' In view of the judgment passed by the Hon'ble Supreme Court of Pakistan in C.P.No,5 of 2012 titled "Syed .Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretaty Law and others", Ch. Zahid Iqbal MNA NA-162 Sahiwal III now respondent No,2 amongst other parliamentarians was declared disqualified to continue being a member of Majlis-e-Shoora. This seat fell vacant. The Election Commission of Pakistan vide notification dated 26-92012, in pursuance of provisions of section 11 of the Representation of the People Act, 1976 read with section 108 and Article 224 of Constitution of the Islamic Republic of Pakistan, 1973 called upon the electors of the said constituency to elect a member to the vacant seat. The appellant, respondent No,2 Zahid Iqbal and others filed their nomination papers for election to NA-162 SWL III. The appellant filed objection petition challenging the qualifications and attributing certain disqualifications to respondent No,2 in view of .The above referred judgment. The objection petition was dismissed and vide order dated 11-10-2012, the nomination papers of respondent No,2 were accepted by Returning Officer.
2. It is contended by the learned counsel for the appellant that the impugned order dated 11-10- 2012 is not in accordance with the provisions of subsection (3) of section 14 of the Representation of the People Act, 1976. The Returning Officer was competent and duty bound to conduct summary inquiry either on his own motion or upon any objection by an elector or any other person. On account of respondent No,2 having already been disqualified by the august Supreme Court of Pakistan, the Returning Officer had no option but to reject his nomination papers. The Returning Officer has violated the dictum laid down in the above referred judgment. Relies on "PLD 2010 Supreme Court 817" Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others. Further contends that respondent No,2 at the time of hearing of the above referred case had taken a stance that he was not a citizen of Great Britain. At the time of filing of nomination papers in General Elections, he had made a declaration that he was qualified to be elected as a member to the Parliament and was not suffering from any disqualification. He having been declared by august Supreme Court of Pakistan disqualified on account of holding the dual citizenship is not qualified even to contest election in question, as by filing of a wrong statement he is no more a sagacious and a righteous person. He likewise Mr. A. Rehman Malik, Senator who vide the referred judgment has again been declared to be disqualified to be elected, is also a disqualified person; that respondent No,2 in compliance of the referred judgment, having not refunded all monetary benefits drawn by him for the period during which he occupied the seat of Senator, was a defaulter and a violator of the judgment passed by the august Supreme Court of Pakistan supra; that the respondent has not even till day renounced his citizenship of United Kingdom. He is not qualified to be elected to be member of Majlis-e-Shoora in terms of Articles 62(1)(f) and 63(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973.
3. On the other hand, it is contended by the learned counsel for respondent No,2 that respondent No,2 has renounced his citizenship by . Making a declaration on 4-9-2010. It was followed by a certificate issued by the United Kingdom border agency dated 4-10-2012. Respondent No,2 on the last day of filing of the nomination on 15-10-2012 was not a citizen of any foreign State. The respondent though had been declared disqualified to be a member of the Majlis-e-Shoora on account of being citizen of a foreign State but his disqualification had ceased to exist on the day when he filed the nomination papers. He was qualified to be elected as a member of Majlis-e- Shoora as is provided under Article 62 and was not disqualified to be so elected as is provided under Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973 and he had not been declared to be disqualified by the august Supreme Court of Pakistan in Syed Mehmood Akhtar Naqvi's case, on account of not being sagacious, righteous, non-profligate, honest and ameen. To render a person disqualified to be a member of the Majlis-e-Shoora or to stripe a member of his membership for these causes, such a declaration is a sine qua non. He refers to "2006 SCM R 1356" titled Ahad Sharif alias Muhammad Ahad and another v. Javed Tariq and others, wherein it was held that in order to hold a person disqualified he has to be ' adjudged' to be a defaulter. He also relies on "PLD 2010 Supreme Court 1066" titled Rana Aftab Ahmad Khan v. Muhammad Ajmal and another, to argue that a person in order to be disqualified under Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, must have been declared to be disqualified which is not the case of respondent No,2 and which is the case of Mr. A. Rehnn Malik Senator only as per Syed Mehmood Akhtar Naqvi's judgment.
4. We have heard the learned counsel for the parties and the learned Law Officers representing the Federation and the Province of Punjab.
