1. ' By this Constitutional petition, petitioner has sought following relief:-- "It is prayed accordingly and in the interest of justice to set aside the order, dated 21-1-2003 passed by the respondent No,4."
2. ' The brief facts of the case as disclosed in the petitioners and respondents Nos.l and 2 contested election of Nazim and Naib-Nazim of Union Council-I, Muzaf Landhi Town, Malir, Karachi Sindh held on 2nd J objections were invited but at the time of scrutiny {{PAGE CUT}} tition are that ns for the posts arabad Colony, ly, 2001. The one filed any objections on nomination papers of documents. After the petitioners were declared returned candidates, the respondent No,1 moved application for {{PAGE CUT}}} disqualification of petitioners from holding the office of Nazim as the matriculation certification filed by the petitioner No,1 was forged and fabricated. The said application was made to Chief Election Commissioner of Pakistan at Islamabad. The respondents Nos.1 and 2 filed election petition before the Election Tribunal for District Malir, Karachi at Thatta which was transferred to IVth Additional District Judge, South Karachi and according to petitioners, the same is still pending. On the application filed by the respondents 1 and 2 for disqualification of petitioner on the same ground before the Chief Election Commissioner of Pakistan at Islamabad. The impugned order was passed by respondent 4.
3. ' We have heard the learned counsel appearing on behalf of the parties and perused the material placed on record.
4. ' It is contended by the learned counsel appearing on behalf of petitioners that the impugned order is without jurisdiction. The respondents 1 and 2 have moved the Election Tribunal, therefore, the respondent 4 was not competent to adjudicate the matter. Moreover no opportunity for cross- examination and adducing the evidence was provided to petitioners. It is further contended that factual controversy is involved in the matter, therefore, impugned order may be set aside and matter may be remanded to Tribunal. Reliance is placed upon the cases of Ali Asghar v.
5. Muhammad Sharif reported in 1986 MLD 2048, Hakeem v. The State reported in PLD 1963 (W.P.)
6. Karachi 63 and Syed Shah Jehan v. Arshad Hussain reported in PLD 2003 Peshawar 20.
7. ' The operative part of the impugned order is reproduced herein below in extenso:-- ' "The application was filed at Islamabad. The powers under section 152(2)(b) of Sindh Local Government Ordinance, 2001, vest with learned Chief Election Commissioner but the same have been delegated by him to the Member, Election Commission by a notification, dated 6th March, 2002 published in Official Gazette on 8th March, 2002.
8. 'The record was called for from the office of Returning Officer and the notices were issued to responde t. The Matric certificate issued in favour of respondent was also sent to Board of Secondary Education, Karachi for verification.
9. ' Assistant/Deputy Secretary Certificate Section sent a report, dated 12-12-2001 in regard to the aforesaid Matric certificate, stating that the same was bogus. The respondent filed his written reply wherein he stated that the petition was pending before Election Tribunal, therefore, this application was not maintainable. He further emphasized that the applicant did not raise any objection before the Returning Officer regarding the Matric certificate of respondent, therefore, at this stage the application is misconceived.
10. ' I have heard the parties, at length on various dates. On 16-12-2002, the respondent submitted another Matric certificate bearing Roll No,0051 alongwith his statement to the effect that earlier Matric certificate in which the report was sent for, was not produced by him before the Returning Officer but the certificate bearing above roll number with a Registration No,TSC 080/73-74 was filed by him alongwith his nomination form. Although, the original record of Returning Officer was before me and the certificate which was produced alongwith nomination form is available on the file, but in order to do complete justice and avoid any expected future ambiguity I sent the said certificate to Sindh Board of Technical Education for verifying the new certificate filed by the respondent. The report dated 8-1-2003 was received from the Sindh Board of Technical Education which is on record wherein it is stated that the certificate bearing Roll No,0051 and serial No,457 was also forged and the same was issued in favour of one Faiz Muhammad son of Huzoor Bux student of Government Vocational Institute for Boys, Jacobabad having registration No,V-080/73-74. On 10-1- 2003. Secretary, Sindh Board of Technical Education also attended the Court and brought report, dated 9-1-2003 which also displayed that the certificate produced by respondent was fake and forged.
