2017 PLP 733 (MLD)

ABDUL RASOOL MEMON, J.

The petitioner through this petition has challenged the declaration of respondents Nos.7 and 8 as unopposed retuned candidates for the seat of peasant in the Local Government Elections of 2015.

2. The relevant facts are that the petitioner submitted his nomination paper on 21.1.2016 for the seat of Peasant/Hari/Kisaan in the Local Government Elections of 2015 in District Council, Kashmore at Kandhkot and after scrutiny the final list of 9 candidates was displayed by the Returning Officer (the respondent No.1). As per schedule announced by the Election Commission the date of withdrawal was fixed on 29.1.2016 and polling day was fixed on 8.2.2016, but the Election Commission has postponed the elections on 08.2.2016. It is alleged that on 29.1.2016 all of sudden the respondent No.1 has declared the respondents Nos.7 and 8 as unopposed returned candidates.

3. As soon as the petitioner came to know about the impugned declaration, he approached to the respondents Nos.1 to 4 and requested them that he has not withdrawn from his candidature, but they were not ready to listen him due to political rivalry. He also made Press Conference on 04.2.2016 and also moved application to the Election Commission of Pakistan but his grievance was not redressed, therefore, he has approached this Court, wherein he has sought declaration that the action of the respondent's for declaring the respondents Nos.7 and 8 as unopposed returned candidates for the seat of Peasant, District Council, Kashmore at Kandhkot as illegal, void and mala fide, without lawful authority, jurisdiction or justification.

4. The respondents Nos.1, 7 and 8 filed their comments, wherein the respondent No.1/Returning Officer has denied the allegations of the petitioner and further stated that the petitioner has appeared before him on his own will and submitted his withdrawal application on dated 29.1.2016, at 3.40 p.m. and the same was accepted by the Returning Officer, while the respondents Nos.7 and 8 have also stated in their comments that the petitioner himself made application in writing signed by him and delivered to Returning Officer, which was allowed on the same date of presentation, hence the Returning Officer issued Form-VIII i.e. the list of contesting candidates, therefore, the withdrawal of the petitioner was voluntary, within time and was accepted accordingly. Silence of the petitioner up to 4th of February, 2016 for a long time clearly amounts to admission and section 52 of Sindh Local Councils (Election) Rules, 2015 bars that notice of withdrawal shall not be open to recall or cancellation.

5. The petitioner in rebuttal has filed his rejoinder.

6. The learned Counsel for the petitioner contended that the petitioner has-not filed any application for withdrawal of his nomination and application, if any, is forged, fabricated, manipulated, collusive and does not bear his signature, therefore, the order of the Returning Officer is not in accordance with law and be declared as void. He has placed reliance on Rule 20 of Sindh Local Election Rules, 2015.

7. On the other hand, learned Counsel appearing on behalf of respondents Nos.7 and 8 has opposed the petition on the ground that the date of withdrawal was 29.1.2016 and on the very day the petitioner has appeared before the Returning Officer and submitted the voluntary statement of withdrawal. His signature on petition, Vakalatnama and nomination form tallies with the signature on withdrawal statement; that the fraud and forgery or genuineness of signature and the grounds contained in the petition are factual controversies which could be thrashed out after recording of the evidence and this exercise cannot be carried out while exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. He further submits that admittedly the withdrawal date was 29.1.2016 and the petitioner as per contents of his petition first time made Press Conference on 04.2.2016 after a delay of about 6 days, which reflects that the stand taken by him is afterthought. In support of his contentions, he has placed reliance on Section 52 of the Sindh Local Government Election Rules, 2015.

8. The learned Standing Counsel for D.A.G. as also the learned State Counsel for A.A.G., are present along with Returning Officer. On query, the Returning Officer supported his comments and learned Standing Counsel for D.A.G. and the learned State Counsel for A.A.G. also supported the impugned order.

9. We have given careful consideration to the arguments and gone through the relevant papers on record.

10. It is the case of the petitioner that he has not filed the withdrawal statement before the Returning Officer and the signature on it is forged and fabricated. While the Returning Officer, who was present in person and in his comments has categorically denied the allegation of the petitioner and has stated that the petitioner voluntarily appeared on the last date of withdrawal viz. 29.1.2016 and admitted the contents and signature on the withdrawal statement filed before him. The same plea has been taken by the respondents Nos.7 and 8 in their comments.

11. In view of the above contention of the parties, prima facie, it appears that allegations of fraud, manipulation of signature and forgery have been levelled, which could not be resolved except adducing evidence and through proper trial and the cases involving such question do not qualify for invoking the constitutional jurisdiction of the High Court. We are fortified by the observations recorded by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Younus Khan v. Government of N.W.F.P. (1993 SCMR 618) and Federation of Pakistan and 2 others v. Major (Retd.) Muhammad Sabir Khan (PLD 1991 SC 476). Therefore, this Court while exercising powers under Article 199 of the Constitution cannot exercise jurisdiction for thrashing factual controversies. Thus, the petitioner is advised to seek remedy before the Election Tribunal after issuance of Notification of returned candidates, which can entertain the election petition, where both the parties can prove their version and which is the only remedy for challenging the notification of returned candidates.

12. In view of the above discussion, we are of the clear view that this petition is not maintainable before this Court and stands disposed of in above terms. SL/G-15/Sindh Petition dismissed.