This is an application filed on 22-6-1994 by Mr.Riaz Ahmed Sipra, Secretary/Member, Federal Anti- Corruption Committee, Islamabad for supply of copy of statement of assets and liabilities under subsection (3A) of section 42 of the Representation of the People Act, 1976 submitted by Mian Nawaz Sharif, M.N.A., Notice of this application was issued to the respondent for hearing on 26-6- 1994. However, the hearing was adjourned to 27~-1994 on the request of the counsel for the respondent.
2. On 27-6-1994 Mr. Bashir Zafar, Advocate for the applicant alongwith the applicant was present.
Mr. Muhammad Akram Sheikh, Advocate alongwith Mr. Bilal, Advocate was present on behalf of the respondent. Mr. Muhammad Akram Sheikh, Advocate completed his arguments and Mr. Bashir Zafar, after he was heard for some time, requested for adjournment Accordingly, the hearing was adjourned to 5-7-1994 by the following order:-- "I have heard Mr. Muhammad Akram Sheikh for the respondent and Mr. Bashir Zafar for the Applicant. Mr. Bashir Zafar needs some more time to make his submission on the locus standi of the applicant with reference to the Constitutional provisions. Mr. Muhammad Akram Sheikh does not oppose his request, I, therefore, by consent adjourn the hearing to 5th July, 1994 at 11-00 a.m."
3.On 5-7-1994 both the counsel completed their arguments on the said 'application. Mr. Bashir War, at the conclusion of his arguments however, made another application stating that through inadvertence the applicant failed to mention the purpose for which the copy was required. According to application the copy is required for the purpose of moving the Speaker for making a reference under Article 63(2) of the Constitution as the applicant has reasons to believe tharthe statement filed by the respondent was false and as such could constitute corrupt practice under section 78 of the Representation of the People Act, 1976 and therefore, respondent is disqualified from being a Member of the National Assembly.
4. I heard the argument of the learned counsel for the parties on this application also and reserved the orders on the main application as well as on this application.
5. First I shall dispose of the application which stated the reasons for which copy is required. The only objection of Mr. Muhammad Akram Sheikh to this application was that it was m4a fide and belated as first arguments were advanced on 27-6-1994 and this point was raisedby him. There is no doubt that the application is made after the conclusion of the arguments and is belated but since the counsel for the applicant has disclosed the reasons for which copy is required, I am not precluded from' considering it and 1, therefore, allow the application.
6.Now I proceed to consider the main application. It reads aS follows: "It is requested that a copy of the statement assets and liabilities of Mian Nawaz Sharif, MNA, Lahore, and his spouse and dependents made to the Commission under subsection (3A) of section 42 of the Representation of the People Act, 1976, may kindly be supplied to the Federal Anti- Corruption Committee. It is urgently required."
7. Mr. Muhammad Akram Sheikh, Advocate raised several objections to the application. His first objection was that the application is without any purpose or grounds as these are not stated therein. His second objection was that the applicant has no locus standi to file the application as it is filed by Mr. Riaz Ahmed Sipra, Secretary/Member, Federal Anti-Corruption Committee requesting that a copy of statement of assets and liabilities of Mian Nawaz Sharif, MNA, Lahore, his spouse and dependents may be supplied to the Federal Anti-Corruption Committee. Mr. Muhammad Akram Sheikh submitted that Federal Anti-Corruption Committee is created by an executive Order of the Prime Minister dated 11th January, 1987 for the purpose of eradication of corruption in the Federal Ministries/Divisions/Departments and Agencies working under their control. Therefore, the purpose which the applicant's counsel in his belated application has stated is not covered for which the Federal Anti-Corruption Committee is constituted. Therefore, he submitted that the applicant or the Federal Anti-Corruption Committee does not or cannot bona fide need the copy.
