1. ' SYED ZAKIR HUSSAIN, J.---Through this appeal, the appellant has disputed acceptance of the nomination form of the respondent No,2 by the respondent No,1 against the vacant seat of the Constituency NA-235 Sanghar-II, by the respondent No,1, in rejection of the objections orally raised by the appellant before the respondent No,1, on the day of scrutiny to the effect that respondent No,2 being Director of Sanghar Sugar Mill, against which, an amount of Rs,2,06,03,540.68 being dues of the Market Committed of the District Sanghar, is outstanding for the years together, is a defaulter there against; in the declaration of liabilities, he did not disclose the said dues as his liability; and similarly, he maintained silence as to the Bank loan obtained by his family, against which, an amount of Rs,59,20,741 is outstanding and therefore, he is not eligible to contest the election being defaulter in terms of the provisions of sections 12 and 14 of the Representation of People Act 1976 read with Article 63 of the Constitution of Pakistan. The appellant on such score claims that the respondent No,1 accepted a nomination form of the respondent No,2, illegally, in total disregard of the relevant law and rules. The appellant has therefore, prayed that the nomination papers of the respondent No,2, which have been accepted by the respondent No,1, may be rejected accordingly.
2. ' Against notice of this appeal, the respondent No,2 appeared and contested the matter. He filed his counter affidavit against the appeal in which, he has stated on oath that neither he nor his spouse or dependent and or any business concern mainly owned on his part, ever obtained any bank loan, and nor he fell in default of payment thereof. He further stated that he is a Director of Sanghar Sugar Mill, which is a public limited company, and against the claim of Rs,2,06,03,540.68 of the Market Committee concerned, which is purely against the Mill, a Civil Suit No,178 of 2001, has been filed by the Mill on 14-2-2001 in the honourable Sindh High Court, for the relief(s) of declaration permanent injunction, damages and refunds and accounts etc. And the Market Committee being defendant in the suit, is facing the proceedings thereof, and a status quo order against the Market Committee, in terms of the prayers contained in the plaint thereof, was granted on 18-12-2002, which is still operative, and hence, the issue of the said dues of the Market Committee, being sub judice before the Court of competent jurisdiction between the aforesaid parties, cannot attract mischief of section 12 of Representation of the People Act 1976 for the purpose of determining his liability. He categorically has stated in his counter affidavit that the appeal is misconceived and is liable to be dismissed.
3. ' During the course of hearing of the appeal, the learned counsel for the appellant contended that Market Committee dues referred to above, being Government dues, must have been cleared by the respondent No,2 before submission of his candidature to the election in question, and since the same are outstanding for over years together, the respondent No,2 is defaulter there against and thus, is disqualified for contesting the election as candidate in terms of the aforementioned provisions.
4. ' According to the learned counsel, the declaration as to the liabilities, made by the respondent No,2 for the relevant columns of the nomination forms, in negative, is not correct being outcome of concealment of the facts as to the Market Committee dues, and Bank loan referred to above, and on such score alone, the respondent No,2 is disqualified for the purpose in question. The learned counsel added that the counter affidavit of the respondent No,2, is not satisfactory and the burden of showing, to the satisfaction of norms of law, that no legal bar on his contest of the election or his becoming a candidate therefore, appears to have been there in law, has not been discharged on his part and hence, the learned counsel strongly pressed that the appeal of the appellant may be allowed and the nomination papers of the respondent No,2 may be rejected and consequently, the order of the respondent No,1 of their acceptance, which is void in the circumstances, be set aside.
5. ' On the other hand, the learned counsel for the respondent No,2 stated that the record attached with the counter affidavit of the respondent No,2 carries copy of the plaint of the Civil Suit No,178 of 2001 (Sanghar Sugar Mills Ltd. v. Province of Sindh and others) and that of the status quo order passed in the proceedings thereof, by the honourable High Court of Sindh, Karachi, which shows that the matter as to the said dues of the Market Committee is not against him but is against the Mill and the same is sub judice before the Court of competent jurisdiction and therefore, the respondent No,2 being Director, cannot be termed as defaulter for the liability of the company, which is a public limited company, and its liability is yet to be determined. The learned counsel further pointed out that the matter of Market Committee dues, against the respondent No,2 as claimed, needs adjudication on merits including evidence by competent Court of law, while this Tribunal has limited jurisdiction, and can only decide issues in summary manner. As regards the bank loan, the learned counsel for the respondent No,2 contended that the record produced on his part in the matter, clearly shows that the bank loan was obtained in 2007, for a term of seven years, and the process of its repayment through agreed instalments, would end in 2014 and that there is no any default in payment of the said instalments, and hence, there arises no question of holding or considering the borrower defaulter thereagainst, at all.
6. ' The learned counsel for the State representing the respondent No,1 supported the acceptance of the nomination papers, of the respondent No,2 on legal footings and prayed for dismissal of the appeal being based on frivolous grounds.
7. ' We having heard the matter on 19-7-2010 dismissed the appeal for the reasons to be recorded later on.
