ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitutional Petition No. D – 649 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 on CMA No.2494/2022 (Stay Application)

3. For hearing of main case

14.06.2022

Mr. Nisar Ahmed Bhanbhro, Advocate for the petitioners

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 petitionersas joint candidates filed their nomination to contest Local Council Elections-2022 for the seats of Chairman and Vice-Chairman, respectively, of Union Committee No.8, Makki Shah-Adam Shah Colony, Sukkur, which was accepted by the respondent No.2 (Returning Officer) after scrutiny. Against that acceptance, the respondent No.3 (Ishtiaq Ali) preferred Election Appeal No. 35/2022, which was allowed by the Appellate Authority vide order, dated 26.05.2022, by setting aside the order of the Respondent No.2 holding the same in violation of Rule 16(3) of The Sindh Local Councils (Election) Rules, 2015 (‘the Rules’) and thereby rejected the nomination of the petitioners. It is against that order, that the instant Const. Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been preferred by the petitioners.

2. Learned counsel for the petitioners contends that the absence of seconder’s signature on nomination paper in Form-II(A) was not a mistake of substantial nature; hence, the respondent No.2 rightly accepted the nomination of the petitioners, 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 order.

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 both by the proposer and the seconder is mandatory for the consideration and/or acceptance of the nomination.

7. In the instant case, it is matter of the record that the respondent No.2 while accepting nomination of the petitioners failed to examine non-compliance of aforementioned Rule. The very defect of non-signing the nomination paper in Form-II(A) by the seconder reflects that in fact the seconder never appeared before the respondent No.2 to verify the nomination of the petitioners, otherwise such defect would have been cured at the time of scrutiny of nomination papers. Now the situation emerged is that nobody has seconded the petitioners as candidates to contest the forthcoming Local Council Elections for the aforesaid seats. 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(A) 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 order requiring any interference by this Court in its Constitutional jurisdiction. Accordingly, instant petition is dismissed along with listed application, with no order as to costs.

J U D G E

Abdul Basit