1. ' The petitioner and respondents Nos.1 to 6 contested election of Union Council No,40/5, Sialkot for the seat of Nazim held on 21-3-2001. At the time of filing of Nomination Papers an objection was raised by respondents Nos.1 and 2 before. Returning Officer that the petitioner is defaulter. The objection was overruled and the nomination papers of petitioner were accepted on 1-3-2001.
2. Respondents Nos.1 and 2 filed appeal, which was also dismissed. The objection of respondents Nos.1 and 2 was that the petitioner was defaulter as he was Director/Guarantor of Messrs Sialkot Dairies Public Ltd., who had obtained loan from Agricultural Development Bank of Pakistan (A.D.B.P.), which was not paid and a judgment/decree was passed for recovery of Rs,3,35,18,000 on 25-7-1994.
2. In the election the petitioner was declared successful and duly notified as Nazim, where after respondents Nos.1 and 2 filed election petition on 8-5-2001 before the Election Tribunal, Narowal, who recorded the evidence of both parties, wherein the objection stated above with regard of being defaulter was relinquished by respondents Nos.1 and 2, but more emphasis was that the petitioner had not declared his assets and concealed his assets in the shape of Share Certificates of said Sialkot Dairies Public Limited. On the other hand, the 'petitioner claimed that the total assets of said Dairies had already been attached during execution proceeding of judgment and decree passed 6y Judge Banking Court, Gujranwala. However, it is admitted that the, petitioner was share holder of the said company. The learned Election Tribunal had accepted the election petition vide order dated 13-11-2001 on the said ground. Through this Constitutional petition the same order has been impugned.
3. The learned counsel for petitioner contends that under Rule 76 of the Punjab Local Government rules, 2000, the C.P.C. Was fully applicable, but the learned Election Tribunal has accepted the Election Petition on fake assertion without framing issues regarding controversies involved in the case. According to learned counsel, the petitioner has been prejudiced due to non-framing of issues as he has not been provided sufficient opportunity for producing evidence to dislodge the allegations. In this respect the learned counsel has placed reliance on PLD 1990 Lah. 378, 1994 CLC 2041 and 1994 CLC 198. It is further contended that under rule 16, sub-rule (4) of the Punjab Local Government Rules, 2000 all the candidates were bound to attach with their nomination papers declarations of assets. In Form IXX, proforma of which is given in the schedule, but nowhere in the said Rules the definition of assets is provided nor it is provided in the Ordinance itself, hence the meaning of asset will be taken from other sources. He has referred to Dictionary Webster IIIrd Edn. At page 82 the word "Asset" is defined hereunder:-- "Anything owned that has exchange value (2) a valuable or desirable thing to have (3) Accounting all the entries on a balance-sheet showing the entire resources of a person or business tangible and intangible as accounts and notes receivable, cash inventory, equipment real estate goodwill etc. (4) property as of a business, bankrupt etc. The property of a deceased person available to his estate for the payment of debts and legacies."
3. ' Similarly the learned counsel has also referred to Black's Law Dictionary Volume VI at page 117, where the meaning of word "Ass-et" has been given as under:-- "Property of all kinds, real and personal, tangible and intangible, including inter alia for, certain purposes. Patents and cause of action which belong to any person including a Corporation and the estate of a decedent. The entire property of a person, association, corporation, or estate that is applicable or subject to the payment of his or her or its debts."
4. ' The learned counsel' further contends that section 73 of C.P.C. Denotes the assets as "a thing which has its exchange value in money". He has relied upon AIR 1936 Lah. 480, wherein it is held that section 3 is limited to money which is payable and has not wide scope. It is only money and 'not goods. He also relies on PLD 1959 Dacca 939 and PLD 1959 (W.P.) Kar.
52. He further contends that the documents produced by the petitioner at the time of recording of his statement as R.W.2, shows that vide order, dated 7-11-1994 during execution proceedings got initiated by Bank Authorities all the assets of Dairies Farm were attached by Banker Equity and A.D.B.P. And having been subjected to these execution proceeding has-now "subtrartum gone" and the petitioner had no other property and it was debt of BEL and A.D.B.P. It is further contended that' the documents placed on record by respondents Nos.1 and '2 are not brought on record under Civil Procedure Code and Qanun-e-Shahadat Order. It is further contended that a person can only be held liable under section 14 if he does not show assets; hence in the presence of decree the petitioner could not show those assets as of his own. The learned counsel' further contended that it was not valid ground for disallowing the petitioner the proper opportunity hence this petition may be accepted, as the, judgment is based on surmises and is not supported by the record and is based on presumptions.
5. ' On the other hand, the learned counsel appearing for respondents Nos.1 and 2 has opposed this petition and contends that declaration of assets was mandatory and the petitioner was owner of shares and under section 14 and Form IXX it becomes crystal clear that share certificates are also asset as under. Section 402 of the Companies Ordinance unless the company is wound up it cannot be said that the share value of the certificate is nil. It is further contended that the petitioner was bound to mention share certificates in his asset declaration, but he intentionally concealed the same, hence he was rightly declared as not qualified to contest the election. He has drawn the attention of this Court to page 65 of this petition showing a firm for which--the petitioner has been Associate Asif Khawaja 31-Chamber, 1996, share certificates in the name of petitioner are also deposited, copy of which has been placed at page 17 of this petition, the name of petitioner at Serial No.23 and he had transferred 500 shares of Ejaz Ahmad and Muhammad Hussain on 25-11- 1996. It is further contended that non-framing of issues is not a ground for setting aside the impugned order as rule 76 furnishes that C.P.C. Is not applicable in stricto senso. Relies upon 1999 MLD 2874 and 1985 SCMR 532. It is further contended that the statements of both the parties were recorded and the petitioner was fully aware of the allegation against him and he had brought to disloge the same oral as well as documentary evidence, therefore, his defence has not been prejudiced in any manner.
