MOHSIN AKHT AR KAYANI, J:- Through this judgment, I intend to decide above mentioned three election appeals as the same relate to one person i.e. Imran Ahmed Khan Niazi.
2. In election appeal No.05/2018, appellant Imran Ahmed Khan Niazi has impugned order dated 19.06.2018, passed by Returning Officer NA-53, Islam abad, whereby his nomination papers have been rejected on the ground that the appellant has not answered clause "N" of the af fidavit attached with nomination papers.
3. In election appeal No.11/201 1, appellan t Abdul Wahab Baluch has impugned order dated 19.06.2018, passed by Returning Officer NA-53, Islamabad, whereby his objections have been turned down on the ground that he is not a voter of the constituency and as such he has no locus standi to file objections on the candidature of Imran Ahmed Khan Niazi.
4. In election appeal No.38/2018, appellant Haroon Arshad Sheikh has raised objection against Imran Ahmed Khan Niazi that he has not provided tax details in his affidavit attached with the nominat ion papers submitted for NA-53, Islamabad.
5. Learned counsel for the appellant Imran Ahmed Khan Niazi has contended that Returning Officer NA-53, Islamabad has passed the impugned order, whereby nomination papers of the appellant have been rejected mainly on the ground that the affidavit is not duly filled in and the said defect is curable in terms of section 62(9) of the Elections Act, 2017, which empowers a Returning Officer to grant some time to rectify the omission as the same is not intentional and has been overlooked while filling the nomination papers; that the defect is not of substantial nature; that the objections filed by the objectors Abdul Wahab Baluch in appeal No.11/2018 and Haroon Arshad Sheikh in appeal No.38/2018 are not maintainable as Abdul Wahab Sheikh is not a voter of the constituency as required U/S 62 of the Elections Act, 2017 and Haroon Arshad Sheikh did not raise such objections before the Returning Officer at the time of scrutiny of nomination papers of the appellant Imran Ahmed Khan Niazi as such both the objectors are not qualified to file their appeals; that in terms of section 63(4) of the Elections Act, 2017 this Tribunal can exercise its powers, if the Tribunal comes to the conclusion that the nomination papers have been accepted with concealment of certain facts regarding default of land taxes and government dues, whereas no such information has been provided by the other appellants; that the appeals can only be filed, if the nomination papers are accepted and there is no concept of filing appeals against the rejection of nomination pape rs in the Elections Act, 2017.
6. Learned counsel for the appellant Abdul Wahab Baluch has contended that Imran Ahmed Khan Niazi is not trustworthy person as he does not qualify the test provided in Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973 as he has not disclosed his daughter Tyrian Jade Khan White, who had born on 15.06.1992 at Cedars-Sinai Medical Center; that Superior Court of California, County Los Angeles, USA had passed a decree against Imran Ahmed Khan Niazi and he never put appearance for DNA test despite the fact that he had given an affidavit, in which he had acknowledged the status of Tyrian Jade Khan White to support the said daughter; that at present daughter of Imran Amed Khan Niazi is living with his ex-wife Jemima Khan.
7. Learned counsel for appellant Haroon Arshad Sheikh has contended that Imran Ahmed Khan Niazi submitted his tax return in the year 2015, where the capital gain on securities U/S 37-A was @ 0% and despite that value referred in the relevant column is Rs.20,325,000/-; that Imran Ahmed Khan Niazi filed his statement of assets and liability for the year 2013, in which the said capital gain on securities was not mentioned rather omitted; that this omission on the part of Imran Ahmed Khan Niazi falls within the ambit of non-d eclaration of assets, which has directly made him liable in terms of Article 62(i)(f) of the Constitution of Islamic Republic of Pakistan, 1973; that agricultural income tax referred in the record of nomination papers is not in line with his declaration and as such no document of proof of payment of tax has been attached with the nomination papers.
8. I have heard the arguments and gone through the record.
9. From perusal of the record, it has been observed that three different appeals have been filed. Appeal No.05/2018 has been filed by Imran Ahmed Khan Niazi against rejection of his nomination papers for the constituency of NA-53, Islamabad. Appeal No.11/2018 has been filed by Abdul Wahab Baluch against the rejection of his objections. Appeal No.38/2018 has been filed by Haroon Arshad Sheikh directly before this Tribunal in terms of section 63(4) of the Elections Act, 2017 on the ground that tax details provided by Imran Ahmed Khan Niazi, candidate for NA-53, Islamabad are not based upon true facts.
