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Petitioner: Nida Khuhro VS Respondent: Moazzam Ali Khan and others
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Qazi Muhammad Amin Ahmed, Sh. Azmat Saeed Title: Nida Khuhro vs Moazzam Ali Khan and others Case No.: Civil Appeal No.188 of 2019 Date of Judgment:2019-08-01 Reported As: 2019 P.S.C. 1573, 2019 SCMR 1684, 2019 SCP 308 Result: Appeal allowed
Judgment IJAZ UL AHSAN, J-. The Appellant calls into question a judgment dated 15.01.2019 of an Election Tribunal of the High Court of Sindh, Bench at Sukkur. Through the impugned judgment, an Election Petition bearing No.S-01 of 2018 filed by the Appellant was dismissed. 2. Briefly stated the facts necessary for disposal of the lis in hand are that the Appellant contested General Election, 2018 alongwith Respondent No.1 and others. Respondent No.1 was declared as the Returned Candidate. The Appellant sought a declaration from the Election Tribunal that the nomination papers of Respondent No.1 were invalid inter alia on the ground that he had filed a false declaration of assets. As such, it was prayed that the election of Respondent No.1 was void and the Election Commission of Pakistan may be directed to hold fresh election in the constituency (PS-1 1, Larkana-II). Respondent No.1 contested the petition and filed a written statement denying all allegations levelled in the petition. The Election Tribunal framed as many as 7 issues and put the parties to trial. Such trial culminated in dismissal of the petition through the impugned judgment. Hence, this appeal. 3. The learned counsel for the Appellant submits that concealment of assets by Respondent No.1 was sufficient to warrant his disqualification and annulling his election notification as a member of the Provincial Assembly in view of the law laid down by this Court in the case of Speaker , National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678). He further maintains that besides nomination papers and false declaration, the sworn affidavit submitted by Respondent No.1 with his nomination papers provided additional grounds for his disqualification and also warranted contempt proceedings against him as per declaration of this Court in the aforenoted judgment. The learned ASC submits that Respondent No.1 is a seasoned politician and could not be granted the benefit of ignorance of the legal requirements of full and truthful disclosure of assets or bona fide mis statement of his assets. He maintains that Respondent No.1 had not only mis-declared his own assets but also suppressed agricultural properties/assets of his dependent children (minor sons). He has emphasized the fact that the mala fide of
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Respondent No.1 is conspicuous from a deliberate mis statement made by him in his nomination papers, declaration of assets and sworn affidavit clearly inferring that he was not an honest and sagacious person. The learned counsel further submits that on account of his acts and omissions, Respondent No.1 had rendered himself liable for the constitutional disqualification as envisaged in Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution") as well as provisions of the Election Act, 2017 ("the Act") including Section 156 thereof. He maintains that wilful concealment by Respondent No.1 having been proved without any lawful justification for the same, there was no burden cast upon the Appellant to establish mala fides in the matter. He points out that the precedent cases relied upon by the Election Tribunal were entirely distinguishable and the Tribunal fell in error in dismissing the election petition. He further maintains that the ratio of cases reported as Muhammad Jamil v. Munawar Khan (PLD 2006 SC 24), Khaleefa Muhammad Munawar Butt v. Hafiz Muhammad Jamil Nasir (2008 SCMR 504), Muhammad Ahmad Chatta v. Iftikhar Ahmad Cheema (2016 SCMR 763), Muzafar Abbas v. Muhammad Ahmed Ludhianvi (PLD 2017 Lahore 394) and Imran Ahmed Khan Niazi v. Muhammad Nawaz Sharif (PLD 2017 SC 692) being squarely applicable to the case of Respondent No.1 should clearly have resulted in his disqualification and ouster from the Provincial Assembly. He finally submits that the judgment of the Election Tribunal suffers from patent errors of law and runs contrary to the settled law declared by this Court from time to time in its various pronouncements noted above. It was therefore unsustainable. 4. On the other hand, learned counsel for Respondent No.1 has vigorously defended the impugned judgment. He submits that the original allegations of the Appellant were based upon misunderstanding of the property documents of Respondent No.1. He maintains that the only ground urged by the Appellant before the Election Tribunal was that Respondent No.1 just disclosed 61 acres of agricultural land in Deh Khedkar, District Larkana whereas he owns 140.24/2 acres of land in the said Deh. In this regard, the learned counsel submits that Respondent No.1 in his nomination papers disclosed 61 acres of agricultural land in Deh Khedkar, District Larkana, 622 acres in Deh Raju Dero, District Khairpur and one Otaq/Bethak in Mohallah Waleed, Larkana. With great vehemence, the learned ASC submits that the explanation of Respondent No.1 for not mentioning the remaining portion out of 140.24/2 acres of land admittedly recorded in his name in the relevant revenue records was that a part of the remaining land approximately 16 acres had been acquired by the Government of Sindh whereas the rest was (although nominally in his name or in the name of his minor children) actually is in the beneficial ownership, control and possession of his father. The learned counsel contends that Respondent No.1 had correctly declared the full extent of all immovable properties that are actually in his direct ownership, control