ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Constt: Petition No.D-        4466 & 4467 of 2015

DATE                         ORDER WITH SIGNATURE OF HON’BLE JUDGE

1-     For orders on CMA.No.13634/2015 (Stay)

2-     For KatchaPeshi.

3-     For hearing of CMA.No.12521/2015 (Stay)

 

14th. March, 2016.

 

                        Mr. Abdul RasheedKalwar, Advocate for Petitioners.

Mr. Qurban Ali Malano, Advocate for Respondent No.1 in C.P.No.D- 4466 of 2015.

Mr. Liaquat Ali Shar, Addl: A.G a/wMushtaque Ahmed Abbasi, Returning Officer, UCs Sanko, KeenjharKhirohi&Juhum, TalukaDaharki& Shah Nawaz Solangi, Election Officer, Ghotki.

                        Mr. MianMumtazRabbani, D.A.G.

 

AQEEL AHMED ABBASI, J:-       The above petitions are being disposed of through this common order as the controversy raised in these petitions is same, as the petitioners have prayed for issuance of directions to the respondent / Returning Officer to carry out the recounting in respect of UC-Khirohi, TalukaDaharki.

2.                     Learned Counsel for petitioners submits that inspite of specific application having been filed by the petitioners for recounting of votes of polling stations male / female in respect of aforesaid Union Council, the Returning Officer who started recounting, has stopped the same on account of hindrance created by respondents, therefore, petitioners have filed instant petitions seeking directions of this Court to the Returning Officer to exercise his lawful duties and complete the recounting process.

3.                     Notices were issued, pursuant to which Mr. Qurban Ali Malano, learned Counsel filed his Vakalatnama on behalf of respondent No.1 and has raised objections with regard to maintainability of instant petitions and similar objections have been  raised by learned Addl: A.G as well as learned D.A.G, who submit that the petitioners have remedy to approach the Election Tribunal constituted for such purposes in terms of Section 47 of Sindh Local Government Act, 2013 along with Rule 60 of Sindh Local Council (Election) Rules, 2015. It has been further stated that petitioners have also filed such petition before the Election Tribunal which is pending disposal and in addition to such petition, instant petitions have been filed. Learned Counsel for respondent has also raised objection with regard to maintainability of instant petitions and submits that neither petitioners have filed an application for recounting before the consolidation of the results which were completed nor any reasonable ground has been shown for the purposes of recounting. Per learned Counsel, there is sufficient difference between the votes of Returned Candidates and the petitioners therefore, such request of recounting otherwise is not maintainable. In support of his contentions, learned Counsel has placed reliance in the case of  Jam Madad Ali v. Asghar Ali Junejo& others reported as 2016 S C M R 251.

4.                     Learned Counsel for petitioners while rebutting his objections submits that instant petitions have been filed for inaction of the public functionaries, who after having accepted the request of the petitioners for recounting have stopped the same on the pretext that law and order situation and hindrance have been created by the respondents.

5.                     We have heard the learned Counsel for the parties and have perused the record. It appears that disputed facts have been agitated through instant petitions, whereas, petitioners have already filed Election Petition before the Election Tribunal in terms of Section 47 of Sindh Local Government Act, 2013  along with Rule 60 of Sindh Local Councils (Election) Rules, 2015, which is pending disposal. Though, we are of the tentative view that once the Returning Officer/ District Returning Officer had accepted the application of the petitioners for the purposes of recounting of votes, then such recounting would have been completed in accordance with law instead of stopping the same on account of non-cooperation by either party, however, we would restrain ourselves from recording our finding with regard to legality or the merits of the case, for the reasons that petitioner has already filed election petition before Election Tribunal, which is functional and can conveniently decide such petition for recounting as per law. Therefore, we would dispose of instant petitions with directions to the Election Tribunal to decide the election petition of the petitioners strictly in accordance with law within a reasonable period of time, after providing an opportunity of being heard to the concerned parties.

                        The above petitions stand disposed of in the above terms along with listed applications.

JUDGE

JUDGE

A.R.BROHI