CH EJAZ AHMAD, J.--This order will also dispose of Writ Petition No. 16904 of 2002 as the questions of law and fact involved in both the cases are common.
2. The petitioner was a candidate for election to the National Assembly Constituency N.A 96 and the Provincial Assembly Constituency No. 93. In the absence of any objection, the nomination papers of the petitioner from both the aforesaid Constituencies were accepted by the Returning Officers respectively vide orders dated 29-8-2002 and 27-8-2002. The Allied Bank respondent No. 3 filed a petition under section 14(5A) of the Representation of People Act No. (LXXXV 1976) with the complaint that the petitioner was a defaulter of the Bank Loan. The basis thereof was a decree passed against him and others on 249-1998, which remains unsatisfied. Accordingly, the learned Election Tribunal, vide order dated 11-9-2002 cancelled the nomination papers of the petitioner from both the Constituencies holding him as disqualified under the provisions of section 8D(2)(o)
(p) of the Conduct of General Election Order, 2002 (Chief Executive's Order No. 7 of 2002).
3. The learned counsel for the petitioner contends that no appeal was competent on behalf of the Allied Bank Ltd. And if at all on the basis of information placed before the learned Election Tribunal, it wanted to proceed suo motu, the petitioner ought to have been put to notice. It is next contended that the only disqualification in respect of a loan contemplated by section 8D(2)(o) is that the loan was obtained by a candidate in his own name or in the name of his spouse or dependent children.
He maintains that the loan was incurred by the Sun Pak Fiber Ltd. Of which he was only a shareholder and was not even a Director. Form "A" and Form "29" filed before the Registrar Joint Stock Companies were relied . Upon. He maintains that the disqualification provision of section 8D(2)(o) does not refer to a decree and in any case the claim of the bank against the petitioner was based on a guarantee. He relief on Ghulam Mustafa Jatoi versus Additional District and Sessions Judge/ Returning Officer N.A 158 Nausharo Feroze and others (1994 S.C.M.R. 1299) to submit that a loan agreement and an agreement of guarantee are district transactions and, therefore, merely on the basis of the decree against the petitioner, (based on a guarantee) he did not incur any disqualification under section 8 D(2)(o) of Chief Executive's Order No. 7 of 2002. He even asserted that the document evincing guarantee by the petitioner was a forged document. He further maintains that section 3 of Chief Executive Order No. 7 of 2002 overrides all other laws, and, therefore, no other provisions of law including section 14 (5A) of Act LXXXV of 1976 could be pressed against the petitioner to disqualify him. According to his reading of section 3, it repeals section 14 (5)(A) of Act No. LXXXV of 1976 by necessary implication.
4. On the other hand, the learned counsel representing the Allied Bank Ltd. Submits that petitioner was one of the defendants in the suit. He filed P.L.A No. 122/B of 1997 while the other defendants in the suit had filed P.L.A No. 107/B of 1997 but leave to appear and defend was not allowed to the defendants in the suit which was decreed on 24-9-1998 in the amount of Rs. 6,91,59,120.00 Rs.
21,28,000.00 and Us $ 19,60,000.00 and not even a single penny has been paid by the judgment- debtors till date.
5. The learned Deputy Attorney General submitted that the defaulter of a bank loan was clearly disqualified under section 14(5A) of Act No. LXXXV of 1976. He maintains that section 8D (2)(q) of Chief Executive's Order No. 7 of 2002 saves all other laws, and, therefore, the provisions of section 14(5A) aforesaid were fully attracted.
6. We have considered the submissions made by the learned counsel for the parties and have perused the record. As far as the first contention of the learned counsel for the petitioner is concerned, perusal of the record shows that on tare petition of the Allied Bank, notice was issued to the petitioner on 7-9-2002. The petitioner was duly represented before the Election Tribunal and after hearing the learned counsel for the petitioner, the learned Election Tribunal passed the order dated 11-9-2002. This course was clearly permissible and no further notice was required to be issued to the petitioner.
