2013 PLP 1342 (CLC)

DR. ZAFAR AHMED KHAN SHERWANI (ELECTION TRIBUNAL).

This order will dispose of the titled election petition which has been filed in respect of general election held for N.A. No.257, Karachi on 11-5-2013. Brief facts leading to this petition, under section 52 of the Representation of the People Act, 1976, (for brief the Act), are that the petitioner had filed his nomination papers to contest the election on the above mentioned constituency, N.A. No.257, Karachi, on the basis of his nomination by Pakistan People Party Parliamentarian before the Returning Officer. However, during the scrutiny of the nomination papers the Returning Officer rejected his nomination papers. Against this order he filed an appeal before the Election Tribunal constituted for the said purpose but that too was dismissed. However, the petitioner then filed a Constitutional Petition No.C.P.D-1642 of 2013 before the Hon'ble High Court of Sindh and the same was allowed on 30-4-2013, by the short order. The impugned orders passed by the Election Tribunal as well as Returning Officer were set-aside. The grievance of the petitioner in this election petition is that the Returning Officer in complete disregard of the order of the Hon'ble High Court of Sindh as referred to above failed to act in accordance with rules 7(3) of the Representation of the People (Conduct of Election) Rules, 1977 as well as section 21 of the Act regarding the preparation of the list of contesting candidate showing his name and allocation of election symbol to him. He has also shown his grievance in this petition that the Election Commission which was also party in the constitutional petition failed to take action in accordance with the law to allow him to contest the election. Ultimately, the general election was held without inclusion of his name as one of the contesting candidates. The respondent No.1 was a returned candidate in respect of the said constituency. The petitioner has prayed, that the election of NA 257, Karachi which was not held and conducted in accordance with the provisions of the Act and the Rules thereunder, therefore, the same may be declared as void as a whole and this tribunal may direct the Election Commission to hold fresh polls in the whole constituency of NA-257 after allocating the election symbol to the contesting candidates including the petitioner and publishing fresh list of contesting candidates. This petition under section 52 of the Act was originally filed before the Election Commission of Pakistan, Islamabad, which was registered as Election Petition No.30 of 2013 and the same was transferred to this tribunal on 25-6-2013. Notice of the petition was sent to the petitioner and in response thereof he appeared in person. The petitioner, a practising advocate of Malir Bar Association, Karachi by profession was called upon to show cause as to why his petition may not be dismissed as the same appears to be not maintainable under section 52 of the Act because admittedly he was not a candidate in respect of constituency, NA-257. The petitioner initially tried to convince the tribunal that the petition is maintainable under the law as held by the superior courts in different cases but ultimately he conceded to its non-maintainability under the Act as was not a candidate in the election and then filed an application for withdrawal of the petition. The application is on record. Before this he also filed an application under section 151, C.P.C. to bring about some amendments in the petition with reference to the allegations made against the respondents Nos.10 and 11 in paragraph No.12 and 18 of the Petition to withdraw the same. This application supported with the affidavit is also on record. I have given my consideration to the facts of the case mentioned in the petition and so also in the application for withdrawal of the petition. As mentioned above, the petitioner was admittedly not a candidate in the election. As per his own case, his writ petition challenging the order of the Returning Officer of NA-257 and Election Tribunal rejecting the nomination papers was allowed by the Hon'ble High Court in C.P.No.D-1642 of 2013 vide order dated 30-4-2013, annexure-A of the petition, page 13 but his name was not included in the list of the contesting candidates of NA 257 by the Returning Officer. Subsection (1) of section 52 of the Act is reproduced hereunder for the ready reference:

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52. Election petition.

(1) No election shall be called in question except by an election petition made by a candidate (emphasis provided) for that election (hereafter in this Chapter referred to as the petitioner)." The subsection of section 52 of the Act clearly mandates that none else but a candidate for that allegation which is impugned in election petition can only file petition to call in question an election. Since the petitioner was not a candidate for the election of NA-257 which is a sine qua non for an election petition, therefore his petition was not legally maintainable and the same should have been returned to the petitioner when it was presented before the Election Commission of Pakistan at Islamabad, however, the petition was admitted and registered and sent to this tribunal for its decision in accordance with law. Since the petitioner being a practising advocate is supposed to know the legal position and for this reason he has very frankly admitted the same and without wasting a single moment filed an application for withdrawal of the same. Since the petitioner was heard on the preliminary legal objection therefore, no notice to the respondents was necessary to be sent. The upshot of the above discussion is that the application for withdrawal of the petition is allowed and permission is granted to the petitioner as provided under section 73(2) of the Act and the petition is dismissed as withdrawn. With regard to the costs of the petition since the petitioner has outrightly admitted the legal position on the first date of hearing when the respondents have not been issued any notice, therefore, there will be no justification to pass any order as to costs. The office is directed to send record of the petition to the Chief Election Commissioner of Pakistan as provided under section 72(2) of the Act. MWA/R-14/K Order accordingl