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Writ Petition No. 204 of 1985, decided on 29th October, 1985.

‑‑ Art. 10(2) ‑ Nomination papers for National and Provincial Assemblies of Senator elect rejected on basis of person's being shareholder of an establishment. running a Contract with Government Senator elect disposing of shares before filing nomination papers for Senate‑Orders of rejection of nomination papers for National and Provincial Assemblies, held, were relevant only for limited purpose of his qualification to contest election to Assemblies having no bearing on election to Senate‑Objector had to establish through legal evidence that on date of filing nomination papers to Senate Senator elect was shareholder of establishment having a contract with Government.

‑‑ Art. 10(2)‑Transfer of shares ‑ Effect ‑ Entries in relevant register of transfer of shares a documentary evidence‑Senator elect at time of filing of nomination papers to Senate, being no longer shareholder of establishment, held, was not hit by disqualifications provided in Art. 10(2) of Order 5 of 1977.

‑‑ S. 2(iv)‑Word 'candidate' would denote "a person proposed as a candidate for election as a member"‑Such person, held. would be a candidate proposed for election but would not be deemed to be a candidate who had not been elected‑Expression, a candidate who has not been elected‑‑Meaning and scope‑Candidate would disqualify to be elected or chosen as member of Senate who in general election, had not been favoured with highest number of votes polled in constituency from which such candidate contested election to National/Provincial Assembly.

Hidayatullah Khan for Petitioner.

S. M. Zaffar assisted by Q. Muhammad Anwar for Respondent No. 1.

Raze Ahmad Khan, Dy. A.‑G. for Respondents Nos. 2 and 3.

Date of hearing : 29th October, 1985.

‑Salim Saifullah Khan, respondent No. 1 herein, was elected as a member to the Senate from the Province of N.‑W. F, P, as a result of uncontested election. He was elected and declared as such by respondent No. 2 viz Provincial Election Commission N.‑W. F. P, Mr. Naseer Muhammad Khan son of Ghulam Qadir resident ofNorth Sahib Dad, District Bannu has through this Constitutional Petition challenged his election to the Senate and his continuation as such to hold office and his sitting in the house inter alia on the following grounds :‑

(i) that he was a shareholder in a private limited Company running a contract with the Provincial

Government, therefore, he was dis. qualified to contest the election to the Senate;

(ii) that respondent No. 1 being declared disqualified to contest the election for the National and Provincial Assembly was debarred under clause (4) of Article 10 of President's Order No. 5 of 1977 as amended by President's Order No. 17 of 1985.

(iii) that he being disqualified to be elected to the Senate the acceptance of his nomination papers by respondent No. 2 as valid and publication of his name in the list of returned candidates was void and without lawful authority;

(iv) that the action and orders of respondents Nos, 2 and 3 namely Provincial Election Commissioner N.‑W. F. P. and Election Commission of Pakistan Islamabad respective]), being void and without authority respondent No. 1 be required to show that under what authority of law he holds or purports to hold a public office of member of Senate from the Province of N.‑W. F. P.

Prayer has also been made that after declaring the election of respondent No. I to the Senate void and without lawful authority respondents Nos. 2 and 3 be directed to hold fresh election to the seat so vacated by respondent No. I in accordance with law.

2. The narration of facts given in the writ petition briefly stated are that respondent No. I was a candidate for election to the National Assembly for Constituency No. N.A, 20 Bannu 2 held in February, 1985 under the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. He also filed his nomination papers for election to the provincial Assembly of N .‑W. F. p. from Constituency No. PF‑63 Bannu 5 held in February, 1985 under the said Order. Objections were raised to his nomination papers at the time of scrutiny before the Returning Officer that he was a shareholder in a private limited Company namely Messers N,A,S.A. Construction Limited having a running contract with the Government of N.‑W. F. P. for construction of double carriage way from Peshawar to Nowshera. The Returning Officer on the basis of evidence produced before hire and in the light of the arguments addressed by the learned counsel representing the parties held that the candidate was a shareholder in the Company which had a running contract with the Government of N.‑W. F. P. vide his order dated 23‑1‑1985 rejected his nomination papers. On the same ground his nomination paper to contest election to the Provincial Assembly was also rejected. Both these orders of rejection of his nomination papers by the respective Returning Officers to the National and Provincial Assemblies were challenged in appeal before the Tribunal appointed therefore. However, the learned Tribunal before whom it was argued that the candidate has transferred his share in the Company before, the relevant date did not accept the same and rejected both his appeal. vide his order, dated 27th January, 1985. The orders of the learned Tribunal were challenged in Writ Petitions in this Court but after the elections were held the same were withdrawn as having become infructious. It is alleged that while filing his nomination papers for election to the Senate from the Province of N.‑W. F. P. before respondent No. 2 on 9‑3‑19155 the fact of his being disqualified to, contest the election was not brought by respondent No. 1 to the notice of respondent No. 2. However, petitioner made a written application before ,respondent No. 2 raising objection to his nomination papers filed on the ground that being a shareholder in the Company he was disqualified under clause (2) of Article 10 of the Houses of Parliament and Provincial Assemblies (Election) Order, as earlier held by the Returning Officers and the Tribunal. It was alleged that respondent No. 2 did not consider at all the petitioner's objection at the time of scrutiny. It was further alleged that in accordance with President's Order No. 17 of 1985, whereby amendment made in Article 10 of the Election Order No. 5 of 1977 respondent No. I was disqualified from being elected as a member of the Senate as he being a candidate for election to the National/Provincial Assembly was not elected to the Assembly.

