Ch. Abdul Aziz, J. Through this single judgment, I intend to decide afore-mentioned four election appeals as question of law and facts of alike nature are involved therein.
2. The brief facts which led to the filing of above four election appeals can be summarized to the effect that Ch.Pervaiz Elahi (appellant in Election Appeals No.89 & 91 of 2024) in an urge to contest election from NA-59 Talagang and PP-23 Talagang filed his nomination papers before the respective Returning Officers which during scrutiny process were rejected through separate orders dated 30.12.2023; that on the other hand, his wife Mst.Qaisra Elahi (appellant in Election Appeals No.87 & 90 of 2024) with a desire to participate in election also submitted nomination papers in NA-59 and PP-23 which met the fate of dismissal through separate orders dated 30.12.2023 of both the Returning Officers. Through the afore-mentioned election appeals Ch. Pervaiz Elahi and Mst.Qaisra Elahi have called in question the legality of the orders passed by the respective Returning Officers, rejecting their nomination papers.
3. It is contended on behalf of appellants that the impugned orders are against factual and legal aspects, thus can safely be termed as perverse; that the Returning Officers misinterpreted the law by holding that for each constituency separate accounts are to be opened; that the appellants filed affidavits and declarations along with the nomination papers in accordance with the Elections Act, 2017; that 10 Marla of land since does not belong to Qaisra Elahi, thus there was no occasion of its mentioning in the nomination papers and indeed the land was transferred in her name clandestinely by the political opponents; that since Lahore Modern Flour Mills (Pvt.) Limited was dis- functional, thus no reference to it was made by Ch. Pervaiz Elahi (appellant) in his nomination papers; that the concealment of weapons in the assets is of trivial nature, hence cannot be used to the detriment of Ch. Pervaiz Elahi (appellant) and that since the impugned orders are against law and facts, thus are to be set-aside.
4. On the other hand, the dismissal of all the four appeals was stoutly urged by the learned law officers on the grounds that the appellants have made material concealment of assets in their nomination papers; that the affidavits and declarations annexed with nomination papers do not fulfill the requirement of Section 60 of the Elections Act, 2017 which is a mandatory provision; that one of the appellants, namely Ch. Pervaiz Elahi is a seasoned parliamentarian, hence the omissions made in the nomination papers cannot be condoned and that as the impugned orders of the Returning Officers are in accordance with law, hence all the four appeals are to be dismissed.
5. Arguments heard. Record perused.
6. It evinces from the perusal of record that for contesting elections of National and Provincial Assemblies, Ch. Pervaiz Elahi and his wife Mst.Qaisra Elahi (appellants) filed nomination papers from NA-59 Talagang & PP-23 Talagang. The Returning Officers of both the constituencies rejected the nomination papers of the appellants through their respective orders dated 30.12.2023. After having scanned the record, it is noticed that nomination papers of Pervaiz Elahi (appellant) were rejected mainly on the following grounds:-
(i) Improper/non-attestation of the affidavits and declarations in the nomination papers.
(ii) Failure to open separate accounts for each constituency;
(iii) Concealment about the ownership of 10 Marlas land in Tehsil Phalia;
(iv) Failure to mention the balance existing in the four bank accounts.
(v) Concealment of his shares in Lahore Modern Flour Mills (Pvt.) Limited in the nomination papers;
(vi) Concealment of weapons in Form-B and declaration submitted under Section 60(2)(d) of the Elections Act, 2017;
(vii) Failure to mention the assets of his wife in Form-B; So far as the reasons which prevailed upon the Returning Officer for the rejection of nomination papers of Qaisra Elahi (appellant) are concerned, these can be summarized as under:-
(i) Non-attestation of affidavits by the Oath Commissioner annexed with the nomination papers;
(ii) Failure to open exclusive bank account for each constituency;
(iii) Concealment in nomination papers about 10 Marlas of land situated in Tehsil Phalia;
(iv) Failure to mention the balance existing in five bank accounts.
