MUHAMMAD ABDULLAH KHAN Versus MUHAMMAD USMAN KHAN ABBASI
ORDER
Sardar Muhammad Abdullah Khan Dahir, the petitioner, through an Election Petition under section 52 of Representation of the People Act, 1976, has assailed the validity, genuineness and propriety of Election process PP‑219 BWP‑II, in which, besides the contesting parties (petitioner and respondent No‑0, respondents Nos.2 to 5 also participated. Respondent No.1, however, emerged successful while the petitioner was runner up.
2. Respondent No. 1, namely, Sahibzada Muhammad Usman Khan Abbasi resident of Dera Nawab Sahib, filed his nomination papers on 21‑12‑1996, which, were scrutinised on 28‑12‑1996. The petitioner objected loudly to the eligibility of respondent No. l on the plea that he was defaulter of N.I.C.F.C., hence, neither honest nor Ameen, but, the Returning Officer brushed aside those objections and accepted the Nomination Papers of respondent No. 1. Besides a decree passed by Judicial Officer Punjab Cooperative Board for Liquidation, Lahore in Case No.JCB/19/R‑24 dated 25‑10‑1995 still stood yawning and unsatisfied. A, sum of Rs.23,86,820 was outstanding on 30‑6:1990 and this amount soared and swelled and ultimately touched the alarming limit of Rs.55 lac.
3. The petitioner went in appeal against order of Returning Officer dated 28‑12‑1996 before Election Tribunal. The Tribunal vide order dated 7‑1‑1997 bound down the respondent No. l to clear the liability to N.I.C.F.C., a joint Financial venture, up to 14‑1‑1997 on the basis of the statement of learned counsel for respondent No. 1. It was clarified that in case of failure to deposit the outstanding liability till 14‑1‑1997, Nomination Papers would be deemed to have been rejected. The contesting patties agreed to this arrangement and prospective outcome and as a sequel thereto appeal was disposed of. Instead of honouring above solemn commitment, the respondent No. l knocked at the door of Hon'ble Cooperative Judge in Petition No. 1/C of 1997 without disclosing the culmination of proceedings before the Election Tribunal and got "status quo" on 7‑1‑1997 subject to furnishing guarantee of his immovable property situated in Bahawalpur district to the satisfaction of Deputy Registrar, Lahore High Court, Bahawalpur Bench, Bahawalpur, equivalent to the amount claimed in the impugned order. On 9‑1‑1997, Deputy Registrar made it clear that liability of Rs.23,86,820 was sufficiently guaranteed. The petitioner, feeling dissatisfied with the alleged hide and seek policy to circumvent the financial liability, has ultimately approached this Tribunal for declaring the election of respondent No‑1, the returned candidate from PP‑219‑BWP‑II, as void and instead the petitioner be declared as a successful candidate.
4. Main petition is replete with risques and pungent aspersions of default not only pertaining to N.I.C.F.C. but also creeping into premises of National Bank and PAD & SC. While dissecting the cascade of allegations, it has been further clarified that against his A.A.M. Account No.586 with Kot Lakhpat Branch of N.I.C.F.C. (defunct) a balance of Rs.23,86,820 was outstanding on 30‑6‑1990, and this liability augmented to Rs.42,12,245 up to 31‑12‑1993. As averred, document with respect to best banking default was in the knowledge of respondent No.1 at the time of scrutiny held on 28‑12‑1996 because the same had been delivered on 8‑12‑1996. Also it has been disclosed that he moved applications on 8‑12‑1996 and 9‑12.1996 to Secretary, Punjab Cooperative Liquidation, Lahore, making therein candour admission of his liability and requesting also for settlement of account in the form of payment of rupees twenty lacs in the first instalment and the remaining balance in six monthly instalments with regard to amount of Rs.42,12,245. Another liability surfaced on 4‑1‑1997 during the proceedings before Election Tribunal towards National Bank of Pakistan and an undertaking was made to clear the same on the following day. The respondent No.1 was, allegedly, a defaulter of National Bank of Pakistan too on very day of filing the nomination paper, i.e. 21‑12‑1996, hence, disqualified to be elected. These facts were concealed in the nomination papers. According to the petitioner, mis‑statement and concealment of such facts is bound to take shape into disqualification enunciated in paras. (d) (e) and (f) of .Article 62 of the Constitution of Islamic Republic of Pakistan. Third allegation of default stands ascribed to the respondent No. l in para. No.20 of the main petition in respect of an outstanding loan of Rs.2,23,524 up to 30‑6‑1996 payable to PAD and SC. Statedly respondent No. l mentioned an amount of Rs.29,80,000 (sic) S.M.R'S. N.I.C.F.C. Cooperative Society under liquidation on page 5 of nomination paper in front of assets and investment pertaining to para. (e) (viii) dealing with the column of any other investment. According to page 2 of the nomination paper, a candidate is bound to declare on oath that no loan from any Bank, Financial Institution, Cooperative Society remained unpaid for more than one year from the date due. Allegedly, this affidavit had been wrongly and falsely sworn in by the candidate/respondent No.1 at the time of nomination and by doing so he attracted the mischief of Articles 62 and 63 of the Constitution, 1973 read with section 99 of the Representation of the People Act, 1976. As a sequel thereto, he allegedly cannot be taken to be sagacious, righteous, honest and Ameen, hence disqualified for the purpose of contesting the elections.
