' IRSHAD HASAN KHAN, J.---Appeal No,1/Elect-T NA/90 and 4/Elect-T NA/90 filed against the order dated 17-9-1990 of the Returning Officer N.A. 95, Lahore IV, whereby nomination papers of Mian Muhammad Nawaz Sharif were accepted and the objections filed by the appellants were rejected, were dismissed by a separate short order for reasons to be recorded later, which follow hereinafter.
2. The case of the appellants in nutshell is that Mian Nawaz Sharif, the former Chief Minister of Punjab be disqualified and his name be expunged from the list of contestants of Constituency NA- 95 from Lahore on the basis of allegations levelled against him relating to corruption, lack of integrity and isconduct.
3. The summary of allegations levelled by Pir Ally Immrawn and another in Appeal No,1/Elect-T NA of 1990 read thus: "The counts of charges (of which a copy has been despatched to NS) amply show that NS is not a fit and proper person and is not qualified to be elected to NA; for he is not of a good moral character; he is notorious for flouting orders of Islam; personally is ignorant of the teachings of Islam being murid of Allama Tahir Qadree and a premee of Zia, the latter was a MUSHRIK, See Goraya's Islam Mein SWABDEED (Ferozesons 1990) who called himself Hakam-Alla and who committed Treason, Art. 6); NS is not Amin; is a hypocrite; is not a man of his words; collected a coterie of rapidly alcoholic ministers around him and he has worked against the Constitution of Pakistan (See Art. 6) by promoting dictatorship. He is unfit to rule over Pakistanis. He has indulged in "Amanaat Mein Khayanat".
4. Mian Muhammad Nawaz Sharif respondent filed reply to the objections, wherein he denied all the 54 charges levelled by Pir Allay Immrawn and another appellant against him.
5. A brief statement of the allegations is as follows:--- Allegations Nos.1 to 31 related to PPP's charges of corruption, appearing in the news item in the Daily 'Frontier Post', Lahore dated 12-9-1990 and are based on telegrams allegedly sent to the President of Pakistan, the Chief Election Commissioner and Special Tribunals. These objections are hearsay and not supported by any documentary evidence on record.
6. Allegations Nos.32, 32-B (no allegation has been numbered as `33'), 34,37, 38 and 45 relate to allotment of various plots under the LDA Schemes to the favourites of Mian Muhammad Nawaz Sharif during his tenure as Chief Minister. Allegation No,36 relates to appointment of his P.A. As Managing Director of Lahore Development Authority. Allegation No,36 relates to spoiling environment of New Kamran Bara Dari in the Ravi by plastering his name all over as `Fakhar-e- Pakistan' etc. Allegation No,40 relates to damage to the Punjab Police by having personal contacts with police officials and allotting lands to them and employing a former Governor's son. Allegation No,41 relates to undue patronage of certain persons and thereafter to malign them when they refused to toe his line. Allegation No,42 relates to an attempt to grab huge money from `Ghair Kanooni Kabza' which the respondent is allegedly legalising. Allegation No,43 relates to spending of fifty lacs on electioneering. Allegation No,44 is in respect of assignment of jobs for money and donations. Allegations Nos.45 and 46 relate to registration of false criminal cases. Allegation No,47 relates to using the special police into personal campaigning machinery. Allegation No,48 is to the effect that the respondent's conduct is un-Islamic, in that, he has spent fabulous amount to promote his personal business. Allegation No,49 relates to distribution of discretionary funds being un-Islamic. The allegation No,50 relates to obtaining soft loans and other funds of over fifteen hundred crores through Ittefaq Group. Allegation No,51 relates to making Tahir Qadri his `Murshad' and later declared him `Tarkhan', which shows his bad judgment. Item No,52 relates to the appointment of an incompetent Additional Advocate-General. Allegation No,53 relates to his reputation of being a corrupt person. Allegation No,54 is to the effect that the respondent got cuts from 'beautification' of Murree.
