JUDGMENT M. JAVED BUTTAR, J.- Writ Petitions Nos. 1 7268, 17272, 17273, 17269, 17270 and 17271 of 2002 are being disposed of through this judgment, as common questions of law and fact are involved in ail these petitions.
2. The nomination papers of Mian Muhammad Shahbaz Sharif, petitioner in Writ Petitions Nos. 17268, 17272 and 17273, respectively for the constituencies P.P. 142, N.A. 119 and P.P. 141, were accepted by the concerned Returning Officers, vide their respective orders dated 28.8.2002, 31.8.2002 and 27.8.2002. The same were assailed by the respondent No. 3, in these petitions, through three separate Election Appeals Nos. 174-A, 171 -A and 173-A of 2002, before the Election Tribunal. The Election Tribunal, vide its common judgment dated 12.9.2002, accepted all the three appeals and rejected/cancelled the nomination papers of the petitioner.
3. The nomination papers of Begum Kalsoom Nawaz, petitioner in Writ Petitions Nos. 17269, 17270 and 17271, for constituency N.A. 120, were rejected by the Returning Officer, on 29.8.2002, while her nomination papers, for Constituencies N.A. 122 and N.A. 119, were accepted by the Returning Officers, on 29.8.2002 and 31.8.2002. The order dated 29.8.2002, of the rejection of her nomination papers, was assailed by the petitioner through Election Appeal No. 177-R/02 and the above-said orders of acceptance of her nomination papers were assailed by respondent No. 3 through Election Appeals Nos. 120-A and 172-A of 2002. The Election Tribunal, vide its common judgment dated 12.9.2002, rejected the appeal of the petitioner, accepted the appeals of respondent No. 3 and rejected/cancelled the nomination papers of the petitioner for the above-said constituencies.
4. The Election Tribunal, while accepting the Election Appeals Nos. 174-A, 171-A and 173-A of 2002 and while rejecting/cancelling the nomination papers of petitioner, Mian Muhammad Shahbaz Sharif, for constituencies P.P. 142, N.A. 119 and P.P. 141, has held that the signatures of the petitioner on his nomination papers are not genuine and are liable to be rejected as such, under Section 14{3)
(c) of the Representation of the People Act, 1976, for the reasons, Firstly, admittedly the petitioner was residing in Saudi Arabia and had not visited Pakistan during the relevant period of submission of nomination papers and their scrutiny and the sending of the nomination papers at his address in Jeddah, Saudi Arabia; for his signatures, was not established, Secondly, there was nothing on the record to show that how these documents came back to Pakistan and were presented before the Returning Officer, Thirdly, the un-dated affidavits of the petitioner Marks-'D' and 'E' statedly sworn by the petitioner to the effect that the documents in dispute were duly signed by him, were not explained that how they were received in Lahore, Fourthly, alongwith the nomination papers petitioner has also annexed an affidavit showing therein that he had sworn the said affidavit before one Mushtaq Ahmad Butt, on 24.8.2002, at Lahore, whereas, on the said date, the petitioner/deponent was admittedly in Jeddah, Fifthly, the case of the petitioner is that he had submitted a set of nomination papers to the Consulate General for Pakistan in Saudi Arabia, for verification/attestation of his signatures but no action was taken on the same and in support of this assertion, reliance was placed before the Election Tribunal, upon the document Mark-B, receipt dated 27.8.2002, acknowledging receipt of certain documents, whereas, the last date for submission of nomination papers was 26.8.2002 and prima facie this document appeared to have been procured later on to make out the defence, Sixthly, the Members of the Tribunal themselves also examined and compared the signatures of the petitioner on the nomination papers, on the affidavits Mark-D and E and on the authorization letters (Marks-F fil G) in favour of Dr. Abdul Rashid Makhdoomi, Ch. Khalid Mahmood Ahmad and Muhammad Rashid Butt, duly attested by Consulate General for Pakistan, Jeddah, on 7.9.2002 and found that the petitioner's signatures on nomination papers and affidavits Marks D and E lacked similarity and the petitioner's signatures on documents Marks F fit G did not tally and were different than his alleged signatures on the different pages of the nomination papers and the difference, according to the Tribunal, was evident to the naked-eye.
