ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P No.D-7079 of 2015

Date	Order with signature of Judge

Present

            Mr. Justice Muhammad Ali Mazhar

                      Mr. Justice Muhammad Karim Khan Agha

Wahid Bux Thebo………..vs……………Federation of Pakistan

                                                          & others

1. For hearing of Main Case.

2. For hearing of CMA No.35743/2015

17.11.2015

Mr.Abbas Hyder Gaad, Advocate for the Petitioner.

Mr.Mukhtiar Ali Deeshak, Advocate for the Respondent No.5.

Mr.Ali Ahmed Palh, Advocate/Intervener in person.

Shaikh Liaquat Hussain, Standing Counsel.

Mr.Abdul Jabbar Qureshi, AAG

Mr.Abdullah, Law Officer Election Commission.

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Muhammad Ali Mazhar,J: The petitioner has challenged the candidature of respondent No.5 on the ground that he is involved in Crime No.89/2012 lodged, under Section 365-A/34 PPC, at Police Station Bhitai Nagar, District Hydrabad. On last date of hearing, Mr. Ali Ahmed Palh had filed an application under Order 1 Rule 10 CPC, who is not only an advocate of this Court but he is also a candidate of same Union Council, Darya Khan Marri and his nomination papers have also been accepted. Counsel for the respondent No.5 has filed written reply/objection and Provincial Election Commissioner, Sindh, has also filed statement/comments. In the comments of Election Commissioner, a plea has been taken that if the

petitioner was aggrieved against the acceptance of nomination papers of the respondent No.5, he could have filed an appeal before the Appellate Tribunal but no such appeal was filed and after consuming considerable time he has filed this constitution petition directly. The representative of the Election Commission submits that notification of list of valid candidate has already been issued much earlier and day after tomorrow the election will be held.

2. Counsel for the respondent No.5 argued that on the basis of FIR No.89/2012 J.I.T was constituted but nothing was brought on record against the respondent No.5 and ultimately it was cancelled in “A” class after recording of statement of the abductee Dr. Shakeel, who is also real brother of the Intervener Mr. Ali Ahmed Palh.

3. Under Rule 18 of Sindh Local Councils (Elections) Rules 2015, it is clearly provided that the candidates, their election agents, proposers and seconders, and one other person authorized in this behalf by each candidate and the person who made representation against the nomination paper may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under Rule 16. In Sub Rule (3) certain mandate is given to the Returning Officer to dispose of the objection and/or accept or reject the nomination paper.  However, under Sub Rule (5) an appeal lies to the Appellate Authority appointed by Election Commission.

4. What we understand in this case is that the petitioner had failed to file any representation against the nomination papers of the respondent No.5, naturally when he had not filed any representation then obviously he could not have filed appeal before the Appellate Authority and after completion of the entire process he has approached this Court in the Constitutional Jurisdiction without availing the appropriate and adequate remedy provided under the law.

5. Learned counsel for the Petitioner also pointed out an order dated 19.10.2015 passed by the learned Division Bench of this Court in C.P No.D-6386/2015 in which the nomination was rejected on the ground that the candidate sworn in an affidavit before the Returning Officer that no F.I.R was lodged against him but in fact there was a F.I.R against him in a murder case. In the opening of Order the learned Division Bench clearly observed that against the acceptance of the nomination paper by Returning Officer appeal was preferred which was dismissed and thereafter aggrieved person filed the petition in this Court but in the case in hand neither any representation was submitted nor any appeal was filed but the petitioner has directly approached this Court in its constitutional jurisdiction. We also allowed right of audience to Mr. Ali Ahmed Palh, who is also a candidate in the same Union Council who frankly admitted that being a candidate of the same Union Council, he had also not filed any representation and or appeal against the nomination papers or its acceptance before the Competent Authority.

6. The representative of the Election Commission  pointed out Rule 60, which pertains to the election dispute in which some rights have been given to the candidate or panel for that election to file election petitions. Since the petitioner has failed to avail appropriate remedy within time, therefore, at this stage no plausible justification is shown us to entertain this petition. However, Mr. Ali Ahmed Palh submits that he may be allowed to move Election Petition under Rule 60 of Sindh Local Councils (Election) Rule 2015 after elections. In this regard we must observe that the remedy to file election petition in relation to the election disputes is provided under the Rules itself that can be availed in accordance with law for which no Court order is required in advance.

7. In view of the above this Petition is disposed of accordingly alongwith pending applications.       

Judge

                                                Judge