2006 PLP 57 (MLD)

ANWAR ZAHEER JAMALI, J.

The petitioner Miraj Muhammad Qureshi has filed this Constitutional petition to impugn the order dated 19-9-2005 passed by respondent No. 1, whereby his Election Appeals Nos. 18 of 2005 and 27 of 2005, against the order of respondent No.2, were dismissed.

2. The relevant facts of the case are that the petitioner has filed his nomination Form for contesting the forthcoming elections of member, District Council Mirpurkhas, wherein his name was proposed by one Abdul Hameed son of Noor Muhammad and seconded by Liaquat Ali son of Chote Khan. On the date of scrutiny it transpired that Abdul Hameed, the proposer of the petitioner, has also earlier proposed the name of another candidate Haji Muhammad Saleem in his nomination form for the same office of member District Council Mirpurkhas. In view of this undisputed position, applying the bar contained in sub-rule 7 to rule 12 of the Sindh Local Government Elections Rules, 2005 the nomination Form of the petitioner, being filed subsequently, was rejected by respondent No.2, vide his order dated 16-2-2005, which reads as under: -- "Nomination paper called. The candidate is present in person. Perusal of nomination form shows that the proposer namely Abdul Hameed son of Noor Muhammad has already proposed the candidate Haji Muhammad Saleem in the same category, whose nomination has already been accepted, whereas according to law a proposer or seconder cannot subscribe more than once nomination paper in the same category. In view of the above said position, I am of the humble opinion that nomination is liable to be rejected, which is hereby rejected".

3. According to the petitioner, subsequent to the passing of this order, said Haji Muhammad Saleem submitted an application before respondent No.2, seeking withdrawal of his nomination form, and accordingly withdrawal of his candidature was allowed vide order dated 21-9-2005 passed by the Returning Officer/respondent No.2. The case of the petitioner seems to be that since the other candidate Haji Muhammad Saleem has withdrawn his nomination Form, therefore, the respondents Nos.1 and 2 were not justified in applying the bar of sub-rule 7 to rule 12 of Sindh Local Government Elections Rules, 2005 for rejecting the nomination Form of the petitioner, and they were legally obliged to accept his nomination Form to contest the election for the seat of member District Council Mirpurkhas.

4. Mr. Munawar Ali Shah Advocate for the petitioner, during the course of his arguments did not dispute that the disqualification provided under sub-rule 7 to rule 12 (supra) was attracted and rightly applied by respondent No.2 in rejecting the nomination Form of the petitioner. However, he contended that in the facts and circumstances, taking into account the subsequent development that Haji Muhammad Saleem has withdrawn his nomination Form, the decision of respondent No.2 could have been reviewed by respondent No. l in the pending election petitions before him. Failure on his part in granting such relief to the petitioner has thus necessitated filing of this Constitutional petition.

5. Mr. Masood A. Noorani Addl. A.-G. Sindh has not supported the impugned orders passed by respondents Nos.1 and

2. According to him it will result in technical knock-out of the petitioner from contesting the ensuing Local Bodies Elections, which will be against the sprit of the election laws. Learned Addl. A.-G., however, conceded that the order dated 16-9-2005 passed by respondent No.2 and the other order dated 19-9-2005 passed by respondent No. 1, which have been challenged in this petition, are in conformity with the relevant provisions of law and neither there is any factual nor legal mistake committed by these respondents in passing such orders.

6. We have carefully considered the arguments advanced by the learned counsel for the parties and perused the material placed on record.

7. The respondent No.1 while dismissing the two election appeals filed by the petitioner under rule 14(4) of Sindh Local Government Elections Rules, 2005, has observed as under:-- "I have heard the learned counsel, appellant, respondent No.1 and have gone through record of both the nomination forms. The plea raised by the appellant and the respondent No.1 does not appear to be genuine rather it appears to be afterthought and managed one, because the respondent No.1 himself submitted his nomination form before the learned Returning Officer by filing in the same and attaching requisite documents with such nomination paper, therefore, the respondent No.1 cannot disown the contents of such nomination form subsequently. Further, the nomination form was submitted by the respondent No. 1, on 13-9-2005 and the day of scrutiny was fixed as 16-9-2005 during such period the respondent No.1 did not make any movement about wrong filing of nomination, even he kept mum when his nomination Form for the seat of Peasant/worker in Zila Council was accepted by the learned Returning Officer. It only happened when the nomination form of the appellant was rejected by the learned Returning Officer. As such it is evident that the filing of the nomination form by the respondent No.1 for the seat of Peasant/worker in Zila Council is not a result of any bona fide mistake, but he had actually filed his nomination paper for such seat. So far as making of application for withdrawal from candidature does not ipso facto terminate the candidature unless and until such withdrawal is legally tendered and accepted by the competent authority appointed in this regard, therefore, only by making a written application by the respondent No. 1, regarding withdrawal from his candidature before the date of withdrawal it cannot be said that the nomination form of the respondent No.1 does not hold the field. It appears necessary to discuss the provisions of sub-rule (7) of rule 12 of the Sindh Local Government Elections Rules, 2005, which reads as follows: "If any person subscribes as a proposer or a seconder to more than one nomination paper, all such nomination papers, except the one received first by the Returning Officer, shall be void". The very language of the said provisions leaves no room for any ambiguity and makes it clear that in case of a same proposer or seconder all nominations shall "be void, except the one which was received first by the Returning Officer. In present case the nomination form of the respondent No.1 was received first by the learned Returning Officer as is evident from the serial numbers whereby the nomination form of respondent No.1 was entered at S.No.4, while that of appellant at S.No.16. Therefore, the acceptance of nomination form of respondent No.1 and rejection of nomination form of the appellant by the learned Returning Officer is legal and valid and needs no interference."

8. After careful reading of the two orders impugned in this petition, we have not been able to subscribe to the submissions of the learned counsel for the petitioner and the Additional A.G. Sindh that despite these orders being legal and proper, the effect of applicable barring provision of law viz., sub-rule 7 to rule 12 shall be diluted by this Court in exercise of its constitutional jurisdiction, in a way so as to enable the petitioner to contest the forthcoming District Council Elections.

9. With reference to the submission of Mr. Munawar Ali Shah regarding alleged withdrawal of nomination Form by Haji Muhammad Saleem, it will be pertinent to mention here that the scheme of filing of nomination Form, its scrutiny etc., which is regulated by rules 12 to 20 of the Sindh Local Government Elections Rules, 2005, does not contain any provision for withdrawal of nomination Form, once submitted before the Returning Officer. More particularly after its acceptance and scrutiny by the Returning Officer. However, rule 16 of Election Rules, specifies the procedure for withdrawal of candidature or retirement by the candidate, which is quite different legal proposition then the withdrawal of nomination Form. In the present case, it is also evident from the order of respondent No.2 dated 21-9-2005, that on the application of the candidate Haji Muhammad Saleem, only withdrawal of his candidature was allowed and not the withdrawal of his nomination Form, as misinterpreted by the petitioner.

10. Admittedly the nomination Form of the petitioner was rightly rejected by respondent No.2 vide his order dated 16-9-2005, therefore, subsequent withdrawal of candidature of any other candidate will have no material bearing over the case of the petitioner. The respondent No.1 /Appellate Court has thus rightly maintained the order of Returning Officer, which is unexceptionable in law.

11. Foregoing are the reasons of our short order passed on 4-10-2005, whereby this petition was dismissed in limine. M.A.W./M-287/K Petition dismissed.