(v) Concealment of expenses in the Tax Return 2023 about the expenses she incurred during two foreign tours in the same financial year;
(vi) Omission to mention the exact worth of hundred tolas of gold in the nomination papers.
7. A wade through the objections which persuaded the Returning Officers for the rejection of nomination papers reveals that some of these grounds are common against both the appellants and are numbered from (i) to (iv) in the preceding para. It appears to be in fitness of things firstly to dilate upon the objections which were commonly used against both the appellants by the Returning Officers.
8. The first common ground which led to the rejection of nomination papers pertains to non- attestation of Form-A, Form-B, declaration of qualification and disqualification under Article 62 and 63 of the Constitution and the declaration pertaining to the assets & liabilities. It is noticed that though Form-A of Ch. Pervaiz Ellahi and Qaisra Ellahi were attested by the Oath Commissioner in both the constituencies but no such attestation was found in Form-B. Secondly, it is noticed that the declarations of assets & liabilities were also not attested by the Oath Commissioner in accordance with law. The circumspective perusal of the record reveals that the declaration of assets & liabilities in these cases were comprising upon four pages and at the end these were required to be verified on oath by the Oath Commissioner. For the clarity of proposition, Election Appeal No.87 of 2024, Election Appeal No.89 of 2024, Election Appeal No.90 of 2024 & Election Appeal No.91 of 2024 the portion of the declarations meant for verification on oath by the Oath Commissioner is being referred hereunder:- "VERIFICATION ON OATH I, PARVEZ ELAHI S/O CHAUDHRY MANZOOR ELAHI do hereby solemnly declare that, to the best of my knowledge and belief, the above contents of this affidavit are correct and nothing has been concealed therefrom.
Signature of the candidate.....................
Date Place Attested by the Oath Commissioner..............."
The attention of learned counsel for the appellants was drawn towards the fact and he came forward with two-fold arguments. Firstly, he submitted that stamp is affixed on the first page of the declarations and secondly he contended that the omission is a minor and ignorable discrepancy.
For deciding this objection, the Tribunal enrouted through the provisions of the Rules and Orders of the Lahore High Court, Elections Act 2017 and two judicial decisions which made it incumbent for a candidate to file duly attested and verified declarations.
In reference to the improper attestation of the declaration by Oath Commissioner, it is observed that the procedure of doing the needful is given in the Rules and Orders of the Lahore High Court Volume-IV. The procedure of attestation by an Oath Commissioner is mentioned in Rule 14 of Chapter 12 of High Court Rules and Order, Volume-IV which for reference sake is mentioned hereunder:- "Attesting Officer's duty.--If any person making an affidavit appears to be Court, Magistrate or other office administering the oath or affirmation, to be ignorant of the language in which it is written, or to be illiterate, or not fully to understand, the contents of the affidavit, such Court, Magistrate or officer shall cause the affidavit to be read and explained to him in a language which both he and such Court, Magistrate of officer understand; either doing so himself, or causing another person to do so in his presence. When an affidavit is read and explained as herein provided, such Court, Magistrate or other officer as aforesaid shall certify in writing at the foot of the affidavit that it has been so read and explained, and that the declarant seemed perfectly to understand the same at the time of making it." (emphasis supplied)
From the perusal of Rule 14 it gets unambiguously cleared that the attestation of the Oath Commissioner must be at the bottom/end of each declaration or affidavit, more importantly when it comprises upon more than one page. There is no need to shed light upon the point that Form-B and these declarations are submitted along with nomination papers in compliance with the provision of Section 60(2)(a)(d) of the Elections Act, 2017. The nomination papers which are submitted without adhering to the provisions of Section 60, can legitimately be rejected by a Returning Officer under Section 62(9)(c) of the Elections Act, 2017. It will not be out of place to mention here that at the time of enactment of the Elections Act, 2017, the prescribed Form-A & Form-B were lacking various material queries about the candidate, thus after examining these deficiencies in the case reported Habib Akram v. Federation of Pakistan through Ministry of Parliamentary Affairs, Islamabad and others (PLD 2018 Lahore 641), multiple directions were issued through Para No.24 and two out of them are referred below:- "(c) The Impugned Forms do not provide for mandatory information and declarations as required by the Constitution and the law and the ECP is directed to ensure that all the mandatory information and declarations are included in the Impugned Forms.
