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Petitioner: AMJAD HUSSAIN KHOKHAR, VS Respondent: DISTRICT AND SESSIONS JUDGE, TANDO JUDGMENT
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Syed Saeeduddin Nasir Title:AMJAD HUSSAIN KHOKHAR, vs DISTRICT AND SESSIONS JUDGE, TANDO
JUDGMENT
Reported As: 2016 YLR 1401 Result: Petition dismissed Judgment JUDGMENT SYED SAEEDUDDIN NASIR, J.-- Through this petition the petitioner has impugned the validity of order dated 12.10.2015 passed by respondent No,1, the District Returning Officer, Election Appellate Authority, Tando Allahyar, dismissing the appeal of the petitioner and upholding the order passed by the Returning Officer-06, Chamber, accepting the nomination papers of the respondent No,3. 2. Brief facts of the case are that the petitioner is a candidate for the post of Member District Council Tando Allahyar from UC Bukera Sharif-16, and the nomination papers filed by the petitioner were accepted by the Returning Officer. The petitioner filed objections to candidature of another candidate from the same constituency, the respondent No,3 herein, Mr. Aftab Ahmed son of Haji Gul Hussain Khokher on the scrutiny day on the sole ground that the respondent No,3 is a loan defaulter and, therefore, is disqualified from contesting elections of local bodies, and produced before the Returning Officer the judgment and decree of the Banking Court, wherein Messrs Faysal Bank had filed a recovery suit against one Aijaz Ahmed Khokher and the respondent No,3 and obtained a judgment and decree against respondent No,3 in the sum of Rs,17,000,000/- (Rupees Seventeen Million). 3. The objections raised by the petitioner before the Returning Officer, the respondent No,2 were not entertained and the same were dismissed, whereas the nomination papers of respondent No,3 were accepted. The petitioner being aggrieved by the aforesaid order of the Returning Officer, the respondent No,2, preferred an appeal under Rule 18 sub-rule (5) of Sindh Local Council Election Rules, 2015 before the Election Tribunal/ District and Sessions Judge, Tando Allahyar through
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Election Petition No,47/2015. The learned Election Tribunal vide; order dated: 12.10.2015, dismissed the said appeal and upheld the order of the Returning Officer observing therein that since the respondent No,3 is merely a guarantor, therefore, he does not fall within the definition of a defaulter as contemplated by Section 12 of the Representation of People Act, 1976, as held in 1994 SCMR 1299. 4. The learned counsel for the petitioner has inter alia argued that the Returning Officer and the Election Tribunal have erred in applying the case law in favour of the respondent No,3 in the impugned order, which is distinguishable from the facts and circumstances of the present case inasmuch as the respondent No,3 is a guarantor of his brother and decree has been passed against him by the Banking Court along with his brother, and after passing of such decree the Judgment Debtor falls within the category of a defaulter as contemplated by the disqualifications mentioned in Representation of People Act, 1976, and Sindh Local Government Act, 2013. The learned counsel further contends that the Returning Officer sought a report from the Decree Holder Bank in order to ascertain as to whether or not the status of the respondent No,3 is that of a defaulter of the bank. The Decree Holder Bank vide; letter dated: 30.09.2015, which is annexure 'N' to the main petition appearing at page-161 of the file, addressed to the Returning Officer, the respondent No,2 confirmed that the respondent No,3 is under moral obligation to repay the loan as guarantor. 5. The learned counsel further contends that after the aforesaid report was sent to the respondent No,2, the respondent No,3 preferred an application under Section 12(2), C.P.C. In order to defeat the legal process, upon which the learned Banking Court Judge was pleased to suspend the decree on the condition that the respondent No,3 shall deposit a cost of Rs,10,000/- in favour of the plaintiff bank, and he shall also deposit Rs,750,000/- towards principal outstanding within five days, however, the respondent No,3 did not deposit the aforesaid amounts and kept on enjoying the conditional order. Per learned counsel for the petitioner, the respondent No,3, therefore, is a defaulter of Faysal Bank and is not entitled to contest election. He further contends that since the respondent No,3 had not deposited the aforesaid amounts till 02.10.2015, which was the last date for scrutiny of nomination papers, which amounts were directed by the Banking Court to be deposited by the respondent No,3 as a precondition for suspension of the judgment and decree, therefore, the respondent No,3 cannot take benefit of the aforesaid suspension order and at the relevant time of the scrutiny of his nomination papers, he was a defaulter. 