1993 PLP 2485 (MLD)

2. Learned counsel for the appellant took up the stance that the appellant was not Director and that even if his spouse was a Director, he cannot be disqualified to contest the election unless it was proved that he alongwith his spouse and dependants owned shares worth 51 per cent of the value of the concern, i.e. Hameed Textile Mills Limited

3. In support of the plea that the appellant was not a Director of the borrower firm, learned counsel wanted to place reliance on letter dated 2‑9‑1993, claimed to have been written by Mr. Raza Saeed, Assistant Vice President of the Bankers Equity Limited, Lahore. As we did not consider it safe to place reliance upon. the letter, the author of which was neither known nor had been produced before the Returning Officer, 'we asked learned counsel for the appellant as to whether he was in a position to produce the author of the letter today. Learned counsel requested for an hour's adjournment and also prayed that author of the letter be summoned officially too. The request was allowed and the matter was adjourned to 12‑30 noon.

4. Mr. Rata Saeed, Assistant Vice‑President appeared at 1‑00 p.m. and made statement, which has been recorded separately.

5. Learned counsel appearing for Asmat Abbas one of the contestants, was allowed to cross‑examine the witness at his request, which was not objected to by learned counsel for the appellant. Learned counsel for the appellant was also allowed to put questions to the witness.

6. Mr. Raza Saeed stated on oath that Sardar Talib Hussain i.e. the appellant was not a Director of the firm per Prospectus issued in 1990 and also per record of the later years. However, he conceded during cross‑examination by learned counsel for Asmat Abbas that Mst. Shahida Talib wife of the appellant was a Director. During the questions put by learned counsel for the appellant he stated that apart from the fact that Mst. Shahida Talib was a Director, the appellant himself was also a share‑holder alongwith his son and daughter. He gave out that the appellant, his wife, son and daughter owned shares worth 15 per cent of total value thereof.

7. In the context of the matter we do not think that it was material whether the appellant himself was a Director or not as the disqualification could be brought home to him even if his spouse was a Director, Nonetheless the arguments of the learned counsel for the appellant is that a candidate can only be disqualified from contesting election for being defaulter of loan taken by the candidate or his/her spouse, if the candidate, his spouse and their dependants own 51 per cent shares of the firm. The argument is based on the interpretation of the newly added clauses to subsection (2) of section 12 of the Representation of the People Act, 1976 (LXXXV of 1976). The relevant provisions read as follows:‑‑‑ "(iii) a declaration that an amount of loans, 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 dependant 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 dependant or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperate society or cooperative body was written off or such amount which was written off has since been paid."

8. Although learned counsel for Asmat Abbas tried to build a case that since Hameed Textile Mills Ltd. was a defaulter, per list supplied by the; Bankers Equity Limited, the appellant was liable to be disqualified but he was not able to controvert the argument that a person can only be disqualified to contest election if he alongwith his spouse and dependants own shares worth 51 per cent of the value of total shares of the concern/company, and is found i, to be a defaulter by not making payment of the outstanding amount of the loan I within one year of the date on which the same had fallen due. There is neither any evidence nor assertion from learned counsel appearing for one of the contestants that the appellant his spouse and his dependants own 51 present shares of Hameed Textile Mills Limited.

9. The stance of the learned counsel for the appellant that the appellant was not a Director of the firm, since stands proved by the statement of a responsible officer of the Bankers Equity Limited, and the interpretation of the newly added clause put forth by learned counsel also does not admit any alternative, we are inclined to set aside the impugned order. The appeal is, therefore, allowed. The nomination papers of the appellant shall be deemed to have been accepted. H.B.T./92/E???? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Appeal allowed.