' Muhammad Tariq Anees, petitioner (for short, 'the petitioner') and Daniyal Aziz, Respondent No. 1 besides Respondents No. 2 to 7 contested General Elections-2013 for the position of Member, National Assembly from the constituency No. NA-116, Narowal-II. On close of the poll, the Election Commission of Pakistan, notified Daniyal Aziz, Respondent No. 1 as the returned candidate (for short, 'the returned candidate').
2. The petitioner called in question the election of the returned candidate through Election Petition No. 133 of 2013 on the only ground that the returned candidate being dual national was not qualified to contest the election or to hold any public office. The above said ground of attack against qualification of the returned candidate was based on an allegation that Ch. Anwar Aziz, contracted marriage with Kathleen, an American national and she gave birth to the returned candidate and by operation of law, he (the returned candidate) became American national by birth automatically.
3. On contest being put, the returned candidate denied and dismissed the above said ground of attack with the plea that being Pakistani national by birth he was qualified to contest the elections.
He also raised a few preliminary objections through his written statement.
4. In the light of counter versions put forward by the petitioner and the returned candidate, the following issues were framed:--
5. (I) Whether the election petition has been filed in contravention of the provisions laid down in Sections 52, 53 and 54 of the ROPA, 1976 and Notification dated 16.03.1985, hence barred by the said law? OPR 1
(II) Whether the election petition is barred by res-judicata? OPR1
(III) Whether the election petition tented with malice and ulterior motive and the petitioner has not come to the Tribunal with clean hands, if so, its effect? OPR 1
(IV) Whether the allegations contained in the election petition are bald and frivolous, if so, its effect? OPR 1
(V) Whether affidavits of the witnesses attached with election petition are irrelevant? OPR 1
(VI) Whether the election petition does not disclose any cause of action and liable to rejection on this count? OPR 1
(VII) Whether Respondent No. 1 was disqualified to contest the election? OPA
(VIII) Whether election of Respondent No. 1 is liable to be declared as void and the petitioner is entitled to be declared as duly elected for the reasons stated in the election petition? OPA
(IX) Relief.
5. At the inception of trial, the petitioner (PW-2) deposed in support of his case and cause and got examined Muhammad Anwar Waqar, PW-1. No other oral or documentary evidence was adduced by him. On the other hand, the returned candidate supported his counter versions as RW-2 and examined Tariq Manzoor Cheema, RW-1. Besides the oral evidence, the returned candidate brought on record the following documents:-
(I) Copy of National Identity Card of the returned candidate, Ex. RW-2/B.
(II) Copies of passports of the returned candidate, Ex. RW2/C - 1 to 8.
(III) Copy of passport of son of the returned candidate, Ex. RW-2/D-1 to 2.
(IV) Copy of passport of spouse of the returned candidate, Ex. RW-2/E-1 to 2.
(V) Copy of Family Registration Certificate issued by the NADRA, Ex, RW-2/F.
(VI) Copy of order dated 08.09.2002, Ex. RW-2/G passed in Election Appeal No. 301-A / 2002, Ex. RW- 2/H.
(VII) Certified copy of nomination papers, Ex. RW-2/1.
(VIII) Certified copy of order dated 07.04.2013 by the RO, Ex. RW-2/5.
(IX) Certified copy of objections against the candidature of the returned candidate raised before the RO, Ex. RW2/K.
(X) Original letter by the Director Legal, ECP addressed to the returned candidate, Ex. P-L.
(XI) Certified copy of the order dated 26.11.2013 passed by the Hon'ble Lahore, High Court, Lahore, Ex.
P-M.
(XII) Copy of shipment delivery record, Ex. P-N.
(XIII) Photo static copy of the proceedings conducted by ECP on 04.07.2013.
6. Now I propose to determine the controversy as to whether the returned candidate was dual national at the time of his nomination for the General Elections-2013 and thus not qualified to contest the election. In order to resolve this issue, I find it convenient and appropriate to bring on record the facts touching the controversy, which are not in dispute or disputable:-- ' Ch. Anwar Aziz, father of the returned candidate is Pakistani national by birth. Ch. Anwar Aziz contracted marriage with Kathleen, an American national. Kathleen gave birth to the returned candidate in Pakistan from the above said wedlock.
