' MALIK MUHAMMAD QAYYUM, J.---Sardar Muhammad Jamal Khan Leghari, a candidate in the forthcoming Elections to the Punjab Provincial Assembly from Constituency No,PP-201 D.G. Khan, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question order of the Returning Officer dated 26-12-1996 which was affirmed in appeal by the learned Election Tribunal on 7-1-1997 whereby while overruling objections of the petitioner to nomination of Sardar Zulfiqar Ali Khan Khosa, respondent No,3, as a candidate from the same constituency in the Punjab Provincial Assembly, his nomination papers were accepted.
2. It appears that respondent No,3 had filed three nomination papers for Constituency PP-201, D.G.
Khan and also for NA-132, D.G. Khan where the petitioner objected that respondent No,3 was disqualified to contest the elections on the ground that he has been one of the Directors of M/s. Pak Livestock and Dairy Farm Ltd. Company, 143-Farozepur Road, Lahore, which had obtained loans from Agricultural Development Bank of Pakistan, Model Branch, Lahore and Pak-Kuwait Investment Company (Pvt.) Ltd. Which were written off to the tune of Rs,44.20 million so far as Agricultural Development Bank of Pakistan was concerned and Rs,2.60 million as regards the Pak-Kuwait Investment Company (Pvt.) Ltd. On 29-6-1995 and 26-1-1995 respectively. The other objection was that respondent No,3 had sworn a false declaration in his nomination papers and as such he was not sagacious and righteous and was not qualified to contest the forthcoming elections in view of Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973.
3. The Returning Officer repelled these objections by observing that no documentary proof had been produced before him to show as to writing off any loan and that respondent No,3's name did not appear in the list of defaulters provided by the Provincial Election Commission to him.
4. Aggrieved by the orders of the Returning Officer the petitioner filed an appeal before the learned Election Tribunal constituted under section 11 of the Representation of the People Act, 1976, which was admitted to regular hearing on 13-1-1997 and notices were issued to respondents as also Agricultural Development Bank of Pakistan, Islamabad as well as Pak-Kuwait Investment Company (Pvt.) Ltd. During the course of hearing of the appeal, two clearance certificates were produced by respondent No,3, one issued by the Agricultural Development Bank of Pakistan on 28-6-1995 and the other by the Pak-Kuwait Investment Company (Pvt.) Ltd. Which was dated 30-5-1995. The petitioner thereupon along with a written application filed a copy of the minutes of the meeting of the Committee which had written off the loans as also certificates issued by the Agricultural Development Bank of Pakistan on 30-6-1996 and by the Pak-Kuwait Investment (Pvt.) Ltd. On 30- 12-1996 showing that respondent No,3 was one of the Directors of the Company at the time when the loans were written off. It appears that at the time of hearing of the appeal Mr. Shamshad Ahmad Khan, Deputy Director, State Bank of Pakistan had appeared and produced a letter dated 5-1-1997. The appeal filed by the petitioner was dismissed by the Tribunal on 7-1-1997. Hence this petition.
5. Before us, Mian Muhammad Zafar Yasin, the petitioner's learned counsel has contended that both, the Returning Officer as also the learned Election Tribunal have misread the record and the law and that stands conclusively proved that huge sums of money were written off out of the loans due from M/s. Pak Livestock and Dairy Farm Ltd. Company to the Agricultural Development Bank of Pakistan and Pak-Kuwait Investment (Pvt.) Ltd. And as respondent No,3 was a Director of the said Company he was disqualified from contesting the elections in view of section 12(2)(iv) of the Representation of the People Act, 1976 as amended by the Representation of People (Fifth Amendment) Ordinance, 1996 read with section 99 of the Act and Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973. The other argument of the learned counsel for the petitioner was that respondent No,3 having made false declaration in his nomination form that no amount of any concern of which he was a Director had been written off could not be considered as Ameen, sagacious or righteous.