6. The learned counsel for the petitioner next contended that the respondent, No,3 has sworn false affidavit at the time of filing nomination papers stating therein that the respondent No,3 is not a defaulter of any bank. 7. The next ground that the learned counsel for the petitioner has taken for the first time during the course of his arguments before this court, which was neither taken by the petitioner before the two forums below nor in the instant petition, is that the respondent No,3 has made a false declaration in the "Form of Declaration of Assets" by concealing the property bearing No,43-A, M.T. Khan Road, Karachi, which is the subject matter of the aforesaid mortgage wherein the respondent No,3 is co- sharer to the extent of 50% share, therefore, the petitioner is not SADIQ and AMEEN, as a candidate for elections of local bodies is required to be, under Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973 and as such the candidature of respondent No,3 should be rejected and he should not be allowed to contest the forthcoming local bodies elections. 8. In order to substantiate his arguments, the counsel for the petitioner has placed reliance on the case law: (1) Ch. Mubashar Hussain v. Returning Officer, Kharian, District Gujrat and 3 others (PLD 2008 Lahore 134) (2) Sadiq Ali Memon V. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246 SC (3) Malik Umar Aslam v. MRs, Sumaira Malik and others 2014 SCMR 45 SC (4) Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054) (5) Muhammad Yaqoob Sheikh v. Election Tribunal Multan (2013 CLC 1512 Lahore) (6) Allied
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Bank Limited through authorized person v. Inamullah Khan and another (2013 CLC 1310 Lahore) (7) Abbas Khan and another v. Appellate Authority, District and Sessions Judge, Attock and .Others (2002 SCMR 398 SC and (8) Abdul Wajid Rasool v. District Returning Officer, Muzaffargarh and 2 others (2006 YLR 750) 9. In the case of Ch. Mubashar Hussain v. Returning Officer, Kharian, District Gujrat and 3 others (PLD 2008 Lahore 134), relied upon by the learned counsel for the petitioner, it is held that:- "Since it is not denied that the petitioner executed the agreement or letter/certificate whereby he stood as guarantor/surety to the extent of liability of another person in the sum of Rs,200.00 million, therefore, he falls within the definition of a defaulter as liability of a guarantor is coextensive with that of the principal borrower. " 10. In the next case of Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others (2013 SCMR 1246 SC), relied upon by the learned counsel for the petitioner, it is held that:- "The candidate in question was a dual national but he did not disclose such fact at the time of contesting previous general elections, subsequently the candidate applied for cancellation of his foreign nationality, which was cancelled accordingly. He filed his nomination papers for the general elections again in 2013. Objection was filed against nomination papers of the candidate that at the time of contesting previous general election, he had filed the declaration/affidavit and suppressed the fact of his being dual national, thus, he could not be said to be SADIQ, AMEEN and righteous person and was disqualified to contest the election under Articles 62 and 63 of the Constitution. High Court set-aside order of election tribunal and rejected nomination papers of the candidate by holding that he was guilty of perjury disqualified" 11. In the next case of Malik Unzar Aslam v. MRs, Sumaira Malik and others (2014 SCMR 45), relied upon by the learned counsel for the petitioner, it is held that: "Since the respondent No,1 had obtained B.A. Degree by way of impersonation; meaning thereby that at the time when she filed nomination papers she was not qualified to contest and proved herself not to be sagacious,righteously non-profligate, honest, AMBEEN and SAD1Q in terms of Article 62-1(f) of the Constitution. The election of the returned candidate was declared to be void and the respondents was declared disqualified from becoming a member of parliament. Post election scenario. " 12. In the next case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054), relied upon by the learned counsel for the petitioner, it is held that:-- "Senator in question has made a false declaration that at the time of filing his nomination papers to the effect that he was not subject to any of the disqualification specified in Article 63 of Constitution or any other law for time being in force for being elected as a member of parliament/ provincial assembly whereas the respondent senator made a false declaration to the effect that he was not a dual national knowing fully well that he was a dual national, was disqualified to hold the said office by the Hon'ble Supreme Court on account of mis-declaration made by him." 13. In the next case of Muhammad Yaqoob Sheikh v. Election Tribunal Multan (2013 CLC 1512 Lahore), relied upon by the learned counsel for the petitioner, it is held that:-- "The nomination papers of the candidate were rejected by the Election Tribunal on the basis that he was a bank defaulter. Plea of candidate that he was majority shareholder of a company, which had taken loans from different banks, however, all loan liabilities were settled with mutual consent of both parties, it was held that since such settlements between bank and candidate reached after filing of the nomination papers, therefore, disqualification under Article 63 of the Constitution would be attracted, the candidate in such circumstances was disqualified from holding the office of Majlis-e-Shura. "
