' Briefly the facts are that respondent No,1 filed his Nomination papers for election to the National Assembly for Constituency No,NA(110) Sialkot No,1 for the General Elections held on 10th of October, 2002. The nomination papers were filed on 23rd of August, 2002. An objection was filed on behalf of one Shehzad Khan (voter) against the nomination papers of respondent No,1 on the ground that there was a subsisting decree dated 23rd of July, 2002 passed against respondent No,1 in favour of Agricultural Development Bank of Pakistan. It was contended that respondent No,1 was thus, bank defaulter and was not eligible to contest the said elections. The said objections were rejected by the order of the Returning Officer, whereafter the objector preferred an Election Appeal No,197-A of 2002 which culminated in the judgment, dated 12-9-2002. The said appeal was disposed of with the direction to respondent No,1 to make deposit of the remaining amount of Rs,12,49,354 within seven days from the date of the said order. It was found that if the amount is deposited the appeal shall stand dismissed. In the event of the failure to deposit the amount within the specified period, the appeal, however, shall stand accepted with the result that the nomination papers of respondent No,1 shall stand cancelled.
2. The learned counsel appearing for the petitioner concedes that respondent No,1 complied with the aforesaid order and deposited the specified amount within the period specified in the said judgment. The learned counsel for the petitioner after perusing the judgment of the Election Tribunal dated 12-9-2002 contends that the said judgment confirms that there was a bank default against respondent No, f at the time of submission of his nomination papers and that it was obligatory upon respondent No,1 to have declared the said liability when he submitted his nomination forms. Further submits that despite a direction to make payment and notwithstanding the fact that the payment, in fact, was made within the stipulated time, it would not have effect of either wiping of the default or of not mentioning the same at the time of submission of the forms.
This stand is contrary to the stand taken by respondent No,1, according to which they have declared the liability and assets in Annexure "3" of the nomination papers.
3. The learned counsel for the petitioner further supports his contention with the plea that during the pendency of the suit for recovery of the money paid by the Agricultural Development Bank of Pakistan, respondent No,1 had moved an application on 28th of June, 2002 wherein he admitted his liability and whereupon, said decree dated 23rd of July, 2002 was passed. He urges that the admission of liability further obligated respondent No,1 to have mentioned the aforesaid liability along with his nomination papers.
4. Mr. Abid Hasan Minto, Advocate makes specific reference to section 14(3)(c) of the Representation of the People Act of 1976 to contend that as respondent No,1 had submitted a false declaration of assets and liabilities along with his nomination papers, the Returning Officer should have rejected the same as according to the events that unfolded respondent No,1 was a bank defaulter at the date of the submission of the nomination papers. He next referred to section 78 read with section 12(2)(f) of the Representation of the People. Act, 1976 to contend that under section 78 a corrupt practice in relation to elections includes the submitting of a false or incorrect declaration in respect of his educational qualifications, assets and liabilities or any liability with regard to the payment of loans. The learned counsel relied upon Rao Tariq Mehmood v. Election Commissioner of Pakistan PLD 2003 Lah. 165 and Rao Tariq v. Election Tribunal Punjab Lahore PLD 2003 Lah. 169 to contend that on account of his conduct respondent No,1 was not a sagacious righteous honest and Ameen person and lacked the crucial qualifications to be elected or chosen as a member of Parliament.
5. The learned counsel added that only such nomination papers are saved under section 14(3-A) where the amount of loan is deposited before the rejection of his nomination papers. The learned counsel relied upon the judgment of this Court, dated 12-9-2002 to emphasise that even in the said judgment, of default of respondent No,1 was established and it was in pursuance of the direction given in the said judgment that respondent No,1 ultimately deposited the defaulted amount.
According to him the date of this judgment and the subsequent payment of the defaulted amount was much later than the date of submission of the nomination papers.
