Rana MUHAMMAD ARSHAD vs ADDITIONAL COMMISSIONER (REVENUE), MULTAN DIVISION and others

' WAJIHUDDIN AHMED, J.---This petition for leave to appeal is directed against the order dated 4-5- 1998 in Writ Petition No,3568 of 1998, recorded by a learned Single Judge of the Lahore High Court sitting at the Multan Bench of such Court.

2. Through that order the said petition was dismissed in limine on the ground that relief under Article 199 of the Constitution, being discretionary and thus equitable, could not be extended to the petitioner, equities manifestly weighing against him.

3. In the factual background was rejection of the petitioner's nomination paper for election from Halqa No,72 of the Municipal Corporation Multan under the punjab Local Government Ordinance, 1979. The rejection was also upheld in appeal, opening the way for the petitioner to invoke the Constitutional jurisdiction of the High Court. The ground finding favour with the Returning Officer for rejection of the nomination paper comprised of the fact that the petitioner was a bank defaulter in the sum of Rs,8,90,487, decree of the Banking Court in which behalf had not been honoured since 1996. Contentions before the High Court were two-fold: firstly that the decree had not attained finality, such having been ex pane and an application for recall having been made and pending; and secondly, that the prohibitory law, concerning defaulters, remaining no longer applicable having ceased to have effect by efflux was erroneously applied. It is correct that the specific amendment by way of substitution of section 12(2) of the Representation of the People Act, 1976, pertaining to defaulters with legislative history of successive treatments through Ordinances, commencing in the year 1993, having lastly been introduced per Ordinance (CVIII of 1996) on 2-11- 1996, ultimately to the following effect:

(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed by both the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany---

(i) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Articles 62 and 63 for being elected as member;

(ii) a declaration about his party affiliation, if any;

(iii) a declaration that no loan, obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or dependent children or dependent parents or any business concern mainly owned by the aforesaid, remains unpaid' for more than one year from the due date;

(iv) a declaration that no loan, other than a loan written off under the orders of the Government because of any natural calamity, obtained by him, his spouse or. Dependent children or dependent parents or any business concern mainly owned by the aforesaid from any bank, financial institution, cooperative society or corporate body was written off;

(v) a declaration that he, his spouse or dependent children or dependent parents or a business concern mainly owned by the aforesaid have not made any default in payment of taxes for over six months;

(vi) a declaration that he, his spouse or dependent children or dependent parents or a business concern mainly owned by the aforesaid have not made default in payment of Government dues and utility expenses, including telephone, electricity, gas and water charges, for over six months;

(vii) a statement specifying his educational qualifications, occupation, National Identity Card number and National Tax Number, if any;

(viii) a statement of assets and liabilities of his own spouse and dependents on the prescribed form as on the preceding thirtieth day of June;

(ix) a statement specifying income-tax, wealth tax paid by him during ,last three assessment years and, where applicable, land revenue paid by him during the last two financial years;

(x) an assurance that during the tenure of his membership for which nomination papers are being submitted, he shall not change or defect his political party affiliation or accept any office without the express written consent of the leader of his political party in the Assembly or without seeking re-election after resigning from his seat;

(xi) an assurance that he shall abide by the Code of Conduct issued by the Commission. ' did not survive the life of the Ordinance pursuant to which such had been brought about. Even so, the postulates of Articles 62 and 63 of the Constitution remained applicable in view of section 21(1)

(f) in the Punjab Local Government Ordinance, 1979, which, it is not questioned, remains on the statute book. Section 21(1)(f) (ibjd) is this--

(f) if he for the time being is disqualified for membership of the Parliament or a Provincial Assembly under any law for the time being in force."

The learned Judge in the High Court, however, did not disagree with the above' technical pleas, but, finding justice and fairplay coming in the way of the petitioner, Nawab Syed Rounaq Ali v. Chief Settlement Commissioner and others (PLD 1973 Supreme Court of Pakistan 236) was invoked. The principle that the High Court was not bound to issue an order in the nature of a writ even against a void order, if it came to the conclusion that the order otherwise promoted justice, was reiterated and relief refused accordingly.

4. There can be no cavil with the proposition that the declarations, prohibitions, directions or requisitions in contemplation of Article 199(1) of the Constitution are essentially discretionary in nature. Discretion of the Court, however, is always exercised along sound judicial lines.

Constitutional jurisdiction is designed to advance justice and cater to the various fundamentals enshrined in the Constitution on the one hand and dictates of law on the other. Where law, in the abstract, is banked upon in order that the Constitutional remedy be extended, the underlying principles and salient features or prominent characteristics of the Constitution, one of which is an undiluted and unpolluted democratic form of the polity, cannot be ignored or even side-tracked.

Much as the rule of natural justice viz. Audi alteram partem, such features and characteristics, wherever called for and feasible, are to be read in all sub-Constitutional laws. Democratic institutions are, therefore, to be fostered and strengthened and that can never be achieved unless elected offices are kept free of undersirable and doubtful characters. In doing so, if necessary, extended meanings are to be imputed to the applicable Constitutional mandates and that is clearly and manifestly permissible by according a dynamic interpretation to the Constitution, which is an organic and a living instrument, all the time open to adaptability: (see, inter alia, Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 Supreme Court of Pakistan 426). Now that Article 2A makes the principles and provisions set out in the Objectives Resolution substantive part of the Constitution and postulates to give effect to the same accordingly, social, economic and political justice, inter alia, as enunciated by Islam is required to be engendered and observed.

