SULTAN TANVIR AHMAD, J. Through this constitutional petition, judgment dated 10.08.2021 passed by learned District & Sessions Judge/Appellate Authority for Cantonment Elections-2021, Sialkot, has been challenged.
2. Petitioner filed his nomination papers to contest election of Cantonment Local Government Elections 2021, Sialkot, for general seat from Ward No.2. The nomination papers of the Petitioner were accepted by the returning officer. The same was challenged by Respondent No.2 before the learned Appellate Authority by way of appeal dated 06.08.2021, which was accepted on 10.08.2021. Resultantly , nomination papers of the Petitioner from Ward No.2, Sialkot for upcoming election of Cantonment Board 2020-2021 were rejected.
3. Mr. Hassan Iqbal Warraich, learned counsel for the Petitioner has submitted that the learned Appellate Authority , while passing the impugned judgment, has failed to appreciate the arguments raised by the Petitioner that there is no bad object and intention or motive behind non-mentioning the partnership in Form IV and mere inadvertence is not suf ficient to curtail the fundamental rights of the Petitioner .
4. Conversely , Ch. Zulfiqar Ali, learned counsel for Respondent No.2 has opposed the Petition and submitted that failure to mention the name and particulars of the partnership deed of 'M/s New Life Industries Sialkot' are fatal for the case. Mian Mureed Hussain, Hafiz Muhammad Bilal Azhar and Mr. Naeem Sarwar Advocates/Legal Advisors of Respondent No.4 have also opposed the petition and contended that list of candidates have already been issued and any change in said list is likely to cause monetary loss. Further , they have supported the impugned judgment.
5. The reason given by the learned Appellate Authority for rejection of the nomination papers is the alleged concealment of a 'partnership deed' of a firm in the name and style of 'M/S New Life Industries Sialkot', which is not mentioned in Form-IV (declaration of assets) under Rule 17(5) of the Cantonment Local Government (Election), Rules, 2015. While giving the said reason for rejection of nomination papers the learned Appellate Authority has relied upon Section 15B Sub-Section (f) of the Cantonment Act, 1924, which has already been repealed.
6. Another provision of law relied in the impugned judgment is Section 60 Sub Section (i) of the Cantonment Ordinance, 2002 ("the Ordinance") . The relevant parts of the same read as follows:-.
"60. Qualifications for candidates and elected members:- (1) A person shall qualify to be elected (or to be chosen) or to be hold an elective of fice or membership of a local government, if he :-
(a) xxx
(b) xxx
(c) xxx
(d) he is sagacious, righteous, non-profligate, honest and ameen, there being no declaration to the contrary by a Court of law;
(e) xxx
(f) xxx
(g) xxx
(h) xxx
(i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person of corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the de-facto control of such assets including their sale, transfer or pecuniary interest, is retained by him;
(j) xxx
(k) xxx
(l) has not been sentenced to imprisonment for more than two years for an offence under any law and or, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment;
(m) xxx
(n) xxx
(o) does not engage in any transaction involving pecuniary interest with the (Board) of which he is a member; (Emphasis supplied)
7. Reading of section 60 (i) of the Ordinance clearly reflects that a candidate cannot qualify to be elected if he possess assets which are inconsistent with his declaration of assets or fails to establish justifiable means for his assets, which are in his own name or the candidate has de-facto control of such assets.
8. The obvious rational behind the aforesaid provision as well as requirement to file declaration of assets is to ensure that no dishonest person should be allowed to hold the affairs of the public of the given 'ward' or the area of the cantonment.
9. The Honourable Supreme Court of Pakistan in case titled "SHAMONA BADSHAH QAISARANI versus ELECTION TRIBUNAL, MUL TAN and others" (2021 SCMR 988) has given the clear guideline that before disqualifying a person, the learned Fora below has to establish or ensure as to whether the act of the Appellant for non-mentioning of a property was dishonest act with a view to gain some benefit(s).
10. The aforesaid benefit(s) indicated by the Honourable Supreme Court of Pakistan can possibly include evasion of liability of any tax, acquisition of the property by misusing the power or corruption or corrupt practices during any tenure of the person when he held any public office or elected from any constituency and/or ward, dishonest concealment of any asset(s) amassed through proceed of any crime etc.
