By Iram Salim
Islamabad, Aug 19 (www.pakdestiny.com) A PML-N candidate Babar Hussain Abid contesting on PP-217 Khanewal appears to be a dual national ahead of Aug 22 by-polls.
Mr Abid has contracted a second marriage with a British woman but managed to hide from the court when his dual national status was challenged by his political rival candidate.
Abid’s opponents have provided the proof to the Election Commission and it is very much likely that he may be barred from contesting the election as he cheated the ECP by hiding his second marriage with British woman and his assets.
The Pak Destiny is also presenting the proof in this regard.
BEFORE THE ELECTION APPELLATE TRIBUNAL NO. 2FOR P.P. 217 KHANEWAL – VI
LAHORE HIGH COURT, MULTAN BENCH
Election Appeal No: _______/ A / 2013
AHMER HUSSAIN CHEEMA Son of Ghulam Hussain Cheema Caste Jat Cheema, Resident of Cheema House, Nishtar Road, Mian Channu, Tehsil Mian Channu, District Khanewal.
[Candidate from Constituency P.P.No.217 Khanewal- VI].
1. BABAR HUSSAIN ABID Son of Ali Muhammad, Resident of Faiz Abad Colony, Tehsil Mianchannu, District Khanewal.
[Candidate from Constituency P.P.No.217 Khanewal- VI].
2. THE RETURNING OFFICER Constituency PP. No. 217, Mianchannu (Khanewal- VI) / Mr. Jaleel Ahmed, Additional District & Sessions Judge, Mianchannu.
* * * * *
APPEAL: Under Sub-section (5) of Section 14 of the Representations of Peoples Act, 1976 read with Rule 5 of the Representations of the People (Conduct of Election) Rules, 1977 against the Order dated 17.07.2013 passed by the RO / Resp.No.2, whereby he has erroneously accepted the Nomination Paper of the Resp.No.1 / Mr. Babar Hussain Abid, despite being not qualified rather disqualified to be elected as a Member of Majlis-e-Shoora.
PRAYER: For Rejection of the Nomination Papers of the Respondent No.1 / Mr. Babar Hussain Abid as a Candidate from Constituency P.P.No.217 Khanewal- VI.
1. That the Election Commission of Pakistan has called upon the electors of constituency of the Provincial Assemby PP-217 Khanewal – VI, Tehsil Mianchannu, District Khanewal, to elect their representative from their constituency by notifying the Elections Schedule for holding of the Bye-Election 2013 on 22.08.2013 [due to the postponement of the General Elections of the Provincial Assemblies scheduled to be held on 11.05.2013 because of death of one of the candidates namely Abdul Sattar Warsi]. Copy of the Election Schedule is ANNEXURE – A.
2. That the Appellant is a candidate for the seat of PP-217 Khanewal – VI, Tehsil Mianchannu, District Khanewal. Besides being a candidate, the Appellant is also an elector and respectable citizen of Pakistan. He is a highly educated person and a leading professional lawyer practising as an Advocate High Court. Currently, he is also an elected Vice Chairman of the Punjab Bar Council. He firmly believes in independence, integrity, and transparency of the democratic institutions, as well as promotion and strengthening of democratic norms in Pakistan and holding of public offices by only qualified persons / members being a sacred trust, for quality legislation, good governance, effective delivery of services and transparent decision making, in the larger public interest. Copy of the Nomination Paper of the Appellant is ANNEXURE – B.
3. That the respondent No.1 also submitted his nomination papers for the purposes of contesting the election for the said seat, wherein he has sworn in a false declaration to the effect that he fulfills the qualification laid down in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and not subject to any of the disqualification as specified in Article 63 ibid or any other law for the time being in force, for being elected as a member of the provincial Assembly. Copies of the Nomination Paper of the Respondent No.1 together with the enclosed documents is ANNEXURE – C.
