MUHAMMAD SAJID MEHMOOD SETHI, J.--- This consolidated judgment shall dispose of instant writ petition alongwith following connected writ petition as common questions of law and facts are involved in these cases:--- W.P. No,161857 of 2018 titled Malik Taj Ahmad v. Muhammad Razzaq Malik, Mayor Municipal Corporation, Faisalabad & others.
2. Through instant and connected petitions under Article 199 (i)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), petitioner has sought writs of quo warranto from this Court requiring Malik Muhammad Nawaz, Member of Provincial Assembly ("MPA"), Punjab from PP-71 Faisalabad (respondent No,1 in this petition) and Muhammad Razzaq Malik, Mayor, Municipal Corporation, Faisalabad & Chairman, City Union Council("UC")137,Faisalabad (respondent No,1 in connected petition) to show under what authority of law, they claim to hold the said offices and election for the said seats be declared void, of no legal effect and vacant with consequential direction to respondent / Election Commission of Pakistan ("ECP") to hold fresh elections in accordance with law.
3. Brief facts, necessary for disposal of instant petition, are that respondent No,1 was elected as MPA from PP-71, Faisalabad in General Election, 2013 (during pendency of this petition, the Provincial Assembly of the Punjab, on completion of its five years' term, stands dissolved on and from 31.05.2018 in terms of Article 107 of the Constitution). Petitioner, being voter of said constituency and elected Chairman of City Union Council 145 (Choohar Majra), Ghulam Muhammad Abad, Municipal Corporation, Faisalabad, filed instant petition inter alia on the ground of concealment of assets / liabilities by respondent No, 1.
In connected petition, petitioner has sought writ of quo warranto against Muhammad Razzaq Malik (respondent No,1 therein) qua his office as Mayor of Faisalabad Municipal Corporation and Chairman of City Union, Council No,137, Faisalabad with the allegation of concealment of assets / liabilities.
4. Learned counsel for petitioner submits that at the time of contesting General Election, 2013, respondent / Malik Muhammad Nawaz was director / share-holder of Malik Ghee & Cooking Oil Mills Ltd. ("Malik Ghee"), Benz Maize Products International Ltd. ("Benz Maize Products"), Faisalabad and partner of Malik Protein, Faisalabad, and respondent / Muhammad Razzaq Malik was chief executive / director / share-holder of Malik Ghee, Benz Maize Products, Faisalabad and Benz Industries Ltd., Lahore, however, in the columns of liabilities and loans, they wrote NIL liabilities and NIL loans, thus, filed incorrect statements of their assets / liabilities by concealing bank guarantees against loans from different banks. He adds that upon institution of suit by respondent / Bank of Punjab, both the respondents. entered into a settlement agreement dated 18.12.2017 and filed a joint application before learned Banking Court for passing consent decree, in order to avoid disclosure of loan to public at large. He further submits that as per Articles 62 & 63 of the Constitution, said, respondents are no more Sadiq and Ameen, thus, are liable to be declared disqualified for concealment of liabilities. He further contends that concealment in declaration under oath is not condonable in the eye of law. He has relied upon Dr. Muhammad Afzal and others v. The State (2001 SCMR 1615), Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 Supreme Court 423), Khaleefa Muhammad Munawar Butt and another v. Hafiz Muhammad Jamil Nasir and others (2008 SCMR 504), Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 Supreme Court 1089), Muhammad ljaz Ahmad Chaudhry Mumtaz Ahmad Tarar and others (2016 SCMR 1), Mujahid Kareem and others v. National Bank of Pakistan through Manager and others (2016 SCMR 66), Industrial Development Bank of Pakistan v. Hyderabad Beverage Company Private Limited and others (2016 SCMR 451), Muhammad Ahmad Chatta v.
Iftikhar Ahmad Cheema and others (2016 SCMR 763), Ch. Muhammad Yousaf Kaselia v. Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 Supreme Court 689), Hafeez ur Rehman v.
