IN THE SUPREME COURT OF PAKISTAN 
         (Original Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Mian Saqib Nisar, HCJ 
 
 
 
Mr. Justice Umar Ata Bandial 
 
 
 
Mr. Justice Faisal Arab 
 
 
CONSTITUTION PETITION NO.35 OF 2016 
(Under Article 184(3) of the Constitution of the Islamic 
Republic of Pakistan, 1973) 
 
 
Muhammad Hanif Abbasi  
 
 
...  
… 
Petitioner 
VERSUS 
Imran Khan Niazi and others 
 
 
… 
...  
Respondents 
. . . 
 
 
For the Petitioner 
 
: 
Mr. Muhammad Akram Sheikh, Sr. ASC 
 
 
 
 
 
(Assisted by Ms. Maryam Rauf and  
Ms. Umber Bashir, Advocates) 
 
 
 
 
 
Mr. Tariq Kamal Qazi, Advocate 
 
 
 
 
 
(With permission of the Court) 
 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
For Respondent No.1 
: 
Mr. Naeem Bukhari, ASC 
 
 
 
 
 
(Assisted by Mr. Kashif Nawaz Siddiqui, Advocate) 
 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondent No.2 
: 
Mr. Anwar Mansoor Khan, Sr. ASC 
 
 
 
 
 
(Assisted by Barrister Umaima Anwar, Advocate) 
 
 
 
 
 
Mr. Faisal Farid Hussain, ASC 
 
 
 
 
 
Mr. Fawad Hussain Chaudhry, ASC 
 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondent No.3 
: 
Mr. Muhammad Waqar Rana, 
 
 
 
 
 
Additional Attorney General for Pakistan 
 
 
 
 
 
Mr. M. S. Khattak, AOR 
 
For Election Commission  : 
Raja M. Ibrahim Satti, Sr. ASC 
of Pakistan   
 
 
Raja M. Rizwan Ibrahim Satti, ASC 
 
 
 
 
 
Mr. M. Arshad, D.G. (Law), ECP 
 
 
 
 
 
Malik Mujtaba Ahmed, Addl.D.G.(Law) ECP 
 
On Court’s notice                : 
Mr. Ashtar Ausaf Ali, 
 
 
 
 
 
Attorney General for Pakistan 
 
Dates of Hearing                 : 
3.5.2017, 4.5.2017, 8.5.2017, 9.5.2017, 
10.5.2017, 
11.5.2017, 
23.5.2017, 
24.5.2017, 25.5.2017, 30.5.2017,31.5.2017 
Const.P.35 of 2016 
2 
1.6.2017, 13.6.2017, 14.6.2017, 11.7.2017, 
13.7.2017, 25.7.2017, 31.7.2017, 1.8.2017, 
2.8.2017, 3.8.2017, 12.9.2017, 26.9.2017, 
28.9.2017, 
3.10.2017, 
4.10.2017, 
5.10.2017, 
10.10.2017, 
11.10.2017, 
12.10.2017, 
17.10.2017, 
18.10.2017, 
19.10.2017, 
23.10.2017, 
24.10.2017, 
25.10.2017, 
7.11.2017, 
8.11.2017, 
9.11.2017 and 14.11.2017 
 
. . . 
 
JUDGMENT 
 
 
MIAN SAQIB NISAR, CJ. – This petition filed under Article 184(3) of 
the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”), 
in substance essence seeks a declaration by this Court that respondent No.1, 
Mr. Imran Khan Niazi (“the Respondent”), is not qualified to be and is 
disqualified from being a member of the National Assembly; and that upon 
his seat from constituency NA-56 (Rawalpindi-VII) falling vacant, 
respondent No.4, the Election Commission of Pakistan (“ECP”) be directed 
to hold fresh election in the constituency. 
2. 
 
The Respondent is the Chairman of Pakistan Tehreek-e-Insaf 
(“PTI”), respondent No.2, a political party formed in 1996 and governed by, 
inter alia, the Political Parties Order, 2002. PTI has been contesting general 
elections held in the country since 1997. In its first contest in 1997, PTI did 
not win any seats in any legislature. In the next election held in 2002, the 
party secured only one seat in the National Assembly, namely, by the 
Respondent who was elected from NA-71, Mianwali-I. PTI boycotted the 
following general elections held in 2008. However, it contested the 2013 
general election in which the party secured 33 seats in the National Assembly 
and respectively obtained 30, 4 and 61 seats in the Provincial Assemblies of 
Punjab, Sindh and Khyber Pakhtunkhwa (“KPK”). In the National 
Assembly, the PTI became the third largest majority party, while in the KPK 
Const.P.35 of 2016 
3 
Provincial Assembly it holds near majority and was able to form the 
government in coalition with Qaumi Watan Party and Jamaat-e-Islami. 
3. 
 
On 3.4.2016, the International Consortium of Investigative 
Journalists (“ICIJ”) released certain information that had been hacked from 
the database of a Panama-based law firm, namely, Mossack Fonseca. This 
information described as the Panama Papers was published worldwide in 
both print and electronic media. It reveals the names of hundreds of persons 
who formed offshore companies in various tax haven jurisdictions for 
obtaining secrecy and tax immunity of private property and wealth secured 
by means that, inter alia, include fraud, money laundering and tax evasion. 
The list of such persons covers rich people from all over the world, including 
heads of states, their relatives and associates, politicians and public officials, 
etc.  
4. 
 
Strikingly conspicuous Pakistani nationals mentioned in the 
Panama Papers are the three children of former Prime Minister of Pakistan, 
Mian Muhammad Nawaz Sharif, namely, Mr. Hussain Nawaz, Mr. Hasan 
Nawaz (sons) and Ms. Mariam Safdar (daughter). Allegations were leveled 
against them by the political opposition that they own properties in London 
which were acquired by their father in 1990s through the misuse of his 
authority whilst he held the office of Prime Minister of Pakistan for two 
terms in 1993 and in 1997. Following worldwide outrage against political 
leaders abroad, the opposition in the Parliament and other political parties 
demanded that the Prime Minister should resign. Attempts were made for 
the constitution of a Judicial Commission to inquire into the allegations but 
as that did not materialize, the Respondent filed a petition under Article 
184(3) of the Constitution (Const.P.No.29/2016) before this Court. This 
petition was decided by a larger Bench of five honourable Judges whereby 
Const.P.35 of 2016 
4 
two of the honourable Judges in the bench (“the Minority”), for the reasons 
recorded by them, disqualified Mian Muhammad Nawaz Sharif from being a 
Member of the National Assembly, thus ending his tenure as the Prime 
Minister of the country. On the other hand, the other three learned members 
of the Bench (“the Majority”) whilst taking serious note of the allegations 
and the supporting material, directed the constitution of a Joint Investigation 
Team (JIT) to probe further the questions highlighted in the Majority 
judgment of the Court and to report back thereon to the Court in order for 
the petition (Const.P. No.29/2016) to be finally decided. The JIT reported 
adversely against the Prime Minister and members of his family. 
Considering admitted material the learned 5 member Bench by their 
unanimous judgment dated 28.07.2017 disqualified the then Prime Minister 
and directed the filing of References under the National Accountability 
Ordinance, 1999 against him and his abovementioned family members.   
 
Petitioner’s case: 
5. 
 
After 
filing 
of 
Constitution 
Petition 
No.29 
of 
2016, 
Mr.Muhammad Hanif Abbasi (“the Petitioner”) who is a member of 
Pakistan Muslim League (Nawaz) [“PML(N)”] the former Prime Minister’s 
party,  filed the instant petition under Article 184(3) of the Constitution. He 
was the PML(N) candidate from NA-56 Rawalpindi-VII in the last general 
election of 2013 but lost the election to the Respondent. On the grounds set 
out in this petition the following relief is sought by the Petitioner: 
“I. 
Call upon Respondent No.1 to show the authority 
of law under which he purports to hold 
membership of the National Assembly, and his 
seat, NA-56, may kindly be declared vacant with 
the consequential direction to Respondent No.4 to 
hold election in this constituency in accordance 
with law. 
Const.P.35 of 2016 
5 
II. 
Declare Respondent No.1 to be not qualified for, 
and disqualified from being a member of the 
National Assembly; 
III. 
Declare Respondent No.1 to be ineligible from 
holding or retaining any office of a registered 
political party as provided under the Political 
Parties Order, 2002; 
IV. 
Direct that any contributions or donations acquired 
through prohibited sources by Respondent No. 1 
and No. 2 may be confiscated in favour of the State; 
V. 
Declare Respondent No.2 to be a foreign-aided 
party; 
VI. 
Direct Respondents No. 3, 4 and 5 to probe and 
investigate into the financial mis-declarations, 
misappropriation and evasion of Respondents No. 
1 and 2; 
VII. 
Direct 
Respondent 
No. 
3 
to 
carry 
out 
a 
comprehensive and detailed probe to scrutinize the 
tax returns and assets declarations of Respondent 
No. 1; 
VIII. 
Grant such other relief as this Honourable Court 
may deem just and appropriate and in the interest 
of justice; and” 
6. 
 
Mr. Muhammad Akram Sheikh, learned Sr. ASC for the 
petitioner at the very outset of his submissions on a Court query 
categorically stated that the petition is in the nature of quo-warranto, the 
primary object whereof is to seek disqualification of the Respondent as a 
Member of Parliament (relief Clauses No.I, II and III). He also unequivocally 
stated that the petitioner does not seek dissolution of or imposition of any 
ban upon the PTI. The other reliefs sought (relief Clauses No.IV to VII) are 
statedly incidental to the above-noted main relief. Whereas Clause IV asks 
for a direction that contributions or donations collected by the Respondent 
Const.P.35 of 2016 
6 
and the PTI through sources prohibited under the Political Parties Order, 
2002  (“PPO”) be confiscated in favour of the State, and Clause V seeks a 
declaration that PTI is a “foreign-aided political party” within the meaning 
of the PPO for having received foreign funds from prohibited sources, it 
follows from the submission of learned counsel that the directions in Clauses 
VI and VII are not pressed by him. 
7. 
 
Learned counsel for the petitioner has accordingly articulated 
the following written formulations (submitted in Court): 
“i. 
Whether Respondent No. 1 has made false 
declarations – statements while issuing the 
certificates for the years 2010 to 2013 under 
section 
13(2)(a) 
of 
the 
Political 
Parties 
Ordinance 2002 pledging therein that no funds 
from any source prohibited under the law were 
received by the Party? 
ii. 
Whether Respondent No. 1 has failed to 
disclose assets and concealed an offshore 
company while submitting his ‘statements of 
assets and liabilities’ therefore liable to be 
declared disqualified from being elected or 
remain member of the Parliament by this 
august court under Article 62 and 63 of the 
Constitution? 
iii. 
Whether Respondent No. 1 is guilty of offences 
of ‘corrupt practice’ and ‘tax evasion’ by 
declaring that the Banigala property is a gift 
from his former wife in his ‘statements of 
assets and liabilities’ whereas, admittedly, she 
was only a benamidar of the said property? 
iv. 
Whether mis-declarations, misstatements and 
contradictory pleases with regards to Banigala 
Const.P.35 of 2016 
7 
property make Respondent No. 1 disqualified 
under Article 62 (1)(f) of the Constitution? 
v. 
Whether Respondent No. 1 misused the tax 
amnesty scheme and played a fraud on public 
exchequer?” 
 
Certificate by the Respondent under Article 13(2) of the Political 
Parties Order, 2002. 
8. 
 
Learned counsel for the petitioner submitted that PTI is a 
foreign-aided political party in terms of Article 2(c)(iii) of the PPO as it 
received contributions prohibited under Article 6(3) thereof read with Article 
17(3) of the Constitution. He argued that despite the above-stated position, 
the Respondent personally issued certificates to the ECP in terms of Article 
13(2) of the PPO to the effect that PTI does not receive funds from prohibited 
sources meaning thereby that it is not a foreign-aided political party. These 
certificates make a misdeclaration of fact and thus the Respondent has 
proven himself to be not sagacious, righteous, honest or ameen. He is, 
therefore, liable to be disqualified from holding elective office or being 
elected thereto under Articles 62(1)(f) and (g), and 63(1)(p) of the 
Constitution. The learned counsel conceded that the penalty of dissolution of 
the PTI as a foreign-aided political party, provided in Article 15 of the PPO, 
is not available to any person except by order of this Court passed on a 
reference filed by the Federal Government. Therefore, he maintains that the 
petitioner confines his prayer only to the consequence of disqualification of 
the Respondent resulting from his conscious act of issuing false certificates, 
thereby concealing of the funding provided to his party by foreign entities 
and nationals.  
9. 
 
According to the learned counsel, the following facts establish 
that PTI is receiving prohibited funds. In the year 2010, the Respondent as 
Const.P.35 of 2016 
8 
the Chairman of PTI appointed PTI USA NA LLC, a Texas-based limited 
liability company, as its agent in the USA registered under the Unites States 
Foreign Agents Registration Act, 1938 (“FARA”), inter alia, for fund-raising 
for the PTI in the USA. Subsequently, in 2013 PTI USA LLC, a California-
based limited liability company was substituted by the Respondent as PTI’s 
FARA Agent in the USA which retains its said status till date. Pursuant to 
their FARA registration, each of the said LLCs registered in Texas and 
California have during their appointment as PTI’s FARA Agent admittedly 
collected and transferred through banking channels funds from USA to PTI 
Pakistan. According to the learned counsel for the petitioner, the PTI USA 
LLC (California) was incorporated by an individual who is a US citizen. Two 
of the directors of PTI NA USA LLC (Texas) are Pakistani, whereas the 
remaining five are US nationals. He also contended that assuming the said 
controllers of PTI NA USA LLC (Texas) are US nationals having dual 
nationality of Pakistan, yet for all intents and purposes, a dual national is a 
foreigner which renders the PTI a foreign-aided political party. Being limited 
liability companies registered abroad, PTI USA LLC and PTI NA LLC are 
juridical entities that for all intents and purposes are a foreign national. 
Furthermore, both PTI NA LLC and PTI USA LLC received contributions 
from foreign nationals. From 2010 to 2013, these LLCs collected and 
transferred over $2.3 million to PTI Pakistan. The incorporation of the PTI 
USA LLC California is meant to conceal the true identity of its donors which 
includes both foreign nationals and companies. Its statements filed with 
FARA show that during 2013 to 2015, it collected US $1 million in the USA as 
political donations which were transferred to PTI Pakistan. Abraaj Capital 
Ltd. Dubai, a limited company which owns K-Electric Company, Karachi, 
sent Rs.56/- million on 7.5.2013 to one Tariq Shafi, the CEO of Crescent 
Const.P.35 of 2016 
9 
Industrial Chemical Ltd. which amount was transferred to PTI for 
unexplained reasons. Another amount of Rs.58.8 million was received on 
26.3.2013 by Tariq Shafi from Harbour Services Inc., Dubai, which was also 
transferred to PTI. The documents relied upon by the learned counsel for the 
petitioner are: 
i. 
Five signed certificates pertaining respectively to the 
years 2010 to 2014 filed by of the Respondent before 
the ECP attesting that PTI did not receive any funds 
from the sources prohibited under the law (pages 288 
to 292 of Const.P. No.35/2016); 
ii. 
The certificate of formation of PTI USA NA LLC 
(Texas) dated 9.2.2010 (page 162 of Const.P. 
No.35/2016); 
iii. 
The Respondent’s letter to the Justice Department 
USA dated 15.2.2010 notifying that PTI NA USA LLC 
(Texas) was appointed as PTI’s agent under FARA 
(page 166 of Const.P. No.35/2016). The aims and 
objects of the said LLC are mentioned therein; and 
item No.5 thereof categorically mentions collection of 
funds for PTI Pakistan; 
iv. 
The list of the board of directors of PTI NA USA LLC 
(page 165 of Const.P. No.65/2016), particularly the 
names of the directors (at page 168 thereof) out of 
which five are US nationals and two are Pakistani; 
v. 
The Respondent is aware of the facts and records of 
its FARA Agent and thus cannot claim ignorance 
about collections of funds made by it. (document at 
page 173 of Const.P.35/2016); 
vi. 
PTI has admitted in its concise statement that PTI  NA 
USA LLC is its declared and lawful foreign agent 
under the laws of USA empowered to collect political 
donations and contributions (para 30 at page 9 of 
Const.P.35 of 2016 
10 
CMA 8037/2016). The Respondent has also admitted 
to this effect at pages 162 and 166 of Const.P. 
No.35/2016; 
vii. 
The 
FARA 
Exb.D 
statement 
dated 
30.10.2014 
submitted by PTI USA LLC (California) before FARA 
(page 277 and another Exb.D statement dated 
30.04.2015 on page 287 of Const.P. No.35/2016) 
wherein it is mentioned that PTI USA LLC 
(California) 
received 
$83,400/- 
as 
funds 
and 
transferred $90,000/- to PTI Pakistan. There is a 
discrepancy as apparently the amount transferred 
was more than the amount collected. He also referred 
to the party campaign funds disbursements by FARA 
agent (at page 283 of the petition) and a chart in para 
46 at page 16 thereof; 
viii. 
The FARA Exb.D for period February, 2010 to June, 
2013 (at page-1 of CMA No.7231/2016) showing the 
names 
of 
the 
persons/ 
entities 
that 
made 
contributions of less than US $50/- each to PTI NA 
USA LLC (Texas) includes individuals, foreign 
nationals, limited companies, etc. This list has been 
filed by the FARA Agent of PTI before FARA. 
Another FARA Exb.D for the period November, 2014 
to March, 2015 (at page 109 of the said CMA) 
mentions the names of donors making contributions 
in excess of US $50/- but some of the contributions do 
not have corresponding names; 
ix. 
The official website of FARA shows that the donors of 
PTI NA USA LLC include foreign nationals; and 
x. 
FARA returns and declarations filed by PTI NA USA 
LLC (Texas) at Pages 162 to 248 of Const.P. 
No.35/2016; at the same filed by PTI USA LLC 
California at page 249 to 289 exemplify the allegation 
Const.P.35 of 2016 
11 
of prohibited contributions being received by the 
PTI’s FARA agents.  
 
He relied upon the case of Miss Benazir Bhutto vs. Federation of Pakistan 
and another (PLD 1988 SC 416) to emphasize the significance of 
accountability of political parties for sources of its funding and how 
seriously funding from foreign sources is taken by the Constitution.  
10. 
 
To explain the terms “honest” and “ameen” used in Article 
62(1)(f) of the Constitution, learned counsel referred to the cases of Abdul 
Waheed Ch. vs. Rana Abdul Jabbar (CA No.95 of 2015) and Rai Hassan 
Nawaz  vs. Haji Muhammad Ayub and others (PLD 2017 SC 70). 
 
Concealment of Niazi Services Limited (“NSL”) by the Respondent.  
11. 
 
Learned counsel for the petitioner submitted that the 
Respondent was the absolute beneficial or real owner of NSL which was an 
offshore company, owned by three other offshore companies as 
shareholders, namely, Barclays Private Bank & Trust Limited, Barclay Trust 
Channel Islands Limited and Barclay Trust Jersey Limited (page 62 of 
Const.P. No.35/2016). NSL was incorporated and registered as a limited 
liability company on 10.5.1983 (page 22 of Const.P. No.35/2016) and filed its 
annual tax returns from 1983 till its dissolution on 01.10.2015 (pages 118 and 
125 of Const.P. No.35/2016, dissolution notice dated 30.06.2015 at page 117 
thereof). He stated that the Respondent admitted that he purchased a flat in 
the UK (“London flat”), however, on solicitors’ advice, NSL was established 
to own the flat (para 6 and 7 of CMA No.7925/2016). The Respondent is an 
income tax filer in Pakistan since 1982/1983 (both years were mentioned on 
different dates of hearing) and has been contesting elections since 1997. 
However, he never declared NSL in his income tax returns or his nomination 
Const.P.35 of 2016 
12 
papers filed before the ECP. Though the flat was sold in 2003, NSL remained 
in existence till 2015, thus the Respondent was bound to declare his 
ownership therein notwithstanding whether it owned any property or not. 
The Respondent also made a misdeclaration in the forms of the Tax Amnesty 
Scheme, 2000 to the effect  that he was the owner of the London flat whereas 
it was NSL that admittedly owned such property. According to the learned 
counsel, the said statements amounted to misdeclarations made by the 
Respondent before the ECP and the tax authorities. Thus, he is not honest or 
ameen and is liable to be disqualified under Article 62(1)(f) of the 
Constitution. 
 
Learned counsel added that after the sale of NSL’s alleged sole 
property, the London flat in 2003, whether NSL was a shell company is 
doubtful because the company was kept alive for 12 long years thereafter, 
until 2015 during which its corporate and other returns continued to be filed 
by incurring substantial expense including recurring solicitors fees, trustees 
fees and registry fees; the latter amounting to £350/-, annual return fee 
evident from page 117 of Const.P. No.35/2016. To incur such a large 
recurring expense for keeping a mere shell company alive is highly 
improbable which supports the conclusion that there must be other assets of 
NSL that the Respondent kept hidden from the public eye.  
12. 
 
In respect of the plea of concealment in the income tax returns, 
learned counsel referred to the statement of assets filed by the Respondent 
under Section 116(2) of the Income Tax Ordinance, 2001 (“the Ordinance, 
2001”) for the year 2014-15 (pages 24-31 of CMA 7925/16). It is the 
petitioner’s case that when the Respondent became an income tax filer he 
was a resident in Pakistan. Thus he was bound under the law to disclose 
both local and foreign assets owned by him as and when he became a filer. 
Const.P.35 of 2016 
13 
Learned counsel submitted that under the Wealth Tax Act, 1963 repealed on 
1.7.2003 (“the Act, 1963”) the Respondent was bound to declare NSL and the 
assets owned by it. He referred to Sections 4 [particularly sub-section 
(1)(a)(iii) and (5)] and 14 of the Act, 1963 and the Wealth Tax Forms (old and 
current). He also referred to Sections 2(64), 4, 9, 10, 11(5) and Section 116(2) of 
the Ordinance, 2001 to argue that when a resident person files his return he 
has to declare local and foreign income sources and correspondingly file a 
wealth statement. The form required to be filed under the Act, 1963 has a 
specific column for declaring assets. He also referred to a notification dated 
26.6.2015. In support of his argument that the Respondent’s interest in NSL 
was an asset which had to be declared under the law, learned counsel 
referred to the definition of the term “share” in Section 2(58) of the 
Ordinance, 2001 and stated that since the word “asset” has not been defined 
in the said Ordinance, therefore, its definition has to be taken from common 
law and according to him “asset” includes “share”. 
He also argued that the Respondent accepted that he is the absolute 
owner of NSL (para 7 of CMA No.7925/2016) and also that he is its beneficial 
owner (para 7 and 21 of CMA No.7925/2016). As per a news item dated 
14.5.2016, the Respondent admitted that he formed an offshore company to 
buy the London flat to avoid paying taxes in the UK during his cricketing 
days (page 130 of Const.P. No.35/2016). According to the learned counsel 
these are major contradictions which render the Respondent to be not honest 
and ameen and therefore disqualified. 
13. 
 
Coming to the submission regarding concealment of foreign 
property and NSL before the ECP, learned counsel referred to the statement 
of assets and liabilities of the Respondent for the years 2013 and 2014 filed in 
his Annual Returns under Section 42A of the Representation of the People 
Const.P.35 of 2016 
14 
Act, 1976 (“ROPA”) with ECP (pages 154 to 156 and 159 to 161 of Const.P. 
No.35/2016), in which neither the property of nor the shares in NSL or the 
very existence of NSL is mentioned particularly under para 4(b) and 5(b) of 
the prescribed statement of assets in the forms. According to him the 
Respondent was bound to mention his foreign interests in his annual 
statement of assets and liabilities filed before the ECP under Section 42A of 
the ROPA.  As per the said legal provision, if a person fails to file a statement 
of assets and liabilities the Chief Election Commissioner shall suspend his 
membership and he may be prosecuted for committing corrupt practices. 
Apart from the London flat, NSL was a juristic entity, incorporated and run 
for the benefit of the Respondent. Accordingly his ownership in NSL had to 
be mentioned in the declaration till dissolution of NSL on 2015. In this 
context learned counsel relied upon Rai Hassan Nawaz’s case (supra).  
14. 
 
As regards the Tax Amnesty Scheme, learned counsel 
submitted that in 2000 the Respondent availed the incentive of a tax amnesty 
under the said Scheme announced by the then government  under Section 
59D of the Income Tax Ordinance, 1979 to whiten the amount of Rs.2/- 
million equivalent to the price of UK £117000/- paid for the London flat. For 
the said relief the Respondent paid income tax of Rs.240,000/-. However, 
NSL was not mentioned by the Respondent in his declaration under the 
Amnesty Scheme. He referred to the form of declaration of undisclosed 
income (page 50 of CMA No.7925/2016) filed under the Amnesty Scheme, 
wherein the Respondent admitted that in the income year 1983-84 (this is 
assessment year 1984-85), he had an undisclosed income of £117000 equal to 
Rs.2/- million to whiten the same, the Respondent paid tax in the amount of 
Rs.240,000/- (para 7 of CMA No.7925/2016). He submitted that what the 
Respondent could only whiten under the Amnesty Scheme is his personal 
Const.P.35 of 2016 
15 
incomes and not the London flat which was owned by NSL as a juridical 
entity. The claim by the Respondent that he had declared that London flat is 
a mis-statement  exposing him to disqualification. Even otherwise the 
Respondent concealed the beneficial ownership of the flat for approximately 
17 years (from 1983 to 2000) until he filed Nomination Papers for contesting 
the general elections in 2002. Thus the Respondent is not honest and ameen 
and liable to be disqualified under Article 62 of the Constitution. 
 
Alleged false and contradictory declarations about the Banigala 
property. 
 
15. 
 
The crux of the submissions of the learned counsel in this 
regard is that the Respondent is guilty of money laundering and tax evasion 
with regard to his property in Banigala and the contradictory pleas taken in 
this regard amount to misdeclaration rendering the Respondent liable to be 
disqualified under Article 62(1)(f) of the Constitution being not sagacious 
and honest and ameen. According to the learned counsel, the above 
submission is borne out by the following facts.  
16. 
 
The Respondent entered into an agreement for the purchase of 
land measuring 300 kanals and 5 marlas in village Mora Noor, Tehsil  
and District Islamabad vide agreement to sell dated 13.3.2002 (concise 
statement CMA No.7925/2016) for a total sale consideration of Rs.43.5 
million payable by 30.06.2002. The concise statement states that Rs.6.5 
million was paid as advance (page 15 of CMA No.7925/2016). However, the 
written agreement records that initially Rs.300,000/-  was paid for expenses 
by cheque followed by payments of Rs.3.0 million on 13.3.2002 and Rs.3.5 
million on 21.3.2002 totaling Rs.6.5 million. An amount of Rs.36.2 million was 
then paid in five installments made through cheques and another cash 
payment of Rs.800,000/- through cash (seller’s acknowledgment receipts at 
Const.P.35 of 2016 
16 
pages 75 and 76 of CMA No.7925/2016). Learned counsel for the petitioner 
stated that after payment of advance, the remaining sale consideration in the 
amount of Rs.36.2 million was allegedly borrowed by the Respondent from 
his ex-wife. However, no detail of any banking transfer made by the ex-wife 
from UK to Pakistan to the credit of the Respondent has been placed on 
record. Similarly, no transaction for the return of the borrowed money by the 
Respondent to his wife in the UK has been shown. In this regard, a certificate 
of Citibank was produced (page 64 of CMA No7925/2016) showing 
conversion of US$ amounts to PKR. These entries did not evidence any 
remittance nor show any connection between the remitter and the 
Respondent as recipient.  
Learned counsel submitted that the Banigala property was ‘parked’ in 
the name of his ex-wife, Ms. Jemima Khan. The spouses were divorced in 
June, 2004 (para 8 of concise statement, CMA 7925/2016). On 11.6.2005 vide 
mutation No.7361 land measuring 45 kanals bearing a sale value of Rs.6.5 
million was mutated in the name of the Respondent’s ex-wife (page 85 of 
CMA No.7925/2016). Likewise, on the same day land measuring 50 kanals 
valuing Rs.7.25 million was also mutated in her name vide mutation 
No.7538. Why were mutation Nos.7361 and 7538 for land measuring 45 and 
50 kanals respectively recorded in favour of Ms. Jemima Khan after her 
divorce and then ultimately retrieved by the Respondent vide gift mutation 
No.10696 dated 29.10.2005 whereby the entire chunk of 300 kanals land was 
transferred by Ms. Jemima Khan to the Respondent. This sequence of back 
and forth transfers was alleged by learned counsel for the petitioner to be 
farcical and a sham which went against the case of the Respondent as set out 
in his pleadings. These gift mutations in favour of the Respondent that took 
place in 2005 have no justification because by that time the divorce between 
Const.P.35 of 2016 
17 
the Respondent and his ex-wife had already taken place in June 2004. He 
submitted that the intention of the Respondent behind parking the Banigala 
property in his wife’s name was to avoid questions about the source of 
funding for the purchase of the Banigala property and to evade taxes.  
Learned counsel referred to the nomination papers of the Respondent 
filed on 28.8.2002 for the general elections held in 2002 (CMA No.3125/17). 
In particular he referred to pages 6 and 7 to submit that the benami 
transaction of Banigala property in favour of the Respondent’s ex-wife, the 
claimed loan from her and the three mutations already recorded in her 
favour were not mentioned in the relevant columns. He also referred to 
Annexure A of the nomination papers and stated that it was not a truthful 
disclosure of the position taken up by the Respondent himself. 
Learned counsel submitted that the London flat was sold for 
£715,000.00 (pages 58 and 59 of CMA No.7925/2016). After deducting the 
agent’s commission and other expenses; the net yield of £690,307.79 was 
received by the Respondent on 14.4.2003. Considering the exchange rate 
prevailing at that time the Respondent got approximately Rs.63 million from 
the said sale out of which Rs.39 million was the alleged loan amount given 
by his wife (figure taken from concise statement CMA No.7925/2016). No 
detail regarding the utilization of the balance amount of net sale value of the 
London flat, that is Rs.33.6 million, was provided by the Respondent. 
Further, there is no money trail (page 64 of CMA No.7925/2016) and there 
are two transfers on the same day, i.e. 31.08.2002, all of which point towards 
money laundering by the Respondent. 
17. 
 