3. Respondent No. 1 in his written statement filed in this Court raised several legal, factual and technical objections to the maintainability of this writ petition. On facts of the case the rejection of his nomination papers by the Returning Officer to contest the National and Provincial Assemblies Elections were not controverted. However, he categorically denied to be a partner in the Company and stated to have transferred all his shares in the Company in favour of one Nisar Muhammad Khan of village Sheikhan before he filed his nomination papers for contesting the election. In support of his plea he has filed certain documents. Similarly in the written statement filed on behalf of defendants Nos. 2 and 3 through Mr. Raza A. Khan, Deputy Attorney‑General Government of Pakistan, apart from raising several legal objections enumerated in para. 1 of his written statement as preliminaries challenged the locus standi of the petitioner to raise objections to the nomination papers filed by respondent N6. 1 to contest the election to the senate on the ground that petitioner was not a candidate proposer and seconder in the affair. On facts of the case election of respondent No. 1 and declaration made of his being validly nominated as returned candidate to the Senate was stated to be valid and in accordance with law,

4. During the course of arguments both the learned counsel for the parties confined their arguments to the following two propositions of law relevant from the disposal of this petition; firstly, whether respondent No. 1 was a shareholder in N.A.S.A. Construction Limited at the time of filing of his nomination papers for election to the Senate and secondly, whether respondent No. 1 was disqualified under clause (4) of Article 10 of President's (Post‑Proclamation) Order No. 5 of 1977 for his having beet' declared disqualified to contest election to the National and Provincial Assemblies.

5. In support of his contention petitioner has filed alongwith this petition a certified copy of the list of the persons holding share in N.A.S.A. Construction on 29‑9‑1984, orders of the Returning officers dated 22‑1‑1985 and 24‑1‑1985 rejecting his nomination papers filed for contesting election to the National and Provincial Assemblies respectively and the orders of the Tribunal (Appellate Authority under section 14(5) of the Representation of the Peoples Act, 1976) dated 24‑1‑1985 and 27‑1‑1985 rejecting respondent No. 1's appeal against the orders of rejection of his nomination papers by the Returning Officers. Making these the basis the learned counsel argued that respon dent No. 1 carried his disqualification to contest the election to the Senate in view of clause (4) of Article 10 of President's (Post‑Proclamation) Order No. 5 of 1977. .According to the learned counsel respondent No. 1 would be deemed to have not been elected in the election to the aforemen tioned assemblies on the rejection of his nomination papers as candidate mentioned in the disqualification clause covered the persons who have filed their nomination papers as defined under section 2 of the Order irrespective of the fact whether his nomination papers stood rejected on the ground of disqualification given thereunder or they are declared having not been elected after due contest. These contentions, however, were controverted by the learned counsel appealing for the respondents in their arguments. It was argued that for the determination of qualification or disqualification of a candidate to contest the election the relevant date would be the date of scrutiny of the nomination papers. Therefore, the orders of the Returning Officers and those of the learned Tribunal in appeals have got no relevancy in determining the qualification or disqualification of respondent No. 1 for his contesting the election to the Senate. It was further argued that the documents. annexed with the petition in proof of respondent No. 1 holding share in N.A.S.A. Construction is not denied, however, the petitioner has made a material concealment of fact by withholding the list of shareholders of N.A.S.A. Construction at the relevant time, i.e. the date of scrutiny of the nomination papers for election to the Senate. The learned counsel referred to the documents annexed with his written statement showing the transfer of respondent No. 1's share in the N.A.S.A. Construction Limited before the relevant date. It was further argued that the provision of clause (4) of Article 10 of President's (Post‑Proclamation) Order No. 5 of 1977 was not attracted to the case of respondent No. 1 as he was not defeated in the election to the National or Provincial Assembly.