6. Mr. Rashideen Nawaz, Advocate for respondents, conversely contended with reference to the order passed in Election Appeal No,197 of 2002 and the judgment passed therein dated 12-9-2002 that the said appeal was disposed of with the direction to the respondent No,1 to make the deposit of the balance amount of Rs,12,49,354 within seven days from the date of the said order. Submits that it is not denied that the said amount was paid within specified date by respondent No,1. Further submits that the nomination papers submitted by respondent No,1 were accepted by the Returning Officer and it was against the said acceptance of the nomination papers that one Shahzad Khan had filed the aforementioned election appeal. It is submitted that the judgment in the said E.A. Was not further challenged by any party with the result that it had attained finality under section 4(5) of the Representation of the People Act, 1976. Learned counsel further refers to section 14(5-A) of the Act (ibid) to submit that where a candidate deposits any defaulted amount before rejection of his nomination papers on account of the default, such nomination papers shall not be rejected for such a default. It is contended that the nomination papers were submitted by respondent No,1 on the 23rd of August, 2002 which was accompanied by a declaration as Annexure "III". Learned counsel has referred to the contents of the said declaration, wherein a reference is made to the fact that respondent No,1, his spouse and the children as well as the dependant mother hold 12.5 per cent. Share in Messrs Sialkot Dairies which was a Public Limited Co. It is acknowledged that for the three different loans taken from the A.D.B.P. By the Sialkot Dairies, the bank has filed three different recovery suits against the company. In Suit No,3 of 1995, this Court passed_an interim decree against the company but respondent No,1 and his spouse were declared as not the defaulters, vide judgment, dated 12-11-1999. Referring to Suit No,16 of 1995, a reference was made to a compromise decree passed vide judgment, dated 23-7-2002. It is further submitted that respondent No,1 had paid of his total liability in terms of the said compromise decree. In the 3rd Suit No,9 of 1995, respondent No,1 was not found to be liable on account of any personal guarantee.
7. It is submitted with reference to this document, that in fact, at the time of submission of the nomination papers on the 23rd of August, 2002, no concealment regarding any liability was made by respondent No,l.
8. Arguments have been heard and record perused.
9. The facts established on the record are that nomination papers were filed on 23-8-2002. The said nomination forms were accompanied by the necessary declaration. One Shahzad Khan filed objections to the nomination papers of respondent No,1 on the ground that the said respondent was one of the Directors of Messrs Sialkot Dairies Limited which had obtained loan from A.D.B.P. It was contended that there were three suits which were pending against the said Company and that nondisclosure of this fact in the declaration form disqualified respondent No,1 from his candidature. The learned Returning Officer considered this objection and vide order, dated 31-8- 2002 proceeded to reject the same. The said Shahzad Khan preferred 'Election Appeal No,197-A-02.
The said appeal culminated in the judgment dated 12-9-2002 passed by this Court, wherein, after considering the entire history of the case of the alleged dues against respondent No,1 in respect of loan in the name of Messrs Sialkot Diaries Limited, respondent No,1 was directed to make the deposit of remaining amount of Rs,12,49,354 within seven days of the passing of the said order.
10. It is also not disputed at the bar that the said amount was paid by respondent No,1 within the period specified in the said order.
11. In this view of the matter, there is considerable force in the submission of the learned counsel for the respondent No,1 that all or any amounts which were found outstanding against respondent No,1 were duly paid before his nomination papers were ever rejected. It is also found that the judgment passed in Election Appeal No,197-A of 2002 attained finality as it was not challenged further by any party.
12. The submission of the learned counsel for the respondent No,1 that along with his nomination papers he had filed the statement of assets and liabilities and those of his spouse and dependants is also borne out from the record. A reference to Annexures "I", "II" and "III" to the nomination forms affirms this stand of respondent No,
1. This also negates the contention of the petitioner that the conduct of respondent No,1 was in any manner tainted with malice or mala fide intentions to wilfully conceal the fact of loan default. Another aspect of the case is also worth mentioning. The petitioner himself did not file any objection petition before the Returning Officer. Even after the objection of Shahzad Khan referred to above were dismissed by R.O. And his (Shahzad Khan's) appeal culminated in the order of this Court dated 12-9-2002 the petitioner did not move the competent forum voicing any such grievance. The present election petition is bereft of legal force.
13. After hearing the parties it is concluded that the petitioner has failed to establish that.
Respondent No,1 committed such default within the meaning of section 78 read with section 12(2)
(f) of the Representation of the People Act, 1976 which would amount to a corrupt practice. It is also found that the order, dated 12-9-2002 passed by this Court in Election Appeal No,197/A of 2002 could not have the effect of attributing any default to respondent No,1 whereby his election could be declared as void.
14. Having come to this conclusion, it is worthy of note to state that the petitioner filed an objection before the Returning Officer for a recount of votes. This objection of the petitioner was dismissed by the Returning Officer on the ground that the petitioner did not raise any objection at the time of consolidation of the result despite issuance of public notice. As the petitioner did not raise any objection regarding the irregularity in the count at the time of consolidation of the result, he cannot be allowed to take the same through this petition.
15. The upshot of the above discussion is that there is no merit in this election petition which is hereby dismissed.
Election .