1992CLC954 (PLP)

(b) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Disputed question of fact which was to be decided on merits on the basis of evidence could be decided by the Tribunal specially set up for the purpose and same could not be decided in Constitutional petition. Election Commissioner of Pakistan through its Secretary v. Javed Hashami PLD 1989 SC 296 and Nawaz Khan and others v. The 'State 1985 SCMR 629.re

1. M.D. Tahir for Petitioner. Farooq Bedar Addl.‑A.G. for Respondents Nos.l, 2 and

4. Malik Ashiq Hussain for Respondent No.3 Dates of hearing: 14th and 15th January, 1992. This petition was admitted to regular hearing by this Court on 4‑1‑1992 and status quo order was accordingly passed. After admission of the writ petition, C.M. No.2 of 1992 was moved by the contesting respondent praying for recalling the aforesaid status quo order passed by this Court in, which notice was issued to the writ petitioner.

2. Shortly stated the facts of the case are that respondent No.2 Muhammad Iqbai Jehangir and Rana Muhammad Yamin petitioner contested the election of Local Bodies which were held on 28‑12‑1991. Admittedly, the petitioner obtained 115 votes while the contesting respondent got 147 votes. The respondent No.2 was thus declared successful in the aforesaid clection. It is stated that the result of the election has been duly notified by the Returning Officer on 2‑1‑1992. An objection was raised by Mr. M.D. Tahir, learned counsel for the writ petitioner before the Returning Officer that respondent No.2 was not qualified to' participate in the election because he was convicted and sentenced to three years' R.I. and that a period of two years had not elapsed so far and as such he was disqualified to become a candidate in the election. While arguing the case, learned counsel for the contesting respondent submitted that it, was convicted and sentenced in the year 1984 and that two years have elapsed and as such he was competent to file the nomination papers on 8‑12‑1991. Ch. Muhammad Farooq, learned Deputy Attorney‑General and Mr. Farooq Bedar, learned Additional Advocate‑General support the view of learned counsel for the contesting respondent that in view of section 24 of the Punjab Local Government Ordinance, 1979, the only remedy available to the writ petitioner AAs by way of an election petition and that all these objections can be raised by him in the said election petition. Reliance in this behalf has been placed by the learned counsel on the rule laid down in Election Commissioner of Pakistan through its Secretary v. Javed Hashmi PLD 1989 SC 396 and Nawaz khan and others v. The State 1985 SCMR

629. In the aforesaid cases, it was had by the learned Supreme Court that every controversy pertaining to the election matter could be raised in the election petition alone by the concerned candidate before the Election Tribunal and that certainly such like objections cannot be raised in the Constitutional petition before this Court.

3. I have heard the learned counsel for the parties at length and have perused the record. The question whether the contesting respondent was convicted and sentenced in 1984 or in 1986 is certainly a disputed question of. A fact and that it nay be decided on its merits on the basis of evidence in the election petition to be brought before the election tribunal under section 24 of the Punjab Local Government Ordinance, 1979. Learned counsel has argued forcefully that the contesting respondent is admittedly a previous convict and that there is yet another criminal case having been registered against him with Police Station Sadar Kamoke under section 452/506, P.P.C. and that said criminal case is sill pending adjudication before the competent Court of law. He further argues that the contesting respondent has earned a disqualification on the very face of record and as such he may not be allowed to act as a public representative under the law. He further says that the respondent took an oath before the Returning Officer that he was never convicted and sentenced by any Court. Be that as it may, these questions can also be raised by the petitioner before the Election Tribunal. In the circumstances, there is no substance in the petition which is dismissed with no order as to costs. AA./M‑180/L Petition dismissed.