6. After hearing the learned counsel for the parties at length we have not been impressed by the contentions raised by the learned counsel for the petitioner. There is no denial of the fact that the nomination papers of respondent 1 to contest election to the National and Provincial Assemble were rejected by the Returning Officers and that his appeals filed against the said orders of rejection were dismissed by the learned Tribunal. However, the findings given in these orders are relevant only for the limited purpose of his qualification to contest election to the National and Provincial Assemblies and have got no bearing on his election to the Senate. In order to succeed it was for the petitioner to have established through legal evidence that on the date of filing his nomination paper to the Senate respondent No. 1 was a shareholder in the N. A. S. A. Construction and that it had a running contract with the Government of N.‑W. F. P. The entire evidence produced before us in this respect is the list of the persons owning share in the N. A. S. A. Construction Limited on 29‑9‑1984, the date not relevant for consideration of the petitioner's qualification to contest the election to the Senate. Even in the order of the learned Tribunal rejecting respondent's appeals referred to above there is mention of his having transferred all his shares in the N. A . S. A. Construction in favour of Muhammad Nisar Khan‑‑however, the same was not accepted as it had not been brought to the notice of the Returning Officers well within time as the respondent had in his written re‑joinder at the time of scrutiny of his nomination papers taken the plea that he was neither a Director or having any office of pro& at the time of filing of his nomination papers. Confronted with the situation the subsequent stand taken by respondent No.1 was held to be a mere paper work to overcome the disability. There is however sufficient documentary evidence placed on the file before us that respondent No.1 had validly transferred his shares in the N. A. S. A. Construction in favour of Muhammad Nisar Khan of village Sheikhan, District Peshawar in accordance with the provision or section 76 of the Companies Ordinance 1984 as is evident from the copy of the letter dated 12‑1‑1985 issued by Chaudhery Maqbool Ahmad Secretary addressed to Mr. Muhammad Nisar Khan, the transferee which further finds place in the extraordinary resolution of N. A. S. A. Construction on Form VIII dated 23‑I‑1985 approving the transfer. Thereafter, entries were made in the relevant register of transfer of share. Keeping in view the aforementioned documentary evidence we have no hesitation in holding that at the time of filing of nomination paper to the Senate respondent No. 1 was having no share in N. A. S. A. Construction and the shares which he earlier held stood transferred in the name of Muhammad Nisar Khan.

7. Next we would like to deal with the President's Order No. 17 of 1985 published in the Gazette of Pakistan Extraordinary, dated 7th March, 1985 by amending Article 10 of President's Order No. 5 of 1977 by addition of clause (4) after clause (3) which is as under :‑

"A person shall be disqualified from being elected or chosen as and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the election held under this order, be has not been elected to such assembly."

There is no doubt that respondent No. 1 was a candidate for election to the National/Provincial Assembly at the election held under the Order but on the rejection of his nomination papers he did not contest the election. We are unable to agree to the interpretation put forward by the learned counsel for the petitioner that a candidate whose nomination papers stands rejected for one reason or the other would be deemed to have not been elected to such assemblies for attracting disability created by the aforementioned added provision. The word 'candidate' as, defined under clause (iv) of section 2 of the Representation of the Peoples Act 1976 means "a person proposed as a candidate for election as a member" hence it tray be said that respondent No. 1 was a candidate proposed for election as member to the National or Provincial Assemblies but would not mean that he was a candidate who has not been elected to such Assembly. For "a candidate who has not been elected" would be a person who has gone through all exercises provided in Chapter IV of the Act starting from issuance of Notification under section 11 of the Act, filing of nomination papers, scrutiny of his nomination papers, his name in the publication of list of candidates validly nominated, allocation of symbols and finally declaration of his result under section 42 of the Act. In other words, the candidate must have contested the election after his nomination papers having been found valid and his having not withdrawn his candidature. The intention of the law maker which is clear from bar reading of the aforementioned provision is to disqualify a candidate to be elected or chosen as a member of the Senate who in the general election has not been favoured with highest number of votes polled in the constituency from which he contested the election to the National Provincial Assembly.

In this view of the matter and for the reasons stated above, we find no merit in this writ petition which is dismissed. Parties are, however, left to bear their own costs.

A. A. Petition dismissed.

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