' GHULAM RABBANI, J.--- Through this Constitutional petition, petitioners have challenged the judgment, dated 28th February, 2001 passed by learned Election Tribunal, Saddar Town, Karachi (South) whereby nomination of both the petitioners as Nazim and Naib-Nazim as joint candidates for Union Council No,6, Karachi South, has been rejected; their election to the said offices has been declared void and consequently respondents Nos.4 and 5 securing second highest number of votes have been declared elected to the aforementioned two offices, respectively.
2. Facts of the case of petitioners, in brief, are that the respondent No,5 Muhammad Zahid Qureshi filed an appeal before the Returning Officer, Karachi (South) challenging nomination of petitioner No,2, Muhammad Ahmed Khan for the post of Naib-Nazim of above mentioned Union Council, on the ground that the latter happened to be an active worker of Pakistan People's Party and had also defaulted in payment of instalments to Habib Bank Ltd. In respect of Yellow Cab bearing No,PL- 8055. On dismissal of his above appeal vide orders, dated 8th June, 2001, he filed a Review Application, which, too, met the same fate. Feeling aggrieved, he filed a Constitutional Petition No,12.15 of 2001 before this Court which was decked on 20-6-2001 holding the petitioner No,2 a defaulter on the day of nomination and cancellation of his nomination paper was ordered.
3. It is stated that petitioner No,2 assailed the above order by filing before Honourable Supreme Court a Civil Petition No,438/K of 2001 for leave to appeal, in which, on a C.M.A. No,166-K of 2001, it was ordered on 26-6-2001 that subject to final determination of controversy regarding default in payment of Banking dues, operation of the impugned order of this Court would remain suspended and the petitioner No,2 was permitted to take part in election. Later on, petitioners contested elections held on 2-7-2001, secured highest votes and were declared successful as Nazim and Naib-Nazim of Union Council No,6 vide Notification dated 6-7-2001 issued by District Returning Officer South Karachi. They took oath of their respective offices, on 14-8-2001. It is stated that before the petitioner could take oath, respondent No,5, again filed before this Court another Constitutional Petition No,1591 of 2001 asking for directions that petitioner No,2 be not allowed to take oath and judgment of Honourable Supreme Court be interpreted as prayed. This petition was dismissed on 1-8-2001 in limine with observation that it was not for the High Court to interpret orders of Honourable Supreme Court.
4. In the meantime, as it seems, election of petitioners was challenged by an Election Petition before learned Election Tribunal. Subsequently, Civil Petition No,438/K of 2001 filed earlier by the petitioner was finally decided on 5-10-2001 by Honourable Supreme Court with observation that an Election Petition had already been filed before Election Tribunal and since the same was pending before the proper forum, parties may raise all the pleas available to them under the law before the said Tribunal. It may be stated that the Election Petition, which was filed by respondents Nos.4 and 5 was, after recording evidence, decided under the impugned judgment. It has, now been assailed through this petition.
5. Respondent No,2, Provincial Election. Commissioner, Sindh has filed his reply supporting the decision of learned Election Tribunal. It is stated therein that the Election Tribunal under rule 81(c) of Sindh Local Government Elections Rules, 2000 (hereafter referred as the Rules) is competent to declare the elections of returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected. It has been explained, that the petitioners have misinterpreted the provisions of rule 16(ii) of the Rules and provisions of section 18-A(I) of Sindh Local Government Election Ordinance, 2000 (hereafter referred as the Ordinance) and that fresh elections are to be held on a casual vacancy only.
6. Mr. Kamal Azfar, learned counsel for the petitioners, in his arguments, raised grounds, firstly, that petitioner No,2 is not a wilful defaulter hence he cannot be held disqualified from being nominated for and elected to the post of Naib-Nazim; secondly; in case, petitioner No,2 is held disqualified as Naib-Nazim it would have no adverse effect on petitioner No,1, the other incumbent holding office of Nazim; therefore, on the basis of such disqualification if any, petitioner No,1 could not be declared incompetent to hold the office of Nazim; thirdly, it was urged, that in case of disqualification, no provision of the Ordinance or the Rules mandate that the defeated candidate viz. Respondents Nos.4 and 5 were to be allowed to take over as successors of petitioners; but, by-elections are to be held for new set by applying provisions of section 18-A of Sindh Local Government Ordinance, 2000 hence the impugned judgment passed by learned Election Tribunal is illegal and bad in law.
