1994 PLP 1163 (CLC)

(i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; (ii) a declaration about his party affiliation, if any; (iii) a declaration that an amount of loan, 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 dependent 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 dependent or a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid." 99.‑ ‑(1) A person shall not be qualified to be elected or chosen as a member of Assembly unless ‑‑ (f) he is sagacious, righteous, non‑profligate, honest, Ameen and pays his debts specified in subsection (2) of section 12." On the same date viz. 19‑8‑1993 the Election Commission introduced certain amendments in the Representation of the People (Conduct of Election) Rules, 1977, relevant for our purposes wherein is an amendment in the nomination form in the contemplation of rule 3 of such rules. In consequence, the expression "amount of loan" occurring in the amended section 12(2)(iii) and (iv) came to be prescribed as an amount of Rs.l million or above. Pursuant to these exercises the respondent No.2 filled and submitted, as said, on 29;8‑1993 the amended version of the form and made the prescribed two declarations as to the loans referred to in the above clauses of section 12 giving out that no such loan was either outstanding or written off as regards himself in the referred context. On 30‑8‑1993 the appellant, who happens to be another candidate from the same constituency, filed objections, submitting that the respondent No.2 was a defaulter of outstandings visualised in section 12(2) (iii) of the Act and with the objections appended some documentary material. In the meantime, however, on 27‑8‑1993 the President had promulgated another amending Ordinance viz. the Representation of the People (Second Amendment ) Ordinance, 1993 whereunder in section 12 of the main Act after subsection (2) the following new subsections were added:‑‑ "(2A) The declaration specified in clause (iv) of subsection (2) shall be made in respect of the loan written off after the twenty‑third day of March 1985. (2B) Where a candidate desires to make payment of any loan specified in clauses (iii) and (iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Officer shall allow such candidate to file nomination paper without the declarations specified in the aforesaid clauses. (2C) Where a candidate pays back the loan in respect of which he has given an undertaking under subsection (2B), the earlier non‑payment or writing off the loan shall not be deemed to be corrupt practice for the purpose of section 78. (2D) Where a candidate does not make payment of a loan in respect of which he has given an undertaking under subsection (2B) within the period specified therein, in addition to any penalty which may be levied upon him under any law for the time being in force, his name shall not be published in the list of contesting candidates required to be published by the Returning Officer under subsection (4) of section 16 nor shall his name appear in the ballot paper." Taking advantage of such second amendment the respondent No.2 on 1‑9‑1993 submitted an undertaking stating, but without specifying any details, that he would "make payment of any loan as is specified in clauses (iii) and (iv) of subsection (2) and subsection (2A) entailing disqualification of a candidate under clause (f) of section 99 of the Representation of the People (Amendment) Ordinance, 1993 before the 13th day of September, 1993". Such undertaking, as stated, was accepted by the learned Returning Officer on 1‑9‑1993 giving rise to the present appeal. In the first place, I would prefer to dispose of the preliminary objection of the respondent No.2 as to the maintainability of this appeal on the ground that the memo. of appeal at the time of presentation was not accompanied by a. certified copy of the impugned order. The substantive provision as regards the right of appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination of a candidate to this Tribunal is contained in section 14 (5) of the Representation of the People Act, 1976. Such section, however, does not make it mandatory for a memo. of appeal to be accompanied by a certified copy of the impugned order. Even so, Rule 5 of the Representation of the People (Conduct of Election) Rules, 1977, does. It enjoins that the appeal would be in the form of a memorandum, state the date of acceptance in rejection of the nomination and the grounds of appeal, besides being accompanied by a‑ certified copy of the order impugned in it. Now it is an uncontroverted position that with the memo. of appeal a certified copy of the order of the Returning Officer is not attached. However at the time of hearing, such