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14. In the case of Allied Bank Limited through authorized person v. Inamullah Khan and another (2013 CLC 1310 Lahore), relied upon by the learned counsel for the petitioner, it is held that:-- "Liability of guarantor was coextensive with that of the principal debtor, therefore, respondent was liable to pay decretal amount. Respondent did not disclose fact of passing of decree against him in his nomination papeRs, Respondent was not only adjudged Defaulter in terms of Section 14(5A) of Representation of the People Act, 1976, but was also guilty of concealment of facts. Candidature of respondent was hit by provisions of Articles 62 and 63 of the Constitution read with Section 14 (5A) of Representation of the People Act, 1976. Election Tribunal directed to delete name of respondent from the list of validly nominated candidates of the constituency and his nomination papers were rejected. Appeal was allowed accordingly. " 15. In the case of Abbas Khan and another v. Appellate Authority, District and Sessions Judge Attock and others, (2002 SCMR 398), relied upon by the learned counsel for the petitioner, it is held that:-- "Where actual assets of the candidate were at variance with his declared assets, the candidate was not qualified to be elected as a member of Local Government in view of Section 14(i) of Punjab Local Government Elections Ordinance, 2000." 16. In the case of Abdul Wajid Rasool v. District Returning Officer, Muzaffargarh and 2 others (2006 YLR 750), relied upon by the learned counsel for the petitioner, it is held that:-- Nomination papers of petitioner were rejected on ground that he was guilty of concealing assets which he had to disclose in the statement to be filed along with nomination papers, which was upheld by the High Court. " 17. Controverting the arguments of the learned counsel for the petitioner, Mr. Muhammad Yousuf Leghari, the learned counsel for the respondent No,3 has vehemently argued inter alia that the respondent No,3 is not a defaulter within the meaning contemplated by the Representation of People Act, 1976 inasmuch as the respondent No,3 has neither obtained any loan in his personal capacity nor he is beneficiary of any loan. The brother of respondent No,3 namely; Ajaz Ahmed had obtained loan from Faysal Bank by mortgaging the property, which is jointly owned by respondent No,3 and his brother to the extent of 50% share each in the same, therefore, the respondent No,3 would not earn the title of a defaulter and thereby disqualified in terms of Section 12 of Representation of People Act, 1976. The learned counsel for the respondent No,3 refers to para-3 of annexure D to the main petition appearing at page 87 of the file, which is letter dated 30.09.2015 addressed to the Returning Officer 4. Assistant Commissioner Tando Allahyar by Faysal Bank and states that in the said letter the bank has categorically stated that one Mr. Ajaz Ahmed Khokher has availed a running finance facility of Rs,12 million, while the respondent No,3 only stood as a surety for the repayment of the same. The learned counsel for respondent No,3 further states that the petitioner has misguided this Court by stating that the respondent No,3 did not deposit principal outstanding amount and cost as ordered by the Banking Court, subject to which the judgment and decree against the respondent No,3 was suspended, whereas the respondent No,3 vide P.Os. No,03216740 and P.0.03216741, both dated 05.10.2015 for amounts of Rs,750,000/- and Rs,10,000/- respectively paid to Faysal Bank in compliance of the order. He further submits that the Banking Court did not suspend the decree, but set-aside the same on 02.10.2015; that the respondent No,3 had no knowledge about any outstanding amount or pendency of any suit with regard to recovery of any outstanding loan, however, the respondent No,3 came to know about the judgment and decree when he appeared before the Returning Officer at the time of scrutiny of his nomination papers and the petitioner filed objections along with photocopies of judgment and decree of Banking Court No,V, Karachi; that the brother of the respondent No,3, who is the principal borrower has deposited/repaid the entire outstanding amount of Rs,11,938,423 million to the bank upto 07.04.2015, and the matter is subjudice before the court of competent jurisdiction wherein it will be determined as to what exact amount is due and payable by the principal borrower to the bank,
