' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which has been directed against the order, dated 25-7-2000 passed by the District and Sessions Judge, Attock, exercising the powers of Election Appellate Authority, Attock, was admitted to regular hearing on 27-7-2001 and notices in the case containing the prayer for suspension of impugned order were issued for 28-7-2001 and on the request of learned counsel for the respondent, the case was adjourned for today. The learned counsel for the parties state that since election shall be held on 2-8-2001, therefore, the main petition may be decided today. Order accordingly.
2. Muhammad Shavez Khan petitioner filed nomination papers on 16-7-2001 to contest the election for the seat of Tehsil Nazim, Hassan Abdaal and the scrutiny of the nomination papers was held on 21-7-2001 and the Returning Officer, Tehsil Council Hassan Abdaal vide order of even date accepted the nomination papers of the petitioner. The respondent namely Shafqat Ali, a rival candidate of the petitioner, filed written objections against the petitioner before the Returning Officer that he was guilty of concealment of assets in the declaration of assets and consequently his nomination papers were bound to be rejected. The Returning Officer with detail discussion rejected the objections. The respondent being aggrieved of the order of Returning Officer preferred an appeal before the District and Sessions Judge exercising the powers of Election Appellate Authority and the Appellate Authority while upholding the objections relating' to the concealment of assets in the Declaration of Assets held that the petitioner was disqualified to contest the election and consequently vide order, dated 25-7-2001 allowed the appeal. The petitioner has questioned the validity of the order in appeal through the present petition on various grounds..
3. The detail of the objections raised by the respondent against the candidature of the petitioner before the Returning Officer was to the following effect:--
(1) That the petitioner has not disclosed that he was holding two insurance policies.
(2) that the petitioner has not mentioned in the declaration that he was owner of a plot measuring 2 Kanals bearing Khasra No,4232 of the value of Rupees eight lacs situated within the limits of Municipal Committee, Hassan Abdaal.
(3) That the petitioner has also suppressed the ownership of a Shop bearingNo,III-350 of the value of Rupees three lacs situated in Shah Julian, Hassan Abdaal.
(4) The petitioner was affiliated with Pakistan Muslim League.
' In support of the objections, the respondent placed on record the following documents:--
(i) Copy of the certificate of State Life Insurance Company issued in favour of the petitioner;
(ii) Copy of Register Haqdaran Zameen pertaining to the years 1997-98 showing the ownership of the petitioner of land measuring 2 Kanals;
(iii) A copy of Khasra Girdawari pertaining to Kharif, 2000, and Rabi, 2001, showing the possession of the petitioner over the land in the said Khasra No,;
(iv) A receipt of property tax issued by the Excise and Taxation Department in respect of the shop being owned by the petitioner situated in the area of Municipal Committee, Hassan Abdaal.
4. Precisely, the objection was that the assets shown by the petitioner in the declaration of assets were inconsistent to the assets actually being possessed by him and consequently the petitioner being guilty of the concealment of assets was disqualified in terms of section 14(i) of the Punjab Local Government Elections Ordinance, 2000. The Returning Officer dealt with the objections of the respondent in the following manner:-- "With reference to plot measuring two Kanals and. Shop No,B-III/350, it is alleged that respondent has already sold the same for Rs,8,00,000 in favour of Shaukat Ali vendee through sale note, dated 5-8-2000 Mark 'G'. In this respect, the affidavit of Muhammad Shawaiz Khan Mark 'H' and another affidavit of Shaukat Ali vendee Mark 'I' is also placed on case file by respondent with his reply. It is argued that recent respondent has contested an election for the seat of Nazim from Union Council No,27 Hassan Abdaal and also elected where he has submitted a declaration Mark 'J' before the Court of Mirza Rafi-uz-Zaman, learned Additional District and Sessions Judge, Attock (Returning Officer). The present declaration filed with present nomination paper is similar to that of abovementioned declaration. It is argued that in view of this explanation there is no concealment on the part of the respondent. He has already declared in his declaration Mark 'K' his declaration above 1,00,00,000 of rupees comprising on Lime Stone Kiln and Khan Kiln C.02 Gas Plant. There was no need for the respondent to make a concealment regarding any minor assets.
' Regarding political affiliation, it is argued that the respondent contested the election for M.P.A. In the year 1997 as an independent candidate rather against the candidate of Pakistan Muslim League (Nawaz Sharif Group). The objections should be rejected and nomination papers of the respondent should be accepted.
