Present: Sagheer Ahmad Qadri, Kh. Imtiaz Ahmad and Ch. Muhammad
Younis, JJ.
Malik MUHAMMAD SAMEEN
KHAN--Appellant
versus
RETURNING
OFFICER etc.--Respondents
Election Appeal
No. 1 of 2012, heard on 10.1.2012.
Representation
of the People Act, 1976 (LXXXV of 1976)--
----S.
14(3)--Election petition--Rejection of nomination papers--Defect of substantial
nature--Nomination papers on basis of misleading information about
loan--Defaulted in payment of income tax and shown a loan worth less amount
obtained from Bank whereas actual amount was Rs. 3,95,000/- that mentioning of
approximate figure of Rs. 3,50,000/- did not amount to concealment of material
facts--No ground for rejection of nomination papers--Validity--Only ground on
basis of which Returning Officer rejected nomination papers was that
information was not correctly recorded in nomination papers about exact amount
of loan--There was nominal difference of Rs. 45,000/- between information
provided and information received and as mentioned appellant had not committed
any default, therefore, it can easily be said and it was agitated for appellant
that he had provided approximate information about loan--If nature of defect
and objections were seen, the appellant did not conceal factum of securing of
loan from ZTBL and amount of Rs. 3,50,000/- was shown but actually it was Rs.
3,95,000/- hence difference of Rs. 5000/- could not be treated as substantial
defect or concealment by appellant--Penal provisions only could be imposed
until acts or omissions were committed by a person with mens
rea, which element was missing--Appeal was allowed. [P. 283] A, B & C
2003
MLD 222 & 2003 PLR 1690, ref.
Syed Intekhab Hussain Shah, Advocate
for Appellant.
Sheikh Zameer Hussain, Advocate for
Respondent No. 2.
Mr. Sadaqat Ali Khan, Additional A.G. for Respondents.
Date of hearing:
10.1.2012.
Judgment
Sagheer Ahmad Qadri, J.--Malik Muhammad Sameen Khan son of Malik Muhammad
Muzaffar Khan resident of Mauza
Gharebwal Tehsil Pindigheb District Attock has
preferred this appeal against the order dated 2.1.2012 passed by the Returning
Officer for PP-18, Attock-IV Pindi
Gheb whereby Bye-Elections are notified to be held
according to the schedule issued by the Election Commission of Pakistan. The
appellant submitted his nomination papers and Respondent No. 2 Bashir Ahmad son of Jahan Khan
resident of Makial Tehsil Pindi Gheb District Attock, another candidate, who has also filed his
nomination papers, raised objections while submitting an application wherein it
was brought into the notice of the Returning Officer that appellant was owner
in possession of thousands of kanals of agricultural
and urban land situated in Districts Islamabad and Attock
etc. and was earning lacs of rupees but he has not
disclosed this fact and he is a defaulter in payment of income tax and other
Government dues; that he has shown a loan worth Rs. 3,50,000/- obtained from
ZTBL, Pindi Gheb whereas
the actual loan was worth Rs. 3,95,000/- which fact intentionally with mala
fide has been concealed thus his nomination papers on that score are liable to
be rejected.
2. On the day fixed for scrutiny of the
nomination papers, the Returning Officer as revealed from the order dated
2.1.2012 annexed with this appeal while rejecting the nomination papers of the
appellant observed:
"Rejected
on the basis of misleading information regarding loan from ADBP, Pindigheb. The undersigned confirmed from the
concerned Bank and the objection was correct as there was difference b/w the
loan shown in the N/Form & actual loan."
Feeling
aggrieved the appellant has preferred this appeal.
3. Notice was issued to the respondents.
Respondent No. 2 Bashir Ahmed son of Jahan Khan, rival candidate, who raised the objection on
the nomination papers of the appellant, has put in appearance through his
learned counsel.
4. Learned counsel for the appellant argued that
the impugned order whereby the nomination papers filed by the appellant were
rejected is illegal, against the law and facts of the case; that Respondent No.
1/Returning Officer passed the impugned order in violation of the settled
principles on the subject; that while rejecting the nomination papers the
Returning Officer ignored the fact that the appellant did not conceal any
information and provided the information about the loan secured from the ZTBL
and he had shown the figure of Rs. 3,50,000/- whereas actual amount was Rs.
3,95,000/-; that mentioning of approximate figure of Rs. 3,50,000/- does not
amount to concealment of material facts; that the Returning Officer did not
afford an opportunity to the appellant to further clarify any difference and
only on the basis of information received by him rejected the nomination
papers; that as no material facts were concealed nor appellant is shown as defaulter
in payment of any loan, thus, there are no grounds available for rejection of
the nomination papers filed by the appellant. Prayed that
while allowing this appeal impugned order be set aside and nomination papers
filed by the appellant be declared to be accepted.
5. On the other hand, learned counsel for
Respondent No. 2 (Sheikh Zameer Hussain,
Advocate) out rightly raised the objection that all the necessary parties were
not arrayed as respondents as other candidates had also filed their nomination
papers which were accepted by the Returning Officer, hence, in the absence of
the necessary parties this appeal is not maintainable. On merits, while
opposing this appeal learned counsel referred Section 12(2)(f)
of the Representation of the People Act, 1976 whereby a candidate was required
to submit on solemn affirmation statement specifying his assets and liabilities
as well as those of his spouse and dependents on the prescribed form along with
the nomination papers. Contended that as appellant has shown the loan secured
from ZTBL amounting to Rs. 3,50,000/- whereas the actual amount was Rs.
