1. KHADIM HUSSAIN M. SHAIKH, J.---Through this petition, the petitioners have called in question order dated 13.08.2016, passed by the Appellate Authority/District Judge, Ghotki, whereby the appeal filed against the acceptance of joint nomination paper of the petitioners for the posts of Chairman/ Vice-Chairman of Town Committee, Daharki by the Returning Officer vide order dated 10.08.2016, was accepted and the joint nomination paper of the petitioners was rejected.
2. Briefly the facts of the case are that the petitioners had filed joint nomination paper for Chairman/Vice-Chairman of Town Committee, Daharki before the Returning Officer/respondent No.4, which was accepted vide order dated 10.08.2016. The respondent No.6 filed an appeal against the acceptance of nomination paper of the petitioners by the respondent No.4, before the Appellate Authority i.e. District Judge, Ghotki, who after hearing the parties counsel and examining the record accepted the appeal and rejected the joint nomination paper of the petitioners vide order dated 13.08.2016 and then the petitioners have filed this petition with the following prayers:- a)To set aside order dated 13.08.2016, passed by the Court of District and Sessions Judge/Election Appellate Authority Ghotki and restore nomination papers of the petitioners. b)To call record and proceedings in relation of above subject matter. c)To direct grant stay on election of Town Committee Daharki, till the final disposal of this petition. d)To grant any other relief which this Court may deem fit and proper under the ongoing circumstances of the case.
2. 3.The learned counsel for the petitioners has contended that the petitioners No.1 namely Mian Shafiq Ahmed is not convicted by any Court; that involvement of the petitioner No.1 in a case pending trial does not disqualify him from contesting the elections; that the learned Appellate Authority/District Judge Ghotki without appreciating such aspect of the case has rejected the joint nomination paper of the petitioners. He, placing his reliance on the cases of Muhammad Ibrahim Qasmi v. Election Commission of Pakistan and 15 others (PLD 2008 Peshawar 84), Muhammad Ismail v. Provincial Election Commission, through DEO District N/Feroze (2016 CLC 786) and Muhammad Afzal Khan Dhandla and 3 others v. Election Tribunal and others (PLD 2010 SC 959), requests that the impugned order dated 13.08.2016, passed by the Appellate Authority/District Judge, Ghotki may be set aside and the joint nomination paper of the petitioners for the posts of Chairman/Vice Chairman Town Committee, Daharki may be restored, allowing the petitioners to contest the elections.
3. 4.Conversely, learned counsel for the respondent No.6 has contended that the petitioner No.1 Mian Shafique Ahmed is a nominated proclaimed offender in special case culminated from FIR No.80/2013 for offences under Section 7 of ATA, Sections 353, 452, 342, 324, 427,109, 188, 148, 228, 395, 342, P.P.C., of Police Station Ubauro, in which after investigation challan was submitted before the Anti-Terrorism Court, Sukkur and his property has also been attached, therefore, he was not a fit candidate for the post of Chairman of the Town Committee; that the petitioner No.2 had suppressed the above material facts; and that Appellate Authority has rightly rejected the nomination paper of the petitioners. He, therefore, prays that the present petition may be dismissed.
4. 5.The learned Additional Advocate General and the Standing Counsel have adopted the arguments advanced by the learned Counsel for the respondent No.6.
5. 6.We have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
6. 7.The learned Appellate Authority/District Judge, Ghotki for the elections of local bodies District, Ghotki has accepted the appeal filed against the acceptance of joint nomination paper of the petitioners vide order dated 10.08.2016 by the Returning Officer and rejected their nomination paper vide order dated 13.08.2016. The relevant paragraph of the impugned order dated 13.08.2016 is reproduced below:-- "Perusal of record would itself show that respondent No.1 is not only nominated accused in FIR No. 80/2013 but he has acted as leader of the Gang which attacked Civil courts of Ubauro and when Judges and Advocates by climbing of the walls entered into the nearby houses, the said houses were also attacked it is also matter of record that respondent No.1 is declared as proclaimed offender by ATC Court Sukkur and his property has been attached. It is also matter of record that in the affidavit along with nomination paper filed by him before Returning Officer he has declared on oath that he is not subjected any of the disqualification specified in the act or any other law for the time being in force for being elected as Chairman/Vice Chairman and has suppressed the fact that he is nominated accused in the criminal case of heinous nature and has been declared as proclaimed offender by the competent court of law. "
7. 8.From the above it reveals that the petitioner No.1 namely Mian Shafiq Ahmed is a nominated accused in the aforementioned special case with the allegations that the petitioner No.1 as a leader of the gang of miscreants had attacked the Civil Courts of Ubauro and the Judges and Advocates by scaling over the walls of the Court premises attempted to take shelter in nearby houses, but they also attacked those houses and thereby the petitioner No.1 and others did not spare even a most safest place i.e. the Court where justice is dispensed with and people have confidence to be treated in accordance with law. Admittedly, petitioner No.1 Mian Shafiq Ahmed is a proclaimed offender having been declared as such by the Anti-Terrorism Court, Sukkur, after proper proceedings including wide publicity to that effect, attaching his property too as far as back in the year 2013 and thus he remained fugitive from the law continuously for more than three years; the petitioner No.1 purposely did not disclose such material facts in his affidavit and nomination paper filed by him before the Returning Officer; although such facts are specifically mentioned in the objections filed by the respondents No.6 against the nomination paper of the petitioners, but the petitioner No.1 did not make any attempt to dislodge such allegations; the Returning Officer readily accepted the nomination paper of the petitioners without adverting to the aforementioned objections though the Returning Officer at the time of scrutiny of the nomination paper of the petitioners and then the Appellate Authority in appeal were obliged to consider the aforementioned objections as the said both forums are provided for the scheme of filing nomination forms, their scrutiny and appeals against the decisions of acceptance or rejection of nomination forms, regulated by Sindh Local Councils (Election) Rules framed under the provisions of Sindh Local Government Act, 2013. However, the Appellate Authority after hearing the parties and appreciating the material placed before it accepted the appeal and rejected the nomination paper vide order dated 13.08.2016.