Judge Accountability Court No,2 and another (PLD 2016 Supreme Court 763), Nadeem Shafi v. Tariq Shuja Butt and others (PLD 2016 Supreme Court 944), Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif Prime Minister of Pakistan/ Member, National Assembly, Prime MinisterHouse. Is la ma bad and 9 others (PLD 2017 Supreme Court 265), Imran Ahmed Khan- and others v. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan (PLD 2017 Supreme Court 692), Mian Muhammad Nawaz Sharif and others v. Imran Ahmed Khan Niazi and others (PLD 2018 Supreme Court 1), Waqar Zafar Bakhtawari and 6 others v. Haji Mazhar Hussain Shah and others (PLD 2018 Supreme Court 81),, Muhammad Hanif Abbasi v. Jahangir Khan Tareen and others (PLD 2018 Supreme Court 114), Zulfiqar Ahmed Bhutta and 15 others v. Federation of Pakistan through Secretary Minister of law, Justice and Parliamentary Affairs and others (PLD 2018 Supreme Court 370), Sarni Ullah Baloch and others v. Abdul Karim Nousherwani and others (PLD 2018 Supreme Court 405), Order dated '26.012018, passed by Hon'ble Apex Court in Civil Appeal No,1250 of 2017 titled Humayun Akbar v. The Cantonment Election Tribunal, Multan and another, Judgment dated 08.05.2018, passed by Hon'ble Supreme Court in Civil Petition No,3122 of 2017 titled Malik Ameer Haider Sangha and another v. Mrs. Sumaira Malik, etc., Syed Muhammad Jamaluddin Kazmi v.
Federation of Pakistan through -President of Pakistan and another (PLD. 2010 Federal Shariat Court 221), Naqeeb Ullah Khan v. Malik Imran Khan and 6-others (PLD 2006 Peshawar 21), Ch. Mubashar Hussain v. Returning- Officer, Kharian, District Gujrat and 3 others (PLD 2008 Lahore 134), Ch. Muneer Ahmad and others v. Malik Nawab Sher and others (PLD 2010 Lahore 625), Waheed Sabir v.
Rana Zahid Hussain. Khan and others (PLD 2013- Lahore 586), 'Altaf' Hussain v. Returning Officer NA- 135 and 171 (Sangla Hill) and another (2013 CLC 1010), Zulikha Bibi v. Election Commission of Pakistan through Secretary and another (2015 YLR 1584), Major (Retd.) Ahmed Nadeem Sadal and 3 'others v. Federation of Pakistan through Secretary Sports, Islamabad and 3 others (2015 CLC 34), Habib Bank Limited v. Messrs Toweline (Pvt.) Limited and others (2015 CLD 629), Syed Abbas Ali v. Bank of Punjab through Manager and 'others (2015 CLD 1409), Messrs Asim Traders through Sole Proprietor and others v. National Bank of Pakistan through Manager (2016 CLD 1654),Barkhurdar v.
Appellate Tribunal / Additional District and Sessions Judge and -3 others (PLD 2016 Lahore 101), Syed Nadir Ali Shah v: Mohtamim / Raees ul Madrassa, Madrassa Arabia Qasim-ul-Aloorn, Ghotki District Ghotki Sindh and others (PLD 2017 Peshawar 133); Shafiullah v. Saifullah Khan and 7 others (PLD 2017 Peshawar 203), Adamjee Polycraft Limited and 3 others v. National Investment Trust Limited (2017 CLD 380), Malik Farzand Ali and another v. Asad Ali and others (PLD 2018 Lahore -46), Judgment dated 01.03.2017, pissed by another learned Bench of this Court in W. P. No,39 of 2017 titled Zameer-ul-Haq v. Province of Punjab, etc., Judgment dated 13.06.2017 passed by another learned Bench of this Court in Election Appeal No,09 of 2016 titled Haji Faqeer Muhammad v. Malik Rafique Ahmad etc. and Order dated 26.04.2018, passed by learned Islamabad High Court, Islamabad in W. P. No,2907 of 2017 titled Muhammad Usman Dar v. Khawaja Mohammad Asif, etc.
