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Petitioner: MOBIN AHMED VS Respondent: RETURNING OFFICER, HYDERABAD MUNICIPAL CORPORATION
1988 C L C 1562
1988 C L C 1562
[Karachi]
Before Ajmal Mian and Abdul Razzak A. Thahim, JJ,
MOBIN AHMED‑‑Petitioner
versus RETURNING OFFICER, HYDERABAD MUNICIPAL CORPORATION and others‑‑Respondents
Constitutional Petition No. 1555 of 1987, decided on 25th November, 1987.
Sind Local Councils (Election) Rules, 1979‑‑
‑‑‑R. 19(3) (d)(ii)‑‑Constitution of Pakistan (1973), Art.199‑‑Rejection of nomination paper‑‑Candidate's father's name wrongly mentioned in electoral roll‑‑Effect‑‑Where identity of candidate was not disputed, mentioning of different name of his father in nomination paper from what was mentioned in electoral roll, held, was not a defect of nature which would warrant rejection of nomination paper of candidate‑‑Order of Returning Officer rejecting nomination paper of petitioner /candidate on ground of wrongly mentioning name of his father while his own identity was not disputed, was declared illegal by High Court with direction to allow his nomination paper and to allow allocation of symbol.
Ashfaq Shahid v. Waheedullah Goraya etc. 1984 C L C 393 ref.
Abdul Sattar G. Sheikh for Petitioner. Abdul Rahim Kazi Addl. A.‑G. for Respondents.
Date of hearing: 25th November, 1987.
JUDGMENT AJMAL MIAN, J.‑‑This petition is directed against the orders dated 13‑11‑1987 and dated 17‑11‑1987 passed by Respondent No.2 and Respondent No.l respectively.
2. The relevant facts leading to the filing of the above petition are that the petitioner filed his nomination paper for seat HMC‑55 for the forthcoming Local Bodies Election to be held on 30‑11‑1987. In the nomination paper the petitioner mentioned his parentage as 'Mehmood' whereas at Serial No.288 the parentage mentioned is 'Muhammad Qureshi'. The Respondent No.2 rejected the above form on the ground that the father's name was different in the electoral roll than what was given by the petitioner in the nomination paper and in the Identity Card. The petitioner being aggrieved by the above order filed an appeal, which was also dismissed by Respondent No.l by the aforesaid order dated 17‑11‑1987. The petitioner has, therefore, filed the present petition.
3. In support of the above petition Mr. Abdul Sattar Shaikh, learned counsel for the petitioner has urged that in view of sub‑clause (ii) of clause (d) of sub‑rule (3) of Rule 19 of the Sind Local Councils (Election) Rules, 1979, hereinafter referred to as the Election Rules of 1979, the Returning Officer was obliged not to reject a nomination paper on the ground of any defect, which is not of substantial nature and was bound to allow the rectification of the defect.
It has been further urged by him that there was no dispute as to the identity of the petitioner as a candidate and wrongly mentioning of parentage in the electoral roll in fact was not a substantial defect of the nature warranting rejection of the same.
On the other hand Mr. Abdul Rahim Kazi, learned Additional Advocate‑General, Sind appearing for the respondents, has contended that it was the duty of the petitioner to have given the correct parentage in the nomination paper but factually he had given the parentage which was mentioned in his Identity Card and, therefore, the Returning Officer as well as the Appellate Authority were justified not to accept the nomination paper.
4. In support of the above submissions Mr. A.S. Shaikh has referred to the case of Ashfaq Shahid v. Weheedullah Goraya, etc. reported in 1984 CLC 393 in which a Division Bench of the Lahore High Court while dealing with an election matter observed that "fundamental of election law is to find out who is liked by electorate and all laws and rules are made for that purpose and any person who seeks elected office cannot legitimately get in there by elbowing out his competitors on technical grounds".
5. In our view, the question in issue is, as to whether the defect in question was of nature which warranted the rejection of the nomination paper. Sub‑clause (ii) of clause (d) of sub‑rule (3) of above Rule 19 of the Election Rules, 1979, provides as follows:
"(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith."
A perusal of the above quoted clause (ii) indicates that a Returning Officer is obliged not to reject nomination paper on the ground of any defect which is not of a substantial nature and he had been empowered to allow the rectification of such defect which is not of substantial nature.
We are inclined to hold that since there was no dispute as t the identity of the petitioner, the mentioning of the name of his father by the applicant as "Mehmood" in the nomination paper, against the name of 'Muhammad Qureshi' mentioned in the electoral roll was not a defect of the nature, which warranted the rejection of his nomination paper.
We would, therefore, allow the petition and declare the impugned orders as being without lawful authority and of no legal effect. We would direct the Respondent No.2 to accept his nomination paper and to allow the allocation of symbol. There will be no order as to costs.
H . B . T . / M‑443/ K Petition allowed.