According to learned counsel for the petitioner, the Respondent 
gave three versions at different times with regard to the ownership of this 
Banigala property. One of the versions is that he purchased it himself. Then 
Const.P.35 of 2016 
18 
there is a general power of attorney dated 21.03.2005 (at page 157 of Const.P. 
No.35/2016) according to which his ex-wife claimed that the Banigala 
property was purchased by the Respondent but mutated in her name as a 
benami transaction; and she appointed Saifullah Sarwar Khan Niazi as an 
attorney to get it transferred back in the name of the Respondent. According 
to this version, the Respondent purchased the land from his own money but 
he ran short of funds. Therefore, he borrowed money from his ex-wife and 
mutated the land in her name but on the sale of the London flat he paid back 
the money to his ex-wife. The second version taken by the Respondent before 
the ECP is that this property was gifted to him by his ex-wife. Reference is 
made to the statement of assets and liabilities submitted before the ECP 
(page 34 and para (ii) at page-35 of CMA No.7925/2016) and the 
Respondent’s statement of assets and liabilities before FBR (page 24 of CMA 
No.7925/2016). The Respondent in his tax return filed before the FBR for the 
tax year 2014 mentions that 300 kanals 5 marlas house was gifted to him. In 
the statement of assets and liabilities submitted to the ECP (page 159 of 
Const.P. No.35/2016) it is also stated to be a gift. There is no gift deed on the 
record however the property is mentioned in the revenue record as hiba. 
According to the learned counsel, the Respondent paid Rs.3.8 million 
from his personal resources through money laundering as such his ex-wife 
cannot be a benamidar. Thus the statement that she was the benamidar is a 
misdeclaration. Had his wife paid the money she could not be a benamidar 
rather was the actual owner. It is settled that a benamidar cannot make a gift. 
He relied on Smt. Harjunder Kaur and others Vs. Mrs. Usha Gupta and 
another (1998 PTD 2477) = (222 ITR 200) and Sankara Hali and Sankara 
Institute of Philosophy and Culture   vs.   Kishore Lal Goenka [1996 (7) 
SCC 55 ]. During her interview with CNBC and Samaa, the Respondent’s ex-
Const.P.35 of 2016 
19 
wife said that she never paid a single penny to the Respondent nor received 
the same from him whereas in his statement on ARY Channel, the 
Respondent said that the entire money from sale of the UK flat came to 
Pakistan (script of TV programmes at page 31 of CMA No.1169/2017).  
As precedent for disqualification of a legislator under Article 62(1)(f) 
of the Constitution, the learned counsel placed reliance on Allah Dino Khan 
Bhayo Vs. Election Commission of Pakistan, Islamabad and others (2013 
SCMR 1655), Mian Najeeb-ud-Din Owasi and another Vs. Amir Yar Waran 
and others (PLD 2013 SC 482) and the case of Ch Muhammad Yousaf 
Kaselia Vs. Peer Ghulam Mohy-ud-Din Chishti and others (PLD 2016 SC 
689). 
18. 
 
Learned counsel then referred to the Respondent’s speech 
made in Parliament on 18.5.2016 (page 3 and 17 of CMA No.1169/2017) and 
his Concise Statement (CMA No.7925/2016, page 4, para 13) to argue that 
both these statements were contradictory. Especially when claimed on the 
floor of Parliament there should be a banking transaction that all the money 
from the sale of the London flat was brought to Pakistan. Thus, the 
Respondent exposed himself to the liability of the penalty provided by 
Article 62(1)(f) of the Constitution on account of his deliberate, repeated mis-
declaration and dishonest statements, thus he cannot be presumed to be 
honest and ameen. 
19. 
 
Finally learned counsel submitted that both the Federal 
Government and ECP failed to perform their duty and since no forum is 
provided under the PPO for taking action when a false declaration is given 
by a party head, this Court can exercise its jurisdiction under Article 184(3) of 
the Constitution. Reliance was placed on the cases of Umar Ahmad 
Ghumman Vs. Government of Pakistan and others (PLD 2002 Lah 521), Air 
Const.P.35 of 2016 
20 
Marshal (Retd.) Muhammad Asghar Khan Vs. General (Retd.) Mirza 
Aslam Baig, Former Chief of Army Staff and others (PLD 2013 SC 1), Pir 
Sabir Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, 
N.W.F.P. and another (PLD 1995 SC 66) and Miss Benazir Bhutto Vs. 
Federation of Pakistan and another (PLD 1988 SC 416). 
20. 
 
No arguments were made about the petitioner’s allegation 
regarding Constitution Avenue property.  
 
Respondent’s reply: 
21. 
 
Mr. Anwar Mansoor Khan, learned counsel for Respondent 
No.2 PTI, whilst answering the pleas raised by the petitioner’s side about 
prohibited funding availed by PTI especially with reference to Clause IV, V 
and VI of the prayer made in the petition articulated the following 
formulations that were also submitted in Court in writing: 
“1. 
At the outset, the Chairman of his client PTI 
instructed him not to press any objections to 
the maintainability of this petition under 
Article 184(3) of the Constitution. 
2. 
Whether receiving ‘contribution’ or ‘donations’ 
from abroad makes the PTI is a “Foreign Aided 
Political Party” under the Political Parties 
Order 2002? 
3. 
Whether, once the accounts as required by 
Article 13 of the Political Parties Order 2002 
have been filed by PTI, no objection having 
being raised by the Election Commission of 
Pakistan, and finding it to be proper, acted to 
publish it and allot the election symbol, the 
issue is past and closed? 
Const.P.35 of 2016 
21 
4. 
Whether 
the 
FARA 
Foreign 
Agents 
Registration Act, 1938 being a mandatory 
requirement in the USA, wherefore the 
registration of PTI’s agent in the FARA in fact 
makes transparent the accounts of the agent 
and donations and contributions collected 
from the members and supporters of PTI. 
Further where PTI USA LLC acted only as an 
agent of PTI Pakistan to remit funds received/ 
collected as ‘Contributions’/‘Donations’ to its 
principal then could the FARA agent said to 
have contributed/donated such funds as a 
body corporate?” 
 
22. 
 
Learned counsel submitted that the two terms ‘aid’ and 
‘contribution’ appearing in the PPO with reference to funds received by a 
political party are distinct from each other according to their respective 
dictionary meanings and signify different concepts in the PPO (he referred to 
Chambers Dictionary, Law Lexicon and Black’s Law Dictionary). Before 
considering the merits of the dispute, reference may be made to the 
following relevant provisions of the PPO that have a bearing upon the merits 
of the case: 
 
2. Definitions.- In this Order, unless there is anything repugnant 
in the subject or context,-  
 
(a)  
… 
 
(b)  
…  
 
(c) “foreign-aided political party” means a political party 
 
which-  
 
(i)  
… 
 
(ii)  
…  
 
(iii)  
receives any aid, financial or otherwise, from any 
 
 
government or political party of a foreign country, 
 
 
or any portion of its funds from foreign nationals;" 
 
 
6. Membership fee and contributions.- (1) A member of a 
political party shall be required to pay a membership fee as 
provided in the party’s constitution and may in addition, make 
voluntary contributions towards the party’s funds.  
Const.P.35 of 2016 
22 
(2) The contribution made by members or supporters of any 
party shall be duly recorded by the political parties. 
(3) Any contribution made directly or indirectly, by any foreign 
government, multinational or domestically incorporated public 
or private company, firm, trade or professional association shall 
be prohibited and the parties may accept contributions and 
donations only from individuals.  
(4) Any contribution or donation which is prohibited under this 
Order shall be confiscated in favour of the State in the manner as 
may be prescribed.  
Explanation.- For the purpose of this section, a “contribution or 
donation” includes a contribution or donation made in cash, 
kind, stocks, hospitality, accommodation, transport, fuel and 
provision of other such facilities. 
 
 
13. Information about the sources of party’s fund.- (1) Every 
political party shall, in such manner and in such form as may be 
prescribed or specified by the Chief  Election 
Commissioner, 
submit to the Election Commission, within sixty days from the 
close of each financial year, a consolidated statement of accounts 
of the party audited by a Chartered Accountant containing-  
(a) annual income and expenses;  
(b) sources of its funds; and  
(c) assets and liabilities.  
(2) The statement referred to in clause (1) shall be accompanied 
by a certificate signed by the party leader stating that-  
 
(a) no funds from any source prohibited under this Order 
 
were received by the party; and  
 
(b) the statement contains an accurate financial position 
 
of the party.” 
 
 
15. Dissolution of a political party.— (1) Where the Federal 
Government is satisfied that a political party is a foreign-aided 
party or has been formed or is operating in a manner prejudicial 
to the sovereignty or integrity of Pakistan or is indulging in 
terrorism it shall make such declaration by a notification in the 
official Gazette.  
(2) Within fifteen days of making a declaration under clause (1), 
the Federal Government shall refer the matter to the Supreme 
Court whose decision on such reference shall be final.  
(3) Where the Supreme Court upholds the declaration made 
Const.P.35 of 2016 
23 
against a political party under clause (1), such party shall stand 
dissolved forthwith.” 
 
Article 2(c)(iii) of the PPO uses the word ‘aid’ and the consequence of being a 
foreign-aided political party is contained in Article 15 thereof [read with 
Article 17(2) of the Constitution] which empowers a declaration of 
dissolution of the political party by the Federal Government. He stated that 
‘foreign-aided political parties’ are those which work against the sovereignty 
and integrity of Pakistan and this phrase has only been used in Articles 
2(c)(iii) and 15 of the PPO.  
Learned counsel then referred to Article 6(3) of the PPO which 
according to him is a separate and distinct provision which deals with 
prohibited contributions and donations made to a political party by certain 
specified entities/persons, for which the penalty of confiscation is provided 
in Article 6(4) of the PPO. Being a penal provision, Article 6(4) ibid must be 
strictly construed and applied. He particularly dilated upon the word ‘multi-
national’ used in Article 6(3) ibid which according to him did not mean a 
foreign company, but a company incorporated under the laws of Pakistan 
which is operated by a foreign company. In this context he referred to the 
definition of ‘multi-national corporation’ in Black’s Law Dictionary. 
According to him, Articles 2(c)(iii) and 15 of the PPO on the one hand, and 
Articles 6(3) and 6(4) thereof on the other hand, are two distinct provisions of 
law which entail two different penalties. As regards the certificate to be 
given by a party head under Article 13 of the PPO wherein the expression 
‘prohibited sources’ has been used, the relevant prohibition is contained only 
in Article 6(3) supra.  
He referred to SRO No.581(I)/2002 (page 16 of CMA No.3239/17) 
according to which US nationals of Pakistani origin can have dual 
Const.P.35 of 2016 
24 
nationality. Therefore the expression ‘foreign national’ used in Article 
2(c)(iii) of the PPO exclude dual nationals, who are Pakistani citizens for all 
intents and purposes. 
23. 
 
Learned counsel submitted that PTI submitted its annual 
audited accounts to the ECP, including the accounts relating to the PTI’s 
receipts of foreign funds commencing from the year 2010 and thereafter, 
after scrutiny these accounts were gazetted by the ECP for the information of 
the general public. Subsequently, under the provisions of Article 14 of the 
PPO and as evidence of approval of these accounts, ECP allotted an election 
symbol to the PTI on which it contested the general elections in 2013. A 
political party must fulfill two conditions under Article 14 of the PPO before 
the ECP can allot an election symbol to it. These conditions are: (i) to conduct 
intra-party elections under Article 12 of the PPO; and (ii) to submit their 
audited accounts to the ECP as required by Article 13 of the PPO. At this 
juncture, he referred to Sections 3 and 3A of the Political Parties Act, 1962 
(“the Act, 1962”) to argue that under the said Act, every political party was 
required to submit its records to the officer nominated by the ECP for the 
audit of its accounts and source of funds. However, this provision for audit 
by the ECP is absent in the PPO and instead Article 13 thereof provides for 
audit to be conducted by chartered accountants appointed by the political 
party itself. He stated that this change in the law is important and must be 
given due meaning.  
Thus, the burden lies on the chartered accountants of a political party 
to scrutinize and submit accounts that comply with the provisions of the 
PPO. In case, anything is amiss in the audited accounts furnished then action 
is to be taken against him or for rectification. If the ECP finds any deficiency 
or defect in the accounts submitted, it can proceed under Rule 6 of the 
Const.P.35 of 2016 
25 
Political Parties Rules, 2002 (“Rules, 2002”) for obtaining information or 
directing correction. In the present case, the ECP did not do so at the relevant 
time. However, according to the learned counsel, after the issuance of 
symbols for the general election held in 2013, the petitioner cannot now be 
allowed to raise the issue of accounts before this Court. In terms of Article 14 
and Rule 10 the matter of accounts submitted by PTI has become a past and 
closed transaction and ECP cannot review its order to re-open the matter as it 
has become functus officio. Furthermore, a third person does not have the 
locus standi to question before ECP the accounts of PTI by alleging that it has 
availed funding from prohibited sources. The ECP cannot accept such an 
application particularly after super-structural actions have taken place, 
namely, allotment of election symbols and holding of general elections.  
24. 
 
Learned counsel stated that PTI’s accounts were audited by 
chartered accountants certified as ‘A’ class by the State Bank of Pakistan. 
Learned counsel referred to the auditor’s report (page 33 of CMA 
No.3239/2017) and the certificate by the party head that no fund has been 
received from prohibited sources (page 34 of CMA No.3239/2017). None of 
PTI’s accounts are qualified for being doubtful, erroneous or contrary to law 
as it would have appeared in the chartered accountants’ report. In fact, the 
accounts filed by other parties are qualified, e.g. PML(N) and PPP (pages 67 
and 68 of CMA No.3239 of 2017). PPP also appointed a foreign agent under 
FARA. The Government of Pakistan was also registered with FARA as donor 
in 2012.  
He referred to the following: the internal procedure, checks and 
guidelines for receipt of funds by PTI (page 82 of CMA No.3239/2017). 
According to the guidelines, PTI requested the bank to return ₤97,680/- 
remitted by a foreign company; PTI’s fund raising policy and the rules in this 
Const.P.35 of 2016 
26 
regard (pages 2 and 3 of CMA No.3239/2017), particularly Para B (Fund 
Raising Team); the Bylaws of PTI NA LLC in which it is admitted that it is an 
agent of PTI Pakistan (aims and objectives at page 6 of CMA No.3239/2017; 
raising and disbursement of funds at page 9 and 10 of the said CMA; para–G, 
Clause 7 which mentions that money is only spent for the intended purposes 
defined in the FARA application (page 15 of CMA No.3239/2017).  
25. 
 
With regard to the jurisdiction of ECP to scrutinize the 
accounts, learned counsel argued that Article 219 of the Constitution lays 
down the specific functions conferred upon the ECP; clause (e) thereof 
however, permits for such other functions of ECP to be provided as or 
specified by an Act of Parliament. The PPO provides for the submission to 
and scrutiny of accounts of political parties by the ECP. However, the PPO 
does not envisage ECP to conduct their audit. Therefore, the Rules cannot 
provide for what has not been provided in the parent law, i.e. the PPO, itself. 
According to him, the ECP under Article 6 of the PPO is neither a Court nor 
a Tribunal capable of making determinations; rather it can only exercise 
executive power under the PPO. At the time of submission of accounts of 
political parties containing the reports of the auditors, ECP can undertake 
their scrutiny and finalize such accounts. Once such accounts have been 
accepted by the ECP, their scrutiny cannot be reopened. Prior to the 
acceptance of audited accounts, their scrutiny by ECP can only be 
inquisitorial as opposed to adversarial in nature. In this context, he referred 
to Section 103AA of ROPA which confers a specific power of determination 
upon the ECP which is absent in the PPO. According to him, if a power has 
not been specifically given to the ECP by the PPO, such power cannot be 
read into the law and exercised by the ECP. Rule 6 which vests ECP with a 
power of deciding the validity of the accounts is excessive because the PPO 
Const.P.35 of 2016 
27 
itself does not confer such a power on the ECP. Thus any exercise of a 
determinative jurisdiction by the ECP would be improper and in excess of 
authority. Finally, he referred to Rule 4 of the Rules and Form-I. He also 
relied upon Rule 10 to argue that since the ECP did not return the statements 
of accounts submitted by PTI thus the ECP considered these to be correct and 
accepted the same. 
He referred to the judgments reported as Mian Umar Ikram-ul-
Haque vs. Dr. Shahida Hasnain and another (2016 SCMR 2186), 
Independent Newspapers Corporation (Pvt.) Ltd and another vs. 
Chairman, Fourth Wage Board and Implementation Tribunal for 
Newspaper Employees, Government of Pakistan, Islamabad and 2 others 
(1993 SCMR 1533), Pir Sabir Shah’s case (supra) and Sindh High Court Bar 
Association through its Secretary and another vs. Federation of Pakistan 
through Secretary, Ministry of Law and Justice, Islamabad and others 
(PLD 2009 SC 879). In support of the contention that the ECP cannot act as a 
Court or Tribunal, learned counsel relied upon the judgments reported as 
Watan Party and another vs. Federation of Pakistan and others (PLD 2011 
SC 997 @1053), and Philips Electrical Industries of Pakistan Ltd. vs. 
Pakistan and others (2000 YLR 2724 @2734-35). He relied on the judgment 
reported as A. R. Awan and 2 others vs. City District Government, Karachi 
and another (2011 SCMR 691) on the proposition that Courts should not 
extend the scope of a statute. 
26. 
 
With regard to the issue of FARA, learned counsel began by 
reading the definitions of ‘foreign principal’ [in §611(b) and §611(2) of FARA] 
and ‘agent of a foreign principal’ [in §611(c) of the Chapter on FARA in Title 
22-Foreign Relations and Intercourse]. He also referred to §611(d) of FARA 
which provides what the term ‘agent of a foreign principal’ does not include. 
Const.P.35 of 2016 
28 
According to him, PTI USA LLC falls within §611(c)(1)(iii) of FARA. It is 
registered in the name of an individual. It has got nothing to do with 
Pakistan per se but it acts as an agent of PTI for the purposes of collection 
and remittance of money to Pakistan as directed by the principal and in 
accordance with the arrangements with that agent. The agent is a body 
corporate for which PTI has not invested a penny. He referred to the by-laws 
of PTI USA LLC (page 6 of CMA No.3239/2017, particularly Para G on page 
9). He referred to the letter issued by PTI (page 2 of CMA No.3239/2017), PTI 
Pakistan’s letter of appointment of PTI USA LLC as an agent (page 14 of 
CMA No.3239/2017) and PTI Pakistan’s fund raising Policy (page 3 of CMA 
No.3239/2017, hereinafter referred to as the “Policy”). It is permissible in the 
USA for foreign political parties to collect funds. However, it is a 
requirement of FARA that this is done through an agent. In fact, individuals 
cannot send money to political parties abroad. He also referred to §612(a) of 
FARA commentary in this regard. He referred to the Policy (Para E on page 4 
of CMA No.3239/2017) and Section 188 of the Contract Act, 1872 which 
pertains to agency and submitted that PTI USA LLC is a foreign company 
but it is an agent of PTI Pakistan, therefore it is not sending its own funds to 
PTI Pakistan but collecting money on behalf of PTI Pakistan and merely 
sending these collections to PTI Pakistan. Therefore such receipts do not fall 
within the prohibited sources under Article 6(3) of the PPO.  
The rationale of Article 17(2) of the Constitution read with Article 
2(c)(iii) of the PPO is that no harm is done by any political party to the 
sovereignty and integrity of Pakistan. According to him, a “foreign national” 
referred in Article 2(c)(iii) means a national of a foreign state exclusively and 
not a dual citizen. With respect to his contention that dual nationals are not 
foreigners and can make contributions and donations under Article 6 of the 
Const.P.35 of 2016 
29 
PPO, learned counsel referred to the judgments reported as Nasir Iqbal  vs.  
Federation of Pakistan (2013 SCMR 874) and Syed Mehmood Akhtar Naqvi 
vs. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 
1089, Justice Jawwad S. Khawaja’s note at 1128) and Umar Ahmad 
Ghumman’s case (supra) and the judgment rendered in Const.P. No.26/1993 
dated 15.11.1993 (Yasmin Khan   vs.  Election Commission of Pakistan). 
27. 
 
Learned counsel pointed out that other political parties also 
have appointed foreign agents under FARA in the United States. These 
include MQM, PPP, APML. PML(N) has an agent registered in England as a 
private company. Its objects are to borrow or raise money, trade or business, 
to enter into an arrangement with any government, authority or charter 
(Clauses 3.1.8 to 3.1.10 at page 3 of the Memorandum of Association). 
According to him, this is a direct violation of Article 2(c)(iii) of the PPO. 
Thus, the petitioner who belongs to PML(N) has come to this Court with 
unclean hands. 
28. 
 
Mr. Naeem Bukhari, learned ASC for the Respondent No.1 
made the following submissions: 
i. 
Till October 2002, the Respondent was not a public office 
holder;  
 
ii. 
From 1971 till 1988 the Respondent was a professional cricketer 
who played county cricket in England for the Worcestershire 
Cricket Club and the Sussex Cricket Club, and in Australia for 
the Kerry Packer World Series under contract with Channel 9; 
 
iii. 
The Respondent did not file tax returns in Pakistan until 1981 
because he was a non-resident for income tax purposes 
(Learned counsel placed the original copies of his returns in a 
sealed envelope for this Court’s consideration). During this 
period the Respondent was not a holder of public office; 
 
Const.P.35 of 2016 
30 
iv. 
The Respondent purchased Flat No.2, 165 Draycott Avenue, 
London, United Kingdom, SW3 (London flat) in 1983 for a 
price of £117,000/-. To finance the purchase of the property, he 
got a mortgage on it which he redeemed after six years by 
payment of the mortgage money. The London flat was 
purchased with the income he earned from professional cricket; 
 
v. 
On professional legal advice, the London flat was purchased 
through NSL. It was advised that purchase of the property 
through an offshore company would relieve the Respondent 
from liability to pay capital gains tax at the time of its disposal; 
whereas if the property were purchased in his name such tax 
would be leviable. It is with the said purpose that NSL was got 
incorporated on 10.5.1983 (page 22 of Const.P.No.35/2016); 
 
vi. 
The subscribed capital of NSL was £9/-. Three financial 
institutions, namely, Langtry Trustees Limited, Langtry 
Secretaries Limited and Langtry Consultants each held £3 
worth of shares in NSL (page 105 of Const.P. No.35/2016). 
However, there was a subsequent change in the shareholding 
as Barclays Private Bank and Trust Ltd. took Langtry’s place 
and managed NSL thereafter; 
 
vii. 
Though the object of purchasing the London flat in the name of 
an offshore company was to limit the tax liability of its 
beneficial owner, the Respondent, who was then resident of UK 
(thus non-resident in Pakistan). But by 1983 the Respondent 
became non-resident in UK and resident in Pakistan. 
Accordingly, he started filing his income tax returns from the 
year 1983. Since he became a non-resident in the UK at the time 
of sale of the London flat in April, 2003, the Respondent was 
not liable to capital gain tax. In hindsight the setting up of NSL 
was a waste of effort;  
 
viii. 
According to the learned counsel, having disclosed the London 
flat (in the Amnesty Scheme), the omission of non-disclosure of 
Const.P.35 of 2016 
31 
an offshore company with a subscribed shareholding of merely 
£9/- (with the Respondent having no share) rendered it a shell 
company. Its non-disclosure does not amount to concealment 
of an asset and the Respondent cannot be disqualified for it. 
The flat was disclosed in the income tax returns and the 
nomination papers filed by the Respondent in 2002. Ultimately 
the said flat of the Respondent was sold in 2003; 
 
ix. 
The London flat purchased in 1983 was not declared in any tax 
return in Pakistan on advice that since it had been purchased 
with foreign income, there was no requirement to declare it. 
However, when the Amnesty Scheme was announced on 
1.3.2000 (page 44 onwards of CMA No.7925/2016), the 
Respondent took advantage of it and on 30.9.2000 declared the 
income with which the London flat was bought (page 50 of 
CMA No.7925/2016) as well as the flat itself (page 51 of CMA 
No.7925/2016). Tax was paid thereupon at the rate prescribed 
in the scheme and the matter stood settled. The Central Board 
of Revenue and its successor, the Federal Board of Revenue, 
have not raised any issue till date.  
 
x. 
According to Clause 10 of the Amnesty Scheme (page 45 of 
CMA No.7925/2016), the proceedings thereunder attain finality 
where undisclosed income is declared and tax is paid 
thereupon. The Respondent was always the beneficial owner of 
the London flat. Non-declaration of NSL is absolutely 
irrelevant because the finance for the purchase of the London 
flat was provided by the Respondent after it was sold by him in 
2003 he received the sale price thereof (subject to certain 
deductions as is shown in the chart/statement available at page 
58 of CMA No.7925/2016). 
 
xi 
The Respondent never considered NSL to be his asset. It was 
merely a single purpose vehicle meant to be a holding entity. 
The Respondent was never a shareholder of NSL, therefore, it 
was neither declared in his tax returns nor in his nomination 
papers before the ECP or his statement of assets and liabilities 
Const.P.35 of 2016 
32 
filed under Section 42A of ROPA. Returns of NSL had to be 
filed by its directors or its shareholders in Jersey and not 
Pakistan. Thus there was no ground for the Respondent to 
disclose anything about NSL in Pakistan. The Respondent has 
given an affidavit to the effect that NSL did not hold any other 
asset apart from the London flat; 
xii. 
The London flat was declared by the Respondent in the 
nomination papers dated 28.08.2002 for general elections 2002 
(page 6 of CMA No.3125/2017). This is the first time the 
Respondent secured public office. He declared the London flat 
prior to assuming the public office of Member National 
Assembly in Annex-A to his nomination papers (page-9 of 
CMA No.3125/2017) in which the Banigala property belonging 
to his then wife was also disclosed. Thus he submitted that 
having declared the London flat in the Amnesty Scheme and 
then in his nomination papers of 2002, the matter stands settled 
after sale of the flat in 2003.  
 
Property at One Constitution Avenue:  
xiii. 
As regards the property at One Constitution Avenue, learned 
counsel submitted that the Respondent had paid an amount of 
Rs.2,970,000/- as advance for the purchase of a flat in One 
Constitution Avenue, Islamabad. He had duly disclosed this 
amount in the tax returns filed by him for the year 2014 (page 
25 of CMA No.7925/2016). It is the exact same amount as 
alleged by the petitioner (page 153 of Const.P. No.35/2016). 
This amount is shown to be an advance payment in his tax 
return. However, since no flat was allocated to him at that time, 
therefore, he did not mention the amount of advance paid for 
the purchase of the said flat in his 2014 statement of assets and 
liabilities filed with the ECP under Section 42A of the ROPA. 
Nevertheless, when a specific flat was allotted to the 
Respondent and its flat number became known to him, he 
declared that property in his 2015 statement of assets and 
liabilities filed with the ECP (page 32 of CMA No.7925/2016). 
Const.P.35 of 2016 
33 
Moreover, since further installments for the said flat had been 
paid, therefore, in his 2015 tax return (page 30 of CMA 
No.7925/2016) the further amounts paid were added to the 
advance deposit to reflect the total amount of prepayment as 
Rs.5,970,000/-. Further sums were paid subsequently, therefore 
in the 2016 statement of assets and liabilities filed by the 
Respondent with the ECP he disclosed the further amounts 
deposited till that time to be Rs.11,970,000/- (page 38 of CMA 
No.7925/2016). Therefore, the question that the Respondent 
had concealed the details of his payment for the flat and in his 
tax returns is absolutely unfounded. 
Banigala property: 
xiv. 
Learned counsel referred to the agreement to sell dated 
13.3.2002 (page 60 to 63 of CMA No.7925/2016). It is 
undisputed that the agreement is between the seller of the 
Banigala property and the Respondent. The price of Rs.43.5 
million is also undisputed. The agreement refers to initial down 
payment of 6.5 million by the Respondent. Further payments 
are referred in the acknowledgment receipt dated 24.7.2003 
issued by the seller (page 75 of CMA No.7925 of 2016). The date 
for completion of the sale was extended to 23.1.2003 (when the 
last payment made to seller) except for the said down payment 
and last installment of Rs.800,000/- the remaining amount of 
sale consideration was paid through banker’s cheques (page 77 
to 83 of CMA No.7925/2016). The amount paid with these 
banking instruments was provided by foreign exchange 
remittances made by Ms. Jemima Khan the Respondent’s wife 
through banking channels to the account of the Respondent’s 
representative Rashid Ali Khan. The encashment certificates of 
the remitted foreign exchange to PKR are at pages 65 to 74 of 
CMA No.7925/2016.  
 
xv. 
Since the London flat could not be sold timely primarily due to 
a dispute with its tenant that ultimately went to Court, and as 
according to the agreement to sell of the Banigala property, the 
Const.P.35 of 2016 
34 
Respondent had to discharge the total sale price on or before 
the completion date, therefore, a bridge finance was obtained 
by the Respondent from his wife Ms. Jemima Khan in order to 
meet his obligation to pay the balance sale consideration of the 
Banigala property. In this context, as mentioned earlier, apart 
from payments of Rs.7.3 million by the Respondent to the seller 
of the Banigala property, the remaining amount of Rs.36.2 
million was temporarily funded by Ms. Jemima Khan;  
xvi. 
For all intents and purposes the Banigala property was meant 
for the use of the Respondent’s family, his wife Ms. Jemima 
Khan and their two sons. Had Ms.Jemima Khan not insisted to 
return the property to the Respondent after their divorce, he 
would never have got it transferred to his name;  
xvii. 
The London flat was sold in April 2003 on account of which the 
net amount of £690,307.79 (statement at page 59 of CMA 
No.7925/2016) was recovered on 14.4.2003. Out of the aforesaid 
amount, the Respondent paid £562,415.54 to Ms. Jemima Khan 
(page 12 of CMA No.3657/2017), inter alia, to settle the bridge 
finance of Rs.36.2 million extended by her for purchase of the 
Banigala property; 
 
xviii. He referred to a Citibank certificate (page 64 of CMA 
No.7925/2016), letter from Citibank establishing the identity of 
the remitter (page 13 of CMA No.3657/2017) and the letter 
dated 22.5.2017 stating the remittance of the said amount by the 
Respondent to his ex-wife (page 12 of CMA No.3657/2017); 
 
xix. 
The Respondent’s case is that in May 2003 he returned an 
amount of £562,415.54 to his wife that was well above the 
amount she had loaned to him, through her foreign currency 
remittances made to Mr. Rashid Ali Khan; 
 
xx. 
According to the learned counsel, the Banigala property was 
meant to belong to the Respondent’s wife and had their 
marriage not broken down it would still have been hers. The 
Const.P.35 of 2016 
35 
Respondent’s marriage with Ms. Jemima Khan ended in June 
2004. He referred to pages 137 and 138 (of Const.P. 
No.35/2016) to state that mutations of the Banigala property at 
serial No.1 to 5 are in the name of Ms. Jemima Khan. As 
regards the fact that two of the mutations were sanctioned on 
11.6.2005 much after the sale of the property, learned counsel 
submits that these mutations were entered in 2002-2003 but 
their sanction by the competent revenue officer was delayed 
until 2005 (tareekh-i-faisla). He then referred to the mutations 
on pages 139 onwards of Const.P. No.35/2016. He also referred 
to page 85 of CMA No.7925/2016; 
 
xxi. 
Learned counsel clarified that it was never the Respondent’s 
case that the property was benami rather it was bought in his 
wife’s name. The word benami only appears in her power of 
attorney (page 157 of Const.P. No.35/2016). He states that hiba 
of the Banigala property was then made by her attorney in 
favour of the Respondent; 
 
29. 
 