11. The object is to create a primary filter to ensure that no dishonest person or a person having such history or a person likely to misuse his power for obtaining any personal or any undue benefit (based on dependable evidence) should be elected. It cannot be the intenti on behind the legislation to disqualify a person from exercising his right to contest election or to be elected, on the basis of mere technicalities or an innocent mistake or omission to declare a property acquired through lawful means.
12. It will be helpful to reproduce Paragraph No.7 of the judgment in case titled "SHAMONA BADSHAH QAISARANI versus ELECTION TRIBUNAL, MUL TAN and others" (Supra):- "7. It is now a well settled principle that every nondisclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate. The purpose and intention needs to be seen behind the nondisclosure or mis-declaration. The returned candidate would be disqualified only when if/she has dishonestly acquired assets and is hiding them to derive certain benefits .
If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate then it would lead to termination of his candidature. This Court in the case of Khawaja Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128 ) has candidly held that merely the fact that a candidate has not declared an asset in the nomination papers would not end in his disqualification but it has to be seen whether only if there is dishonest intent behind the non-disclosure, the candidate would be disqualified.
It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. It would be advantageous to repro duce the relevant portion of the judgment, which reads as under:- "9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omis sion would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper . Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty . As mentioned earlier even the proviso to section 14(3)
(d) of RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of section 12 of RoPA would not prevent a candidate to contest election on the basis of another validly filed nomination paper . Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62(1)(f) in the Constitution. All non-disclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar v. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an elemen t of bad intention with regard to an undeclared asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62(1)(f) of the Constitution cannot be invoked to disqualify an elected member for life.
10. Where a matter with regard to an undisclosed asset is taken to Court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired. Where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member 's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission. In the impugned judgment, the learned High Court itself was conscious of the fact that where there is a case of non-disclosure of an asset the same ipso facto does not render a person to be dishonest. In this regard, a judgment of this Court cited by respondent No.1' s counsel in the case of Rai Hassan Nawaz v. Haji Muhammad Ayub ( PLD 2017 SC 70 ) was referred where it was held as follows:- "8. We, therefore, observe that any plausible explanation that exonerates, inter alia, misdeclaration of assets and liabilities by a contesting candidate shou ld be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whethe r the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under section 12(2) of the ROP A is intentional or otherwise . This view finds support from the statuto ry aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in section 12(2) of the ROP A. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators." (Emphasis supplied)
13. Furthermore, in case titled "Rai HASSAN NAWAZ versus Haji MUH AMMAD AYUB and others" (PLD 2017 SC 70) the Honourable Supreme Court of Pakistan has observed that aim of avoiding to declare correct assets is to be seen.
14. The partnership deed of M/S New Life Industries has been brought on record of the file. Perusal suggests that Petitioner is 25% partner of the said firm. There is no provision in the said partners hip deed as to ownership of any asset or property by the partnership to which the Petitioner is a beneficial owner , to the extent of his share.
Somehow , even the capital of the partnership is not mentioned in the deed. The tax registration bearing No.34603333341781, is brought on the record, without disclosing the assets, liabilities of the said partnership or any profit made by the firm.
15. Learned counsel for the parties and all other concerned present in the Court have been repeatedly asked, if they can point out or give detail as to the ownership of any property of the said partnership but no satisfactory answer was given apart from bald allegations. No argument is addressed as to what benefit has been derived by the failure to mention the name of the firm in the relevant papers or any dishonest intent behind the same.
16. The learned Appellate Court, vide the impugned judgment has rejected the nomination papers without proper probe and inquiry as well as without disclosing the asset and income, which has been concealed, dishonestly .
Learned counsel for the Respondents has failed to satisfy as to bad intent, of the Petitioner , behind not mentioning of the name of aforesaid partnership, in the nomination papers or Form-IV . There is nothing on record showing any benefit derived from the alleged mis-declaration.
17. The present constitutional petition is accepted and judgment dated 10.08.2021 passed by the learned Appellate Authority/Respondent No.1, Sialkot is set-aside . Resultantly , the decision of the Returning Officer of accepting the nomination papers of the Petitioner shall hold the field.
18. A copy of this judgment be sent to the Returning Officer as well as all concerned for information, record and compliance.