MUZAFAR ABBAS Versus Maulana MUHAMMAD AHMAD LUDHIANVI

MUHAMMAD QASIM KHAN, J.-- By this single judgment, we propose to decide two appeals i.e.. Election Appeals Nos. 04-A/2016 and 06-A/2016, as both these appeals have arisen out of similar facts and circumstances.

2. Brief facts of the case are that in pursuance of provisions of Clause (4) of Article 224 of the Constitution of the Islamic Republic of Pakistan (hereinafter to be referred as "the Constitution") read with Article 218(3) thereof and Section 108 of the Representation of the People Act, 1976 (LXXXV of 1976) (hereinafter to be called as "ROPA"), the Election Commission of Pakistan (hereinafter to be referred as the "Commission") called upon the electors of the Constituency No.PP-79 Jhang-II, to elect a Member to fill the set from the said Constituency, which had become vacant due to de-notification of Mst. Rashida Yaqoob, Member of the Provincial Assembly of Pakistan as void and schedule of the election was announced. Muhammad Ahmad Ludhianvi (hereinafter to be called as "respondent") along with others filed nomination papers before the returning officer (respondent No.2). Sh. Sheraz Akram (appellant in Election Appeal No.04-A of 2016) and Muzafar Abbas (appellant in Election Appeal No.06-A of 2016), also filed their nominations papers and on the date fixed for scrutiny, they both filed written objections against the respondent. The respondent filed an application on 02.11.2016 for correcting the entries in Column No.11 about assets of his dependent son. The objections filed by both the appellants were dismissed by the Returning Officer-respondent No.2 and application for correction of entry filed by the respondent was allowed vide order dated 02.11.2016 and he was permitted to annex the relevant documents with his nomination papers. These order have been assailed before this Tribunal by way of these appeals under subsection (5) of Section 14 of the ROPA, on the ground that respondent had not disclosed true facts in column Nos.6, 11, 13 and 14 and filed false declarations by concealing the assets of his dependent son-Saif Ullah; the respondent had not filed Tax Return, though he visited abroad on number of times and that the respondent is member of a proscribed organization, his name has been entered under section 11-EE of the Anti-Terrorism Act, 1997 (hereinafter to be called as "the Act") in 4th schedule and his bank account (mentioned in the nomination papers) have been seized by the State Bank of Pakistan on the ground that his name has been included in the 4th schedule and the respondent filed false affidavit with respect to pending criminal cases against him.

3. We have heard Muzaffar Abbas, appellant in person and learned counsel representing the appellant in Election Appeal No.04-A/2016.

4. It has been submitted on behalf of the appellants that non-mentioning of the assets of dependent son is the defect of substantial nature which could not be rectified later on and the ground mentioned in the application moved by the respondent for correction of the entry in column No.11 did not disclose any justification as (oversight) is no ground for amendment in any petition. Placed reliance on the case "Mulchand v. Smt. Indra and others" (PLD 1985 Karachi 362). Further argued that the respondent has concealed the material facts, as he has to write all the details required in the nomination papers on the cut date i.e. the date for filing of the nomination papers and, after fling the nomination papers, he could not be allowed to amend any column which is of substantial nature. Further submits that the respondent has also not provided the detail of 19 criminal cases pending against him as per report appended in Election Appeal No.06-A/2016 (at page 90) prepared by the officials of the concerned Police Station, as per stance of the learned counsel for appellant, and the respondent submitted a declaration at the end of column No.18 that no other property, except mentioning in the Nomination Form, is in his name or in the name of his wife or dependent persons and he also declared (on oath) in column No.6 of the nomination papers about the pending criminal cases by writing the word as NIL'; hence, he has concealed the material facts. The learned counsel by referring the case "Chaudhry Abid Raza v. Election Tribunal Punjab/Lahore High Court, Lahore and 3 others" (PLD 2008 Lahore 200), adds that the respondent is a member of proscribed Organization under the Act and his name has been entered in the 4th Schedule under section 11-EE of the Act since, 2011 and being member of Banned Organization and by putting the name of the respondent in 4th Schedule by the statutory authorities, he did not qualify to contest the election as by 21st amendment in Article 175 of the Constitution, the proceedings of statutory authority under the Act are protected. Further added that the respondent travelled number of times out of Pakistan and spent huge amount in this respect, but he has not paid the income tax. Learned counsel further submits that the order of the Returning Officer to allow the amendment for including the assets of the dependent son in the nomination papers is against the law and is liable to be set aside. Learned counsel also submits that in the light of order dated 02.11.2016 passed on the application of the respondent for correction of entry in the nomination papers, now there are two affidavits and both contradict each one. One affidavit declares that respondent's dependent son Saif Ullah had no assets and other provides that dependent son of the respondent had the assets, thus, by these contradictory declarations, it is established that the respondent is not a righteous persons, therefore, his nominations papers be rejected for filing false declarations and false affidavits. In support of above contentions, reliance was placed on the cases "Mulchand v. Smt. Indra and others" (PLD 1985 Karachi 362), "Rashid v. Returning Officer Nankana Sahib" (PLD 2013 Lahore 509), (PLD 2013 SC 239), "Rao Tariq Mehmood v. Election Tribunal, Punjab, Lahore' (PLD 2003 Lahore 169), "Mian Najeem-ud-Din Owasi and another v. Amir Yar Waran and others" (PLD 2013 SC 482), "Barkhurdar v. Appellate Tribunal/Additional District and Sessions Judge and 3 others" (PLD 2016 Lahore 101), "Muhammad Ilyas v. Returning Officer and others" (PLD 2016 Lahore 179), "Chaudhry Abid Raza v. Election Tribunal Punjab/Lahore High Court, Lahore and 3 others" (PLD 2008 Lahore 200).

