ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitutional Petition No. D – 642 of 2022

Date of hearing

Order with signature of Judge

Hearing of case

1. For orders on office objections at Flag-A

2. For hearing of main case

14.06.2022

Mr. Syed Tariq Hussain Shah, Advocate for the petitioner.

Mr. Zeeshan Haider Qureshi, Law Officer, ECP.

Mr. Ali Raza Pathan, D.A.G.

Mr. Ali Raza Balouch, A.A.G.

.-.-.-.-.-.-.-.-.-.-

ZAFAR AHMED RAJPUT, J.– The petitioner filed his nomination to contest Local Council Elections-2022 for the seat of General Member, Ward No.1, U.C No.3, Makki Shah, Sukkur, which was rejected by the respondent No.3 (Returning Officer) after scrutiny. Against that rejection, the petitioner preferred Election Appeal No. 37/2022, which was also dismissed by the Appellate Authority vide order, dated 26.05.2022, holding that the signature of the proposer on nomination paper in Form-II is mandatory in view of Rule 16(3) of The Sindh Local Councils (Election) Rules, 2015 (‘the Rules’). It is against that orders, that the instant Const. Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been preferred by the petitioner.

2. Learned counsel for the petitioner contends that the absence of proposer’s signature on nomination paper in Form-II was an human error and the petitioner and the proposer were appeared before the respondent No.3 at the time of scrutiny and made request for making signature on nomination paper but he refused to allow them to do so; that the respondent No.3 illegally rejected the nomination of the petitioner, while the Appellate Authority failed to appreciate such position and passed the impugned order, which is not sustainable in law.

3. Conversely, Learned Law Officer of Election Commission of Pakistan, D.A.G. and A.A.G. have fully supported the impugned orders.

4. Heard, record perused.

5. We deem it appropriate to reproduce Rule 16 (3) of the Rules, as under:-

16(3) Every proposal shall be made by a separate nomination paper in Form-II (English or Urdu or Sindhi), Form-III, Form-III(A) and Form-III(B), which shall be signed by the proposer and the seconder and shall contain –

(a) a declaration signed by the candidate that he has consented to the nomination and that he is not subject to any disqualification for being elected as a member; and

(b) a declaration signed by the proposer and the seconder that neither of them has subscribed to any other nomination paper either as proposer or seconder.

(Emphasis supplied)

6. Sub-rule (3) of Rule 16 of the Rules provides that every proposal “shall” be signed by the proposer and seconder. The word “shall” used in Sub-rule (3) is significant, which clearly shows that a declaration to the above effect by the proposer and the seconder is mandatory for filing and acceptance of the nomination.

7. In the instant case, the respondent No.3 while rejecting nomination of the petitioner examined non-compliance of aforementioned Rule and leaving the Declaration of Assets and Liabilities blank and Assets Details Form unsigned. The very defect of non-signing the nomination paper in Form-II by the proposer reflects that in fact he never appeared before the respondent No.3 to verify proposing of the petitioner, otherwise such defect would have been cured at the time of scrutiny of nomination papers. Now the situation emerged is that nobody has proposed the petitioner as candidate to contest the forthcoming Local Council Elections for the aforesaid seat. We are of the considered view that the provisions of Rule 16(3) of the Rules being mandatory imply that if the nomination paper in Form-II is not signed by the proposer and/or seconder, the same would be liable to be rejected.

8. For the foregoing facts and reasons, we have found no illegality or irregularity in the impugned orders requiring any interference by this Court in its Constitutional jurisdiction. Accordingly, instant petition is dismissed, with no order as to costs.

J U D G E

Abdul Basit