HIGH COURT OF SINDH CIRCUIT COURT, HYDERABAD

Before:

Mr. Justice Khadim Hussain Tunio

Mr. Justice Zulfiqar Ali Sangi

C.P No. D-2495 of 2022

Petitioner(s): Syed Samar Hassan Shah son of Syed Zia Abbas Shah

Respondents: 1. Election Commission of Pakistan

2. Chief Election Commission Sindh at Karachi

3. District Returning Officer, Tando Allahyar

4. District Judge/App: Authority, Tando Allahyar

5. Returning Officer 2 M.C, Tando Allahyar

6. Maqbool Hussain son of Muhammad Daood

C.P No. D-2528 of 2022

Petitioner(s): Syed Samar Hassan Shah son of Syed Zia Abbas Shah

Respondents: 1. District Returning Officer, Tando Allahyar

2. Returning Officer 2 M.C, Tando Allahyar

3. District Judge/App: Authority, Tando Allahyar

4. Jameel Ahmed son of Allahwarayo

Mr. Imdad Ali R. Unar, advocate for petitioner.

Mr. Ashfaque Nabi Qazi, Asst. Attorney General Pakistan

Mr. Zaheer Abbas, Law Officer Election Commission of Pakistan.

Mr. Allah Bachayo Soomro, Addl. A.G Sindh

Date of hearing: 14.07.2022

Date of decision: 19.07.2022

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KHADIM HUSSAIN TUNIO, J- By this common order, we intend to dispose of both captioned constitutional petitions as the same involve an identical question of law agitated by the petitioner against the orders of District Judge/Appellate Authority Tando Allahyar dated 25.06.2022.

2. As per record, the petitioner filed his nomination papers to contest for the elections of member of Ward No.1 and 2, Municipal Committee Tando Allahyar and the same nomination papers for the two seats were accepted by the Returning Officer Municipal Committee Tando Allahyar vide separate orders dated 19.06.2022, however the orders were challenged by respondent No.4 in C.P No.D-2528 of 2022 and respondent No.6 in C.P No.D-2495 of 2022 in Election Appeal No. 48 of 2022 and Election Appeal No. 58 of 2022 whereby the Appellate Authority Tando Allahyar set aside the orders of the Returning Officer and rejected the nomination papers of the petitioner Syed Samar Hassan Shah on the ground that he had not attained the age of 21 by the last date of filing of the nomination papers as required under S. 35(1)(b) of the Sindh Local Government Act 2013.

3. Learned counsel for the petitioner contended that the appeal before the Appellate Authority Tando Allahyar was a continuation of the original proceedings and as such by then the petitioner had attained the age of 21 and could contest in the elections; that the returned candidate was to take oath in the month of August and by then he would have attained the required age. In support of his contentions, he has cited the case law reported as Ali Gohar Khan Mahar v Election Commission of Pakistan (2014 CLC 776), Muhammad Raza Hayat Hiraj v The Election Commission of Pakistan (2015 SCMR 233), 1992 PSC 651, 2004 PSC 651, 1989 PSC 338, 2004 SBLR Sindh 1669 and 2008 SBLR Sindh 902.

4. The learned Additional A.G Sindh and Assistant Attorney General Pakistan conceded to the fact that the appeal is a continuation of the original proceedings; however, the learned Law Officer ECP supported the impugned orders passed by the Appellate Authority Tando Allahyar.

5. The petitioner, at the time of scrutiny was required to declare that he was qualified to be elected and it was the duty of the Returning Officer to verify the same. As admitted by the petitioner’s counsel, the petitioner by the last date of filing of the nomination papers being 15.06.2022 as per the schedule of Phase-II Local Bodies Elections published by the Election Commission of Pakistan was 20 years, 11 months and 23 days old, requiring 7 more days before he could contest in the elections which he attained on 22.06.2022 which is when the appeals were filed. The provisions of S.35(1)(b) of the S.L.G.A 2013 are clear, in that they require for a candidate to be at least 21 by the time of last date of filing of nomination papers which is reproduced herein below for ease of reference:-

35. Qualification for candidates as members.- (1) A person shall not be qualified to be elected or chosen as a member of the Council unless –

