AJMA L MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 30-9- 1993 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,D-2670 of 1993 filed by the appellant challenging the order dated 14-9-1993 of the learned Additional District and Sessions Judge and Returning Officer, N.A. 158, Naushero Feroze-I, hereinafter referred to as the Constituency, whereby the appellant's name from the published list of the candidates was dropped on the ground that he was found to be a defaulter and that clearance had not been produced, dismissing the same for the following reason:-- "We are, however, bound by the judgment (majority view) of the Supreme Court of Pakistan in Javaid Hashmi's case and as such we dismiss these petitions on the ground the impugned orders cannot be challenged under Article 199 of the Constitution."
2. The brief facts are that the Election Commission of Pakistan through a notification dated 23-8- 1993 issued in pursuance of section 11 of the Representation of the People Act, 1976 (LXXXV of 1976), hereinafter referred to as the Act, read with the notifications mentioned therein notified the following schedule for the election of the National Assembly constituencies:-- "(a)Last date for filing of nomination papers. ... 29-8-1993
(b) Scrutiny of nomination papers by the Returning Officers. ... 30-8-1993 and 01-9-1993
(c) Last date for filing of appeals against rejection/acceptance of nomination papers.... 05-9-1993
(d) Last date for deciding appeals by the Tribunals. ... 12-9-1993
(e) Last date for withdrawal of candidature. ... 13-9-1993
(f) Publication of revised list of candidates. ... 14-9-1993
(g) Polling day ... 6-10-1993 In response to the above notification, the appellant filed his nomination papers for the constituency with the Additional District and Sessions Judge, Naushero Feroze, hereinafter referred to as the Returning Officer.
3. It may be pertinent at this stage to mention that Ordinance No, XVI of 1993 was issued and gazetted on 19-8-1993 making amendments in the Act which inter alia included sections 12 and 99 of the Act. It may be advantageous to reproduce the above amendments made by sections 2 and 9 of the aforesaid Ordinance, which read as follows:-- "2. Amendment of section 12, Act LXXXV of 1976.--In the Representation of the People Act, 1976 (LXXXV of 1976), hereinafter referred to as the said Act, in section 12, for subsection (2) the following shall be substituted, namely:-
(2) Every nomination shall be made by a separate nomination paper in the prescribed .Form which shall be signed by both the proposer and the seconder and shall contain, duly signed by the I andidate,--
(i) a declaration that he has consented to the nomination and that he is not subject to any disqualification for elected as a member;
(ii) a declaration about his party affiliation, if any;
(iii) a declaration that an amount of loan, as may be prescribed, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent or any business concern mainly owned by the aforesaid, does not remain unpaid for more than one year from the due date; and
(iv) a declaration that no loan, the amount of which may be prescribed, obtained by him, his spouse or dependent for a business concern mainly owned by him or anyone of the aforesaid from any bank, financial institution, cooperative society or corporate body was written off or such amount which was written off has since been paid.'
9. Amendment of section 99. Act LXXXV of 1976.--In the said Act, in section 99, in subsection (1), for clause (1), the following shall be substituted, namely:-
(i) he is sagacious, righteous, non-profligate, honest, Ameen and pays his debts specified in subsection (2) of section 12';"
4. It may further be stated that on 27-8-1993, the Act was further amended by Ordinance No, XX of 1993, whereby further amendments were made in section 12 of the Act by incorporating the following provisions through section 2 of the aforementioned Ordinance:-- "2. Amendment of section 12, Act LXXXV of 1976.--In the Representation of the People Act, 1976 (LXXXV of 1976), in section 12,--
(a) after subsection (2), the following new subsection shall be inserted namely:-- (2-A) The declaration specified in clause (iv) of subsection (2) shall be made in respect of the loan written off after the twenty-third day of March, 1985.
(2-B) Where a candidate desires to make payment of any loan specified in clauses (iii) and (iv) of subsection (2) and subsection (2-A) and gives an undertaking to the Returning Officer for payment of such loan before the 13th day of September, 1993, the Returning Officer shall allow such candidate to file nomination paper without the declarations specified in the aforesaid clauses.
(2-C) Where a candidate pays back the loan in respect of which he has given an undertaking under subsection (2-B), the earlier non-payment or writing off the loan shall not be deemed to be corrupt practice for the purpose of section 78.
