TARIQ SALEEM SHEIKH, J.--- This appeal under Section 63 of the Elections Act, 2017 (the "Act"), is directed against order dated 14-6-2018 passed by the Returning Officer whereby the nomination paper of the Appellant was rejected.
2. Brief facts giving rise to this appeal are that on 11-6- 2018 the Appellant filed his nomination paper alongwith affidavit prescribed by the Election- Comm ission of Pakistan for 'contesting election s to the National Assembly from NA-140, Kasur-IV . Respondents No 3 & 4 challenged his candidature on the ground that he was disqualified in terms of Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), and was not qualified in terms of Article 62 thereof to become a member of the Parliament. They alleged that, firstly , the Appellant had intentionally concealed the fact that his spouse, Shahida Talib, got a loan written off from the National Bank of Pakistan (NBP). Secondly , he had suppressed default of his wife towards Bankers Equity Limited
(BEL) regarding which it had filed a suit for recovery of Rs. 507,164,442/- alongw ith markup which was pending.
Thirdly , the appellant had made mis-declaration about the assets of his spouse. Lastly , he had sworn a false affidavit that his current assets worth only Rs. 270,059/, The Returning Officer, vide order dated 14-6-2018, upheld the objections of Respondents No. 3 & 4 and rejected the Appellant's nomination paper . Hence, this appeal.
3. The learned counsel for the A ppellant contended that the impugned order is contrary to law and facts. The appellant and his wife, Shahida Talib; held only 10.95% shareholding in M/s. Hamid Textile Mills Limited (the "Company"). As minority shareholders they were not in a position to control its affairs and could not thus be held responsible for its financial defaults. He submitted that the Returning Officer esse ntially relied on the reports of the State Bank of Pakistan receive through the Scrutiny Cell of the ECP to hold that the Appellant and his spouse had obtained loans exceeding Rs. 2.0 million from financial institutions which remained unpaid for more than one year and had also got them written off. This was factually incorrect. The said report was based on misinformation and the Returning Officer did not take into account the explanation offered by the Appellant and the clearance certificate issued by the NBP and BEL which were presented to him by the Appellant at the time of scrutiny of his nomination paper . The learned counsel denied that the appellant had made any mis-declaration in his nomination paper or had suppressed any material fact.
However , he admitted that Shahida Talib was maintaining Account No. 2000412457 and Account No. 08079472401 with Silk bank and Standard Chartered Bank respectively but submitted that these were not mentioned in the nomination paper due to inadvertence. According to him, the said omission would not entail any penal consequences and disenfranchisement of the Appellant.
4. On the other hand, the learned couns el for Respondents No. 3 & 4 controve rted the above contentions and supported the impugned order .
5. Arguments heard. Record perused.
6. M/s. Hamid Textile Mills Limited is a public limited company . Till the transfer of shareholding in the year 2008, the Appellant and his spouse Shahida Talib held 888,250 and 563,950 shares respectively in the company which amounted to 10.95% of the shareholding. On the basis of Memorandum of Understanding dated 17-1-2008 the Appellant and Shahida Talib transferred their shareholding to Khawar Almas Khawaja etc. The said arrangement was endorsed by NEW which is evident from its sanction advice dated 14-5-2009. In terms of that MOU Sardar Muhammad Umar , the brother of the appellant, undertook to pay a sum of Rs. 91.312 million to NBP on or before 31-.12.2013 for the discharge of the liability of Shahida Talib and the appellant Sardar Muhammad Umar made the payment as per schedule which was confirmed by NBP vide Adjustment and Liability Certificate dated .19-12-2013; In this view of the matter , prima facie, the Appellant and Shahida Talib cannot be accused of having committed any financial default qua N131).
7. It is pertinent to point out that NBP filed a suit bearing No COS No 1/2015 for recovery of Rs. 103.94 million against the Company and 17 others, including the Appellant and Shahida Talib, in the Lahore High Court. The Appellant and his spouse contested it and the same was dismissed to their extent vide judgment and decree dated 19-10-2016. NBP has filed an appeal there against which is still pending. However , the fact of the matter is that judgment and decree dated 19-10- 2016 still holds the field.
8. Now I advert to the alleged default towards BEL. Perusal of the record reveals that-in the year 1990, the Company decided to increase its paid up share capital by 6.6 million shares through an offer to the shareholders and general public. In that context the Company entered into an underwriting agreement with BEL wherein the latter undertook that it would subscribe to the unsubscribed shares. The entire offer made to the public was not subscribed as a consequence whereof BEL. took up 2,977,500 unsubscribed shares of the Company in terms of the underwriting agreement. In the year 2011 BEL filed a recovery suit against the Company in which Shahida Talib was implicated as defendant. The matter is pending adjudication before the learned High Court of Sindh at Karachi in which unconditional leave to defend has been granted to the defendants. It is thus evident that the liability of Shahida Talib, if any, towards BEL is yet to be determined. It is significant to note that since the appellant and his spouse were minority shareholders in the Company they cannot be reckoned as defaulters.' Reliance is placed on Muhammad Yaqoob Sheikh v. Election Tribunal (Multan Bench) and 4 other s" (2013 CLC 1512 ), wherein it was held as follow s:--- "We therefore, hold that the tern? "he has obtained loan" appearing in Article 63(1)(n) of the Constitution includes loan obtained by a candidate or his business or by a corporate entity in which the candidate holds majority shareholding establishing his control and management over the said business of corporate entity ."
9. I have attended to the other objections of Respondents No. 3 & 4 as well. In my opinion, the Appellant, has substantially complied with all legal requirements while filing his nomination form and the defects if any are trivial.
Respondents No. 3 & 4 have not brought on record any tangible evidence which may indicate that he has made any misdeclaration or concealed his own assets or that of his wife. Neither 12138 nor any other government agency has come forward to challenge the information provided by the Appellant.
10. The learned counsel for Respondents No. 3 & 4 vehemently contended that the Appellant had concealed the bank accounts of his wife and it was a sufficient ground to disqualify him for the elections. The question as to whether this omission would entail the stated consequences cannot be determined at, this stage as it requires a thorough inquiry to ascertain whether it was due to negligence or otherwise. Prima jack, the appellant did not derive. any benefit or advantage by not disclosing the said bank accounts. In this respect 1 am guided by the. dictum laid down by the Hon'ble Supreme Court of Pakistan in case of "Sheikh Muhammad Akram v. Abdul Ghafoor and 19 others" ( 2016 SCMR 733 ).
11. For what has been discussed above, this appeal is allowed. The impugned order is set aside and the appellant's nomination paper is accepted.
12. It is clarified that the findings recorded and the observations made herein are based only on tentative assessment of the material that has been placed before me for the limited purpos e of deciding this appeal. They shalt not prejudice the case of any of the parties in any future proceedings.