and possession. He has not committed any illegality by not declaring the land that was only nominally in his name but was actually and beneficially owned, controlled and possessed by his father . The learned counsel has drawn our attention to the relevant land revenue bills and receipts showing that the same were being issued and paid in respect of land in his possession, ownership and control. The remaining land was being cultivated by his father who was receiving revenue bills and paying the same in relation thereto. He maintains that there is no dispute regarding authenticity of the said documents. The learned ASC further submits that the land in question disclosed by him was ancestral property that devolved on Respondent No.1 through a family settlement and any omission to declare the same in the nomination papers could not be fatal for his case. The learned counsel argues that there could not have been any ill intent or motive behind the omission of Respondent No.1 to mention the said land in the nomination form. He maintains that Respondent No.1 had declared 683 acres of agricultural land in his nomination form. He would gain no conceivable incremental advantage or benefit from hidin g a few acres of land specially when the same was admittedly not even purchased by him but devolved on him and his children through a family settlement. He also maintains that Resp ondent No.1 was contesting election for the Provincial Assembly for the first time and was not fully aware of the requirement to be fulfilled in declaration of his assets. The learned ASC has emphasized that the Appellant seeks not the rejection of a nomination paper but the voiding of an election. Under Section 156 of the Election Act, 2017 ("the Act"), an election can only be declared void if the nomination of the Returned Candidate was invalid or procur ed or induced by any corrupt or illegal practice. He maintains that there is a higher test than that prescribed for rejection of a nomination paper and mere incorrectness in any of the particulars is not sufficient to void the election. The learned ASC maintains that in order to void an election it must1 1
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be shown that mis-statement in the nomination form is of a kind to justify an inference of corrupt practice. It must be established that the candidate intentionally made a false statement/declaration or if a statement was made in the circumstances so as to rule out the likelihood of a bona fide error. He relies on Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189), Shakeel Awan v. Rasheed Ahmed (PLD 2018 SC 643) and Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128 ). He finally submits that the ratio of the judgments relied upon by the learned counsel for the Appellant in support of his contentions is not attracted to the facts and circumstances of the present case. 5. We have heard the learned counsel for the parties and examined the available record with their assistance. At the very outset, we have noticed that Respondent No.1 did not disclose his entire landholding in Deh Khedkar , District Larkana which admittedly consists of 140.24 /2 acres. Out of the said holding he only declared 61 acres but did not disclose the rest which according to him had been transferred in his name by way of a family settlement agreement executed in 2014. He also admits that the holdings of his minor sons were also not disclosed in the relevant documents. Respondent No.1 attempted to explain away his failure to disclose the said assets by stating that after the demise of his paternal grandmother, the land that stood in her name was distributed amongst her legal heirs i.e. Munawar Ali Abbasi and others. At that point in time, a family settlement with regard to the entire land was entered into. In consequence, Respondent No.1 and his minor sons received substantial land. This was duly transferred in their respective names. It was further submitted that only that part of the land was disclosed in the nomination papers and other related documents which had been transferred and was in the possession of Respondent No.1. The rest was not disclosed because it was under the control and supervision of his father who was allegedly the real beneficiary of the said land. He was supervising and overseeing its cultivation and also paying land revenue on the same. This situation had allegedly existed since the private partition dated 17.10.2014. Admittedly, the family partition was duly implemented in all revenue records and the respective shares of all beneficiaries of the family partition were duly reflected in all requisite records as owners. 6. On the basis of facts and circumstances narrated hereinabove and in view of the admission on the part of Respondent No.1 that there was failure on his part to disclose certain assets, the only question requiring determination by us is whether such disclosure was required under the law. If so whether the explanation offered by Respondent No.1 is legally acceptable so as to provide a defence against the rigours of disqualification under the Election Act, 2017 and more importantly Article 62(1)(f) of the Constitution. 