8. Here I may reproduce the Gazette notification dated 11-1-1987, a photo copy whereof was produced by Mr. Muhammad Akram Sheikh, which was not questioned by the counsel for the applicant nor did he produce before me any other notification, "containing the Order of Prime Minister setting up the Anti-Corruption. Committee at Federal level. It reads as follows: "No.l/8/86-FIA (1).--The Prime Minister has been pleased to set up an Anti-Corruption Committee at the Federal level for eradication of corruption in the Federal Ministries/Divisions/Departments and Agencies working under their control with the framework as provided below:-- Nomenclature. The Committee may be called the Federal Anti--Corruption Committee (FACC).
Il.Composition.--(i) There will be one committee which will comprise of such number of MNAs and Senators as may be determined by the Prime Minister.
(ii)The MNAs/Senators to be nominated on the FACC will be selected by the Prime Minister.
(iii)The Chairman of the FACC will be nominated by the Prime Minister.
(iv)The Additional Secretary Interior Division may act as Member/Secretary.
III.Functions /terms of Reference.--(i) To examine complaint received from members of public relating to corruption and malpractices by officials of the Federal Ministries, Divisions the Departments/Autonomous and semi-autonomous organizations working under their administrative control.
(ii)To process complaints and initiate investigation through the Federal Investigation Agency (FIA) envisaged in (i) above, or if necessary may requisition the services of investigating officers for particular enquiries.
(iii)To review the progress of Anti-Corruption cases pending investigation with the FIA as and when required.
(iv)To require further investigation of cases by FIA wherever necessary.
(v)To call for and examine the records of Anti-Corruption cases from the FIA at any stage of investigation and make such recommendation as considered appropriate in respect of such cases.
(vi)To call for records from Federal Ministries and Divisions and Departments/Autonomous Organizations working under their administrative control pertaining to corruption and malpractices by their officials.
(vii) To identify rules and procedures that give rise to delays -and corruption in the disposal of Government business and to make recommendations for simplification of such rules and procedures.
(viii) To report to the Prime Minister on specific instances of corruption examined or investigated by FIA.
(ix)To report the names of Government officials who seem to living beyond their known means of income and/or have a rsistent reputation of being corrupt.
IV.Procedures.--(i) The main source of information to the FAC would be the members of the public or officials.
(ii)Anonymous or pseudonymous complaints shall not be entertained.
(iii)The FACC may of its own motion initiate cases for investigation by FIA. .
(iv)The FACC may advise the Prime Minister to refer any complaint or case to the Prime Minister's Inspection Commission (PMIC) for enquiry if the nature of the complaint or case so warrants.
(v)The Chairman FACC may for any specific purpose or for general assistance to the FACC, requisition the services of any person and such person may be co-opted as member.
(vi)The FACC may evolve its own procedures for the conduct of its business.
(vii) The FACC will be provided with necessary secretariat assistance for which Cell will be created in the Cabinet Division. The Cell will be headed by an officer not below the rank of a Joint Secretary who will be provided with necessary complementary staff.
(viii) The Cabinet Division shall be responsible for all administrative and financial matters relating to the Cell.
(ix)In order to ensure prompt and effective follow up action and proper coordination, suitable institutional arrangements shall be made in the Federal Ministries for handling information/reports received from the FACC Cell.
(x)The FACC may seek the assistance of any person or authority for the performance of its functions.
(xi)The person or authority whose assistance has been sought by the FACC in performance of its functions will render such assistance to the extent which is within their power or capacity.
(xii) Failure of a civil servant to render assistance to the FACC in discharge of its functions will render him liable to disciplinary action under the relevant rules if it is so decided.
(xiii) The, FACC will have recommendatory powers and direct access to the Prime Minister.
(xiv) ere the FACC is of the opinion that a prima facie case of cor uption exists against an official,* it may recommend to the Prime M' ister to place- such official under suspension pending final adj udication of the case.
(xv)Thl: FACC may meet as and when required in any place in Pakistan.
