' FAQIR MUHAMMAD KHOKHAR, J.---The respondent No,1 notified a schedule for election to the seats of the Cantonment Board, Rawalpindi, in exercise of the powers conferred by Rule 8 of the Cantonments (Elections and Election Petitions) Rules, 1995. The nomination papers were submitted by the candidates on 24-3-1998. The scrutiny of the same took place on 26-3-1998. The date of the hearing of the appeal against the rejection of nomination papers was fixed as 28-3-1998. However, the schedule of election was partly modified.
2. The petitioner submitted his nomination papers from Ward No,2 of the Cantonment Board, Rawalpindi. His nomination papers were scrutinised by respondent No,2 in terms of Rule 12 of the aforesaid Rules. An objection had been raised before respondent No,2 as to the validity of his nomination papers on the ground that he was the sitting Member of Punjab Assembly belonging to Pakistan Muslim League and was also an office-bearer of the said party at the Provincial level.
Respondent No,2 specifically asked the petitioner as to whether he had been elected and was sitting member of the Provincial Assembly on I P.M.L.(N) ticket. His answer was in the emphatic "No' '.
His nomination papers were accordingly accepted.
3. Later, respondent No,1 issued a show-cause notice dated 25-4-1998 to the petitioner as to why he should not be disqualified from being a candidate of the Cantonment Board, Rawalpindi. The show-cause notice reads as under:- ' Based on information and supplemented by cogent evidence placed before the undersigned that you are:-
(a) A sitting member of Punjab Assembly having been elected on the Ticket of Muslim League (N)
Group.
(b) A guarantor for the following:-
(1) Loan for Mr. M Imran and Partner who is the default of Small Business ' Corporation to the tune of Rs,3,25,166 (Rupees three lac twenty five thousand one hundred sixty six only)
(6) Loan for Mr. Aurangzeb son of M Ibrahim who is the default of Small Business Corporation to the tune of Rs,1,80,523 (Rupees one lac eighty thousand five hundred twenty three only).
(3) Loan for Mr. Abdul Rasheed son of Sultan who is the default of Small Business Corporation to the tune of Rs,3,00,010 (Rupees three lack and ten only).
' Your abovementioned political affiliations and conduct is in violation of section 15-B/15-BB of the Cantonment Act, 1924 read with Rule 12 of the Cantonments Election and Election Petitions Rules, 1995 which has further been clarified by a reference made and opinion received from the Law and Justice Division, Government of Pakistan, Ministry of Law and Parliamentary Affairs Islamabad.
Please show cause as to why you should not be disqualified as a candidate seeking membership of the Cantonment Board, Rawalpindi through elections being held on 20-5-1998. Your reply must reach the undersigned at 1100 hours on 29th April, 1998 either personally or through your authorised agent at the election office Cantonment Board, Rawalpindi."
4. The petitioner submitted, on 29-4-1998, reply to the same. Respondent No,1 passed two separate impugned order dated 30-4-1998 whereby the petitioner was held as disqualified from contesting the election of the Cantonment Board. The first impugned order was based on the ground that the petitioner had given himself out as a candidate for the election of M.P.A., PML(N) in 1996 from Punjab. He had won the election and continued to be a sitting M.P.A. Of the said party in the Punjab Assembly. The same was published in the Gazette of Pakistan by the Commission of Pakistan. His political affiliation was a glaring violation of section 15-BB(1)(c) of the Cantonments Act, 1924 (hereinafter called the Act). In the second impugned order the petitioner was held to be an undischarged insolvent within the meaning of subsection (2)(b) of section 15-B of the Act as he had failed to pay the loans and had become defaulter, being guarantor, of the Small Business Finance Corporation. He had failed in his legal and moral obligation and was deemed to be unfit to hold the public office as representative of the public.
