1989 PLP 88 (CLC)

Issue No.2 is the main issue and I will take it first. It is the case of the petitioner that respondent No.l was disqualified to tie a candidate a/s 10 (2) (b) (8) of President's Order No.5 of 1979 'and he was also disqualified us 99 (1) (h) of the Representation of People Act, 1976. According to the petitioner respondent No. 1 was a Director as well as share‑holder in the Company known as "A.G.E. Industries Limited" and this Company had subsisting contracts with Government and Agencies under the Government, both on the day when the nomination papers were filed and accepted and also on the day on which the election was held. In other words this Company had subsisting contracts on these dates and respondent No.l had an interest in the Company as a Director/share‑holder. In order to prove his case learned counsel for the petitioner submitted that respondent No.l was elected as a Director/ shareholder on 1‑9‑1983 for a period of 3 years and under the law when he was elected as Director he would complete his term of 3 years and thus he would be deemed to be elected as such upto 1986. Before the expiry of the term of 3 years, according to the learned counsel for the petitioner, the burden lies on respondent No.l to discharge that he had ceased to be a Director/ shareholder of the said Company which he had failed to do. The learned counsel then referred to the written statement of respondent No.l and also to the evidence on record. According to him Mohammad Akram, PW2, has produced from his file a copy of the local purchase order, which is Ex.PW2/1, and which shows that Karachi Shipyard and Engineering Works Limited, Karachi had issued a purchase order to AGE Industries for the supply of goods mentioned therein. He next referred to the statement of PW3 Nasim Ahmad of Pakistan Railways, Lahore, who has produced the original purchase order, copy of which is Ex.PW3/1, and submitted that a perusal of this document shows that the purchase order is dated 30‑1‑1985 and the date of delivery thereon is 20‑3‑1985 or' earlier. Learned counsel for the petitioner next referred to the statement of Mohammad Ramzan, PW 4, a Junior Purchase Officer in National Savings, who produced the purchase order dated 12‑12‑1985 which is Ex. PW4/1. Supply was made to them and the witness further stated that it was owned by the Government. This document, according to the learned counsel for the petitioner, shows that it was made on 12th of February, 1985 and delivery was not later than six weeks. The last in the list, as per arguments of the learned counsel for the petitioner, is PW 5, Anwar Majid, Assistant Manager Purchase, Khazana Sugar Mills, who has produced copy of purchase order dated 13‑2‑1985. The learned counsel vehemently argued that in cross‑examination all these purchase orders are not challenged nor these were challenged by respondent No.l on the ground that the same ceased to be subsisting on the day when the nomination papers were filed, or the day of election. According to the learned counsel for the petitioner, respondent No.l only attacks on the photostats because photo copies were filed by the petitioner. But he kirgued that in the evidence every witness has brought his record, seen the office copy of the purchase order and confirmed that it is the same which he had produced. So, independently the photostats of the contracts have been proved. He also argued that not only the contracts were not challenged in the cross‑examination but no question was put that though these purchase orders show that there were subsisting contracts, they were in fact not subsisting. Nobody has come on behalf of the respondent‑company or respondent himself to contradict these agreements. The learned counsel for the petitioner then referred to Ex. PW6/1 and submitted that this letter proves that respondent No.l was a shareholder as well as a Director in August,1983 and was elected as a Director on 1‑9‑1983 for 3 years under the "Managing Agency, Election of Directors order, 1972" It may be pointed out here that Ex. PW/6 is Form XII and is dated 13th September, 1983. It has been signed by the Chairman. The learned counsel for the petitioner further