1998 PLP 848 (CLC)

Khan Dil Muhammad Khan Alizai for Appellant. Irshad Jhakar for Respondent. Date of hearing: 5th January, 1997. This order will dispose of the instant appeal as well as Election Appeal No.7 of 1996 as common question of law and facts are involved in these appeals.

2. These appeals are directed against the orders, dated 28‑12‑1996 whereby the Returning Officer has rejected the nomination papers of the appellant mainly on the ground that he was a defaulter to the tune of Rs.92,964 pertaining to P.T.C., Rs.79,937 pertaining to water‑rate and Rs.188,085'being guarantor of Allah Bakhsh and others and a sum of Rs.1,05,270 having been got written off.

3. It is submitted by the learned counsel for the appellant that out of the amount of Rs.92,964 four instalments have been made by the department and the appellant has paid Rs.44,888 on 28‑12‑1996 and the remaining instalments of Rs.16,026, 16,025 and Rs.16,025 are due on 27‑1‑1997, 27‑2‑1997 and 27‑3‑1997. That he has deposited water‑rate amounting to Rs.79,937 vide receipts Annexures ' D' and ' E' . That the appellant never stood guarantor on behalf of Allah Bakhsh and others and no amount of Rs.1,88,085 is outstanding against him. That no amount of Rs.1.05.270 was also ever got written off by him. He has further submitted that even as per section 12(2)(iii) of the Representation of People Act, 1976 a guarantor is not liable as his name does not fall within the definition of the term defaulter. In this respect, learned counsel had placed reliance upon Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299). He has, thus, submitted that the Returning Officer was not justified in rejecting the nomination papers of the appellant.

4. On the other hand, Mr. Irshad Jhakar, Vice‑President, National Bank of Pakistan, Muzafargarh has stated that as per record available within him, the appellant stood guarantor and is not the principal borrower of the amount to the tune of Rs.1,88,

085. No representative of Habib Bank Limited is present to certify that a sum of Rs.1,05,270 was got ever written off by the appellant.

5. The main ground which has weighed with the Returning Officer is that the appellant was a defaulter of P.T.C. to the tune of Rs.92,

964. The appellant has brought on record a copy of order, dated 24‑12‑1996 whereby the said amount has been ordered to be paid in four instalments out of which first installment of Rs.44,888 was paid on.28‑12‑1996 at National Bank of Pakistan, Kot Addu Branch. The remaining amount is to be paid in three equal instalments which will be due from 27‑1‑1997 onward. Thus, the question of default in payment pertaining to P.T.C. does not arise. So far the arrears of water rate amounting to Rs.9,937 is concerned, the said amount has been deposited vide receipts Annexures D and E annexed with this appeal. The appellant has been shown to be a guarantor on behalf of Allah Bakhsh and others. Even if it is as assumed for the sake of arguments, that he is a guarantor he does not fall within the ambit of section 12(2)(iii) of the Representation of People Act, 1976 as held in 1994 SCMR 1299. There is nothing on record to substantiate the contention of the Returning Officer that the appellant got a sum of Rs.1,05,270 written off.

6. In the light of facts stated above, the impugned orders have not been passed keeping in view the provisions of law. Both the appeals are accepted and the appellant is declared to be a candidate for the forthcoming election. His name be notified as a candidate. A.A./A‑231/L Petition dismissed.