IJAZ ANWAR, J. Through this single judgment, we intend to decide the instant writ petition and Writ Petitions No.140-P/2024, No.141-P/2024 and No.142-P/2024, filed by the petitioner Babar Azeem Afridi, since in all these cases, similar questions of law and facts are involved.
2. In essence, respondent No.5 namely Aftab Alam has submitted his nomination papers for contesting General Elections, 2024 from the Constituencies of PK-90 Kohat-I and NA-35 Kohat.
Later, the petitioner filed objections before the Returning Officer and after proceeding with the objections, the Returning Officer rejected the nomination papers of respondent No.5 vide separate orders dated 28.12.2023 and 29.12.2023 for the following reasons:- "02 FIRs (att) not disclosed in affidavit submitted with Nomination papers, hence, submitting these affidavits stands rejected under 62(9)(c) of the Elections Act, 2017.
As per revenue record (att), candidate is owner of 185-K -08-M in Mauza Mando Khel & he has declared 48-K, hence, hit by section 62(9)(c) of the Elections Act, 2017. Police report is also placed on file".
Being aggrieved, respondent No.5 filed separate appeals before the Appellate Tribunal and the Hon'ble Tribunal vide the impugned judgment dated 08.01.2024 accepted the appeals and direction was issued to the Returning Officer of NA-35 Kohat and PK-90 Kohat-I to accept the nomination papers of the respondent No.5.
3. Arguments heard and record perused.
4. 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. These provisions remained the subject of 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 Qaisarani'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 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 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 nondisclosure 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. l'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 nondisclosure 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 SCMR 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 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.
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)
10. In the case of Allah Dino Khan Bhayo v. Election Commission of Pakistan (PLD 2020 SC 591), this Court has held as follows:- "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)(t) 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.
5. In all these cases, the allegations are that respondent No.5 has, in his nomination forms, mentioned less agricultural land in Mouza Manda Khel, District Kohat while it was the stance of the said candidate Aftab Alam that when he applied for relevant fard to the revenue hierarchy, he was provided with a computerized fard, wherein, the mistake, thus, occurred as his ownership in the said Mauza was mentioned as 48 Kanal 11 Marla which, according to him, was only because of the record provided by the revenue hierarchy. The computerized fard, so produced, clearly depicts the same. Though, the Patwari Halqa has given his report mentioning more than the declared landed property, however, the issuance of the computerized fard has not been denied.
6. The law on the point, as mentioned above, clearly depicts that every such omission to declare an asset on the face of it cannot be regarded as dishonest concealment.
7. In the case of "Khawaja Muhammad Asif Vs. Muhammad Usman Dar and others (2018 SCMR 2128)", this fact was considered in detail and while giving an example in the said judgment, it was noted that "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".
8. In the case titled "Nasir Ali Rizvi Vs. Mirza Nasir Baig and others (1997 CLC 719)", identical matter was dealt with, wherein, it was held as under:- "7.3. Declaration of assets filing of incorrect "Goshwara Malkiat" issued by Patwari and verified by Tehsildar. Such declaration was at variance with "Goshwara Malkiat" filed with objection petition. Returning officer accepted nomination papers of respondents.
Validity Respondents had no shown their agricultural land on the basis of their assessment but on the basis of documents provided to them by Patwari. If Patwari had later on rectified any mistake committed by him, respondents could not be penalized for such act to Patwari.
Rejection of nomination papers was a penalty which could only be imposed if an offence was committed or law violated. Section 14 of the Act would apply when false statements had been made with mens rea but not otherwise. Mere existence of defect in nomination paper not of substantial nature and defect which could be remedied, should not be made ground for rejection of nomination papers. Returning Officers could ask respondents to file fresh "Goshwara malkiat".
Election Tribunal dismissed appeals in circumstances".
9. Apart from the above, Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 is most relevant to the maintainability of this and the connected petitions. It is reproduced for the convenience of the Court as under:- "225. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)".
10. This Article is considered in some cases as bar for the maintainability of writ petition against the orders of the Election Appellate Tribunals. The view of the superior Court is that "where a candidate was being disenfranchised or barred from contesting elections and the electoral law does not provide any remedy to him to seek redress the jurisdiction of this Court under Article 199 of the Constitution can always be invoked". In the case titled, "Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer (1994 SCMR 1299)", the Hon'ble Supreme Court of Pakistan has held as under:- "26. The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to disfranchise a candidate, he can press into service Constitutional jurisdiction of the High Court.
The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove. "
11. Similarly, in the case titled "Election Commission of Pakistan through its Secretary, Vs. Javaid Hashmi and others (PLD 1989 SC 396)", the Hon'ble Supreme Court of Pakistan, after examining the provisions of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, has held as under:- "The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and content".
12. Similar view was also expressed by the Hon'ble Supreme Court of Pakistan in the cases titled "Muhammad Azhar Siddiqui Vs. Federation of Pakistan and others (PLD 2012 SC 774), Aurangzeb Khan Vs. Election Commissioner of Pakistan, Islamabad through Secretary and others (PLD 2010 SC 34), Ali Raza Fatiana Vs. Election Appellate Authority, Local Government, Sahiwal and others (2016 SCMR 439), Intesar Hussain Bhatti Vs. Vice Chancellor, University of Puniab, Lahore and others (PLD 2008 SC 310), Agha ()urban Ali and others Vs. Election Commission of Pakistan through Chief Election Commissioner and others (2020 CLC 01 Sindh), Rao Naeem Sarfaraz Vs. Election Commission of Pakistan through Chief Election Commissioner and others (PLD 2013 Lahore 675), Ha ii Khuda Bux Nizamani Vs. Election Tribunal and others (2003 MLD 607 Karachi), Israr Ahmed Jakhrani Vs. District Returning Officer/District & Sessions Judge, Jacobabad and others (PLD 2005 Karachi 598) and Muhammad Ramzan Vs. Jam Kaim Ali and others (1997 MLD 2819 Karachi)".
13. Thus, in view of the law laid down by the Hon'ble Supreme Court of Pakistan, the petitioner in these cases is not in any manner disenfranchised rather he is seeking disenfranchisement of respondent No.5 and since the election schedule is already finalized and even notification of the validly nominated candidates has also been issued, as such, we are of the view that the bar contained in Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 is equally applicable to the case of the petitioner, besides, as referred in the judgments of the superior Courts, even in case, such a candidate is declared as returned candidate, yet his such election can be questioned before the Election Tribunal to be constituted thereafter.
14. For the reasons stated above, we find that this and the connected writ petitions are not maintainable. The same are accordingly dismissed.