1. Nadeem Azhar Siddiqi, J.--By this common judgment we intend to dispose of the Election Appeals Bearing Nos. 11, 12 and 13 of 2007 filed by the appellant challenging the order dated 1-12-2007 passed by the learned Additional District and Sessions Judge/Returning Officer, NA-212, Naushero Feroze-II and PS-21 Naushero Feroz-III at Serial. No, 25 and PS-21, Naushero Feroz-III at Serial No, 25/A by which the nomination papers of the appellant for contesting the Election were rejected on the ground that Article 63(c) of the Constitution of. Islamic Republic of Pakistan disqualifies the candidate and Section 158 of Sindh Local Government Ordinance, 2001 also bar the nomination papers.
2. The learned counsel for the appellant submits that the nomination papers were erroneously rejected without considering the undertaking given by the appellant to resign from the office of Taluka Nazim if decided to contest election. He further submits that Article 63 of the Constitution of Pakistan and Section 99 of the Representation of the People Act, 1976 do not debar the appellant from contesting the Election and since the Sindh Local Government Ordinance, 2001 is a provincial statute the same is not applicable to the Election of National Assembly. He further submits that the appellant has to tender his resignation on the day when the final list of candidates will be finalized and not before filing the nomination papers.
3. The learned A.A.G. has supported the impugned order passed by the Returning Officer and submits that at the time of filing of the nomination paper the appellant has to fulfil all the requirements for contesting election and since at the time of filing of the nomination papers the appellant has not resigned from the office of the Taluka Nazim his nomination paper was rightly rejected.
4. We have heard the learned counsel for the appellant, learned A.A.G. for the State and perused the record made available before us.
5. The appellant has submitted three nomination papers, one from NA-212 Naushero Feroz-II and two from PS-21, Naushero Feroz-III at Serial No, 25 and PS-21, Naushero Feroz-III at Serial No, 25/A and all the three nomination papers were rejected on the ground that the appellant is disqualified to contest election under Article 63(c) of the Constitution of Pakistan and under Section 158 of the Sindh Local Government Ordinance, 2001. It is an admitted position that the appellant is holding the office of Taluka Nazim, Kandiaro. Section 158 of the Sindh Local Government Ordinance, 2001 provides that a Taluka A Nazim may contest election for any other political post after resigning from the existing post of Nazim. This section imposed a bar upon the sitting Nazim to contest election without first resigning from the post of Nazim. The question is whether a sitting Nazim can submit his nomination without first resigning from the office of Nazim and can tender his resignation after acceptance of his nomination. Section 158 provides that Nazim may contest election for any other political post after resigning from the existing post of Nazim. This means that on the day when the appellant has filed his nomination he should not hold any other political office and a candidate at the time of filing of the nomination should possess the qualification contained in Article 62 and do not suffer from disqualification laid down under Article 63 of the Constitution of Pakistan.
6. Election is a very wide term and is a continuous process consisting of series of steps starting from filing of nomination to the announcement of result. In the reported case of Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 it has been held as under: "While considering the meaning of the word "election" the expression "conduct the election" in sub- Article (3) of Article 218 should also be taken into consideration as that expression is of a wide import and should be read into other provisions which occur in the same Chapter to give a purposeful meaning to the word "election".
7. In order to reach the above conclusion, the Hon'ble Supreme Court of Pakistan has relied upon a case from Indian jurisdiction reported as N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64 in which the word "election" has been defined to have been used in the wide sense that is, "to connote the entire procedure to be gone through to return candidate to the Legislature." The Hon'ble Supreme Court has also relied upon an earlier judgment of. Lahore High Court reported as Muhammad Nazir Hakim v. Said Muhammad PLD 1962 Lah. 421 in which it was held as under: But while we agree that the term "election" stands for the entire process which leads step by step to a certain result, we find it difficult to hold that the age of a candidate should be determined with reference to the final stage in the process. If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date' "preceding the election", will be a date preceding the first link in the chain and not a date preceding the last link; for a date preceding the last link would be a date preceding the declaration of the results, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "election" as the publication of the result of the election."
8. The Hon'ble Supreme court of Pakistan has also relied upon the case of Muhammad Afzal v. Miraj Din PLD 1967 Lah. 689 in which the word "election" was defined as under: "It is well-settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the Official Gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc."
9. The crucial date is the date on which the nomination papers has been filed for the reasons that Section 158 of Sindh Local Government Ordinance permits the sitting Nazim to contest election after resigning the existing post of Nazim. Admittedly, the appellant has not tendered his resignation before submitting his nomination. Section 158 of Sindh Local Government Ordinance, 2001 is saved under Article 63(1)(s) of the Constitution of Pakistan.
10. Article 63(1)(s) of the Constitution of Pakistan provides 'that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in forced.
11. From the perusal of the above Article, it appears that due to bar imposed by Section 158 of the Sindh Local Government Ordinance, 2001 the appellant, who is a sitting Nazim, is debarred from contesting election of National Assembly as well as of Provincial Assembly unless he first resigns from the office of Nazim. No doubt, Sindh Local Government Ordinance is a provincial statute, but the bar contained in Section 158 is in consonance of Article 63(1)(s) of the Constitution of Pakistan and fully applicable to the election of Provincial Assembly. The purpose for scrutiny of nomination papers as provided under Section 14 of the Representation of Peoples Act, 1976, apart from other to see whether the candidate is not qualified to be elected as a member. In view of the provisions of Section 158 of the Sindh Local Government Ordinance, 2001 read with Article 63(1)(s) of the Constitution of Pakistan the appellant is debarred from contesting election for any other political office without first resigning from the post of Nazim.
12. After considering the material available on the record, we are of the view that the Returning Officer has rightly rejected the nomination papers of the appellant and the learned counsel for the appellant has failed to point out any illegality and infirmity in the impugned orders, hence the appeals have no merits and are accordingly dismissed with no order as to cost.
13. These are the reasons for our said short order dated 8-12-2007.