Present: Mr. Justice Nadeem Azhar Siddiqi &

Mr. Justice Dr. Rana Muhammad Shamim

J U D G M E N T

Date of Hearing	:	12.12.2007
Appellant	:	Fahad Malik through Mrs. Sofia Saeed Shah and Mr. M.G. Bhutto, Advocates.
Respondent No.1	:	Mir Mumtaz Hussain Jakhrani through Mr.Abid S. Zuberi, Advocate.
Respondent No.2	:	Returning Officer, NA-208, Jacobabad-I through Mr.Agha Zafir Ali, Assistant Advocate General, Sindh.

NADEEM AZHAR SIDDIQI, J : This appeal has been filed against the order of acceptance of the nomination paper of the respondent No.1 from NA-208, Jacobabad-I.

The learned counsel for the appellant submit that the nomination paper of the respondent No.1 was erroneously accepted ignoring the fact that the respondent No.1 has made misdeclaration in the nomination paper and has suppressed and concealed the properties owned by him and his wife and has also not disclosed the particulars of the properties, which were mentioned in the nomination paper. The learned counsel further submit that the respondent No.1 has given wrong figures of payment of land revenue paid to the Government and is guilty of misdeclaration and is not qualified to contest the election as provided under clause (g) of sub-section (1) of Section 8(d) of the Conduct of General Election Order, 2002 and clause (f) of sub-section (2) of Section 12 of the Representation of the Peoples Act, 1976. They further submit that the respondent No.1 has dishonestly suppressed his liabilities. The learned counsel relied upon the case of RAO TARIQ MEHMOOD v. ELECTION TRIBUNAL, PUNJAB, LAHORE (PLD 2003 LAHORE 169).

The respondent No.1 has filed his counter-affidavit to the main appeal, which is taken on record.

Conversely, the learned counsel for the respondent No.1 submits that the nomination paper of the respondent No.1 was rightly accepted by the Learned Returning Officer and the respondent No.1 has not made any misdeclaration. He submits that some bonafide error in the nomination paper can be rectified at later stage in terms of sub-clause (ii) of clause (d) of sub-section (3) of Section 14 of the Representation of the Peoples Act, 1976 and the bonafide error cannot be termed as misdeclaration. He further submits that to determine whether the statements made in the nomination paper were false/incorrect, it has to be seen that the statement should be with the intention to save disqualification. He refers to clause (c) of sub-section (3) of Section 14 of the Representation of the Peoples Act, 1976. He also submits that the requirement of law is not to give details of the properties. He further submits that these objections, which are now being raised, have not been raised before the learned Returning Officer and on the basis of the material available on record with the learned Returning Officer the nomination paper of the respondent No.1 was rightly accepted.

The learned counsel for the respondent No.1 has relied upon reported case of UMAR AYUB KHAN v. RETURNING OFFICER NA-19, N.W.F.P., DISTRICT HARIPUR/ADDITIONAL DISTRICT AND SESSIONS JUDGE, HARIPUR (2003 MLD 222) and submits that rejection of nomination papers is a penalty, which could only be imposed, if an offence was committed or law was violated and in both such cases the presence of mens rea is mandatory. He has also relied upon reported case of ILLAHI BUX SOOMRO v. AIJAZ HUSSAIN JAKHRANI (2004 CLC 1060) and submits that the onus to prove that incorrect or false statement was given by the respondent No.1 is upon the appellant.

The learned AAG for the State supports the impugned order of the learned Returning Officer and submits that mere giving incorrect amount with regard to the payment of the land revenue and by not giving the area of the land owned by the appellant is not sufficient to disqualify him from contesting the election. He further submits that only those statements or information, which were given with the intention to save disqualification, can be treated as misdeclaration and the nomination paper can be rejected.

We have heard the learned counsel for the appellant, respondent No.1, AAG for the State and perused the record made available before us as well as case laws cited by the learned counsel for the parties.

