C.P No. D – 3685 of 2015

Date	Order with signature of Judge

For Katcha Peshi.

28-10-2015

Mr. Bakhshan Khan Mahar, advocate for the petitioner.

Mr. Shafique Ahmad Laghari, advocate for respondent No.4.

Mr. Haji Shamsuddin Rajper, advocate for respondent No.3.

Mr. Zulifqar Ali Sangi, learned A.A.G.

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

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Through instant petition, the petitioner has challenged the order of acceptance of nomination paper of respondent No.3 by the Returning Officer on the ground that respondent No.3 is the defaulter of House Building Finance, Corporation in the sum of Rs.915,600.29.

2. Learned counsel for the petitioner submits that petitioner is the contesting candidate from the same Town Committee, however, previously he did not know the fact that respondent No.3 is defaulter of House Building Finance Corporation and since he came to know about such fact he filed the instant petition and has prayed that the defaulter cannot be permitted to contest the election.

3. Notices of the instant petition were issued to the respondents, pursuant to which Mr. Haji Shamsuddin Rajper, advocate has shown appearance and filed vakalatnama on behalf of respondent No.3 and has raised objection with regard to maintainability of instant petition on the grounds that no objection whatsoever was raised either by the petitioner or from any corner with regard to eligibility of respondent No.3, therefore, the Returning Officer has rightly accepted the nomination form of respondent No.3 as all the codal formalities were completed. It is further contended by the learned counsel for the respondent No.3 that the petitioner is the contesting candidate, who did not bring such fact to the notice of the Returning Officer, nor he has availed the remedy for by way of filing an appeal before the Appellate Authority by raising such objection and has directly approached this Court by raising certain allegations of default of the respondent No.3, who is seriously disputing this allegation. It is further contended by the learned counsel for the respondent No.3 that the respondent No.3 has not defaulted in respect of any loan. Per learned counsel, no material whatsoever has been brought or confronted to the respondent No.3 by the petitioner or the official respondents nor any opportunity had been provided so that the respondent No.3 could have explained his position with regard to allegations of default. It is further contended that since the elections are scheduled on 31^st October, 2015, therefore, the petitioner has filed the instant petition with malafide intention so that the respondent No.3 may be deprived of his right of franchise and contesting the elections in accordance with law and relevant rules. He has, therefore, prayed that instant petition may be dismissed.

4. Learned D.A.G and learned A.A.G have also supported the contentions of learned counsel for the respondent No.3 and submit that since the petitioner himself is contesting candidate from the same Town Committee, was neither vigilant nor raised any objection before the Returning Officer that nomination form of the respondent No.3, as per law, within the prescribed period. He has not filed any appeal before the Appellate Authority as provided under the law and instant petition has been filed by raising the disputed facts for rejection of the nomination form of the respondent No.3, which may not be rejected by this Court at this stage, and further submit that instant petition may be dismissed.

5. We have heard the arguments of learned counsel for the parties, perused the record with their assistance.

6. Admittedly, the petitioner did not file any objection before the Returning Officer at the time of scrutiny, nor filed any appeal before the Appellate Authority against order of acceptance of nomination form by Returning Officer, as provided under the law, whereas, it appears, that the petitioner who is also contesting candidate from the same Town Committee, has filed the instant petition by raising allegations of default in payment of House Building Finance Corporation without any material. Nothing has been brought on record by petitioner in support of his contention regarding default by respondent. We are not inclined to examine disputed facts raised by the petitioner for the first time through instant petitioner, without ever providing opportunity to the respondent to explain his position in this regard. Whereas, elections are scheduled on 31^st October, 2015, and will not be appropriate to de-franchise the respondent No.3 or to deprive him from the right of contesting elections at this stage on the basis of mere allegations.

7. Accordingly, we do not find any substance in the instant petition which is hereby dismissed in limine. However, the petitioner is at liberty to agitate such grievance before the Election Commission or The Election Tribunal in accordance with law.

Judge

Abdul Salam/P.A