' The present election petition relates to the election for the National Assembly seat from Constituency No. NA-63 Jhang-I, held on 25th February, 1985. The petitioner and respondents Nos. 1 to 3 contested the election. Sardarzada Muhammad Lali Shah respondent No.1 was declared elected. Dost Muhammad Lali, the petitioner, has challenged the election on the ground that on a large scale corrupt and illegal practices were committed by respondent No.1 during the election and that he was also disqualified from being elected as member of the National Assembly under Article 10(2)(b)(8) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 [President's (Post-Proclamation) Order No. 5 of 1977] (hereinafter to be referred as P.0.5 of 1977) as on the nomination day, he was a contractor of Government of the Punjab as he had obtained contract for the lifting of sand under the Mining Concession Rules, 1960. The petitioner has stated that he being the next candidate, who, after respondent No.1, obtained the maximum votes is entitled to be declared as returned candidate in view of the disqualification of respondent No.1 as the votes cast in his favour of respondent No. 1 were thrown away and wasted.
2. In the written statement filed by respondent No.1, allegation of commission of illegal and corrupt practices was denied. He also denied the petitioner's allegation that he suffered from any disqualification from being elected as member of the National Assembly on the nomination day.
On 4th December, 1985 the petitioner made a statement withdrawing the allegation of commission of corrupt and illegal practices made against respondent No.1 and assailed the election of respondent No.1 only on the ground that he was disqualified to be a candidate for election on the nomination day on account of being a Government contractor. After the above statement, the following issues were framed for disposal of the election petition: -
(1) Whether respondent No. 1 was not qualified to be elected and suffered from the disqualification under Article 10(2)(b)(8) of the Houses of Parliament and Provincial Assemblies (Elections)
Order 1977 as stated in are of t e et' 'on?
(2) If issue No.1 is proved, whether the votes cast in favour of respondent No.1 are thrown away and wasted votes and is the petitioner entitled to be declared elected in his place?
FINDINGS ISSUE No.1:
3. The petitioner examined Muhammad Mushtaq Ali, Assistant Director, Mineral Development, Chiniot, as P.W.
1. He stated that respondent No.1 was granted mining lease for lifting ordinary sand from land measuring 100 Acres situated in Tehsil Chiniot, District Jhang, for a period of two years from 4th November, 1982 to 3rd November, 1984. The period of lease, was, however, extended till 3rd March, 1985. He proved photostat copy Exh.P.1 by which the aforementioned lease was granted. He also proved photostat copy of memorandum Exh.P.1 issued by him to the Tehsildar, Chiniot, on 4th March, 1985 for resumption of possession of the land. Dilmir Khan Girdawar Qanungo, Halqa Ahmadpur Sial, was examined by the petitioner as P.W.2. He deposed that on 23rd April, 1985 he received the original memorandum issued by P.W.1 and complied with the direction contained therein on 24th April, 1985. Muhammad Nawaz P.W.3 and Ghulam Ali P.W.4 were produced by the petitioner in support of his allegation that respondent No.1 had been working as a contractor of Mineral Department of the Government of Punjab for lifting sand from the land situated near the river Chenab Bridge. The petitioner himself also entered the witness-box as P.W.5 and stated that respondent No.1 was not qualified to be a candidate in the election as he was a Government contractor and had obtained lease for lifting of sand from the Mineral Department of the Provincial Government. As against the above evidence Muhammad Ali Shah respondent No.1 alone appeared as R.W.1. He admitted that in 1982 he was granted a lease for lifting ordinary sand by the Mineral Department of the Government of Punjab vide Exh.P.1. The term of the aforementioned lease, however, expired on 3rd November, 1984. According to him he did not apply for extension of the lease.
4. At the time of recording the statements of Muhammad Mushtaq Ali P.W.1 and Dilmir Khan P.W.2 objection was raised on behalf of respondent No. 1 as to the admissibility of documents Exh.P.1 and Exh.P.2. It was contended that the aforementioned documents being photostat copies could not be received in evidence without proof of the original documents, which were not produced, when the statements of the aforementioned witnesses were recorded.
5. With regard to Exh.P.1 it may be stated that respondent No.1 has himself admitted its contents as correct while appearing as R.W.1. The objection regarding mode of proof of the above document is, therefore, no longer tenable. Exh.P.2 is a photostat copy, of the memorandum issued by the Assistant Director, Mineral Development, Chiniot. Although Muhammad Mushtaq Ali, Assistant Director, Mineral Development, Chiniot, who issued the original memorandum, has admitted the contents of Exh.P.2 as correct, while appearing as P.W.1, the requirement of Article 75 of the Qanoon-e-Shahadat, 1984 (P.O. X of 1984) that the documents must be proved by primary evidence, unless it was covered by Article 76, was not met because the original memorandum was not produced. Either the original memorandum should have been produced before the Tribunal or its certified copy should have been tendered in evidence. As the petitioner did not follow either course, Exh.P.2 which is a photostat copy cannot be received in evidence.
