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Petitioner: GHULAM MUSTAFA JATOI VS Respondent: ADDITIONAL DISTRICT AND SESSIONS JUDGE, AND
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Akhtar Ali G. Kazi Title:GHULAM MUSTAFA JATOI vs ADDITIONAL DISTRICT AND SESSIONS JUDGE, AND
JUDGMENT
Reported As: PLD 1994 Karachi 1 Result: Petitions dismissed Judgment JUDGMENT ' NASIR ASLAM ZAHID, CJ.---This judgment will govern the following three Constitutional petitions:-- (a) C.P. No, D-2670/1993 filed by Ghulam Mustafa Jatoi against Returning Officer, Naushahroferoze and others. (b) C.P. No, D-2683/1993, Masroor Ahmad Khan Jatoi against the Returning Officer, Naushahroferoze and others. (c) C.P. No, D-2684/1993, Ghulam Murtaza Khan Jatoi also against Returning Officer, Naushahroferoze and others. ' Petitioner Ghulam Mustafa Jatoi had filed nomination papers for Constituency NA. 158 (Naushahroferoze-1) with the Returning Officer. According to the petitioner, his nomination paper was complete in all respects including the fresh declarations required to be made under Ordinance XVI of 1993, and on 1-9-1993, scrutiny of nominaton papers took place and the Retiring Officer found the nomination papers of the petitioner in order and accepted the same and the name of the petitioner appeared in the list of validly nominated candidates. According to the petitioner, no appeal was filed against the acceptance of the nomination papers filed by the petitioner. ' Under section 14(5) of the Representation of the People Act, 1976, any candidate can prefer an appeal against the decision of the Returning Officer rejecting or accepting nomination papers of any other candidate to the Tribunal constituted for the constituency consisting of not less than two or more than three Judges of the High Court nominated by the Chief Election Commissioner with the approval of the President. According to the said provision, if any such appeal is filed, it is
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required to be decided summarily within such time, as may be notified by the Election Commission. According to the schedule of the Election Programme, the last date for deciding appeals by the Tribunal was notified as 12-9-1993. ' According to the petitioner, at about 8 p.m. On 14-9-1993, that is, after the final date for decision of appeals under section 14(5) of the Act of 1976 had passed, the petitioner was delivered a copy of the order dated 149-1993, passed by the Returning Officer the same day, which order has been impugned in this Constitutional petition. The entire order of the Returning Officer dated 14-9-1993 reads as follows:-- "the candidate is found to be a defaulter. Clearance has not been produced. Form is dropped." ' The case of petitioner Ghulam Mustafa atoi is that the impugned order dated 14-9-1993 of the Returning Officer is ex facie illegal, mala fide and without lawful authority inasmuch as the petitioner's nomination paper was accepted on 1-9-1993 and, in the absence of any appeal (the period of filing and decision of appeals being over by 12-9-1993), the order had become final. According to the petitioner, he is not a defaulter and the finding given is not only factually incorrect but being without any notice to the petitioner is even otherwise of no legal effect. The petitioner, finding no other alternate remedy, has filed this Constitutional petition challenging the validity and the legality of the order dated 14-9-1993 of the Returning Officer deleting his name from the list of the contesting candidates. Apart from the Returning Officer, all other candidates, whose nomination papers had been accepted by the Returning Officer, have been impleaded as respondents in this petition. Petitioner Ghulam Mustafa Jatoi is represented by Mr. Maqbul Elahi Malik and Mr. Mushtaq Riaz, Advocates (from Lahore). Mr. Muhammad Sardar Khan, Attorney- General for Pakistan, appeared on notice and was assisted by Mr. Naimur Rehman, Standing Counsel, Government of Pakistan. Mr. Aftab Akhund, Advocate-General, Sindh, also appeared on notice and was assisted by Mr. K.M. Nadeem, Assistant Advocate-General. Notices were issued to all the private respondents but only three private respondents have been represented. Mr. Muhammad Ameen Lakhani, Advocate, appeared for respondent No, 2, Ghulam Asghar Abbasi, Mr. Rashid A. Razvi, Advocate, appeared for respondent No, 4, Khan. Muhammad Jamali, and Mr. Ghulam Hussain Abbasi, Advocate, has appeared for respondent No, 8 Asif All Zardari. 2. Petition D-2683 of 1993 has been filed by petitioner Masroor Ahmed Khan Jatoi. Respondents in this petition are the Returning Officers PS-18 and PS-19 Naushahroferoze, Government of Pakistan and the Election Commission of Pakistan. Originally .Only three official respondents had been impleaded as parties, but, later on, amended petition was filed impleading all the candidates whose nomination papers for the aforesaid two constituencies had been accepted. The petitioner was represented by Mr. Fazle Ghani Khan, Advocate, whereas Advocate-General, Sindh, and Mr. Naimur Rehman, Standing Counsel, Government of Pakistan, for Attorney-General for Pakistan, appeared pursuant to notice. The petitioner's case is identical to the case of petitioner Ghulam Mustafa Jatoi, except that petitioner Masroor Khan Jatoi filed his nomination papers for PS-18 and PS-19 Naushahroferoze. According to the petitioner, no objections were filed by any other candidate against the nomination papers submitted by the petitioner. Scrutiny was carried out and petitioner's nomination papers were accepted by the Returning Officer and his name appeared in the list of validly nominated candidates displayed by the Returning Officer outside his office. No appeal was filed by any other candidate against the acceptance of petitioner's nomination papers but, on 14-9-1993, the following order was passed by the Returning Officer in case of petitioner in respect of his nomination papers for P.S.18 (Naushahroferoze-IV):-- "Candidate is bank defaulter. He has not produced any clearance as per his undertaking. Hence nomination is dropped." ' In case of P.S.19 (Naushahroferoze-V), the following order was passed also on 14-9-1993 by the Returning Officer:-