(2-D) Where a candidate does not make payment of a loan in respect of which he has given an undertaking under subsection (2-B) within the period specified therein, in addition to any penalty which may be levied upon him under any law for the time being in force, his name shall not be published in the list of contesting candidates required to be published by the Returning Officer under subsection (4) of section 16 nor shall his name appear in the ballot paper.'; and
(b) after subsection (7), the following explanation shall be added, namely:-- Explanation.-- For the purpose of this section, the expression 'mainly ownedshall mean ownership of fifty-one per cent. Or more shares in a business concern'."
5. It may further be pointed out that on the same date i,e. On 27-8-1993, Ordinance No, XIX of 1993 was also promulgated, whereby further amendments were made in the Banks (Nationalization)
Act, 1974 and whereby subsection (5) in section 12 of the aforesaid Act was incorporated by section 2, which reads as follows:-- "2. Amendment of section 12. XIX of 1974.--In the Banks (Nationalization Act, 1974) (XIX of 1974), in section 12, after subsection (4), the following new subsection shall be added, namely:-- "(5) Notwithstanding anything in subsections (1) to (4) or any other law for the time being in force, the Council shall, for the 1993 general elections, publish a list of persons from whom loans amounting to one million epees or more obtained from a bank, financial institution, cooperative society or corporate body, either in their own names or in the names of their spouses, dependents or business concerns mainly owned (fifty-one per cent. Or more shares) by them were due and have not been paid back for more than one year till the date of filing of nomination papers, or such loans were written off after the twenty-third day of March 1985."
It further seems that on the day of scrutiny of the nomination papers, the appellant's agent, Mr. Usman Ali, Advocate, filed the following undertaking in terms of subsection (2-B) of section 12 of the Act:- "BEFORE THE RETURNING OFFICER NA. 158, NAUSHEHRO FEROZE-1 Sir, I hereby state on behalf of Mr. Ghulam Mustafa Jatoi that there is no loan outstanding against my client but if this loan of said Saga Chemicals is against my client it will be paid on or before 13-9- 1993.
(Sd.)
(Usman Ali)
1-9-1993."
6. That since no objection to the appellant's nomination papers was filed, the same were accepted by the Returning Officer by his order dated 1-9-1993 (at page 58 of the paper book). However, on 14-9-1993 the Returning Officer without serving any prior show-cause notice to the appellant, passed the following order:-- "ORDER The candidate is found to be a defaulter. Clearance has not been produced. Form is dropped.
(Sd.) Additional District and Sessions Judge & Returning Officer, NA-158 NF-I."
The above order was assailed in the above Constitution petition, which was resisted by the official respondents and some of the private respondents inasmuch as the Returning Officer filed a counter-affidavit, in which for the first time the following plea in para. 7 thereof was raised, the relevant portion of which reads as follows:-- "7. That with regard to para. 6 of the petition it is stated that the Form/Nomination of the petitioner was validly dropped on the receipt of information that the petitioner had failed to clear his debts. It may be submitted that petitioner had stood four guarantees to the National Development Finance Corporation (N.D.F.C), Karachi in the sums of Rs,12,00,445, Rs,9,99,430, Rs,17,60,000 and Rs,1,15,000 (total Rs,40,74,875) dated 14-5-1987, 17-5-1987, 31-12-1988, 31-12-1988 respectively for loans borrowed by M/s. Jatoi Food Ltd., in his capacity as its shareholder and Director. True copies of the said guarantees are attached and marked Annexures 11/A to II/D respectively. It may be added that said Company had per its letter dated 17-8-1991 (Copy Annexure III) informed N-D.F.C. That Mr. Ghulam Mustafa Jatoi and two others had resigned as directions of the Company due to their personal reasons and also requested for release of their personal guarantees. The said letter was replied to by N.D.F.C. On 31-8-1991 (Copy Annexure IV) that it was not possible for the N.D.F.C. To consider release of personal guarantees and that directorship of a Company had no direct relationship with provision of personal guarantee and as such consideration of change in guarantees could only be entertained if:--
(i) The existing debt servicing problems of Jatoi Foods Limited are resolved to the mutual agreement of financial institution and the sponsors;
(ii) the guarantees are substituted with those of others parties with equivalent not worth and personal standing, for which sufficient supporting evidence must be provided to N.D.F.C."
The above petition was dismissed for the reason quoted hereinabove.
7. Thereupon, the appellant filed a petition for leave to appeal. Along-with the petition, an application for an interlocutory order for permitting the appellant to participate in the election was also filed. The above petition and the stay application came up for hearing before this Court on 3- 10-1993 when the following order was passed:-- "1. Heard.
