistan, in the case of Speaker, National Assembly of Pakistan, Islamabad and others V. Habib Akram and others (PLD 2018 Supreme Court 678). Adds that no plausible justification or logical explanation was provided for alleged failure to disclose assets, and even otherwise the defence forwarded was inconsistent, contradictory and rationally unacceptable – alleging that sale deed was lost while in the possession of legal counsel and alleged inadvertence while filling nomination forms.

Further submits that factum of undisclosed bank accounts was admitted, which established intentional concealment. Learned counsel referred to and relied upon following decisions, reported as Ms. Shamuna Badshah Qaisarani V. Khawaja Muhammad Dawood and others (2016 SCMR 1420), Nida Khuhro V. Moazzam Ali Khan and others (2019 SCMR 1684), Rai Hassan Nawaz V. Haji Muhammad Ayub and others (PLD 2017 Supreme Court 70), Speaker, National Assembly of Pakistan, Islamabad and others V. Habib Akram and others (PLD 2018 Supreme Court 678), Muhammad Jamil V.

Munawar Khan and others (PLD 2006 Supreme Court 24), Khaleefa Muhammad Munawar Butt and another V. Hafiz Muhammad Jamil Nasir and others (2008 SCMR 504), Muhammad Ahmad Chatta V. Iftikhar Ahmad Cheema and others (2016 SCMR 763), Zafar Abbas V. Maulana Muhamamd Ahmad Ludhianvi and 31 others (PLD 2017 Lahore 394), Imran Ahmed Khan and others V.

Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan (PLD 2017 Supreme Court 692) and Ch. Muhammad Yousaf Kaselia V.

Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 Supreme Court 689).

4.Conversely, the learned counsel for the respondent No.3 submits that property in the name of spouse was acquired through sale deed No.1069 dated 20.03.2017, which was transferred in the revenue records vide mutation No.390 dated 08.06.2018, factum whereof was inadvertently not mentioned in the statement of assets – submitted on 09.06.2018.

Adds that omission was unintentional, and even otherwise assets held by 30th June 2017 were required to be mentioned, while mutation was recoded after 30th

June 2017 – by which time only sale deed was executed but no transfer in the revenue records was recorded. Learned counsel submits that landed property, in the name of the spouse, was otherwise declared in the Income Tax Return for the Tax year 2017-2018 – which return was filed on 28.11.2018 - and factum thereof was also declared while submitting statement of assets with the Election Commission on 27.12.2018. Learned counsel, in the context of bank accounts, stated that accounts, not mentioned in the declaration, were either dormant or closed and certificates are procured to affirm such like status thereof. Adds that respondent No.3 was a career banker, who retired in the year 2012 and after which accounts under reference were not operated. Adds that one foreign currency account was opened for Hajj expenses, which too was not operated and balance of US$ 385.66 was available therein. Further submits that dairy business was run by the son of respondent No.3, who is adult and not dependent on him. Learned counsel referred to various documents appended with miscellaneous application, which included the statements of accounts, certificates procured from the banks, copies of Tax returns for the years 2018, 2019, and 2020. To support submissions following decisions were referred, reported as Shamoona Badshah Qaisarani V.

Election Tribunal, Multan and others (2021 SCMR 988), Sardar Yar

Muhammad Rind V. Election Tribunal Balochistan, Quetta and others (PLD 2020 Supreme Court 137), Nida Khuhro V. Moazzam Ali Khan and others (2019 SCMR 1684), Khawaja Muhammad Asif V. Muhammad Usman Dar and others (2018 SCMR 2128), Malik Shakeel Awan V. Sheikh Rasheed Ahmed and 21 others (PLD 2018 Supreme Court 643), Muhammad Hanif Abbasi V. Imran Khan Niazi and others (PLD 2018 Supreme Court 189) and Murad Bux V. Kareem Bux and others (2016 SCMR 2042), and “Khan Muhammad Yusuf Khan Khattak Vs. S.M. Ayub and 2 others” (PLD 1973 Supreme Court 160).