a copy has been brought on record. Examining in juxtaposition provisions of the Act and the Rules, I am of the view that the requirement of submitting a certified copy of the impugned order with the memo. of appeal, as spelled out in the foregoing, is a matter of, procedure and not always of substance. This Tribunal, in appropriate cases would, therefore, be competent either to dispense with the submission of such a copy or, if relevant, be equally competent to condone the delay in making compliance. In the interest of justice, I feel inclined to condone the delay in bringing the certified copy in question on record. Delay is condoned. Taking up the merits of the case, learned counsel for the appellant, relying on a Division Bench decision of the High Court of Sindh in the case of Ata Muhammad Mari (Constitutional Petition No. D‑2472/1993), has contended that the undertaking in accordance with the newly‑added subsection (2B) of section 12 of the Act is to be accompanied with the nomination paper and is not to follow it as regards the .time of submission. The observations in the cited precedent lend support to what Mr. Aziz A. Munshi has urged. Looking at the scheme of section 12 itself I am myself of the view that the declarations in subsection (2) of section 12 of the Act or the undertaking is subsection (2B) of the same section are to be made and submitted at the time of filing of the applicable nomination paper. This is clear when attention is, inter alia, focused on the concluding words of subsection (2B) namely, "the Returning Officer shall allow such candidate to file nomination paper without the declarations specified in the aforesaid clauses". Now, in context, the respondent No. 2, who has submitted a counter affidavit, has urged that the fact of promulgation of the Representation of the People (Second Amendment) Ordinance, 1993, was first reported in the National Newspapers and in particular daily `Dawn', Karachi, on 29‑8‑1993 itself when the nomination paper under reference had been lodged, such being the last date for the purpose. While the Gazette Notification is dated 27‑8‑1993, what the respondent No. 2 has sated as regards the appearance of the Press reports seems to be correct. Mr. Wahid Bux Baloch, the respondents learned counsel, adds that Jacobabad where the respondent No. 2 resides and had to file his nomination paper does not get the national dailies till late in the evening and for this reason the respondent No.2 did not come to know of the promulgation of the relevant amendment till the time fixed for filing of nomination papers had expired. Hence the delay. While ignorance of law is no excuse lack of timely knowledge of promulgation of a law can plausibly be 13 pleaded, if circumstantially permissible. I am accordingly of the view that the respondent No. 2, in relation to the short interval of time involved, has been able to plead circumstances in which the amending law came to his knowledge somewhat belatedly. He cannot, if relevant, be penalised for belatedly lodging the requisite undertaking. I am fortified in this view when we advert to the election schedule applicable to the current elections. We find that nomination papers could be submitted apparently from 23‑8‑1993 and up to 29‑8‑1993. Those who had submitted nomination papers prior to the promulgation of the amending law on 27‑8‑1993, therefore, could avail of the amended provision even though they had submitted the relevant form before the date of the promulgation. Whether such a form could or could not be submitted without due declarations in terms of subsection (2) and subsection (2A) of section 12 of the Act though is another matter and that, as would be seen below, was crucial in this case. The declarations by a candidate, as required by section 12 (2) (iii) and (iv) of the Act, it will at once be seen are manifestly positive declarations and in case a candidate is unable to make any of those declarations in the form prescribed by rule 3 of the Representation of the People (Conduct of Election) Rules, 1977, the nomination paper on scrutiny under section 14 (3) (c) would be liable to be rejected for non‑compliance of the applicable mandate in section 12 of the Act. Now the respondent No.2 did render such declarations in his nomination paper submitted on 29‑8‑1993 but that, as seen, occasioned an objection from the side of the present appellant, the objection being taken on 30‑8‑1993. Mr. Wahid Bux Baloch, for the respondent No.2, has maintained before us that he did not receive a copy of the objections. On my part, examining the record I am unable to reach a finding whether a copy was or was not delivered because an authentic acknowledgement is discernible