1. ' SHAH NAWAZ AWAN, J.---Appellant Makhdoom Ghulam Muhammad alias Khaliquzzaman son of Makhdoom Muhammad Zaman Talib Mola has filed this appeal under section 14(5) of the Representation of the People Act, 1976 against the order of rejection of his Nomination Papers dated 6-12-1995 passed by the Returning Officer and Additional District Judge, Shandadpur for contesting the Bye-Election to National Assembly Seat No,NA-181 Sanghar-II. It is contended that the Election Commission of Pakistan announced the schedule for the Bye-Election to National Assembly Seat No,NA-181 Sanghar-II, as such the appellant filed his Nomination papers as a candidate of Pakistan People's Party (Shaheed Bhutto) on 3-12-1995. The respondent No,2, Qalandar Bux s/o Alley Fakir, filed objections to the Nomination papers of the appellant, on the ground that the appellant was defaulter to the tune of Rs,10 lacs or above, In support of his contention the objector, that is the respondent No,2 in this appeal, produced certain documents alongwith his objections.
2. ' After hearing the arguments of the learned counsel for the appellant and the respondent No,2, that is the objector, the Returning Officer passed the impugned order on 6-12-1995 by which he rejected the Nomination papers of the appellant. The operative part of the order reads as under: " Learned counsel for candidate Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman has argued that the objections filed by the objector are without force as Mr. Makhdoom has deposited outstanding against him in respect of Telephone charges, Electricity charges, Land Revenue bills etc., therefore, he is very much qualified for contesting Election. He has argued that the objector has produced forged documents of M.C.B., Nawabshah as the candidate Mr. Makhdoom has produced certificate of M.C.B., Nawabshah dated 18-10-1995 which shows that the alleged amount become due after 30-6-1996 and the objector has produced certificate which has been issued due to pressure by P.A. Of Chief Minister. He has argued that the objector has filed objections over the Nomination papers of Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman with mala fide intention in order to keep him away from contesting Bye-Election. He has further argued that Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman is very much qualified for contesting Elections as he has deposited all outstanding dues against him. He has argued that the Manual of Instructions do not override the Statutory provisions of law.
3. ' I have considered the arguments of learned counsel for the parties in the light of documents produced by them. The candidate Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman has produced originals of the documents for perusal which were perused and returned to him.
4. According to objections the documents produced by him, it is clear that amount of Rs,2,50,378 was outstanding against candidate Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman but from the perusal of certificate produced by the candidate this amount becomes due on 30-6-1996.
5. Learned counsel for the objector has conceded after perusal of the documents of the candidate of Mr. Makhdoom that he has recently deposited the arrears of Electricity charges, Telephone charges and Land Revenue Bills, therefore, in view of Instruction No,33(f) appearing on pages 11 an,d 12 of Manual of Instructions for the Guidance of Returning Officer issued' by Election Commission of Pakistan, Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman is not qualified for contesting Elections to the National Assembly as he has cleared the arrears outstanding against him as per documents 2 to 5 produced by the objector after lapse of about 5 years as is evident from the documents produced by candidate, Mr. Makhdoom at Serial Nos. 1, 3 to 14 as mentioned above in this order, therefore, in my opinion he is not qualified for candidature under Article 62(f) of the Constitution and Instruction No,33(f) of the Manual of Instructions for the Guidance of District Returning Officers issued by the Election Commission of Pakistan. Under the above circumstances I reject all the three Nomination Forms of Mr. Makhdoom Ghulam Muhammad alias Khaliquzzaman."