V.Re oval of the Chairman and Members.--The Chairman, and M~:mbers of the Committee would be liable to be removed by the Pr me Minister in his discretion:"
9. Now taking up the objections of Mr. Muhammad Akram Sheikh, Advocate, his first objection as stated before was that the main application does not state the purpose or grounds for which statement of assets and liabilities is required. It is true but it no more holds good as I have already granted the second application wherein the purpose stated by the Applicant's counsel is as follows:-- "That aforesaid copies are required for purposes of moving speaker for making reference under Article 63(2) of the Constitution. The applicant has reasons to believe that statement filed was false and as such it constituted corrupt practice under section 78 of the Representation of the People Act and therefore, disqualified from being a Member of National Assembly and Parliament."
10. I have already reproduced in extenso the functions/terms of Reference for which the Federal Anti-Corruption Committee was constituted. From the above-quoted Order it would appear that Federal Anti-Corruption Committee is not authorised by the Order of the Prime Minister to deal with or investigate the cases of MNAs/Senators and MPAs and to refer the same to the Speakers of the Assemblies or Chairman of the Senate under Article 63 read with Article 113 of the Constitution.
11. Mr. Muhammad Akram Sheikh further submitted that under Article 4 of the Constitution every citizen is entitled to enjoy protection of law and to be treated in accordance with law. Article 4 of the Constitution reads as follows:- "4.Right of individuals to be dealt with in accordance with law, etc.--.(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, where,,"r he mly be, and of every other person for the time being within Pakistan.
(2)In particular-- (a)no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except In accordance with law; (b)no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c)no person shall be compelled to do that which the law does not require him to do."
12. He also relied on the provisions of Article 25(1) of the Constitution that all citizens are equal before law and are entitled to equal protection of law. He, therefore, submitted that since the Federal Anti-Corruption Committee is not authorised to obtain a copy or to make a reference to the Speaker therefore, his client enjoys the protection of law and to be treated in accordance with law. Mr. Muhammad Akram Sheikh, however, did not question that a statement of assets and liabilities filed by a Member of the National Assembly or Provincial Assembly as provided under section 42(3A) of the Representation of the People Act, 1976 is a public document as held by me in the matter of application filed by Mr. Sultan Ali Lakhani for grant of copy of statement of assets and liabilities in respect of Mrs. Nasreen Jalil, Senator. His main attack, however, was on the right of the applicant to obtain the copy and the purpose for which he requires a copy as stated before.
13. On the other hand Mr. Bashir Zafar, learned counsel for the applicant submitted that under the law any person can apply and get a copy of the statement of assets and liabilities. In support of his submission he relied on para. 7 of the judgment in the matter of application filed by Mr. Sultan Ali Lakhani for grant of copies of statement of assets and liabilities in respect of Mrs. Nasreen Jalil, Senator. He also relied on the case of Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan and others (PLD 1969 Lahore 602).
14. Before proceeding further it would be convenient if I quote para. 7 of the judgment in the matter of application filed by Mr. Sultan Ali Lakhani, which reads as follows:-- "7.It is true that no express power is given in'the Act, but as submitted by Mr. Pirzada, Advocate, the filing of statement of assets and liabilities would be unnecessary exercise unless the statements are made known to the public or at least to the rival candidate, who are entitled to file the election petition on the grounds of corrupt practices. I agree with him. Moreso, when the Constitution casts duty on the Chief Election Commissioner to guard against the corrupt practices, unless a statement of assets and liabilities is made known to at least the candidates, who took part in the election and lost against the successful candidates, corrupt practices cannot be guarded against.
If the statement of assets and liabilities is correct, the successful candidate has nothing to fear. If he is straightforward and honest, he has no fear othervfise the intention of the law appears that people with clean, honest and proper conduct should represent the electorate. Therefore, if a copy of the assets and liabilities for which the law has been made and amended is granted, it will advance the object for which law is made and will suppress the mischief, which is intended to be suppressed by the amendment of law."
