May 11, 2005	Wednesday	Rabi-us-Sani 2, 1426

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KARACHI, May 10: The Sindh High Court reinstated the relieved nazims and naib nazims of Larkana, Mirpurkhas, Jacobabad and Dadu, but suspended the operation of its order for 10 days to enable the provincial government to approach the Supreme Court in appeal. A division bench comprising Justices Sarmad Jalal Osmany and Zia Perwez held in a 28-page judgment, which was reserved on February 14, that the creation of new revenue districts would, for the purpose of their delimitation under the Sindh Local Government Ordinance, 2001, take effect at the time of subsequent elections.

The order implies that the petitioner nazims and their deputies would head the local government in both the districts bifurcated in December 2004 till the new polls. Petitioners Khursheed Ahmed Junejo and Nazir Ahmed Bhugio would thus be nazim and deputy nazim of the districts of Larkana and Shahdadkot at Kamber. The reinstated nazims of Mirpurkhas (Pir Syed Shafqat Shah Jilani), Jacobabad (Mir Shabbir Ali Bijarani) and Dadu (Malik Asad Sikandar Khan) would also be nazims of Umerkot, Kashmor and Jamshoro, respectively. The creation of new districts was not challenged by the petitioners.

The nazims and deputy nazims were relieved by notifications issued on December 22, 2004, under Section 186 (2) of the SLGO, but the judgment said the provision dealt with transition in areas where local governments had not been validly constituted. It was not available for removal of nazims.

Summing up the government’s case, Advocate-General Anwar Mansoor Khan had argued that the districts so declared under Section 6 of the Sindh Land Revenue Act, 1967, automatically became electoral districts under Section 7 of the SLGO. Old revenue and electoral districts having disappeared, the nazims and deputy nazims just ceased to hold their offices. Recourse could be had only to transitional provisions and the district coordination officers, who were an integral part of the local government set-up, were asked to take charge of the new districts.

The AG ruled out a compromise suggested by the bench that, as in Balochistan, the nazims should be allowed to continue in the bifurcated districts where they were enrolled as voters. He said fresh polls were the only way out. The bench, however, restrained the Election Commissions from holding new elections so that the petitioners were not presented with a ‘fait accompli’ wherein they could not be given any relief.

Thinking aloud, the bench had observed that it might probably have to ‘read into the law’ to decide the case either way. The judgment declared that the matter was covered by express provisions of the SLGO and there was no need for ‘casus omissus’ or supplying omissions.

The petitioners’ counsel referred to their political affiliation (with the PPP) but the bench observed that no case of mala fides had been made out against the respondent government. About the relief, the judgment said the court that has jurisdiction over a matter also has the power to mould relief according to the circumstances of the case.

About the DCOs, the bench said there was no ‘reason to appoint’ a public officer to exercise the powers of an elected nazim, particularly when union and taluka councils were in existence.

About the removal of nazims, the bench said a vacancy in the office occurred under the specific conditions resulting from death, resignation, removal or suspension, mental or physical incapacity as specified in the SLGO provisions. He is also subject to internal and external recall and adjudication by the Election Commission.

Advocates Abdul Hafeez Pirzada, Rasheed A. Razvi, Abdul Mujeeb Pirzada, Abu Bakar Zardari and Rana Ikramullah appeared for the petitioners.