5. In regard to the other allegation against the petitioner, of being a defaulter in repayment of loan obtained from National Bank of Pakistan, WAPDA House Branch, Lahore, it has been held by the Tribunal that two Suits Nos. 113/1995 against Ittefaq Brothers (Pvt.) Ltd. And No. 390/1994 against M/s. Ittefaq Foundry (Pvt.) Ltd. For the recovery of the loan amounts of Rs. 355.463 millions and Rs.
1072.227 millions, were instituted by the Bank and the same were pending in the Lahore High Court, the petitioner was a Director of both these companies, his wife Mst. Nusrat Shahbaz was a Director of M/s. Ittefaq Foundry. Besides being Director or beneficiary of the loans advanced to the above- said companies, the petitioner had admittedly executed certain documents, including the documents of personal guarantees in favour of the Bank, acknowledging to have attained the status of principal-debtor in the respondent of the loans, claimed by the National Bank of Pakistan, there was no stay order in existence, the personal guarantees executed by the petitioner in favour of the Bank for the repayment of the loan, gave out an acknowledgement of his liability to make repayment of the loan and all the circumstances established that the petitioner was a defaulter.
6. The Election Tribunal while dismissing the appeal (E.A. No. 177-R/02) of petitioner, Begum Kalsoom Nawaz and while accepting the Election Appeals Nos. 120-A and 172-A of 2002, of respondent No. 3, in Writ Petitions Nos. 17270 and 17271 of 2002, rejected the nomination papers of Begum Kalsoom Nawaz, for Constituency N.A. 120, N.A 122 and N.A. 119, by holding that her signatures on the nomination papers submitted by her were not genuine. The reasons for holding so are the same for which the signatures of Mian Shahbaz Sharif on his nomination papers were held to be non-genuine. The same, therefore, need not be repeated.
7. We have heard the Learned counsel for the petitioners, the Learned Deputy Attorney-General, the learned Advocate-General and the Learned counsel for the contesting respondent.
8. It is submitted by the Learned counsel for the petitioners that the Election Tribunal, which passed the impugned judgments, was constituted under Section 11(1 )(c) of the Representation of the People Act (No. LXXXY of 1976) for decision of the appeals within the specified seven (7) days and as per notification dated 16.8.2002 published in the Gazette of Pakistan (Extraordinary), issued by the Election Commission, the last date for deciding the appeals by the Election Tribunal, was 13.9.2002, the appeals in hand were heard by the Election Tribunal on 12.9.2002 and at the conclusion of the hearing one Member of the Tribunal said that the orders will be announced on the next day, while the other Member of the Tribunal said that the same will be announced 'today' which, according to the Learned counsel, were not announced on the same day i.e. 12.9.2002.
However, at 6.45 p.m. The reader of the Tribunal announced the decision, and it was reported in the press that orders were announced by the Tribunal on 12.9.2002, the Election Tribunal was not functioning as High Court and, therefore, it could not have asked its ministerial officer to act for them, the judgment could not have been announced without dating it and signing it, in the open Court, since this was not done, there is no order in existence, the procedure as provided in the Civil Procedure Code is applicable to the proceedings before the Tribunal unless specifically excluded and reliance in this regard has been placed on Rule 3 of Order XX of C.P.C., which provides that "The judgment shall be dated and signed by the ]Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review".
9. It has, in this regard, further been argued that till very late in the night, on 12.9.2002, the impugned judgments were not available because they did not exist, that on the next day i.e. 13.9.2002, case files were sought to be inspected but the ministerial staff informed that the same could not be made available as they were still with the Members of the Tribunal, hence, till then it was not a decided matter, the position remained the same till late in the night on 13.9.2002, the time-table prescribed in law for the decision of the appeals, by the Election Tribunal, ended on the midnight of 13.9 2002 but the files of-the cases were not available with the office of the Tribunal even on the morning of 14.9.2002, the Despatch Register was inspected, it did not list the appeals in question, as decided cases, the petitioner's counsel, at about 10.30 or 10.45 a.m., on 14.9.2002, presented an application before the Senior Member of the former Election Tribunal, in the chambers, urging the Tribunal to refrain, very graciously, from signing the judgments, as it had ceased, by then, to be the Tribunal. Reliance, in this regard, has been placed on Pakistan Tobacco Company Ltd. v. Pakistan Chest Foundation (PLD 1998 Lahore 100) and The State v. Asif Adil and others (1997 SGMR 209).
