2007 PLP 1030 (MLD)

ZIA PERWAZ, J.

This Constitutional petition is directed against the impugned order of the District Returning Officer, dated 17-2-2007 allowing Election Petition No.3 of 2007. The facts relevant for the disposal of this petition are that name of respondent No.4 appears in the Electoral Roll for the year, 2001-2002 as a voter in UC No.35 Panoakil as well as in UC No.42 Nadapur Panoakil. He contested election in the year, 2005 as a candidate and lost. Thereafter he filed nomination papers to contest for the post of Naib Nazim UC-42 due to be held on 5-3-2007. The Objection to this effect was upheld by the Returning Officer however, the learned District Returning Officer in appeal reversed the findings of the Returning Officer vide impugned order and allowed the appeal. We have heard arguments of learned counsel for the parties and perused the record made available before us with their assistance. It is contended by Mr. Akhund that after participation to contest for the seat of Councillor from UC-35 the respondent No.4 had exhausted his entitlement to contest the elections therefore he cannot now contest in the bye-election as a candidate on UC-42. In support of his contention he has placed reliance on subsection (c) of section 156 and rule 40(3) of Sindh Local Government Elections Rules, 2005. Mr. Shahani has supported the impugned judgment to the extent of appearance of the name of the respondent No.4 in two seats of District Council as not to be a disqualification in view of the decision by this Court in C.P. No.D-881 of 2006 Mst. Parveen v. District Returning Officer and others. Mr. Khageja has referred to the address of the respondent No.4 in the nomination paper. He contended that the post for which the Elections are being contested by the respondent No.4 is different and the election is also different in which he is not participating the Election, therefore, the petitioner may be dismissed. The question of appearance of the name of respondent No.4 in more than one Electoral Rolls has been considered in the aforesaid petition. As the point has already been settled that in the aforementioned case the name of the candidate appearing in more than one Electoral Rolls he is entitled to participate from any of the Ward. As to the second question regarding contesting of Elections by respondent No.4 from two Union Councils it is to be seen whether bye-election is continuation of the earlier election or a fresh election. Inspite of asking question learned counsel have not dilated on this aspect of the case we are of the view that as a consequence of bye-election any new corner or different group can assume the office in pursuance to the result of the Election. It is not a continuation of the earlier office the only distinction is that tenure for the office is restricted to the extent of remaining period of office of earlier incumbent. Admittedly respondent No.4 is contesting for a different office any person who would have moved in the Ward and got his name entered in the list of Electoral Rolls is entitled to contest the election. The disqualifications of the candidate are confined to those specified in section 152 of the Sindh Local Government Ordinance, 2001 which does not cover the present case and the provisions being penal in nature are to be strictly construed. Even otherwise learned counsel could not make out a case for interference with the impugned order we therefore dismiss the petition. M.H./A-33/K Petition dismissed.