' KAZIM ALI MALIK. --- Muhammad Irian Abid, petitioner and Mian Muhammad Rasheed, respondent No, 1, besides respondents No, 2 to 12 contested General Elections-2013 for the position of Member National Assembly (MNA) from constituency No, NA-115 (Narowal). On close of the poll, the Returning Officer consolidated results of the count and submitted final statement of the count on Form-XVI to the Election Commission of Pakistan on the basis of which Mian n Muhammad Rasheed, respondent No, 1 was notified as the returned candidate from the above-said constituency. Feeling dissatisfied with the result of the election favourable to the returned candidate, Muhammad Arfan Abid, petitioner/runner-up filed the election petition and called in question the legality and correctness of the election, which ended in favour of the returned candidate. The petitioner set up following grounds in support of his cause:--- i. That the returned candidate concealed his assets and income while submitting his nomination papers before the Returning Officer; ii. That the returned candidate furnished wrong information regarding the assets and Income of his spouse and other dependents; iii. That the returned candidate withheld correct information regarding his liability to pay the agricultural income tax; iv. That the returned candidate took contradictory stance regarding his assets and income and that of his spouse/dependents before the Accountability Court and the Returning Officer; v. That the returned candidate got allotted residential plots in his favour and in the name of his spouse from the discretionary quota of the Chief Minister Punjab and sold his plot at market rate and in this way mis-used his position as MPA, which he held at that time; vi. That the returned candidate was/is income tax defaulter; and vii. That the returned candidate recommended the requests for "Qarz-e-Hasna" made by his father brothers, nephews and servants and thus committed corrupt practice while holding the position of Member Provincial Assembly, Punjab.
' On the basis of above-said allegations the petitioner has asserted that the returned candidate was/is not sagacious, righteous, non-profligate, honest and ameen in terms of Article 62 of the Constitution and was not qualified to contest the election in question. Needless to add that the petitioner did not make any allegation against the process of election.
2. On contesting being put, the returned candidate denied and dismissed the above-said stance of the petitioner through his written statement. A few preliminary objections were also raised.
3. Only the petitioner and the returned candidate remained failed to prosecute their respective case and cause as respondents No, 2 to 12 opted to remain absent and were proceeded against ex parte. In the light of counter-claims of the parties set up in the election petition and the written statement, my learned predecessor framed the following issues:---
(1) Whether this election petition is incompetent in its present form and not maintainable due to violation of procedure prescribed in notification dated 16.03.1985 of Election Commission of Pakistan and Sections 54/55/63 of the Representation of People Act, 1976 for the reasons mentioned in preliminary objections No, 1 to 6 of the written statement? OPR1.
(2) Whether the Petitioner has not come to this Tribunal with clean hands. If so, its effect? OPR1.
(3) Whether the petitioner is estopped by his words and conduct to file this petition? OPR1.
(4) Whether the respondent No, 1 is not qualified to be elected as member of the National Assembly? OPA.
(5) Whether the respondent No, 1 was disqualified to be elected as member of the National Assembly? OPA.
(6) Whether the election in question is liable to be declared as void for the reasons stated in the election petition and petitioner is entitled to be declared as returned candidate or in the alternative re-poll in constituency No, NA-115 Narowal-I may be ordered? OPA
(7) Relief.
4. The petitioner got examined Mr. Awais Ahmed Memon, SDO GAPCO, Zafarwal, (PW-1), Mr. Abdul Sattar, Manager Agricultural Development Bank, Shakargarh Branch (PW-2), Mr. Muhammad Yasin Bajwa, Accountant to the office of District Food Controller, Sialkot (PW-3), Muhammad Rashid Shamas, Patwari, Revenue Estate, Darman, District Narowal (PW-4), Muhammad Muzaffar, Qanunngo Laisar Qalan, District Narowal (PW-5), Mr. Abbu Bakar, Officer Grade-II, National Bank of Pakistan, Narowal (PW-6) and Mr. Muhammad Islam, SDO WAPDA, Narowal (PW-7). The petitioner also entered the witness-box as PW-9 in support of his case. He adduced in evidence a large number of documents Ex.PA to Ex.YYY, which shall be examined and discussed while analyzing the counter-claims to arrive at the truth.