5. Alongwith main petition, an application under order XXXIX rules 1, 2 C.P.C. read with section 151 of some Code and sections 64 and 76‑A of Act LXXXV 1976 has also been moved, praying therein that the respondent No. l be restrained from functioning his duties as Member Provincial Assembly till its final adjudication.
6. The respondent No.1 has contested both the petitions by refuting the allegations embodied therein categorically. It has been added that main ground advanced to show alleged illegal and corrupt practice relates to default for repayment of outstanding loan to have been obtained from N.I.C.F.C. Ltd. Kot Lakhpat Branch, Lahore and translated into award granted in favour of the Punjab Cooperative Board for Liquidation vide order dated 18‑6‑1996 which matter is sub judice with Hon'ble Cooperative Judge, who, issued "status quo" order on 7‑1‑1997. Allegation of loan from National Bank of Pakistan is stated to be devoid of any veracity. As claimed, respondent No.1 is a mere, guarantor incurring no direct responsibility of repayment. However, in order to save his public estimation, he is said to have paid the amount on 28‑12‑1996 and 5‑1‑1997 and the Bank has issued Clearance Certificate. Allegation of loan from PAD & SC has been vehemently repelled on the ground that a Third person, namely, Salahuddin Abbasi, availed the facility of loan from the above Corporation on the recommendation attributed to contesting respondent. It has been clarified that the decree passed against respondent No.1 was ex parte and its operation has been suspended by a Court of competent jurisdiction. It has been further claimed that in view of amendment in section 12, in Act LXXXV of 1976, the loan recovery if stayed or suspended by the order of the Court or Tribunal, including the High Court or Supreme Court, cannot form a ground for rejection of a nomination paper.
7. Learned counsel for the petitioner has bedecked his arguments with case law reported in Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khan Khosa (PLD 1997 Lah. 250), Ehsanul Haq Piracha v. (Brid. Retd) Ghulam Hussain Cheema and others (KLR 1995 Magazine Cases 2 Lah..), Haji Mian Aziz‑ur‑Rehman Chan v. Mian Abbas Sharif and another (1994 MLD 2293) and Sh. Rashid Ahmad v. The Election Tribunal Comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another (PLD 1993 Lahore 791).
8. Conversely, learned counsel for the respondent No.1 has enriched the polemic with the citations like Akber Ali and others v. Vazir Ashique Ali and others (1992 CLC 1551 Karachi), Malik Iqbal Ahmad Khan Langrial v. Rai Ahmad Nawaz and others (1990 CLC 595), Syed Ali Raza Asad Abidi v. Station House Officer, Police Station Model Town, Gujranwala and 3 others (PLD 1991 Lah. 306), Julius Salik v. Returning Officer and 27 others (1989 CLC 2499 Lahore), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) and Muhammad Saeed and 4 others v. (1) Election Petitions Tribunal, West Pakistan, (2) Mehr Muhammad Arif Khan (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91).
9. There is no cavil to the proposition that the Tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit. Also it is trite law that interim relief may be refused and declined even if the petitioner has ‑a prima facie case, of‑course, keeping in view balance of convenience and irreparable loss, which, respondent is likely to suffer in such situation. '
10. In the instant case, it would not be in the interest of justice to grant interim relief, for the same, would not, only cause great inconvenience and irreparable loss to respondent but tantamount to granting relief prayed in the main petition itself before the conclusion of regular trial. Moreover, allegations howsoever grave, are allegations simplicitor and cannot be treated as gospel truth at very inception. It was observed in Julius Salik v. Returning Officer and 27 others (1989 CLC 2499) that elected office holders are not to be restrained from performing their functions without final judgment and no interim injunction should be allowed.
11. Learned counsel for the petitioner, while citing PLD 1997 Lahore 290, has laid great stress that High Court while exercising jurisdiction under Article 199 of the Constitution is competent to dive deep into the corrupt practices during election, hence, the Tribunal is also empowered to sift the grain from chaff even at preliminary stage' and issue interim injunction. In the case referred to above, election process was not yet over unlike the present case. Article 225 takes precedence over Article 199 when a candidate is declared successful. Article 199 is a powerful weapon to oust a candidate from a ring provided the order passed by the Election Tribunal is without jurisdiction or is the result of failure to exercise jurisdiction or is tainted with mala fide or patently illegal. The petitioner has not uttered single word or question the legality of proceedings dated 7‑1‑1997 conducted by Election Tribunal in connection with the acceptance of nomination papers. Allegations of default are yet to be substantiated and it will not take a cumbersome course to reach that destination. Mere vindication of honour or satisfaction of suffered dignity is no ground to strangulate the activities of a successful candidate. As expounded in PLD 1989 SC 396. Article 225 is not controlled by Article 199 and also there is hardly any occasion to have recourse to satisfaction of there being no adequate remedy. Article 225 by its mandate creates an independent jurisdiction for redressal of grievance in election disputes and it is in the exercise of that jurisdiction that all question of law and fact are decided by the Tribunal after the Election are over and not at an intermediate stage against which appeal lies to the Supreme Court, whose, decision is final.
12. Upshot of above exercise is that no valid ground exists to put the rope around the neck of respondent No.1 in the offing. Let the parties exhaust evidence in their store and till then imposition of any embargo does not look justified. Application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. and sections 64 and 76‑A of Act LXXXV of 1976 accordingly merits rejection and is hereby turned down.
13. For further proceedings, to come up on 17‑7‑1997 at Principal Seat.
A.A./M‑385/L Order accordingly.