7. The appellants/objectors also took the plea before the Returning Officer that the objections having been accompanied by affidavit stood proved and no further evidence was required in connection thereto, particularly, when respondent's reply was not signed by the respondent personally, but by his agent and was not verified on oath.
8. In appeal No,4/Eect-T NA/90 Dr. Qari Ashfaqullah filed an objection petition seeking disqualification of Mian Nawaz Sharif respondent herein, on the ground that he allegedly indulged in certain irregularities and illegalities in the allotment of Plots Nos.171, 172, 173 and 174, Johar Town, Lahore, and the same was sought to be inquired into.
9. This was followed by an amended objection petition, wherein it was stated that a day prior to dissolution of Assemblies, Mian Nawaz Sharif, in his capacity as Chief Minister, Punjab, distributed 2,000 plots to various people including a son-in-law of his maternal uncle, who later sold it at higher prices through an Estate Agency, Model Town, Lahore.
10. The respondent denied all the allegations.
11. The learned Returning Officer, after hearing the parties/their agents and perusing the record, held that the allegations were not covered under the provisions of the Representation of the People Act (No, LXXXV of 1976) (hereinafter called the Act) or under Article 62 of the Constitution, but fell within the domain of the Special Courts constituted under the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977. It was further held that respondent was not found guilty of corruption or illegal practice under any law. As to the objection that the respondent was not an 'Amin' being not a man of good character and ignorant of the teachings of Islam, it was held that these objections were not substantiated on record.
12. As regards non-verification of the reply on oath, it was held that the provisions of the C.P.C. Were not applicable and that the reply submitted by Mr. M. Azim Butt, Advocate, as an agent of the respondent did not suffer from any legal defect. In view of these findings, both the objection petitions were dismissed and the nomination papers of Mian Muhammad Nawaz Sharif respondent herein, were found to be in order and the same were accepted by the learned Returning Officer vide impugned order dated 17-9-1990.
13. At the outset Mr. Jafree submitted that certain interrogatories, without leave of the Tribunal, were sent by post to the respondent. Neither any reply was given by him, nor he personally appeared before the Tribunal to answer the charges and, therefore, an adverse inference can be drawn against him. We have perused a copy of the interrogatories allegedly sent by the counsel for the appellants to the respondent. It was put for the mere purpose of obtaining information as to the evidence by which the appellants intended to prove the facts which they alleged. But a party cannot be permitted in law to find out the facts constituting evidence of the opponent's case even in a case where the provisions of the C.P.C. Are applicable. Furthermore, under subsection (5) of section 14 of the Act, the appeal is to be decided by the Tribunal summarily and there is no A provision of interrogatories. In any event, the appellants have no locus standi to deliver the interrogatories to the respondent without leave of the Tribunal which was never obtained, and therefore, no inference can be drawn from failure to answer the alleged unauthorised interrogatories.
14. Mr. Jafree next contended that the allegations levelled by the appellants were supported by an affidavit, whereas reply to the objections was not filed by the appellants personally, but through his Advocate/agent and was not accompanied by an affidavit as required under the rules and, therefore, the allegations were deemed to have been proved. The contention is devoid of any force.
Failure to file an affidavit before the Returning Officer was a mere irregularity which stood cured, in that, the respondent has sworn affidavit in support of his reply to the objections and the same has been placed on the record of the Tribunal. It is clearly stated in the affidavit that reply to the objections was filed before the Returning Officer on the dictation of the respondent/deponent.
' It may also be pointed out that the objections by the elector are governed by rule 4-A and reply to the objections by the candidate is dealt with in rule 4-B. The relevant provisions of these rules may be reproduced with advantage: "4-A. Objection by elector.--(1) An objection under subsection (1) of section 14 shall be accompanied by an affidavit duly sworn by the elector and other documents, if any, in support of the objection taken.
(2) ........................
(3) ........................
(4) ........................
