1. ' MUSHIR ALAM, J.---Petitioner vying to contest the Election for Zila Nazim, Jacobabad, in the Election Schedule for 6th October, 2005 was disenfranchised by the Returning Officer at the stage of scrutiny. His nomination papers were rejected by the Returning Officer on 16-9-2005 at the motion of the respondent No,2 on the ground, inter alia, that he is defaulter of loan payable to Zarai Tarraqiati Bank Limited (hereinafter referred to "ZTBL") in the sum of Rs,1,68,71,839. Disenfranchise order were maintained by the District Returning Officer in appeal vide order dated 20-9-2005.
2. Through instant petition, the petitioner has impugned the orders referred to above.
3. ' It was contended by Mr. Zuberi, learned counsel for the petitioner that suit for recovery of amount outstanding against the petitioner indeed was filed by the ZTBL followed by judgment and decree.
4. However, in execution, the matter was negotiated and settlement arrived at between the parties which was recorded by the Executing Court.
5. ' It was urged that certain amount was paid but on account of differences that have arisen subsequently further amount could not be paid. It was contended that since on account of breaches and lapses on the part of ZTBL controversy as to actual amount claimed had arisen according to Mr. Zuberi, which determination could have been made by the Executing Court had the execution, been filed by the ZTBL, which was not tiled and allowed the claim, if any, to become barred by time.
6. ' It was next contended that, after the compromise was arrived at between the parties in execution new cause of action had occurred to the ZTBL, to claim adjudication of liability if any.
7. ' According to Mr. Abid S. Zuberi, learned counsel, since after the compromise recorded by the executing Court, dispute as to outstanding if any has not been determined, therefore, there is no adjudication of liability. He has placed reliance on the meaning of "adjudged" as propounded in the case of Nasrullah and another v. Haji Usman Ghani and 5 others 2002 CLC 1925 to urge that there has been no adjudication of the amount claimed by the Bank, since after the compromise the petitioner cannot be deprived of his right to contest.
8. ' It was submitted, in alternate, that the petitioner be allowed to contest the Elections subject to the outcome of any adjudication that may if at all be filed by the ZTBL. It was contended that where the controversy raised is disputed question, invariably the superior Courts have allowed the candidates to contest, subject to challenge in election petition, which course, according to him, could be followed in the instant case as well. In support of his contention, he has placed reliance on a very recent judgment dated 29-9-2005 recorded by the Honourable Supreme Court in the case of Lt. General (Retd.) Abdul Majid Malik v. District Returning Officer, Rawalpindi and others in Civil Petition No,2485 of 2005. In the referred case educational qualification was successfully challenged before the Returning Officer. It appears that when the matter came up before the High Court, High Court viewed with suspicion, the official gazette of the University, wherein the name of the petitioner did appear but without parentage. Apex Court in the wake of controversy before it held:- - "Therefore, once the gazette was produced before the High Court, the learned Judge should have raised a presumption under section 92 of Order No,10 of 1984. He thus failed to exercise the jurisdiction vesting in him. The omission of the parentage from the gazette should not have operated to the prejudice of the petitioner at the stage of scrutiny of Nomination papers, it, at worst gave rise to suspicion, which was not enough to rebut the presumption under Article 92 of Order 10 of 1984. Scrutiny of Nomination paper is a quasi-judicial function and the decision of the concerned functionaries cannot possibly be based on suspicion alone.
9. ' Apex Court also cited with approval the observation made in earlier case reported as Samar Pervaiz v. Board of Intermediate and Secondary Education Lahore (1971 SCMR 838) wherein it was held "Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must not rest on suspicion but on legal grounds established by legal evidence."
10. ' Mr. Zuberi also relied on case reported as Abdul Shakoor Kaloochi and another v. The State (SBLR 2002 Sindh 1263). In the cited case, in the context of National Accountability Ordinance 2002 it was held that; where a bona fide dispute as to existence of liability is pending before a competent Court, it is not proper to treat a party as 'wilful defaulter' for the purposes of criminal proceedings.
