MUHAMMAD AKHTAR SHABBIR, J. --- The brief facts of the case are that the writ petition has filed his nomination papers to contest the election for Nazim from Union Council No. 40 Shireen Jhangar, Tehsil and District Nankana Sahib in the Local Councils Elections to be held on 25.08.2005.
Respondents Nos. 1 & 2 had also submitted their nomination papers for Nazim and Naib- Nazim respectively from the same constituency. The nomination papers of respondents Nos. 1 & 2' have been accepted by the learned Returning Officer vide order dated 30.07.2005. The petitioner filed an appeal against the said order, which was dismissed by the leaned District Returning. Officer Vide order dated 02.08.2005. Both these orders have been assailed through the instant writ petition by the petitioner on the grounds that respondent No. 1 being Administrator, Market Committee, Nankana Sahib was not eligible to contest the election for the seat of Nazim.
2. The learned counsel for the petitioner has placed a copy of the judgment of the Honourable Supreme Court dated 10.04.2006 passed in C.P. No.. 1534-L of 2005 wherein it has been decided that a person who being the Administrator of the Market Committee is not qualified/eligible to contest the election under the ,Local Government Ordinance.
3.- Respondents Nos. 1 & 2 are elected representatives of the Union Council against whom the election petition filed by the petitioner is pending before the Election. Tribunal.
4. The Election Tribunal is competent to declare the elected persons disqualified to contest the election. The election process has ended and the elected representatives are functioning/performing their duties. This writ petition has been filed to call in question the orders passed by the Returning Officer and the District Returning Officer and after the election this petition has become infructuous. So far as the arguments of the petitioner that respondent No. 1 being Administrator of the Market Committee was not eligible to contest the election in view of 'the judgment of. The Honourable Supreme Court,. The answer would be that since the election petition is sub judice before the Election Tribunal. The. Full Bench of this Court vide judgment dated 18.09.2002 has observed that the writ petition by the candidates against the acceptance of nomination papers of, their opposing candidates are barred by Article 225 of the C.L.R.
Constitution of the Islamic Republic of Pakistan, 1973. The relevant portion of the judgment of the Full Bench of this Court is reproduced as under- "The first case to be noted on this question is Baqra v. Muhammad Yousaf and another (PLD 1966 (W.P) Lahore 149) in which while interpreting the provisions of Article 171 of the Constitution of the Islamic Republic of Pakistan, 1962 which are in para materia with the provisions of Article 225 of the present Constitution, a Division Bench of this Court held that. Against acceptance of nomination papers a Constitutional petition is not competent. The question was considered at length by the Honourable Supreme Court in Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396). The view taken by the Honourable Supreme Court was that once the election Schedule has been announced it cannot be challenged except the way of an election petition. The contention of the learned counsel fro the petitioner in the first two writ petitions that the judgment in the case of Javid Hashmi was diluted by the Honourable Supreme Court in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer (1994 SCM R 1299) has not in pressed us because the observations recorded in the said judgment rather go against the contention of the learned counsel for the petitioner. We may add . Here that the writ petitioner (Ghulam Mustafa Jatoi's case) was directed against the rejection of the nomination papers and not acceptance thereof and in that context. The Honourable Supreme Court had observed that if a person does not have any remedy during or after the election, a writ petition will be maintainable. Reference may be made to Chaudhry Nazir Ahmad . And others v. Chief Election Commissioner and 4 others (PLD 2002 SC 184) wherein the Honourable Supreme Court held that even if a mandatory provision was violated.. An election could not be called in to question except through an election petition and a Constitutional petition is not maintainable,"
Therefore, keeping in view the dictum laid down by the Full Bench of this Court, this writ petition is disposed of with the direction to the petitioner to urge the objection of disqualification of respondents Nos. 1 & 2 in the light of the judgment of the Honourable Supreme Court before the Election Tribunal and the Election Tribunal while taking into consideration the merits of the case and the dictum laid down by the Honourable Supreme Court will pass an appropriate order.