2006 PLP 87 (CLC)

ABDUL SHAKOOR PARACHA, J.

Petitioner Raja Muhammad Safdar along with respondent No.4 Shahbaz son of Ghulam Hussain submitted nomination papers for the election of the office of Nazim and Naib Nazim, respectively, from Union Council No. 105 Lodhra, Tehsil and District Rawalpindi, on 25-7-2005. Raja Shujaat Sarwar Bhatti, respondent No.3 herein, a voter from the said constituency filed an objection petition qua the nomination papers of the petitioner with the contentions that the petitioner was discharged from the Army on the ground of bearing unsatisfactory character and unfit of civil service. The petitioner allegedly forged the discharge document and contested the election from the Union Council, which election was declared void by the Election Tribunal vide order, dated 5-7-2003, therefore, the petitioner was disqualified from contesting the election; the respondent No.3 filed objections qua the nomination papers of Shahbaz Naib Nazim of the petitioner; respondent No.2 Returning Officer dismissed the objections and accepted the nomination papers of the petitioner and his Naib Nazim vide order, dated 30-7-2005; Raja Shujaat Sarwar Bhatti feeling dissatisfied with the order of the Returning Officer filed an appeal under Rule 14(4) of the Punjab Local Government Elections Rules, 2005. The learned District Returning Officer; respondent No. 1, allowed the appeal, upheld the objection and rejected the nomination papers of the petitioner and his Naib Nazim on the ground that the petitioner contested the elections of Nazim of Union Council and his nomination papers were accepted and he had won the elections; consequently an election petition was filed against him and the Election Tribunal vide order, dated 5-7-2003 declared his election illegal; though the order of the Election Tribunal dated 5-7-2003 had been suspended by this Court in Writ Petition No.2129 of 2003, but since no final order has been passed by this Court, therefore, the order of the Election Tribunal dated 5-7-2003 would hold the field and since the petitioner has served in the Army and his services were terminated from the Army by holding him unfit to be retained in the Army and unfit to hold service anywhere, therefore, in view of the finding of the Election Tribunal the petitioner was disqualified to contest the elections. Aggrieved by the impugned order of the Returning Officer, the petitioner has filed the instant writ petition.

2. The learned counsel for the petitioner contends that the findings of the Election Tribunal given in his order dated 5-7-2003 declaring the previous election of the petitioner as illegal could have not been made basis for disqualification of the petitioner because the order dated 5-7-2003 of the Election Tribunal is sub judice before this Court in Writ Petition No.2129 of 2003 and this Court vide order, dated 15-8-2003 suspended the order of the Election Tribunal. The learned counsel relies on the meaning of the word "suspend" contained in the Black's Law Dictionary 5th Edition, according to which the word "suspend" means to interrupt, to cause to cease for a time; to postpone, to stay, delay, or hinder, to discontinue temporarily and contends that the order of the Election Tribunal dated 5-7-2003 is not final and is subject to the result of Writ Petition No.2129 of 2003. Further contends that any order which is passed in reference to a particular election is operative qua that election only. He relies on the provisions of sections 152(1)(g)(1) and 152(2) of the Punjab Local Government Ordinance, 2001 and section 163 of the said Ordinance. Further contends that if some forgery has been committed by the petitioner which is subject to the decision of this Court would not attract the provisions of section 152(1)(g)(1) of the Ordinance and one instance of omission and commission on the part of the petitioner would not reflect his character.

3. Conversely, the learned counsel for the respondent, who accept notice on behalf of respondent No.3, contends that the Tribunal has recorded a finding of fact that the petitioner had committed forgery in his service certificate therefore, the petitioner is not qualified to contest the election as per provision of section 152(1)(g)(1) of the Ordinance, because the finding of fact recorded by the Election Tribunal tells upon. bad character of the petitioner; the Election Tribunal's order, dated 5-7-2003 was suspended on 15-8-2003 by this Court in Writ Petition No.2129 of 2003 on a legal ground. Further contends that the petitioner was involved in three criminal cases, i.e. F.I.R. No. 107 dated 11-4-1995 registered under the Gambling Act, F.I.R. No.144 dated 30-5-1989 under sections 307/147/149, and F.I.R. No.216 dated 11-4-1995 under the Gambling Act.

4. In rebuttal, the learned counsel for the petitioner relies on the cases reported as Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCMR 1736 and Munir Ahmad and another v. District Returning Officer/Appellate Authority, Sargodha and others 2004 SCMR 1456 to contend that the report with the police is not conclusive proof of the allegations levelled in the F.I.R. The allegations have to be proved in accordance with the provisions of Article 66 of the Qanun-e-Shahadat Order, 1984 through an elaborate inquiry by a competent Court of jurisdiction.

5. I have heard the learned counsel for the parties and perused the impugned order passed by the learned District Returning Officer dated 3-8-2005. At the out-set, it is observed that the District Returning Officer has illegally relied on the order of the learned Election Tribunal dated 5-7-2003 and recorded a finding that the same is still in force. The order of the Election Tribunal dated 5-7-2003 was suspended by this Court vide order, dated 15-8-2003 while hearing Writ Petition No.2129 of 2003. The effect of suspension order of this Court is that the order of the Election Tribunal dated 5-7-2003 is not in field for the time being. The meanings of the word "suspend" have been given in the Black's Law Dictionary, 5th Edition page 1297 as under:

'-suspend' means to interrupt, to cause to cease for a time; to postpone, to stay, delay, or hinder, to discontinue temporarily." As far as the registration of three cases against the petitioner, referred to above, is concerned, mere registration of the case against him through the above mentioned F.I.Rs. would not tell upon the bad character of the petitioner and does not disqualify him to contest elections as per provisions of section 152(1)(g) of the Punjab Local Government Ordinance, 2001. In the case of Raja Muhammad Afzal 1986 SCMR 1736 (supra), it was held that "the police report could not be admitted as evidence of correctness of facts stated therein

Such a report being opinion of the Police Officer would only prove that same was made in a case

However, as regards correctness of contents thereof same was of C no value".

6. The above rule of law has been reiterated by the Honourable Supreme Court in the case of Munir Ahmad 2004 SCMR 1456 (supra), wherein it was held that, "While determining character of a person, in view of 5.45 of the Evidence Act, 1872 [Qanun-e-Shahadat (10 of 1984), Art.66], opinion of individuals about character, conduct and disposition would not be admissible in evidence but specific instances only from which an inference with regard to fact in issue could be drawn, were admissible

No , specific evidence had been produced by objectors to establish that the candidate was not man of good character

Candidate could not be held to be a man of bad character in circumstances."

7. Whether the petitioner's services were terminated from the Army by holding him unfit to be retained there and unfit to hold service anywhere and the certificate was allegedly forged, to which effect the Election Tribunal has recorded a finding against the petitioner in his order, dated 5-7-2003 on the basis of evidence, which is subject to scrutiny by this Court, but the order of the Election Tribunal, as stated above, has been suspended by this Court and the said order of the learned Tribunal is under scrutiny of this Court in Writ Petition No.2129 of 2003.

8. In view of the above I do hold that the petitioner cannot be termed as a person of bad character as envisaged in section 152(l)(g)(1) of the Punjab Local Government Ordinance, 2001. This being so, this writ petition is allowed, the order, dated 3-8-2005, passed by the District Returning Officer, Rawalpindi, is declared to have been passed without lawful authority. The result would be that the order of the Returning Officer dated 30-7-2005 accepting the nomination papers of the petitioner stands restored. The name of the petitioner shall be included in the list of validly nominated candidates. M.A.W./M-1326/L Petition allowed.