2005 PLP 1634 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition has been filed for leave to appeal against the order dated 8th August, 2005, passed by the Lahore High Court whereby writ petition of the petitioner has been dismissed.

2. Precisely stating facts of the case are that petitioner filed nomination papers for the office of Nazim along with Sardar Akhtar Hussain who was contesting as a joint candidate with him for the seat of Naib Nazim. After filing of nomination papers but before scrutiny, latter had died on 28th July, 2005. At the time of scrutiny, nomination papers of the petitioners were rejected by Returning Officer for reasons:-- "I have gone through the Punjab Local Government Elections Laws provided by the Election Commission of Pakistan. There is no powers of the Returning Officers to allow any person to submit nomination papers after the period fixed by the Election Commission in the schedule. In the present case deceased candidate for Naib Nazim was neither validly nominated nor contesting candidate, hence, the election proceedings will not be affected. Since, the nomination papers have to be jointly accepted or rejected and in the present case after the death of Naib Nazim the papers of candidate for Nazim cannot be accepted, therefore, in view of above discussion, the request for substitution of candidate of Naib Nazim is turned down while the nomination papers are hereby rejected." Petitioner preferred appeal before the District Returning Officer and writ petition before the High Court but he did not succeed as vide order/judgment dated 2-8-2005 and 8-8-2005 they were dismissed.

3. Learned counsel for the petitioner contended that after the filing of nomination paper, late Sardar Akhtar Hussain was validly nominated candidate, therefore, on account of his death the election of constituency is liable to be terminated.

4. On the other hand, learned counsel appearing for caveator as well as Deputy Attorney-General stated that in view of the definition of contesting candidate Rule 2(v) of Punjab Local Government Elections Rules no one can claim that he would be validly nominated candidate. Therefore, Returning Officer has rightly rejected petitioner's nomination papers.

5. We have heard the learned counsel for the parties and have also gone through order of Returning Officer and impugned judgment.

6. From contentions raised by learned counsel for the parties following questions are emerging for consideration which seems to be first impression as to whether:-- (1) on the death of joint candidate the election would be terminated in terms of Rule 17 of Local Government Elections Rules, 2005; (2) in case of death of joint candidate the petitioner had no right to pray for permission to allow him to join another candidate with him for the post of Naib Nazim; (3) what would be the effect of Rule 2(v) read with Rule 17 of the Elections Rules, 2005, if candidate had died before the scrutiny of the nomination papers.

7. To examine "inter ilia" the above questions leave to appeal is granted and pending decision of appeal arising out of this petition the election in Union Council No.63, Tehsil Pattoki, District Kasur is stayed: Appeal is directed to be fixed in the 3rd week of September, 2005. M.B.A./W-15/S Leave to appeal granted.