11. ' Thereafter the learned counsel appearing for respondent did not argue the matter and stated before me that they had no arguments to make in view of the report submitted by the Board of Education. The original record is before me wherein respondent No,1 had produced Matric certificate with Roll No,24870. The said certificate was declared to be fake and forged. He made another effort and took a decisive step to prolong the matter submitted another certificate which was also subsequently found to be forged. The record shows that respondent had filed another nomination form on the seat of Landhi Town Nazim which was found to be false and the complaint was made by the Returning Officer Landhi Town. The F.I.R. In this regard was also registered against respondent by the City Court Police Station being Crime No,82 of 2001 on 22-7-2001, wherein Additional Sessions Judge, Karachi East namely Muhammad Nadeem Aziz was complainant.
12. 'In this view of the matter, the respondent No,1 does not qualify to hold the office of Nazim under section 152(e) of Sindh Local Government Ordinance, 2001.
13. ' Resultantly the respondent No,1 has been declared disqualified.
14. ' Since he has contravened the provisions of subsection (1) of section 152 of the Ordinance, 2001, he shall cease forthwith to be an elected member and hold office and shall stand disqualified under section 152(2)(b) of Ordinance, from being a candidate for an election to Local Government for a period of 4 years.
15. ' The seat of Nazim and Naib-Nazim shall remain vacant and by-elections shall be announced in accordance with law."
16. ' It will be pertinent to mention that by order No,8 of 2000 promulgated by Chief Executive of the Islamic Republic of Pakistan, dated 30-9-2003 the Chief Election Commissioner of Pakistan was empowered to conduct the Local Government Elections for Provinces. The contents of Order No,8 of 2000 are reproduced herein below:-- "Local Government Elections Order 2000 ORDER No, 8 OF 2000 Islamabad, the 30th September, 2000 an Order To provide conduct of Local Government Elections by the Chief Election Commissioner ' Whereas it is expedient to provide for the conduct of Local Government Elections by the Chief Election Commissioner.
17. ' Now, therefore, in pursuance of the Proclamation of Emergency of the 14th day of October, 1999, the Provisional Constitution Order No,1 of 1999, as amended, read with the Chief Executive's Order No,5 of 1999 and Order No,9 of 1999, and in exercise of all powers enabling him in that behalf, the Chief Executive of the Islamic Republic of Pakistan is pleased to make and promulgate the following Order:--
1. Short title and commencement.--- (1) This Order may be called the Local Government Elections Order, 2000.
(2) It shall come into force at once.
2. Conduct of Local Government Elections by the Chief Election Commissioner.---. The Chief Election Commissioner is hereby empowered to conduct Local Government Elections for the Provinces and for that purpose the Chief Election Commissioner shall have the power and authority to take all such steps and measures including preparation of electoral rolls and delimitation of wards and to adopt such procedure, do such acts, pass such orders, issue such directions and take all such ancillary, incidental and consequential steps as he may deem necessary for effectively carrying out the said elections.
18. (Sd.)
19. General Pervez Musharaf, Chief Executive of the Islamic Republic of Pakistan, Joint. Chief of Staff Committee and Chief of Army Staff 30th September, 2000."
20. ' By Chief Executive's Order No,9 of 2002, dated 4th March, 2002 certain amendments were introduced in laws relating to Local Government Elections. Amongst others, the Chief Election Commissioner of Pakistan was empowered/authorized to delegate his powers to any Member of Election Commission of Pakistan. The relevant amendment is reproduced herein below:-- "2. Amendment of certain laws.---.
21. ' The laws specified in the Schedule below are hereby amended to the extent and in the manner specified in the fourth column thereof. THE SCHEDULE (See section 2)
22. S. No. Number and year of the enactmentShort title Amendments
(1) (2) (3) (4)
1. Chief Executive's Order No,8 of 2000The Local Government Elections Order, 2000After Article 2, the following new Articles shall be added and shall be deemed always to have been so added.
23. Namely:-
3. Delegation of powers and functions.-- The Chief Election Commissioner - may, subject to such conditions as he may deem fit, require any member of the Election Commission appointed under the Election Commission Order, 2002 (C.E.'s Order No,1 of 2002), to exercise and perform all or any of the powers and functions of the Chief Election Commission under this Order.
4. Directions of Chief Election Commissioner in certain matters.--- Anything required to be done for carrying out the purpose of this Order, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Chief Election Commissioner may direct."