5.Arguments heard and record perused. Documents appended and referred to, when examined and read in the context of, by and large, consensus of the learned counsels qua the facts of the case, are found sufficient to decide the matter, without the necessity of calling for any additional information, affidavit(s) or counter affidavit(s). Before proceeding to decide the matter, it is appropriate to iterate the contours and scope of additional powers extended under section 165 of the Act, 2017, which provision of law is reproduced hereunder for convenience,

“165. Additional powers of Election Tribunal.—

(1)If an Election Tribunal, on the basis of any material coming to its knowledge from any source or information laid before it, is of the opinion that a returned candidate was a defaulter of loan, taxes, government dues and utility expenses, or has submitted a false or incorrect declaration regarding payment of loans, taxes, government dues and utility expenses or has submitted a false or incorrect statement of assets and liabilities of his own, his spouse or his dependents it may, on its own motion or otherwise, call upon such candidate to show cause why his election should not be declared void and, if it is satisfied that such candidate is a defaulter or has submitted false or incorrect declaration or statement, as aforesaid, it may, without prejudice to any order that may be, or

has been made on an election petition, or any other punishment, penalty or liability which such candidate may have incurred under this Act or under any other law for the time being in force, make an order--

(a)declaring the election of the returned candidate to be void; and

(b)declaring any other contesting candidate to have been duly elected if any of the conditions specified in section 157 are proved to the satisfaction of the Election Tribunal.”

[Emphasis supplied]

6.Fundamental issue is whether the statement of assets and liabilities – including affidavit –submitted by respondent No.3 is false or incorrect and if so, what would be the effect of such an untrue declaration. Not every omission, deficiency or non-disclosure made in the statement of assets and liabilities, submitted in terms of section 60 of the Act, 2017, incurs penalty of disqualification or charge of corrupt practice, under clause (a) of section 167 of the Act, 2017. The elementary question is what would be the bench-mark / criterion for determination of allegations seeking disqualification? Judicial pronouncements, one after the other, have settled and addressed this question.

Guidance is solicited from the findings / observations recorded in additional note / opinion in the case of “Muhammad Hanif Abbasi Vs. Imran Khan Niazi and others” (PLD 2018 Supreme Court 189), relevant paragraph is reproduced hereunder,

10.In our jurisprudence, like in any other, one common penalty is never imposed for all kinds of dishonest acts, what to speak of imposing penalty for a dishonest act as well as for an omission made on account of negligence or bad judgment. Attributing

dishonesty to every omission to disclose an asset should not be made a rule set in stone and applied to disqualify a member on the touchstone of Section 99(1)(f) of RoPA or Article 62(1)(f) of the Constitution. The courts should not close its eyes to an omission which on the face of it could not be said to be dishonest. It would turn Sections 12(2)(f) and 42A of RoPA into the sword of Damocles hanging over the heads of the members of the National Assembly and the Provincial Assemblies, embroiling many of them in frivolous litigation even with regard to assets acquired prior to assuming the responsibilities of their office or acquired with clean money.

7.In reference to the context, reference is also made to the findings in paragraph 13 of the majority judgment in the case of “Malik Shakeel Awan Vs. Sheikh Rasheed Ahmed and 21 others” (PLD 2018 Supreme Court 643), which reads as,

13.Where a misstatement or an inaccuracy or concealment is established, the candidate / member would always have the opportunity to offer an explanation. Such explanation may or may not be found acceptable. Such is the ratio of the judgment of this Court rendered in the case reported as Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR 733). In the said case, an Election Petition filed before the Election Tribunal. In the proceedings, it stood established that a criminal case registered against the candidate was not mentioned in his Nomination Papers as required. Such candidate offered an explanation which was accepted by this Court by way of the aforesaid judgment which is incidentally authorized by my learned brother Qazi Faez Isa, J., and I too was a Member of the said Bench. The said view i.e. in case of concealment, discrepancy and misstatement in the Nomination Papers an explanation thereof may be given by the candidate/ member, which may or may not be accepted by the court. And only, if such explanation is found tenable no penal consequences would follow. The question of "strict liability" does not arise with regard to misstatements in the Nomination Papers. Such view was also followed in the judgments of this Court reported as Muhammad Siddique Baloch v. Jehangir Khan Tareen and others (PLD 2016 SC 97) and Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 SC 189). No departure has been made by this Court in the cases reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 9 others (PLD 2017 SC 265) and PLD 2017 SC 692). In the aforesaid case, the concealment of assets in the Nomination Papers filed by the Respondent in the said proceedings was established through an admission. At no point of time any explanation was offered, in this behalf. Therefore, the question of accepting or rejecting such explanation did not arise. Even in the

