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BEFORE THE ELECTION COMMISSION OF PAKISTAN AT ISLAMABAD

(Jurisdiction under Art.63 of the Constitution)

In the matter of Reference u/Art.63:

Case No.12(5)/2022-Law

(Case Title: Reference of disqualification of Mr. Imran Khan, MNA filed by Mr. Ali Gohar Khan
and Five other MNAs under Clause (2) of Article 63 of the Constitution of Islamic Republic of
Pakistan)

REPLY on behalf of Imran Khan former Prime Minister of Pakistan to the Reference
filed under Art.63(2) of the Constitution by Speaker, National Assembly

It is respectfully submitted as follows:

Preliminary Objections:

A. Reference is not competent in the first place, no Reference under Art.63(2) of the
Constitution could be referred to the Commission unless one or more of the “sixteen
questions” are involved. Those “questions” are contained in Art.63(1)(a) to Art.63(1)(p),
which are reproduced hereinbelow as an easy reference. Since, NONE OF THOSE
QUESTIONS is involved; and not even barely referred to in the titled Reference,
therefore the Reference is utterly baseless and misconceived. In fact, the Applicants or
Speaker, with mala fide intentions and for political motives want to do ‘indirectly what
they cannot do directly under the Constitution’. Hence filing of Reference is misuse of
authority and abuse of constitutional process of law.
Question contained in Art.63(1) are as under:
1) He (i.e. the Member) is of unsound mind and has been so declared by a competent court; or

2) He is an undischarged insolvent; or

3) He ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State; or

4) He holds an office of profit in the service of Pakistan other than an office declared by law not to
disqualify its holder; or

5) He is in the service of any statutory body or anybody which is owned or controlled by the
Government or in which the Government has a controlling share or interest; or

6) He being a citizen of Pakistan by virtue of section 14B of the Pakistan Citizenship Act, 1951 (II of
1951), he is for the time being disqualified under any law in force in Azad Jammu and Kashmir
from being elected as a member of the Legislative Assembly of Azad Jammu and Kashmir; or

7) He has been convicted by a court of competent jurisdiction for propagating any opinion, or acting
in any manner, prejudicial to the ideology of Pakistan, or the sovereignty, integrity or security of
Pakistan, or the integrity or independence of the judiciary of Pakistan, or which defames or brings
into ridicule the judiciary or the Armed Forces of Pakistan, unless a period of five years has elapsed
since his release; or

8) He has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment
for a term of not less than two years, unless a period of five years has elapsed since his release; or
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9) He has been dismissed from the service of Pakistan or service of a corporation or office set up or,
controlled, by the Federal Government, Provincial Government or a Local Government on the
ground of misconduct, unless a period of five years has elapsed since his dismissal; or

10) He has been removed or compulsorily retired from the service of Pakistan or service of a corporation
or office set up or controlled by the Federal Government, Provincial Government or a Local
Government on the ground of misconduct, unless a period of three years has elapsed since his
removal or compulsory retirement; or

11) He has been in the service of Pakistan or of any statutory body or anybody which is owned or
controlled by the Government or in which the Government has a controlling share or interest,
unless a period of two years has elapsed since he ceased to be in such service; or

12) He, whether by himself or by any person or body of persons in trust for him or for his benefit or on
his account or as a member of a Hindu undivided family, has any share or interest in a contract,
not being a contract between a cooperative society and Government, for the supply of goods to, or
for the execution of any contract or for the performance of any service undertaken by, Government:
Provided that the disqualification under this paragraph shall not apply to a person…….. or

13) He holds any office of profit in the service of Pakistan other than the following offices,
namely….......or

14) He has obtained a loan for an amount of two million rupees or more, from any bank, financial
institution, cooperative society or cooperative body in his own name or in the name of his spouse or
any of his dependents, which remains unpaid for more than one year from the due date, or has got
such loan written off; or

15) He or his spouse or any of his dependents has defaulted in payment of government dues and utility
expenses, including telephone, electricity, gas and water charges in excess of ten thousand rupees,
for over six months, at the time of filing his nomination papers; or

16) He is for the time being disqualified from being elected or chosen as a member of a Majlis-e-Shoora
(Parliament) or of Provincial Assembly under any law for the time being in force.

B. Accordingly, the Reference has been forwarded by the learned Speaker National
Assembly without application of mind, in a mechanical manner. Thus, the very Order of
forwarding the Reference is illegal, unlawful. Therefore, cognizance by this Hon'ble
Commission on such Reference is itself ‘without jurisdiction, against the mandate of the
Constitution itself and hence no further proceedings could continue before this Hon'ble
Commission.

