IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE UMAR ATA BANDIAL 
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
 
CIVIL APPEAL NO.1399 OF 2019 
(On appeal against the judgment dated 
12.08.2016 of the Lahore High Court, Multan 
Bench, Multan passed in W.P.No.136 of 
2015) 
 
Shamona Badshah Qaisarani 
…Appellant(s) 
VERSUS 
Election Tribunal, Multan etc. 
…Respondent(s) 
 
For the Appellant(s): 
Mr. Muhammad Shahzad Shaukat, ASC 
 
For Respondent No.3: 
Barrister Umer Aslam, ASC 
 
 
 
 
Mr. Ahmed Nawaz Ch., AOR 
 
For the ECP:  
 
Mr. M. Arshad, D.G. (Law)  
 
Date of Hearing: 
 
16.03.2021 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through  this appeal 
by leave of the Court under Article 185(3) of the Constitution of 
Islamic Republic of Pakistan, 1973, the appellant has called in 
question the judgment dated 12.08.2016 passed by the Lahore High 
Court, Multan Bench, whereby while dismissing the constitution 
petition filed by her, the order of the Election Tribunal, Multan dated 
01.01.2015 was upheld and the nomination papers to contest bye-
elections in PP-240 Dera Ghazi Khan-I filed by the appellant were 
rejected. The said Tribunal also declared the appellant disqualified 
to contest elections under Article 62(1)(f) of the Constitution, which 
was also maintained by the learned High Court by upholding the 
same. 
2. 
 
Briefly stated the facts of the matter are that appellant’s 
husband was the returned candidate in the general elections held in 
Civil Appeal No.1399 of 2019 
2
2013 in the constituency PP-240, Dera Ghazi Khan-I but 
subsequently, he was disqualified on account of fake degree. In the 
bye-elections held on 07.10.2013, the appellant contested and won 
the elections by securing the highest votes. The respondent No. 3 
Khawaja Muhammad Dawood Sulemani who had also contested the 
said elections, challenged the elections by filing Election Petition No. 
13 of 2013 before the Election Tribunal, Bahawalpur & D.G. Khan 
Divisions on the ground of corrupt practices but it was dismissed 
vide order dated 19.11.2014. During the pendency of the said 
Election Petition, the respondent No. 3 also filed an application 
under Section 76-A of the Representation of the People Act, 1976 
before the aforesaid Election Tribunal praying that the election of the 
appellant may be declared void as the declaration of assets made 
by her in the nomination papers were false, incorrect and against 
the record because she did not disclose a piece of agricultural land 
which was in her ownership. The Election Tribunal Bahawalpur 
accepted the application filed by the respondent No. 3, declared the 
bye-elections void, de-notified the appellant and ordered fresh 
elections in the constituency. The appellant challenged the said 
order before this Court but her appeal stood dismissed vide 
judgment dated 09.05.2016. Thereafter, again bye-elections were 
scheduled to be held on 17.01.2015. The appellant again submitted 
her nomination papers whereupon the respondent No. 3 raised 
objection that according to the findings of the Election Tribunal 
Bahawalpur dated 19.11.2014 passed in an application under 
Section 76-A of the Representation of the People Act, 1976, the 
appellant is not “Sadiq” and “Ameen” and is not entitled to contest 
the elections. However, the Returning Officer accepted the 
nomination papers of the appellant vide order dated 27.12.2014. 
The respondent No. 3 challenged the acceptance of nomination 
papers of the appellant before the Election Tribunal Multan by filing 
Election Petition No. 04 of 2014, which was allowed vide order 
dated 01.01.2015, the appellant’s nomination papers were rejected 
and on the basis of the order of the Election Tribunal Bahawalpur 
she was disqualified under Article 62(1)(f) of the Constitution. The 
appellant being aggrieved by the order of the Election Tribunal 
Multan, challenged it before the Lahore High Court, Multan Bench by 
Civil Appeal No.1399 of 2019 
3
filing Writ Petition No. 136 of 2015 but it has been dismissed vide 
impugned judgment dated 12.08.2016. Hence, this appeal by leave 
of the Court.  
3. 
 
