IJAZ ANWAR, J. In the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has submitted his nomination papers for contesting General Elections, 2024 from the Constituency of PK-43 Abbottabad-II, Abbottabad. Later, respondent No.4 Owais Zareen has filed an objection before the Returning Officer and after proceeding with the matter, the Returning Officer rejected the nomination papers of the petitioner vide order dated 30.12.2023 for the following reasons.
"For the above mentioned reasons, the objections filed by the objector Mr. Sardar Owais Zareen are hereby accepted and hold that the contesting candidate Mr. Ateeq Ur Rehman has willfully concealed his assets alongwith Dubai work visa, details in tax returns in his FBR Tax Returns 2022-23 as per law, under obligation to in his nomination papers and has committed corrupt practices. Therefore, accepting the objections, filed by the objector, rejected the nomination papers filed by the contesting candidate".
Being aggrieved, the petitioner filed appeal before the Appellate Tribunal and the Hon'ble Tribunal vide the impugned judgment dated 05.01.2024 dismissed his appeal. Hence, this writ petition.
2. Learned counsel for the petitioner argued that non-mentioning of the property devolved upon the petitioner as legacy of his father was as inadvertent omission. He further argued that his father when died was having a house measuring 02 Kanal and 14 Marla and at the time of his death, he left behind three sons, three daughters and a widow and according to the calculation he made, the petitioner would be entitled to 04 Marla at the most. He further contended that the non-disclosure was neither intentional nor with dishonesty. He further argued that the petitioner has already returned to Pakistan in March, 2023 and thereafter, never went to UAE and as such, the Iqama became invalid and there was no need of mentioning the same in the nomination papers. He placed reliance on the cases titled "Shamona Badshah Qaisarani Vs. Election Tribunal, Multan and others (2021 SCMR 988)", Khawaia Muhammad Asif Vs. Muhammad Usman Dar and others (2018 SCMR 2128), Malik Shakeel Awan Vs. Sheikh Rasheed Ahmad and others (PLD 2018 SC 643) and Roshan All Buriro Vs. Syed Murad All Shah and others (2019 SCMR 1939)".
3. On the other hand, learned counsel representing respondent No.4 argued that in terms of the definition clause Section 2(v) of the Elections Act, 2017 (hereinafter to be referred as "the Act"), "asset" means "any property owned or held by a candidate or a member, his spouse and dependent Children", thus, according to him, in terms of Sections 62(9) of "the Act", where any of the provisions of Section 60 or 61 have not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular, the nomination form of such candidate is liable to be rejected. He further stated that the petitioner was holding a valid resident certificate/Iqama of UAE and has not disclosed the same. He placed reliance on the cases titled "Mst. Suban Vs. Allah Ditta and others (2007 SCMR 635), Khawaja Muhammad Asif Vs. Muhammad Usman Dar and others (2018 SCMR 2128) and Muhammad Hanif Abbasi Vs. Imran Khan Niazi and others (PLD 2018 SC 189)".
4. Arguments heard and record perused.
5. Section 60 of "the Act" provides for the `nomination for election'; similarly, Section 60(2)(d) of "the Act" provides for "a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B". Similarly, in terms of Section 62(9) of "the Act", "the Returning Officer may reject the nomination papers of a candidate if he is satisfied that any of the provision of Section 60 or Section 61 has not been complied with or the candidate has submitted a declaration or statement which is false or incorrect in any material particular".
Similarly, Section 62(9)(d)(ii) of "the Act", "the Returning Officer shall not reject a nomination paper on the ground of any defect which is not a substantial nature". This provision of law is pari materia to Section 12 of the Representation of the People Act, 1976. Section 12 of the Act ibid, being relevant, is reproduced as under:- "12. Nomination for election. (1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany-
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member;
(b) Omitted.