Learned counsel referred to the five mutations in favour of Ms. 
Jemima Khan and their sanction dates, namely, mutation No.7056 on 
26.4.2002, mutation No.7225 on 16.8.2002 and mutation No.7246 on 28.8.2002. 
He added that the dispute raised by the learned counsel for the petitioner is 
confined to the last two mutations No.7361 and 7538 which were entered on 
11.11.2002 and 4.2.2003 respectively, but were sanctioned on 11.6.2005 
because of the delay in their finalization. He explained that the Respondent 
is in no way responsible for the delay in the sanction of the last two 
mutations. Although the Respondent and Ms. Jemima Khan stood divorced 
in 2004, these mutations had to be sanctioned in the name of Ms. Jemima 
Khan because the original entries in the rapat roznamcha were made in these 
terms in the years 2002 and 2003. Therefore the Respondent neither made a 
false statement nor manipulated or fabricated the revenue record. He further 
Const.P.35 of 2016 
36 
submitted that on 21.3.2005 Ms. Jemima Khan appeared before a notary 
public in England to execute a general power of attorney favouring Saifullah 
Khan Sarwar Niazi for the Banigala property (page 157 of Const.P. 
No.35/2016). In this power of attorney Ms.Jemima Khan categorically states 
her intention to give the Banigala property back to the Respondent 
(paragraph 2 of the power of attorney). In this regard she authorized her 
attorney/agent to either transfer the said property in the Respondent’s name 
or in the alternative to gift it to him. The attorney while exercising his lawful 
power under the power of attorney got a gift mutation No.10696 dated 
29.10.2005 (oral hiba) sanctioned in favour of the Respondent. 
30. 
 
As regards the question of non-declaration of NSL by the 
Respondent in his tax returns and the statement of assets and liabilities filed 
before the ECP, learned counsel pointed out that none of the documents on 
record that relate to NSL including those produced by the petitioner (pages 
22 to 129 of Const.P. No.35/2016) show the Respondent as being a 
shareholder or a director of NSL. Rather, NSL’s shareholders were three 
trustee companies; and its directors at one stage were Ms.Aleema Khan and 
Ms.Uzma Khan, sisters of the Respondent (at pages 60, 103, 105, 107 and 111 
of Const.P. No.35/2016) but later institutional directors were appointed. 
According to the petitioner (sub-para-c, page 10 of Const.P.No.35/2016) the 
Respondent’s sisters are alleged to be his benamidars. That is futile because 
directors of a company cannot own its assets. The sisters were merely trustee 
directors of NSL. As the Respondent was neither a shareholder nor a director 
in NSL, therefore, he was not obliged to disclose the existence of NSL in his 
tax returns nor in his statement of assets and liabilities. In any event, NSL is a 
legal vehicle for owning an asset and not an asset itself. The incorporation of 
and affairs of NSL were handled by a solicitor, chartered accountants and its 
Const.P.35 of 2016 
37 
trustee directors. NSL owned the London flat and the Respondent is the 
beneficial owner of that asset. According to an information memo about 
Jersey Island laws (page 34 of CMA No.3657/2017) the beneficial ownership 
of a property has to be disclosed to the authorities, which according to the 
Respondent was done. In the Tax Amnesty Scheme, 2000 requiring 
declaration of undisclosed income and assets, the Respondent declared his 
beneficial ownership in the London flat and also foreign after tax UK income, 
with which he had purchased the same. According to the learned counsel, 
the Amnesty Scheme confers privileges and rights as envisaged in Section 
59D of the Ordinance, 1979. Therefore, once having declared the London flat 
in the year 2000, disclosure was complete with respect to income earned and 
the asset acquired by the Respondent, thereby entitling him to complete 
immunity from all tax consequences on account of past non-disclosure. The 
declaration of asset by the Respondent made in the year 2000 was continued 
and reiterated in all the tax returns of the Respondent and his statements of 
assets and liabilities filed before the ECP along with his nomination paper 
filed for the 2002 general elections.  
31. 
 
Without prejudice to the plea that the Respondent was not 
obliged to mention the existence of NSL in his tax returns, it is further argued 
that in the Respondent’s statements of assets and liabilities filed with the 
ECP, such failure at the most tantamounts to an omission on the part of the 
Respondent but cannot be considered an act of dishonesty. Disqualification 
could only be attributed to the Respondent if he was adjudged a tax 
defaulter by the competent authority. Till date the erstwhile CBR and its 
successor the FBR have not raised any objection vis-à-vis the London flat. 
While answering the question as to whether NSL had any other assets, 
learned counsel stated that the fact that NSL has no other assets is a negative 
Const.P.35 of 2016 
38 
fact, which is difficult to prove. The fact of ownership of other assets by NSL 
is supposed to have been proved by the petitioner. While referring to 
accounting details by Barclays Bank about NSL provided incompletely in 
CMA No.3800 of 2017, CMA No.6799 of 2017 and CMA No.7459 of 2017, 
learned counsel on Court’s direction provided the complete bank statements 
of NSL from 10.3.2003 to 23.8.2012. He explained that NSL owned only the 
London flat and no other asset. He stated that the figure of £117,500/- in the 
NSL accounts of 2001-02 (CMA No.3800 of 2017) pertain to the price of the 
London flat, whereas the additional amount under the head ‘Cash and 
Contracts’ is the rent received from that flat. As regards the document of 
2004, the head ‘Investments’ in the NSL accounts is reported as £0, because 
by that time the flat had been sold. The figure reported under ‘Cash and 
Contracts’ is the amount for payment to the solicitors for the tenancy 
litigation pertaining to the flat. He stated that after the London flat was 
disposed of, no other asset has remained with NSL. In fact, only the litigation 
with the tenant survived which was concluded on 10.2.2004 vide judgment 
of the English Court of Appeal.  He refuted the petitioner’s conjecture that 
since NSL was alive till 2015, therefore, it was doing some other business or 
held other properties (in addition to the London flat). However, the actual 
reason for keeping NSL alive was that it was embroiled in litigation with the 
tenant of the London flat. He stated that the Trial Court in England had 
granted a decree in favour of the company on 25.6.2003 which was 
subsequently modified by the learned Court of Appeal vide its judgment 
dated 10.2.2004 (page 14 to 17 of CMA No.3657/2017) that reduced the 
compensation awarded by the learned Trial Court from £48,000/- (plus 
interest) to roughly £39,000/- (plus interest). It was for the recovery of that 
amount from the Dutch tenant through execution launched in London and 
Const.P.35 of 2016 
39 
then in Holland that NSL was kept alive to effect recovery in its name 
because NSL was the landlord. 
32. 
 
Adverting to the question of the disconnect between the 
encashment amount of US Dollars claimed to  have been remitted by Ms. 
Jemima Khan on the one hand and the Citibank document dated 7.1.2004 on 
the other hand, learned counsel referred to two documents issued by 
Citibank (at page 13 of CMA No.3657/2017 and page 64 of CMA 
No.7925/2016). He explained that under the agreement to sell for the 
Banigala property dated 13.3.2002 (page 61 to 63 of CMA No.7925/2016) the 
payment of the entire sale consideration amount is Rs.43,500,000.00 was 
made to the seller as follows (chart at page 12 of CMA No.3800/2017):  
i. 
Rs.300,000/- paid in cash by the Respondent on 7.3.2000 (note: 
this amount was adjusted towards brokerage fee and other 
miscellaneous charges); 
 
ii. 
Rs.3,000,000/- paid by the Respondent on the date that the 
agreement was executed, so acknowledged in the agreement 
itself (vide cheque dated 14.3.2002 on page 77 of CMA 
No.7925/2016); 
 
iii. 
Rs.3,500,000/- was paid vide cheque dated 28.3.2002 by the 
Respondent to the seller (page 78 of CMA No.7925/2016). Thus 
the total amount paid was Rs.6,500,000 (excluding the initial 
cash payment); 
 
iv. 
Rs.14,500,000/- was paid by Rashid Ali Khan vide bank draft 
dated 11.4.2002 (page 79 of CMA No.7925/2016); 
 
v. 
Rs.10,000,000/- was paid by Rashid Ali Khan vide bank draft 
dated 1.8.2002 (page 80 of CMA No.7925/2016); 
 
Const.P.35 of 2016 
40 
vi. 
An amount of Rs.2,500,000/- was paid by Rashid Ali Khan vide 
bank draft dated 13.9.2002 (page 81 of CMA No.7925/2016); 
 
vii. 
An amount of Rs.3,500,000/- was paid by Rashid Ali Khan vide 
bank draft dated 2.10.2002 (page 82 of CMA No.7925/2016); 
 
viii. 
An amount of Rs.5,700,000/- was paid by Rashid Ali Khan vide 
bank draft dated 23.1.2003 (page 83 of CMA No.7925/2016); 
and 
 
ix. 
Rs.800,000/- paid in cash by the Respondent acknowledged by 
the seller through an consolidated receipt dated 24.7.2003 (page 
75 of CMA No.7925/2016). 
 
Excluding the initial payment of Rs.300,000/- the above payments total an 
amount of Rs.43,500,000/- which is acknowledged by the consolidated 
receipt dated 24.7.2003 issued by the seller who has raised no dispute or 
complaint about non-payment of any amount due from the Respondent or 
about the dishonour of any of the cheque or bank draft due from the 
Respondent issued on behalf of the latter.  
33. 
 
He explained that remittances were made by Ms. Jemima Khan 
in chunks that were not necessarily encashed and converted fully into rupees 
immediately. In this behalf, he referred to an updated chart of remittances 
made by Ms. Jemima Khan to Mr. Rashid Ali Khan (page 10 of CMA 
No.3800/2017) which are as under:- 
i. 
The first remittance to the Citibank, Islamabad account 
No.9010327943 of Mr. Rashid Ali Khan is for an amount of 
$258,333/-  from the account of Ms. Jemima Khan at the same 
branch. The total transferred amount was converted on 
11.4.2002 at an exchange rate of $1=Rs.59.70 equivalent to the 
amount of Rs.15,422,480.10 (encashment certificate is at page 66 
of CMA No.7925/2016). The statement of account of Ms. 
Const.P.35 of 2016 
41 
Jemima Khan’s Citibank account reflecting the said transfer is 
attached at pages 7-10 of CMA No.4217/17; 
 
ii. 
A remittance of $275,678/- was received by Mr. Rashid Ali 
Khan from Ms. Jemima Khan on 31.07.2002 Citibank, 
Islamabad’s 
letter 
dated 
7.1.2004 
(page 
13 
of 
CMA 
No.3657/2017) certifies the said remittance. This amount was 
not converted to rupees in lump sum but in the following 
parts:- 
 
a. $200,000/- converted on 1.8.2002 at the exchange rate 
of $1 = Rs.59.15 and the amount received was 
Rs.11,830,000/- (encashment certificate at page 67 of 
CMA No.7925/2016); 
 
b. $45,000/- converted on 31.8.2002 at the exchange rate 
of $1 = 59.00 and the amount received was 
Rs.2,655,000/- (encashment certificate at page 68 of 
CMA No.7925/2016); 
 
c. $20,000/- converted on 31.8.2002 at the exchange rate 
of $1 = 59.00 and the amount received was 
Rs.1,180,000/- (encashment certificate at page 69 of 
CMA No.7925/2016); and 
 
d. $10,660/- converted on 10.9.2002 at the exchange rate 
of $1 = 58.85 and the amount received was 
Rs.627,341/- (encashment certificate at page 70 of 
CMA No.7925/2016). 
 
iii. 
An amount of £20,000/- was remitted (electronic transfer) from 
Ms. Jemima Khan’s UK account on 2.10.2002 and credited after 
conversion to rupee into a PKR account of Mr. Rashid Ali 
Khan. Thus encashment of the remittance was done by the 
bank without a separate transaction at the exchange rate of £1= 
Rs.91.4496 amounting to Rs.1,828,992/- (page 14 of CMA 
No.3800/2017); 
Const.P.35 of 2016 
42 
 
iv. 
An amount of $16,000/- was transferred to Mr. Rashid Ali 
Khan and converted on 5.10.2002 at the exchange rate of 
$1=Rs.58.65. 
The 
amount 
received 
was 
Rs.938,400/- 
(encashment certificate at page 71 of CMA No.7925/2016). 
However, this amount is not established to have been referred 
by Ms. Jemima Khan. 
 
v. 
A cash deposit of $5,000/- was converted on 19.11.2002 at the 
exchange rate of $1= Rs.58.15 amounting to Rs.290,750/- 
(encashment certificate at page 72 of CMA No.7925/2016). 
However, this transaction has no nexus with a remittance by 
Ms. Jemima Khan.  
 
vi. 
Another cash deposit of $5,000/- was converted on 11.12.2002 
at the exchange rate of $1= Rs.58.10 amounting to Rs.290,500/- 
(encashment certificate at page 73 of CMA No.7925/2016). 
However this deposit suffers from the same defect as the 
previous one. 
 
vii. 
An amount of $100,000/- was remitted from the USA and 
converted on 23.1.2003 at the exchange rate of $1 = Rs.57.85. 
amounting to Rs.5,785,000/- (encashment certificate at page 74 
of CMA No.7925/2016). However, there is no proof that this 
remittance was made by Ms. Jemima Khan. 
 
viii. 
Lastly, an amount of $100,029/- was remitted by Ms. Jemima 
Khan on 20.5.2013. It was received after the last crossed 
payment of Rs.5.7 million on 23.1.2003 was made by Mr.Rashid 
Ali Khan to the seller of Banigala property; therefore, 
remittance was not encashed. (Reference is made to Citibank 
letter dated 07.1.2004 at page 13 of CMA No.3657/2017 and 
page 75 of CMA No.7925/2016).  
 
34. 
 
As of 23.1.2003 the total amount remitted by Ms. Jemima Khan 
was Rs.33,543,813/-. As regards the remittances made after the extended cut-
Const.P.35 of 2016 
43 
off date for payment of the Banigala property, i.e. 23.1.2003, learned counsel 
submitted the following explanation regarding the amounts received by Mr. 
Rashid Ali Khan (appearing in the Citibank certificate at page 13 of CMA 
No.3657/2017). He stated that these amounts were not utilized towards 
payment of the Banigala property: 
 
i. 
$110,000/- received on 12.4.2003 was not from Ms. Jemima 
Khan rather Mr. Rashid Ali Khan’s own sources; 
 
ii. 
$100,029/- was received from Ms. Jemima Khan on 20.5.2003 
but was not encashed; and 
 
iii. 
As regards the amount of $20,000/- received on 29.5.2005, 
Mr.Rashid Ali Khan has no recollection as to how this amount 
is reflected in his statement or from whom this amount was 
received. However, being a businessman, learned counsel 
states that such transactions are not unusual.  
 
At the very outset Mr. Bukhari has explained the rationale behind the 
remittances made by Ms. Jemima Khan not directly to the Respondent but to 
Rashid Ali Khan which is reflected in the latter’s affidavit (page 20 to 23 of 
CMA No.3657/2017) as follows:- “In 2002 Ms. Jemima Khan left for London 
with her two sons forcing Imran Khan to relocate himself in UK which seems 
the only way to save their marriage as she has refused to continue living in 
Pakistan on account of consistent harassment and lodging of FIR against 
her”. Thus as the Respondent had to travel frequently between Pakistan and 
England, therefore, to be on the safe side that no default occurs in payment 
of consideration to the seller, the arrangement was made that the money 
should come to Rashid Ali Khan for onward payment to the seller. He 
pointed out that Rashid Ali Khan is a close friend of the Respondent. 
Const.P.35 of 2016 
44 
35. 
 
Learned counsel also assailed the bona fide of the petitioner to 
file this petition on the ground that he had lost the general elections to the 
Respondent held in May, 2013; neither were his nomination papers 
challenged nor was an election petition filed against him. Rather, it was filed 
as a counterblast to Constitution Petition No.29/2016 filed by the 
Respondent. 
Evaluation and Analysis: 
36. 
 
Heard. On account of the pleadings of the parties and the oral 
submissions made, we find that the following questions of law and fact are 
involved in the matter:- 
 
1. 
Whether PTI is a foreign-aided political party in terms of 
Article 2(c)(iii) of the PPO? What is the mechanism and the 
forum to adjudicate this question and what are the 
consequences? 
2. 
Whether PTI has received contributions and donations 
prohibited by Article 6(3) of the PPO? What is the mechanism 
and the forum available to determine this aspect and what is 
the penalty? 
3. 
If questions No.1 and 2 are answered in the affirmative, 
whether the certificates issued by the Respondent as the head 
of PTI in terms of Article 13(2) of the PPO are false and thus he 
should be disqualified in terms of Articles 62(1)(f) of the 
Constitution not being honest and ameen? 
4. 
Whether the Respondent was required under the law to declare 
NSL in his statements of assets and liabilities filed in 2002 with 
his nomination papers for a National Assembly seat and in the 
statements of assets and liabilities filed yearly before the ECP 
as a member of the National Assembly? Whether he was 
required under the law to declare NSL in the income tax 
Const.P.35 of 2016 
45 
returns and the wealth tax statements and if so, what is the 
effect of non-declaration? 
5. 
Whether the Banigala property was purchased through the 
amount substantially sent by Ms. Jemima Khan from abroad 
through Mr. Rashid Ali Khan? Whether this was the amount 
utilized for the payment of the balance consideration of the 
Banigala property? 
6. 
Whether the amount contributed by Ms. Jemima Khan for the 
purchase of the Banigala property was repaid to her after the 
sale of the London flat by the Respondent? 
7. 
Who is the owner of the Banigala property? Whether a valid 
gift of the said property was made by Ms. Jemima Khan in 
favour of the Respondent through an attorney? 
8. 
Whether the Respondent failed to disclose the amount paid as 
advance for the purchase of the flat at One Constitution 
Avenue, Islamabad in his tax returns? Whether he failed to 
disclose such flat in his statement of assets and liabilities before 
the ECP? If so, its effect? 
 
 
1. 
Whether PTI is a foreign-aided political party in terms of Article 
2(c)(iii) of the PPO? What is the mechanism and the forum to adjudicate this 
question and what are the consequences? 
37. 
 
This question essentially pertains to relief Clause V whereby 
the petitioner seeks a declaration that PTI is a foreign-aided political party. 
Before answering this question, we find it expedient to briefly discuss the 
background of the relevant law. The preamble of the Constitution, which by 
virtue of Article 2A is now a substantive part thereof, inter alia, provides: 
“Wherein the State shall exercise its powers and 
authority through the chosen representatives of the 
people; 
 
Wherein the principles of democracy, freedom, equality, 
tolerance and social justice, as enunciated by Islam, shall 
be fully observed; 
Const.P.35 of 2016 
46 
 
Wherein shall be guaranteed fundamental rights, 
including equality of status, of opportunity and before law, 
social, economic and political justice, and freedom of 
thought, expression, belief, faith, worship and association, 
subject to law and public morality;”  
[Emphasis supplied] 
 
A combined reading of the aforementioned clauses of the preamble to the 
Constitution make it clear that Pakistan is a democratic state where its 
citizens shall have freedom of association and the right to choose their 
representatives through whom the State shall exercise its powers and 
authority. Political parties are an essential pillar of true and effective 
democracies. This takes us to the fundamental right enshrined in Article 
17(2) of the Constitution which reads as under: 
 
(2) 
Every citizen, not being in the service of Pakistan, 
shall have the right to form or be a member of a political 
party, subject to any reasonable restrictions imposed 
by law in the interest of the sovereignty or integrity 
of Pakistan and such law shall provide that where the 
Federal Government declares that any political party 
has been formed or is operating in a manner 
prejudicial to the sovereignty or integrity of 
Pakistan, the Federal Government shall, within 
fifteen days of such declaration, refer the matter to 
the Supreme Court whose decision on such reference shall 
be final. 
(3) 
Every political party shall account for the source 
of its funds in accordance with law.  
[Emphasis supplied] 
 
Article 17(2) ibid basically confers a fundamental right upon every citizen to 
form and be a member of a political party, subject to certain restrictions 
imposed by the Constitution and the law in the interest of the sovereignty or 
Const.P.35 of 2016 
47 
integrity of Pakistan. Thus, every citizen (not being a civil servant) can form and 
become a member of a political party. But if such party is formed or is 
functioning in a manner prejudicial to the sovereignty or integrity of 
Pakistan, the Federal Government shall take a decision and make a 
declaration to this effect and refer the matter to the Supreme Court of 
Pakistan which shall then determine the validity of the decision of the 
Federal Government. The ‘law’ envisaged by sub-Articles (2) and (3) of 
Article 17 of the Constitution, is the PPO which stipulates the reasonable 
restrictions to be complied by political parties, the sources of prohibited 
funding and the process available to the Federal Government when a 
political party is formed or is operating in a manner prejudicial to the 
sovereignty or integrity of Pakistan or is a foreign aided political party. The 
preamble to the PPO reads as follows:- 
Whereas it is intended to create a political environment 
conducive to the promotion of a federal democratic system 
as enshrined in the Constitution; 
 
And whereas political parties play a pivotal role in 
fostering a constitutional, federal democratic political 
culture; 
 
And whereas the practice of democracy within the political 
parties will promote democratic governance in the country 
for sustaining democracy; 
 
And whereas it is expedient to provide for the formation 
and regulation of political parties: 
 
The crux of the preamble to the PPO makes it clear that it is a legislation 
enacted to foster democratic principles enunciated by the Constitution and to 
provide for a mechanism for the regulation of political parties which, as 
mentioned above, are an important element of any democratic party. 
Const.P.35 of 2016 
48 
Proceeding ahead to discuss the substantive provisions of the PPO, Article 3 
provides: 
 
3. Formation of political parties, etc.– (1) Subject to the 
provisions of this Order, it shall be lawful for any body of 
individuals or association of citizens to form, organize, 
continue or set-up a political party. 
(2)  
… 
(3) 
… 
(4) Notwithstanding anything contained in sub-
section (1), a political party shall not– 
…  
… 
(f) 
be formed, organize, set-up or convened as a 
foreign-aided political party.  
[Emphasis supplied] 
  
Article 3 of the Order allows for formation of a political party, inter alia, 
subject to the restrictions contained in sub-Article (4), out of which clause (f) 
is relevant to the instant matter as it pertains to foreign aided political 
parties. The term ‘foreign-aided political party’ has been defined in Article 
2(c)(iii) of the PPO which reads as follows:- 
 
2. Definitions.– In this Order, unless there is anything 
repugnant in the subject or context,– 
 
(c) “foreign-aided political party” means a political 
party which– 
(i) 
has been formed or organized at the instance of any 
government or political party of a foreign country; 
or 
(ii) 
is affiliated to or associated with any government or 
political party of a foreign country; or 
(iii) 
receives any aid, financial or otherwise, from 
any government or political party of a foreign 
Const.P.35 of 2016 
49 
country, or any portion of its funds from 
foreign nationals; 
[Emphasis supplied] 
 
It is clear from the letter and spirit of our Constitution that democracy is the 
essence and basic feature thereof; whereby the State shall exercise its power 
and authority through the chosen representatives of the people and where 
the principles of democracy shall be fully observed. To achieve this purpose 
and goal, it is essential that political parties which form the backbone of a 
real democratic process should be independent of any kind of foreign 
influence, affiliation or control, so that it should serve the State and the 
people, not on the basis of the dictates of vested interests and foreign 
elements but in the national interest. The object, purpose and rationale 
embedded in Article 3(4)(f) of the PPO read with Article 2(c)(iii) thereof is to 
bar political parties from having anything to do with foreign countries, to 
ensure total and complete insulation from foreign elements in order to 
protect the sovereignty and integrity of Pakistan as enshrined in Article 17(2) 
of the Constitution. While interpreting Article 17(2) of the Constitution and 
the term ‘foreign-aided party’ as found in the Act, 1962 (which is identically 
defined in the PPO), an eleven member bench of this Court in Benazir Bhutto’s 
case (PLD 1988 SC 416) held that: 
 
“A foreign-aided party is not expected to function 
within the framework of the Constitution and in the 
milieu of sovereignty or integrity of Pakistan it cannot 
be allowed to operate as it would then lead to 
undermining the security, solidarity and sovereignty of 
Pakistan as was held in Abdul Wali Khan’s case. In this 
case there was evidence to suggest that the political 
party had started a large-scale guerilla campaign and 
insurrection with the material help and support of a 
Const.P.35 of 2016 
50 
neighbouring country which fact was taken into 
consideration while reaching the conclusion as stated 
above. The right which is guaranteed to a citizen to form 
a political party or be a member of a party necessarily 
connotes one whose activities are lawful and within the 
framework of the Constitution. Necessarily, therefore, 
the activities of such a foreign-aided party being 
prejudicial to the sovereignty or integrity of Pakistan 
will be covered by the expression sovereignty or 
integrity of Pakistan.” 
 
38. 
 
It is not the petitioner’s case that PTI was formed or organized 
at the instance of any government or political party of a foreign country, is 
affiliated to or associated with any government or political party of a foreign 
country, or receives any aid, financial or otherwise, from any government or 
political party of a foreign country. Rather, the allegation is that PTI has been 
receiving financial contribution and/or a portion of its funds from foreign 
nationals (as not only the directors of PTI USA LLC are American citizens, but 
contributions have been collected from individuals and the companies that are 
admittedly foreign nationals). Nevertheless, Article 2(c) supra is only a 
definition clause and is therefore not self-executory or self-operative. A 
definition clause is generally meant to be declaratory in nature for the 
purposes of assigning some meaning to a particular word or phrase that 
appears in the operative provisions of a statute. However, a definition must 
not be inflicted unnecessarily where it does not fit with the context or the 
subject. [Bank of Bahawalpur Ltd.   vs.  Chief Settlement & Rehabilitation 
Commissioner, West Pakistan, Lahore (PLD 1977 SC 164); Iftikhar Ahmad   
vs.   President, National Bank of Pakistan (PLD 1988 SC 53)]. The said 
definition in Article 2(c) ibid is to be read in conjunction with Article 3(4)(f) 
supra which, as mentioned above, contains a prohibition against forming, 
Const.P.35 of 2016 
51 
organizing, setting-up or convening foreign-aided political parties. More 
importantly, this definition is purposeful when it is read in the context of 
Article 15 of the PPO. To our minds Article 15 of the PPO is a machinery 
provision which has utilized and given effect to the definition of ‘foreign-
aided political party’ contained in Article 2(c) supra. The clear and penal 
language of Article 15 makes it a mandatory provision. The said Article 
reads as follows: 
15. Dissolution of a political party.– (1) Where the 
Federal Government is satisfied that a political 
party is a foreign-aided party or has been formed or 
is operating in a manner prejudicial to the sovereignty 
or integrity of Pakistan or is indulging in terrorism, it 
shall make such declaration by a notification in the 
official Gazette.  
(2) Within fifteen days of making a declaration under 
clause (1), the Federal Government shall refer the matter 
to the Supreme Court whose decision on such reference 
shall be final. 
 
(3) Where the Supreme Court upholds the declaration 
made against a political party under clause (1), such 
party shall stand dissolved forthwith.  
 
 
 
 
 
 
 
[emphasis supplied] 
It is worthwhile to note that Article 15 ibid uses the terms ‘foreign-aided 
party’ as opposed to ‘foreign-aided political party’ but we do not consider 
the omission of ‘political’ to have any significance whatsoever; the intention 
is clear that reference is being made to foreign-aided political parties. Article 
15 ibid is explicit and unequivocal. It is for the Federal Government to 
determine, on the basis of the material before it and by application of proper 
mind and by meeting the criteria of the rule of ‘satisfaction’ as enunciated by 
Const.P.35 of 2016 
52 
the superior Court, to determine and declare if a political party is a foreign-
aided political party in terms of Article 2(c) of the PPO and action is 
warranted under Article 15(1) thereof. In the judgment reported as Messrs 
Mustafa Impex, Karachi and others vs. The Government of Pakistan 
through Secretary Finance, Islamabad and others (PLD 2016 SC 808), the 
phrase ‘Federal Government’ has been defined as the ‘Cabinet’ meaning 
thereby that all the material which comes before the executive body of the 
State should be placed before the Federal Cabinet which, on the basis thereof, 
may make the requisite declaration that shall pursuant to Article 15(2) of the 
PPO be referred within fifteen days of such declaration to the Supreme Court 
of Pakistan for adjudicating the validity of the declaration. After providing 
an opportunity of hearing to the concerned political party and on the basis of 
allegation that proved or disproved before this Court, a decision shall be 
given by this Court. In case the declaration of the Federal Government is  
upheld by this Court then according to Article 15(3) of the PPO, inter alia, a 
foreign-aided political party shall stand dissolved forthwith. This is the clear 
mandate and command of the law, without following which no political 
party can be declared to be a foreign-aided political party. We find it 
pertinent to mention that though the phrase ‘foreign-aided political party’ 
does not feature in Article 17(2) of the Constitution, however, in light of the 
reasoning of Benazir Bhutto’s case (supra) reproduced above the harmonious 
construction of Article 17(2) ibid and Article 15 of the PPO that avoids 
redundancy shows that a foreign aided-political party is inevitably 
prejudicial to the sovereignty and integrity of Pakistan. As mentioned earlier, 
the idea behind the prohibition of foreign-aided political party is to 
safeguard Pakistan from foreign elements to secure the independence of its 
political parties and protect them from foreign vested interests and influence.  
Const.P.35 of 2016 
53 
39. 
 
