' ABDUR RAUF KHAN LUGHMANI, Haji Usman Ghani 'respondent No,1) and Nisar Muhammad (respondent No,2) filed nomination papers for the post of Nazim and Naib-Nazim, respectively, of Union Council Madai Baba. Nasrullah and Shamshad Khan, herein petitioners, also filed nomination papers for the said category of offices. The petitioners successfully objected to the nomination papers of respondents Nos.1 and 2 on the grounds of default of Government dues, conviction of respondent No,2, respondent No,1 was enlisted as a Contractor and lacking of requisite educational qualification. The District Returning Officer, Mardan, on appeal, vacated the order of Returning Officer and allowed respondent No,1 to contest the elections which were held on 31-3-2001 and respondents Nos.1 and 2 were declared returned candidates through Notification, dated 23-3-2001.
The petitioners filed appeal before the Election. Tribunal seeking disqualification of respondents Nos.1 and 2 on the following grounds:--
(a) Respondent No,1 is an enlisted Government Contractor involved in the transaction with the Local Government.
(b) Respondent No,1 is defaulter of the Cooperative Bank as well as of the WAPDA.
(e) Respondent No,1 has not passed S.S.C. Examination.
(d) Respondent No,2 was convicted under section 13, Arms Ordinance and sentenced to 3 years' R.I.
With a fine of Rs,1,000 in case F.I.R. No,147, dated 16-3-1997, vide judgment of the Court, dated 4-7- 1997.
2. Respondents Nos.1 and 2 contested the petition by filing written statements wherein allegations of the petitioners were vehemently denied. On careful and keen consideration of evidence led by the parties, the petition was turned down by the Election Tribunal, Mardan, vide order dated 21-7- 2001. The petitioners have through this Constitutional petition challenged the judgment of the learned Election Tribunal as being illegal and for declaring respondents Nos.1 and 2 as disqualified with a further prayer that the petitioners be declared as returned candidates.
3. The learned counsel for the petitioners maintained that respondent No,1 was defaulter of WAPDA , Hari Chand Sub-Division to the 'tune of Rs,5,494 plus Rs,23,579 on the date of nomination the more than six months and defaulter of the Frontier Cooperative Bank, Takhat Bhai for a sum of Rs,48,582 with the result that he stood disqualified.
4. It appears that the amount was paid on 23-4-2001 as per statement of P.W.5. Muhammad Khalil, Manager, Frontier Cooperative Bank appearing, as P.W.3 did state that the outstanding interest was also paid by respondent No,1 on 3-3-2001. The default of financial institution is not there, for respondent No,1 was never adjudged a wilful defaulter by a Court of competent jurisdiction. The question as to what is meant by adjudge or wilful defaulter came up for consideration in Writ Petition No,1601 of 2001, decided on 24-1-2002 and it was held as under:--
6. The perusal of the above said provisions would indicate that simple default of any tax or other financial dues owed to the Federal,, a Provincial or a Local Government or any Financial Institution, including utility bills outstanding for six months or more is not enough. The use of words 'adjudged' and 'wilful' are significant. According to the Black's Law Dictionary, Fifth Edition, 'adjudged' means- "to pass on judicially, to decide, settle, or decree, or to sentence or condemn, People. v. Rave, 364 III.
72.3 N.E. 2d 972, 975, judgment of a Court of competent jurisdiction equivalent of convicted and sentenced. Implies a judicial determination of a fact and the entry of a judgment."
"Adjudged' in the Oxford English Dictionary, Volume I, means- 'Determined, decided or settled judicially. "
"Wilful' is an act or omission intended to achieve a certain result. "
The .Intention of the law-givers is clearly to disqualify those defaulters who have been adjudged as a wilful defaulter by a competent judicial forum. If we go by Ordinance No,CXII of 1996, CVII of 1996 and Ordinance No,CXIX of 1996 entirely different language has been used so as to oust the defaulters from contesting election of the National and Provincial Assemblies where default simpliciter is mentioned and the phrase 'adjudged' and wilful defaulter had not been used. The object was to treat the list of defaulters provided by the Financial Institution etc. As final for the purpose of determining whether a candidate 'contesting election of National and Provincial Assemblies was disqualified on the ground of default of Government dues etc. Similar question came up for consideration in the case Ikramullah Shahid v. District Returning Officer, Mardan and others in Writ Petition No,293 of 2001, decided on 16-3-2001 wherein a Division Bench of this Court held as under:- "We are clear on the point that it is a judicial verdict as is crystal clear from the Black's Law Dictionary. Hence the rejection on the ground 'of default is not tenable."
As regards the allegation of lacking of qualification, suffice to say here that respondent No,1 did pass the S.S.C. Examination long ago in 1965 as is evident from the Certificate Annexure C-II which was objected to on the ground that the name of the candidate in the said Certificate is recorded to be Usman Khan while respondent No,1 is Usman Ghani. Paternity of respondent No,1 has been rightly mentioned in the said Certificate. It is a matter of common knowledge that some time full name is not mentioned but that does not make difference. The year of birth in the identity card is also the same as mentioned in the S . S . C . Certificate.
6. No doubt that respondent No,2 was convicted and sentenced to 3 years' R.I. With a fine of Rs,1,000 under section 13, Arms Ordinance by the Court of Special Judge, Takht Bhai and a period of five years has not yet elapsed but that would not make any difference for short and simple reason that the trial Court instead of sentencing, placed him under the supervision of a Probation Officer. In other words, he was released on probation. Section 11(2) of the Probation of Offenders Ordinance states that the conviction of an offender who is discharged after due admonition or conditionally or who is placed on probation shall in any event be disregarded for the purpose of any law which imposes any disqualification or disability upon convicted person or authorities or requires the imposition of any such disqualification or disability. This provision of law removes the disqualification and he can validly contest the election.
7. Section 14(c) of the N.-W.F.P. Local Government Election Ordinance, 1991 gives qualification for a candidate and an elected member and clause (c) of clause (m) states that he does not engage in any transaction involving pecuniary interest with the Local Government of which he is a member.
Member has also been defined in the said Ordinance as elective member of a Local Body and includes Nazim and Naib-Nazim. It is to be established that the member was having pecuniary transaction with the Local Government of which he is a member. Nothing has been brought on record to establish that respondent No,1 has transaction involving pecuniary interest in the Union Council, Madai Baba for which he was elected as Nazim. The record reveals that respondent No,1 is not involved in any transaction pertaining to his Union Council, if he is involved in any other Union Council that would not cause any disqualification.
8. Finding no substance, this writ petition is accordingly dismissed.
Writ .