2017 PLP 265 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned Constitution Petition, petitioner Ali Muhammad Marri has invoked constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer to declare that respondent No.5 is not eligible to contest the election for the seat of Labour or Peasant for the Town Committee of Berani, in Local Government Elections, and acceptance of nomination form of the respondent No.5 by the Returning Officer and Appellate Authority by validating his candidature is illegal, unlawful, unconstitutional and ultra vires.

2. Learned Counsel for petitioner contended that petitioner participated in Sindh Local Government Elections, 2015 and contested the election for General Member from Ward No.1 of Town Committee Berani against respondent No.5 and won the election; that respondent No.5 is real brother of petitioner and they hail from the well-known political and agricultural family of District Sanghar, and are sons of late Atta Muhammad Marri who had held very prominent positions in the executive and legislature and remained a Member of West Pakistan Assembly in the year 1967 and Member of National Assembly of Pakistan in 1970's and 80's etc, and are brothers of the sitting MNA. Learned counsel further submitted that respondent No.5 remained Member of Youth Parliament of Pakistan and is presently working in Dubai Islamic Bank Limited as Assistant Relationship Manager, Phase-IV, D.H.A, Karachi, and is drawing more than Rs.600,000/- as salary per-annum, and he being member of affluent political and agricultural family of Sanghar, holds plentiful assets in Pakistan and USA and is enjoying luxurious life style and also travels abroad several times in a year. Learned counsel further urged that previously respondent No.5 had filed declaration of assets along with his nomination form for the seat of General Member of Town Committee, which shows that he is owner of five properties worth Rs.500,000/-, but he had concealed the actual properties and filed a false declaration. Learned counsel further contended that respondent No.5 after losing his earlier election, again has filed nomination form for the reserved seat of Labour/Peasant from Town Committee Berani, while the petitioner being a proposer of the contesting candidate for the post of Labour Member against respondent No.5, raised objections against said nomination form before respondent No.4 during the scrutiny of papers, but under the influence of the ruling government, respondent No.4 gave deaf ear to the objections of the petitioner and ignored well settled principles of law regarding eligibility of Peasant/Labour Member and accepted the nomination form of respondent No.5. Learned counsel lastly contended that petitioner challenged said acceptance of form before the Appellate Authority/ District Judge, Sanghar through Election Appeal No.09/2016, but the same was dismissed vide impugned order by ignoring the fact that respondent No.5 is shareholder of 20 acres of land left by his deceased father, thus in no manner he falls under the umbrella of Labour or Peasant class and acceptance of nomination papers of respondent No.5, in utter violation of election laws, are liable to be rejected. Learned counsel has relied on PLD 2015 Lahore 522, 2004 CLD 162, 1983 CLC 2965 and 2014 CLC 1490.

3. While controverting the above submissions, learned Counsel for respondent No.5 contended that he is employed in Dubai Islamic Bank Limited as Assistant Relationship Manager, which is a clerical job/labour level and drawing basic salary of Rs.27,333/- per month and he does not hold any property/assets in Pakistan, USA or at any other place; that he has been cultivating his own agricultural land with the assistance of his servants and haris; that the property shown in Annexure "S/1" filed by petitioner is not owned or possessed by respondent No.5, hence allegations of maintaining luxurious life or travelling abroad are false. Learned counsel further emphasized that petitioner had neither raised any objection against the nomination of respondent No.5 nor appeared at the time of scrutiny of nomination forms on 10.05.2016 and has falsely pleaded such ground only to misguide the Court and Form-VII filed as Annexure "H" by respondent No.5 is legal, valid and binding on the petitioner, hence petitioner had neither any locus standi to file instant Constitution Petition nor appeal filed before Appellate Authority was maintainable under the law. Learned counsel further submitted that petitioner has leveled a series of false and fabricated allegations only to deprive the respondent No.5 from his fundamental right with ulterior motives, while there is no emwbargo in Sindh Local Government Act, 2013, for a peasant to do any other job to earn his livelihood to maintain his family; that respondent No.5 being a member of Youth Parliament, was working for the awareness and grooming of the youth, and no financial benefit was received by him.

4. Learned Additional Advocate General, Sindh vehemently contended that petitioner did not file objections before the Returning Office nor appeared at the time of scrutiny of nomination papers but thereafter he with ulterior motives filed an appeal before the Appellate Authority and deliberately did not implead the Election Commission of Pakistan, Islamabad, Provincial Election Commission of Sindh, Karachi and Returning Officer as respondents in said appeal though they were necessary parties to clarify the legal position. Learned AAG further contended that petitioner has already been elected as Member in Local Government Elections, and he is not participating in present election, hence he has no locus standi to file instant petition. Learned A.A.G further contended that order passed under section 18(5) of Sindh Local Government Act, 2013 was final, against which no appeal can be filed under relevant laws, while under Rule 51(5) of Local Government Election Rules, 2015, appeal can only be filed against the rejection of nomination form. Learned AAG further urged that respondent No.5 vide notification dated 08.06.2016 has already been notified by the Election Commission of Pakistan but petitioner did not challenge the said notification nor has sought amendment in instant petition to impugn the validity of said notification, which has attained finality. Learned A.A.G has relied on 2009 SCMR 1055.

