P L D 2008 Lahore 134 (PLP)

The petitioner filed nomination papers for contesting elections scheduled to be held on 8th of January, 2008 for the National Assembly seat NA-107 (Gujrat IV), before the Returning Officer. The objections raised by respondent No.2 were rejected by the Returning Officer and consequently the nomination papers of the petitioner were accepted. Respondent No.2 filed an Election Appeal bearing No.194-A/2007 which came up for hearing before a Division Bench of this Court. The appeal filed by the said respondent was accepted vide order dated 11-12-2007, as a consequence whereof the nomination papers of the petitioner were rejected. The petitioner has approached this Court through the instant constitutional petition being aggrieved of the order of acceptance of the appeal filed by respondent No.2.

2. The learned counsel for the petitioner has argued that the petitioner is not a defaulter of any loan and that the Election Tribunal in summary proceedings failed to appreciate that the alleged liability under the agreement dated 15-11-2002 did not fall within the definition of a defaulted loan or unpaid Government dues and taxes etc. He has further argued that the liability under the alleged agreement is questionable as in the first place the same does not qualify as a loan or Government dues and secondly the matter regarding the said agreement is sub judice before a Division Bench of this Court in Writ Petition No.17016/05. Further maintains that even if it be assumed for the sake of arguments that the amount claimed by respondent No.3 is a loan or Government dues, the learned Tribunal has erred in law by not considering the fact that the Division Bench of this Court in the aforesaid writ petition has granted a stay order.

3. We have heard the learned counsel at length and have gone through the documents placed on the record including the order of the learned Election Tribunal.

4. Under section 14(3)(c) of the Representation of the People Act, 1976 the Returning Officer while conducting summary proceedings is under an obligation to satisfy himself and to ensure that the provisions of section 12 or 13 are complied with and no false and incorrect declaration of statement is made in respect of any material particular. In the course of scrutiny he may direct any Agency or Authority to produce relevant document or record. Section 5-A of the Representation of the People Act, 1976 confers powers on the Tribunal to reject nomination papers of a candidate who is a defaulter or suffers from any disqualification. The petitioner entered into a plea bargain agreement dated 15-1-2002 whereby he agreed to the following:-- "We Ch. Mubashar Hussain and Ch. Azhar Hussain agree to be 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 petitioner has not denied executing the said agreement or letter/certificate dated 29-11-2007 issued by the Punjab Cooperatives Board for Liquidation wherein it is stated that the case was settled as a plea bargain and that Ch. Mubashar Hussain-petitioner and Ch. Azhar Hussain stood guarantors in that agreement.

5. From the above it is manifest that the petitioner and Ch. Azhar Hussain stood guarantors/sureties to the extent of liability of Ch. Tajammal Hussain and Ch. Nayyar Hussain in the amount of Rs.200 million. There is no cavil with the proposition that liability of a guarantor under the law is co-extensive with that of the principal debtor as has been held by the honourable Supreme Court of Pakistan in the case of Rafique Hazquel Masih v. Bank Alfalah Limited and others (2005 SCMR 72). The learned counsel for the petitioner has neither disputed the execution of the aforesaid agreement nor has he denied the position, of law regarding liability of a guarantor as settled by the honourable Supreme Court of Pakistan in the judgment mentioned supra. In the aforementioned writ petition. Ch. Mubashar Hussain the petitioner is cited as a petitioner along with Ch. Tajammal Hussain and Ch. Nayyar Hussain and has not denied the execution of the agreement and being a guarantor for the payment of the aforementioned amount as per schedule. However, the stand taken by the petitioner in the writ petition was that he had been coerced to enter into plea bargain. The same stand has been taken by the learned counsel for the petitioner before us as well. Without further dilating upon the matter, suffice it to say that the matter regarding the plea of coercion belongs to the realm of a factual controversy which cannot be resolved by this Court in its constitutional jurisdiction.

6. On perusal of the relevant provision of law (sub section (5-A) of section 14 of the Representation of the People Act, 1976) it is evident that the Returning Officer as well as the Election Tribunal is under a legal obligation to reject the nomination papers of a candidate who is a defaulter of loan, taxes, Government dues, utility charges etc. A certificate issued by the Punjab Cooperatives Board for Liquidation dated 3rd December, 2007 reveals that currently Rs.65.60 million are outstanding for repayment of which the petitioner as well as Ch. Azhar Hussain stood gurantors. The argument that the learned Election Tribunal has failed to take into consideration true import of Clause (i) of Explanation to section 12 of the Representation of the People Act, 1976 is without any substance inasmuch as the interim order passed by a Division Bench of .this Court in the aforesaid writ petition on 6-10-2005 was only to the effect that the National Accountability Bureau will not initiate any further proceedings against the petitioner till further orders. The said order, obviously has no effect vis-a-vis the claim or demand of the Punjab Cooperatives Board for Liquidation. We do not feel any hesitation in holding that in terms of the aforesaid agreement the liability is an admitted one which in so far as the petitioner is concerned, stands at Rs.200 million and a sum of Rs.65.60 million remains outstanding. It has been noticed by us that in the nomination papers filed by the petitioner neither any reference has been made to the plea bargain agreement dated 15-1-2002 nor about the pendency of the aforementioned writ petition although in terms of section 12 of the Representation of the People Act, 1976 as well as para-3 of the nomination papers, a solemn declaration had to be made by the petitioner being a candidate in the forthcoming elections. Undoubtedly the petitioner has suppressed and concealed a material disclosure. The very act of non-fulfilment of obligation by the petitioner is not only in breach of the contract but is against the injunctions of Islam which require a person to fulfil all his obligations.

7. In view of what has been discussed above, we are constrained to hold that the Returning Officer while accepting the nomination papers of the petitioner had acted in an erroneous manner and had failed to perform his duty. On the contrary the order of the learned Election Tribunal is well reasoned and based on logical and legal conclusions. We have not been able to find any fault in the aforesaid order which would warrant interference by this Court in its constitutional jurisdiction. Therefore, we uphold the order of the learned Election Tribunal impugned in this petition and set aside the order passed by the Returning Officer whereby he accepted the nomination papers of the petitioner. S.A.K./M-594/L Petition dismisse