1994 PLP 1716 (CLC)

Hemraj for Respondent No.

1. Date of hearing: 14th April, 1994. Petitioner, Abdul Qudoos, alongwith the first five Respondents was a candidate for a seat of National Assembly from Constituency No. NA‑176 Thar. Out of the six candidates. two appear to be the main contesting candidates. The Petitioner, Abdul Qudoos, was nominated by Pakistan Muslim League (Nawaz Group) while the first Respondent, Arbab Ghulam Rahim, was nominated by the Pakistan Peoples Party. Arbab Ghulam Rahim, Respondent No. 1 herein, polled the highest number of votes and was declared as the successful candidate to the aforementioned seat by the Returning Officer. The Petitioner was number two on the basis of count of votes and he did not succeed at the election. The petitioner has filed the present Election Petition questioning the election of the returned candidate under section 52 of the Representation of the People Act, 1976. He, has sought declaration that the election of the returned candidate be declared void and he be declared to, have been duly elected in his place. The only ground that has been agitated in the Petition is that Arbab Ghulam Rahim, Respondent No. 1, has defaulted in payment of loans borrowed from the United Bank Limited to the tune of more than Rs. 1 million and the Pakistan Banking Council had published his name in the list of parties with stuck‑up loans for one year or more for more than Rs. 1 million as on 30‑6‑1993 (paragraph 5 of the Petition). The Petitioner, however, in para 11 of the Petition has stated that Respondent No. 1 is defaulter of the National Bank of Pakistan, the Muslim Commercial Bank, the Habib Bank Limited and the Agricultural Development Bank of Pakistan. He had borrowed certain amounts in his own name and in the name of his family members. He claimed that although the name of the returned candidate appeared in the list published by the Banking Council of Pakistan, the Returning Officer did not take note of it and allowed him to contest the elections. He approached the Election Commission of Pakistan to disqualify Respondent No. 1 on the above grounds and also filed a Constitutional Petition before the High Court of Sindh without any success. He, therefore, filed the present Petition. The averments made in the Petition have all been denied by Respondent No. 1 Arbab Ghulam Rahim. The other Respondents did not appear on any of the dates to contest the Election Petition. The only point that needs consideration in this Petition is if the returned candidate, Arbab Ghulam Rahim, the Respondent No. 1 herein, was not qualified to contest the election in view of above averments. The Petitioner in support of his case examined Manzoor Ahmed, P.W.1, who is the Manager of the United Bank Limited, Khoski Branch. He stated that the Respondent has not been their borrower but had recommended grant of loans to certain persons and in the endorsement recommending their applications he had undertaken to repay the loan amount. He clarified that he is not the guarantor in case of 10 borrowers whose applications bore his recommendation and were granted interest free loan of Rs. 10,000 each under the Special Finance Scheme. Similarly, loans were granted to 30 other persons on the recommendation of the said Respondent. All the 40 loanees are defaulters of the loans advanced to them but in each of these cases separate guarantees on the prescribed form have been executed by different persons other than the Respondent No.

1. The second witness examined by the Petitioner is one Bhoorji (P.W.2), Agricultural Credit Officer, Zonal Office of the United Bank Limited, Mirpurkhas. He stated that 30 farmers were granted loans of Rs.10,000 each and the returned candidate had executed a guarantee bond in respect of such loanees. A total amount of Rs.360,000.00 including interest remains outstanding against these loanees. He admitted that the returned candidate is one of the two guarantors. Syed Shahood Alam (P.W.3), Assistant Vice‑President; Banking Council of Pakistan, was examined by the Petitioner. He produced list of defaulters published by them. According to that list, Respondent No. 1, Arbab Ghulam Rahim, has been shown as defaulter in payment of loan to the extent of Rs.1,160 million. He was unable to say if the said Respondent is borrower himself or guarantor for loanees as he did not have the relevant record. He also said that he will not be able to say as to which branch of the United Bank Limited had sanctioned such loans. He was shown a copy of some newspaper that published a list of defaulters and that list did not contain the name of Respondent No.

1. Shamim Ahmed (P.W.4), Deputy Director, Incharge of Litigation Cell of the Agricultural Development Bank of Pakistan at Karachi, was also examined by the Petitioner. He clearly stated that he had examined the record of their branches at Golarchi and Tando Bago but no loan was sanctioned in favour of respondent No. 1 or any of his relatives. He, however, pointed out that a loan of Rs.500,000 was granted by their Badin Branch in favour of Arbab Ghulamullah, a minor, through his legal guardian, Arbab Abdullah. Arbab Ghulamullah is shown as son of Arbab Ghulam Rahim. The Petitioner then after examining himself closed his side while Respondent No. 1, Arbab Ghulam Rahim, examined himself and closed his side. Mr. Rochi Ram, Advocate for the petitioner, very candidly conceded that no loan has been sanctioned in the name of respondent No. 1, Arbab Ghulam Rahim, except a loan of Rs.500,000 sanctioned in the name of his minor son through his legal guardian, Arbab Abdullah, who is the brother of Respondent No. 1, Arbab Ghulam Rahim. He, further contended that as the loans to farmers have been sanctioned on the recommendation of the returned candidate on the basis of undertaking given by him that he will repay the loan in certain cases while he himself is a guarantor in respect of other loanees, such amounts should be treated to be the amount borrowed by the returned candidate. Mr. Hemraj, Advocate appearing for respondent No. 1, referred to the judgment passed by the Honourable Supreme Court of Pakistan in the case of Mr. Ghulam Mustafa Jatoi v. Additional District and Sessions Judge Naushehro Feroze and others (1994 SCMR 1299), and contended that even though the returned candidate‑ be considered to be the guarantor, he would not come within the mischief of amended section 12(2) of the Representation of the People Act, 1976. In case the loan which was advanced to his minor son through his legal guardian by the Agricultural Development Bank of Pakistan, even if treated to be a loan taken by the returned candidate in the name of his dependent, the total amount of the loan of Rs.500,000 being under the prescribed limit no disqualification can be attached to the returned candidate. The examination of the Election Petition itself would show that the Petitioner has not given full particulars of the corrupt or illegal practice allegedly committed by the returned candidate as required under section 55(1)(b) of the Representation of the People Act, 1976 and the petition can be dismissed on that short ground. The petitioner has also not been able to prove that the returned candidate obtained any loan 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 him and that has remained unpaid for more than one year from the due date or that any such loan was written off. There is no evidence that the loan was obtained by the returned candidate in the name of his minor son from the Agricultural Development Bank of Pakistan. On the contrary record produced in the petition shows that loan was obtained by one Arbab Abdullah acting as legal guardian in the name of minor, Arbab Ghulamullah. Such evidence establishes that the said loan was taken by Arbab Abdullah and not by the returned candidate in the name of his minor son. Even if this loan is attributed to the returned candidate, the loan being below the prescribed limit will not amount to corrupt practice and, disqualify him under the amended section 12(2) of the Representation of the People Act, 1976. The Honourable Supreme Court of Pakistan in the appeal filed by (Ghulam Mustafa Jatoi have clarified that case of a guarantor of defaulting loanees is not covered by the added disqualification. In view of above I find no merit in this Petition which is dismissed. AA/119/E Petition dismissed.