5. Respondent No,2 in his declaration made in the nomination papers during the general elections had declared that he was qualified to be elected as a member to the Majlis-e-Shoora (Parliament) as is required under Article 62 of the Constitution of the Islamic: Republic of Pakistan, 1973 and did not suffer from any of the disqualifications as are enumerated under Article 63 of the Constitution.
During hearing of the Syed Mehmood Akhtar Naqvi's case, the respondent had taken a stance that though he had been a permanent resident of United Kingdom yet had not acquired the citizenship of that Country. This stance was not accepted. He was found to be disqualified from being member of Majlis- e-Shoora (Parliament) and the Election Commission was directed to identify his membership of the Parliament. The question arises, how long the disqualification will continue and what will be the effect of wrong declaration made by respondent No,2 while submitting the nomination papers in the general elections. The disqualification under Article 63(1)(c) will continue as long he has the citizenship of a -Foreign State. The respondent made a declaration of renunciation of British citizenship on 4-9-2012. The renunciation was certified by the Home Office U.K border agency. It confirms 4-10-2012 as the date on which respondent No,2 ceased to be a'
British citizenship in accordance to the provisions of the British Nationality Act, 1981 and was a citizen of Pakistan as per section 14 of Pakistan Citizenship Act, 1951. On the day when he submitted the nomination papers on 9-10-2012, he was not undergoing the disqualification under Article 63(1)
(c), thus the declaration made by him in the election now in vogue is not incorrect. The wrong declaration made by respondent No,2 in the general elections regarding his qualification and disqualification has resulted in finding him to be disqualified by the august Supreme Court of Pakistan and in identification of his election to the seat then in question. In the referred judgment, respondent No,2 has not further been declared to be disqualified for the times to come on account of not being sagacious, righteous, non-profligate, honest and ameen. The case of respondent No,2 is distinct and severable from that of Mr. A. Rehman Malik Senator. The latter had been declared by the august Supreme Court of Pakistan not to be sagacious, righteous, non-profligate, honest and ameen, whereas respondent 'No,2, on account of having made a wrong declaration at the time of general elections and having made misstatements or concealment of the facts, is said to have been exposed himself to criminal proceedings only provided in sections 193, 196, 197, 198 and 199 of P.P.C. That would not render him disqualified from contesting the elections in future. No such declaration was there with the Returning Officer to hold the respondent disqualified and to enable the Returning Officer to reject his nomination papers. We seized with this appeal have to gauge the order passed by the Returning Officer on the basis of provisions of Articles 62(1)(f) and 63(1)(c) of the Constitution of the Islamic Republic of Pakistan, 1973 and sections 99 and 100 of the Representation of the People Act, 1976 and the judgment passed by the august Supreme Court of Pakistan in Syed Mehmood Akhtar Naqvi's case. The august Supreme Court of Pakistan though had ordered the respondent, and other denotified Parliamentarians to refund all monetary benefits drawn by them for the period during which they occupied the public office and had drawn their emoluments etc. But this refund was to follow the determination and calculation in the terms 'of money by the Secretaries of the Senate, National Assembly and Provincial Assembly accordingly.
After the determination, the amount so recovered from the denotified members was to be deposited in the public exchequer within two weeks. The learned Law Officers and the learned counsel for the appellant have not referred to any record to come to the conclusion that the money ordered to be refunded had been calculated and ascertained. That not having been done, respondent No,2 cannot be held, having not complied with the order passed by the august Supreme Court of Pakistan. The Returning Officer has passed the order rejecting the objection petition of the appellant and accepting the nomination papers of the respondent in view of the record which did not hint that respondent No,2 was still undergoing a disqualification under Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973 or the corresponding sections 99 and 100 of the Representation of the People Act, 1976 or had been declared by a Court of law not to be sagacious, righteous, non-profligate, honest and ameen and had not complied with the orders passed by the august Supreme Court of Pakistan in Syed Mehmood Akhtar Naqvi's case. The disqualification if any incurred by the respondent may, after the production of the evidence be considered by the Election Tribunal appointed by the Election Commission under section 57 of the Act, 1976 ibid in an Election petition. The Returning Officer cannot be said to have flouted the judgment passed in "PLD 2010 Supreme Court 817" or to have omitted to perform his functions and duties entrusted to him under sections 7 and 14 of the Representation of the People Act, 1976. In forming our view, we are supported by the judgments passed by the august Supreme Court of Pakistan in "2006 SCM R 1356" and "PLD 2010 Supreme Court 1066". The above findings lead to dismissal of this appeal.