2. Mr. Muhammad Afzal Siddiqui on behalf of Mr. Asif Ali Zardari, seeks adjournment of the case for two days.
3. We think that this a fit case for further consideration. Leave granted.
4. Mr. Ghulam Mustafa Khan Jatoi is, in the meanwhile, permitted to contest the forthcoming elections subject to the decision of the appeal."
8. It appears that pursuant to the above order, the appellant participated in the elections and won the same by a comfortable majority. Nobody filed any election petition to challenge the appellant's elections as stated by his learned counsel at the Bar. The appellant has been discharging his functions as an M.N.A. Since the first session of the National Assembly.
9. In support of the above appeal, Mr. Maqbool Ilahi Malik, learned ASC for the appellant, has urged as under:--
(i) That the appellant was not shown in the list published by the Banking Council in terms of subsection (5) of section 12 incorporated by the Banks (Nationalization) (Amendment) Ordinance (Ordinance No, XIX of 1993) as a person from whom loan amounting to Rupees one million or more obtained from a bank, fmancial institution, cooperative society, or corporate body remained outstanding and, therefore, the appellant could not have been dropped from the published list of the candidates.
(ii) That at the time of scrutiny the appellant was asked to give undertaking reproduced hereinabove to clear loan, if any, against him outstanding in respect of Saga Chemicals and no reference was made to the above guarantees and as the appellant had nothing to do with Saqa Chemicals, it was not open to the Returning Officer to have dropped the appellant's name on 14-9- 1993.
(ii) That even otherwise the guarantor is not covered by clause (iii) of subsection (2) of section 12 of the Act.
(iv) That since section 68 of the Act which provides grounds on which an election of a returned candidate can be challenged does not include the ground of rejection of nomination papers, the appellant's above Constitution petition was competent and the ratio of the case of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) is not applicable and the High Court erred in non-suiting the appellant on the basis of the majority view in the above report.
(v) That even otherwise on 14-9-1993 when the Returning Officer dropped the appellant's name from the list of the candidates, the period for filing of the appeals and for deciding the same as notified by the above notification dated 23-8-1993 had already expired on 12-9-1993 and, hence, the appellant was entitled to press into service Constitutional jurisdiction of the High Court.
On the other hand, Mr. Mansoor Ahmed, learned Standing Counsel, who appeared for the official respondents, has contended as under:--
(i) That as the appellant was admittedly a guarantor, he was covered by above clause (iii) of subsection (2) of section 12 of the Act.
(ii) That since Article 225 of the .Constitution has clearly laid down that no election to a House or a Provincial Assembly shall be called in question except by an election petition, the High Court has rightly relied upon the case of Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (supra).
10. The basic question in issue is, as to whether the appellant's above Constitution petition was maintainable or not in view of the judgment of this Court in the case of Election Commission of Pakistan v. Javaid Hashmi and others (supra). Before dealing with the above question, it may be pertinent to examine, whether the impugned order passed by the Returning Officer on 14-9-1993 without any notice to the appellant was patently illegal and without jurisdiction. In this regard, it may be pertinent to point out that above-quoted clause (iii) of subsection (2) of section 12 of the Act as substituted by Ordinance No, XVI of 1993 contemplates filing of a declaration as may be prescribed to the effect that an amount of loan obtained from any bank, financial institution, cooperative society or corporate body in his own name and/or in the name of his spouse .Or deponent or any business concern mainly owned by the declarant (which means ownership of 51 per cent. Or more share as per explanation added to subsection (7) of section 12 of the Act by Ordinance No, XX of 1993) does not remain unpaid for more than one year from due date. The key words are "in his own name or in the name of his spouse or dependent or any business concern".
Prima facie, the above words do not include guarantor. However, Mr. Mansoor Ahmed, learned Standing Counsel appearing for the official respondents has pressed into service the provisions of clause (gg) of section 5 of the Banking Companies Ordinance, 1962 (LVII of 1962), clause (d) of section 2 of the Banking Companies (Recovery of Loans) Ordinance, 1979 and clause (e) of section 2 of the Banking Tribunals Ordinance, 1984 (Ordinance No, LVIII of 1984) in order to contend that a guarantor is covered by the above provisions of the Act. It may be advantageous to reproduce the above clauses of the aforesaid three Ordinances, which read as follows:-- Clause (gg) of section 5 of Banking Companies Ordinance. 1962: "(gg) 'loans, advances, and creditincludes 'finanacesand defined in the Banking Tribunals Ordinance, 1984;"
Clause (d) of Section 2 of the Banking Companies (Recovery of Loans) Ordinance.