It is worthy to note at this juncture that prior to the PPO, the 
law on the present subject was the Act, 1962. The relevant provisions thereof 
pertaining to foreign aided parties are reproduced hereinbelow:  
3. Formation of certain political parties prohibited.–
(1) No political party shall be formed with the object of 
propagating any opinion, or acting in a manner, prejudicial 
to the Islamic ideology, or the integrity or security of 
Pakistan. 
 
(2) No person shall form, organize, set up or convene 
a foreign aided party or in any way be associated 
with any such party. 
 
2. Definitions.– In this Act, unless there is anything 
repugnant in the subject or context,– 
 
(b) “foreign aided party” means a political party 
which– 
(i) 
has been formed or organized at the instance of any 
Government or political party of a foreign country; or 
(ii) 
is affiliated to or associated with any Government 
or political party of a foreign country: or 
(iii) 
receives any aid, financial or otherwise, from 
any Government or political party of a foreign 
country, or a substantial portion of its funds from 
foreign nationals; 
 
6. Reference to Supreme Court regarding certain 
parties.–(1) Where the Central Government is of the 
opinion that any political party has been formed or is 
operating in contravention of section 3, it shall refer the 
matter to the Supreme Court, and the decision of the 
Supreme Court in such question, given after hearing the 
person or persons concerned, shall be final. 
 
(2) 
Where the Supreme Court, upon a reference under 
sub-section (1), has given a decision that a political party 
Const.P.35 of 2016 
54 
has been formed or is operating in contravention of section 
3, the decision shall be published in the official Gazette, and 
upon such publication, the political party concerned shall 
stand dissolved and all its properties and funds shall be 
forfeited to the Central Government. 
 
Although the definition of ‘foreign aided party’ under the Act, 1962 and 
‘foreign-aided political party’ under the PPO are identical, the mechanism to 
deal with such a party was slightly different under the Act, 1962. According 
to the mandate of the Act, 1962, where the Central Government was of the 
view that a political party was formed or was operating in breach of Section 
3 of the Act, 1962 which included a foreign aided party as defined in Section 
3(2) of the Act, 1962, then the Central Government was to refer the matter to 
the Supreme Court. Thereafter it was for the Supreme Court to decide such 
question after giving an opportunity of hearing to the person(s) concerned 
and if it came to the conclusion that a political party was indeed a foreign 
aided party in terms of the Act, 1962, it would publish its decision in the 
official Gazette after which the political party would stand dissolved and its 
funds forfeited to the Central Government. 
40. 
 
In the light of the above, the Federal Government is the 
competent forum to determine whether a political party is a foreign-aided 
political party in terms of Article 2(c) of the PPO and thus its formation is 
prohibited by Article 3(4)(f) thereof attracting the consequence of a 
declaration of its dissolution. Once the Federal Government makes such a 
declaration by a notification in the official Gazette as per Article 15(1) of the 
PPO, only then can the Supreme Court take cognizance of such matter upon 
a reference made by the Federal Government. Consequently, we do not find 
it proper to bypass the above mandate of law making it redundant and 
nugatory, by exercising our jurisdiction in terms of Article 184(3) of the 
Const.P.35 of 2016 
55 
Constitution to peremptorily adjudicate the petitioner’s objection that PTI is 
a foreign aided political party.  
 
2. 
Whether PTI has received contributions and donations prohibited by 
Article 6(3) of the PPO? What is the mechanism and the forum available to 
determine this aspect and what is the penalty? 
41. 
 
To answer this question, we need to examine Article 6 of the 
PPO which provides as under: 
6. Membership fee and contributions.- 
(1) 
A member of a political party shall be required to 
pay a membership fee as provided in the party’s 
constitution and may, in addition, make voluntary 
contributions towards the party’s funds.  
 
(2) 
The 
contribution 
made 
by 
members 
or 
supporters of any party shall be duly recorded by the 
political parties.  
 
(3) 
Any contribution made, directly or indirectly, 
by any foreign government, multi-national or 
domestically incorporated public or private company, 
firm, trade or professional association shall be 
prohibited and the parties may accept contributions 
and donations only from individuals.  
 
(4) 
Any contribution or donation which is 
prohibited under this Order shall be confiscated in 
favour of the State in the manner as may be 
prescribed. 
 
Explanation.- For the purpose of this section, a 
“contribution or donation” includes a contribution or 
donation made in cash, kind, stocks, hospitality, 
accommodation, transport, fuel and provision of other such 
facilities. 
[Emphasis supplied] 
 
A plain reading of the above Article 6 suggests that both members and 
supporters of a political party can make contributions thereto. The express 
prohibition is against contributions made by any foreign government, multi-
national or domestically incorporated public or private company, firm, trade 
or 
professional 
association; 
however, 
political 
parties 
can 
accept 
contributions and donations from individuals.  
Const.P.35 of 2016 
56 
42. 
 
The question that arises is which forum determines whether 
contributions and donations received by a political party are from sources 
prohibited under Article 6(3) of the PPO and what is the penalty for 
contravention of the said Article. According to Article 17(3) of the 
Constitution, “Every political party shall account for the source of its fund in 
accordance with law.” This means that a political party is obliged to account 
for, i.e. to give a satisfactory record of its funds under the law. Undoubtedly 
the law framed in this context is the PPO. The mechanism for identifying the 
prohibited contribution offending Article 6(4) ibid is provided by the Political 
Parties Rules, 2002 framed under the PPO. According to the Rules the forum 
for making the requisite determination is the ECP. Proceeding further, 
Article 6(4) of the PPO expressly visualizes such a provision by the Rules. It 
stipulates that any contribution or donation which is prohibited under the 
PPO shall be confiscated in favour of the State in the manner as may be 
prescribed. The expression ‘prescribed’ has been defined in Article 2(e) of the 
PPO to mean “prescribed by rules made under this Order”. Article 19 of the PPO 
provides that the ECP may, with the approval of the President, make rules 
for carrying out the purposes of the PPO. The Rules were promulgated 
pursuant to Article 19 ibid. Rule 6 thereof reads as under:- 
 
6. Confiscation of prohibited funds.– Where the 
Election Commission decides that the contributions 
or donations, as the case may be, accepted by the political 
parties are prohibited under clause (3) of Article 6, it 
shall, subject to notice to the political party 
concerned and after giving an opportunity of being 
heard, direct the same to be confiscated in favour of 
the State to be deposited in Government Treasury or sub-
Treasury in the following head of the account:- 
 
Const.P.35 of 2016 
57 
“3000000-Deposits and Reserves-B-Not Bearing interest-
3500000-Departmental and Judicial Deposits-3501000-
Civil Deposits-3501010-Deposits in connection with 
Elections”. 
[Emphasis supplied] 
 
Furthermore, Rule 6 specifically confines the ambit of proceedings before the 
ECP to the “contributions or donations, as the case may be, accepted by the political 
parties are prohibited under clause (3) of Article 6.” A cumulative reading of 
Article 6(4) of the PPO and Rule 6 makes clear that a specific and complete 
power has been conferred upon the ECP to decide whether the contributions 
or donations accepted by a political party are prohibited under Article 6(3) 
ibid. This is to be done after giving notice to such political party and an 
opportunity of hearing leading to confiscation of such prohibited 
contribution and donation in favour of the State for deposit in the 
Government Treasury or sub-Treasury in the head of account provided in 
Rule 6 ibid. There is no doubt in our mind, and it is very clear from the 
unambiguous language of the provisions of the PPO and the Rules that the 
forum and penalty provided to determine whether contributions or 
donations are received from prohibited sources are different and distinct 
from the forum and penalty provided to determine whether a political party 
is a foreign-aided political party. If the ECP comes to the conclusion that a 
case falls within the mischief of Article 6(3) of the PPO the penalty provided 
is confiscation of such contributions or donations and cannot impose a ban 
on the political party which action is restricted to only foreign-aided political 
parties to be decided by the proper forum; firstly, through a declaration 
made by the Federal Government and then the determination made by 
Supreme Court as mentioned above. 
Const.P.35 of 2016 
58 
43. 
 
Certain ancillary questions pertaining to the above view 
surfaced during the course of the proceedings, including: what is the nature 
of the jurisdiction exercised by the ECP under Article 6(4) of the PPO read 
with Rule 6 of the Rules (Court, Tribunal, etc.); whether the ECP can exercise its 
powers under Article 6(4) ibid suo motu or upon an application by someone; 
and whether there is a time limitation on the ECP with regard to the exercise 
of its powers under Article 6(4) ibid.  
44. 
 
The ECP is a constitutional body created under Article 218 of 
the Constitution, sub-Article (3) whereof provides: 
 
“It shall be the duty of the Election Commission to organize 
and conduct the election and to make such arrangements as 
are necessary to ensure that the election is conducted 
honestly, justly, fairly and in accordance with law, and that 
corrupt practices are guarded against.” 
 
The ECP’s duties are contained in Article 219 of the Constitution and 
include, inter alia:- 
(e) 
such other functions as may be specified by an Act 
of Majlis-e-Shoora (Parliament): 
 
Although the PPO is the Chief Executive’s Order (No.18 of 2002), one may 
argue that it is not an Act of Parliament. We find that considering the period 
and the circumstances in which the PPO was passed, this edict falls within 
Article 270AA(2) of the Constitution and has thereby been saved and 
declared by the said Article to continue in force. The PPO has accordingly 
been given due status in law. The provisions of the PPO specify the functions 
of the ECP in relation to matters pertaining to the formation and regulation 
of political parties. As mentioned above, Article 19 of the PPO has given the 
ECP rule-making power but exercisable subject to the approval of the 
Const.P.35 of 2016 
59 
President. The ECP is an independent and autonomous body which exercises 
executive and regulatory powers derived from the Constitution. Though it 
has the power to appoint Election Tribunals [Article 219(c) of the 
Constitution] which exercise judicial powers under Article 225 of the 
Constitution, the ECP itself is a supervisory body which exercises regulatory 
and administrative powers under the Constitution and the law.  
45. 
 
Undoubtedly, the ECP is not a Court or a Tribunal as argued by 
the learned counsel for PTI. However, he conceded that ECP is an 
administrative authority and in terms of Article 17(3) of the Constitution it is 
the forum to which political parties are obliged to and must account for the 
sources of their funds. Besides being a limb of the executive that is charged 
with the duty to conduct and oversee elections in the country, we find that 
the ECP must necessarily possess the power to collect facts, information and 
data that enable it to properly and effectively perform such duty. Such a 
capability represents the constitutional and inherent legal power of the ECP. 
Therefore, in exercise of its powers under Article 6 of the PPO read with Rule 
6, the ECP has all the necessary authority to ask for and collect the requisite 
information and facts that enable it to decide and determine whether the 
contributions or donations accepted by a political party are prohibited under 
Article 6(3) supra. Without such power, we are of the opinion that the ECP’s 
power to decide as to whether a political party is receiving contributions or 
donations from sources prohibited under Article 6(3) ibid would for all 
practical intents and purposes be rendered redundant, nugatory and 
ineffective. Such a result would be against the clear command of Article 17(3) 
of the Constitution and the provisions of the PPO and the Rules. 
46. 
 
We are not persuaded to agree with the learned counsel for the 
PTI that Section 3A of the Act, 1962 supports the view that the ECP lacks the 
Const.P.35 of 2016 
60 
power to call financial information and data from political parties to verify 
the status of contributions collected by them and the correctness of their 
reported accounts. Under Section 3A of the Act, 1962, the finances and 
accounts of a political party were to be audited by an officer or authority 
authorized by the ECP (see also Rules 4 and 6 of the Political Parties Rules, 1986), 
whereas presently under the PPO (particularly Article 13) and the Rules, the 
audit of accounts of a political party is undertaken by a chartered accountant 
appointed by the party and not by the ECP. It is urged by the learned 
counsel that such accounts that have been audited by a chartered accountant 
would upon submission to the ECP be taken to be valid for all intents and 
purposes, particularly, with reference to any contributions or donations that 
are received from the sources prohibited under Article 6(3) of the PPO. 
Accordingly, once the audited statement of accounts by a political party is 
accepted and such accounts are published by the ECP in the Official Gazette, 
followed by the allotment of symbol to the concerned political party in terms 
of Article 14 of the PPO and Rule 10, then the ECP becomes functus officio to 
undertake scrutiny for establishing the status of contributions received by 
that party under Rule 6.  
47. 
 
We find it hard to fathom the contention that the intention 
behind the PPO and the Rules is to take away the administrative and 
regulatory power of the ECP derived from the Constitution, to call for any 
record, information or data from a political party to ascertain the sources of 
its contributions and donations; and to place such power exclusively in the 
hands of a party appointed chartered accountant. Learned counsel has not 
been able to show us from the provisions of the PPO and the Rules framed 
thereunder nor from any other principle of law laid down by this Court that 
Const.P.35 of 2016 
61 
failure by the ECP to object the audited statement of account of a political 
party before its Gazette publication and before the allotment of a symbol to 
such party, then such action would tantamount to the acceptance of the said 
accounts and that thereafter the ECP would become functus officio. With the 
result that the violations, defects and omission in the accounts become a past 
and closed transaction and the ECP cannot inquire the matter under an 
implied bar against exercising its power under Article 6 supra and Rule 6 
supra;  or that such recourse by the ECP would be tantamount to a review 
which power, according to the learned counsel for PTI, is not available to the 
ECP under the PPO or the Rules.  
48. 
 
We are not persuaded to hold that the principle of past and 
closed transaction would be attracted to the audited statements of accounts 
of a political party which have been duly published. This is because neither 
the PPO nor the Rules contain a provision imposing a time bar on action 
being taken by the ECP under Article 6(3) or Rule 6. Equally there is no 
direction in the said law that bestows finality upon either the event of 
publication of audited accounts of a political party or upon the allotment of 
an election symbol to such political party.  
49. 
 
Similar is our view about the contention that to reconsider the 
statements of accounts after they have been published is tantamount to a 
review and such power (of review) is not available to the ECP. In this regard, 
it may be observed that a review (if provided by the law) is of an order passed 
by a judicial or quasi-judicial forum subject to the settled principles of 
review being squarely met. But when no order has been passed by the ECP 
and it is not shown that a detailed or even a cursory scrutiny of the 
statements of accounts submitted by a political party was undertaken by the 
Const.P.35 of 2016 
62 
ECP; yet the said accounts were published as a matter of routine and in the 
ordinary course; then upon receipt of any information subsequently 
showing that contributions and donations from prohibited sources were part 
of such accounts, the ECP retains its jurisdiction to evaluate the status of 
such accounts under Article 6 of the PPO which in no way tantamounts to a 
review. To our mind the publication of the statement of accounts of a 
political party have the effect of placing these (statements of accounts) in the 
public domain and thereby make an invitation for bona fide comment from 
the concerned persons to apprise and intimate the ECP if such statement of 
accounts are not in accordance with law or contains contributions and 
donations from prohibited sources.  
50. 
 
The abovementioned power of the ECP under Article 6 of the 
PPO read with Rule 6 is in our view a continuous supervisory power which 
may be exercised at any time by the ECP. Either upon an application by a 
third party or suo motu. We are not persuaded to read into the law and in the 
powers of the ECP any limitation as has been suggested and canvassed by 
the learned counsel for PTI. This power of assessing and deciding whether a 
political party has received contributions or donations from any sources 
prohibited under Article 6(3) supra can be exercised by the ECP on its own 
motion based upon the facts available in the public domain or revealed by 
information provided to it, subject to the condition that the information 
emanates from a credible source, that it is reliable and verifiable and is not a 
mala fide fabrication meant to harass and prejudice a political party, its 
leaders or its members. As regards the lukewarm attack made by the learned 
counsel for PTI on Rule 6 supra for suffering from excessive delegated 
legislative power, suffice it to say that as mentioned above, Article 19 of the 
Const.P.35 of 2016 
63 
PPO gives specific power to the ECP to frame rules with the approval of the 
President. The rules have been framed after complying the statutory 
requirements, so that for all intents and purposes the provision made in the 
Rules shall have the force of law; and be understood and considered to have 
been prescribed by the statute itself. [Sabir Shah  vs. Shad Muhammad 
Khan (PLD 1996 SC 66)]. 
51. 
 
To sum up, it is the ECP that has the jurisdiction to determine 
whether a political party has received contributions or donations from 
prohibited sources under Article 6(3) of the PPO read with Rule 6, which 
jurisdiction it can exercise at any reasonable point in time even after the 
allotment of symbol to a political party but upon the receipt of reliable and 
verifiable information from a third party or on its own motion. And if such 
determination is made against a political party, the penalty to be imposed is 
confiscation of such contributions and/or donations as per Article 6(4) of the 
Order. We consider it reasonable, if the record or information that 
precipitates the said penal action against a political party is entertained 
within five years of the date on which its objected account was published in 
the official Gazette.  
 
3. 
If questions No.1 and 2 are answered in the affirmative, whether the 
certificates issued by the Respondent as the head of PTI in terms of Article 
13(2) of the PPO are false and thus he should be disqualified in terms of 
Articles 62(1)(f) of the Constitution being dishonest and not ameen? 
52. 
 
It is the petitioner’s case that the certificates issued in terms of 
Article 13(2) of the PPO by the Respondent as the Chairman of PTI were 
false. Article 13 of the PPO reads as under:- 
 
13. Information about the sources of party’s fund.-  
Const.P.35 of 2016 
64 
(1) 
Every political party shall, in such manner and in 
such form as may be prescribed or specified by the Chief 
Election 
Commissioner, 
submit 
to 
the 
Election 
Commission, within sixty days from the close of each 
financial year, a consolidated statement of accounts of the 
party audited by a Chartered Accountant containing-  
(a) 
annual income and expenses;  
(b) 
sources of its funds; and  
(c) 
assets and liabilities.  
 
(2) 
The statement referred to in clause (1), shall be 
accompanied by a certificate signed by the party 
leader stating that-  
(a) 
no funds from any source prohibited 
under this Order were received by the 
party; and  
(b) 
the statement contains an accurate 
financial position of the party. 
[Emphasis supplied] 
 
The question whether the certificates tendered by the Respondent under 
Article 6(2) above are false, would arise if the answer to either of the two 
questions posed above is in the affirmative. In other words, there must first 
be a finding either that: (i) PTI is a foreign-aided political party in terms of 
Articles 2(c)(iii), 3(4)(f) and 15 of the PPO; and/or that (ii) PTI has received 
contributions and/or donations from sources prohibited under Article 6(3) of 
the PPO. 
53. 
 
As regards the issue of PTI being a foreign-aided political 
party, we are of the view that Article 15 of the PPO specifies the mechanism 
whereby only the Federal Government can make a declaration of a “foreign 
aided political party” and the exclusive forum for adjudicating such 
declaration is the Supreme Court leading to the dissolution of such a party in 
Const.P.35 of 2016 
65 
case of an affirmative finding is given. The said special procedure and forum 
has been promulgated pursuant to Article 17(2) of the Constitution. In the 
light of the said constitutional scheme, we are not persuaded to preempt its 
outcome by exercising our jurisdiction under Article 184(3) of the 
Constitution in the instant matter. In any event, the said declaration against a 
political party is available solely at the instance of the Federal Government. 
On the other hand, the petitioner, a private individual lost the election as a 
contesting candidate against the Respondent. Having challenged neither the 
Respondent’s nomination papers nor his election through an election 
petition, he now seeks the disqualification of the Respondent on the 
allegation that the latter misrepresented that PTI has not received funds from 
a prohibited source. We are of the view that in light of the applicable law, the 
petitioner altogether lacks locus standi to seek the declaration as per relief 
relief Clause V, i.e. “Declare Respondent No.2 to be a foreign-aided party”. Such a 
declaration is absolutely alien to the nature of a quo-warranto petition which 
according to the learned counsel for the petitioner the instant petition is 
meant to be. Besides when specifically asked, learned counsel for the 
petitioner also categorically stated that the petitioner does not seek a ban or 
dissolution of PTI, rather is asking for the said declaration for the limited 
purpose of demonstrating that the certificates issued by the Respondent 
pursuant to Article 13(2) of the Order are false and consequently he is not 
honest in terms of Article 62(1)(f) of the Constitution.  
54. 
 
We now advert to the other issue of PTI having received 
contributions or donations from sources prohibited under the law. We were 
told that there are some proceedings already pending before the ECP in the 
context of Article 6(3) of the PPO. The record in this regard was requisitioned 
which shows that the precise allegation under Article 6(3), raised before us 
Const.P.35 of 2016 
66 
has been levelled against the Respondent and PTI by a former office bearer of 
PTI on the basis of the same record. The pendency of these proceedings is 
sufficient for us to refrain from exercising our jurisdiction under Article 
184(3) of the Constitution enabling the ECP to take a decision as warranted 
by law. It is perhaps relevant to mention here that during the course of 
proceedings, learned counsel for PTI on a Court’s query and even voluntarily 
stated that PTI shall have no issue if the ECP is appointed as a Commission 
to inquire into the question as to whether any contributions or donations 
have been received from a prohibited source in terms of Article 6(3) supra. 
We have considered the proposal and are not inclined to constitute or 
appoint any Commission when the ECP is the designated forum under the 
law; and the particular issue regarding contributions and donations received 
by PTI from allegedly prohibited sources under Article 6(3) ibid is already 
pending before it. The ECP is duly empowered under the PPO and the Rules 
to proceed of its own motion to determine the question of receipt of 
contributions or donations from prohibited sources by a political party. It has 
a duty to ensure compliance with the law by all political parties that seek 
allotment of an election symbol. In this respect the proceedings undertaken 
by the ECP must adhere the principles of fair hearing and due process.  
55. 
 
It is settled law that where the law requires something to be 
done in a particular manner, it must be done in that manner. Another 
important canon of law is that what cannot be done directly cannot be done 
indirectly. Therefore, as mentioned above, before any finding by a Court of 
law can be given as to whether a certificate issued by a head of a political 
party under Article 13(2) of the PPO is false or not, the question whether that 
political party has either received contributions or donations prohibited 
under Article 6(3) supra or is a foreign-aided political party in terms of 
Const.P.35 of 2016 
67 
Article 2(c) supra must respectively be addressed and determined by the 
competent forum. Subject to an adverse finding and corresponding penal 
action taken under the PPO, the issue of the falsity of the certificate under 
Article 13(2) would then be ascertainable as a secondary fact by a competent 
Court of law. Accordingly, it would be appropriate for this Court not to 
exercise its jurisdiction under Article 184(3) of the Constitution so as to avoid 
interfering with the power and jurisdiction specifically conferred by the PPO 
upon the special fora i.e. the Federal Government and the ECP respectively. 
This is more-so the case when the petitioner himself, relies upon Article 
2(c)(iii) and 6(3) PPO for seeking relief from this Court but has failed to 
approach the respective fora provided under the law for such relief. In view 
of the non-determination of the primary facts by the competent fora, we are 
not inclined to adjudicate the relief claimed by the petitioner that the 
Respondent is disqualified under Article 62(1)(f) of the Constitution for 
having filed false certificates under Article 13(2) of the PPO.  
 
4. 
Whether the Respondent was required under the law to declare NSL in 
his statements of assets and liabilities filed in 2002 with his nomination 
papers for a National Assembly seat and in the statements of assets and 
liabilities filed yearly before the ECP as a member of the National 
Assembly? Whether he was required under the law to declare NSL in the 
income tax returns and the wealth tax statements and if so, what is the 
effect of non-declaration? 
56. 
 
At the very outset of the proceedings, we questioned the 
learned counsel for the petitioner as to whether a Pakistani national is 
prohibited, under the laws of Pakistan, from purchasing property abroad 
when the law of the foreign country in which such property is being bought 
permits the same. He answered the query in the negative. We also asked as 
to whether such property can lawfully be bought only in one’s personal 
Const.P.35 of 2016 
68 
name or also in the name of a company (albeit an offshore company). The answer 
to this question was given in the affirmative. However, the learned counsel 
added a clear rider that such asset and the company through which such 
asset was purchased is to be disclosed in Pakistan in the income and wealth 
tax returns of the Pakistani buyer. And if such person runs for election, he 
must in the statement of assets and liabilities attached with his nomination 
papers disclose such property. Upon becoming a member of the National or 
a Provincial Assembly, such person must also make the same disclosure in 
his statement of assets and liabilities filed every year under the provisions of 
ROPA. According to the learned counsel for the petitioner, this was not done 
by the Respondent which renders him liable to be disqualified under Article 
62(1)(f) of the Constitution.  
57. 
 
In this context, let us examine the admitted facts of the case. 
The Respondent was a professional cricketer for most of the period between 
1971 and 1992. He played for the Pakistani cricket team of which he also 
remained captain. During the 1970s, he also played county cricket for 
Worcestershire and Sussex in the UK and in 1977 played the Kerry Packer 
Series organised by Channel Nine, Australia. These are publicly known facts 
which have not been denied by the petitioner’s side. According to the 
Respondent, with his earnings from the above mentioned engagements, he 
purchased Flat No.2, 165 Draycott Avenue, London, SW3 (“London flat”) 
United Kingdom, in 1983 for £117,500/-. However, in order to avoid liability 
to capital gains tax payable in the event of disposal of the London flat, the 
Respondent whilst acting upon legal advice, put the legal ownership of the 
flat in an offshore company called Niazi Services Limited (“NSL”). NSL was 
a Jersey-based limited liability company formed on 10.5.1983. It had a 
nominal capital of £10,000/- divided into 10,000 shares worth £1 each. Out of 
Const.P.35 of 2016 
69 
these, 9 shares having a capital value of £9/- were subscribed by three 
founding members, namely, Langtry Trustees Limited, Langtry Secretaries 
Limited and Langtry Consultants Limited, each of which held three shares of 
NSL. By 1990, these trustee shareholders were replaced by Barclay Trust 
International Limited, Barclay Trust Channel Islands Limited and Barclay 
Trust Jersey Limited. According to the learned counsel for the Respondent 
and as is evident from the annual corporate returns of NSL filed in different 
years, the two directors of the company were Ms. Uzma Khan and Ms. 
Aleema Khan, both sisters of the Respondent. The Respondent was thus 
neither a shareholder nor a director of NSL. However, it is accepted by him 
that the sole purpose of NSL was to own and hold the London flat for the 
benefit of the Respondent. As such the Respondent was the beneficial owner 
of the London flat which was the only asset held by NSL.  
58. 
 
At this juncture that we would like to briefly delve upon the 
concept of offshore companies. In the recent past, particularly after the 
outbreak of the Panama papers scandal, the term ‘offshore companies’ has 
carried a negative connotation. Such entities are often associated with the 
retention of the illegal gains of unlawful acts, such as fraud, money 
laundering and tax evasion by wealthy and influential people around the 
world. However, this perception is not always correct. Essentially, an 
offshore company is incorporated and or resident in a foreign country or 
jurisdiction with the object of having operations outside such country or 
jurisdiction. Registration of a company in a foreign jurisdiction is aimed at 
availing legal, financial or tax benefits offered under their local laws. No 
doubt it is lawful to establish and utilize an offshore company to avail the 
benefits assured by the local laws of its country of residence, however, such 
an entity can become an illegal vehicle if it is used for nurturing the fruits of 
Const.P.35 of 2016 
70 
fraud, money laundering or tax evasion. There is a different between tax 
evasion and tad avoidance. The common and lawful reason for setting up an 
offshore company is to avoidance of tax due to the availability of tax benefits 
or exemptions in an offshore jurisdiction that is commonly described as a tax 
haven. One such tax haven is Jersey, an island located in the Channel 
between England and France. NSL was incorporated in Jersey because it 
does not impose capital gains tax. Broadly speaking, capital gains tax is the 
tax paid on the profit made upon disposal of an asset which has increased in 
value over time. According to UK law at the time of purchase of the London 
flat in 1983, capital gains tax was chargeable generally upon disposal of 
immovable property at varying rates. However, any capital gains made on 
disposal of residential property in the UK were not chargeable to tax if its 
legal owner was a non-resident for tax purposes. Hence, the proliferation in 
the use of offshore companies for owning property in the UK. Thus setting 
up an offshore company in Jersey in order to avoid capital gains tax on 
property owned by such company in the UK was a widely practiced 
arrangement back in 1983 or so. Recently, in the last few years, the UK law 
has blurred the line between UK resident and non-residents for tax purposes, 
rendering the latter liable to pay certain taxes, including capital gains tax, 
regardless of the fact that they are non-UK residents. In light of the above 
discussion and the petitioner’s failure to bring forth any concrete evidence to 
establish a different purpose for NSL, we have no hesitation in believing the 
Respondent’s contention that NSL was created solely to own and hold the 
London flat in order to avoid capital gains tax. Therefore, we consider that 
any insidious purpose attributed to NSL by the  learned counsel for the 
petitioner with respect to its ownership of the London flat is unwarranted. 
Const.P.35 of 2016 
71 
59. 
 
Coming back to the factum of non-declaration of the London 
flat and NSL, the learned counsel for the Respondent informed that the 
Respondent began filing his income tax returns in Pakistan in 1981. It is an 
admitted fact that he neither disclosed NSL nor the London flat in such 
income tax returns. It is the Respondent’s case that he did not disclose NSL 
as an asset in his tax returns for the reason that it is a juristic person of which 
he was not a shareholder, director or owner. He also did not disclose the 
London flat upon legal advice that since it was purchased with foreign 
income, there was no requirement to make its declaration in his income or 
wealth tax returns. The fact is that the Respondent purchased the London flat 
in 1983, two years after he became an income tax filer in Pakistan in 1981. 
Even if foreign earnings as non-resident were the source of funding for the 
London flat, yet it was an asset which he was bound to disclose in his wealth 
tax return under the Wealth Tax Act, 1963 after he became a filer in 1981. 
Therefore, the Respondent was a defaulter in relation at least to his duty 
under the Wealth Tax Act, 1963. This situation continued until 1.3.2000, 
when the Central Board of Revenue (“CBR”) announced a Tax Amnesty 
Scheme 2000 (“the Amnesty Scheme”) vide Circular No.4 of 2000 (Income 
Tax) dated 01.08.2000 issued under Section 59D of the Ordinance, 1979 which 
reads as under: 
 
59D. Tax on undisclosed income.- (1) Notwithstanding 
anything contained in this Ordinance, the Central Board 
of Revenue may, make scheme of payment of tax in respect 
of undisclosed income.  
 
(2)  
Where any person declares his undisclosed income in 
accordance with the scheme and the rules the tax on such income 
shall be charged at such rate as may be prescribed. 
 
