' IRSHAD HASAN KHAN, J.---This appeal under Article 7 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (President's Order No, 17 of 1977), hereinafter called the Order, has been filed by the appellant to challenge the judgment dated 6-11-1991 of the Special Court, Lahore, constituted under the Order, whereby he was disqualified for a period of seven years from being elected or chosen as member of Parliament or a Provincial Assembly.
2. The appellant was elected as a member of the National Assembly from Constituency No, NA-135, Sahiwal-IV for the first time during general elections held on 25-2-1985 and remained MNA up to 29-5-1988. He was Federal Minister for Local Government & Rural Development from 10-4-1985 to 18-1-1986 with Additional Charge of Culture & Tourism from 14-4-1985 to 21-5-1985 and Minister for Culture & Tourism from 28-1-1986 to 20-12-1986 and for Establishment and 0 & M Division from 15- 5-1988 to 29-5-1988. For the second time he was elected MNA from Constituency No, NA-127 Sahiwal-IV during the general election held on 16-11-1988 under the Constitution on Islami Jamhoori Ittehad ticket. At the time of no-confidence motion against the then Prime Minister on 1- 11-1989, he supported her and was subsequently sworn in as Federal Minister for Manpower and Overseas Pakistanis on 11-11-1980, which office he held till 6-8-1990.
3. On 4-9-1990, the President of Pakistan made Reference No, 3-Disq./90 to the Special Court against the appellant on several grounds. In consequence, a notice was issued to him containing the following three-fold allegations:-- "(a) You had got a loan sanctioned from ADBP for setting up a Milk Sterilization Plant. Thereafter, you also got sanctioned a loan of Rs,41.640 million with Bankers Equity Ltd. By mortgaging the title to Bankers Equity in violation of ADBP Credit Manual and without prior approval of ADBP, said loan was obtained due to your abuse of powers as Federal Minister;
(b) Loan sanctioned to you by ADBP was Rs,55.597 million out of which Rs,54.337 million had already been disbursed to M/s. Pakpattan Dairy Limited of which you were one of the Directors. The said concern failed to repay any half-yearly instalment, therefore, the total debts including interest against the said concern came to Rs,94.449 million on 30-6-1990. Thereafter, using your position as Federal Minister, you got the repayment to ADBP re-scheduled thrice without depositing minimum 10% of the outstanding instalments, which were mandatory and, thereby ADBP incurred a loss of Rs,2.48 million; and
(c) You also by using your influence as Federal Minister, got a meeting of the Ministry of Finance convened with the Bank officials to consider waiving/writing off interest of Rs,35.6 million on the principal amount."
4. In support of the Reference, as many as 11 witnesses were produced. P.W.1 Mr. M.A. Qayyum, Deputy Director/Joint Director, General Credit Department of ADBP, Islamabad, gave the resume of the allegations against the appellant. P.W.2 Lal Khan Almas, Deputy Director, Project Appraisal Department, ADBI, deposed that a loan of Rs,36 million was sanctioned in favour of M/s. Pakpattan Dairies Ltd. (hereinafter called PDL) owned by the appellant. He also gave details of additional loans obtained by the PDL and re-schedulement of loans by the ADBP. P.W.3, Nisar Ahmed Malik, Director, Project Appraisal Department, ADBP, stated that the PDL obtained loan from the Bankers Equity in violation of the sanction letter dated 5-5-1985. According to P.W.4, Muhammad Ishaq, Assistant Executive Director, Project Loan Division, ADBP, a meeting was held on 2-6-1990 between the representatives of ADBP, PDL and the Ministry of Finance, in which PDL wanted conversion of working capital loan into long-term local currency loan, waiver of outstanding interest up to 30-6- 1990, etc. And it was agreed that working capital loan would be converted into long-term local currency loan. Waiver of interest was, however, not accepted. P.Ws. 5 and 6 stated that the appellant had been visiting ADBP to see the Chairman. P.W.7, Mr. Ashfaq Ali Quettawala, Executive Vice-President, Bankers Equity Limited narrated the details of loan of Rs,45.631 million sanctioned in favour of M/s PDL. He also stated that Pakistan Banking Council had written letter to them asking for certain concessions for PDL including freezing of outstanding liabilities and interest for the next two years etc. In cross-examination, he admitted that if a party, desirous of loan, showed its equity, it was a factor in his favour. P.W. 8, Chand Muhammad, Senior Executive Director, Finance, ADBP, stated that ADBP constituted a Committee to examine loan cases involving improper procedure of which he was the Chairman. He further stated that the Committee gave a finding that the PDL project was over-financed. P.W.9 Muhammad Zafar Iqbal, Joint Secretary, Ministry of Finance, admitted in cross-examination that no concession had been granted to M/s. PDL. P.W. 10 Muhammad Tariq Nawaz, Section Officer, Ministry of Finance, deposed about the preparation of note Exh. P.W.9/1 by companion of the appellant. P.W. 11 Safdarul Hassan, Joint Director (Legal), Project Loans, ADBP, had received a letter from the Managing Director, PDL to amend the sanction letter dated 5-5-1985, according to which the appellant was Chairman and Chief Executive of the Company and the request was allowed vide Exh. P.W. 11/2. He also stated, on 22-5-1989, Chairman, ADBP, received letter from the appellant to enhance working capital loans.