1979.- -"loan" means loans, advances and credit as defined in the Banking Companies Ordinance, 1962 (LVII of 1962) and includes--
(i) an advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a banking company to a borrower;
(ii) a guarantee, indemnity, letter of credit or any other financial engagement which a banking company may give, issue or undertake on behalf of a borrower;
(iii) a Benami loan, that is, a loan the real beneficiary or recipient whereof is a person other than the person in whose name the loan is advanced or granted;
(iv) any amount due from any borrower to a banking company under a decree passed by a Civil Court or, award given by an arbitrator; and
(v) any loan due from any borrower to a banking company which is the subject-matter of any pending suit, appeal or revision before any Court;"
Clause (e) of section 2 of the Banking Tribunals Ordinance, 1984:- - "(e) 'financedincludes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loass, mark-up or mark-down in price, hire- purchase, lease, rent-sharing, licensing, charge or fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trademarks and copy rights, bill of exchange, promissory notes or other instrument with or without buy-back arrangement by a seller, participation term certificate, Musharika certificate, Modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is a person other than the person to whom or in whose name it was provided;"
11. A perusal of the above-quoted clause (gg) of section 5 of the above first Ordinance indicates that the terms "loans, advances, and credit" have been defined as to include finances as defined in the Banking Tribunals Ordinance, 1984.
Whereas clause (d) of section 2 of the above second Ordinance incorporates the definition by reference of the above first Ordinance by providing that "loan" means loans, advances and credit as defined in the Banking Companies Ordinance, 1962, but it also includes items mentioned in sub- clauses (i) to (v) which inter alia include a guarantee. It may further be noticed that clause (e) of section 2 of the above third Ordinance, namely, Banking Tribunals Ordinance, 1984, gives a very exhaustive definition of the term "finance which inter alia includes guarantees. The above definition has been incorporated in the above two earlier Ordinances by reference. It is true that under the above three Ordinances a guarantee is equated with a loan for the purpose of the said Ordinances. However, the question arises, as to whether the above definition can be imported and can be read into the Act. The objects and the scope of the above Ordinances are different from the objects and the scope of the Act. Since in above clause (iii) of subsection (2) of section 12 of the Act, the definition given in the Banking Tribunals Ordinance, 1984, has not been incorporated by reference to the Act and as the above Ordinances and the Act are not pari materia, in our view, no reference can be made to the aforesaid three Ordinances for the purpo of construing any provision of the Act nor sections 126, 128 or any other proviion of the Contract Act, 1872, can be referred to for the above purpose. This seems to be a well-settled proposition of law. In this regard, it may be pertinent to refer to the case of Mahbub Ahmad v. First Additional District Judge and another (PLD 1976 Karachi 978), wherein a Division Bench of the High Court of Sindh, while construing Rule 6 of the West Pakistan Family Courts Rules, 1965, particularly the words "the wife ordinarily resides" held that reference cannot be made to section 488, Cr.P.C. For the purpose of interpreting the above provision. The judgment was rendered by Muhammad Haleem, J. (as his Lordship then was). It may be advantageous to reproduce the relevant portion which contains in para. 8 thereof and which reads as follows:-- "8. The proviso by the very nature of its language is an enabling provision and is for the benefit of wife. The words 'ordinarily residesmust, therefore, be construed in the context of an estranged wife who has left her husband's abode and has sought residence at any other place of her own choice.
It will be that place which should answer to the 'concept and the interval of timetherefore has no relevancy, for it will be an anomaly if three days residence would not be sufficient but a three months stay would enable her to maintain her suit. Therefore, in such an event it is the intention of the wife to stay at a particular place, which is material, and if time factor is the sole criterion, then it would amount to putting a premium on the suit which she could legitimately file after her relations became strained for the dissolution of marriage or dower and that could not be the legislative intent. The very language of the proviso, therefore, would enable her to file a suit for dissolution of marriage at any place where she has come to reside and in this view of the matter the distinction sought to be brought out by the use of the word 'isin subsection (8) of section 488, Cr.P.C. Is of no efficacy. It may also be pointed out that unless the provision is in `pan materia', it is not correct to construe a provision with reference to another provision in a different Act, for it is the language of the provision which is the determining factor."
