2024 PLP 1259 (MLD)

Art. 63(1)(o)

Elections Act ( XXXIII of 2017 ), S. 62 (10)

Rejection of candidate's nomination papers

Tax liability of candidate

Liability existing "at the time of filing of nomination papers"

Scope

Knowledge of tax liability

Subsection (10) of S.62 of the Elections Act, 2017, benefit of

Returning Officer rejected the candidate's nomination papers on the ground that as per a letter received from the concerned officer, a sum of Rs. 672,500/- was outstanding against him as income tax

Contention of the petitioner was that though no such liability was outstanding, nonetheless he paid the amount on the next day followed by issuance of No Demand Certificate by Federal Board of Revenue to him which was then placed before the learned Election Tribunal with his appeals

However, the Election Tribunal , relying on Art. 63(1)(o) of the Constitution held that since such liability existed "at the time of filing of nomination papers", the subsequent payment could not rescue the petitioner, and also the benefit of subsection (10) of S.62 of the Elections Act, 2017, was not given to the petitioner by observing that he could not say that he did not have knowledge of his tax liability

Letter in-question on which the Returning Officers had placed reliance, suggested that income tax liability of the petitioner for tax year-2022, which amount to Rs. 769,235/- was not paid, whereas the income tax return for that tax year placed on the record determined the tax payable as Rs. 73,095/-, and he (petitioner) had placed on record the paid challan of said amount

Therefore, it appeared that the letter-in-question might not be correct

In such circumstances, even the material relied upon by the Returning Officer for rejecting the Petitioner's nomination forms, was hardly sufficient to disenfranchise him

Thus, it could also not be said that the petitioner had deliberately suppressed his tax liability

Consequently, the benefit of subsection (10) of S.62 of the Elections Act, 2017, should have been extended to the petitioner when he had in any case cleared the alleged tax liability before the last date of scrutiny of nomination papers, and well before he filed appeals before the Election Tribunal

It is inopportune to disfranchise a candidate at the pre-election stage as that would deprive him of candidature if subsequently it is found that he was qualified

High Court set-aside orders passed by the Returning Officer as well as Election Tribunal while directing the Returning Officer to revise the list of validly nominated candidates accordingly

Constitutional petition , filed by the candidate, was allowed accordingly. Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-158, Naushero Feroze 1994 SCMR 1299 ref. Abdul Rahim Qureshi, Returning Officer, NA-231 (Malir-III), is present in Court (in C.P. No. D-88/2024]. Qazi Ayazuddin Qureshi, Assistant Attorney General, along with Riaz Ahmed, Director (Law), ECP and Sarmad Sarwar, Assistant Director (Law), ECP, Karachi Respondents 2 - 3. [In both Petitions). Judgment Adnan Iqbal Chaudhry, J.

The Petitioner is aggrieved of orders dated 27-12-2023 and 24-12-2023 passed by the Returning Officers, NA-231 (Malir-III) and NA-230 (Malir-II), Karachi, rejecting the Petitioner's nomination papers; which were then maintained by the learned Election Tribunal by a common order dated 05-01-2024 passed in Election Appeals Nos. 10/2024 and 11/2024 respectively.

2. The ground taken by the Returning Officers for rejecting the nomination papers was that as per a letter dated 24-12-2023 received from the Second Secretary (IR-Jurisdiction), a sum of Rs. 672,500/- was outstanding against the Petitioner as income tax. It is the case of the Petitioner that though no such liability was outstanding, nonetheless he had requested the Returning Officers to give him an opportunity to settle the same, but the Returning Officers declined. The Petitioner paid the amount on the next day i.e. 28-12-2023 and the Federal Board of Revenue issued a No Demand Certificate to him which was then placed before the learned Election Tribunal with his appeals under section 62 of the Election Act, 2017. However, the learned Election Tribunal relied on Article 63(1)(o) of the Constitution of Pakistan to hold that since such liability existed "at the time of filing of nomination papers", the subsequent payment could not rescue the Petitioner. The learned Tribunal was also not inclined to give benefit of subsection (10) of section 62 of the Elections Act, 2017, to the Petitioner by observing that the Petitioner could not say that he did not have knowledge of his tax liability.