Learned counsel for the appellant inter alia contended 
that the appellant could not have been disqualified under Article 
62(1)(f) of the Constitution because the declaration that she was 
non-sagacious, non-profligate, non-righteous etc was not granted 
after affording her proper opportunity to defend her case; that even 
the Tribunal is not a forum to issue a declaration without recording 
of evidence in this regard after provision of the right of due process 
and the same is based on surmises and conjectures; that even 
otherwise the act of the appellant of not mentioning the agricultural 
property inherited from her parents in the nomination papers was 
neither a dishonest act nor was a deliberate concealment to gain 
certain benefits/advantage; that this Court in the recent judgments 
has held that unless there is a dishonest intent behind concealment 
of an asset, one cannot be punished for life if he had made an 
innocent error; that non-mentioning of the assets in the nomination 
papers could have become fatal, if the omission would have been 
with the purpose to avoid payment of tax or other state dues etc, 
therefore, in view of the law laid down by this Court, the appellant 
could not have been permanently disqualified under Article 62(1)(f) 
of the Constitution.  
4. 
 
On the other hand, learned counsel for the respondent 
No. 3 controverted the arguments advanced by the learned counsel 
for the appellant by submitting inter alia that the agricultural 
property was deliberately not mentioned by the appellant in her 
nomination papers; that this fact was believed by the Election 
Tribunal Bahawalpur in its judgment dated 19.11.2014 passed in 
an application in Election Petition No. 13/2013 under Section 76-A of 
Representation of People Act, 1976 after affording her ample 
opportunity to put up her case; that the judgment of the Tribunal 
was upheld by this Court, therefore, it cannot be said that the 
declaration to disqualify the appellant was based on surmises and 
conjectures.  
5. 
 
We have heard learned counsel for the parties and have 
perused the relevant record as also the relevant law.  
Civil Appeal No.1399 of 2019 
4
6. 
 
After hearing the arguments advanced by the learned 
counsel for the parties, the issues which crop up for our 
consideration are whether the omission of the appellant of non-
mentioning the agricultural property inherited from her parents was 
sufficient enough to disqualify her permanently, and whether the 
declaration of disqualifying the appellant in terms of Article 62(1)(f) 
of the Constitution was based on proper scrutiny of the evidence 
evaluated by a court of competent jurisdiction and in accordance 
with the law laid down by this Court.  
7. 
 
