1997 PLP 605 (CLC)

"(1) Is the petition not maintainable for any of the preliminary objections raised by respondent No. l in his written statement? (2) Was respondent No. l a defaulter in terms of section 12 (2) (iii) of the Representation of the People Act, 1976 on the date of filing the nomination form? (3) Has respondent No. 1 sworn a false affidavit pertaining to his not being a defaulter and is, therefore, guilty of corrupt practice in terms of section 78 (31(d) of the said Act? (4) Relief?"

7. In support of this case, the petitioner examined Mr. Muhammad Ashfaq Baloch, Additional District and Sessions Judge and Assistant Returning Officer for Minority Seats for the whole of Sindh, as P.W.1 and himself as P.W.2 A number of documents have been brought on record through these witnesses. Respondent No. l has examined only himself on affidavit in which he has said nothing except that he was adopting his written‑statement. He was thoroughly cross‑examined by learned counsel of the petitioner. My findings are as follows.

8. Issue No. l.‑‑(Is the petition not maintainable for any of the preliminary objections raised by respondent No. l in his written statement?). The onus of this issue being on respondent No. 1, it was for his learned counsel to show as to how the petition was not maintainable in view of the preliminary objections raised by him in the written statement but learned counsel of respondent No. 1. did not say anything in this regard either in his oral submissions or in the voluminous written arguments later placed by him on record. I have, however, gone through the first three pages of the written statement in which these preliminary objections have been raised and I find them to be of no substance. The issue is therefore decided in the negative and against respondent No. 1.

9. Issue No. 2.‑‑(Was respondent No.l a defaulter in terms of section 12 (2) (iii) of the Representation of the People Act, 1976 on the date of filling the nomination form?). According to the petitioner, respondent No. l is defaulter in terms of section 12 (2) (iii) of the Representation of the People Act, 1976 in respect the three loans referred to in para.2 above. Election of respondent No.l is challenged only on the basis of this alleged default, before I take‑up these loans in seriatim, I would dilate upon some provisions of relevant law which learned counsel of the petitioner had interpreted in his own way and had made those interpretations the basis of making respondent No. l a defaulter.,

10. The two words on the connotation of which learned counsel of the petitioner laid great emphasis are "shares" and "business concern" used in the explanation at the end of section 12 of the Representation of the People Act, 1976. This explanation is not in respect of subsection (7) but in respect of the whole of section

12. Learned counsel is of the view that since the word "shares" is used in plural, it refers to the share‑capital of a limited company and not to 'share' of a partner in the partnership business. He is also of the view that the phrase "business concern" does not refer to partnership business but to a limited company.

11. As for the connotation of the word "shares", learned counsel refers to the definition of 'share' given in section 2 (35) of the Companies Act as well as in Black's Law Dictionary and insists that the word as used in the "explanation" at the end of section 12 can only refer to share capital of a limited company and cannot refer to the shares of partners in a partnership business because a partner can only have one "share" in the business and not "shares". This contention is totally erroneous and fallacious. It is totally uncalled for even to glance at the definition of "share" in the Companies Ordinance, 1984. That definition is only for the purposes of that Ordinance and is irrelevant in other contexts. The use of the word in the 'explanation' in 'plural' is no indicator that it refers to share capital of a company. In my view the word "shares" denotes the shares of the partners in a partnership concern although it may also refer to share capital of a limited company. In section 12 (2) (iii) and section 12 (2) (iv) there is a reference to any loan in the name of the (i) candidate, (ii) his spouse, (iii) his dependents and (iv) any business concern mainly (51 % or more) owned by the aforesaid. A partnership concern may have as its partners not only the candidate himself but also his spouse and his dependents (any number of them). Cumulatively their shares shall have to be, per force, referred to in the plural. As a matter of fact, the word 'share' could not be used in singular number in the explanation as that would have changed its complexion.

12. The second term to which learned counsel of the petitioner gave his own interpretation is the phrase "business concern" used at various places in section 12 of the Act. According to learned counsel this term refers to a limited company. Learned counsel could not substantiate his argument by reference to any law, whether Codified Law or Case‑Law. In popular parlance the term encompasses a single proprietary firm and a partnership business and there is no reason why any other meaning may be read into it. If we stretch its meaning a good deal, we may include in the definition a Joint Stock Company too but the plain connotation of the term is "a sole proprietary firm or a partnership firm".