argued that it is for respondent No.l to prove that he had resigned as a Director or was not a Director on the day of nomination i.e. 20‑1‑1985 or the day of election dated 25‑2‑1985. But there is no such evidence on behalf of. respondent No.l, to this effect. He then referred to the statement of PW6 Taj Mohammad, Assistant, Joint Stock Companies, who produced Form XII, Ex. PW6/2, purports to be dated 11th August, 1984 and on its extreme left it is mentioned with ink, "certified copy of unrecorded document received on 14‑2‑1985". If respondent No.l had resigned on 11th August, 1984 this Form XII ought to have been filed within 15 days of his resignation as required a/s 205 (2) of the Companies Ordinance, 1984 but it is surprising to. note that it has been filed after 5 months and 19 days i.e. on 14‑2‑1985. The next document to which learned counsel for the petitioner made reference is EX.PWo/3 and which is Form E. It may be pointed out here that Annual General Meeting of the Company was held on 1‑9‑1984 and this document purports to show that respondent No.1 sold his shares on 11‑8‑1984. So, the change has come on 11‑8‑1984 and the General Meeting, as stated above, was held on 1‑9‑1984. Under the law it ought to have been filed within one month a/s 156 (3) (B), but there was a delay of 4 months and 13 days in filing this return. The Registrar was examined only to show that these were filed on 14‑2‑1985 but these documents do not prove their contents. It is also not clear as to who had signed these documents because they are not the originals. The learned counsel further argued that as such there is no evidence that respondent No.l has resigned, his resignation was accepted, that he has transferred his shares to his wife and that she had paid price for those shares. All these facts were within the knowledge of respondent No.l and the A.G.E. Company but not only respondent No.l did not appear in the witness‑box but also no documents were produced in evidence at the trial. According to the learned counsel for the petitioner the fact that respondent No.l was a Director/ shareholder of the Company at the time of filing his nomination papers and the day of election was exclusively in the knowledge of respondent No.l but he has not filed any document in rebuttal, rather failed to appear in the witness‑box to deny the allegations. In support of his above arguments he referred to a case reported in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (P L D 1959 Pesh. 81) wherein their lordships have observed as under:‑ "It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to gives evidence on his behalf, and to submit to cross‑exami nation. His non‑appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case." Lastly, the learned counsel for the petitioner referred to Article 78 of Qanoon‑e‑Shahadat which reads as follows:‑ "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in‑his handwriting." So, the gist of the arguments of the learned counsel for the petitioner is that respondent No.l was not qualified to be elected as a member of the National Assembly because he was shareholder and a Director in a Private Limited Company, namely, AGE Industries who had subsisting contracts both on the day of wing nomination paper and the day of election. According to him this fact has sufficiently and convincingly been proved by the petitioner by producing certain witnesses who had proved the various purchase orders relevant to the period in question and had also produced an official of the office of the Deputy Registrar, Joint Stock Companies who had proved that respondent No.l was on or about 13th of September, 1983 a Director of M/s A.G.E. Industries Limited and since under the law he has to remain for a period of 3 years which is established from Ex.PW6/1 and since his term of office was 3 years, therefore, it should be assumed that he continued to be a Director till such time when the period of 3 years would expire which had not expired either on 20th of January, 1985 (the day of filing nomination papers) or 25th of February, 1985 (the day of election) and this would be enough to hold that respondent No.l was disqualified from being elected.

