Form No:HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No. W. P. No. 9733/2013.
Rai Hassan Nawaz.

S.No. of order/
Proceedings

04.

Versus

Date of order/
Proceedings

02.05.2013.

The Election Commission of

Pakistan etc.

Order with signature of Judge and that of

Parties of counsel, where necessary.

M/s Uzair Karamat Bhandari and Mian Muhammad

Kashif, Advocates for the petitioner.
Mr. Salman Akram Raja, Advocate for respondent
No.4.
Mr. Nasir Javed Ghumman, Standing Counsel.
Rana Muhammad Aslam, Deputy Director, PECP.
Ali Akhtar Khan, Law Officer, Election Commission of
Pakistan.
Shabeer Manzoor, Tehsil Municipal Officer,
Chichawatni.
The petitioner assails order dated 17.04.2013
passed by the Election Tribunal of this court. Through
the impugned order nomination paper of the petitioner
was rejected.
2.

The learned Counsel for the petitioner submits

that the main ground that persuaded the learned Election

Tribunal to reject the nomination paper of the petitioner
was that he had maneuvered the release of personal
guarantee that had allegedly been issued by him to
secure Finance obtained by Murtaza Haseeb Textile
Mills Pvt. Ltd. against finance availed from IDBP.
3.

The learned counsel further submits that the

learned Tribunal found that there was concealment of

certain assets. Further certain dues including conversion
charges and other related dues of Town Municipal
Administration, Chichawatni were outstanding against

W. P. No.9733-2013.

the petitioner for properties, which had been sold as a

Housing Scheme in the past.
4.

The learned Election Tribunal also come to the

conclusion that the petitioner had failed to disclose a

vehicle which was allegedly owned by him.
5.

The learned Counsel submits that in the first

place the petitioner had not maneuvered the release of

the guarantee in question. The petitioner had resigned
from the aforesaid Company on 02.06.1997. The
guarantee was released as a result of an agreement with
the Bank involving transfer of management, which had
voluntarily released the guarantee. Subsequently, the
Bank filed a suit for recovery of its dues before this
Court, in which the petitioner was impleaded as one of
the defendants. However, vide order dated 30.11.2001,
on an application moved by the petitioner, his name was
deleted from the array of defendants. No one challenged
that order, which still holds the field, which establishes
the fact that the petitioner was no longer a guarantor nor
was he under any obligation to pay any amount owed by
Murtaza Haseeb Textile Mills Pvt. Ltd. He further
points out that the suit was subsequently decreed and
the decree is presently being executed. However, no
proceedings have been initiated either against the
petitioner in his personal capacity or as a guarantor.
6.

The learned counsel for the petitioner further

points out that certain assets belonging to Rai Cotton

Factory Private Limited, which is a limited company
and the petitioner is its Chief Executive, have been
alleged to have been concealed. He points out that the
said company is a taxpayer in its own right. All taxes
paid by it and returns filed were duly disclosed and

W. P. No.9733-2013.

attached with the nomination paper filed before the

Returning Officer. Further, details of all assets and
properties belonging to the said company were also
disclosed. The petitioner also disclosed in his
nomination paper that Rai Cotton Factory Pvt. Ltd. is
one of his assets and its value was disclosed as Rs.120
million.
7.

The learned counsel further maintains that the

alleged demand for conversion fee raised by TMA

Chichawatni is still under adjudication. This is evident
from the fact that the Town Municipal Officer has
himself stated that the matter of demand is subject to
reconciliation of accounts and determination of liability.
In this regard, he has referred to letter dated 12.04.2013.
He, therefore, submits that learned Election Tribunal of
this Court erred in law in coming to the conclusion that
government dues were payable by the petitioner.
8.

The learned counsel for the petitioner finally

argues that there was no concealment of any vehicle

owned by the petitioner. According to the documents
placed before the learned Tribunal, the same was sold
by the petitioner on 19.03.2013. Even otherwise, when
the petitioner had disclosed total assets worth Rs.250
million, he had no reason to withhold information about
the car worth about Rs.1 million.
9.

Notwithstanding the afore-noted arguments, the

learned counsel for the petitioner submits that at best

even if for the sake of argument the grounds on the
basis of which the petitioners nomination paper has
been rejected by the Tribunal were to be accepted as
true it may constitute a case of mis-declaration, which
does not entail the consequence of rejection of

W. P. No.9733-2013.

nomination paper as visualized in Representation of the

People Act, 1976, nor such allegations attract the
provisions of Articles 62 & 63 of the Constitution of the
Islamic Republic of Pakistan, 1973.
10.

The learned counsel for respondent No.4 on the

other hand submits that the guarantee issued by the

petitioner which was collusively released by the bank.
The guarantee was substituted by personal guarantees of
a widowed/sister-in-law of the petitioner and an
unknown person. Admittedly, the said persons did not
have any valuable properties against their names to back
up the personal guarantees that they had furnished. He
further submits that the Banking Court also released the
petitioner from the array of defendants in a suit pending
before it in view of the fact that the bank had willingly
released the guarantee issued by the petitioner. The
learned counsel maintains that the petitioner also
suppressed certain material facts in his nomination
paper in so far as some properties were not mentioned
which are owned by the petitioner and have been leased
out. He points out that the lease deeds have also been
placed on the record by the respondent. He further
submits that the petitioner has not paid dues owed by
him to the government. He points out that conversion
charges in sums of excess of rupees one million are
payable to the Tehsil Municipal Administration,
Chichawatni. The said sums remain unpaid to date.
Therefore, the argument of the learned counsel that the
said sums have not been quantified is of no avail.
11.

