SHAKEEL AHMAD, J.- Being aggrieved of the order dated 19th March, 2024, rendered by the Returning Officer for Senate Elections, 2024 for the Province of Khyber Pakhtunkhwa, whereby and whereunder, the nomination papers submitted by the appellant for election to Senate from Khyber Pakhtunkhwa on General Seat were rejected, the appellant has filed the instant appeal under Section 113 of the Elections Act, 2017 (hereinafter referred to as "the Act of 2017") read with Rule 100 of the Election Rules, 2017.
2. The facts of the case, in brief, are that, the appellant, being aspirant to contest election for one of the General Seat of Senate from Province of Khyber Pakhtunkhwa, submitted his nomination papers. The respondent namely, Taj Muhammad Afridi, a nominated candidate through his counsel submitted objection petition on the nomination papers filed by the appellant (Murad Saeed), seeking rejection of his nomination papers, firstly on the ground that he is wanted to the Police in different criminal cases and fugitive from law, secondly that he has concealed material information well within his knowledge yet not provided in the nomination forms / papers, thirdly that he failed to give the details of crime reports / list of FIRs as he had provided list of only 10 FIRs, but has not provided the details of the FIRs, which he had provided in his nomination papers filed in General Elections, 2024 for the seat of NA-3, Swat, fourthly that there exists other series of crime reports against the appellant, which were not only within absolute knowledge, but also has been intentionally /purposely withheld / concealed, details whereof are given as under:- i. Crime No. 13 registered on 12.01.2024 at PS Matta Swat. ii. Crime No. 141 registered on 28.04.20234 at Police Station Dargai Malakand. iii. Crime No. 294 registered on 19.04.2023 at Police Station Matta Swat. iv. Crime No. 728 of 2022 registered on 20.08.2022 at Police Station Aabpara Islamabad. v. Crime No. 425 of 2022 registered on 26.05.2022 at Police Station Kohsar Islamabad. fifthly, that he has made grave concealment of facts on oath and on affidavits appended with his nomination papers, thus, the affidavit submitted by him is not true, and is false, and that he is guilty of committing misdeclaration on oath, therefore, he is liable to be disqualified in terms of Articles 62 and 63 of the Constitution of the Islamic Republic of Pakistan, 1973, read with Section 231 and 232, and Section 110, 111, 112 of the Act of 2017, sixthly that he has made misdeclaration on oath while submitting the details of his assets and liabilities as per Federal Board of Revenue (FBR) Annual Return submitted by him for the year, 2022-23, according to objector, he has shown an amount of Rs. 20,47,186/- as investment in his own name, while he has declared Rs. 19,22,568/- as investment in his joint account with his better half namely, Ayesha Ilyas, whereas such investment / asset has not been declared by him correspondingly in his nomination forms (Form IT) under the heading of the movable assets available at Page-7 of the nomination papers under the heading of (E)
Investments, thus, his nomination papers are liable to be rejected, seventhly that he is a defaulter of fine government dues to the tune of Rs. 1,00,000/-, which is still unpaid despite demand and reminders by the Provincial Election Commissioner, which offends the provisions of code of conduct under Section 234(3) of the Act of 2017 and for that very reason, earlier his nomination papers were rejected by the Returning of NA-3, Swat, vide order dated 29.12.2023, eighthly that the signatures of the appellant are not only forged, fictitious and bogus on the nomination papers submitted by him, but the signatures of his proposer and seconder namely, Fazal Hakeem Khan and Hameedur Rehman are also fabricated, fake and forged, he has been declared as proclaimed offender and on that very ground, his earlier nomination papers for the seat of NA-3, Swat was rejected, not only by the Returning Officer, but also the Appellate Election Tribunal, Peshawar High Court as well as Peshawar High Court, and that when the signatures of Murad Saeed available on the nomination form were got verified by the Returning Officer, NA-3, Swat from FSL, the same were reported to be bogus, consequently, he was nominated in other FIRs for committing the said forgery.
