1. ' Through instant petition, the petitioners have impugned the order dated 30.09.2015 passed by the learned District and Sessions Judge/Appellate Authority Sukkur in Election Appeal No.66/2015 whereby an appeal filed by one Syed Abbas S/o Naseer Shah in respect of candidature of petitioners for the post of Chairman and Vice Chairman of U.C. No.25 Saeedabad Sukkur has been rejected on the grounds that petitioner Adnan S/o Shafi Muhammad is a defaulter in payment of water charges and against whom an F.I.R. No.156/2014 has also been registered Under Section 302 P.P.C. At P.S. "A" Section Sukkur.
2. ' It is inter alia contended by the learned counsel for the petitioners that the petitioners have filed their joint nomination form after completing all codel formalities for the Chairman and Vice Chairman in respect of U.C. No.25 Saeedabad, Sukkur whereas no objection whatsoever was filed in respect of candidature of the petitioners, and their nomination form was accepted by the Returning Officer after scrutiny. Per learned counsel, since no one came farward to contest the election for the aforesaid U.C., therefore, the petitioners were declared as returned candidates in accordance of Election Law/Rules. However, per learned counsel, respondent No.3 Syed Abbas directly approached before the learned District and Sessions Judge/Appellate Authority Sukkur by filing an appeal, wherein, it has been alleged that the petitioner Adnan is a defaulter to the tune of Rs.141,883/- in respect of form of water charges and is also involved in Crime No.156/2014, therefore, the Returning Officer was not justified to accept the nomination form of petitioner No.1 namely, Adnan. Per learned counsel, the petitioner is not a defaulter in respect of any of the utility charges, nor in respect of water charges as alleged by respondents, the amount of Rs.141,883/- which was payable against his father, which has already been paid on 28.09.2015, whereafter, <u>no dues certificate</u> has also been issued from Deputy Director (Field) OFWM/NPIW, Sukkur which is available at page 25 as annexure "D" of instant petition. As regards of registration of FIR No.156/2014 against the petitioner, learned counsel the petitioner submits that the aforesaid FIR has been registered by the respondents i.e. Complainant party malafidely, as there is admitted enmity between the petitioner and respondent No.3 regarding murder of the cousin of petitioner, and such FIR i.e. Crime No.177/2014 was get registered under section 302, P.P.C. At P.S. Abad. Learned counsel further submits that after due investigation of FIR No.156/2014 by the police the name of petitioner was put in column No.2, but the learned Magistrate has taken the cognizance of the matter and has sent the case to learned District and Sessions Judge, Sukkur. Per learned counsel, the petitioner has never been convicted in crime, whereas, in the above FIR', he has been granted pre-arrest bail by the Court. According to learned counsel as per provisions of Sindh Local Government Law, 2013 and the Constitution of Pakistan, only such candidate, who is convicted by competent court of law or is found involved in moral turpitute can be disqualified for the purposes of contesting election, whereas, presently there is no conviction against the petitioner. Learned counsel further submits that even the appeal filed by respondent No.3 was not maintainable his name is not listed in the voter list of subject U.C., therefore, he prays that impugned order may be set aside and the candidature of petitioner Adnan may be restored. In support of his contentions he has referred to the provisions of Rule 18 sub-rules (8) and (9), Rule 18 Sub-Rule (5) of Sindh Local Governments (Election) Rules, 2013, and Article 63 of the Constitution and also placed reliance on the case of Ghulam Mustafa Wassan v. Abdul Salem Thaheem and 13 others reported in PLD 2008 Karachi 60.
3. ' Pursuant to Court's notice respondent No.4 Anwar Ali Shoro, Deputy Director (Field) OFWM/NPIW, Sukkur has shown appearance and filed comments wherein he has stated that there is no outstanding amount against the petitioners Adnan in respect of OFWM/NPIW, Sukkur which has already been paid on 28.09.2015.
