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RAI HASSAN NAWAZ versus HAJI MUHAMMAD AYUB

ections Sections 12 (2) and 78 (3) (d) on Pakistan Organization, Article 62 (1) (j) - Nomination papers ?? Hiding assets - false statement or false declaration of assets in nomination papers - Retired candidate Their papers attached herewith designated statements of their assets and liabilities, which failed to mention the portion (s) of the land owned by them - the Election Tribunal filed in the National Assembly constituency. Rejected for filing false election of selected candidate or false declaration of his assets in nomination papers and Article 62 (l) of the Constitution (f) Failure to own the properties mentioned in returned Returning candidate's hearing that it was not owned by him but owned by his family factory.alid Validation - Retired candidate acknowledges that the income Part of the subject was listed in his name and the rest of his family was listed in his record. There was no change in the transfer of the property. The incoming candidate acknowledged that although the exempted land was described as agricultural land, it did, however, build on it and commercialize it. And was put up for residential use, which included shops. The rented quarters and a petrol / CNG pump are said to have been named in the name of the missing candidate - neither the land of the subject nor any of its super structures mentioned in the statement of assets. Was filed by the candidate who returned with his nomination papers - simply because the land of the concession

PLD 2017 Supreme Court 70

Present: Anwar Zaheer Jamali, C.J.,

Sh. Azmat Saeed and Umar Ata Bandial, JJ

Rai HASSAN NAWAZ—Appellant

versus

Haji MUHAMMAD AYUB and others—Respondents

Civil Appeal No.532 of 2015, decided on 25th May, 2016.

(On appeal from the judgment/order dated 12-5-2015 passed by learned Election Tribunal, Multan in Election Ptition No.44/2013-ECP and 5/2013-ETM),

(a) Representation of the People Act (LXXXV of 1976)—

—Ss. 12(2) & 78(3)(d)—Constitution of Pakistan , Art. 62(1)(J)— Nomination papers—Concealment of assets—False statement or incorrect declaration about assets in nomination papers—Returned candidate attached a statement of his assets and liabilities along with his nomination papers, which failed to mention a certain piece of land (asubject land”) owned by him—Election Tribunal declared election of returned candidate from the National Assembly constituency as void for filing a false statement or incorrect declaration about his assets in his nomination papers and for his failure to possess the qualities specified in Art.62(l)(f) of the Constitution—Plea of returned candidate that subject land did not belong to him but to a factory owned by his family—Validity—Returned candidate admitted that in the revenue record the ownership of some part of the subject land was recorded in his name and the rest in names of his family members—No mutation of transfer of ownership of the subject land in favour of factory was available on record—Returned candidate accepted that although subject land was described as agricultural land, however, it had been put to commercial and residential use by construction of buildings thereon, comprising of shops that had been rented out, quarters and one Petrol/CNG pump—Rent agreements for said shops were in the name of returned candidate— Neither the subject land nor any of its superstructures were mentioned in the statement of assets made and filed by the returned candidate with his nomination papers—Merely because income derived from the buildings constructed on the subject land was declared in the tax returns of the factory owned by returned candidate’s family, did not make the factory the owner of subject land—Disguised ownership of the subject land and superstructures thereon was aimed at avoiding the personal scrutiny and accountability of the returned candidate-statement of assets and liabilities made by the returned candidate in his nomination papers was, therefore, intentional and not a bona fide or an innocuous omission made without design or purpose—Finding of concealment of assets given by the' Election Tribunal against the returned candidate was fully warranted on the merits and record of the case—Appeal was dismissed accordingly, [pp. 76, 83] A, B, C & N

(b) Representation of the People Act (LXXXV of 1976)—

—Ss. 12(2) & 78(3)(d)—Corrupt practices—Nomination papers— False statement or incorrect declaration of assets—Trivial error induced by reliance placed upon infÓrm;ation furnished by a government functionary would not fall within the pale of S. 78(3)(d) of the Representation of the People Act, 1976, rather said section constituted a false statement or incorrect declaration made by a contesting candidate in respect of a ‘material’ particular, inter alia, about his assets and liabilities, to be a corrupt practice—Error or omission that was neither intentional nor pertained to a material particular in relation to the assets or liabilities of a contesting candidate would not constitute a corrupt practice—Any plausible explanation that exonerated, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that did not confer any tangible benefit or advantage upon an elected or contesting candidate—Where assets, liabilities, earnings and income of an elected or contesting candidate were camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for an Election Tribunal to probe whether the beneficial interest in such assets or income resided in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under S.12(2) of the Representation of the People Act, 1976, was intentional or otherwise, [pp. 77, 78] D & F

Muhammad Yousaf Kaselia v. Peer Ghulam PLD 2016 SC 689; Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema 2016 SCMR 763 and Shamuna Badshah Qaisarani v. Muhammad Dawood 2016 SCMR 1420 ref.

