Faisal Wada Case Islamabad High Court Writ Petition No.258 of 2020 Mian Muhammad Faisal Vs. Muhammad Faisal Vawda and 4 others

 

Faisal Wada Case 
Islamabad High Court Writ Petition No.258 of 2020

Faisal Wada Case   Islamabad High Court Writ Petition No.258 of 2020  Mian Muhammad Faisal  Vs.   Muhammad Faisal Vawda and 4 others

Mian Muhammad Faisal

Vs.     

Muhammad Faisal Vawda and 4 others

Petitioner by: M/s. Jahangir Khan Jadoon, Mian

M. Faisal Irfan, Usman Ghumman,

Arshad Khan Jadoon, Advocates.

Applicants by: Raja Shafqat Abbasi, Advocate in

C.M. No.82/2021.

Raja Muhammad Nazir, Advocate

in C.M. No.404/2021

Respondent by: M/s. Haroon Duggal & Sanaullah

Zahid, Advocates.

Saima Tariq Janjua, Deputy

Director ECP.

M. Waqar Langrial, Data

Processing Officer (Litigation)

National Assembly.

Date of Decision: 03.03.2021

instant petition as well as Crl. Orgl No.132/2020 as the same

arises out of the main petition.

2.

respondent No.1 contested the General Elections held in 2018

from NA-249 (West II) Karachi on the ticket of Pakistan

Tehrik-e-Insaaf. He was declared successful and in this behalf

notification was issued on 07.08.2018. The instant petition

was filed in 2020 challenging the election of respondent No.1

Writ Petition No.258 of 2020
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as Member National Assembly NA-249 (West II) Karachi on

account of the fact that at the relevant time when respondent

No.1 filed his nomination papers for contesting 2018

Elections he held dual nationality inasmuch as he was citizen

of United States of America as well. In the petition it has also

been averred that since at the time of contesting Elections

respondent No.1 furnished an affidavit to Election

Commission of Pakistan to the effect that he is not a national

of any other country; he has made a false statement on oath,

hence he is disqualified under Article 62 (1)(f) of the

Constitutional of the Islamic Republic of Pakistan, 1973 (the

Constitution). The case was taken up initially on 29.01.2020

when notices were issued to inter alia respondent No.1. Due

to COVID-19 pandemic since Courts were not functional on

notice was repeated to respondent No.1 as no one was in

attendance on behalf of the referred respondent. First

appearance of the learned counsel for respondent No.1 was

made on 17.09.2020 when time was sought for filing reply

which was allowed and it was also observed that needful

would be done within three weeks. The matter was again

taken up on 14.10.2020 and since reply had not been filed by

respondent No.1 Election Commission of Pakistan was

directed to bring complete record with respect to the

nomination papers of respondent No.1. It is pertinent to

Writ Petition No.258 of 2020

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observe that no one appeared on behalf of respondent No.1 on

the said date. On 04.11.2020 when the case was fixed next an

application was filed on behalf of respondent No.1 submitting

that since similar proceedings are pending before Election

Commission of Pakistan the instant petition is not

maintainable. Notice was issued to the parties on the said

application. It is pertinent to observe that even on the said date

no reply to the petition was filed and even when learned

counsel for respondent No.1 was confronted about the factual

aspect of the controversy viz: dual nationality of respondent

No.1 he sought time to assist in the matter. The matter was

taken up again on 12.11.2020 when Mr. Haroon Duggal,

Advocate High Court entered appearance and sought

permission to file fresh power of attorney and also reply

which was allowed. The case was then fixed for 14.01.2021

when again reply was not filed; however, an application was

filed by one of the voters/contestant of the Elections (C.M.

No.82/2021) in which notice was issued. It is pertinent to

observe that final opportunity was allowed to respondent No.1

to file reply. On 27.01.2021 another application was filed by a

person from the same Constituency seeking to be impleaded

as party (C.M. No.404/2021) in which notice was issued.