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"The candidate is bank defaulter to the tune of exceeding 1.0 million rupees. He has not cleared the loan as per undertaking. Hence his nomination form is dropped." ' The impugned orders have been challenged. The amendments made recently by Ordinances XVI and XX of 1993 had also been challenged in the memo. Of petition but during arguments, challenge to the vires of such Ordinances was not made on account of time not being available, the petitioner being interested in a very early decision of the petition on account of the elections being scheduled for the Provincial Assembly on 9-10-1993. 3. Petition D-2684 of 1993 has been filed by petitioner Ghulam Murtaza Khan Jatoi, who had filed nomination papers for NA. 158 (Naushahroferoze-1) and P.S.19 (Naushahroferoze-V). Apart from the Returning Officer, Government of Pakistan and the Election Commission, who were originally the only respondents in the petition, all the candidates for the two constituencies, whose nomination papers had been accepted, were impleaded as respondents through an amended petition filed by the petitioner. The case of petitioner Ghulam Murtaza Khan Jatoi is similar to the case of petitioner Masroor Ahmed Khan Jatoi. The order passed by the Returning Officer on 14-9-1993 in respect of NA.158 (Naushahroferoze-1) relating to Nomination Form of petitioner Ghulam Murtaza Khan Jatoi is as follows:- "Clearance of loan not produced. Form dropped." ' In respect of Nomination Paper of the petitioner for P.S.19 (Naushahroferoze-V), the following order was passed by the Returning Officer on 14-9-1993:-- "The candidate is bank defaulter in the sum of Rs, over 1 million rupees. He has not cleared the loan as per undertaking. Hence his Nomination Form is dropped." 4. The relevant section in the Representation of the People Act, 1976, relating to qualification and disqualification of candidates is section 99. Subsection (1) of the section 99 of the Act is an exact reproduction of Article 62 of the Constitution except that clause (i) of Article 62 which provides that, "he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament)" is not contained in section 99(1) of the Act. ' In subsection (1A) of section 99, it is provided that, "a person shall be disqualified from being elected as, and from being, a member of an Assembly, if' and thereafter there are clauses from (a) to (q) specifying the disqualifications. ' By Ordinance XVI of 1993 promulgated by the President on 19-8-1993, various amendments were made in the Representation of the People Act, 1976. The two relevant sections of the Amendment Ordinance, 1993, are section 2 and section 9. By subsection (2), section 12(2) of the Act has been substituted. Prior to its substitution by the Amendment Ordinance of 1993, subsection (2) of section 12 of the Act read as follows:-- "Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member." ' After its substitution by the Amending Ordinance of 1993, section 12(2) of the Act now reads as follows:-- "(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall contain, duly signed by the candidate-- (i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being elected as member; ' 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
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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." ' By section 9 of the Amending Ordinance, for clause (f) in section 99(1), the following has been substituted:- "(f) lie is sagacious, righteous, non-profligate, honest, Ameen and pays his debts specified in subsection (2) of section 12." ' It would be observed that by the said amendment in section 99, the change that has been brought about is that the words, "and pays his debts specified in subsection (2) of section 12" have been added to the previously existing clause (1). ' On 19-8-1993, the Chief Election Commissioner of Pakistan, with the approval of the President, made further amendments in the Representation of the People (Conduct of Election) Rules, 1977, and the said amendments inter alia prescribed the additional declaration on oath by the candidate as follows:- "I hereby solemnly declare to the best of my knowledge and belief that-- (i) no loan amounting to one million rupees or more obtained from any bank, financial institution, cooperative society or corporate body, in my own name or in the name of my spouse or dependent or business concern mainly owned by the aforesaid, remains unpaid for more than one year from the due date; and no loan amounting to one million rupees or more obtained by me, my spouse or dependent or a business concern mainly owned by me 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." ' By another Ordinance promulgated by the President on 27-8-1993, being Ordinance No, XX of 1993, Representation of the People Act, 1976, was further amended by insertion of the following new subsections after section 12(2) of the Act: "(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 and undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Office 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? ' The said Amending Ordinance XX of 1993 also added the following explanation after subsection (7) of section 12 of the Act:-- "Explanation.--- For the purpose of this section the expression "mainly owned" shall mean ownership of forty-one per cent. Or more shares in business concern? The ultimate consequence of the aforesaid amendments is that every candidate for the Elections to the National or Provincial Assemblies is required to give a declaration on oath along with his