(3)  
Where a person has paid tax on his undisclosed 
income in accordance with the scheme and the rules, he 
shall- 
 
Const.P.35 of 2016 
72 
(a)  
be entitled to incorporate in his books of account such 
undisclosed income in tangible form; and 
 
(b)  
not be liable to pay any tax, charge, levy, penalty 
or prosecution in respect of such income under this 
Ordinance. 
 
(4)  
For the purpose of this section "undisclosed income" 
shall mean any income (including any investment to be deemed 
as income under section 13 or any other deemed income) for any 
year or years, which was chargeable to tax but was not so 
charged. 
[Emphasis supplied] 
 
The relevant clauses No.8 and 10 of the Amnesty Scheme are reproduced 
hereunder: 
8. Immunity 
(1) 
Where a person has paid tax on his undisclosed 
income in accordance with the Scheme, he shall not be liable 
to any further tax, charge, levy, penalty or prosecution in 
respect of such income under the Income Tax Ordinance, 
1979. 
 
(2) 
The undisclosed assets declared in accordance with 
the Scheme and on which tax has been paid would be 
exempt from wealth tax under the Wealth Tax Act, 1963, 
for any assessment year commencing on or before the first 
day of July, 1999, and for five assessment years next 
following. 
 
10. Finality of proceedings under the scheme 
(2) 
Where a declaration in respect of undisclosed 
income has been properly made and the tax due on such 
income has been fully paid, such declaration shall be 
accepted by Deputy Commissioner of Income Tax 
concerned without any further proceedings and the 
declarant shall be informed accordingly.   
 
 
 
 
 
 
[emphasis supplied] 
 
What is a tax Amnesty Scheme? It is an incentive given by government or tax 
authorities to people having undisclosed income or wealth to declare such 
Const.P.35 of 2016 
73 
income and assets by paying tax thereupon in exchange for immunity 
against penalty or prosecution for previous non-disclosure. In other words, 
undisclosed income or assets are thereby whitened and legitimized. Such a 
scheme extends a promise or undertaking on behalf of the State to existing or 
potential tax payers that the source of their undeclared income or assets 
would neither be probed nor be subjected to action if any person avails such 
scheme. According to Section 59D(3)(b) of the Ordinance, 1979 read with the 
immunity clause No.8 of the Amnesty Scheme, when a person pays tax on 
his undisclosed income pursuant to the Amnesty Scheme and the rules, he 
shall be entitled to incorporate such undisclosed income in his books of 
account and would not be liable to pay any tax, charge, levy, penalty or be 
prosecuted in respect of such income under the Ordinance, 1979. As per 
clause No.10 of the Amnesty Scheme, where a declaration in respect of 
undisclosed income has been properly made and the tax due on such income 
has been fully paid, such declaration shall be accepted by the Deputy 
Commissioner of Income Tax concerned without any further proceedings 
and the declarant shall be informed accordingly. 
60. 
 
According to his Form of Declaration of undisclosed income, 
the Respondent has disclosed under the head ‘INCOME’ as under: 
Income 
Year 
in 
which 
income 
earned 
Assessment Year 
Undisclosed 
income 
(Amount/ value as per 
part II) 
Tax paid 
1983 – 84 
1984 – 85 
£117,000/-  
Rs.2,000,000/ - 
240,000/- 
 
Total: 
 
240,000/- 
 
The Respondent also declared the London flat under the head ‘(E) 
IMMOVEABLE PROPERTY’ on the said form as follows: 
Description 
of property 
Location 
and 
Identification 
No. of Property 
Income 
Year 
in 
which 
acquired 
Comercial/ 
residential 
Size of 
plot 
etc. 
Covered 
area 
Valuation 
as per Rule 
12 of the 
Scheme 
Tax paid 
 
165 
– Draycot 
Avenue London 
SW-3 
1984-85 
Residential 
flat 
 
One 
bed 
Flat 
£117,000  
Rs.2,000,000 
240,000 
 
 
 
 
Total: 
 
2000000 - 
240,000 
 
Const.P.35 of 2016 
74 
There is an acknowledgment receipt on the record in the name of the 
Respondent, duly stamped by the Office of the Deputy Commissioner of 
Income Tax, Lahore. There is also some sort of tax payment receipt issued by 
the Income Tax Department, Government of Pakistan acknowledging the 
payment of Rs.240,000/- by the Respondent. Therefore, the Respondent 
made am express disclosure of his undisclosed income in UK Pound Sterling 
its equivalent in Pakistan Rupees and fully paid tax due thereon in the 
amount of Rs.240,000/-. His declaration was accepted by the income tax 
authorities; consequently, the Respondent became immune from any liability 
to pay any tax, charge, levy, penalty in respect of the newly declared income 
and also became protected from prosecution for such income under the 
Ordinance, 1979.  
61. 
 
It is the Petitioner’s objection that the Amnesty Scheme was 
availed by the Respondent for a dishonest purpose and was misused by him. 
Suffice it to say that the scheme was not designed for nor availed by the 
Respondent alone under some colourable exercise of power by the Federal 
Government nor for that matter any mala fide can be imputed to the 
Respondent. The Amnesty Scheme was of general application having an 
object and purpose that is expressly contemplated by Section 59D of the 
Ordinance, 1979. Very many citizens availed the benefit under the Scheme 
and received immunity from liability of tax penalty and prosecution for 
hitherto undisclosed income or assets. Under the express terms of clause 8 of 
the Amnesty Scheme, like other beneficiaries thereof, the Respondent 
received such shelter from liabilities and action under both the Ordinance, 
1979 and the Wealth Tax Act, 1963. Notwithstanding his default to pay 
wealth tax on the London flat from the date of becoming a resident and a tax 
return filer in Pakistan, the Respondent got immunity from liability and 
Const.P.35 of 2016 
75 
action for his past default. Therefore for all intents and purposes the legal 
implications and consequences of the Respondent’s past disregard or 
violation of tax law stood exonerated and cured. For clarity one may refer to 
definition of ‘amnesty’ in Words & Phrases, Permanent Edition, Volume 3, 
which reads as under: 
“The distinction between “amnesty” and pardon is 
one rather of philological interest than of legal 
importance. This is so as to their ultimate effect, but 
there are incidental differences of importance. They 
are of different character and have different purposes. 
The one overlooks the offense; the other remits 
punishment. The first is usually addressed to crimes 
against the sovereignty of the state, to political 
offences, forgiveness being deemed more expedient 
for the public welfare than prosecution and 
punishment. The second condones infractions of the 
peace of the state. “Amnesty” is usually general, 
addressed to classes or even communities,--- a 
legislative act, or under legislation, constitutional or 
statutory,--- the act of the supreme magistrate. There 
may or may not be distinct acts of acceptance. If other 
rights are dependent upon it and are asserted, there is 
affirmative evidence of acceptance. Burdick v. United 
States, N.Y., 35 S. Ct. 267, 271, 236 U.S.79, 59 L.Ed. 
476.”  
 
 
 
 
           [emphasis supplied] 
 
To subsequently impute dishonesty and to prosecute and punish a person 
for availing an amnesty scheme would violate the solemn assurance of 
immunity given by the law and the “forgiveness” that is thereby entailed. 
What cannot be done directly cannot also be done indirectly or collaterally. [ 
Farzand Ali   vs.  Province of West Pakistan (PLD 1970 SC 98]. The 
Const.P.35 of 2016 
76 
argument of the learned counsel for the petitioner that the Respondent 
undervalued the London flat in the form of the amnesty scheme in order to 
pay a lesser amount as tax, is not an issue before us. It was for the relevant 
quarters, i.e. the tax authorities, to accept the declared value or not and once 
that is done the matter is a closed chapter which cannot be re-opened now.  
62. 
 
We are also not convinced that by disclosing the value of the 
London flat under the Amnesty Scheme, the Respondent made a 
misdeclaration to the effect that he was owner of the same whereas it is his 
stance before the Court that NSL owned the said flat. This alleged 
misdeclaration renders the Respondent to be dishonest attracting the penalty 
of disqualification under Article 62(1)(f) of the Constitution.  
63. 
 
 After the income with which the London flat was purchased 
and the value of the flat itself was declared by the Respondent under the 
Amnesty Scheme, he declared that property in his statement of assets and 
liabilities attached with his nomination papers for NA-71, Mianwali-I in the 
general election held in the year 2002. This was the first time the Respondent 
got elected as MNA and became the holder of public office, therefore he duly 
declared the London flat prior to the assuming a public office. We now 
advert to the argument regarding non-disclosure of the London flat in the 
annual statement of assets and liabilities for the year 2003 onwards 
submitted by the Respondent Section 42A of ROPA. According to Section 
42(1) of ROPA, “Every member shall, on a form prescribed under clause (f) of 
sub-section (2) of section 12, submit a statement of assets and liabilities of 
his own, his spouse and dependents annually to the Commission by the 
thirtieth day of September each year”. Section 12(2)(f) of ROPA provides that 
“Every nomination…shall, on solemn affirmation made and signed by the candidate, 
accompany…a statement of his assets and liabilities and those of his spouse and 
Const.P.35 of 2016 
77 
dependents on the prescribed form as on the preceding thirtieth day of June;” 
[Emphasis supplied]. According to the completion of sale statement of the 
London flat, issued by the buyer’s conveyancing solicitor, the date of 
completion of sale for the said property was 14.4.2003. As the sale of the 
London flat had been finalized before 30.06.2003, therefore for the purpose of 
the Respondent’s annual statement of assets and liabilities under Section 42A 
ROPA made as of 30.6.2003, the London flat had ceased to be his asset. 
Therefore, the said property was not disclosed in that statement submitted 
for the years 2003 and after.  
64. 
 
Declaration of the London flat in the Amnesty Scheme in 2000 
followed by its disclosure in the Respondent’s wealth statement as of 
30.06.2002 filed under Section 58 of the Ordinance, 1979 and reporting the 
same in the statement of assets and liabilities annexed by the Respondent 
with his nomination forms in the general election of 2002, he cannot be 
faulted for concealment or misdeclaration under the taxation laws of the 
country or the ROPA. Finally, when the London flat was sold in the year 
2003, the obligation of the Respondent to declare the same ended. In the light 
of the above, it is clear that there was no concealment or non-disclosure on 
part of the Respondent in this regard. 
65. 
 
 We now move onto the Petitioner’s contention regarding non-
disclosure of NSL by the Respondent in his statement of assets and liabilities 
(both in the nomination papers and yearly asset statement as a member of the 
National Assembly) before the ECP and in his tax returns. For all legal intent 
and purposes, NSL was a separate and independent juridical person from 
the Respondent. Barclay Trust International Limited, Barclay Trust Channel 
Islands Limited and Barclay Trust Jersey Limited were its shareholders and 
therefore under Company law principles, the residuary claimants upon 
Const.P.35 of 2016 
78 
NSL’s dissolution. The two sister of the Respondent were the directors and 
controllers of NSL. The Respondent was neither a shareholder nor director of 
NSL and therefore cannot be attributed the legal ownership of NSL. 
However, on the equitable plane, NSL was a vehicle owned and controlled 
by trustees/directors for the advancement and benefit of the Respondent. 
Accordingly, in his status of beneficiary under the trust carried out through 
NSL, the Respondent was the beneficial owner of assets of the NSL. These 
assets comprised solely the London flat with its bank accounts showing the 
receipts and expenses of the property plus £9/- share money contributed by 
NSL’s trustee share holders. The remaining administrative and logistic 
hardware for the operations of NSL was provided by its trustee share 
holders and their agents, who charged a fee for their services that was 
deducted from the accounts of NSL. As such NSL by itself was not an asset 
but an entity owning the London flat as its asset. Since the London flat was 
NSL’s sole asset and the Respondent was its sole beneficial owner; he 
declared the said property as his own under the Ordinance, 1979 and ROPA. 
Thereafter, the Respondent was not obligated to disclose the mere existence 
of NSL which, as mentioned earlier, owned only the London flat as its asset 
under a trust arrangement. Accordingly, we do not find that failure by 
Respondent to mention a trust vehicle company as his asset in which he 
neither held any shares nor any office in the management, can tantamount to 
misdeclaration or concealment constituting an act of dishonesty. This is 
especially so when we are not convinced of any benefit, financial or 
otherwise that was or could be derived by the Respondent on account of 
such non-disclosure. 
66. 
 
From the record and the facts and circumstances before us, we 
find that after the London flat was sold by the Respondent, for all practical 
Const.P.35 of 2016 
79 
purposes NSL became an empty shell company. Learned counsel for the 
petitioner also argued that considering that NSL was kept alive without its 
disclosure before the ECP or the tax authorities in Pakistan for 
approximately twelve years after the sale of the London flat in 2003. In this 
respect, according to NSL’s investment portfolio report dated 30.4.2001 
issued by Barclays Private Bank & Trust Limited, under the head 
‘MISCELLANEOUS’ at page 2 thereof, there is an entry of the ‘United 
Kingdom’ which is valued at £117,500/-. On page 3 of the said report, the 
description of the miscellaneous entry is given as ‘Great Britain, UNITED 
KINGDOM, DRAYCOTT AVE 165 LEASEHOLD PROPERTY’ priced at 
£117,500/-. At the bottom of page 3 of the portfolio report, the ‘TOTAL 
INVESTMENTS’ and ‘OVERALL TOTAL INVESTMENTS’ are valued at  
£117,500/-. The other amounts in the portfolio are £24,005/- and $221/- 
under the head ‘CASH AND CONTRACTS’. The amount of £24,005/- is 
stated by the learned counsel for the Respondent to be the rent received for 
the London flat. The same is the position with the portfolio report as at 
30.4.2002, save for the value of ‘CASH AND CONTRACTS’ which is 
£19,766/- only. The portfolio report as at 3.5.2004 shows the ‘Investments’ 
value to be 0. Therefore in 2001 and 2002, it is clear that the London flat was 
the only asset/investment held by NSL and after its sale in 2003, NSL had no 
investment left in 2004.  
67. 
 
As regards the period from 1983 when NSL was incorporated 
till 2000 and 2005 till 2015, we have no reasons to disagree with the learned 
counsel for the Respondent that NSL had no other assets and that it was kept 
alive till 2013 only for the reason that there was some litigation going on 
between NSL and the tenant of the London flat. By judgment delivered on 
10.2.2003, the English Court of Appeal awarded NSL as the owner of the flat, 
Const.P.35 of 2016 
80 
past rent amounting to £48,000/- whereas the tenant was given damages of 
£9050/- on his counter claim for defective installations in the flat. This 
brought NSL’s net entitlement roughly to £39,000/-. The judgment (“NSL 
judgment”) delivered by the Court of Appeal (Civil Division), London titled 
Niazi Services Ltd. vs. Van Der Loo ([2004] EWCA Civ 53) dated 10.2.2004 
notes that: 
 
“2. Niazi Services Ltd have a long lease of Flat 2, 165 
Draycott Avenue, Chelsea…The defendant, Mr. Van 
der Loo, was the sub-tenant of Flat 2, having taken a 
number of annual tenancies commencing in 1996. The 
tenancy formally terminated in October 2001 but Mr 
Van der Loo held over until May 2002. 
 
3. … Disputes broke out because of items of disrepair. 
Mr Van der Loo at one point refused to pay the rent 
saying that there should be a reduction. He was sued 
for the rent and judgment was obtained for the 
amount owing. This dispute concerns items of 
disrepair, raised by counterclaim…”  
… 
5. The judge's order was in the sum of £48,000 plus 
interest. The bulk of this was calculated by reference to a 
notional reduction of 40% of the rent for a 33-month 
period. He reached the 40% by way of a global 
assessment of all the defects which he found. There was 
added a minor amount, £4,500, for the repainting claim. 
… 
Order: Appeal allowed in part; the award of damages 
made by the County Court judge on the counterclaim set 
aside and the amount of £9,050 plus interest to be 
substituted; the respondent to pay 75% of the appellant's 
costs of the appeal; the defendant awarded 50% of his 
costs on the counterclaim; permission to appeal to the 
House of Lords refused. 
(Order does not form part of the approved judgment)” 
 
Const.P.35 of 2016 
81 
Pursuant to the Court of Appeal decree, a settlement was made with the 
tenant in 2006 whereunder NSL recovered £42,000/- from the tenant in 
installment paid until end of 2010, whereafter debit entries of only legal and 
administrative costs are visible in the account statements (reflected in NSL’s 
Euro Call Account Barclay’s Bank statement attached in Respondent’s CMA 
No.7012/2017). The requirement to keep NSL alive as a mere shell company 
after the sale of the London flat till conclusion of the execution proceedings 
under the said decree cannot be disbelieved in view of the banking record 
produced above. The Pound Sterling and Euro Call accounts statements at 
Barclay Bank show that after the sale of the London flat, there was no other 
property or asset owned by NSL. Until its dissolution, NSL was merely 
collecting payments made by the tenant under the settlement. Thus the 
assertion by the learned counsel for the petitioner that NSL owned assets 
besides the London flat is a baseless surmise. We also notice from the 
banking record of NSL that until 2013, substantial management fee of 
£3500/- per annum was charged, apart from solicitors’ fee regarding 
performance of the settlement with the tenant. Ultimately, it is ironic that 
name of NSL was struck-off the Register of Companies and was dissolved on 
1.10.2015 for non-filing of the annual return and non-payment of late filing 
fee. In the light of the above, we do not find any substantive material for 
holding that the Respondent has incurred a disqualification under Article 
62(1)(f) of the Constitution. 
 
5. 
Whether the Banigala property was purchased through the 
amount substantially sent by Ms. Jemima Khan from abroad through 
Mr. Rashid Ali Khan? Whether this was the amount utilized for the 
payment of the balance consideration of the Banigala property? 
68. 
 
The Respondent entered into an agreement to sell dated 
13.03.2002 with one Mr. Muhammad Maqsood (the seller) for the purchase of 
Const.P.35 of 2016 
82 
land measuring 300 kanals and 5 marlas bearing Khasra No.1939 situated in 
Mouza Mohra Noor, Banigala, District and Tehsil Islamabad (the Banigala 
property) for a total consideration of Rs.43,500,000/-. Apart from the total 
consideration, initially the Respondent made a cash payment of Rs.300,000/- 
to the seller for the purposes of brokerage fee and other miscellaneous 
charges. Out of the total consideration, the following payments were made 
by the Respondent: 
i. 
Rs.3,000,000 vide Citibank manager’s cheque No.007751 dated 
14.3.2002 (first payment); 
ii. 
Rs.3,500,000 vide Bank Alfalah Limited banker’s cheque 
No.001496 dated 28.3.2002 (second payment); and 
iii. 
Rs.800,000 in cash (final payment) sometime after 23.1.2003. 
 
69. 
 
The Respondent’s case is that the remaining payments were to 
be made by him from the anticipated proceeds of sale accruing from the sale 
of the London flat. However, as already noted above the London flat became 
the subject matter of serious litigation between NSL and the tenant which 
delayed its sale until April, 2003. On the other hand completion of sale of the 
Banigala property was agreed to be around end January, 2003.   
70. 
 
Leasehold as opposed to freehold title is a common form of 
ownership of immovable property in England; particularly for flats forming 
part of multistoried buildings comprising several units occupied by as many 
tenants. The NSL judgment observes that the NSL has a leasehold interest in 
the London flat. The tenant Mr. Van der Loo is, therefore, referred as the sub-
tenant in that judgment. It is clearly mentioned there that although Mr. Van 
der Loo’s tenancy ended in October 2001, he held over the premises until 
May 2002 but was successfully sued by NSL for non-payment of past rent 
vide judgment presumably delivered before sale of the London flat in April, 
Const.P.35 of 2016 
83 
2003.  Conversely, the sub-tenant also sued NSL for defective installations. 
On the other hand, the two initial payments of sale consideration for the 
Banigala property were made by the Respondent in March 2002. Also the 
NSL judgment dated 10.02.2004 merely reduced the damages awarded 
against the Respondent to £9050/-. The Euro bank statement of NSL (CMA 
No.7012 of 2017) shows that the judgment debtor tenant took a good five 
years to pay his decreed rental obligation on the basis of a 2006 compromise 
(CMA No.7012 of 2017). Be that as it may, the date for completion of sale of 
the Banigala property originally fixed as 30.06.2002 vide Clause No.3 of the 
agreement to sell. However, it is the Respondent’s case that this date was 
extended till 23.1.2003 by mutual consent of the parties and the final 
payment of the sale consideration was made to the seller on or about the said 
later date. According to the London Solicitors’ completion of sale statement, 
the sale transaction of the London flat was completed on 14.4.2003 i.e. three 
months after the final payment of the sale price of the Banigala property was 
made by the Respondent. 
71. 
 
It is for the reason of the abovementioned delay in the sale of 
the London flat that, according to the Respondent, he entered into an 
arrangement with his wife, Ms. Jemima Khan to transfer during the period 
April 2002 until January, 2003 the requisite funds (in foreign currency) from 
abroad to make payment of the sale price of the Banigala property. Such 
remittances were made to the bank account of Mr. Rashid Ali Khan, a close 
and trusted friend of the Respondent, who converted the same to Pak rupees 
and utilized such amount for payment to the seller through part payments of 
the total sale consideration. It was also mentioned by the learned counsel for 
the Respondent that the raison d’être for remitting the money to Mr. Rashid 
Ali Khan’s account and not directly to account of the Respondent, was to 
Const.P.35 of 2016 
84 
ensure that payments were timely made to the seller of the Banigala 
property. The likelihood of failure in this regard was a real possibility 
because Ms. Jemima Khan along with her two sons had moved in 2002 from 
Pakistan to London as it turned out for a separation. This situation 
compelled the Respondent to frequently travel between Pakistan and 
London in an unsuccessful effort to save the marriage which ultimately 
ended in divorce in June, 2004. This position is so expressed in the 
Respondent’s affidavit and is also corroborated by the events that followed 
including the place of residence taken up by Ms. Jemima Khan and her sons 
followed by breakup of the Respondent’s marriage. Therefore, we have no 
reason to disbelieve the version given by the Respondent.  
72. 
 
In any event, we consider that as long as the remittances to Mr. 
Rashid Ali Khan were indeed paid to the seller of the Banigala property, the 
factors causing the terms of the financial arrangement between the 
Respondent and Ms. Jemima Khan become irrelevant. As mentioned above, 
out of the total consideration of Rs.43,500,000/-, the Respondent initially 
paid an amount of Rs.6,500,000/- by two cheques to the seller of Banigala 
property in March, 2002. [first payment and second payment by leaving aside the 
disbursement of  initial Rs.300,000/- for miscellaneous and brokerage etc.) and then 
disbursed Rs.800,000/- final payment to the seller in cash sometime after 
January, 2003.  
73. 
 
Accordingly, it is now appropriate to consider whether the 
remaining sale consideration was funded by the amount remitted by Ms. 
Jemima Khan from abroad to Mr. Rashid Ali Khan or those transfers were a 
mere smokescreen to launder the Respondent’s tax evaded money. It may be 
noted that the balance consideration to be paid to the seller of the Banigala 
property came to Rs.36,200,000/-. In this regard, the remittances made by 
Const.P.35 of 2016 
85 
Ms. Jemima Khan and their onward conversion to rupee amounts and 
payment to the seller of Banigala property shall now be examined in the 
following paragraphs. 
74. 
 
The first remittance of an amount of $258,333/- is reflected in 
the following documents. According to a letter dated 8.4.2002 (bearing the 
letterhead of Ms. Jemima Khan), there is a request to BNP Paribas, Luxembourg, 
that $270,000/- be transferred from a USD account to Citibank, New York 
with ABA No.FW 021000089 (a routing or routing transfer number) for account 
No.10999612 at Citibank, Islamabad for further credit to the account No.9-
010534-809 of Ms. Jemima Khan. The Respondent has placed on record a 
bank statement in the name of ‘Khan’ issued by BNP Paribas of a USD 
current account reporting a transfer of $270,000/- on 8.4.2002. This connects 
with an account statement of Ms. Jemima Khan’s savings account in 
Citibank, Pakistan bearing account No.9-010534-809 for the period 1.2.2002 to 
30.4.2002 that shows an incoming telex transfer from Luxemburg on 9.4.2002 
(one day after the transfer from BNP Paribas, Luxemburg on 8.4.2002) making a deposit 
of $270,000/-. This account number corresponds with the account number of 
Ms. Jemima Khan that is mentioned in her request to BNP Paribas for the 
purpose of making further credit. The account statement of Ms. Jemima 
Khan’s saving account at Citibank, Islamabad reflects a debit/withdrawal 
bearing number 0411105835 of $258,333/- to have been made on 11.4.2002 
(page 9 of CMA No.4217 of 2017). Correspondingly, a Citibank, Pakistan 
account statement for the period 1.2.2002 to 30.4.2002 of Mr. Rashid Ali 
Khan’s savings account No.9-010327-943 records the deposit of $258,333/- on 
11.4.2002 through an ‘Islamabad – House Check 0411105835. The same 
House Check number also features as ‘Islamabad – Debit’ number in the 
Citibank, Pakistan account statement of Ms. Jemima Khan. Again on 
Const.P.35 of 2016 
86 
11.4.2002 the US Dollar credit of $258,333/- to Mr. Rashid Ali Khan’s 
Citibank, Pakistan account is shown to be transferred on 11.04.2002 vide 
entry ‘Trf To 0521588012’ which is his Citibank PKR current account. The 
account statement dated 21.10.2002 of the said Citibank PKR current account 
indicates the said mode of transaction. From these entries in the account 
statement (page 66 of CMA No.7925 of 2016), we understand that the first 
remittance by Ms. Jemima Khan to Mr. Rashid Ali Khan was encashed into 
Pak rupees vide encashment certificate with Ref. No.CBEC 2438 dated 
11.4.2002 whereby $258,333/- were converted at the then prevailing 
exchange rate of USD 1 = PKR 59.70 which came to Rs.15,422,480.10. Again 
on 11.4.2002 the said PKR amount was partly withdrawn in the amount of 
Rs.14,500,000/- vide Citibank Manager’s Cheque bearing No.008111 dated 
11.4.2002 issued in favour of the seller of the Banigala property (third 
payment). 
75. 
 
The second remittance made by Ms. Jemima Khan to the same 
recipient Mr. Rashid Ali Khan is for an amount of $275,678/-. Again, by a 
letter addressed to BNP Paribas, Luxembourg dated 29.7.2002 but this time 
on the letterhead of one Verton Holdings Ltd., a request is made by order of 
Ms. Jemima Khan for transfer from a USD account of an amount of 
$275,678/- in favour of account No.9-010327-943 of ‘Rashid Khan’ Citibank 
Pakistan. An account statement of a USD current account in the name of 
‘Verton Holdings Limited/JK’ issued by BNP PARIBAS records the transfer 
as requested of $275,678/- on 30.7.2002. (page 5 of CMA No.4217 of 2017). 
Correspondingly, a Citibank, Pakistan account statement of Mr. Rashid Ali 
Khan’s USD savings account No.9-010327-943 for the period 1.5.2002 to 
30.7.2002 reflects an ‘Incoming Telex Transfer Fm Usa b/o J Khan’ of an 
amount of US $275,678/- on 31.7.2002. Confirmation is also a Citibank, 
Const.P.35 of 2016 
87 
Pakistan letter dated 7.1.2004 (page 67 of CMA No.7925 of 2016) addressed to 
Mr.Rashid Ali Khan regarding entries in his account No.9010327943 in which 
a telegraphic transfer from ‘USA B/O J. Khan’ on 31.7.2002 for an amount of 
$275,678.62 is shown.  
76. 
 
According to the learned counsel for the Respondent, the 
remitted amount of US $275,678.62 was encashed piecemeal in four 
transactions. This appears to be true in light of the four encashment 
certificates filed on record:  
(i)  
The first encashment is reflected in Mr. Rashid Ali 
Khan’s Citibank bank statement of his foreign 
currency account No.9-010327-943 for the period 
1.8.2002 to 31.10.2002 (“FX statement of account”) 
[CMA No.4217 of 2017]. This reports a transfer of 
$200,000 on 1.8.2002 to his PKR current account 
bearing No.0521588012. The said transfer corresponds 
to the encashment certificate bearing Ref. No.CBEC 
2428 dated 1.8.2002 in respect of $200,000/- lying in 
the foreign currency account of Mr. Rashid Ali Khan 
that were encashed at the then prevailing exchange 
rate of USD 1 = PKR 59.15 amounting to 
Rs.11,830,000/-. There is a corresponding Citibank 
Manager’s cheque bearing No.009078 dated 1.8.2002 
for an amount of Rs.10,000,000/- drawn in favour of 
the seller (fourth payment).  
(ii)  
The second encashment is of an amount of $45,000/-. 
According to Mr. Rashid Ali Khan’s FX statement of 
account, the said amount of $45,000/- was transferred 
on 31.8.2002 to his PKR current account bearing 
No.0521588012. This transaction corresponds to the 
encashment certificate with Ref. No.CBEC 2429 dated 
31.8.2002, in which $45,000/- from the foreign 
currency account of Mr. Rashid Ali Khan was 
encashed at the then prevailing exchange rate of USD 
Const.P.35 of 2016 
88 
1 = PKR 59.00 that came to Rs.2,655,000. There is a 
corresponding Citibank Manager’s cheque bearing 
No.009467 dated 13.9.2002 for an amount of 
Rs.2,500,000 drawn in favour of the seller (fifth 
payment).  
(iii)  
The third encashment is of an amount of $20,000. 
According to Mr. Rashid Ali Khan’s FX statement of  
account for the period 1.8.2002 to 31.10.2002, there is a 
transfer of $20,000/- to his PKR current account 
bearing No.0521588012 on 31.8.2002. This corresponds 
to the encashment certificate with Ref. No.CBEC 2430 
dated 31.8.2002, in which $20,000/- from the foreign 
currency account of Mr. Rashid Ali Khan was 
encashed at the then prevailing exchange rate of USD 
1 = PKR 59.00 which came to Rs.1,180,000/-.  
(iv) 
The fourth encashment is of an amount of $10,660/-. 
According to Mr. Rashid Ali Khan’s FX statement of 
account,  there is a transfer of $10,660/- to his PKR 
current account bearing No.0521588012 on 10.9.2002. 
This corresponds to the encashment certificate 
bearing Ref. No.CBEC 2431 dated 10.9.2002 in which 
$10,660/- from the foreign currency account of 
Mr.Rashid Ali Khan was encashed at the then 
prevailing exchange rate of USD 1 = PKR 58.85 which 
came to Rs.627,341/-.  
It is worthy to note that no corresponding cheques were issued to the seller 
from third and fourth encashed amounts. However, as shall be seen below, 
these funds were utilized along with the third remittance towards 
subsequent payments made to the seller. 
77. 
 