Review Petition, no explanation was offered. However, an oblique reference in hypothetical term was only made. This aspect of the matter was dealt with and adjudicated upon by this Court in the judgment passed on such review reported as Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others (PLD 2018 SC 1). Reference, in this behalf, may be made to para 11 of the said judgment. The relevant portion thereof is reproduced hereunder:

11.The argument that the omission to disclose assets could possibly be unintentional in the circumstances of the case would have been tenable had the petitioner been a novice or a new entrant in business and politics. But where he has been neck deep in business and politics ever since early 80s' it is unbelievable that he did not understand the simple principle of accounting that his accrued and accumulated salary of six and a half years was his asset and liability of the company he was an employee of. Even otherwise, this argument cannot be given much weight when it has not been pleaded by the petitioner that the omission to mention the asset was accidental, inadvertent or unintentional. ..." (Emphasis supplied)

Why no explanation was given or attempted to be given will always remain a mystery.

8.It is evident from the dicta laid down in aforesaid cases, that consequence or penalty qua any omission or non-disclosure of assets, or even an incorrect assertion, in the statement of assets is dependent upon or subject to the plausibility, rationality and tenability of the explanation offered. Learned counsel for Ayesha Nazir emphasized that mere non-disclosure or incorrect assertion in the statement of assets and liabilities be declared as false declaration, without adverting to the explanations offered. This submission is misconceived and fallacious on its face. Before making an adverse declaration, explanation provided, if any, needs consideration and analysis. It is essential to satisfy that whether non-disclosure or alleged

failure to disclose assets was deliberate and designed to gain intended potential benefit or not. The expression false or incorrect statement has meaningful significance, in the context of the controversy. Ninth Edition of Black’s Law Dictionary – Bryan A. Garner - defines expression “false” as untrue, and while elaborating the context thereof adds that ‘what is false can be so by intent, by accident or by mistake’. The relevant question, before making declaration in terms of section 165 of the Act, 2017 and Article 62(f) of the Constitution of Islamic Republic of Pakistan 1973, is whether alleged withholding / non-disclosure of information qua bank accounts of respondent No.3 and landed property of his spouse was by intent, by accident or by mistake. Facts of the case at hand are examined in this backdrop.

9.In the context of allegation of concealment of landed property of the spouse of the respondent No.3, upon hearing the submissions and evaluating explanation, it is difficult to hold and declare that information withheld, or alleged concealment, was intentional, particularly in the absence of specific allegation of purchase of property from the proceeds of crime, allegation of benami / ostensible ownership of property with an intent to avoid accountability by the holder of public office or aspersion of deliberate

non-disclosure of the identity of the property under reference – mutated in the revenue records on 08.06.2018, post cut-off date of 30th June 2017. There is no cavil that transfer of immovable property was effective upon execution of the registered sale deed in March 2017, but any apparent benefit, available or accrued, upon conscious non-disclosure, is conspicuous by its absence. Significantly noticeable fact is that asset in question was acquired fifteen months before the date of submission of statement of assets. It is difficult to attribute dishonesty or deceit to alleged non-disclosure, when respondent No.3 had, evidently, disclosed factum of landed property, owned by his spouse, in Income tax returns and statement of assets submitted before the Election Commission – though this apparent disclosure was made on account of filing of the election petition, still no convincing material is available to substantiate making of declaration of dishonesty in terms of Article 62(f) of the Constitution of Pakistan 1973 or holding respondent No.3 guilty of alleged corrupt practice.