(c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
(d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;
(e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, along with attested copies thereof; and
(f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June; Explanation.-For the purpose of this section, the expression
(i) "loan" shall mean any loan, advance, credit or finance obtained or written off on or after the 31st day of December, 1985, but shall not include the loan the recovery of which has been stayed or suspended by any order of a court or tribunal, including the High Court and the Supreme Court;
(ii) "mainly owned" shall mean holding or controlling a majority interest in a business concern;
(iii) "taxes" include all taxes levied by Federal Government, Provincial Government or a local government, but shall not include taxes the recovery of which has been stayed or suspended by any order of a court or tribunal;
(iv) "government dues and utility charges" shall, inter alia, include rent, charges of rest houses or lodges owned by the Federal Government, Provincial Governments, local governments or corporations established or controlled by such governments, but shall not include the government dues and utilities charges the recovery of which has been stayed or suspended by any order of a court or tribunal.
(3) Every nomination paper shall be delivered to the Returning Officer by the candidate in person and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.
(4) A person may be nominated in the same constituency by not more than five nomination papers.
(5) [Omitted]
(6) The Returning Officer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny.
(7) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate as shown in the nomination paper.
(8) The nomination form and accompanying declarations and statements shall be open to inspection by the public, and copies thereof may be made available by the Commission in such manner and on paym ent of such fee as may be prescribed".
6. Similarly, non-disclosure of assets is allegedly considered to be a disqualification as provided under Section 62(9) of "the Act". This issue remained under discussion in different cases before the Hon'ble Supreme Court of Pakistan. Recently, in the case titled "Shamona Badshah Qaisarani Vs. Election Tribunal, Multan and others (2021 SCMR 988)", the apex Court has referred to almost all the judgments on this point and has deduced a law point which has now been consistently followed that "every non-disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the parliament or a candidate. If the non-disclosure or mis-declaration was such that it gave an illegal advantage to a candidate, then it would lead to termination of his candidature". Para-7 to 12 of the judgment passed in Shamona Badshah Oaisarani's case (2021 SCMR 988), being relevant to the present controversy, is reproduced as under:- "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 he/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 the act of non-disclosure of the asset is with dishonest intent or not and 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 reproduce 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 omission 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 revent 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 nondisclosures 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 element 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 should 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 whether 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 ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in section 12(2) of the ROPA. 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."
(Underlined to lay emphasis)
8. In the case of Shakeel Awan v. Sheikh Rasheed Ahmed (PLD 2018 SC 643) the appellant had sought disqualification of the respondent on the ground that the returned candidate/respondent has deliberately concealed certain agricultural land in his nomination papers; has declared his land holding to be 983 Kanals 17 Marlas while it has been established on record that the respondent owned 1049 Kanals and 13 Marlas and also not correctly disclosed the market value of certain immovable property. This Court while dismissing the appeal held that in cases where the non-disclosure or misdeclaration gives an illegal advantage to a candidate then such non-disclosure or misdeclaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal but the misdeclaration made by the respondent apparently did not offend any law, in that if he had disclosed his entire land holding and had shown the value of the said house to be forty eight million rupees he would still be able to contest the elections. In Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), Faisal Arab, J, as he then was, while agreeing with the majority view observed that there can be many examples where it can be safely said that an omission on the face of it is not dishonest.
Omission to list an inherited property or the pensionary benefits received by one's spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be said that a member intentionally concealed its disclosure in order to cover some financial wrongdoing. Suchlike omissions at best could be categorized as bad judgment or negligence but not dishonesty. In Murad Bux v. Kareem Bux (2016 SCM R 2042), the petitioner in the nomination papers filed for contesting local council election had failed to disclose that a criminal case is pending against him, which on objection raised by the respondent, led to rejection of his nomination papers. However, this Court allowed the petition by holding that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest for elections and that the nondisclosure 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.