10. In regard to the genuineness of the signatures, it has been argued, that the conclusion arrived at by the learned Election Tribunal that the signatures of the petitioner were not genuine was based on the observation that these appeared doubtful. According to him, the petitioner had sworn an affidavit at Jeddah, owning his signatures on the nomination papers and in reply to the objections Hamza Shahbaz Sharif, son of the petitioner, had also sworn an affidavit before the Tribunal affirming that the signatures on the nomination papers were that of the petitioners. He made a grievance that the affidavit of the petitioner was brushed aside While that of his son was not even referred to by the Election Tribunal, which was a material piece of evidence to be taken note of. As to the visual comparison carried out by the Court he maintains that it was a very unsafe method and if the Election Tribunal had entertained any doubt, the Handwriting Expert could have been called, upon to examine the signatures of the petitioners on their nomination papers. Reliance was placed on Hamid Qayyum and others v. Muhammad Azeem (deceased) through L.Rs. And others (1995 P.S.C. 568). He next contended that qualifications and disqualifications have been enumerated in Section 8D of Chief Executive's Order No. VII of 2002 and Section 99 of the Representation of the People Act, 1976. A dispute about the signatures on the nomination papers is not covered by any of the aforesaid provisions. He also relied on Section 14(3)(d) of the Representation of the People Act, 1976 to contend that nomination papers can be rejected if the signatures of the proposer or seconder are not genuine. According to his reading of the said provision, the signatures of the candidate do not find any mention therein. Clause (ii) of Section 14(3)(d) was also referred to, according to which, nomination papers are not liable to rejection if the defect was not of a substantial nature which could be allowed to be rectified. He also referred to the definition of 'signature' from the Black's Law Dictionary (6th edition), and also contended that the signatures of a person may vary keeping in view the circumstances in which a signature is affixed, such as the posture of the person signing, position of the paper, his state of mind and so on.
He maintains that the Election Tribunal recorded the finding as to the signatures of the petitioner without there been any evidence to support it except conjectures. According to him, it was clearly beyond the scope of summary jurisdiction. He concluded by saying that in case a person owns his signatures, even an enquiry was not required to be made and it was for the party who alleges to the contrary to provide it by satisfactory evidence. He also urged that the objection before the Returning Officer was that the signatures on the nomination papers of the petitioner in all these cases had not been duly attested by the Pakistan Consulate at Jeddah and not that these were not genuine. He submits that as regards the doubt entertained by the Tribunal as to how the nomination papers were received in Pakistan, Mr. Mushahidullah Khan, a resident of Islamabad, had personally brought these nomination papers to Pakistan. A request was made to, the Tribunal that he could be produced before the Tribunal on 13.9.2002 but the request was declined. He went on to assert that there was no reason for anybody else to forge the signatures of the petitioners on their nomination papers because it entails penal consequences.
11. As to the other ground on which the nomination papers of Mian Shahbaz Sharif have been rejected, his grievance was that with the affidavit of the son of Mian Shahbaz Sharif and nephew of Begum Kalsoom Nawaz, a number of documents were placed on the record which were not even adverted to. It was further maintained that the issue of default was not raised before the Returning Officer. He referred to the documents maintained by the Registrar, Joint Stock Companies, to contend that Mian Shahbaz Sharif had resigned from the position of a Director of Ittefaq Foundry on 25.9.1993 and from Ittefaq Brothers on 30.12.1991 and so far as his shares in the aforesaid two companies are concerned, as per Form 'A' for the period upto 31.12.1996, he had transferred his entire share holding in the aforesaid companies. Thus, on the date of submission of nomination papers, he had no interest in the aforesaid companies. He contended that the two companies were in fact the loaners and the petitioner at worst was a guarantor (although these guarantees are also disputed). According to him, the disqualification contemplated by Clause 8D(2)(o) of Chief Executive's Order No. VII of 2002 or Section 99(1 A)(s) of the Representation of the People Act, 1976 is only attracted only in case the loan was obtained by a candidate in his on, name or in the name of his/her spouse or dependent children. Therefore, neither the aforesaid provisions were attracted nor the provisions contained in Section 12(2)(c) of the Representation of the People Act, 1976, inasmuch as that on the date of submission of nomination papers, the two companies were not mainly owned by the petitioner, he had rather been left with no interest in the said companies. So far as the personal guarantees are concerned, he invited our attention to a number of documents on the record according to which the National Bank of Pakistan moved C.O. Nos. 63 of 1998 and 64 of 1998, under Section 284 of the Companies Ordinance, 1984, in which, on 8.7.1998, a committee of three persons, including the Regional Chief Executive of National Bank of Pakistan, was constituted to, inter alia, assume and take over the possession and preserve the properties of the two companies. It was further directed that no coercive measures shall, meanwhile, be taken.
