1. ' SAJJAD ALI SHAH, J.---Through these petitions the petitioners who are returned Candidates for the seat of Nazim and Naib Nazim U.C. No,3 Jinan Soomro, District Tando Muhammad Khan have called in question judgment dated 15-1-2007, passed by 1st Senior Civil Judge Hyderabad in Election Petition No,10 of 2005 whereby their Election was declared as illegal.
2. ' Learned counsel for the respective parties had agreed for the disposal of these petitions at the stage of Katcha Peshi.
3. Briefly, petitioner No,1 filed two Nomination Forms for the position of Nazim with two different panels of Naib Nazims. One with the petitioner No,2 and the other with the one Ameer Bux Lashari. Both the Nomination Papers were presented at 1155 hours on 27-7-2005 and the one filed with Ameer Bux was numbered as 23 and the one filed with petitioner No 2 was numbered as 24. Both the Nomination Papers of the A petitioner No, 1 with different Naib Nazims were scrutinized on 31-7- 2005. The Nomination Form No,23 of the petitioner No,1 with Ameer Bux Lashari was rejected as the age of. Ameer Bux was found to be less than 25 years whereas Nomination Paper No,24 of the petitioners was accepted. The order of the Returning Officer whereby he accepted the Nomination Form of the petitioners was called in question before the District Returning Officer on the ground that the petitioner No,2 is NonMatric and is defaulter of electricity bill. The objections were rejected by the District Returning Officer vide his order dated 3-8-2005 leading to filing of a Constitutional Petition bearing No,939 of 2005 before this Court with the additional ground that since the other Nomination paper of the petitioner No,1 with Ameer Bux Lashari has been rejected, therefore, all subsequent Forms should be deemed to have been rejected, and this Court vide its judgment dated 20-8-2005 dismissed the petition by rejecting all pleas which order was assailed before the apex. Court vide Civil Petition No,2207 of 2005 but was dismissed as infructuous as by that time polling had already taken place.
4. ' The panel of the petitioners for Nazim and Naib Nazim after the election was declared returned candidates giving rise to filing of two Election Petitions one by respondents Nos.2 and 3 and the other by respondents Nos.6 and 7 which ultimately were allowed and the election of the petitioner to the Seat of Nazim and Naib Nazim was declared illegal on the basis of principles enumerated by the apex Court in the case of Muhammad Jamil Akhtar v. Appellate Authority District Judge Rawalpindi (2003 SCM R 400).
5. ' Mr. Ejaz Ali Hakro learned counsel for the petitioner has contended that there is no bar of filing more than one Nomination Paper and the petitioner No,1 had filed two Nomination Papers at the same time and on the same date and through a clerical process they were numbered, therefore, since it cannot be determined as to which Form, was filed earlier, therefore, the other Form which was accepted by the Returning Officer cannot be rejected on the ground that it was filed subsequently. It was next contended that this issue was raised by the petitioner earlier and was rejected by this Court therefore, it cannot be re-agitated. It was lastly contended that Sub-Rules (6)(7) & (8) of Rule 12 of the Sindh Local Government Elections Rules, 2005 subscribe that where Proposer. And Seconder are common in more than one Nomination Papers then all Nomination Papers except the one received first by the Returning Officer shall be void does not apply to a situation where the candidature is common.
6. ' On the other hand Mr. Sundar Das learned counsel for respondent No,2 has contended that it is settled principle of law that the Candidates who have filed more than one Nomination Papers are at liberty to withdraw their Nominations before scrutiny and if no such withdrawal was made before the, scrutiny their Candidature is to be decided on the basis of Nomination Paper first received by the Returning-Officer and all other Nomination Papers would stand void and since the first Nomination Paper No,23 of the petitioner was rejected, therefore, the subsequent Nomination Paper No,24 on the basis whereof the petitioners were elected as Nazim and Naib Nazim stood void.
7. It was next contended that the judgment of the apex Court in the case of Muhammad Jamil Akhtar (supra) is applicable to the instant case on all fours, Learned counsel lastly contended that no sooner the Nomination Form No,23 was rejected, Nomination Form No,24 in the light of the judgment of the apex Court had become void and the instant petition being meritless is liable to be dismissed.
