2003 PLP 749 (YLR)

3. In the memo. of petition before us, the petitioner has stated in detail the relevant facts to justify his stand that his nomination papers were not hit by the provisions of section 99(s) of the Act of 1976. He not only disputed the liability of partnership firm Messrs Al‑Waqar Transport Company as an outstanding liability against him on various grounds but also pleaded that before rejection of his nomination paper one of the partners of that firm had deposited Rs. 8,00,000 with respondent No.4 bank whereby the liability due against the firm at the time of rejection of his nomination paper had become less than the limit of Rs. 2 million. The petitioner had also placed on record several other documents to show that after deposit of Rs. 8,00,000 on 28‑8‑2002, and rejection of his nomination papers by respondent No.3, the remaining outstanding sum of Rs.19,29,067 due against Messrs Al‑Waqar Transport Company was also deposited on 5‑9‑2002, and such clearance certificate issued by respondent No.4 was also placed on record before Appellate Tribunal to show that nothing was outstanding against the petitioner to attract the disqualification provided under section 99(s) of the Act of 1976 or Article 8D(2)(o) of C.E.O. No.7 of 2002.

4. Mr. Abdul Hafeez Pirzada, learned counsel for petitioner contended that at no point of time the petitioner had admitted the loan liability of firm Messrs Al‑Waqar Transport Company as liability outstanding against him as neither he was partner of that firm nor after attaining majority in the year 1992 Mrs. Shehzad Khuhro was dependent on the petitioner. Mere fact that at the time of obtaining loan the petitioner acted as her guardian will not mean that even after attaining the age of about 28 years and her marriage she was dependent on the petitioner. He further contended that from bare reading of section 99(s) of the Act of 1976 and paragraph 53 of the Manual of Instructions it is evident that disqualification provided under this provision of law was bracketed with minimum. outstanding loan of Rs.2 million obtained from any bank, financial institution, cooperative society or cooperative body, which had remained unpaid for more than one year from the due date or was got written off and such disqualification can be escaped on repayment at any time before rejection of nomination papers. While in the present case admitted position is that before the last date of scrutiny the borrowers had deposited a sum of Rs. 8,00,000 with respondent No.4 whereby the outstanding loan by that time had gone below Rs.2 million and thus disqualification envisaged under the above referred provision of law was not attracted. He also contended that proceedings in appeal before the Tribunal were in continuation of the original proceedings and at that stage even the remaining loan of firm Messrs Al‑Waqar Transport Company claimed by respondent No.4 was cleared by the borrowers and thus in view of the clear language of paragraph 53 of the Manual of Instructions issued by the Election Commission of Pakistan the nomination paper of the petitioner could not have been rejected due to such default or ought to have been accepted at appellate stage. He also urged that the provisions of section 99(1A)(s) of the Act of 1976 have been pressed into service against the petitioner by respondents Nos. 2 and 3 in his capacity as alleged guarantor through this provision of law only relates to borrower, his spouse of any of his dependants and not to the guarantor. Referring to the impugned order passed by the respondent No.2 learned counsel lastly contended that observations/remarks against the petitioner are unjust and uncalled for in the circumstances.

5. Syed Zaki Muhammad, learned Dy. A.‑G. for the Federation of Pakistan and Mr. Sarwar Khan, Additional Advocate‑General, Sindh did not dispute that after deposit of Rs.8,00,000 before the last date of scrutiny and further on deposit of remaining outstanding sum of Rs.19,29,067 and even the other sums of Rs.23,510 and Rs.11,755 the petitioner was absolved from disqualification prescribed under section 99(s) of the Act of 1976.

6. We have carefully considered the contentions raised before us and perused the case record. In order to appreciate properly the contentions of Mr. Pirzada in the context of relevant provisions of the Act of 1976 and Manual of Instructions issued by the Election Commission of Pakistan it will be advantageous to reproduce the same as under:‑‑ SECTION 99 (1A)(s): "

99. Qualification and disqualification..‑‑‑

(1A) A person shall be disqualified from being elected as, and from being, a member of an Assembly, if‑‑

(s) has obtained a loan for an amount of two million rupees or more from any bank, financial institution, cooperative society or cooperative. body in his own name or in the name of his spouse or any of his dependents, which remains unpaid for more than one year from the due date or has had such loan written off. Paragraph 53: "

53. Where a candidate deposits any amount of loan, tax or utility charges payable by him before rejection of his nomination paper on the ground of default in payment of such loan, taxes to utility charges, such nomination paper shall not be rejected for default thereof. "

7. It is well‑settled principle of interpretation of statute that the words used in the statute are to be accorded their ordinary meaning unless the context otherwise exhibits a different intention of Legislature and further when question of interpretation of some penal provision of law arises it should be construed strictly and in. case of possibility of two equally rational and logical interpretations one favouring the subject should be preferred over the other.

8. Keeping in mind these guiding principles regarding the interpretation of statute when the provisions of law reproduced above are examined it will be seen that disqualification provided under clause (s) of section 99, subsection (1A) of the Act of 1976 will only be attracted when the loan of two million rupees or more obtained by a person/candidate in his own name or in the name of his spouse or any of his dependents remains unpaid for more than one year from the due date of same was got written off. Thus by providing loan limit of two million rupees or more Legislature has given benefit to the defaulters up to less than two million rupees and saved them from being disqualified. Further by providing time frame of one year or more from the due date the intention of Legislature cannot be construed to provide perpetual disqualification in case of default in payment of dues for one year or more. This proposition is strengthened from the language of paragraph 53 of Manual of Instructions issued by the Election Commission of Pakistan which instructs the Returning Officers not to reject nomination papers of a candidate in case of clearance/payment of loan, taxes or utility charges by the candidate before rejection of his nomination papers. In the present case on facts petitioner has not only throughout disputed the loan liability but it is an admitted position that at the relevant time viz. before rejection of his nomination papers on payment of Rs. 800,000 total sum unpaid was less than Rs. 2 million. Moreover, at the stage of appeal total remaining sum claimed by respondent No.4 bank was also paid off by the borrowers and thus the respondent No.4 had issued a clearance certificate in that context. The contention of Mr. Pirzada with regard to non‑applicability of section 99(1A)(s) of the Act of 1976 to the case of guarantor has also much force. After taking into consideration these aspects of the matter, we are of the considered view that the orders passed by the respondents Nos.2 and 3 resulting in disqualifying the petitioner from contesting the ensuring elections of Provincial Assembly as candidate from P.S. 36, Larkana‑II, Larkana are not sustainable in law. Accordingly, both the orders impugned in this petition are declared illegal and set aside in terms of the short order announced by us on 21‑9‑2002.

9. Before parting with this order it may be observed that we have refrained from dilating upon other contentions raised by Mr. Abdul Hafeez Pirzada as in exercise of our jurisdiction under Article 199 of the Constitution, we are not inclined to investigate into factual controversies which may be involved in the matter or deciding such contentions. Further any observation by this Court in that context may result in causing prejudice to the interest of any other party who may be willing to agitate such issue in post election scenario. Foregoing are the reasons for the short order, dated 21‑9‑2002. H.B.T./N‑116/K Petition accepted.