(a) In his nomination papers the returned candidate had declared that he owed no liability in respect of debt/loans or Government dues and utility expenses to any Bank or Government whereas two loans of Rc 46,30,000 and Rs.2,28,000 obtained by him as President of Kafoor Dheri Dairy Farm Society, Peshawar and Regi of Aftazai Union Council, Multi-purposes Society, Kafoor Dheri from the Frontier Provincial Cooperative Bank Limited were still outstanding and he had also not paid Government dues and utility expenses amounting to Rs.83,172 on account of occupancy and telephone charges of M.P.A. Hostel/Shahi Mehman Khana, Peshawar.
(b) The returned candidate being defaulter of loans and Government dues and utility expenses was not qualified/disqualified to contest the election.
(c) The nomination papers of the returned candidate were accepted by the Returning Officer in view of the stay orders concerning the default issued by the Peshawar High Court. The returned candidate had played a fraud on the Court by suppressing the loans and had, thus, committed a corrupt and illegal practice. In any case he was a defaulter of loans and Government dues and utility expenses at the time of contest as the writ petitions filed by him were dismissed as withdrawn and the stay orders were vacated.
2. The returned candidate strenuously resisted the election petition by filing a detailed written statement wherein he denied the allegations made in the petition and raised several legal and factual pleas in defence. He contended, inter alia, that the declaration made by him in the nomination papers was correct as having not obtained any loan from any Bank or occupied a room in the M.P.A. Hostel as M.P.A. He was not a defaulter of loan or Government dues and utility expenses, that after filing of the nomination papers' he had learnt about the so-- called outstanding Government dues and the loan in question on which he had filed two writ petitions in the High Court in which interim relief in the form of stay orders was granted to him but as the writ petitions involved determination of disputed questions of fact he had sought their withdrawal with permission to file civil suits and the Court had not only allowed him to withdraw the same with permission to file civil suits but had also observed that pending the filing of the suits within the stipulated period there shall be no adverse effect on his candidature, that after withdrawal of the writ petitions he had filed civil suits in the Civil Court at Peshawar in which stay orders were granted in his favour and the suits were still pending, that he had neither suppressed anything from the Courts nor had committed any illegal or corrupt practice and that the provisions of section 76-A of the Representation of the People Act, 1976 did not conceive of any election petition under section 52 ibid.
3. The averments of the parties were embodied in the following issues:--
(1) Whether the election petition is in fact a petition under section 76-A of the Representation of the People Act, 1976 and not a petition undersection 52 ibid, if so, with what effect? O.P.R.
(2) Whether respondent No. l was a defaulter of loan/Government dues/utility charges at the time of submission of the Nomination Papers? O. P. P.
(3) Whether respondent No. l had submitted false and incorrect declaration regarding payment of loan/Government dues/utility charges in his Nomination Papers? O.P.P.
(4) Whether respondent No.1 as M.P.A. Was defaulter of Government dues/utility bills of Rs.83,172 on account of occupancy and telephone charges of M.P.A. Hostel/Shahi Mehman Khana, Peshawar during the period 1990-92? O.P.P.
(5) Whether respondent No.1 was defaulter of loan of Rs.46,30.000 furnished to him by Frontier Provincial Cooperative Bank Ltd as President of Kafoor Dheri Dairy Farm Society, Peshawar? O.P.P.
(6) Whether respondent No.1 was defaulter of loan of Rs.2,28,000 furnished to him by Frontier Provincial Cooperative Bank Ltd., as President of Regi of Aftazai Union Council Multi-purposes Society,Kafoor, Dheri?.O.P.P.
(7) Whether a demand notice, dated 28-1-1997 of Rs.50,03,495 was served upon the respondent No. l and he was called upon to pay the said loan within three days, if so, to what effect? O.P.P.
(8) Whether the respondent on the day of election i.e. 3-2-1997 was defaulter of loan/Government dues/utility bills? O.P.P.