4. That at the time of scrutiny, the appellant challenged the nomination of the Resp.No.1 and sought rejection of his nomination paper, by submitting written objections and producing substantial documentary evidence and material information, to prove that the Resp.No.1 has sworn in false declaration about his eligibility, and that in fact, he is not qualified to be elected or chosen as a member of Provincial Assembly rather disqualified from being so elected or chosen. Copy of the Objection Petition filed by the present appellant and its enclosures are ANNEXURE – D.
5. That although the Resp.No.1 submitted written reply to the appellant’s written objection but failed to controvert the valid objections, while submitting his written reply to the objections. He failed to specifically deny / controvert the objections and his whole reply was full of evasive denials and misleading statements. It is pertinent to mention here that although the Resp.No.1 referred to some documents in his reply which were stated to be enclosed with the reply, however, no such documents have been enclosed with the reply. Copy of the Written Reply of the Resp.No.1 to the Objections is ANNEXURE – E.
6. That the RO / Resp.No.2 vide his impugned order dated 17.07.2013 evasively rejected the valid objections raised by the appellant on a misconceived, invalid, illogical and unsustainable justification; and arbitrarily and illegally accepted the nomination paper of the Resp.no.1. Hence, this Appeal. Copy of the Order of the RO / Resp No.2 dated 17.07.2013 is ANNEXURE – F.
7. That the impugned order dated 17.07.2013 passed by the RO / Resp.No.2 regarding acceptance of the nomination paper of the Resp.No.1 by evasively rejecting the objections, is liable to be set aside, and consequently the nomination papers of the Resp.No.1 are liable to be rejected, inter-alia on the following:
(a) That the impugned order is evasive, misconceived, illegal, and tantamount to abuse of law and authority. Hence, not sustainable.
(b) That the RO / Resp.No.2 has failed to perform his constitutional and legal obligation to guard against the corrupt and illegal practice. The impugned order is also violative of the principles laid down through a hierarchy of judgments of the Hon’ble Supreme Court of Pakistan, to the effect that it is in the Public interest to block the way of disqualified candidates – under the law and Constitution, is the duty of every citizens and all the courts.
(c) That the learned RO failed to decide the Objections on merits. Instead, he evasively rejected the objection on the ground that he in the earlier round rejected the objections filed by the proposer and seconder of the present appellant against the same candidate vide order dated 07.04.2013, which order was also assailed before the Election Appellate Tribunal / Lahore High Court, Bahawalpur Bench but dismissed vide order dated 15.04.2013, therefore, he being the RO has no power to pass an altogether different order and specially when the nomination paper had already been accepted and those were still intact. Copies of the Earlier Order of the RO Dated 07.04.2013; the Order of the Appellate Tribunal Dated 15.04.2013; and Earlier Objections filed by Aurangzeb Etc in their Personal Capacity and its Reply are ANNEXURES – G, H, I & I/1 respectively.
(d) The RO failed to appreciate the provisions of section 18 of the Representation of People Act, 1976 which specifically provide that where proceedings relating to an election have been terminated due to death of a contesting candidate, fresh proceedings shall be commenced, as if for a new election. Although it is not mandatory for the other contesting candidates to file fresh nomination papers or make a further deposit of the requisite fee, however, rest of the proceedings are to be conducted afresh, as if for a new elections. Therefore, the earlier order of the RO regarding acceptance of nomination paper as well as rejection of appeal by the Appellate Tribunal / High Court are of no legal effect and the whole scrutiny proceedings, etc., are to be conducted afresh.
(e) That the RO was bound to decide the objections filed by the present appellant, especially when neither the appellant earlier filed any objection petition nor the documentary evidence and material information was available earlier or considered at all. Moreover, the earlier decision of the Appellate Tribunal is also not relevant as the question of eligibility of the Resp.No.1 was not decided by it on merit. Moreover, the fresh grounds / objections and the supporting documentary evidence have been relied upon and placed on record for the first time, which have never been raised or considered earlier. Hence, questions of res judicata or estoppel could not arise at all.