5. Conversely, learned counsel for respondents submits that petitioner has failed to avail the alternate remedy of invoking jurisdiction of the Speaker of Punjab Assembly and respondent- ECP under Article 63(2) & (3) of the Constitution before invoking constitutional jurisdiction of this Court.
He adds that petitioner has also been unable to raise any objection at the time of submission of nomination papers. He adds that previously, petitioner filed similar petition before respondent-- ECP on the same grounds, but it was dismissed as withdrawn with permission to file fresh one, however, this fact has been concealed while filing these petitions. He further contends that the bank's sanctioned finance. facilities were fully secured and currently, no amount / liability.is outstanding against respondents. He adds that there is series of litigation on civil as well as criminal sides between petitioner and respondents, and these petitions have been filed with mala fide. He further submits that respondents disclosed their share-holding in the companies while submitting nomination papers and, as the companies arc separate legal entities, therefore, no office / designation held in such companies or liabilities of such companies was required to be mentioned, He further submits that had he declared such liabilities, it would not have any effect on their candidature as bona fide omission does not invite disqualification under relevant provisions of law.. He adds that the allegations leveled. against respondents, in absence of mala fide and element of mens rea in any omission or defect in providing information, are not sustainable. He adds that no decree of default has been passed against respondents by a Court of law. In support of his contentions, he has referred to Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 Supreme Court 42), Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 Supreme Court 6), Qazi Hussain Ahmad, Ameer Jamaat-e-Islami Pakistan and others v. General Pervez Musharraf, Chief Executive and others (PLD 2002 Supreme Court 853), Messrs Huffaz Seamlen Pipe Industries Ltd. and 2 others v. Messrs Security Leasing Corporation Ltd. (2002 SCMR 1419), Nawabzada Iftikhar Ahmad Khan Bar v. Chief Election Commissioner Islamabad and others (PLD 2010 Supreme Court 817), Zahid lqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430), Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR 733), Muhammad Mujtaba Abdullah and another v. Appellate Authority / Additional Sessions Judge Tehsil Liaquatpur District Rahim Yar Khan and others (2016 SCMR 893), Murad Bux v. Kareem Bux and others (2016 SCMR 2042), Nawab Ali Wassan v. Syed Ghous All Shah and others (2018 SCMR 87), Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 Supreme Court 189), Judgment dated 03.11.2009, passed by Hon'ble Supreme Court in Civil Appeal No,24 of 2008 titled Ch. Mubashar Hussain v. The Returning Officer, NA 107 Gujrat-IV, Kharian, District Gujrat and others, Muhammad Irfan Khan v.
Javed Ahmed Chattari and 20 others (1998 CLC 1241), Capt. Syed Muhammad Ali v. Salim Zia (1999 CLC 1026), Muhammad Shabbir Abu Talib v. Dr. Abdul Aziz Bantwa and 18 others (2003 YLR 3039), Aurangzeb Shaafi Burki v. Province of the Punjab through Chief Secretary and 5 others (PLD 2011 Lahore 231), Syed Zafar Ali Shah v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and 34 others (PLD 2015 Islamabad 156), Malik Farzand Ali and another v. Asad Ali and others (PLD 2018 Lahore 46) and Order dated 26.04.2018, passed by learned Islamabad High Court, Islamabad in W. P. No,2907 of 2017 titled Muhammad Usman Dar v.
Khawaja Mohammad Asif, etc.