15. Learned counsel laid much emphasis on the sentence underlined by me above. He submitted that I have agreed with Mr. Pirzada's submission that copy of statement of assets and liabilities can be granted to any person but I am of the view that I agreed with his alternate submission i.e. "at least to the rival candidates, who are entitled to rile the election petitions on the ground of corrupt practices" because in the next sentence I have said "Moreso, when the Constitution casts duty on the Chief Election Commissioner to guard against the corrupt practices, unless a statement of assets and liabilities is made known at least to the candidates who took part in the election and lost against the successful candidate, corrupt practices cannot be guarded against." Therefore, what I held in the case has to be understood in the light of the whole judgment.
16. In Sultan Lakhani's case he required the statement of assets and liabilities of Mrs. Nasreen JaW, who was elected as Senator and who opposed the request of Mr. Lakhani for grant of copies. In this case I further observed, "Therefore, if a copy of the assets and liabilities for (filing of ) which the law has been made and amended is granted, it'will advance the object for which law is made and will suppress the mischief, which is intended to be suppressed by the amendment of law"., Tterefore, it was case of a Senator whose rival candidate was granted the copy and not to any person.
17. The learned counsel for the applicant further submitted that under Article 63(2) of the Constitution if any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or as the case may be, the Chairman shall refer the question to the Chief Election Commissioner. According to him any person can move the Speaker and for this purpose he relied on the case of Ghulam Mustafa Khar v. Chief Election Commissioner of Pakistan and others (supra) but this case has no relevancy to the facts of the present case or the law with which I am dealing. In the Representation of the People Act, 1976 there is no provision which authorises the Chief Election Commissioner to grant a copy to any rival candidate what to say of any person. But in Lakhani's case I granted copy of the statement of assets and liabilities relying on the duty cast on the Chief Election Commissioner under Article 218 read with Awticle 219 of the Constitution, which is the supreme law of the land, to guard against corrupt practice. In this regard I may reproduce paras. 3, 4 and part of paragraph 5 of the judgment in Lakhani's case:-- "3.It was submitted by Mr. Pirzada that in the definition of corrupt practices as contained in section 58 of the Act, a clause, namely, (aa) and a sub-clause (iii) of clause (c) have been added in section 58, which reads as follows:-- "58. xxx xxx xxx
(aa) file a declaration under subsection (2) of section 11 which is knowingly false.
(iii)submits a false statement of assets and liabilities under section 25."
4.He further submitted that an election petition could be filed on the grounds of any corrupt or illegal practice or illegal practice/acts alleged to have been comm;it~d as provided under section 49 of the Act. Section 49 of the Act is reproduced below for the sake of ready reference:-- "49.Ground for declaring election of returned candidate void.--(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- (a)the nomination of the returned candidate was invalid; or (b)the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as member; or (c)the election of the returned candidate has been procured or induced by any corrupt or illegal practice, or (d)a corrupt or illegal practice has been committed by the returned candidate or by any other person with the consent or connivance of the candidate."
Mr. Pirzada also relied on section 36(b) of the Act, which relates to the contents of the election petition. Section 36 of the Act reads as follows:-- "36.Contents of petition.--(1) Every election petition shall contain-- (a)a precise statement of the material facts on which the petitioner relies; (b)full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed including as full a statement ac possible of the names of the r~arties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act: and (Underlining is mine).
(c)the relief claimed by the petitioner."
He therefore, argued that unless a certified copy of the `statement of assets and liabilities' was provided who could know whether assets and liabilities were correctly declared by the successful candidate and could take a ground on the basis of section 49 and could draft the petition. The learned counsel submitted that the said ground is required to be taken specifically under section 36, which has been quoted above."
"5.Therefore, by necessary implication the powers to grant the certified copy is available He also pointed out that under Article 218 of the Constitution read with Article 219, it is the duty of the Chief Election Commissioner to guard against the corrupt practice."