Reference is also made to order dated 29.2.2000 of the learned Company Judge. An objection was raised as to the maintainability of the said petitions, on which the position taken by the Learned counsel for National Bank of Pakistan was that it was the most appropriate remedy available to the parties. He contends that in pursuance of the orders passed in C.O. No. 63 of 1998 and C.O. No. 64 of 1998, the assets of both the companies have been taken over by the Bank at their initiative and, therefore, the guarantee, if any, of the petitioner, ceased to be operative, in view of the new arrangement brought about as a result of the orders passed by the learned Company Bench of this Court. He also highlighted that the petitioner and his family had not got any loan written off or rescheduled. He also asserted that the properties of the companies, inter alia, consist of 550 kanals of land, valued approximately at Rs. 97 Crores and the liabilities against the two companies would be conveniently satisfied from the assets and properties of the said companies.
12. The finding of the Learned Election Tribunal that the petitioner was a principal debtor, was also assailed. He maintains that a contract of loan and a contract of guarantee are two distinct species and even as a guarantor of the loan, the petitioner could not be declared as a defaulter. Reliance was placed on Ghulam Mustafa Jatoi v. Additional District and Sessions Judge /Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299) in support of the above contention, and further that for determining whether the transaction in question amounted to loan no other provision including that contained in Sections 126, 128 of the Contract Act could be imported. He emphasized the observations of the Hon'ble Supreme Court of the expression, "in his on name".
Referring to the arrangement suggested by the creditor-Bank and the orders passed by the Learned Company Bench of this Court, he maintains that all assets of the two companies had, voluntarily been handed over to the creditor-Bank and instead of commending the gesture of the petitioners, they are being condemned. He summarised his submissions by contending:
(i) A guarantor was not a loanee for the purpose of disqualifying provisions contained in the Chief Executive's Order No. VII of 2002 and the Representation of the People Act, 1976.
(ii) The company was not mainly owned by the petitioner, agreement of guarantee, if any, stood discharged by the arrangement directed by the Learned Company Bench
(iii) The direction in the order dated 8.7.1998 to the effect that no coercive measures would be taken amounts to stay of the recovery proceedings and' thereby attracting the provisions of Clause
(i) of Section 12(2) of the Representation of the People Act, 1976, which provides that a loan, the recovery of which has been stayed will not be a loan for the purpose of Representation of the People Act, 1976.
(iv) For the definition of loan, the provision of any other Statute could not be imported.
13. In support of his submissions reliance was placed on National Commercial Bank Ltd., Karachi v.
Mahammad Tufail and another (PLD 1975 Karachi 671), Javed Iqbal Mughal v. Returning Officer, Sialkot, etc. (KLR 1998 Civil Cases 384) and A. Rehman v. Tehsildar, Lahore and another (1993 CLC 1222).
14 Reference was also made to the Corporate Industrial Restructuring Corporation Ordinance, 2000, which contemplates rehabilitation of sick industrial units and the concession available under the aforesaid Ordinance to such industrial units.
15. On the other hand, the Learned Deputy Attorney- General contends that reference to Rule 3 of Order XX of the Code of Civil Procedure was inapt inasmuch that the Code of Civil Procedure is not applicable to the proceedings before the Election Tribunal hearing appeals against acceptance or rejection of nomination papers nor there was any provision in the Code of Civil Procedure, making the said Code applicable before the Election Tribunal. He referred to Sections 141 and 117 of the Code of Civil Procedure. While the former section refers to the Court, which, according to him will not include an Election Tribunal, the latter section applies only to the High Court. He contends that the scheme of the Code of Civil Procedure refers to judgment, decree or an order while according to Section 14(3) of Act No. LXXXV of 1976 appeal before an Election Tribunal is to be summarily decided. According to him, the expression employed therein dispenses with the observance of full formalities. Definition of word "summarily" given in Black's Law Dictionary (6th edition) was relied upon. He submits that the National Press carried the news of rejection of nomination papers of the petitioners in these cases on 13th September, 20O2, which clearly means that the appeals had been decided on 12.9.2002. Controverting the contention of the Learned counsel for the petitioner that the Reader of the Tribunal had announced the order, he submits that the official of the Tribunal only conveyed the decision of the Tribunal. As to the events of 12th and 13th of September, 2002, he submits that these facts were in the knowledge of the Learned counsel but no affidavit has been placed on the record. He went on to submit that the date of the order of the Tribunal as 12.9.2002 shall have to be accepted as correct because according to Section 129(e) of the Qanun-e- Shahadat Order, 1984 presumption of regularity is attached to all judicial and official acts. Reliance was placed on The State v. Asif Adil and others (1997 SCMR 209).