Another application was filed on behalf of respondent No.1 to

the effect that since Election Petition is pending in Sindh, this

Court lacks jurisdiction. Case was heard

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today i.e. 03.03.2021 without any reply on behalf of

respondent No.1. Advocate of the

respondent No.1 submitted that the instant petition has

become infructuous inasmuch as no writ of quo-warranto can

be issued since the petitioner has tendered resignation as

Member National Assembly. The resignation was duly placed

on record which bears the original signatures of respondent

No.1 as well as receiving of the resignation by one Shehryar

Khan, Secretary to Speaker National Assembly Secretariat,

Islamabad. It is also reflected from the referred document that

the resignation was received today (03.03.2021) at 09:25 am.

When confronted learned counsel for the petitioner submitted

that the instant petition has not become infructuous inasmuch

as the resignation is yet to be accepted. It was also contended

that even if the resignation stands accepted the petitioner is

disqualified from becoming a Member of National Assembly

or Senate in light of the fact that he furnished false affidavit

wherein he stated that he is not dual national. It was

contended that the affidavit was filed pursuant to the decision

Speaker, National Assembly of Pakistan, Islamabad and

others v. Habib Akram and others (PLD 2018 SC 678). It

was contended that even in light of the law laid down in case

reported as Sher Baz Khan Gaadhi v. Muhammad Ramzan

and others (2018 SCMR 1952) since Respondent No.1 is not

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Honest and Ameen, hence he is disqualified to be a Member

of National Assembly or Senate. Learned counsel also placed

reliance on the case reported as Nawabzada Iftikhar Ahmad

Khan Bar. V. Chief Election Commissioner Islamabad and

others (PLD 2010 SC 817). Furthermore, learned counsel

submitted that when respondent No.1 filed nomination papers

on 11.06.2018 he was a citizen of USA and was disqualified.

It was contended that even when his nomination papers were

scrutinized on 18.06.2018 the disqualification prevailed and in

light of the decision of this Court in case titled “Abdullah

Khan and another v. Election Commission of Pakistan and

03 others (W.P. No.4052/2018) the petitioner was

disqualified to be elected as Member National Assembly. It

was further argued that in light of the observations by the

Hon’ble Supreme Court in PLD 2018 SC 678 tendering of the

false affidavit has its consequences.

3. Learned counsel for the applicant in C.M. No.82/2021

supported the contentions of learned counsel for the

petitioner. Likewise, learned counsel for the applicant in C.M.

No.404/2021 also supported the contentions of learned

counsel for the petitioner.

4. Learned counsel for respondent No.1 reiteratted that

since the resignation has been tendered to the Speaker,

National Assembly respondent No.1 has ceased to be a

Member as such and no writ of quo-warranto can be issued.

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With respect to effect of Article 62 (1)(f) of the Constitution

i.e. the petitioner not being Honest and Ameen learned

counsel for respondent No.1 placed reliance on the case

reported as Allah Dino Khan Bhayo v. Election Commission

of Pakistan and others (PLD 2020 Supreme Court 591) and

an unreported judgment of the Hon’ble Lahore High Court

titled “Waheed Sabir v. Rana Zahid Hussain Khan, etc.

(W.P. No.15025/2010). He also submitted that petitions filed

in Sindh have been withdrawn.

5. Arguments advanced by the learned counsel for the

parties have been heard and the documents placed on record

examined with their able assistance.

6. Before rendering any finding to the contentions of

learned counsel for the parties, it is observed with dismay that

respondent No.1 lingered on the matter by not filing reply

under one pretext or the other which delayed the adjudication

of the matter. Insofar as the merit of case is concerned, the

petitioner seeks disqualification of respondent No.1 on the

basis of two grounds. Firstly, that respondent No.1 was a dual

national on the relevant dates, hence was disqualified to be

elected as Member National Assembly. Secondly, that

pursuant to the judgment of the Hon’ble Supreme Court of

Pakistan in case reported as Speaker, National Assembly of

Pakistan, Islamabad and others v. Habib Akram and others

(PLD 2018 SC 678) he furnished a false affidavit before

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Election Commission of Pakistan hence he is not Honest and