4-B. Reply to the objection by the candidate.---(1) The candidate against whom objection has been filed may file as many copies of his reply to objection as is the number of objectors, accompanied by a duly sworn affidavit and the supporting documents, in any, on the first day fixed for scrutiny before the Returning Officer.
(2) A copy of the reply shall be supplied to the objector, if present, on the day of scrutiny and the Returning Officer shall proceed to dispose of the objections summarily."
It is apparent from the above-quoted provision that an objections is to be compulsorily accompanied by an affidavit while the candidate may file his duly sworn affidavit and supporting documents alongwith his reply to the objections. The rationale behind these provisions is that the onus is on the objector to prove the allegations.
' Be that as it may, an affidavit containing any statement of facts is divided into two paragraphs.
When the declarant in any affidavit speaks of any fact within his own knowledge, he must do so directly and positively, using the words 'I affirm' or 'I make oath and say'. When the particular fact is not within the declarant's own knowledge, but is stated from information obtained from others, the declarant must use the expression 'I am informed' or he may state the source from which he received such information. To the same effect is the principle envisaged under Order XXIX, rule 3, C.P.C, which lays down that affidavit shall be confined to such facts, as the deponent is able of his own knowledge to prove except interlocutory applications. In the instant case, the objections filed by the appellants Pir Ally Immrawn and another is not accompanied by a duly sworn affidavit in a proper form. On the contrary, the memorandum of objections bears the endorsement of the Oath Commissioner to the following effect:--- "Declared on Oath on the 12-9-1990 at Lahore by Mr Pir Ali Imran Identified by Mr. Self.
(Sd.) Nisar Khalil Nisar, Oath Commissioner, Lahore High Court, Lahore".
Thus visualized, the affidavit of Pir Ally Immrawn is also technically defective and does not stricto senso conform to the requirements of rule 4A, inasmuch as, it does not disclose the facts which are within the personal knowledge of the deponent and which contained the statement of belief and which statements are based on information received. It also does not disclose the source of information received. It may also be pointed out that the defect in the affidavit of Pir Ally Immrawn was clearly pointed out to Mr. Jafree during the course of hearing of the appeals and was provided an opportunity to file an additional affidavit, if so desired. The learned counsel, however, declined to avail the opportunity and respectfully submitted that he would confine his submissions on the basis of the affidavit already filed. In these circumstances, the appellants cannot be permitted to approbate and reprobate in contending that reply to the objections filed by the respondent before the Returning Officer was not accompanied by a duly sworn affidavit of the respondent before respondent No,2.
15. Mr. Jafree further submitted that the respondent had violated the oath taken by him under the Constitution as Chief Minister Punjab by involving himself in corruption. He argued that the respondent being an ex-Chief Minister of Punjab should not have hesitated to answer the charges levelled against him on Holy Quran in conformity with the injunctions of Islam. He cited the example of Hazrat Umar to the effect that once he was stopped in the mosque by an ordinary citizen, who inquired from him to explain how he could wear such a long shirt while the cloth that had been allocated by Bait-ul-Mal to the common man was not sufficient to tailor such a long shirt. Hazrat Umar, the learned counsel respectfully submitted, answered the person that he had borrowed the cloth that had been allocated to his son. Mr. Jafree had overlooked the fact that in the instant case, Mian Muhammad Nawaz Sharif respondent herein, also gave reply to the allegation that in his official capacity as Chief Minister of the Province of Punjab, he discharged his duties fairly, justly and strictly in accordance with law. He also stated that the allegations contained in the objection petition are hearsay and were allegations without any basis and facts, hatched only to defame him. We are, therefore, not inclined to hold that on the basis of allegations per se the respondent is a person, who violates Islamic Injunctions. Furthermore, the reply to the objections submitted by the respondent, substantially conforms to the provisions of rule 4B. This provision has not been declared to be repugnant to the injunctions of Islam either by the Federal Shariat Court or any other Court of competent jurisdiction. Clearly Article 2-A of the Constitution, strongly relied upon by Mr. Jafree, has no bearing on this case. The Returning Officer was under a statutory duty to adhere to the procedure laid down in Rules 4-A and 4-B which envisage summary disposal of objections.