(f) That even otherwise the decision of the objections filed by the proposer and seconder of the present appellant in their personal capacity without enclosing any documentary evidence, cannot by stretch of any imagination, be relied upon to preclude the present appellant from exercise his legal right to challenge the nomination of the Resp.No.1 independently by raising valid objections and producing substantial supporting documentary evidence.
(g) The impugned order is also breach of the principle laid down by the superior courts including a Full Bench of the Hon. High Court in “Naghma Mushtaq – Vs. – Election Tribunal, Punjab and 2 Others” reported as PLD 2008 Lah 149, wherein it has been held that that if any objection is raised against any candidate on the basis of lack of required qualifications to contest elections, burden to prove such qualification is heavier on the candidate than the objector. However, the RO failed to call upon the respondent No. 1 to appear before this Hon’ble Authority to show under what authority of law he claims to be eligible to hold the public office, the burden would had been on the respondent No.1 to prove otherwise.
(h) That the present appellant by producing substantial supporting documentary evidence, raised strong and valid legal and constitutional objections, to prove beyond reasonable doubt that the respondent No.1 has sworn on oath a false declaration contained in his nomination paper [clause-1(i)] to the effect that he fulfilled the qualification and not subject to any of the disqualification, specified in the Constitution or any other law for the time being in force, for being elected as a member of the Provincial Assembly. Whereas, he is in fact not qualified to contest the election as he suffers from ineligibility by virtue of Article 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 8D of the Conduct of the General Elections Order, 2002 and section 99 of The Representation of People Act 1976. However, the RO rejected the objections evasively on technical grounds instead of deciding the same on merits. Hence, not sustainable.
(i) That the impugned decision of the RO is a result of mis-reading and non-reading of the written objections filed by the present appellant as well as the substantial supporting documentary evidence, which is also evident from the bare reading of the impugned decision. Hence, grave irregularity and illegality has been committed by the RO.
(j) That even the Resp.No.1 failed to controvert the appellant’s written objection, while submitting his written reply to the objections. He failed to specifically deny / controvert the objections, whereas, his whole reply is full of evasive denials and misleading statements. It is pertinent to mention here that although the Resp.No.1 referred to some documents in his reply which were stated to be enclosed with the reply, however, no such documents have been enclosed with the reply.
(k) That the copies of the passports enclosed with the nomination papers show frequent travelling of the respondent No.1 to and fro the United Kingdom, however, he has not enclosed the relevant pages / documents bearing valid UK visas, Resident Permit or any other kind of UK Immigration Status allowing him entry and stay in the UK freely and so frequently. This conduct shows that he has deliberately concealed his immigration status of the UK in order to avoid his disqualification as provided under Article 63(1)(c) of the Constitution read with section 99(1A)(c) of the Representation of the People Act, 1976.
(l) That the respondent No.1 is also a registered voter at 69 High Field Road, Feltham, Middlesex TW13 4DY, England, the UK, which is the trading / correspondence address of the Appellant. It is pertinent to mention here that only a person having resident status / citizenship of the UK can be enrolled as a voter.
(m) That the respondent No.1 has also failed to disclose the correct details of his spouses as he has not mentioned his wife who was a British Citizen. In fact, only on the basis of the said marriage he was able to establish business, incorporate companies, and get residence / immigration status in the UK. Hence, he has not only concealed the details of his spouse in the UK but also the assets she holds there, which the respondent was bound to disclose. Moreover, his bigamous marriage also attracts other disqualifications besides attracting criminal liabilities both in the UK and Pakistan.
(n) That the respondent No.1 in his nomination paper has declared that he has moveable and immovable assets only in Pakistan. Whereas, he has himself admitted that all assets within Pakistan have been purchased out of remittances from abroad (USA). However, no proof of source of remittances has been enclosed, which shows that he has other assets, business, and bank accounts abroad, which have been concealed.