8. To prove that respondent No.l has ceased to be a Director or a shareholder, which is a fact which had only been in his knowledge and since he had failed to appear in the witness‑box to face cross‑examination, therefore, in view of the law laid down in P L D 1972 SC 25 (ibid) it should be taken as a strongest circumstance .to discredit him.

9. It is said that respondent No.1 was a well‑known and a big industrialist, therefore, this circumstance should also be taken against him but as far as this aspect is concerned there is no difference between the petitioner and respondent No. l because both are well‑known persons.

10. Let us have a reference to the statement of PW10, Petitioner herein, before the Tribunal. The objection of disqualification of respondent No.l was never raised by him at the time of the scrutiny of the nomination papers or thereafter. To a question at the time of his examination he replied as under:‑ "I was .present at the time of the scrutiny of the nomination papers. I had raised the objection such as I have raised in this election petition. Since I was not possessed of documents in support of this objection at that time, therefore, it was not taken notice of. The objection was raised before the Assistant Commissioner Returning Officer, Peshawar, who has been impleaded as respondent No.4 to my election petition, Ex. PW 10/1." The Assistant Commissioner who was made a party in this petition as respondent No.4 has filed his written statement in which in reply to para No.2 he stated that on the day fixed for scrutiny of nomination papers the petitioner was given opportunity if he has any objection on the nomination of respondent No.l but the petitioner raised no objection and stated that he has no objection to the nomination of respondent No.l. The objection to the effect that respondent No.l is Director of certain Company was never raised at the time of scrutiny. Further in reply to para. 5 of the election petition respondent No.4 submitted that no objection was raised by the petitioner at the time of scrutiny of nomination papers. In reply to ground (d) it was stated that the petitioner has never raised any objection but stated that he has no objection to the nomination of respondent No.l when he was specifically asked at the time of scrutiny. Had respondent No.l been a Director or had he been a shareholder in the said Company the petitioner would have certainly raised this objection. The authority cited by the learned counsel for the petitioner might be relevant as far as cases purely of civil nature are concerned, but we are dealing with an election petition which is governed by Special Law and on this view of the matter I get full support from a case reported in Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (P L D 1973 SC 160) (relevant page 194 wherein his lordship has observed as under:‑ "As I have stated at the very outset of this judgment, the law of election requires strict proof of the disqualification of a candidate as a corrupt practice and a finding with regard to disqualification must be based on positive evidence and not inferentially on mere surmises." It was a case wherein a similar question like the present one was involved. The winner of that election was a shareholder and Director of the Company. It is for this reason that I have chosen this case. At page 181 of the same authority it has been also held what follows:‑ "The correctness of the proposition that nonetheless the appellant remained a de‑facto director even after tendering his resignation on the 10th of December 1970, up to the 1st of January, 1971, when his resignation was accepted, has to be examined on the pleadings and the evidence produced in the case in the light of certain well‑recognised principles which bear on the resolution of election disputes brought for adjudication before the judicial forums. The first is that the allegation of a corrupt practice or an illegal act allegedly committed by a candidate in relation to his election has to be specifically made in the election petition, giving full particulars of such a corrupt practice or an illegal act. The concealment of his disqualification by a candidate from the relevant authorities as well as from the electorate is undoubtedly a corrupt practice, which would vitiate the election inasmuch as a candidate, who holds himself out to be qualified to seek the election while in fact he is not so is guilty of fraud and misrepresentation, of which full particulars must be supplied in the election petition. Section 52 of the National and Provincial Assemblies (Elections) Ordinance, 1970, under which the present election petition was filed, reads as follows: . . . . . . . . . . . " There is another authority reported in Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan (3) Ghulam Haider and (4) West Pakistan Government and others (P L D 1957 SC 91 at page 94) (Head Note c) which lays down:‑ "(c) Election petitions‑‑Trial of‑‑Principles stated. Principles governing trial of Election Petitions are: Where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial, and that where the evidence is wholly circumstantial the Commissioners before finding a corrupt practice proved must exclude all reasonable hypothesis which are consistent with that corrupt practice having not been committed." In the earlier cited authority of the Supreme Court viz. P L D 1973 SC 160 (ibid) it has also been observed:‑ "The other basic factor to be kept in mind in this connection is that the charge of a corrupt practice or a disqualification attaching to a candidate before the election or incurred by him after the election, is a quasi‑criminal charge, and must be proved affirmatively by positive evidence." The following quotation of the same authority is also worth perusal:‑ "A charge of a corrupt practice is a quasi‑criminal charge, and, as the Tribunal has stated in its report, the great volume of authority in the corpus of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person." In Syed Saeed Hassan v. Pyar Ali and 7 others (P L D 1976 SC o) (Head Note) the above principle has been re‑affirmed in the following words:‑ "Corrupt practice‑‑Illegal practice‑‑Analogy of criminal trial‑ Holds goods in matter of corrupt or illegal practice‑‑Corrupt or illegal practice‑‑Has to be proved to exclusion of reasonable hypothesis consistent with its non‑commission‑‑Benefit of doubt‑‑Must go to person charged with corrupt or illegal practice." Another authority reported in Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others (P L D 1986 SC 698) is also relevant on the point in issue wherein the following dictum has been laid down by their lordships of the Supreme Court:‑ "The provisions of a penal statute, entitling forfeiture and deprivation of valuable rights of property and franchise have to be very strictly construed and in the case of doubt the D benefit must go to the person against whorl they are sought to be invoked. The rule is founded on the tenderness of the law for the rights of the individuals." So, it is well‑settled principle for the trial of an election petition that the burden of proving corrupt illegal, practice lies on the other E side and if from the material placed on record there arises any doubt which can positively go to other side, then benefit must go to the opposite side.

