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 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 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. "
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, 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. "
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.
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 missing, therefore, we cannot say with authenticity as to whether or not some material facts have been concealed by the respondent No,3 or some misdeclaration has been made therein by him, which are questions of facts, and cannot be looked into in a constitutional petition in writ jurisdiction of this court. We are, therefore, of the opinion that this case has distinguishable facts and is not relevant to the facts and circumstances of the case in hand, and is not at all applicable.
37. In the case of Malik Umar Aslam v. MRs, Sumaira Malik and others supra the issue involved was of obtaining forged B.A. Degree, by way of impersonation by the candidate and declaring herself to be a graduate in the declaration form at the time of filing nomination papers and thereby qualified to contest elections, her election was set-aside by the Apex Court on the ground that she was not AMEEN and Sadiq in terms of Articles 62 and 63 of the Constitution of Pakistan. This case is also not relevant in view of our' observations made in the foregoing paras with regard to alleged mis- declaration or concealment in the Declaration Form by the petitioner.
38. In the case of Syed Mehmood Akhtar Naqvi v. Federation of Pakistan through Secretary Law and others supra, the Hon'ble Supreme Court has taken a view that where the 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 on account of misdeclaration made by him.
39. We do not see that any misdeclaration has been made by the respondent No,3 in the Asset Declaration Form, which has not been filed completely by the petitioner; therefore, this case is not applicable to the facts and circumstances of the present petition.
40. In the case of Muhammad Yaqoob Sheikh v. Election Tribunal Multan supra supra, the nomination paper of the candidate were rejected by the Election Tribunal on the basis that he was a loan defaulter. Since we are of the view that the respondent No,3 does not fall within the definition of loan defaulter within the meaning of Section 12 of the Representation of People Act, 1976, and that he was merely guarantor of a loan obtained by his brother, therefore, the case law is not relevant.
41. In the case of Allied Bank Limited v. Inamullah Khan supra, the Hon'ble Lahore High Court has held that the liability for guarantor was co-extensive with that of the principal debtor, therefore, the respondent was liable to pay decretal amount, who did not disclose such fact in his nomination papers, therefore, the candidate was termed as defaulter in terms of Section 15(5A) of Representation of People Act, 1976 and was also held guilty of concealment of facts, his candidature was hit by Articles 62 and 63 of the Constitution read with Representation of People Act, 1976. The Election Tribunal was directed to delete the name of respondent from the list of validly nominated candidates. This judgment is not applicable to the facts and circumstances of the present case of Respondent No,3, who is neither defaulter of any bank within the meaning of law nor we can say without doubt that he has concealed any material facts at the time of filing his nomination papers inasmuch as there are many unanswered questions with regard to the Form of Declaration of Assets filed by the respondent No,3 before the Returning Officer, the respondent No,2.
42. In the case of Abbas Khan and another v. Appellate Authority District and Sessions Judge Attock supra, the candidature of the candidate was rejected where actual assets of the candidate were at variance with declared assets. The candidate was not found qualified to be elected as member of local government for concealment of assets. Since we cannot say without doubt that the respondent No,3 has concealed any material facts at the time of filing his nomination papers, therefore, this case law is also distinguishable from the facts of the instant case and is not relevant.
43. In the case of Abdul Wajid Rasoolv. District Retuning Officer Muzaffargarh supra, the nomination papers were rejected on the ground that he was guilty of concealing assets which he had to disclose in the statement to be filed along with the nomination papeRs, This judgment is again not relevant in view of our opinion expressed on the Asset Declaration Form as above, which is incomplete.
44. Turning now to the arguments and the case law relied upon by the learned counsel for the respondent No,3, we take-up first of all the case of Sardar Sarfraz Ahmed Cheema v. Returning Officer and others supra, relied upon by the learned counsel for respondent No,3 it is held that where the candidate was merely a shareholder to the extent of 51% in the company who obtained the loan and was merely a guarantor for securing such loan, then the candidate did not fall within the definition of a defaulter. There is no cavil to the proposition of the learned counsel for the respondent No,3 that he was merely a guarantor for repayment of the loan of the bank and not the principal borrower as is also evident from the letter dated 30.09.2015, annexure 'D to the main petition, addressed by Messrs Faysal Bank to the respondent No,2, the Returning Officer.