5. On the other hand, the returned candidate examined Ali Akbar Khalid (RW-1), Mian Shahid Sharif (RW2), and Nadeem Murtaza (RW-3). The returned candidate made his statement as RW-4.
Besides the above-said witnesses examined by both sides, Mrs. Shamim Akhtar, respondent No, 12 wife of respondent No, 1/returned candidate was examined as Tribunal witness No, 1 to resolve the controversy regarding her pension cases.
6. I have heard both sides and have perused the record carefully. During the course of arguments, learned counsel for the returned candidate did not utter a single word regarding issues No, 1, 2 and 3 and resultantly the said three issues stands disposed of as having been not pressed.
7. I find it convenient to take-up each allegation set up in the election petition and agitated at the time of arguments separately for analysis and scrutiny.
8. The petitioner alleged at para-7 of the election petition that the returned candidate did not pay income tax despite the fact that at trial before the Accountability Court in ACR No, 10/2002 he admitted that he earned substantial taxable income. For two reasons I do not feel inclined to attach any importance to this allegation. Firstly, there is no document on the file which may show that the returned candidate was/is defaulter of Income tax. Admittedly, he has not been adjudged as defaulter of income tax by the Income Tax Authorities or the Court of law. Except the self- assertion by the petitioner there is not an iota of legal evidence on the file to prove that the petitioner was/is Income Tax defaulter. Under the law, self-assertion by the party does not provide a legal basis to pass a legal order. The petitioner failed to bring on record documentary evidence to establish that the petitioner defaulted in payment of Income Tax due from him. Secondly, the returned candidate was acquitted of the charge by the learned Accountability Court, Lahore in ACR No, 10/2002, referred to above. The mere fact that at one time the returned candidate was prosecuted on different charges before the Accountability Court would not provide a legal basis to hold him defaulter of Income Tax. Certified copies of complete proceedings of the Accountability Court have been adduced in evidence by the petitioner as Ex. P-A to Ex. P-YYY. A combined examination of all the proceedings conducted by the Accountability Court would show that the prosecution failed to prove the charge against the returned candidate resulting in his acquittal by the learned Accountability Court. There is no dispute as to this that the order of acquittal of the returned candidate in the above-said Reference remained un-challenged and attained finality.
The judgment of acquittal by the Accountability Court, favourable to the returned candidate stands in the way of the petitioner to blame the returned candidate before the Election Tribunal for the allegations already examined and dismissed by the learned Trial Court. The petitioner alleged in vague terms that the returned candidate did not pay income tax due from him. He failed to bring on record an iota of evidence at trial of the election dispute to prove the said allegation. What to talk of the allegation of default in payment of income tax, the returned candidate is not even an assessee of income tax as per evidence on the file. I fail to understand as to how and on what basis the petitioner leveled the above-said allegation for which he was possessed with no evidence.
Hence, it can be safely concluded that it is a case of r evidence qua the allegation of default in payment of income tax.
9. Now I take up the allegation regarding agricultural income of the returned candidate. Learned counsel for the petitioner has contended with reference to the proceedings conducted by the Accountability Court and adduced in evidence by the petitioner that the returned candidate took self-contradictory stance before the Accountability Court and the Election Tribunal regarding per acre average yield of his owned land. The learned counsel further explained that before the Accountability Court, Lahore the returned candidate stated that per acre average yield of his land was 50/60 maunds, but he reduced the per acre average yield of land from 50/60 maunds to about 30 maunds before the Election Tribunal. Learned counsel for the petitioner has argued that the returned candidate earned disqualification in terms of Article 62(f) of the Constitution for having made false statements regarding per acre average yield of his land before the said forums.