C. That the Reference itself has summarized two allegations (questions), one regarding the
‘alleged concealment of assets relating to Toshakhana gift retained in the year 2018 and 2019, in
the statement of assets and liabilities’ filed before ECP under §137 of the Election Act, 2017. And
the other question as to whether the Respondent is not disqualified under Art.62(1)(f) of the
Constitution. Both allegations or questions are vehemently refuted and denied. But first
of all, as a legal and preliminary objection, regarding these ‘allegations/questions’, it is
submitted as summarized hereinbelow.

D. As to the first question of concealment of Toshakhana gift in the statement of assets and
liabilities, it is submitted (without conceding at all that anything was ever concealed in the
Assets Statement filed before ECP or at all as would be addressed in the Preliminary Submissions)
that “no question of alleged concealment under §137 of the Election Act, 2017 (which is
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not conceded and is vehemently denied) could be referred under Art.63(2) of the Constitution to
the Commission”. §137 of the Election Act, does not ‘involve question of qualification’ or
a penalty to cease to hold office upon determination’. Hence, no question/allegation of
concealment of assets under §137 of the Act, could be determined by this Hon'ble
Commission in a Reference under Art.63(2) of the Constitution.

E. Furthermore, §137 of the Election Act, 2017 is itself a code for the purpose of filing of
statement of assets and liabilities. §137 of the Act specifically provides that ‘within 120
days from the date of submission of the statement, the Commission may proceed against
any member if the statement is found ‘false in material particular’. The Commission becomes
functus officio after the ‘target date’ i.e. 120 days from the date of submission of statement’.
That’s why this Hon'ble Commission has NEVER opened any statement of assets after
six months of its filing’. Hence any further proceedings into that would be barred by law
and without jurisdiction.

F. As to the second question or allegation of disqualification under Art.62(1)(f) of the

Constitution, it stands settled by the Supreme Court that “Election Commission cannot
declare the member disqualified under Art.62(1)(f)”. That only a ‘court of law’ can make
determination regarding Art.62(1)(f). It may be summarized that since 2010, there have
been about fifteen cases wherein declarations under Art.62(1)(f) were made. Those were
mainly of three categories – cases involving fake degree/sanad in nomination forms;
concealment of assets in nomination forms and declaration about dual nationality in
nomination form. As a principle of law, it has been settled by Supreme Court that “no
declaration must have been made by a court of law and that ECP is not a court of law for
that purpose; and that such declaration must be made after recording of evidence – both
oral and documentary; and evidence must be recorded on the issues of ‘forgery, falsity,
dishonest move’; and only after “finding of those issues” declaration of “not being honest
and ameen” to be made under Art.62(1)(f) of the Constitution. Attention is invited, inter
alia, to the cases reported as 2021SCMR1675, Muhd Saleem Vs Naveed Anjum
PLD2020SC137, Yar Muhd Rind; 2019SCMR1936, Roshan Ali Vs Murad Ali Shah;
PLD2018SC449, Sher Alam; and PLD2018SC578, Shaukat Aziz Bhatti. Thus, in light of the
precedents of Supreme Court no question that involves Art.62(1)(f) could be decided by
this Commission and no such Reference on that question could be forwarded to this
Commission by the Speaker.

Preliminary Submissions:

1) Without prejudice that the Commission has no jurisdiction in this particular case to look
into the assets statement of Respondent and that Reference itself is misconceived, it is
submitted that ‘gifts presented to the President, Prime Minister, Chairman Senate, Speaker
National Assembly, Member of Federal Cabinet, Governors, Chief Justice of Pakistan, Chief
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Justices of all High Courts, Judges of Supreme Court, Attorney General for Pakistan,
Government Servants (Civil and Military) as well as employees of the Government controlled
corporations and autonomous bodies, etc and their spouses and dependent children are now
governed by Office Memorandum (O.M No.8/5/2017-TK dt.18-12-2018, “Procedure for
the Acceptance and Disposal of Gifts”) issued by Cabinet Division, Government of
Pakistan.

2) The OM provides that all gifts irrespective of the price to be reported to and deposited in
Toshakhana of the Cabinet Division. Gifts presented by Foreign Dignitaries to be reported
by Chief of Protocol or concerned Ministry to the Cabinet Division. And gifts received
by visiting dignitaries of Pakistan to be reported by the concerned Ambassador or
Ministry together with the name of the recipients. The OM further provides that ‘gifts
of antiques and gifts of intrinsic historical value to be prominently displayed at
prominent buildings. Gifts of vehicles to be given to Central Pool of Cars of Cabinet
Division. And other Gifts given to President and Head of Government and not retained by
them to be sold in accordance with Sub-Para.10 of the Procedure. All gifts to be
assessed for valuation by Cabinet Division. Gifts of upto monetary value of Rs.30,000
to be retained by the recipient free of cost. And gifts valued above Rs.30,000 to be
allowed to be retained by the recipient on payment of 50% of the its value (earlier this
20% of the assessed value).