(c) Representation of the People Act (LXXXV of 1976)—

—S. 12(2)—Nomination papers—Declaration of assets and

liabilities—Significance—Honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnished a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator—Statement of assets and liabilities of returned candidate along with other financial disclosures contemplated by S.12(2) of the Representation of the People Act, 1976 provided the Election Commission and the general public with a picture of both his wealth and income—Such disclosures were crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate— Such disclosures showed the returns received from his economic activities and could indicate if these activities may be tainted with illegality, corruption or misuse of office and authority. [p. 77] E

Muhammad Yousaf Kaselia v. Peer Ghulam PLD 2016 SC 689 ref.

(d) Representation of the People Act (LXXXV of 1976)—

—S. 76A—Suo motu powers of the Election Tribunal—Scope—Power conferred on the Election Tribunal under S.76A of the Representation of the People Act, 1976 was exercisable on its own motion on the basis of material brought to its knowledge from any source—Election Tribunal was therefore vested with a suo motu power to scrutinize, inter alia, false or incorrect statements made by a returned candidate in respect of his own assets and liabilities and those of his spouse or his dependents—For triggering the remedy under S.76A of the Representation of the People Act, 1976, there was no requirement of an election petition to be filed let alone for its contents to be verified— Power under S.76A dispensed with any locus standi requirement for the infÓrm;ant; excluded any constraint of a prescribed limitation period, and empowered the Election Tribunal to adopt a summary procedure initiated from a show cause notice—Section 76A of the Representation of the People Act, 1976, did not envisage opposing parties in its proceedings, therefore the power vested under the said section was inquisitorial rather than adversarial in nature—Election Tribunal in exercise of its powers under S.76A could summon requisite evidence on its own motion to satisfy itself whether the allegation under scrutiny was justified or not. [pp. 81, 82] H, I & L

Watan Party v. Federation of Pakistan PLD 2011 SC 997 and Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501 ref.

(e) Constitution of Pakistan—

-—Arts. 62 & 63—Election—Candidate, qualifications of—Scope— Honesty, integrity, probity and bona fide dealings of a returned candidate were matters of public interest because such standards of rectitude and propriety were made the touchstones in the constitutional qualifications of legislators laid down in Arts. 62 & 63 of the Constitution, [p- 82] J

(f) Representation of the People Act (LXXXV of 1976)—

—Ss. 55(3) & 63—Election petition—Verification of pleadings— Fraud —Bar of limitation for seeking re-verification of pleadings— Scope—Person who verified the election petition and annexures thereto at the time of its filing did not actually possess a Notary Public/ Oath Commissioner’s licence and committed fraud with the election petitioner—Upon learning about the defect of non-verification of the contents of his election petition, the petitioner, filed an application seeking permission for the reverification of its contents—Said application, however, was filed after the 45 days limitation period prescribed for such purposes—Election Tribunal permitted the petitioner to re-verify the relevant pages of and the documents attached to his election petition, beyond the limitation period, as fraud was committed upon the petitioner by a fake Notary Public/Oath Commissioner—Legality—Fraud could not stop the period of limitation from running altogether unless convincing evidence of fraud combined with evidence of .timely reaction from the date of knowledge of such fraud was established by the affected election petitioner—Election petitioner, in the present case, filed application for re-verification of the election petition on 27-03-2014 more than seven months after receipt of notice of the defect i.e. fraud on 12-08-2013—Prescribed limitation period for filing an election petition and therefore an amendment thereto was 45 days—From the record no sufficient cause was found which induced the delay in filing application for reverification of election petition—Said application was time barred and liable to dismissed—Appeal was dismissed accordingly, [p. 80] G

(g) Representation of the People Act (LXXXV of 1976)—

—Ss. 67(3) & 76A—Suo motu powers of the Election Tribunal-Scope—False and incorrect statement by the returned candidate of his assets and liabilities—Plea of returned candidate that since the Election Tribunal had not used its suo motu powers under S;76A of the Representation of the People Act, 1976, to decide the election petition, therefore, the Supreme Court, sitting in appeal, should not treat the proceedings before Election Tribunal as having been conducted under S.76A—Validity—Such plea was inconsequential as appellate proceedings were a continuation of the original proceedings—Sitting in appeal the Supreme Court could treat the proceedings before the Election Tribunal as having been conducted under S.76A of the Representation of the People Act, 1976—Appeal was dismissed accordingly, [p. 82] M

Uzair Karamat Bhandari, Advocate Supreme Court and M.A, Sheikh, Advocate-on-Record for Appellant.

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