Elaborating his views on first ground so taken, Mr. Kamal. Azfar submitted that though the Bank had obtained ex parte order against the petitioner regarding finance in respect of a yellow cab which stood already impounded by the Bank, petitioner No,2 by making on 15-6-2001 full and final settlement of outstanding dues before elections and getting clearance certificate from the Bank could not be termed as wilful defaulter and rendered disqualified rather he was competent to participate in the elections and could hold the office of Naib-Nazim. He placed reliance on case of Khan Asfandyar Wali v. Federation of Pakistan reported in PLD 2001 SC 607, relevant page 886, to support his plea that the petitioner No,2 is not a wilful defaulter. On second ground urged by him, Mr. Kamal Azfar contended that learned Election Tribunal was under misconception regarding provisions of section 16 of the Ordinance read with rule 16(3)(ii) and rule 18(3) of the Rules and wrongly applied the same to the case of petitioners in rejecting their nomination as joint candidates for the post of Nazim and Naib-Nazim. On third ground, while referring to amended section 18-A (ibid), he contended that in the event of any seat of member, Nazim or Naib-Nazim, falling vacant fresh elections are to be held and not that the defeated candidates securing next highest votes in election are permitted to take over as a successor of the petitioner.
7. Mr. Iqtadar Ali Hashmi, Advocate for respondents Nos.4 and 5 argued that petitioner No,2, Muhammad Ahmed Khan was an adjudged wilful defaulter on 31-5-2001 i,e, the day of filing of joint nomination form by both the petitioners, therefore, in view of provision of section 14(J) of the Ordinance, he is disqualified to be elected or to hold an elective office of Local Government. To reinforce his arguments Mr. Hashmi referred to a judgment, dated 7-2-2001 passed by learned Judge, Banking Court No,5, Karachi (South) in Suit No,4261 of 2000 and contended that by that decree in the sum of Rs,4,09,582 with costs and future mark-up passed against petitioner No,2, he is held and so is adjudged a wilful defaulter. He placed reliance on an unreported decision of Honourable Supreme Court in Civil Petition No,442-K of 2001. Mr. Hashmi, next, argued that both the petitioners filed joint nomination form and in the event of disqualification of petitioner No,2, nomination form so filed jointly by both petitioners is liable for rejection as a whole. In support of his contention, he referred to section 16 of the Ordinance and placed reliance on case of Muhammad Iqbal v. District Returning Officer etc. Reported in 2001 YLR 855. He submitted that learned Election Tribunal considered the case of parties in line with the true spirit of provisions of relevant law.
Defending the impugned judgment, he submitted that learned Election Tribunal, while declaring the election or returned candidates to be void, is competent as per rules, to hold that any other contesting candidate stands duly elected hence no illegality has taken place in declaring the available set of contesting candidates viz. Respondents Nos.4 and 5 to have been elected. He added that, by such declaration the seats of Nazim and Naib-Nazim neither remained unfilled nor fell vacant, therefore, fresh elections of amended provision under section 18-A of the Ordinance are not called for.
8. Mr. Muhammad Sarwar Khan, Additional Advocate-General, Sindh supported the arguments of Mr. I.A. Hashmi, Advocate.
9. Before, we dilate upon the above submission, it is pertinent to refer to the following provision of law, which is significantly relevant to the facts of this case:--
(1) Sindh Local Government Elections Ordinance, 2000
14. Qualification for candidates and elected members.--- A person shall qualify to be elected or to hold an elective officer or membership of a Local Government, if he-
(a) to (i) ............................................................................................................................