(9) Whether the respondent has committed corrupt and illegal practice at the time of submission of nomination papers, scrutiny of nomination papers and on the day of election? O.P.P
(10) Relief.
4. It will be rather pertinent to point out at this stage that the returned candidate had moved an application on 23-6-1997 for dismissal of the election petition on the ground of lapse by efflux of time of Ordinance No.CXII of 1996, promulgated on 5-12-1996, by which sections 12 and 99 of the Representation of the People Act, 1976 were amended, as well as Ordinance No.XVIII of 1997, promulgated on 31-1-1997, whereby section 76-A was inserted in the Representation of the People Act, 1976. The application was contested by the petitioner and was clubbed with the election petition for reasons recorded in the order, dated 27-10-1997.
5. Issue No.1. A bare reading of the election petition would show that it has been filed under section 52 of the Representation of the People Act, 1976, in order to call in question the election of the returned candidate, and not under section 76-A, inserted in the Act by Ordinance No.XVIII of 1997, which had only conferred an additional power on an Election Tribunal to take suo motu action against a defaulter of loan and Government dues etc. On the basis of any material coming to its knowledge from any source or an information laid before it and had not obliterated the existing procedure and grounds for challenging election of a returned candidate. Besides, the petition not only assails the qualification/disqualification of the returned candidate to be elected as a member of the Provincial Assembly but also contains an allegation with regard to a corrupt and illegal practice. Needless to mention that the qualification of the returned candidate was challenged on the basis of the amendments made in the Representation of the People Act, 1976 as the election petition was filed before the expiry of the amending Ordinance, namely Ordinance No.CXII of 1996, Ordinance No. CXIX of 1996 and Ordinance No. XVIII of 1997. No doubt the said Ordinances stand repealed having not been laid before the Parliament before the expiry of tour months from their promulgation but this technicality can have no bearing on the election petition because in view of the provisions of section 86(1)(b) of the Representation of the People Act, 1976 the qualification/disqualification of the returned candidate: is to be determined with reference to the Nomination day i.e. 21-12-1996 when the repealed Ordinances were in force and the default-related amendments made by them in the Representation of the People Act, 1976 were fully. Covered and protected by Article 62(1) read with Article 260(2) and Article, 63(p) of the Constitution which read as under:---- Article 626) he possesses such other qualifications as may be prescribed by Act of Majlis-e-Shoora (Parliament).
Article 260(2) Act of Majlis-e-Shoora (Parliament) or Federal Law or Act o: Provincial Assembly or Provincial Law shall include an Ordinance promulgated by the President or, as the case may be, a Governor.
Article 63(p) he is for the time being disqualified from being elected or chosen as a member of Majlis-e-Shoora (Parliament) or of Provincial Assembly under any other law for the time being in force. "
Besides, Article 264 of the Constitution makes it manifest that where a law is repealed or is deemed to have been repealed, by, under, or by virtue of the Constitution the repeal shall not, except as otherwise provided in the Constitution, affect any obligation or liability incurred under the law and legal proceeding or remedy in respect of any such liability and obligation.
6. It was contended by the learned counsel for the respondent with vehemence that no relief can be granted to the petitioner as the default-related qualification was added to section 99(f) of the Representation of the People Act. 1976 by Ordinance No. CXII of 1996 which was a temporary legislation and it was by now firmly settled that proceedings taken under a temporary enactment.
Would terminate as soon as it expires. Reliance was placed on Muhammad Arif and another v. The State and another 1993 SCM R 1589 wherein it was held that there is a marked distinction between repeal of a temporary enactment and a permanent enactment and the general rule in regard to a temporary statute is that in the absence of special provision to the contrary proceedings which were taken under it would ipso facto terminate as soon as the statute expires. The contention cannot prevail because the authority cited by the learned counsel is distinguishable. In that case the Special Court for Speedy Trials had recorded conviction after the lapse of the Special Courts for Speedy Trials (Amendment) Ordinance, 1988 which had extended the life of Special Courts for Speedy Trials Act, 1987 and the conviction was not supported by any other law in force whereas in the present case the qualification/disqualification of the respondent is to be determined with reference to the date of filing of the Nomination Papers when the repealed Ordinances were in force and if the issue is resolved against the respondent relief can be granted to the petitioner on the strength of the provisions of section 68(l)(b) of the Representation of the People Act, 1976 which is worded thus:-- "Grounds 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)-------------------------------,
(b) the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member."
