ISLAMABAD: The Election Commission of Pakistan in its judgment in the Toshakhana reference has said that the commission is a competent authority to disqualify a member of a parliament for mis-declaration or concealing of assets.
In its 36-page verdict in Toshakhana reference against Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, the ECP said: “In the instant case Elections Act, 2017 is the relevant law and the violation or non-compliance or mis-declaration made by any Member of Majlis-e-Shoora (Parliament) comes under the ambit of disqualification and the Commission has the jurisdiction to adjudicate upon the question of disqualification on any of the grounds mentioned in Article 63(1).”
The Commission is also competent to direct filing of criminal complaint under Section 190 for violation of sections 137, 167 and Section 173 of the Elections Act, 2017 which is a criminal liability while mis-declaration, false declaration and concealment of assets also bears civil liabilities.
The judgment said: “It is pertinent to mention here that the Honorable Supreme Court of Pakistan in its judgment titled as Mian Najeeb ud Din Owaisi vs. Amir Yar Waran and Others reported as PLD 2013 SC 482, held that:
“We may again point out that ECP must adopt a distinction in between making, of a declaration, which is against the provisions of Article 62 & 63 of the Constitution and the process of criminal proceedings as a result of making miss-representation of. Once a person has filed a declaration under his signature declaring that he fulfils the condition of Article 62 & 63 of the Constitution and he undertakes that the statement is correct and if such declaration is incorrect the ECP, shall denotify him for such miss-representation, retrospectively.”
The verdict mentioned that the respondent (Imran Khan), while declaring the amount in the statement of assets and liabilities, declared the closing balance of the account but not the amount of Toshakhana gifts actually assessed.
It said the respondent has also not highlighted or provided break-up and details of sale proceeds. “If, for a moment we presume that the respondent has actually declared the amount of Toshakhana gifts, as claimed by him, the bank statement revealed that he has Rs51.821 million as the closing balance of 2018-19 and there is still shortfall of Rs34,849,135 as the total amount should be Rs86.671 million,” the verdict said in its paragraph 22, a copy of which is available with this correspondent, though the ECP is yet to release its detailed 36-page judgment.
Seven questions were formulated for decision of the question referred by the speaker under Article 63(2) of the Constitution through the instant reference.
It is also on record that after the dates when the respondent purchased the gift items, only an amount of Rs31.611 million was deposited on or after March 22, 2019. The respondent has not attached details of gift items, its sale particulars and the amount received and deposited in the bank as required under the Form-B. The respondent was required to provide the details of the cash and bank accounts as annexure with Form-B. The copy of Form-B was reproduced for ready reference in the judgment.
The respondent, the verdict said, has not given any explanation that the non-disclosure of the required details is unintentional, accidental or bona fide mistake. The deficiencies in the statement of assets and liabilities submitted by the respondent in the Election Commission and being not in consonance with the bank statements, the respondent has clearly violated the provisions of Section 137 and 173 of the Elections Act, 2017 by commission and omission which amounts to submission of false statement and incorrect declaration attracting disqualification under Article 63(1)(p) of the Constitution.
In response to question no 2 and 3, the attested copies of details of gift items have been obtained from the Cabinet Division. The respondent in his reply contended that out of all gift items mentioned, only four (4) items were sold out before closing of financial year and the amount was disclosed in the statement of assets and liabilities in shape of cash in bank accounts. From the perusal of available record and arguments advanced by the counsel for the parties, it transpired that the respondent has attached copies of challan forms along with his reply and also mentioned in the written submission that gift items were 22 purchased on payment of Rs21.564 million from Toshakhana on the basis of assessed value. The total value of the gift items was Rs107.943 million. The respondent in his reply admitted that the gift items were sold during that financial year and according to him he did not have those by June 30, 2019. Therefore, as alleged these items were not mentioned by name in the statement of assets filed on December 31, 2019.
He has also mentioned in the reply that the sale amount was received in Bank Alfallah account no. 00351002493256 and the same amount was also declared in the tax return for the year 2019. He also contended that the total cost of the gifts was Rs21.226 million and the sale proceeds of Rs58 million was also mentioned in the tax returns.
The verdict said that in order to verify the contentions of the respondent, the commission has obtained bank statements of the accounts mentioned by the respondent in the statement of assets and liabilities through the State Bank of Pakistan. From the perusal of the bank account mentioned by the respondent in his reply i.e Bank Alfalah account no. 00351002493256, it transpired that the closing balance of the respondent for the year 2018-19 was Rs51.821 million. The closing bank balance of the said account is approximately half of the total amount of the gift items, assessed by the record of Toshakhana obtained from the Cabinet Division.
The perusal of the statement of assets and liabilities for the year 2019-20 in the relevant column J(i) showed that no such transfer of the gifts has been shown and N/A is recorded which was required to be filled with details by the respondent in column number 3 of Form-B. Likewise, the FBR has its own procedure and law for declaration or submission of details in respect of filing of annual tax returns and in case of failure there are consequences under their own laws. The Election Commission of Pakistan is an independent constitutional body mandated under the Constitution and law for holding of free and fair elections and to guard against corrupt practices.
For performance of its functions and duties, separate election laws in the shape of Elections Act, 2017 and Election Rules, 2017 are in field and all the members of National Assembly and Provincial Assemblies are required to submit the annual statement of assets and liabilities under Section 137 of the Act. There are separate consequences in case of failure or submission of false declaration. Both the organisations are doing different nature of work under their different laws and it would be a weak argument that the statement submitted before one can be considered for the other.
“There are different requirements for the FBR and this commission for filing of tax returns and statements of assets and liabilities. The respondent has not given any explanation that the non-disclosure of details is unintentional, accidental or bona fide mistake. There are deficiencies in the statement of assets and liabilities submitted by the respondent in the Election Commission. The respondent has clearly violated the provisions of Section 137 and 173 of the Elections Act, 2017 by commission and omission which amounts to submission of false statement and incorrect declara tion and is guilty of corrupt practices and also attract disqualification under Article 63(1)(p) of the Constitution read with Section 137 and 173 of the Elections Act, 2017.”
The judgment said it has been held by the august court in the case titled Nawabzada Iftikhar Ahmed versus the Chief Election Commissioner reported in PLD 2010 SC 817 as “the Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation -- posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating --cheating not only his own constituents but the nation at large. … Such-like House-breaking tendencies on the part of dishonest and unscrupulous individuals need to be strongly checked before the virus becomes an uncontrollable epidemic.”
In response to question no. 4 and 5, it is admitted by the respondent that the gift items or its sale proceeds have not been shown in the statement of assets and liabilities submitted to the Election Commission for the year 2019-20. However, the respondent added that the cost value in respect of gift items were mentioned in the tax returns for the year 2019-20 under the code 7087 (other personal/household expenses amounting Rs8 million. The respondent in his reply also submitted that the major three gift items were further gifted by him or on his behalf. However, he has not provided any explanation that the gifts were given in this financial year or in other financial year and to whom. Similarly, the detail of gift items and the persons to whom the same were given is also missing in the relevant column of Form-B.
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