This writ petition challenged an order of the Appellate Tribunal that disqualified an election candidate for alleged concealment of assets under the Representation of the People Act, 1976. The candidate had declared 323 kanals, 12 marlas of agricultural land based on revenue extracts (Fard Malkiyat) issued by the Halqa Patwari, but omitted a fractional inherited share (approximately 3 to 4 kanals) from his grandmother's estate of 13 kanals, 4 marlas. The core legal question was whether an inadvertent and minor omission regarding inherited property constituted a false or incorrect declaration in a 'material particular' or a defect of a 'substantial nature' justifying rejection under Section 14(3)(c) and (d)(ii) of the Act. The High Court allowed the petition, holding that the purpose of disclosing assets is to assess the candidate's integrity and bona fides. The Court ruled that an innocent, trifling omission in inherited property due to a revenue official's oversight, where the bulk of the property was disclosed, does not amount to a conscious suppression or a disqualifying substantial defect.
' UMAR ATA BANDIAL, J.---The petitioner is a candidate for PP-82, Jhang. He declared his assets in his nomination paper to comprise 323 kanals, and 12 marlas agricultural land duly evidenced by two "Fard Malkiyat" provided to him by the Halqa Patwari on 9-8-2009. The said extracts of the revenue record are stated to be attached to the petitioner's nomination papers. The respondent No,1 challenged the said declaration of assets made by the petitioner under section 12(2)(f) of the Representation of the People Act, 1976 ("Act") being false and committing concealment of assets.
The learned Returning Officer rejected this challenge on 7-10-2009. Thereafter, in an appeal filed before the learned Appellate Tribunal on 11-2-2010 the respondent No,1 highlighted that the petitioner failed to declare his share as one of three heirs in the landed estate of his grandmother Mst. Jantan, who left behind a total of 13 kansls, 4 marlas of agricultural land. The learned Appellate Tribunal has by the impugned order dated 16-2-2010 disqualified the petitioner for committing concealment of assets.
2. Learned counsel for the petitioner has read from section 14(3)(c) of the Act wherein a nomination paper is liable to be rejected during scrutiny for committing "false or incorrect declaration or statement in any material particular". He points out that the learned Appellate Tribunal has not determined whether the subject omission by the petitioner in his declaration of assets constituted a false or incorrect declaration in a "material particular" about his assets. He adds that the property in question is a share acquired through inheritance of which the petitioner was not aware and depended on its details on the extract provided by the revenue officer. As such the error is innocent and inadvertent apart for being trifling in its extent. It should not be construed a misdeclaration.
3. The learned counsel for the petitioner relied on Umar Ayub Khan v. Returning Officer NA-19, N- W.F.P. District Haripur/Additional District and Sessions Judge, Haripur and another 2003 M LD 222 and Fahad Malik v. Mir Mumtaz Hussain Jakhrani and another 2008 CLC 457 wherein with reference to the provisions of section 14(3)(d)(ii) of the Act it is held that a nomination paper is to be rejected firstly, for a defect of a substantial nature and secondly, where as statement made pursuant to the provisions of Act is incorrect or false in material particular. Contends that the omission to disclose 3 kanals or so of land inherited by the petitioner from his grandmother does not constitute the suppression of a material particular or a defect of substantial nature when the petitioner had already declared his remaining landed property measuring 323 kanals, 12 marlas of agricultural land.
4. The learned counsel for respondent No,1 has opposed the contention of the learned counsel for the petitioner on the ground that the power conferred on the Returning Officer under section 14(3) of the Act uses the expression "may" to empower him to reject a nomination paper if he is satisfied about a false or incorrect declaration. The word "may" is liable to be read as "shall" which is mandatory as determined by the Honourable Supreme Court of Pakistan in the case of Rana Tajamul Hussain v. Rana Shaukat Mehmood PLD 2007 SC 277. Consequently, the Returning Officer was bound to and the learned Appellate Tribunal has rightly rejected the nomination paper of the petitioner. He further contends that the petitioner has sufficient time to rectify the omission/defect in his declaration which he did not do and therefore, he is liable to be treated strictly for such default.
5. Rejection of nomination papers has to be made by a Returning Officer where a statement of assets is false, incorrect or lacking in a material particular. A candidate is not disqualified merely because a statement made by him does no bear exactness in its particulars. If that were the case then even a minor omission would suffice to disqualify him. That approach of the law is contained in section 14(3)(c) of the Act which is emphasized in para. d(ii) of the same provision whereby a defect must be of a substantial nature in order to reject a nomination paper.
6. The submission of assets and liabilities of a candidate is required by the Act in order to identify the means and sources of the candidate for establishing his integrity and the bona fides of his livelihood at the time of scrutiny of his nomination papers and also subsequently in case if he elected to keep a check on his assets.
7. The subject inherited property of the petitioner does not fall within the mischief of section 12 of the Act. The bulk of the petitioner's land holding to the extent of 323 kanals, 12 marlas was disclosed in his declaration. The subject accretion was made by inheritance from his grandmother and not by personal acquisition. On account of default by the halqa patwari its mention was omitted in the extract of the revenue record. The burden of such omission cannot be cast upon the petitioner as though he consciously suppressed its disclosure. Consequently, to the mind of the Court the error or omission committed by the petitioner was of a trifling nature and not deliberate and therefore it is outside the ambit of the disqualifying provision of section 14(3) of the Act. The objection that the petitioner ought to have corrected that error in his declaration, would have had force if the respondent had pointed out the same before the learned Returning Officer and the nomination paper of the petitioner had been rejected as a result. Petition allowed