It is now a well settled principle that every non-
disclosure or mis-declaration would not be sufficient enough to 
permanently disqualify a member of the Parliament or a candidate. 
The purpose and intention needs to be seen behind the non-
disclosure or mis-declaration. The returned candidate would be 
disqualified only when if he/she has dishonestly acquired assets 
and is hiding them to derive certain benefits. If the non-disclosure or 
mis-declaration is such that it gives an illegal advantage to a 
candidate then it would lead to termination of his candidature. This 
Court in the case of Khawaja Muhammad Asif Vs. Muhammad 
Usman Dar (2018 SCMR 2128) has candidly held that merely the 
fact that a candidate has not declared an asset in the nomination 
papers would not end in his disqualification but it has to be seen 
whether the act of non-disclosure of the asset is with dishonest 
intent or not and only if there is dishonest intent behind the non-
disclosure, the candidate would be disqualified. It is the credibility 
of the explanation that would be the determining factor as to 
whether non-disclosure of an asset carries with it the element of 
dishonesty or not. It would be advantageous to reproduce the 
relevant portion of the judgment, which reads as under:- 
“9. 
While considering a case of dishonesty in judicial 
proceedings what should not be lost sight of is that on 
account of inadvertence or honest omission on the part of a 
contesting candidate a legitimately acquired asset is not 
declared. This may happen as an honest person may 
perceive something to be right about which he may be wrong 
and such perception cannot necessarily render him dishonest 
though the omission would invariably result in rejection of 
his nomination paper had such a fact is pointed out to the 
Returning Officer at the time of scrutiny of nomination papers 
or in proceedings available under the election laws. There 
are many conceivable instances where an omission to 
Civil Appeal No.1399 of 2019 
5
declare an asset on the face of it cannot be regarded as 
dishonest concealment. For example, where an inherited 
property is not declared on account of mistake of fact or an 
asset acquired from a legitimate source of income is not listed 
in the nomination paper. Suchlike omissions at best could be 
categorized as bad judgment or negligence but certainly not 
dishonesty. As mentioned earlier even the proviso to section 
14(3)(d) of RoPA envisaged that rejection of a nomination 
paper on account of failure to meet the requirements of 
section 12 of RoPA would not prevent a candidate to contest 
election on the basis of another validly filed nomination 
paper. Hence mere omission to list an asset cannot be 
labeled as dishonesty unless some wrongdoing is associated 
with its acquisition or retention which is duly established in 
judicial proceedings. In our view attributing dishonesty to 
every omission to disclose an asset and disqualify a member 
for life could never have been the intention of the parliament 
while incorporating Article 62(1)(f) in the Constitution. All 
non-disclosures of assets cannot be looked at with the same 
eye. In our view no set formula can be fixed with regard to 
every omission to list an asset in the nomination paper and 
make a declaration of dishonesty and impose the penalty of 
lifetime disqualification. In a judgment from the foreign 
jurisdiction in the case of Aguilar v. Office of Ombudsman 
decided on 26.02.2014 by the Supreme Court of Philippines 
(G.R. 197307) it was held that dishonesty is not simply bad 
judgment or negligence but is a question of intention. There 
has to exist an element of bad intention with regard to an 
undeclared asset before it is described as dishonest. Unless 
dishonesty is established in appropriate judicial proceedings, 
Article 62(1)(f) of the Constitution cannot be invoked to 
disqualify an elected member for life. 
10. 
Where a matter with regard to an undisclosed asset is 
taken to court, it would not form the opinion that it is a case 
of dishonest concealment without first calling upon the 
elected member to explain the source from which such an 
asset was acquired. Where no satisfactory explanation is 
forthcoming and the undeclared asset also does not 
commensurate with the elected member's known sources of 
income, it would give rise to the presumption that unlawful 
means may have been applied with regard to such an asset. 
It is the credibility of the explanation that would be the 
determining factor as to whether non-disclosure of an asset 
carries with it the element of dishonesty or not. The test of 
honesty with regard to non-disclosure of assets and 
liabilities is to be applied in that context only and certainly 
not in a case where a clean asset has not been declared on 
account of bad judgment or inadvertent omission. In the 
impugned judgment, the learned High Court itself was 
conscious of the fact that where there is a case of non-
disclosure of an asset the same ipso facto does not render a 
person to be dishonest. In this regard, a judgment of this 
Court cited by respondent No. 1's counsel in the case of Rai 
Hassan Nawaz v. Haji Muhammad Ayub (PLD 2017 SC 70) 
was referred where it was held as follows:- 
"8. 
We, 
therefore, 
observe 
that 
any 
plausible 
explanation 
that 
exonerates, 
inter 
alia, 
mis-
declaration of assets and liabilities by a contesting 
Civil Appeal No.1399 of 2019 
6
candidate should be confined to unintended and 
minor errors that do not confer any tangible benefit or 
advantage upon an elected or contesting candidate. 
Where assets, liabilities, earnings and income of an 
elected or contesting candidate are camouflaged or 
concealed by resort to different legal devices including 
benami, trustee, nominee, etc. arrangements for 
constituting holders of title, it would be appropriate for 
a learned Election Tribunal to probe whether the 
beneficial interest in such assets or income resides in 
the elected or contesting candidate in order to 
ascertain if his false or incorrect statement of 
declaration under section 12(2) of the ROPA is 
intentional or otherwise. This view finds support from 
the statutory aim and purpose of requiring all 
contesting candidates to file their statements and 
declarations as envisaged in section 12(2) of the 
ROPA. Clearly there is a public interest object behind 
the statutory prescription for obtaining the said 
statements and declaration. It is to ensure integrity 
and probity of contesting candidates and therefore all 
legislators." 
 
 
(Underlined to lay emphasis) 
 
8. 
 