I have examined this argument in the light of Article 62(f) of the Constitution and the evidence on record and would say that the contention is misconceived for multiple reasons. Firstly, the returned candidate did not mention the exact per acre average yield of his owned land before the learned Accountability Court, Lahore. He submitted before that Court that per acre average yield of land was 50/60 maunds approximately at relevant time. Likewise, before the Election Tribunal he stated that about 30 maunds was per acre average yield of his owned land. The people attached with agriculture can understand very easily that per acre average yield of land under cultivation does not remain still and static. Floods seasonal effects, cultivation skill, quality of seed and fertilizer and expertise of the cultivator affect per acre average yield of the land.. At the cost of repetition I would say that the returned candidate did not claim before the learned Accountability Court that per acre average yield of his land was 50 or 60 maunds. Similarly, before the Election Tribunal he did not furnish an information mathematically qua per acre average yield of his land and instead stated that the yield was about was 30 maunds. Secondly, if it is admitted for the sake of arguments for a moment that the returned candidate put forward contradictory stance regarding per acre average yield of his land, even then his omission or failure to give exact and accurate information in this regard would not adversely affect his qualification to contest the election because he neither caused wrongful loss to the Govt. Exchequer nor derived wrongful gain for himself. The dispute of per acre average yield from his agricultural land has nothing to do with the fate of this election dispute because it can be concluded on the basis of available evidence that the returned candidate regularly paid the agricultural income tax assessed against him for his owned land under cultivation. There is no evidence on the file which may show tha he made default in payment of agricultural income tax. Thirdly, this is a question of common knowledge that the land owners and cultivators attached with the agriculture do not maintain record of their annual or monthly agricultural income mathematically like Traders, Industrialists and Shopkeepers.
Hence, the omission or failure of the returned candidate to furnish exact and accurate information about per acre average yield of his lands would not provide a basis to disqualify him in terms of Article 62(f) of the Constitution. Fourthly, the returned candidate explained while making his statement on oath at trial that he remained in jail for years in the above-said NAB case, which adversely affected cultivation of his owned lands; that he sold half of his land and agricultural machinery after his acquittal in the NAB case and that the floods also made his land sandy. I see no reason to disbelieve the above-said explanation and stance of the returned candidate because he did not derive any monetary benefit by reducing the per acre average yield of land from 50/60 maunds to about 30 maunds. The returned candidate has not been adjudged as defaulter of agricultural income tax by the Collector and therefore, claim of the petitioner touching average per acre yield is not fatal to the cause of returned candidate.
10. The petitioner made another allegation that while holding the position of Member, Provincial Assembly, Punjab, the petitioner got allotted two plots in Johar Town Scheme, Lahore, one in his own name and the other in favour of his wife Mst. Shamim Akhtar and that the petitioner paid fixed/prescribed price of Rs, 99021/- of his plot and sold it at the market rate of Rs 900,000/-.
Allotment of the above-said plots to the returned candidate and his spouse is not in dispute. It is in evidence of both the sides that the plots were allotted to the returned candidate and his wife by the Chief Minister, Punjab, from his discretionary quota. Under the approved policy, it was prerogative of the Chief Minister, Punjab, to allot limited number of plots to the people from his discretionary quota. The Chief Minister exercised his discretionary powers and allotted the said plots. Allotment of the plots in question has not been cancelled by the competent authority or the Court of Law. It is not in dispute or disputable that in different Housing Schemes approved and launched by the Federal and Provincial Governments, high ranking officers of different Govt.
Departments, public representatives and others holding important positions got allotted the plots.
In case the petitioner is of the view that the Federal and Provincial Governments should not allot plots to any one and if such allotments are against the public interest, then the Governments should be moved to change their policy instead of blaming allotees of the plots under the approved policy. In the case in hand the returned candidate and his spouse made written requests for allotment of plots in Johar Town Scheme, Lahore from the discretionary quota of the CM, Punjab.
