Civil Appeal No.188 of 2019
13
.
Usman Dar (2018 SCMR 2128) and Shakeel Awan v. Rashid
Ahmed (PLD 2018 SC 643).
15.
As far as the case of Khawaja Muhammad Asif
(supra) is concerned, in paragraph 9 of the said judgment it
was held as follows:
“9.
While considering a case of dishonesty in judicial
proceedings what should not be lost sight of is that on
account of inadvertence or honest omission on the part of a
contesting candidate a legitimately acquired asset is not
declared. This may happen as an honest person may
perceive something to be right about which he may be wrong
and such perception cannot necessarily render him dishonest
though the omission would invariably result in rejection of
his nomination paper had such a fact is pointed out to the
Returning Officer at the time of scrutiny of nomination papers
or in proceedings available under the election laws. There
are many conceivable instances where an omission to
declare an asset on the face of it cannot be regarded as
dishonest concealment. For example, where an inherited
property is not declared on account of mistake of fact or an
asset acquired from a legitimate source of income is not listed
in the nomination paper. Suchlike omissions at best could be
categorized as bad judgment or negligence but certainly not
dishonesty. As mentioned earlier even the proviso to section
14(3)(d) of RoPA envisaged that rejection of a nomination
paper on account of failure to meet the requirements of
section 12 of RoPA would not prevent a candidate of contest
election on the basis of another validly filed nomination
paper. Hence mere omission to list an asset cannot be
labeled as dishonesty unless some wrongdoing is associated
with its acquisition or retention which is duly established in
judicial proceedings. In our view attributing dishonesty to
every omission to disclose an asset and disqualify a member
for life could never have been the intention of the parliament
while incorporating Article 62(1)(f) in the Constitution. All
non-disclosures of assets cannot be looked at with the same
eye. In our view no set formula can be fixed with regard to
every omission to list an asset in the nomination paper and
make a declaration of dishonesty and impose the penalty of
lifetime disqualification. In a judgment from the foreign
jurisdiction in the case of Aguilar v. Office of Ombudsman
decided on 26.02.2014 by the Supreme Court of Philippines
(G.R. 197307) it was held that dishonesty is not simply bad
judgment or negligence but is a question of intention. There
has to exist an element of bad intention with regard to an
undeclared asset before it is described as dishonest. Unless
dishonesty is established in appropriate judicial proceedings,
Article 62(1)(f) of the Constitution cannot be invoked to
disqualify an elected member for life.”
16.
It
is
clear
from
perusal
of
the
afore-noted
paragraph that no set formula can be fixed with regard to any
omission to list an asset in the nomination papers and make
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