The third remittance by Ms. Jemima Khan is of an amount of 
£20,000/-. This amount was directly remitted to Mr. Rashid Ali Khan’s 
Citibank PKR current account bearing No.0521588012 as is clear from the 
Const.P.35 of 2016 
89 
bank statement dated 21.2.2002 of the said account in which there is entry for 
an ‘INCOMING TELEX TRANSFER GBP20,000/- @91.4496 FM U.K.B/O. 
JEMIMA KHAN LTD.’ on 2.10.2002 showing a credit of the rupee equivalent 
amount of Rs.1,828,992/- in the account. As mentioned earlier, the amounts 
of Rs.1,180,000/- and Rs.627,341/- encashed on 31.8.2002 and 10.9.2002 had 
not been utilized for payment to the seller but were retained in Mr. Rashid 
Ali Khan’s Citibank PKR current account bearing No.0521588012. When the 
latest encashed amount dated 02.10.2002 is added to abovementioned two 
conversions to rupee amounts, their total comes to Rs.3,636,333/-. The 
balance amount in the said rupee account as on 2.10.2002 is shown in the 
PKR bank statement to be Rs.3,620,103.88. From this credit balance as on 
2.10.2002, a corresponding Citibank Manager’s cheque bearing No.009639 
dated 2.10.2002 for an amount of Rs.3,500,000/- was issued in favour of the 
seller (sixth payment). 
78. 
 
A remittance of an amount of $16,000/- on 5.10.2002 is 
included in the chart of fund transfers submitted by the learned counsel for 
the Respondent (CMA No.4217 of 2017). However, the origin of this 
remittance has not been traced to Ms. Jemima Khan. Therefore, Mr. Rashid 
Ali Khan’s Citibank bank statement (CMA No.4217 of 2017) for the foreign 
currency account No.9-010327-943 for the period 1.8.2002 to 31.10.2002, 
showing the transfer of $16,000/- on 5.10.2002 to his PKR current account 
bearing No.0521588012 is inconsequential. Likewise, the corresponding 
encashment certificate bearing Ref. No.CBEC 2432 dated 5.10.2002 reflecting 
the conversion of $16,000/- transferred from the foreign currency account of 
Mr.Rashid Ali Khan at the then prevailing exchange rate of USD 1 = PKR 
58.65 amounting to Rs.938,400/- is also of no utility to the Respondent.  
79. 
 
The FX statement of account of Mr. Rashid Ali Khan records 
two cash credit. The first on 19.11.2002 states ‘Islamabad – Cash Deposit 
Const.P.35 of 2016 
90 
1119111633 Value Nov 19, 02’ for an amount of $5,000/- which was 
subsequently transferred to an account bearing No.5521588014 on the same 
date. This transfer corresponds to the encashment certificate bearing Ref. 
No.CBEC 2433 dated 19.11.2002 in which $5,000/- from the foreign currency 
account of Mr. Rashid Ali Khan was encashed at the then prevailing 
exchange rate of USD 1 = PKR 58.15 which came to Rs.290,750/-. According 
to Mr. Rashid Ali Khan’s FX statement of  account, there is a second foreign 
currency cash credit entry that states ‘Islamabad – Cash Deposit 1209094013 
Value Dec 09, 02’ on 9.12.2002 for an amount of $5,000/- which was 
subsequently transferred to an account bearing No.5521588014 on 11.12.2002. 
This corresponds to the encashment certificate with Ref. No.CBEC 2434 
dated 11.12.2002 in which $5,000/- from the foreign currency account of Mr. 
Rashid Ali Khan were encashed at the then prevailing exchange rate of USD 
1 = PKR 58.10 which came to Rs.290,500. Neither of these cash deposits of 
$5000/- each constitute a remittance and therefore cannot be attributed to 
Ms. Jemima Khan as their sender. Therefore, these deposits cannot be 
evidence of the Respondent’s plea that these funds originated from Ms. 
Jemima Khan for the purchase of the Banigala property.   
80. 
 
In the above context of an unascertainable source of transfer of 
foreign funds to the account of Mr. Rashid Ali Khan, there is a claimed 
remittance of $100,000/- by Ms. Jemima Khan for which positive 
documentary proof is not available. According to Mr.Rashid Ali Khan’s FX 
statement of account, a credit entry on 22.01.2003 records an ‘Incoming Telex 
Transfer Fm USA B/O Citibank Value Jan 22, 03’ on 22.1.2003 for an amount 
of $100,000/- which was transferred to an account bearing No.5521588014 on 
23.1.2003. This is followed by the telegraphic transfer of $100,000/- from 
‘USA B/O Citibank’ on 22.1.2003 into Mr. Rashid Ali Khan’s foreign 
currency account No.9010327943 as reported to him vide the Citibank 
Const.P.35 of 2016 
91 
Pakistan letter dated 7.1.2004 (CMA No.3657 of 2017).  This amount 
corresponds to the encashment certificate with Ref. No.CBEC 2435 dated 
23.1.2003 in which $100,000/- from the foreign currency account of Mr. 
Rashid Ali Khan were converted  encashed at the then prevailing exchange 
rate of USD 1 = PKR 57.85 amounting to Rs.5,785,000/-. With the 
accumulated funds in the PKR account of Mr. Rashid Ali Khan, a 
corresponding Citibank manager’s cheque bearing No.010657 for an amount 
of Rs.5,700,000/- was issued in favour of the seller of the Banigala property 
(seventh payment). However, since the last remittance into the foreign 
currency account of Mr. Rashid Ali Khan cannot be traced to Ms. Jemima 
Khan, therefore, notwithstanding the payment to the seller, that is derived 
from it, the said remittance cannot be attributed to Ms. Jemima Khan nor can 
the Respondent’s plea of funding by her receives strength from it.   
81. 
 
The documents submitted on record reveal that four foreign 
currency remittances have been shown on record by the Respondent to have 
been made by Ms. Jemima Khan to Mr. Rashid Ali Khan who converted the 
same to Pak rupees to finance seven onward payments to the seller of the 
Banigala property:  
Sr. 
No.  
Date: 
Amount received in 
Mr. Rashid Ali Khan’s 
foreign 
currency 
account 
bearing 
No.9010327943 
 
Encashed Value 
Banker’s 
Cheque to 
seller 
Remaining 
Credit 
Balance: 
1 
08.04.2002 
$258,333/- 
Rs.15,422,480/10 
Rs.14,500,000/- 
Rs.922,480/- 
2 
31.07.2002 
$275678/- 
$200,000/- 
Rs.11,830,000/- 
Rs.10,000,000/- 
Rs.2,752,480/- 
$45,000/- 
Rs.2,655,000/- 
Rs.2,500,000/- 
Rs.4,714,821/- 
$20,000/- 
Rs.1,180,000/- 
 
 
Rs.3,500,000/- 
Rs.3,043,813/- 
$10,660/- 
Rs.627,341/- 
3 
02.10.2002 
£20,000/- (direct transfer 
to PKR account) 
Rs.1,828,992/- 
4 
22.01.2003 
$100,000/- 
(Excluded) 
Rs.5,785,000/- 
(Excluded) 
Rs.5,700,000/- 
 
5 
23.01.2003 
 
(Extended) 
Rs.2,656,187/- 
Total amount proven from Ms. Jemima Khan  
Rs.33,543,813/- 
 
 
 
 
(-) Rs.2,656,187/- 
Total amount paid to seller 
 
Rs.36,200,000/- 
Total amount of shortfall  
 
 
 
Const.P.35 of 2016 
92 
To recapitulate, as regards the amounts of $16,000/-, $5,000/- and $5,000/- 
credited to the foreign currency account of Mr.Rashid Ali Khan mentioned 
above, there is no indication on the record that this money was transferred 
by Ms. Jemima Khan; also, these accounts did not find any corresponding 
cheques for onward payment to the seller of the Banigala property. 
Therefore, these three credit amounts do not require further discussion. In 
this respect although during arguments learned counsel had made the claim, 
but he has not produced any documents to establish that said incoming telex 
transfer of US$100,000/- remitted on 22.1.2003 to the foreign currency 
account of Mr. Rashid Ali Khan had been effected on the instructions and 
account of Ms. Jemima Khan. Notwithstanding the availability of the 
corresponding encashment certificates and a Citibank Manger’s cheque in 
favour of the seller of the Banigala property, the link with and remittance 
from Ms. Jemima Khan is not established. Therefore, the said remittance 
although noticed for payment to the seller of the Banigala property cannot be 
accepted as supporting the Respondent’s plea regarding the source of 
funding for purchase of the Banigala property.  
82. 
 
On the other hand, there is also a telegraphic transfer of 
$100,029/- bearing the description ‘B/O Jemima Khan’ dated 20.5.2003 into 
Mr. Rashid Ali Khan’s foreign currency account. However, the learned 
counsel for the Respondent stated that notwithstanding the remittance 
having been made by Ms. Jemima Khan, yet this amount was never encashed 
for payment to the seller of the Banigala property. Accordingly, this is an 
internal transaction and a matter between Ms. Jemima Khan and Mr.Rashid 
Ali Khan. Therefore, we have no reason to disagree with the learned counsel 
for the Respondent. Besides, we are not, in the instant proceedings, 
Const.P.35 of 2016 
93 
scrutinizing the banking transactions of Mr.Rashid Ali Khan that do not bear 
nexus with the issue before us today. The payments made by him to the 
seller and duly acknowledged by the latter correspond to remittances 
(including $100,000/- made on 22.1.2003 but excluded for non-proof) that are 
established to have been sent by Ms. Jemima Khan. Therefore, we are of the 
opinion that three out of foreign currency remittance by Ms. Jemima Khan 
from abroad to Mr.Rashid Ali Khan were fully utilized for the payment of 
the balance sale consideration of the Banigala property. The fourth 
remittance of $100,000/- dated 22.1.2003 converted to Rs.5.785 million was 
also paid to the seller of the Banigala property by cheque for Rs.43.5 million 
dated 23.1.2003. However, that remittance is not proved to have been made 
by Ms. Jemima Khan. Therefore, her proven remittances equal Rs.33.543 
million (i.e. Rs.39.32 million minus Rs.5.785 million). Against the said proven 
receipt of Rs.33.543 million, Mr. Rashid Ali Khan paid the seller an amount 
of Rs.36.20 million to the seller showing a shortfall of Rs.2.656 million in 
proven funding by Ms. Jemima Khan.   
83. 
 
To conclude, the agreement to sell the Banigala property and its 
sale consideration of Rs.43.5 million are not disputed. The first, second and 
final payments were made to the seller by the Respondent from his funds 
whereas the third, fourth, fifth and sixth payments were made from the 
funds sent by Ms. Jemima Khan through Mr. Rashid Ali Khan. Their sum 
total comes to Rs.40.843 million short by Rs.2.656 million from the total 
payment of Rs.43.5 million made to the seller. The shortfall is not decisive 
because it is addressed by the amount of repayments made by the 
Respondent to Ms. Jemima Khan. One cannot overlook the fact that the 
seventh payment of Rs.5,700,000/- made on 23.1.2003 by Citibank cheque to 
Const.P.35 of 2016 
94 
the seller of Banigala property draws upon funds remitted from abroad on 
22.1.2003. However, this remittance has not been connected with Ms. Jemima 
Khan through evidence, therefore, it has been excluded from the count. Be 
that as it may, she transferred another amount of $100,029/-  on 20.5.2003  to 
the foreign currency account of Mr.Rashid Ali Khan. This remittance is 
proven through bank documentation to have been transferred by Ms. 
Jemima Khan (CMA No.3657 of 2017). However, this amount was not 
encashed by Mr.Rashid Ali Khan statedly because full payment of sale 
consideration had been made to the seller of Banigala property. If it is 
assumed that $100,000/- credited to the account of Mr.Rashid Ali Khan on 
22.1.2003 originated from his own source, then the remittance of $100,029/- 
by Ms. Jemima Khan to his account on 20.5.2003 reimbursed his contribution. 
The fact is that the amounts remitted by Ms. Jemima Khan fully funded the 
payments made by Mr.Rashid Ali Khan to the seller including the seventh 
payment amounting to Rs.5,700,000/-. This view is reinforced by the amount 
paid subsequently by the Respondent to Ms. Jemima Khan which aspect is 
examined shortly herein below. Therefore, we do not find any fraud, money 
laundering or misdeclaration on behalf of the Respondent in this regard, 
warranting his disqualification under Article 62(1)(f) of the Constitution. 
 
6. 
Whether the amount contributed by Ms. Jemima Khan for the 
purchase of the Banigala property was repaid to her after the sale of the 
London flat by the Respondent? 
 
84. 
 
The total amount that Ms. Jemima Khan remitted to Mr.Rashid 
Ali Khan was approximately $665,340/- after excluding the cash deposits 
and $100,000/- telex transfer not shown to be from her. The breakdown of 
the established remittances by Mr.Jemima Khan is as follows:- 
Const.P.35 of 2016 
95 
 
Sr. No. 
Amounts 
Comments 
1. 
$258,333/- )8.4.2002) 
Amounts converted and utilized 
for payment to the seller of the 
Banigala property.  
2. 
$275,678/- (31.7.2002) 
3. 
£20,000 = $31,300/- (2.10.2002)  
(at the exchange rate of £1 = $1.565 
prevalent on 2.10.2002) 
4. 
$100,000/- (22.1.2003) 
(claimed but excluded) 
Amounts claimed as remitted and 
encashed and utilized towards 
payment for Banigala property but 
excluded as unproved.  
5. 
$100,029/- 
 
Amount 
remitted 
but 
not 
encashed.  
6. 
$665,340 = £417,900.89 
(at the exchange rate of £1 = $1.5921 
prevalent on 7.5.2003, the date payment 
was made to Ms. Jemima Khan) 
 
  
As mentioned earlier, the London flat was sold on 14.4.2003 for an amount of 
£715,000/-. According to the completion certificate, after deducting the 
proportion of ground rent from 15.4.2003 to 23.3.2004 (344 days) at £125/- per 
annum, and subtracting various expenses (estate agent’s commission, solicitors’ 
costs, etc.), the net proceeds of sale of the London flat that NSL received were 
£690,307/-. Out of this amount, NSL on behalf of the Respondent paid an 
amount of £562,415.54 on 07.05.2003 to Ms. Jemima Khan. This payment was 
purported to be established by the learned counsel for the Respondent 
through a letter dated 22.5.2017 issued by one Ashley Cox, Managing 
Director of Zedra Trust Company (Jersey) (the successor to Barclay Trust 
Banking) confirming that: 
“Upon a letter dated 18 April 2003 from Mr I Khan 
requesting that a payment be made to Mrs Jemima Khan’s 
account with the Anglo Irish Bank, a payment of 
£562,415.54 was made from Niazi Services Limited’s 
account with Barclays Private Bank & Trust Limited to 
Mrs Khan’s account on the 7 May 2003.” (Note:- We have 
asked the counsel for the Respondent to give us the letter of 
Imran Khan dated 18.4.2003 and also the relevant proof from the 
bank statements of NSL or Jemima Khan).  
Const.P.35 of 2016 
96 
 
The Court was not satisfied by the said letter as evidence on the point. 
Accordingly, it was directed that the relevant proof from the bank statement 
of NSL or of Ms. Jemima Khan be placed on record. Consequently, through 
CMA No.6799 of 2017 (filed on 06.10.2017) the letter dated 18.04.2003 by the 
Respondent instructing aforesaid payment to Ms. Jemima Khan and copies 
of relevant Bank statements of Ms. Jemima Khan’s account  and NSL’s 
account were filed on record. These documents clearly establish payment of 
£562,415.54 by NSL to Ms. Jemima Khan on 7.5.2003. According to 
calculations based on the amount of foreign currency remittances made by 
Ms. Jemima Khan to Mr.Rashid Ali Khan for onward payment for sale 
consideration of the Banigala property, the Respondent refunded to Ms. 
Jemima Khan approximately £114,514.65 (£562,415.54 minus £417,900.89) in 
excess of the foreign currency amount remitted by Ms. Jemima Khan to Mr. 
Rashid Ali Khan for payment of the price of the Banigala property. The 
excess payment made by the Respondent is in our opinion a matter between 
the spouses. It is relevant, however, to note that these inter se financial 
transfers took place while the Respondent’s marriage with Ms. Jemima Khan 
was still intact because they got divorced in June, 2004. Therefore, exact 
reconciled accounts between spouses is neither necessary nor expected nor a 
matter for the Court to probe. Be that as it may, the banking material placed 
on record is relevant to the point in issue, duly corroborated by other 
documents, emanating from competent sources and, therefore, reliable and 
trustworthy. In any event, the petitioner has brought no material to 
contradict the said evidence. In the circumstances, we consider that the 
money trial for the purchase of the Banigala property by the Respondent has 
been duly established before us. The method adopted by the Respondent for 
arranging timely funding for the sale consideration through his wife is a 
Const.P.35 of 2016 
97 
lawful arrangement. In any event, the funds that she contributed for the 
purchase of the Banigala property were duly returned by the Respondent 
from a lawful source that was a duly declared property.  
 
7. 
Who is the owner of the Banigala property? Whether a valid gift of 
the said property was made by Ms.Jemima Khan in favour of the Respondent 
through an attorney? 
85. 
 
It is the Respondent’s case that he purchased the Banigala 
property for his then wife, Ms. Jemima Khan, and their two sons. We have no 
reason to disbelieve such an object. Indeed, the first and second payments to 
the seller of the Banigala property were both made by the Respondent. He 
was expecting to pay the remaining sale consideration amount of the 
property from the sale proceeds of his London flat. However, due to delay in 
such sale in the circumstances mentioned above, he made a ‘bridge 
financing’ arrangement whereby Ms. Jemima Khan remitted foreign 
exchange from abroad to Mr.Rashid Ali Khan, who after conversion of such 
amounts to Pak Rupees, paid the same to the seller. Pursuant to the stated as 
well as apparent object, the transfer of the Banigala property through various 
sale mutations was, therefore, made in favour of Ms. Jemima Khan. For all 
intents and purposes these sale mutations indicated that she was the 
absolute owner of the same.   
86. 
 
The various sale mutations of the Banigala property are as 
follows. The first mutation No.7056 records sale of 135 kanals of land in 
favour of Ms. Jemima Khan. The sale was reported to the patwari on 
10.4.2002. He forwarded the matter on 25.4.2002 to his superiors with the 
note that the record is complete for sanction of the mutation. Accordingly, on 
26.4.2002 the competent revenue officer sanctioned the first mutation. The 
second mutation No.7225 records the sale of 62 kanals of land in favour of 
Const.P.35 of 2016 
98 
Ms. Jemima Khan. The initial entry of particulars was made on 3.8.2002; the 
report of the qanoongo thereon is dated 15.8.2002 and the second mutation of 
sale was sanctioned by the competent revenue officer on 16.8.2002.  The third 
mutation No.7246 records sale of 8 kanals of land in favour of Ms. Jemima 
Khan. The particulars of the transaction were entered on 20.8.2002; the report 
thereon by the qanoongo is dated 27.8.2002 and the third mutation of sale was 
sanctioned by the competent revenue officer on 28.8.2002.  
87. 
 
The dispute raised by the learned counsel for the petitioner is 
regarding only the fourth and fifth mutation Nos.7361 and 7538. About 
these, the petitioner has questioned as to why they were sanctioned by the 
revenue officer in the year 2005 with a gap of nearly three years after the first 
three mutations finalized in the year 2002. The fourth mutation No.7361 
records the sale 45 kanals of land in favour of Ms. Jemima Khan, the 
particulars whereof were entered in the revenue record on 11.11.2002 and the 
report by the qanoongo thereon was completed on 13.11.2002; however, the 
fourth sale mutation was belatedly sanctioned by the competent revenue 
officer on 11.6.2005. Likewise, the fifth mutation No.7538 records the sale of 
50 kanals of land in favour of Ms. Jemima Khan, which was entered in the 
revenue record on 4.2.2003; the record was prepared by the qanoongo on 
27.2.2003 and this mutation too was sanctioned by the competent revenue 
officer on 11.6.2005. Learned counsel for the Respondent has submitted that 
the particulars of both the sale mutations including the land to be conveyed 
were duly entered in the revenue record on 11.11.2002 and 4.2.2003 
respectively. The record does not show that the Respondent is in any way 
responsible for the delay in the sanction of the said two mutations. We have 
perused both the mutations Nos.7361 and 7538 and note that each of these 
contains the phrase “التوا ِر یز منتقلی یبندا پ جہبو”. The said note in the file of both the 
Const.P.35 of 2016 
99 
mutations indicates that there was some prohibition preventing their 
sanction on an earlier date. The record does not discard the initial reports 
filed by the patwari on 11.11.2002 and 4.2.2003 so that the final sanctioned 
mutations are based on these reports. Therefore, we have no reason to 
disbelieve the Respondent’s stance in this regard. The petitioner also raised a 
question as to why mutation Nos.7361 and 7538 were sanctioned in the name 
of the ex-wife, Ms. Jemima Khan, when on the date of their sanction, i.e. 
11.6.2005, she and the Respondent had already divorced on 22.6.2004.  
We have seen both the mutations and these are in favour of “ حمدا ناعمر جہوز نخا ا
م
ئجما ۃمسما
یزنیا نخا”. It is also observed that the name of Ms. Jemima Khan was included 
in the initial entries and report for these mutations recorded on 11.11.2002 
and 4.2.2003 respectively. At that time, the marriage between the Respondent 
and Ms. Jemima Khan was still intact. Therefore we do not find there to be 
any element of fraud or a sham entry in this record as asserted by the learned 
counsel for the petitioner. 
88. 
 
It was after the Respondent had refunded, inter alia, the bridge 
financed amount to Ms. Jemima Khan on 7.5.2003 that their divorce took 
place in 2004. It appears that Ms. Jemima Khan reflected for sometime before 
deciding to return the Banigala property to the Respondent. For this 
purpose, she executed on 21.3.2005 before a notary public in England a 
power of attorney in favour of Mr. Saifullah Khan Sarwar Niazi in respect of 
the said property. The relevant portions of that power of attorney read as 
under: 
 
“That a land measuring 300 Kanals and 5 Marlas in 
Khasra No.1939 situated in the revenue estate of village 
Mohra Noor Tehsil and District Islamabad was purchased 
Const.P.35 of 2016 
100 
by Mr. Imran Ahmed Khan Niazi son of Ikramullah Khan 
Niazi. 
 
The land was transferred in my name through mutation 
Nos.7056, 7225, 7361, 7538, by my ex-husband Mr. Imran 
Ahmed Khan Niazi as a “Benami Transaction”. After the 
Separation/ Divorce between me and Mr. Imran 
Ahmed Khan Niazi, I do not intend to keep the land 
with me. 
 
Since I am unable to personally appear before the 
authorities to complete the transfer formalities in the name 
of Mr. Imran Ahmed Khan Niazi, therefore, I do hereby 
appoint Mr. Saifullah Sarwar Khan Niazi son of Imran 
Ahsan Khan Niazi resident of H. No. 103, St. No. 2, PTV 
Colony, Bara Kahu, Tehsil and District Islamabad to 
appear before the Revenue Office / Registrar, and get 
the land transferred in the name of Mr. Imran Ahmed 
Khan Niazi son of Ikramullah Khan Niazi resident of 11B 
Clara Apartments, Diplomatic Enclave, Sector G-5, 
Islamabad. 
 
The above mentioned is also authorized to appear, on my 
behalf in any court, authority in connection to the affairs of 
the land. The attorney is also authorized to engage an 
advocate if so required to complete the transfer formalities. 
 
Alternatively he is also authorized to make gift of the 
above mentioned entire land to the adverted Mr. 
Imran Ahmed Khan Niazi son of Ikramullah Khan Niazi 
residing in 11B Clara Apartment, Diplomatic Enclave, 
Sector G-5 Islamabad and complete all the legal formalities 
required under the law. 
 
It is therefore, confirmed that anything done or act 
performed by the said attorney will be done on my behalf. 
 
Const.P.35 of 2016 
101 
In witnesses, whereof the attorney signed / executed by 
me of my own free will without any inducement or 
coercion.” 
[Emphasis supplied] 
 
89.  
 
The power of attorney clearly envisages that Ms. Jemima Khan 
intended to give the Banigala property back to the Respondent and in this 
regard authorized her agent, Mr. Saifullah Sarwar, to either transfer it in the 
Respondent’s name or in the alternative to gift it to him. The word ‘benami’ 
only finds mention in the power of attorney and nowhere else. According to 
the Respondent’s case, the Banigala property was always meant to be for his 
then wife. It was never the Respondent’s case that the transaction was a 
benami transaction and that he was the actual owner and his ex-wife, its 
ostensible owner. We have no reason to disbelieve the Respondent’s stance 
and it is both probable and plausible that the Banigala property was 
purchased in the name of Ms. Jemima Khan as a home for the family. And 
that the Respondent intended that she should own the property as its actual 
and not ostensible owner. Therefore, although part of the sale price of the 
Banigala property was paid by the Respondent himself yet it was mutated in 
favour of Ms. Jemima Khan. It appears that after the Respondent had repaid 
in May, 2003 the funds provided by Ms. Jemima Khan, their marriage broke 
down in June, 2004. It is plausible that as a consequence of her divorce, she 
did not need a home in Pakistan and decided to return the property to the 
Respondent.  
90. 
 
In this regard, the power of attorney envisages two alternate 
methods of transfer which the attorney may have utilized: either to transfer 
the Banigala property to the Respondent or to make a gift of the same. The 
attorney while carefully exercising his power under the power of attorney 
got a gift mutation No.10696 dated 29.10.2005 (oral hiba) of the Banigala 
Const.P.35 of 2016 
102 
property sanctioned in favour of the Respondent. It was entered on 
22.9.2005, the report by the qanoongo is dated 23.9.2005 and the mutation was 
sanctioned on 29.10.2005. Being the owner of the Banigala property, Ms. 
Jemima Khan could, through her attorney, validly make a gift or hiba of the 
same in favour of the Respondent. Therefore, the word ‘benami’ appearing in 
the power of attorney is more of a misconception about her status rather than 
a fraud or sham committed by the Respondent. The intention of Ms. Jemima 
Khan to transfer the Banigala property to the Respondent is obvious, 
therefore, the possible purpose to mention benami may have been to facilitate 
the property transfer by way of filing a suit or some other mode avoiding 
delay and expense. However, in the final analysis it was decided to make the 
transfer through an oral hiba. Therefore, the need for Ms. Jemima Khan to 
execute a release deed in order for the Banigala property to be returned to 
the Respondent did not arise. In any event, a gift is a matter between the 
donor and the donee which has not been disputed by or on behalf of the 
donor. The petitioner being a complete stranger to the gift has no locus standi 
to challenge the same. Therefore, we find that the aforementioned facts and 
circumstances do not in any way warrant the conclusion of the gift being a 
sham and fraud be sought by the learned counsel for the petitioner to the 
grant of the relief of disqualification under Article 62(1)(f) of the 
Constitution.  
 
8. 
Whether the Respondent failed to disclose the amount paid as 
advance for the purchase of the flat at One Constitution Avenue, Islamabad 
in his tax returns? Whether he failed to disclose such flat in his statement of 
assets and liabilities before the ECP? If so, its effect? 
91. 
 
It is the petitioner’s case that the Respondent paid an amount 
of Rs.2,970,000/- in cash on 21.4.2014 for the purchase of an apartment (2 bed 
flat, Type E, Level 11, Tower C) in One Constitution Avenue, Constitution 
Const.P.35 of 2016 
103 
Avenue, Islamabad (Apartment) and a further amount of Rs.3,000,000/- vide 
cheque No.0502349 dated 16.3.2015 but he failed to disclose the investment of 
Rs.2,970,000/- in his declaration of assets for the financial year 2014 
furnished before the ECP. According to the petitioner’s case, this non-
disclosure is a willful concealment and a clear violation of Section 12(2)(f) 
read with Section 42A of ROPA, and thus has committed a corrupt practice 
under Section 82 thereof.  
92. 
 
The law relied by the learned counsel for the petitioner is as 
under: 
12. Nomination for election.– (2) Every nomination shall be 
made by a separate nomination paper in the prescribed form 
which shall be signed both by the proposer and the seconder and 
shall, on solemn affirmation made and signed by the 
candidate, accompany– 
 
(f) 
a statement of his assets and liabilities and those 
of his spouse and dependents on the prescribed form as on 
the preceding thirtieth day or June; 
 
42A. Yearly submission of statements of assets and 
liabilities.–(1) Every member shall, on a form prescribed 
under clause (f) of sub-section (2) of section 12, submit a 
statement of assets and liabilities of his own, his spouse 
and dependents annually to the Commission by the thirtieth day 
of September each year. 
 
(4) Where a member submits the statement of assets and 
liabilities under sub-section (1) which is found to be false 
in material particulars, he may be proceeded against under 
section 82 for committing the offence of corrupt practice. 
 
82. Penalty for corrupt practice.– Any person guilty of 
corrupt practice shall be punishable with imprisonment for a 
term which may extend to three years, of with fine which may 
extend to five thousand rupees, or with both. 
[Emphasis supplied] 
Const.P.35 of 2016 
104 
 
According to the aforementioned law, every candidate is to file along with 
his nomination papers, a statement of his assets and liabilities and those of 
his spouse and dependents [Section 12(2)(f) of ROPA]. A member of an 
Assembly is also required to file such statement his assets and liabilities and 
those of his spouse and dependents every year [Section 42(1) of ROPA] and if 
the statement is found to be false in material particulars, such member may 
be proceeded against under Section 82 of ROPA for committing the offence 
of corrupt practices for which the punishment is provided therein. The 
question we are faced with is whether the Respondent’s statement of assets 
and liabilities filed in 2014 (as is the petitioner’s case) is false in material 
particulars in terms of non-disclosure of the investment of Rs.2,970,000/-.  
93. 
 
In the statement of assets/liabilities filed along with his income 
tax return by the Respondent under Section 116(2) of the Ordinance, 2001 for 
the tax year 2014 (CMA No.7925 of 2016), the amount of Rs.2,970,000/- has 
been disclosed described as an ‘investment (non-business)’ category of 
personal assets/liabilities. This is the precise amount that according to the 
petitioner has been paid by the Respondent and acknowledged through a 
computer-generated receipt of such amount issued by Grand Hyatt, the 
stated developers of the high-rise tower called One Constitution Avenue. In 
any case, both the sides have no dispute  about the amount of down payment 
being Rs.2,970,000/-. Thus there is an express and that too voluntary 
declaration of this amount. In his statement of assets/liabilities filed by the 
Respondent under Section 116(2) of the Ordinance, 2001 for the tax year 2015 
(CMA No.7925 of 2016), the declared amount for the same investment is 
increased by Rs.3,000,000/- and disclosed as Rs.5,970,000/-. However, in the 
year 2014, there is difference in the description of the said asset. Rather than 
Const.P.35 of 2016 
105 
being placed in the category of ‘investment (non-business)’ the said asset has 
more accurately been described as ‘debt (non-business)’Advance for 2 Bed flat in 
1 Constitution Avenue, Grand Hayat Development Islamabad”.  
94. 
 
