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The Supreme Court has reiterated that it is now a well-settled principle that every non-disclosure or misdeclaration would not be sufficient enough to permanently disqualify a member of parliament or a candidate under Article 62 (1) (f) of the Constitution.
“The purpose and intention needs to be seen behind the non-disclosure or misdeclaration. The returned candidate would be disqualified only when if he/she has dishonestly acquired assets and is hiding them to derive certain benefits,” says an 11-page judgment authored by Justice Sayyed Mazahar Ali Akbar Naqvi.
The verdict was issued on a petition filed by a female politician, Shamona Badshah Qaisarani, who was disqualified for lifetimeover non-disclosure of her agricultural property inherited from her parents in the nomination papers.
“If the non-disclosure or misdeclaration is such that it gives an illegal advantage to a candidate, then it would lead to termination of his candidature,” the judgement added.
A three-judge bench, headed by Justice Umar Ata Bandial and comprising Justice Muhammad Qazi Amin Ahmed and Justice Sayyed Mazahar Ali Akbar Naqvi, posed questions as whether the omission of the appellant of non-mentioning the agricultural property inherited from her parents was sufficient enough to disqualify her permanently, and whether the declaration of disqualifying the appellant in terms of Article 62(1)(f) of the Constitution was based on proper scrutiny of the evidence evaluated by a court of competent jurisdiction and in accordance with the law laid down by this court.
In his judgment, Justice Naqvi referred to the SC ruling in Khawaja Muhammad Asif’s case wherein the court candidly held that merely the fact that a candidate has not declared an asset in the nomination papers would not end in his disqualification but it has to be seen whether the act of non-disclosure of the asset is with dishonest intent or not and only if there is dishonest intent behind the nondisclosure, the candidate would be disqualified.
The court also said that it is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not.
The court also cited Sheikh Rashid’s disqualification case wherein his rival candidate Shakeel Awan had sought disqualification of the respondent on the ground that the returned candidate/respondent deliberately concealed certain agricultural land in his nomination papers; declared his land holding to be 983 kanal and 17 marlas while it has been established on record that the respondent owned 1,049 kanal and 13 marlas and also not correctly disclosed the market value of certain immovable property.
However, the SC, by a majority 2:1 dismissed the appeal and held that in cases where the non-disclosure or misdeclaration gives an illegal advantage to a candidate, then such non-disclosure or misdeclaration would terminate his candidature.
If he has been “elected to his disqualification and consequent removal but the misdeclaration made by the respondent apparently did not offend any law, in that if he had disclosed his entire land holding and had shown the value of the said house to be forty eight million rupees he would still be able to contest the elections”.
“In Muhammad Hanif Abbasi versus Imran Khan Niazi (PLD 2018 SC 189), Faisal Arab, J, as he then was, while agreeing with the majority view observed that there can be many examples where it can be safely said that an omission on the face of it is not dishonest.”
The court noted that omission to list an inherited property or the pensionary benefits received by one’s spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be said that a member intentionally concealed its disclosure in order to cover some financial wrongdoing.
The court noted such omissions at best could be categorised as bad judgment or negligence but not dishonesty.
“In Murad Bux versus Kareem Bux (2016 SCMR 2042), the petitioner in the nomination papers filed for contesting local council election had failed to disclose that a criminal case is pending against him, which on objection raised by the respondent, led to rejection of his nomination papers.
“However, this court allowed the petition by holding that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest for elections and that the non-disclosure of a fact which otherwise, if disclosed, could not debar the petitioner from contesting the election, cannot be made a ground to preclude the petitioner from contesting the election.”
Justice Naqvi also referred Muhammad Siddique Baloch versus Jehangir Khan Tareen (PLD 2016 SC 97), wherein it is held that in cases involving a finding of fact about the disqualification of a returned candidate in election matters, such finding must be based on affirmative evidence and not on presumptions, inferences and surmises.
Regarding the present case, the judgment said that it is well settled that no man should suffer because of the fault of the court.
“There is an old maxim ‘actus curiae neminem gravabit’, which means that an act of court shall prejudice no man and the same becomes applicable in the present case as the learned fora below were under obligation to do justice with the appellant.
“This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law.
“In a case, where any undeserved or unfair advantage has been given to a party invoking the jurisdiction of the court (the respondent No 3 in the present case) and the same requires to be neutralised, the said maxim is to be made applicable.”
The court held that the Election Tribunal Multan disqualified the appellant in a slipshod manner.
“The act of the appellant at best could be termed as bad judgment or negligence and as the property was legitimately acquired through inheritance, the same could not be labelled as acquired through dishonest means.
“For this negligence, she could not be disqualified for life. Consequently, this appeal is allowed and the impugned judgment is set aside,” says the judgment.