This issue is, therefore, decided against the returned candidate and as a corollary the application for summary dismissal of the election petition stands dismissed.
7. Issue No.4. The returned candidate having been duly elected had remained a member of the Provincial Assembly N.-W.F.P. From 1988 to 1990 and from 1990 to 1993. The petitioner has alleged, on the basis of the information laid by the C and W Department before the Returning Officer at the stage of scrutiny of the nomination papers, that during the period from 1990 to 1992 he had occupied a room in the M.P.A. Hostel and had not paid the occupancy charges and telephone bills etc. Amounting to Rs.83,172. The contention of the respondent, on the other hand, is that his native village is situated at a distance of 15 kilometres from Peshawar, therefore, he had not occupied a room in the M.P.A. Hostel and had also not availed the facility of telephone. The evidence produced by the petitioner in this context consists of the statements of Ghulam Muhammad Khan, Executive Engineer Building Maintenance Division No.2 C and W Department, Peshawar (P.W.3),, Abdul Hafeez, Care-taker, M.P.A. Hostel, Peshawar (P.W.4) and Ahmad Khattak, Estate Officer, Provincial Assembly, N.-W.F.P. (P.W.5). The contention of the respondent has a definite 'edge over the allegation of the petitioner as it is fully supported by the evidence available on record. The statement of Ahmad Khattak (P.W.5) makes it abundantly clear that allotment of a room in the M.P.A. Hostel, Peshawar is made by an allotment committee headed by the Deputy Speaker, the Care-taker of the M.P.A.
Hostel provides a room to the allottee on receipt of the allotment letter and the respondent had neither applied for allotment of a room nor any Loom was allotted to him in the M.P.A. Hostel. The petitioner cannot make any mileage from this part of the statement of Abdul Hafeez (P.W.4) that a room was provided to the respondent on telephonic instructions because in the remaining part of his statement he not only admitted that he had not kept any record in respect of allotment of accommodation to the respondent pursuant to the telephonic communication but also stated in unequivocal terms that he did not remember when and for how long the respondent had stayed in the M.P.A. Hostel and in which month had made default in payment of the room rent. It is also in his cross-examination that he knew the respondent personally and was also aware of the fact that he had a Bungalow in the University Town and a house in Village Kafoor Dheri. It is also from the statement of Ghulam Muhammad Khan (P.W.3) that the respondent was not allotted any room in the M.P.A. Hostel. The claim for occupancy charges is, thus, unfounded. As regards the claim with regard to the telephone charges it will be enough to say that it seems preposterous in the absence of allotment of a room in the M.P.A. Hostel in favour of the respondent. Besides, it is vague and not augmented by record of telephone calls. In any case in view of the definition of "Government dues and utility expenses" contained in section 12(2) of the Representation of the People Act, 1976, as inserted by the Representation of the People (Fourth Amendment) Ordinance 1991; and further amended by the Representation of the People (Fifth Amendment) Ordinance, 1996, the respondent cannot be held to be a defaulter of "Government dues and Utility charges" within the import of section 12(2) and section 99(f) of the Representation of the People Act, 1976 as a stay order was admittedly granted to him by the Peshawar High Court on 26-12-1996 to Writ Petition No. 1461 of 1996 which was withdrawn by him with permission to file a civil suit and it was explicitly mentioned in the order, dated 20-1-1997 that remedy from the Civil Court may be sought within two weeks during which there shall be no adverse effect on his candidature. Thereafter, he had filed a suit in the Court of the Senior Civil Judge, Peshawar on 6-2-1997, which is still pending and a stay order was granted to him on 15-2-1997. The definition of "Government dues and utility charges" reads as under:------ "Government dues and utility charges' includes rent charges of rest houses or lodges owned by the Federal Government. Provincial Government, local authorities or Corporations established or controlled by such Government but shall not include the Government dues and utility charges the recovery of which has been stayed or suspended by any order of a Court or Tribunal including the High Court and the Supreme Court. "
This issue is, therefore, decided against the petitioner.
