2024 CLS 11

Other citations: 2022 LHC 6149 = 2024 CLC 85

[Lahore High Court/Election Tribunal]

Before Jawad Hassan, J

Malik Fahim Ullah Khan—Appellant

versus

The District Returning Officer and another—Respondents

Election Appeal No.03 of 2022/BWP, decided on 18^th August, 2022.

HEADNOTES

(a)   Elections Act (XXXIII of 2017) —

— S.  60 — Nomination for election — Scope — Bare reading of Form-B of the Elections Act, 2017 makes it quite clear that it does not put any restriction of enclosing/annexing income tax return with the nomination papers rather it only requires submission of statements of assets which include details of immoveable property and moveable assets and other allied details — Income tax returns are filed before the Federal Board of Revenue as per procedure and mechanism provided under the Income Tax Ordinance, 2001 which is normally filed by a candidate to show his/her assets and liabilities but it is not required under the Elections Act, 2017 because submission of statements of assets and liabilities through Form-B are dealt with under Section 60(2)(d) of the Elections Act, 2017. [Para. No. 11]

Khawaja Muhamamd Asif v. Muhammad Usman Dar and others (2018 SCMR 2128) & Rai Hassan Nawaz v. Haji Muhammad Ayub and others (PLD 2017 SC 70) relied.

(b)   Administration of justice —

— When law requires an act to be done in a particular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law. [Para. No. 11]

Muhammad Sarwar Ch., Advocate Supreme Court with Sultan Qadir Altaf and Makhdoom Kaleem Ullah Hashmi, Ch. Dilshad Ahmad, Advocates for appellant.

Naveed Khalil Ch., Additional Advocate General.

Muhammad Arshad Ali, Assistant Attorney General for Pakistan.

Muhammad Jafar, Law Officer for the Respondents/ECP with Mr. Irfan, District Election Commissioner.

Dates of hearing: 17^th and 18^th August, 2022.

JUDGMENT

Jawad Hassan, J:—This election appeal has been filed by the Appellant under Section 63 of the Election Act, 2017 (the “Act”) read with Rule 54 of the Election Rules, 2017 (the “Rules”) for setting aside order dated 11.08.2022 (the “impugned order”) passed by the Respondent No.2/Returning Officer, Constituency PP-241, Bahawalnagar-V who rejected his nomination papers.

FACTS OF THE CASE

2.           As per contents of this appeal, the Appellant, being candidate of PP-241, Bahawalnagar-V, submitted his nomination papers, which were rejected by the Respondent No.2 through the impugned order on the ground of non-enclosing statement of net assets and tax returns till 30th June.

APPELLANT’S SUBMISSION

3.           Mr. Muhammad Sarwar Ch., ASC, learned counsel for the Appellant inter alia argues that the Appellant had submitted his nomination papers after complying with provisions of the Act and the Rules but the impugned order has been passed by the Respondent No.2 in a slipshod and sketchy manner without examining the record; that the Appellant has enclosed complete details of his assets and liabilities through Forms A & B strictly as per Section 60(2) and 110(2) of the Act but his nomination papers have been rejected merely for not annexing/enclosing tax return which under the Act and the Rules, is not mandatory to be filed with nomination papers; that the word “tax return” has not been mentioned in the Act and the Rules therefore, the Respondent No.2 cannot demand for filing the same through the impugned order which is liable to be set-aside. In order to fortify his contention, he has relied on “P.I.C.I.C. Versus FAZAL CORPORATION (PVT.) LTD. and another” (PLD 1993 Karachi 671), “Messrs I.C.C. TEXTILE LTD. and others Versus FEDERATION OF PAKISTAN and others” (2001 SCMR 1208) and “MARHABA PAKISTAN INTERNATIONAL and others Versus HABIB BANK LIMITED and another” (2017 CLD 995).

RESPONDENTS SUBMISSION

4.           On the other hand, learned Law Officer Mr. Muhammad Jaffar appeared on behalf of Election Commission of Pakistan and stated that though it is a routine practice to file tax return by the candidates/voters with their nomination papers but under the Act and the Rules, there is no requirement to file the same as such.

PROCEEDINGS BEFORE THE COURT

5.           The case has been heard on 17^th and 18^th of August, 2022 at length and in terms of Section 63(3) of the Act and this appeal is being decided by this Tribunal within the time frame specified under Section 63(2) of the Act.

NUB OF THE MATTER

6.           The basic controversy involved in this petition is whether income tax return as required by the Respondent No.2 in the impugned order falls within the definition of assets and liabilities in terms of section 60(2)(d) of the Act?

