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Petitioner: Syed ALLAH YAR SHAH VS Respondent: ELECTION AUTHORITYHonorable Justice Ajmal MianRasool Bux Umar,Ajaz Ali Hakro
1988 M L D 253
1988 M L D 253
[Karachi]
Before Ajmal Mian and Abdul Razzak A. Thahim, JJ
Syed ALLAH YAR SHAH‑‑Petitioner
versus
ELECTION AUTHORITY and others‑‑Respondents
Constitutional Petition No. 1568 of 1987, decided on 25th November, 1987.
Sind Local Government Ordinance (XII of 1979)‑‑
‑‑‑S. 38‑‑Election‑‑Minority seat‑‑Rejection of nomination paper‑‑Petitioner belonging to minority community filed nomination paper against minority seat‑ Proposer and seconder also from minority community but mentioned TC 2 and 3, meant for Muslims, instead of TC 8 which was reserved for minority community‑‑ Returning Officer rejected nomination papers of petitioner‑‑Mistake occurred for reason that electoral roll contained Unit Nos. 2 and 3 which were translated into* TC 2 and 3 by proposer and seconder‑‑Mistake, held, was not of substantial character so as to deprive petitioner to exercise right of franchise‑‑Since neither petitioner nor proposer nor seconder could have proposed or seconded a candidate other than a non‑Muslim and as Returning Officer was same and date for filling nomination paper also same, said mistake should have been overruled by Returning Officer‑‑Order of Returning Officer rejecting nomination papers of petitioner set aside and Authorities concerned directed to accept his nomination papers and allot him symbol.
Hashim Mullah v. Returning Officer, Ebrahim Hydri Union Council and others P L D 1960 (W.P.) Kar. 233 rel.
Rasool Bux Umar for Appellant.
Ajaz Ali Hakro for Respondent.
A. Rahim Kazi, Addl. A.‑G. for Respondent No. 4.
Date of hearing: 25th November, 1987.
JUDGMENT
AJMAL MIAN, J.‑‑This petition is directed against the orders dated 13 11‑1987 and 18‑11‑1987 passed by Respondents 2 and 3 respectively.
2. The brief facts leading to the filing of the above petition are that the petitioner belongs to minority community, namely, Hindu. TC 8 Bhitshah has been reserved for the minority community. It appears that in the electoral roll of TC 2 and 3 the names of Hindu voters are mentioned without mentioning TC 8. It also appears that the petitioner filed the nomination paper. The proposer and the seconder are also Hindus and have mentioned TC 2 and 3 instead of TC 8 which was the seat reserved for minority community as stated hereinabove. The Returning Officer rejected the same on the ground that TC 2 and 3 is for Muslims and not for minority community. The petitioner filed an appeal which was also rejected by the appellate authority by the impugned order. The petitioner being aggrieved by the above orders has filed the present petition.
3. The learned counsel for the petitioner, Mr. Rasool Bux Umar, in support of the above petition has urged that there was confusion created by the electoral roll by mentioning Unit Nos. 2 and 3 instead of TC 8. It has been further urged by him that the above defect was not substantial in nature.
On the other hand Mr. Ajaz Ali Hakro, learned counsel for the private respondent have submitted that separate applications were invited for minority seats through a separate notice, and, therefore, the petitioner should have got his nomination paper filed for the minority seat and not for the Muslim seat, which was done.
4. In support of the above submission Mr. Umar has referred to the case of Hashim Mullah v. Returning Officer, Ebrahim Hydri Union Council and others, reported in P L D 1960 .(W.P.) Karachi, 233, m which a Division Bench of erstwhile High Court of 'West Pakistan has held that non‑mentioning of the name of the Basic Democracy Unit No. was not defect of substantial character, warranting rejection of the nomination paper.
5. It appears that there is a mistake on the part of proposer and seconder in mentioning TC 2 and 3 as in the electoral roll Unit No. 2 and 3 are mentioned against the names on the top of the list containing names of some of the Hindu voters, which include the names of the proposer and seconder, as well as of the petitioner. The factual position is that the petitioner, proposer and seconder are all Hindus and they are not qualified to contest the election from the Muslim seat in view of subsection (2) of Section 38 of the Sind Local Government Ordinance, 1979.
We are inclined to hold that the mistake has occurred apparently for the reason that the electoral roll contained unit No. 2 and 3 which were translated into TC 2 and 3 by the proposer and seconder. Since admitted position is that neither the petitioner nor the proposer and seconder could have either contest I B the election from the Muslim seat or could have proposed or seconded the candidate other than a Hindu and as the Returning Officer was the same and as the date for filing of the nomination paper was also the same, the above mistake should have been overlooked by the Returning Officer as it is not of substantial character as to deprive the petitioner to exercise the right of franchise.
6. We would, therefore, allow the petition and declare the impugned orders as without lawful authority and of no legal effect. Respondent No. 2 is directed to IC accept the Petitioner's nomination paper and to allocate him the symbol. The petition stands displaced of in the above terms with no order as to costs.
M.Y.H./A‑345/K
Petition allowed.