6. Learned counsel for the petitioner has stated that oral evidence produced by the petitioner that the mining lease granted to respondent No.1 was extended beyond 3rd November, 1984 and that the possession of the land was resumed by the Department on 24th April, 1985 has not been controverted by respondent No.l. In the written statement filed by respondent No.1 he has not specifically challenged the petitioner's allegation that on the nomination day he was disqualified from being elected as a member as he was a contractor of the Government of Punjab under the Mining Concession Rules, 1960. His mere denial that he had not applied for the extension of the lease made in his statement while appearing as R.W.1 was not sufficient to rebut the deposition of two officials examined by the petitioner as P.W.1 and P.W.2 that the period of lease was extended beyond 3rd November, 1984 till 3rd March, 1985 and that the possession of land was resumed on 24th April, 1985.
7. Learned counsel for respondent No.1, on the other hand, has submitted that in view of the clear terms contained in para 4 of the order granting lease (Exh.P.1) it was not legally permissible for the Department to extend the period of lease beyond two years for which the lease was granted.
Learned counsel for the petitioner has stated that since the possession of the land could not be delivered to respondent No.1 simultaneously with the grant of lease and was delayed by four months, the Department had permitted respondent No.1 to remain in possession of the land enjoying the benefit of the lease of four months.
8. It is true that respondent No.1 did not specifically deny the allegation that on the nomination day he was not a Government contractor and had not been granted lease for lifting ordinary sand under the Mining Concession Rules,1960. Respondent No.1 has also failed to produce evidence to refute the statement made by the Assistant Director Mineral Development P.W.1 that the mining lease granted to him by Exh.P.1 was extended for four months after the expiry of the term of lease.
He has also failed to place anything on the record to contradict Dilmir Khan, Girdawar Qanungo, P.W.2 that the possession of land in respect of which mining concession was given was resumed on 24th April, 1985. There is no reason to discard the testimony of the two aforementioned officials.
Whether the lease in question could be extended beyond the period for which it was originally granted in violation of the terms of the paragraph 4 of Exh.P.1 is besides the point, because the fact that the lease was extended by four months after expiry of its term is fully established by the evidence produced by the petitioner.
9. After having noticed that respondent No.1 was holding a mining lease granted to him under the Mining Concession Rules, 1960 till 3rd March, 1985, the question arises whether he suffered from the disqualification stated in Article 10(2)(b)(8) of P.0.5 of 1977 on the day when the election was held.
Before dealing with the above question it is necessary to state legal position regarding applicability of the provisions relating to disqualifications for membership of Parliament as contained in various election laws. Besides Article 10 of P.O. 5 of 1977 the disqualifications for membership of Parliament are also contained in Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 and section 99 of the Representation of the People Act, 1976 (hereinafter to be referred as "the Act"). Since the elections of the Parliament have been held under P.0.5 of 1977 the provisions of section 99 of the Act would not be applicable. Article 63 of the Constitution also would not be attracted in view of the provisions of Article 24 of P.0.5 of 1977 as the election held under the aforementioned Order shall be deemed to have been held under the Constitution. Article 270-B of the Constitution also contains a similar provision. Thus, the relevant provision applicable in the present case is Article 10(2)(b)(8) of P.0.5 of 1977, which is reproduced as under:- "(2) A person shall be disqualified from being elected or chosen as, and from being, a member, of Parliament:- (b)
(8) if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by Government:- ' It is to be noticed that the aforementioned provisions are at variance with the parallel provisions in section 99(1)(h) of the Act, which are also reproduced below:-
99. Disqualification--(1) A person shall be disqualified from being elected as, and from being a member of an Assembly, if
(h) having, whether by himself or by any person in trust for him or for his benefit or on his account, any share or interest in a contract for--
(i) the supply of goods to, or
(ii) the execution of any work, or
(iii) the performance of any service , undertaken by, the Government or a local authority or an autonomous body in which the Government has a controlling share or interest, he does not, after his election as a member but before making oath, as such, make a declaration in writing to the Commissioner that he has such share or interest, unless a period of five years has elapsed since his failure to do so."
10. On the other hand the provisions of Article 10(2)(b)(8) referred to above are identical with the provisions of Article 9(2)(h) of the Legal Framework Order, 1970 (P.O. 2 of 1970) which too are reproduced as under:- "9.(1) ..................................