8. 9.Furthermore, the petitioner No.1 despite specific objection regarding his being proclaimed offender in a case involving attack on Courts, Judges and Advocates, having been raised before the Returning Officer he did not bother to join the proceedings before the learned trial Court i.e. Anti-Terrorism Court, Sukkur and it was after rejection of his nomination paper vide impugned order dated 13.08.2016, he obtained interim-pre arrest bail from this Court on 15.08.2016 i.e. after two days of rejection of his nomination paper that too by the Appellate Authority in appeal.
9. 10.In case of Hussain Bux and another v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar and 3 others (2002 CLC 281), a learned Division Bench of this Court has held that:-- The perusal of impugned orders and the record shows that' criminal case bearing S.C. No.38 of 1995 (State v. Hakim Ali and others) is pending before the learned Additional Sessions Judge, Sanghar since last more than 6 years. The trial Court issued N.B. Ws. against the petitioner No.1 time and again but the same could not be executed upon him. The case diaries further shows that on 28-2-2000, the statement or process-server was recorded and order of absconsion against the petitioner under section 512, Cr. P. C. was passed. The proclamation was issued under section 87, Cr. P. C. by the trial Court which was followed by the order of the attachment of property under section 88, Cr. P. C. However, after the nomination forms were rejected on this ground, the petitioner approached this Court and obtained protective bail. The conduct and behaviour of petitioner No.1 demonstrates that the petitioner No.1 has thwarted the process of the Court and is fugitive from law. Merely because the petitioner No.1 had sought protective bail, therefore, it cannot be said that the absconsion order and proclamation orders have been undone by the grant of protective bail which was granted for a very limited period. Consequently it cannot be said or declared that the petitioner No.1 was enjoying good character or possessing good reputation. The case of the petitioner No.) was rightly held to have been hit by the provisions of section 14 of the Sindh Local Government Elections Ordinance and Rules, 2000."
10. In case of Ghulam Mustafa Wasan v. Abdul Salam Thaheem and 13 others (PLD 2008 Karachi 60), a learned Division Bench of this Court has held that:-- From the documents produced by the respondent No.) it appears that he has secretly appeared before the Court and obtained bail on 27-112007 after filing of nomination paper on 26-11-2007."
11. In an unreported case C.P. No. D-6386 of 2015 re-Kareem Bux v. Murad Bux and others, a learned Division Bench of this Court vide order dated 19.10.2015 allowed the Constitutional Petition and rejected the nomination papers of the respondent No.1 with the following observations:-- "From the above, it is clearly evident that when the affidavit that was submitted to the Returning Officer there was FIR against the respondent No. 1 . The respondent No.1 ought to have mentioned this fact in the affidavit which he did not, hence this amounts to swearing of a false affidavit. Such a person who concealed a fact on oath should not be allowed to contest elections. This petition is, therefore, allowed and the nomination papers of respondent No.1 are rejected."
12. 11.The cases relied upon by the learned counsel for the petitioner are distinguishable than that of the case one in hand in as much as in case of Muhammad Ibrahim Qasmi (supra) the question of recounting of rejected votes was involved and the learned High Court of Peshawar directed the Returning Officer to carry out process of checking/examination/re-count of all the rejected votes in presence of candidates or their authorized polling agents; in case of Muhammad Afzal Khan Dandhla (supra) the respondents were allegedly involved in certain FIRs, but no proof was produced before the Returning Officer that they were declared as proclaimed offenders nor any proof was produced that the case was pending trial against them prior to submission of nomination papers; and in case of Muhammad Ismail (supra) the case of abduction of Mst. Shazia was involved and the petitioner had since joined the trial after obtaining bail from the learned trial Court and abductee Mst. Shazia appeared before the Bench of this Court at Sukkur and submitted that the FIR in question was patently false and frivolous as she had never been abducted by anyone, but she being sui-juris had contracted marriage out of her own freewill without any pressure or coercion from any corner and was living with her husband namely Muhammad Ishaque since 2008 and thus none of the cases cited by the learned counsel for the petitioners is helpful for him.
13. 12.Learned advocate for the petitioner has not been able to point out any illegality or infirmity or any jurisdictional defect in the impugned order dated 13.08.2016, passed by the Appellate Authority, attracting the exercise of extra ordinary jurisdiction by this Court under the provisions of Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
14. 13.In view of what has been stated above, we are of the considered opinion that this petition is liable to be dismissed.
15. 14.Above are the reasons of short order dated 23.08.2016 announced by us whereby this petition was dismissed along with listed application as well as other pending application with no order as to costs.