16. As to the contention of the Learned counsel for the petitioner that the files had not been sent to the office III 13.9.2002, he maintains that sending of files in the office is a ministerial act and it cannot be determinative of the date of signing of the judgment. Reliance was placed on The Pakistan Shipping Corporation and another v. Rustam F. Cowasjee and others (1989 SCMR 1332). In the alternative he submitted that admittedly the oral order was announced on 12.9.2002 and, therefore, the Election Petitions stood decided on the said date and the decision was reported in the National Press on 13.9.2002. Reliance was placed on Shafique Textile Mills Ltd. v. Karachi Electric Supply Corporation Limited (1997 MLD 2705), Messrs Bexshim Corporation v. Privatization Commission, Experts Advisory Cell Building and 3 others (PLD 1997 Karachi 36). It was further contended that the law leans in favour of adjudication on merits and technicalities are not allowed to stand in the way of justice. He also maintains that the concept of abatement as contemplated by Order XXII of the C.P.C., which was practised for about I0O years, was done away with in 1972. Reliance was placed on Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C.
678).
17. Controverting the contention of the learned counsel for the petitioners with reference to the definition of word "signature" in the Black's Law Dictionary, he submits that the arguments advanced by the learned counsel that the signature can be in any form is self-destructive because the case ^ the petitioners has been that they did sign the nomination papers. He referred to the provisions of Section 12(2) of Act LXXXV of 1976 which require that the nomination papers shall be signed by the candidate on solemn affirmation. Facts stated in the nomination papers being in the personal knowledge of the petitioner, the requirement of signatures is mandatory. In the absence thereof, nomination papers are liable to be rejected under Section 14(2)(c) of Act LXXXV of 1976. He also relied on the provisions of Section 14(5A) of the aforesaid Act to submit that the Election Tribunal was fully justified to reject the nomination papers if a candidate was disqualified, In his submission, by presenting nomination papers which did not bear the genuine signatures of the petitioners, they were clearly guilty of misrepresentation. He also invited our attention to the affidavits dated 24.8.2002 of the petitioners, appended to the nomination papers which were attested at Lahore on 24.8.2002 on which date the petitioners were Undisputedly in Saudi Arabia, therefore, the petitioners cannot be said to be "Sadiq" and "Ameen" and even on this score nomination papers of the petitioners were liable to be rejected.
18. He next contended that the Election Tribunal, after carrying out the comparison of admitted signatures on the letters of Authorization with the disputed signatures, a course permissible under Article 84 of the Qanun-e-Shahadat Order, 1984, reached a positive conclusion that the signatures were not genuine, It had jurisdiction to record the said finding and, therefore, this Court, while exercising the Constitutional jurisdiction cannot upset the said finding. Reliance was placed on Export Promotion Bureau and others v. Qaiser Shafiullah (1994 SCMR 859). Inviting our attention to the letters of authorization which are the admitted signatures of the petitioners and the disputed signatures on the nomination papers of the petitioners, he submits that the dissimilarities are visible to the naked eye. As far as the affidavit of Hamza Shahbaz Sharif, the son of Mian Shahbaz Sharif, petitioner, and nephew of Begum Kalsoom Nawaz, petitioner, is concerned, his contention is that the said affidavit was not attested, although so required under the provisions of the Oaths Act, 1873 and, therefore, it could not be considered either by the Tribunal or this Court. Reliance has been placed on Master Muhammad Bashir v. Moinuddin (1990 CLC 703).
19. It is submitted next that Section 12(2) of the Representation of the People Act, 1976 makes it mandatory for the candidate, to sign the nomination papers and the signatures have to be genuine. The legislative intent is to be deciphered from the language employed in the Statute itself and the reference to the Black's Law Dictionary by the Learned counsel for the petitioner, in this regard, is irrelevant. Reliance has been placed on Mehr Zulfiqar Ali Babu and others v. Government of the Punjab and others (PLD 1997 Supreme Court 11).