In the case of Shakeel Awan Vs. Sheikh Rasheed 
Ahmed (PLD 2018 SC 643) the appellant had sought disqualification 
of 
the 
respondent 
on 
the 
ground 
that 
the 
returned 
candidate/respondent 
has 
deliberately 
concealed 
certain 
agricultural land in his nomination papers; has declared his land 
holding to be 983 Kanals 17 Marlas while it has been established on 
record that the respondent owned 1049 Kanals and 13 Marlas and 
also not correctly disclosed the market value of certain immovable 
property. This Court while dismissing the appeal held that in cases 
where the non-disclosure or misdeclaration gives an illegal 
advantage 
to 
a 
candidate 
then 
such 
non-disclosure 
or 
misdeclaration would terminate his candidature, and if he has been 
elected to his disqualification and consequent removal but the 
misdeclaration made by the respondent apparently did not offend 
any law, in that if he had disclosed his entire land holding and had 
shown the value of the said house to be forty eight million rupees he 
would still be able to contest the elections. In 
Muhammad 
Hanif 
Abbasi Vs. Imran Khan Niazi (PLD 2018 SC 189), Faisal Arab, J, as 
he then was, while agreeing with the majority view observed that 
there can be many examples where it can be safely said that an 
omission on the face of it is not dishonest. Omission to list an 
Civil Appeal No.1399 of 2019 
7
inherited property or the pensionary benefits received by one's 
spouse or the plot allotted by the government in acknowledgment of 
services rendered are some of the instances which cannot be said 
that a member intentionally concealed its disclosure in order to cover 
some financial wrongdoing. Suchlike omissions at best could be 
categorized as bad judgment or negligence but not dishonesty. In 
Murad Bux Vs. Kareem Bux (2016 SCMR 2042), the petitioner in the 
nomination papers filed for contesting local council election had 
failed to disclose that a criminal case is pending against him, which 
on objection raised by the respondent, led to rejection of his 
nomination papers. However, this Court allowed the petition by 
holding that where the explanation of a party contesting the election 
is plausible in regard to non-disclosure of any fact in the affidavit, it 
cannot be denied the right to contest for elections and that the non-
disclosure of a fact which otherwise, if disclosed, could not debar 
the Petitioner from contesting the election, cannot be made a ground 
to preclude the Petitioner from contesting the election. 
9. 
 
In view of what has been discussed above, before 
disqualifying the appellant, the learned fora below ought to have 
established whether the act of the appellant of non-mentioning of 
landed property was a dishonest act with a view to gain some 
benefits i.e. to evade tax payment etc or the property was acquired 
later on after elections by using corrupt practices etc. However, we 
have noted that the learned fora below have made no effort to 
ascertain these aspects of the matter. The learned Election Tribunal 
Multan while disqualifying the appellant vide judgment dated 
01.01.2015 only made basis to the earlier order passed by the 
Election Tribunal Bahawalpur dated 19.11.2014 in an application 
filed by the respondent No. 3 under Section 76-A of the 
Representation of the People Act, 1976. Under Section 76-A, the 
Election Tribunal can declare the election of the returned candidate 
void or declare any other contesting candidate to have been duly 
elected and nothing else. In those proceedings, the stance of the 
appellant was that the property was inherited from her parents, 
which has been transferred to her brothers and in this regard the 
“Tamleek Nama” has been executed on 04.07.2013. The learned 
Election Tribunal Bahawalpur vide order dated 19.11.2014 de-
Civil Appeal No.1399 of 2019 
8
seated the appellant mainly on the ground that as the bye-elections 
were to be held on 07.10.2013, therefore, she was to declare her 
assets on the preceding 30th of June i.e. 30.06.2013 and as the 
“Tamleek Nama” was executed after the cutoff date i.e. 30.06.2013, 
therefore, it was held that she ought to have mentioned the 
agricultural property. However, in this order, the learned Election 
Tribunal had admitted the fact that the property was legitimate as it 
was inherited from her parents vide duly attested mutations. This 
judgment was upheld by this Court and thereafter, again bye-
elections were scheduled to be held on 17.01.2015. For the second 
bye-elections to be held on 17.01.2015 the appellant filed 
nomination papers, which were objected to by the respondent No. 3 
on the basis of the order of the Election Tribunal Bahawalpur dated 
19.11.2014 but these were accepted. It was in the appeal before the 
Election Tribunal Multan against acceptance of nomination papers of 
the appellant for the second bye-election that the Election Tribunal 
Multan for the first time while relying on the order of the Election 
Tribunal Bahawalpur dated 19.11.2014 disqualified the appellant 
but failed to take into consideration that in the order of the Election 
Tribunal 
Bahawalpur, 
there 
was 
nothing 
mentioned 
about 
disqualification of the appellant and the earlier bye-election was 
only declared void by holding that the appellant ought to have 
mentioned about the property which was in her possession before 
the cutoff date i.e. 30.06.2013 and as the “Tamleek Nama” was 
executed on 04.07.2013 after the cutoff date, therefore, it was not 
taken into consideration. No wrongdoing was associated with the 
acquisition of the property or its retention, therefore, in view of the 
law laid down by this Court referred above, the act of non-
mentioning of the property could not have been termed as dishonest 
act, rather it could only be termed as bad judgment or negligence but 
certainly not dishonesty. This Court in Muhammad Siddique Baloch 
Vs. Jehangir Khan Tareen (PLD 2016 SC 97) has held that in cases 
involving a finding of fact about the disqualification of a returned 
candidate in election matters, such finding must be based on 
affirmative evidence and not on presumptions, inferences and 
surmises. It would be in order to reproduce the relevant portion of 
the said judgment, which reads as under:- 
Civil Appeal No.1399 of 2019 
9
“29. 
At this juncture, it is important to emphasize that in 
cases involving a finding of fact about the disqualification of 
a returned candidate in election matters, such finding must 
be based on affirmative evidence and not on presumptions, 
inferences and surmises. That does not mean that 
proceedings in an election petition before an Election Tribunal 
are strictly criminal proceedings. It is settled law that even in 
civil proceedings, a finding of fact must be based on positive 
and affirmative evidence. This requirement rests in the basic 
principles of the Qanun-e-Shahadat Order, 1984 and is 
articulated in Allah Din v. Habib (PLD 1982 SC 465). For that 
reason and the serious consequences that follow a finding of 
disqualification under Article 62(1)(f) of the Constitution, an 
additional evidentiary safeguard is adopted by the Court, 
namely, that any reasonable hypothesis available in the 
recorded evidence to avoid the disqualification of the 
returned candidate ought to be adopted by the Court of law. 
The foregoing safeguards have already been laid down in 
relation to the proof of corrupt practice by a candidate in an 
election. Section 78(3)(d) of the ROPA treats a false statement 
by a candidate about his educational qualification to be a 
corrupt practice. 
30. 
The earliest pronouncement on this subject is 
rendered by this Court in Muhammad Saeed's case (PLD 
1957 SC 91), wherein it is held that: 
"... the burden of proof of corrupt practices is on the 
petitioner; that the evidence of proof of such practices 
must be restricted to the charges or instances 
mentioned in the petition and the particular; that each 
ingredient of a corrupt practice so charged must be 
affirmatively 
proved 
by 
evidence, 
direct 
or 
circumstantial; and that where the evidence is wholly 
circumstantial, the commissioners before finding a 
corrupt practice proved must exclude all reasonable 
hypotheses which are consistent with that corrupt 
practice having not been committed... ." 
31. 
A case directly pertaining to disqualification of a 
returned candidate was heard by this Court in Mohammad 
Yusuf's case (PLD 1973 SC 160) wherein whilst adopting the 
view taken in Muhammad Saeed's case (PLD 1957 SC 91) 
this Court has observed that finding of disqualification must 
be based on positive evidence and should not be rendered 
inferentially on mere surmises; that since a disqualification 
was penal in nature, therefore, the terms thereof were 
subject to strict interpretation; and the benefit of doubt was 
to be extended in favour of a returned candidate. The later 
judgments of this Court rendered in Saeed Hassan's case 
(PLD 1976 SC 6) and Muhammad Afzal's case (1986 SCMR 
1736) approve the principles enunciated in the afore-noted 
two judgments.” 
(Underlined to lay emphasis)  
 
