MIAN MUHAMMAD AJMAL, J.-Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar dated 19-3-2001, whereby Writ Petition No,299 of 2001 of respondents Nos.1 and 2 was accepted, order of the District Returning Officer. Kohat dated 10-3-2001 rejecting the nomination papers of Fawad Khan, respondent on the ground that he was not enjoying good reputation, impugned therein, was set aside, the order of Returning Officer dated 1-3-2001 was restored and respondents Nos. 3 and 4 were directed to accept nomination papers of respondents Nos. 1 and 2 and allow them to contest the election for the office of Nazim and Naib-Nazim of Union Council Lachi (Urban).
2. Brief facts of the case are that Fawad Khan and Shaukat Ali Khan, respondents Nos. 1 and 2 submitted nomination papers before the Returning Officer for the offices of Nazim and Naib-Nazim for Union Council Lachi I Urban). District Kohat which were found correct and thus accepted.By him on 1-3-2001. Feeling aggrieved, Saeed Ahmad Shah. Petitioner No,1 filed an appeal before the District Returning Officer, Kohat, alleging therein that Shaukat Ali Khan respondent No,2 had submitted two nomination forms, one for the office of Nazim alongwith Dost Muhammad as Naib- Nazim and the other for the office of Naib-Nazim alongwith Fawad Khan as Nazim, and alleged that he could not file two nomination papers, one for the office of Nazim and the other for Naib-Nazim, as such, his nomination papers should have been rejected but the Returning Officer allowed him to withdraw the nomination 'papers tiled with Dost Muhammad. His appeal was accepted by the District Returning Officer vide his order dated 10-3-2001 as under:-- "Appellant is present with Mian Manzoor Rehman, Advocate. Sher Nawaz Khattak, Advocate is present for respondents Nos. 2 to 6. Fawad Khan and Shaukat Ali Khan filed nomination papers for Nazim and Naib-Nazim, which was accepted by the Returning Officer on 1-3-2001. Now the appellant Saeed Ahmad Shah has tiled the present appeal against the said order. During the agreements learned counsel for the appellant also stated at the bar that Fawad Khali candidate/respondent No,2 is not enjoying good reputation, therefore, his nomination papers may be rejected. On the other hand there is no proof that his client, Fawad Khan is not enjoying good reputation. According to Letter No,160/2/LBE/IS dated 4-3-2001 received by the undersigned from Lt.-Col. DMT: Leader Kohat, Fawad Khan is ill-reputed and has misused the name of his father who was ex-Education Minister. Fawad Khan used to ask money from people for getting their job done.
His name has been mentioned at S.No,152 of the list attached with the said letter, therefore, counsel for the appellant is justified in saying that Fawad Khan the candidate/respondent No,2 is not enjoying good reputation. The appeal is therefore accepted, the order of Returning Officer is set aside and the nomination form of Fawad Khan candidate for Nazim is rejected. File be consigned to R/R." Resultantly, petitioner No,1 was declared as returned unopposed for the seat of Nazim vide Public Notice dated 13-3-2001. Feeling dissatisfied with the aforesaid order of the District Returning Officer, Fawad Khan and Shaukat li, respondents Nos.1 and 2 filed Writ Petition No,299 of 2001 before the Peshawar High Court, Peshawar, which has been accepted vide judgment dated 19-3-2001.
Impugned herein, as stated in part. 1 above.
3. We have heard the learned counsel tr the parties and have gone through the record of the case with their assistance. To resolve the controversy involved in this case it would be necessary to refer to the relevant provisions of the BNPS Local Government Elections Ordinance, 2000 (hereinafter to be called the Ordinance) and the BNPS Local Government Elections Rules, 2000 (hereinafter to be called the Rules). Section 14(1)(d) of the Ordinance and Rule 18(2) of the Rules are reproduced "Section 14(1)(d) of the Ordinance
14. Qualification for candidates and elected members.--(1) A person shall quality to be elected or to hold an elective office or membership of the Local Government, if he-- (a)....
(b)....
(c)....
(d) is of a good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from, major sins: provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall 'have a good reputation:
(e) to (s)....
(2)... ... ...
Rule 18(2)(3) of the Rules "18. Scrutiny.--(1).........
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1). Examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer. May, either suo mow or upon any objection, conduct such summary enquiry as he may think tit and reject a nomination paper if he is satisfied that--
(i) the candidate is not qualified to be elected as a member;
(ii) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(In) any provision of rule 16 or rule 17 has not been complied with; or
(iv) the signature or thumb-impression of the proposer or the seconder is not genuine: Provided that in case of rejection of the nominations of either a Nazim or a Naib-Nazim as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected.
(4)..... The perusal of the nomination papers of respondents Nos. 1 and 2 would show that the same were tiled on 23-2-2000 and were scrutinized on 1-3-2000 which were found correct and valid and since no objections thereto were filed by anybody, therefore, the same were accepted by the Returning Officer. On appeal, the District Returning Officer rejected 'the nomination papers of Fawad Khan respondent No,1 on the basis of Letter No,160/2/LBE/IS, dated 4-3-2001 issued by the District Monitoring Team, Kohat to the effect that he was not enjoying good reputation. Clause (d) of section 14 of the Ordinance ibid requires a candidate to be of good character and is not commonly known to be a violator of Islamic Injunctions. Under sub-rule (3) of Rule 18 of the Rules the Returning Officer either suo motu or upon any objection, could conduct summary inquiry to ascertain whether the candidate was qualified to be elected for the office for which the nomination papers were filed by him. According to the order of the Returning Officer the nomination papers of respondents Nos. 1 and 2 were found correct and as no objection thereto was raised before the Returning Officer, therefore, the same were accepted on 1-3-2000. The said order was, assailed by the petitioners before the District Returning Officer/the Appellate Authority. The perusal of the memo. Of appeal filed by the petitioner No,1 before the Appellate Authority would reveal that appeal was primarily filed against Shaukat Ali Khan respondent No,2 alleging that he had tiled two nomination papers one for the office of Nazim alongwith Dom Muhammad as Naib Nazim and the other for the office of Naib-Nazim alongwith Fawad Khan as Nazim and his prayer was that his nomination papers should have been rejected instead of allowing him to withdraw the former nomination papers. It is surprising to note that in the grounds of appeal not even a single word was said about Fawad Khan respondent No,1 much less leveling any allegation but it was strange to observe that the Appellate Authority without taking into consideration the grounds of appeal passed an order against Fawad Khan setting up a new case against him which was never agitated in the memo. Of appeal and disqualified him on extraneous consideration which was not taken as a ground in the appeal.
4. Admittedly, the elections have been held wherein the petitioner shave lost and after the elections, the elections can only be called in question by an election petition under rule 71(1) of the Rules by a candidate of that election before a Tribunal appointed by the Chief Election Commissioner, who under rule 82 of the Rules can declare the election of the returned candidate to be void if it is satisfied that his nomination was invalid or on the nomination day he was disqualified from being elected as a member or Nazim or Naib-Nazim as the case may be. The question raised by the petitioners with regard to the character and reputation of Fawad Khan respondent No,1 being a question of fact needs recording of evidence which can be done by the Tribunal in an election petition and on the assessment thereof the Tribunal can pass appropriate order under Rule 82 of the Rules.
5. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave refused.