C.P.No.D-3647 of 2015

For Katcha Peshi

15.10.2015

Mr. Shafqat Rahim Rajput Advocate along with petitioner.

Mr. A.M.Mobeen Khan Advocate along with respondent No.5.

Mian Mumtaz Rabbani, Deputy Attorney General.

Mr. Zulfiqar Ali Sangi, Assistant Advocate General.

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Through instant petition, the petitioner has impugned the order passed by the Returning Officer of UC-1 to 5, SMC, Sukkur, whereby the Nomination of respondent No.5 was accepted, whereafter, an appeal No.77/2015 was filed by the petitioner before District & Sessions Judge, Sukkur, who vide order dated 30.09.2015 has dismissed the same.

Learned counsel for the petitioner submits that since the Nomination Paper furnished by the respondent No.5 did not disclose the true details of the assets of the respondent No.5, whereas, he is also defaulter in respect of electricity dues, therefore, his Nomination was liable to be dismissed.

Learned counsel for the petitioner has referred to Extract from Property Register Card available at page 49 annexure “H” and submits that name of respondent No.5 Muhammad Fareed has been mentioned as one of the co-sharers out of 12 co-owners of property bearing No.1376/8, which property has not been shown in the assets declaration by respondent No.5. Learned counsel has also referred to a Payment of Arrears Certificate dated 30.09.2015 issued by SEPCO showing an amount of Rs.49,851-00 as outstanding arrears in respect of property No.B-831/1/12 Pehloo Street, Sukkur. It has been prayed that impugned order passed by the Returning Officer as well as the Appellate Authority may be set aside and the Nomination of the respondent No.5 may be rejected.

Notices were issued, pursuant to which respondent No.5 has shown appearance along with his counsel who has filed comments along with annexures copy whereof has been supplied to learned counsel for the petitioner.

It has been contended by learned counsel for the respondent No.5 that Nomination of respondent No.5 was complete in all respects, whereas, no concealment has been made by the respondent No.5. It is further contended by the learned counsel for the respondent that no objection whatsoever was filed on the Nomination of the respondent No.5 by anyone including the petitioner, whereafter, scrutiny was made on 17.09.2015 and the Nomination of the respondent No.5 was accepted as per law. However, the petitioner, who is also contesting from the same UC, filed a frivolous appeal before the Appellate Authority wherein Extract of property No.B-1376/8 has been attached for the first time, wherein the name of respondent No.5 is reflected as one out of 12 co-owners of the property. According to learned counsel for the respondent No.5, the respondent is no more owner or co-sharer in above property, as respondent had already gifted his meager share under Muhammadan Law to his nephew in the year 1993 along with possession. As regards the allegation of outstanding arrears as reflected in the letter attached by the petition as annexure “E” at page 43, per learned counsel, it does not relate to the respondent No.5, as neither the address of such property is the same nor it is in the name of respondent No.5 as it is issued in the name of Younis Ali, Yousuf Ali. Moreover, according to learned counsel, it does not reflect as to whether such amount of arrears is for a period of more than six months. It has been prayed that disputed facts have been decided through concurrent findings of the forums below which cannot otherwise, be agitated before this Court in its constitutional jurisdiction under Article 199 of the Constitution, hence, requests that instant petition may be dismissed with cost.

Learned Assistant Advocate General submits that no proof regarding gift of the share of respondent No.5 is available on record to support the contention of respondent No.5, whereas, as per Extract produced by the petitioner, his name is still mentioned in the record of title.

We have heard learned counsel for the parties as well as learned Assistant Advocate General and perused the record.

From perusal of record, it appears that there is no objection on record with regard to Nomination of the respondent No.5 except his purported share in property No.1376/8, however, no objection in this regard was raised by the petitioner at the time of scrutiny which was made on 17.09.2015,whenreportedly, the Nomination Paper of petitioner was also accepted. However, the petitioner raised such objection by filing an appeal, and for the first time such Extract from Property Register Card, which was obtained on 21.09.2015, was filed by the petitioner, which reflects that the name of respondent No.5 as one of the co-sharers out of 12 co-owners of said property. It is pertinent to note that on the prescribed time for the purpose of filing Nomination and scrutiny of Nomination Papers, no valid objection with regard to Nomination Paper of the respondent No.5 was filed by anyone, whereafter, the Form was accepted. The document placed on record at the time of filing appeal also reflects that it was obtained on 21.09.2015 after the cutoff date meant for the purposes of scrutiny. It appears that if such objection would have been raised at the relevant point of time, the Returning Officer would have confronted the respondent No.5 with such objection, who could have been given an opportunity to explain his position in terms of rule 18 (3) Sindh Local Council (Election) Rules, 2015 which in the instant matter, has not been given to the respondent No.5. Since, the respondent No.5, for the first time, was confronted with regard to his share before the appellate authority, who confronted him with such objection in response he has categorically stated that he has already gifted his minor share in such property to his nephew along with possession under Muhammadan Law. Even otherwise, there seems no valid reason whereby the respondent No.5 would withhold such information regarding his share in the aforesaid property. Accordingly, we are of the opinion that there seems no mala fideson the part of respondent No.5 while not disclosing his 1/12^th share in said property. The Appellate Authority after scrutiny of entire facts and the documents, has already passed appropriate order after providing an opportunity of being heard, which otherwise does not require any interference by this Court, whereas, the facts which are being disputed now before this Court cannot be examined by this Court in its constitutional jurisdiction. Accordingly, we do not find any substance in the instant petition, which is hereby dismissed.

JUDGE

N.M.