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and as such before such an adjudication, even the principal borrower cannot be termed as defaulter; that the respondent No,3 has obtained a CIB report issued by the State Bank of Pakistan vide: its letter No, CPD/PU-101/17-09-2015 03.09.30-23341809 dated: 17.09.2015, which has cleared the status of the respondent No, 03 to the effect that he is not a bank defaulter, and wherein the respondent No,3 has not been termed as a defaulter; that the respondent No,3 had filed counter objections before the R.O., to objections of the petitioner and upon considering the same the R.O. Over-ruled the objections of the petitioner and accepted the nomination papers of the respondent No,3. 18. In order to substantiate his arguments, the counsel for the respondent No,3 has placed reliance on the case law: (1) Sardar Sarfraz Ahmed Cheema v. Returning Officer and others (2013 CLC 1088 Lahore) (2) Chulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA- I58, Naushero Feroze and others (1994 SCMR 1299) (3) Syed Nasir Ali Rizvi v. Mirza Nasir Baig and others (1997 CLC 719) (4) Haji Khuda .Bux Nizamani v. Election Tribunal and others (2003 MLD 607 Karachi) (5) 2015 PLC 45 (6) Ejaz Ahmed Cheema v. Javed Mahmood Ghuman and another (1993 MLD 2507) (7) Shahid Khan Nizamani v. Returning Officer and another (2010 CLC 1615 Karachi) (8) Nisar Ahmed Khuhro v. Election Tribunal and 3 others (2003 YLR 749 Karachi) (9) Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and others (PLD 2008 SC 487) and (10) Intesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 310) 19. In the case of Sardar Sarfraz Ahmed Cheema v. Returning Officer and others (2013 CLC 1088 Lahore), relied upon by the learned counsel for respondent No,3, it is held that:- "Candidate only held 24% shares in the company, could not be considered to have an unpaid liability of a loan of Rs,2 million or more, therefore, he did not mainly own or hold controlling or majority interest in the company in terms of Section 12, Explanation (ii) of the Representation of the People Act, 1976. Considering the language of Article 63(1)(n) of the Constitution, Further, admittedly, candidate was a guarantor. Orders passed by Returning Officer and Election Tribunal were set aside and Returning Officer was directed to include name of the candidate in the list of the eligible candidates. " 20. In the case of Ghulam Must afa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-I58, Naushero Feroze and others (1994 SCMR 1299), relied upon by the learned counsel for respondent No,3, it is held that:-- "The language employed in Clause (iii) of Subsection (2) of Section 12 of the Representation of People Act 1976 does not admit the inclusion of a guarantor within the definition of defaulter of loan. " 21. In the case of Syed Nasir Ali Rizvi v. Mirza Nasir Baig and others (1997 CLC 719), relied upon by the learned counsel for the respondent No,3, it is held that:-- "Returned candidate who held less than 51% shares in the company which was defaulter of loan, was not principal debtor, but was only a guarantor, who in his personal capacity not falling within the definition of defaulter, would not be disqualified to contest election." 22. In the case of Haji Khuda Bux Nizatnani v. Election Tribunal and others (2003 MLD 607 Karachi), relied upon by the learned counsel for the respondent No,3, it is held that:-- "Since in the matter before us it is . Nobody's case that the petitioner possessed majority shares in either of the two companies this question would not arise and we would refrain from examining this contention. The law regarding disqualification of the candidate ought to be strictly construed and in the absence of sufficient proof as to the disqualification of a candidate he cannot be disallowed from contesting elections and his nomination cannot be declared as invalid. "
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23. In 2015 PLC 45 it is held that High Court cannot resolve factual controversies in its constitutional jurisdiction. 24. In the case of Ejaz Ahmed Cheema v. Javed Mahmood Ghuman and another (1993 MLD 2507), relied upon by the learned counsel for the respondent No,3, it is held that:-- "Candidate had not obtained outstanding loan or was a party with his father in obtaining loan and even otherwise, outstanding amount of loan was not wholly to be paid by his deceased father but by four others, who along with his father had obtained loan were also liable to pay the same, and he would have to pay loan to the extent only of his share in property which he inherited from his father. Condition imposed on candidate by Returning Officer, was held to be uncalled for. " 25 In the case of Shahid Khan Nizamani v. Returning Officer and another (2010 CLC 1615 Karachi), relied upon by the learned counsel for the respondent No,3, it is held that:-- "Objection