' MAULVI ANWARUL HAQ, J.----The petitioner and respondent No,5 on the one hand and respondents Nos.3 and 4 on the other filed nomination papers for contesting elections to the seats of Nazim and Naib Nazim in UC-80/Burewala, District Vehari. The petitioner filed objections against the nomination papers filed by respondents Nos.4 and 5. According to him respondent No,4 was not qualified to contest said elections as he was defaulter of the respondent No,6/Bank. Such an information was also filed by the said Bank with the learned Returning Officer. A default in the payment of bill of PTCL was also alleged but the same is no longer relevant for these proceedings as the said amount was deposited. The objection found favour with the Returning Officer who rejected the nomination papers of respondents Nos.3 and 4 vide order dated 24-7-2005. The appeal filed by the respondents Nos.3 and 4 was allowed by the learned D.R.O., Vehari vide order dated 26-7-2005 who accepted the appeal and consequently the nomination papers.
2. This writ petition was filed in this Court on 29-7-2005 and was admitted to hearing and notices were issued. The respondents Nos.3 and 4 put in appearance on 9-9-2005 when some arguments were heard. These stand recorded in my order dated 9-9-2005 which may be read as a part hereof. The case was adjourned to today on the request of the learned counsel for the respondents Nos.3 and 4 namely Mr. Manzoor Ali Rana, Advocate. Today Mr. Abdul Sattar Goraya, Advocate took over and has addressed the Court for the said respondents. I may further note here that on the same day I summoned the record of the suit filed by the respondent No,6/Bank against, inter alia, the respondent No,4 which are also available today.
3. Learned counsel for the petitioners contends with reference to the case of "Muhammad Khalid Waseem and another v. Mansoor Akbar Kokab, District Judge/Election Tribunal, Narowal/Sialkot and 8 others (2002 YLR 2232) and Syed Riaz Hussain Gillani v. R.O. Halqa No,85. Union Counsel Lar, Tehsil and District Multan and 3 others (2001 YLR 971) to urge that upon failure of the respondent No,4 to pay the loan taken from respondent No,6/Bank later the suit was filed wherein an application was filed for grant of leave to defend which was refused and thereafter a decree was passed on 28-6-2000 and this decree remained unsatisfied. According to the learned counsel respondent No,4 stands adjudged to be wilful defaulter within the meaning of section 152(1)(j) of Punjab Local Government Ordinance, 2001 and his nomination papers could not have been accepted. Now Mr. Manzoor Ali Rana, Advocate, contended that in fact father of respondent No,4 had taken loan and liability devolved upon him and as such it cannot be said that the default is attributable to his person. However, when confronted with reference to the copy of plaint in the suit filed by respondent No,6 wherein liability was attributed to respondent No,4 along with his father, he sought time. Now Mr. Abdul Sattar Goraya, Advocate, has argued that it was through sheer inadvertence that the respondent No,4 could not mention the factum of said decree and further explained that he had in fact made some payments to the Bank on 25-7-2005 i.e, a day after rejection order passed by the learned R.O., before the DRO. However, primary reliance of the learned counsel is on the rule laid down in case of Ch. Nazir Ahmad and others v. Chief Election Commissioner and others (PLD 2002 SC 184) and Full Bench judgment of this Court dated 12-9- 2005 in Writ Petition No,15701 of 2005 (decided at the Principal Seat) to urge that the writ petition is not competent for the reason that during its pendency the election had taken place and his clients have been declared returned. Precise contention is that the matter should be taken to the competent Election Tribunal. Mian Arshad Latif, Advocate for the petitioner rejoins to urge that the said judgments are clearly distinguishable as the present writ petition stands filed in continuation of the scrutiny proceedings and has not been filed to question the result of election.
4. I have gone through the file of this W.P. As also the records of the suit filed by respondent No,6 against respondent No,4 and others with the assistance of the learned counsel for the parties. Now before I proceed further in the matter I may note here that the learned DRO proceeded to allow the appeal by observing as follows:-- "It is very generously admitted by the learned counsel for the respondents Nos.2 and 3 standing on the other side of the bar that Yasin Shafi candidate for Naib Nazim was never declared wilful defaulter or adjudged to be defaulter by the competent Court and as such cannot be declared as wilful defaulter."
' It has thus been sought to be argued that the impugned order of the DRO, Vehari is a consent order. However, to my mind nothing turns on the same. I find that respondent No,6 in its report/objection filed before the R.O. Has some how or the other not mentioned the factum of filing of the suit and passing of decree against respondent No,4. On the other hand it was stated that Shafi and Niamat Ali have died and responsibility to pay the outstanding dues lies with the legal heirs. Now it stands admitted at all hands that the suit was filed against respondent No,4 by the respondent No,6/Bank and was decreed by a Court of competent jurisdiction and that the decree remains unsatisfied and is still under execution. To my mind the said statement appears to be not only false but dishonest. Similarly the respondent No,4 was fully aware being a party to the (sic) till 20-12-2000. The execution proceedings are pending before the said learned Court.
6. Having thus examined the said records and in the absence of any denial or explanation being offered for non-payment of Bank dues despite adjudication of Court of competent jurisdiction and direction to the respondent No,4 and others to pay the same law laid down in the judgments relied upon by the learned counsel for the petitioner becomes fully attracted and by all means respondent No,4 is not qualified to contest the said election in view of the said provisions of section 152(1)(j) of the Punjab Local Government Ordinance, 2001.
7. Now coming to the said main contention of Mr. Abdul Sattar Goraya, Advocate, I have examined both judgments with his assistance. Now I find that in both the said cases writ petitions were filed in this Court after the completion of the election process and declaration of results and in both the said cases the petitioners were aggrieved of the process of counting of votes and prayer was made for recount. It was in the said background that the said rule, was laid down.
8. Now in the present case writ petition has been filed in continuation of process of scrutiny, the petitioners being aggrieved of the acceptance of the nomination papers of respondent No,4. In my humble opinion, in view of the findings that respondent No,4 was not qualified to contest election and that his papers were correctly rejected by the learned R.O., said rule laid down in the peculiar circumstances of the said judgment would not be applicable.
9. Writ Petition accordingly is allowed and the impugned order dated 26-7-2005 passed by the learned DRO, Vehari, accepting the nomination papers of respondents Nos.4 and 5 is declared to be without lawful authority and is set aside. Result would be that order passed by the learned R.O.
Rejecting the nomination papers of respondents Nos.4 and 5 on 24-7-2005 shall hold field. A copy of this order to be remitted to the learned DRO, Vehari. Records of the learned Judge Banking Court be remitted back immediately.