11. Reference to the case of Asif Jatoi v. The Election Commission of Pakistan (2004 YLR 2192) was also made. In said case petitioner instead of presenting Degree issued by the University produced letter of the University to the effect that he had completed requirement for his B.A. Degree and Degree would be sent after due process. Court concluded that word used in the letter "may or may not mean that on the date of Nomination the petitioner was a graduate; petitioner was allowed to contest subject to proof at regular hearing. Lastly reliance was placed on the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge (1994 SCM R 1299). In said case while interpreting provisions of Representation of Peoples Act, 1976 apex Court concluded at page 1314 that "any provision of the statute, which encroaches upon the rights of a citizen, is to be construed strictly. Apex Court while interpreting clauses (ii) and (iii) of subsection (2) to section 12 of the Representation of People Act, 1976 as amended, also declined to import the definition of Finance as given in the clause (e) of section 2 of the Banking Tribunal Ordinance, 1984, which, included guarantees and indemnities. Apex Court declined to disenfranchise the petitioner who was merely a guarantor. Neither he was a borrower himself nor his spouse or dependent. It was neither shown that he owns 51 % or more shares in any business concern within the contemplation of Explanation to subsection (7) of section 12 of the Ordinance, 1979.
12. ' In the light of judgments referred to above. It was contended by Mr. Abid S. Zuberi, that neither the Returning Officer nor the District Returning Officer adverted to the relevant provisions of the Sindh Local Government Ordinance, 2001 (hereinafter referred to as "SLGO, 2001").
13. ' According to learned counsel for the petitioner, both the authorities below while observing that the petitioner is in arrears of loan owned to the ZTBL erred in law while disqualifying the petitioner on a ground not envisaged under the law. According to the learned counsel the petitioner was never "adjudged wilful defaulter" within the contemplation of section 152(j) of the SLGO 2001.
14. ' It was contended, that time-barred debt does not tantamount to a candidate being presumed to be a wilful defaulter.
15. ' It was urged that the amount allegedly outstanding even otherwise could not be recovered having become barred by time on account of indolence of the Bank. Therefore petitioner cannot be termed as wilful defaulter, which determination could only be made by a civil Court of competent jurisdiction. According to the learned counsel amount alleged to be outstanding has become barred by time; therefore, it cannot be said that the petitioner is liable to pay to the Bank, as the amount is not recoverable under the law. According, to him the term "wilful defaulter" was used for the first time in the National Accountability Ordinance, 1995, therefore, unless intentional default is shown no disqualification could be attributed.
16. ' As against above, Mr. Ali Hyder Qureshi learned counsel for respondent No,2 urged that, the whole emphasis of the petitioner that he is not adjudged wilful defaulter is misplaced. According to him, judgment and decree of the Banking Court passed against the petitioner has been placed on record, against which no appeal was filed. It is stated that earlier also petitioner issued a cheque that was dishonoured and a criminal prosecution was launched. However, on account of influence of the petitioner, criminal prosecution was withdrawn execution was also compromised and the petitioner was given concession to pay the amount in instalments which amount has not been paid as committed, excepting a sum of Rs,25,00,000. Petitioner issued post-dated cheques to clear the liabilities but as usual cheques were dishonoured, it was therefore, urged that what else could be a wilful defaulter. It was further urged that the limitation might extinguish remedy but not the right. It was contended that findings of the Returning Officer and so also of District Returning Officer holding that the petitioner is in arrears of the liability arises out of the judgment and decree based on finding recorded after due adjudication. It was urged that such disqualification is perpetual in nature till it is wiped out by payment of the amount. He has produced copy of the Fresh Execution Application filed against the petitioner, which seems to have been filed on 1st October, 2005.
17. ' Mr. Faisal Arab, learned Standing Counsel while supporting the arguments of learned counsel for respondent No,2, urges that Nazim is important public office and only upright persons are eligible to contest and be elected. It was urged that, it is for this reason, checks have been provided under the Elections Laws to disenfranchise culpable, corrupt and dishonest persons and to encourage honest and clean persons to come forward and contest. Mr. Faisal Arab, also points out that Ground (f) of the petition admits that no appeal was filed against the judgment and decree of the Bank. It is, therefore, contended that no exception to the judgment and decree passed by the Banking Court could be taken in incidental proceeding. Nothing more is required to hold petitioner as wilful defaulter.
18. ' It was urged that in case the contention of petitioner's counsel is sustained, then the judgment and decree of the Banking Court would be rendered nugatory. According to him, the execution proceedings are merely procedural machinery to execute the judgment and decree. Adjudication as to the outstanding amount is the domain of the trial/Banking Court, which has already been done, and cannot be undertaken by the Execution Court as claimed.
19. ' Mr. Ahmed Pirzada, learned A.A.-G. Simply adopted the arguments of learned counsel for respondent No,2 and learned Standing Counsel.