20. In regard to the issue of the petitioner Mian Muhammad Shahbaz Sharif being a defaulter, it has been submitted that at the time the liabilities were incurred, he was a Director/share-holder of the above-said two companies, in addition to being a guarantor of the loans and on the commission of the default, the bank duly instituted the two suits, referred to above, and the argument of the Learned counsel for. The petitioner that an order was passed by the Learned Company judge that "no coercive measures shall be taken" amounts to a stay order, has no merit because the said restraint order merely means that in the meanwhile the respondents before the Company judge shall not be arrested, because at that time they were apprehending arrest. Further, the petitioner, Mian Muhammad Shahbaz Sharif admitted the liability by entering into an arrangement with the Bank and by agreeing to the handing over of the properties and assets of the companies, to the Committee formed by the learned Company Bench, which shows that the petitioner, Mian Muhammad Shahbaz Sharif was and is a defaulter of loan, which still continues till the liabilities are discharged. Reliance has been placed on Babu Muhammad Munir v. Appellate Tribunal of the Election Commission and others (1993 SCMR 2348). He further argued that the provisions of Conduct of General Elections Order, 2002 and Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan, 1973, show that the intention of the law-makers was and is to permit only those persons to enter the Parliament or the Assemblies who enjoy the highest level of integrity and credibility. It has also been argued that due to the bar as contained in Article 225 of the Constitution, the present petitions are not maintainable and the inroad created in Ghulam Mustafa Jatoi's case (supra) is not attracted to the facts of the present case, as in the said case, the nomination papers of the candidate had been accepted in the first instance and later on rejected by the Returning Officer, by an ex parte order, when the period for filing appeal had already expired.
21. In the end, it has been submitted that ballot papers have already been printed, the deliveries of the same have started and it is too late in the day to permit the petitioners to participate in the forthcoming elections and this Court, therefore, may not exercise the discretionary jurisdiction in favour of the petitioners because such an exercise can up-set or interrupt the schedule of the election.
22. Mr. Muhammad Aslam Sandhu, Advocate, representing the Objectors/respondents Kamal Barakullah, Kh. Faruq Hussain and Kh. Maqsood Hussain, while opposing the petitions, adopted the arguments of the learned Deputy Attorney General. The Learned Advocate-General, Punjab, also entered appearance and opposed the petitions by submitting that the loan liabilities of the petitioner Mian Muhammad Shahbaz Sharif still existed and therefor, he is a defaulter, that in view of the law laid down in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 Supreme Court 396) the present Constitutional petitions are not maintainable, and the filing of the nomination papers will forged signatures amounted to fabrication and, therefore, no case is made out for the exercise of equitable jurisdiction in favour of the petitioners.
23. The Learned counsel for the petitioners, while making submissions, in rebuttal, contended that the procedure provided in the Code of Civil Procedure is applicable to all Courts, the Election Tribunals constituted under the Representation of the People Act, 1976 were assigned the judicial functions of deciding the appeals, therefore, for ail intents and purposes, these were Courts and could not act without ceremony. Reliance was placed on Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. And another (PLD 1984 Lahore 69).
24. We have given anxious consideration to the arguments advanced by the Learned counsel for the parties and have also checked the relevant record and are of the view that the submissions made by the Learned counsel for the petitioners have no merit except in regard to the issue of the alleged default of the petitioner, Mian Muhammad Shahbaz Sharif, and the nomination papers of the petitioners have been correctly rejected.
25. The Election Tribunal, after having checked the record, has given cogent reasons, noted by us also, in para 4 ibid, for coming to the Conclusion that the signatures of the petitioners on their nomination papers were not genuine. The petitioners have throughout the relevant period been living in Saudi Arabia, they have failed to establish the sending of the nomination papers to Saudi Arabia, there is nothing on the record to show that the nomination papers duly signed by them came back to Pakistan and the same were presented before the Returning Officers. It was not established that how the affidavits of the petitioners statedly signed by them at ]eddah, filed before the Election Tribunal, were received at Lahore, petitioners' affidavits on Form XIX accompanying their nomination papers show that the same were sworn by the petitioners at Lahore before one Mr. Mushtaq Ahmad Butt, Oath Commissioner, on 24.8.2002, whereas, on the said date, the petitioners were admittedly in Jeddah and this fact also establishes that the signatures of the petitioners on their nomination papers are not genuine and that the petitioners never appeared before the Oath Commissioner. Further, the Learned Election Tribunal, in the exercise of lawful jurisdiction vested in it, examined and compared the alleged signatures of the petitioners on the nomination papers with the admitted signatures of the petitioners, on their authorization letters, and found that they lacked similarity which was evident to the naked eye. The Tribunal, in our opinion, keeping in view Article 84 of the Qanun-e-Shahadat Order, 1984, lawfully compared the signatures. Reference in this regard can be made to S.M. Zahir v. Pirzada Syed Faml Ali Ajmeri (1974 SCMR 490), Mirza Arif Baig Vs. Mubarik Ali (PLD 1992 Lahore 366) and Abdul Ghaffar Vs. Muhammad Sharif (1993 CLC 1779).