45. In the case of Haji Khuda Bux Nizamani v. Election Tribunal and others supra, similar view was taken where the candidate was merely a shareholder in the company which was the principal borrower, and merely a guarantor, he was held to be eligible to contest. We are of the considered view that in the instant case also the petitioner being merely a guarantor does not fall within the definition of a defaulter as discussed above.
46. In the case of Ajaz Ahmed Cheema v. Javed Mahmood Ghuman and another supra, relied upon by the learned counsel for the respondent No,3, it is held that Candidate had not obtained outstanding loan nor 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 deceased father when the father had also left behind some other legal heiRs, In such circumstances condition imposed on candidate by Returning Officer, was held to be uncalled for.
47. Here, in the instant case, we see that the loan has been obtained by the brother of the respondent No,3 who is the principal borrower whereas the respondent No,3 is a guarantor only.
The respondent No,3 is neither the beneficiary of the said loan nor falls within the definition of a defaulter and, therefore, we see that in the instant case also, the respondent No,3 has not obtained any loan in his own name or in the name of his spouse or dependent, therefore, he is not a defaulter within the meaning of Section 12 of the Representation of People Act, 1976.
48. In the case of Shahid Khan Nizamani v. Returning Officer and another supra, relied upon by the learned counsel for the respondent No,3, it is held that respondent was not personally responsible for dues of Market Committee, which was sub-judiced 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. In the instant case we note that the judgment and decree against the respondent No,3 have been set- aside by the Banking Court on 02.10.2015 upon some payment being made by the respondent No,3 and his brother to the bank, whereas the respondent No,3 himself is not the principal borrower.
49. In the case of Nisar Ahmed Khuhro v. Election Tribunal and 3 others supra, relied upon by the learned counsel for the respondent No,3, it is held that disqualification of candidate provided under clause (s) of section 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 of his spouse or any of his dependents would remain unpaid for more than one year from due date or same was got written off. We are fully in agreement with the arguments extended by the learned counsel for the respondent No,3 that the loan was neither obtained by the respondent No,3 nor in the name of his spouse ,or any one of his dependents, which remained unpaid for more than one year from due date or same was got written off. Therefore, the respondent No,3 cannot at all be termed as a defaulter of a bank within the meaning of section 99(1-A) of the Representation of People Act, 1976.
50. In the case of Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others supra, 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. We fully agree with this proposition of the learned counsel for the respondent No,3 and are also fortified by the case law cited above in this judgments reported in 2006 SCMR 12 and 2006 SCMR 276.
51. In the cases of Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49 Islamabad and others and Muhammad Hussain Babar v. Election Commission of Pakistan through Secretary and others supra, 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.
52. We have heard the learned counsel for the parties, perused the material available on the record of the case and carefully examined the case law cited at the bar with their able assistance.
Since we have heard the counsel for the parties at great length, therefore, we convert the instant petition at Katcha Peshi stage into regular hearing and dispose of the same by this judgment.
53. It is an admitted position that the nomination of respondent No,3 was objected to by the petitioner before the Returning Officer, the respondent No,2 on the sole ground that the respondent No,3 was defaulter of bank, the same ground was taken before the District Returning Officer, the respondent No,1 in appeal, and again in the instant petition, the petitioner has taken the same ground while impugning the validity of the orders of R.O. And DRO before this court, therefore, we shall decide the instant petition on that score alone. Moreover, we while sitting in the writ jurisdiction of this court cannot decide the factual controversies.
54. We have given anxious consideration to the loan documents filed by the petitioner along with the petition. This mortgage deed dated 31.05.2004 has been filed as annexure 'F' to the main petition appearing at page 11 of the file, which is between respondent No,3, his brother Mr. Ajaz Ahmed Khokher and the bank. The Memorandum of Deposit of Title Deed which appears at page 29 as annexure 'F-1' to the main petition has been executed in favour of the bank by respondent No,3 and his brother Mr. Ajaz Ahmed Khokher. The Agreements for Running Financing of Short/Medium/Long Term on Mark-up-Basis dated 31.05.2014 which appears at page 35 as annexure 'c-r. And dated 04.08.2005 at page 55 as annexure 'D' to the main petition reveal that the same have been executed between the bank and Ajaz Ahmed Khokher. The Promissory Note appearing at page 67 of the file as annexure 'D-1' to the petition has also been signed by Ajaz Ahmed Khokher, whereas the General Power of Attorney dated 01.06.2004 appearing at page 69 as annexure "H" to the main petition has been signed by respondent No,3, his brother Mr. Ajaz Ahmed Khokher and the bank, Letter of Continuity dated: 31.05.2004 and Letter of Arrangement/Undertaking have been signed by the brother of the respondent No,3 namely; Ajaz Ahmed Khokher. However, the petitioner has chosen to withhold the letter of guarantee allegedly signed by the respondent No,3 and the Sanction Advice, which would have revealed the names of the respondent No,3 and Ajaz Ahmed Khokher as .The guarantor and principal borrower respectively. Nevertheless, this position becomes crystal clear by the letter dated 12.10.2015 addressed by Faysal Bank to the Returning Officer 4, Assistant Commissioner Tando Allahyar appearing at page 161 of the file as annexure 'N' wherein the bank has categorically stated as under:-- "Mr. Aftab Ahmed Khokher shall remain under legal and moral obligation to repay his FBL liability contesting District Council elections by virtue of Court decree held by FBL against him as guarantor of Mr. Ajaz Ahmed Khokher, who has availed a finance facility from Faysal Bank Limited."