20. ' Mr. Abid S. Zuberi learned counsel for the petitioner, exercising the right of rebuttal contends that, the respondent No,2 has pointed out that the execution has been filed. He has drawn our attention to the copy of Execution Application that appears to have been presented on 1-10-2005. He contends that on the face of it, execution has become barred by time. It is further contended on filing of the Execution the controversy'as to the actual amount due and payable by the petitioner has re-opened and unless and until the liability is determined and unless such amount is adjudicated, the petitioner cannot be deprived of his right to contest the elections. It is urged that unless the petitioner is adjudged a wilful defaulter and the orders impugned cannot be sustained.
21. ' We have heard the arguments advanced by the learned counsel for the parties, perused the material available on record and thoroughly examined the case-laws cited at bar. It is not disputed that the petitioner borrowed the amount from ZTBL Shikarpur. It is also not disputed that, petitioner defaulted to pay outstanding amount, which led ZTBL to file a Suit No,107 of 1993 against the petitioner. Suit was decreed vide judgment and decree dated 30-6-1998, copy of the judgment and decree was placed on the record of the Returning Officer as well as before this Court. Banking Court in its judgment recorded that the Election Tribunal had earlier also disqualified him to contest the previous Elections on the ground of being a defaulter.
22. ' Loan was rescheduled, the petitioner agreed to pay a sum of Rs,1,53,07,833 in three (3) equal and yearly instalments spreading over a period from 7-4-2002 to 7-4-2004. Three (3) post-dated cheques were also issued to show the bona fide of the petitioner. Execution No,168 of 1999 for recovery of the decretal amount was accordingly withdrawn. It is also not disputed that all three cheques were dishonoured.
23. ' Contention of Mr. Abid S. Zuberi, learned counsel for the petitioner that, no adjudication of wilful default was made is therefore, not correct. The contentions were dealt with by the learned District Returning Officer in the impugned Order as follows:-- "Admittedly the appellant has not denied taking loan from Zarai Tarqiati Bank Limited Shikarpur and he also admitted filing of suit and Execution Application, which was disposed by way of compromise duly signed by Manager Agriculture Development Bank of Pakistan now designated as Zarai Tarqiati Bank Limited and their counsel and Sardar Muhammad Muqeem Khoso and his counsel before the Banking Court No,1 Larkana Division at Larkana. Such application under Order 23, rule 3, C.P.C. Was filed and copy of the same is placed on record. But the point is that according to learned counsel for appellant concerned bank has failed to file Execution Application within the prescribed period of six years, therefore, the amount outstanding against the appellant stands extinguished. The filing of execution application was admitted by the Appellant and his counsel. But even if Bank did not apply, and the right to take out execution become barred by time, that does not mean that the judgment debt was extinguished and the decree ceased to exist. It is well- settled that the statute of limitation runs against the remedy and does not discharge the debit. This principle is recognized by section 25(3) of the Contract Act which makes a time-barred debt as a valid consideration for a fresh promise to pay the debts, as has been held in a case of Sardar Ahmed Bhatti v. Assistant Registrar, Co-Operative Societies Lyallpur East and another reported in 1983 CLC 790. Moreover this is not a proper forum to decide the point of limitation. Further more, the appellant has admitted passing of decree by Banking Court but there is nothing on record to show that the appellant has filed appeal before competent forum, he could have challenged the decree, through an appeal, but he did not file any appeal. The case-law relied upon by the learned counsel for appellant is quite distinguishable with the facts and circumstances of the present Election Petition.."
24. ' In cases from the jurisdiction of this Court reported as Nazim Union Council No,6 v. Election Tribunal (2003 M LD 582), the Court examined section 14(j) of the Sindh Local Government Election Ordinance, 2000 analogous to the section 152 (j) of the SLGO 2001. In said case also the proposed candidate had also availed the loan from the Bank and on failure to repay the amount the Bank obtained a judgment and decree against him. It was therefore ruled that the petitioner could not claim that he it was not adjudged wilful defaulter. Similar view was followed in Zubair Ahmed Chandio v. District Returning Officer (2002 CLC 1807).
