ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Constt: Petition No.D-        3938   of 2015

DATE                         ORDER WITH SIGNATURE OF HON’BLE JUDGE

1-     For orders on office objection at flag ‘A’

2-     For Katcha Peshi.

 

28th. October, 2015.

 

                        Mr. J.K Jarwar, Advocate for petitioner.

                        M/s  Noor Hassan Malik & Zulfiqar Ali Sangi,

Asstt: A.G.

 

                        Mr. Mian Mumtaz Rabbani, D.A.G.

 

                        Through instant petition, petitioner has impugned order passed by Returning Officer, UC-36 Khabri Bhitt, Taluka Salehpat, whereby the nomination form of respondent No.5 for the Seat of General Councilor in respect of Ward No.2 was accepted, on the ground that the respondent No.5 has concealed the real facts from Returning Officer regarding some dues against him, therefore, on the basis of Section 36 of Sindh Local Council Elections Rules, 2013, he is not eligible to contest elections.

                        Notices were issued to respondents, pursuant to which learned A.A.G and  D.A.G have shown appearances and raised objection with regard to maintainability of instant petition on the ground that neither any objection was raised before the Returning Officer at the time of scrutiny of nomination form, nor any appeal was filed by the petitioner, who is also a contesting candidate from same Union Council, however, the petitioner has approached this Court directly by invoking the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, wherein, it has been alleged that there are some dues outstanding against the respondent No.5, therefore, he cannot contest elections from Ward No.2 of UC-36 Khabri Bhitt, Taluka Salehpat, District Sukkur. It has been contended that such fact is not borne on record, whereas, petitioner with malafide intention, has raised factual controversy, which cannot be resolved by this Court while exercising its jurisdiction under Article 199 of the Constitution.

                        We have heard the learned Counsel for petitioner and learned Asstt: A.G as well as D.A.G and perused the record, which reflects that no objection whatsoever was raised by the petitioner or any one before the Returning Officer at the time of scrutiny of the nomination form of respondent No.5, whereas no appeal has been filed by petitioner in respect of such acceptance of nomination form by the Returning Officer within specified period as per law. Petitioner has directly approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by alleging that some dues are outstanding against the respondent No.5, therefore, he is not entitled to contest elections. Since the respondent No.5 has not been confronted with such allegations at the relevant time before the relevant forum, therefore, we are not inclined to entertain such allegations at this stage, as it involves disputed facts and evidence, hence cannot be decided under constitutional jurisdiction. Moreover, elections are scheduled on 31st. October, 2015 and we are not inclined to disfranchise the respondent No.5 or to deprive him from the right of contesting elections at this stage on the basis of mere allegations. Accordingly, instant petition is dismissed in limine, however with no order as to costs.

 

            JUDGE

JUDGE

A.R.BROHI