2008 PLP 341 (CLC)

SYED ZAHID HUSSAIN, J, ELECTION TRIBUNAL.- N.A. 107-Gujrat-IV is one of the constituency of National Assembly of Pakistan for the candidature whereof the appellant, Ch. Mubashir Hussain respondent No.1 herein and Ch. Azhar Hussain (respondent No.1 in E.A. No.141-A of 2007) filed nomination papers for the forthcoming general elections scheduled to be held on 8-1-2008. Before the Returning Officer, the appellant filed objections to their nomination papers to the effect that they were not graduates; they had suppressed their assets and that they were involved in Cooperative scandal and had been signatory and surety to agreement, dated 15-1-2002 for the payment of a sum of Rs.200 million and guaranteed its repayment as per schedule mentioned in the said agreement. The Returning Officer vide order, dated 29-11-2007 has accepted their nomination papers whereagainst this appeal under section 14(5) of the Representation of the People Act, 1976 has been filed. Before filing of these appeals, which have common features, the matter was sought to be assailed before the Honourable Supreme Court of Pakistan through constitution petitions to which the office raised objection that remedy available in accordance with law should be availed the said objection was sustained by the Honourable Chief Justice Pakistan vide order, dated 6-12-2007.

2. The objection as to the respondents being graduate has not been pressed by the learned counsel for the appellants, for the reason that the Legal Advisor of the Punjab University has stated on instructions from the University of the Punjab that as per the record the said respondents were graduates. The main attack to the acceptance of their nomination papers is that the respondents were disqualified under Article 63(1)(q) and (r) of the Constitution of the Islamic Republic of Pakistan, 1973 and are not qualified to be elected or chosen as members of Parliament as they were not "sagacious, righteous and non-profligate and honest and Ameen" as per clause (f) of Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973. Similar qualifications and disqualifications contained in section 99 of the Representation of the People Act, 1976 are sought to be invoked against the said respondents. According to the learned counsel even at the stage of nomination papers the Returning Officer was expected to apply mind but he has failed to address to the real controversy. He cites Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 that the liability of a surety/guarantor is coextensive with that of the principal debtor and that the agreement, dated 15-1-2002 is an admitted document to which the said respondents are signatory, hence they were obliged to fulfil their contractual obligations by violating which they have rendered themselves liable to be disqualified. Makes further reference to Muhammad Hussain v. Saleem Jan and others PLD 1995 Pesh. 98 that "contracting parties are bound to fulfil their contracts". Ghazanfar Ali Gul v. Ch. Tajammal Hussain and others 1997 CLC 1628 is cited to show that father of the respondents had been disqualified to contest the elections due to involvement in Cooperative scandal as he was found "not Ameen" within the meaning of Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973. In Dilawar Mahmood v. Babu Muhammad Munir and another 1994 MLD 415 and Khawaja Muhammad Daud Sulaimani v. Election Tribunal and, others PLD 2003 Lah. 106 similar proposition is found. Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division and others 1998 SCMR 1462 is also cited. Letter, dated 3-12-2007 issued by the Punjab Cooperatives Board for Liquidation is pressed into service to show that still a sum of Rs.65.60 millions was outstanding against Ch. Tajammal Hussain and his son Ch. Nayyar Hussain and the matter was sub judice before the Lahore High Court.

3. The main thrust of the respondent side is that though agreement, dated 15-1-2002 was executed, the same was result of duress and Writ Petition No.17016 of 2005 qua the same was pending, which was being heard by a learned Division Bench of this Court and a restraint order has also been passed therein. Their .learned counsel invoke explanation to section 12(2) of the Representation of the People Act, 1976 that since the recovery had been stayed by the High Court, the nomination papers cannot be rejected on that ground. It contended that neither of the respondent had taken any loan, non-payment whereof could disqualify them.

4. The respective contentions have been considered and the material on record has been perused. It may be observed that under section 14(3)(c) of the Representation of the People Act, 1976 the Returning Officer while conducting summary enquiry is obliged to satisfy as to whether "any provision of section 12 or section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular". In making such scrutiny he may require any agency or authority to produce any document or record. Section 14(5A) of the Representation of the People Act, 1976 empowers the Tribunal to act of its own motion to reject the nomination papers of the candidate who is a defaulter or suffers from any disqualification.. Without even going into the details of the background and consequences of the cooperative's scandal, the controversy in the instant matter stand clinched by the conduct of the respondents themselves as plea bargain agreement, dated 15-1-2002 contains a clause to the effect that "We Ch. Mubashar Hussain and Ch. Azhar Hussain agree to guarantors for payment of Rs.200 million by Ch. Tajammal Hussain and Ch. Nayyar Hussain as per above agreement. If they fail to pay Rs.200 million as per schedule of payment in this agreement we guarantee to pay the said amount and in case of our failure, this amount would be recovered from our personal movable and immovable properties". The execution of the said agreement is not denied nor it can be as letter/certificate, dated 29-11-2007 issued by the Punjab Cooperatives Board for Liquidation itself states that the case was settled as a plea bargain and that Ch. Mubashir Hussain and Ch. Azhar Hussain stood guarantors in that agreement. This letter has been referred to by the Returning Officer in his order and that Writ Petition No.17016 of 2005 was pending before this Court. There cannot be any cavil that the liability of a surety/guarantor under the law is co-extensive with that of the principal debtor held in Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 (supra). It is not possible for the respondents to dispute the execution of the said agreement. Indeed by filing Writ petition No.17016 of 2005 and joining themselves as petitioners with Ch. Tajammal Hussain and Ch. Nayyar Hussain, they admitted the execution of the agreement and being guarantor for the payment of the amount of Rs.200 million as per schedule, which after the plea bargain was accepted, was sought to be assailed and resiled. Besides, the provisions of Article 62(f). and that of Article 63(1)(q) and (r), some parts of the provisions of section 12 of the Representation of the People Act, 1976 are of great relevance, which are as under:-- "