3. After providing the right of audience to the learned counsel for the parties, the objection petition was allowed and the nomination papers submitted by the appellant for the election to the Senate from Khyber Pakhtunkhwa was rejected, vide order dated 19.03.2024. Not contented with the said order of the Returning Officer, the appellant has filed the instant appeal before this Tribunal.
4. It was argued by the learned counsel for the appellant that the impugned order rendered by the Returning Officer for the Election to the Senate, 2024, is factually and legally not correct, as he failed to take notice of the overwhelming documentary evidence produced by the appellant in support of his claim, refuting therein the objection raised by the objector-respondent. It was next pleaded that the fine of Rs. 1,00,000/- imposed by the Election Commission of Pakistan was deposited in the National Bank of Pakistan on 29.12.2023 and 02.01.2024. In support of his contention, he placed reliance on the receipt appended at Page 85 and 86 of the appeal. Regarding the objection of the objector-respondent on misdeclaration on oath while submitting the details of his assets and liabilities, he relied upon the return of income filed on notice for complete year, duly issued by the FBR appended with the appeal at Page 57, and went on to say that under the code 7006 the Investment (Non-business) (Account/ Annuity / Bond / Certificate / Debenture / etc), Rs.
20,47,186/- and Rs. 19,22,568/- were reflected and pleaded that no such misdeclaration was made as alleged by the objector. Replying the registration of different crime reports against him, he pleaded that all those FIRs, which were in his knowledge had been duly mentioned in his nomination papers, and so far as the registration of other FIRs are concerned, he argued that father of the appellant had filed Constitutional Petition No. 30-P of 2024, seeking issuance of direction to the official respondents to provide him information regarding registration of criminal cases against him or issuance of preventive detention order, if any, against him, under Maintenance of Public Order, 1960, wherein comments have been called from respondent No. 3 to 10, vide order dated 02.01.2024. He further pleaded that even the registration of FIRs against him would not debar him to contest the election for the seat of Senate, 2024. In support of his arguments, he produced unreported judgments of this Court. Replying the objection on the forged signatures of the appellant on the nomination papers, his proposer and seconder, he submitted that on the day of scrutiny, his proposer and seconder were present before the Returning Officer and they own their signatures and even the appellant owns his signatures on the nomination papers, which are genuine. He added that the appellant is neither guilty of false declaration nor made any misstatement, he concluded his arguments by saying that the impugned order rendered by the Returning Officer may be set aside and he be directed to accept his nomination papers to the election of Senate for General Seat.
5. In response, it was submitted by the learned counsel for the objector-respondent that the appellant had not provided the details of FIRs, which he had earlier provided in his nomination papers filed in General Elections, 2024 for the seat of NA-3, Swat. Besides, Crime No. 13, 141, 294, 728 and 425 registered against the appellant in 2022, 2023 and 2024 were not disclosed in the nomination papers submitted to the Returning Officer for the election of Senate. It was further submitted by the learned counsel for the objector-respondent that the appellant and his co- appellant, Muhammad Azam Khan Swati, had filed W.P.No. 2204-P of 2023, seeking information regarding registration of FIRs against him was dismissed to the extent of appellant, vide judgment dated29.11.2023. It was further submitted by the learned counsel for the objector-respondent that return of income reflects that Rs. 20,47,186/- was invested by the appellant himself, whereas Rs.19,22,568/- was invested jointly by the appellant and his wife namely, Ayesha Ilyas, which was not mentioned in the nomination papers as is reflected from the column of assets / investments. It was added by the learned counsel for the objector-respondent that the receipts showing deposit of the fine imposed by the Election Commission of Pakistan at Page 85 and 86 of the appeal does not reflect the name of the appellant, according to him, these receipts are forged and fictitious, thus no presumption of truth is attached to it. It was further added that the general power of attorney appended with the appeal at Page 87, whereby and whereunder, the appellant had authorized and nominated one Abdul Aziz son of Khan Toti, is unregistered document, therefore, not at all admissible in the eye of law. In support of his contention, he placed reliance on Section 17 of the Registration Act. It was pointed out that the specimen of the signatures of his nominated attorney on the general power of attorney and Vakalatnama do not tally with each other and prayed for dismissal of the instant appeal.
