Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Ghulam Qadir Leghari .

C.P.No.D-4088 of 2015

C.P.No.D-4145 of 2015

C.P.No.D-4156 of 2015

For Katcha Peshi

13.11.2015

Mr. Ghulam Mujtaba Sahito Advocate for Petitioner,

in CPD-4088/2015.

Mr. Shaikh Amanullah Advocate for petitioner,

in CPD-4145/2015.

Syed Jaffar Ali Shah Advocate for petitioner,

in CPD-4156/2015.

Mr. Zulfiqar Ali Sangi, Assistant Advocate General.

Mian Mumtaz Rabbani, Deputy Attorney General.

Mr. Nisar Ahmed Bhambhro, Amicus Curiae.

O R D E R

AQEEL AHAMED ABBASI, J. The above petitions are being disposed of with common order as the controversy involved in these petitions is common.

The issue agitated before us, through instant petitions, is that when the petitioners filed their Nomination Papers as per final electoral list in respect of various constituencies, the candidates and their proposers and seconders were of the same Electoral Unit (Constituency), however, after having submitted their Nomination Papers before the Returning Officers, which were otherwise complete and correct in all respects and there was no deficiency in such Nomination Papers, in view of delimitation by the Election Commission of Pakistan, pursuant to orders passed at Principal Seat by the Division Bench of this Court headed by Hon'ble Chief Justice in CPD-4407/2015 and several others, a situation has arisen according to which either the candidates or their proposers and seconders have been placed in different Electoral Unit (Constituency), which has resulted in rejection of their Nomination Papers. It has been prayed by the learned counsel for the petitioners that the petitioners are not at fault as they filed their Nomination Papers after complying with all codal formalities as per Final Electoral Roll, issued by the Election Commission of Pakistan, whereas, their Nomination Papers were complete and correct in all respects. However, in view of subsequent delimitation by the Election Commission of Pakistan, the above situation has arisen, whereas, neither the Election Commission of Pakistan nor the Returning Officers have given any opportunity to the petitioners to allow them to substitute Chairman and Vice Chairman or proposer and seconder belonging to the same Electoral Unit (Constituency) where their Nomination Forms have been transferred by the orders of the Election Commission of Pakistan in view of the delimitation made by the Election Commission of Pakistan. Per learned counsel under similar circumstances a Division Bench of this Court at Principal Seat has allowed the candidate to substitute the proposer and seconder as per changed circumstances on account of delimitation.

Notices were issued, pursuant to which Abdul Majeed Memon and Nazar Hussain Tanwri, AROs, taluka Mehrabpur and Sikander Ali Shah Assistant, Election Commission of Pakistan, Sukkur have shown appearance, whereas, copy of notification No.F.6(3)/2015-LGE(S) dated 23.09.2015 issued by Election Commission of Pakistan to cater such situation has been placed on record. The nominee of Election Commission of Pakistan and the AROs present in Court submit that pursuant to aforesaid notification the Nomination Papers of such candidates have been transferred to concerned Council in view of the orders passed by the Hon'ble High Court at Principal Seat in terms of sub-para (v), para 1 of the said order, however, while confronted with above factual position, as stated by the learned counsel for the petitioners, they could not assist this Court as to how the petitioners are at fault and as to why they should not have been given an opportunity to remove such defect/deficiency, which occurred on account of subsequent delimitation when they had already submitted their Nomination Papers in accordance with law and relevant rules.

Learned AAG and DAG while confronted with such position, have candidly stated that under hereinabove peculiar facts and circumstances, it was the duty of the Election Commission of Pakistan to inform the petitioners about such delimitation and its effect so that the petitioners could have been provided an opportunity to substitute the Chairman/Vice Chairman and proposer and seconder falling under different Electoral Unit (Constituency) so that such defect could have been removed by the petitioner in accordance with law.

We have heard the learned counsel for the petitioners, learned AAG and learned DAG and the nominee of Election Commission of Pakistan, also perused the notification and the relevant record in this regard.

Admittedly, petitioners in the instant petitions filed their Nomination Papers after complying with all codal formalities as per election schedule on the basis of Final Electoral Roll, issued by Election Commission of Pakistan within stipulated period, whereas, there was no defect or objections with regard to validity of their Nomination Forms. However, in view of orders passed by a Division Bench of this Court headed by Hon'ble Chief Justice in large number of petitions whereby the delimitation by the Election Commission of Pakistan in respect of various constituencies was challenged, short order dated 18.09.2015 was passed in CPD-4407/2015 (and several others) in the following terms:

(i) “By looking at the impugned delimitation of a Council, if it appears that the territorial unity was not maintained then the limits of such Council shall be so adjusted in order to bring it in consonance with the established criteria of delimitation as provided in Section 10 (3) of the Sindh Local Government Act, 2013.

(ii) The areas of a Council which were rural at the time when the Hon'ble Supreme Court passed short order dated 20.03.2014 in the case of Province of Sindh vs. MQM but were subsequently annexed with any Council of an urban area or vice versa, through the process of impugned delimitation the same shall be undone and fresh delimitation shall be carried out.

(iii) Fresh delimitation of the Councils shall be carried out only in the two situations that are narrated in sub-paragraphs (i) and (ii) above within a period of five days from today i.e. up to 23.09.2015.

(iv) Only such petitioners shall seek fresh delimitation within three days from today whose grievance falls within the ambit of sub-paragraph (i) and (ii) only. As to any other kind of grievance to the delimitation of the constituencies, the aggrieved persons may seek remedy after the elections, in accordance with law.

(v) No fresh Nominations to stand in elections can be allowed in any Council, boundaries of which are revised by the Election Commission pursuant to this order.”

Pursuant to aforesaid order, the Election Commission of Pakistan issued a notification dated 23.09.2015, the relevant para 3 of such notification is reproduced hereunder:

“The Returning Officers are directed that Nomination Papers shall be transferred to the concerned Council in pursuance of directions of the Court contained in sub-para (v) of para 1 of the judgment.”

In view of hereinabove orders passed by the Division Bench of this Court and the notification issued by the Election Commission of Pakistan in the above terms, the petitioners are now confronted with situation whereby the respondents have rejected their Nomination Papers instead of providing an opportunity to remove such defect/deficiency, which has occurred subsequently on account of above changed circumstances which were beyond the control of the petitioners. We are of the considered opinion that a party cannot be deprived of his right, particularly fundamental right, to contest election as guaranteed by Constitution of Pakistan, on the basis of some technicalities or fault on the part of the official respondents, who in the instant case being Election Commission of Pakistan and the Returning Officers, did not allow the petitioners to remove such defect by substituting Chairman/Vice Chairman or proposer and seconder, as the case may be, of the same Electoral Unit (Constituency) where their Nomination Forms have been transferred by the orders of the Election Commission of Pakistan as referred to hereinabove in terms of second proviso to sub-rule (3) of rule 80 of Sindh Local Councils Election Rules, 2015. Accordingly, instant petitions are allowed, the respondents are directed to allow the petitioners to substitute Chairman/Vice Chairman or proposer and seconder of the same Electoral Unit (Constituency) where their Nomination Forms have been transferred pursuant to above notification and the orders passed by the Hon'ble High Court within three days, whereafter, their Nomination Forms, if found to be eligible otherwise, shall be accepted and Form VII and VIII shall be issued accordingly.

Before parting with the order, we would appreciate the assistance provided by Mr. Nisar Ahmed Bhambhro Advocate, who was present in Court.

Petition stands allowed in above terms.

JUDGE

JUDGE

N.M.