P L D 2006 Lahore 24 (PLP)

MIAN HAMID FAROOQ, J.

The petitioners, jointly, filed nomination papers for the seats of Nazim and Naib Nazim, respectively, from U.C. No.86, Jhang Sadar and so did the panels of respondents Nos.1 and 2, respondents Nos.3 and 4 and respondents Nos.5 and

6. A Subsequently, respondent No.2, singly, filed an application, before the learned Returning Officer, for the withdrawal of his nomination papers, which, as noted above, were jointly filed by him along with the respondents No.

1. The learned Returning Officer did not pass any order on the said application and set it down for 4-8-2005. At the time of scrutiny, the petitioners, statedly, raised the objection that as respondent No.2 had already withdrawn his nomination papers, therefore, he cannot A be allowed to contest the election, however, the nomination papers of respondents Nos. I and 2 were accepted by the learned Returning Officer. Petitioners' appeal, against the said decision, was dismissed by the District Returning Officer, vide order dated 3-8-2005, hence the present petition.

2. Learned counsel for the petitioners has contended that the learned District Returning Officer has misconstrued the provision of proviso to Rule 16(1) of the Punjab Local Government Election Rules, 2005 and has not taken into consideration that the said proviso is only applicable to a "validly nominated candidate". In this context he has referred to Rule 2 (XXVI) of the said Rules and relied upon the judgments reported as Sahibzada Muhammad Mahmood v. District Returning Officer/Appellate Authority, District Attock and 4 "others (2002 SCMR 424) and Muhammad Jamil Akhtar and another v. Appellate Authority, District Judge, Rawalpindi and 4 others (2003 SCMR 400).

3. I have heard the learned counsel and examined the available record. Rule 16(1) of the said rules, provides that any validly nominated candidate, after notice to the Returning Officer on or before the withdrawal day, withdraw his candidature, however, proviso to the said rule envisages that if there are joint candidates for the office of Nazim and Naib Nazim, then both shall sign the application for the withdrawal. In the case in hand, respondent No.2 singly signed and filed the application for the withdrawal of the nomination papers for the seats of Nazim and Naib Nazim, which were, jointly, filed by respondents Nos.1 and

2. To my mind, respondent No.2' application for withdrawal was hit by the bar contained in proviso to Rule 16(1), and the same could not be accepted.

4. As regards the contention of the learned counsel regarding "validly nominated candidate", in my view the term is only confined to Rule 16(1) and is not applicable to the proviso, which independently states that in case of joint candidates for Nazim and Naib Nazim, both shall sign the application for withdrawal. Said proviso, even otherwise, appeal to reasons, as in case of joint candidature and nomination, an unscrupulous person., with the connivance of the opponent, may singly file an application for the withdrawal of the nomination papers to the detriment of the other member of his panel,' who does not wish to withdraw from the election. The legislature has taken care of such eventuality by inserting proviso to section 16(1) of the Rules 2005 in order to overcome such-like situation. The contention of the learned counsel is misconceived, hence repelled.

5. As regards the judgments relied upon by the learned counsel, the same are not applicable in the present set of circumstances, inasmuch as the proviso to Rule 16(1) was neither discussed nor dealt with and decided by the Hon'ble Apex Court of the country in the said cases.

6. Upshot of the above discussion is that the present petition is devoid of merits, hence dismissed. H.B.T./M-1247/L??????????????????????????????????????????????????????????????????????????????? Petition dismissed.