6. Ch. Muhammad Farooq, Advocate, representing respondent No,3 raised a preliminary objection as to the maintainability of this petition on the strength of Article 225 of the Constitution and the judgment of the Supreme Court in Election Commission of Pakistan through its Secretary v. Javed Hashmi and others PLD 1989 SC 396. According to the learned counsel, the dispute raised in this petition can only be adjudicated upon after the elections by the Election Tribunal and not by this Court in the exercise of its Constitutional jurisdiction. Ch. Muhammad Farooq, Advocate went on to argue that the Representation of People (Fourth Amendment) Ordinance, 1996 and the Representation of People (Fifth Amendment) Ordinance, 1996 could not be given retrospective operation and were, therefore, not applicable in the present case and that in any case, the two Ordinances were violative of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 and were, therefore, invalid.
7. On merits, it was stated by the learned counsel that there has been no writing off of any loan. On the other hand, there was litigation pending in Courts which was settled by the parties by entering into voluntary agreement and as such disqualificatory clause had no application to respondent No,3. In reply, the learned counsel for the petitioner has submitted that disqualification of respondent No,3 is evident on the face of the record and the acceptance of the nomination by the Tribunal and the Returning Officer was wholly without lawful authority and as such the orders passed in that behalf can be set aside in the exercise of Constitutional jurisdiction of this Court.
8. Taking up the case on merits first, there are certain facts which are either admitted or proved on the record. There is no dispute that the petitioner was one of the Directors of M/s. Pak Livestock and Dairy Farm Ltd. Company, a Company incorporated under the Companies Ordinance, 1984 which had obtained two loans in the sums of Rs,24,600 million and 1.500 million from the Agricultural Development Bank of Pakistan and a loan of Rs,2.60 million from Pak Kuwait Investment Company (Pvt.) Ltd. It has been stated by the learned counsel for the petitioner and is even otherwise borne out from the record that the total outstanding liability of the Company towards the Agricultural Development Bank of Pakistan was Rs,68.78 million. However, as a result of the decision taken by the ADBP Remission Committee in its meeting held on 31-1-1995 under the Chairmanship of the then Minister for Finance, Revenue and Economic Affairs, an amount of Rs,44.197 million, representing total markup was remitted subject to the payment of principal amount within a specified period. What is interesting to notice in this behalf is that the said Committee resolved that its minutes shall not be put up before the Board of Directors of the Agricultural Development Bank of Pakistan.
9. These facts have not been specifically disputed either in the written statement filed by respondent No,3 or even by the learned counsel representing him. On the other hand, Ch. Muhammad Farooq, learned counsel for respondent No,3 has reiterated the stand taken in the written statement that it was with a view to settle pending litigation that the parties had agreed that the Company would pay a sum of Rs,24.588 million to the Agricultural Development Bank of Pakistan in full and final settlement of all of its claim against the Company. It was explained that such arrangement was also arrived at in respect of loan payable to Pak-Kuwait Investment Company (Pvt.) Ltd.
10. This contention of the learned counsel does not appear to be correct. On the other hand, it is quite obvious from the minutes of the meeting which have been placed on record that total mark up was written off as a result of the decision of the Committee taken in its meeting held on 31-1- 1995. The letter dated 20-2-1995 of the Agricultural Development Bank of Pakistan to the Managing Director, Pak Livestock and Dairy Farm Ltd. Company also bears out this fact.
11. Be that as it may, even if it be assumed for the sake of arguments that settlement was arrived at between the parties in order to put an end to the pending litigation yet the fact remains that out of the total liability of the company, it paid only Rs,31.138 million and was thus allowed benefit to the extent of Rs,46.80 million. Since result of such arrangement was that a part of the liability of the Company was foregone by the Agricultural Development Bank of Pakistan it would clearly amount to writing off the loan. The use of any other terminology like remission/settlement/agreement would hardly make any difference.
12. We may refer with advantage to the decision of the 3 learned Judges of this Court which constituted the Election Tribunal in the case of Muhammad Aslam Butt v. Returning Officer, Gujranwala 1993 M LD 2496 the relevant portion of which reads as under: "We are unable to accept the interpretation put forth by the learned counsel. Whenever a loan is liquidated without making full payment in cash or through valuables worth the cash, it will be deemed to have been written off. The phrases adjustment/satisfaction or liquidation, we believe are just the phrases used for their customers/businessmen by the Bank authorities, as essentially they are business concerns."