11. The evidence produced by the petitioner in this case consists of 10 witnesses out of whom 4 witnesses have not been relied upon or referred to by the learned counsel for the petitioner. The witnesses who have been relied upon by the petitioner are PWs 2 to 5 and they have been relied upon for the purpose of showing that A.G.E. Industries was issued certain purchase orders and the said Company has supplied the things which were required of it and since these services were given to the Government Agencies, therefore, any one who would be a shareholder or director of that company should be disqualified from contesting the election under the law. But the foremost question for consideration by this Tribunal is whether the witnesses have been able to prove the purchase orders or not and to solve this controversy I would like to refer to the statements of the witnesses produced by the petitioner. . PW 2 produced only one document which is Ex.PW2/1, but in cross‑examination he admits that Ex.PW2/1 is the copy of that document which was issued to the supplier and not the copy of the office copy produced by the witness before the Tribunal. As such, no reliance could be placed on this witness. PW 3 produced two documents viz. Ex.PW3/1 and Ex.PW3/2. In cross‑examination, however, he admits in the following words, "It is correct that the originals are in fact cyclostyled. I have not brought the originals from which the cyclostyles were made because in the process of cyclostyle the original becomes ineligible. Mr. Mohammad Siddique Chishti, whose signatures appear on the cyclostyle which I have produced today, as original, has retired and is no more in the service of Pakistan Railways. " It has further been stated by this witness in the cross‑examination, "we had not issued the copies Ex.PW3/1 and Ex.PW3/2 to the petitioner. " If proving of the signatures is necessary for respondent No.l then it is equally necessary for the other side and if these documents were supplied to the petitioner by the God fearing man, as per statement of the petitioner before the Tribunal and that God fearing man does not come into the witness‑box, then reliance cannot be placed on these documents. Same would be the situation with other documents. At the most the above referred documents, if we take them into consideration, prove only the fact that A.G.E. Industries has had contracts with Government, Agencies, but the question before this Tribunal is not that the A.G.E. Industries Limited is to be disqualified or not and for this purpose the petitioner was required to have proved affirmatively through the evidence that not only respondent No.l was a Director or shareholder on 1st of January, 1983 but he was also a Director or a shareholder on 20th of January, or 25th of February, 1985. Strict reliance has been placed by the petitioner on th‑e statement of PW 6 who was the only witness to prove that respondent No.l on the dates mentioned above was the Director of the Company and that since a Director on 1st of January, 1983 the law says that he would complete the period of 3 years and it must be presumed that he was a Director on 20th of January and 25th of February, 1985. Ex.PW6/1 contains a date against the name of respondent No.l in the last but one column under the caption "date of appointment" and the date is 1‑9‑1983. This Form XII bears the date of 13th September, 1983. These documents have been produced by the petitioner himself and brought on record in examination‑in‑chief. Can he say that he has proved such and such thing by producing these documents. Ex. PW6/2 shows that it was presented and filed by Mohammad Akbar Zia. He is a Director of the Company, his name is also mentioned in Ex.PW6/1. The date of appointment is 11‑8‑1984 and in the column of changes it is mentioned "resigned". Thus, respondent No.l has ceased to be a Director. The endorsement "this is a certified copy of an unrecorded document received on 14‑2‑1985" is a subsequent manufacture of the document. By producing these documents the petitioner wanted to take the advantage of the endorsement by showing that till 14‑2‑1985 respondent No.l was a Director of the Company. In this sequence the petitioner has preferred two provisions of law viz. Sections 156 and 205 of Companies Ordinance. I do not have any difference with the learned counsel for the petitioner that Section 156 of the Ordinance prescribes that within 30 days the documents should be submitted and Section 205 says that the documents in question should be submitted within 30 days. Ex.PW6/3 is Form E which is the summary of capital shares and this Form E contains on its reverse an entry to the effect that Younas Elahi Sethi has transferred his shares. On the last page of this Form E against the column meant for "changes if any with dates" the words "resigned on 11th August, 1984" have been recorded. This document Ex. PW6/3 is certified copy of a document which the petitioner has brought on record and got exhibited. The fault with these two documents is that they were filed later on and per my finding with regard to the two applications submitted by the petitioner these documents should not be taken into consideration.

12. It is said that Form XII was not filed within 30 days and form E has been filed beyond 30 days, but a look at section 469 of the Companies Ordinance and the statement of PW6 recorded at the trial would show that because of filing late these documents, show‑cause notice was issued in this connection which is Ex. PW6/4 and which has also been produced in evidence. Explanation was considered and orders were passed which is Ex.PW6/X‑