' The returned candidate held very important official positions in the past. Ch. Anwar Aziz contested a few previous elections in Pakistan successfully or unsuccessfully.
' The returned candidate also contested a few previous General Elections and local bodies elections successfully or unsuccessfully.
' In order to prove the ground of attack against qualification of the returned candidate, the petitioner (PW-1) and Tariq Manzoor Cheema (PW-2) deposed that American nationality was conferred on the returned candidate automatically on his birth by an American national mother.
For facility of reference, the relevant portion of petitioner's statement is reproduced below:-- ''I filed the election petition on the above said ground (dual nationality) because mother of the returned candidate is / was American national and the returned candidate being her son was / is American national by birth".
' The returned candidate dismissed the above stance of the petitioner through his written statement as well as the statement on oath at trial by saying that he did not acquire American nationality and that being Pakistani national by birth he contested the previous elections as well as the election in question. I have examined the above said counter claims minutely. It is well settled that the State is free to determine, by its own Constitution and domestic legislation as to who is entitled to its nationality. In other words, the grant of nationality is within the domestic jurisdiction of each State. The practice of a sizeable number of States including Pakistan and America shows that nationality can be acquired in the following well-known ways besides others, which are not very much relevant for the case in hand:--
(a) By Birth
(b) By Naturalisation
(c) By Registration or Resumption
(d) By Descent The nationality by birth is conferred by the State on birth of the child within its territory. The principle, 'jus-soli' defines the nationality by birth to the effect that the territory on which birth occurs is the decisive factor. Contrary to the above said principle, 'jus-sanguinis' recognizes parentage as the decisive factor to determine nationality of the born child. Neutralisation is an administrative act of the State to grant Citizenship or Nationality to anyone who is not national or citizen by birth of the said State. The nationality by descent may be acquired by a born child on the basis of nationality of either parents. Thus, the child may become a national of the State to which his mother or father belong as national. The traditional view is that the wife's nationality follows that of her husband's nationality automatically and this principle is adhered to by a number of States including Pakistan. Hence, Kathleen, an American national became Pakistani national on her marriage with Pakistani national Ch. Anwar Aziz automatically. In other words, before the birth of the returned candidate, the nationality of Kathleen followed the nationality of her husband Ch. Anwar Aziz and she became Pakistani national on the date of her marriage automatically. In my judgment the parents of the returned candidate were Pakistani national before and at the time of birth of the returned candidate on Pakistan territory. I am not in agreement with the learned counsel for the petitioner that birth of the returned candidate in Pakistan from the wedlock of Ch. Anwar Aziz and Kathleen invested him with double nationality. At the cost of repetition, I would, say that the returned candidate acquired Pakistani nationality on two grounds:--
(I) First, under the principle, 'jus-soli', the returned candidate became Pakistani national on his birth within territorial limits of Pakistan as jus-soli' recognizes the territory, on which birth occurs as the decisive factor for determining nationality of the born child.
(II) Secondly, the returned candidate became national of Pakistan under the principle, 'jus- sanguinis' because before his birth in Pakistan, his parents were Pakistani national in the manner that Kathleen acquired Pakistani nationality after contracting marriage with Pakistan national Ch. Anwar Aziz as the wife's nationality followed that of her husband's nationality automatically.
7. Fenwick defines the term, 'Nationality' in the following words:-- "Nationality may be defined as the bond which unites a person to a given State which constitutes his membership in the particular state, which give him a claim to the protection of that State and which subjects him to the obligation created by the laws of the State."
It has come in evidence that the returned candidate contested a number of previous General Elections and Local Bodies Elections from his Home District Narowal, successfully or unsuccessfully.