' I have carefully gone through the relevant record. The declaration form Mark 'K' attached by respondent with his nomination papers is prima facie similar as per Mark 'I' According to the version of respondent, the Insurance Policies are already discontinued. Moreover, same is not an assets unless it matures. Therefore, at this stage it cannot be considered as concealment.
' As regards a plot of measuring 2 Kanals and a shop is concerned prima facie respondent has already sold the same in favour of Shaukat Ali vendee through sale note Mark 'G'. This fact is admitted by Shaukat Ali vendee in his affidavit Mark 'I'. An objection is raised that sale note Mark 'G' dated 5-8-2000 is not a registered document and it should not be considered as a sale-deed. No doubt under the provisions of Registration Act suchlike sale of Rs,8,00,000 is compulsorily register able. However, at this stage, it may be considered an oral sale or agreement of sale. Only summary proceedings are required before the Returning Officer. It will be not proper to comment upon the merits of the case. However, after the alleged sale by Muhammad Shawaiz Khan in favour of vendee, there seems no wilful concealment on the part of the respondent regarding these two properties.
' The respondent has clarified his political status as an independent. The news clipping Mark 'D' dated 9-3-2001 is a photo copy of the said new items and not the original newspaper where respondent has been mentioned as former President of Pakistan Muslim League. Therefore, this document is not sufficient to establish respondent's political affiliation with Pakistan Muslim League as alleged particularly because he has already contested an election in the year 1997 as an independent."
5. The Election Appellate Authority while upholding the findings of the Returning Officer relating to the remaining objections reversed the same qua the ownership of the land and shop and rejected the nomination papers of the respondent with the following observation:-- "Objection respecting insurance policy is successfully explained as the same admittedly has not matured as yet. The sale-deed as is evident from its photostat copies was executed over two pages of stamp papers valuing Rs,60 each at Islamabad on 5-8-2000. Such a transaction is compulsorily registerable and in its absence no right is created and extinguished in favour of one and against the other. Legally the said property continues to be legal ownership of respondent No,1 and its non-mentioning in the declaration of assets entails disqualification to contest election."
6. The petitioner, on the other hand, placed on record the copy of an unregistered sale-deed, dated 5-8-2000 executed by him in favour of Shaukat Ali relating to the sale of land bearing Khasra No,4232 and Shop bearing No,B-III/350 situated in Municipal Area, Hassan Abdaal alongwith his affidavit to the effect that declaration of assets was correctly filed as the land and the shop in question had already been sold by him to Shaukat Ali and he was no more owner of the same at the time of filing of nomination papers. The petitioner also placed on record the affidavit of Shaukat Ali wherein he stated that he having purchased the land and the shop in question was the owner of the said property. The petitioner further placed on record the certified copy of the order acceptance of nomination papers for Nazim of Municipal Committee with the declaration of assets filed with the said nomination papers. The certified copy of the application alongwith written objection filed by the respondent against the petitioner before the Returning Officer and copy of the order, dated 29-6-2001 passed in Writ Petition No,2267 of 2001 in a case titled Sheikh Sher Afzal v. District Returning Officer and others by a learned Single Judge of this Court was also made part of the record of this petition.
7. Learned counsel for the petitioner has contended that the petitioner having sold the land and the shop in question through the sale-deed was no more owner of the said property at the time of filing the nomination papers and was not possessing the same as assets and there being no inconsistency in the declaration of assets submitted by him, he was illegally declared disqualified.
Learned counsel submitted that the same declaration of assets was submitted by the petitioner with the nomination papers for the seat of Nazim, Municipal Committee, Hassan Abdaal, which was accepted without any objection, therefore, the objection was unfounded and in any case, the question whether the petitioner was actually owner of the land and shop would not be adjudicatable and decided on the basis of documents produced in support thereof in the summary proceedings of scrutiny of nomination papers. In nutshell, learned counsel argued that the Election Appellate Authority while travelling beyond the scope of scrutiny of nomination papers rejected the nomination papers of the petitioner in illegal exercise of jurisdiction. Learned counsel submitted that the rejection of nomination papers on the strength of sections 17 and 49 of the Registration Act, 1908, was illegal and in support thereof has placed reliance on the observation made by the apex Court in Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 to the following effect:-- "Section 49 of the Registration Act, no doubt, provides that if a document, which is compulsorily registerable, is not registered, then such a document does not affect any rights in the property dealt with under such a document. But section 53-A of the Transfer of Property Act makes an exception to this and provides that where a person obtains possession of or continues to remain possession of a property under a document in writing which, though compulsorily registerable, has not been registered, then neither the person transferring the property nor anyone claiming under him shall be entitled to enforce against the transferee or any person claiming under him any right in respect of that property."
