IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

BEFORE:

Mr. Justice Muhammad Shafi Siddiqui

Election Petition No. S-01 of 2018

Nida Khuro

Versus

Moazzam Ali Khan & others

Date of Hearing:

20.11.2018, 22.11.2018, 05.12.2018 and 19.12.2018

Petitioner:

Through Mr. Mukesh Kumar G. Karara along with Mr. Sajjad Muhammad Zangejo Advocates

Respondent No.1:

Through Mr. Salahuddin Ahmed along with Mr. Muhammad Basim Raza Advocates

Respondent No.12:

Through Mr. Nusrat Hussain J. Memon Advocate.

On Court notice:

Mr. Shahryar Imdad Awan, AAG Sindh.

J U D G M E N T

Muhammad Shafi Siddiqui, J.- Petitioner through instant petition has challenged the election of respondent No.1 as being allegedly based on invalid nomination.

2. Petitioner claimed to have contested recent General Elections 2018 along with respondent No.1 and others wherein respondent No.1 was declared as returned candidate. Petitioner, however, claimed to have been chosen by her party on the reserved seats. The main ground seeking invalidation of the nomination papers of respondent No.1 is a false declaration of assets.

3. The petition was filed on 11.09.2018 against 17 respondents, which does not include Election Commission of Pakistan. After service of notice and summons respondent No.1 filed written statement wherein allegations contained in the petition were denied and some preliminary objections were raised. On 22.10.2018 following issues were framed:-

i) Whether the election petition is not maintainable according to law?

ii) Whether failure of the respondent No.1 to disclose his assets in the nomination papers would not entail his disqualification?

iii) Whether the respondent No.1 has made a false declaration under solemn affirmation which could entail his disqualification from being a member of Provincial Assembly (PS-11 Larkana-II)?

iv) Whether the petition is liable to be dismissed on account of the Election Commission of Pakistan and the Returning Officer for PS-II Larkana-II not being impleaded as respondents in the instant Election Petition?

v) Whether the respondent No.1 willfully and dishonestly concealed his agricultural land holding in his nomination form?

vi) Whether the undeclared agricultural land holding, if disclosed, could be made a ground to preclude the respondent No.1 from contesting the election?

vii) What should the judgment be?

4. From petitioner’s side affidavit-in-evidence of Nida Khoro/ petitioner was filed and she was subjected to cross-examination. She produced documents along with her affidavit-in-evidence as Ex.P/1 to P/25. Three additional documents were also produced, which were confronted by respondent, which however were exhibited as Ex.P.26 to P/28.

5. From respondent’s side one Imdadullah Tapedar was examined as Ex.D/12 who produced the revenue record as Ex.D-4. Moazzam Ali Khan/respondent No.1 also filed his affidavit-in-evidence and exhibited documents as Ex.D/1 to D/10, some of which are disputed as being photocopies.

6. It is the case of the petitioner that the affidavit filed by the respondent No.1/returned candidate along with nomination papers does not disclose all assets as owned by respondent No.1. Form ‘A’ is the nomination paper, whereas Form ‘B’ is the statement of assets and liabilities, which is exhibited as Ex.P/2 along with affidavit of the returned candidate. A statement of assets and liabilities is also attached, as stated above, which discloses agricultural land (i) in Deh Khedkar, District Larkana admeasuring 61 Acres, (ii) in Deh Raju Dero, District Khairpur admeasuring 622 Acres and (iii) Otaq/Bethak in Muhallah Waleed, Larkana. The statement of assets and liabilities however further disclosed moveable assets. It is urged that in the revenue record the land at Deh Khedkar, actually owned by respondent No.1 is 140-24½ Acres.