5. Heard learned counsel for the parties and perused the material available on record prudently.

6. Perusal of record emanates that petitioner has alleged that respondent No.5 is posted as Assistant Relationship Manager in Dubai Islamic Bank Limited and has been drawing a salary more than Rs.600,000/- per-annum, but he has failed to file any proof in support of his contentions. Conversely, petitioner has emphasized that he is employed in Dubai Islamic Bank Limited as Assistant Relationship Manager, which is a clerical job/labour level and drawing basic salary of Rs.27,333/- per month and he does not own any other property/assets in Pakistan, USA or at any other place. Thus, in absence of any documentary evidence and solid proof, the allegations leveled by the petitioner have no legal substance to be considered. However, mere being a member of the Youth Parliament without any details of privileges being availed by the respondent No.5, it could not be presumed that he had availed any financial benefits, consequently, said membership will not affect the claim of respondent No.5.

7. The next objection raised by the petitioner that respondent No.5 is a shareholder of 20 acres of land left by his deceased father, which on the contrary has strengthen the claim of the respondent No.5 that he has a small piece of land and he himself has been cultivating the same with the assistance of his servants and haris. Indeed, cultivation of agricultural land is the main condition for contesting elections for the post of Peasant/Labour Member. Per section 3(1i) of Sindh Local Government Act, 2013, Peasant includes a person who is engaged personally in the cultivation of land, while use and assistance of servants is neither restricted nor an exclusion. Nevertheless no minimum or maximum limit of agricultural land has been specified in above said section for the eligibility of a Peasant therefore, respondent No.5 could not be disqualified from contesting election of Peasant/Labour on the pretext of owning 20 acres of ancestral agricultural land.

8. Per Rule 18 (1) of Sindh Local Councils (Election) Rules-2015, the candidates, their election agents, proposers and seconders, and one other person authorized in this behalf by each candidate and the person who made a representation against the nomination paper may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under rule

16. Per Sub-Rule (2), the Returning Officer shall in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide any objection raised by any such person to any nomination. Indeed, petitioner has neither filed any objections against the nomination papers filed by the respondent No.5 before the Returning Officer nor he made his appearance at the time of scrutiny of the nomination papers, and no cogent documentary proof has been produced by the petitioner to establish his such stance. In absence of any objection, Returning Officer after conducting proper scrutiny accepted the nomination papers and respondent No.5 was found to be eligible to contest the election for Peasant/Labour Member for Town Committee Berani.

9. For convenience, Rule 51(5) of Sindh Local Councils (Election) Rules-2015 is reproduced as follows:-- "(5) Any candidate whose nomination paper has been rejected, may file an appeal to the appellate authority to be appointed by Election Commission before such time as may be specified by it. Such appeal shall be disposed of before such time as may be specified by the Election Commission and any orders passed in this behalf shall be final". On the careful perusal of sub-clause (5) of Rule 51, it is crystal clear that any candidate, whose nomination papers have been rejected, may file an appeal to the Appellate Authority to be appointed by the Election Commission before such time as may be specified by it, while appeal against acceptance of the forms is not provided in Sindh Local Government Rules, 2015. It is significant to mention that Election Commission of Pakistan, Islamabad vide notification No.F-9(1)/ 2015-LGE-(5), Islamabad, 8th June, 2016, has already notified the list of Returned Candidates for reserved seats for Municipal Committee/Town Committee in respect of District Sanghar, and name of respondent No.5 is included at Serial No.15 for Town Committee Berani being the candidate of PPPP. Similarly, Election Commission of Pakistan, Islamabad vide notification No.F-6(16)/2015-LGE-(S), Islamabad, 29th July, 2016, has also notified and fixed date 02.08.2016 for administering oath to the members of Union Councils and Union Committees against reserved seats of Women, Peasant/Worker, Youth and Non-Muslim.

10. While adverting to the merits of present matter, petitioner neither filed any written objections before the Returning Officer within the period prescribed by the Election Commission of Pakistan nor appeared before the Returning Officer at the time of scrutiny of the nomination papers of the respondent No.5. Nevertheless, petitioner filed an appeal before the Appellate Authority but he did not implead the Election Commission of Pakistan, Islamabad and Provincial Election Commission of Sindh, Karachi and Returning Officer in the array of respondents though they were necessary and proper parties to clarify the legal position to adjudicate the allegations or the merits. Similarly, petitioner has not placed any documentary proof regarding owning other properties by the respondent No.5 nor he has established his allegations to prima facie establish the other means of earning of respondent No.5 through any solid evidence, thus verbal allegations could not be considered to be genuine. Conversely, petitioner has not impugned the above referred both notifications issued by the Election Commission of Pakistan, Islamabad being the competent authority which are still holding their field. Even the petitioner has not amended instant petition nor filed any such application, and no restraining order against Election Commission of Pakistan was sought from this Court. Consequently, we are of the firm view that in presence of two notifications referred supra, the question of status of respondent No.5 could not be agitated at this belated stage. The case law referred by the learned counsel for the petitioner are pertaining the rejection of nomination papers of the candidate but in present case, nomination papers were accepted by the Returning Officer and appeal was dismissed, hence same are distinguishable. Indeed, petitioner has already been elected as Member in Local Government Elections, and he is not contesting the present elections, thus he is not an aggrieved person nor he has no any locus standi to file instant petition.

11. As the sequel of the discussion of the facts and circumstances referred supra, neither the petitioner is an aggrieved person nor he has been contesting election for Peasant/Labour Member for the Town Committee, thus he has no locus standi to file instant Constitution Petition for the relief claimed. Consequently, instant petition stands dismissed. These are reasons for the short order dated 23.08.2016, passed by us whereby instant constitution petition was dismissed, which is reproduced as under:- "For the reasons to be recorded later on, instant Constitution Petition stands dismissed being non-maintainable along with listed applications". ZC/A-147/Sindh Petition dismissed.