2006 PLP 383 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Muhammad Rafiq and Rana Mudassar Hussain petitioners are aggrieved of the order dated 24-7-2005 passed by Returning Officer (rejecting their Nomination Papers for the office of Nazim and Naib Nazim of Union Council No.14, Tehsil Chishtian) and also the order dated 27-7-2005 passed by the District Returning Officer rejecting their appeal against the abovementioned order of the Returning Officer.

2. The facts briefly stated are that petitioners filed their Nomination Papers for the office of Nazim and Naib Nazim of the relevant Union Council. During scrutiny of their Nomination Papers, an objection was raised by respondents Nos.3 and 4 that Muhammad Rafiq petitioner No.1 was not holding the qualification of Matriculation required for the said election and was not possessing Certificate of Matriculation, further the statement of marks submitted by him was not in accordance with law, therefore, he was not eligible to contest the elections. The learned Returning Officer vide detailed order dated 24-7-2005 after hearing both the parties in depth, upheld the objection of respondents Nos.3 and 4 and rejected the petitioner's Nomination Papers. The petitioners being dissatisfied with the said order of Returning Officer preferred an appeal which too was dismissed by the District Returning Officer vide impugned order dated 27-7-2005. Hence, through this writ petition the petitioners seek reversal of both the abovementioned orders and pray that they be declared as validly nominated candidates for the seats of Nazim and Naib Nazim of Union Council No.14, Tehsil Chishtian.

3. It is argued with vehemence by the learned counsel representing the petitioners that scrutiny process being summary in nature, the respondents Nos.1 and 2 had no jurisdiction to go in depth and they were bound to accept the documents submitted by the petitioners in support of their respective contentions. It is next contended that although at the time of scrutiny the petitioner No.1 was not in possession of matriculation certificate and for that purpose he only submitted marks sheet but later on he succeeded in obtaining the original certificate of Matriculation from Board of Secondary Education, Karachi showing him having passed Secondary School Examination, 2003 in General Group. The learned counsel in support of his contention has placed on record a copy of Verification of Certificate from Controller of Examination, Board of Secondary Education, Karachi and argued that in the presence of this evidence there was no occasion for respondents Nos.1 and 2 to have declared the petitioners lacking the requisite qualification to contest the election. Learned counsel in support of his arguments has placed reliance on the cases reported as "Abdul Sattar Lalika v. Ch. Sajid Ahmed and another" 2003 MLD 459; "Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others" PLD 2004 Lahore 213 and "Nawabzada Mir Balach Khan Marri v. Mir. Mohabat Khan Marri and 4 others" (sic). ?

4. On the other hand, learned counsel representing the contesting respondents have placed on record a Certificate issued by the Assistant Secretary Admn-II, Board of Secondary Education, Karachi dated 25-7-2005 which reads as under;-- "This is to certify that Admit Card Serial Number 30009 and Roll No.456080 for S.S.C. Examination Annual 2003 was issued to A Muhammad Rafiq son of Abdul Badul Ghani having NIC Number 517--70-117035 permanent resident of F-11/2791 North Nazimabad, Karachi and domicile of Sind Province as per our record." Further attested copies of two documents have been placed on record which contain photograph of Muhammad Rafiq son of Abdul Ghani who in fact had appeared in the examination and passed the said exam. under Roll No.456080 for which Secondary School Certificate was issued, which is now being owned/claimed by the present petitioner as his Certificate. These documents further indicate that Muhammad Rafiq son of Abdul Ghani who had originally appeared in the said examination was the resident of F.11/2791, North Nazimabad, Karachi and was domiciled from Sindh and was declared to be successful, whereas the present petitioner No.1, though is also son of one Abdul Ghani but his place of residence is altogether different i.e. resident of Gulberg Town, 14-Gijani, Tehsil Chishtian, Bahawalnagar and is different person from the original Muhammad Rafiq from Sindh, Karachi. On the basis of said material, learned counsel for the respondents argued that Nomination Papers of the petitioners were rightly rejected and appeal was also correctly dismissed.

5. I have considered the arguments of learned counsel for the parties and have also gone through the relevant material available before me.

6. There is no cavil to the proposition that scrutiny proceedings in election matters are summary in nature and no specific findings can be recorded, which is only possible after recording of elaborate evidence by the Election Tribunal yet the fact remains that question of qualification/disqualification being fundamental one, it is the duty of the candidate to prove that prima facie he was holding the requisite qualification in order to establish his entitlement to contest the election, otherwise, the requirement of having the requisite qualification would become redundant and there would have been no need at all for enumerating qualification or disqualification in section 152 of the Punjab Local Government Ordinance, 2001. In several cases including the one decided through Writ Petition No.2768 of 2005, I myself have taken a view that findings of fact cannot be gone into in constitutional jurisdiction which can only be determined after recording of proper evidence through full-fledge trial. But it is also an established law that while deciding each matter its peculiar facts be kept in mind and if disputed question of fact is sailing at the surface and can be resolved tentatively there is no bar from determining the same in constitutional jurisdiction, otherwise it would amount to perpetuating injustice. The constitutional jurisdiction being discretionary in nature cannot be used in aid of retention of illegal gain or for that matter in aid of injustice. Reliance is placed on the cases reported as "Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others" PLD 2001 SC 415; "Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others" PLD 1973 SC 236 and "Nisar-ul-Haq v. Tehsil Municipal Administrator City through Nazim and 2 others" PLD 2002 Lahore 359.

7. The Certificate submitted by the respondents issued by the Assistant Secretary Admn.-II, Board of Secondary Education, Karachi prima facie, proves that the matriculation certificate submitted by petitioner No.1 along with this writ petition is not that of Muhammad Rafiq petitioner but is in fact the property of some other Muhammad Rafiq. Son of Abdul Ghani from Nazimabad, Karachi. This fact is further supported by an attested document issued by the said Assistant Secretary Admin-II of the same Board indicating the particulars including the photograph of original Muhammad Rafiq who had in fact appeared in the exam. and is possessor/owner of the said Certificate, who is definitely different from the petitioner.

8. So far as the case law cited by the learned counsel for the petitioners is concerned, the same is distinguishable and is not applicable to the facts and circumstances of the instant case.

9. I am therefore, convinced that no illegality or irregularity has been committed by the Returning Officer or the District Returning Officer while rejecting Nomination Papers of the petitioners and dismissing their appeal. The same having been passed with jurisdiction are not open to exception. Resultantly, this writ petition fails and is accordingly dismissed, with no order as to costs. S.A.K./M-1258/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.