This election appeal assails order dated 30.12.2023 of the Returning Officer rejecting the nomination papers of the appellant/candidate for NA-127 by recording the findings that the appellant/ candidate, his proposer and seconder were not available at the scrutiny stage. In explanation the learned counsel for the appellant alleged circumstances reportedly beyond the control of the said individuals and pleaded absence of any deliberate or contumacious attitude qua cooperation in process of ascertainment deemed necessary by the Returning Officer. He submits that without entering a stance of concession the persons are available and very much willing to attend the Tribunal for the Returning Officer to make his due diligence as to their identity as well as authenticity of signatures if deemed appropriate by this Court to put the matter to rest. This appeared to be reasonable in the peculiarity of circumstances. The persons are present in person today who have been examined by the Returning Officer also in attendance and after making this exercise he has entered a statement of being satisfied as to their respective identity and signatures, etc. as such their non attendance if presented as a defect in the scrutiny order stands adequately attended to.
2. The other objection in the impugned order is that two automatons bearing registration No.LES- 10 8625 and No. ACT 4781 which are a tractor and motorcycle, respectively, stood in the name of the appellant in the excise record who being their owner was liable to make proper disclosure however in the declaration Form "B" these articles do not find mention constituting a case of withholding of material information. The Returning Officer, on Court query as to how the information about these two articles had come before him as apparently no formal objection had been received, submitted that the Election Commission Of Pakistan to ensure that no dues outstood against any candidate participating in the oncoming jousting, had written letters to various government departments including the Excise and Taxation Department, Government of the Punjab who in response had made the disclosure. Nomination papers were scrutinized. These items were found missing in the list of assets in declaration given and, therefore, taking this as an instance of concealment nomination papers were rejected.
3. Learned counsel for the appellant has referred to documents brought on record through C.M.
No.2 of 2024 which was allowed today as an urgent matter, to attend to this objection qua purported non-disclosure. These documents include photocopies of transfer-letters and sales/payment receipts qua the tractor bearing registration No.LES-10-8625 shown to be sold as far back as 11.9.2012 whereas the motorcycle bearing registration No.ACT-4781 is represented to have been sold on 16.3.2021. Learned counsel while relying on the legal precedents reported as S. Zafar Ali Shah v. Muhammad Younas Elahi and 2 others (1989 CLC 88), M/s. Eastern General Insurance Company Limited v. Azhar Ali and others (PLD 1993 SC 158), Syed Wasey Zafar and 4 others v. Government of Pakistan through Secretary, Finance and others (PLD 1994 SC 621) and Mst. Shaheen Begum v. S.H.O. (ACLC) and others (2005 MLD 176) submits that as per the Sale of Goods Act, 1930 property in movable goods had crossed the forensic watershed of conveyance of title to the vendee in both instances who had all the documents necessary to perfect their title with the regulator as well as possession of the vehicles and that no further step was required from the appellant to finalize their sale. Further submits that if this was not done by the vendee in the excise record at least for the sake of consideration of the fundamental rights of the appellant guaranteed by Article 17(2) of the Constitution Of Pakistan, 1973 to present himself for election through the mechanism of representative democracy, the papers could not be rejected for attracting any purported opprobrium of having made a false declaration as, in good faith, they were not shown as the appellant's property; having received the price for them. He further submits that any finding qua false declaration shall be qualified by a specific finding of deliberate, intentional and mala fide concealment on part of the appellant from which the appellant stood to benefit and its disclosure would result in different outcome for the appellant. In the instant case the appellant did not stand to gain by non-disclosure of two assets whatsoever which had not been mentioned in the bona fide belief that the same no longer belonged to the appellant. He submits that without having any substance/material to infer malice on part of appellant rejection shall not be legally tenable and being mechanical in nature the order was liable to appellate interference. He adds that as per section 32(1) of the West Pakistan Motor vehicles Ordinance, 1965 the transferee is obligated to report to the transfer to the registering authority within statutory period which in the instant case is the Excise and Taxation Department, Government Of the Punjab, which if was not done by the respective vendees of the two machines, could not be saddled with harsh consequences upon the bona fide seller of such goods who upon receiving payment and executing all necessary transfer documents at least for purposes of commercial morality was justified in his belief of being no longer owner.
4. In this context he has placed reliance on Syed Fida Hussain Shah v. Election Appellate Tribunal and others (PLD 2018 Lahore 788), Shamona Badshah Qaisarani v. Election Tribunal, Multan and others (2021 SCMR 988) and Yasir Aftab v. Irfan Gul and others (2023 SCMR 206) to submit that appellant hardly stood to gain anything by any non-disclosure and holding the bona fide belief that they were no longer tagging in his name having duly sold the same for value could not be attributed any malice to attract adverse inference for purposes of consideration of his nomination form over alienated automations of marginal value. The explanation proffered by the appellant to dispel any presumption of deliberate concealment shall suffice for purposes of summary proceedings obligated to ensure that any omissions being detected shall be subjected to proper analysis to reject or accept the same keeping in line principles settled by the superior courts qua hallmarks of structured discretion. Impugned order when scrutinized in this contextual backcloth is eliminated of the rationality and proportionality in reasons recorded for rejection of nomination papers of the appellant and is accordingly set aside. Nomination papers of the appellant as upshot of the above stand accepted. The Returning Officer is directed to incorporate the name of the appellant in the revised list of validly nominated candidates for the particular constituency in discharge of the mandate of section 64 (3) of the Elections Act, 2017.
5. Appeal accepted.