8. Issue No.5: The respondent has denied the loan in question categorically but the statement of Abdul Hamid Khan Durrani, Manager Frontier Provincial Cooperative Bank Ltd., Chowk Yadgar, Peshawar P.W.2) and the documents pressed into service by him leave no room for doubt that he was the President and in any event a member of the Kafoor Dheri Dairy Farm Society, Peshawar in whose favour a loan of Rs.21,16,401, which has now swelled upto Rs.47,83,214, was sanctioned by the Frontier Cooperative Bank, Peshawar in the month of December, 1987. The documents which may be referred to advantageously in this context are the Pronote, dated 14-12-1987, copy Exh.P.W.2/1, the Resolution, dated 14-12-1987, copy Exh.P.W.2/2; and specimen signatures of the members of the Executive Committee of the Kafoor Dheri Dairy Farm Society, Peshawar, copy Exh.P.W.2/3, wherein the name of the respondent figures as President of the Society. It is true that the record produced by Abdul Hamid Khan Durrani (P.W.2) contained as many as thirteen letters issued by the Frontier Provincial Cooperative Bank Ltd. In which the respondent's brother Abdul Rauf Khan was addressed as President of the Society but this intriguing feature cannot undermine the aforementioned three main and vital documents in which he is recorded as Secretary of the Society. Similarly, the respondent cannot disassociate himself from the Society by taking prop of this fact that Abdul Rauf Khan had furnished the security for the loan by mortgaging, vide mortgage deed, dated 12-.1-1988, his landed property measuring 298 Kanals in favour of the Bank because the loan in question was advanced to the Kafoor Dheri Dairy Farm Society and not to Abdur Rauf Khan exclusively However the matter does not end here because the respondent had filed up nomination papers before the expiry of one year from the due date and, had also obtained a stay order with regard to recovery of the loan from the Peshawar High Court, therefore, in view of the time frame given in section 12(2)
(i.e) and definition of loan contained in section 12(2) he cannot be called a defaulter of loan within the contemplation of section 12(2) and section 99(f) of the Representation of the People Act as amended by Ordinance No.CXI1 of 1996 and Ordinance No.CXIX of 1996. Section 12(2)(i.e) reads as under:-------- "a declaration that no loan, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent children or dependent parents or any business concern mainly owned by the aforesaid, remains unpaid for more than one year from the due date. "
The definition of loan as contained in Explanation (a)-to section 12(2) reads as follows:----- "Loan shall mean the loan, advance, credit or finance obtained or written of on and after the 31st day of December, 1985 but shall not include the loan the recovery of which has been stayed or suspended by any order of a Court or a Tribunal, including' the High Court and Supreme Court."
The loan in question was sanctioned on 14-12-1987 and according to term and condition No.2 of the offer made by the General Manager, Frontier Provincial Cooperative Bank Ltd. Through the letter, dated 11-10-1987, copy Exh.P.W.2/6, it was repayable in 32 quarterly instalments with one year grace period. The due date for payment of the loan in question was, thus, 14-12-1996 and the cut-of date within the contemplation of section 12(2)(i.e) was 14-12-1.997. The respondent would not have been qualified for or disqualified from being elected as a member had the nomination day been after 14-12-1997. The respondent had filed his nomination papers on 21-12-1996, therefore, his candidature was not hit by the default-related provisions of the Representation of the People Act, 1976. Besides. The recovery of the loan in question was stayed by the Peshawar High Court vide order, dated 28-12-1996 passed in writ Petition No. 1483 of 199n which was dismissed as withdrawn on 29-1-1997 with permission to file a civil suit and the respondent had admittedly filed a civil suit on 30-1-1997 m the Court of the learned Senior Civil Judge, Peshawar, which is still pending, and obtained a stay order on the same date. This issue is, therefore, decided against the petitioner.