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nomination that loan amount in excess of rupees one million 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, is not remained unpaid for more than one year from the due date and also a declaration that a loan of rupees one million or more had been written off and or if it had been written off, it has since been paid. However, in case the 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 of September, 1993, the Returning Officer shall allow such candidate to file nomination papers without the aforesaid declaration. In case, the candidate pays back the loan in respect of which he has given an undertaking, the earlier non-payment or writing off the loan shall not be deemed to be a corrupt practice for the purpose of section 78 of the Act. In case, such candidate does not pay back the loan by 13th September, 1993, his name shall neither be published in the list of contesting candidates nor his name will appear in the ballot paper. 5. We have heard at length the arguments of the learned counsel for the petitioners and those private respondents who have been represented. We have heard Mr. Muhammad Sardar Khan, learned Attorney-General for Pakistan and Mr. Aftab Ahmed Akhund, learned Advocate-General, Sindh. 6. As noticed earlier, the effect of amendments made in the Representation of the People Act, 1976, through Ordinances XVI and XX of 1993, inter alia, is that required declarations should be given on oath along with nomination papers that loan amount in excess of Rupees One Million obtained from the prescribed Banks or institutions in the name of the candidate or in the name of his spouse or dependent or in business concern mainly owned by them has not remained unpaid for more than one year from due date, and that a loan of over Rupees One Million had not been written off. However, in case the candidate wants to make payment of any loan specified in clause (iii) and (iv) of subsection (2) and subsection (2A) and gives an undertaking to the Returning Officer for payment of such loan before 13-9-1993, the Returning Officer was required to allow such candidate to file nomination papers without the aforesaid declaration but in case such candidate does not pay back the loan by 30-9-1993 his name shall neither be published in the list of contesting candidates nor his name will appear in the ballot paper. 7. According to the learned counsel for the petitioners, none of the petitioners was a defaulter and as such their names could not be dropped from the list of contesting candidates. However, it is admitted that despite giving declarations as required, some undertakings were in fact given. According to the counter-affidavit of the Returning Officer, when the scrutiny of nomination papers had taken place on 1-9-1993, an undertaking dated 1-9-1993 was given by the representative of petitioner Ghulam Mustafa Khan Jatoi that the loan, if any, against him will be paid on or before 13th September, 1993. Photo copy of the undertaking given by Mr. Usman Ali, Advocate, representative of petitioner Ghulam Mustafa Khan Jatoi has been filed as annexure to the counter- affidavit. The Court as well as learned counsel found it difficult to decipher some of the words in the said undertaking but it appears that according to the representative of the petitioner there was no loan pending against his client but if there was a loan, it would be paid on or before 13th September, 1993. In the cases of the other petitioners, namely, Masroor Ahmed Khan Jatoi and Ghulam Murtaza Khan Jatoi also, undertakings were given. In the case of Masroor Ahmed Khan Jatoi, the following undertaking was given by his representative, Mr. Usman Ali, Advocate: "It is submitted on behalf of my client Mr. Masroor Ahmed Khan Jatoi, candidate for P.S. 18-N.F.IV that there is no loan more than one million outstanding against him for more than a year but, if any, it may be communicated. To me and it will be paid by 13th September, 1993." ' In the case of Ghulam Murtaza Khan Jatoi also an undertaking was given by Mr. Usman Ali, Advocate, representative of the said petitioner on 2-9-1993 in the following words:
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"It is submitted on behalf of candidate Ghulam Murtaza Khan Jatoi P.S. 19-N.F.V that there is no loan outstanding against my client amount of one million since year back and if any I will pay the same by 13th September, 1993." 8. From the counter-affidavits of the Returning Officer filed in the three petitions, which counter- affidavits are supported by several documents, it follows that, according to the Returning Officer, though petitioner Ghulam Mustafa Khan Jatoi had not taken any loan, he had given several guarantees, amounts whereof exceeded the prescribed limit, and as such his name was liable to be dropped, clearance of the loan having not been produced from the Bank concerned. In so far as petitioners Masroor Ahmed Khan Jatoi and Ghulam Murtaza Khan Jatoi are concerned, documents have been filed by the Returning Officer along with his counter-affidavits showing that amounts were in fact due in excess of the prescribed limits to certain Banks. 