This constitution petition has been filed against the decision of learned Appellate Tribunal dated 25.06.2018 whereby Election Appeal No.88-A of 2018, filed by respondent No.6 was allowed on the ground that the petitioner holds dual nationality, therefore, he is not eligible to be chosen as a Member Provincial Assembly from a constituency PP-120 (Toba Tek Singh) and consequently his nomination papers were rejected.
2. This case was presented today before us and we were inclined to issue notice to all the respondents and at that stage the representatives of Election Commission along with their learned counsel, who were present in connection with other election matters fixed today before this Bench, and the counsel for respondent No.6-appellant before the learned Appellate Tribunal, have entered appearance and not only accepted notice but also agreed to argue the case even today, therefore, we, by permitting them to address arguments today, are inclined to treat it as 'pacca case' and decide the same accordingly.
3. The learned counsel for respondent No.6, with permission of the Court, has argued the case first in order to highlight the unattended objections, which were part of their appeal but had not been considered by the learned Appellate Tribunal, which confined its findings only on one point of 'dual nationality', however, he led our attention towards different parts of nomination papers to point-out some false and incorrect information, allegedly provided by the petitioner concerning property, finance and payment of income tax besides supporting the order-judgment of the learned Appellate Tribunal regarding dual nationality, contending that at the time of filing of nomination papers the petitioner held twin nationality and there was no certificate issued by UK Visas and Immigration Authority, therefore, the order-judgment of the learned Appellate Tribunal is in accordance with the law laid down by Hon'ble Supreme Court in a case reported in Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 Supreme Court 1089), hence, there is no illegality or jurisdictional defect in the judgment impugned, thus this petition is not maintainable and liable to be dismissed.
4. On the other hand, learned counsel for the petitioner in answer to all the objections raised by learned counsel representing respondent No.6 submits that entire information provided by the petitioner, as required by law, is correct and there is no ambiguity qua his assets and finance. He also maintained that neither the respondents nor any other agency of Pakistan has claimed any default committed by the petitioner in respect of nor-payment of any dues attracting the causes of his disqualification. Further submits that leaving of inconsequential columns blank also does not invite penal consequences. As regards dual nationality, he presented the original certificate issued by UK Visas and Immigration authority demonstrating 'Renunciation of British Citizenship Status' with the date as 11th April, 2018; hence, contends that after renunciation of British Citizenship Status, he cannot be burdened with any penal action for non-completing the process by UK Visas and Immigration Authority, which is beyond his control, however, since he has already surrendered the British Citizenship and its Passport, hence no question does arise attracting reasons relating to his disqualification.
5. We have heard the learned counsel for the parties and gone through record of the case.
6. The question in the attending circumstances evolves is, 'whether the declaration-statement of a candidate in the nomination papers was false and incorrect and any material particular can be determined without holding a detailed inquiry'. The answer is in the negative inasmuch as it is not possible while sitting in constitutional jurisdiction to hold a roving inquiry, which could not have been exercised either by the Returning Officer or Appellate Tribunal in summary proceedings, therefore, we are of the view that in presence of Articles 4 and 10-A of the Constitution, which postulate to adopt the due process, the jurisdiction of this Court is excluded to determine with certainty, 'whether qualification and disqualification enumerated under Articles 62 and 63 of the Constitution, are attracted against a candidate, so we refrain ourselves to go to that extent and for this probable reason the order of the learned Appellate Tribunal is silent, however, respondent No.6 or any other person eligible under the elections laws can approach the appropriate forum at proper stage as permissible under the law.
Whereas the question concerning dual nationality on the basis of which the learned Appellate Tribunal has thrown-out the present petitioner out of ring to contest the election, is also contrary to the dictum laid down by the apex Court in Syed Mehmood Akhtar Naqvi's case, referred to by the learned counsel for respondent No.6. In the said judgment, the august Court laid down the parameters regarding holding of dual nationality and it is held that any person who had renounced his citizenship and certificate in this respect has been issued and produced, same would be sufficient evidence regarding surrendering of impugned nationality and in the same judgment, honourable Supreme Court even permitted Mr. A. Rehman Malik, who was holder of British nationality and de-seated on this disqualification but subsequently in By-election he was permitted to contest the election when he produced the certificate of renunciation of his citizenship of U.K., therefore, there is no cavil to hold that if a person surrenders his second nationality and produces the certificate of renunciation of citizenship on a date prior to filing of nomination papers, neither any penal consequences relating to disqualification is attracted nor he can be restrained from contesting the election.
7. For what has been discussed above, we are of the firm view that the learned Appellate Tribunal has not examined rather applied the law laid down by the honourable Supreme Court in its true spirit, therefore, the judgment impugned is unsustainable in the eye of law being contrary to the settled principle of law. Consequently, the same is hereby set-aside by allowing the writ petition.
The Returning Officer concerned is directed to include the name of the petitioner in the list of eligible/nominated candidates in terms of Section 64 of the Elections Act, 2017.