Apex court rules: Every asset non-disclosure or mis-declaration not sufficient for permanent disqualification

ISLAMABAD: The Supreme Court has ruled that it is the credibility of the explanation given by a contesting candidate or lawmaker that would be the determining factor in deciding whether the non-disclosure of an asset carries with it an element of dishonesty or not.

It is now a well settled principle that every non-disclosure or mis-declaration is not sufficient grounds to permanently disqualify a lawmaker or contesting candidate, the ruling said, adding that the purpose and intention behind the non-disclosure or mis-declaration needs to be seen; the returned candidate would be disqualified only if he or she has dishonestly acquired assets and is hiding them to derive certain benefits.

“If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate then it would lead to termination of his candidature,” the judgment said. It has been handed down by a three-member bench led by Justice Umar Ata Bandial and comprising Justice Muhammad Amin Ahmed and Justice Sayyed Mazhar Ali Akbar Naqvi. Justice Naqvi authored the judgment.

Shamona Badshah Qaisarani had called in question the August 12, 2016 judgment passed by the Lahore High Court (LHC), Multan Bench. While dismissing her constitutional petition, the Multan election tribunal’s order of January 1, 2015 was upheld and her nomination papers to contest the by-election from PP-240 Dera Ghazi Khan were rejected. The tribunal declared her disqualified from contesting the by-poll under Article 62(1)(f), a verdict that was upheld by the LHC.

Mrs. Qaisarani’s husband, who had won the PP-240 seat in the 2013 general elections, was subsequently disqualified on account of a fake degree. In the by-election held on October 7, 2013, Mrs. Qaisarani contested and won by securing the highest number of votes. Khawaja Dawood Sulemani who had also contested the by-election, challenged her victory by filing an election petition before the Election Tribunal, Bahawalpur & Dera Ghazi Khan Divisions on the grounds of corrupt practices but it was dismissed on November 19, 2014.

During the pendency of this election petition, Sulemani also filed an application under Section 76-A of the Representation of the People Act (ROPA) 1976 before the election tribunal praying that her election may be declared void as the declaration of assets made by her in the nomination papers was false, incorrect and against the record because she did not disclose a piece of agricultural land that was in her ownership. The Bahawalpur election tribunal accepted his plea and declared the by-election void, de-notified her and ordered a fresh poll in the constituency.

Mrs Qaisarani challenged this order before the Supreme Court but her appeal stood dismissed on May 9, 2016. Thereafter, by-elections were again scheduled to be held on January 17, 2015. She again submitted her nomination papers and Sulemani raised the objection that, according to the findings of the Bahawalpur election tribunal dated November 19, 2014 passed in an application under Section 76-A of ROPA, she is not “sadiq” and “ameen” and is not entitled to contest the election. However, the returning officer accepted her nomination papers. Sulemani challenged the acceptance before the Multan election tribunal by filing a petition, which was allowed and her nomination papers were rejected, On the basis of the order of the Bahawalpur election tribunal, she was disqualified under Article 62(1)(f). She appealed against the decision in the LHC, which dismissed her petition on August 12,2016.

The judgment said that the Supreme Court in the case of Khawaja Asif Vs. Usman Dar has 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 non-disclosure, the candidate would be disqualified.

The verdict said that the issues which cropped up for the consideration of the bench were whether Mrs. Qaisarani’s omission of mentioning the agricultural property inherited from her parents was sufficient to disqualify her permanently and whether the declaration of disqualifying her under Article 62(1)(f) was based on proper scrutiny of the evidence evaluated by a court of competent jurisdiction and in accordance with the law laid down by the apex court.

The judgment said that in Hanif Abbasi Vs. Imran Khan Niazi (PLD 2018 SC 189), Justice Faisal Arab, 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. Failure 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 in which it cannot be said that a member intentionally concealed the disclosure in order to cover some financial wrongdoing. Such omissions could at best be be categorised as bad judgment or negligence but not dishonesty, the judge held.

It was pointed out that in Murad Bux Vs. Kareem Bux, the petitioner in the nomination papers filed for contesting local council elections had failed to disclose that a criminal case is pending against him, which on objection raised by the respondent, led to the rejection of his candidacy. However, the Supreme 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 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.

The judgment noted that to disqualify Mrs. Qaisarani, it would have to be established whether her failure to mention landed property was a dishonest act with a view to gain some benefits, i.e. to evade tax payment etc, or the property was acquired later after the elections by using corrupt practices etc. It noticed that no effort to ascertain these aspects of the matter were made by the concerned forums [the election tribunal and LHC].

The verdict also pointed out that the Supreme Court in Siddique Baloch Vs. Jehangir Tareen has 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.

The court held that no wrongdoing was associated with the acquisition of the property or its retention by Mrs. Qaisarani. Therefore, in view of the law laid down by the apex court, the act of non-mentioning of the property could not have been termed a dishonest act; rather, it could be termed poor judgment or negligence but certainly not dishonesty.

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 which means that an act of court shall prejudice no man and the same becomes applicable in the present case as the relevant forums were under obligation to do justice with Mrs. Qaisarani. 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 (Khawaja Dawood Sulemani in the present case) and the same requires to be neutralised, the maxim is to be made applicable,” it said.

The court held that the tribunal disqualified Mrs. Qaisarani in a slipshod manner. Her act at best could be termed as poor 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 should not be disqualified for life, it said.