Explanation offered outweighs probability of alleged dishonesty and deliberate intent to camouflage landed property, in the name of respondents’ spouse. Judicial pronouncements referred manifest single common factor, that before making any declaration the explanation(s) provided, in the context of peculiar

facts, essentially require consideration. And mere instance of non-disclosure of assets or any

shortcoming therein, simplicitor, would not per se / ipso facto attracts disqualification, by declaring election of the returned candidate void. Case-laws referred are examined. Most recent decision, in the series of decisions, dealing with the issue of disqualification of the returned candidates, is the case of Shamoona Badshah Qaisarani V. Election Tribunal, Multan and others (2021 SCMR 988), wherein, at the outset, it was observed that that ‘every nondisclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate’. Paragraphs 7, 8 & 9 thereof are relevant, which are reproduced hereunder for convenience,

“7. It is now a well settled principle that every nondisclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate. The purpose and intention needs to be seen behind the nondisclosure or mis-declaration. The returned candidate would be disqualified only when if he/she has dishonestly acquired assets and is hiding them to derive certain benefits. If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate then it would lead to termination of his candidature. This Court in the case of Khawaja Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128) has candidly held that merely the fact that a candidate has not declared an asset in the nomination papers would not end in his disqualification but it has to be seen whether the act of non-disclosure of the asset is with dishonest intent or not and only if there is dishonest intent behind the non-disclosure, the candidate would be disqualified. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. It would be advantageous to reproduce the relevant portion of the judgment, which reads as under:-

"9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person

may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omission would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper. Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty. As mentioned earlier even the proviso to section 14(3)(d) of RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of section 12 of RoPA would not prevent a candidate to contest election on the basis of another validly filed nomination paper. Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62(1)(f) in the Constitution. All non-disclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar v. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an element of bad intention with regard to an undeclared asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62(1)(f) of the Constitution cannot be invoked to disqualify an elected member for life.

10.Where a matter with regard to an undisclosed asset is taken to court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired. Where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission. In the impugned judgment, the learned High Court itself was conscious of the fact that where there is a case of non-disclosure of an asset the same ipso facto does not render a person to be

dishonest. In this regard, a judgment of this Court cited by respondent No. 1's counsel in the case of Rai Hassan Nawaz v. Haji Muhammad Ayub (PLD 2017 SC 70) was referred where it was held as follows:- "8. We, therefore, observe that any plausible explanation that exonerates, inter alia, misdeclaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators."

(Underlined to lay emphasis)

8.In the case of Shakeel Awan v. Sheikh Rasheed Ahmed (PLD 2018 SC 643) the appellant had sought disqualification of the respondent on the ground that the returned candidate/respondent has deliberately concealed certain agricultural land in his nomination papers; has declared his land holding to be 983 Kanals 17 Marlas while it has been established on record that the respondent owned 1049 Kanals and 13 Marlas and also not correctly disclosed the market value of certain immovable property. This Court while dismissing the appeal held that in cases where the non- disclosure or misdeclaration gives an illegal advantage to a candidate then such non-disclosure or misdeclaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal but the misdeclaration made by the respondent apparently did not offend any law, in that if he had disclosed his entire land holding and had shown the value of the said house to be forty eight million rupees he would still be able to contest the elections. In Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), Faisal Arab, J, as he then was, while agreeing with the majority view observed that there can be many examples where it can be safely said that an omission on the face of it is not dishonest. Omission to list an inherited property or the pensionary benefits received by one's spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be said that a member intentionally concealed its disclosure in order to cover some financial wrongdoing. Suchlike omissions at best could be categorized as bad judgment or negligence but not dishonesty. In Murad Bux v. Kareem Bux (2016 SCMR 2042), the petitioner in the nomination papers filed for contesting local council election had failed to disclose that a criminal case is pending against him, which on objection raised by the respondent, led to rejection of his nomination papers. However, this Court allowed the petition by holding

that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest for elections and that the non-disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made a ground to preclude the Petitioner from contesting the election.

9.In view of what has been discussed above, before disqualifying the appellant, the learned fora below ought to have established whether the act of the appellant of non- mentioning of landed property was a dishonest act with a view to gain some benefits i.e. to evade tax payment etc. or the property was acquired later on after elections by using corrupt practices etc.”

[Emphasis supplied]

10.Indubitably, in the wake of the dicta settled, evolved over the years, each case must be adjudged and decided on its own merits, and declaration of disqualification would not be made without adverting to the explanation offered – distinguishable from the case where no explanation whatsoever was tendered.