18. But I have not said anywhere in the said case that the Chief Election ic Commissioner can grant copy of statement of assts and liabilities to any or every person. If the argument of Mr. Bashir War is accepted then more than 52 million voters, each one of them could apply and get a copy. If such was the intention of the Parliament, it would have made a provision for the same in the Act while inserting the section 42(3A) in the Representation of the People Act, 1976. Therefore, in my opinion copies can be granted if applied by members of the Parliament or MPAs to advance the purpose provided in the Constitution D or for the purposes provided in relevant provisions of the Representation of the People Act, 1976 or Senate (Election)
Act, 1975. However, it cannot be granted to a person or any body which has no locus standi. Mr. Bashir War, however, submitted that under Article 87 of, the Qanun-e-Shahadat, copy can be granted. Article 87 reads as follows:-- I "87.Certified conies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, (emphasis supplied) shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
Explanation.-- Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article."
19. It will be seen from the above-quoted provision that a copy of a public document can be granted to a person if he is entitled to inspect a public document. Section 44 of the Representation of the People Act, 1976 provides for inspection of documents but the statement of assets and liabilities is not included therein. In Lakhani's case I have not referred to or relied on this section for this reason but relied on implied powers given under Article 218 of the Constitution, Mr. Bashir Zafar also relied on sections 12 and 78 of the Representation of the People Act, 1976. Sections 12 relates to nomination for elections. It provides inter alia for a declaration about his party affiliation, a declaration as amount of loan as may be prescribed obtained from banks etc. and r: mained unpaid for more than one year, a declaration that no loan or amount which may be prescribed, obtained by him, his spouse or dependents was written off or such amount, which was written off has been paid. But section 12 ibid does not contain any authority for grant of copy. Section 78 of the Representation of the People Act, 1976 defines corrupt practice which inter alia says that a person is guilty of corrupt practice if he makes or publishes a false statement of assets and liabilities or a declaration specified under sub--section (2) of section 12. Section 78-would be relevant for raising a ground of corrupt practice in an election petition by a candidate for that election as provided in section 52 of the Representation of the People Act, 1976 but this is not the case here.
20. Mr. Bashir War also referred to sections 50 and 51 of the Representation of the People Act, 1976 but without stating their relevancy. In my opinion these provisions are irrelevant for section 50 relates to return of election expenses and section 51 relates to inspection of return of election expenses and grant of copy thereof but present is not the case of inspection or grant of copy of return of election expenses. Further such an application has to be made under the law to the Returning Officer and not the Chief Election Commissioner.
21. As the statement of assets and liabilities is a valuable document, it cannot be granted to each or every person. It can be granted to a member of E the Parliament or Provincial Assembly as held by me in Sultan Lakhani's case, if he requires it bona fide to seek his remedy under the law or the Constitution.
22. Since the Prime Minister has not authorized the Federal Anti--Corruption Committee by the Order dated 11-1-1987 quoted hereinbefore in extenso, to deal with any matter pertaining to a member of the Parliament or the Provincial Assembly or to refer the same to the Speaker of 'concerned Assembly or as the case may be to the Chairman of the Senate and since the Committee cannot file election petition for the reasons stated before, F therefore, in my opinion, they cannot bona fide require statement of assets and liabilities of a member of the Parliament or Provincial Assembly. I, therefore, decline to grant a copy of the statement of assets and liabilities of Mian Nawaz Sharif and accordingly dismiss the application.
23. Before parting with the case I may state that the Care-Taker Government in 1993 while amending the Representation of the People Act, 1976 in their wisdom, did not deem it proper to make a provision in the Act, for grant of copies of the statements of assets and liabilities filed by the members of the Parliament or Provincial Assembly pursuant to the provision of section 42(3A) or to make public the same but if the present Government deem it proper, it may amend the Representation of the People Act, 1976 and Senate (Election) Act, 1975 by incorporating necessary provision for the aforesaid purpose.
24. The other two similar applications filed by Mr. Riaz Ahmed Sipra, Secretary/Member, Federal Anti-Corruption Committee for grant of copies of statement of assets and liabilities in respect of Mian Abbas Sharif, MNA and Mian Shahbaz Sharif, MPA are also dismissed for the same reasons as stated above.