2013 PLP 1068 (CLC)

Through the impugned order dated 15-4-2013, learned Election Tribunal of this Court rejected the nomination paper of the petitioner on the ground that petitioner had got a loan written off. Therefore he was disqualified from contesting elections in terms of Article 63 (1) (n) of the Constitution of Islamic Republic of Pakistan, 1973.

2. Learned counsel for the petitioner submits that in the first place the petitioner is a shareholder of Messrs Transtech (Pvt.) Ltd. only to the extent of 30% of the total shareholding. He does not hold controlling interest in the Company and therefore cannot be saddled with the liability of payment of a loan availed by the Company. He further submits that the loan in question was partly written off pursuant to an application moved by the Company under the BPD Circular No.29/2002 dated 15-10-2002. He therefore submits that the loan being written off was a legitimate exercise permitted by law and enjoys protection of being a legitimate transaction approved by the State Bank of Pakistan.

3. The learned counsel for the respondent on the other hand has produced the order sheet of the august Supreme Court of Pakistan in Suo Motu Case No.26 of 2007. Through the said order the Supreme Court of Pakistan has constituted a Commission headed by Mr. Justice (R) Syed Jamshed Ali, under the name of "Commission On Written Off Loans". The mandate of the Commission, inter alia includes identifying and investigating cases where loans were written off, unlawfully for political considerations or under political pressure.

4. The learned counsel further submits that all loans written off by any of the Circulars including BPD Circular No.29/2002 are under scrutiny by the Commission, therefore the same cannot enjoy the protection canvassed by the learned counsel for the petitioner. He, therefore, submits that petitioner's case squarely falls within the ambit of Article 63(1)(n) of the Constitution. Therefore, the order dated 6-4-2013 passed by the Returning Officer was valid and sustainable.

5. Learned Standing Counsel appearing on behalf of Federation, as well as, for the Attorney-General for Pakistan in response to notice under Order XXVII-A, C.P.C., supported the case of the petitioner and submitted that the written off loans mentioned in Article 63(1)(n) of the Constitution are the ones covered under section 8 of The Financial Institutions (Recovery of Finance) Ordinance, 2001 ("FIO").

6. We have heard learned counsel for the parties and gone through the record.

7. In the first place, admittedly the shareholding of the petitioner is not more than 30% of the total shareholding in the Company. It is not argued that the and Company is a family owned concern. The petitioner does not hold controlling interest in the Company. Therefore, he cannot be said to have obtained the loan for himself in terms of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973. Further the Company is not owned or controlled by the spouse or dependent children. Therefore, he cannot be held liable for the amounts owned by the Company.

8. The learned Standing Counsel, representing the Federation submits that so far the report of the aforesaid Commission has not been finalized and placed before the Hon'ble Supreme Court of Pakistan. There is no adverse order or recommendations of the Commission against the respondent. Therefore the order through which the loan of the Company was written off cannot be termed as an unlawful order.

9. As far as the argument of the learned counsel for respondent No.3 that the case of the petitioner has been reopened and is under scrutiny by the Commission on Written Off Loans is concerned, suffice it to say that the mere fact that a Commission has been constituted, which is examining/scrutinizing matters is not sufficient at this stage to cast any shadow on the validity or legality of the written off loans under BPD Circular No.29/2002.

10. In any event, even if a recommendation is made by the afore-noted Commission to the concerned Banks to recover any loan, that may have unlawfully been written off, the same would prima facie be governed by the provisions of "FIO". Section 8 of FIO provides for filing suits for recovery of written off finances. However, the said section can only be invoked and the recovery suit can only be filed where the amount written off, released or adjusted is for political reasons and factors other than bona fide business considerations. Further, such written off loans must pertain to the period from January, 1990 to 2001.

11. In the present case written off was availed by the petitioner under BPD Circular No:29/2002 validly issued by the State Bank of Pakistan. The said Circular has not been struck down by any Court of law and does not fall under the categories of written off loans mentioned in section 8 of the FIO, hence no recovery suit under the aforesaid section of FIO can be instituted against the petitioner. Therefore, the written off loan availed by the petitioner is permissible under the law. The reference to written off loans in Article 63(1)(n), therefore, envisages loan written off due to political consideration or loan lacking bona fide business consideration.

12. Admittedly, the Commission on Written Off Loans has not so far made any recommendation involving the petitioner or the Company of which the petitioner is a shareholder. In these circumstances, the umbrella of protection provided under BPD Circular No-.29/2009 by way of legitimate written off, duly approved by the State Bank of Pakistan continues to be available to the petitioner and pendency of the question before the Commission on Written Off Loans does not furnish basis for rejection of the nomination paper of the petitioner or visiting him with the consequence of disqualification in terms of Article 63(1)(n) of the Constitution of Islamic Republic of Pakistan, 1973.

13. For the reasons recorded above, the impugned order dated 15-4-2013 passed by the learned Election Tribunal of this Court is set aside.

14. The Returning Officer, PP-262, Tchsil Karor, District Layyah is directed to include the name of the petitioner in the list of eligible candidates in terms of section 15 of the Representation of the People Act, 1976. The Returning Officer shall also allot a symbol to the petitioner. If the petitioner produce a certificate of a party he shall be allotted the symbol of such party unless it has already been allotted.

15. It is however clarified that in case, at any subsequent stage, the august Supreme Court of Pakistan issues any adverse order with reference to the petitioner or the legality of BPD Circular No.29/2002, the Election Commission of Pakistan shall not be precluded from exercising its powers in accordance with law in terms of Representation of the People Act, 1976.

16. Notwithstanding anything stated above, it is clarified that the findings recorded and observations made herein are based only on a tentative assessment of the material before us, in the facts and circumstances brought to our notice for the limited purpose of deciding this petition. The Election Commission of Pakistan shall, however, be at liberty to independently exercise its powers on the basis of material before it and take appropriate proceedings and/or pass orders on the application of any interested party under the provisions of Representation of the People Act, 1976 without in any way being influenced by this order.

17. Petition is allowed. MWA/M-102/L Petition allowed.