Ameen and is disqualified under Article 62 (1)(f) of the

Constitution. As noted above, on the commencement of the

proceedings today, learned counsel for respondent no.1

presented in Court the resignation dated 03.03.2021 reflecting

that respondent No.1 has resigned as Member National

Assembly and the same has been duly received in the Office

of Speaker, National Assembly on his behalf by Secretary to

Speaker, National Assembly Secretariat, Islamabad at 09:25

am. Under Article 64 (1) of the Constitution a Member of

Majlas-e-Shoora may, by writing under his hand addressed to

the Speaker or, as the case may be, the Chairman resign his

seat, and thereupon his seat shall become vacant. Under

Article 64 (1) of the Constitution since the resignation has

been tendered by respondent No.1, therefore, the seat has

become vacant. With respect to the affidavit tendered

pursuant to the decision of the august Apex Court it is

observed that in case titled Speaker, National Assembly of

Pakistan, Islamabad and others v. Habib Akram and others

(PLD 2018 SC 678) the Hon’ble Supreme Court of Pakistan

directed that an affidavit shall be filed by all the candidates

contesting the Elections in 2018. A proforma of the affidavit

was also prescribed. The relevant clauses for the present

controversy are R & S of the affidavit which are as follows:

R. I have not ceases to be a citizen of Pakistan

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nor have I acquired or applied for the

citizenship of a foreign state.

Or

I possess Foreign Passport No……………………….

issued by …………………. [name of country (s).

S. I have no objection if information

concerning myself in relation to acquisition of

citizenship of foreign State or application of such

citizenship is provided by any foreign state to the

Ministry of Foreign Affairs of the Government of

Pakistan of Election Commission of Pakistan.

7. The Hon’ble Supreme Court of Pakistan also observed

that failure to file affidavit before the Returning Officer would

render the nomination papers incomplete and liable to be

rejected. Moreover, it was observed that if the affidavit or any

part thereof is found false then it shall have consequences as

contemplated by the Constitution and law. The august Apex

Court further observed that since the affidavit is required to be

filed in pursuance of the orders of this Court (Supreme Court

of Pakistan), therefore, if any false statement is made therein,

it would also entail such penalty as is of filing a false affidavit

before the Hon’ble Supreme Court of Pakistan. Respondent

No.1 pursuant to proforma furnished an affidavit which was

filed before Election Commission of Pakistan on 11.06.2018.

The dates for filing of the nomination papers pursuant to

notification of Election Commission of Pakistan dated

08.06.2018 were from 04.06.2018 to 11.06.2018. The

publication of the names was to be made on 11.06.2018 and

the last date for scrutiny of the nomination papers was

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19.06.2018. Alongwith the petition a document has been

appended titled “Certificate of Loss of Nationality of the

United States” stamped as Certificate of Loss of Nationality

Approval dated 25.06.2018; meaning thereby that when the

nomination papers were filed and/or scrutinized respondent

No.1 was national of USA, hence had dual nationality and

was disqualified to contest the Elections in light of Article 63

(1)(c) of the Constitution. Since resignation has been tendered

as Member National Assembly the question regarding

disqualification from contesting Elections in 2018 becomes an

academic exercise as time has overtaken the cause for the

reasons mentioned hereinabove. Reliance is placed on case

decided by the Hon’ble Lahore High Court titled “Waheed

Sabir v. Rana Zahid Hussain Khan, etc. (W.P.

No.15025/2010) wherein it was held as follows:

21. “From the above said judicial

pronouncement it is clear that writ of quo

warranto can be issued against a person who is

holding a public office without any lawful

authority or he is a usurper. The word used in

Article 199 (b)(ii) of the Constitution are “the

holder of public office” denotes that relief of writ

of quo warranto will be available to a person

against a holder of public office and not a retired

person. The intention of the legislator is clear that

relief of quo warranto is available only against

those who are present not who were public office

holder or would be public office holder. When the

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holder of public office ceased to hold the office, the

relief of quo warranto also becomes not available

to an aggrieved party or any other person.

22. The only object of the writ of quo warranto

is to inquire into and determine the authority of a

person holding a public office, and the

consequence of the acceptance of the petition is the

ouster of the person from the public office, the

relief by way of writ of quo warranto remain only

available so long as the person attacked is in

actual possession and user of the office.

23. As a general rule, therefore, quo warranto

to question a person’s title to office will not be

granted after he has ceased to hold that office.

25. As far as the right of a person to ask for

refund of salaries or other benefits from a usurper

to a public office is concerned, it could not to be

determined in a proceeding for quo warranto. The

said determination is an independent right and can

be ascertained in appropriate proceedings

according to law.”