(d) The ECP is empowered to add or improve Form-A and Form-B of the Act so as to fulfill its constitutional mandate of ensuring honest, just and fair elections."
The directions so referred in Habib Akram's case underwent a scrutiny from the Supreme Court of Pakistan in the case titled as Speaker, National Assembly of Pakistan, Islamabad and others v.
Habib Akram and others (PLD 2018 Supreme Court 678). The Supreme Court of Pakistan directed the Secretary Election Commission of Pakistan to prepare a draft of affidavit to be submitted by a candidate for providing requisite information which though were mandatory under the Representation of People Act, 1976 but were somehow omitted in the Elections Act, 2017.
Accordingly, the draft was submitted, the format of which is mentioned in para-6 of the order of the Supreme Court of Pakistan in Speaker National Assembly case (ibid), the most important part of which pertains to verification of oath required to be attested by the Oath Commissioner. In Para No.7 the Supreme Court of Pakistan made it mandatory for each candidate desirous of becoming a parliamentarian to file such affidavit along with his nominations papers and the consequence of failure were given in para No.8 which since having relevancy with these appeals thus is incorporated hereunder:- Election Appeal No.87 of 2024, Election Appeal No.89 of 2024, Election Appeal No.90 of 2024 & Election Appeal No.91 of 2024 "It is clarified that failure to file such Affidavit before the Returning Officer would render the Nomination Papers incomplete and liable to rejection. If the Affidavit or any part thereof is found false then it shall have consequences, as contemplated by the Constitution and the law. Since the Affidavit is required to be filed in pursuance of the orders of this Court, therefore, if any false statement is made therein, it would also entail such penalty as is of filing a false affidavit before this Court."
It further unfolds from record that during process of scrutiny carried out under Section 62 of the Elections Act, 2017, ample opportunity was provided to the appellants but they failed to rectify the defects while availing benefit of proviso (ii) of Section 62(9). I do not have any doubt after going through the observation of the Supreme Court of Pakistan in the case of Speaker National Assembly that since the declaration and Form-B were not properly attested, thus the nomination papers were rightly rejected by the Returning Officer.
9. I have also given a considered thought to the second common ground which formed basis of the impugned orders passed by the Returning Officers for the rejection of nomination papers which is described as failure to open separate bank accounts for each constituency. Before inching any further, it deems appropriate to have a look upon the scheme of the Elections Act, 2017 so far as it pertains to the opening of separate account, the limit of election expenses prescribed for the candidate and legal consequences ensuing from extravagant election expenditures. Section 60(2)
(b) requires a declaration to be submitted by the candidate along with the nomination papers regarding opening of an exclusive account or for dedication of an existing account in a scheduled bank for the purposes of elections expenses. Section 132(2) of the Elections Act, 2017 provides the maximum amount which a candidate can spend as election expenditures for the seats of National Assembly and Provincial Assembly. Section 133 makes it incumbent for a candidate to open an exclusive account or dedicate existing account in any scheduled bank for the election expenses.
