2005 PLP 2992 (YLR)

SALIM KHAN, J.

The present writ petition has been brought by Sardar Haroonur Rashid and Professor Muhammad Din, candidates for the seats of Nazim and Naib Nazim of Union Council Kot Najibullah, Tehsil and District Haripur. They contended that Syed Nazran Shah Kazmi, respondent No. 1, and Sardar Mazhar Elahi, respondent No.2, candidates for the seats of Nazim and Naib Nazim respectively of Union Council Kot Najibullah, have concealed their assets. The learned Returning Officer rejected the nomination papers of respondents Nos.1 and 2 due to non-compliance with section 152(1)(i) of the N.-W.F.P. Local Government Ordinance, 2001, on the application of Sardar Haroonur Rashid, petitioner No.1. The learned Returning Officer in his detailed order, dated 24-7-2005 discussed the case of Sardar Mazhar Elahi only and came to the conclusion that he has concealed his property situated in village Dedan of Kot Najibullah Area. He did not discuss the case of Syed Nazran Shah, Kazmi. An appeal was filed by Syed Nazran Shah Kazmi and Sardar Mazhar Elahi against Sardar Haroonur Rashid and the Returning Officer. That appeal was accepted by the learned District Returning Officer/District and Sessions Judge, Haripur, vide the impugned order, dated 27-7-2005.

2. As there was no cross-objection by the present petitioners against the order of the learned Returning Officer concerning Syed Nazran Shah Kazmi, therefore, the case of Syed Nazran Shah Kazmi was not discussed at the appellate stage and cannot be discussed at this stage for the first time.

3. We heard the learned counsel for the petitioners as well as the learned counsel for the respondents Nos.1 and 2, and the learned Addl. A.-G. for the official respondents. We also perused the record.

4. The learned counsel for the petitioners submitted that the appeal of Syed Nazran Shah Kazmi and Sardar Mazhar Elahi was not competent because petitioner No.2, though a joint candidate with petitioner No.1, was not made a party to that appeal. Reply to his contention was that petitioner No.1 had not joined his co-petitioner while filing the objection petition and it was on the objection petition of petitioner No.1, without joining petitioner No.2, that the nomination papers of respondents Nos.1 and 2 were rejected. They were, therefore, aggrieved of the activity of petitioner No.1, and not of petitioner No.2, though petitioner No.2 might have been in league with petitioner No.1 secretly. There is no force in the contention of the learned counsel for the petitioners in this respect as the objection petition was made only by petitioner No. 1, and only he was the necessary party.

5. The learned District Returning Officer, while dealing with the case at the appellate stage, has mentioned that appellant No.2 produced the Patwari Halqa, who stated that appellant No.2 had no property in village Dingi and that it was by mistake that appellant No.2 mentioned his property in village Dedan to be the property in village Dingi. The learned counsel for the respondents further relied on the Aks Shajra Kishtwar before us and contended that the property of village Dedan was situated at the border of village Dingi and is near to that village, therefore, that land is called by them as `Dingi Wala Ragba'.

6. Being a question of fact, the learned District Returning Officer/ District and Sessions Judge, Haripur, had made up his opinion on the basis of the record. When more than one opinion can be formed on the basis of certain facts at the original or appellate stage, and one of such opinions has been formed by a competent Forum at that stage, an opinion formed while dealing with writ petition cannot be substituted for such opinion. One of the purposes of the writ petition is to see whether the petitioner has a right which should be given to him and has not been given to him by the Court, forum or authority having jurisdiction to give it, and to direct such Court, forum or authority to give or allow such right to the petitioner, by commission or omission, and also to see and ensure that such Court, forum or authority, subject to the jurisdiction of the Court exercising writ jurisdiction, acts in accordance with law and not otherwise. The opinion formed by the learned District Returning Officer/ District and Sessions Judge, Haripur, has been so formed on the basis of solid reasons, he had jurisdiction for that under the relevant law, and he properly appreciated the law and facts of the case.

7. The stage of scrutiny of the nomination papers may attract the proceedings of summary inquiry and such proceedings can also be conducted at the appellate stage because the proceedings at the appellate stage are continuation of proceedings at the original stage. At the time of scrutiny of nomination papers and at appellate stage, it is to be seen whether the case, prima facie, is in favour of the candidate, whose nomination papers are under consideration, or it is against him.

8. The learned District Returning Officer/District and Sessions Judge reached to the conclusion that the case was, prima facie, in favour of respondents Nos.1 and 2 as detailed inquiry, recording of full evidence and going deep into the merits and demerits of the case are out of the scope of the process of scrutiny of nomination papers as well as out of the scope of the writ petition.

9. We find no merit in the present writ petition, and we dismiss it. H.B.T./487/P Petition dismissed.