1993 PLP 2350 (SCMR)

SHAFIUR RAHMAN, J:

‑‑This order deals with the following three petitions for leave to appeal which raise common questions of law of public importance:‑ (i) C.P.LA. No. 465/1993 filed by Aijaz Ali Khan Jatoi; (ii) C.P.LA. No. 466/1993 filed by Liaquat Ali Khan Jatoi; and (iii) C.P.LA. No.1217‑L/1993 filed by Anwar Aziz Chaudhry: Mr. Aijaz Ali Khan Jatoi was a candidate at the election for NA‑179 Dadu‑III, Liaquat Ali Khan Jatoi was a candidate at the election from PS‑63 Dadu‑VI and Anwar Aziz Chaudhry was a candidate at the election from PP‑113 Narowal.

2. The election schedule for the National and Provincial Assemblies was announced by the Election Commission by a notification dated 23‑8‑1993. On .the 19th of August, 1993, Ordinance No. XVI of 1993 had been enforced by which section 12 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) was amended so as to introduce subsection (2) in the following words;‑‑ "Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain, duly signed by the candidate‑‑ (i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; (ii) a declaration about his party affiliation, if any; (iii) a declaration that an amount of loan, as may be prescribed, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid, does not remain unpaid for more than one year from the due date; and . (iv) a declaration that no loan, the amount of which may be prescribed, obtained by him, his spouse or dependent or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid." Such a declaration was in fact printed on the nomination paper which was subscribed to by all the three petitioners. On 27‑8‑1993, Ordinance No.XX of 1993 was enforced adding subsections (2A), (2B), (2C) and (2D) after subsection (2) in section 12 of the Act, in the following words:‑‑ "(2A) The declaration specified in clause (iv) of subsection (2) shall be made in respect of the loan written off after the twenty‑third day of March, 1985. (2B) Where a candidate desires to make payment of any loan specified m clauses (iii) and (iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Officer shall allow such candidate to file nomination paper without the declarations speed in the aforsaid clauses. (2C) Where a candidate pays back the loan in respect of which he has given an undertaking under subsection (2B), the earlier non‑payment or writing off the loan shall not be deemed to be corrupt practice for the purpose of section 78. (2D) Where a candidate does not make payment of a loan in respect of which he has given an undertaking under subsection (2B) within the period specified therein, m addition to any penalty which may be levied upon him under any law for the time being in force, his name shall not be published in the list of contesting candidates required to be published by the Returning Officer under subsection (4) of section 16 nor shall his name appear in the ballot paper."

3. The Banking Council published a list of defaulters pursuant to the authorization in its favour by subsection (5) added to section 12 of the Banks (Nationalization) Act, 1974 (Act XIX of 1974) by Ordinance No. XIX of 1993, In this list the three petitioners were shown as defaulters. In consequence effect was given by the Returning Officers to subsection (2D) of section 12 of the Act by directing that their names be not published in the names of the contesting candidates required to be published by the Returning Officers under subsection (4) of section 16 of the Act nor their names could appear on the ballot papers. This aggrieved the petitioners and they filed Constitution petitions in the High Courts which were dismissed by the orders impugned before us one of these (C.P. 1217‑L/1993) mainly on the ground that Election process having started with the filing and scrutiny of nomination papers, Article 22.5 of the Constitution as interpreted by this Court in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396 barred the Constitution petitions in respect of such matters, and two others (C.Ps. 465 and 466/93) on the merits of submission made.

4. A number of questions of Constitutional importance have been raised in support of these petitions for leave to appeal. It has been urged that the amending Ordinance adding and thereby expanding the scope of the Constitutional definition of `Ameen' by Ordinance NoXVI of 1993 are ultra vires the Constitutional provisions. It is further contended that in view of the language of Article 62 (i) and Article 63 (1) (p) of the Constitution such an object could not be achieved by invoking the Ordinance making powers of the Acting President. By making the disqualification retrospective in respect of loans obtained prior to 23‑8‑1993 as a part of ordinary commercial transactions with Banks rights guaranteed under Article 12, i.e., protection against retrospective punishment, has clearly been violated. Besides, it is contended that these Ordinances do not fall in the category of law, they are in the nature of edict, attainder, legislative judgments and for that reason violative of the scheme, object and thrust of the Constitutional division and separation of powers. On the legal plane it has contended that by deciding the fate of the petitioners after the date fixed by the Election Commission of Pakistan the petitioners have been denied the statutory right of appeal. The factual determination of the satisfaction of the jurisdictional fact has not taken place at all. There is no determination that the loan is due and that it exceeds the prescribed limit. In fact all these loans were fully secured by pledging property and furnishing of guarantees far in excess of the amount said to be due.

5. As the petitions raise important and weighty Constitutional question which require an examination in greater depth, we grant leave to appeal in these petitions.

6. As regards the interim relief, this Court has already held in Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61 that a law is to be taken as validly made and operative till it is declared otherwise. We find that in clear terms a provision has been made in section 12 of the Act as amended, for the deletion of the names of such defaulters from the list of the contesting candidates whose names appear in the statutory list published by the Banking Council. It is not disputed that the names of all the three petitioners appear in such a list and the amount shown due therein is in excess of the prescribed limit of one million rupees. In the circumstances, the interim relief pending disposal of the appeal is refused. AA./‑1037/S Order accordingly.