P L D 1997 Quetta 115 (PLP)

AMIR-UL-MULK MENGAL, C J.-- We had disposed of Constitutional Petition No.9 of 1997 through our short order dated 28-1-1997 and here are the detailed reasons for the same. Relevant facts for filing the Constitutional Petition are that the petitioner is a candidate for Election from PB-14 Zhob-II. He filed his nomination papers also for NA-200 Zhob-cum-Killa Saifullah. Respondent No.1, APA Zhob is the Returning Officer for Constituency PB-14 Zhob-II. Respondent No. 2, who was at the relevant time a candidate for the said Constituency filed objection to the nomination paper of the petitioner, on as many as 16 counts. The most important objection was that the petitioner has not made a declaration of properties owned by him. On the day of scrutiny the Returning Officer rejected all the objections and declared the nomination paper of the petitioner as having been filed validly. The order is reproduced as under:

Feeling aggrieved of the acceptance of petitioner's nomination paper, respondent No.2, Raza Muhammad preferred an appeal before the Election Tribunal. During the hearing of the appeal, the appellant through an affidavit filed a list of properties in which he has got shares being legal heir of late Sheikh Meerak and Sadullah Khan alias (Janan). However, the order of the Returning Officer was set aside and case was remanded to the Returning Officer with directions to dispose of the objections filed by the appellant strictly in accordance with law. After remand of the case, the Returning Officer rejected the nomination paper of the petitioner vide order dated 8-1-1997, mainly on the ground that the objection raised by Raza Muhammad were of substantial nature and the omission on the part of respondents (petitioner herein) were of such nature which could not be allowed to be rectified at belated stage and which otherwise were intentional and deliberate. It is further, revealed that the petitioner firstly filed an appeal before the Tribunal but the appeal was returned as the Tribunal was functus officio. Having no alternate remedy the petitioner filed present Constitutional petition. On account of vacations no Division Bench was available thus, the petitioner rushed to the Hon'ble Supreme Court for getting a stay order, which was granted to him. However, the Hon'ble Supreme Court confirmed the stay granted in the chamber with direction that the petition shall be decided by the Division Bench of High Court. Urgent applications were moved for disposal of the petition and on availability of the Division Bench matter was fixed and heard. Mr. Fakhruddin G. Ebrahim, the main counsel appearing on behalf of the petitioner, canvassed that the Election Laws do not contemplate an order of remand and that the Returning Officer has fallen into error in holding that omissions in the nomination paper were of substantial nature and that the petitioner's applications under section 14(3) was belated. In fact the petitioner had no agricultural property at Zhob, however, he possesses agriculture and other property at Quetta but on account of inadvertent omission the agricultural property was declared as being situated at Zhob. It was argued that so far as ancestral agricultural land at Zhob, it was a typing error and not a deliberate omission. Mr. Fakhruddin G. Ebrahim urged that the object of Election Laws as is evident from its plain reading is to allow candidates to approach the "Political Sovereign". Therefore in section 14, subsection (3) of the Representation of the People Act, 1976 (Act No.LXXXV of 1976) the word "may" has been used instead of "shall". As such, according to learned counsel, 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 rectified forthwith. It was argued that although section 12(2) (viii) envisages that nomination paper of a candidate shall be rejected if he failed to make a declaration as regards to assets and liabilities of his own, spouses and dependents on the proscribed form as on the preceding 30th of June. This provision is to be read with section 14 of the Act. The petitioner in compliance with the said mandate of law duly made a declaration of such assets but on account of inadvertent omission, he wrongly stated property at Zhob whereas in fact the property was at Quetta. It was therefore argued that such omission was not deliberate because the petitioner could have no gains or benefit out of the same. Furthermore such omission was not of substantial nature to render the nomination paper to be rejected. It was argued that as far as future or expected shares in the joint ancestral properties, the petitioner gave details before the Election Tribunal. The error if at all any, was rectified. Mr. K.N. Kohli strongly opposed such contention. His main argument was that as per section 14 (3)(c) the nomination paper of the candidate may be rejected by the Returning Officer if any provision of section 12 or section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular. In this regard much stress was laid that the appellant himself disclosed during pendency of the appeal that he owns several properties but the fact remains that he did not disclose such property as belonging to him or to his spouse in the declaration of nomination paper. All such aspects were duly taken into consideration by the Returning Officer Zhob. The learned Returning Officer has rejected the nomination paper of the petitioner on the ground that during previous regime when he was a Minister, he used to live in his residence at Quetta which he did not declare as official bungalow of the Minister. This property therefore, should have been mentioned and non-mentioning of this property as well as remaining properties at Quetta were deliberate omission as such declaration and statement made by the petitioner were of substantial nature. Besides, Mr. K.N. Kohli invited our attention to another statement/declaration submitted by the petitioner before the Election Commission of Pakistan in which also he did not mention these properties as belonging to him. . Mr. Advocate-General, Balochistan supported the arguments of Mr. Fakhruddin G. Ebrahim and further submitted that the only question is whether omission to mention properties are of substantial nature or these are omissions which could be rectified by the Returning Officer under section 14(3)(d)(ii) of the Act. Deputy Attorney-General supported the impugned order and contended that it was incumbent on the part of the petitioner to have given all details of his assets and liabilities as required under section 12(2)(viii). Non-compliance of the aforementioned provisions would render the nomination paper of the petitioner to be rejected by the Returning Officer under section 14(c) of the Act. We have given our anxious consideration to the arguments so advanced. In the first instance, we have to reproduce relevant provisions of the Act, which are section 12(2)(viii) as well as section 14(3)(c). "(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the sconder and shall, on solemn affirmation made and signed by the candidate, accompany. (i)

