OVER ALL NOTCE:
4. The Parliament of any country is one of its noblest, honorable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation — posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating — cheating not only his own constituents but the nation at large.”
63(1) (a)]. Similarly, a father cannot be disqualified if his son has been convicted for an offence involving moral turpitude or such son has been dismissed from the service of Pakistan (Article 63(1) (h) & (i). Thus, obviously a father cannot be disqualified if his son is allegedly dishonest [Article 62(1) (f)]. facts and failed to disclose beneficial ownership of the Mayfair Properties, Respondent No.1 has been guilty of concealment, mis-declaration and dishonesty, and is therefore liable to be disqualified from being Member of the Parliament and holding the office of Prime Minister.
vi. The learned counsel for the petitioner has further argued that Respondent No.1 had taken two Oaths. One as a Member of the National Assembly and the other as Prime Minister of Pakistan. In both the said oaths, he had sworn to perform his functions honestly, to the best of his ability, faithfully, in accordance with the law and the Constitution and the Rules of Business of the National Assembly. Further he had sworn to preserve, protect and defend the Constitution. He further maintains that in terms of Article 5 of the Constitution loyalty to the State is the basic duty of every citizen. He, therefore, submits that by failing to disclose the correct facts and producing the relevant records before the Parliament or before this Court, Respondent No.1 had been guilty of dishonesty giving Constitution preference to his personal interests over and above the national interests and as such he has not only violated his oath of office but has also been guilty of dishonesty which attracts the penal consequences of Article 62 read with Article 63 of the Constitution.
viii. Learned counsel has drawn our attention to Article 119 of the Qanun-e-Shahadat Order, 1984 to argue that burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any other person. He submits that as a whistle blower the only responsibility on the shoulders of the petitioner was to bring to the notice of this Court certain facts of public importance where-after the burden of proof was on the Respondent No.1 to establish that he had neither acted dishonestly nor in any other manner that would expose him to the penal consequences of Article 62 read with Article 63 of the Constitution. Reference in this regard has been placed on Workers’ Party Pakistan v. Federation of Pakistan [PLD 2012 SC 681 (para 32)].
26. The loss of qualification under Article 62(1) (f) of the Constitution has been visited with removal from elected office under the Constitution in a number of cases including Weighty reasons have been assigned for adopting and implementing the constitutional mandate as a bar on membership in Parliament. Firstly, the qualifications of a candidate set out in Article 62 of the Constitution are a sine qua non for eligibility to be elected as a Member of Parliament. No time limit for eligibility on this score is given in the Constitution.
A person who is untruthful or dishonest or profligate has no place in discharging the noble task of law making and administering the affairs of State in government office. Such faults in character or disposition, if duly established, cannot be treated as transient for the purpose of reposing trust and faith of the electorate and the Constitution in the holder of an elected office under the Constitution. The trusteeship attendant upon the discharge of every public office under the Constitution, whether Legislative, Executive or Judicial is a universally recognized norm. However, our Constitution emphasizes upon it expressly for an elected parliamentary office. The Constitutional norm must be respected and therefore implemented.
Mr. Imran Ahmad Khan Niazi, petitioner in Constitution Petition No.29 of 2016 sought permission of the Court to make a few submissions, which was granted by us. He submitted that the Prime Minister amongst other capacities is the custodian of the treasury of the country. A person who is not truthful, dishonest or corrupt cannot be expected to enjoy the trust of the people. He maintained that this is one reason why people of Pakistan are unwilling to pay taxes as they do not trust the custodians of their tax money. He further submitted that a leader is a role model and leadership by its example uplifts the moral values of the society as has been seen in the history of Islam as well as the world. He expressed his full confidence in the Court and prayed that the petition may be accepted.
97) Mr. Khan maintained that affirmative evidence is required to establish dishonesty for the purposes of electoral disqualification Constitution Petition No. 29 of 2016, and that the threshold has to be very high for disqualifying a person on the basis of qualifications which are obscure and vague. He also contended that no declaration about honesty can be made without there being a prior adjudication made by a court on the subject and in this regard he relied upon the cases of Suo Motu Case No. 4 of 2010 (Contempt proceedings against Syed Yousaf Raza Gillani, the Prime Minister of Pakistan) (PLD 2012 SC 553) and Muhammad Azhar Siddique and others v. Federation of Pakistan and others (PLD 2012 SC 660). He pointed out that in the cases of Umar Ahmad Ghumman v. Government of Pakistan and others (PLD 2002 Lahore 521) and Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1089) some persons were declared to be disqualified in exercise of the constitutional jurisdiction on the ground of holding dual nationality in the absence of a prior adjudication in that regard but in those cases the facts were either admitted/undisputed or the same were conveniently ascertainable with minimum inquiry. Healso referred to the case of Sadiq Ali Memon v. Returning Officer,NA-237, Thatta-I and others (2013 SCMR 1246) wherein dual nationality was not disputed and was in fact admitted. He also referred to the case of Dr. Sher Afgan Khan Niazi v. Mr. Imran Khan (Reference No. 1 of 2007) wherein Imran Ahmad Khan Niazi, one of the present petitioners, had successfully maintained before the Election Commission of Pakistan that post-election disputes fell only under Article 63 and not under article 62 of the Constitution. It was, however, conceded by Mr. Khan that a decision of the Election Commission of Pakistan is not binding upon this Court.