5. By an interim order dated 4-5-1998 passed by a learned Single Judge of this Court in the writ petition, the operation of the impugned orders was suspended. It was directed that the petitioner would not be excluded from the list of the candidates for the purpose of election. The respondents filed a petition for special leave to appeal bearing C.P. No,585 of 1998 against the interim order dated 4-5-1998. The leave was refused by order dated 27-5-1998 of the Hon'ble Supreme Court of Pakistan with the observations that the contentions therein be raised before the High Court where the main writ petition was pending.
6. The learned counsel for the petitioner argued that the mere fact of the petitioner of being a Member of the Punjab Assembly and an office-bearer of the Pakistan Muslim League (N) could not be a disqualification for being elected as and for being a member of the Cantonment Board either under the provisions of section 15-B or 15-BB of the Act. The nomination papers of the petitioner had been accepted by respondent No,2 after scrutiny, respondent No,1 was not empowered by any provisions of the Act and the Rules to pass the impugned orders disqualifying the petitioner. It was further argued that by virtue of Rules 13 of the Rules, respondent No,2 could act as an appellate authority and that too if the nomination paper or papers had been rejected. Rule 14 of the said Rules specifically provide for filing of an appeal against the acceptance of nomination papers. It was submitted that the position of the petitioner was just a guarantor in the loan cases. Therefore, he could, not be said to be an undischarged insolvent within the meaning of clause (b) subsection
(2) of section 15-B of the Act. The learned counsel referred to the cases Ghulam Mustafa Jatoi v.
Additional District and Sessions Judge/Returning Officer, N.A.
158. Naushero Feroze and others (1994 SCMR 1299) and Sh. Abdul Hamid v. President, Cantonment Board and others (1984 CLC 592) (Lahore) in supporting of his contentions. Reference was also made to an order dated 11-1-1995 passed in Writ Petition No,1456 of 1994 by a learned Division Bench of this Court in the case of "Hafiz Hussain Ahmad v. Pakistan and others".
7. On the other hand, both the learned- counsel for the respondents submitted that the petitioner, a P.M.L. Member of Provincial Assembly was disqualified from being elected as and for being a member of the Cantonment Board by virtue of the provisions contained in clause (g) of subsection
(2) of section 15-B of the Act read with sections 21(2)(K) and 22 of the Punjab Local Government Ordinance, 1979. Reference was made to the cases of Shaikh Abdul Hamid v. President.
Cantonment Board and others (1986 SCMR 392) and Sabiruddin v. Mushtaq Hussain Bhatti and 2 others (PLD 1993 SC 412).
8. We have heard the learned counsel for the parties at length. The relevant provisions of sections 15-B and 15-BB of the Act are reproduced below for ready reference:- "15-B. Qualification and disqualifications of members.---(1).
(2) A person shall be disqualified for elected as and for being a member of, a Board if he---
(b) is an undischarged insolvent;
(g) is for the time being disqualified for the membership of an elective body under any law for the time being in force.
15-BB. Canidates not to contest election on political basis.--- (1) No person contesting election to a Board shall, directly or indirectly,---
(a) give himself out as a candidate or nominee of a political party;
(c) bear, display or carry any document, sign, insignia, flag or any other thing indicating his association with, or affiliation to, a political party;
(d) seek the votes or sympathies of the people on party basis or on the basis of the manifesto of any political party; or
(2) whoever---
(a) is found by the President of the Board to have contravened the provisions of subsection (1) shall stand disqualified for being a candidate for election to a Board for a period of four years; or
(b) having been elected as a member of a Board is found by the President of the Board to have contravened the provisions of subsection (1) shall cease forthwith to hold the office of such member and stand disqualified from being a candidate for election to a Board for a period of four years."
