ORDER SHEET

HIGH COURT OF SINDH CIRCUIT COURT, HYDERABAD

C.P No. D-2309 of 2022

DATE ORDER WITH SIGNATURE OF JUDGE

Mr. K.B Lutuf Ali Laghari, advocate for petitioners

Mr. Raja Ghazanfar Ali, advocate for respondent No. 5 & 7

Mr. Pervaiz Tariq Tagar, advocate for respondent No. 6

Mr. Ashfaque Nabi Qazi, Asst. Attorney General Pakistan.

Mr. Zaheer Abbas, Law Officer ECP along with Adeel Ahmed, Assistant Commissioner, Returning Officer UC 26-30 T.C Khyber.

Mr. Allah Bachayo Soomro, Addl. A.G Sindh

Date of hearing: 06.07.2022

Date of decision: 20.07.2022

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Learned counsel for the petitioners submitted that the petitioners have challenged the order dated 25.06.2022 passed by District Judge/Appellate Authority Matiari in Election Appeal No. 10 of 2022 on the ground that the learned Appellate Authority dismissed the appeal filed by the petitioners against order passed by Returning Officer, UC-26 to 30 Town Committee Khyber dated 19.06.2022 whereby the petitioner No. 1’s nomination papers were rejected due to his seconder (petitioner No.2) not being from the electoral unit as he was contesting from. It was argued by the advocate for the petitioner that the votes of petitioner No. 2 were moved without their application from UC-27 even though petitioner No. 2’s name was available in the vote list issued on 20.05.2022; that the Appellate Authority ought to have allowed correction of the defect of seconder of the petitioner No. 1/candidate. In support of his contentions, he has cited the case law reported as Sindh High Court Bar Association through its Secretary and another v Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) and Shehla Zia v WAPDA (PLD 1994 SC 693).

Learned counsel for the private respondents jointly supported the impugned orders while contending that it is a mandatory provision of law under Rule 16(2) of the SLC(E) Rules 2015 that a candidate proposes and seconds names of voters of the concerned constituency, that being the one he is contesting from; that the petitioner No. 1 had obtained the vote certificate of his seconder which clearly showed that he did not belong to the same constituency, as such instant petition is liable to be dismissed. In support of their contentions, they relied on the case reported as Nadeem Shafi v Tariq Shuja Butt (PLD 2016 SC 944).

Learned Additional A.G Sindh assisted by learned Assistant Attorney General Pakistan and Law Officer ECP supported the impugned orders while contending that the list that the petitioners have relied on was a provisional list and the final list was published later on wherein petitioner No. 2’s name was deleted; that the petitioners can no longer seek a change in the electoral rolls after the Election Schedule has been published and as such prayed for the dismissal of the instant petition.

S. 39 of the Election Act 2017 does not allow for any revision, change or correct in electoral rolls published for any constituency beyond the cut-off-date. A change at this stage is not permissible and would only cause confusion especially when even the ballot papers have been issued and the polling day is set for 24.07.2022. It was observed in the case of Haider Ali Khan Jamali v Returning Officer/ADC Jaffarabad (2014 CLC 1381) that:-

“Election Schedule for coming Local Government elections had been announced. Thus, correction of subsequent list by including petitioner's name would be barred under section 20 of Electoral Rolls Act, 1974. No indulgence could be shown to petitioner in this behalf. High Court dismissed constitutional petition in limine.”

This view was also upheld in the case of Yousaf Ali v Election Commission of Pakistan through Chief Election Commissioner and 4 others (2016 MLD 1881).

Even otherwise, as far as the contention with regard to the defect being curable is concerned, it was observed by this Court in CP Nos. 3990 and others of 2022 that:-

“6. As to the arguments that it is a curable defect… the Hon’ble Supreme Court in the case reported as Rana Muhammad Tajammal Hussain V/s. Rana Shaukat Mahmood (PLD 2007 Supreme Court 277), wherein it has been held that such a provision is mandatory in nature, and neither the Returning Officer, nor the Appellate Authority or for that matter, this Court can cure such defect, which is not of curable nature but is of a substantial nature.”

For these reasons, this Court is of the view that the petitioners had failed to approach the Election Commission with their objections regarding the change in their electoral rolls at an earlier stage. Therefore, the observations of the learned Appellate Authority were correct which are hereby upheld along with the order of the Returning Officer UC 26-30 Town Committee Khyber.

For these reasons, instant petition stands dismissed.

JUDGE