2002CLC281 (PLP)

Date of hearing: 31st July, 2001. MUHAMMAD ROSHAN ESSANI, J.‑The petitioners through this Constitutional petition have sought following relief:‑‑ (i) That it is, therefore, prayed that the impugned orders of the respondent No. l and may be set aside and the nomination form of petitioner may be accepted. (ii) That respondents be directed to add the name of the petitioner in the list of candidates of Tehsil Council, Shahdadpur. The brief facts of the case are that the petitioners Nos. l and 2 filed their nomination forms for the post of Nazim and Naib‑Nazim for Tehsil Council, Shahdadpur. The Returning Officer on scrutiny of the forms rejected the nomination form of petitioner No. l on the ground that the petitioner No. l is proclaimed offender in Sessions Case No. 38 of 1995 arising out of Crime No. 15 of 1995 of Police Station, Shahdadpur. The petitioner No.1 challenged the said order before the District Returning Officer/ District Judge/Appellate Authority, Sanghar in appeal but the same was also dismissed by impugned order dated 25‑7‑2001. The petitioners have challenged the aforesaid two orders by this petition. The notices were issued to private respondents. The respondent No.3 Haji Wahid Bux has filed his counter‑affidavit in rebuttal of the contents of petition. He has‑ stated therein that the petitioner No. l is not a man of good character and his case is hit by section 14(d) of Sindh Local Government Elections Ordinance and Rules, 2000. It is further stated that the petitioner No. l is absconding in Sessions Case No. 38 of 1995 St. v. Hakim Ali and others under sections 324 and 353, P.P:C. pending trial in the Court of learned Additional Sessions Judge, Sanghar. The trial Court issued N.B.Ws. against the petitioner No. l time and again which were not executed upon the petitioner No. l and ultimately on 28‑2‑2000 the petitioner No. 1 was declared as absconder and order under section 51d, Cr.P.C. was passed against him. Proclamation under section 87, Cr.P.C. was also ordered which was followed by the order under section 88, Cr.P.C. for the attachment of his property. Thereafter, the case was fixed for charge on 5‑4‑2000. The attachment proceedings are pending before the Mukhtiarkar, Shahdadpur. It is contended by the learned counsel appearing on behalf of the petitioners that the petitioner No. l is respectable citizen of this country and his right of franchise is guaranteed by the Constitution of Pakistan, 1973. The same has been denied by the respondents Nos. l and

2. The petitioner No. l has been discriminated and his nomination form has been rejected without any substantial reason. It is further contended that the case of the petitioner does not fall under section 14(d) of the Elections Ordinance and Rules, 2000. The petitioner No. l was granted protective bail by this Court, therefore, the petitioner No. l has remained no more proclaimed offender. He is Zamindar and remained member of District Council. He is law‑abiding citizen. The respondents Nos. 1 and 2 have wrongly held that the petitioner is not a main of good character. Mr. Ahsan Ali Shah learned counsel on behalf of the respondents Nos. 3 and 4 has reiterated the contents of counter‑affidavit and argued that the petitioner was absconder in Sessions Case and proceedings under sections 87 and 88, Cr.P.C. were initiated against him. He is still absconder and has not surrendered before the learned Sessions Judge for seeking his pre-arrest bail. The learned counsel has produced the relevant case diaries which are placed on record. He pleaded that the petitioner No. l is not a man of good character and his case is hit by the provisions of section 14 of the Ordinance (ibid). He is not eligible and qualified to be Nazim of the Tehsil. Mr. Masood A. Noorani learned Additional Advocate‑General has stated that the petitioner No .l is involved in criminal activities and is absconder in Sessions case. The petitioner No.1 is declared absconder and proceedings under sections 87 and 88, Cr.P.C. have been initiated against him. Therefore the petitioner No.1 cannot be held to be of good character. Mr. Hakim Ali Siddiqui learned standing counsel appearing on behalf of the learned Dy.A.‑G. has adopted the arguments of the learned Additional Advocate‑General. The perusal of impugned orders and the record shows that' criminal case bearing S.C. No.38 of 1995 (State v. Hakim Ali and others) is pending before the learned Additional Sessions Judge, Sanghar since last more than 6 years. The trial Court issued N.B.Ws. against the petitioner No.1 time and again but the same could not be executed upon him. The case diaries further shows that on 28‑2‑2000, the statement or process‑server was recorded and order of absconsion against the petitioner under section 512, Cr.P.C. was passed. The proclamation was issued under section 87, Cr.P.C. by the trial Court which was followed by the order of the attachment of property under section 88, Cr.P.C. However, after the nomination forms were rejected on this ground, the petitioner approached this Court and obtained protective bail. The conduct and behaviour of petitioner No.1 demonstrates that the petitioner No.1 has thwarted the process of the Court and is fugitive from law. Merely because the petitioner No. l had sought protective bail, therefore, it cannot be said that the absconsion order and proclamation orders have been undone by the grant of protective bail which was granted for a very limited period. Consequently it cannot be said or declared that the petitioner No. l was enjoying good character or possessing good reputation. The case of the petitioner No. l was rightly held to have been hit by the provisions of section 14 of the Sindh Local Government Elections Ordinance and Rules, 2000. The power under Constitutional jurisdiction can only be exercised and used in aid of justice and not to promote the injustice. The powers are to be used and exercised fairly, justifiably and reasonably. Looking towards the peculiar facts and circumstances of the case we do not find any infirmity or illegality in the impugned orders which require no interference. The petition stands dismissed with no order as to costs. H.B.T./H‑51/K Order accordingly.