Pivotal question is that why the respondent No.3 would withhold disclosure of landed property, acquired in the name of his spouse, and what benefit would otherwise accrue as consequence of such non- disclosure. Record is silent. This is equally true in the context of allegation of withholding of information qua bank accounts. Nothing is available on record to convince this Tribunal that what covert benefit / advantage would be claimed or accrued to the respondent No.3 upon alleged concealment of bank accounts, otherwise dormant and non-operational - and one of the accounts showed available credit of US$ 385.66 Certificates of the bank officers and

statements of accounts speak volume about the fact that non-disclosure was not deliberate / intentional but simply based on pleaded mistaken belief, qua insignificance of inoperative / dormant accounts – otherwise showing notional credits. It is notable that respondent No.3 had produced certificates from the banks to affirm dormant / closed status of accounts, in addition to the certificate of no liability of loan / finance availed, disbursement whereof was made in the account No.054837107850 – NIACF Agri-limit.

Another account No.054837103784 contained balance of Rs.15,115/- at the time of submission of statements of assets. Two bank accounts were otherwise declared.

Explanations tendered when analyzed in the context of the ratio of series of decision rules out the possibility of intentional / deliberate withholding of details of accounts – when no apparent benefit was evidently available to the respondent No.3 upon alleged non- disclosure. Nothing is pleaded to rebut explanation offered that respondents’ son was not dependent, hence there was no basis to disclose assets held.

11.Learned counsel for Ayesha Nazir unsuccessfully attempted to draw similarity between the facts of the case at hand and case of Muhammad Ahmad Chatta V. Iftikhar Ahmad Cheema and others (2016 SCMR 763), facts whereof are distinguishable. It is appropriate to reproduce

paragraph 6 of the decision in the case of Muhammad Ahmad Chatta (supra), which reads as,

“6. From perusal of record, it transpires that at the time of submitting his nomination papers, an amount of Rs.25,28,893,90/-, as on 30.06.2012, was available in the respondent’s account bearing No.0010014643510016 which fact was not disclosed by him in his nomination papers as required under the Act, 1976. The respondent’s assertion that since on the date of submitting nomination papers, negligible amount was available, therefore, it was not considered appropriate by him to mention in the nomination papers, appears not correct. From scrutiny of record, it appears that even at the time of submitting nomination papers, a sum of Rs.2,93,342.90/- was shown on credit side in the said account. The contention of respondent, that he issued another cheque for purchasing some articles on the said date when he issued cheque of Rs.15,00,000/-, is not supported by the documents on record as after withdrawal of Rs.15,00,000/- by Cheque No.10965677, two cheques bearing Nos. 10965678 and 10965679 were debited from the said account and after deducting the same amounts, there still remain much amount to be mentioned in his nomination papers. It further transpires that after the issuance of above mentioned two cheques, substantial amounts were credits in the said account which clearly established that, for all practicable purposes, the account was operative and respondent, for the reasons best known to him, deliberately not mentioned the same in his nomination papers.

[Emphasis supplied]

12.The facts in the case of Ms. Shamuna Badshah Qaisarani V. Khawaja Muhammad Dawood and others (2016 SCMR 1420) are distinguishable, wherein assertion made qua non-disclosure of assets was found contrary to the revenue record, and paragraph 4 of the decision is reproduced hereunder for ease of reference, “4. The fact that certain properties were not disclosed in the nomination papers was not denied. The only defence that was taken was that as these properties have already been transferred in the names of appellant’s brothers, therefore, the same were not disclosed in nomination form. It is an admitted position that only in an affidavit it has been disclosed that the properties have been transferred to her brothers. At the time of filing of the nomination papers these properties were admittedly in the name of the appellant and her spouse in the revenue record.”