To this extent the impugned order suffers from no invalidity. It may also be mentioned that no law or authority has been cited to show that a candidate is bound to answer the allegations under oath of the Holy Qur'an.
16. Mr. Jafree next contended that the appointment of an election agent is un-Islamic and also contravenes provisions of Article 8 of the Constitution, which inter alia provide that laws inconsistent with or in derogation of Fundamental Rights are to the extent of such inconsistency void. Learned counsel has overlooked that under section 14(1) of the Act, candidates, their election agents, proposers or any other person authorised in this behalf are authorised to attend the scrutiny of nomination papers. This section has not been declared to be repugnant to the injunctions of Islam by any Court of competent jurisdiction. Thus argument advanced is frivolous.
17. Learned counsel for the appellants next contended that Mian Muhammad Nawaz Sharif, respondent is disqualified from being elected as a member of Majlis-e-Shoora (Parliament) or of the Assembly, in that, he does not fulfil the mandatory requirements laid down in clauses (d), (e),
(f) and (h) of Article 62 of the Constitution as well as the corresponding provisions of clauses (d), (e), (f) and (h) of section 99 of the Act which read thus:-- "A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament)/Assembly unless:-
(d) he is of good character and is not commonly known as one who violates Islamic Injunctions;
(e) he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
(f) he is sagacious, righteous and non-profligate and honest and ameen;
(h) he has not, after the establishment of Pakistan, worked against the integrity of the country or opposed the ideology of Pakistan: ' Provided that the disqualification specified in clauses (d) and (e) shall not apply to a person who is a non-Muslim, but such a person shall have good moral reputation."
18. In support of his contention, learned counsel for the appellants placed reliance on 31 charges of corruption levelled against the respondent, on the basis of newspaper report published in the 'Frontier Post' which were also adopted and incorporated by reference as part and parcel of their objection petition. Suffice it to say that these allegations are hearsay and, therefore, the same cannot be admitted in evidence for disqualifying the respondent from contesting the election, in view of well-established exclusionary rule of evidence. Wharton's Criminal Law 9th Edition mentions the following principle:- "The only safe course, therefore, is to find the verdict exclusively on evidence duly received and on inferences logically to be drawn from such evidence."
' Wigmore commenting on Theory of Hearsay Rule, quotes with approval the following remarks of Kent, C.J. In Coleman v. Southwick, 9 John, 50:- "A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities, he entrenches himself in the simple assertion that he was told so, and leave the burden entirely on his dead or absent author."
19. The Supreme Court in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain 1986 SCMR 1736, quotes with approval the aforesaid remarks and held; "the exclusionary rule of evidence may appear to be too formal and somewhat strict and inflexible, but it has its roots deep down in law."
Respectfully following the principle laid down by the Supreme Court in Muhammad Afzal's case (supra), there is no scope for reliance on the newspaper reports and, therefore, the respondent does not stand disqualified on that score.
20. We also find that there is no evidence on record to prove the remaining long list of allegations. It is well-settled that allegations, howsoever grave, are allegations and cannot take the place of proof or be admitted in evidence to reflect the correctness of the facts alleged therein unless they are proved in accordance with law.
21. In Muhammad Afzal's case (supra), it was held:--- "A police report under section 173, Cr.P.C. Is the only proof that it was made in the case but as regards the correctness of the contents thereof, it is of no value."
' When faced with this Mr. Jafree took the plea that no document was available with the appellants to prove the allegations and, therefore, the Returning Officer ought to have decided the objections after requisitioning the record from the concerned departments, particularly when a request was made to him in this regard. Dr. Qari Ashfaqullah, the appellant also argued that the details regarding irregularities in the allotment of plots were furnished to the learned Returning Officer with a request to summon the record from LDA and Director, Johar Town to prove the objections but the Returning Officer illegally refused to requisition the same, which has resulted in grave miscarriage of justice.
