IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constitution Petitions No. D-680 of 2022

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

Petitioner: Zulfiquar Ali s/o Haji Sirajuddin, through Achar Khan Gabol, Advocate

Respondent Federation of Pakistan, through

No.1: Mr. Ali Raza Pathan, D.A.G.

Respondent Provincial Election Commission, through

No.2 to 5: Mr. Zeeshan Haider Qureshi, Law Officer,

E.C.P.

Respondent Syed Noor Muhammad Shah, through

No.6: Mr. Shabbir Ali Bozdar, Advocate

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

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O R D E R

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ZAFAR AHMED RAJPUT, J.– The respondent No.6 submitted his nomination to contest Local Council Elections-2022 for the seat of General Member Ward No.2, Town Committee Bhiria, District Naushahro Feroze, which was provisionally accepted and subsequently rejected by the Returning Officer/respondent No.5, vide orders dated 18.05.2022, on the ground that he did not attach the vote certificate. Against that rejection, the respondent No.6 preferred Election Appeal No. 139/2022, which was allowed by the Appellate Authority/ Election Tribunal, Naushahro Feroze, vide order dated 25.05.2022, by setting aside the order of Returning Officer. It is against those orders, that the listed Const. Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been preferred by the petitioner, who is a contesting candidate of the aforesaid ward No.2.

2. Learned counsel for the petitioner has contended that the Appellate Authority erred in allowing Election Appeal; that since the respondent No.6 is a registered voter of rural area i.e. Union council 33, Taluka Bhiria, he cannot contest election from urban area in view of sections 35(c) and 37 (2) (a) of the Sindh Local Government Act, 2013 (“the Act”); hence, the impugned order is liable to be set aside being not sustainable in law. In support of their contentions, learned counsel has relied upon the case of Haji Khan Bhatti vs. Province of Sindh through Provincial Election Commission and others (2016 SCMR 1970) and unreported order of this Court passed in C.P. No.D-586 of 2022 (Re- Mansoor Ali Siyal & another vs. Federation of Pakistan and 4 others).

3. On the other hand, learned counsel appearing for respondent No.6 has fully supported the impugned order on the ground that the respondent No.6 is the resident of urban area of District Naushahro Feroze but his vote was out-listed from Town Committee, Bhiria without any notice to him; hence, the Appellate Authority rightly passed the impugned order with direction to Election Officer to issue provisional voter list containing the name of respondent No.6 in the voter list of Town Committee, Bhiria.

4. The learned D.A.G., A.A.G. and Law Officer of ECP; however, do not support the impugned order in view of Section 37(2) (a) of the Act. They have maintained that even the respondent No.6 did not approach to District Election Commissioner for shifting of his vote before freezing of Electoral Rolls on account of forth coming election of Local Government in Sindh Province; while as per rules the cutoff date to entertain such application was 13^th April 2022.

5. Heard, record perused.

6. We deem it appropriate to reproduce here 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.

7. It appears from the perusal of above-mentioned provisions of law that under section 35 of the Act, 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, under section 37 (2) (b), 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 his proposers and seconders are registered voters of the concerned Union Council or ward as the case may be.

8. In the instant case, it is an admitted position that the petitioner, intends to contest for General Member Ward No.2, Town Committee Bhiria, (Urban) but he is not a registered voter of said Town Committee of the District Naushahro Feroze but of Union Council-33, Taluka Bhiria, which is an rural area of the said District. In the case of Haji Khan Bhatti (supra), the Hon’able Supreme Court has held that the petitioner, being a voter of Municipal Committee Moro, District Naushahro Feroze, which is a Council in urban area of the District, on account of restrictions contained in Section 35(1)(c) of the Act cannot stand as a candidate on the reserved seat of District Council Naushahro Feroze which under Section 15 (b) (ii) of the Act is constituted purely for rural area of a District.

9. In the instant matter, the nomination of the respondent No.6 was rejected by the Returning Officer on the ground that he did not annex vote certificate with his nomination papers but the Election Tribunal set aside the order of Returning Officer vide impugned order, directing to Election Officer to issue provisional voter list containing the name of respondent No.6 in the voter list of Town Committee, Bhiria. Such directions of the Election Tribunal is unwarranted inasmuch as the Election Tribunal had no jurisdiction to record the same as it was for Respondent No.6 to agitate shifting of his vote before the cutoff date i.e. 13^th April 2022. Once the Schedule of Local Council Elections-2022 was announced, the respondent No.6 could only have filed his nomination in respect of Union Council where his vote is registered whether rightly or wrongly. There is another aspect of the matter as well. The issue here is not of any disqualification of the respondent No.6 on merits or as to ineligibility due to failure to meet any of the prescribed conditions of being a valid candidate. It is just because of the fact that an attempt was made by him to contest elections in a Town Committee where his vote is not registered.

10. We are, therefore, of the view that allowing of the Appeal by way of impugned order of the Election Tribunal, amounts to gross illegality. The Election Tribunal adopted a weird and queer procedure to enlist the respondent No.6 on electoral roll of the Town Committee concerned by issuance such directions for that it has no jurisdiction.

11. For the foregoing facts and reason, instant petition is allowed. Impugned orders passed by the Appellate Authority/ Election Tribunal stand set aside. The nomination of Respondent No.6 stands rejected. Office to communicate this order to the Election Commission.

14. Const. Petition stands disposed of with pending application.

J U D G E

Faisal Mumtaz/PS