Besides the Fundamental Rights even the Principles of Policy, as incorporated in Chapter 2 of Part II of the Constitution, with specific reference to Articles. 31 (Islamic way of life), 32 (Promotion of Local Government Institutions), 37 (Promotion of social justice and eradication of social evils), and 38 (Promotion of social and economic well being of the people) have to be clothed with their pristine meanings and contents. The rule has slowly but steadily evolved, initially by calling in aid Articles 2, 3, 4 and 7 of the constitution and lately through the invocation of the newly-inserted Article 2A. In the result, the Principles of Policy are no longer viewed as mere embellishments of the Constitution devoid of substance. Such have a meaning of their own and capable of being given effect to albeit upon due recourse to Articles 2, 2A, 3, 4 and 7 read with the Fundamental Rights, occurring in the First Chapter of the 2nd Part to the Constitution: See, amongst others, Nizam Khan v. Additional District Judge, Lyallpur (PLD 1976 Lahore 930); Bhola v. Sardar Muhammad (PLD 1976 Lahore 1268); Nabi Bux Khan Bhurgari v. National Bank of Pakistan (PLD 1988 Karachi 24); Ms. Benazir Bhutto v.Federation of Pakistan (PLD 1988 Supreme Court of Pakistan 416); Sh. Riazuddin v. Aqilour Rehman Siddiqui (PLD 1993 SC 76); and Human Rights Case No,1 of 1992 and others (1993 SCMR 2001).

5. Added to the above there are qualifications for membership of Majlis-eShoora (Parliament) and a person shall not be qualified to be elected or chosen as such member unless, per clause (d) of Article 62 of the Constitution, he is of good character and is not Commonly known as one who violates the Islamic Injunctions, under clause (e) thereof unless he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins, and, pursuant to clause (1) therein, unless he is sagacious, righteous, non-profligate, honest and Ameen, in the case of non-Muslims the postulates under Article 62(d) and (e) being softened to only having "good moral reputation". Article 63 of the Constitution, in turn, spells out same disqualifications. It is true that these are qualifications and disqualifications for being elected or chosen as member of Majlis-e-Shoora (Parliament), and by virtue of Article 113 equally as a member of a Provincial Assembly, but there is no reason why the corresponding virtues, mutatis mutandis and so far as adequately extendable, are not sought amongst public representatives, offering themselves for being inducted in other elected or representative bodies. Legislative background clearly shows that such intendment, per section 21(1)(f) of the Punjab Local Government Ordinance, 1979 was duly codified. The only question is whether the substitute of section 12(2) in the Representation of the People Act, 1976 co-related to section 21(1)(f) of the Punjab Local Government Ordinance, 1979, having been brought about through the unavoidable but transitional artifice of an Ordinance (CVII of 1996), introduced by the Caretaker Government, having apparently run out by efflux. Articles 62 and 63 of the Constitution read with other provisions thereof, can still be invoked for election to legislative bodies, and thus, by virtue of section 21 (Dm for those of local bodies. This, in turn, throws up the further question whether 'the Legislature could have designedly allowed the salutary legislation to lapse, without introducing countervailing measures. There is a presumption that the Legislature knows and is cognizant of all the law on a subject. It is in this perspective that the current legal position is to be viewed and approached. It seems to us, and we 'are inclined to inter similar awareness to the legislative entities, that there is nothing in law, which precludes those, who are entrusted with the job of conducting elections to public offices, including those for various local bodies, from taking a cue from the Constitution and ensuring that the fundamentals of the Constitution, as distinguished from the technicalities in the lapsed version of section 12(2) (ibid), are not overlooked in the matter of candidates opting to seek elected offices, essentially for the Legislatures, and, by cross-reference to section 21(1)(f) (supra) to local bodies. This arises from the scheme of the Constitution itself. The sources of the stream of legislation be they national, provincial or local have to be kept clean. On this criterion the election functionaries may have acted neither irrelevantly nor erroneously.

Beyond this, at the level of the High Court, the relief being discretionary, power did vest in the learned Judge to decline the relief sought. As it is salus populi est supremea lex (Regard for public welfare is the supreme law).

6. On the factual plane, in order to make assurance doubly sure, we asked the learned counsel for the petitioner to state as to how the decree suffered by the petitioner could not result in the petitioner being dubbed as a bank defaulter and thus not qualifying on the high pedestal of Articles 62, 63 etc. Of the Constitution. The learned counsel urged that it was for no fault of the petitioner that the Berliner Bank A.G. Did not remit the sale price of the goods to its Pakistani counterpart, the Bank Al-Habib Ltd., from whom, he stated, a matching loan in the way of Export Re-finance had been taken. This was hardly any argument. Besides, we have noted that the petitioner, for full one year, did not seek recall of the exparte decree. There is also an allegation that the partnership, the dues of which are claimed by the creditor bank, has since ceased to be in existence, begging the obvious question that the liability arose on a date and time when such firm did in fact exist. A further opportunity was provided to the petitioner when we asked him to deposit the bank dues even now, enabling us to consider declaring him eligible for the election even at this level of the proceedings. In answer, it was stated that due security in the shape of immovable property had already been provided, regarding which we asked the learned counsel to arrange for a buyer within the next few days, because the election is shortly due, so that we could require the bank to effect sale of the security in favour of such buyer against payment of the dues. Such also was not acceptable.

7. In the circumstances, we are satisfied that the learned Judge in the. High Court passed a perfectly just and lawful order, which does not call for any interference. The petition is dismissed.