5. On the other hand, the learned counsel representing the respondent in both the appeals submits that the assets of dependent son, Saifullah inadvertently could not be mentioned in the nomination papers and there was no reason to conceal these assets as in the year 2013 the respondent contested election in NA-89/Jhang and the assets of his dependent son were disclosed there. The learned counsel submitted the copies of nomination papers along with objection petitions filed and the orders passed by the Returning Officer of NA.89-Jhang held in the year 2013, the same are placed on the file. The learned counsel further adds that the respondent moved application to correct the nomination papers and as this amendment is not of substantial nature, hence, the Returning Officer rightly passed the order on the application of respondent No.1 and the respondent rightly filled column No.6 of the nomination paper regarding the criminal cases as he has to provide the information only with respect to the cases pending against him six months prior to the filing of nomination papers and the respondent was not facing the trial in any criminal case and the number of cases relied upon by the appellant, for the first time came into the knowledge of the respondent at the time of objections. Further submits that the respondent was not facing the trial in any criminal case; hence, he has not concealed any fact. Adds that the respondent was not aware about any order passed against him under section 11-EE of the Act and on the basis of order produced by the appellant, the respondent could not be disqualified to contest the election. In support of his assertions, learned counsel placed reliance on the case "Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others" (2016 SCMR 733).

6. Learned Law Officer representing the Federal Government submitted certain documents about the order passed by the authority under section 11-EE of the Act, and list of the cases registered against the petitioner. Copies of some relevant documents have been placed on file.

7. We have heard the learned counsel for the parties, perused the record and also examined the case law referred on behalf of the parties.

8. So far as the contention of the learned counsel for the appellant that respondent No. 2 travelled abroad a number of times and as per information provided in the nomination papers he earned a lot but he has not paid the income tax, is concerned, we are afraid while sitting as Tribunal we are not expected to assess the taxes of the candidates. Independent departments have been established by the Government of Pakistan and the Provincial Governments, and under the relevant law the authorities are competent to assess the taxes. Therefore, by mere an assertion that any contesting candidate has not paid the income tax or any other tax or dues which were yet to be assessed by the authority, he cannot be disqualified to contest the election nor can be declared willful defaulter. Steering thoughts in this respect have been gathered from the dictum laid down in the case titled Irfan Gul Magsi v. Haji Abdul Khaliq Soomro and others (1999 PTD 1302) wherein it has been held as under:

"This is a subject exclusively within the domain and authority of Taxation Authorities who may be seized of the matter. Unless the Taxation Authorities have assessed the valuation of the assets of the respondent, determined the tax due and payable thereon, it is neither lawful nor warranted in the circumstances to usurp the powers of these authorities ..................This Tribunal is not possessed of the power of Taxation Authorities and it cannot assume the role and jurisdiction to assess the valuation of the assets of the respondent and render him liable to payment of tax which in law is available to hierarchy in Tax Authorities."