3) According to the record of Gifts placed before this Commission, between 01-08-2018
and 31-12-2021, a total of 329 gifts were presented to ALL dignitaries of Pakistan
(Page.13 of the Reference). That included 58 Gifts were presented to the Prime Minister
and Begum Prime Minister (Pages.14 to 19 of the Reference). Those mostly included
flower vase, table mat, decoration pieces, wall hanging, small carpets, volets, perfume, Tasbih,
Calligraphy, Frame; Paper weight and Pen holders. The gifts also included Watches, Pen,
Cufflinks, Ring, Bracelet/Lockets. And according to the record placed on file, ONLY
fourteen (14) Gifts had been assessed at more than Rs.30,000 which were retained
(purchased) by the Respondent upon payment in accordance with the aforesaid
‘Procedure’. The year-wise detail of those 58 Gifts is as under:

• July 2018 to June 2019: 31 gifts (Plz refer to S.1 to S.31, pp.14-16 of Ref)
o 04 Gifts retained upon deposit (S.8, S.10, S.11 and S.14)
Paid retain value of gifts: Rs.20,178,000+754,000+294.000+338,000
Total Rs.

• July 2019 to June 2020: 09 gifts (Plz refer to S.32 to S.40, pp.16-18 of Ref)
o 03 Gifts retained upon deposit (S.32, S.34, and S.38)
Paid retain value of gifts: Rs.240,000+544,700+935,000

• July 2020 to June 2021: 12 gifts (Plz refer to S.41 to S.52, pp.18-19 of Ref)
o 05 Gifts retained upon deposit (S.42, S.47, S.49, S.50 and S.52)
Paid retain value of gifts: Rs.2435000+9031000+1000+40000+45000+133,250
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• July 2021 to June 2022: 06 gifts (Plz refer to S.53 to S.58, p.19 of Ref)
o 02 Gift retained upon deposit (S.53 and S.58 of the Gift Lists)
Paid retain value of gifts: Rs.2914500+193000

4) The official challan reflecting the amount deposited in the Bank by the Respondent for
retaining the aforesaid 14-Gifts presented to him or Begum Prime Minister are appended
herewith.

5) The Statement of assets and liabilities (Form.B) is to be filed by a member by 31st December
each year for assets and liabilities as preceding 30th day of June. The Forms filed by the
Respondent are appended herewith as except for the year 2019, no other form has been
filed with the Reference. The relevant Form (Statement of assets and liabilities) are as under:

• Form.B filed on 31-12-2019 (for assets upto 30-06-2019, pp.30-32 of Ref)

o This Form is relevant for the purpose 04 Gifts upto 30-06-2019

• Form.B filed on 30-12-2020 (for assets 01-2019 to 30-06-2020), not filed with Ref;
o This Form is relevant for the purpose 03 Gifts upto 30-06-2020

• Form.B filed on 29-12-2021 (for assets 01-07-20 to 30-06-21), not filed with Ref;
o This Form is relevant for the purpose 05 Gifts upto 30-06-2021

• Form.B YET to be filed (if at all) by 31-12-2022 (for assets 01-07-21 to 30-06-22)
o This Form would be relevant for the purpose 02 Gifts upto 30-06-2022

6) In order to further apprise this Commission for the sake of record and transparency
(without conceding that this Hon'ble Commission has any jurisdiction to look into those
statement in the titled Reference), the Income Tax Returns filed by the Respondent for the
Tax Year 2019; Tax Year 2020 and Tax Year 2021 are also being filed.

7) In light of the aforesaid, first of all with respect to the 04 Gifts during 2018-2019”, it is
submitted that ‘Misc Items’ like flower vase, table mat, wall hanging, decoration pieces,
perfume, tasbih, volet, Calligraphy, pen holders, even watches, cell phones, glasses and similar
other items of personal use are NEVER declared by name in the ‘Statement of Assets’. No
member of parliament (including the Applicants who made the allegations and the Speaker
who sent the Reference) has ever mentioned such items. None. And this Hon'ble
Commission has accepted all such ‘statements’ filed by the members including those
of the Respondent. And none ever opened or reconsidered for ‘such lapse, if at all’.
thus, all statements filed by the Respondent were strictly in accordance with law and
Respondent could not discriminated against others Parliamentarians at this stage.