13. According to Chamber's Dictionary, New Edition at page 2019, 'write off' means to take off the books'. In Black's Law Dictionary, Sixth Edition at page 16029, the following definition of 'write off' appears: "To remove from the books of account an asset which has become worthless. Most often referred to in connection with accounts or notes receivable which are deemed worthless or uncollectible."
' There is thus no escape from the fact that a sum of Rs,46.80 million due from the company of which respondent No,3 was a director was written off.
' Section 12 of the Representation of the People Act, 1976 after its amendment by 4th and 5th amending Ordinances, 1996, so far as it is relevant for the present purpose read as under:- "(i) .........................................................................................
(ii)
(iii) ..................................................
(iv) a declaration that no loan, other than a loan written off under the orders of the Government because of any natural calamity obtained by him, his spouse or dependent children or dependent parents or any business concern mainly owned by the aforesaid from any bank, financial institution, cooperative society or corporate body was written off.
' Explanation:
(b) 'mainly owned' shall mean holding of controlling and majority interest in a business concern, except in the case of clause (iv) where it shall mean every person who was a defaulter or partner in a business concern at the time the loan was written off."
13. As is obvious from what has been stated in the preceding paragraphs, an amount of Rs,46.80 million was written off out of the liability of the Company towards the Agricultural Development Bank of Pakistan and respondent No,3 being admittedly a Director of the said Company at the relevant time is clearly hit by the above-quoted provision. Reference may also be made to the disqualification appearing in section 99(f) of the Representation of the People Act, 1976 which is to the effect that a person would not be qualified to be elected or chosen as a Member of the Assembly unless he is sagacious, righteous, non-profligate, honest, ameen and pays his debts and taxes specified in subsection (2) of section 12 which is also applicable to the present case.
14. Ch. Muhammad Farooq, learned counsel for respondent No,3 has stressed that there was no political influence exerted by respondent No,3 for securing aforesaid remission as though the said respondent as a Member of the Punjab Provincial Assembly, at that time he was in opposition. It is not necessary for us to advert to this aspect of the matter, for, there is nothing in section 12 or section 99 which restricts the applicability of the relevant clauses only in case the loan was written off under some political influence. Whatever be the reason, the fact remains that the Company did benefit to the extent of Rs,46.80 million. It is, however, interesting to notice that the Committee in its meeting dated 31-1-1995 had resolved that those minutes shall not be placed before the Board of Directors of Agricultural Development Bank of Pakistan though the said Bank being the statutory Corporation, in law, any decision about the write off the loan could be taken by its Board and not by any other body.
15. It is also painful to notice that respondent No,3 in his own declaration embodied in the nomination papers had clearly stated that no loan other than his loan written off under the order of the Government because of any natural calamity obtained by him, by his spouse or dependent children or dependent parent or any business concern mainly owned by the aforesaid from any Bank, Financial Institution, Cooperative Society, Corporate Body was written off. This statement was obviously incorrect and as such respondent No,3 cannot claim to be Ameen or righteous.
16. So far as the argument of Ch. Muhammad Farooq, Advocate, as to the validity of two amending Ordinances on the touchstone of Article 12 of the Constitution, it is clear to us that the applicability of this Article is confined to cases where some punishment has to be inflicted on a person and not where a disqualification is added in the law relating to conduct of elections. This interpretation clearly borne out from the language of Article 12 itself and is also supported by a Division Bench judgment of this Court in the case of Mir Ghous Bakhsh Bizenjo v. The Islamic Republic of Pakistan through Secretary, Ministry of Law, Islamabad and another PLD 1976 Lah.