9. The stance of the appellant that the respondent is disqualified to contest the election, as his name has been added in 4th Schedule of the Act, is also without any weight. Qualifications and Disqualification for membership of Majlis-e-Shoora (Parliament) have been respectively provided in Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, and on perusal thereof, it appears that only Articles 63(g) and 63(h) of the Constitution attract in the case of a convict person and furthermore, a person would be disqualified to contest election inter alia if he has been convicted by a court of competent jurisdiction for propagating any opinion, or acting in any manner prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of Pakistan or its judiciary or defames or brings into ridicule the judiciary or the Armed Forces of Pakistan and if any person has been convicted for moral turpitude. An order under Section 11-EE of the Act is passed by the executive authority to impose some restrictions on the movement and liberty of a person and just some preventive measures are adopted by the executive authority in order to ensure law and order situation and to avoid any untoward incident which may be a criminal offence, if committed. Thus mere adding name of any person in the 4th Schedule of the Act, cannot be equated with the conviction mentioned in above quoted Article of the Constitution because the conviction is a sentence either in imprisonment or fine which is imposed after framing the charge, recording of evidence and also recording the stance of the accused in his defence and this process when finally results, either in acquittal or conviction. Hence an order passed under Section 11-EE of the Act cannot be equated with conviction for all intents and purposes, whereas, disqualification to contest an election only attracts against the person convicted under any law in view of Articles 63(g) and 63(h) of the Constitution. The case law "Chaudhry Abid Raza v. Election Tribunal Punjab/Lahore High Court, Lahore and 3 others" (PLD 2008 Lahore 200), referred by learned counsel for the appellants is not of much benefit to him for the reason that same is not backed by the Constitution and it appears that either proper assistance was not rendered at that time and the restrictions in Article 62(f) of the Constitution for a declaration by the court of law, was not there, as this restriction was imposed by substituting new Article 68 through 18th amendment for Article 62 of the Constitution.

10. The argument of the learned counsel for the appellant with respect to 21st Amendment in the Constitution has no force at all because by adding the proviso to Article 175 protection has been provided to the proceedings carried out under the Acts mentioned at Serial Nos. 6, 7, 8 and 9 of sub-part-III of Part-I of the First Schedule. Relevant provision is reproduced as under:

"Provided that the provisions of this Article shall have no application to the trial of persons under any of the Acts mentioned at serial Nos. 6, 7, 8, and 9 of sub-part-III of Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect."

In sub-part-III of Part I of First Schedule of the Constitution at Serial Nos.6, 7, 8, and 9 following Acts/Ordinance are mentioned: i) (6) The Pakistan Army Act, 1952 (XXXIX of 1952) ii) (7) The Pakistan Air Force Act, 1953 (VI of 1953) iii) (8) The Pakistan Navy Ordinance, 1961 (XXXV of 1961) iv) (9) The Protection of Pakistan Act, 2014 (X of 2014)

The respondent has not been proceeded against under any of the clause of above-referred laws. The argument of learned counsel for the appellant that in the light of phrase in the new added proviso to Article 175 of the Constitution "who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect" the respondent's case is covered being activist of Sipah-e-Sahaba Pakistan/ Lashkar-e-Jhangvi, a proscribed. organization, we have given our anxious consideration to the arguments advanced by both the parties in this respect, but we are of the view that by no stretch of imagination, any proceedings carried out under section 11-EE of the Act, could be protected by new amendment in Article 175 of the Constitution. Additionally the word "who" has been written before the last phrase. This is a joining word to the earlier part of the phrase, hence, last phrase could not be read separately, rather it will be read with earlier part of the amendment by which only four statutes are included, names have been referred above. Had there been any intention of the legislative body to include the Act (Anti-Terrorism Act, 1997), they could do it at the time of latest amendment. So we conclude that the proceedings carried out under the Anti-Terrorism Act, 1997 have no nexus with the above referred four statutes.

11. Although the learned counsel for the appellant argued the case with reference to Article 62(g) of the Constitution, but we have noticed that except mere assertion no material is available on the file, whereas, we have no doubt in our mind to hold that simple inclusion of name in the notification under 11-EE of the Act, respondent cannot be said to have worked against the integrity of the country or ideology of Pakistan, therefore, the said argument of the learned counsel is repelled.

