IBAD-UR-REHMAN LODHI J.:- Through this common judgment, I intend to dispose of this appeal, as also Election Appeal No.23 of 2018. Although in both the appeals, the appellants are different, but both the appellants have impugned the same order dated 14.06.2 018 passed by the learned Returning Officer for constituency of NA-57, Rawalpindi-I, whereby after rejection of their objection petitions against the candi dature of respondent candidate, nomination papers filed by respondent No.1 were accepted.
2. The nomination of Shahid Khaqan Abbasi-respondent No.1 was mainly attacked by the appellants on the plea that the respondent has been guilty of concealment of actual facts and has not provided the correct details and description of the immoveable property held by him within Pakistan and cost of the assets has intentionally and knowingly been shown much less than the actual cost of such assets and thus, he exposed himself to the disqualification clause as provided in Articles 62 and 63 of The Constitution of the Islamic Republic of Pakistan, 1973 and is not a qualified person to be elected or chosen as a Member of Majlis-e-Shoora (Parliament).
It is further added by the appellants that there is marked difference in between the contents of two affidavits separately filed by the respondent/candidate alongwith his two separate nomination papers i.e. one filed against Serial No.03 on 09.06.2018 and secon d filed against Serial No.12 on 11.06.2018 for constituency of NA-57 Rawalpindi-I. Clause `E' of affidavit filed alongwith nomination papers No.03 contains the remarks as `NONE', whereas clause `E' of affidavit produced alongwith nomination papers No.12 was tampered with by first writing the words NONE in the same manner as was mentioned in the earlier affidavit, but after interpolation, shares in Air Blue and Blue Pines Inn Murree were noted down against such column.
When this defect was pointed out by the appellants on the first date of hearing, the Returning Officer was directed to appear alongwith record, who on production of the same could not justify such cutting and interpolation on the affidavit. However , when on the next date of hearing, he appeared, he was made presumably wiser and explained that he allowed the counsel for respondent No.1 to get such defect remedied in view of Section 62(9)(d)(ii) of The Elections Act, 2017, however , he has admitted that he has not recorded this fact in the order sheet maintained by him on the relevant file.
The stance so taken by the Returning Officer on his second appearance before this Tribunal has been negated by means of an affidavit executed by Mr. Asad Iqbal Abbasi, Advocate, who according to the contents of such affidavit, was representing the respondent/candidate before the Returning Officer and on having realized that against column `E' of the affidavit, the shares of the respondent/candidate in Air Blue and Blue Pines Inn Murree were to be provided, Mr. Imtiaz Ahmad Abbasi, Advo cate on his asking incorporated such words in column `E' of the affidavit filed alongwith nomination papers No.12 before its presentation before the Returning Of ficer.
The stances taken by the Returning Officer and that of in the affidavit of Mr. Asad Iqbal Abbasi, Advocate are inter- contradictory and either one of such stances is false.
3. Although the respondent/candidate in FORM-B i.e. Statement of Assets and Liabilities has not provided the detailed description of any of his immoveable property , however , the cost of assets is provided in column 2 of said FORM-B. According to such details, House No.4, Street 17, Sector F-7/2, Islamab ad has been shown of the value of Rs.3,00,000/-. A layman living in Islamabad can conveniently assess the cost of a house over a piece of land of Kanals , which is situated in the heart of Islamabad i.e. posh area of Sector F-7/2 in front of Jinnah Super Market, where only the open land is worth Rs.50 to 60 lacs per Marla . Even such stance with reference to cost of house situated in Sector F-7/2 Islamabad to the tune of Rs.3,00,000/- is itself negated from the fact that in the column of liabilities, the respondent/candidate has shown to have put the referred house under mortgage with MCB Bank against an amount of Rs.2,47,02,741/-. Either the cost of such house has incorrectly been shown as Rs.3,00,000/- or if the same is the actual cost of the house, then the respondent/candidate must have obtained the mortgaged money more than 80-times of actual cost of mortgaged property from the Bank by using his influence of being a Member of Parliament or subsequent Prime Minister of Pakistan. Both the positions cannot be reconciled conveniently .
Similarly , without disclosing any details of the business under the name and style of Air Blue Limited and without showing the share of respondent/candidate in such business, simply his shares worth Rs.6 crore in such Airline has been mentioned.
The requirement of furnishing such details is in fact aimed to a position that the personality and pen picture of the candidate must be before the voters, but in the case in hand, the respondent/cand idate has attempted to conceal all such material facts from the constituency and intention of Constitution, law and interim order passed by the Hon?ble Supreme Court of Pakistan on 06.06.2018 in Civil Appeal No.56-L of 2018 and others, whereby a detailed affidavit was directed to be executed by the candidates giving full particulars for the voters, is in fact attempted to be defeated by the respondent/candidate.