(j) has not been adjudged a wilful defaulter of any tax or other financial dues owed to the Federal, a Provincial or a Local Government or any financial institution, including utility bills outstanding for six months or more;"
(ii)
16. Joint candidacy and elections.--- (1) A Zila Nazim and a Naib-Nazim or a Town Nazim and a Naib-Town Nazim or a Taluka Nazim and a Naib-Taluka Nazim or a Union Nazim and a Naib-Union Nazim shall contest election in their respective wards as joint candidates.
(2) The Nazim and Naib-Nazim of a District Government or a Town Government or a Taluka Government securing as joint candidates the highest number of votes shall be declared elected.
(3) ...............................................................................................................
(iii) 18-A. Election to vacant seats.---. (1) If a seat or a member remains unfilled or becomes vacant during the term of office of a Council, a new member shall be elected through by-election and the member elected in by-election shall hold office for the remaining portion of the term of the Council.
(2) If any seat reserved for women remains vacant, the same shall be filled through by-elections and the elected women member shall hold office for the remaining portion of the term of the Council.
(3) All by-elections shall be held once a year on a date or dates fixed by the Chief Election Commissioner.
(4) A vacancy or Union Nazim or Naib-Nazim shall be filled through by-election within sixty days of the occurrence of vacancy.
(5) A vacancy of .Zila Nazim, Naib-Zila Nazim, Taluka Nazim or Town Nazim, Taluka Naib-Nazim or Town Naib-Nazim shall be filled through by-election within thirty days of the occurrence of vacancy.
(6) When the office of a Zila Nazim or Naib-Zila Nazim, Taluka Nazim, or Town Nazim, Naib-Taluka Nazim or Naib-Town Nazim, Union Nazim or Naib-Union Nazim remains unfilled or falls vacant, the members of the concerned Council shall by a majority vote elect an officiating Nazim or Naib- Nazim as the case may be from amongst its members and the person so elected shall continue to retain his office as a member also: ' Provided that the officiating Nazim or Naib-Nazim shall not be a candidate in the by-election hold for election of the Nazim or Naib-Nazim respectively."
(Section 18-A is reproduced as amended by the Sindh Local Elections (Fourth Amendment)
Ordinance, 2000 (Sindh Ordinance. No,XXXII of 2001) published in the Sindh Government Gazette in Extraordinary Issue, dated 11-10-2001).
2. Sindh Local Government Elections Rules, 2000:
(i)
16. Nomination for elections.--- (1) .......................................
(2) .................................................................................................................
(3) Every nomination of a candidate for becoming---
(i) .
(ii) a Nazim and a Naib-Nazim of a Union Council, as joint candidates, shall be made by a separate nomination paper in Form III(B) and shall be signed by both the proposer and seconder and shall, on solemn affirmation made, be signed by both the candidates contesting election as joint candidates.
(ii)
18. Scrutiny.--- (1) ....................................................................
(2) .................................................................................................................
(3) The Returning Officer, may, either suo motu or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that---
(i) the candidate is not qualified to be elected as a member;
(ii) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(iii) any provision of rule 16 or 17 has not been complied with; or
(iv) the signature or thumb-impression of the proposer or the seconder is not genuine: ' Provided that in case of rejection of the nomination of either a Nazim or a Naib-Nazim as joint candidates, the nomination as whole for both the joint candidates shall stand rejected.
(iii)
81. Decision of the Tribunal.--- The Tribunal may upon the conclusion of the trial of an election petition make an order--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected;
(d) declaring the election as a whole to be void.
(iv)
83. Ground for declaring a person other than a returned candidate elected.--- The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.
(v)
86. Other provisions relating to Tribunal.--- An, order of the Tribunal under rule 81 shall take effect on the date on which it is made and shall be communicated to the Chief Election Commissioner and the Government.
10. Now, coming to the first ground taken by learned counsel for the petitioner, it may be stated that it is an admitted position that petitioner No,2 had availed a financial facility from Habib Hank Ltd., Shoe Market Branch, Nishtar Road, Karachi, failed to discharge his liability and Suit No,4261 of 2000 instituted by the Bank against him was decreed. A copy of decree, dated 7-2-2001 placed on record indicates that the said suit was filed on 31-5-2000 before the Banking Court and was decreed in the sum of Rs,4,51,832.35 with other charges. This decree was passed against petitioner No,2 much before a joint nomination form of both the petitioners was filed on 31-5-2001 within terms of rule 16(3)(ii) of the Rules. Admittedly, the decree so passed against him stood unsatisfied when joint nomination form of both the petitioners was filed. According to his own saying, petitioner No,2 cleared on 15-6-2001 the dues with some lesser amount by negotiating with the Bank.