It is the Respondent’s case that he made a further payment of 
Rs.3,000,000/- for the Apartment in the financial year ending 30.6.2015, 
which amount also features in the petition. The figure of Rs.5,970,000/- is 
accordingly reflective of the combined amount of the initial deposit of 
Rs.2,970,000/- and the further payment of Rs.3,000,000/-. Thus again a clear 
and voluntary declaration of the total advance amount for the Apartment 
was made by the Respondent. Therefore, as far as declaration by the 
Respondent of his investment deposit for the Apartment in the tax return is 
concerned, his position is absolutely plain and accurate. However, we find 
the petitioner’s plea that such plain and accurate disclosure made by the 
Respondent in his statement of assets and liabilities for the year 2015 but not 
for the year 2014 filed with the ECP is deficient and dishonest, to be 
groundless. In 2015, the Respondent was allocated a putative flat in the 
Tower building and so he mentioned its particulars with financial details. On 
the other hand, it is explained that in the year 2014 the only payment made 
by the Respondent was a deposit of Rs.2,970,000/- without any booking, 
reservation or allocation of a future proprietary right. The Respondent 
explanation that the deposit did not constitute an asset has weight. This is 
because no sale had been effected in favour of the Respondent. In terms of 
the law, a sale transaction had been initiated. Neither the sale price been paid 
nor the Apartment been transferred to the Respondent. There is no property 
which may be considered to be the Respondent’s asset; therefore rendering 
him liable to disclose the same in his statement of assets and liabilities filed 
before the ECP. At the best on the payment of the deposit or advance 
Const.P.35 of 2016 
106 
amount, the Respondent had an agreement to sell in his favour. Section 54 of 
the Transfer of Property Act, 1882 mandates: 
“54. “Sale Defined”. “Sale” is a transfer of 
ownership in exchange for a price paid or promised 
or part-paid part-promised. 
 
Sale how made. Such transfer, in the case of 
tangible immovable property of the value of one hundred 
rupees and upwards, or in the case of a reversion or 
other intangible thing, can be made only by a registered 
instrument. 
 
In the case of tangible immovable property, of a 
value less than one hundred rupees, such transfer may 
be made either by a registered instrument or by delivery 
of the property. 
 
Delivery of tangible immovable property takes 
place when the seller places the buyer, or such person as 
he directs in possession of the property. 
 
Contract for sale. A contract for the sale of 
immovable property is a contract that a sale of such 
property shall take place on terms settled between the 
parties. 
 
 It does not, of itself, create any interest in or 
charge on such property.” 
[Emphasis supplied] 
 
We have held in a number of judgments that an agreement to sell does not 
create any right, interest or title in the immovable property. At the most the 
vendee is entitled to seek specific enforcement of such an agreement in terms 
of the Specific Relief Act, 1872 and the principles settled by this Court in that 
regard. Therefore, the explanation by the Respondent that there was no asset 
to declare in the 2014 before the ECP is rational.   
Const.P.35 of 2016 
107 
95. 
 
Indeed this exposes the weakness of the petitioner’s argument 
that since the Respondent’s statement of assets and liabilities of 2015 filed 
before the ECP provides the particulars of the Apartment and the amount of 
the advance payment made for it, therefore, the Respondent’s failure to 
mention those facts be inferred that he concealed this fact in his earlier 
statement of assets and liabilities for the year 2014 amounts to concealment 
of an asset, hence an omission attracting disqualification. We are satisfied 
that at the time of filing his statement of assets and liabilities in 2014 before 
the ECP, the Respondent did not have a specific asset to declare. It was not 
contended that the cash amount of the deposit represents a concealed assets; 
and rightly so, because the movement of cash assets was never questioned. 
At a more practical level, the petition itself acknowledges that any omission 
or error in the statement of assets and liabilities under Section 42A of the 
ROPA is the rejection of the nomination paper not disqualification of 
candidature. That consequence follows from a Court of law under Article 
62(1)(f) of the Constitution or Section 99(1)(f) of the ROPA. No such case has 
been pleaded or made out by the petitioner. In the light of the above, we are 
of the view that this plea of the petitioner is misconceived and unfounded 
and is thus discarded. 
 
The requirement of ‘dishonesty’ for disqualification under Article 
62(1)(f) of the Constitution. 
 
96. 
 
A great deal of emphasis has been laid by the learned counsel 
for the petitioner on the declaration given unanimously by a learned larger 
Bench of this Court in their final order of the Court dated 28.07.2017 reported 
as  Imran Ahmed Khan  vs.  Muhammad Nawaz Sharif (PLD 2017 SC 692) 
at page-716 in the following terms: 
 
Const.P.35 of 2016 
108 
 
 
 
“2.  
It is hereby declared that having failed to disclose 
his un-withdrawn receivables constituting assets from 
Capital FZE Jebel Ali, UAE in his nomination papers filed 
for the General Elections held in 2013 in terms of Section 
12(2)(f) of the Representation of the People Act, 1976 
(ROPA), and having furnished a false declaration under 
solemn affirmation Respondent No. 1 Mian Muhammad 
Nawaz Sharif is not honest in terms of Section 99(f) of 
ROPA and Article 62(1)(f) of the Constitution of the 
Islamic Republic of Pakistan, 1973 and therefore he is 
disqualified to be a Member of the Majlis-e-Shoora 
(Parliament).” 
 
 
 
 
 
[emphasis added] 
97. 
 
Based on the foregoing declaration, the learned counsel has 
argued that the disqualification of the erstwhile Prime Minister proceeds 
solely on his false declaration made under solemn affirmation to constitute 
evidence of lack of honesty. There is as such no finding against the said 
public office holder of deception, fraud, cheating or unfair gain derived by 
him through the false declaration. Accordingly, the law as declared by the 
larger bench has made a false or incorrect declaration of assets and liabilities 
by a holder of public office to constitute a wrong entailing strict liability; 
therefore, any explanation or justification for such declaration being a bona 
fide, genuine or unmotivated omission, no longer has any relevance for 
ascertaining whether the Respondent has violated the condition of “honest 
and ameen” laid down in both Article 62(1)(f) of the Constitution and Section 
99(1)(f) of the ROPA.  
98. 
 
The upshot of the submission made by the learned counsel for 
the petitioner is that intention, object and purpose has nothing whatsoever to 
do with the commission of errant conduct contrary to Article 62(1)(f) ibid and 
Section 99(f) ibid. To our minds, the argument advanced by the learned 
counsel suffers from a misconception of the law. The final order of the Court 
Const.P.35 of 2016 
109 
unanimously passed by the learned larger Bench carefully opens with the 
following words: 
     
 
“This judgment is in continuation of our judgments dated 
20.04.2017 in Constitution Petitions Nos.29, 30 of 2016 and 
Constitution Petition No.03 of 2017 which ended up in the 
following order of the Court: …” 
Clearly, the earlier opinion in Imran Ahmad Khan Niazi   vs.  Mian 
Muhammad Nawaz Sharif (PLD 2017 SC 265), given by three members of 
the larger Bench leading to the constitution of a Joint Investigation Team 
(“JIT”) are integral to the final judgment announced by the larger Bench on 
28.07.2017. Each of the three learned members of the Bench concluded for 
separate reasons given by them, that the provisions of Section 9(a)(v) read 
with Section 14(c) of the National Accountability Ordinance (“NAO”) would, 
prima facie, attract to the case made out by evidence on record against the 
erstwhile Prime Minister, his dependants and benamidars. It would, 
accordingly, be instructive to consider the context in which such a view was 
entertained in the first instance by each of the learned members of the 
majority in their respective opinions issued on 20.04.2017, that was 
subsequently reinforced in their final judgment dated 28.07.2017 culminating 
with a direction for the NAB to prepare and file before the Accountability 
Court, Islamabad within six weeks from the date of the said judgment 
several references against the erstwhile Prime Minister, his dependents and 
benamidars, in all 10 persons, based on material collected and referred to by 
the JIT in its report and such other material as may be available with the FIA 
and NAB having nexus with assets mentioned in the judgment or becoming 
known pursuant to mutual legal assistance requests by the JIT to different 
jurisdiction. The said evidentiary context is eminently described in the 
judgment dated 20.04.2017 titled Imran Ahmad Khan Niazi   vs.  Mian 
Const.P.35 of 2016 
110 
Muhammad Nawaz Sharif (PLD 2017 SC 265), in paragraphs 85 to 89 at 
pages 653ff, which are reproduced herein below: 
 
“84.  
The learned counsel for the Respondents have laid 
much stress on the powers of this Court under Article 
184(3) of the Constitution and passing orders in terms of 
Articles 62 & 63 of the Constitution. In this context, the 
learned counsel for Respondent No.1 as well as 
Respondent Nos.6, 7 & 8 have emphasized that this Court 
has traditionally refrained from delving into situations/ 
cases which involve factual controversies requiring 
recording of evidence. The only exceptions being cases 
where irrefutable or unrebutted evidence is available or 
necessary facts are admitted by the parties. It may, 
however, be noted that new jurisprudence of this Court 
has evolved in the past few years in matters involving fake 
degrees and dual citizenship held by the Parliamentarians. 
The principles regarding exercise of powers under Article 
184(3) of the Constitution are undergoing a process of 
evolution and fresh ground is being broken. The argument 
made by the learned counsel for the Respondents that 
evidence cannot be recorded or factual inquires cannot be 
conducted in exercise of powers under Article 184(3) of the 
Constitution may be based on some precedent but we find 
that this is not a hard and fast, inflexible and rigid 
principle of law. It has only been followed by way of 
practice and expediency with exceptions being created and 
jurisdiction being extended from time to time where the 
facts and circumstances so required. By way of illustration, 
the case of Pakistan Muslim League (N) v. Federation of 
Pakistan [PLD 2007 SC 642] may be cited. In this case, this 
Court held that that there was no bar on the power of this 
Court under Article 184(3) of the Constitution to record 
evidence provided voluminous record and complicated 
questions of fact and law were not involved. This Court is 
not a slave of the doctrine of stare decisis. We are not 
shackled by the chains of precedents where the interests of 
the people of Pakistan so demand. While remaining within 
the four corners of the law and limits set for us by the 
Const.P.35 of 2016 
111 
Constitution, in order to do complete justice, there is no bar 
on the power of this Court to record evidence in 
appropriate cases and pass such orders as may be 
necessary.  
85.  
There are serious allegations of money laundering, 
corruption and possession of assets beyond known means 
and or acquiring assets, the sources of which have not been 
explained. It is also important to note that Respondent 
No.1 has repeatedly admitted that the Mayfair Properties 
were purchased by his family with the funds generated 
from sale of Steel Mills in Saudi Arabia. Respondents No.6 
to 8 have also admitted that the said properties are owned 
by the Sharif Family while Respondent No.7 has been 
claiming that the properties were purchased by him. 
Neither Respondent No.1 nor Respondents No.6 to 8 have 
placed any credible evidence or material on record that 
may conclusively establish the real ownership of the 
Mayfair Properties. Despite at least 26 hearings spread 
over months, it has not been made clear to us whether the 
real owner of the properties is Respondent No.1, 
Respondent No.6 or Respondent No.7. Although it has 
been alleged by the petitioners that Respondent No.1 is 
real owner of the properties, they have not been able to 
produce any credible evidence to substantiate their 
assertion. The Mayfair Properties have been continuously 
in possession and use of the children of Respondent No.1 
since 1993/96, when admittedly they had no independent 
sources of income. We have already discarded the 
explanation offered by Respondent No.7 based on the 
letters of Sheikh Hamad as dubious and hard to believe. 
Therefore, in the facts and circumstances of the case, the 
possibility of direct or indirect/Benami ownership of 
Respondent No.1 cannot be ruled out. The position that 
emerges is that it is not possible for us to conclusively hold 
that Respondent No.1 is the owner of the properties and 
thereby require him to explain the source of funds which 
were used to acquire such properties but it is equally 
difficult for us to hold that he is not the owner of the said 
properties. Owing to the fact that provisions of Section 
Const.P.35 of 2016 
112 
9(a)(v) read with Section 14(c) of the NAO are prima facie 
attracted, it is for them to produce the requisite evidence 
and record to show the real ownership of the properties 
and legitimate sources and transactional money trails to 
show lawful movement of funds for acquisition of the 
same in an investigation and then before Courts of 
competent jurisdiction. 
86.  
It is also an admitted fact that Respondent No.7 
owns and operates Hill Metals Establishment in Saudi 
Arabia. From the accounts of the said business, huge 
amounts of funds have been transmitted to Respondent 
No.1 in foreign exchange which have been declared by 
Respondent No.1 as gifts on which no income tax is 
payable. Respondent No.7 needs to produce all relevant 
evidence and record to show the source of funds utilized 
for the purpose of setting up the said business.  
87.  
It is also an admitted position that Respondent No.8 
set up a company under the name and style of Flagship 
Investments Limited which received substantial sums of 
money in the year 2001 when the said Respondent had no 
source of income. Over the course of the next few years, a 
number of other companies were set up/taken over by 
Respondent No.8 allegedly for the purpose of his real 
estate business. The sources from which the said 
companies/businesses were funded are also shrouded in 
mystery. There is yet another company under the name 
and style of Capital FZE, Dubai presumably registered 
under the laws of UAE. Funds also appear to have been 
routed through the said company from time to time 
by/and on behalf of Respondent No.7. The real ownership 
and business of the said company is unclear from the 
record which needs to be explained. No effort has been 
made on the part of the Respondents to answer the 
questions on the afore-noted matters. 
88.  
In our opinion, considering the high public office 
that Respondent No.1 holds and the requirement of 
honesty, transparency, clean reputation, unquestionable 
integrity, financial probity and accountability for a person 
who holds the highest elected office of the land, it was 
Const.P.35 of 2016 
113 
necessary and incumbent upon Respondent No.1 to place 
all information, documents and record before this Court to 
clear his own position and that of the members of his 
family. Very serious and damaging questions were raised 
and grave allegations levelled by the Petitioners and the 
local as well as international Print and Electronic Media 
regarding money laundering, tax evasion, corruption and 
misuse of authority on the part of Respondent No.1 and 
members of his family. Although lofty claims were made 
by and on behalf of Respondent No.1 regarding readiness 
and willingness to face accountability and clearing his 
name, the claims remained hollow rhetoric. Regrettably, no 
effort was made either on the part of Respondent No.1 or 
that of Respondents No.7 & 8 who are his sons before this 
Court, to come clean, to clear their names, place the true 
facts and relevant record before us and the people of 
Pakistan by producing all documentary evidence which 
was either in their possession, control or accessible to them 
which could have answered all unanswered questions, 
removed all doubts and put all allegations to rest and 
cleared their names once and for all. This was not done and 
an opportunity squandered for reasons best known to the 
Respondents. Instead refuge was taken behind vague, 
ambiguous, fuzzy and hyper technical pleas.  
89.  
Regrettably, 
most 
material 
questions 
have 
remained unanswered or answered insufficiently by 
Respondent No.1 and his children. I am also constrained to 
hold that I am not satisfied with the explanation offered by 
Respondent No.1 (Mian Muhammad Nawaz Sharif, the 
Prime Minister of Pakistan) and his children regarding the 
mode and manner in which the said properties came in 
their possession and what were the sources of funds 
utilized for acquisition of the same. Further, the source(s) 
of funding for Azizia Steel Mills and Hill Metals 
Establishment in Saudi Arabia, Flagship Investments 
Limited and a number of other companies set up/taken 
over by Respondent No.8 also need to be established. In 
addition to the affairs of Capital FZE, Dubai which also 
appears to be owned by Respondent No.7 need an inquiry. 
Const.P.35 of 2016 
114 
The aforesaid investigation and inquiry under normal 
circumstances should have been conducted by NAB. 
However, it has become quite obvious to us during these 
proceedings, Chairman NAB is too partial and partisan to 
be solely entrusted with such an important and sensitive 
investigation involving the Prime Minister of Pakistan and 
his family. Further owing to the nature and scope of 
investigation a broader pool of investigative expertise is 
required which may not be available with NAB.” 
99. 
 
Having read the said background, it is clear that the precedent 
case has facts vastly different from the case in hand. That case involved 
robust allegations of corruption that resulted a unanimous finding reflected 
in the final order of the Court dated 28.07.2017 whereby directions were 
issued to the NAB to prepare and file the NAB references within six weeks of 
the judgment for the commission of offences, inter alia, including under 
Section 9(a)(v) read with Section 14(c) and Section 15 of the National 
Accountability Ordinance, 1999 that pertain to an accused, his dependents or 
benamidars, owning, possessing or having acquired a right in respect of 
assets, pecuniary resources disproportionate to his/their known sources of 
income, which he/they cannot account for. This is a case in which the 
learned larger Bench found sufficient evidence for directly launching a 
prosecution in respect of the aforementioned offences against the accused 
person, his dependents and benamidars. The gist of the allegations and the 
material before the Court has already been reproduced above in the quoted 
judgment of the learned member of the majority. It is in those circumstances 
that when new evidence about Capital FZE Dubai discussed in para-87 
reproduced above, came to light pursuant to investigations by JIT, that the 
majority in its judgment dated 28.01.2017 opined as follows: 
       
 
 
“It has not been denied that respondent No. 1 being 
Chairman of the Board of Capital FZE was entitled to 
Const.P.35 of 2016 
115 
salary, therefore, the statement that he did not withdraw 
the salary would not prevent the un-withdrawn salary 
from being receivable, hence an asset. When the un-
withdrawn salary as being receivable is an asset it was 
required to be disclosed by respondent No. 1 in his 
nomination papers for the Elections of 2013 in terms of 
Section 12(2)(f) of the ROPA. Where respondent No. 1 did 
not disclose his aforesaid assets, it would amount to 
furnishing a false declaration on solemn affirmation in 
violation of the law mentioned above, therefore, he is not 
honest in terms of Section 99(1)(f) of the ROPA and Article 
62(1)(f) of the Constitution of the Islamic Republic of 
Pakistan.” 
 
 
 
 
 
[emphasis supplied] 
100. 
 
In the passage referred above, the Court is addressing an 
undisclosed asset, existence whereof is expressly admitted through the 
coffers of an entity whose financial dealings were already doubted and 
formed part of the network of persons and entities allegedly holding 
disproportionate assets attributed to the erstwhile Prime Minister, his 
dependents and benamidars. It cannot, therefore, be contented that dishonesty 
is attributed in the said judgment without reference to any alleged design, 
intention, scheme, background or impropriety. Consequently, to our minds 
the larger Bench has not expunged the requirement of establishing the 
“dishonesty” of conduct of an aspirant or incumbent member of a 
Constitutional Legislature in order for the disqualification under Article 
62(1)(f) of the Constitution and Section 99(f) of the ROPA to be attracted. 
Each and every word in the Constitution bears a meaning and place, which 
must be given effect because redundancy cannot be assigned to the 
Constitution. Accordingly, in earlier judgments by this Court in the matter of 
“dishonest conduct,” violation of constitutional norms required by Article 
Const.P.35 of 2016 
116 
62(1)(f) in its phrase “honest and ameen” have been deduced with caution 
and care.  
101. 
 
Recently, the Court expressed its view on the subject in Hassan 
Nawaz   vs.  Muhammad Ayub (PLD 2017 SC 70). The operative passage 
therefrom is reproduced herein below: 
       
 
“16.  
Indeed, honesty, integrity, probity and bona fide 
dealings of a returned candidate are matters of public 
interest because these standards of rectitude and propriety 
are 
made 
the 
touchstones 
in 
the 
constitutional 
qualifications of legislators laid down in Articles 62 and 63 
of the Constitution of Islamic Republic of Pakistan... . 
17.  
… Therefore, the only conclusion that can be drawn 
from arguments rendered by the learned counsel for the 
appellant is that the property owned by the appellant from 
which he regularly derives substantial income is disclosed 
and declared with his knowledge in the income tax returns 
of a private limited company owned by the appellant and 
his family. This plea is totally irrelevant, facile and 
meritless to rebut the allegation under Section 78(3) ROPA 
regarding the false statement with respect to the 
concealment of ownership of urban commercial property 
by the appellant. Further more, it is apparent that the 
disguised ownership of the said properties is aimed at 
avoiding the personal scrutiny and accountability of the 
appellant under the Income Tax Ordinance, 2001. At the 
level of income derived by the appellant that process also 
requires the disclosure of wealth of an assessee and a 
reconciliation of his total means and total expenditures. 
The statement of assets and liabilities made by the 
appellant in his nomination papers is, therefore, 
intentional and not a bona fide or an innocuous omission 
made without design or purpose. It does not exonerate 
the appellant.” 
 
 
 
 
 
[emphasis added] 
102. 
 
The element of dishonesty as an essential element of 
disqualification under Article 62(1)(f) of the Constitution has found 
Const.P.35 of 2016 
117 
recognition by earlier judgments of this Court. Reference is made to 
Mehmood Akhtar Naqvi  vs.   Federation of Pakistan (PLD 2012 SC 1089), 
wherein it has been observed that: 
         
 
“22. 
… A person who indulges into unfair means in 
procuring his educational qualifications and is also found 
guilty by the Disciplinary Committee, which is the only 
authority competent to inquire into the matters of such 
allegations 
against 
candidates 
appearing 
in 
the 
examination of the said University, does not deserve to 
claim to be an honest, righteous or Ameen person so that 
he be assigned the high responsibilities of performing 
national functions of running the affairs of the country. The 
spirit with which the words sagacious, righteous, non 
profligate, honest and Ameen have been used by the 
Constitution of Islamic Republic of Pakistan, 1973 for the 
eligibility of the candidates contesting the elections of 
Members of National or Provincial Assembly cannot be 
allowed to be frustrated if persons who secure their 
educational documents through unfair means and are 
found guilty of such a condemnable act by [the] competent 
authority are allowed to be given any entry into the doors 
of National or Provincial Assemblies [of] our country. The 
respondent No.1 not only is found guilty of a dishonest or 
cheatful involvement into the use of unfair means in 
procuring his B.A./degree/results from the University of 
Punjab but also made deliberately false statement before 
this Tribunal as well when P.W.1 was suggested that he 
was admittedly not holder of the B.A. degree from the 
University of the Punjab whereas in his written statement 
Exh.P12, the respondent where he was respondent No.4 in 
the said writ petition categorically took up the plea and 
claimed to be holder of a valid B.A. degree from the 
University of the Punjab. He is thus not worthy of credence 
and cannot be allowed to be entrusted with State 
responsibilities of Law Making; to be incharge of the 
Const.P.35 of 2016 
118 
National Exchequer (Exchequer) or be eligible to represent 
the people of Pakistan.”  
[emphasis supplied] 
To the same effect are observations made in Iftikhar Ahmad Khan Bar  vs. 
Chief Election Commissioner Islamabad and others (PLD 2010 SC 817): 
 
“14. 
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.” 
 
103. 
 
The insistence by learned counsel for the petitioner that any 
error or omission in the declaration of assets by a candidate for election or a 
legislator incurs his disqualification under Article 62(1)(f) of the Constitution 
posits a wide proposition of law. If at all, this may have limited relevance 
where the context involves corruption or money laundering in state office, 
misappropriation of public property or public funds, accumulation of assets 
beyond known means or abuse of public office or authority for private gain. 
These allegations are not germane to the present case. There is no 
involvement here of public property or funds, abuse of public office and 
authority, corruption or breach of fiduciary duty. Consequently, the 
argument of the learned counsel for the petitioner on this score fails.  
 
Const.P.35 of 2016 
119 
Evidentiary objections by the petitioner: 
 
104. 
 
The learned counsel for the petitioner has earnestly voiced his 
concern about the latitude which this Court has permitted the Respondent to 
file documents to explain his position regarding allegations, or otherwise 
insinuations that have been cast upon him by the petitioner during the 
course of these proceedings. The learned counsel for the petitioner has relied 
upon the procedural and evidentiary laws of the country that impose limits 
and checks upon the freedom of a litigant party to produce documents in 
Court. These rules are meant to prevent gaps and lacunae in a case being 
filled belatedly with fake or fabricated material. Such a course would be in 
abuse of the process of Court or in any event would prolong the proceedings 
impeding final resolution.  
105.   
In the ordinary course of judicial proceedings, the reservation 
expressed by the learned counsel may have relevance and force. However, 
the proceedings under Article 184(3) of the Constitution are unique in the 
sense that these are inquisitorial in nature and are meant to safeguard and 
promote constitutional rights of the people. These proceedings are free of 
technical constraints imposed by the procedural and evidentiary laws of the 
country. Reference is made to the following instructive observations made in 
General Secretary, West Pakistan Salt Miners Labour Union (CBA) 
Khewra   vs.  Director Industries and Mineral Development Punjab (1994 
SCMR 2061 at page 2071): 
 “5. 
… It is well-settled that in human rights 
cases/public interest litigation under Article 184(3), the 
procedural trappings and restrictions, precondition of 
being an aggrieved person and other similar technical 
objections cannot bar the jurisdiction of the Court. This 
Court has vast power under Article 184(3) to investigate 
into questions of fact as well independently by recording 
Const.P.35 of 2016 
120 
evidence, appointing commission or any other reasonable 
and legal manner to ascertain the correct position. Article 
184(3) provides that this Court has the power to make 
order of the nature mentioned in Article 199. This is a 
guideline for exercise of jurisdiction under this provision 
without restrictions and restraints imposed on the High 
Court. The fact that the order or direction should be in the 
nature mentioned in Article 199, enlarges the scope of 
granting relief which may not be exactly as provided 
under Article 199, but may be similar to it or in the same 
nature and the relief so granted by this Court can be 
moulded according to the facts and circumstances of each 
case.” 
  
106. 
 
However, it may be added that limits are imposed by 
constitutional guarantees of due process, fair trial and non-discriminatory 
treatment embedded in the fundamental rights. Indeed the quest to protect 
the fundamental rights of the people of Pakistan under Article 184(3) of the 
Constitution cannot be pursued by defeating the fundamental rights of a 
Respondent before this Court. Having already noticed that Article 184(3) 
proceedings are inquisitorial, it may further be observed that in order to 
resolve the controversy before it, the Court is empowered to ask for relevant 
and reliable evidence from the parties to the lis or from third persons 
irrespective of whether such evidence is otherwise withheld by them.  
106. 
 
The whole process entails queries being posed by the Court 
and directions being issued to persons to produce evidence on record that is 
relevant to the matters under scrutiny. The queries or directions emanating 
from the Court may travel beyond the pleas set out in the pleadings of the 
parties because their answers are necessary to resolve a controversy pending 
before the Court. Therefore, such queries and directions cannot always be 
anticipated by the persons who are asked to provide evidence or 
information. It is this feature of the inquisitorial jurisdiction under Article 
Const.P.35 of 2016 
121 
184(3) of the Constitution that justifies considerable indulgence representing 
a fair and generous opportunity being granted to a party or person to answer 
a query or comply a direction that was otherwise unexpected or for which it 
was unprepared.   
107. 
 
It cannot be disputed by the parties before us that owing to the 
public interest attributes of the present matter, this Court has made 
searching enquiries from the Respondent about important issues that had 
not been specifically raised in the challenge thrown by the petitioner. In this 
behalf, for instance, a probe into the means of the Respondent to acquire the 
London flat which was not disputed by the petitioner was undertaken by the 
Court. It was done in effect to assess whether there was any taint of money 
laundering or other illegality in the said acquisition causing the Respondent 
to avoid declaration of the London flat in his income and wealth tax returns 
filed in Pakistan for nearly two decades until the year 2000 under the 
Amnesty Scheme. Whereas, the petitioner’s allegation against the 
Respondent was limited to non-declaration of the London flat; the allegation 
of money laundering or commission of other illegality for acquisition of that 
asset was never part of the petitioner’s case. Since a new dimension of the 
case that could undermine the Respondent’s eligibility to hold public office 
was suo moto introduced by the Court, therefore time was repeatedly granted 
to the Respondent to collect documents going back 35/40 years to 
demonstrate the lawful means with which that foreign asset was acquired 
and also to establish that the assets representing its sale proceeds had been 
declared to the ECP. In our probe, counsel for the Respondent cooperated 
willingly and made repeated efforts to produce such documents that 
ultimately answered our queries.  
Const.P.35 of 2016 
122 
108. 
 
During the latter part of his arguments, an objection was raised 
by the learned counsel for the petitioner with respect to the Respondent’s 
participation in the 1997 general election allegedly by concealing his London 
flat in his nomination papers. This plea is not contained in his pleadings nor 
did he produce any evidence in support thereof. At best learned counsel 
voiced his suspicion about the disclosures made by the Respondent in his 
nomination papers filed in 1997, stating that the ECP had denied the 
availability of that nomination paper in its record, an oral request was made 
for the Court to order its production.  
Considering the unsubstantiated and belated plea taken, the Court 
did not grant indulgence on the oral request. The petitioner was merely 
speculating without certainty and with conjecture. The document in issue is 
twenty years old which the ECP statedly no longer had in its record. The 
nomination paper had been accepted without objection but the Respondent 
had lost the election. The matter was a past and closed transaction. The 
objection was raised as an afterthought and amounted to a random fishing 
enquiry. Therefore, the inquisitorial jurisdiction of the Court was declined on 
grounds having reference to relevance, reason and fairness.     
109. 
 