12. Reference may also be made to the case of Mrs. M. Waterfield v. C.E. Lee Anan and another (PLD 1957 (W.P.) Lahore 882) and the case of Salah Muhammad v. Muhammad Roz and others (PLD 1962 (W.P.) Lahore 68). In both the cases, it has been held by Division Benches of the Lahore High Court 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 meanings than one.
13. We may also refer to the case of Hari Khemu Gawali v. The Deputy Commissioner of Police, Bombay and another (PLD 1957 SC (India) 90), in which the Indian Supreme Court has inter alia held that it is not safe to J pronounce judgment on the provision of one Act with reference to decisions dealing with the other Acts which are not pari materia.
14. The language employed in the above clause (iii) of subsection (2) of section 12 of the Act does not admit the inclusion of a guarantor for the following reasons:--
(i) That the words 'in his own name or in the name of his spouse or dependent or any business concern mainly ownednegate the inclusion of any other category of persons.
(ii) The above clause has categorised 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 per cent. Or more as provided for in the Explanation to 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.
(ii) That the appellant's authorised agent on 1-9-1993 gave an undertaking on behalf of the appellant to clear the outstanding loan, if any, was payable by the appellant in respect of Saga Chemicals. Admittedly no loan was payable by the appellant in respect of the above firm for the reason that he had no connection whatsoever with the same. On the contrary, the certificate issued by R.D.F.C. On 30-9-1993 certified that the appellant was not a defaulter but one Ghulam Mustafa son. Of Ghulam Muhammad whose Identity Card No, was 213-16-055850, resident of H.No, 135-A, Lalarukh, Wah Cantt. District Rawalpindi, was defaulter in respect of Saga Chemicals (Pvt.)
Limited. (Please see at page 135 of the paper book the above certificate).
15. It will not be out of context to point out that a loan tenement 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 Ltd., Karachi v. Muhammad Tufail and another (PLD 1975 Karachi 671).
In the above first case, a Division Bench of the Sindh Chief Court held that a suretyship agreement though supplementary to principal contract is still separate and distinct from it.
Whereas in the second case, a learned Single. Judge of the erstwhile High Court of Sindh inter alia held that the word "guarantee" is a technical term and the essence of the guarantee is that a guarantor agrees to discharge his liability only when the principal debtor fails in his duty.
16. We may also observe that if we were to construe that the word "loan" referred to in tLe above clause (iii) of subsection (2) of section 12 of the Act includes a guarantee, it will entail defranchisement of the appellant and, therefore, such a provision is to be construed strictly. In this behalf reference may be made to the following cases:--
(i) The Attorney-General of Canada and another v. Hallet and Carey Limited and another (PLD 1952 Privy Council 29); wherein the Privy Council, while construing the provisions of National Emergency Transitional Powers Act (1945), has inter alia observed that there is a well-known general principle that statutes, which encroach upon the rights of the subject whether as regards person or property, are subject to a strict construction.
(ii) Robert Chattan Ross-Clunis v. Vassos Papa-dopoullos and others (PLD 1959 PC 84); In the above case, the Privy Council, while interpreting the provisions of the Emergency Powers (Collective Punishment) Regulations, 1955, again held that the statutes, which encroach upon the rights of the subject whether as regards person or property, are subject to strict construction.
(iii) Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160); in which Hamoodur Rahman, C.J. While dealing with the provisions of the National and Provincial Assemblies (Elections) Ordinance (XIII of 1970) and of the Legal Framework Order (II of 1970) has inter alia held that it is well-settled that the provisions of a penal statute such as contained in clause (2-B) of Article 9 of the Legal Framework Order, 1970 entailing forfeiture and deprivation of a valuable right of property and franchise have to be very strictly construed and in the case of doubt, the benefit must go to the person against whom they are sought to be invoked.
(iv) Abdul Hasan Azad v Provincial Election Authority, Karachi and 2 others (PLD 1984 Karachi 145); The facts of the above case were that the petitioner filed nomination papers for local bodies election for K.M.C., Unit No, 106 Karachi (East) before the Returning Officer; i,e. Respondent No,3, which were accepted on 25-8-1983 as no objection was filed by anyone. It appears that after that he was served with a notice dated 29-8-1983 by the Election Authorities, Karachi, under section 37 of the Sindh Local Government Ordinance, 1979, directing the petitioner to appear in person before the Deputy Commissioner (East), Karachi, on 31-8-1983 at 10-00 a.m. In his office in order to meet the adverse report received against him to be disqualified to be a candidate under above section
37. In response to the above notice, the petitioner had appeared when the following order was passed:-- "Since no proof has been furnished to show that he has no criminal record and because there is adverse report against him on the police record; he is disqualified to be a candidate of the Local Bodies Election of 1983."