(o) That it is also pertinent to mention here that although the respondent has mentioned in his nomination papers that all assets belonging to him and his dependents within Pakistan have been purchased out of remittances from abroad and he has also enclosed the evidence of remittance, however, the evidence itself contradicts the claim of the respondent and exposes his conduct, as the assets were purchased much prior to the receipt of remittances from the USA. Hence, his mis-declaration and concealment of assets is proved beyond any reasonable doubt.
(p) That even the assets / immovable properties mentioned in the Schedule / Details of immovable properties held as on 30.06.2011 against the serial No.5 & 6, there is a reference to ownership of plot measuring 39 Marlas and 1 Sersai at Tehsil Chichawatni alongwith construction worth Rs. 5 Million without any description. In fact, there is a concealment of a commercial property and business by the name and title “Taj Mahal Banquet Hall and Restaurant” from which the respondent earns commercial income in Millions but neither the same reflected in the list of assets or businesses within Pakistan nor in the Tax Return.
(q) That the search report of the assets of the respondent No.1 through the leading credit search site of the UK namely “Creditsafe”, has revealed that the respondent is still the owner and director / shareholder of two registered companies in the UK:
i. Far East Enterprises Limited. Bearing Company Registration No: 04604645 Safe No: UK04252021 Registered Address: 15 Warwick Road, Stratford Upon Avon, Warwickshire CV37 6YW. [Trading in Wholesale and Retail of Used Motor Vehicles]; and
ii. Sakura Enterprises Limited. Bearing Company Registration No: 04889623 Safe No: UK04536014 Registered Address: 15 Warwick Road, Stratford Upon Avon, Warwickshire CV37 6YW. [Trading in Import and Sale of New & Used Cars and Light Motor Vehicles]
Copies of the “Creditsafe” Search Reports of Far East Enterprises Limited; and Sakura Enterprises Limited Together with its enclosures; Company Incorporation Certificate of Far East Enterprises Limited; Certificate of Registration For Value Added Tax (VAT) issued by Her Majesty’s Custom & Excise Department of the UK to Far East Enterprises Limited; Letter / Intimation of Direct Debit of Account issued by the Lloyds TSB Bank PLC, Bridge Street Stratford-Upon-Avon, 22 Bridge St Stratford-Upon-Avon to the Far East Enterprises Limited for Direct Debit from UBL, G.T. Road Branch, Mian Channu, Pakistan are enclosed herewith as ANNEXURES – J, J/1, J/2, J/3 and J/4 respectively.
(r) That the aforementioned record of ownership of two companies in the UK also reveals that the respondent No.1 also holds and operate foreign bank accounts in the UK, however, he malafidely concealed in his nomination papers, the particulars / details of his bank accounts and the availability of funds therein.
(s) That the aforementioned record of ownership of two companies in the UK further reveals that the respondent No.1 not only holds shares in the aforementioned companies but also has liabilities of substantial amount. However, in his nomination papers neither he has disclosed the assets in the form of shares etc., he owns in these companies nor disclosed the liabilities he has to satisfy in this regard. However, he malafidely concealed the said assets as well as the liabilities in the relevant portions of his nomination papers.
(t) That the registered address of the aforementioned companies also shows that the respondent No.1 also owns other immovable properties in the UK which he has concealed in his nomination papers.
(u) That the business of the wholesale and retail of used motor vehicles mentioned in the VAT Certificate also shows that he has other movable assets in the UK which have also been concealed in his nomination papers.
(v) That the respondent No.1 has also concealed the aforementioned assets in the UK from the FBR / Income Tax Department, etc. Hence, he is also liable be prosecuted under tax laws of Pakistan besides being a defaulter of government taxes.
(w) That the relevant contents of the nomination form of respondent No.1, requiring declaration on oath, have not been duly administered and attested by the Oath Commissioner as required by law.
(x) That although the respondent No.1 has mentioned his agricultural assets in his nomination form, however, he has neither mentioned his agricultural income nor enclosed any evidence of payment of agricultural tax, which shows that he is also a defaulter of agricultural tax.