11. Mr. Kamal Azfar referred to the case of Khan Asfandyar Wali (supra) to contend that notwithstanding the above factual position, petitioner No,2 was not a wilful defaulter, therefore, he could not have been disqualified under the relevant Election Law. In this regard, it may be stated that in the cited case vires of National Accountability Bureau Ordinance, 1999 (XVIII of 1999) were challenged by a number of Constitutional petitions, inter alia, on the grounds that the said Ordinance is ultra vires of Constitution, in violation of fundamental rights of freedom of trade etc. And other rights guaranteed by Constitution and that it purports to set up an arbitrary executive body to negate the rule of law. Honourable Supreme Court admitted the above petitions to regular hearing to consider, among others, the following two points emerging from the above petitions:- "(ii) Whether section 2 of the impugned Ordinance whereby it deems to have come into force with effect from 1-1-1985 being retrospective contravenes the Fundamental Right enshrined in Article 12 of the Constitution insofar as it creates a new offence of wilful default with retrospective effect?
(iii) Whether section 5(r) of the impugned Ordinance which defines `wilful default' negates the freedom of trade, business or profession as contemplated by Article 18 of the Constitution, which guarantees that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business?"
' While considering the above two points, it is respectfully stated, meaning of words "default" and "wilful" and other allied words appearing in Black's Law Dictionary was referred to and evaluated so also after considering plethora of case-law following observation has been made:-- "For the last several years there has been tremendous increase in allegations of massive corruption against divergent strata of the society. The necessity for creating the offence of wilful default' arose because in the past the prosecution agency and other Government agencies had not properly carried out their public duty to investigate the offences disclosed due to the alleged involvement of several persons holding high offices in the executive, public offices, etc. Indifferent/casual attitude of the concerned agencies to conduct and proceed with the investigation is understandable. This is, indeed, a grave situation. This Court can take judicial notice of the fact that great loss of public revenue owing to enormous corruption and failure to recover the looted money through huge bank loan defaults pose a serious threat to economic life, financial stability, credit and security of Pakistan including the unity and integrity of the nation. These are the circumstances in which the vires of the impugned Ordinance are to be judged, which was promulgated for an expeditious and thorough probe into corruption and corrupt practices and holding accountable those accused of such practices, which has already been delayed for several decades. The validity of the impugned Ordinance is also to be judged keeping in view the extraordinary circumstances prevailing in the country and the adverse impact of lacking probity in the public life leading to highest degree of corruption. Such a situation has also adversely affected the foreign investment and funding, from the International Monetary Fund as well as the World Bank who have warned that future aid to Pakistan shall be subject to the requisite steps being taken to eradicate corruption. If the pervading corruption in the society is permitted to continue unchecked it would lead to economic disaster.
' It was on 12th October, 1999, that the situation prevailing in the country in the sphere of economic debacle was recognized. The factors leading to the above situation on the ground, included the acts and omissions of persons who were the members of the National and Provincial Assemblies, the Senate, the Civil Services, in business and/or working for gain in other disciplines in the country.
' In Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869 this Court took notice of the pleadings of the parties, and after considering the adverse effects of the inaction etc. Of all concerned to collect the looted wealth of the country from those who were responsible therefor it was observed that the action taken on 12-10-1999 was justifiable and that the speeches of the Chief Executive dated 13-10-1999 and 17-10-1999 correctly spelt out the plan/scheme to be adhered to by him for the purposes of making recovery thereof. It was held that Chief Executive of the Islamic Republic of Pakistan is entitled, inter alia, to perform all such acts and promulgate all legislative measures as would establish or lead to the establishment of the declared objectives of the Chief Executive as spelt out in his speeches referred above. The Chief Executive in his speech, dated 17-10-1999 clearly stated:- ' Revival of economy is critical. Our economy is in deep trouble and revolutionary steps are needed to put it back on track. The Pakistani people were subjected to betrayal of their trust. Their hard- earned money was frozen or taxed in violation of State commitment. We need to restore this trust.'