The main grievance of the appellant is that the respondent No.1 has disclosed the amount of land revenue in the nomination paper, which was actually not paid, the respondent No.1 has not disclosed the particulars of the properties owned by him and her wife and has also suppressed the properties owned by the appellant and his wife. The contention of the learned counsel for the appellant is that the above acts are amounts to misdeclaration and the respondent No.1 is not qualified to contest the election in view of clause (f) of sub-section (1) of Section 99 of the Representation of the Peoples Act, 1976, and that the above acts are also amounts to submit false or incorrect declaration or statement in any material particulars.

The requirement of law is that in terms of clause (f) to sub-section (2) of Section 12, a candidate has to give a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form on the preceding 30 days of June. The law does not provide that the exact measurement of the property is to be given. Furthermore, the law also does not prescribe that a candidate is disqualified to contest the election, if he holds or not holds certain area. This may be a bonafde error on the part of the respondent No.1 in case this objection was raised at the time of scrutiny the same can be allowed to be remedied under sub-clause (ii) of clause (d) to sub-section (3) of Section 14 of the Representation of the Peoples Act, 1976.

The submissions of the learned counsel for the respondent No.1 have force that only those willful, false and incorrect statements concealing the material particulars in order to avoid disqualification can be considered as misdeclaration to disqualify the candidate from the election. Even if the submission of the learned counsel for the appellant is taken to be true the same cannot form basis to disqualify a candidate.

Since the law does not provide any limit of payment of land revenue for contesting the election any error or difference in the payment of land revenue is not amount to concealment of material particulars which entails disqualification. The learned counsel for the appellant has failed to demonstrate that the respondent No.1 has concealed the substantial facts pertaining to the assets and liabilities of himself, his spouse and his dependents. The burden of proof with regard to this fact is upon the appellant, but no detail in this regard has been provided.

In the reported case of RAO TARIQ MEHMOOD v. ELECTION TRIBUNAL, PUNJAB, LAHORE (PLD 2003 LAHORE 169) it has been held that the candidate could not be considered as an honest person due to the non-disclosure of his liabilities in his nomination paper. If the appellant is challenging that the assets and liabilities have not been honestly disclosed the burden is upon him to prove that the assets and liabilities have not been disclosed by the respondent No.1. The appellant has failed to produce any document in this regard to show that the appellant, his spouse and dependents have other properties which were suppressed. In another reported case of UMAR AYUB KHAN v. RETURNING OFFICER NA-19, N.W.F.P., DISTRICT HARIPUR/ADDITIONAL DISTRICT AND SESSIONS JUDGE, HARIPUR (2003 MLD 222) it was held that rejection of nomination papers was a penalty, which could be imposed, if an offence was committed or law was violated and in both such cases, there should be presence of mens rea alongwith act. In the reported case of ILLAHI BUX SOOMRO v. AIJAZ HUSSAIN JAKHRANI (2004 CLC 1060) it was held that for the purpose of determining as to whether the statement under Section 12 of the Representation of the Peoples Act, 1976, was false, incorrect in material particulars, one has to keep in mind the amount fixed by the Legislature under Section 12(2)(c) of the Representation of the Peoples Act, 1976. It was further held that if a willful or false/incorrect statement has been filed concealing the material particulars in order to avoid disqualification then the Tribunal would not travel deeper into explanation. In the above judgment, it was further held that if the non-disclosure of the assets and liabilities by the candidate under Section 12(2)(f) were on account of non-admission of the assets and liabilities, for which, he has given plausible explanation that then it cannot be construed as false and incorrect declaration and on that basis a candidate cannot be disqualified.

From the perusal of the record, it appears non-mentioning the details of the properties and a difference in the payment of land revenue and giving incorrect figures in the nomination paper is not amounts to false/incorrect statement in material particulars.

In view of the above, we are of the view that the nomination paper of the respondent No.1 was rightly accepted, hence we do not find any illegality or infirmity in the impugned order.

For the reasons what has been discussed above, this appeal has no merits and is accordingly, dismissed.

Dated 14.12.2007. JUDGE