According to Section 134 every contesting and returned candidate is required to submit the detail of election expenses on the prescribed forms. If the election expenses exceed the prescribed limit, it can make a candidate vulnerable to proceedings under Section 167(d) of the Elections Act, 2017, entailing consequences of conviction under the charge of corrupt practice. After going through the afore-mentioned provisions, the legislative intent can well be gathered that the purpose of opening an exclusive account is aimed at keeping an eye upon overgenerous election spending. A separate account for election expenditure is the only way out for examining the expenses incurred by a candidate during his campaign. The words "exclusive" and "dedication" towards opening of accounts further manifest the intention of Legislature aimed at keeping a watch over the wasteful election expenses. The declaration required to be submitted about the exclusive bank account was inserted through Section 60(2)(b) by virtue of an amendment made on 05.08.2023, thus the foregoing provision is still an under explored legal question. A legal provision can be scanned through four rules of interpretation which are classified as literal rule, golden rule, mischief rule and purposive rule. If the literal interpretation of a legal provision gives rise to an irrationality, the golden rule of interpretation can be used for ascertaining the legislative intent to give it a practical effect.
These rules were discussed in the case reported as Nadeem Sultan and another v. Hamza Shamim and 2 others (PLD 2023 Lahore 334) from which an extract is given hereunder:- "There are four rules of statutory interpretation and first out of them is literal rule, the second golden rule, the third mischief rule and fourth purposive approach. The literal rule enables the Court to interpret the legal provision in its literal and ordinary sense and cannot examine the intent of the Legislature. The golden rule can only be given effect if the literal interpretation gives rise to some irrationality. Under such rule, the Court can look into the legislative intent of a provision or a statute. The third rule of mischief can be used to see the unconstitutionality of the legislation. The purposive rule can be set in motion for ensuring the effectiveness of the law in accordance with the will of Parliament."
I have no doubt in my mind that if a candidate contesting elections from two constituencies does not open an exclusive bank account or dedicate already existing account then the very purpose of curtailing the election expenditures will be frustrated. In these circumstances, for giving effect to the provision of the Elections Act, 2017 about the insertion of provisions pertaining to the bank accounts, the rule of golden interpretation is to be set in motion. The word "exclusive" is not defined in the Elections Act, 2017, thus its dictionary meanings are to be looked into. The word "exclusive" is defined in the Black's Law Dictionary tenth Edition as:- "Limited to a particular person, group, entity or thing. Unable to be true if something else is true.
Whole; undivided."
The purpose of using the words "exclusive" and "dedicated" are sufficient to demonstrate the intent of the legislature that the accounts be used for the sole purpose of election expenditure and if the candidate is contesting elections from two different constituencies, then separate account for each of them is to be opened or dedicated. In the given circumstances, the objections so raised by the Returning Officers being justified are upheld.
10. So far as the third common ground pertaining to concealment of 10 Marla plot situated in Phalia by the appellants is concerned, it is destined to be discarded out-rightly. The appellants hail from a renowned political family of Pakistan having assets of lucrative worth. The concealment of 10 Marlas of plots is not of a substantive nature and otherwise both of them vociferously denied their ownership as such. Without a speck of reluctance, it can be held that the two plots were transferred in the names of the appellants through sinister designs of ousting them from the electoral process hatched either by their political adversaries or some hidden hands.
11. The fourth common ground which pertains to non-disclosure of balance amount in the declaration of assets and liabilities of the appellants, apparently have some substance. The details of bank accounts of the appellants for reference sake are given below:-
1. Mrs.Oaisra Elahi Institute Account # AddressBank Balances (PKR)
Allied Bank limited0010000318860018Liberty Market Gulberg Branch Lahore- Ziraat Katilim Bankasi 209000012934040000 01 TRY Istanbul Turkey 2461 Ziraat Katilim Bankasi20900001293404000002 USDIstanbul Turkey - Ziraat Katilim Bankasi20900001293404000003 GBPIstanbul Turkey - Ziraat Katilim Bankasi20900001293404000004 EURIstanbul Turkey -
2. Mr.Pervaiz Elahi Institute Account # AddressBank Balances (PKR)
Allied Bank Limited0010040804200012Parliament House Branchy Islamabad329,868 Silk Bank 0003-2006187628Main Branch Near LDA Plaza Lahore- Askari Bank 2490320002572 Iqbal Town Branch Lahore 24528 Askari Bank 0320206566 Model Town Branch Lahore - The perusal of above data reveals that firstly Mst.Qaisra Elahi omitted to mention the balance amount in four of her accounts, three out of which were in Turkey. Likewise, amount of 2461 is mentioned against an account in Turkey as Pak rupee, whereas actually it is in foreign currency.