1504. We may also refer to the Division Bench judgment of the Sindh High Court in C.P. No,D- 2605/93 and C.P. No,D-2606/93 where a similar argument was raised but was repelled in the following terms:- "The above connotations clearly indicate that 'punishment' and 'disqualification' are not synonymous but different meanings have been assigned to them, the impugned legislation shows that a candidate desirous of seeking election to the National or a Provincial Assembly may incur a disqualification under the circumstances as indicated above, but such disqualification cannot constitute a punishment. A candidate under such circumstances would not be deprived of any right, but he would only stand disqualified from seeking election. Therefore, we are unable to agree with the contention raised by Mr. Khalid Ishaque that disqualification of a candidate tantamounts to his punishment and the same would, therefore, attract the provisions of Article 12(1)(a) of the Constitution. Besides that failure to repay a debt as contemplated by the said provisions of law, would be a continuing wrong. Therefore, it cannot be said that such provisions operate retrospectively. We are, therefore, unable to agree even with the second contention of Mr. Khalid Ishaque."
17. Ch. Muhammad Farooq, learned counsel for respondent No,3 attempted to argue that the amendments made are also ultra vires Articles 62 and 63 of the Constitution as a disqualification can only be added by amending the Constitution and not by promulgating a sub-Constitutional legislation. According to the learned counsel clause (p) of Article 63 refers to the laws existing at the time of the enforcement of the Constitution and not to a subsequent law. In support, the learned counsel relies upon certain judgments of the Supreme Court of Pakistan.
18: Similar argument was raised before the Sindh High Court in the case of Ata Muhammad Mari and another v. Federation of Pakistan and another 1994 CLC 409 but was repelled by observing that the repayment of loan and despatch of obligation in that respect were qualifications covered by Article 62 of the Constitution and the law framed by the Parliament would be covered by Article 62(i) which provides that a candidate must be righteous, non-profligate and Ameen. The relevant observations appearing in Ata Muhammad Mari's case supra, at page 176 are as under:--- "However, for the purpose of the present Constitutional petition, it is not necessary to interpret the words 'under any law for the time being in force' contained in clause (p) of Article 63(1) as in our view, the amendment that has been made in section 99(1)(f) of the Representation of People Act, which is identical to Article 62(f) of the Constitution, as the words 'and pays his debts specified in subsection (2) of section 12' of the Act of 1976 after the qualification that he is sagacious, righteous, non-profligate, honest and Ameen. We consider the words 'pays his debts' as qualification rather than a disqualification. According to Mr. Muhammad Ali Syed, himself, under clause (i) of Article 62, an additional qualification can be prescribed by law, subject of course of the rider that such additional qualification does not contravene any provision of the Constitution. We are therefore, of the view that the amendments regarding payment of loans and the declaration required to be given in that behalf as a condition for taking part in the elections, could validly be made under clause (i) of Article 62 of the Constitution.
' Again at page 178, the following statement appears:--- "The Court also takes judicial notice of the fact that loans and facilities from financial institutions running into billions of rupees have been taken by influential persons and their family members, directly or indirectly, including some of our chosen _representatives. It is also common knowledge that a substantial part of such loans has remained unpaid for years together making our poor country more poor. On account of big loans being advanced to influential families, such families become more rich and more powerful. On account of such big loans being diverted to very small number of families which are influential, other deserving parties suffer on account of facilities not being available to them. Bad and written off loans--and confined to few influential families-- adversely affected the economy of our country and, as observed, it is the common man who ultimately suffers."
It emerges from the above discussion that the candidature of respondent No,3 was hit by section 12(2)(iv) and section 99(1)(f) of the Representation of the People Act, 1976 and Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and the Returning Officer as also the learned Election Tribunal acted without any lawful authority in accepting the candidature and allowing him to contest the elections.
18-A. Recently a Full Bench of this Court, of which one of us Malik Muhammad Qayyum, J. Was a Member, in Noor Muhammad v. Election Commission of Pakistan and others W.P. No,23121 of 1996, decided on 31-12-1996 lamented the failure on the part of the Returning Officers to give effect to Articles 62 and 63 which occupy predominant position in the Constitution. It was noted that these Articles have remained pious wish and have been rarely invoked by the Election Authorities. While disposing of the aforesaid Constitutional petition, a direction was issued to the Election Commission of Pakistan and all functionaries acting under it to give full effect to the said Articles of the Constitution while determining the eligibility of the candidates to contest the forthcoming elections. It was a matter of great regret that the directions given by this Court in the aforesaid case have been totally ignored which has rendered orders to be unsustainable.