Admittedly, he held official positions of Chairman, Union Council, MNA and Chairman, National Reconstruction Bureau. He brought on record his passports, NIC and Family Registration Certificate issued by the NADRA besides the passports of his son and wife. While granting passports to the returned candidate, the Ministry of Interior, Government of Pakistan admitted and declared him as Pakistani national. The NADRA issued NIC and Family Registration Certificate to the returned candidate as Pakistani national. The returned candidate travelled on these passports as an ordinary national of Pakistan. Had the returned candidate been awarded American nationality as alleged by the petitioner, the returned candidate would not have travelled from Pakistan to America on the VISA of later mentioned State. When confronted with the passports, NIC and the Family Registration Certificate produced in evidence by the returned candidate, learned counsel for the petitioner attempted to argue that the returned candidate got changed his date of birth from 25-02-1965 to 25-02-1966, in order to conceal his American nationality. I could not persuade myself to agree with the argument because except self-assertion by the petitioner that the returned candidate got changed his date of birth, there is not an iota of cogent and convincing evidence in support of the allegation. It has become a case of self-assertion by the petitioner vs. Documentary evidence i.e. NIC, passports and Family Registration Certificate coupled with statement on oath of the returned candidate. Needless to add that self-assertion cannot be equated with legal evidence.
8. For the aforesaid reasons, I dismiss the self-assertion of the petitioner. I have also gone through the provisions of Pakistan Citizenship Act, 1951 and could not find any provision of law in support of the cause of the petitioner. The returned candidate took active part in national politics and held important official positions in the past. Even today he holds the position of MNA. As per entries of the passports he alongwith his wife and son travelled to other countries on Pakistani passports. His active participation in the national politics provides a basis to say that he qualifies the legal test to becotne Pakistani national as defined by Fenwick.
9. Learned counsel for the petitioner lastly contended that the returned candidate studied in America when social security number was allotted to him by the American Government. Reliance was placed on a certificate, Marked-A. Here I would say that the certificate, Marked-A is not admissible in evidence in terms of Article 89(5) of the Qanoon-e-Shahadat Order. Marked-A was allegedly emailed to the petitioner by Professional Peal Legal Service from Post Box No.
203. The provisions of Article 89(5), which are reproduced below in verbatim, stand in the way of the petitioner to describe the certificate, Marked-A as legal piece of evidence:--
89. Proof of other public documents.--The following public documents may be proved as follows:- -
(5) public documents of any other class in a foreign country, by the original, or by a copy certified by the legal people thereof, with a certificate under the seal of notary public, or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of foreign country.
' A bare perusal of the Article 89(5) of the order provides a basis to hold that certificate Marked-A. It is neither relevant nor admissible in evidence and I exclude it from consideration.
10. For the aforesaid reasons, I conclude that the returned candidate was is not dual national as alleged by the petitioner. He was qualified to contest the General Elections-2013. His candidature for the said election was / is not open to any exception.
11. Learned counsel for the returned candidate advanced arguments under Issues No. 1, 2, 3, 4, 5 and
6. In view of my findings under Issues No. 7 and 8 in favour of the returned candidate and against the petitioner, the Issues No. 1 to 6 stand disposed of as having become redundant. It would not be out of place to mention here that the Election Tribunal conducts trial of election disputes under the special law and is not supposed to proceed with the matter like trial of land dispute under the, CPC.
Hence, there is no need to record findings under Issues No. 1 to 6. I am supported in my view by the case law laid down by Apex Court of the country in Malik timar Aslam's case reported as PLD 2007 SC 362, relevant lines of which read as under: "We have heard parties' counsel at length and have also taken into consideration the material so made available on record. A perusal of the scheme of the Act, 1976 relating to filing of election petition under Chapter VII reveals that the lawgivers, to ensure expeditious decision of election disputes, has authorized the election Tribunal to regularize the proceedings itself, instead of following the technicalities of, CPC except application of some provisions of specifically made applicable for limited purpose"
12. Now the last word. The petitioner has completely failed to prove his case and cause against the election of the returned candidate. Resultantly, the election petition No. 133 of 2013 is dismissed with no order as to cost.