1. ' The nomination papers filed by the petitioner to contest By-Elections for the constituency PP-141, Lahore-V were accepted by the Returning Officer but later on application of the petitioner under section 17 of "The Representation of the People Act, 1976" seeking permission to retire from the Elections was dismissed by the Returning Officer vide order, dated 23-6-2008 and through this constitutional petition legality of the said order has been challenged on the grounds that the concerned Returning Officer has erroneously assumed that the application was filed after the time limit fixed by the statute for doing the needful. Learned counsel submits that the petitioner had approached the Returning Officer on 21-6-2008 but due to non-availability of concerned Returning Officer petitioner failed to submit the application. Further submits that on 22-3-6-2008 it was Sunday and the office of the Returning Officer was closed and that finally on 23-6-2008 he. Moved application before the Returning Officer but the same was dismissed. Learned counsel submits that in the circumstances petitioner could not be saddled with the responsibility of moving application after the expiry of time limit fixed by the statute.
2. ' Learned law officer who entered appearance on Court's call has no objection to permit the petitioner to entire from the contest of election.
2. Heard. File perused.
3. Section 17 of "The Representation of the People Act, 1976" reads as under:-- "Retirement from election, etc.---(1) A contesting candidate may retire from the contest by a notice on writing signed by him and delivered to the Returning Officer on any day not later than four days before the polling day either by such candidate in person or by an agent authorized in this behalf in writing by such candidate.
(2) No person who has given a notice of retirement under subsection (1) shall be allowed to cancel the notice.
(3) The Returning Officer shall upon receiving a notice of A retirement under subsection (1) cause a copy thereof to be affixed at some conspicuous place in his office and also to be published in such manner as he may think fit.
(4) A person in respect of whom a notice of retirement has been published under subsection (3), shall be deemed to have withdrawn his candidature under section 16."
4. ' The crux of this section is that if a candidate opts to retire from the election he has to give notice to the Returning Officer on any day not later than four days before the polling day. In the present case By-Elections as scheduled for 26-6-2008. The contents of the notice/ application of the petitioner moved before the Returning Officer reveal that the same was prepared on 21-6-2008 for its presentation. The affidavit annexed with this application support the contentions of learned counsel for the petitioner that on 21-6-2008 office of the Returning Officer was closed. We have also observed that on the next day i.e, 22-6-2008 was holiday because of Sunday, thus the possibility that staff of the Returning Officer was not available could not be ruled out, and finally on 23-6-2008 application was moved before the Returning Officer.
5. ' In the said circumstances we are of the considered view that saddling the petitioner with liability that he had approached the Returning Officer after the prescribed time limit find mentioned in the relevant law would be unjustifiable and unfair. Even otherwise if the petitioner is not interested in contesting election, forcing him to go for the election would also not be justifiable. Accordingly we allow this writ petition and permit the petitioner to retire from the contest of election.