(2) A person shall be disqualified from being elected as, and from being, a member if
(h) he, whether by himself or by any person or body of person in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government:-
11. It has been contended on behalf of the petitioner that the word "contract" used for the third time in sub-paragraph (8) of paragraph (b) of clause (2) of Article 10 of P.O. 5 of 1977 appears to be the result of some mistake. Instead of using the word "works" which would have fully conveyed the legislative intent as in evident from the parallel provisions contained in section 99(2)(h) of the Act, whereby any person having any share or interest in a contract for the supply of goods to or for the execution of any work or the performance of any service undertaken by the Government has been disqualified from being a candidate in the election for membership of Parliament, the word "contract" occurring for the third time in sub-paragraph (8) is evidently due to some mistake. In support of the above contention reference has been made to the submission made by the counsel for the parties in Muhammad Siddique v. Karam Bakhsh and others PLD 1971 Lah. 912 as noticed by the Court and reproduced below:- "With reference to, all this material, it was suggested to us by the various learned counsel appearing in this case that the words "any contract" as underlined above were mistakenly used twice and that probably the real intention was to use the words "any works" as was the case in the analogous law hereinbefore referred to."
' In the above case, the question for determination was whether the election of a candidate to the National Assembly who suffered from the disqualification under Article 9(2)(h) of the Legal Framework Order, 1970 inasmuch as he had a share or interest in a contract of the firm of which he was a member, taken by the firm in the form of lease licence from the Government could be challenged in the High Court in writ jurisdiction even though during the pendency of the writ petition election petition challenging the election on the above ground had also been filed. It was during the course of arguments that the submissions referred to above were made by the learned counsel for the parties. The matter was, however, left undecided by the Court. The other case in which Article 10(2)(b)(8) of P.0.5 of 1977 came for consideration was Muhammad Jafar Laghari v.
Election Commission of Pakistan PLD 1978 Lah.
76. In that case the disqualification of the candidate pleaded was that a Depot Holder under the West Pakistan Wheat, Wheat-Atta, Maida, Rice and Sugar Distribution Order, 1967, was hit by Article 10(2)(b)(8) of P.0.5 of 1977. The Court found that a Depot Holder had share and interest in a contract for the performance of service undertaken by the Government and as such he was disqualified from being a candidate in the election. The question whether the word "contract" used for the third time in sub paragraph (8) was the result of some mistake and that in its place the word "works" should have been used, however, did not come up for consideration before the Court.
12. It may be stated that while construing a statute, it is not permissible to assume that the legislature has committed some mistake in the use of certain words in the statute. In Richards v.
Mc-Bride (1884) 8 QBD 119) section 3 of the Sunday Closing (Wales) Act, 1881 which provided that the "Act shall commence and come into operation with respect to each division or place in Wales on the day next appointed for holding the general annual licensing meeting for that division or place" came up for interpretation. It was argued that the phrase meant "the next day appointed" the intention of the legislature obviously being that the Act should come into force in the year 1881, whereas the words of the Act would delay its operation till 1882. It was held that the words "the day next appointed" meant the day which shall after the passing of the Act be next appointed for holding the meeting. Grove, J., referring to the argument that the words meant "the next day appointed," said:- ?I No one, construing a statute or any other literary production, could put such a construction upon the words unless by supposing they were a mistake. But we cannot assume a mistake in an Act of Parliament. If we did so, we should render many Acts uncertain by putting different construction on them according to our individual conjectures. The draftsman of the Act may have made a mistake.
If so the remedy is for the legislature to amend it."
' The provisions of Article 10(2)(b)(8) of P.O. Of 1977, therefore, will have to be construed without assuming that there has been any mistake in the use of the .Words therein. A careful examination of the aforementioned provisions would reveal that the law-maker had deliberately not adopted the parallel provisions contained in section 99(2)(h) of the Act so as to restrict the scope of the provisions of Article 10(2)(b)(8) of P.0.5 of 1977. Under the Act, a person having any share or interest in a contract for the execution of any work undertaken by the Government would stand disqualified from being elected as a member of an assembly. Almost a similar provision is found in section 21(h) of the Punjab Local Government Ordinance, 1979, which refers to the disqualification of a person being a candidate or a Member of Local Council if he is under contract for work to be done or goods to be supplied to the Local Council concerned. The expression "work to be done" used in the aforementioned provision does not admit of a restricted meaning. In Nur Ahmed v. Election Tribunal/Additional District Judge, Sahiwal 1982 SC MR 453 while repelling the arguments of the petitioner's counsel that the expression "work to be done" refers only to building construction, construction of roads, etc. And no other, it was held that in a case where mutual rights and obligations arose under contract, such contract and dealing could not be a strict interpretation of words of statute which did not justify any interpretation to be excluded from the purview of the above expression and lease for the disposal of sullage water taken by the petitioner from the same Town Committee of which he was an elected member would be covered by the provisions of section 21(h) of the Punjab Local Government Ordinance, 1979. The provisions of section 99(1)(h) of the Act are, therefore, wide in scope as compared to Article 10(2)(b)(8) of P.0.5 of 1977 where disqualification is incurred by a person if he has any share or interest in a contract for the execution of any contract undertaken by Government. In other words if the contract is in relation to the contractual obligation of Government only then the person having share or interest in the said contract would stand disqualified from being a candidate in the election for membership of Parliament. A mining lease granted under the Mining Concession Rules, 1960 would not' fall within the purview of Article 10(2)(b)(8) of P.O. 5 of 1977 as it is not a contract for the supply of goods to Government or a contract for the execution of any contract undertaken by Government or a contract for performance of any service undertaken by Government.
