ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C.P.No.D- 2315 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

10.07.2018.

Mr. Ghulam Sarwar Baloch, Advocate for petitioner.

Mr. Shahnawaz Brohi, Advocate for Election Commission of Pakistan.

Mr. Jan Ali Junejo, Assistant Attorney General-II.

Mr. Allah Bachayo Soomro, Additional A.G. alongwith Mr. Muhammad Ismail Bhutto, Additional A.G.

This is a petition, wherein the petitioner has impugned the decision of Returning Officer dated 12.06.2018 and the order of learned Appellate Tribunal dated 23.06.2018, wherein the petitioner has not been entertained in respect of nomination form for PS-69 Tando Muhammad Khan.

2. Learned counsel for the petitioner contends that nomination papers of the petitioner were not accepted on account of failure to open a new account u/s 60 of the Elections Act, 2017 (hereinafter referred to as “the said Act”) and it has not been considered that the requirement is for an exclusive account which was brought up by the petitioner as he has shown the account though previously opened by him which was got revived and was kept exclusively for the said purpose. Learned counsel in support of his contentions has relied upon Section 62(9) (d) (ii) of the said Act and further contended that the mistake was not substantial in nature. He has relied upon the case of Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood reported in PLD 2007 Supreme Court 277 in this regard.

3. Learned counsel for Election Commission contends that details of the said account as brought forward establishes transaction in the said account previously present and as such the same could not be termed as exclusive. He supports the impugned orders.

4. Learned A.G. referring to Section 62 (d), contends that specific requirement of opening an account is present and that deposit slips of the account preferred showed the sum of Rs.100/- being deposited without any element of revival. Learned A.A.G supports the impugned orders and further contends that Election Tribunal being presided by a High Court Judge, a writ is not liable to be issued against the High Court itself.

5. In rebuttal learned counsel for the petitioner contends that deposit of Rs.100/- was required in order to revive the account and to make it operative.

6. Having heard the learned counsel and gone through the record. Reference in the matter is liable to be made to the section 62 (9) (d) (ii) of the said Act, which reads as under:-

“62………

(9)………

(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll.”

(the underlining made by us for emphasis)

and to Section 60(2)(b) which reads;

“a declaration that he has opened an exclusive account with a scheduled bank for the purpose of election expenses”

and further to Section 133, which reads as under;

“133. Bank account for election expenses. (1) For purposes of his election expenses, a candidate shall open an exclusive account with any branch of a scheduled bank before the date fixed for scrutiny of nomination papers and maintain, or cause to be maintained, a register of receipts and expenditures.”

(the underlining made by us for emphasis)

(2) A candidate shall not make any transaction towards the election expenses through an account other than the account opened for the purpose.

(3) A candidate may open the bank account for election expenses with an amount nor exceeding the limit of election expenses provided under section 132.”

8. It is observed that requirement arises there from is for an exclusive account. We have specifically asked learned counsel for the petitioner as to why should the said account be treated as exclusive account, requiring an inquiry to be made in this regard also and what prevented the petitioner from opening an exclusive account? to which unfortunately we were not provided any reasonable answer as the learned counsel relied upon the arguments already referred earlier. We have also gone through declaration made before the Returning Officer which clearly specifies the opening of an account (khulwaya he). In the present circumstances and the matter appearing from the record in our humble opinion and understanding any variation to any specific law must requires some simple and reasonable explanation which was found absent in the matter of the petitioner by both the forums on account of which nomination papers were rejected. We as such do not find any violation of the fundamental rights of the petitioner in the impugned orders. As a result, instant petition being devoid of merits was dismissed with costs.

These are the reasons of our short order dated 10.07.2018.

JUDGE

Tufail