1. The Department has also issued a certificate on 10th April, 1985 which is Ex.PW6/ X‑2 which shows that the list of members and summary of share capital made upto 1‑9‑1984, and the particulars of Directors dated 11‑8‑1984 (the date of resignation of respondent No.l) were duly considered as had been filed and registered pursuant to the provisions of the Companies ordinance, 1984 (XLVII of 1984). Thus, the members were accepted as on 11th August, 1984 on condoning the delay and deposit of condonation fee. In this context again a reference to the statement of PW6 will be inevitable wherein in cross‑examination he has stated as under:‑ "It is correct that in accordance with law the Company had duly paid the requisite fees for submitting the documents late. We did receive a reply to our letter calling for explanation and on receipt of the reply the Deputy Registrar of the Joint Stock Companies having satisfied himself condoned the delay and the documents were duly taken on record ......... I confirm that this information of condonation was conveyed through it. 11 In all these documents exhibited in the statement of PW6, respondent No.l had ceased to be a Director on 11th August, 1984. The question of filing late these documents only entails a penalty of some amount but Section 469 of the Ordinance deals with the question of presenting the documents late. Whether respondent No.l had ceased to be a Director or a shareholder or not the principles of criminal trial would be attracted. A reference to the list of witnesses of the petitioner shows that it contains at S.No.21 Clerk United Bank Limited, Peshawar, alongwith original cheque issued by respondent No.1 with the permission of Court/Tribunal. Through this witness the petitioner wanted to prove that respondent No.l was in fact dealing with the bank in his capacity as Director AGE Industries and accordingly Abdur Rauf, Manager, UBL Arbab Road, Peshawar Cantt. PW8, came and his statement was recorded. According to Ex.PW8/1 the Directors whose names have been mentioned therein were operating the accounts till 13‑8‑1984. On 13‑8‑1984 a letter with copy of resolution dated 11‑8‑1984 was submitted by AGE Industries Limited to the Deposit Incharge of UBL Limited Peshawar Cantt. concerning which he recorded his signature and endorsement on the specimen signature card, which the witness produced in original. If a resolution is submitted by respondent No.l on 13th of August, 1984 and the same is further submitted by the AGE Industries to the Bank, which resolution says that so and so has resigned and ceased to be a Director and his resignation had been accepted, then it would be very difficult even to look upon such document which was submitted by the Deputy Registrar later on and which document had been produced by the petitioner in his evidence. This would go a long way to show and prove that respondent No.l had ceased to be a Director or share‑holder in AGE Industries Limited on the date of filing his nomination. papers and also on the date of election. It was necessary for the petitioner to have proved through unimpeachable evidence the most important documents in the nature of the record of the bank showing that respondent No.l was Director or not. The statement of PW8 is clear on the point that not a single cheque from August, 1984 till 29th of January, 1985 or thereafter under the signatures of respondent No.l was found. In cross‑examination the witness stated that the endorsement in red ink by the Deposit Incharge Mr. Zafar, with whose signatures he is familiar and identifies, reads as under "vide reference No. AGE 9A date 13‑8‑1984 cancelled." The witness further stated that the documents Ex.PW8/5, 8/6 and 8/7 were brought by him on demand through summons from the custody of the UBL Cantonment Branch.

13. All what has been said above would show that the onus of proving issue No.2 lay heavily on the petitioner to prove that AGE Industries had subsisting contracts with Government Agencies during the crucial period, and further to prove that respondent No.l was a Director or share holder in the said Company and so he was disqualified from being elected as member of the National Assembly. But I am of the view that the petitioner has failed to prove either part of this issue. It is difficult to accept that even this much has been proved affirmatively that AGE Industries had subsisting contracts with the Government and that respondent No.l was the Director of the Company at that time because he had ceased to be a Director after 11th August, 1984. He had nothing to do with the affairs of the Company thereafter. Therefore, if the Company has had contracts, that would not disqualify respondent No.l. The onus has not been discharged by the petitioner and keeping in view the principles which govern the trial of criminal cases where it has not been proved without reasonable doubt then the objection would be dismissed. Reference can also conveniently be made to Naseer Muhammad Khan v. Salim Saifullah Khan and 2 others (P L D 1986 Peshawar 45) wherein it had been observed as under:‑ "Transfer of‑ shares‑‑Effect‑‑Entries .in relevant register of transfer of shares a documentary evidence‑‑Senator elect at time of filing of nomination papers to Senate, being no longer shareholder of establishment, held, was not hit by disqualifi cations provided in Art. 10 (2) of Order 5 of 1977." As such, Issue No.2 is decided in the negative. Issue No.3.

14. In view of my finding on issue No.2 in the negative, this issue is also decided in the negative. Issue No.l.

15. Not pressed by the learned counsel for respondent No.l. As such, the same is decided against the contesting respondent. Relief

16. On the view of the matter that I take this election petition being devoid of any force, is hereby dismissed with costs. A . A . / 32 / E. Election petition dismissed.