' The process of accountability is being directed especially towards those guilty of plundering and looting the national wealth and tax evaders. It is also directed towards loan defaulters and those who have had their loans rescheduled or condoned. The process of accountability will be transparent for the public to see. My advice to the guilty is to return voluntarily national wealth, bank loans and pay their taxes before the hand of law forces them to do so with penalty. As a last chance I urge all defaulters to come forth and settle their debts within a period of four weeks, after which their names will be published and the law will take its due course. They owe this to Pakistan and I expect their spirit of patriotism to guide them.'
' It was in the above backdrop that the impugned Ordinance was promulgated and amendments made therein, subsequently. The plea taken by the petitioners that a person entering into contractual obligations before the promulgation of the impugned Ordinance cannot be made to suffer for his alleged failure to clear his said indebtedness under the impugned Ordinance and that too as an offence, lose all significance in the light of the above circumstances. It is not the case of any one of the petitioners that they have been willing to account for the ill-gotten wealth and that it was not their inaction, which has placed them in the predicament in which they find themselves today. The sources of amassing wealth by the specific individuals and juristic persons being what they are, they should not expect any lenient view in the cases against them provided the action taken against them is not contrary to a valid piece of law. Moreso, when the efforts on behalf of NAB in putting them under notice of 30 days in terms of section 5(r) of the impugned Ordinance also fell on deaf ears. Viewed in this perspective, the transformation of the alleged civil action flowing out of the contractual obligations, into an 'offence' under the impugned Ordinance, does not suffer from any flaw whatsoever."
12. In the instant case, however, the facts and circumstances are quite different. It is not that provisions of NAB Ordinance creating a new offence with retrospective effect are under review, but the applicability of provisions of section 14(j) of Sindh Local Government Election Ordinance, 2000 vis-a-vis a question of nomination of petitioner No,2 to be elected or hold an elective office in Local Government, on the ground of being an adjudged wilful defaulter, in view of decision of Banking Court passing a decree holding the said petitioner liable to pay decretal amount, is under consideration. It may be pertinent to state that petitioner No,2 having availed the facility of finance knew well that he were to repay dues in which admittedly he failed. It is not his case so also he does not claim that by accident or owing to any of his involuntary act, he could not pay. The due by stipulated date rather having admitted that he cleared the dues on 15-6-2001, by negotiations, he has acknowledged that he were under liability on the day viz. 31-5-2000 when nomination paper of both the petitioners was filed. Therefore, in such situation, it is respectfully stated above-cited case is of no assistance to the petitioner. As against that, decision of Honourable Supreme Court in Civil Petition No,442-K of 2001 (supra) cited by Mr. Hashmi, appears to be accurately relevant. In that case, acceptance of nomination paper for the post of Nazim of Union Council No,7, Bihar Colony, Liyari, Karachi South was challenged in an appeal before the District Returning Officer, Karachi on the ground that petitioner in that civil petition was defaulter of Bank loan in respect of which a suit was pending before the Banking Tribunal -- III, Karachi and that he was also defaulter of Utility Bills.
Learned District Returning Officer accepting the appeal, rejected the nomination paper against which a Constitutional petition filed before this Court was also dismissed hence the matter went before Honourable Supreme Court and was decided with the following observations:-- "After hearing the learned counsel for the petitioner and going through the record of the case, we find no merit in this case. Besides the pending Suit No,101 of 1996 for the recovery of Rs,5,98,93,715.29 and being a defaulter of utility bills, a compromise decree for the recovery of Rs,60.028 million was passed in favour of United Bank Ltd. Against the petitioner and his brothers by the High Court of Sindh in Suit No,412 of 1998 on 23-11-1998, therefore, having been adjudged as defaulter he is not qualified to be elected or hold an elective office or membership of Local Government in terms of clause (j) of section 14 of the Ordinance."