7. Respondent No.1 through evidence has attempted to explain as to why only 61 acres of agriculture land at Deh Khedkar was disclosed in the statement of assets, leaving behind further additional land, actually entered in his name in the revenue record. It is disclosed by respondent No.1 in paragraph 10, 11 and 12 of the affidavit-in-evidence as to why instead of 140-24½ Acres only 61 Acres was declared. He (respondent No.1) submitted that after sad demise of paternal grandmother the land that stood in her name was liable for distribution amongst her legal heirs i.e. Munawwar Ali Abbasi and others. At that point of time a family settlement with regard to entire land was entered into for many reasons, as disclosed therein.

8. I have heard the learned counsel, for the propositions and contentions as they have raised, and also perused the record.

9. The Election Act, 2017, though provide an earlier scrutiny of the nomination papers before Returning Officer and/or Election Commission, which has its own parameters and frame to adjudge nomination of a candidate as invalid, however, this election petition is filed under Election Act, 2017 which seeks the nomination of respondent No.1 as invalid, having not declared entire assets. Section 156 of Election Act, 2017 provides grounds to render the nomination invalid and returned candidate being disqualified.

10. Initially there was only Section 156(1) under the law i.e. Election Act, 2017 that could on its interpretation, render the nomination of a candidate as invalid or the candidate from being disqualified on account of concealment of assets and liabilities, however, the Hon’ble Supreme Court in the case of Speaker National Assembly of Pakistan v. Habib Akram (PLD 2018 SC 678) set the mechanism wherein it was further clarified that failure to file such affidavit, as referred above, before the Returning Officer would render nomination paper incomplete and liable to rejection. Initial step to reject the nomination papers of a contesting candidate is now left for behind. It is to be seen whether on alleged concealment, the returned candidate has disqualified himself as being elected member and holding seat and that corrupt practice was induced or exercised by returned candidate.

11. Issues No.(i) and (iv), being preliminary issues, are dealt with first and since could be decided by common reasoning are being taken up together. Similarly, Issues No.(ii), (iii), (v) and (vi) are common and eventually are being dealt with by common reasoning.

Issues No.(i) and (iv)

12. It is claimed by respondents that this petition is not maintainable on the sole ground that the petitioner has not impleaded Election Commission of Pakistan.

13. Section 143 of the Elections Act, 2017 provides details of the parties required to be arrayed as respondents. It contemplates that only contesting candidates shall be joined as respondents in the Election Petition whereas Election Tribunal may direct the petitioner to join any other person as respondent against whom any specific allegation of contravention of this Act has been made. As apparent from the reading of this section, it was obligatory upon the petitioner to implead the contesting candidates/parties only whereas it was up to Election Tribunal who may direct the petitioner to join any other person as respondent against whom any specific allegation of contravention of this Act has been made.

14. This is not case of the petitioner whereby the Election Commission of Pakistan, would have been felt and considered necessary, to be impleaded since the contravention, as allegedly raised, is of such nature which could at best be decided in presence of the contesting candidates alone hence I do not see any reason to reject and/or dismiss the Election Petition on this ground alone as no violation apparently of Section 141 and 142 and in particular of 143 is established. The issues in hand are thus answered in “Negative”.

Issues No.(ii), (iii), (v) and (vi)

15. These issues are common in nature. The basic theme of the allegations is that entire assets in the nomination papers have not been disclosed and this would entail his disqualification.

16. This is neither a stage where nomination paper is being scrutinized, as if it is before the Returning Officer, under section 112 of Election Act 2017, nor this lis is an appeal against order of the Returning Officer or election commission. This is a petition under section 139 of Election Act, 2017 and this Tribunal is the only forum available under the law to challenge the election on the touchstone of grounds, as framed by law. It is thus, to be seen by this Tribunal as to whether the alleged non-disclosure would entail penal consequences and would render him disqualified as being member of the Provincial Assembly.

17. A brief history in respect of the land in question as such is necessary.

18. The returned candidate has filed affidavit in support of nomination papers comprising Form ‘A’ and Form ‘B’. Form ‘B’ requires a contesting candidate to provide details of all assets as held by him/her within or outside Pakistan along with moveable assets. The liabilities are also required to be disclosed under Form ‘B’, constituting a part of nomination paper. A list of the properties attached to fulfill the above requirement shows that agricultural land at Deh Khedkar, District Larkana is disclosed but it is only 61 Acres as against 140-24½ Acres. In addition to the above, agricultural land in Deh Raju Dero, District Khairpur measuring 622 Acres and an Otaq/Baithak in Mohallah Waleed, Larkana were also disclosed.