from such record nor any is placed before us. However, cognate copies were delivered with the memo. of appeal at this stage of the proceedings and in the counter affidavit filed by the respondent No. 2 the relevant objections have been disputed. Still, ‑in the same counter‑affidavit, the respondent No.2 has categorically admitted, that he rendered the undertaking in terms of sub section (2B) of section 12 of the Act on 1‑9‑1993 to the Returning Officer and not merely that but has also subsequently paid up the loan so undertaking to be cleared. Here also the respondent No.2, as before the Returning Officer,. did not disclose even the approximate amount of such loan, a situation not dissimilar to that which prevailed in the context of his undertaking before the Returning Officer. In such circumstances, inquiring from Mr. Wahid Bux Baloch, during the course of hearing, we were able to elicit the actual figure of such undertaking and that is factionally over Rs. 1.5 million. What are the consequences of such declarations as aforesaid, the undertaking dated 1‑9‑1993 and the actual payment of the loan by the respondent No .2 are, therefore, matters on which the decision‑of this appeal must rest. The terms of subsection (2B) of section 12 of the Act leave no manner of doubt that a person against whom a loan contemplated by section 12 (2) (iii) is outstanding can be permitted by the Returning Officer to submit a nomination paper without due declaration if, and only if, he gives an undertaking that he would pay up such loan before 13‑9‑1993. The implication is that without such declaration(s) such a person cannot submit a proper nomination paper. Thus if a loan in the referred terms had remained unpaid for a period of one year from due date, the respondent No.2 could not file a valid nomination. Yet in spite of subsequent payment the respondent No.2 did file his nomination. Two things arise from the foregoing: either the nomination paper of the respondent No.2 was invalid without the undertaking in line with the requirement of subsection (2B) of section 12 and/or he made a false declaration in the submission of the nomination paper claiming that nothing in the way of loan, as referred above, remained unpaid in so far as he was concerned. Mr. Aziz A. Munshi has contended that the respondent No.2 made a false declaration and is disqualified from seeking election in line with section 99 (1) (f) of the Act, not being righteous or honest and having failed to pay his debts. as specified in section 12 (2). Correspondingly, Mr. Wahid Bux Baloch has contended that the amount of over Rs.1.5 million was not the initial amount of loan but included the principal amount as well as the interest thereon and being uncertain of the situation the respondent No.2 made his declarations but subsequently also tendered the undertaking. In so far as the question of the implication of the words "loan", "obtained" and "remain unpaid", words occurring in section 12 (2) (iii) and (iv) in the Act, are concerned we have already in the case of Mir Fazile Haq Khan v. Returning Officer (Election Appeal No. NA‑14/1993) held that such words cannot and imply the principal amount as well as interest accruing thereon, remaining unpaid for a period of one year from the due date. Accordingly, on the date the respondent No:2 submitted his nomination paper, he made a wrong declaration and his case falls within the mischief of section 99 (1). (f) of the Act, as the word "honest" occurring in that provision involves ingredients of "full of honour, upright, candid, truthful, ingenuous" etc. The respondent No.2, therefore, incurred the disqualification of section 99 (1) (f) of the Representation of the People Act, 1976, since to yield it is not necessary that the candidate be proved outright dishonest, being less than honest deemed sufficient for the purpose. Correspondingly it must also be found that because a loan in the contemplation of section 12 (2) (iii) was owing and remained unpaid, as referred, by the respondent No.2 and the nomination paper was not accompanied by due undertaking in terms of subsection (2B) of the same section such was not a duly filed nomination paper. This arises because admittedly at the time when the nomination occurred the referred loan had remained unpaid and warranted to be supported by a proper undertaking. As a result I allow this appeal and find that the acceptance of the nomination of the respondent No.2 by the learned Returning Officer was not in accordance with law. JUSTICE MAMOON KAZI (MEMBER).‑‑‑I have read the opinion of my learned brother Mr. Justice Wajihuddin Ahmed, J. but I regret my inability to agree with the conclusions arrived at by my learned brother.