4. Learned counsel representing respondent No.1/candidate with some reservation has admitted that the affidavits furnished with two different nomination papers of same candidate i.e. respondent No.1, do carry different contents, but at the same time, he has stressed that even if such discrepancy is there, it is not to be taken into consideration at present pre-poll stage, rather according to his submission, the matter is to be left for adjudication in post-poll proceedings by the Election Tribunal to be constituted to adjudge the election disputes after conduct of elections. Learned counsel for the respondent/candidate has further stressed that in absence of any declaration from a Court of law, the provisions of Article 62(1)(f) of The Constitution of the Islamic Republic of Pakistan, 1973 are not to be attracted as against the candidate by declaring that he is not sagacious, righteous, honest and Ameen.
Asking to await a declaration of court of law before holding a person as not sagacious, righteous, honest and ameen is nothing, but a mockery of law and jugglery . Articles 62 and 63 of The Constitution of the Islamic Republic of Pakistan, 1973 became part of the Constitution in 1985 and after lapse of deca des, I have never come across any declaration of any Court of law decla ring a person particularly sitting in the corridors of power as having been hit by the disqualification clause under Articles 62 and 63 of The Constitution of the Islamic Republic of Pakistan, 1973 for obvious reasons that such persons having such disqualifications in their profile conveniently crossed the process of scrutiny at pre-poll stage by simply arguing that they cannot be held as not honest and ameen in absence of any declaration from a Court of law and once they succeeded in capturing an office in the power set up, they would never allow any Court of law to conclude any proceeding, which would culminate in any declaration so required under Articles 62 and 63 of the Constitution. After conduct of every election, the election process or notification of success of returned candidate is challenged through election petitions, but in most of cases, election petitions are not conclusively decided before the Assembly completed its age and such unwarranted elements succeed in enjoying a complete period of the membership in such Assemblies, either under some restraint order by any Court of law or merely on account of pendency of election dispute before the relevant Tribunal. At the end of the day, it is conveniently pressed into that the pending lis becomes infructuous. Our system at the hands of such elements not only in legislatures, but also in other pillars of the State, has become rusty . It needs drastic remedial steps to be taken, which are not possible, if we allow the same MAAFIA to occupy their places in relevant houses of power .
The respondent/candidate has been a Leader of House and thus, as Prime Minister , was considered to be the face of the nation. The nation needs its face to be clean and clear in order to earn some respect from remaining world, which is not possible if such rusty faces are allowed to represent the nation. Natio n expects high moral standards from their leaders by placing them at somewhat higher pedestal and giving a place of a role model to a leader , who even is not ready to share with his nation as to his actual belongings naturally earned from the piece of land, which requires to be ruled by such leadership.
I have almost concluded my tenure in judiciary and countdown of my judicial career has started and having in mind my experience in judicature, I with a heav y heart is going to express my hope from my learned brothers, who would further remain sometime in judicature and those who would be becoming a part of this sacred place of justice in future that if we owe something towards the nation, we have to come out from the shells of expedience. We have also to keep always before us the wordi ng of our oath, which everyone before entering into this place of justice sworn in inter alia on the following lines:- "That I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan: And that, in all circumstances, I will do right to all manner of people, according to law, without fear or favour , affection or ill-will. "
It also reminded me to a couplet. {{URDU TEXT}} Responding to the submissions of learned counsel for respondent No.1/candidate that unless there is a declaration of any court of law under which a person can be declared as not qualified or not honest and Ameen, I declare that this Tribunal constituted under the statutory provisions of a Federal Statue is a Court of law and after declaring that respondent No.1/candidate being guilty of concealment of facts and withholding of the complete information from his voters, is not an honest and Ameen person and after such declaration, declare him as not a qualified person to be elected or chosen as a Member of Majlis-e Shoora (Parliament) within the meaning of Article 62(1)(f) of The Constitution of the Islamic Republic of Pakistan, 1973.
5. Keeping in view the misconduct on the part of the Returning Officer, his powers to act as a Returning Officer were withdrawn vide order dated 23.06.2018. The same order would remain effective with a direction to the Election Commission of Pakistan to appoint a new Returning Officer for the constituency of NA-57 Rawalpindi-I and start proceedings against Haider Ali Khan, Returning Officer for his misconduct. Since the Returning Officer is also Member of our District Judiciary , the Registrar of this Court is also directed to initiate appropriate proceedings against Haider Ali Khan, Additional Distri ct & Sessions Judge for his stated misconduct. The concept of free, fair and transparent election is not likely to be achieved if such Returning Of ficers would remain part of our system.
6. As a result of above discussion, both the appeals are allowed and by accepting objection petitions filed by the appellants, the nomination papers filed by respondent No.1 for constituency of NA-57 Rawalpindi-I stand rejected.
IBAD-UR-REHMAN LODHI J.:- For the reasons recorded in my sepa rate judgment of even date passed in connected Election Appeal No.09 of 2018 titled Masood Ahmad Abbasi, Advocate versus Shahid Khaqan and others , the present Election Appeal stands allowed .