22. Mr. Khalid M. Ishaq, learned counsel for respondent submitted that the scope of enquiry under section 14 of the Act is a limited one. The summary enquiry envisaged in the aforesaid section merely contemplates that whatever evidence, the parties have brought on record, shall be examined by the Enquiry Officer to find out if the objections are established on that basis without further enquiry or corroboration. He argued that once the objection petition is taken into consideration, the Returning Officer is bound to decide the same one way or the other according to the material available on record and not by holding a fulfiedged enquiry.
23. The contentions raised by learned counsel for the parties turn on the scope of section 14 of the Act which provides as follows:-- "SCRUTINY: ' The candidates, their election agents, the proposer and seconders, one other person authorised in this behalf by each candidate and an elector who has filed an objection to the nomination of a candidate, may attend the scrutiny of nomination papers and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12: Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.
(2) The Returning Officer shall in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any other person referred to in subsection (1), conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that:-
(a) the candidate is not qualified to be elected as member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provision of section 12 or section 13 has not been complied with; or
(d) the signature of the proposer or the seconder is not genuine: Provided that:-
(1) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.
(4) the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall in the case of rejection, record brief reasons therefor;
(5) A candidate or an elector who has filed an objection to the nomination of a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner with the approval of the President and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.
(6) An appeal not disposed of within the period specified in subsection (5) shall be deemed to have been rejected.
(7) Announcement of the day and time appointed for hearing of an appeal under subsection (5) over the radio or television or by publication in the Press shall be deemed to be sufficient notice of the day and time so appointed.
24. A bare reading of the above-quoted provisions of law reveals that the objection to the nomination paper is to be disposed of in a summary enquiry within the limited period laid down in the schedule by the Election Commission and not by holding a fulfledged judicial trial. Even an appeal against the decision of the Returning Officer is to be summarily decided as envisaged by subsection (5) of section 14 of the Act. The Returning Officer is only required to examine the nomination papers and decide the objection in the presence of persons attending the scrutiny by holding a summary enquiry as he may think fit and not by way of an elaborate enquiry provided in Chapter VII of the Act relating to election disputes. This also finds support from the fair reading of rules 4-A and 4-B. The phrase "conduct such summary enquiry as he may think fit" used in section 14(3) of the Act, means that the Returning Officer is to decide the objections raised by any person to any nomination after examining the material available on record. The rationale of the "summary enquiry" is expeditious disposal of the objections and scrutiny of nominations within a limited period. Clearly, this purpose cannot be achieved by holding a fulfledged enquiry or a roving enquiry into the files of the Government or other departments to fish out a case against a candidate. The burden of proof is on the person alleging. Here the following dicta of the Supreme Court, in Muhammad Afzal's case (supra) may be quoted with advantage:- "The enquiry at the stage of scrutiny of nomination paper and the hearing of the appeal against the acceptance of the nomination paper is summary and the decision is to be within such time as may be notified by the Commission. With these drawbacks in handling the appeal and in disposing it of when a more elaborate and complete procedure for the trial of the same issue is provided before the Election Tribunal after the returned candidate has been notified, such a summary inquiry could not bar the more elaborate inquiry provided for in Chapter VII of the Representation of the People Act."
25. In the instant case, the allegations against the respondent relate to performance of his functions as Chief Minister of the Punjab but there is, to start with, a presumption of regularity with regard to all official acts and until that presumption is rebutted through reliable evidence, the disqualifications envisaged by Articles 62 and 63 of the Constitution or section 99 of the Act would not be attracted merely upon allegations in the absence of any proof on record.
26. Having considered the arguments and after perusing the material available on record, we are inclined to hold that Mian Muhammad Nawaz Sharif respondent herein, has not incurred any 'of disqualifications contemplated by j Articles 62 and 63 of the Constitution or Section 99 of the Act.
In view of the above, we find no force in the appeals of Pir Ally Immrawn and another and Dr. Qari Ashfaqullah, which are hereby dismissed.