(b) he is not less than twenty one years of age on the last day fixed for filing the nomination papers; and

6. Where the legislature has provided a clear procedure for qualification and/or disqualification of a candidate and with that a time frame to when the same shall apply, it is to be followed in its letter and spirit. Similar observations were taken by this Court at its Sukkur Bench in CP No. D-374 of 2016 and CP No. D-347 of 2016 and the case of Muhammad Ashraf v Muhammad Aslam Shad and others (2016 YLR 1625). No valid contention was raised by the counsel for the petitioner regarding the age of the petitioner being incorrectly noted, rather the same was admitted. S. 35(1)(b) of the SLGA 2013 in clear terms requires that a candidate be at least twenty one years by the final date of filing of nomination papers (15.06.2022) which the petitioner failed to comply with. The argument that an appeal is a continuation of original proceedings is also baseless since the Returning Officer should not have accepted the nomination papers of the petitioner to begin with and should have disqualified him from contesting elections due to him being under-age, but he did not do so while ignoring the mandatory provisions of S. 35(1)(b) of the SLGA 2013. It is also a noteworthy aspect of the case that the B-Form of the petitioner issued by the NADRA on 15.02.2018 which was filed with the objections of the interveners/respondents before the Appellate Authority (pg-53 in CPD-2528 and pg-65 in CPD-2495) shows the date of birth of the petitioner to be 23.06.2003 while his Birth Certificate issued on 30.08.2019 shows his date of birth to be 23.06.2001, a difference of two whole years. The passport provided by the petitioner was also issued on 01.12.2020 whereas the CNIC of the petitioner (pg-47 of CPD-2528 and pg-63 of CPD-2495) which was produced with the objections of the interveners before the Appellate Authority shows his date of birth as 23.06.2001 and was issued in the year 2020. The earliest acceptable entry of the date of birth of the petitioner is in the B-Form which was issued in 2018. As such, the petitioner’s own version regarding his age being 21 by the time he takes oath or even at the time of appeal is contradicted by these documents.

7. Not only this, since the petitioner provided two different date of births, the decision of the Appellate Authority Tando Allahyar becomes a finding of fact which cannot be disturbed by this Court while exercising its Constitutional Jurisdiction; Shaukat Ali v Election Tribunal and others (1993 CLC 2428) wherein it was observed that:-

It is not the case of the petitioner that the Election Tribunal was not competent to determine the correct age of the petitioner notwithstanding any entries made in the electoral rolls, on the basis of material available before it. There is also no provision either in the Punjab Local Government Ordinance (No.VI of 1979) or in the Punjab Local Councils (Election) Rules, 1979, to the effect that the entries in the electoral rolls are final and binding on the Election Tribunal. The provisions of rule 13 of the Punjab Local Councils (Election) Rules, 1979, merely empower the Returning Officer to scrutinize and inter alia determine that the candidate is not subject to any disqualification for being elected as a member. He is, therefore empowered to determine the age of the candidate as per entries‑ in the electoral rolls. Clearly, the Election Tribunal is competent to determine the objection raised before it regarding age of the returned candidate in an election petition. Here both the parties produced their respective oral and documentary evidence. The Tribunal, after appreciating the evidence on record, recorded a finding of fact that the petitioner was under‑age at the time of filing the nomination papers. Question of believing and disbelieving one set of evidence or the other was exclusive function of Election Tribunal and High Court in exercise of its Constitutional jurisdiction, could not disturb a finding of fact recorded by Tribunal unless same suffered from any misreading of material evidence or disregard of any provision of law.

8. It has also been the consistent view of the Hon’ble Apex Court that superior Courts, while exercising constitutional jurisdiction could not engage in factual controversies as observed in the case of Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Intizar Ali and others (2022 SCMR 472).

9. For the foregoing reasons, we are of the considered view that the learned Appellate Authority rightly set-aside the orders of the Returning Officer dated 19.06.2022 and rejected the nomination papers of the petitioner, disqualifying him from contesting in Phase-II Local Body Elections vide impugned orders dated 25.06.2022 which are hereby upheld.

Consequently, instant constitutional petitions are dismissed being meritless.

JUDGE