8. However, the question of false affidavit still is pertinent

as was argued by the learned counsel for the petitioner. In

Speaker, National Assembly of Pakistan, Islamabad and

others v. Habib Akram and others (PLD 2018 SC 678) supra

the Hon’ble Supreme Court of Pakistan clearly observed that

furnishing a false affidavit shall have consequences. In this

behalf, prima facie the affidavit is false; however, under

Article 62 (1)(f) of the Constitution if someone is to be held as

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not being Sadiq and Ameen a declaration has to be made to the

effect by Court of law. In this behalf reliance is placed on the

case reported as Allah Dino Khan Bhayo v. Election

Commission of Pakistan and others (PLD 2020 Supreme

Court 591). The august Apex Court in the said judgment

observed as follows:

“The upshot of the said judgment is that a

disqualification under Article 62(1)(f) of the

Constitution can only be imposed by or under a

declaration made by a court of law. By such

prescription Article 62(1)(f) creates a lawful,

transparent and fair mechanism for an election

candidate to contest an allegation that he is

disqualified under one or more of the grounds

listed in the said Constitutional provision.

Accordingly, in the case reported as Sardar Yar

Muhammad Rind v. Election Tribunal Balochistan,

Quetta and others (PLD 2020 SC 137) this Court

held that a judicial declaration disqualifying a

candidate under Article 62(1)(f) of the Constitution

must necessarily be based on oral or documentary

evidence. In the case reported as Imran Ahmad

Khan Niazi v. Mian Muhammad Nawaz Sharif

(PLD 2017 SC 265), the learned Judge speaking

for the majority elaborated that even an Election

Tribunal can only disqualify a candidate when its

declaration is issued on the basis of evidence

before it. Such a requirement is implicit in Article

10A of the Constitution which makes both due

process and fair trial a fundamental right in lawful

judicial proceedings. Thus the determination of a

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dispute relating to a right or liability, the

recording of evidence including the right of crossexamination, a hearing of the arguments of the

parties and a reasoned judgment are essential

attributes of a court of law (ref: Tariq Transport

Co., Lahore v. Sargodha Bhera Bus Service (PLD

1958 SC (Pak) 437) and Mollah Ejahar Ali v.

Government of East Pakistan (PLD 1970 SC

173).”

9. In Sher Baz Khan Gaadhi v. Muhammad Ramzan and

others (2018 SCMR 1952) the august Apex Court held a

candidate to be disqualified under Article 62(1)(f) of the

Constitution on account of false affidavit. However, since

PLD 2020 SC 591 is later in time, therefore, shall prevail and

be binding.

10. Moreover, the furnishing and tendering false affidavit

also has consequences under Pakistan Penal code, 1860 as

well as in light of the observations of the august Apex Court

in Speaker, National Assembly of Pakistan, Islamabad and

others v. Habib Akram and others (PLD 2018 SC 678)

Supra. This Court was informed during the course of

arguments that the matters are pending before the Election

Commission of Pakistan seeking disqualification of

respondent No.1 on the basis of false affidavit and dual

nationality. Since the affidavits were tendered before the

Election Commission of Pakistan it is just and proper that the

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Election Commission of Pakistan probes into the matter of

veracity of affidavit furnished by respondent No.1 on

11.06.2018 and if same is found to be false to stipulate the

effect thereof pursuant to observations made in PLD 2020 SC

591 supra. In light of the observations by the Hon’ble

Supreme Court of Pakistan in Speaker, National Assembly of

Pakistan, Islamabad and others v. Habib Akram and others

(PLD 2018 SC 678) the effect of making a wrong statement

before Supreme Court is also attracted where an affidavit

tendered by a candidate turns not to be false.

11. In view of the foregoing, since respondent No.1 has

resigned as Member National Assembly no writ of quowarranto can be issued with respect to holding dual

nationality. However, the matter of furnishing false affidavit

is to be probed by the Election Commission of Pakistan since

the same was submitted before it and the Commission may

pass appropriate orders with respect to the same. No contempt

of Court is made out in the facts and circumstances.

12. The instant petition as well as criminal original are

disposed of in light of the above observations. All pending

applications are also disposed of accordingly.

 (AAMER FAROOQ)

 JUDGE

*M.Naveed*