3,95.000/- thus he concealed the material facts rather the statement furnished
by him was incorrect, hence, under Section 14(3)(c) of the Act, ibid, his
nomination papers were rightly rejected by the Returning Officer. Learned
counsel during the arguments while referring Section 14(5A) of the Act, ibid
submitted that an Election Tribunal on the basis of any information of its own
or brought by anybody, if comes to the conclusion that some material
particulars were concealed and proper information was not laid before the
Returning Officer by a candidate then the candidature of a candidate can be
declared unlawful. While submitting copies of a loan provided by the Consumer
Protection Department of State Bank of Pakistan and Muslim Commercial Bank, Gharibwall Branch it was submitted that the appellant has
also concealed these loans obtained by him as no such information was provided
by him in the nomination papers. It was prayed that in addition to the
information concealed on the basis of which the Returning Officer has rejected
the nomination papers filed by the appellant the documents provided further
support the version of Respondent No. 2 that appellant willfully did not
provide correct information to the Returning Officer, hence, the impugned order
was lawful and does not call for interference by this Tribunal. Prayed that appeal be dismissed.
6. Learned Additional Advocate General, however,
while referring the Proviso annexed to Section 14 of the Representation of the
People Act, 1976 argued that as the difference between the loan amount
mentioned in the nomination papers i.e. Rs. 3,50,000/- and the actual amount as
brought on record through objection i.e. Rs. 3,95,000/- is not a substantial
difference, hence, the rejection of the nomination papers by the Returning
Officer is not sustainable in the eyes of law, thus, supported the arguments
advanced by learned counsel for the appellant.
7. We have heard the arguments addressed by
learned counsel for the parties and have gone through the available record.
8. Admittedly, there are some other candidates
who filed nomination papers along with the appellant and Respondent No. 2 and
their nomination papers have been accepted by Respondent No. 1/Returning
Officer but they have not been arrayed as party to this appeal. Technically
they are necessary parties, however, those candidates
as admitted by both sides before the Court never raised any objection on the
nomination papers filed by any of the candidates including the present
appellant Malik Muhammad Sameen
Khan and Respondent No. 2 Bashir Ahmad. Respondent
No. 2 raised the objection as already mentioned against the nomination papers
filed by the appellant. As the election process is to continue according to the
schedule and tomorrow i.e. 11.1.2012 is the last date for the disposal of the
appeal and nobody except the appellant has preferred appeal, therefore, we do
not feel it appropriate to enter into any such like controversies purely based
on technicalities, therefore, we propose to dispose of this appeal on merits
after hearing the present contesting parties before this Tribunal.
9. As far as the objection raised by Respondent
No. 2 which weighed with the Respondent No. 1/Returning Officer who rejected
the nomination papers filed by the appellant only remained confined about his
statement of assets and liabilities whereby in column of the bank loans etc. he mentioned Rs. 3,50,000/- as a loan
obtained from ZTBL, Pindi Gheb.
Apart from this amount he has also shown Rs. 4,00,000/-
a loan secured from Silk Bank, F-8, Islamabad
and Rs. 3,00,000/- from MCB, Pindi Gheb. The Returning Officer, as objection was raised,
according to the impugned order dated 2.1.2012 confirmed and when it was
informed to him that loan amount was Rs. 3,95,000/- instead of Rs. 3,50,000/-,
he on the basis of that information found the information provided by the
appellant as incorrect, hence rejected the nomination papers filed by the
appellant. It is an admitted fact that the appellant is not alleged by anyone
that he ever defaulted in payment of any loan including the loan secured from
ZTBL, Pindi Gheb. The only
ground on the basis of which the Returning Officer rejected the nomination
papers was that information was not correctly recorded in the nomination papers
about the exact amount of the loan obtained. There is a nominal difference of
Rs. 45,000/- between the information provided and information received and as
already mentioned appellant has not committed any default, therefore, in these
circumstances it can easily be said and as it was agitated by learned counsel
for the appellant that he provided approximate information about the loan. It
has been provided under Proviso (ii) annexed to Section 14(3) of the
Representation of the People Act, 1976:--
"the
Returning Officer shall not reject a nomination paper on the ground of any
defect which is not of a substantial nature and may allow any such defect to be
remedied forthwith, including an error in regard to the name, serial number in
the electoral roll or other particulars of the candidate or [his proposer or seconder] so as to bring them in conformity with the
corresponding entries in the electoral roll; and"
If the above
mentioned proviso is kept in mind, the legislature itself has provided that
while scrutinizing the nomination papers filed by a candidate until &
unless a defect of substantial nature occurs in the nomination papers,
ordinarily these may not be rejected. Herein this
case, if the nature of the defect and the objections are seen, the appellant
did not conceal the factum of securing of loan from ZTBL and the amount of Rs.
3,50,000/- was shown but actually in the record it was
Rs. 3,95,000/-, hence, difference of Rs. 45,000/- in these circumstances cannot
be treated as a substantial defect or concealment by the appellant. Rejection
of nomination papers is a penalty for the alleged commission of offence or
violation of certain provisions of law. It has now been settled that penal provisions
only can be imposed until certain acts or omissions are committed by a person
with mens rea, which
element in the present case is missing. Reference in this respect can be seen
in "Umar Ayub Khan
versus Returning Officer NA-19 N.W.F.P. District Haripur/Additional
District and Sessions Judge, Haripur and
another" (2003 MLD 222)
and "Haji Khuda Bux Nizamani Versus
Election Tribunal and
others" (2003 PLR 1690). Resultantly, while allowing this appeal we set
aside the impugned order dated 2.1.2012 passed by the Returning Officer whereby
nomination papers filed by the appellant were rejected. The nomination papers
filed by the appellant are hereby accepted, however, with no order as to costs.
(R.A.) Appeal allowed
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