5. After recording the evidence of the P.Ws., the Special Court examined the appellant with regard to the evidence led against him. Besides the holding of different portfolios at different times, he admitted having moved applications for sanction of loan to ADBP and letter dated 11-11-1984 addressed to M/s. Bankers Equity Ltd., having been signed by him. In the end he pleaded that Reference was made against him in order to victimize him as he had not supported no-confidence motion tabled against the former Prime Minister and that he had resigned from the chairmanship of PDL since 1985/86.
' The appellant produced three witnesses in his defence. D.W. 1 Mr. Majeed Khan, Operation Officer, ADBP, stated that he was Disbursing Officer of ADBP and all the documents and securities given by M/s. PDL were with his Branch. He had received intimation regarding respondent's resignation as Chairman, PDL. He further stated that first re-schedulement was done without any application from PDL or from the appellant. D.W.2, Salim Raza, Chief Accountant, PDL, stated that he was Secretary of the Company and appellant was its Director. According to him, the appellant had resigned from the directorship of PDL on 28-3-1986, which was approved by the Board of Directors vide resolution dated 28-3-1986.-He also deposed about the sanction of loan by ADBP as well as Bankers Equity Ltd. In favour of PDL. About the re-schedulement, he stated, it was allowed as a measure of relief because PDL was adversely affected by floods. D.W.3, Ch. Ahmed Saeed, Chairman, ADBP, stated that the appellant never met him in connection with his loan or remission or re-schedulement although he had been visiting him in connection with getting some job done for the people of his constituency. According to him, remission of interest on the principal loan in case of some companies was allowed.
6. The learned Judge, Special Court, on the basis of evidence on record and after hearing the learned counsel for the parties, vide the impugned judgment recorded a finding that charges (a) and (c) have been proved while charge (b) has not been established. Consequently, the appellant was declared disqualified as noted above.
7. Mr. Aitzaz Ahsan, learned counsel for the appellant argued that the finding recorded by the Special Court is based on misreading and in complete disregard of the material evidence on record. The reason that weighed with the learned Special Court in disqualifying the appellant was that in terms of clause 11(g) of Exh. P.W.1/5, no loan could be obtained from any financial organization during the currency of the loan without approval of ADBP whereas PDL got a loan sanctioned from Bankers Equity Ltd. Mortgaging the title to it without approval of ADBP.
8. We have gone through the evidence on record with respect to the aforesaid finding of the learned Special Court. We are inclined to agree with the learned counsel for the appellant that the impugned finding has been given in disregard of the material evidence on record according to which it is established that the loan in question was obtained with approval of ADBP as is borne out from the testimonies of P.W.1 M.A. Qayyum, P.W. Lal Khan Almas, P.W.4, Muhammad Ishaq and P.W.11 Safdarul Hasan. P.W.1, M.A. Qayyum stated that it is correct that ADBP had directed Bankers Equity Ltd. To hold charge pari passu of property of PDL with regard to ADBP's loan. P.W.2, Lal Khan Almas deposed that it is correct that ADBP issued no objection certificate to Bankers Equity Ltd. In October, 1985 regarding grant of loan to PDL. P.W.4, Muhammad Ishaq stated that ADBP and Bankers Equity Ltd. Agreed to hold pari passu charge on the properties of PDL. P.W. 11, Safdarul Hasan stated that it is correct that he had addressed a letter dated 24-10-1985 to Bankers Equity Ltd. Under the orders of the Chairman, who is the competent authority.
' Reference to letter dated 24-10-1985 Exh. D1 also shows that ADBP conveyed its formal consent to Bankers Equity Ltd. With regard to latter's holding of title documents and creation of pari passu charge. Ch. Fazal-iHussain, learned counsel for the respondent though vehemently opposed the appeal by contending that the findings recorded by the Special Court are substantiated by evidence on record, yet was unable to show that the aforesaid material pieces of evidence were considered by the learned Special Court while recording the impugned finding. Clearly, the learned Special Court disregarded the above evidence and made no reference whatsoever in the order under appeal. As to the finding that the appellant exercised his influence as a Federal Minister in connection with the aforesaid charge, suffice it to say that P.W.7 Ashfaq Ali Quettawala, has not stated in his evidence that the appellant exercised any influence in this regard. Refer to the following portion of his evidence:- "I met once the respondent in the office of Bankers Equity Limited. At that time he was Federal Minister. I had met the respondent some time before the loan was sanctioned."
