1988 PLP 1036 (CLC)

NASIR ASLAM ZAHID, J.‑‑The relevant facts are reflected in the admission order dated 19‑11‑1987. Suffice it is to observe here that the nomination papers of the petitioner in respect of election against a seat in Unit No.3 of the District Council, Sukkur were accepted by respondent No.2, Deputy Commissioner and Returning Officer, Sukkur. The respondent No.l, another candidate for the said elections, filed an appeal and the appeal was allowed by the Commissioner/ appellate authority by order dated 17‑11‑1987 and the relevant part of the impugned order dated 17‑11‑1987 is as follows:‑ "I have gone through the memo of appeal and seen the case papers, heard the parties. The order of the R.O. accepting nomination paper of Syed Razak Ali Shah is set aside in view of his past criminal activities and the appeal is accepted." We have heard Mr. Abdul Latif Gabole, learned counsel for the petitioner, Mr. Habibullah Shaikh, learned counsel for respondent No.l and the learned A . A .‑G. on behalf of the official respondents, namely, Returning Officer and the appellate authority. It may be observed that the record of the nomination papers and the orders of the Deputy Commissioner and the appellate authority are available with the learned A.A.‑G. The entire memo of appeal filed by respondent No.l is reproduced here:‑ "The above named appellant /candidate prefers this appeal against the above opponent on the following facts and grounds and further prays for rejection of his nomination papers, accepted on 13‑11‑1987 (True copy is attached hereto)‑‑ Facts and grounds to be submitted in brief:‑ (1) That, the opponent is old history sheeter, patharidar. (2) That he is detenu under MLO twice, and serious allegations were against him and as such he is not fit person and his nomination papers merit to be rejected. (3) That, the appeal is in time." Mr. Habibullah Shaikh concedes to the position that in the memo of appeal no details are given of the police station in which the petitioner is a history sheeter. It is also not mentioned under which MLO the petitioner was detained and when. We had asked learned A . A .‑G . who has the record available, whether on the recover before the Commissioner or before the Deputy Commissioner, there was any material on the basis of which it can be said that the petitioner was an old history sheeter or patharidar or the detenu under MLO or had been convicted and the learned A.A.‑G. state that on the record no such material is available. In the circumstances we are of the view that on the bar vague and general allegations (entire memo of appeal has beer reproduced herein above) the Commissioner could not allow the appeal of respondent No.l and reject the nomination paper of the petitioner.) Respondent No.1 has filed counter‑affidavit before this Court and even in this counter‑affidavit details of the detention are not given except making a general allegation that the petitioner had been convicted by a Summary Military Court in the year 1983 for harbouring criminals and was sentenced to suffer. R.I. for two‑ years. As far as history sheet is concerned, it is mentioned in the counter‑affidavit filed before us that the petitioner is history‑sheeter of Saleh Pat Police Station and notorious criminal of that area. As regards the Military Court conviction, no such ground had been taken in the mere of appeal before the Commissioner where the allegation was that the petitioner had been the detenu twice under some MLO. Even otherwise it is not mentioned which Summary Military Court had convicted the petitioner and what is the date o the conviction. The allegations remain vague. As regards the petitioner being a history‑sheeter of Police Station Saleh Pat, this was no mentioned in the memo. of appeal before the Commissioner. On question from the Court, Mr. Shaikh Habibullah, learned counsel for the respondent No.1 submitted that before filing of the appeal before the Commissioner the respondent had approached the SP Sukkur for obtaining copies of the history‑sheet or some entry in the history‑sheet from Police Station Saleh Pat but the S.P. had declined. No such averment had been made in the memo. of appeal and such averment has also not been made even in the counter‑affidavit filed in this Constitutional Petition. The Commissioner was required to decide the appeal on the basis of the material produced before him on the basis of which h could have reached a conclusion that under section 37 (2) of the Sind Local Government Ordinance, 1979 a candidate was disqualified. On vague and general allegations of another candidate, nomination papers of another candidate can not be rejected. In the circumstances, Constitutional Petition No.D‑295/87 allowed and the impugned order dated 17‑11‑1987 of Commissione Sukkur Division, Sukkur/Appellate Authority Local Bodies Elections passed in appeal No. SUK‑3/87 is hereby set aside. Learned counsel informs that the symbols have already bee allotted i.e. on 20‑11‑1987: The result is that the petitioner is entitle to take part in the elections in respect of Unit No. DC 3, Distric Council, Sukkur scheduled for 30‑11‑1987. The Deputy Commissioner/ Returning Officer, Sukkur is directed to allot a symbol to the petitioner by tomorrow i.e. 23‑11‑1987. There will be no order as to costs. CMA 756/87 has become infructuous. M.Y.H/R‑44/K ‑‑‑‑‑ Petition allowed.