2006 PLP 349 (CLC)

MIAN HAMID FAROOQ, J.

Petitioners filed nomination papers, for the seats of Nazim and Naib Nazim, respectively, from U.C. No.56, Gujrat-XII. Respondent No.2 raised an objection that the petitioner No.1 is not an eligible voter, as he is not enlisted in the voters list. The learned Returning Officer, while rejecting the said objection, accepted petitioners' nomination papers, vide order, dated 30-7-2005. However, respondent No.2's appeal was allowed by the learned District Returning Officer, vide impugned order dated 3-8-2005 and the nomination papers of the petitioners were rejected, hence the present constitutional petition.

2. Learned counsel for the petitioners states that name of petitioner No.1 exists in the electoral roll at serial No.590, but the learned District Returning Officer has misconstrued the voters list. He, while placing on record certified copies of voters list for 2000-2001, issued on 8-8-2005, adds that name of petitioner No.1 exists at serial No.590, thus, he is eligible to contest the election. He has placed on record certified copy of the order, passed by the appellate authority, to contend that in the similar circumstances, the same appellate authority allowed another person to contest the election but the petitioners have been discriminated. Conversely, the learned counsel for respondent No.2, while placing on record the following documents, submits that the petitioner is not a voter in the voters list for the year 2000-2001, therefore, he is not eligible to contest the election: (i) Certified copy of report, submitted by the Assistant Election Commissioner, Gujrat to the District Returning Officer. (ii) Certified copies of application filed by the petitioner No.1 and the order passed by the Assistant Election Commissioner. (iii) Certified copy of F.I.R. No.513. (iv) Original letter from Election Commissioner of Pakistan to Provisional Election Commissioner of Punjab.

3. I have heard the learned counsel for the parties and examined the available record. Both the parties have placed on record different documents in support of their respective claims, which prima facie go counter to each other. Certified copy, issued by the office of District Returning Officer, signed by the Returning Officer, shows that name of the petitioner No.1 does exist at serial No.590, while on the other hand, the documents, produced by respondent No.2, manifest that the petitioner is not a registered voter. Both the parties have disputed the veracity of the documents, produced by the other party. At this stage, it A cannot be determined and conclusively held as to which set of documents is genuine or forged. If the documents produced by the petitioners are summarily brushed aside, they will be deprived from participating in the forthcoming elections. This Court, in exercise of its constitutional jurisdiction, cannot determine the genuineness of the documents, which exercise can only be undertaken after recording evidence. It appears appropriate to reproduce a portion of the judgment in the case reported as Haji Arshad Ali v. Sardar Faisal Zaib and others 2003 SCMR 1848, which reads as follows:-- "The dispute raised by the petitioner is about the age of the respondent and his character. According to him, he had prepared a number of documents in which he has shown his age on different dates.

3. At this stage, we are not inclined to interfere in the impugned order and to deprive the respondent from contesting the elections. All the questions raised by the petitioner are necessarily questions of facts which can be determined after recording elaborate evidence which cannot be done in these proceedings because they are summary in nature. It will be open to the petitioner to raise these questions in the election petition in case the respondent is elected in the election which question shall be decided by the Election Tribunal after recording evidence uninfluenced by the orders passed in the present proceedings by the Returning Officer and the learned Judge of the High Court." Being guided by the aforesaid observation of the Honourable Supreme Court of Pakistan, since in this case all the questions raised by the learned counsel for the parties are questions of facts, which can only be decided after recording evidence of the parties, therefore, to my mind, it would be in the fitness of things if the petitioners are, at present, allowed to contest the election and if they succeed, the respondent can raise these questions in the election petition, which of course will be decided by the Election Tribunal after recording evidence.

4. In the above perspective, the present petition is decided in the following terms:-- (i) Order dated 3-8-2005, passed by the learned District Returning Officer, is set aside and that of the Returning Officer dated 30-7-2005 stands restored. (ii) Resultantly, the petitioners are allowed to contest the forthcoming Local Bodies Elections. (iii) If the petitioners succeed in the elections, the respondent No.2, if he so chooses, may file the election petition and raise all the questions, and in that case the Election Tribunal shall decide the election petition after recording evidence of the parties. (iv) No order as to costs. H.B.T./A-646/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.