9. In the case of petitioner Ghulam Mustafa Khan Jatoi, the Attorney-General very frankly stated that the case against the petitioner was not that he had taken a loan in excess of the prescribed limit which had not been paid within the prescribed time, but he was disqualified because he was a guarantor in respect of several loans running into million of rupees and a guarantor came within the mischief of the amended provisions. On the other hand, Mr. Maqbool Elahi Malik, learned counsel for the petitioner Ghulam Mustafa Khan Jatoi argued that no doubt guarantees had been furnished by the petitioner but guarantor did not come within the mischief of the amended provisions of section 12 of the Act of 1976. According to Mr. Maqbool Elahi Malik, in section 12(2) (iii), the declaration required to be given is that an amount of loan taken by the candidate in his own name would not include a guarantee furnished by the candidate in respect of a loan taken by another person or concern. The learned Attorney-General had argued that the word "loan" would include a guarantee also and in that connection he had referred to clause 4A of section 3 of the Bank Nationalization Act, 1974, defining "loans and advances" as "loans, advances and credit" defined in the Banking Companies Ordinance, 1962. He then referred to section 5(gg) of the Banking Companies Ordinance, 1%2, according to which, "loans, advances and credit" includes "finances" as defined in the Banking Tribunals Ordinance, 1984, and section 2(e) of the Banking Tribunal Ordinance, 1984, defines "finances" to include guarantees. According to the Attorney- General the word 'loan' mentioned in section 12(2), as amended, therefore, included guarantees also and, as petitioner Ghulam Mustafa Khan Jatoi had admittedly given guarantees for amounts in excess of the prescribed amount, his name was rightly dropped from the list of contesting candidates by order dated 14th September, 1993, of the Returning Officer, petitioner having failed to produce a clearance certificate that the guarantees given by the petitioner had been discharged or released. The learned Attorney-General had also referred to sections 126 and 128 of the Contract Act and various clauses of the Bank guarantees furnished by petitioner Ghulam Mustafa Khan Jatoi for the proposition that the liability of the guarantor was co-extensive with the liability of the principal debtor and in fact guarantor is equated with the principal debtor. ' Reply of Mr. Maqbool Elahi Malik was that even if guarantees were included in the word "loan" in the amended provisions of section 12 of the Act of 1976, the petitioner having given a guarantee only could not be described as a person who had taken an amount of loan in his own name. 10. Mr. Maqbool Elahi Malik further argued that in any case the petitioner had been denied the opportunity of putting up his case or defence before any authority under the Elections Laws that he did not come within the mischief of disqualification. According to Mr. Maqbool Elahi Malik, if the information was available with the Banks concerned, the same should have been furnished to the Returning Officer so that at the time of scrutiny, the petitioner would have been able to defend himself and if he had been unsuccessful and his nomination papers were rejected, he would have a right of appeal before the Tribunal under section 14(5) of the Act of 1976. According to Mr. Maqbool Elahi Malik, the order having been passed on 14-9-1993, the petitioner has been deprived
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of the two remedies that would have been available to him i,e, at the stage of scrutiny and before the Tribunal. It was further argued that, on 14-9-1993, the Returning Officer had become functus officio and could not disqualify the petitioner. 11. Learned Advocate-General. Sindh Mr. Aftab Ahmed Akhund adopted the arguments of the learned Attorney-General for Pakistan but he raised a preliminary objection on the basis of the judgment of the Supreme Court of Pakistan in the case of Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396. According to the learned Advocate-General, once the election schedule is announced which marks the advent of the election process, no action taken or order passed by any authority under the Elections Laws can be challenged under Article 199 of the Constitution in view of the provisions of Article 225 of the Constitution which reads as follows: "225. No election to a House or Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e- Shoora (Parliament)." ' The argument of the learned Advocate-General on the question of maintainability of the Constitutional petition was adopted by the other learned counsel appearing for the respondents. In fact, Mr. Ghulam Hussain Abbasi, learned counsel appearing for respondent No, 8 in the petition of Ghulam Mustafa Khan Jatoi, read the entire judgment of Mr. Justice Muhammad Haleem, C.J. (as he then was) to demonstrate that the Supreme Court, in the said judgment, has in very clear and unambiguous terms laid down the law that once the election process starts, the only remedy available to a person challenging any order or action of any authority under the Election Laws is by way of an election petition after the election is over and the remedy under Article 199 of the Constitution is totally barred by the wordings of Article 225. 12. Replying to the preliminary objection about the maintainability of the Constitutional petition, Mr. Maqbool Elahi Malik, Advocate made an attempt to argue…
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