25. ' The phrase "adjudged wilful defaulter" within the contemplation of section 152(j) of the SLGO, 2001 and other contemporary election laws came up for consideration in number of cases. For the benefit of appreciation section 152, prescribing the disqualification and the relevant sub-clause (j) is reproduced as follows:-- "152. Qualifications for candidates and elected members.---(1) A person shall qualify to be elected or to hold an elective office or membership of a local government, if he- a b c d e f g h i
(j) has not been "adjudged a wilful defaulter" of any tax or other financial dues owed to the federal, a provincial, or a local government or any financial institution, including utility bills outstanding for six months or more."
26. ' In the case of Tahir Anwer v. District and Sessions Judge/Appellate Authority Lahore 2001 YLR 1537, from Lahore jurisdiction, it was held that unless amount claimed and demanded is judicially determined, disqualification is not attracted. In the case of Riaz Hussain Jillani v. Returning Officer 'Halqua 85 (2001 YLR 971), judgment and decree was passed by consent, contention that, there was no adjudication, as it was a consent decree, was repelled. Following observations of the learned Bench in the context of present case are relevant:-- "The requirement of section 14(j) of the said Ordinance is that if some dues against a candidate are adjudged by the Court of competent jurisdiction, the question of its being recoverable or not is not relevant for the purposes .Of section 14(j) of the Punjab Local Council Election Ordinance, 2000. It is not necessary for an amount to be adjudged, that it was fixed after a full-fledged trial. If the parties before a Court of competent jurisdiction agree to settle their dispute through compromise and the said Court passes a decree and fix their liabilities, then the amount so fixed would be an adjudged amount due against that party. We would not like to comment upon the procedure which the bank can adopt for the recovery but the fact remains that the respondent No,4 had admitted his liability before the Court of competent jurisdiction and said Court had passed a decree against him for the said amount."
27. ' The petition was allowed and Nomination Papers of the respondent No,4 were "deemed to be rejected".
28. ' In the case of Muhammad Altaf Mithro v. Additional District Judge (2004 YLR 585) nomination of a candidate who was bank defaulter, were rejected by the Returning Officer and so also by the District Returning Officer. He was however, allowed in writ petition to contest Election subject to the deposit of the amount. Candidate was elected, but later declared defaulter. Petition challenging Election was dismissed on the ground that on the date of Nomination he was not adjudged defaulter, which declaration came two months after filing of the petition. In the case of Nazim, Union Council No,6 v. Election Tribunal (2003 M LD 582). A learned Division Bench of this Court when confronted with some what similar situation, and where the candidate had admitted that at the time of filing of Nomination Paper he was under liability to pay amount and the Banking Court had passed a decree against him. It was held that candidate in the circumstances cannot say that he was not adjudged "wilful defaulter".
29. On preponderance of the cases as referred to above. Disqualification in terms of section 152(j) of the Ordinance, 2001 is attracted the moment it is shown that a Court of a competent jurisdiction has "adjudged" the intending candidate or the returned candidate on the date of scrutiny, a defaulter and a judgment and decree is passed. It matters not whether the judgment and decree determining the liability is outcome of full-fledged adjudication, trial or may it be a result of compromise or settlement. Adjudication of intending candidate or the returned candidate being a defaulter or in arrears of outstanding loan by a Court of "competent jurisdiction" is sufficient to attract disqualification under section 152 (j) of SLGO, 2001. Once such disqualification is attracted, it is of not relevant for the purpose of SLGO 2001, whether any steps were taken by the Financial Institution for the recovery of the amount adjudged by the Court or not.
30. ' It is now very well-settled, that bar of limitation only extinguishes the remedy and does not wipe out the right. In the instant case admittedly the Banking Court has passed a judgment and the decree against the petitioner. It is not the case of the petitioner that the Banking Court was not competent to adjudicate or pass such judgment and decree.
31. ' A sum of Rs,1,28,20,834 was adjudged to be outstanding against the petitioner. In Execution Application 168 of 1999 petitioner compromised to pay amount adjudged together with accrued mark-up as decreed in the sum of Rs,1,53,07,833 in three equal instalments for which admittedly he issued three cheques. All cheques admittedly were dishonoured. Fresh Execution application appears to have been filed on 1-10-2005.
32. ' In view of the facts as unfolded in this petition we failed to understand as to what else could be shown to establish that the petitioner ha been adjudged wilful defaulter. Merely because the learned Returning Officer or the District Returning Officers have described the petitioner to be in arrears of Zarai Tarqiati Bank Limited, Shikarpur instead of using the statutory phrase "adjudged wilful defaulter" as used in section 152(j) of the S.L.G.O., 2001, would not make any difference. Fact remains that, the petitioner was adjudged defaulter by the Banking Court of competent jurisdiction.