against respondent being Director of Mills was that he was defaulter as huge amount was due from his Mills to Market Committee; and that bank loan obtained by his family was still outstanding. Respondent was not personally responsible for such dues of Market Committee, which was subjudiced in civil suit. Obtaining loan from bank under a schedule would not restrict any person from contesting election till commission of default in payment of agreed installment. Due date of repayment of bank loan fell in the year 2014 and respondent had not defaulted thereto. Such objections were rejected in circumstances. " 26. In the case of Nisar Ahmed Khuhro v. Election Tribunal and 3 others (2003 YLR 749 Karachi), relied upon by the learned counsel for the respondent No,3, it is held that:-- "Disqualification of candidate provided under clause (s) of secfion 99(1-A) of Representation of the People Act, 1976, would only be attracted when the loan of two million rupees or more obtained by a candidate in his own name or in the name his spouse or any of his dependents would remain unpaid for more than one year from due date or same was got written off. Orders rejecting nomination papers of candidate were set aside by the High Court declaring those to be illegal. 27. In the case of Muhammad Safdar Abbasi v. Acimir Ya- Malik and 3 others (2004 SCMR 1602' relied upon by the learned counsel for the respondent No,3, it is held that:-- "The High Court could not make any further probe into the matter in exercise of Constitutional jurisdiction. Disputed questions of facts relating to qualification of a Returned candidate could conveniently be adjudicated in election petition. Judgment passed by High Court was maintained by Supreme Court. " 28. In the case of Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and others (PLD 2008 SC 487), relied upon by the learned counsel for the respondent No,3, it is held that:-- "The general law is that High Court should not interfere in the election disputes in its constitutional jurisdiction in view of the bar contained in Article 225 of the Constitution." 29. In the case of lntesar Hussain Bhatti v. Vice-Chancellor, University of Punjab, Lahore and others (PLD 2008 SC 310), relied upon by the learned counsel for the respondent No,3, it is held that:-- "The High Court, generally cannot interfere in election process in exercise of its constitutional jurisdiction in view of bar of jurisdiction contained in Article 225 of the Constitution. " 30. The learned A.A.G. Appearing for the State has inter alia contended that the petition is maintainable and should be allowed for the reasons stated therein. He has adopted the arguments of the learned counsel for the petitioner.
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31. In order to substantiate his arguments, learned AAG has placed reliance on the following case law: 32. Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others (PLD 2008 SC 495), relied upon by the learned AAG, wherein it is held that: "Bar of jurisdiction contained in Article 225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Article 199, in all matters directly or indirectly concerned with the election. " 33. First of all, we take up the cases cited by the learned counsel for the petitioner, which are mainly focused on two aspects of the matter according to the petitioner, firstly; mis-declaration and nondisclosure of material facts in the Form of Declaration of Assets; secondly; the petitioner is defaulter of a bank. 34. In the case of Ch. Mubashar Hussain v. Returning Officer, Kharian, District Gujrat and 3 others supra, it was held that since the candidate was a guarantor for the repayment of a loan, therefore, his liability to repay the loan was co-extensive with that of the principal debtor in terms of Section 128 of the Contract Act, 1872. In this matter, the order of Returning Officer accepting the nomination papers of the candidate was termed erroneous, whereas the decision of the learned Election Tribunal was upheld. For the reasons to follow in this judgment, we do not agree with this proposition inasmuch as the Contract Act, 1872 is not in pen materia with the Representation of People Act, 1976 and the language employed in Clause (iii) of Subsection (2) of Section 12 of the Representation of People Act 1976, which is the relevant election law, the definition of a defaulter does not include a guarantor of a loan. 35. In the case of Sadiq Ali Memon v. Returning Officer, NA-237, Thatta-I and others supra, Hon'ble Lahore High Court has held that since the candidate made a false declaration and committed perjury by categorically. Mis-stating on oath that he does not suffer from any disqualification, thus could not be called as SADIQ, AMEEN under Articles 62 and 63 of the Constitution. 36. We see that complete Form of Declaration of Assets has not been filed by the, petitioner and annexures 'A' and 'B to the same are…
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