13. I would not take‑up the three loans on the basis of which the petitioner seeks the ouster of respondent No. 1 from the political arena. Loan No 1 Amount of Loan Loan of Indus Oil Mill 1.92.5 million

14. It is an admitted position that Indus Oil Mill is a partnership firm consisting of two partners who are Mrs. Kanta Bai w/o Ashok Kumar (brother of respondent No.l) and Mrs. Pama w/o respondent No.l. It was for the petitioner to show that the spouse or dependents of respondent No. l had 51 % or more share in M/s. Indus Oil Mill but it was left to learned counsel of respondent No.l to bring relevant evidence on record through the cross-examination of petitioner himself who first said that he did not know what was the share of Mrs. Pama the spouse of respondent No.l but then conceded that she had 50 % share. This position also stands established from the certificate dated 26‑8‑1993 of National Bank of Pakistan (Exh.l/A/3 page 11 of evidence file) which the Assistant Returning Officer (P.W.1) had produced and also by the partnership‑deed Exh.P‑

15. Now, Mrs. Kanta Bai, the other partner, even though she is wife of the brother of respondent No. 1, has not been shown to be a dependent of respondent No.

1. In his written statement, which has been made part of evidence per averment in his affidavit‑in‑evidence, Respondent No. l states that his brother Ashok Kumar and his wife Mrs. Kanta Bai are not his dependents, that both of them own agricultural land and both pay land revenue as well as income‑tax, that Ashok Kumar is a medical practitioner and owns a hospital as well (page 7 of the written statement). He was not cross‑examined on these everments which must be deemed to have been admitted. In view of this factual position, it follows that no dependent of respondent No. l owns any share in this business concerned and his spouse owns 50 % share in it and since this 8 share is less than 51 % share, it follows that this business concern is not "mainly owned" by respondent No. l and, therefore, this loan does not come within the mischief of sections 12 and 99 of the Representation of the People Act and as such, even though the loan of this business concern may be more than rupees one million, it cannot be pressed in service to disqualify respondent No. l from contesting the election.

15. Besides, the contention of learned counsel of respondent No. 1. seems to have force that being under debt or taking loan is, by itself, not a disqualification under any provision of the Representation of the People Act but that the disqualification consists of the debt remaining unpaid for more than one year from the due date but the petitioner has failed to show‑‑let alone establish beyond any shadow of doubt‑‑‑‑as to what was the due date and that the loan had remained unpaid for more than one year from the due date. As a matter of fact, the certificate of National Bank of Pakistan dated 26‑8‑1993 (Exh. P/4) shows that the loan was sanctioned in the sum of Rs.6 million on 3‑5‑1987 and the repayments were being regularly made with the result that after six years the outstanding liability of the Mill had come down to Rs.19,25,141 and the 'due date' had not yet arrived. This view also finds support from the fact that the list Exh. 1/D, issued by National Bank and which was, according to Returning Officer P.W.1 Muhammad Ashfaq Baloch, part of the list sent by the Banking Council to him, does not list Indus Oil Mills as one of the defaulters.

16. Learned counsel of the petitioner has also argued that the liability of the partners is unlimited under section 25 of the Partnership Act and in this regard reference is also made to the judgment reported as PLD 1966 Karachi 289 (Suliman Ibrahim Co. v. NJ/s. Eastern Rice Syndicate), AIR 1940 Sindh 19 (M/s. Fateh Chand Khub Chand v. Firm M/s. UNAO Commercial Bank Cawnpore), AIR 1939 Nagpur 31 (Suwalal Vemichand v. Fazle Hussain Rajabali Bohra), AIR 1936 Patna 539 (Balabub Marwari v. Inder Kumar Tewari). There is, of course, no doubt that in a partnership firm the liability of a partner is unlimited but I fail to see the relevancy of all this talk of the unlimited responsibility of a partner of a partnership firm. In the present context, reference to Partnership Act is totally beside the point. We are only concerned with the disqualifications of a candidate under the Representation of the People Act, 1976 and we need not look beyond this law. Mst. Pama may be liable to the last drop of her blood for the liabilities of the firm but this shall be relevant when she, as a partner, or the firm itself, is sued in a Court of Law but all this appears to be totally irrelevant here. As learned counsel of respondent No. 1. has put it, there is no basis for making the civil liability of a person‑ co‑extensive with his election qualifications in the absence of a clear statutory directive.