7. As far as the next contention is concerned, although the loan was not incurred in his own name by the petitioner yet the case of a defaulter of a loan was clearly covered by the provision of section 14(5A) of Act No. LXXXV of 1976 and merely because the Tribunal quoted a wrong provision, the conclusion reached by the learned Election Tribunal cannot be interfered with. Reliance of the learned counsel for the petitioner on the case of Ghulam Mustafa Jatoi supra is wholly in-apt because in the said case not only there was no decree, remaining unsatisfied, against Mr. Jatoi but also that the Banking Council while issuing list of defaulter had not included the name of Mr. Jatoi therein. Therefore, we do not consider it necessary to dilate on this question any further. .8. As far as the contention based on section 3 of the Chief Executive Order No. 7 of 2002 is concerned, we do not find any merit. Section 8D (2)(q) is reproduced for facility of reference:- "(q) he is for the time being disqualified from being elected or chosen as a member of the Majlis- e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force."
The effect of the said provision clearly is that the Representation of the People Act, 1976 stands saved. The import of section 3 to our mind clearly is that if any law is inconsistent with the Chief executive's Order No. 7 of 2002, it has to give in and we do not find section 14(5-A) to be inconsistent with any provisions of Chief Executive's Order No.7 of 2002.
9. We may observe that on 13-8-2002 the Chief Election Commissioner issued Manual of Instructions and in para 3 the laws governing conduct of forthcoming election have been specified which, inter alia, includes the Representation of People Act, 1976. This is the view of the concerned authorities which is in accord with law and unless a departmental interpretations found contrary to any law it has to be respected.
10. The disqualifying provision in section 8D(2)(o) or section 99 (1A)(s) covers a loan incurred by a candidate in his own name or in the name of his or her spouse or dependant children while section 14(5A) provides that a defaulter of loan is also disqualified. The defaulter of loan referred to in section 14(5A) is not prefaced with the conditionality that the loan must have been incurred by a candidate in his own name. To our mined, this is an independent provision and was inserted in the Act, LXXXV of 1976 by virtue of Ordinance, No. XXXVI, 2002 promulgated on 31-7-2002. The intention of the law maker is explicit i.e. To shut the doors of the Parliament to the defaulters of loans which is clearly established by the unsatisfied decree against the petitioner and others.
11. We have noted that the petitioner did not place on the record of these writ petitions complete copy of the nomination papers submitted by him. However, on our direction copies of the nomination papers in respect of both the Constituencies were made available to us. The nomination papers in respect of NA 96 show that in the column of "liabilities", the unsatisfied Bank decree was not even mentioned. As far as nomination papers for PP-93 are concerned, the copies supplied are not complete inasmuch as that the page showing the "liabilities" is missing from the said copies. However, since the petitioner did not disclose his liability under the decree, in respect of nomination papers relating to N.A. 96 we are led to believe that he did not disclose it either in the nomination papers relating to PP.93. The petitioner was, thus, guilty of suppression of material
9. We may observe that on 13-8-2002 the Chief Election Commissioner issued Manual of Instructions and in para 3 the laws governing conduct of forthcoming election have been specified which, inter alia, includes the Representation of People Act, 1976. This is the view of the concerned authorities which is in accord with law and unless a departmental interpretations found contrary to any law it has to be respected.
10. The disqualifying provision in section 8D(2)(o) or section 99 (1A)(s) covers a loan incurred by a candidate in his own name or in the name of his or her spouse or dependant children while section 14(5A) provides that a defaulter of loan is also disqualified. The defaulter of loan referred to in section 14(5A) is not prefaced with the conditionality that the loan must have been incurred by a candidate in his own name. To our mined, this is an independent provision and was inserted in the Act, LXXXV of 1976 by virtue of Ordinance, No. XXXVI, 2002 promulgated on 31-7-2002. The intention of the law maker is explicit i.e. To shut the doors of the Parliament to the defaulters of loans which is clearly established by the unsatisfied decree against the petitioner and others.
11. We have noted that the petitioner did not place on the record of these writ petitions complete copy of the nomination papers submitted by him. However, on our direction copies of the nomination papers in respect of both the Constituencies were made available to us. The nomination papers in respect of NA 96 show that in the column of "liabilities", the unsatisfied Bank decree was not even mentioned. As far as nomination papers for PP-93 are concerned, the copies supplied are not complete inasmuch as that the page showing the "liabilities" is missing from the said copies. However, since the petitioner did not disclose his liability under the decree, in respect of nomination papers relating to N.A. 96 we are led to believe that he did not disclose it either in the nomination papers relating to PP.93. The petitioner was, thus, guilty of suppression of material facts from his nomination papers thereby violating the provisions of section 12 of Act, LXXXV of 1976 and even on this score discretionary jurisdiction cannot be exercised in his favour.
12. For what has been stated above, we find no merit in these writ petitions, which are, according dismissed. .