We

summoned

Tehsil

Municipal

Officer

Chichawatni to clarify the situation regarding the

W. P. No.9733-2013.

scheme floated by the petitioner, the demand for

conversion fee and other charges. He has confirmed
that the matter has not been decided so far and liability
will be determined and quantified after reconciliation of
accounts for which orders have been passed by the
competent officer.
12.

Arguments heard. Record perused.

13.

The argument of learned counsel for the

respondent that the guarantee issued by the petitioner

was collusively released to him, does not find support
from the record. On the other hand, it is clear that the
guarantee has been released with the consent of the
bank. The said release has not been challenged by any
party before any forum. The Banking Court which tried
the recovery suit also deleted the name of the petitioner
from the array of the defendants. The allegation that the
guarantee was released and the petitioner was released
from his obligation as a guarantor, cannot at this stage b
relied upon in order to attract the provisions of Article
63 (1) (n) of the Constitution of Islamic Republic of
Pakistan, 1973. Even otherwise this is a factual enquiry
requiring recording of evidence which cannot be
undertaken in the constitutional jurisdiction of this
Court.
14.

As far as the assertion that certain amounts are

outstanding against the petitioner which are payable to

Tehsil Municipal Administration,

Chichawatni is

concerned, we have summoned the record of the said

TMA.

It appears that the petitioner had moved an

application before the competent authority for approval

W. P. No.9733-2013.

of the layout plan for his Housing Scheme and payment

of conversion charges on 17.11.2011. The concerned
officer who has appeared before us has confirmed to us
that the said application was marked by the TMO to the
concerned officer on 11.04.2012. However, no further
proceedings were taken on the application and the
matter remained dormant till 04.04.2013 when a
demand in the sum of Rs.1,382,400/- was sent to the
petitioner. The TMO who has appeared in person has
not been able to show how that demand is based on a
conscious and rational calculation. He has been unable
to explain the basis for the various figures mentioned in
the demand notice. He has no knowledge of the noting
given on the application of the petitioner which is
appended at page 260 of this petition which provides for
reconciliation of accounts with the petitioner. On being
confronted with the noting, he has identified the
signatures of the then TMO. It is pointed out that note
clearly indicates that the request of the petitioner for
reconciliation of calculations has been allowed which
establishes that an exact figure of the demand raised by
the TMO, has not been determined. This being the
admitted situation where the demand had not been
finalized and remanded from the petitioner, it cannot be
said that the petitioner was in default of government
dues.
15.

The learned counsel for the respondent has also

pointed out that there is a suppression of certain

properties owned by the petitioner in the nomination
paper. However, at best the said alleged suppression
constitutes mis-declaration which would not in the facts

W. P. No.9733-2013.

and

circumstances

of

the

present

case

attract

disqualification as per criteria laid down in Articles 62

and 63 of the Constitution of Islamic Republic of
Pakistan, 1973.
16.

The respondent, as well as, the Election

Commission of Pakistan are, however, not precluded

from looking into this matter and exercise of its powers
under the provisions of Representation of the People
Act, 1976 in case a mis-declaration is discovered at any
stage.
17.

In the facts and circumstances of the present case,

the question whether the declaration/statements of the

candidate in the nomination paper were false or
incorrect in any material particular, cannot be
ascertained without carrying out a factual probe. This
exercise

cannot

be

undertaken

in

the

present

constitutional jurisdiction and could not have been gone

into by the Returning Officer or the learned Appellate
Tribunal in summary jurisdiction. Therefore, keeping in
view the constitutional requirement of due process laid
down in Articles 4 and 10-A of the Constitution, this
Court cannot determine with certainty, at this stage,
whether qualifications/disqualifications under Articles
62 and 63 of the Constitution are attracted against the
candidate.
18.

In view of the above, it is best that this matter be

taken up by the Election Commission of Pakistan under

Representation of People Act, 1976 and dealt with in
accordance with law in terms of pronouncements of the
august Supreme Court of Pakistan in Syed Mehmood
Akhtar Naqvi v. Federation of Pakistan through
Secretary Law and others (PLD 2012 S.C. 1089).

W. P. No.9733-2013.

19.

Notwithstanding anything stated above, it is

clarified that the findings recorded and observations

made herein are based only on a tentative assessment of
the material before us, in the facts and circumstances
brought to our notice for the limited purpose of deciding
this petition.

The Election Commission of Pakistan

Shall, however, be at liberty to independently exercise

its powers on the basis of material placed before it and
take appropriate proceedings and/or pass orders on the
application of any interested party under the provisions
of Representation of the People Act, 1976 without in
any way being influenced by this order.
20.

For the reasons recorded above, we find that the

order dated 17.04.2013 passed by the Election Tribunal

of this Court is unsustainable. It is accordingly set aside.
21.

We have already granted interim relief vide order

dated 19.04.2013. The same is hereby confirmed.

22.

This petition allowed in the afore-noted terms.

(Syed Mansoor Ali Shah)

Judge

(Ijaz ul Ahsan)
Judge

(Sayyed Mazahar Ali Akbar Naqvi)

Judge
*A.W./M.Tahir*

APPROVED FOR REPORTING.