55. As to the second contention of the learned counsel for the petitioner that the respondent No,3 has made false declaration in the Form of Declaration of Assets appearing at page 83 of the file, it may be noted that the said form has not been filed along with the present petition in its entirety inasmuch as annexure 'A' mentioned in the last column of remarks of the said form and annexure 'B' mentioned at the bottom of right hand side of the same, have not been filed by the petitioner along with the said form for the reasons best known to him, and in the absence of such material documents, we are unable to say as to whether or not the respondent No,3 made any further disclosures in the aforesaid annexures, with regard to his assets, which fulfilled the requirements of law. Therefore, we are skeptical about the contents of the aforesaid form and the anomalies contained therein, as the annexures as aforesaid are missing from the same, which gives rise to factual controversies. It may further be noted that the High Court while sitting in the writ jurisdiction cannot resolve disputed questions of facts in a constitutional petition. In this regard, reference can be made to the cases of Sheikh Sadiq v. Ellahi Bux and 2 others (2006 SCMR 12) and Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276).
56. In all the aforesaid judgments that the learned counsel for the petitioner has laid emphasis on, concealment of material facts or mis-declaration on the part of the candidate at the time of filing of nomination papers is alleged, whereas the two judgments cited by the learned counsel for the petitioner with regard to liability of a surety as a guarantor reported in PLD 2008 Lahore 134 and 2013 CLC 1310 Lahore, which are based on the definition of a guarantor or surety as contemplated by Section 128 of the Contract Act, 1872, we, with profound respect to the same, find that these are in conflict with what is held earlier by the Hon'ble Apex Court in the earlier judgment of five members bench Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer NA-158 Naushero Feroze reported in 1994 SCMR 1299, which is also relied by the counsel for the respondent No,3 and the Appellate,Election Authority, which made it the bisis of its findings in the Election Appeal No,47 of 2015, wherein the five members bench of the Hon'ble Supreme Court has 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 Clause (iii) of Subsection (2) of Section 12 of the " Representation of People Act 1976.
57. It is also an admitted position that respondent No,3 owns 50% share in the property mortgaged with the bank by his brother to obtain the aforesaid loan.
58. Therefore, in our view, the definition of a surety as contemplated by Section 128 of the Contract Act, 1872 is also not relevant to the case of an election dispute inasmuch as the Contract Act, 1872 is not a law in peri-materia with the Representation of People Act, 1976. We are of the opinion that a statute cannot be interpreted in the light of language used in another statute except when the language which has to be interpreted, is in the context, open to more meaning than one. Moreover, a loan agreement is distinct from an. Agreement of guarantee. In this regard reference can be made to the case of Bhumbho Mehtaram and another v. District Local Board, Hyderabad Sindh through its Chief Officer (AIR 1940 Sindh 199) and the case of National Commercial Bank Ltd., v.
Muhammad Tufail and another (PLD 1975 Karachi 671), which are also referred to by the Hon'ble Supreme Court in the aforesaid judgment.
59. We are fortified in our view by the aforesaid judgment of Hon'ble Supreme Court in Ghulam Must afa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-I58, Naushero Feroze and others supra, relied upon by the learned counsel for respondent No,3, Wherein it is held that:-- "The language employed Section 12 of the Representation of People Act 1976 does not include a guarantor within the definition of defaulter of loan. "
60. The Hon'ble Supreme Court, in the same judgment, has further made reference to the case of Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay and another reported in PLD 1957 SC (India) 90, wherein the Indian supreme Courfrhas inter alia held that "it is not safe to pronounce judgment on the provision of one Act with reference to decisions dealing with the other Acts which are not perimateria." While interpreting the word 'guarantor' the Hon'ble Supreme Court has further held in the aforesaid judgment 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 for the following reasons: That the words "in his own name or in the name of his spouse or dependent or any business concern mainly owned" negate the inclusion of any other category of persons.