(y) That the respondent No.1 has malafidely and intentionally concealed the exact details of his travelling abroad during the last 3 years besides failure to give correct detail of expenditure of the said travelling.
(z) That the respondent No.1 has also malafidely concealed his total assets owned by himself and his dependants and did not disclose the same in the relevant portion of his nomination papers. He possesses assets which are inconsistent with his declaration of assets or justifiable means, therefore, he is otherwise disqualified on the nomination day. Moreover, further documentary evidence of malafidely concealed assets is being collected and shall be placed before this Hon’ble Tribunal, as soon as the same are available.
(aa) That the act of aforementioned malafide and deliberate mis-statements and concealments has not exhibited a very enviable conduct. He had not only tried to cheat and practice deception upon his constituents but also the Election Authorities, hence, by no stretch, of imagination could he be termed as sagacious, righteous non-profligate, honest and Ameen as provided by Art.62 (f) of the Constitution of Pakistan, 1973 as well as S.99(1)(f) of the Representation of Peoples Act, 1976. Therefore, he cannot be allowed to be a validly nominated candidate for the public office of Member Provincial Assembly.
(bb) That the respondent No.1 has also sworn on oath a false declaration contained in his nomination paper [clause-1(i)] to the effect that he fulfilled the qualification and not subject to any of the disqualification, specified in the Constitution or any other law for the time being in force, for being elected as a member of the Provincial Assembly. Whereas, he is in fact not qualified to contest the election as he suffers from ineligibility by virtue of Article 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 8D of the Conduct of the General Elections Order, 2002 and section 99 of The Representation of People Act 1976.
(cc) Therefore, as per provisions of section 3 of the Shariat Act, 1991 while interpreting the laws, the principles of Islamic jurisprudence are to be applied. It is admitted position that such a person cannot be held to be qualified to be a public representative even as per principles of Islamic jurisprudence in the light whereof election laws and provisions of Article 62 and 63 of the constitution of Pakistan have to be interpreted.
(dd) That by contesting elections, without otherwise being eligible, besides concealing the actual assets, as well as swearing on oath the false affidavit, the respondent has tried to defraud the constituents as well as the general public in order to usurp their franchise as well as this most important public office of the parliament through, fraud and deception, which act is also against the injunctions of Islam, and exposes his character, hence otherwise rendered him disqualified to be elected or to be elected or to hold the elective office of prestigious Provincial Assembly.
(ee) That as the Resp.No.1 is not qualified rather disqualified under Article 62 and Article 63 of the Constitution of Islamic Republic of Pakistan read with section 99 of the Representation of People Act and Article 8D of the Conduct of General Election Order 2002. Hence, he should not be allowed to usurp this important public office of a provincial legislator.
(ff) That allowing the respondent No.1 to contest election, would not only amount to perpetuating illegalities and fraud committed by him but would also against the larger public interest as he is otherwise not legally entitled to hold a public office as member of legislature and is estopped to contest election for said seat by his own words and conduct. Furthermore, he is also liable to be prosecuted for swearing in false oath and concealment in his nomination papers.
(gg) The whole purpose of the Provisions of Article 62 and 63 of the Constitution of Pakistan, 1973 as well as the Representation of Peoples Act, would fail if the most important public offices of the highest tier of the legislature are occupied by disqualified persons. Therefore, the Appellant thinks that in such prestigious institution, such immoral and disqualified persons should not be allowed to hold elective public offices, which are sacred trusts and affect the life of the general public. The principles laid down through a hierarchy of case law to the effect that it is in the Public interest to block the way of disqualified candidates – under the law and Constitution, is the duty of every citizens and all the courts. For those, who somehow manage to skip the stages of scrutiny provided under the election laws, through connivance, concealment, or other deceitful means, the provisions of Article 199(1)(b)(ii) of the Constitution, 1973 have been embodied, so as to ensure that corrupt practices are guarded against, and the way of disqualified persons to the corridors of power / decision making effecting the public.
(hh) That the impugned order of the RO also violates the legal right of the appellant to object to the nomination of the Resp.No.1.
