IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petition No.D-613 of 2022

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

Petitioners : (1) Ali Jan s/o Nazeer Ahmed (2) Muhammad

Malook s/o Haji Muhammad Shar and (3) Ghulam Murtaza Rajper s/o Muhammad Bux, through Mr. Abdul Rehman Faruq Pirzada, Advocate

Respondents : Election Commission of Pakistan and 3 others, through Mr. Zeeshan Haider Qureshi, Law Officer, ECP.

Mr. Ali Raza Pathan, Assist. Attorney General

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

Date of Hearing : 14.06.2022, 16.06.2022& 17.06.2022

Date of Order : 24.06.2022

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O R D E R

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ZAFAR AHMED RAJPUT, J.– Petitioners submitted their nominations to contest Local Council Elections-2022 for the seats of Member District Council (Rural) from Union Council No. 52, Punhal Khan Rajper, Union Council No. 51, Nangar Khan Shar at Karam Khan and Union Council No. 53, Bhango Behan of District Khairpur, respectively, which were rejected by the Returning Officer/respondent No.3 after scrutiny, on the ground that they are not enrolled as voter in the said Union Council. Against that order, the petitioners preferred Election Appeals No. 21, 102 and 143 of 2022, which were also dismissed by the Appellate Authority, vide consolidated order dated 27.05.2022. It is against those 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 petitioners has contended that the Returning Officer erred in rejecting nominations of the petitioners by misinterpreting provisions of sections 35(c) and 37(2)(a) of the Sindh Local Government Act, 2013 (“the Act”) and 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 relevant provisions of sections 35 and 37 of the Act, as under:-

35. Qualifications for candidates as members.- A person shall not be qualified to be elected or chosen as a member of the Council unless –

(a) ---------------------------------

(b) ---------------------------------

(d) ---------------------------------

37. Prohibition on dual membership. -(1) Save as otherwise provided under this Act, no person shall, at the same time, be a member of more than one Council:

(2) (a) Candidate contesting for the District Council membership, may contest the election from any Union Council of the District

(b) Candidate contesting for the membership of Town Committee or Municipal Committee may contest the election from any ward of the respective Committee.

Provided that the proposer and seconder as in clause (a) and (b) shall be registered voters of the concerned Union Council or ward as the case may be.

(3) -----------------------------------------

(4) -----------------------------------------

(5) -----------------------------------------

(6) -----------------------------------------

6. It appears from the perusal of above-mentioned provisions of law that a person qualifies to be elected or chosen as a member of the Council if he is enrolled as a voter in the electoral rolls of the concerned Council or ward. However, a person contesting for the District Council membership, may contest the election from any Union Council of the District and the persons contesting for the membership of Town Committee or Municipal Committee may contest the election from any ward of the respective Committee provided that their proposers and seconders are registered voters of the concerned Union Council or ward as the case may be.

7. In the instant case, it is an admitted position that the petitioners, who intend to contest for the membership of District Council (Rural) are not registered voter of any concerned Council of the said District Council i.e. rural area of the District Khairpur but of Town Committees Karoondi and Pacca Chang, which fall in urban area of the said District. This Court has already observed in the case of Haji Khan Bhatti v. Province of Sindh and others (2017 CLC 1650) that if a candidate is a registered voter in an urban area then he could only be elected for Town Committee, Municipal Committee, Union Committee etc. falling within an urban area of a district, and if a person is a registered voter in a rural area, he could only be elected for a Union Council and District Council falling within a rural area; in such case, a person being a registered voter of an urban area disqualifies to represent a rural area and vice versa, irrespective of the fact that he is voter of the same district.

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, this petition is dismissed, with no order as to costs.

J U D G E

Faisal Mumtaz/PS