6. ' In reply to argument of the learned counsel for respondents Nos. I and 2, the . Learned counsel for petitioner has referred to certain documents to show that the documents produced by the respondents have not been properly proved and it cannot be considered that the petitioner has purchased share from Asif Ithawaja. It is further contended that the company was not in existence hence the question for mention of share certificate in the list of asset did not arise.
7. ' I have heard the learned counsel for parties and perused the record. The main ground taken by the learned counsel for petitioner is that without framing issues the petition has been accepted on the ground that the petitioner has not declared his assets; which were required to be declared under section 14(i) of the Punjab Local. Government Ordinance, 2000 as C.P.C. According to section 76 is applicable with all four corners in the proceedings of election petition and it has caused prejduice to the petitioner and thereby he could not defend himself properly. This contention of the learned counsel for petitioner cannot be accepted as according to rule 76 (ibid), which is reproduced as under:- "76(1) Subject to the provisions of the Punjab Local Government Elections Ordinance, 2000 and these rules every election petition shall be tried as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908 (Act V of 1908): ' Provided that the Tribunal may:--
(a) Where the election petition claims as relief a declaration that the. Election of the returned candidate is void on the ground that the returned candidate was not, on the nomination day, qualified for or was disqualified from being elected as a member, decide the question of such qualification or disqualification as preliminary issue:
(b) (e)
8. From bare perusal of the above said rule it is crystal clear that the election petition has to be tried as nearly as may be in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908. Therefore. The C.P.C. Is not applicable with all four corners and is applicable 'as nearly as may be'. These wording shows that the Election Tribunal can adopt any procedure to conclude the election petition without following the Civil Procedure Code stricto senso. I am in agreement with the arguments of the learned counsel for respondents Nos.1 and 2 that in election petition the Procedure of Civil Code may be used preferably and Supreme Court had held that C.P.C. Is not applicable in strict() senso. I am fortified by the view taken by this Court in case Cooperative Bank, Haripur v. Tahir Mehmood (1999 MLD 2074). The learned Counsel for respondents Nos.1 and 2 has referred to Bashir Ahmad v. District Judge, Malakand and others (1985 SCMR 533) to substantiate the said view.
9. ' From the perusal of these cases it has become crystal clear that C.P.C. Though is applicable but is not strictly applicable and the Election Tribunal can decide the election petition by following C.P.C.
10. As nearly as ,possible. Therefore, non-framing of issues is not an irregularity and contrary to the procedure to be adopted by the Election Tribunal.
11. ' The election petition was filed with a specific allegation levelled against the petitioner that he had not filed asset Form 90 and concealed the assets of Share Certificate of Sialkot Dairies. Reply has been given by the petitioner to this allegation, then the evidence was led by the parties to prove the fact. The petitioner had also appeared as R.W.2 and produced certain documents to show that the Share Certificates of Sialkot Dairies were not an asset as a judgment/decree had been passed for outstanding loan amount against that firm, hence the share certificates had become nil. I have no hesitation in holding that the petitioner has not been prejudiced in any manner by non-framing of issue by the Election Tribunal and in spite of non-framing of issues the petitioner had tried to dislodge the allegation by producing all oral as well as documentary evidence. Even otherwise the framing of issues was not mandatory. Even in Civil Procedure Code where framing of issues is mandatory in civil suit, if an issue is not framed, but the parties were found fully aware of the subject-matter of controversy and all the evidence was led by each side, then non-framing of issue is inconsequential. I am fortified by the view taken by Honourable Supreme Court, in case Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others (1993 SCMR 2018).
12. Relevant portion 2020-B is reproduced here below:-- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non- framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been established law in the Sub-Continent as would appear from Sayed Muhammad v. Fateh Muhammad (22 Indian Appeals)."
13. So, from bare perusal of above cited cases mere non-framing of issues is not sufficient to set aside the judgment even passed in a civil suit, where framing of issues was mandatory, but in the case in hand the framing of issue was not mandatory and the petitioner has not been prejudiced in any manner. Due to above reason this ground taken by the petitioner is repelled.
14. ' I have gone through Para.9 of the impugned judgment, in which the learned Election Tribunal has rightly held that the petitioner had concealed and has not denied the omission on his part by not declaring his assets i,e, share certificates in Form IXX and I am also fully in agreement with the learned Tribunal that the petitioner himself cannot sit as a Judge of his own cause for determining the value of share certificate to be nil or minus, when the procedure was open for winding up of the company under section 402 of the Companies Ordinance, 1984. The learned Election Tribunal has rightly held that non-declaration of huge quantity of shares of the company is a deception and- is not a symbol of good character. This petition has no merit and the same is dismissed.