33. Such adjudication alone disqualified the petitioner from the contest of Local Government Election 2005, for the seat of Zila Nazim Jacobabad in terms of disenfranchise embargo imposed under section 152(j) ibid. Petitioner's refuge behind the bar of limitation, to avoid the payment of decretal amount reflects his mind set that he has no intention to pay the outstanding amount. What could be expected of a person who failed to live up to his own solemn commitment to pay the amount after negotiating a settlement in execution proceedings. It need no wild imagination to presume, if persons like petitioner are allowed to contest and be elected what they would do with huge public funds at their disposal.
34. ' In the instant case, admittedly, judgment and decree has been given by the Banking Court on merit. No appeal admittedly has been filed as is evident from Ground (f) of the petition. Concession to pay the amount in instalments extended in the first execution filed by the Bank was not availed rather defied fragrantly, yet the petitioner had the audacity to argue that he was not adjudged wilful defaulter.
35. ' As rightly held in the case of Riaz Hussain Gillani v. Returning Officer Halqua 85' (2001 YLR 971):-- "The requirement of section 14(j) of the said Ordinance is that if some dues against a candidate are adjudged by the Court of competent jurisdiction, the question of its being recoverable or not is not relevant for the purposes of section 14(j) of the Punjab Local Council Election Ordinance, 2000. It is not necessary for an amount to be adjudged, that it was fixed after a full-fledged trial. If the parties before a Court of competent jurisdiction agree to settle their dispute through compromise and the said Court passes a decree and fix their liabilities, then the amount so fixed would be an adjudged amount due against that party. We would not like to comment upon the procedure which the bank can adopt for the recovery but the fact remains that the respondent No,4 had admitted his liability before the Court of competent jurisdiction and said Court had passed a decree against him for the said amount."
36. Even if it is presumed for the sake of argument that bank, on account of indolence, allowed the execution to become barred by time. Then, to the adjudication of default or the liability determined under the judgment and decree is not wiped out, such stigma will continue to stick on as long as the amount adjudged is not repaid. The question whether the adjudged decretal amount is recoverable or not may be relevant for the purposes of execution proceedings, is not a relevant consideration to attract disqualification within the contemplation of section 152(j) of SLGO, 2001.
37. What is relevant is that, the intended or returned candidate was adjudged wilful defaulter by the competent Court of law as on the date of scrutiny of Nomination papers.
38. ' Execution proceedings are merely mechanism to enforce the judgment and decree. Execution Court cannot go behind the decree or reopen the controversy as to liability to pay decretal amount, which is the domain of the trial Court, or by the appellate Court for that matter. No appeal admittedly was filed. Judgment and decree of the Banking Court now cannot be questioned.
39. It may be observed that, the disqualification provisions in the election laws, have been provided to ostracize delinquent, dishonest deceitful persons and to pave way and encourage upright, honest and clean persons to come forward and contest. Such, provisions tend to sift the grain from the chaff and discourage persons not suitable to hold elected or public office. Under new dispensation of Local Government Ordinance, 2001, Nazims hold key position in the district administration. He is incharge and manager of entire district. He not only manages the administrative affairs of the district, he is trustee and custodian of substantial public funds and property. . It needs no wild imagination to visualize the havoc that may be done to the system if dishonest, corrupt and indolent persons are allowed to contest the election.
40. It is indeed correct as argued by Mr. Zuberi that, a person cannot be disenfranchised merely because there is suspicion and doubt as to his disqualification in terms of section 152 SLGO 2001. It may be observed that in cases of doubt or suspicion, where there is no tangible evidence or material before the Returning Officers, superior Courts have invariably allowed such candidates to contest, subject to proof of disqualification, in regular election petition, if they are elected. In the instant case, it is noted that, the conclusion of the Learned Returning and the District Returning Officers as the petitioner being disqualified under section 152(j) ibid was not based on mere suspicion or doubt alone. Judgment and decree of the Banking Court was placed on record, to establish that the petitioner was found to be in arrears of loan and, for all intent and purposes, was adjudged a wilful defaulter within the contemplation of section 152(j) ibid. Outstanding decree is sufficient to prove that the petitioner is a wilful defaulter.
41. ' For the foregoing reasons we have dismissed the above petition by announcing a short order today in open Court and above are the reasons for the same.