' The petitioner assails order dated 17-4-2013 passed by the Election Tribunal of this court. Through the impugned order nomination paper of the petitioner was rejected.
2. The learned Counsel for the petitioner submits that the main ground that persuaded the learned Election Tribunal to reject the nomination paper of the petitioner was that he had maneuvered the release of personal guarantee that had allegedly been issued by him to secure Finance obtained by Murtaza Haseeb Textile Mills Pvt. Ltd against finance availed from IDBP.
3. The learned counsel further submits that the learned Tribunal found that there was concealment of certain assets. Further certain dues including conversion charges and other related dues of Town Municipal Administration, Chichawatni were outstanding against the petitioner for properties, which had been sold as a Housing Scheme in the past.
4. The learned Election Tribunal also come to the conclusion that the petitioner had failed to disclose a vehicle which was allegedly owned by him.
5. The learned Counsel submits that in the first place the petitioner had not maneuvered the release of the guarantee in question. The petitioner had resigned from the aforesaid Company on 2-6-1997. The guarantee was released as a result of an agreement with the Bank involving transfer of management, which had voluntarily released the guarantee. Subsequently, the Bank filed a suit for recovery of its dues before this Court, in which the petitioner was impleaded as one of the defendants. However, vide order dated 30-11-2001, on an application moved by the petitioner, his name was deleted from the array of defendants. No one challenged that order, which still holds the field, which establishes the fact that the petitioner was no longer a guarantor nor was he under any obligation to pay any amount owed by Murtaza Haseeb Textile Mills Pvt. Ltd. He further points out that the suit was subsequently decreed and the decree is presently being executed. However, no proceedings have been initiated either against the petitioner in his personal capacity or as a guarantor.
6. The learned counsel for the petitioner further points out that certain assets belonging to Rai Cotton Factory Private Limited, which is a limited company and the petitioner is its Chief Executive, have been alleged to have been concealed. He points out that the said company is a taxpayer in its own right. All taxes paid by it and returns filed were duly disclosed and attached with the nomination paper filed before the Returning Officer. Further, details of all assets and properties belonging to the said company were also disclosed. The petitioner also disclosed in his nomination paper that Rai Cotton Factory Pvt. Ltd. Is one of his assets and its value was disclosed as Rs,120 million.
7. The learned counsel further maintains that the alleged demand for conversion fee raised by TMA Chichawatni is still under adjudication. This is evident from the fact that the Town Municipal Officer has himself stated that the matter of demand is subject to reconciliation of accounts and determination of liability. In this regard, he has referred to letter dated 12-4-2013. He, therefore, submits that learned Election Tribunal of this Court erred in law in coming to the conclusion that government dues were payable by the petitioner.
8. The learned counsel for the petitioner finally argues that there was no concealment of any vehicle owned by the petitioner. According to the documents placed before the learned Tribunal, the same was sold by the petitioner on 19-3-2013. Even otherwise, when the petitioner had disclosed total assets worth Rs,250 million, he had no reason to withhold information about the car worth about Rs,1 million.
9. Notwithstanding the afore-noted arguments, the learned counsel for the petitioner submits that at best even if for the sake of argument the grounds on the basis of which the petitioner's nomination paper has been rejected by the Tribunal were to be accepted as true it may constitute a case of misdeclaration, which does not entail the consequence of rejection of nomination paper as visualized in Representation of the People Act, 1976, nor such allegations attract the provisions of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. The learned counsel for respondent No,4 on the other hand submits that the guarantee issued by the petitioner which was collusively released by the bank. The guarantee was substituted by personal guarantees of a widowed/sister-in-law of the petitioner and an unknown person.
Admittedly, the said persons did not have any valuable properties against their names to back up the personal guarantees that they had furnished. He further submits that the Banking Court also released the petitioner from the array of defendants in a suit pending before it in view of the fact that the bank had willingly released the guarantee issued by the petitioner. The learned counsel maintains that the petitioner also suppressed certain material facts in his nomination paper in so far as some properties were not mentioned which are owned by the petitioner and have been leased out. He points out that the lease deeds have also been placed on the record by the respondent. He further submits that the petitioner has not paid dues owed by him to the government. He points out that conversion charges in sums of excess of rupees one million are payable to the Tehsil Municipal Administration, Chichawatni. The said sums remain unpaid to date.
Therefore, the argument of the learned counsel that the said sums have not been quantified is of no avail.
11. We summoned Tehsil Municipal Officer Chichawatni to clarify the situation regarding the scheme floated by the petitioner, the demand for conversion fee and other charges. He has confirmed that the matter has not been decided so far and liability will be determined and quantified after reconciliation of accounts for which orders have been passed by the competent officer.
12. Arguments heard. Record perused.
13. The argument of learned counsel for the respondent that the guarantee issued by the petitioner was collusively released to him, does not find support from the record. On the other hand, it is clear that the guarantee has been released with the consent of the bank. The said release has not been challenged by any party before any forum. The Banking Court which tried the recovery suit also deleted the name of the petitioner from the array of the defendants. The allegation that the guarantee was released and the petitioner was released from his obligation as a guarantor, cannot at this stage be relied upon in order to attract the provisions of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise this is a factual enquiry requiring recording of evidence which cannot be undertaken in the constitutional jurisdiction of this Court.
14. As far as the assertion that certain amounts are outstanding against the petitioner which are payable to Tehsil Municipal Administration, Chichawatni is concerned, we have summoned the record of the said TMA. It appears that the petitioner had moved an application before the competent authority for approval of the layout plan for his Housing Scheme and payment of conversion charges on 17-11-2011. The concerned officer who has appeared before us has confirmed to us that the said application was marked by the TMO to the concerned officer on 11-4- 20.12. However, no further proceedings were taken on the application and the matter remained dormant till 4-4-2013 when a demand in the sum of Rs,1,382,400/- was sent to the petitioner. The TMO who has appeared in person has riot been able to show how that demand is based on a conscious and rational calculation. He has been unable to explain the basis for the various figures mentioned in the demand notice. He has no knowledge of the noting given on the application of the petitioner which is appended at page 260 of this petition which provides for reconciliation of accounts with the petitioner. On being confronted with the noting, he has identified the signatures of the then TMO. It is pointed out that note clearly indicates that the request of the petitioner for reconciliation of calculations has been allowed which establishes that an exact figure of the demand raised by the TMO, has not been determined. This being the admitted situation where the demand had not been finalized and remanded from the petitioner, it cannot be said that the petitioner was in default of government dues.
15. The learned counsel for the respondent has also pointed out that there is a suppression of certain properties owned by the petitioner in the nomination paper. However, at best the said alleged suppression constitutes misdeclaration which would not in the facts and circumstances of the present case attract disqualification as per criteria laid down in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973.
16. The respondent, as well as, the Election Commission of Pakistan are, however, not precluded from looking into this matter and exercise of its powers under the provisions of Representation of the People Act, 1976 in case a misdeclaration is discovered at any stage.
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 Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089).
19. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before us, in the facts and circumstances brought to our notice for the limited purpose of deciding this petition.
The Election Commission of Pakistan shall, however, be at liberty to independently exercise its powers on the basis of material placed before it and take appropriate proceedings and/or pass orders on the application of any interested party under the provisions of Representation of the People Act, 19'76 without in any way being influenced by this order.
20. For the reasons recorded above, we find that the order dated 17-4-2013 passed by the Election Tribunal of this Court is unsustainable. It is accordingly set aside.
21. We have already granted interim relief vide order dated 19-4-2013. The same is hereby confirmed.
22. This in the afore-noted terms.