7. Perusal of the record indicates that the affidavit filed by Respondent No.1 alongwith his nomination papers admittedly does not disclose all assets owned by him. Form "A" is the nomination paper whereas form "B" is the statement of assets and liabilities, which are available on the record. We also notice that the nomination papers are accompanied by a declaration which is required to be sworn under oath and was indeed sworn as such by Respondent No.1, pursuant to a judgment of this Court in the case reported as Speaker , National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678). The candidates were required by this Court to submit affidavits disclosing all assets. In paragraph 8 of the said judgment it was clarified that failur e to file such affidavit before the Returning Officer would render the nomination papers incomplete and liable to rejection. In addition, if the affidavit or any part thereof was found false then it shall have consequences as contemplated by the Constitution and the law. The judgment also provided that since the affidavit was required to be filed in pursuance of the orders of this Court, if any false statement was made therein, it would also entail such penalty as is of filing a false affidavit before this Court. Admittedly, Respondent No.1 filed such affidavit which was not true and was patently deficient insofar as it failed to accurately disclose all assets of Respondent No.1. 8. Section 137(4) of the Act provides that where a Member submits a statement of assets and liabilities which is found to be false in material particulars, he may, within 120 days from the date of submission of the statement be proceeded against for committing the offence of corrupt practice. While it is correct that the Returning Officer has been given the power to allow correction of mistakes, errors and omissions in the nomination papers within a specified time but in the instant case no attempt was made to correct such omission at any stage.1
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9. Section 156 of the Act provides the grounds for declaring election of a Returned Candidate as void. Grounds "a" and "c" stipulate that: "(a) the nomination of the returned candidate was invalid or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice". 10. In terms of Section 137(4) of the Act reproduced above, submission of a statement of assets and liabilities, which is found to be false in material particulars constitutes corrupt practice. More importantly , the declarations given by Respondent No.1 under solemn affirmation as part of his nomination papers, and the affidavit submitted by him pursuant to the judgment of this Court in the case of Speaker, National Assembly ibid also exposes him to disqualification not only under the provisions of the Election Act but also under the provisions of Article 62(1)(f) of the Constitution. By reason of making a false statement under oath, Respondent No.1 ceases to be qualified to be elected or chosen as a Member of Majlis-e-Shoora (Parliament) because he cannot be termed as righteous and honest. The false statement having been made in the nomination papers, in the statement of assets and in the affidavit exposes Respondent No.1 to serious legal consequences under the law as well as the Constitution. 11. The learned counsel for Respondent No.1 has taken great pains to argue that the explanation for non disclosure of some of his own assets and those of his minor children to the effect that the said land although in Respondent No.1' s name was actually under the control and possession of his father who was the real beneficiary and was also paying the land revenue as evidenced by receipts of land revenue paid to the concerned authorities by his father should be accepted by this Court. He stressed that the explanation is reasonable and plausible. 12. We are unfortunately unable to agree with the contention of the learned counse l for Respondent No.1. It is clear and obvious that: (i) The land in question was transferred in favour of Respondent No.1 as far back as 2014 by way of a written family settlement which was duly implemented in all revenue records; (ii) It is not the case of Respondent No.1 that he did not know about such transfer or that such transfer was undertaken without his knowledge or consent; (iii) By reason of the family settlement and its implementation in the revenue records, the name of Respondent No.1 appeared and continues to appear in all records as the owner of the property; (iv) The proprietary rights, title and interest in such property clearly vest in him; (v) A part of such land was admittedly acquired by the Government of Sindh and there is no denial of the fact that compensation determined by the Land Acquisition Collector was received by Respondent No.1 as owner; and (vi) The fact that the father of Respondent No.1 may be administering his land as his agent or nominee and may also be receiving the benefits/income derived from the said land may reflect a mutual family arrangement. It does not detract from the fact that Respondent No.1 is the owner of the said land which constitutes his asset. All proprietary rights, title, ownership and interest in the said land vest in him. He has the power to sell, alienate and dispose of such properties without any legal or procedural restriction, hitch or hindrance in his way . 13. The mere fact that land revenue may have been paid by the father of Respondent No.1 also does not improve his case. We have specifically asked the learned counsel for Respondent No.1 who would be liable to pay land revenue and other public dues against the said land in case there was default in payment of the same. He has hesitatingly admitted that the person liable to pay such defaulted amounts would be Respondent No.1. Even in terms of provisions of Section 74 of the West Pakistan Land Revenue Act, 1967 the land revenue and all other Government dues payable against a particular piece/tract of land are recoverable from a person whose name appears as owner of such land in the revenue records. This is irrespective of who may be cultivating or allegedly receiving its benefits as an agent or nominee of the real owner. It is also significant to note that Respondent No.1 neither produced his father as a witness before the Election Tribunal nor produced any other credible evidence to establish his half hearted plea of Benami ownership, other than revenue payment receipts which were found by us to be insufficient to establish his plea. 14. The learned counsel for Respondent No.1 has also emphasized the fact that a bonafide error or mistake of fact or law may be condoned and save a person from being hit by the rigours of Election Laws as well as the