DETERMINATION BY THE TRIBUNAL

7.           Primarily, the Appellant has challenged the impugned order whereby his nomination papers were rejected which reads as under:

“As the applicant has not enclosed the details of net assets and tax returns till 30th June, therefore, nomination form is hereby rejected”.

8.           Plain reading of above observation reveals that the Respondent No.2 has rejected nomination papers of the Appellant on the ground of non-enclosing statement of assets and liabilities and tax returns till 30th June. The version of the Appellant is that he has annexed with his nomination papers the complete true statement of assets and liabilities, however, it was not obligated upon him to annex with nomination forms income tax returns under the Act and the Rules. While on the other hand, counsel for the ECP produced original record and admitted the stance taken by learned counsel for the Appellant.

9.           Before proceeding further, it would be imperative to discuss the assets and liabilities as provided under the Act. However, Section 2(v) of the Act defines the ‘asset’ which means any property owned or held by a candidate or a member. Black’s Law Dictionary, Sixth Edition, p, 117 defines the assets in the following manner.

“Property of all kinds, real and personal, tangible and intangible, including, inter alia, for certain purposes, patents and causes of action which belong to any person including a corporation and the estate of a decedent. The entire property of a person, association, corporation, or estate that is applicable or subject to the payment of his or her or its debts.”

10.         The word ‘assets’ has been defined by the Hon’ble Supreme Court of Pakistan in “Messrs I.C.C. TEXTILE LTD. and others Versus FEDERATION OF PAKISTAN and others” (2001 SCMR 1208) wherein it has held that “assets is generally used in collective plural, and in commercial law it denotes the aggregate of available property, stock in trade, cash etc., belonging to a merchant or mercantile company. Asset is also used to signify the means which a person or bank or a corporation has as compared with his/its liabilities that is, its identity is separate and is not inclusive of debt or liabilities but is only comparable to them and in this sense the word ‘assets’ has been used to denote whole of the property”. It is noted that Form-A and Form-B are submitted as per Sections 62(2) and 110(2) of the Act. It would be advantageous to reproduce Form-B which deals with statement of assets and liabilities.

FORM B

[See sections 60, 110 & 137]

STATEMENT OF ASSETS AND LIABILITIES

I,………………………………………………………… candidate/ Member,*National Assembly/ Senate, Provincial Assembly, Punjab/ Sindh/ Khyber Pakhtunkhwa/ Balochistan from constituency……………………./ from the seats reserved for women/non-Muslims hereby declare that no immovable and moveable property, including bonds, shares, certificates, securities, insurance policies and jewelry, other than specified herein below, is held by me, my spouse(s) and dependent children on 30th day of June,_________.

ASSETS

*Details to be annexed.

VERIFICATION

I,……………………………………………………………………………….S/o,W/o,D/o…………………do hereby declare that, to the best of my knowledge and belief, the above statement of the assets and liabilities of myself, my spouse(s), dependent children is correct and complete as on 30th June……….. and nothing has been concealed therefrom.

Date……………………………………. Signature of the Candidate/ Member

____________________________

11.         Bare reading of above Form-B of the Act makes it quite clear that it does not put any restriction of enclosing/annexing income tax return with the nomination papers rather it only requires submission of statements of assets which include details of immoveable property and moveable assets and other allied details. Income tax returns are filed before the Federal Board of Revenue as per procedure and mechanism provided under the Income Tax Ordinance, 2001 which is normally filed by a candidate to show his/her assets and labilities but in the case in hand, it is not required under the Act because submission of statements of assets and liabilities through Form-B are dealt with under Section 60(2)(d) of the Act which is of much importance and reads as under:

60. Nomination for election.—(1) Any voter of a constituency, may propose or second the name of any qualified person to be a candidate for Member for that constituency:

Provided that no voter shall subscribe to more than one nomination papers either as proposer or seconder.

(2) Every nomination shall be made by a separate nomination paper on Form A signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, be accompanied by—

(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 for being elected as a Member;

(b) a declaration that he has opened an exclusive account with a scheduled bank for the purpose of election expenses;

(c) an attested copy of his National Identity Card; and

(d) a statement of his assets and liabilities and of his spouse and dependent children as on the preceding thirtieth day of June on Form B.