Civil Appeal No.1399 of 2019 
10
10. 
 
In the case of Allah Dino Khan Bhayo Vs. Election 
Commission of Pakistan (PLD 2020 SC 591), this Court has held as 
follows:- 
“5. 
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 dispute relating to a right or liability, 
the recording of evidence including the right of cross-
examination, 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). 
 
11. 
 
It is well-settled that no man should suffer because of 
the fault of the court. There is an old maxim ‘actus curiae neminem 
gravabit’, which means that an act of court shall prejudice no man 
and the same becomes applicable in the present case as the learned 
fora below were under obligation to do justice with the appellant. 
This maxim is founded upon justice and good sense which serves a 
safe and certain guide for the administration of law. In a case, 
where any undeserved or unfair advantage has been given to a 
party invoking the jurisdiction of the court (the respondent No. 3 in 
the present case) and the same requires to be neutralized, the said 
maxim is to be made applicable. 
12. 
 
For what has been discussed above, we are of the view 
that the learned Election Tribunal Multan disqualified the appellant 
in a slipshod manner. The act of the appellant at best could be 
termed as bad judgment or negligence and as the property was 
legitimately acquired through inheritance, the same could not be 
Civil Appeal No.1399 of 2019 
11
labeled as acquired through dishonest means. For this negligence, 
she could not be disqualified for life. Consequently, this appeal is 
allowed and the impugned judgment is set aside.  
13. 
 
The above are the detailed reasons of our short order of 
even date. 
 
  
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
16th of March, 2021 
Approved For Reporting 
Khurram 