26. We will like to refer to the following observations of this Court in Balak Ram v. Muhammad Said (AIR 1923 Lahore 695):-- "As pointed out in 14 Indian Cases 741 comparison of signatures is one of the modes of proving handwriting and although, where there is no other evidence, such proof would be regarded as hazardous and inconclusive, it cannot be regarded as an error in law to base the conclusion on such proof alone, and a Court of second appeal would have no power to set aside a finding based on such comparison."
Same rule was followed in Ahsanullah v. Abdul Jabbar (PLD 1958 Dacca 57). The writ jurisdiction is more limited in scope than the second appellate jurisdiction. The finding of fact recorded by the Election Tribunal cannot, therefore, be up-set in Constitutional jurisdiction even if another view could possibly be taken. Reference may be made to Ghulam Nabi and another v. Khan Muhammad Afzal Khan, Settlement Commissioner, Lahore and another (1970 SCMR 68).
27. Absence of genuine signatures amounts to nonsinging the nomination papers which is fatal in character and is not curable/condonable. Section 12(2) of the Representation of the People Act, 1976 makes it obligatory for a candidate, alongwith his proposer and seconder, to put their signatures on the nomination papers. Reference can be made to Ghulam Yasin Vs. Additional Deputy Commissioner etc. (1983 Law Notes (Lahore) 1309), Ram Dayal v. Brijaraj Singh and others (AIR 1970 S.C. 110).
28. The argument that the affidavit of Muhammad Hamza Shahbaz Sharif, the son of the petitioner, Mian Muhammad Shahbaz Sharif and nephew of petitioner, Begum Kalsoom Nawaz in rebuttal, to the effect that the allegations that the signatures are not genuine is fallacious, he is familiar with the signatures of the petitioners and the signatures on the nomination Forms are those of the petitioners, has not been taken into consideration by the Election Tribunal, has also no merit because there is no assertion in the affidavit that the nomination papers were signed in his presence. The assertion in his affidavit that he was familiar with the signatures of the petitioners is not sufficient to displace the finding of the Election Tribunal arrived at, in the exercise of lawful jurisdiction. Further, the contention that under clause (d) of Section 14(3) of the Representation of the People Act, 1976, the Returning Officer could reject the nomination papers only if the signature of the proposer or the seconder were not genuine, has also no merit because under clause (c) of the same provision, the Returning Officer can reject the nomination papers if any of the provisions of Section 12 of the above Act has not been complied with and as mentioned above, under Section 12(2) of the said Act, signature of the candidate on the nomination papers is mandatory.
29. Learned counsel for the petitioners, with emphasis and eloquence, tried to persuade us to hold that the decision rendered by the Tribunal stands vitiated for non-compliance of the provisions of Rule 3 of Order XX of the Code of Civil Procedure. Flis grievance is two-fold, firstly, that the decision was pronounced by the reader and secondly the judgment had not been signed till 13th of September, 2002. The submissions have no merit. In fact the decision of the Tribunal was only conveyed by the Reader. This is normal practice that the result of the cases decided on the same day in chambers is conveyed to the reader for information of the parties. So far as the second limb of his submission is concerned, the date of the decision as 12.9.2002 has to be accepted in view of the undisputed fact that the Tribunal had announced the decision on 12.9.2002 a$ reported by the National Press. Further, sending of the files to the office of the Court is a ministerial act and it cannot be determinative of the date of signing the judgment.