Bare reading of above said section makes it quite obvious that clause 2(d) of Section 60 of the Act only demonstrates about nomination papers to be filed through Form-B by mentioning statement of assets and liabilities of a candidate, his spouse and dependent children on the preceding thirtieth day of June which the Appellant submitted before the Respondent No.2 and is not disputed by learned counsel for the Respondent-ECP. However, the said Respondent No.2 rejected Appellant’s nomination papers on the ground of non-filing of income tax return which is beyond the scope of above said section. The words statement of assets and liabilities are mentioned in Form-B and Section 60(2)(d) of the Act deals it according to which the candidate/voter is only required to annex/enclose statement of assets and liabilities of his own or of her spouse and dependent children on the preceding day of thirtieth June. When Section 60(2)(d) of the Act and the Rules does not put any restriction of filing income tax return with the nomination papers, then the observation given by the Respondent No.2 in the impugned order is unwarranted and unjustified. It is settled principle of law that when law requires an act to be done in a particular manner and after fulfillment of certain requirements then it must be done in the very manner and after fulfillment of the very conditions as imposed by the law. The Honorable Supreme Court in “MUHAMMAD HANIF ABBASI Versus IMRAN KHAN NIAZI and others” (PLD 2018 SC 189) laid down the principle as follows:

“It is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly”.

12.         Similar view was earlier expressed by the august Supreme Court in “THE COLLECTOR OF SALES TAX, GUJRANWALA Versus MESSRS SUPER ASIA MOHAMMAD DIN AND SONS” (2017 SCMR 1427), wherein it was observed that “when a statute requires that a thing should be done in a particular manner or form, it has to be done in such manner”. In “ZIA UR REHMAN Versus SYED AHMED HUSSAIN” (2014 SCMR 1015) the Honorable Supreme Court laid down the same principle by holding that “If the law requires a particular thing to be done in a particular manner it has to be done accordingly, otherwise it would not be in-compliance with the legislative intent.

13.         Regarding submission of assets and liabilities by a candidate under the provisions of the Act and the Rules, the Hon’ble Supreme Court in “Khawaja MUHAMAMD ASIF Versus MUHAMMAD USMAN DAR and others” (2018 SCMR 2128) has held that “the election laws require every contesting candidate to file his or her statement of assets and liabilities and when elected was required to declare his assets and liabilities every year with the Election Commission. In this manner the net-worth of all elected members is maintained on the records of the Election Commission which is useful in noticing changes that may have occurred in their assets and liabilities after entering upon their office. In case an asset not declared by an elected member comes to light, his details of assets and liabilities would help in ascertaining whether concealment was intended to cover some wrongdoing. The whole purpose behind seeking details of assets and liabilities under the election laws is to discourage persons from contesting elections for a seat in the Parliament or a Provincial Assembly who have concealed assets acquired through some wrongdoing. Simultaneously it also aims at those members as well who hitherto may have held untainted record, be discouraged from indulging in corruption and financial wrongdoings after entering upon their office. Hence whoever contests an election for a seat in the Parliament or a Provincial Assembly, is mandatorily required by law to be forthright in declaring all his assets which he owns and all liabilities he owes.” In “Rai HASSAN NAWAZ Versus Haji MUHAMMAD AYUB and others” (PLD 2017 SC 70), the Hon’ble Supreme Court held that

“An honest and truthful declaration of assets and liabilities by a returned candidate in his nomination papers furnishes a benchmark for reviewing his integrity and probity in the discharge of his duties and functions as an elected legislator. His statement of assets and liabilities along with other financial disclosures contemplated by Section 12(2) of the ROPA provide the Election Commission of Pakistan and the general public with a picture of both his wealth and income. Such disclosures are crucial for demonstrating the legitimacy and bona fides of the accrual and the accumulation of economic resources by such a candidate. In other words, the said disclosures show the returns received from his economic activities and can indicate if these activities may be tainted with illegality, corruption or misuse of office and authority.”

“We, therefore, observe that any plausible explanation that exonerates, inter alia, mis-declaration of assets and liabilities by a contesting candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under Section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in Section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators.”

14.         By examining the original record of ECP, Form-B mentions the list of assets wherein it has mentioned in Column No.2 that the Appellant has attached with it the list of assets. Column No.1 of Form-B is specified into immoveable and moveable property. Immoveable property includes open plot, houses, apartments, commercial buildings, under construction properties, agricultural property etc within or outside the Pakistan whereas moveable property includes investment, motor vehicle, jewelry, cash and bank account and liabilities include mortgage, unsecured loan, bank loans, house building loans and other debts etc. The list of assets filed by the Appellant with Form-B at Page No.13 and 25, mentions the agricultural land and its value, house in Chishtian, his bank account, car and other items. The said fact has also been verified by the learned law officer of ECP that the list was properly filed by the Appellant at the time of submission of his nomination papers.

15.         Therefore, in view of the provisions of the Act, mentioned above and the law laid down by the Hon’ble Supreme Court of Pakistan on defining the assets, the income tax return does not fall within the definition of assets and liabilities as per Section 60(2)(d) of the Act and the Rules, hence, the observation given by the Respondent No.2 is unwarranted and uncalled for. Resultantly, this appeal is allowed and impugned order is set-aside.

Appeal allowed