ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Constt: Petition No.D-        3915   of 2015

DATE                         ORDER WITH SIGNATURE OF HON’BLE JUDGE

FOR KATCHA PESHI.

29th. October, 2015.

 

                        Mr. Abdul Haque G. Odho, Advocate for petitioner.

                        Mr. Qurban Ali Malano, Advocate for Respondent No.7.

                        Mr. Noor Hassan Malik, Asstt: A.G.

                        Mr. Mian Mumtaz Rabbani, D.A.G.

 

                        Through instant petition, petitioner has challenged nomination of the respondent No.7 for the post of Vice Chairman, Union Council Shah Bhangio, Taluka Khairpur Mir’s, on the ground that the respondent No.7 has been duly convicted by the Judge, Anti-Terrorism Court, Khairpur Mir’s in Special Case No. 16 of 2011 vide Judgment dated 15.10.2015 in Crime No.05 of 2011 of police station, Tando Masti Khan, for offences punishable under Sections 324, 353, 224, 225, 147, 148, 149 PPC & 7-ATA, and has been sentenced to suffer R.I for 10 years.     Per learned Counsel for the petitioner that in terms of election laws, the respondent No.7 is not eligible to contest elections.         

                        Notices were issued, pursuant to which, Mr. Qurban Ali Malano, Advocate filed Vakalatnama on behalf of respondent No.7, which is taken on record.

                        Whereas, Mr. A.R.Faruq Pirzada, Advocate has filed an application U/o 1 Rule 10 R/w Section 151 C.P.C on behalf of proposed intervenor namely Riaz Ahmed Kandhro and submits that the proposed intervenor is necessary party who may be impleaded in the instant petition, as he is contesting elections for the Seat of Chairman along with respondent No.7 Ghulam Qadir from Union Council Shah Bhangio, Taluka Khairpur Mir’s. Learned Counsels present do not oppose his request, accordingly listed application is taken on record, which is allowed by consent and the proposed intervenor is taken as respondent No.8. Office is directed to allot number to the miscellaneous application.

                        Learned Counsels for respondents submit that petitioner has directly approached this Court by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, whereas no such objection was raised before the Returning Officer and Appellate Authority for cancellation of nomination form of the respondent No.7, provided under law, therefore, instant petition is not maintainable. It has been further argued that since against such conviction the respondent No.7 has filed an appeal before this Court, which is pending disposal, therefore, it cannot be held that respondent No.7 is a convicted person as final adjudication by this court is still awaited.

 

                        Mr. A.R.Faruq Pirzada,   representing   the proposed intervenor i.e respondent No.8 submits that even this Court reaches to the conclusion that nomination of respondent No.7 is liable to be cancelled, in view of his conviction, the candidature of respondent No.8 who is otherwise eligible to contest elections shall not be cancelled and he may be allowed to contest elections for the seat of Chairman from Union Council Shah Bhangio, Taluka Khairpur Mir’s. In support of his such contentions, learned Counsel has referred to the decision of division bench of this Court at Circuit Court, Larkana in C.P.No.D- 1158 of 2015. In response to contentions of learned Counsel for respondents regarding maintainability of instant petition, learned Counsel for petitioner has placed reliance in the cases of Abdul Hasan Azad Vs. Provincial Election  Authority, Karchi and 2 others reported as P L D 1984 Karachi 145; case of Election Commission of Pakistan V. Javaid Hashmi and others reported as P L D 1989 Supreme Court 396 and case of Ghulam Mustafa Jatoi v. Additional District & Sessions Judge reported as 1994 S C M R 1299, and submits that petitioner has no other remedy except to approach this Court, as according to learned Counsel for petitioner, the Election Commission of Pakistan inspite of repeated reminders is not taking cognizance of the matter. It has been prayed that matter may be remanded to the Election Commission of Pakistan to take cognizance of the matter, particularly conviction of respondent No.7 in view of the ratio of judgment of Hon’ble Supreme Court.

                        In view of above facts and circumstances, while respectfully following the ratio of decision of Hon’ble Supreme Court as cited by learned Counsel for petitioner, we would direct the petitioner to approach the Election Commission of Pakistan and place such objections which shall be considered strictly in accordance with law and relevant rules, whereafter appropriate orders may be passed by providing opportunity to all concerned, however, keeping in view the ratio of the Judgment of the Hon’ble Supreme Court as cited by learned Counsel for the petitioner. Petition stands disposed of in the aforesaid terms. Let copy of this order be sent to the Provincial Election Commissioner, through fax as well as courier service and shall also be supplied to learned Counsel for the parties on urgent basis.

JUDGE

JUDGE

A.R.BROHI