1988 PLP 1084 (CLC)

Date of hearing: 24th November, 1987. NASIR ASLAM ZAHID, J.‑‑This petition has been filed by the petitioner who was a candidate .in respect of election of Unit No.5, Town Committee, Lakhi in the forthcoming Local Bodies elections scheduled to be held on 30‑11‑1987. He filed his nomination papers but the same were rejected by respondent No.2, who is present in person. The appeal filed by the petitioner was rejected by the appellate authority i.e. the Deputy Commissioner, Shikarpur. Being aggrieved, the present Constitutional Petition has been filed. We have heard Mr. Mohammad Hanif Mangi, learned counsel for the petitioner and Mr. Zawar Hussain Jafferi, A.A.‑G. for the respondents Nos. 1 and

2. The columns in the nomination papers as to whether the ,petitioner was an independent candidate or whether he was a member of the political party or the office‑bearer of the political party had been left blank and on this ground the S.D.M. Garhi Yasin/Returning Officer rejected the nomination papers additionally observing that the columns had been left blank not due to oversight and it is to be presumed that these were left blank wilfully being an office‑bearer of the Peoples Party. The appeal of the petitioner has been rejected by the appellate authority on the ground that aforesaid columns have been left blank. In support of the present Constitutional Petition, Mr. Mohammad Hanif Mangi, learned counsel has referred to and relied upon Rule 19(3)(d)(ii) which provides as follows:‑ "The Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith." Mr. Muhammad Hanif Mangi, learned counsel for the petitioner, had argued that the law as it stands today and as it stood on the date when the nomination papers were filed and scrutinised, is that a member of a political party or an office‑bearer of any political party is not disqualified from taking part in the Local Bodies elections. Mr. Zawar Hussain Jafferi, learned A.A.‑G. concedes to this position. We are also of the same view. In the circumstances, the columns relating to the question as to whether the petitioner was an independent candidate or he was an B office‑bearer or a member of the political party was not of substantial nature. Whether the petitioner was an independent candidate or whether he was member or office‑bearer of a political party, would not have deprived him of the right to take part in the elections of the Local Bodies being held on 30‑11‑1987. The Returning Officer, in the circumstances, should have asked the petitioner to fill up these blanks which are of inconsequential nature. We may also refer to the Manual of Instructions for the guidance of the Returning Officers issued by the Provincial Election Authority, Sind in respect of Local Bodies Elections, 1987. Under instruction No. 6 of Chapter II at page 8 of the Manual of Instructions it is stated as follows:‑ "The Returning Officer shall not reject a nomination paper because of any defect which is not of a substantial nature. Such defects should be allowed to be remedied forthwith. It should be borne in mind that a person, not disqualified to be elected as a member under the law, should not be deprived of contesting the election simply because of a remediable flaw in the nomination paper. The right to franchise and to contest election is the most valuable right and no one entitled to it may be deprived of it on the basis of trivialities." In the circumstances, we are of the view that neither the Returning Officer nor the appellate authority should have rejected the nomination papers of the petitioner on the ground that the columns relating to the questions about the petitioner being an independent C candidate or belonging to a political party or ‑being an office‑bearer of a political party had been left blank. In such cases, the Returning Officer should have asked the petitioner to fill in the columns which were of inconsequential nature. The nomination papers were not liable to be rejected on such trivialities. As a result, Constitutional Petition No. 302 of 1987 is allowed and the impugned orders of the Returning Officer/S.D.M., Garhi Yasin and the appellate authority i.e. Deputy Commissioner, Shikarpur are declared to have been passed without lawful authority and to be D of no legal effect and the result is that the nomination papers of the petitioner are deemed to have been accepted and he can take part in the forthcoming elections scheduled to be held on 30‑11‑1987. It is informed that the symbols have already been allocated to the candidates whose nomination papers have been accepted. The Returning Officer/ S.D.M. Ghari Yasin is present in person. He is directed to allocate a symbol to the petitioner by 4‑00 p.m. tomorrow i.e. 25‑11‑1987. There will be no order as to costs. M . Y. H . /N‑88/ K ‑‑‑‑‑ Petition allowed.