8) Without prejudice to the foregoing, as far as the ’04 Gifts’ are concerned; those Gifts
were sold during that financial year and the Respondent did not have those by 30-06-2019.
Therefore, those were not mentioned by name in the Statement of Assets filed on 31-
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12-2019. However, the sale amount was received in Bank Alfalah Account (3265). That
amount was duly mentioned in that account which is available at page.2 of the Statement
or Page.31 of the Reference. Moreover, the total cost value of the gifts was (Rs.21,226,000)
as paid by the Respondent was declared in the Tax Return for the Tax Year 2019 under
Code.5088. And the sale proceeds (Rs.58million) was also mentioned therein under
Code.5028. And tax amount (Rs.9,535,821) was also declared in that Tax Return. Thus,
Gifts were fully described in the Income Tax returns (for its cost and sale value) but since
‘those had been sold and were no longer with the Respondent by 30-06-2019’, therefore ‘those
were not mentioned by name in the Statement filed on 31-12-2019 relating to assets upto 30-
06-2019. That is what the Supreme Court held in 2018SCMR2128, Khawaja Asif Vs
Usman Dar that ‘if it no more exists in his hand in the form of an assets’, there would be no
more ‘disclosure of it’. The entire allegation of concealment or non-disclosure is baseless,
politically motivate and is vehemently denied.

9) With respect to the three Gifts retained during 2019 to 2020, it is submitted that the
Three Gifts were retained upon deposit of (Rs.240,000+544,700+935,000) = Rs.1,719,700.
These gifts were further gifted by or on behalf of the Respondent and he did not have
any of those by 30-06-2020. Therefore, those were not named in the Statement.
However, its cost value was duly declared as ‘expenses’ in the Tax Return for the Tax
Year-2020 which is available at page.3 of the Tax Return. Hence, any allegation to the contrary
that any concealment was ever made is vehemently denied as false, baseless and incorrect.

10) Now with respect to the Five Gifts retained during 2020-2021, it is submitted that the
total cost was Rs.11,684,250 that was paid for the gifts. Since, cost of an asset is to be
declared. Therefore, in the Statement filed for the year 2021 on 29-12-2021, value of
precious items (Toshakhana) was duly declared that is at available page.2 of the
Statement which is even otherwise ‘admitted’ by the Applicants. And also duly
declared in the Tax Return for the Tax Year 2021 at page.4 of the Tax Return.
Accordingly, ALL Requisite declarations and disclosures have been made by the Respondent.

11) It is pertinent to state that the two gifts retained during 2021-2022, are yet to be
declared in this year Tax Return (Tax Year-2022). And for ‘assets’ upto 30-06-2022, the
date of filing of Statement of assets’ would be due by 31-12-2022 (yet to be filed, if at
all). However, challan of deposit of amount for those gifts are being filed herewith.

12) It is also very pertinent to state that tax returns would reflect that ‘sale of inherited
land’ for Rs.70million which amount was received during the aforesaid years and duly
declared. The opening and closing balances and assets would reflect that in the year
2021, Respondent had a decline in his assets. Save as aforesaid, the Respondent has
clearly mentioned all his assets derived from lawful sources and nothing whatsoever
has been concealed from public or this Hon'ble Commission.
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REPLY ON MERITS:

Parawise response to the Reference dt.02-08-2022:

1. The content of Para.1 of the Reference (Page.1 of the Reference) relating to two allegations
of, concealment of assets in Statement of Assets filed for the year 2018 and 2019 are
vehemently denied as false, baseless and misconceived. It is evident from bare
perusal of Form.B and Tax Returns filed during 2019 that ‘gifts had been described’
in the tax returns and since those stood disposed of and were no more in the hands
of the Respondent, therefore those are not to be mentioned in the Statement as such.
However, all proceeds received had been declared in the Statement which is
sufficient disclosure of the assets or source. With respect to contention regarding
Art.62(1)(f), the contents of whatever has been stated hereinabove as part of
Preliminary Objections are reiterated herein.

2. In response to Para.2 of the Reference wherein Art.63(2) has been reproduced, it is

submitted that ‘no Reference’ as filed before this Hon'ble Commission is envisaged
by Art.63 of the Constitution. The learned Speaker has failed to apply his mind to the
‘questions contained in Art.63(1) before referring the Reference to the Commission
under Art.63(2)’. It is also submitted that ‘every application filed by some members
does not become ‘Reference to be otherwise deemed as referred to the Commission’.
Since, no question of disqualification as envisaged by the Constitution is involved,
therefore the Reference is misconceived and liable to be dismissed with strong
observations by this Hon'ble Commission about the malice and motives of movers.