10. First of all, I intend to cope with the question of status of appellants/object ors in appeals No.11/2018 and 38/2018. Appellant Abdul Wahab Baluch filed his objection before the Returning Officer NA-53, Islamabad at the time of scrutiny of nomination papers of Imran Ahmed Khan Niazi, whereas appellant Haroon Arshad Sheikh has directly filed his objection through appeal before this Tribunal in terms of section 63(4) of the Elections Act, 2017. In order to resolve the question of locus standi, it is necessary to reproduce section 63(1) & 4 of the Elections Act, 2017, which are as under:-
63. Disqualifications for membership of Majlis-e-Shoora (Parliament).- (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e Shoora (Parliament), if:-
(2) ..................
(3)..................
(4) If, on the basis of information or material coming to its knowledge by any source, an Appellate Tribunal is of the opinion that a candidate whose nomination paper has been accepted is a defaulter of loans, taxes, government dues and utility expenses or has had any loan written off or has willfully concealed such fact or suffers from any other disqualification from being elected as a Member of an Assembly , it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Appellate Tribunal is satisfied that the candidate is actually a defaulter or has had a loan written off or suffers from any disqualification, it may reject the nomination paper ."
11. The above referred section provides right of an appeal only to those persons, if they are objectors in the scrutiny process then they have to qualify in terms of requirement of section 62(1) of the Elections Act, 2017 being voter of the Constituency and no other person is allowed to file objections unless he is a voter as defined in section 2(XLI) of the Elections Act, 2017 and if his objections have been turned down, he can file an appeal in terms of section 63 of the Elections Act, 2017. Similarly , any other person, who is not an objector , may avail the remedy under section 63(4) of the Elections Act, 2017, whereby an information or material by any source comes to the knowledge of the Appellate Tribunal covers the person other than the objector . However , the required qualification in this case, gives authority to this Tribunal to exercise jurisdiction only in the case of a candidate, whose nomination papers have been accepted, therefore, while considering the above referred law, the nomination papers of Imran Ahmed Khan Niazi have been rejected by the Returning Officer and as such the objections raised by Abdul Wahab Baluch have become infructuous despite the fact that the same were rejected on the question of locus standi. Similarly, appellant Haroon Arshad Sheikh has filed his appeal and raised objection, whereas the nomination papers of Imran Ahmed Khan Niazi have already been rejected by the Returning Officer NA-53, Islamabad, therefore, both the appellants have no locus standi to file their appeals against Imran Ahmed Khan Niazi.
12. Although the question of locus standi of appellants Abdul Wahab Baluch and Haroon Arshad Sheikh has been decided in the preceding paragraph but it is necessary to answer the objections raised by the appellants as this Tribunal is exercising jurisdiction U/S 63(4) of the Elections Act, 2017. Learned counsel for appellant Abdul Wahab Baluch has argued on personal life of Imran Ahmed Khan Niazi and contended that Imran Ahmed Khan Niazi is not sagacious, righteous, honest and a man of good character as he has not declared his daughter Tyrian Jade Khan White in the relevant column of dependents in the nomination papers. Learned counsel for appellant Abdul Wahab Baluch has tried to persuade this Tribunal to consider the fact of foreign judgment passed by Superior Court of California, County Los Angeles, USA and he has also placed his reliance upon the affidavit given by Imran Ahmed Khan Niazi, wherein he acknowledged to support Tyrian Jade Khan White. Learned counsel for appellant Abdul Wahab Baluch has further contended that daughter of Imran Ahmed Khan Niazi is presently living with his ex-wife Jemima Khan.
13. I have given anxious thought to the arguments advanced by learned counsel for the parties and meticulously perused the record of judgment and documents of Superior Court of California, County Los Angeles, USA and the alleged declaration of Imran Ahmed Khan Niazi regarding Tyrian Jade Khan White (alleged daughter). The attached documents with the appeal of appellant Abdul Wahab Baluch seem to be foreign judgment and during the course of arguments, learned counsel for the appe llant has been confronted regarding the authenticity and status of the foreign judgment in terms of section 2(6) of Civil Procedure Code, 1908, which means the judgment of a foreign Court and it requires application of section 13 of Civil Procedure Code, 1908, in which foreign judgment has to be considered conclusive, if the matter has directly been adjudicated upon the parties or between the parties under whom they or any of them claim litigating. Section 13 of CPC provides certain exceptions to foreign judgment, which are as under:- (i). where it has not been pronounced by the Court of competent jurisdiction.