They were not in a position to compel or force the CM Punjab, to exercise his discretionary powers in their favour. To my mind, allotment of plots to the returned candidate and his wife does not fall within the ambit of corrupt practice.
11. The petitioner alleged that at one time the returned candidate admitted before the Accountability Court, that he was a business partner of rice mills and therefore, he was bound to submit income tax return regarding the income, which he generated as partner of the said business. As a matter of fact the petitioner's learned counsel has attempted to support the allegation by reading the evidence in bits and pieces. The returned candidate rebutted this allegation through his written statement in line with his stance before the learned Accountability Court, Lahore that he closed down the business of rice in 1984. Except an oral allegation/self- assertion by the petitioner about the said business, there is no cogent and convincing evidence on the file, which may show that the returned candidate did not close down the business of rice in 1984 as stated by him on oath. In this view of the matter, the returned candidate is/was not under legal obligation to submit income tax return or to pay income tax for the said business, which does not exist since 1984. It is also noteworthy that the income tax authorities have not held the returned candidate liable to pay income tax on the aforesaid business. In this view of the matter, the above- said self-assertion of the petitioner against the returned has fallen to the ground.
12. The petitioner made an allegation that the returned candidate concealed the factum of trial faced by him before the learned Accountability Court, Lahore. It has been observed in the preceding paragraphs that the returned candidate faced trial before the learned Accountability Court, Lahore on a number of charges. Certified copies of complete record of the said trial in the NAB case have been adduced in evidence by the petitioner. He also got examined Abdul Sattar, Manager Agricultural Development Bank, Shakargarh Branch (PW-2); Muhammad Yasin Bajwa, Accountant Office to of District Food Controller, Sialkot (PW-3); Muhammad Rashid Shahmas, Patwari Revenue Estate Darman District Narowal (PW-4); Muhammad Muzaffar, Qanung Laisar Kalan District Narowal (PW-5) and Abbu Bakar, Officer Grade-II, National Bank, Narowal (PW-6), who stated that they appeared before the learned Accountability Court, Lahore as witness at trial against the returned candidate. Admittedly and undoubtedly, the returned candidate was acquitted of the charge by the Accountability Court, in the said NAB case. Acquittal of the returned candidate remained un-challenged and attained finality. I fail to understand as to why the returned candidate has been blamed for the said NAB case, which ended in his acquittal. I must say that the allegation with reference to the NAB case has been made and agitated un- necessarily.
13. The petitioner made an allegation that while holding the position of Member, Provincial Assembly, Punjab, the returned candidate recommended requests for Qarz-e-Hasnal made by his father, brothers, nephews and others and got sanctioned the loan in their favour. The petitioner is of the opinion that the returned candidate extended undue monetary benefit to his aforesaid close relations. Learned counsel for the petitioner contended that corrupt mind of the returned candidate contributed towards the sanction of loan in favour of his close relations. At trial of the election dispute, the returned candidate was examined with reference to his recommendations for 'Qarze-Hasna' in favour of his close relations when he admitted that he recommended aforesaid requests for loan made by his close relations in order to arrange funds for treatment of a poor cancer patient of his constituency. For multiple reasons, I am of the considered view that the alley under scrutiny has not adversely affected the qualification the returned candidate to contest the election or to hold the public office. Firstly, the returned candidate was not the competent authority to sanction 'Qarz-e-Hasna' in favour of his close relations. The returned candidate did not sanction 'Qarz-e-Hasna'. Being public representative of the electors of the constituency including his close relations, he simply recommended their requests for 'Qarz-e-Hasna'. The recommendation by the returned candidate was not binding on the competent authority, which sanctioned 'Qarz-eHasna' in question. Secondly, this is a question of common knowledge that in all the constituencies of the rural Punjab, the voters/supporters/friends/relations of the public representative approach him seeking his indulgence and recommendation in connection with their grievances and problems as it is a common perception that without recommendation by the public representative, the Govt.