(ii) That impugned order is also a gross violation of specific provisions of Section 24-A of the General Clauses Act, which manifestly impresses upon the Authorities/Public functionaries to decide the cases after application of mind on the touchstone of reasonableness, which otherwise is lacking in the instant case. [Rel. 2010 SCMR 1778, 2010 SCMR 1495, 2010 SCMR 1475].
(jj) That the impugned decision of the RO is also violative of Article 4 which is a citadel of administrative and judicial governance in the country and amounts to constitutional reminder especially conveyed to the Government and its functionaries to treat everyone in accordance with law. However, unfortunately, the appellant’s right to be dealt with in accordance with law has also been breached. [Rel. 1998 SCMR 1863, 2009 PLC (CS) 966, 2010 PLC (CS) 783]
(kk) That, the impugned order is illegal, perverse and tantamount to abuse of law and authority as well as the infringement of legal rights of the appellant. Hence, the same is void, unfair, unjust, unwarranted, arbitrary, malafide, illegal, unconstitutional and ineffective qua the rights of the appellant.
(ll) That the impugned order is not sustainable, hence, the same needs to be judicially reviewed by this Hon’ble Appellate Authority.
(mm) That grave miscarriage of justice has been caused to the appellant and if the relief sought for in the titled appeal is not granted the appellant shall also suffer irreparable loss.
(nn) The Appellant reserves his right to raise further grounds as well as the objections at the time of hearing of the appeal.
8. That as the inherent ineligibility of the respondent No.1 has come to knowledge of the Appellants only recently, therefore, the Appellant could not challenge his qualification earlier, during scrutiny conducted before the termination of the election proceedings.
9. That the respondent No.1 being disqualified from being elected or to be elected or to hold the elective office of the member of Provincial Assembly, therefore this Hon’ble Tribunal is fully competent to call upon the respondent to provide and produce all the relevant material and information and put him to strict proof of his eligibility.
10. It would not be out of place to mention here that, a Full Bench of the Hon. High Court in “Naghma Mushtaq – Vs. – Election Tribunal, Punjab and 2 Others” reported as PLD 2008 Lah 149, has held that that if any objection is raised against any candidate on the basis of lack of required qualifications to contest elections, burden to prove such qualification is heavier on the candidate than the objector. Therefore, if this Hon’ble Authority calls upon the respondent to appear before this Hon’ble Authority to show under what authority of law he claims to be eligible to hold the public office, the burden shall be on the respondent to prove otherwise.
11. That the documentary evidence already available on the record is sufficient to prove that the Respondent No.1 is not qualified rather disqualified to be elected or chosen as a member of the Provincial Assembly under Article 62 and 63 of the Constitution, 1973 read with section 99 of the Representation of People Act 1976 and Article 8D of the Conduct of General Election Order 2002.
However, for further verification and satisfaction, if this Hon’ble Tribunal deems appropriate, it is also competent to summon other record from the respondent as well as from the tax authorities and FIA / CAA.
In view of the submissions made above it is respectfully prayed that the impugned order dated 17.07.2013 passed by the RO/Resp.No.2, whereby he has erroneously accepted the Nomination Paper of the Resp.No.1 / Mr. Babar Hussain Abid for the seat of PP-217 Mianchannu (Khanewal – VI), Tehsil Mianchannu, District Khanewal, may graciously be set aside being evasive, illegal, void, and without any lawful authority.
It is further prayed that the nomination paper of the Resp.No.1 / Mr. Babar Hussain Abid may kindly be rejected.
Any other relief which the appellant is found to be entitled in the circumstances of the case may please also be granted.
(MUBEEN UDDIN QAZI)
B.A (Pb), LL.B.Hons (IIUI), LL.M (London)
Diploma in Immig. Law (ilex.UK)
Advocate Supreme Court of Pakistan
Former Registered Foreign Lawyer (Eng & Wales)
Former Consultant / Local Govt Legal Expert, Govt of the Punjab