6. Having considered arguments of the learned counsel for the parties at length and examining the record appended with the appeal and relevant law, I am of the view that the following questions require consideration by this Tribunal:- i. Whether a proclaimed offender could be disqualified from being elected as a member of the Senate? ii. Whether Section 62(9) of the Act of 2017, empowers the Returning Officer to reject the nomination papers of a candidate on the ground of being a proclaimed offender? iii. Whether there is any provision in the Act of 2017, that requires presence of the candidate during the electoral process, and his nomination papers could be rejected by the Returning Officer on this score or not? iv. Whether nomination of the appellant in different criminal cases as accused would debar him from being elected as member of the Senate? v. Whether non-mentioning of details of crime reports in the nomination papers, which he had provided in his nomination papers submitted in General Elections, 2024 from NA-3, Swat is fatal to his candidature? vi. Whether the appellant has made concealment of facts on oath and affidavit enclosed therewith, thus he is guilty of committing misdeclaration on oath, hence he is liable to be disqualified as provided by Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973? vii. Whether appellant has not deposited the fine of Rs. 1,00,000/- imposed by the Election Commission of Pakistan? viii. Whether appellant had made misdeclaration on oath while submitting the details of assets and liabilities?
7. It is an admitted fact that the objector had raised many objections on the nomination papers submitted by the appellant, which were allowed, inter alia, on the grounds mentioned in Para No.11 of the impugned order, which is reproduced as under:-
11. Having perused the present nomination papers and Balmy documents it is clear that the material information has been concealed therefrom and a visible contradiction has been found in both the nomination pipets, Therefore, apparent concealment made during general election 2024, and filing a false affidavit with nomination papers has rendered the instant nomination paper of the defendant for general seat as invalid consequently debarring him from contesting the election for general slot. The defendant was asked to show tepid of deposit of Rs, 100,000/- which was imposed on him due to violation of code of conduct. However, he had no proof that he has cleared such dues prior to filing of nomination papers therefore is hit by Article 63(1))(o) of the Constitution Mr. Mural Sneed has also made misdeclaration on oath while submitting the details of assets and liabilities. As per FBR annual return submitted by Arad Seed for the year 20712013 he has shown an amount of R4047,186/. as investment in his own name while he has declared Rs1,922,568/- as investment in a joint Rivet with his spouse (Murad Seed / Ayesha llyas). To the contrary no such investment / gets have been declared by him correspond only hi his nomination forms (foil under the heading of movable assets available at page 7 of the nomination form under the heading of
(e) Investments. This non declaration on oath of the admitted assets by %rad Saeed render his nomination form liable to rejection.
8. Considering the issues framed hereinabove, now I proceed to record my findings issue-wise.
Provisions relating to qualification and disqualification of membership to the legislative bodies of Parliament (Majlis-e-Shoora, Senate, Provincial Assemblies etc.) have been laid down in Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 231 and 232 of the Act of 2017, which does not reflect that a person who is wanted to the police in different criminal cases or has been declared as proclaimed offender or nominated in criminal cases as an accused is disqualified from being elected as member of Parliament. The grounds enumerated for rejection of nomination paper in terms of subsection (9) of Section 62 of the Act of 2017 also do not empower the Returning Officer to reject the nomination of a candidate /contestant on the ground that he is a proclaimed offender or wanted to the police in different criminal cases or has been nominated as an accused in different crime reports. During arguments, no provision of the Act of 2017 could be brought to my notice that requires presence of a candidate / contestant ....during electoral process, in my view, his nomination paper cannot be turned down on such ground, unless such provision is incorporated in subsection (9) of Section 62 of the Act of 2017.
In view of the discussion made hereinabove, the answer to the Issue No. i to iv is given in negative.