17. As such, respondent No. l cannot be disqualified on the basis of this loan of Indus Oil Mills. Loan No. 2 Loan of K.K. Cotton Amount of Loan Factory, Mirpurkhas 3.177 Millon

18. It is an admitted position that this is a partnership firm consisting of three partners‑‑‑‑respondent No.l and his brothers Ashok and Ramesh. In the last para. at page 7 of his written‑statement, which has been made part of his affidavit‑in‑evidence, respondent No.l says that his brother Ramesh is 35 years of age, a mechanical engineer and a man of independent means and pays land revenue and income‑tax and so is the other brother Ashok and both of them are not his dependents and the share of respondent No.l is only one‑third (or about 33.3 %) which is much below the minimum requirements for disqualification and that, in case, the loan is neither in the name of respondent No. l or even in the name of the firm Exh.P/7 is copy of partnership‑deed an& although it does not specify the share of the three partners, it can be deduced from its clause (4) that all the partners had equal or 33.3 % because clause (4) stipulates that net profit would be divided equally amongst the three partners. Besides, the petitioner admits in his cross‑examination (last lines of the first page of his cross‑examination) that all the three partners of Ms. K.K. Cotton Factory hold equal' shares. Since the other two partners, even though brothers of respondent No. 1, are men of independent means and cannot be termed as "dependents" of respondent No.l, their shares must be excluded which leaves respondent No.l with only 33.3. % share. This loan, therefore, must also be ruled out as a cause of disqualification of respondent No. l under sections 12 and 99 of the Act.

19. Besides, certificate of National Bank of Pakistan, dated 26‑8‑1993 (Exh.l/A/3 or Exh. P/4 both are the same documents) shows that the loan was neither taken by any of the three partners or even by the firm but by the cotton growers and two of the three partners (respondent No. l and Ashok Kumar), had, in their personal capacity, stood guarantee for the borrowers. Respondent No. l is, thus, one of the two guarantors of the loan. Learned counsel of the petitioner insists that even if respondent No. l had not taken the loan and had merely furnished personal guarantee, he becomes the principal borrower, and subject to all the liabilities as a borrower, the moment the borrowers (the cotton growers) become defaulters. No doubt it is so. Respondent No. l is covered by the definition of "borrower" as given in section 2 (b) of the Banking Companies (Recovery of Loans) Ordinance, 1979 but this has no bearing on his eligibility or otherwise under section 12 of the Representation of the People Act, 1976. In this regard, the law is now well‑settled after the judgment of the Supreme Court in the case of Ghulam Mustafa Jotai v. Additional District and Sessions Judge Naushero Feroze Returning Officer reported as 1994 SCMR 1299. In this judgment, a Full Bench of the Supreme Court has held that:‑‑ "The language employed in clause (iii) of subsection (2) of section 12 of the (Representation of the People Act), does not admit the inclusion of a guarantor for the following reasons:‑‑ (i) That the words ' in his own name or in the name of his spouse or dependent or any business concern mainly owned' negate the inclusion of any other category of persons. (ii) The above clause has categorised the persons who are covered by the same, namely, the candidate should have taken the loan himself or his spouse or dependent or any business concern in which he owns shares of 51 per cent. or more as provided for in the Explanation to sub section (7) of section 12 of the Act incorporated by Ordinance No.XX of 1993." For this reason also this loan must be ruled out as the ground for disqualification of respondent No. l under sections 12 and 99 of the Representation of the People Act, 1976.