ii. That the petitioner alleges that in the said speeches Respondent No.1 had lied to the Nation, in consequence of which he had ceased to be honest and ameen in terms of Article 62(1) (f) of the Constitution and was
Therefore liable to be disqualified.
iii. That the second ground on which disqualification has been sought is that Respondent No.1 had received large sums of money as gifts from Respondent No.7. The said amounts were required to be treated as other
Income within the contemplation of Section 39 of the Income Tax Ordinance. The said amount was neither declared as such nor was the
Requisite income tax paid on it. Consequently, he was liable to be disqualified in terms of Article 63(2) (o) of the Constitution.
ix. The learned counsel has further stated that in terms of Article 62(1)(f) of the Constitution read with various provisions of the RoPA, a declaration issued by a Court of competent jurisdiction is required to the effect that a holder of public office is not sagacious, righteous, nonprofligate, honest or ameen. He submits that there is no declaration against Respondent No.1
In the field therefore, he cannot be disqualified. He further submits that in a large number of cases this Court has upheld the decisions of Election Tribunals and / or other Courts which have issued declarations but has seldom entertained matters in exercise of its powers under Article 184(3) of the Constitution and proceeded to issue declarations and then disqualified the holder of public office.
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Therefore not truthful and ameen. He further maintained that despite having categorically stated that all relevant records regarding acquisition of assets in London will be produced, Respondent No.1 has consistently failed to do so which has rendered him liable to be disqualified. He referred to Nasir Mehmood v. Imran Masood [PLD 2010 SC 1089 @ 1117] to submit that Respondent No.1 did not meet the criteria of being truthful and ameen as provided in Article 62(1)(f) of the Constitution.
ORDER OF THE COURT
By a majority of 3 to 2 (Asif Saeed Khan Khosa and GulzarAhmed, JJ) dissenting, who have given separate declarations anddirections, we hold that the questions how did Gulf Steel Mill comeinto being; what led to its sale; what happened to its liabilities;where did its sale proceeds end up; how did they reach Jeddah,Qatar and the U.K.; whether respondents No. 7 and 8 in view of theirtender ages had the means in the early nineties to possess andpurchase the flats; whether sudden appearance of the letters of
Hamad Bin Jassim Bin Jaber Al-Thani is a myth or a reality; howbearer shares crystallized into the flats; who, in fact, is the real andbeneficial owner of M/s Nielsen Enterprises Limited and NescollLimited, how did Hill Metal Establishment come into existence;where did the money for Flagship Investment Limited and othercompanies set up/taken over by respondent No. 8 come from, andwhere did the Working Capital for such companies come from andwhere do the huge sums running into millions gifted by respondentNo. 7 to respondent No. 1 drop in from, which go to the heart of thematter and need to be answered. Therefore, a thoroughinvestigation in this behalf is required.
2. In normal circumstances, such exercise could beconducted by the NAB but when its Chairman appears to beindifferent and even unwilling to perform his part, we areconstrained to look elsewhere and therefore, constitute a JointInvestigation Team (JIT) comprising of the following members:
ii) A senior Officer of the Federal InvestigationAgency (FIA), not below the rank of
Additional Director General who shall headthe team having firsthand experience of
Investigation of white collar crime andrelated matters;
ii) A representative of the NationalAccountability Bureau (NAB);
iii) a nominee of the Security & ExchangeCommission of Pakistan (SECP) familiar withthe issues of money laundering and whitecollar crimes;
iv) A nominee of the State Bank of Pakistan(SBP);
v) A seasoned Officer of Inter-ServicesIntelligence (ISI) nominated by its DirectorGeneral; and
vi) A seasoned Officer of Military Intelligence(M.I.) nominated by its Director General.
3. The Heads of the aforesaid departments/ institutionsshall recommend the names of their nominees for the JIT withinseven days from today which shall be placed before us inchambers for nomination and approval. The JIT shall investigate thecase and collect evidence, if any; showing that respondent No. 1 orany of his dependents or benamidars owns, possesses or hasacquired assets or any interest therein disproportionate to his known
Means of income. Respondents No. 1, 7 and 8 are directed toappear and associate themselves with the JIT as and whenrequired. The JIT may also examine the evidence and material, ifany, already available with the FIA and NAB relating to or havingany nexus with the possession or acquisition of the aforesaid flats orany other assets or pecuniary resources and their origin. The JIT shallsubmit its periodical reports every two weeks before a Bench of thisCourt constituted in this behalf. The JIT shall complete theinvestigation and submit its final report before the said Bench withina period of sixty days from the date of its constitution. The Benchthereupon may pass appropriate orders in exercise of its powersunder Articles 184(3), 187(2) and 190 of the Constitution including anorder for filing a reference against respondent No. 1 and any otherperson having nexus with the crime if justified on the basis of thematerial thus brought on the record before it.
4. It is further held that upon receipt of the reports,periodic or final of the JIT, as the case may be, the matter ofdisqualification of respondent No. 1 shall be considered. If foundnecessary for passing an appropriate order in this behalf,respondent No. 1 or any other person may be summoned and
Examined.
5. We would request the Hon’ble Chief Justice toconstitute a Special Bench to ensure implementation of thisConstitution Petition No. 29 of 2016,judgment so that the investigation into the allegations may not beleft in a blind alley.