The petitioner impugned the above order of the Deputy Commissioner through a Constitution petition, which was allowed by a Division Bench of the Sindh High Court, to which one of us (Ajmal Mian, J.) was a party. While allowing the above Constitution petition, the following observations were made:-- "3. It may be noticed that in the above order, it has been stated that since the petitioner has not furnished any proof that he had no criminal record he was disqualified. We are inclined to hold that initial burden is on the authority to show that there was some evidence against the petitioner rendering him disqualified within the purview of section 37(3) of the Ordinance or under any other provision. The impugned order does not contain any detail of the nature of the adverse police record nor the basis or source of constituting the police record. We are further inclined to hold that a person cannot be denied the right of franchise or contest an election, which are valuable rights, on the basis of such a vague allegations."
17. The above-referred judgments reinforce the view which we are inclined to take. Any provision of the statute which encroaches upon the rights of a citizen is to be construed strictly. Applying the above principle to the case in hand, we are inclined to hold that we cannot import the definition of the term "finance" given in clause (e) of the Banking Tribunals Ordinance, 1984 on any sound principle.
18. We may now revert to the question, whether the ratio decided of the case of this Court in Election Commission of Pakistan v. Javaid Hashmi (supra) is applicable to the present case. In this regard, it may be pertinent to state that Article 225 of the Constitution lays down that "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)".
19. Somewhat similar provision is contained in section 52 of the Act, subsection (1) of which provides that "No election shall be called in question except by an election petition made by a candidate for that election".
It may also be pertinent to mention that subsection (1) of section 68 of the Act gives the grounds on which the election of a returned candidate can be declared as void. The above subsection (1) of section 68 reads as follows:-- "68. Ground for declaring election of returned candidate void.--(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that--
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent."
20. It may be noticed that the above grounds do not admit the filing of a petition by a candidate whose nomination papers were illegally rejected and who could not participate in the elections on that account. Whereas in contrast to the above provision, clause (c) of subsection (1) of section 100 of the Indian Representation of the People Act, 1951, contains the above ground as under:-- "If the Tribunal is of opinion- ........................................
(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void."
In this regard reference may be made to the case of Surendra Nath Khosla and another v. S. Dalip Singh and others (PLD 1957 SC (Ind.) 244).
21. The reason seems to be that subsection (5) of section 14 of the Act confers a right on a candidate to file an appeal against the decision of the Returning Officer inter alia against the rejection or acceptance of the nomination papers which is to be heard by a Tribunal comprising not less than two nor more than three Judges of a High Court. In the present case, the appellant could not have filed the above appeal against the rejection of his nomination papers as under the above notification dated 23-8-1993, the last date of filing of appeal against rejection or acceptance of nomination papers was 5-9-1993, whereas the last date for deciding the appeal by the Tribunal fixed was 12-9-1993. The appellant's name was dropped from the published list of the candidates on 14-9-1993 as stated hereinabove without any notice to him on a ground which was not agitated earlier, which order was violative of the principle of natural justice as enunciated by this Court inter alia in the following cases:--
(i) Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak (PLD 1959 SC (Pak.) 45);
(ii) Messrs Faridsons Ltd., Karachi and another v. Government of Pakistan through its Secretary, Ministry of Commerce, Karachi and others (PLD 1961 SC 537);
(iii) Commissioner of Income-tax, East Pakistan v. Fazlur Rahman (PLD 1964 SC 410);
(iv) The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed (PLD 1965 SC 90);
(v) Abdus Saboor Khan v. Karachi University and another (PLD 1966 SC 536);
(vi) Abdul Wadud Khan v. Chief Land Commissioner etc. (PLD 1983 SC 183);
(vii) Sultan Muhammad and others v. Chairman, Federal Land Commission, Islamabad and others (1990 SCMR 1364);
(viii) Lilaram v. Ghulam Ali alias Essa through Legal Heirs and others (1991 SCMR 932); Makerwal Collieries Ltd. And 2 others v. Government of N.-W.F.P. And 11 others (1993 SCMR 1140).
In all the above cases it has been held that in the absence of express exclusion for cogent reasons, principle of audi alteram partem is to be read into the relevant provision if the action is going to affect any vested right of a person.
