2006 PLP 1487 (SCMR)

HAMID ALI MIRZA, J.

This civil petition for leave to appeal is directed against the judgment, dated 20-4-2004 in Constitutional Petition No.D-346 of 2003 passed by learned Division Bench of the High Court of Sindh Hyderabad Circuit, whereby the said Constitutional petition was dismissed maintaining the decision, dated 8-11-2001 of Member Election Commission of Pakistan, whereby the respondent was declared as Nazim of Taluka Hyderabad.

2. Facts of the case need not be reiterated as the same have been stated in the memo. of petition and the impugned judgment.

3. Contention of the learned counsel for the petitioner is that in fact there are 231 voters in the said Union Council of Taluka Hyderabad therefore the successful candidate has to secure fifty per cent of the total number of votes of the union councils in order to succeed but the respondent having secured only 114 votes of the total votes therefore some being less than fifty per cent is not entitled to succeed consequently, the order passed by learned Member Election Commission of Pakistan and maintained by the High Court cannot be sustained.

4. We do not find substance and merit in the said contention.

5. It is admitted position that on the date of election there were 224 eligible voters as one seat of the said union. council was lying vacant from the very beginning, four vacancies occurred on account of their death, one voter/member's seat was vacated as he was elevated as Member of Taluka Council while one voter/member has resigned as he has joined service, thereby out of total 231 voters seven voters/members were not there to cast their votes in view of above stated circumstances and the facts, consequently there remained only 224 voters to cast their votes. Learned High Court, after considering the relevant provisions of law rightly came to the conclusion that out of 224 valid eligible votes, A the successful candidate will have to secure fifty per cent of the same in order to succeed. In the instant case also the respondent has secured 114 votes out of 224, therefore, the same being more than fifty per cent was rightly declared successful as Nazim of the said Union Council. Learned Division Bench of the High Court in the concluding para at page 34 of the judgment has observed:

"For the foregoing reasons we are of the considered opinion that the respondent No.4 secured more than 50- per. cent of the total votes of the members of the Union Councils in Taluka Hyderabad and was thus rightly declared as elected candidate for the post of Taluka Nazim Hyderabad. The learned Member Election Commission of Pakistan has rightly held that the 7 vacant seats could not be included in the Electoral College and that the respondent No.4 has secured more than 50 per cent of the votes of the members of the Electoral College/Union Councils. The notification issued by the Election Commission of Pakistan, dated 13-11-2003 notifying the respondent No.4 as Taluka Nazim Hyderabad is not open to any exception. The petition is without substance which stands dismissed accordingly."

6. No exception could be taken to the finding of the learned Division Bench of the High Court and we do not find any legal or factual infirmity with the impugned judgment, therefore no case for leave to appeal is made out, hence the same is declined and petition is dismissed. M.H./I-92/SC????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.