IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Election Appeal No.S-02 of 2017

Appellant                 :    Through Mr.Muhammad Afzal Jagirani, Advocate.

Respondents           :    Through Mr.Ghulam Dastagir A.Shahani, Advocate for private respondents

                                      Mr.Rafique Ahmed Abro, Advocate for Election Commission of Pakistan,

                                      Mr.Abdul Rasheed Abro, Assistant Attorney General,

                                      Mr.Ameer Ahmed Narejo, State Counsel.

Dates of hearing     :    27.08.2018          

Date of decision      :     31.08.2018                            

O R D E R

IRSHAD ALI SHAH, J.- The appellant by way of instant Election Appeal has impugned order dated 28.09.2016, passed by learned Additional District Judge/Election Tribunal (Local Government Election, 2015), District Qamber-Shahdadkot at Qamber, whereby his election petition was dismissed.

2.                The instant appeal is time barred and to condone such delay in filing of the appeal, the appellant has made an application under section 5 of the Limitation Act.

3.                It is contended by learned counsel for the appellant that prior to filing of the instant appeal, the appellant mistakenly filed a constitutional petition, which consumed time, the delay in filing of the appeal according to him was not willful but under misconception. By contending so, he sought for condonation of delay in filing of instant appeal, for its regular hearing. 

4.                Learned counsel(s) for the respondents have sought for dismissal of not only the application under section 5 of the Limitation Act, but very appeal, as according to them, it is miserably time barred.

5.                I have considered the above arguments and perused the record.

6.                Section 54 (1) of Sindh Local Government Act, 2013, provides that any person aggrieved by final order of a Tribunal may within 30 days of communication of such order prefer an appeal to the High Court. The instant appeal is filed with delay of 53 days of the stipulated period of limitation. The appellant may have filed a constitutional petition mistakenly and/or under misconception to pursue his cause, but there could be made no denial to the fact that the time spent by the appellant in prosecuting his cause before a wrong forum, could not be calculated towards limitation. No sufficient cause is advanced by the appellant, which may justify to condone the unexplained delay in filing of the instant appeal.

7.                In case of Mst.Khadija Begum and others vs. Mst.Yasmeen and others (PLD 2001 SC-335), it has been held by the Hon’ble Court that;

---Ss.5 & 14---Condonation of delay---Pursuing appeal in wrong forum---Effect---Where delay appears to be condonable, the provisions of Ss.5 & 14 of Limitation Act, 1908, come into the play---Time consumed in pursuing appeal  in wrong forum cannot be condoned under S. 5 of Limitation Act, 1908.    

8.                In view of the facts and reasons discussed above, not only the application under section 5 of the Limitation Act but very Election Appeal is dismissed being time barred, with no order as to cost.

                 JUDGE

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