8. ' Mr. Allah Bachayo Soomro, learned Additional Advocate General Sindh has fully supported the impugned judgments and by placing reliance on the case of Sahibzada Farook Anwar Abbasi v.
9. Appellate Authority/District and Sessions Judge, Bahawalpur (2003 CLC 64) has sought the dismissal of the instant petition, whereas Mr. Muhammad Ali ,learned DAG. Has submitted that the Election Commission would follow the directions of the Court.
10. ' We have heard the learned counsel for the respective parties and have perused the record as well as the case-law cited at Bar.
11. ' We have examined the provisions of The Sindh Local Government Elections Rules with the able assistance of Mr. Atta-uRehman, Assistant Election Commissioner, but were not able to find any provision in the said Rules which imposes a bar upon a candidate to file more than one nomination papers in the same electoral either alone or in different panels. The only bar as contained in sub- rule 7 of Rule 12 applies where a person subscribes as Proposer or Seconder to more than one nomination paper and in such eventuality all nomination papers except the one received first by the Returning-Officer are void. However to cater a situation where a candidate files nomination papers in more than one panel, and if his such nomination papers are accepted then the anomaly would be as to which of the nomination paper should be considered validly filed for the purposes of contesting election, otherwise it would amount to allowing a candidate to contest election in more than one Panel which of course would be totally against the spirit and scheme of Election Laws. In order to meet such eventuality, the Apex Court in the case of Jameel Akhtar (Supra) has laid the following principle:-- "The examination of relevant rules would show that there is neither any restriction for a candidate to file more than one nomination paper in the same electoral ward in the different panels nor he is debarred to withdraw the nomination papers before the date of scrutiny and thus it would be entirely choice of the candidate to withdraw his nomination papers or not from any panel at any time before the scrutiny if he has filed more than one nomination papers and if no such withdrawal is made before the scrutiny, his candidature shall be determined on the basis of nomination papers first received by the Returning-Officer and all remaining nomination papers shall be void.
12. The nomination papers which are withdrawn before the scrutiny would be deemed to have been not filed and therefore cannot be considered for declaring a person either to be a validly nominated candidate in the election or for rejection of his candidature."
13. ' Mr. Aijaz Ali Hakro, learned counsel for the petitioner was not in a position to argue that the case of the petitioner does not fall within the ambit of principles laid down by the Apex Court, therefore, the only point which needs consideration in the instant petition appears to be as to which of the nomination papers filed by the petitioner No,1 in two different panels at one time should be discarded as void.
14. The record reflects that the petitioner No,1 filed two Nomination Papers in different panels for the position of Nazim, both the Nomination Papers were received in the office of Returning-Officer on 27-7-2005 at 11-55 a.m. It appears that the one filed by the petitioner No,1 as Nazim with the Panel of Ameer Bux Lashari as Naib Nazim was given serial No, 23 whereas the other Nomination Paper filed by the petitioner No,1 with petitioner No,2 as Naib Nazim was given serial No,24, therefore, the petitioner was fully aware as to which of the Nomination Paper would be taken up for scrutiny first in time and further on the basis of dicta laid down by the Apex Court as reproduced above had a choice to withdraw either of the Nomination Papers before it was taken up for the purposes of scrutiny. The petitioner failed to exercise such right and consequently the Returning-Officer on 31st July 2005, took up both the Nomination Papers for the purposes of scrutiny and rejected the Nomination Paper of the petitioner No,1 with Ameer Bux Lashari which was registered at No,23 whereas accepted the nomination paper of the petitioners which was registered at No,24, without realizing that no sooner the first Nomination Paper was taken up for scrutiny, the second Nomination Paper on the basis whereof the petitioners have contested election stood void and therefore, the election of the petitioners on the basis of a void Nomination Paper could not be termed in accordance with law.
15. ' In view of what has been discussed above, no ground for interference with impugned order is made out, the petitions being devoid of merits are hereby dismissed.