9. Now coming to Issue No. vi and vii. It was alleged by the respondent-objector that the appellant has made concealment of fact on oath and affidavit enclosed therewith. According to respondent- objector, appellant has not mentioned the name of the BOK, in which he has account and that he has also not mentioned the movable assets in Form 'B', therefore, he is guilty of committing misdeclaration on oath, therefore, he is disqualified to contest election as envisaged under Articles 62 & 63 of the Constitution of Islamic Republic of Pakistan, 1973. This argument of the learned counsel for the objector equally has no force. A perusal of Return of Income filed on notice for complete year issued by the Federal Board of Revenue on 21.12.2023 reflects that in the column of personal assets / liabilities, it was specifically mentioned that he has Rs. 19,22,568/- in the joint account with his wife and Rs. 1,24,618/- in the ABL Parliament House Branch, Parliament House, Islamabad, which comes to Rs. 20,47,186/- the account No. 07560010005750900016 in the Allied Bank reflects in the column of asset with Rs. 4781/-. So far as non-mentioning of account in BOK is concerned, suffice it to say that non-disclosure / non-mentioning of certain properties / property or / bank account owned by a candidate in his nomination papers, at best constitutes misdeclaration, which did not in the facts and circumstances of the present case attracts disqualification as per criteria enumerated in Articles 62 & 63 of the Constitution. In my view, mere omission to mention the said account in the nomination papers could not be labeled as dishonesty in terms of Article 62(i)(f) of the Constitution, unless some wrongdoing was associated with its acquisition or retention, which was duly established in Judicial proceedings. It is by now settled that element of bad intention with regard to undeclared asset had to exist before it could be described as dishonest. Even otherwise, non-disclosure of a fact by a candidate, which otherwise, if disclosed, could not disqualify him from contesting election. In this behalf, reference may be made to the case reported as "lmran Ahmad Khan Niazi vs. Mian Muhammad Nawaz Sharif, Prime Minister of Pakistan/Member National Assembly, Prime Minister's House, Islamabad and 09 others" (PLD 2017 SC 265).
10. Now turning to issue No. viii, it was argued vociferously by the learned counsel for the respondent-objector that the appellant has not deposited fine of Rs.100000/-, imposed by the Election Commission of Pakistan. This argument of the learned counsel for the respondent-objector also seems to be based on misconception. The photocopy of the receipt enclosed at Page No.85 and 86 of the appeal discloses that vide receipt dated 29.12.2023 and 02.01.2024, original whereof was produced for perusal of the Court, the amount in question has been deposited by the appellant. No doubt in the column of "by whom deposited" the name of the appellant is not much visible, but original receipts produced by the appellant reflects his name vividly.
11. So far as allegations of forged signatures of the appellant on the nomination papers are concerned, the record discloses, that the scrutiny was made in their presence, they were also made available before this Tribunal today, they own their signatures on the nomination papers. As far as signature of the appellant is concerned, its falsity or correctness can only be ascertained, after recording pro and contra evidence, therefore, I leave it to be determined by the appropriate forum, after recording evidence, if matter is brought before it. The general power of attorney, whereby and whereunder, one Aziz Khan was authorized to file the appeal, in my view, does not require registration under Section 17 of the Registration Act, as it neither relates to financial obligation nor in a transaction to create title, it was executed only to attend Courts proceedings. In view of the above, the objection raised by the learned counsel for the respondent-objector is overruled.
12. For the analysis and reasons mentioned hereinabove, the instant appeal is allowed and the impugned order dated 19th March, 2024, rendered by the Returning Officer for election to the Senate, 2024 from Khyber Pakhtunkhwa, is set aside. The Returning Officer is directed to accept the nomination papers of the appellant for election to Senate from Khyber Pakhtunkhwa on General Seat and he is also directed to issue revise list in this regard. Costs made easy.
13. These are the detailed reasons of my short order of even date.
SHAKEEL AHMAD, J.- For the reasons to be recorded later, this appeal is allowed and the impugned order dated 19th March, 2024, rendered by the Returning Officer for election to the Senate, 2024 for the Province of Khyber Pakhtunkhwa, whereby and whereunder, the nomination papers of the appellant for the General Seat were rejected, is set aside. The Returning Officer is directed to accept the nomination papers of the appellant for the said seat and he is also directed to issue revise list in this regard.