4. ' Mr. J.K. Jarwar advocate while filing vakalatnama on behalf of respondent No.3 supported the impugned order and submits that the impugned order does not suffer from any illegality, irregularity or material infirmity. As according to him the petitioner is defaulter to the tune of Rs.141,883/- in respect of OFWM/NPIW whereas, an FIR No.156/2014 for murder of father of respondent No.3 has been registered against the petitioner Adnan. Per learned counsel, since petitioners did not qualify in terms of Articles 62 and 63 of the Constitution, therefore, the appeal filed by respondent No.3 was rightly allowed by the District and Sessions Judge/Appellate Authority, hence requested that instant petition may be dismissed.
5. ' On the other hand, learned AAG has supported the case of petitioners and submits that since no objection whatsoever were filed against the nomination form or their candidatures by respondent No.3 or any one else with regard within specified time given for such purpose or during scrunity, therefore, no subsequent objection in this regard be raised for the first time in appeal. As regards the allegation of default in payment of utility charges, such objection cannot be raised after scrutiny by Returning Officer and more particularly when the petitioners have been declared as returned candidates for U.C. 25 Saeedabad. Learned AAG further submits that respondent No.3 could have filed his-objections with regard of, default of petitioners in payment of utility charges and it was the Returning Officer to the parties and hear the same, but the same has not been done, whereas the petitioners has paid the amount to the tune of Rs.141,883/- in respect of utility charges.
6. As regard the contention of learned counsel for respondent No.3 relating to registration of FIR No.156/2014 against petitioner Adnan, learned AAG submits that according to Article 62 of Constitution and Sindh Local Government Act, 2013, only a candidate can be disqualified for contesting election merely on his accusation or involvement in criminal case. In support of his submission, he has placed reliance on a case reported in PLD 2008 Karachi 60. Learned AAG further submits that the respondent No.3 is neither a registered voter of U.C. No.25 nor he is a candidate for aforesaid U.C. Learned AAG has prayed that impugned order suffer from material illegality.
7. ' We have heard the learned counsel for the parties and perused the provisions of Sindh Local Government Act, 2013, (Election Rule, 2015) and the provisions of Articles of Constitution of Pakistan.
8. ' Perusal of record shows that the respondent No.3 did not raise any objection whatsoever while scrunity was made by Returning Officer, where after nomination of the petitioners was accepted, and the Returning Officer found the respondent as eligible candidate and declared them as returned candidates. However, the respondent No.3 did not file any objection before the Returning Officer and filed the appeal before appellate authority by raising objection that the petitioner Adnan is defaulter in payment of Rs.141,883/- in respect of utility charges and an FIR No.156/2014 has been registered against him. It appears that the impugned order has been passed on 30.9.2015 when the alleged outstanding amount of Rs.141,883/- has already been paid by the petitioner on 28.09.2015 which fact has duly been confirmed by Deputy Director OFWM/NPIW, Sukkur who has also filed No Dues Certificate in respect of petitioner, and has filed comments before this Court in this regard. It has also come on record that there is enmity between the petitioner and respondent No.3 as there are FIRs registered against each other, however, the petitioner Adrian has been shown to be accused in FIR No.156/2014 which is counter case of FIR No.177/2014. With regard to the provision of Article 63 sub-Articles "g" and "o" it is clear that conviction against candidate on account of chances of his involvement of moral turpetitute or for giving false evidence by competent court of jurisdiction as mentioned in such article "g" or a defaulter in payment of government dues in respect of utility charges if exceed Rs.10,000/- for more than six months, his candidature cannot be rejected. Similar conditions have been provided for disqualification of . a candidate. In terms of Rule 36 of Sindh Local Government Act, 2013.
9. ' Consequently, we are of the view that the learned District and Sessions Judge/Appellate Authority while passing the impugned order, has not examined the relevant facts and law, and does not depict correct legal position.
10. ' Accordingly, instant petition is allowed, the impugned .Order is hereby set aside, and the acceptance of the candidatures of petitioners by Returning Officer is restored.
11. ' Petition stands disposed of in the above terms.