(ii) where it has not been given on merits of the case.
(iii) where it appears on face of proceed ings to be founded on incorrect view of international law or refusal to recognize law of Pakistan.
(iv) where the proceedings in which the judgment was obtained are opposed to natural justice.
(v) where it has been found by fraud.
(vi) where it sustains a claim founded on breach of any law in force in Pakistan.
14. There is no denial to the proposition that foreign judgment by itself is not executable in Pakistan except the circumstances given in section 44 of CPC, as it requires certified copy of decree and there must be reciprocating territory , which has been notified by Federal Government by notification, however , at this stage learned counsel for appellant Abdul Wahab Baluch has failed to satisfy this Court regarding status of this foreign judgment as the same is not conclusive on the ground that the same was passed ex-parte and Imran Ahmed Khan Niazi had never contested the same, therefore, this foreign judgment is not conclusive in terms of section 13 CPC. In this regard, I am fortified with the view rendered by Apex Court in PLD 2016 Supreme Court 174 (Muhammad Ramzan (Deceased) through Legal Heirs and others vs. Nasreen Firdous and others) , wherein it was held that:- "Judgment of foreign courts---Judicial comity , doctrine of-- Scope---Courts in Pakistan should respect and give effect to (subject to certain exceptions), the judicial decision of other countries on the same subject under the principle of 'judicial comity'---Foreign judgments were conclusive as to any matter thereby adjudicated upon and courts in Pakistan must recognize and enforce the same, however , before enforcing any foreign judgment, a court in Pakistan would have to ensure that it did not fall within any of the exceptions contained in S.13, C.P .C."
15. The second important question, which has been surfaced during the arguments is the effect of foreign judgment, if at all the same was passed on merits, in such eventuality the availabl e course to any person (subject to legal rights) is to file execution petition, which is not available in this case as appellant Abdul Wahab Baluch was neither party in the proceedings before foreign Court nor decree was passed in his favour . The other method for consideration of foreign judgment is filing of separate suit by the aggrieved person to take effect of the foreign judgment in Pakistan as settled in PLD 2011 Karachi 257 (Habib Bank Limited vs. Bahjani Scrap Trading Company Limited and 2 others), PLD 2011 Lahore 620 (Shahid Saddique vs. Sharja National Travels and Tourist Agency) & 2006 CLC 492 (M/s Farm andFoods International through Attorney vs. Hamid Mahmood).
16. In view of legal proposition drawn from the judgments of superior Courts, this Tribunal is of the considered opinion that appellant Abdul Wahab Baluch has no right to claim the effect of foreign judgment, especially when Tyrian Jade Khan White, allegedly 26 years old lady is not agitating the same before any forum.
17. The other legal question is non-submission of certified copy of foreign judgment and record as all of the documents produced by appellant Abdul Wahab Baluch are photo copies and as such Articles 85, 87, 88, 89, 90 & 96 of Qanun-e Shahadat Order, 1984 come into play, which provide specific mechanism to consider the status of foreign judicial record and Article 96 of Qanun-e-Shahadat Order, 1984 put emphasis and presumption on the foreign judicial record, if the same is certified. Article 96 of Qanun-e-Shahadat Order, 1984 is reproduced here- under for ready reference:-
96. Presumption as to certified copies of foreign judicial records.- (1) The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of Pakistan is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Federal Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.
(2) ...................
18. Similarly , Qanun-e-Shahadat Order , 1984 provides proof of other public documents in terms of Article 89(5), which is reproduced as under:-
89. Proof of other public documents .- The following public documents may be proved as follows: - (1) .................
(2) ...................
(3) ....................
(4) ...................
(5) public documents of any other class in a foreign country , by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a 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 .
19. This Tribunal while considering the above referred Articles of Qanun-e- Shahadat Order, 1984 has come to the conclusion that the documents attached by the appellant Abdul Wahab Baluch in order to provide information for consideration of this Tribunal are photocopies and the same are not certified as required under the law and even otherwise the foreign judgment and the documents, which are claimed to be the public documents are neither certified nor having seal of Notary Public, even the High Commission has not certified the same in any manner.
Therefore, in such eventuality the entire record annexed by appellant Abdul Wahab Baluch with his appeal No.11/2018 has no persuasive value and the same cannot be considered by this Tribunal.