[Emphasis supplied]

And in the instant case, on 30th June 2017, landed property was not recorded in the name of the spouse of respondent No.3 in the revenue records. In the case

of Nida Khuhro V. Moazzam Ali Khan and others (2019 SCMR 1684), declaration was made in the context of facts therein, wherein lordships held that no bona fide mistake, clerical error or clerical mistake was made, and the explanation(s) offered qua admitted concealment / misdeclaration, in the said referred case, neither appeals to reason or logic - paragraph 28 thereof is reproduced hereunder,

“28. On the basis of material available on record. We are satisfied that;

(i)Respondent No.1 concealed his own assets as well as those of his dependent minor children in his nomination papers;

(ii)He filed a false affidavit, which in itself entails serious legal consequences. A detailed inquiry or investigation is not required in the matter in view of admission of non-disclosure by Respondent No.1. It is trite that admitted facts need not be proved;

(iii)We are also satisfied that there was no bona fide mistake, mathematical error or clerical mistake in preparing and filing the nomination papers and the affidavit filed in compliance of the order of this Court in Speaker, National Assembly of Pakistan’s case ibid; and

(iv)The explanation offered for the admitted concealment/misdeclaration neither appeals to reason nor logic. We have unfortunately been unable to persuade ourselves to accept it.”

[Emphasis supplied]

In the case of Rai Hassan Nawaz V. Haji Muhammad Ayub and others (PLD 2017 Supreme Court 70) declaration of disqualification was made after holding that ...... ‘the statement of assets and liabilities made by the appellant in his nomination papers is, therefore, intentional and not a bona fide or an innocuous omission made without design or purpose. It does not exonerate the appellant’. In the case of Rai Hassan Nawaz (supra) instances of non-disclosure of assets, without apparent intention and not pertaining to material particulars, were discussed, relevant paragraphs are reproduced hereunder, “6. Learned counsel for the appellant has tried to demolish that finding on the basis of law declared by different High Courts in Illahi Bux Soomro v. Aijaz Hussain Jakhrani 2004 CLC

1060, Umar Ayub Khan v. Returning Officer NA-19 (2003 MLD 222) and Ghazanfar Ali v. Noor Muhammad (PLD 2011 Lahore 11). These judgments treat a plausible explanation given by a contesting candidate for non-disclosure of assets in his nomination appears to be an exonerating factor. It is held that an element of deliberation by such candidate should be the cause of incomplete or non-disclosure of his assets or liabilities. We agree that a trifling error induced by reliance placed upon information furnished by a government functionary would not fall within the pale of Section 78(3)(d) of the ROPA. Rather this Section constitutes a false statement or incorrect declaration made by a contesting candidate in respect of ‘material’ particular, inter alia, about his assets and liabilities, to be a corrupt practice. Indeed an error or omission that is neither intentional nor pertains to a material particular in relation to the assets or liabilities of a contesting candidate would not constitute a corrupt practice. In the present case, the facts are, however, different. Several valuable urban properties yielding income running into millions of rupees have under a conscious tax scheme, affirmed and defended by the appellant before the learned Election Tribunal, been parked in the income tax return of a family company. With rights of ownership thereof including title, control and profits being vested in and enjoyed by the appellant, the conditions of a plausible explanation here are altogether absent.

8.We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidates’ [Emphasis supplied]

13.The case of Ch. Muhammad Yousaf Kaselia V. Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 Supreme Court 689) is also not attracted in the context of distinguishing facts.

14.This Tribunal finds no basis, justification and convincing material requisite for making declaration of disqualification of the respondent No.3, in the absence of any intent to draw benefit, advantage or premium, covert or otherwise. In wake of the record, it is difficult to hold and declare that respondent No.3 was responsible or liable for submitting false or incorrect statement of assets and liabilities, to an extent of alleged bank accounts – which is an obvious

consequence of a bona-fide mistake or genuinely mistaken belief. And likewise, no criminal intent could be attributed qua allegation of non-disclosure of landed property, which was declared in Income tax returns and declaration submitted before the Election Commission. Elements of dishonesty and deceptive intent are conspicuously missing, hence allegations are found meritless.

15.In view of the above, this Tribunal is not satisfied that statement of assets and liabilities and affidavit thereof was false or incorrect, hence, section 165 of the Act, 2017 is not attracted, in the context of the facts of the case, allegations levelled, and sufficiency of the explanations provided / offered.

16.Consequently, the show cause notice is withdrawn and proceedings under reference stand closed / abated.

Order was announced in open Court on

31.05.2022 and details reasons are released on

(ASIM HAFEEZ)

JUDGE /

ELECTION TRIBUNAL

M. Nadeem/*

APPROVED FOR REPORTING.