' Learned counsel also placed reliance on Muhammad Shafique v. Muhammad 1989 CLC 1318, to contend whether it was a sale or not in terms of section 54 of the Transfer of Property Act, 1882, would need determination through the evidence and was not a matter to be decided in summary proceedings. Learned counsel further placed reliance on a judgment of the apex Court passed in Civil Petition for Leave to Appeal No,1734 of 2001 wherein in a similar matter leave was refused by the apex Court against the judgment passed by the learned Single Judge of the High Court.
Additionally the learned counsel in support of his contentions has also placed reliance on the following judgments:--
(i) AIR 1936 Mad. 918, (ii) PLD 1971 SC 516, (iii) 1985 CLC 2481, (iv) 1988 MLD 2047, (v) 1992 SCMR 1265,
(vi) PLD 1995 Lah. 124 and (vii) PLD 1997 Lah.
709.
8. Learned counsel for the respondent, on the other hand, has contended that the document relating to the property pertaining to the official record would provide a positive proof of the ownership and possession of the land and the shop in question by the petitioner and the tentative assessm ent of the objection in the light of above said documents, the properties were being possessed by the petitioner. It was argued that the official record of the Excise and Taxation Department and the Revenue Department would exclude the unregistered sale-deed and the affidavits of the vendor and the vendee from the consideration to ascertain the correctness of the declaration of assets and notwithstanding the actual title of the property, the ostensible ownership being in the name of the petitioner, he would be deemed its owner for the purpose of Election Laws and the non-disclosure of such assets in the declaration would be a disqualification of a person under section 14(i) of the Punjab Local Government Elections Ordinance, 2000. Learned counsel argued that the inquiry, by the Returning Officer during the scrutiny is confined only to the extent of examination of the documents filed by him and the tentative opinion formed by the Returning Officer or Appellate Authority, as the case may be, on the basis of said document during the scrutiny of nomination papers would be sufficient for the purpose of rule 18(3) of the Punjab Local Government Elections Rules, 2000. Learned counsel concluded that since the declaration of assets filed by the petitioner was not found in accordance with the assets being possessed by him, therefore, he would be disqualified to contest the election under section 14(i) of the Punjab Local Government Elections Ordinance, 2000, and the order of rejection of nomination papers of the petitioner was not questionable.
9. I have heard the learned counsel for the parties and perused the record with their assistance.
With a view to appreciate the point, the examination of the provisions of law is necessary. Section 14(i) of the Punjab Local Government Elections Ordinance, 2000, is read as under:-- S.14(i) "Qualification for candidates and elected members.--- A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he,--
(i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the de facto control of such assets including their sale, transfer or pecuniary interest, is retained by him."
' Rule 18(3) of the Punjab Local Government Elections Rules, 2000, provides as under:-- ' Rule 18(3). The Returning Officer, may, either suo motu or upon any objection, conduct such summary inquiry as he may think fit and reject a nomination paper if he is satisfied that:--
(i) the candidate is not qualified to be elected as a member;
(ii) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(iii) any provision of rules 16 and 17 has not been complied with; or
(iv) the signature or thumb-impression of the proposer or the seconder is not genuine."
10. Under sub-rule (3) of rule 18 of the said Rules, the Returning Officer or the Appellate Authority, as the case may be, may either suo motu or upon any objection conduct a summary inquiry before rejection of nomination papers to satisfy himself that the candidate was not qualified to be elected as a member for any of the reason mentioned therein.
11. The nomination papers of the petitioners were rejected by the Appellate Authority on the sole ground that an area of 2 Kanals of agricultural land and a shop situated within the area of Municipal Committee Hassan Abdaal as per official record was owned by the petitioner but the same was not mentioned in the declaration of assets. During the scrutiny of the nomination papers, the objection raised by the respondent before the Returning Officer was contested by the petitioner The parties produced the documents in support of their respective stand.