12. Before discussing the issue of amendment in the nomination papers, another important aspect which needs consideration is that under section 14(6) of ROPA, at the time of receiving the nomination papers, the Returning Officer shall have to inform the concerned person of the time and place at which he shall hold scrutiny and under section 19 of ROPA when proceedings relating to nomination, scrutiny or withdrawal, for the reasons beyond the control of the Returning Officer, cannot, take- place on the date fixed therefor, the Returning Officer may postpone such proceedings, for reasons to be recorded in writing, and sub-section (2) of Section 19 of the ROPA further imposes a duty on the Returning Officer that when the proceedings are postponed he shall inform the Commission of his having done so. Perusal of the nomination papers shows that at the time of receiving of the nomination papers for scrutiny on 01.11.2016 (date fixed for scrutiny of the nomination papers) a specific .date and time i.e. 01.11.2016 at 2.00 p.m. had been given. Returning Officer has not passed any order under section 19 of ROPA for adjournment of the proceedings with reasons. Subsection (2) of Section 19 of ROPA imposes a condition for providing information to the Commission and by bare reading of Section 19 it appears that this section is mandatory in nature and even otherwise, it is duty of the Returning Officer to pass an order in writing for the next date, if any matter is adjourned, in the interest of justice to establish that proceedings are being carried out fairly. What was the reason, is best known to the Returning Officer that why, without any written order, he postponed the proceedings of scrutiny for the next date i.e. 2nd of November, 2016. Although, it is alleged by learned counsel for the appellant that only time was provided to the respondent for filing of application in this respect, although absence of any order for adjournment of scrutiny proceedings, speaks a volume, but we restrain ourselves from making any observation in this regard. However, it is establish from the record that application for amendment in nomination papers was filed on 02.11.2016, the objectors were summoned and then application was allowed and it was not filed on 01.11.2016, the day when nomination paper were fixed for scrutiny by a written order.

13. We have carefully considered the arguments of learned counsel for the parties with respect to permission of the Returning Officer for amendment in the nomination papers. Under section 14(3)(d)(ii) of ROPA, the Returning Officer could allow any defect to be remedied forthwith, if it is not of substantial nature. In this case the respondent filed a declaration, which is incorporated in the nomination papers that there is no other property except mentioned in the nomination papers in his name and in the name of his dependents. When a declaration is filed then law requires that the relevant information must be provided fairly and all care and caution must be taken to avoid danger or mistake and nothing must be concealed. If the assets of a candidate, his spouse or dependent are concealed in the nomination papers, he could be disqualified on this score alone and this disqualification is due to the reason that a false declaration has been filed, therefore, such particulars must have to be written with all care and caution. In this respect, it may be added here that a declaration itself is legal warranty that if such declaration is proved to be false, it must carry some adverse consequences. A person who wants to represent a large number of people if elected to participate in the legislation, must not be so casual in filing declaration and for providing the relevant details in the relevant columns of his nomination papers. Non-providing the details of assets of dependent child could not be considered as minor omission because the details have to be verified by declaration, and thus, become amendment of substantial nature and could not be allowed to be remedied and the permission granted by the Returning Officer by allowing the application to amend the nomination papers in above respect, is beyond the scope of Section l4(3)(d)(ii) of ROPA. In this context we would refer the case "Barkhurdar v. Appellate Tribunal/Additional District and Sessions Judge, and 3 others" (PLD 2016 Lahore 101) and "Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood" (PLD 2007 SC 277).