Functionaries would not solve their problems. Keeping in view the above-said ground reality and the compulsions imposed on the people through mis-governance of different Govt. Departments, the people approaching the public representative for his indulgence should not be blamed. Thirdly, it has not been alleged nor it is in evidence that the loanees, who got sanctioned the loan on the recommendation of the returned candidate, failed to pay the loan. Without resolving the controversy as to whether the returned candidate recommended requests for loan of his close relations for their own benefit or for the benefit of poor cancer patient, I would say that the qualification of returned candidate to contest the election has not been affected adversely particularly when there is no allegation of default in payment of loan by the loanee.
14. Now I take up the allegation regarding alleged concealment of the income of spouse of the returned candidate. In order to arrive at the truth, I examined Mst. Shamim Akhtar (respondent No, 12), wife of the returned candidate as Tribunal witness No,
1. She was one of the contesting candidates and was proceeded against ex parte at trial of the election dispute. In response to a notice by the Election Tribunal requiring her to enter the witness-box and make statement regarding her income, she made the statement willingly without any hesitation. It is manifest from her statement as 11N-1 that being Ex-MLA, AJ&K, she has been receiving honoraria of Rs, 10,000/- per month besides Rs, 6000/- per month pension as retired PTC teacher. Learned counsel for the petitioner has contended that this is a matter of record that the returned candidate concealed the aforesaid income of his spouse while submitting his nomination papers/declaration of assets.
When confronted with the above-said argument and the state of record, learned counsel for the returned candidate has attempted to argue that Rs, 10,000/- per month honoraria and Rs, 6000/- per month pension as retired school teacher do not fall within the definition of assets and that there was no specific column in the nomination papers for the pension and honoraria of the spouse of the returned candidate. I am not in agreement with the learned counsel for the returned candidate. The meanings of the word; 'Assets' are anything useful and valuable including property or money. I am of the view that monthly income of spouse of the returned candidate to the tune of Rs, 6000/- and Rs, 10,000/- falls within the ambit of assets. The next question, which requires consideration is as to whether it is a case of concealment of assets or an innocent omission on the part of returned candidate. It is evident from the evidence produced by both the sides that the returned candidate and his spouse are not income tax payers or income tax assessee. They are/were liable to pay agricultural income tax only, which is not due from them as per record.
Hence, I feel inclined to hold that it was an innocent omission on the part of the returned candidate because non-mentioning of Rs, 10,000/- + Rs, 6000/- in the nomination papers neither caused wrongful loss to the Govt. Exchequer nor wrongful gain for him. Had the returned candidate mentioned the honoraria of Rs, 10,000/- per month and pension of Rs, 6000/- per month as income/asset of his spouse, she would not have been made liable to pay income tax. There is marked difference between concealment of assets and an innocent omission in this regard. Hence, I would conclude that omission on the part of the returned candidate to mention the above-said petty amount in the declaration of his assets, has no bearing on the fate of this election petition.
15. Awais Ahmad, GAPCO, Zafarwal (PW-1) and Mr. Muhammad Islam, SDO WAPDA, Narowal (PW-7) deposed that the spouse of the returned candidate paid annual electricity bill of Rs, 350823/- against agricultural power connection in her name. The petitioner also admitted at trial that he obtained agricultural power connection in the name of his wife, against which Rs, 350823/- were paid. Learned counsel for the petitioner has contended that the returned candidate and his spouse concealed the payment of above-said electricity dues with a motive to suppress their agricultural income indirectly. The argument appears to be farfetched story. Payment of Rs, 350823 as electricity charges for one year against agricultural power connection would not mean that the returned candidate and his spouse are billionaires. The spouse of returned candidate paid annual bill of Rs, 350823/-. Monthly electricity bill against her agricultural power connection comes to about Rs, 29234/-. Payment of monthly electricity charges of Rs, 29234/-against agricultural power connection would not provide a basis to infer that the returned candidate and his wife are billionaires or millionaires and liable to pay income tax or more agricultural tax, particularly when they are not the assessee of income tax nor they have been adjudged as defaulters of agricultural income tax by the Collector.