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Constitution. In this regard, he has referred to Muhammad Asif v. Muhammad Usman Dar (2018 SCMR 2128 ) and Shakeel Awan v . Rashid Ahmed (PLD 2018 SC 643 ). 15. As far as the case of Khawaja Muhammad Asif (supra) is concerned, in paragraph 9 of the said judgment it was held as follows: "9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omis sion would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper . Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty . As mentioned earlier even the proviso to section 14(3) (d) of RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of section 12 of RoPA would not prevent a candidate of contest election on the basis of another validly filed nomination paper . Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62(1)(f) in the Constitution. All non-disclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar v. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an elemen t of bad intention with regard to an undeclared asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62(1)(f) of the Constitution cannot be invoked to disqualify an elected member for life." 16. It is clear from perusal of the afore-noted paragraph that no set formula can be fixed with regard to any omission to list an asset in the nomination papers and make a declaration of disho nesty and impose the penalty of lifetime disqualification. It has been held that unless dishonesty is established in appropriate judicial proceedings, Article 62(1)(f) of the Constitution cannot be invoked to disqualify an elected member for life. In the same vein, in the case of Malik Shakeel Awan (ibid), while summing up the law on this aspect of the matter , Sh. Azmat Saeed, J (in his majority opinion) held as follows: "3. Even otherwise, the present lis pertains to the validity of a judgment of the Election Tribunal challenged through the instant appeal under Section 67(3) of the Representation of the People Act, 1976 (RoP A) while through the question raised a very wide net has been cast encompassing also the jurisdiction of this Court under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as well as the impact of various provisions relating to qualifications and disqualifications of Members of the Parliament and the Provincial Assemblies. Several of the questions raised obviously do not arise at the lis at hand, while the other have been answered definitively by this Court in its various judgments. 4. In our legal system, law evolves brick by brick and from judgment to judgmen t. If the judgments pertaining to electoral disputes rendered by this Court are carefully read, objectively understood and the ratio thereof correctly identified, it would be clear and obvious that principles of law, in this behalf, appear to have been settled and consistently applied to the facts of each individual case. The difference in outcome, if any, is the result of difference in the facts of each case. Such principles of law do not require any further clarification on hypothetical considerations. The confusion, if any , is not in the judgments. 5. This Court, for that matter any court, seized of a lis is required to decide the same rather than to embark upon an academic exercise. We cannot shy away from adjudicating upon the lis that comes before the Court without
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attempting to ascertain and identify the principles of law as developed through the interpretative process of the previous judgments of this Court and apply the same to the facts of the case." 17. Therefore, we have no hesitation in holding and reaffirming that this Court is indeed also a "Court of Law" which can issue a "declaration" within the purview of Article 62(1)(f) of the Constitution. Any other interpretation would be absurd and illogical. It would amount to holding that this Court despite being the highest Court of the land is not a "Court of Law" within the meaning of Article 62(1)(f) of the Constitution. Surely the legislature when framing the Constitution (Eighteenth Amendment) Act, 2010 could not have intended to introduce such a blatant and glaring absurdity in as important a document as the Constitution of the country . 18. It was further held in the said case as follows: "13. Where a misstatement or an inaccuracy or concealment is established, the candidate/member would always have the opportunity to offer an explanation. Such explanation may or may not be found acceptable. Such is the ratio of the judgment of this Court rendered in the case reported as Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others (2016 SCMR 733). In the said case, an Election Petition filed before the Election Tribunal. In the proceedings, it stood established that a criminal case registered against the candidate was not mentioned in his nomination papers as required. Such candidate offered an explanation which was accepted by this Court by way of the aforesaid judgment which is incidentally authorized by my learned brother Qazi Faez Isa, J., and I too was a Member of the said Bench. The said view i.e. in case of concealment, discrepancy and misstatement in the nomination papers an explanation thereof may be given by the candidate/member, which may or may not be accepted by the court. And only, if such explanation is found tenable no penal consequences would follow. The question of "strict liability" does not arise with regard to misstatements in the nomination papers. Such view was also followed in the judgments of this Court reported as Muhammad…
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