2013 PLP 1088 (CLC)

Through this constitutional petition, the petitioner assails order dated 17-4-2013 passed by the learned Election Tribunal of this Court, through which order dated 7-4-2013 passed by the Returning Officer was upheld.

2. The learned counsel for the petitioner submits that the main ground that prevailed with the Returning Officer, as well as, the learned Election Tribunal was that the petitioner was a defaulter in so far as he had failed to repay a loan. A perusal of the impugned orders indicates that the petitioner is a share-holder in a Company which is in default of its repayment obligations. This appears to have persuaded the learned Tribunal to uphold the order of the Returning Officer.

3. The learned counsel for the petitioner submits that the petitioner owns only 24% shares in Al-Rehman Hospitality Pvt. Ltd. Further, the petitioner was only a guarantor. On the principle of law laid down in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer NA-158, Naushero Feroze and others (1994 SCMR 1299) the petitioner being a guarantor and a minority shareholder is not personally liable for the liabilities of the Company.

4. We have heard learned counsel for the petitioner and gone through the record.

5. A perusal of the record indicates that petitioner only holds 24% shares in the afore-noted Company. Therefore, he does not mainly own or hold controlling or majority interest in the said Company in terms of section 12 Explanation (ii) of the Representation of the People Act, 1976. Therefore, considering the language of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner cannot be considered to have an unpaid liability of a loan of Rs.2 Million or more. Further, admittedly the petitioner is a guarantor. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Mustafa Jatoi ibid has held as follows:

(i) That the words 'in his own name or in the name of his spouse or dependent or any business concern mainly owned' negate the inclusion of any other category of persons. (ii) The above clause has categorized the persons who are covered by the same, namely, the candidate should have taken the loan himself or his spouse or dependent or any business concern in which he owns share of 51 per cent or more as provided for in the Explanation to subsection (7) of section 12 of the Act incorporated by Ordinance No.XX of 1993.

6. In view of the foregoing, both the grounds on the basis of which the petitioner has been disqualified and his nomination papers rejected are not sustainable. We are, therefore, unable to agree with the orders impugned before us. Accordingly, for the reasons recorded above the orders dated 7-4-2013 and 17-4-2013 are set aside.

7. A direction is issued to the Returning Officer PP-61, Faisalabad to include the name of the petitioner in the list of eligible candidates and on production of a Ticket of any of the political parties, grant the petitioner a symbol in case it has not already been allotted to any other person.

8. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before us, in the facts and circumstances brought to our notice for the limited purpose of deciding this petition. The Election Commission of Pakistan shall, however, be at liberty to independently exercise its powers on the basis of material before it and take appropriate proceedings and/or pass orders on the application of any interested party under the provisions of Representation of the People Act, 1976 without in any way being influenced by this order.

9. Petition allowed. MWA/S-16/L Petition allowed.