3. In response to Para.3 of the Reference about application of mind to the question for the
purpose of Reference under Art.63, the contents of whatever has been stated in Para.2
above are reiterated.

4. In response to Para.4 of the Reference regarding allegations of concealment of assets,

the contents of Preliminary Submissions are reiterated. It is vehemently denied that
any asset was ever concealed, misquoted or not properly declared. The answering
respondent has always acted in accordance with law.

Parawise reply to the Application dt.04-07-2022 filed by the members (pages.1-12 of Ref):

(1) In response to Para.1 of the Application regarding filing of declaration before ECP, no
reply is needed. As a matter of law that is governed by Election Act, 2017.

(2) The contents of Para.2 that assets were concealed or not disclosed in the Statement filed
before ECP, are vehemently denied. The contents of Preliminary Submissions are
reiterated.
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(3) The contents of Para.3 regarding Toshakhana Rules, 2018’ (in fact Procedure) need no
reply.

(4) The contents of Para.4 about earnings of the Respondent are vehemently denied. The
Respondent has made full disclosure of his assets and liabilities. He has been
annually filing his tax returns. All assets are duly accounted for. The contents of
Preliminary Submissions regarding ‘gifts’ are reiterated.

(5) The contents of Para.5 that no disclosure was made are vehemently denied. The
Application is so repetitious of the allegations with no evidence whatsoever to
establish or substantiate the allegations. The Application is devoid of substance.

(6) The contents of Para.6 regarding item-wise gifts are vehemently denied as stated.
There are factual errors on the part of the Applicants including in calculations and
dates. Therefore, the contents of Preliminary Submission are reiterated.

(7) The contents of Para.7 are vehemently denied as stated. All declarations have been
made. The assessed value has never been disputed and retain value was paid as and
where so required. Nothing was retained without value unless permissible under the
‘Procedure’.

(8) In response to Para.8, it is submitted that no false declaration has been made. In order
to avoid repetition as the Application is too repetitive, the contents of Preliminary
Submissions are reiterated.

(9) The contents of Para.9 as phrased are incorrect. The total value and the retained value
of gifts is a matter of record. The value has been reproduced hereinabove which has
been paid by the Respondent in accordance with Procedure which speaks for itself.
The contents of Preliminary Submission are reiterated herein.

(10) The contents of Para.10 are vehemently denied as baseless and false. The entire record
of gifts is maintained by the Cabinet Division and every gift has been duly reported.
The Applicants have not filed anything whatsoever with the Reference or with their
application to establish that ‘reported was not properly made or that value was not properly
assessed or that retain value with not in accordance with Procedure’. The Application is
therefore without substance and baseless.

(11) The contents of Para.11 are vehemently denied as false and baseless. The contents of
whatever has been stated hereinabove are reiterated.

(12) The contents of Para.12 are legally misconceived and factually incorrect. Respondent
has not concealed any assets whatsoever. Even otherwise, the plea of Art.62(1)(f)
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cannot become the subject matter of any Reference before this Commission. The
contentions of the Applicants are therefore without substance.

(13) The contents of Para.13 regarding Art.62(1)(f) are denied as ill-founded. To avoid
repetition, the contents of Preliminary Objections are reiterated.

(14) The contents of Para.14 are false and baseless. No asset was concealed. To avoid
repetition, the contents of Preliminary Objections and Preliminary Submissions are
reiterated.

(15) The concept of ‘honest and ameen’ as alleged in Para.15 of the Application is
misconceived and based on misconstruction of law. Therefore, to avoid repetition,
the contents of Preliminary Objections are reiterated.

(16) The contents of Para.16 regarding Art.62(1)(f) are denied as ill-founded. To avoid
repetition, the contents of Preliminary Objections are reiterated.

(17) The contents of Para.17 regarding Art.62(1)(f) are denied as ill-founded. To avoid
repetition, the contents of Preliminary Objections are reiterated.

(18) The contents of Para.18 regarding Art.62(1)(f) are denied as ill-founded. To avoid
repetition, the contents of Preliminary Objections are reiterated.

In view of the foregoing, it is respectfully prayed that this Hon'ble Commission may
kindly be pleased dismiss the Reference as incompetent, misconceived, baseless and devoid
of substance.

Imran Khan

Through

Counsel

Barrister Ali Zafar

Senior ASC

Barrister Gohar Khan, ASC

Dated: 03-09-2022