8. ' We have given due consideration to the record and respective contentions of both sides and perused the law applicable in the matter very carefully, as well. For benefit of these findings, we would like to reproduce sections 12 and 14 of Representation of the People Act, 1976, as under- (12). Nomination for election:- (1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper it in the prescribed form which shall be signed both by the proposer and seconder and shall, on solemn affirmation made and signed by the candidate, accompany:--
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member
(b) Omitted. (c) a declaration that no loan for an amount of two million rupees or more, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents, or any business concern mainly owned by him or the aforesaid, stands unpaid for more than one year from the due date, or has got such loan written off;
(d) a declaration that he, his spouse or any of his dependents or -a business concern mainly owned by him or the aforesaid, is not in default in payment of government dues or utility charges, including telephone, electricity, gas and water charges of an amount in excess of ten thousand rupees, for over six months, at the time of filing of nomination papers;
(e) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any, alongwith attested copies thereof; and
(f) a statement of his assets and liabilities and those of his spouse and dependents on the prescribed form as on the preceding thirtieth day of June;
(3) Every nomination paper shall be delivered to the Returning Officer by the candidate in person and the Returning Officer shall acknowledge receipt of the nomination paper specifying the date and time of receipt.
(4) A person may be nominated in the same constituency by not more than five nomination papers.
(5) Omitted.
(6) The Returning Officer shall assign a serial number to every nomination paper and endorse thereon the name of the person presenting it, and the date and time of its receipt, and inform such person of the time and place at which he shall hold scrutiny.
(7) The Returning Officer shall cause to be affixed at a conspicuous place in his office a notice of every nomination paper received by him containing the particulars of the candidate as shown in the nomination paper.
(8) The nomination form and accompanying declarations and statements shall be open to inspection by the public, and copies thereof may be made available by the Commission in such manner and on payment of such fee as may be prescribed.
14. Scrutiny.- (1) The candidates, their election agents, (the proposers and seconders and one other person authorized in this behalf by each candidate) (and an elector who has filed an objection to the nomination of a candidate,) may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity of examining all nomination papers delivered to him under section 12: (Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.)
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
9. ' The Returning Officer may, either of his own motion or upon any objection, (either by an elector or)
10. (by any person referred to in subsection (1) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that:--
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper);
(c) any provision of section 12 or section 13 has not been complied with (or submits any false or incorrect declaration or statement in any material particular); or
(d) the signature of the proposer or the seconder is not genuine; Provided that:--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper,
(Ia) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;)
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or (his proposer or seconder) so as to bring them in conformity with the corresponding entries in the electoral roll; and
(iii) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.
11. (3A) Notwithstanding anything contained in subsection (3), where a candidate deposits any amount of loan, tax or utility charges payable by him before rejection of his nomination paper on the ground of default in payment of such loan, taxes or utility charges, such nomination paper shall not be rejected for default thereof.).
(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record brief reasons thereof.)
(5) A candidate, may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner, with the approval of the President; and such appeal shall be summarily decided within such time as may be notified by the Commission and any order passed thereon shall be final.)
12. (5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under subsection (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers.)
(6) An appeal not disposed of within the period specified in sub-section (5) shall be deemed to have been rejected.
(7) Announcement of the day and time appointed for the hearing of an appeal under subsection
(5) over the radio or television or.By publication in the press shall be deemed to be sufficient notice of the day and time so appointed.
13. 'The contention of the Appellant counsel to the correctness of the declaration or concealment of facts, as to the liability of the aforesaid Market Committee dues, and that of the aforementioned bank loan etc., is not sustainable, and merits no consideration. As regards the said dues of the Market Committee, the respondent No,2 is not personally responsible and the matter is sub judice as already stated above. Obtaining loan from bank under a schedule does not restrict any person from contesting elections as long as such person has not committed "default" in payment of instalment agreed between the parties. The borrower i,e, respondent No:2 in the connected Appeal No,3 of 2010 has not committed default in the above terms, and therefore, the issues raised by the Appellant are misconceived.
14. 'We for the aforesaid reasons are of the view that there is no liability of the respondent No,2 against the Market Committee dues, (which are against the Sanghar Sugar Mill) as the matter is sub judice in the Civil Suit No,178 of 2001. The question of concealment of the facts as to the said dues and the declaration furnished in the relevant column of the nomination papers of the respondent No,2, in that regard, thus, stands answered as above accordingly. The Bank loan liability in the sum of Rs,59,20,741 came into the knowledge of the appellant from the declaration furnished by one Gul Muhammad, who is also a candidate of the said seat and whose papers of nomination thereagainst also stood accepted in rejection of the objection raised by the appellant who has filed a separate appeal thereagainst, which bears No,3 of 2010 (Shahid Khan Nizammani v. Returning Officer NA-235 Sanghar-II and another) which is heard together with the present appeal, and in the said declaration, the said candidate shows the same as a matter of fairness, as his liability as borrower of financial facility obtained on his part, from the Standard Chartered Bank, and not as defaulter thereof, since the due date of its repayment is falling in the year 2014 and there appears no default in payment of the instalments being made thereagainst to date, and thus, he is not defaulter thereto, at all. Moreover, the scope of section 14 of Representation of the People Act, 1976 is limited and can not be enlarged to equate it with section 52 of the Act where parties are required to lead evidence to establish their claim.
15. 'We for the aforesaid reasons have dismissed the Appeals Nos. 2 of 2010 and 3 of 2010 by our short order dated 19-7-2010.