9. The petitioner was never adjudged by any Court as an insolvent. Merely because he was a guarantor in some cases of loan would not bring his case within the mischief of clause (b) of subsection (2) of section 15-B of the Act. He cannot be treated to be a debtor within the meaning of section 6 of the Provincial Insolvency Act, 1920. Nor does the question of discharge of the order of adjudication under section 41 thereof arises. That being so, the disqualifications of being a candidate or a member as provided for section 73 of A the said Act of 1920 would not be attracted as held in the case of Ghulam Mustafa Jatoi (supra). The position of a guarantor or a surety is different from that of loanee for the purposes of determining the disqualification under the election laws. Such person cannot be considered to be a defaulter of a loan as provided for in section 12(2)
(iii) of the Representation of the People Act, 1976. The second impugned order passed by respondent No,2 on the ground of undischarged insolvency of the petitioner is not sustainable.
10. Now, the question arises as to whether the petitioner being a member of Provincial Assembly, Punjab having been elected on political party basis and being a office bearer of such political party at the Provincial level is disqualified for being a candidate or a member of the Cantonment Board. The disqualifications enumerated in subsection (2) of section 15-B of the Act are not exhaustive in nature. By virtue of clause (g) thereof a disqualification for the membership of an elective body under any law of the time being in force would also be read into the Act. Almost every election law contains similar provisions where disqualifications provided in other laws are to be read into it. By sub-clause (p) of clause (1) of Article 63 of the Constitution of Islamic Republic of Pakistan in addition to the disqualifications as enumerated, a person is disqualified from being elected and from being a member of Parliament or a Parliament or a Provincial Assembly if he is so disqualified under any law for the time being in force. Thus, visualised the disqualifications as found in other laws relating to an elective body shall be read as if enacted in section 15-B of the Act. The method of legislation by reference or incorporation is very well-recognised. Reference may be made to the cases of Secretary of State v. Hindustan Cooperative Insurance Society Ltd. (AIR 1931 PC 149), Province of West Pakistan v. Mahboob Ali and another (PLD 1976 SC 483) and Malik Ghulam Abbas (supra). In the case of Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66 at 175), it has been laid down that a perusal of opening portion of clause (1) Article 63 of the Constitution indicates that the grounds mentioned in subclauses of this clause are not exhaustive as it has not been provided therein that the same are the only grounds. Additional grounds can be added either by amending the aforesaid clause (1) or by law. It has been further held at page 274 of the report that Article 63 of the Constitution applied to the pre-election as well as the post election period.
11. If a candidate or a member of a Cantonment Board is disqualified for the membership of an elective body under any law for the time being in force. He would be disqualified to be a candidate or a member of the Cantonment Board by virtue of clause (g) of subsection (2) of section 15-B of the Act. The phrase "under any law for the time being in force" is not without significance. The word "any" is ordinarily used extending the amplitude of the term to which it is attached excluding all limitations or qualifications . This word may be G interpreted as a substitute for all or every as the context of a particular statute may require. Reliance can be placed on the cases of Ismat Naureen v. Additional Sessions Judge, Attack and another (PLD 1998 Lahore 275)(D.B.), Government of N.- W.F.P. Through Chief Secretary v. Muhammad Irshad and 3 others (PLD 1995 SC 281), Inam-ur- Rehman v. Federation of Pakistan (1992 SCMR 563), Ch. Zahur Ilahi, M.N.A. v. The State (PLD 1977 SC 273 at 310), Allah Ditta v. The State through Secretary, Ministry of Defence, Islamabad (PLD 1976 Lahore 823), Pakistan Tanneries Ltd. v. Sardar Hidayat Ullah Mokal and 5 others (PLD 1972 Lahore 880) and Mr. ManzurQadir v. Mst. Amtul Hussain and 2 others (PLD 1971 Lahore 537)(D.B.). The meaning of the phrase "for the time being" is thus stated in the Stroud's Judicial Dictionary Volume- IV:- "The phrase 'for the time being' may according to its context mean the time present or denote a single period of time but its general sense is that of time indefinite and refers to an indefinite state of facts which will arise in the future and which may (and probably will) vary from time to time."
' Somewhat similar view has been taken in the cases of Mian Iftikhar-ud-Din and another v.