19. Let us now see the reasons, as taken in defence by respondent No.1 of non-disclosure of this asset which would entail the consequences of the nature as contemplated by petitioner, while it is being judicially determined. The concealment has to pass through a test as provided under the law to follow the consequences. The returned candidate in paragraph 8 of the affidavit-in-evidence stated that Munawwar Ali Khan Abbasi, who was his father, was head of the family and had exclusive control over entire land including the land in the name of respondent No.1. In the year 1994 it was actually 66.30 acres of land at Deh Khedkar, District Larkana when he was only 19 whereas control and possession for the rest of the land was continued to be with his father Munawwar Ali Khan Abbasi. It was only in the year 2014 when on account of sad demise of paternal grandmother that all assets of the family were called in a pool, which, in terms of affidavits and the documents attached, were subjected to a private partition in the year 2014. On the basis of this private partition, as held on 17.10.2014 the Assistant Commissioner Larkana transferred the respective shares to the individuals who were family members of Munawwar Ali Khan Abbasi, the father of returned candidate.

20. No doubt respondent No.1 Moazzam Ali Khan was enjoying the area of 140-24½ Acres on the basis of this private partition, however, for all intent and purposes this was only recorded in the record whereas actual and physical possession remained with the head of the family Munawwar Ali Khan Abbasi and in support whereof he has produced challans and receipts of 2016, 2017 and 2018, which challans and receipts disclose the name of Munawwar Ali Khan Abbasi, as far as subject land, allegedly not disclosed in the assets is concerned. The above reasoning at the initial scrutiny before Returning Officer may not be enough as far as defence is concerned, however, question now arises as to what benefit could have been achieved by respondent No.1 by not disclosing such additional land in the statement of assets at this stage. It is the intention which matters and the nature of concealment that may automatically entail or ended up in disqualification of a member or invalidation of nomination paper.

21. There is no cavil to this proposition that the new election law i.e. Election Act, 2017 is articulated for a transparent elections and to facilitate general public to realize what assets and liabilities their contesting candidates own and owe respectively and eventually the yearly scrutiny would decide as to whether any additional assets were made or the liabilities were added in the “statement of assets and liabilities” of the candidate. Thus, apparently it seems that the main purpose of this exercise is to enable the contesting candidates to be subjected to a transparent scrutiny of the assets and liabilities, which he/she may have made or added up. A candidate may be asked to justify any added asset in his assets and so also the liability once he enters the public office.

22. The test before the Returning Officer was lighter as any non-declaration of assets could lead to rejection of subject nomination papers and not any other nomination paper, which was otherwise valid. Even the defected nomination papers could be re-considered, once the defects are remedied. In this case nothing happened before the Returning Officer and the Election Commission. It is only a late disclosure to the petitioner as far as alleged concealment/non-disclosure of assets is concerned and hence jurisdiction of this Tribunal was invoked and the frame of law is different as it is now being judicially determined whether on such count of alleged concealment, a member could be disqualified from being elected member.

23. The Elections Act, 2017 provides a time frame to invoke the jurisdiction of this Tribunal whereas under general law a declaration of dishonest by concealment of assets can be sought at any time after such concealment would be known to an aggrieved party. The petitioner is seeking disqualification of the returned candidate under Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 as some assets have been deliberately concealed, as alleged, and hence since a judicial determination is being made on the aforesaid touchstone, therefore, it is necessary to scrutinize the intention of the parties as it would ultimately be of grave significance as far as candidates are concerned.