20. Besides the above referred legal issues, question relating to application of Article 62(1) (d)(e) & (f) of the Constitution of Islamic Republic of Pakistan, 1973 has frequently been quoted and argued before this Tribunal by learned counsel for appellants Abdul Wahab Baluch and Haroon Arshad Sheikh to hold Imran Ahmed Khan Niazi as non-sagacious, non-righteous and dishonest person, whereas in my humble view, this Tribunal is bound by the mandate of the Constitution, wherein Article 4 read with Article 62(1)(f) of the Constitution imposes a condition of declaration, which has to be given by Court of law to deal with such kind of eventualities regarding any person, who has been declared unqualified to be elected or chosen as member of the Parliament and contention of learned counsel for the appellants Abdul Wahab Baluch and Haroon Arshad Sheikh is misconceived as there is no declaration by any Court against Imran Ahmed Khan Niazi that he is non-sagacious, non-righteous or a dishonest person to disqualify him to be a member of the Parliament. In this regard, I am fortified with the view given by the Apex Court in PLD 2018 Supreme Court 405 (Sami Ullah Baloch and others vs. Abdul Karim Nousherwani and others), wherein it has been held that:- "Secondly , on the other hand, a candidate for election who has committed misconduct failing with the terms of Article 62(1)(f) of the Constitution, in particular , misrepresentation, dishonesty , breach of trust, fraud, cheating, lack of fiduciary duty, conflict of interest, deception, dishonest misappropriation, etc. as declared by a Court of civil jurisdiction has on the Islamic and also universal criteria of honesty , integrity and probity , rendered himself unfit to hold public office. He cannot be compared to the case of an ex-convict under Article 63(1)(h) of the Constitution because he has not paid a personal price of his delinquent act, It is in such circumstances that a person declared to be honest or in breach of his trust or fiduciary duty or being non-righteous or profligate must suffer the burden of that finding of incapacity for as long as the Court decree remains in force."
21. As far as objection raised by appellant Haroon Arshad Sheikh in his appeal No.38/2018 regarding Banigala assets of Imran Ahmed Khan Niazi is concerned, the assets of Imran Ahmed Khan Niazi have been clarified by the Hon'ble Supreme Court of Pakistan in recent judgment reported as PLD 2018 Supreme Court 189 (Muhammad Hanif Abbasi vs. Imran Khan Niazi and others) has held that:- "Learned counsel referred to the agreement to sell dated 13.03.2002 (pages 60 to 63 of CMA No.7925/2016). It is undisputed that the agreement is between the seller of the Banigala property and the Respondent. The price of Rs.43.5 million is also undisputed. The agreement refers to initial down payment of 6.5 million by the Respondent.
Further payments are referred in the acknowledgment receipt dated 24.7.2003 issued by the seller (page 75 of CMA No.7925 of 2016). The date for completion of the sale was extended to 23.1.2003 (when the last payment made to seller) except for the said down payment and last installment of Rs.800,000/- the remaining amount of sale consideration was paid through banker 's cheques (pages 77 to 83 of CMA No.7925/2016). The amount paid with these banking instruments was provided by foreign exchange remittances made by Ms. Jemima Khan the Respondent' s wife through banking channels to the account of the Respondent' s representative Rashid Ali Khan.
The encashment certificates of the remitted foreign exchange to PKR are at pages 65 to 74 of CMA No.7925/2016."
22. Similarly , another objection has been raised by appellant Haroon Arshad Sheikh in his appeal No.38/2018 regarding agricultural income of Imran Ahmed Khan Niazi on the basis of statement of total agricultural income declared for the years 2015, 2016 & 2017 , which has been placed on record, whereas the main question is to the extent that Imran Ahmed Khan Niazi has not produced the proof of payment of challan alongwith his nomination papers, whereas in my humble view there is no requirement to produce such proof, especially when Imran Ahmed Khan Niazi has already declared that he has paid agricultural income tax. Even otherwise, Imran Latif Minhas, Commissioner Inland Revenue, Corporate Zone, RTU, Islamabad in attendance has categorically stated that if there is any tax liability against any of the candidates, the same must has been reflected in the record but besides this, provision of section 62(10) of the Elections Act, 2017 gives another exception to the candidate, who has deposited any amount, about whom he is unaware at the time of filing nomination papers, the same could not be rejected, therefore, unless tax issues have been declared by the Tax Authorities as liability against the candidate, the same could not be adjudicated upon by the Returning Officer or the Appellate Tribunal, therefore, contention of learned counsel for appellant Haroon Arshad Sheikh is misconceived and has no worth to be considered as information for further proceedings.