Muhammad Sarfraz Administrator, Progressive Papers Ltd. And another PLD 1961 SC 585), Mst. Amro Jan and others v. Malik Amir Muhammad Khan (1972 SCMR 639), and Malik Ghulam Abbas v. Malik Muhamad Mumtaz Khan and 2 others (PLD 1980 Lahore 718 at pages 735 to 739 and 757) (D.B.).
12. In the case of Rahim-ud-Din v. Sh. Bashir Ahmad and another (PLD 1968 Lahore 705), a member elected under the Electoral College Act, 1964, was held to be disqualified from being a member based on the grounds of removal from service for misconduct and corruption by reference to the Elective Bodies (Disqualification) Order, 1959 (P.O.No,13 of 1959). It was held as under:- ' "Section 53 of the Act is mandatory. It lays down that a person shall be disqualified from being a member of the electoral college if he is for the time being disqualified from being a member of elective body under the Order. On the fair analysis of section 35(a) of the Act it would appear firstly that a person who has been elected to the electoral college shall be disqualified from being a member of the same if he is for the time being disqualified under the Order. In other words, where the disqualification may have escaped scrutiny by anyone and is discovered later on, the member to the electoral college can be disqualified. In the second place all that section 53 of the Act required is that a member of the electoral college should be disqualified if he is for the time being disqualified under the Order. The words for the time being" are important to note. It would mean the time when the action is being taken against the member under section 54 of the Act. Section 53 read with section 54 envisages a situation where the disqualification may have escaped the notice of interested party but is discovered later on. The intention of the framers of the Act and the Rules could not be to let go a person who managed to keep his disqualification a secret at the time of the election."
13. Section 21(1)(K) of the Punjab Local Government Ordinance, 1979, provides that a person shall be disqualified to be a candidate or a member of a local council if he is a member of the Senate, the National Assembly or the Provincial Assembly. Similarly, section 22 thereof also debars a person rfrom being a member of more than one local council at the same time; if elected as a member of the Senate, the National Assembly or the Provincial Assembly, his seat as a member of the Local Council shall stand vacated on taking oath as a member of the Parliament or the Provincial Assembly. The intention of the law makers is quite clear that the political heavy weights should not be allowed to capture the local bodies. Mere presence of a member of the Parliament or a Provincial Assembly in a local body/council may be sufficient to create an embarrassing situation and impediment in orderly running of the affairs of such a local body with a political clout. There is no doubt that the local councils constituted under the Punjab Local Government Ordinance, 1979, are the elective bodies within the meaning of clause (g) of subsection (2) of section 15-B of the Act.
If a member of a Provincial Assembly such as the petitioner is disqualified to be a candidate or a member of a local council, he would stand disqualified for being a candidate or a member of a Cantonment Board. Even under Article 223 of the Constitution of Islamic Republic of Pakistan there is bar for the double membership of the Parliament and the Provincial Assembly. Reliance is placed on the cases of Riaz Hussain v. Fazal Muhammad and others (1980 CLC 839, Muhammad Khan v.
Muhammad Sarfraz Khan and another (1980 CLC), Umar Draz Cheema v. Nazar Muhammad and others (1980 SCMR 156), Abdul Haleem v. Muhammad Amin Khan and another (1982 SCMR 418), Khawaja Muhammad Akhtar v. President Cantonment Board, Sialkot City of Election Authority (Tribunal) (1981 SCMR 291) and Malik Ghulam Abbas (supra).
14. In the case of Muhammad Khan (supra), a member of a local council in Punjab was held to be disqualified under section 21(f) of the Ordinance, 1979, with reference to the disqualifications provided for by Article '10(2)(b)(8) of the Houses of Parliament and Provincial Assemblies (Election)
Order No,5 of 1977. It was further held that by virtue of section 21(0, a disqualification provided for under any other law for the time being in foree was to be read into as a part of the disqualification provided for by the Ordinance, by operation of law, without there being a specific order of any authority.
