1. ' By this constitutional petition, petitioner has challenged the order, dated 27th July, 2005 passed by learned District Returning Officer, Karachi-West, whereby the appeal filed by respondent No,1, Sarwar Iqbal, was allowed and the nomination paper of petitioner as joint candidate of Nazim with Naib Nazim for UC-6 Gadap Town, Karachi-West, was rejected, as a whole.
2. ' Relevant facts for disposal of this constitutional petition are that petitioner filed nomination form as a joint candidate for Nazim with Naib Nazim namely, Mahfooz Qureshi before the Returning Officer, Lyari Town, Karachi-South. The nomination form was transferred to Returning Officer Gadap Town, Karachi-West since the said Returning Officer wasappointed as Returning Officer for relevant UC-6 Gadap Town, Karachi-West. Petitioner had deposited the requisite fee of Rs,5000 with the nomination form which was, too, ordered to be deposited with the Returning Officer Gadap Town, Karachi-West. The said nomination paper, so received on,transfer, was accepted by Returning Officer Gadap Town Karachi-West vide order, dated 24th July, 2005, which was appealed against before learned District Returning Officer, Karachi-West who passed the order impugned herein.
3. ' The contention of Ms. Raana Khan is that the Returning Officer Lyari Town Karachi-South before whom the nomination form of petitioner was, initially, filed could transfer the said nomination form to another Returning Officer, in this case, Returning Officer Gadap Town, Karachi-West, who rightly accepted the same. In order to support her contention she has referred to Article 9-B of the Election Commission Order, 2002. Further contention of Ms. Raana Khan is that since the Returning Officer, on receipt of the nomination of petitioner from Returning Officer Lyari Town, Karachi-South, had accepted it legally and lawfully, learned District Returning Officer could not upset his order by way of impugned order simply by saying that there is no specific power vested in a Returning Officer to transfer a nomination form.
4. ' On the other hand, Mr. M. Sarwar Khan, learned Additional Advocate-General has strongly opposed this constitutional petition. He contends that no powers are vested in Returning Officer Lyari Town, Karachi-South to transfer the nomination form of petitioner hence the very first step which led to the acceptance of nomination form of the petitioner was illegal and the nomination form could not have been accepted by learned Returning Officer Gadap Town, Karachi-West. He contends further that a detailed programme of. All the three phases which include "Karachi City District" was announced by the Election Commission through print as well as electronic media; according to which the publication of notice of nominations within terms of Rule 12 of the Sindh Local Government Elections Rules, 2005 was to be made on 21st July, 2005, for objections of voters on 22nd July, 2005 while 23rd and 24th July, 2005 were fixed for the purpose of scrutiny of the nomination forms. In support of his contention, he has placed reliance on an attested copy of the above mentioned Detailed Programme published by the Election Commission. Mr. M. Sarwar Khan argues that the publication of notice of nomination in the case of petitioner was not made as per stipulation hence the voters of the area of the UC in question were deprived of to put forward their objections, if any, on the date already fixed for the said purposes. At the end, he states that petitioner happened to be an Ex-Nazim and ought to have been more cautious in tiling his nomination paper before a proper ReturningOfficer. He states further that there is no illegality or infirmity in the impugned order which needs no interference.
5. ' The above arguments of Mr. M. Sarwar Khan have been adopted by Mr. Zafar Ahmed Khan, Advocate appearing on behalf of respondent No,1.
6. ' We have given due attention to the arguments of learned counsel for the parties and with their assistance we have examined the material made available before us.
7. ' Admitted fact is that the nomination form of petitioner for Nazim and Naib Nazim was filed before Returning Officer Lyari Town, Karachi-South and an amount of Rs,5000 being the requisite fee was also deposited in District South Karachi. The contention of Mr. M. Sarwar Khan that the said nomination paper could not be transferred by D Returning Officer Lyari Town, Karachi-South to the Returning Officer Gadap, Karachi-West as there was no specific power vested in the Returning Officer has not been controverted by Ms. Raana Khan, learned counsel for petitioner. She has however placed reliance on Article 9-B of the. Election Commission Order, 2002 which for facility is reproduced as follows:-- (9B) Direction of Commission in certain matters.---Anything required to be done for carrying out the purposes of this Order, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Election Commission may direct.
8. ' The above provision relates to the direction of the Commission in certain matters as is evident from its reading. It provides that whenever anything required to be done for carrying out the purposes of that Order, for which no provision or no sufficient provision existed would be done by such authority and in such manner as the Election Commission may direct. Without going into controversy whether this provision is applicable or not to the exercise of elections within terms of the Sindh Local Government Elections Rules, 2005 framed in exercise of powers conferred by section 191 of Sindh Local Government Ordinance, 2001 (Sindh Ordinance No,XXVII of 2001), it may be stated that nothing has been brought to our notice that for the purpose of transfer of nomination paper from one constituency to another constituency any directions have been issued by the Election Commission, hence the above provision is of no assistance to the petitioner, even otherwise.
9. ' The Sindh Local Government Elections Rules, 2005 provides a clear guideline for conduct of the Local Government Elections. Clause(XXII) of Rule 2 of the Rules ibid provides definition of Returning Officer meaning thereby that a Returning Officer appointed under these Rules and includes Assistant Returning Officer exercising powers and performing functions of a Returning Officer. Vide Notification bearing No,P.T. (14)/2005-Elect-II, dated 15th July, 2005, Ms. Gulshan Ara Chandio, learned Additional District and Sessions Judge-I, Karachi-West was appointed as a Returning Officer for UC-6 Maymarabad (W). Then sub-rule (5) of Rule 12 of the Rules ibid provides that every nomination paper shall be delivered by the candidate or his proposer or his seconder to the Returning Officer who shall acknowledge the receipt of the nomination paper specifying the date and time of receipt.
10. ' From the above it is implied that nomination paper is to be filed before the Returning Officer who has been appointed vide Notification, dated 15th July, 2005, referred to above. In the instant case, petitioner did not file the nomination paper before the Returning Officer who was appointed for the said purpose but before a Returning Officer of other District. Be that as it may, the petitioner could have filed another nomination paper before the concerned Returning Officer as according to sub- rule (6) of Rule 12 a person may be nominated in the same Union by more than one nomination paper. Thus, in case the petitioner had found that he had filed the nomination paper before a Returning Officer not appointed for UC-6 Maymarabad (W), another nomination paper could have been filed by him before the concerned Returning Officer i,e, Returning Officer Gadap Town, Karachi-West. According to Mr. Muhammad Sarwar Khan, learned Additional Advocate-General petitioner happened to be Ex-Nazim and could not be normally expected a person unaware of the rules in question. By not filing the nomination paper before the Returning Officer appointed to receive petitioner's nomination paper in the light of our discussion in the foregoing paras petitioner has to blame himself for the consequences which were to follow on account of filing of the nomination paper before an unconcerned Returning Officer.
11. ' Apart from the above, the Detailed Programme of the first phase as regards election (referred to above) reflects that publication of notice of nomination, in case of the petitioner, was to be made on 21st July, 2005, in order to provide an opportunity to the voters of the Union Council concerned to raise objections, if any, on the date already fixed for that purpose i,e, 22nd July, 2005. In the instant case, nomination of the petitioner was published on 24th July, 2005 hence the voters of the area were deprived of their right to raise any objection to the nomination of the petitioner at the time of scrutiny on relevant date which is in flagrant violation of standing instructions and against spirit of relevant rule.
12. ' Considering all the above facts and circumstances, we are of the considered view that the order impugned herein does not suffer from any illegality or infirmity. Resultantly, we find no merit in this constitutional petition and dismiss the same in limine.