' Furthermore, Mr. D.M. Qureshi, Managing Director, Bankers Equity Ltd., was not produced as a witness, who was the only person who could depose whether any influence, as alleged, was exercised by the appellant. This Court in the case of Rai Rashid Ahmed Khan y. President of Pakistan (PLD 1994 SC 36), while explaining the phrase 'undue influence', observed that it is not necessary, in order to prove exercise of influence by one person on the decision of another that the former must be present before the latter physically in order to influence the latter's decision, but the exercise of undue influence could be inferred from the circumstances, depending on the facts of each case.
(The underlining is ours.) Here, the loan was obtained with the approval of ADBP and there is nothing on record to indicate that the exercise of influence by the appellant over ADBP in taking the above decision could be legitimately inferred from the circumstances created by the appellant in which ADBP was not free to decide on merits save to take a decision in favour of the appellant. The present case, therefore, is not hit by the rule laid down in Rai Rashid Ahmed Khan (supra).
9. The question whether the appellant by using his influence as Federal Minister got convened a meeting between the officials of Ministry of Finance and ADBP to consider waiving/writing off interest of Rs,35.6 million on the principal amount requires consideration on the basis of evidence on record in juxtaposition with the definition of misconduct as given in Article 2(a) of the Order, which reads thus:- "misconduct" refers ' to conduct after December 1970, and includes bribery, corruption, jobbery, favouritism, .Nepotism, wilful maladministration wilful misapplication or diversion of public moneys collected, whether by public subscription or otherwise, and any other abuse of whatsoever kind of power or position, and any attempt at, or abetment of, such misconduct."
' With reference to the above question, the learned Special Court took the view that the appellant was guilty of an attempt of misconduct. After going through the material available on record, we find that the Special Court has failed to appreciate the evidence on record in its true perspective by omitting to consider the following material pieces of evidence:- ' P.W. 4 Muhammad Ishaq:- "It is correct that ADBP has not granted any remission to Pakpattan Dairies Limited with regard to interest or principal amount. It is correct that the Bank generally facilitates remitting interest and reschedulement of loan in case of sick industry to help them to rehabilitate."
' P.W. 7 Ashfaq Ali Quettawala:- "In case of Pakpattan Dairies Limited, no remission whatsoever has been granted to it."
' P.W. 9 Zafar Iqbal:- "It is correct that no concession whatsoever was granted to M/s ' Pakpattan Dairies Limited in spite of meetings and the letters written by me as mentioned earlier in my statement."
' P.W. 4 Muhammad Ishaq also stated that it is correct that M/s. Hans Dairy Ltd. Were given remission of interest up to 90% and that in the case of a number of other companies interest was frozen and stopped and 50 % of the interest was remitted. The finding of the learned Special Court on this score, in these circumstances, cannot be sustained. Needless to observe that request simpliciter for considering the case of PDL for waiving/writing off interest does not per se tantamount to misconduct, in the facts and circumstances of the present case.
10. The learned counsel for the appellant next argued that the Referring Authority was bound to prove each and every allegation levelled against the appellant beyond reasonable doubt, in that, the inquiry before the learned Special Court was of quasi-criminal nature. We are inclined to agree with the first limb of the submission, but not the later. The appellant was not being proceeded against under President's Order No, 17 of 1977, which provides punishment on account of misconduct on the part of any holder of representative office, but under the Order, which entails disqualification from being elected or chosen as a member of the parliament or a Provincial Assembly for a period of seven years. These proceedings are of civil nature and not quasi-criminal.
The mere fact that by virtue of clause (3) of Article 6 of the Order, the proceedings before a Special Court are deemed to be judicial proceedings for the purposes of the provisions of Chapter XI of the Pakistan Penal Code would not change the nature of proceedings from civil to quasi criminal. Refer Article 6 of the Order, which lays down that a Special Court shall have the power of a civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of matters, mentioned in sub- clauses (a) to (e), namely, summoning and enforcing attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavit, issuing commission for the examination of witnesses or documents and requisitioning any public record or a copy thereof from any Court or office. Though clause (4) of Article 6 of the Order empowers the Special Court to conduct its proceedings and regulate its procedure in all respects as it deems fit, but the provision of 'misconduct' as E contained in Article 2(a) of the Order must be strictly construed and a finding with regard to disqualification must be based on positive evidence, which is lacking in the instant case. It is well-settled that provisions regarding F forfeiture of franchise have to be strictly construed and in case of doubt, the benefit must go to the person proceeded against thereunder. See Sardar Muqeem Khoso v. President of Pakistan (PLD 1994 SC 412) and Rai Rashid Ahmed (Supra).
11. From the narration of above facts and law, it is clear that the G Referring Authority has failed to establish the charges of misconduct against the appellant. In the result, the appeal is allowed and the impugned findings recorded by the Special Court against the appellant are set aside with no order as to costs.