15. In the case of Umar Draz Cheema (supra), the Hon'ble Supreme Court laid down that the word "disqualification" in clause (f) of section 21 of the Ordinance, 1979, did not have any particular language of the provisions of other statutes. The High Court was right in holding that such disqualifications as provided for by P.O.No,5 of 1977, being an integral part of the Ordinance should be given full effect. Similar view was taken in the cases of Abdul Haleem and Sabir-ud-Din (supra).
16. In the case of Malik Ghulam Abbas (supra), a Divisions Bench of this Court examined in detail the scope of section 21(f) of the Punjab Local Government Ordinance, 1979, with reference to P.O.No,5 of 1977. Thereunder, a person if disqualified, from being a candidate or a member of Provincial Assembly under any law was disqualified to be a candidate or member of a local council. It was laid down that tenor of section 21(f) of the Punjab Lo'cal Government Ordinance, 1979 was to bring the candidates for the local councils on the same footing as the candidates for the membership of the Parliament or the Provincial Assemblies by subjecting them to the same disqualifications in addition to those mentioned in section 21. It was further held that: ' "Section 21-A, as stated above, provides in no uncertain terms about the absolute non-political nature of the election. A person who is a member of a political party which enjoys some popularity cannot be expected to fight an election without taking advantage of his political ailgnment and association. The association with the political party, therefore, would itslf be a relevant fact.
' The observations made above to apply to the present case.
17. We, therefore, hold that the petitioner is disqualified for being elected as and for being a member of the Cantonment Board by virtue of disqualification provided by clause (g), subsection
(2) of section 15-B and the provisions of section 15-BB of the Act read with sections 21(K) and 22 of the Punjab Local Government Ordinance, 1979. The judgment in the case of Sh. Abdul Hamid (supra) referred to by the learned counsel for the petitioner was reversed by the Supreme Court in 1986 SCMR 392.
18. We do not find any substance in the arguments of the learned counsel for the petitioner that respondent No,1 was not empowered to pass the impugned orders suo motu. The provisions of section 15-BB of the Act clearly vest respondent No,1 with jurisdiction to pass such orders. Even otherwise, such a power is necessary for respondent No,1 who is charged with the duty to ensure that the elections to the Cantonment Board are held fairly, honestly, imprtially and in accordance with the provisions of the Act and the Rules made thereunder. In the case of Emmanula Masih v.
The Punjab Local Councils Election Authority and others (1985 SCMR 729), the scope of the powers and jurisdiction of the Punjab Local Councils Election Authority was examined. It was laid down that "the Election Authority created to see fairness, impartially, and honestly in conduct of election and invested with all enabling and remedial powers in that behalf. Such authority, cannot, unless compulsions of law leave no options, be made a helpless onlooker, enjoined to countenance manifest illegalities with the only available apology that they can be taken care of and dealt with at a subsequently stage, in a different proceeding at a more leisurely pace and in the interregnum the consequence of such manifest illegalities and fruits thereof should remain available to those ex facie not deserving it."
19. In our view the disqualification of the petitioner was not a notorious one as it involved interpretation of the provisions of the Cantonment Act, 1924, with reference to other laws and the Constitution. Even the respondents were not sure of the correct position of the law. The petitioner had contested the election and was returned pursuant to an interim order passed by this Court.
The voters could not be presumed to be aware of the disqualification of the petitioner. The votes cast his favour cannot be treated to be thrown away. In these circumstances, the authorities will have to hold a fresh election to Ward No,2 of Cantonment Board, Rawalpindi in accordance with law. Similar view was taken in the cases of Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6), Rashid Ahmad Rahmani v. Mirza Barkat Ali and two others (PLD 1968 SC 301), Muhammad Afzal Khan v. Khadim Hussain Khan (PLD 1978 SC (AJ&K) 73), Lal Muhammad v. Muhammad Usman and others (1975 SCMR 409) and Shahid Nabi Malik v. Muhammad Ishaq Dar and 5 others (1996 MLD 295).
20. For the foregoing reasons, the petitioner is not found to be entitled to F the discretionary relief in writ jurisdiction. Resultantly, this petition fails and is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.