Likewise, Ch.Pervaiz Elahi (appellant) is maintaining four bank accounts in Pakistan and he too did not mention their existence as well as the amount lying therein in the nomination papers.
Apparently, the non-mentioning of balance amount in the accounts is a deliberate concealment of assets, more importantly when nothing to the contrary was brought on record and the copies of bank statements were not submitted even before the Tribunal.
12. While dilating upon the objections which are person specific, I firstly intend to ponder upon the case of Ch. Pervaiz Elahi (appellant). According to one of the grounds for rejection of nomination papers, Ch.Pervaiz Elahi though had seven licensed weapons but made no reference to them in his nomination papers. Even during arguments, learned counsel for the appellant submitted that no supporting material to substantiate this allegation was brought on record. I am afraid that probably the learned counsel had not gone through the file as the caliber of all these weapons along with license numbers have been mentioned by both the Returning Officers in their respective impugned orders. I have failed to understand that though such defect could be remedied under Section 62(9) but no effort in this regard was made and even today the learned counsel initially came forward in a denial mode but later admitted about their existence. All the seven weapons are foreign made, thus have worth on the higher side and their concealment for all practical purposes is of material nature.
There is yet another aspect which was concealed by Ch. Pervaiz Elahi (appellant) and it pertains to his 49 % shares in Lahore Modern Flour Mills (Pvt.) Limited. During arguments, the record of SECP was placed before this Tribunal and its perusal gave vent to the truth behind the objection. Lahore Modern Flour Mills (Pvt.) Limited was incorporated under the Companies Ordinance, 1984 with Security and Exchange Commission of Pakistan on 16.12.2008 and even today the appellant is having about 49 % of its shares. There is no need of any scholarly discussion that in the given circumstances Ch. Pervaiz Elahi (appellant) was legally obliged to mention his shares of Lahore Modern Flour Mills (Pvt.) Limited in his nomination papers but he omitted to do so.
13. While embarking upon the objections exclusively pertaining to the case of Mst.Qaisra Elahi (appellant), it is observed that though she had not mentioned the worth of gold in her possession but clearly incorporated its weight as 100 tola in the nomination papers. The purpose of nomination papers is not to assess the value of the assets but to examine their description and quantity, thus the foregoing objection has no force.
I have carefully scanned the objection pertaining to concealment of travelling expenses attributed to Qaisra Elahi. It is noticed that according to the declaration, Qaisra Elahi (appellant) had four foreign trips, three out of which were of UAE and one for the Turkey. According to Para-L of the declaration of assets and liabilities, Qaisra Elahi incurred a cost of Rs.1,501,450/- for these foreign trips but strangely, in the Tax Returns for the year 2023, she mentioned her total personal expenses as Rs.2,477,050/- out of which Rs.1,501,450/- were described as having been paid as electricity charges and Rs.975,600/- as household expenses. In the given circumstances, it can inevitably be gathered that she mentioned nothing about the expenses incurred on her foreign tours in the Tax Return for the year 2023 nor described any source in this regard. The afore-mentioned omission gains significance when seen in the context that the information about the cost incurred on foreign trips is required to be submitted according to the Format of Declaration of Assets and Liabilities provided in the case of Speaker National Assembly (ibid) and its consequences are mentioned in para No. 8 of the case which for all practical purposes are serious in nature.
14. I am also compelled to observe here that Ch. Pervaiz Elahi (appellant) besides being a renowned politician is also a seasoned parliamentarian having privilege of returning victorious from elections on many occasions. He is presumed to be well aware about the filing of nomination papers and the information required to be furnished before the Returning Officers, thus the shortcomings mentioned above by no stretch can be termed as minor in nature.
15. In the light of above reasons, the instant election appeals having no force are dismissed.