30. As far as the question of default is concerned, the contention of the Learned counsel for the petitioner, Mian Muhammad Shahbaz Sharif has merit. It is not disputed that National Bank of Pakistan has filed C.Os. No. 63 of 1998 and 64 of 1998, under Section 284 of the Companies Ordinance, 1984 based on the arrangement dated 30.6.1998 between the aforesaid Bank and the two companies, namely, Ittefaq Foundry (Pvt.) Ltd. And Ittefaq Brothers (Pvt.) Ltd. The order dated 8.7.1998 passed in aforesaid cases clearly recites that the Learned counsel for the respondent companies in the said cases, accepted the aforesaid arrangement. Perusal of the order dated 8.7.1998 shows that the Learned Company judge appointed a Committee, inter alia, comprising the Regional Chief Executive, National Bank of Pakistan, amongst others, to assume and take over the possession and preserve the properties of the companies and make arrangements for the disposal of the same, for the discharge of the liabilities. Various orders placed before us show that one of the parties had objected to the maintainability of the said petitions under Section 284 of the Companies Ordinance and the position taken by the Learned counsel for the National Bank was that in the circumstances, it was the most appropriate remedy. The aforesaid petitions are, however, pending. The undisputed fact, however, remains that the two companies i.e. The principal debtor, have placed all the assets and properties at the disposal of the Court at the initiative of the creditor Bank. The Bank itself wants to realize its dues by the disposal of the properties of the two companies which has already been accepted by the said companies. It is, therefore, a case in which the creditor has taken over the assets and properties of the principal debtor. The effect to our mind, of this new arrangement is that all previous agreements, including the agreements of guarantee stand superseded. The change in the circumstances i.e. Enforcement of a compromise by the creditor Bank under Section 284 of the Companies Ordinance, 1984 is so fundamental in character that it strikes at the very root of the original contract. It may be added that with the taking over of the assets and properties of the company by the creditor Bank the remedy of the surety to proceed against the principal debtor at least stands suspended. Reference any be made to Begum Zia Farhat Awan and two others v. Islamic Republic of Pakistan and three others (1993 CLC 365), in which this Court, after examining various provisions of the Contract Act, observed that when the creditor takes over the principal debtor i.e. The company, the surety cannot be held to be liable any more. We will, however, like to add that these observations are being made in the limited context of the question whether Mian Muhammad Shahbaz Sharif could be said to be a defaulter, and are not to be construed to prejudice the parties in the said recovery suits.
30.6.1998 between the aforesaid Bank and the two companies, namely, Ittefaq Foundry (Pvt.) Ltd.
And Ittefaq Brothers (Pvt.) Ltd. The order dated 8.7.1998 passed in aforesaid cases clearly recites that the Learned counsel for the respondent companies in the said cases, accepted the aforesaid arrangement. Perusal of the order dated 8.7.1998 shows that the Learned Company judge appointed a Committee, inter alia, comprising the Regional Chief Executive, National Bank of Pakistan, amongst others, to assume and take over the possession and preserve the properties of the companies and make arrangements for the disposal of the same, for the discharge of the liabilities. Various orders placed before us show that one of the parties had objected to the maintainability of the said petitions under Section 284 of the Companies Ordinance and the position taken by the Learned counsel for the National Bank was that in the circumstances, it was the most appropriate remedy. The aforesaid petitions are, however, pending. The undisputed fact, however, remains that the two companies i.e. The principal debtor, have placed all the assets and properties at the disposal of the Court at the initiative of the creditor Bank. The Bank itself wants to realize its dues by the disposal of the properties of the two companies which has already been accepted by the said companies. It is, therefore, a case in which the creditor has taken over the assets and properties of the principal debtor. The effect to our mind, of this new arrangement is that all previous agreements, including the agreements of guarantee stand superseded. The change in the circumstances i.e. Enforcement of a compromise by the creditor Bank under Section 284 of the Companies Ordinance, 1984 is so fundamental in character that it strikes at the very root of the original contract. It may be added that with the taking over of the assets and properties of the company by the creditor Bank the remedy of the surety to proceed against the principal debtor at least stands suspended. Reference any be made to Begum Zia Farhat Awan and two others v.
Islamic Republic of Pakistan and three others (1993 CLC 365), in which this Court, after examining various provisions of the Contract Act, observed that when the creditor takes over the principal debtor i.e. The company, the surety cannot be held to be liable any more. We will, however, like to add that these observations are being made in the limited context of the question whether Mian Muhammad Shahbaz Sharif could be said to be a defaulter, and are not to be construed to prejudice the parties in the said recovery suits.
31. For the reasons above-stated, we find no merit in these petitions, which are dismissed.