20. Exh.l/A/2, which has again been exhibited as Exh. P/3, is a letter dated 28‑6‑1993 from Agricultural Bank of Pakistan to M/s. K.K. Cotton Factory in which the factory is informed that the loan would fall due on 7‑7‑1993 and the cotton growers (the borrowers) be directed to pay it in time. Respondent No. 1 stated in his cross‑examination that he was not sure whether he had received this letter although he admitted that the growers owed Rs.4.195 million to Agricultural Bank and his firm had stood surety for the amount. I do not understand why learned counsel of the petitioner adverted to this loan. It had fallen due on 7‑7‑1993 and even on the date of election only three months had passed since the due date. It was down right irrelevant to refer to this loan. Loan No.3 Sindh Cotton Ginning Amount of Loan Factory, Khipro 0.400 Million

21. There is, in fact, no evidence in respect of this loan and learned counsel of the petitioner had candidly conceded to this position. It may, however, be stated hat respondent No.l has stated in his written statement that here were three partners in M/s. Cotton Ginning Factory, Khipro; respondent No.l himself, his daughter Pirmilla and one Mr. Lekho and all of them held equal shares and that Mst. Pirmilla was a married woman and a person of independent means, that she was a land 'owner and paying land revenue as well as income-ax, and therefore, she could not be considered as dependent of respondent No. l which meant that respondent No.l had a mere 33.3% share in this business concern and since this is less than the requisite 51 % share, any loan, even if outstanding against this business concern, is irrelevant for purpose of disqualifying Respondent No. l from contesting the election. As stated earlier, the written statement has been made part of affidavit‑in‑evidence of respondent No. l and the petitioner has failed to rebut this evidence or to even cross-examine respondent No. 1 in this regard and, therefore, this assertion of respondent No. l shall be deemed to have been admitted by the petitioner. This loan is, therefore, ruled out as a ground of disqualification of respondent No. l under sections 12 and 99 of the Representation of the People Act, 1976.

22. It was not the case of the petitioner that respondent No. l had anything to do with the business concerns known as Saeed Khan & Co. and Khuda Bux & Company. These names do not find any place in the election petition. However, in the computer print Ex. l/D, which was produced by the Assistant Returning Officer and described as a portion of the list received by him from the Banking Council, these two business concerns are listed at and Serial Nos. 5 and 6 and Kishanchand Parwani, is shown as their director. On the basis of the appearance of the names of these two business concerns in Exh. 1/D learned counsel of the petitioner insisted that respondent No. l was a defaulter with respect to these two business concerns and, therefore, he should be declared as disqualified to contest election. It is a settled principle of law that no person can lead evidence beyond his pleadings and if any such evidence is brought on record it must simply be ignored. As such, the names of these two business concerns in Exh. 1/D must be ignored. Since the petitioner had not alleged in the election petition that respondent No. l had anything to do with these two business concerns, respondent No. l had not, obviously enough, stated anything in this regard in his written statement either nor he had said anything in this regard in his affidavit-in‑evidence. However, after Exh, 1/D had been brought on record, respondent No. l filed additional affidavit‑in‑evidence on 5‑6‑1994 in which he denied that he had anything to do with these two business concerns. In para.9 of this additional affidavit‑in‑evidence, respondent No. l had even given the names of the various partners of these two business concerns and in support of this assertion, respondent No. l had also filed two certificates, dated 29‑5‑1994 from National Bank of Pakistan, Sanghar certifying the names of the partners of these two business concerns which show that neither respondent No. l nor his spouse nor any of his dependents was a partner in these two business concerns. Vide order, 25‑8‑1994 1 did not allow this affidavit‑in‑evidence to be brought on record because the evidence of Exh. 1/D, in so far as it related to these two business concerns, was out of the pleadings and, therefore, it deserved to be excluded from evidence and, therefore, there was no necessity for respondent No.l to file this additional affidavit‑in‑evidence to rebut the evidence of Exh. 1/D, I am still of the view that no reference can be made to these two business concerns because nothing was said about them in either the election petition of affidavit‑in‑evidence of the petitioner. Alternately, the certificates of the National Bank of Pakistan, Sanghar (clearly show that respondent No.l had nothing to do with these two business concerns. Thus, there is no question of his being disqualified on the basis of the contents of Exh. 1/D. It appears that it has been inadvertently mentioned in Exh. 1/D that Kishanchand is director or proprietor of these two business concerns.

23. As a result of above findings, it follows that respondent No.l was qualified to stand for the election of the National Assembly and he was not a defaulter in terms of section 12 of the Representation of the People Act, 1976. As a result the petition fails and is dismissed. By order of the Chief Election Commissioner. A.A./140/E Election petition dismissed.