(iii)

(iv)

(v)

(vi)

(vii)

(viii) A statement of assets and liabilities of his own, spouse, and dependents on the prescribed form as on the preceding thirtieth day of June. Section 14: (1)

(2)

(3) The Returning Officer may, either of his own motion or upon any objection by any person referred to in subsection (1), conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that

(a)

(b)

(c) any provision of section 12 or section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular; or In so far as declaration of assets and liabilities is concerned, the petitioner has filed a declaration of assets (page 20 of petition). As far as correctness of the same is concerned, it was the duty of the candidate/objector to have produced evidence that such entries were wrong or incorrect. Before the returning Officer at the time of scrutiny, no evidence was produced except two documents showing property belonging to grandfather of the petitioner. Therefore nomination paper of the petitioner were accepted. But during appeal the petitioner filed an affidavit stating that he owns share in some joint properties at Quetta. He had given a list of such assets (immovable properties) which were omitted to be declared in the nomination paper. Perusal of the same would show that all such properties are still in the name of his grandfather Sheikh Meerak Khan or his father Haji Saadullah Sheikh. Only at para.3 there is mention of a house at Khudaidad Road, Quetta which also belongs to late father of respondent. Similar reading of the said affidavit would reveal that a joint property was acquired but on further scrutiny, it was found that the very small portion of one (1) rod fifteen polls was left out. In such circumstances we have to see whether the petitioner's nomination paper could at all be rejected on such material. Admitted position is that not a single attested document was produced by Mr. Raza Muhammad to show that petitioner has assets and liabilities in his name, in the name of his spouse, or in the name of his dependents other than those mentioned in the statement, except two uncertified paper regarding property of Sheikh Meerak. However Mr, Kohli relied on the list given by petitioner himself before the Election Tribunal. Perusal of the same shows that one of such properties is in the name of the petitioner, these properties are joint and only by operation of Islamic law the petitioner would be entitled to his share as well as shares of his spouse. The question which is pertinent is whether it was incumbent upon the petitioner to have mentioned properties which have not yet been transferred either in the name of the petitioner himself or in the name of his spouse or dependents. The plain answer is 'No'. The reason being that the law requires only those assets and liabilities which belong to the petitioner, his spouse or his dependents, to be mentioned in the Declaration Form. Of course petitioner and his spouse might get their respective shares in such properties, but this will require certain legal formalities. The admitted position is that all such properties are still in the name of Sheikh Meerak (grandfather of the petitioner) and Saadullah Sheikh alias (Janan). None of these properties have been transferred in the name of petitioner or his spouse uptil date. Therefore, even if petitioner has now disclosed his such shares, but his nomination papers could not be rejected under section 14(3)(c) of the Act for non-mentioning of these properties because such properties have not yet been transferred in his name or in the name of his spouse or the dependents. Returning Officer has acted on mere conjectures as there was no material before him to conclude that the bungalow at Quetta and other properties ark recorded in the name of petitioner and his spouse or dependents. The very basis of rejection of nomination papers of the petitioner thus is missing. In such circumstances, we have no option but to accept this petition, Resultantly petition is accepted and it is declared that the petitioner is a validly nominated candidate from Constituency Pb-14 Zhob-II. The order of his rejection papers impugned in this petition dated 8th January, 1997 being illegal is set aside. We pass no orders as to costs. A.A./612/Q Petition accepted.