14. The respondent under oath filled column No.6 of the nomination papers with respect to criminal cases pending against him as "NIL". A perusal of the objections filed by Sh. Sheraz Akram (appellant) show that he had mentioned eleven cases in his written objections pending against the respondent and list from the concerned police showed nineteen criminal cases against respondent, out of whom in four cases respondent earned acquittal. The learned Law Officer also submitted an incomplete report, which perhaps due to paucity of time could not be completed, which reflect thirteen criminal cases against the respondent, in four of those cases the respondent had been acquitted, in one case cancellation report had been submitted and remaining are still pending and as per report two cases were pending trial. The appellants have also submitted copies of reports under section 173 Cr.P.C. along with interim orders passed by the courts in case FIR No.409/2012 Police Station Daska and FIR No.44/2014 Police Station City Jhang and from perusal of these documents it appears that name of respondent is mentioned in these reports and he has been declared proclaimed offender after adopting legal proceedings by the court of competent jurisdiction. The stance of learned counsel for respondent about lack of his knowledge regarding such criminal cases, has no force at all, because the documents submitted by the learned law officer and above referred two reports submitted by learned counsel for the appellants, clearly establish that some of the cases are under trial before different courts against the respondent and he has not written these facts in relevant column of his nomination papers, filed under oath. In this context, we have also observed that the learned counsel representing the respondent, during the course of arguments, produced documents with respect to election held in 2013 in the constituency of NA-89/Jhang and those documents include the objections filed by the voter of the said constituency, wherein there is clear mention of twelve criminal cases against the respondent. Furthermore, during the said election, objections were also filed by another proposed candidate namely Sheikh Waqas Akram against the present respondent and along with those objections a list of eleven criminal cases was given with details of the FIRs. This detail also include FIR No.409/212, in which the respondent has been declared as proclaimed offender by adopting proper procedure of law. Hence, it could not be said that respondent was not aware about these cases pending against him because from the available record it is established that most of the cases were mentioned in the objection petition filed by the objectors in general election-2013 for the constituency of NA-89-Jhang. Hence, when he was aware about criminal cases against him, non-mentioning of details thereof and mentioning "NIL" in the relevant column, clearly amount to concealment of facts. Relevant para-6 of the nomination papers (table) is drawn hereunder:-

15. As it has been held above, the respondent has concealed the assets of his dependent son on cut-date i.e. at the time of filing of nomination papers and verified the nomination papers through declaration. He has also concealed the fact of criminal cases pending against him within six months before the filing of the nomination paper and this fact too has been verified on oath. One of the purpose for such information is that the personality and pen-picture of the proposed candidate must be before the electoral at the time of casting their votes but here in this case these facts have been concealed by the respondent and he has also provided false information on oath that no criminal case is pending against him, therefore, he cannot be declared as sagacious, honest and ameen. In this respect we seek guidance from the case "Mian Najeem-ud-Din Owasi and another v. Amir Yar Waran and others" (PLD 2013 SC 482), wherein, the apex Court held as under:-

"Notwithstanding whether the condition of being a graduate or having a degree equal to the requisite academic skill was not available subsequent to the General Election 2008, and the judgment in the case of Muhammad Nasir Mahmood and others v. Federation of Pakistan through Secretary M/o Law (PLD 2009 SC 107 yet if a candidate has made a declaration in the column meant for academic qualification and declared himself to be a graduate, but subsequently, it is found that he was not a graduate then he would equally be liable to face the consequences under Articles 62 and 63 of the Constitution or the other relevant provisions of the P.P.C. It is further to be observed that once there is a disqualification, it is always a disqualification; therefore, while making declaration in the nomination papers, a candidate must provide, a crystal clear statement about his credentials and antecedents. There is no scope of making or providing information, which is not correct, because he is one of the persons whom the electorate of a constituency, which may be having a strength of 50 thousand, are going to elect their representative. Therefore, whatsoever, he possesses in terms of academic qualification, bank credits and taxes etc. he shall have to declare each and every thing required for the qualification to contest the election."

The case "Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema and others" (2016 SCMR 763), has also been gone through by us before forming the above view.

16. As regards the case law "Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others" (2016 SCMR 733), referred by learned counsel for the respondent, with all respect to the dictum laid down therein, we have observed that said case is distinguishable for the reason that in the cited case relevant person was charged under a minor offence under traffic laws, no objection was raised at the time of filing of nomination papers and first time the objection was raised in the election petition before the Election Tribunal and moreover, he was acquitted from the charge. The information of acquittal in any criminal case is not required to be written in the nomination papers, because as per para-6 of the nomination papers, the proposed candidate is only required to write the information for criminal cases pending against him six months prior to the filing of the nomination papers.

17. For what has been discussed above, we hold that the order dated 02.11.2016 passed by the Returning Officer-respondent No.2 for accepting the nomination papers of respondent No.1 and also the order of the same date vide which permission to the respondent was granted to amend the nomination papers about assets of his dependent son, are patently illegal and thus, set-aside. By filing false declaration in the nomination papers about assets of dependent son and also filing false affidavit about pending criminal cases against him, the respondent cannot be said to be a sagacious, righteous, non-profligate, honest and ameen person to contest the election. Resultantly, respondent is held to be disqualified to contest the bye-election from Provincial Constituency PP-78 Jhang-II and his nomination papers for the said constituency stand rejected.

18. This judgment shall form the detailed reasons of our short order dated 11-11-2016.

ZC/M-207/L Appeal allowe