(ii) Clause (iii) of subsection (2) of Section 12 of the Representation of the People Act, 1976 has categorized the persons who are covered by the same, namely, the candidate should have taken the loan himself or his spouse or dependent or any business concern in which he owns share of 51 percent, or more as provided for in the Explanation to subsection (7) of Section 12 of the Act incorporated by Ordinance XX of 1993.
' That the words 'in his own name or in the name of his spouse or dependent or any business concern mainly owned' negate the inclusion of any other category of persons.
(ii) The above clause has categorized the persons who are covered by the same, namely, the candidate should have taken the loan himself or his spouse or dependent or any business concern in which he owns share of 51 percent, or more as provided for in the explanation of subsection (7) of section 12 of the Act incorporated by Ordinance No,XX of 1993.
' Besides the above legal position, even on factual plane the appellant could not have been penalized by the Returning Officer for the following reasons:-
(i) That admittedly the appellant's name was not included in the list of defaulters published by the Banking Council pursuant to subsection (5) of section 12 of the Banks (Nationalization) Act, 1974 incorporated by Ordinance No,XIX of 1993."
"It will not be out of context to point out that a loan agreement is distinct from an agreement of guarantee. In this regard reference may be made to the case of Bhumbho Metharam and another v. District Local Board, Hyderabad Sindh through its Chief Officer (AIR 1940 Sindh 199) and the case of National Commercial Bank Limited, Karachi v. Muhammad Tufail amid another (PLD 1975 Karachi 671)."
61. It will not be out of place to mention here that by virtue of whatever is contemplated by section 71 of the Sindh Local Government Act 2013, the provisions of the Representation of People Act, 1976 shall be applicable to the elections and electoral process of the said Act.
62. For the sake of convenience section 71 of the Sindh Local Government Act, 2013 is reproduced as under:-- Section 71 "Savings under the [Act]: Save as provided under this Act, the provisions of the Representation of People Act, 1976 shall be applicable to the elections and the electoral process under this Act. "
63. In view of above, we do not see any force in the argument of the learned counsel for the petitioner that since the respondent No,3 is a guarantor, therefore, he falls within the definition of a defaulter and as such is liable to be disqualified from contesting elections of the Local Bodies 2015.
Moreover, the State Bank of Pakistan vide: its letter No,CPD/PU-101/17-09-2015 03.09.3023341809 dated 17.09.2015, has cleared the status of the respondent No, 03 that he is not a bank defaulter. We are of the considered view that indeed the respondent No,3 was only a guarantor for the repayment of loan obtained from the bank by his brother Ajaz Ahmed Khokher, therefore, he does not fall within the definition of a defaulter as contemplated by the election laws i,e, Clause (iii) of Subsection (2) of Section 12 of the Representation of People Act 1976, whereas at the same time we find ourselves fully in agreement with the arguments extended by the learned counsel for the respondent No,3 that the loan was neither obtained by the respondent No,3 nor in the name of his spouse nor any one of his dependents, which remained unpaid for more than one year from the due date or same was got written off. The respondent No,3 was merely a guarantor for the repayment of the loan obtained by his brother who was the principal borrower, therefore, the respondent No, 3 cannot at all be termed as a defaulter of a bank within the meaning of section 99(1-A) of the Representation of People Act, 1976.
64. The upshot of the above discussion is that the candidate, in the instant case, the respondent No,3 cannot be termed as a loan defaulter within the meaning of Clause (iii) of Subsection (2) of Section 12 of the Representation of People Act 1976. The case law cited by the learned counsel for the petitioner is distinguishable and is not relevant to the instant case for the reasons already discussed herein above in detail.
65. The instant petition is, therefore, dismissed, however, with no order as to costs and the impugned orders of Returning Officer No, 4, Tando Allahyar dated: 29-09-2015, and of the Election Tribunal/ District and Sessions Judge, Tando Allahyar dated: 12.10.2015 are upheld as the same are unexceptionable and do not call for interference by this Court.
66. Above are the reasons for the short order dated: 18.11.2015 Announced in open Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.