16. Learned counsel for the petitioner has placed reliance on the case-law laid down in Malik lqbal Ahmad Lengrial v. Jamshed Alam and others, PLD 2013 SC 179; Allah Dino Khan Bhayo v. Election Commission of Pakistan and others, 2013 SCM R 1655 and Muddassar Qayyum Nahra v. Ch. Bilal ljaz and others 2011 SCM R 80 and has contended that the returned candidate made wrong and dishonest statements regarding his assets and income and that of his spouse/dependents and stood disqualified to hold the public office. I have gone through the precedent cases and would say without any fear of contradiction that facts of the precedent cases are altogether different from that of the case in hand. In the precedent cases the returned candidates earned disqualification to hold the public office because they produced fake and bogus Bachelor degree and educational certificates. I have already examined and analyzed factual aspects of the case in hand in the preceding paragraphs and in view of my findings based on facts, the case of the returned candidate is not at par with that of the returned candidates of precedent cases.
17. Learned counsel for the petitioner further argued that in Abbas Khan's case reported as 2002 SCM R 398, the returned candidate was disqualified to hold the public office for having failed to declare the money lying in his bank account and that in the case in hand the returned candidate also did not declare the monthly income of his wife. I have minutely gone through the precedent case and the case in hand. In the precedent case a substantial amount of money deposited in the bank account of the candidate had not been disclosed by him while filing his nomination papers/declaration of assets and his failure was treated as fatal. In the case in hand the returned candidate and his spouse did not conceal any information regarding their bank accounts. The only allegation against the returned candidate of the case in hand is that he did not mention the honoraria of Rs, 10,000/- per month and pension of Rs, 6000/- per month, which his wife has been receiving. I have already observed in the preceding paragraphs that by doing so the returned candidate neither caused wrongful loss to the Govt. Exchequer nor derived wrongful gain for himself. Hence, concealment of substantial amount lying in the bank account and omission to mention the petty amount of Rs, 16000/- per month received by spouse of the returned candidate cannot be treated at par with each other.
18. Before parting, it is must to say that the print and electronic media developed wrong perception amongst the masses offensive to the intention of the law-givers that superhuman possessed with divine wisdom and angelic character would represent the human beings in the parliament. The public representative is not holy person leading a saintly life. Unfortunately, conduct of the public representative is being discussed/analyzed/scrutinized at public and legal forums as if he is required not to commit mistakes and wrongs. As human being he is bound to commit mistakes as he is subject to a number of infirmities. Another negative aspect of the matter is that the innocent omissions/un-intentional mistakes by the public representative are not differentiated from crimes/offences/major sins/corrupt and illegal practices. While examining conduct of the returned candidate of this case in the light of the allegations set up in the election petition and the evidence brought on record, I am unable to treat his un-intentional mistakes/innocent omissions/human errors at par with crimes/offenses/major sins/corrupt and illegal practices. Mian Muhammad Rasheed/respondent No, 1 is human being and is/was subject to a number of weaknesses and infirmities like other fellow human beings. He is neither superhuman nor holy person blessed with divine wisdom and angelic character. Hence, he is/was not supposed to lead a saintly life before or after the elections. With the above yard stick I have analyzed his conduct, which he exhibited before or after the election and would say that his omissions/mistakes, already excluded from consideration for the reasons recorded in the preceding paragraphs, are not fatal to his case and cause in terms of Article 62(f) of the Constitution.
19. For what has been stated above I am of the considered view that the petitioner has failed to prove that the returned candidate was/is not qualified to contest the election or to hold the position of Member, National Assembly. Resultantly, issues No, 4, 5, 6 are answered against the petitioner and the election petition is dismissed with no order as to cost. Election .