Monday 7 May 2012

Election Petition - Nomination Papers Rejected



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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