' The respondent produced certified copies of the record of Excise and Taxation Department and the Revenue Department whereas in rebuttal the petitioner placed on record unregistered sale- deed and affidavits of the vendee of the properties in question. The Returning Officer while overruling the objection accepted the nomination papers and in appeal, the Appellate Authority on the basis of the same documents while upholding the objection rejected the nomination papers with an observation that the registered sale-deed would not be admissible in evidence and the property would still be deemed to be owned and possessed by the petitioner in the official record of the concerned department. In the light of the controversy, the question for determination is confined only to the extent of inconsistency, if any, in the declaration of assets filed by the petitioner with the nomination papers to that of the assets actually being possessed by him and not that a valid title of the property in question was not passed to the vendee of the said property under an unregistered sale-deed. The sale is defined under section 54 of the Transfer of Property Act, 1882, and the essential ingredients of payment of consideration and the delivery of possession being fulfilled, the transaction would constitute a sale notwithstanding that the same was oral or in writing. The matter relating to the legal defect in the sale being confined between the vendor and the vendee, the Returning Officer would not be required to go into the question o defective title and the admissibility of the documents in evidence rather was supported to confine only to the question of inconsistency o declaration with the assets possessed by a persona The question whether the property in question would still deem to be the property of the petitioner due to the defect in the documents through which the proprietary rights were transferred by him and would effect his candidature would not be answerable without proper determination of the question of title by the competent forum on the basis of evidence. The evidence being relied upon by the parties being rebutable would not as such be a conclusive proof of title. Ostensibly the petitioner having entered into a transaction of sale passed the title and non-incorporation o title of the vender in the official record would neither undo the transaction nor effect the candidature of the petitioner. The question that who out of the petitioner and the respondent was the actual owner of the property being purely a question of fact cannot be decided without recording of evidence and consequently would not be determinable in a summary process of scrutiny of nomination papers.
The scope of summary proceedings of scrutiny of nomination papers cannot be enlarged to decide the controversial question of facts and instead it is confined only to the summary inquiry vis-a-vis the qualification and disqualification of a person to contest the election in the light of objections being raised at the time of scrutiny of nomination papers. Such inquiry is, therefore, confined to the extent of verification of a fact from an independent source to ascertain the correct position. In the present case, the Appellate Authority without such inquiry from the concerned quarters while proceeding on the basis of certified copies of the documents placed on record raised a presumption that the sale was nonexistent.
12. The pre-election disqualification to become a candidate in the Local Bodies in addition to the process of scrutiny of nomination papers D can also be adjudicated through the remedy of election petition as' provided under the law. The summary process of scrutiny is provided under rule 18 of the Local Government Elections Rules, 2000, and the objection viz-a-viz the qualification of a candidate cannot be decided summarily due to the involvement of disputed questions of fact and the matter should be left for decision through election petition and the decision of such cases through tentative assessm ent of evidence would amount to condemn a person unheard against whom verdict is given. The remedy of election petition generally is availed for post-election dispute but the disqualification of a person if any on the day of nomination papers can also be challenged through election petition notwithstanding the acceptance of his nomination papers during the scrutiny. Thus, the disqualification of a candidate either under rule 18 of the Local Government Elections Rules, 2000, or disqualification under section 14 of the Local Government Elections Ordinance, 2000, if not adjudicatable in the summary process of scrutiny of nomination papers is challengable in the election petition without being causing prejudice to either party but a person being qualified is excluded during the scrutiny from the election due to the technical objection, he would have no remedy to cover the loss suffered due to the non-participation in the election.
13. Keeping in view the sale-deed, ostensibly it would be presumed that the assets under discussion were not being possessed by the petitioner on the day of filing the nomination papers and the exclusion of E the same from the declaration with bona fide belief that it was no more property of the petitioner would not be a disqualification under section 14(8) of the Local Government Elections Ordinance, 2000.
14. The Appellate Authority having enlarged the scope of summary inquiry during the scrutiny of nomination papers has decided a controversial question of fact and while proceeding beyond its jurisdiction passed the order of rejection of nomination papers of the petitioner. The disqualification in question being not determinable in summary proceedings can conveniently be challengable through the election petition if the petitioner is succeeded in the election.
15. For the foregoing reasons, the rejection of nomination papers of the petitioner vide order, dated 25-7-2001 by the Election Appellate Authority is declared illegal and of no consequence. This petition is allowed with no order as to costs.