SULTAN TANVIR AHMAD, J. Through this judgment, titled appeal along-with election appeals bearing E.A No. 12 of 2024 and E.A No. 10 of 2024, filed under section 63 of the Elections Act, 2017 (the 'Act') read with rule 54 of the Election Rules, 2017 (the 'Rules'), against orders dated 28.12.2023, 29.12.2023 and 30.12.2023 (the 'impugned orders'), shall be decided. All these appeals are filed by the appellant against rejection of his nomination papers, for almost identical reasons, from NA- 174(VI|), Rahim Yar Khan, PP-265(XI) and PP-266(XII), Rahim Yar Khan.
2. The nomination papers of the appellant have been rejected by the concerned Returning Officers for the reasons that (i) FIR No. 322 of 2023 is registered against the appellant and (ii) the appellant is defaulter of Land-Based Agriculture Tax for which allegedly Assistant Collector, Sadiqabad issued an order to deposit an amount of Rs. 964,500/- but the appellant failed to clear the same.
3. Mr. Muhammad Munir Gondal, learned counsel for the appellant has submitted that the impugned orders are against the law and the nomination papers have been rejected simply on the basis of a letter issued by District Police Officer, Rahim Yar Khan with regard to FIR No. 322 of 2023, however, earlier the appellant was not aware about this FIR and soon after gaining knowledge of the same, the appellant obtained protective bail and he has given full disclosure as per his knowledge and belief in the nomination papers as well as the affidavit attached. It is submitted by the learned counsel for the appellant that the appellant is not fugitive of law and he has already approached the learned Court of competent jurisdiction, which has granted him pre-arrest bail; that he has also contacted the investigation officer to join the investigation. To the extent of allegation of not paying the agriculture income tax, the learned counsel for the appellant relied upon the certificate issued by Assistant Collector, Sadiqabad bearing No. TDR /SDK/745 dated 05.12.2023 and subsequent no demand certificate issued by concerned Assistant Commissioner.
4. Conversely, Mr. Zafar Iqbal Awan, learned Additional Advocate General and Mr. Muhammad Jaffar, Law Officer / Assistant Director (Law) Election Commission of Pakistan have opposed these appeals. They have stated that the appellant is fugitive of law and he is tax defaulter as reported to the concerned Returning Officers.
5. I have heard the learned counsel for the parties and perused the record with their able assistance.
6. It is not denied by the respondent-side that proceedings under section 87 of the Code of Criminal Procedure, 1898 (the 'Code') were never initiated against the appellant. The Returning Officers are also present in the Court with the relevant record and they have stated that no proclamation in this respect or any order of the learned concerned Magistrate regarding the statement of Investigation Officer is in their record. This is further confirmed by the learned Additional Advocate General, Punjab, after obtaining instructions. The part of the impugned orders based on the alleged absconsion of the appellant, in the absence of any order of the relevant learned Court declaring the appellant proclaimed offender or actual proclamation(s), is based on incorrect facts and exposition of law. The Returning Officers as well as this Tribunal cannot go into the facts that entail detailed enquiry. The letter written by District Police Officer Rahim Yar Khan vide No. 3846-SB on 25.12.2023, on the basis of which the Returning Officers have reached to their conclusion to hold the appellant as fugitive of law in summary proceeding, in the absence of order of the learned Magistrate or the learned Court of competent jurisdiction, is not tenable. In this regard, the Supreme Court of Pakistan in case titled "Muhammad Afzal Khan Dhandla and 03 Others Versus Election Tribunal and Others" (PLD 2010 Supreme Court 959) observed as follows:- "6. As regards the absconsion of the respondents is concerned, the petitioners were not able to place before the Returning Officer or even before the High Court any order of the Court which declared them to be the proclaimed offenders. The learned High Court has considered this aspect of the matter in the impugned judgment exegetically and has, rightly, held that such order at the level of the investigating agencies in terms of section 512, Cr.P.C. was not legally passed, the reference in this behalf can be made to paragraph 11 thereof, wherein the correct exposition of law has been rendered in the context of this case and held "since no proceedings under section 87, 88 had been taken by the Court against the respondents, therefore, they could not have been declared as absconders and no case was pending trial against them prior to the submission of nomination papers. Therefore, there was no concealment in filing the nomination papers. They did not conceal this fact."
7. Mr. Zafar Iqbal Awan learned Additional Advocate General, Punjab, while relying upon the cases titled "Mian Shafique Ahmed and another versus Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 5 Others" (2017 MLD 1975), "Hussain Bux and another versus District & Sessions Judge / District Returning Officer and Appellate Authority, Sanghar and 3 Others"(2002 CLC 281) [Karachi] and "Muzafar Abbas Versus Maulana Muhammad Ahmad Ludhianvi and 31 Others" (PLD 2017 Lahore 394) has vigorously argued that the case of the appellant is at par with the candidates involved in the above said cases, wherein, the learned Courts have dismissed the petitions / appeals against rejection of nomination paper. I have gone through the said judgments. The nomination papers and / or the petitions were rejected in the particular circumstances, when the candidates deliberately failed to surrender followed by orders under section 87 and 88 of the Code as well as proceedings on the basis of reports / challans submitted before the learned Courts of competent jurisdiction. The facts and circumstances of the present case are clearly distinguishable from the cases relied by the learned Additional Advocate General. In the present case, no proceedings under section 87 and 88 of the Code have been taken against the appellant. As a matter of fact, the appellant has surrendered before the learned Court of competent jurisdiction and obtained his ad-interim pre-arrest bail vide order dated 02.12.2023.
8. The next reason for rejection of the nomination papers is default of payment of agriculture tax of Rs. 964,500/. The Returning Officers have reached to their conclusion on the basis of a letter / order of the Assistant Collector, Sadiqabad that was issued during the period of scrutiny for which no notice issued to the appellant, demanding this tax, is on record. Somehow, the Assistant Collector, Tehsil Sadiqabad, District Rahim Yar Khan has also issued a certificate that no amount of water rate and agriculture income tax land base is outstanding towards the appellant. The demand of Rs.
964,500/- as agriculture income tax, is apparently not based on proper assessment, which even otherwise can be challenged in appeal under the Punjab Land Revenue Act, 1967, therefore, the same cannot be termed as a default for the purpose of rejection of nomination papers. Reference can be made to the cases titled "Abdul Sattar Bachani Versus Returning Officer and 04 Others"
(2019 MLD 541) and "Syed Shafqat Hussain Shah Versus Returning Officer and another" (2019 YLR 643).
9. For what has been discussed above, I am of the considered opinion that rejection of nomination papers of the appellant from the constituencies mentioned above through the impugned orders is based on erroneous assumption of facts and incorrect exposition of law. Consequently, the titled appeal along-with election appeals bearing E.A No. 12 of 2024 and E.A No. 10 of 2024 are allowed.
The impugned orders are set-aside and the nomination papers of the appellant in NA-174(VI), Rahim Yar Khan, PP-265(XI) and PP-266(XII), Rahim Yar Khan stand accepted. Copies of this judgment be sent to the office of the concerned Returning Officers, to do the needful.