22. Keeping in view the above factual background of the case in hand, we may now revert to the above judgment in the case of Election Commission of Pakistan v. Javaid Hashmi (supra). In the above case the facts were that the respondent Javaid Hashmi was a candidate in a bye-election from Constituency No, NA-120 Multan-cum-Khanewal. He filed a Constitution petition praying for the following reliefs while the election process was going on and the polling had not taken place:-- "(a) That the change effected in the Polling Staff by the Returning Officer may graciously be declared to be tainted with ulterior motives, mala fide, without jurisdiction and without lawful authority and the same may be set aside.
(b) Respondents Nos. 2 and 3 may be proceeded against for handing over National Identity Cards to unauthorised persons like Fayyaz Chatha and other P.P's workers.
(c) The Identity Cards delivered to unauthorised persons may be recovered from them and they be handed over to Returning Officer for their proper distribution. All Identity Cards prepared till date but not delivered to the concerned persons may also be distributed through Returning Officer.
(d) The total Identity Cards issued after announcement of this bye-election may be scrutinized and appropriate Constitutional relief may kindly be afforded.
(c) The Election Commission of Pakistan may be directed to fulfil its Constitutional obligations of holding just, fair and impartial elections in Constituency No, NA-120 Multan being held on 22nd of February, 1989.
(f) Any other relief to which this Honourable Court may find the petitioner entitled in justice, law and equity may also be awarded."
The above petition was opposed by the official respondents as well as the contesting candidates but the High Court allowed the above petition in the following terms:-- "(1) That the election shall be supervised by the staff as per proposal of the respondent, dated 2-2- 1989 which was approved by respondent No, 4 on 4-2-1989. All the appointments made by respondent No, 1 on 12-2-1989 are hereby declared illegal, ultra vires and ineffective. The District and Sessions Judges, Multan and Khanewal are directed to render all possible assistance to respondent No, 1 so that he could get the appointment letters of the staff as per original list distributed. Respondent No, 1 can also issue the directions in this behalf to the heads of the Government Departments, both at Multan and Khanewal and they will be under an obligation to comply with the same. Respondent No, 2 has stated that 18282 National Identity Cards are lying ready with him for distribution while respondent No, 3 has stated that 11000 cards are ready with him for distribution. The cards shall be distributed through the Mobile Teams which shall be supervised by the Civil Judges to be appointed by the concerned District and Sessions Judges. The Civil Judges so appointed shall ensure that the cards are handed over to the concerned persons against production of a receipt. The statements as to the number of cards, cards distributed and left-over Cards shall be countersigned by the supervising Civil Judges.
(2) It is made clear that there is to be one Civil Judge for each Mobile Team. Respondents Nos. 2 and 3 will report to the concerned District and Sessions Judges today at 2-00 p.m. For nomination of the Civil Judges.
(3) This short order is to be conveyed to the District Education Officers, Deputy Commissioners, Superintendents of Police of both the Districts and Commissioner, Multan for strict compliance.
(4) The Civil Judges also to counter-check the cards already issued by respondents Nos. 2 and 3 in the last two days.
(5) The Additional Registrar of this Courtalso to get the information published and broadcast for the benefit of the concerned staff and to the voters of N.A.-120."
23. The Supreme Court allowed the appeal filed by the Election Commission against the above judgment of the Lahore High Court on the ground that in view of above Article 225 of the Constitution, the above Constitution petition was not competent. In the discourse of the above judgment reference was made to the meaning of the word "election" and after referring to the case of Srinivassalu v. Kuppuswa mi (AIR 1928 Mad. 253), the case of Sat Narain v. Hanuman Parshad (AIR 1946 Lah. 85), the case of N.P. Ponnuswami v. Returning Officer, Namakkal (AIR 1952 SC 64), the case of Muhammad Nazir Hakim v. Said Muhammad (PLD 1962 Lah. 421), the case of Muhammad Afzal v.
Miraj Din (PLD 1967 Lah. 689), the case of Amirzada Khan v. Chief Election Commissioner (PLD 1974 Lah. 178), the case of Y.B. Chavan v. K.T. Mangalmurti (AIR 1958 Born. 397) and the case of Election Commission of India v. Shivaji (AIR 1988 SC 61), it was held that the above term has very wide connotation and it covers the entire process starting from the announcement of the schedule and culminating in declaration of the result of the candidates. After having held this, it was further held that the above Article 225 of the Constitution did not envisage two attacks on matters connected with the election proceeding, i,e. While the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199 and another when the election has reached the stage of completion by means of an election petition. However, while dealing with the judgment rendered by Hamoodur Rahman, C.J. In the case of Farzand Ali v.