2. Mr. Aziz Munshi has raised a two‑fold contention before us; firstly, that the undertaking given by respondent No.2 before the Returning Officer as contemplated by the newly‑added subsection (2B) of section 12 of the Representation of the People Act, 1976, should have been given by the said respondent at the time of filing of the nomination paper before the Returning Officer and such undertaking given subsequently by him at the time of scrutiny of the nomination paper cannot be regarded as a valid undertaking under the said subsection. Secondly, the contention was that since the said respondent had made a declaration before the learned Returning Officer that no amount of loan as contemplated by clauses (iii) and (iv) of subsection (2) of section 12 of the Representation of the People Act was outstanding against him which was proved to be false by his subsequent undertaking given before the Returning Officer, the said respondent had incurred disqualification under section 99 (1) (f) of the said Act. 3. . So far as the first question raised by Mr. Aziz Munahi is concerned, the same has already been dealt with by my learned brother Wajihuddin F Ahmed, J. in his order dated 12‑9‑1993 and I fully agree with the findings arrived at by him in this regard. However, I am unable to agree with his finding of the second question for the following reasons.

4. The provisions of section 12 (iii) and (iv) clearly indicate that a candidate is liable to sign a declaration referred to in the said provisions showing that an amount of loan obtained from any bank, financial institution etc. in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid does not remain unpaid for more than one year from the due date. The amount prescribed in this regard is rupees one million or more. A candidate is also liable to make such a declaration notwithstanding the fact that such amount was earlier written off. No doubt, in the present case the said respondent is said to have made a declaration that no amount of Rupees one million or more remains unpaid for more than one year from the due date or was written off but in order to show that disqualification has been incurred by the said respondent as contemplated by section 99 (1) (f) of the said Ordinance, it must be clearly established that the liability of the said respondent to such bank or financial institution etc. was rupees one million or money. A counter‑affidavit has been filed by the said respondent before this Court wherein it has been denied that he had obtained a loan of rupees one million or more. The respondent has also questioned the genuineness of the papers submitted by the appellant in this regard before this Court by alleging that the same have been fabricated. No doubt, during the course of arguments the learned counsel for the said respondent when asked to make a statement in this regard stated that the amount of loan outstanding against the said respondent is about Rs.1.5 million but there being no independent reliable evidence produced before us in this regard, it would be highly dangerous to rely upon such statement made by the respondent's counsel. It cannot even be ascertained whether the learned counsel had any authority from the respondent to make such a statement or he was in possession of sufficient knowledge in this regard. It would, therefor, be highly unfair to rely upon the solitary word of the respondent's counsel in absence of reliable and unimpeachable evidence produced before us. The appellant could easily have produced an extract from the statement of defaulters issued by the Banking Council or any other similar document but nothing authentic has been produced before us from where such an inference can be conclusively drawn. In absence of such material it cannot be said that the declaration filed by the said respondent before the Returning Officer was false. No doubt, the respondent did file an undertaking under subsection (2B) of section 12 of the Representation of the People Act but the said undertaking is only to the effect that the respondent undertakes "to make payment of any loan as is specified in clause (iii) and clause (iv) of subsection (2) and subsection (2A) entailing disqualification of a candidate under clause (f) of section 99 of the Representation of the People (Amendment) Ordinance, 1993 before the 13th day of September, 1993". Consequently, the said undertaking given by the respondent under no circumstances, can establish that the declaration earlier given by the respondent was false. I would therefore dismiss the appeal. JUSTICE MUKHTAR AHMED JUNEJO (MEMBER).‑‑‑Having gone through the very elaborate order written by my learned brother Wajihuddin Ahmed, Member and also having gone through a very weighty order authored by my learned brother Mamoon Kazi, Chairman, I am of the view that in such a controversy one should lean towards acceptance of a candidature rather than rejecting it. Consequently, I am of the view that the appeal be dismissed. A.A./114/E Appeal dismissed.