19. It now remains to take notice of the objection raised by Ch. Muhammad Farooq, Advocate as to the maintainability of this petition in view of Article 225 of the Constitution. It is true that the Supreme Court of Pakistan in the case of Election Commission of Pakistan through its Secretary v.
Javaid Hashmi and others PLD 1989 SC 396 has laid down that in election matters the High Court should not interfere in the exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and that grievance could only be decided in this respect after the elections in an election petition. However, this rule is not inflexible as we find that both before as also after the decision in Javed Hashmi's case supra, the Supreme Court of Pakistan has itself created certain exceptions. In the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Faroze and others 1994 SCM R 1299 after noting the previous judgments delivered by the Court it was laid down that though in election process the High Court should not interfere by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution but where the order passed by the Election Tribunal was patently illegal without jurisdiction or had the effect of disqualification of a candidate he can press into service the Constitutional jurisdiction of the High Court. Earlier in Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore 'etc. PLD 1966 SC 1 S.A. Rehman, J. (as his Lordship then was) observed that if it is found in a particular case that order passed by the Election Tribunal was without jurisdiction or was a result of failure to exercise jurisdiction or is tainted with mala fide, aggrieved party was entitled to invoke Article 98 of the Constitution of 1962. It is also pertinent to refer to the case of The Presiding Officer v. Sadruddin Ansari and others PLD 1967 SC 569, Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 and Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 352. Last but not the least, notice must be taken of the famous case of Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738 wherein Ajmal Mian, J. Speaking for the Court was pleased to lay down that notwithstanding the ouster clause in the Constitution or any other law, the Court has jurisdiction to interfere if the impugned act or action was without jurisdiction, or mala fide.
20. It was contended by Ch. Muhammad Farooq, Advocate that non-eligibility of a returned candidate was a matter which could be investigated into by the Election Tribunal which could set aside his election if he was found to be disqualified under section 68 of the Representation of the People Act, 1976 which provides that the Tribunal shall declare the election of a returned candidate to be void if the nomination of returned candidate was invalid. It was, therefore, argued that the petitioner had an alternate remedy by filing an election petition after the elections on the grounds urged by him.
21. We are unable to agree with the learned counsel for two reasons, firstly that the impugned orders are wholly illegal and void and secondly that although invalidity of the nomination of a returned candidate was a ground for setting aside the election but a candidate is left with no remedy in a case where such a candidate does not succeed in election though his participation may have resulted in the election being materially affected. To illustrate, supposing there are three candidates in the election i,e, 'A', 'B' and 'C', out of whom, nomination of 'A' was invalid, the election is won by 'B', though 'A' also secures substantial number of votes. 'C' cannot challenge the election of 'B' in an election petition on the ground that due to participation of ' A', a candidate, whose nomination was wrongly accepted he has been materially affected as the participation of a candidate who does not succeed in election was not a ground for setting aside it, if he has not won the election. This is in contra distinct to the law prevailing in India, where under the Representation of People Act, 1951, one of the grounds enumerated in section 101 for setting aside the election is that the result of the election has been materially affected by improper acceptance of any nomination.
22. In the end we may state that even after Javed Hashmi's case, there have been cases where the Courts have interfered in the election matters, once it was found that there was illegality patent on the record. In one of such cases namely Ch. Muhammad Riaz v. The Returning Officer, PP-10 Rawalpindi-X W.P. No,1023/93 a Full Bench of this Court comprising of five learned Judges had set aside the order of the Returning Officer. The petition for leave to appeal filed against that judgment was also dismissed. Similarly in the cases of Babu Muhammad Munir v. Appellate Tribunal of the Election Commission and others 1993 SCM R 2348 and Syeda Abida Hussain v. Tribunal for NA-69 Jhang-IV and others PLD 1994 SC 60 the decisions were made on merits and not on the ground of non-maintainability of the Constitutional petitions.
In view of above, this petition is allowed, impugned orders of the Returning Officer as also the Election Tribunal dated 26-12-1996, 7-1-1997 are declared to be without any lawful authority and of no legal effect with the result that the nomination papers of respondent No,3 stands rejected. No order as to costs.