 As a background to the Court’s proactive and incisive 
approach are the settled principle of Qanun-e-Shahadat Order, 1984 that the 
Court is entitled to draw an adverse presumption [under Article 129(g) and 
Article 143(4)] when the best evidence is not produced by a party and an 
adverse inference when an answer on a point in issue is withheld by a 
witness [Article 122 and Article 143(2)]. Also, since disqualification under 
Article 62 of the Constitution or Section 99(1) does not involve a criminal 
offence, therefore, the protection against self incrimination under Article 13 
of the Constitution is not available in the present proceedings. Consequently, 
Const.P.35 of 2016 
123 
the Court pressed for accurate documentary disclosures mostly from the 
records of foreign entities some of which had ceased to exist like Barclays UK 
Private Banking, having  been acquired by ZEDRA. In these circumstances 
involving disclosure of foreign record that was decades old, it would have 
been grossly unfair if unanswered queries of this Court were used as traps 
against a party that failed to respond swiftly. Therefore, in order to ensure 
the fairness of our proceedings, the Court cautioned the parties on both sides 
about the adverse presumptions, inferences and deductions that were likely 
be drawn on account of their failure to produce relevant and cogent evidence 
on the points raised and particularly to cover the deficiencies or weaknesses 
in their availed pleas that had been taken before the Court. This included 
reference to the Court’s power of compelling an answer under Article 15 of 
the QSO. The Respondent reacted positively by placing further material on 
record to exonerate and protect himself from any adverse presumption, 
inference or deduction being drawn by the Court. Accommodation in terms 
of time and opportunity granted to the Respondent by the Court cannot, 
therefore, be faulted on technical rules of pleadings, procedure or evidence.  
110. 
 
The ultimate object of our proceedings is to arrive at the truth 
and thereby to make a fair and meritorious resolution of the questions under 
adjudication. Our proceedings are free from the restraints otherwise imposed 
by law on the conduct of a trial by a Court in adversarial proceedings. The 
above view does not, insofar as reception of evidence is concerned, allow 
anything or everything produced by a party before the Court to be accorded 
credence and probity without checks by the Court. The admissibility and 
reliability of the evidence produced by a party must however undergo 
further scrutiny on the basis of fair criteria to assess the truth, coherence and 
credibility of such material. Accordingly, the material that we have believed, 
Const.P.35 of 2016 
124 
notwithstanding the fact that largely it did not comprise of original 
documents, is their contemporaneity with the events under scrutiny, the 
consistency and corroboration of the contents of such documents with the 
events or transactions to be proved and the custodial propriety from which 
such documents emanate. Most, if not all, documents produced by the 
Respondent have originated from a reliable source and invariably one with a 
living witness, be it the Respondent’s ex-wife Ms. Jemima Khan, his English 
accountant Tahir Nawaz or banking friend in Pakistan Mr. Rashid Ali Khan. 
In respect of each piece of evidence that the Court believed, the identity and 
credibility of the person through whom such material was produced; the 
credibility of the keeper of such documents; the consistency of the contents 
of such documents with the surrounding circumstances, contemporaneous 
events and persons was scrutinized before granting admissibility and 
making reliance.  
111. 
 
Having said so, it cannot be overlooked that our proceedings 
are not a trial. Whereas in a case involving disqualification from elective 
office, the petitioner shoulders the burden of bringing positive and 
affirmative 
evidence 
that 
would 
condemn 
the 
Respondent 
to 
disqualification; however, the same standard of proof does not rest on an 
elected public officer, namely, the Respondent to make out his defence. He 
has to present a, prima facie, arguable defence about the disclosure of his 
assets. Arithmetical accuracy in reconciling amounts and events is not 
required in such a case of misdeclaration of assets. Only a coherent account 
of the sources of funds, their application and movement should be shown by 
reference to consistent and reliable evidence, even though it may suffer from 
gaps so long as the Court is satisfied that the account is not patchy, 
Const.P.35 of 2016 
125 
inconsistent or unreliable. That burden has been fully discharged by the 
Respondent before us.   
Objection re: maintainability of these petitions: 
112. 
 
Certain scepticism surrounded the maintainability of these 
petitions; in particular, because our indulgence now may encourage 
challenges by all and sundry to the qualification of the legislators who hold 
public office. It deserves reiteration that this petition has not been heard and 
adjudicated because of the consent given by the Respondent to be 
accountable before the Court. This petition has been heard primarily because 
an international upheaval followed the disclosure of the Panama Papers in 
April, 2016. Several leading political personalities including the heads of 
government, most notably, in Europe and Asia stood exposed for directly or 
indirectly owning foreign undeclared assets through offshore trusts and/or 
companies established in tax haven jurisdictions of the world. These 
revelations implicated amongst others, the person and family of our former 
Prime Minister, Mian Muhammad Nawaz Sharif. The public outrage that 
followed in Pakistan was spearheaded by the Respondent before us. The 
momentum 
thereby 
generated 
embraced 
our 
Parliament 
which 
unsuccessfully attempted the formation of an Enquiry Commission into the 
allegation against the former Prime Minister;  thereby landing a petition filed 
by the Respondent and against the Prime Minister and his family in the lap 
of the Court in the middle of the year 2016. The present petitioner filed the 
instant challenge shortly afterwards against the Respondent who was 
principal accuser and detractor against the former Prime Minister of 
Pakistan. Ultimately by a judgment of this Court given in Constitution 
Petition No.29 of 2016 the said former Prime Minister was disqualified from 
holding the office of Member National Assembly on account of concealing 
Const.P.35 of 2016 
126 
his foreign offshore assets. This petition which is based on the same genre of 
allegations, namely, concealment of ownership of foreign undeclared assets 
contrary to the election laws of the country, came up before us separately for 
hearing. The foregoing background of the case mandates that the 
Respondent as a public office holder should withstand the same rigour and 
test of scrutiny and accountability that he caused in the parallel proceedings 
on the same type of allegations. 
113. 
 
Considering applicable legal criteria, it is a fundamental right 
of people of Pakistan that its public representatives discharge their offices in 
public interest and not for their personal gain. Such public officers are 
fiduciaries discharging a trust vested in them by the people of Pakistan for 
which office the attributes, inter alia, of probity, honesty, integrity and 
trustworthiness are constitutional requirements. The fulfillment of these 
conditions by the decision makers in Parliament and in government is 
essential for the existence and progress of a democratic and law based order 
in the polity which is a basic feature of our Constitution. Accordingly, to 
examine whether foreign assets were indeed owned by the Respondent that 
had been concealed in his declaration made before the ECP and whether any 
duty under law has been breached on account of or in relation to such assets, 
this Court on the touchstone that resort to undeclared offshore companies 
and trusts to conceal or shroud assets owned by public representatives  
cannot be allowed; and therefore unless it is established that such assets were 
acquired through lawful and bona fide means and have been declared in 
material particulars, the beneficial interest holders of such assets cannot 
remain qualified to hold legislative public offices. It is crucial at this stage to 
emphasize that we have expended time and efforts in our original 
jurisdiction for the sake of public interest in the circumstances of the public 
Const.P.35 of 2016 
127 
outcry against corruption that arose as a result of the Panama Papers’ leak. 
Otherwise, the appropriate forum in a case of such nature calling for the 
disqualification of an elected legislator is either the Election Tribunal or 
where there are established or admitted facts indicating disqualification, then 
before the learned High Courts of the country in their constitutional 
jurisdiction.  
Conclusion: 
 
114. 
 
Having considered the evidence brought on record, the 
applicable law and the reasons given above leads us to the following 
conclusion: 
Firstly: 
The allegation that the PTI is a foreign aided political 
party can under Article 15 of the PPO be leveled only 
by the Federal Government for its validation on a 
reference made to this Court. The petitioner has no 
locus standi in this behalf. Whether the PTI has 
received political contributions and donations from 
sources that are prohibited under the provisions of 
Article 6(3) of the PPO is a matter, which for the 
reasons given in our opinion, is referred for 
determination in accordance with law by the ECP in 
exercise of jurisdiction conferred by the PPO and the 
Rules framed thereunder; 
  
Secondly 
It is the duty of the ECP to scrutinize accounts of 
political parties on the touchstone of Article 6(3) of 
the PPO read in the light of Article 17(3) of the 
Constitution. In this behalf, the ECP must act 
transparently, 
fairly 
and 
justly, 
without 
discrimination among different political parties 
seeking election symbols to contest the elections to 
the Constitutional Legislatures of Pakistan. For 
Const.P.35 of 2016 
128 
undertaking such scrutiny, it shall be reasonable for 
the ECP to examine the accounts of a political party 
within five years of the objected accounts of that 
party having been published in the official gazette;     
 
Thirdly: 
The alleged falsity of the certificates issued by the 
Respondent under Article 13(2) of the PPO is a 
secondary fact, ascertainable by a competent Court 
of law after the ECP gives its findings whether any 
prohibited funding has been received and collected 
by the PTI in terms of Article 6(3) of the PPO; 
  
Fourthly: 
We find that M/s NSL was established as a corporate 
vehicle for the legal ownership of the London flat, of 
which the Respondent was the beneficial owner. The 
Respondent was neither a shareholder nor a director 
of NSL which had a paid up capital of £9/- and the 
London flat as its sole asset. This asset held by NSL 
was declared by the Respondent under an Amnesty 
Scheme granted pursuant to Section 59D of the 
Income 
Tax 
Ordinance, 
1979 
therefore, 
the 
Respondent was under no legal obligation to disclose 
the corporate vehicle NSL as an asset either in his 
income tax returns or his statement of assets and 
liabilities 
filed 
with 
the 
ECP 
alongwith 
his 
nomination papers or in his annual returns filed 
under Section 42A of the ROPA;  
 
Fifthly: 
We find that the purchase price of Rs.43.5 million of 
the Banigala property was paid to the extent of Rs.7.3 
million by the Respondent and the balance amount 
of Rs.36.2 million were paid with amounts converted 
from foreign currency remittances made by Ms. 
Const.P.35 of 2016 
129 
Jemima Khan, the ex-wife of the Respondent;  
 
Sixthly: 
We find that during the period 8.4.2002 until 
22.1.2003 Ms. Jemima Khan provided a total amount 
of 
US$665,340/- 
(equivalent 
to 
UK£417,901/- 
according to the exchange rate prevalent on 7.5.2003) 
towards the purchase of the Banigala property. The 
Respondent repaid on 7.5.2003 an amount of 
UK£562,415.54 to Ms. Jemima Khan from the sale 
proceeds of his London flat in order to settle the 
funding temporarily provided by her;  
     
Seventhly:  The Banigala property is owned by the Respondent 
after it was orally gifted to him by his ex-wife Ms. 
Jemima Khan vide gift mutation No.10696 dated 
29.10.2005 after their divorce became effective in 
June, 2004. Prior to that, the Banigala property had 
been purchased by the Respondent as a family home 
for his wife and children for which the financial 
provision extended by his wife was more than 
reimbursed by the Respondent on 07.05.2003;  
  
Eighthly: 
We find that the Respondent has declared his 
advance payment made to 1-Constitution Avenue 
Tower, Islamabad in his statement of assets and 
liabilities filed with his income tax return in the tax 
year 2014. In the following year, the Respondent was 
allotted the flat and declared the same both in his 
assets and liabilities statement filed with his income 
tax return for the tax year 2015 as well as his annual 
return under Section 42A of the ROPA filed with the 
ECP 
in 
2015. 
Therefore, 
we 
hold 
that 
no 
misdeclaration of assets was committed by the 
Const.P.35 of 2016 
130 
Respondent in relation to the said property in his 
annual return filed with the ECP in the year 2014. 
There is no dishonesty in the omission made by him.   
 
 
 
As a result of foregoing findings, there is no merit in this 
petition which is accordingly dismissed.  
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
      JUDGE 
 
Announced in open Court  
on 15.12.2017 at Islamabad 
 
 
 
 
 
CHIEF JUSTICE 
 
APPROVED FOR REPORTING. 
 
Const.P.35 of 2016 
131 
 
 
Faisal Arab J.- I have had the privilege to go through the 
proposed judgment given by the Hon’ble Chief Justice and am in 
respectful agreement with the same except I wish to add my own 
opinion on the scope of the term ‘honest’ contained in Article 62(1)(f) 
of the Constitution. 
 
2. 
 
One of the grounds on which respondent No.1’s 
disqualification from the membership of the National Assembly is 
being sought is his failure to disclose the ownership of Niazi Services 
Limited (NSL), an offshore company, in his nomination forms filed in 
2002 and 2013 general elections and a residential flat in Grand Hyatt 
building, Islamabad in his yearly statement of assets and liabilities 
filed in 2014 with the Election Commission and thereby failing the 
test of honesty as envisaged under Article 62 (1) (f) of the Constitution. 
Before deciding the question whether non-disclosure of assets, as 
required under Sections 12 (2) (f) and 42A of (RoPA) amounts to 
dishonesty without any distinction, it would be appropriate to briefly 
discuss relevant facts of the controversy.  
 
3. 
 
Taking the issue of non-disclosure of NSL in the 
statement of assets and liabilities, the documents filed by the 
petitioner show that respondent No.1 did not hold a single share in 
the said company. He only hired services of companies that act as 
trustees and hold assets in trust for the benefit of the real owner. For 
such purpose the trustees at the instance of the real owner form a 
company and become its shareholders and this company then holds 
the asset in its name in trust for the real owner. Hence at the 
instance of respondent No.1 a company by the name of NSL was 
incorporated in the Channel Island whose shareholders were three 
Const.P.35 of 2016 
132 
trust companies. After its incorporation respondent No.1 purchased a 
one-bedroom flat in London in the year 1983 in the name of NSL. 
This was done primarily to derive tax benefits such as to avoid capital 
gains tax upon its sale under the laws of England prevalent at that 
time. For rendering their services as trustees and to keep the 
company operational, the shareholders of NSL charged periodical fees 
from respondent No.1. The respondent being the real owner had the 
exclusive right to use, occupy, rent out and sell it whenever he so 
wished without prior approval of the shareholders of NSL. Hence, 
they were legally bound to convey the London flat in the name of the 
new purchaser, which they eventually did in the year 2003. It can 
very well be imagined that being the ostensible owner of the London 
flat, NSL could legally be sued with regard to any matter connected 
therewith, therefore, the only right which NSL had over the London 
flat was to seek discharge of all claims to which the shareholders of 
NSL may become liable against the London flat. This obligation of 
respondent No.1 was in addition to the periodical charges and fees 
which he was required to pay to the shareholders of NSL for holding 
his asset in trust and to keep NSL operational under the laws of 
Jersey Channel Islands. Neither NSL held any proprietary interest in 
the London flat nor did respondent No.1 possess any proprietary 
interest in NSL, so it was the London flat and not NSL of which 
respondent No.1 was the real owner, hence he was only obligated to 
disclose the London flat as his asset, which he did in his nomination 
form that was filed in the 2002 general elections.  
 
4. 
 
In 1983, when respondent No.1 entrusted the London flat 
to the shareholders of NSL to hold it in trust for him, respondent 
No.1’s ambitions to enter politics were nowhere in sight. He formed 
Const.P.35 of 2016 
133 
his political party much later in the year 1997. No doubt even after 
the sale of the London flat in April, 2003, NSL remained operational 
for several more years, primarily on account of some litigation with 
the ex-tenant of the London flat, but it is hard to imagine that 
respondent No.1, way back in 1983 intended to park ill-gotten gains 
in NSL when he totally remained engaged in his cricketing career. It 
is quite visible from the record that right from 1971 to 1992, the 
respondent No.1 was a fulltime renowned professional cricketer of the 
cricketing world. He purchased a one bed-room London flat in 
December, 1983 for GBP117,500/- in the name of NSL for the 
purposes of availing tax exemptions, which was held in trust for him. 
The price for the purchase of London flat was paid along-with interest 
accrued on mortgage money over a period of six years starting from 
December, 1983 and ending in December, 1989. It is nobody’s case 
that throughout his cricketing career spanning over a period of 21 
years, he held public office, so any amount that went into NSL was 
respondent No.1’s income earned either from playing cricket or rental 
earnings and proceeds of sale from the London flat, nothing else. 
Respondent No.1 for the very first time became the member of the 
National Assembly through general elections held in the year 2002. It 
may be mentioned here that in the 2013 general elections respondent 
No.1’s party formed a government in the province of Khyber 
Pakhtunkhwa but NSL was allowed to dissolve statutorily on account 
of non filing of annual return for the year 2014. Those who come into 
power with the intention to indulge in financial corruption would 
want such off-shore companies to remain operational in order to 
secretively park their ill-gotten wealth. In the present case the 
offshore company was not incorporated to park assets acquired from 
wealth accumulated through embezzlement or bribery or through tax 
Const.P.35 of 2016 
134 
evasion to keep it hidden from public eye. It is a case of acquisition of 
an asset from legitimate tax paid income earned abroad and that too 
at a time when respondent No.1 was a non-resident Pakistani holding 
no public office cannot be perceived with the same suspicion.  
 
5. 
 
Much reliance was placed on the case of Imran Ahmed 
Khan Niazi Vs Mian Muhammad Nawaz Sharif (PLD 2017 SC 265) 
popularly known as Panama Case in order to draw parity between the 
two cases. The factual controversy in that case is drastically different 
from the facts of the present case. In that case serious allegations of 
money laundering, corruption and possession of assets beyond 
known means were made against Mian Muhammad Nawaz Sharif 
after he held public office. In fact he held high public offices several 
times in the past thirty years in his capacity as Finance Minister, 
Chief Minister and Prime Minister. It was observed in that case that 
for such a person, honesty, transparency, clean reputation and 
unquestionable integrity and financial probity were necessary in 
order to clear his position. The sources of acquiring several assets 
were not satisfactorily explained by him and his family members, 
which included purchase of four flats in London, setting up of Azizia 
Steel Factory in Saudi Arabia, Gulf Steel Mills in Dubai and receiving 
Rs.840 million on regular basis over a period of four years from 2011 
to 2015 as gifts from an entity called Hill Metals established in 
Jeddah by Mian Muhammad Nawaz Sharif’s son. None of these 
assets were acquired prior to his holding of high public offices. There 
was either total or very little explanation as to how these assets were 
built, who its shareholders are, what the source of funds was and 
how funds were generated and routed. Then there was a company 
located in Jebel Ali Free Zone, United Arab Emirates in the name and 
Const.P.35 of 2016 
135 
style of Capital FZE of which Mian Muhammad Nawaz Sharif was 
chairman with a monthly salary of 10,000 UAE Darhams, through 
which certain funds were also routed. This company remained 
operational from 2003 to 2014. The existence of Capital FZE came to 
light in the report of the Joint Investigation Team, which was not 
disclosed by the accused but when confronted with this fact, he 
admitted his entitlement to the salary but took the stance that he did 
not draw it from his accounts. This Court held that such a stance 
stood belied by the Wage Protection System in operation under Jebel 
Ali Free Zone Rules, which requires payment of salaries into the 
accounts of all the employees electronically. Considering the high 
public office which Mian Muhammad Nawaz Sharif held over the 
years, accumulation of his monthly salaries from Capital FZE was 
considered as concealment of an asset which led this Court in the 
Panama case to hold that it was a dishonest act on his part, falling 
within the ambit of Section 99 (1) (f) of RoPA read with Article 62 (1) 
(f) of the Constitution. Under the income tax law, salary income falling 
in a particular tax year has to be treated as income of that year and if 
taxable is liable to be assessed in that tax year. No one can avoid tax 
liability on his salary income accrued in a particular tax year on the 
ground that he has not yet collected it from his employer. So tax 
liability on a salary income accrued in a particular tax year if not 
collected voluntarily by an employee would still be liable to tax and 
has to be treated as an asset of the employee generated in that 
particular year and correspondingly it becomes the liability of the 
employer in the same tax year. Therefore not to collect either whole or 
any part of it from the employer in a tax year in which it accrued is of 
no legal consequence. Non-disclosure of unspent salary income 
which had been accumulating for a period of time was treated as 
Const.P.35 of 2016 
136 
concealment of asset in the Panama case. In the present case, 
ownership of London flat was disclosed by respondent No. 1 in his 
nomination form filed in 2002 general elections.      
 
6. 
 
It is however an admitted position that after giving up his 
non-resident status respondent No.1 did not declare the London flat 
in his income tax returns until the year 2000. The declaration came 
when respondent No.1 availed the benefit of an amnesty scheme 
launched in the year 2000 under the Tax Amnesty Scheme, 2000. 
This scheme was launched on the strength of the provisions of 
Section 59 (d) of the Income Tax Ordinance, 1979. Respondent No.1 
paid the requisite tax i.e. Rs. 240,000/- being 10% of the purchase 
price of the London flat and obtained complete discharge from the tax 
authorities. In terms of paragraph 8 (1) of the Tax Amnesty Scheme, 
2000, once the undisclosed income was declared and the requisite 
tax paid, the person making the declaration was not liable for any 
further tax, charge, levy, penalty or prosecution in respect of such 
income under the Income Tax Ordinance, 1979. In terms of 
paragraph 8 (2) of the Amnesty Scheme, any asset declared in 
accordance with the Tax Amnesty Scheme, 2000 also stood exempt 
from wealth tax under the prevalent Wealth Tax Act, 1963. What has 
come on record is that the only asset which NSL held in its name in 
trust for respondent No. 1 was the London flat. After securing full 
discharge from income tax and wealth tax liability under the amnesty 
scheme, the respondent No.1 listed the London flat as one of his 
assets in his nomination form filed in the general elections held in 
October, 2002. It may be mentioned here that the London flat was 
not something purchased from hidden, undisclosed, tax evaded 
income but was purchased from tax-paid clean income earned from 
Const.P.35 of 2016 
137 
playing years of professional cricket abroad. So it was not a case of 
taking advantage of the amnesty scheme in order to convert black 
money into white. In any case, with the declaration of the London flat 
and the payment of requisite tax under the amnesty scheme, the 
cause of action for its non-disclosure under the tax laws of Pakistan 
also died with it.   
 
7. 
 
As to the issue of non-disclosure of respondent No.1’s 
residential apartment in Grand Hyatt Islamabad in his yearly 
statement of assets and liabilities, the factual position that emerged 
on record is that the apartment was booked in a building which was 
under 
construction 
against 
which 
an 
advance 
payment 
of 
Rs.2,970,000/- was made during the income year 2013-14 which 
was declared in the tax year 2014 after which further installment of 
Rs.3,000,000/- was paid in the tax year 2015, which is also reflected 
in the income tax returns. The occasion to make full payment and get 
the apartment transferred in his name had not yet arrived as the 
construction of the building had not been completed at the time. As 
long as a seller does not transfer the property in the name of the 
buyer, the property remains the asset of the former and all 
obligations attached with it such as municipal rates and taxes are of 
the seller and not of the buyer. This leads to the conclusion that as 
the title in the apartment located in an under construction building 
was yet to vest in the respondent, he was not liable to disclose it in 
his statement of assets and liabilities in the year 2014 or for that 
matter in 2015 with the Election Commission of Pakistan. 
 
8. 
 
It is established from the record that the London flat 
upon its sale ultimately became the source of finance for the 
Const.P.35 of 2016 
138 
purchase of 300 Kanals of land in Banigala, Islamabad which was 
purchased for a total sale consideration of Rs. 43,500,000/-. The 
respondent No.1 claims that Banigala land was initially intended to be 
purchased from the sale proceeds of the London flat but as its sale 
could not be finalized at that time he paid Rs.6,500,000/- and 
borrowed the remaining amount from his the then wife Ms. Jamaima 
Khan with the understanding to repay her from the sale proceeds of 
the London flat. As for the receipt of the remaining sale consideration, 
the documents of banking transactions filed by respondent No.1 reflect 
that Ms. Jamaima Khan remitted a total sum of USD 634,040/- and 
GBP 20,000/- both payments in US Dollars amounts to USD 
665,040/-. These remittances at the then prevalent conversion rates 
translate into 39.33 million rupees whereas the total amount towards 
balance sale consideration was paid to the sellers of Banigala land 
from the foreign remittances that translate into 37 million rupees. 
Thus the remittances were more than what was required to be paid to 
the sellers of Banigala land. The documents produced by respondent 
No.1 further show that sale of London flat was finalized on 14.04.2003 
for GBP 715,000/- and after deducting Estate Agent’s commission 
and other costs and charges from this amount, the net balance that 
remained with NSL was GBP 690,307.79. Upon instructions of the 
respondent No. 1 through a letter dated 18.04.2003, NSL remitted 
GBP 562,415.54 into Ms. Jamaima Khan’s bank account on 
07.05.2003. This remittance which was made in Pound Sterling at the 
then prevalent conversion rates is equivalent to approximately USD 
890,000/- which amount was more than sufficient to cover USD 
634,040/- and GBP 20,000/-remitted by Ms. Jamaima Khan. The 
amount borrowed by respondent No.1 from Ms. Jamaima Khan was 
eventually repaid to her on 07.05.2003 out of the sale proceeds of the 
Const.P.35 of 2016 
139 
London flat. The respondent No.1 has thus amply established that 
London flat was bought in the year 1983 i.e. about twenty years prior 
to his becoming a member of the National Assembly and how the 
proceeds of its sale have been utilized for the purchase of land in 
Banigala.  
 
9. 
 
Under our Constitution, the authority of the State is to be 
exercised for the welfare of the people through their chosen 
representatives. To be a member of the National Assembly or a 
Provincial Assembly is to hold a public office that is a sacred trust. It 
is therefore highly imperative that the elected members should steer 
clear of financial corruption. The provisions of Sections 12 (2) (f) or 
42A of RoPA are designed to bring the net-worth of all elected 
members on the record of the Election Commission. This is one of the 
tools to keep financial corruption in check after members assume 
charge of their office. The detail of their net-worth distinguishes the 
assets acquired prior to their becoming members from the assets 
acquired after assuming the responsibilities of office. Hence the 
disclosure of all assets is mandatory. Even an innocent omission to 
declare an asset at the time of filing of the nomination form may result 
in the rejection of candidate’s nomination under Sections 14 (3) (c) of 
RoPA. If for any reason that does not happen then after the elections 
he could be unseated for such an omission by the Election Tribunal 
through an election petition. It may be clarified that while rejecting the 
nomination form, dishonesty cannot be attributed for nondisclosure of 
an asset acquired prior to becoming a Member of Parliament. To 
attribute dishonesty to a person is to stigmatize his character. 
Dishonesty has to contain elements of deceitfulness shown in one’s 
character or behavior. In Collins dictionary, one of the synonyms of 
Const.P.35 of 2016 
140 
dishonesty includes ‘corruption’ as well. In a judgment from the foreign 
jurisdiction in the case of Aguilar vs. Office of Ombudsman decided on 
26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was 
held that like bad faith, dishonesty is not simply bad judgment or 
negligence but is a question of intention. There can be many examples 
where it can be said that an omission on the face of it is not dishonest. 
Omission to list an 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.  
 
10. 
 
In our jurisprudence, like in any other, one common 
penalty is never imposed for all kinds of dishonest acts, what to speak 
of imposing penalty for a dishonest act as well as for an omission 
made on account of negligence or bad judgment. Attributing 
dishonesty to every omission to disclose an asset should not be made 
a rule set in stone and applied to disqualify a member on the 
touchstone of Section 99 (1) (f) of RoPA or Article 62 (1) (f) of the 
Constitution. The courts should not close its eyes to an omission 
which on the face of it could not be said to be dishonest. It would turn 
Sections 12 (2) (f) and 42A of RoPA into the sword of Damocles 
hanging over the heads of the members of the National Assembly and 
the Provincial Assemblies, embroiling many of them in frivolous 
litigation even with regard to assets acquired prior to assuming the 
responsibilities of their office or acquired with clean money. Where an 
asset is acquired by a member or his spouse or any of his dependents 
Const.P.35 of 2016 
141 
after becoming a member and it surfaces through any source, which 
he has failed to disclose, the member in quo warranto proceedings can 
be called to explain the means of its acquisition. If he is unable to 
extend a judicially acceptable explanation, only then such non-
disclosure would be regarded as a failure to pass the test of honestly 
as envisaged under Section 99 (1) (f) of RoPA read with Article 62 (1) (f) 
of the Constitution. Apart from being declared disqualified from 
holding his office, the member will also face charges for possessing 
wealth beyond his known sources of income. Thus concealment of an 
asset from the public eye that was acquired after entering upon office, 
for which the member is unable to give a judicially acceptable 
explanation, is to be treated as an act of concealment with dishonest 
intentions. This is the difference in attributing dishonesty with regard 
to an omission to disclose an asset acquired before and after becoming 
a member of the National or a provincial Assembly.   
 
11. 
 
It may be clarified here that dishonesty can be attributed 
to a member for an act committed prior to his election if he has been 
so adjudicated by a court of law. This is the mandate of Article 62 (1) 
(f) of the Constitution which reads ‘A person shall not be qualified to be 
elected or chosen as a Member of Majlis-e-Shoora (Parliament) unless- 
…… (f) he is sagacious, righteous, non-profligate, honest and ameen, 
there being no declaration to the contrary by a court of law.’ The last 
phrase of Article 62 (1) (f) is clearly intended to mean that where a 
member is attributed to be financially corrupt before he has entered 
the arena to contest election for a seat in the National or Provincial 
Assembly then the complainant must demonstrate without any 
ambiguity that such a member has been declared by a court of law to 
be financially dishonest. Thus the term ‘honest’ contained in Article 62 
Const.P.35 of 2016 
142 
(1) (f) of the Constitution has to be interpreted in a restricted sense 
keeping the last phrase of Article 62 (1) (f) in mind which states there 
being no declaration to the contrary by a court of law.’ If the 
application of these provisions is stretched beyond this, a political 
opponent in his desire to seek removal of his rival from the political 
scene would call in question an asset owned by his opponent that was 
though acquired not only prior to his becoming a member of the 
National or a Provincial Assembly but even prior to his holding any 
public office or for that matter any office of trusteeship or in his 
capacity as custodian of rights of others. Where a member has failed 
to declare an asset in his nomination form that was acquired prior to 
his election and there is no adjudication of dishonesty with regard to 
its acquisition by a competent court of law, the remedy provided 
under the election laws is to be availed, which only entails rejection 
of the nomination form simplictor. Once such remedy relating to such 
category of non-disclosure is availed under the provisions of election 
laws or the time to avail it has gone by, the same being not a case of 
disqualification falling within the ambit of Article 62(1) (f) of the 
Constitution, no more remains a live issue on account of the bar 
contained in Article 225 of the Constitution. 
 
12. 
 
I am, therefore, of the considered opinion that a person’s 
honesty prior to his becoming a member of the National or a Provincial 
Assembly can be called in question only if he has accumulated wealth 
through fraud, embezzlement, bribery or tax evasion and has been so 
declared by a competent court of law. Insofar as his dishonesty with 
regard to the assets acquired after becoming a member of the National 
Assembly or a Provincial Assembly are concerned, the same can be 
scrutinized by the Court in the proceedings in the nature of quo 
Const.P.35 of 2016 
143 
warranto which will determine whether a case for acquisition of assets 
beyond known sources of income is made out.  
 
 
JUDGE 
Dated: 15th of December, 2017 
 
 