Province of West Pakistan (PLD 1970 SC 98), the following observations were made:-- "In that case a broad argument was raised that if once the name of the person has been registered on the electoral roll, his nomination papers having been accepted and he being allowed to contest the election successfully, his election could not be challenged in any other manner save under the specific law providing for challenging election, notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet a pre- election disqualification of the successful candidates. Homoodur Rahman, C.J. Did not accept the argument as presented mainly on two grounds: firstly, that if it was to prevail then it would hit Article 103 of the Constitution as then such a person would continue to remain a Member of the Assembly even though Article 103 did not permit it; and secondly, because the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a member of an Assembly. In effect, therefore, the dispute did not relate to the validity but title to the office in which case writ of quo warranto could issue. Again in that context it was also observed that the remedy would still be available in all cases where the matter is, as in the case under consideration, outside the scope of statutory remedy.
These observations are distinguishable as rightly held by the learned Chief Justice in the context of the fact that they did not arise in relation to an election or were outside the scope of the statutory remedies. This being so, the rule stated earlier that the action has to be tested on the touchstone of the word 'electionis not affected in view of the Constitutional bar providing for the enforcement of the right through remedies available under the Act comprehended therein."
24. The ratio of the last para. Of the above-quoted passage can be pressed into service in the present case as the remedy of an election petition on the ground of rejection of nomination papers is not available as a ground for assailing the election of a returned candidate contained in subsection (1) of section 68 quoted hereinabove. Whereas this ground is available in clause (c) of subsection (1) of section 100 of the Indian Representation of the People Act referred to hereinabove.
Secondly, the above ex parte order was passed by the Returning Officer on 14-9-1993 whereas the last date for deciding the appeal by the Tribunal notified was 12-9-1993. In the above reported case, the High Court in fact through the impugned judgment had taken over the control of bye- elections instead of allowing the Election Commission to discharge its Constitutional duty to hold elections. In view of the above peculiar features, the above reported case is distinguishable from the present case. In the above report, the minority view was rendered by one of us, Nasim Hasan Shah, J. (as he then was), in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant's above Constitution petition was competent and the High Court by declining to exercise its Constitutional jurisdiction for the reason quoted hereinabove has failed to exercise jurisdiction vested in it.
It may be pointed out that even earlier than the judgment of Farzand Ali's case (supra), in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (PLD 1966 SC 1), S.A. Rahman, J. In his separate note observed that if in a particular case it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1954, or the Election Tribunal appointed under that Act has failed to exercise jurisdiction vested in it or dearly exceeded the jurisdiction or if the order in question is found to be tainted with mala fide, the aggrieved party may be entitled to invoke the provision of Article 98 of the late Constitution of 1962.
Whereas Fazle Akbar, B.Z. Kaikaus and Muhammad Yaqub Ali, JJ. Had observed in their separate notes that mala fide action of the Election Authorities can be impugned through a Constitution petition.
25. Reference may also be made to the case of Haji Behram Khan v. Abdul Hameed Khan Achakzai and others (PLD 1990 SC 352), in which this Court declined to grant leave though the High Court pressed into service its Constitutional jurisdiction in an election matter for the following reasons:- "Mr. Basharatullah learned counsel, in support of this petition, has argued that the learned High Court was in error in considering that the Election Commission's jurisdiction under section 103-AA of the Representation of the People Act was not attracted in this case. Furthermore, the order of the Election Commission was not liable to interference by a Constitution petition as such a petition was barred under Article 225 of the Constitution.
We have given our earnest consideration to these legal contentions, but feel that it is not necessary to finally adjudicate upon them because in our opinion the order of the High Court is a just, fair and proper order which is calculated to advance the interest of justice and, therefore, this case is not a fit one for exercise of our discretionary jurisdiction to grant leave to appeal.
We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No, 1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process. It has been repeatedly held by this Court that it shall not act in aid of injustice and where an order of the High Court has been passed to bring about a just, proper and fair result, this Court will not interfere."
26. The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove.
27. The above appeal is, therefore, allowed, the impugned order/judgment of the Returning Officer and the High Court respectively are quashed, and they are declared as being without lawful authority and of no legal effect. The appellant has already been elected as a member of the National Assembly. He shall continue to be a member of the National Assembly in accordance with law. However, there will be no order as to costs.
…and 60 more citing cases