13. In Bhaskara Rai v. C.V.K. Rao AIR 1964 Andhra Pradesh 77, a case from foreign jurisdiction, one of the questions raised before the Court was whether a mining lease obtained from Government would be covered by section 7(d) of the Representation of the People Act, 1951, which is almost similar to section 99(1)(h) of the Act. The relevant provisions of section 7(d) are, reproduced below:- "A person shall be disqualified for being chosen as, and from being, a member of either house of Parliament or of the legislative assembly or legislative council of a State: ...(d) if there subsists a contract entered into in the course of appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government."
' Explaining the scope of the aforementioned provisions, it was observed: - "Assuming for the sake of argument that it is permissible to take a broad view of the section, it does not advance the case of the respondent as there will be no justification to extend that provision to things plainly excluded from its natural meaning. The terms of the section do not show that every kind of connection with Government activities on every benefit received by a person from Government falls within the sweep of section 7 (d). It is only contracts within the connotation of that section that will serve a grounds of disqualification. Parliament, which is aware of the necessary to maintain the integrity and independence of the legislators, has chosen to confine the area of disqualification only to contracts for the supply of goods to the appropriate Government and the execution of works undertaken by Government. It must be taken that Parliament has advisedly limited the operation of the prohibition only to those two kinds of contract."
' After examining the terms of the lease, it was noticed that the main object of the lease was to excavate the mine by extracting iron ore to the best advantage of the lease subject to the terms and conditions contained therein. There was nothing in the lease, which was hit by the aforementioned provisions. Clause 21 of the lease which gave the State Government the right of pre-emption of the minerals lying in or upon the lands demised, on which reliance was mainly placed to show that it constituted a contractual obligation on the part of the lessee to supply the minerals to the Government at the fair market price prevailing at the time of pre-emption, was also considered and it was held that the obligation undertaken by the lessee was contingent upon the mineral being brought on the surface and the lessor thereupon requiring lessee by notice in writing to supply the latter the needed ore. At the most it could be considered only in the realm of potentiality and there was no certainty that the potentiality or possibility would become an actuality.
' It would only amount to an offer by the lessee and till it was accepted by the Government by exercise of right of preferential purchase by notice in writing to him it would not tantamount to a contract. It may be noticed that the standard form for mining lease in the Second Schedule of the Regulation of Mines and Oil Fields and Mineral Development (Government Control) Act, 1984 (Act No. XXIV of 1984) paragraph 64 in Part IX under the heading "General Provisions" there are similar provisions regarding right of pre-emption as in clause 21 of the lease referred to above. In the case of mining lease granted under the Mining Concession Rules, 1960, the lessee would be bound by the provisions of paragraph 64. But as noticed in the case cited above, there is only a contingent obligation on the part of the lessee to sell the minerals to Government, if a notice in that behalf is given by the Government. Unless the offer made by the lessee in terms of paragraph 64 is accepted by Government it would not constitute a contract. Thus, even if the argument by the learned counsel for the petitioner is accepted that the mining lease obtained by respondent No.1 may be considered after substituting the word "works" for the word "contract" occurring for the third time in sub-paragraph (8) of paragraph (b) of clause (2) of Article 10 of P.O. 5 of 1977, it would hardly make any difference because on the basis of section 7(d) of the Representation of the People Act, 1951, which is identical with the provisions of section 99(1)(h) of the Act, mining lease obtained by respondent No.1 would not disqualify him from being a candidate in the election for membership of the Parliament.
' In view of what has been stated above it is found that respondent No.1 did not suffer from any disqualification under Article 10(2)(b)(8) of P.0.5 of 1977 on the nomination day. Issue No.1 is accordingly decided against the petitioner.
' ISSUE NO. 2: ' In view of the finding under issue No.1 above, this issue does not arise.
' As a result of finding on issue No.l the election petition filed by the petitioner is dismissed with costs.
Election .