IN THE HIGH COURT OF SINDH, BENCH

        AT SUKKUR

 

 

Election Appeal No.S-29 of 2016

[Abdul Hakeem v. Federation of Pakistan through Secretary Election Commission of Pakistan Islamabad and 7 others]

 

 

Date of hearing         :           07.05.2018

 

 

Date of Decision      :           _________

 

Appellant                   :           Through Mr. Aijaz Ali Jarwar, Advocate.

 

 

Respondents             :           Through Mr. Muhammad Aslam Jatoi,

Assistant Advocate General Sindh and               Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.

 

Law under discussion :      (1)       Sindh Local Government Act, 2013

(the “Election Law”),

 

(2)       Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”).

(3)       The Representation of People Act, 1976. (ROPA)

 

(4)       Civil Procedure Code (CPC)

                                                                                                                                                                                                                                                                                                                 

JUDGMENT

 

 

 

Muhammad Faisal Kamal Alam, J:  The Appellant has filed this Appeal against the impugned order dated 15.09.2016 passed by the learned Election Tribunal at Naushero Feroze in Election Petition No.17 of 2016, filed by the present Appellant in which besides official Respondents, the present Respondents No.6, 7 and 8 were also impleaded. The learned Election Tribunal dismissed the Election Petition of the present Appellant on legal objections raised by the private Respondents on the ground that copy of the Election Petition was not served upon the Respondents while filing the same before the learned Tribunal and so also the said Election Petition did not bear the verification as required under the Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”).

2.         The undisputed facts leading to the present Appeal are that the Appellant and private Respondents No.6 to 8 were the contestants for the seat of General Member of Ward No.2, Town Committee Padidan Town, District Naushero Feroze in the Election of Local Bodies, 2015. After the results, Respondent No.6 was declared a winning candidate but the election result was challenged by the present Appellant through the aforementioned Election Petition.

3.         Mr. Aijaz Ali Jarwar, the learned Advocate for the Appellant has argued that when the learned Tribunal issued directions for the notices, then the same were sent through courier service by the Appellant and as an evidence he has filed the courier receipts with the present Appeal. With regard to the second ground for dismissal of Appeal, about non verification of the petition as per the Rules, the learned counsel for the Appellant has also disputed this allegation and while arguing that the impugned order is erroneous on the law and the fact, has stated that the Election Petition was verified as per the Rules. It was further contended by the Appellant’s side that the Election Petition should have been decided on merits, inter alia, as the present Appellant has specifically stated the corrupt and illegal practices resorted to by the returned candidate / Respondent No.6 in connivance with other official Respondents, which requires a detailed inquiry and a proper trial.

4.         The arguments of the Appellant’s side have been controverted by Mr. Muhammad Aslam Jatoi, the Assistant Attorney General of Pakistan, representing the Respondents No.1 and 2-Federation of Pakistan and Election Commission as well as Mr. Mehboob Ali Wassan, the Assistant Advocate General Sindh, who represented the Official Respondents No.3, 4 and 5.

5.         The returned candidate / Respondent No.6 has filed a written reply to the present Appeal and has supported the impugned Order. It has been specifically pleaded in the reply, which was the main stance of present Respondent No.6 before the Election Tribunal that Petitioner did not serve the copy of the Election Petition upon the Respondents either personally or through courier service.

6.         With the assistance of the learned counsel for the parties the record and proceeding of the present appeal and the Election Petition No.17 of 2016 has been examined. It is not disputed that when the Election Petition was filed, the same was not served either personally, through courier or registered post upon the Respondents, but after the Court orders the same (Election Petition) was sent through registered post. The decision reported in 2017 YLR 557-Jaleel Ahmed v. Election Commission of Pakistan through Chief Election Commission and 8 others (of our Court) and the decision handed down by Hon’ble Supreme Court and reported in 2014 SCMR 1477 (Inayatullah Versus Syed Khursheed Shah), which was followed in another decision given by this Court in an unreported case of Muhammad Zaman Versus Federation of Pakistan and others-Election Appeal No.S-10 of 2016, the legal position that emerges in this regard is, that Rule 61 (d) of the Election Rules (ibid) relating to the service of an Election Petition on the Respondents has to be interpreted as a mandatory requirement, which is to be fulfilled by Petitioner, who has to serve a copy of an Election Petition upon the Respondents either personally or through courier service or registered post, at that time when the Election Petition is filed before the Election Tribunal. The counter arguments of the Appellant’s side that the service of Election Petition was effected upon the Respondents once the notices were issued by the Election Tribunal, thus has no force, and since the Rules 61, 62 and 63 are mandatory in nature in view of the Rule 64, which provides a consequence of dismissal of Election Petition, if the afore mentioned Rules are not complied with, therefore, the impugned order to this extent is not erroneous.

7.         Adverting to the second ground of dismissal of Election Petition; the original Memo of Election Petition is examined and admittedly it does not contain the verification clause, which is in vogue in the Province of Sindh for the past few years. This very aspect of the case has been discussed in detail in a reported decision of this Court handed down in number of Election Appeals having title Muhammad Amin and another Versus Jawaid Ali and 5 others-2017 YLR Note 429. In paragraph-21 of the above reported Judgment, it is mentioned that a specified format exists in the Province of Sindh for verification of pleadings. In view of this, the finding of the learned Election Tribunal is within the four corners of law and therefore, requires no interference. Consequently, the impugned order does not suffer from any illegality and thus is maintained. Accordingly, this Election Petition is dismissed.

8.         Parties are left to bear their own costs.

 

 

 

JUDGE

Sukkur,

Dated: _____________

 

M.Javaid/PA