6. ' The learned counsel, Mr. Abdul Mujeeb Pirzada, appearing on behalf of the appellant, contended that the order passed by the Returning Officer of Constitutency NA-181 Sanghar-II is against the law and on the facts as mala fide and against the provisions of law. The learned counsel has further stated that admittedly, at present, there are no outstanding dues of any kind against the appellant as even according to the impugned order the appellant has cleared all the outstanding Government dues except that the loan of Rs,2,50,378, which was against him, but from the perusal of the certificate, produced by the appellant, this amount would become due on 30-6-1996, therefore since no amount of Government is due against him and there are no allegations against him of any kind that he is not a sagacious, righteous and non-profligate and honest and ameen as such he is very much competent to contest the Bye-Election and the impugned order passed is against the violation of Constitution and Representation of the People Act, 1976 and moreso-ever the appellant has given a declaration in the Nomination paper on oath that no loan is outstanding against him. The learned Advocate-General, Mr. Abdul Ghafoor Mangi, has admitted that at present no loan is outstanding against the appellant as according to the record the appellant has cleared up all the outstanding dues and there is no law that if any candidate who has cleared up the Government dues lately should be disqualified for contesting Election as such the learned Advocate-General concedes for accepting the Nomination papers of the appellant which were rejected by the Returning Officer of Constituency NA-181 Sanghar-II.
7. ' On repeated calls, the respondent No,2 is called absent. The learned counsel for the appellant has invited our attention to Rule 7 of section 14 of the Manual of the Instructions for the Guidance of District Returning Officer which reads as under: "7. Announcement of the day and time appointed for the hearing of an appeal under subsection
(5) over the radio or television or by publication in the Press shall be deemed to be sufficient notice of the day and time so appointed."
8. ' In this connection the learned counsel for the appellant has produced a copy of daily 'DAWN'
9. Newspaper dated 12-12-1995 which shows that an appeal by Makhdoom Ghulam Muhammad alias Khaliquzzaman, against rejection of his Nomination papers for election to National Assembly (NA- 181 Sanghar-II) will come up for hearing on December 12, 1995 before the Tribunal constituted for disposal of appeals against the orders of acceptance or rejection of nomination papers as its principal seat of High Court of Sindh Karachi. Accordingly this is deemed to be the proper notice on respondent No,2 in accordance with Rule 7 of section 14 of the Manual of the Instructions for the Guidance of District Returning Officers.
10. We have heard the arguments of the learned counsel for the appellant as well as of the learned Advocate-General, Sindh and have also perused the relevant portion of the impugned order. The impugned order states that since the appellant has cleared up the outstanding Government dues lately that is after the lapse of five years, therefore, he is disqualified for contesting the Elections. We are afraid, we cannot accept this reason of the Returning Officer on the ground that there is no provision either in the Constitution or in the Representation of the People Act, 1976 or in the Manual of the Instructions, for the Guidance of District Returning Officer to disqualify the candidate from contesting the Election on late payment of outstanding dues. On the contrary, the penalty provided for the late payment of Government dues is surcharge, mark-up, interest and disconnection of facility which the appellant has already incurred. There is no such penalty for rejecting the Nomination papers of a candidate who has cleared the outstanding Government dues lately. The Returning Officer has, therefore, unconstitutionally and unlawfully awarded the major penalty of depriving the appellant of the rights guaranteed by the Constitution by disqualifying him from the process of Election without any provision of law. Relevant Rules are reproduced as under: Procedure No,33 of the Manual of Instructions for the Guidance of District Returning Office:
33. Section 99(1) of the Act provides that a person is qualified to be elected as, and to be member of an Assembly if-- (a)
11. (b)
12. (c)
13. (d)
14. (e)
(1) he is sagacious, righteous and non-profligate, honest, ameen and pays his debts specified in subsection (2) of section 12; (g)
15. (h)
16. Section 12(2) of the Manual of Instructions for the Guidance of District Returning Officer: ' 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 candidate---
(I) a declaration that he has consented to the nomination and that he is not subject to any disqualification for being 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, corporate 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 or 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."
17. Article 62 of the Constitution:
62. Qualifications for membership of Majlis-e-Shoora (Parliament)---A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless---
(f) he is sagacious, righteous and non-profligate and honest and ameen;
(g) ...................................................................................................................................
(h) ...................................................................................................................................
18. The above are the connected provisions of law under which the nomination papers of the candidate are to be accepted or rejected. We do not find any omission on the part of the candidate to the above provisions of law therefore, we see no other alternative but to set aside the impugned order passed by the Returning Officer of Constituency NA-181 Sanghar-II on 6-12-1995 and allow this appeal 'as prayed under prayer clauses Nos.1 and 2 of this appeal.