' Note.-- Above underlinings are ours.
13. It may be out of place to state that validity of nomination form of the petitioner No,2 was considered by this Court, earlier as well in C.P. No,D-1215 of 2001 on 20-6-2001 i,e, before the elections were held and the nomination of petitioners was cancelled. Petitioner No,2 was, however, permitted by Honourable Supreme Court to take part in elections subject to final determination of controversy raised by him. Subsequently, by an order, dated 5-10-2001 while disposing of Civil Appeal No,438 of 2001 finally, it was observed that since the matter i,e, Election Petition was pending before the proper forum (Election Tribunal), parties were permitted to raise all the pleas available to them under the law before the Tribunal. Said Election Petition has, now, been decided whereby learned Election Tribunal has held that on the day of nomination a decree for an amount of Rs,40,09,582 had already been passed against the petitioner No,2 by the competent Court as he was a Bank defaulter. Obviously, the Bank considering petitioner No,2 to have failed in discharging his liability instituted a suit when learned Judge of Banking Court, finding him a defaulter, passed a decree against him, therefore, it cannot be said that he was not an adjudged wilful defaulter.
14. Other ground taken by learned counsel for the petitioner is that disqualification of petitioner No,2 will have no adverse effect on his companion viz. Petitioner No, 1 . In this regard it may be stated that as per requirement of section 16 of the Ordinance Union Nazim and Naib-Union Nazim, as is the case of the petitioners, contest the election in their respective wards as joint candidates. Such candidates for both posts have to file single nomination paper as joint candidates in Form 3(B) of Schedule IV of Elections Rules and it is to be signed by both of them and their identical proposer and seconder. Sub-rule (3) of Rule 18 reproduced above clearly manifests that in case of rejection of nomination of either of Nazim or a Naib-Nazim as joint candidates the nomination papers for both the candidates stand rejected. Thus, in our humble view, the intent and purpose of law on the subject is that disqualification of one of candidates, either as Nazim or Naib-Nazim shall have repercussions on the other joint candidate. In this view, we are fortified by observation in case of Muhammad Iqbal (supra) wherein while dismissing the petition against rejection of nomination paper it has been held that the intention of relevant rule 16 which contemplated joint candidature of Nazim and Naib-Nazim was that both the candidates for above-referred post should be careful in selecting their running mates and if a candidate who is disqualified to be a member he has to suffer alongwith him.
15. Regarding third ground raised by learned counsel for the petitioner that in case of disqualification of petitioners there is no provision of law to provide that respondents Nos.4 and 5 can be allowed to take over as successor of petitioner and vacant seats are to be filled through fresh by-elections, it may be stated that clause (c) of rules 81 and 83 of the Rules, reproduced above, empowers the Election Tribunal to make an order declaring the election of returned candidates to be void and the petitioner or any other contesting candidates to have been duly elected. It is significant to note that respondents Nos.4 and 5 were petitioners in the election petition and they were the contesting candidates, as well. Thus, it is amply clear that learned Election Tribunal enjoyed plenary powers not only to make an order declaring the election of two petitioners in this petition as void, but could declare that respondents Nos.4 and 5 were duly elected. As regards question of filing in the posts falling vacant by way of by-elections, it may be stated that, in our view, provision of amended section 18-A of the Ordinance reproduced above relates to the situation where elections are to be held if a seat of any member remains unfilled or becomes vacant during the term of the Council. In the instant case, however, position is quite different. Learned Election Tribunal exercising its powers under rules 81 and 83 of the Rules, has declared the elections of the petitioners as void and simultaneously declared respondents Nos.4 and 5 to be elected. Such order of learned Election Tribunal as mandated by rule 86 took effect on the date on which it was made with the result that seats of Nazim and Naib-Nazim were neither unfilled nor the same are deemed to have fallen vacant even for a single moment, but, the respondents Nos.4 and 5 are supposed to have replaced the petitioners by an order of authority empowered to do so. Viewed in the above discussion, contentions raised by Mr. Kamal Azfar do not seem to have any force.
16. Upon above discussion, we find no substance in this petition and dismiss the same alongwith listed application.