12. Nomination for election.

(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency. (2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall on solemn affirmation made and signed by the candidate, accompany

(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member; (b) Omitted. (c) a declaration that no loan for an amount of two million Rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off; (d) a declaration that he, his spouse or any of his dependents or a business concern mainly owned by him or the aforesaid, is not in default in payment of Government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand Rupees, for over six months, at the time of filing of nomination papers; (e) a statement specifying his education qualifications, occupation; National Identity Card number and National Tax Number, if any, along with attested copies thereof; and (f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding 'thirtieth day of June; Explanation.

For the purpose of this section, the expression

(i) "loan" shall mean any loan, advance, credit or finance obtained or written off on or after the 31st day of December, 1985, but shall not include the loan the recovery of which has been stayed or suspended by any order of a Court or Tribunal, including the High Court and the Supreme Court; (ii) "mainly owned" shall mean holding or controlling a majority interest in a business concern; (iii) "taxes" include all taxes levied by Federal Government, Provincial Government or a Local Government, but shall not include taxes the recovery of which has been stayed or suspended by any order of a Court or Tribunal; (iv) "Government dues and utility charges" shall, inter alia, include rent, charges of rest houses or lodges owned by the Federal Government, Provincial Governments, Local Governments or corporations established or controlled by such Governments, but shall not include the Government dues and utilities charges the recovery of which has been stayed or suspended by any order of a Court or Tribunal " It indeed becomes a duty of the Returning Officer and also of the Appellate Tribunal - as per subsection (5A) of section 14 of the Representation of the People Act, 1976, to reject the nomination papers of a candidate who is a defaulter of loan, taxes, Government dues, utility charges etc. The certificate, dated 3-12-2007 issued by the Punjab Cooperatives Board for Liquidation, goes to show that at present Rs.65.60 million were outstanding, for the repayment of which amount both the respondents, Ch. Mubashir Hussain and Ch. Azhar Hussain were guarantors. The reliance of the learned counsel for the respondents upon clause (i) of Explanation to section 12 of the Representation of the People Act, 1976 is inapt inasmuch as the interim order passed by the learned Division Bench in Writ Petition No.17016 of 2005 on 6-10-2005 was to the effect that respondent No.2 i.e. the National Accountability Bureau "will not initiate any further proceedings against the petitioners till further orders". Such a restraint order is to be construed in the manner that the National Accountability Bureau will not take out any proceedings, but has no effect qua the claim or demand of the Punjab Cooperatives Board for Liquidation who was respondent No.1 in the said petition. Going by the contents of the agreement, it appears to be an admitted liability. The position of the liability of the respondents as guarantors as it stands today, is that out of the sum of Rs.200 million (as per agreement, dated 15-1-2002 a sum of Rs.65.60 million remain outstanding. Surprisingly in the nomination papers filed by the respondents, no reference was made to the said plea bargain agreement i.e. 15-1-2002 nor about the pendency of any writ petition, although a solemn declaration was expected from the candidates as per the provisions of section 12 of the Representation of the People Act; 1976 and even by paragraph 3 of the nomination papers. Thus, very material disclosure was sought to be suppressed and concealed. It is settled by numerous precedents that no one can reap fruits of his deceitful means and retain ill-gotten gains. Moreover, the breathers of contracts have never been encouraged in any society what to say of Islamic Republic. It has been ordained in the Holy Qur'an:-- "O You who believe; fulfil all obligations. (5:1) Keeping all such aspects of the matter in view, we are constrained to observe that the Returning Officer acted erroneously and failed to perform his duty in accepting the nomination papers of both the candidates namely Ch. Mubashar Hussain respondent in E.A. No.194-A of 2007 and Ch. Azhar Hussain respondent in E.A. No.141-A of 2007. The order passed by the Returning Officer, accepting their nomination papers is accordingly set aside. The Returning Officer to make necessary correction as envisaged by Rule 5(6) of the Representation of the People (Conduct of Election) Rules, 1977. In view of the above both these appeals are accepted, rejecting the nomination papers of the respondents. No order as to costs. M.B.A./S-196/L Appeals accepted.