1994 PLP 415 (MLD)

SARDAR MUHAMMAD DOGAR, J: --Dilawar Mahmood, Ch. Ahmed Hassan and Babu Muhammad Munir had filed nomination papers alongwith others, for contesting election from.P.P.90 Gujranwala-XIV. Ch. Ahmed Hassan and Dilawar Mahmood objected to the acceptance of the nomination papers of Babu Muhammad Munir. Their objection, in nutshell was that he was a Director of Pasban Cooperative Society which failed to return the amounts of the depositors and in consequence thereof was declared as Undesirable Society through a notification issued by the Registrar Cooperative Societies, Punjab, Lahore. The learned Returning officer ruled out the objection and accepted the nomination papers of Babu Muhammad Munir, respondent No.1. Not feeling satisfied with the acceptance of the nomination papers of Babu Muhammad Munir, Dilawar Mahmood has preferred Appeal No.18 while Ch. Ahmed Hassan has filed Appeal No.40 of 1993. As common question of law and facts has been raised in both the appeals the same are being disposed of together.

2. The learned counsel appearing for the respondent in both the appeals did not deny that Babu Muhammad Munir respondent, was a Director of the Pasban Cooperative Society. He also did not deny that the functioning of Pasban Cooperative Society had stopped due to failure on its part to pay back the deposits, nor did he deny that the notification was issued wherein the .Pasban Cooperative Society was also declared as Undesirable alongwith others and the assets and properties of the Directors were made non-transferable. Nonetheless learned counsel for the respondent took up the plea that mere fact that the respondent was a Director of the Pasban Cooperative Society, which was declared Undesirable, was no ground to reject the nomination papers as he had neither taken any loan from any Bank or institution nor had committed any default. Learned counsel contended that even if it is assumed that Pasban Cooperative Society had failed to pay back .the deposits, the entire responsibility cannot be placed on the shoulders of the respondent just for being a Director. According to him, the whole matter of the Cooperative Societies has been entrusted to a Cooperative Board headed by a Judge of the Supreme Court which will fix- and assess the liabilities of the Directors and share-holders of the Cooperative Societies and suggest ways and means to pay back the deposits. Ordinance No. XX of 1992, which was Promulgated on 16-5-1992, vide which a Cooperative Board was constituted, became an Act later and was enforced as Punjab Undesirable Cooperative Societies (Dissolution) Act (No. I of 1993). The provisions of subsection (1) of section 18 of the said Act read as follows:- "

18. Confiscation of assets. etc: =-(1) Where any Director, officer or agent of an Undesirable Cooperative Society or any other person, body, company or firm is found to be in possession of any property or assets on behalf of such Director, officer, agent or such society for the pecuniary resources of which such Director, officer, agent, person, body, company or firm cannot satisfactorily and reasonably account for or holds property disproportionate to his or its known sources of income, it shall be presumed, unless the contrary is proved, that such Director, officer or agent, person, body, company or firm has acquired such property and assets by misappropriating the funds of such society." (We may note here that provisions of Section 18 of the Act are similar to the provisions of section 18 of Ordinance NO.XX of 1992). It is obvious from the above reading that presumption is, that the Directors, officers, agents, shall be presumed to have misappropriated the funds, assets and property of the Society, unless proved to the contrary. That being so, the Directors cannot be absolved of the responsibilities and liabilities. The same is the position of the respondent. It is a fact publicly known that all Cooperative Societies including the Pasban Cooperative Society, of which the respondent was a Director, had been working like banks and receiving deposits by opening regular accounts. We, therefore, find no difficulty in observing that the Promotors, Directors and the share-holders of the Societies, including the one of which the respondent was a Director, were the trustees and Ameens of the deposits. The fact that Pasban Cooperative Society, stopped functioning and the fact that 'it was declared Undesirable, shows that the Directors and other share-holders had failed to discharge their responsibility of returning the deposits to their customers and thus had proved themselves to be unreliable trustees and Ghair Ameens. Sub-clause (f) of Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973, reads as follows:

"(f) he is sagacious, righteous and non-profligate and honest and Ameen." The conditions laid down for qualifications to contest election, in the above clause stand incorporated also in clause (f) of subsection (1) of section 99 of the Representation of People Act, 1976. Since the respondent had failed to discharge the responsibility of Ameen, he stands disqualified from contesting election to the Assembly. His nomination papers were, therefore, accepted unlawfully and wrongly. As such both the appeals are allowed. The nomination papers of the respondent shall be deemed to have been rejected. H.B.T./103/E Appeal accepted.