9. In view of what has been discussed above, before disqualifying the appellant, the learned fora below ought to have established whether the act of the appellant of non-mentioning of landed property was a dishonest act with a view to gain some benefits i.e. to evade tax payment etc or the property was acquired later on after elections by using corrupt practices etc. However, we have noted that the learned fora below have made no effort to ascertain these aspects of the matter. The learned Election Tribunal Multan while disqualifying the appellant vide judgment dated 01.01.2015 only made basis to the earlier order passed by the Election Tribunal Bahawalpur dated 19.11.2014 in an application filed by the respondent No. 3 under section 76-A of the Representation of the People Act, 1976. Under section 76-A, the Election Tribunal can declare the election of the returned candidate void or declare any other contesting candidate to have been duly elected and nothing else. In those proceedings, the stance of the appellant was that the property was inherited from her parents, which has been transferred to her brothers and in this regard the "Tamleek Nama" has been executed on 04.07.2013. The learned Election Tribunal Bahawalpur vide order dated 19.11.2014 de-seated the appellant mainly on the ground that as the bye-elections were to be held on 07.10.2013, therefore, she was to declare her assets on the preceding 30th of June i.e. 30.06.2013 and as the "Tamleek Nama" was executed after the cutoff date i.e. 30.06.2013, therefore, it was held that she ought to have mentioned the agricultural property. However, in this order, the learned Election Tribunal had admitted the fact that the property was legitimate as it was inherited from her parents vide duly attested mutations. This judgment was upheld by this Court and thereafter, again bye-elections were scheduled to be held on 17.01.2015. For the second bye-elections to be held on 17.01.2015 the appellant filed nomination papers, which were objected to by the respondent No. 3 on the basis of the order of the Election Tribunal Bahawalpur dated 19.11.2014 but these were accepted. It was in the appeal before the Election Tribunal Multan against acceptance of nomination papers of the appellant for the second bye-election that the Election Tribunal Multan for the first time while relying on the order of the Election Tribunal Bahawalpur dated 19.11.2014 disqualified the appellant but failed to take into consideration that in the order of the Election Tribunal Bahawalpur, there was nothing mentioned about disqualification of the appellant and the earlier bye-election was only declared void by holding that the appellant ought to have mentioned about the property which was in her possession before the cutoff date i.e. 30.06.2013 and as the "Tamleek Nama" was executed on 04.07.2013 after the cutoff date, therefore, it was not taken into consideration. No wrongdoing was associated with the acquisition of the property or its retention, therefore, in view of the law laid down by this Court referred above, the act of non-mentioning of the property could not have been termed as dishonest act, rather it could only be termed as bad judgment or negligence but certainly not dishonesty. This Court in Muhammad Siddique Baloch v. Jehangir Khan Tareen (PLD 2016 SC 97) has held that in cases involving a finding of fact about the disqualification of a returned candidate in election matters, such finding must be based on affirmative evidence and not on presumptions, inferences and surmises. It would be in order to reproduce the relevant portion of the said judgment, which reads as under: "29. At this juncture, it is important to emphasize that in cases involving a finding of fact about the disqualification of a returned candidate in election matters, such finding must be based on affirmative evidence and not on presumptions, inferences and surmises. That does not mean that proceedings in an election petition before an Election Tribunal are strictly criminal proceedings. It is settled law that even in civil proceedings, a finding of fact must be based on positive and affirmative evidence. This requirement rests in the basic principles of the Qanun-e- Shahadat Order, 1984 and is articulated in Allah Din v. Habib (PLD 1982 SC 465). For that reason and the serious consequences that follow a finding of disqualification under Article 62(1)(f) of the Constitution, an additional evidentiary safeguard is adopted by the Court, namely, that any reasonable hypothesis available in the recorded evidence to avoid the disqualification of the returned candidate ought to be adopted by the Court of law. The foregoing safeguards have already been laid down in relation to the proof of corrupt practice by a candidate in an election.
Section 78(3)(d) of the ROPA treats a false statement by a candidate about his educational qualification to be a corrupt practice.
30. The earliest pronouncement on this subject is rendered by this Court in Muhammad Saeed's case (PLD 1957 SC 91), wherein it is held that: the burden of proof of corrupt practices is on the petitioner; that the evidence of proof of such practices must be restricted to the charges or instances mentioned in the petition and the particular; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed...."