9. Issue No.6 The petitioner has alleged that the respondent was defaulter of a loan amounting to Rs.2,28,000 which was obtained by him from the Frontier Provincial Cooperative Bank Ltd. As President of Regi of Afta73t Union Council Multipurposes Society`, Kafoor Dheri. The respondent has controverted the allegation and taken the stance that he had neither any concern with the Society nor had obtained the loan in question. The stand-point of the respondent is untenable because it is evident from the Pronote, dated 26-5-1990, copy EXh.P-W 2/14, Resolution, dated 26-5-1990, copy Exh.P.W.2/15 and the list of recipients of loan, copy Exh.P.W.2/10, that he was the President of the Society, had signed the said documents in that capacity and a sum of RS. 12.000 out of the loan amounting to Rs.2,28,000 was earmarked for him. Be that as it may, the respondent cannot he held to be a defaulter of loan within the meanings of section 12(2) and section 99(f) of the Representation of the People Act, 1976 as amended by Ordinance No.CXII of 1996 and Ordinance No.CXIX of 1996 for reasons that are not far to seek. The first reason is that the quantum of loan is questionable. The amount of loan mentioned in the petition and the aforementioned three documents is Rs.2,28,000 but the statement of Abdul Hamid Durrani (P.W.2) discloses that the Bank had furnished principal amount of Rs.1,78,313 to the Society and though there was no mark up penal expenses of Rs.41,966 were added to the principal amount and, thus, an amount of Rs.2,20,280 had become due or. 31-12-1996. The second reason is that there is no document on record on behalf of the Bank containing the due date, therefore, the same is to be fixed as 31-12-1991; in view of the statement of Abdul Hamid Durrani (P.W.2) or 28-.1-1997, when the demand was made in view of the Pronote. It will be pertinent to mention here that the loan had surfaced for the first time on 28-1- 1997 when the recovery notice, copy Exh. P. W.2/9, was issued to the respondent. Any how, in both cases the respondent had filed his nomination papers and the electoral process had concluded much before the expiry of the period of one year from the due date mentioned in section 12(2)(i.e) of the Representation of the People Act, 1976. This issue is, therefore, decided against the petitioner.
10. Issues Nos.2 and 8. In view of the findings on issues Nos.4, 5 and 6 above there is no difficulty in holding that the respondent was not a defaulter of loan/Government dues and utility expenses either at the time of submission of the Nomination Papers or on the polling day. Both the issues, therefore, stand decided, against the petitioner.
11. Issue No.7. This issue is decided against the petitioner for want of tangible proof of service of the notice, dated 28-1-1997 on the respondent as also in the face of the findings on issues Nos.2, 5 and 6 above.
12. Issue No.3. No doubt the loans and Government dues etc. Are not mentioned in the declaration made by the respondent in his nomination papers but the omission is immaterial in view of the time-frame contained in section 12(2)(i.e) of the Representation of the People Act, 1976 and the findings on the main issues. This issue is, therefore, decided against the petitioner.
13. Issue No.9. This issue was not pressed by the learned counsel for the petitioner. It is, therefore, decided accordingly against the petitioner.
14. Before parting with the petition I deem it necessary to mention that the findings in regard to the loans and Government dues etc. Having been based on the evidence and material available on record shall have no bearing on the civil suits filed by the respondent as well as the proceedings for recovery of loans etc.
15. For the foregoing reasons, this election petition is dismissed. Parties to bear their own costs.