24. The Hon’ble Supreme Court in the case of Khawaja Muhammad Asif v. Muhammad Usman Dar & others reported in 2018 SCMR 2128 held that while considering the case of dishonesty in judicial proceedings what should not be ignored lost sight of is that on account of an inadvertence or honest omission on the part of the contesting candidate, legitimately acquired asset should not be labeled as a tool of dishonestly to disqualify. Non-disclosure would certainly depend upon subject assets, the nature of the assets, the mode and the method on the basis of which it was acquired. A candidate may opt bonafidely not to disclose an asset as he may have felt that he was never a beneficial owner but the test that is being undertaken here is the intention of the candidate which would make him an honest or dishonest person.

25. In the instant case the subject property, allegedly not disclosed in the nomination papers, is only a property that came in his (respondent’s) pool through a family partition without any financial involvement. It was never purchased or acquired through any other means. Why would he (respondent No.1) not disclose such assets which came in his pool under a family arrangement as he was not supposed to disclose the source from which it was acquired? In the present set of facts, the test is lighter as against any other asset which was otherwise acquired through financial means.

26. The Hon’ble Supreme Court in the aforesaid case of Khawaja Muhammad Asif (Supra) in paragraph 9 laid down as under:-

“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 omission 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 CIVIL PETITION NO. 1616 OF 2018 9 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 to 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 nondisclosures 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 vs. 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 element of bad intention with regard to an undeclared CIVIL PETITION NO. 1616 OF 2018 10 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.”

27. In the present set of facts there is not even a remote presumption that such assets were acquired by a source not supported by law. The only allegation is that it was not declared. To my understanding this was not the intention of the legislature as far as the test is concerned at this stage.

28. The Hon’ble Supreme Court in the aforesaid case has further held that it is the credibility of the explanation that matters as to whether nondisclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context alone and certainly not in a case where non-disclosure of clean asset is only inadvertent omission. The Hon’ble Supreme Court has relied upon a judgment in the case of Rai Hassan Nawaz Vs. Haji Muhammad Ayub (PLD 2017 SC 70), paragraph 8 of which is reproduced as under:-

“8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do 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 are 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 a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under Section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in Section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators.”

29. In the case of Muhammad Hanif Abbasi v. Imran Khan Niazi reported in PLD 2018 SC 189 it has been held as under:-

“The insistence by learned counsel for the petitioner that any error or omission in the declaration of assets by a candidate for election or a legislator incurs his disqualification under Article 62 (1) (f) of the Constitution posits a wide proposition of law. If at all, this may have limited relevance where the context involves corruption or money laundering in state office, misappropriation of public property or public funds, accumulation of assets beyond known means or abuse of public office or authority for private gain. These allegations are not germane to the present case. There is no involvement here of public property or funds, abuse of public office and authority, corruption or breach of fiduciary duty. Consequently, the argument of the learned counsel for the petitioner on this score fails.”

30. The facts of the case of Muhammad Hanif Abbasi (Supra) are exactly similar to the extent that no allegation of misappropriation of public money, misuse of the State office and/or public funds, accumulation of assets beyond known means or abuse of public office or authority for private gain was addressed. None of the allegations are available in the present case against the returned candidate/respondent No.1 and hence test of scrutiny is different than in cases where a candidate is being subjected to the aforesaid allegations. The tools as such for the test are different for different set of allegations. Thus, the allegations, as raised by the petitioner, do not come within the frame of law and in particular paragraph 8 of the judgment of the Hon’ble Supreme Court in the case of Rai Hassan Nawaz (Supra). The law does not envisage that every non-disclosure of asset would end up in an ultimate disqualification unless the mala fides are attributed and source to acquire such assets are not transparent and vague reasons were assigned as to the non-disclosure of such assets.

31. In view of above facts and circumstances, I am of the view that the alleged non-disclosure is not the one that may ultimately lead to invalidation of nomination papers or disqualification as being member of the Assembly, hence these issues are answered in “negative”.

Issue No.(vii)

32. In the light of above discussion, instant petition stands dismissed along with pending application however with no orders as to costs.

Dated: Judge