31. A case directly pertaining to disqualification of a returned candidate was heard by this Court in Mohammad Yusuf s case (PLD 1973 SC 160) wherein whilst adopting the view taken in Muhammad Saeed's case (PLD 1957 SC 91) this Court has observed that finding of disqualification must be based on positive evidence and should not be rendered inferentially on mere surmises; that since a disqualification was penal in nature, therefore, the terms thereof were subject to strict interpretation; and the benefit of doubt was to be extended in favour of a returned candidate. The later judgments of this Court rendered in Saeed Hassan's case (PLD 1976 SC 6) and Muhammad Afzal's case (1986 SCMR 1736) approve the principles enunciated in the afore-noted two judgments." (Underlined to lay emphasis)
"5. The upshot of the said judgment is that a disqualification under Article 62(1)(f) of the Constitution can only be imposed by or under a declaration made by a court of law. By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision.
Accordingly, in the case reported as Sardar Yar Muhammad Rind v. Election Tribunal Balochistan, Quetta and others (PLD 2020 SC 137) this Court held that a judicial declaration disqualifying a candidate under Article 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence. In the case reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), the learned Judge speaking for the majority elaborated that even an Election Tribunal can only disqualify a candidate when its declaration is issued on the basis of evidence before it. Such a requirement is implicit in Article 10A of the Constitution which makes both due process and fair trial a fundamental right in lawful judicial proceedings. Thus the determination of a dispute relating to a right or liability, the recording of evidence including the right of cross-examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a court of law (ref: Tariq Transport Co., Lahore v.
Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali v. Government of East Pakistan (PLD 1970 SC 173).
11. It is well-settled that no man should suffer because of the fault of the court. There is an old maxim 'actus curiae neminem gravabit', which means that an act of court shall prejudice no man and the same becomes applicable in the present case as the learned fora below were under obligation to do justice with the appellant. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. In a case, where any undeserved or unfair advantage has been given to a party invoking the jurisdiction of the court (the respondent No. 3 in the present case) and the same requires to be neutralized, the said maxim is to be made applicable.
12. For what has been discussed above, we are of the view that the learned Election Tribunal Multan disqualified the appellant in a slipshod manner. The act of the appellant at best could be termed as bad judgment or negligence and as the property was legitimately acquired through inheritance, the same could not be labeled as acquired through dishonest means. For this negligence, she could not be disqualified for life. Consequently, this appeal is allowed and the impugned judgment is set aside.
7. Admittedly, the issue relates only to the non mentioning of 4 1/2 Marla of land which the petitioner would get in the legacy of his father, however, it can be termed as inadvertent omission, because, the property in question can, under no circumstances, be termed as the one which was purposely not disclosed and that such non-disclosure was with a view to get an illegal advantage nor even there were any allegations that such non-disclosure was with any dishonest intention.
8. So far as the other allegations regarding non mentioning of the Iqama is concerned, learned counsel for the petitioner has referred to the said Iqama which clearly suggests that once he leaves the UAE for a period of six months, it would certainly lapse. The non-mentioning of the same was mainly because of the fact that petitioner has abundant his residence at UAE and as such, mere non mentioning the said Iqama would not render his nomination as invalid in view of the law laid down by the superior Courts on this issue.
9. Having considered the case, we find that there is no allegation that the property, which is not mentioned in the nomination form, was allegedly gained through corrupt practices and that dishonestly, it was omitted to be mentioned in the nomination form. In view thereof, this writ petition is allowed.
10. These are the detailed reasons for our short order even dated which is reproduced as under:- "For the reasons to be recorded later, this petition is allowed. The order of the Returning Officer dated 30.12.2023 and that of the Appellate Tribunal dated 05.1.2024 are set aside. As a consequence thereof, the nomination papers of the petitioner for contesting General Elections, 2024 from the Constituency of PK-43 Abbottabad-II, Abbottabad are allowed and he is held eligible to contest the said election".