6. Arguments heard. Available record perused.
7. It is the stance of petitioner that respondents executed various bank guarantees, but they suppressed and concealed the liabilities / loans as well as correct value of their assets and accounts of the company i,e, Malik Ghee maintained with different banks, in the relevant columns of their nomination papers, hence, they are liable to be disqualified within the contemplation of Articles 62 & 63 of the Constitution, as they are no more Sadiq and Ameen. In support of his submission, petitioner has referred to settlement agreement dated 18.12.2017, executed between M/s. Malik Ghee and Bank of Punjab / respondent No,3. Whereas respondents have disputed the above assertions of petitioner by submitting that petitioner did not exhaust alternate remedy of approaching respondent-ECP; that petitioner did not agitate the matter at the time of filing of nomination papers; that similar petition filed by petitioner before respondent-ECP has already been withdrawn; that finance facilities were fully secured by furnishing guarantees and respondents are not un-discharged insolvents; that present petitions are the result of mala fide and personal grudge of previous litigation between the parties; that bank guarantees are not liability until default of principal debtor is established and declared by a decree issued by a Court of law; that respondents disclosed their share-holdings in nomination papers; and that as the companies are separate legal entities, therefore, no office / designation held in such companies or liabilities of such companies was required to be mentioned and the provisions of Articles 62 & 63 of the Constitution are not attracted in case of respondent Muhammad Razzaq Malik, as held by the Hon'ble Apex Court in Zahid lqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) and this Court in the case of Malik Farzand Ali supra. In the case of Zahid Iqbal supra, the Hon'ble Apex Court has held as under:- "13. As noted above, any disqualification within the contemplation of Article 62 and or 63 of the Constitution is neither attracted by implication nor by reference within the fold of section 27 of the Act, 2013, such disqualifying provisions cannot be dragged and be read as a part of section 27 of the Act, 2013."
8. The question which needs determination by this Court is whether in the facts and circumstances of these cases, provisions of Articles 62 & 63 of the Constitution can be invoked seeking disqualification of respondents on the above allegations in writ jurisdiction. It has also not been shown to this Court that at the time of filing of nomination papers, respondents were defaulters within the contemplation of Articles 62 & 63 of the Constitution and the law applicable thereto. The Hon'ble Apex Court, in the case reported as Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 Supreme Court 644), while deciding the review application, held that when the alleged disqualifications qua loan liability are not floating on the surface, then the questions as to unpaid loans are disputed questions of facts, which could not have been adjudicated upon in the proceedings under Article 199 of the Constitution. Similarly, assertions made by learned counsel for petitioner qua dishonest concealment of correct value of assets are not apparent from record and involve disputed questions. So far as the accounts of the company are concerned, company is a separate legal person and it has not been shown that respondents were under legal duty to disclose it Even otherwise, respondents have offered prima facie reasonable explanation to the alleged loan liability / concealment. Such explanation, whether plausible, reasonable, bona fide or dishonest, involves a detailed inquiry, which ex facie cannot be undertaken in the exercise of writ jurisdiction-.
The above legal position is further obvious in the case of Murad Bux supra, wherein the Hon'ble Supreme Court has ruled that there has to be willful false or incorrect statement. The relevant part is reproduced as under:--
7. As against this if non-disclosure about pendency of a criminal case has been made, for which the Petitioner has offered a reasonably plausible explanation, then the affidavit could not be considered as a false or incorrect declaration. It is well settled that the provisions' of disqualification of a candidate are to be strictly construed in the case in hand, the disqualification of the Petitioner is not an issue. The only issue is the non-discloser of the pending criminal case in the affidavit before the Returning Officer and whether such non-disclosure would be construed as concealment of material particulars". We, in the backdrop of these facts, are of the considered view that the non-disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made a ground to preclude the petitioner from contesting the election."
[emphasis supplied]
9. Law on the subject has elaborately been developed till now and in a recent pronouncement of Hon'ble Supreme Court, certain criteria have been laid down in order to invoke said provisions of law. Element of dishonesty is an essential element of disqualification under Article 62(1 )(f) of the Constitution, and the person should be found involved in dishonesty and cheating in order to attract the afore-referred provision of law as held in the case of Muhammad Hanif Abbasi supra (PLD 2018 Supreme Court 189), wherein the Hon'ble Supreme Court has emphasized that dishonesty cannot be attributed without reference to any alleged design, intention, scheme, background or impropriety / mens rea. In the afore-referred case, one of the Hon'ble Members of the 'Full Bench, while recording his additional note, made the following observations:-