23. While coming to the appeal of Imran Ahmed Khan Niazi i.e. election appeal No.05/2018, I have gone through the impugned order dated 19.06.2018 of Returning Officer NA-53, Islamabad, whereby Imran Ahmed Khan Niazi's nomination papers have been rejected solely on the ground that he has not answered the question in clause "N" of the affidavit, which is mandatory in terms of the directions passed by the Apex Court vide order dated 06.06.2018 in Civil Appeals No.56 & 57/2018. However, during the course of arguments this Tribunal has gone through the proviso (ii) to sub-section 9 of section 62 of the Elections Act, 2017, which deals with defects and remedies and the same is reproduced here-under for ready reference:-
62. Scrutiny .-- (1)...
(2)... .
(3)...
(4)...
(5)...
(6)...
(7)...
(8)...
(9) Subject to this section, the Returning Officer may, on either of his own motion or upon an objection, conduct a summary enquiry and may reject a nomination paper if he is satisfied that -- (a)...
(b)...
(c)...
(d)...
Provided that -- (i)
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.
(10) ..................
(11) ..................
(Emphasis and underlining is mine)
24. The above referred proviso clearly establishes that the defect which is not of substantial nature can be allowed to be remedified forthwith and the nomination papers cannot be rejected. While considering the said proviso, I have asked learned counsel for the appellant Imran Ahmed Khan Niazi to answer clause "N" of the affidavit, which was left blank at the time of filing of the nomination papers and this Tribunal passed direction on 26.06.2018 to the appellant to appear in person on 27.06.2018, whereupon the appellant has appeared before this Tribunal today and answered clause "N" of the af fidavit in the following manner:- {{URDU TEXT}}
25. The above referred development gives rise to the situation that the defect has been remedified before this Tribunal in appeal and in this regard I am fortified with the view given in 2001 MLD 1796 [Lahore] (Mst. Iqbal Begum vs. District Returning Officer/District and Sessions Judge, Okara and another) , wherein it was held that:- "Defect on the basis of which, nomination papers were rejected was curable and Returning Officer or Appellate Authority should have allowed the candidate to sign the affidavit and the nomination papers."
Similarly , it has also been settled that the benefit of any ambiguity in interpretat ion of an item appearing in the nomination papers has to be extended in favour of the candidate, whose fundamental right to contest the election under the Constitution of Islamic Republic of Pakistan, 1973 is at stake and just on the basis of technicalities, he cannot be thrown out of the election proce ss. Reliance is placed upon 2013 CLC 1481 [Lahore] (Nadeem Sarwar vs. Election Commission of Pakistan) & PLD 2012 Supreme Court 681 (Workers' Party Pakistan and 6 others vs. Federation of Pakistan and 2 others).
26. Similarly, non-mentioning of any information or description in the relevant column of the nomination papers due to omission, cannot be termed and considered for rejection of the nomination papers unless an opportunity is given to the candidate for rectification of the same and if the candidate is willing to fill in the blank column, the defect has to be considered curable. Reliance is placed upon 2014 CLC 1725 [Peshawar] (Fatehullah Khan vs. Ikramullah Khan Gandapur and others).
27. In view of above discussion, this Tribunal is of considered view that impugned order dated 19.06.2018, passed by the Returning Officer NA-53, Islamabad to the extent of rejection of nomination papers of Imran Ahmed Khan Niazi is illegal as he was not allowed to remedify his omission by answering clause "N" of the affidavit, which was not of substantial nature. Resultantly, election appeal No.05/2018 filed by appellant Imran Ahmed Khan Niazi is accepted and the impugned order dated 19.06.2018, passed by Returning Officer NA-53, Islamabad to the extent of rejection of nomination papers of Imran Ahmed Khan Niazi is hereby set aside. The nomination papers filed by appellant Imran Ahmed Khan Niazi stand accepted. Election appeals No.11/2018 & 38/2018, filed by appellants Abdul Wahab Baluch and Haroon Arshad Sheikh, respectively, are dismissed.
Office is directed to send copy of this judgment alongwith record to the Returning Officer NA-53, Islamabad forthwith for compliance.