MUHAMMAD AYUB Versus UBEDULLAH KHAN

ORDER

ABDUL HAMEED DOGAR, J.‑‑ ‑This petition for leave to appeal has been filed against the judgment, dated 20‑11‑2002 of learned Division Bench of High Court of Sindh, Bench at Sukkur whereby Constitution Petition No.D‑555 of 2002 filed by respondent Ubedullah Khan was allowed and order of Election Tribunal, dated 12‑4‑2002 was set aside and order for holding of fresh election in accordance with law was made.

2. The facts giving rise to the institution of this petition are that petitioner alongwith his joint candidate namely Muhammad Akram contested election for Union Council 9 Old Sukkur, as Union Nazim and Union Naib Nazim respectively. They, however, succeeded and were declared as returned candidates.

3. Result of the election was assailed by respondent Ubedullah through election petition on the ground that petitioner Muhammad Ayub was not qualified to contest election as on the day of filing of nomination papers, he had not completed six months after retiring from service. The said election petition was dismissed by the Election Tribunal, Sukkur, vide order, dated 12‑4‑2002. It was this order which was assailed in Constitution Petition No.D‑555 of 2002 before the High Court of Sindh, Bench at Sukkur, which was allowed vide impugned judgment by a learned Division Bench.

4. We have heard Messrs Ahmadullah Faruqi, learned Advocate Supreme Court for petitioner Muhammad Ayub and Anwar Mansoor Khan, learned Advocate‑General, Sindh at length and have gone through the record and proceedings of the case in minute particulars.

5. Admittedly, petitioner retired on 30‑8‑2000 from service. The nomination papers were filed by him on 23‑2‑2001. It shows that on the day of filing of nomination papers he had not completed six months and was thus disqualified to contest the election in view of rule 82(1) of the Sindh Local Government Elections Rules, 2000 (hereinafter referred to as "the Rules").

6. For better appreciation, it would be appropriate to refer section 14 of the Sindh Local Government Elections Ordinance, 2000 (hereinafter referred to as "the Ordinance") and rule 82 of Rule, which are reproduced as under:‑‑

"14. Qualification for candidates and elected members .‑A person shall, qualify to be elected or to hold an elective office of membership of a Local Government, if he‑

(g) is not in the service of the Federal, a Provincial or a local Government or, any statutory body or a body which any of such Government has a controlling share or interest, except the holders of elected public office and part‑time officials remunerated either by salary or fee; provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement. "

"82. Grounds of declaring election of returned candidate void .‑‑(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:‑‑

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from; being elected as a member or Nazim or Naib Nazim, as the case may be;

(c) ..

(d) ..

Irrespective of above, even in the nomination papers a declaration on solemn affirmation was to be made by the joint candidates to the effect that they had carefully read the qualification for being candidate as member and as a Nazim or a Naib Nazim of a union, provided under section 14 of the Ordinance and the Election Rules made thereunder. Accordingly petitioner and his co‑candidate Muhammad Akram while filing nomination paper had declared on oath that they were not hit by any adverse qualifications which may render any of them ineligible for being Nazim or Naib Nazim of Union.

7. From the plain reading of the above provisions, it is clear that the cut off date is, the day of filing of nomination papers. Admittedly, the petitioner had not completed the stipulated period of six months as provided under section 14 of the Ordinance. It was hit by rule 82 of the said Rules. Thus, he was not qualified, hence election was rightly declared void by the learned High Court.

8. Resultantly the petition being devoid of force is dismissed and leave to appeal refused.

S.A.K./M‑63/S Leave refused.