24. 'The Chief Election Commissioner of Pakistan by Notification dated 6th March, 2002 appointed the members of the Election Commission of Pakistan and delegated all the powers and functions of the Chief Election Commissioner to members for exercising and performing within their jurisdiction specified in the notification. The Notification is reproduced herein below in extenso:-- ' "Election Commission of Pakistan Notification Islamabad, the 6th March, 2002 ' No,I(7)/2002-Law.--- In exercise of the powers conferred upon him under Article 3 of the Local Government Elections Order, 2000 (Chief Executive Order No,8 of 2000) read with the Chief Executive Order No,9 of 2002, the Chief Election Commissioner of Pakistan is pleased to direct that the following Members, Election Commission appointed under the Election Commission Order, 2002 (CE's Order No,1 of 2002) shall exercise and perform all the powers and functions of the Chief Election Commissioner under said Order in respect of jurisdiction mentioned against their names:- - S.No. Name of the Member/ Judge Jurisdiction
(1) Mr. Justice Muhammad Ashraf Leghari The area covered by the Sindh High Court.
(2) Mr. Justice Nasim Sikandar The area covered by the Lahore High Court.
(3) Mr. Justice Qazi Ehsan Ullah The area covered by the Peshawar High Court.
(4) Mr. Justice Tariq Mehmood The area covered by the Balochistan High Court.
25. ' By Order of the Chief Election Commissioner of Pakistan.
26. ' Rehmat Ali Mujahid ' Director-General (LGE)."
27. The plain reading of the above orders promulgated by the Chief Executive of Pakistan and the notification issued by the Chief Election Commissioner of Pakistan clearly shows that the powers conferred upon Chief Election Commissioner of Pakistan can be validly exercised by the member of Election Commission of Pakistan within his jurisdiction.
28. ' As stated above, on 6-9-2001 the respondent 1 moved application to Chief Election Commissioner of Pakistan. The same was sent by the Chief Election Commissioner to its delegatee Member, Election Commission, Sindh and the request of respondent 1 was acceded by impugned order, dated 21-1-2003.
29. ' The section 152 of Sindh Local Government Ordinance, 2001 lays down the qualifications for candidates and elected members. Amongst others, it is also a condition that the academic qualification of a candidate contesting the election of a Nazim or Naib-Nazim shall not be less than matriculation or Secondary School Certificate or equivalent from a recognized institution. It will be necessary to reproduce herein below section 151(1)(e) of Sindh Local Government Ordinance, 2001.
30. "152. Qualification for candidates and elected members.--- (1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he--- (a)
31. (b)
32. (c)
33. (d)
(e) has academic qualifications of not less than matriculation or Secondary School Certificate or equivalent from a recognized institution, for contesting the election of a Nazim or a NaibNazim."
34. ' The section 152(2) of Sindh Local Government Ordinance, 2001 stipulates that the Chief Election Commissioner is competent to disqualify an elected person in case of contravention of the provisions of subsection (1) of section 152. The relevant subsection (2) of section 152 of Sindh Local Government Ordinance, 2001 is reproduced herein below:-- "(2) Whoever---
(a) is found by the Chief Election Commissioner to have contravened the provisions of subsection
(1) shall stand disqualified from being a candidate for election to any office of the Local Governments for a period of four years; or
(b) having been elected as a member of a Local Government or is a holder of an elective office of the Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Local Government for a period of four years."
35. The perusal of material placed on record as well as the operative part of impugned order reproduced herein above shows that the jurisdiction of respondent 4 was not challenged by any party to proceedings when the matter was heard by him and impugned order was passed.
36. Furthermore, the respondent 4 summoned the original record relating to the testimonials of petitioner 1 from concerned authorities and in presence of his counsel the record was examined and it transpired that the testimonial produced and relied upon by the petitioner 1 was fake and forged document and even his counsel did not question the invalidity of the same. Neither he disputed nor requested the respondent 4 for examining or cross-examining any person relating to point in issue. On the contrary he acceded to the ingenuineness of the testimonial and expressed that he has no arguments to advance in view of the report of concerned authorities. Thus, the impugned order does not sufter from any material illegality, infirmity or jurisdictional defect. No factual controversy is involved in the matter for which Tribunal should be directed to adjudicate the matter after recording evidence etc. ' The citations relied upon by the learned counsel appearing on behalf of the petitioners are not relevant and are distinguishable from the facts and circumstances of the present matter.
37. Thus, it is crystal clear that the .Petition on the face of it is misconceived and as such it stands dismissed in limine alongwith listed application.