IN THE HIGH COURT OF SINDH, BENCH

AT SUKKUR

Election Appeal No.S-35 of 2016

[Israr Ahmed versus The Federation of Pakistan through Secretary, Election Commission of Pakistan and 8 others]

Date of hearing : 07.05.2018

Date of Decision : _________

Appellant : Through Mr. Ghulam Shabbir Dayo,

Advocate.

Respondents : Through Mr. Muhammad Aslam Jatoi,

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 challenged the impugned order dated 28.10.2016 passed in the Election Petition No.32 of 2016, which was preferred by the present Appellant against the Election Result in which present Respondent No.6 (Mansoor Sikandar) was declared a successful / returned candidate, but vide impugned order, the Election Petition of the present Appellant was dismissed on the grounds that the mandatory requisites as mentioned in the Rules 60 to 63 of the Sindh Local Councils (Election) Rules, 2015 (the “Election Rules”) was not followed, as the Petitioner did not serve the copy of the Election Petition at the time of filing the same before the Election Tribunal and did not implead those persons against whom he leveled allegations of corrupt practice.

2. The undisputed facts are that the present Appellant and the present Respondent No.6 were rival candidates for the seat of Member District Council of Union Council Khan Bahan. The Elections were held on 30.12.2015 under the supervision of official Respondents No.1 to 5, in which the Respondent No.6 was declared successful, which result, as stated hereinabove, was questioned by way of the afore-mentioned Election Petition. It is necessary to clarify that present private Respondents No.7, 8 and 9, who were contesting candidates, were admittedly not originally impleaded in the said Election Petition and to make them Respondents, an Application under Order I Rule 3 of CPC was filed, which too was dismissed through the impugned order.

3. From the pleadings of the present Appeal and the Election Petition, it is quite apparent that besides alleging illegalities and corrupt practices committed on the part of Respondents, the present Appellant has questioned the eligibility of Respondent No.6.

4. Mr. Ghulam Shabbir Dayo, Advocate, for the Appellant has questioned the impugned order on the grounds mentioned in the Memo of Appeal and has also stated that the learned Election Tribunal should have first decided the issue of disqualification of Respondent No.6 as he was suspended for possessing fake / bogus Educational Certificate as is evident from the order dated 29.10.2015, issued by
Sindh Building Control Authority (SBCA), which is produced with the present Memo of Appeal as Annexure “G”.

5. The learned Law Officers of Federation and Province of Sindh, namely, Mr. Muhammad Aslam Jatoi and Mr. Mehboob Ali Wasan, have supported the impugned order and according to the learned Assistant Attorney General and Assistant Advocate General Sindh, the decision under challenge has been passed after considering the un-refuted material available on record, because neither the copy of Election Petition was served on the Respondents at the time of filing of the Election Petition nor other contesting candidates were impleaded as parties, which is a clear violation of Rule 61 of the said Election Rules, which is mandatory in nature; thus the impugned order is unexceptionable and ought to be maintained.

6. Arguments of the learned counsel for the parties have been taken into the account and record perused.

7. Record of the proceeding in the Election Petition No.32 of 2016 has also been considered. The Appellant has levelled allegations of illegalities committed by an Assistant Presiding Officer but admittedly did not implead him as respondent in his above Election Petition. Similarly, other contesting candidates were not arrayed as Respondents, but, to cure that incurable defect an application was filed (under Order I, Rule 3 of CPC), as mentioned in the foregoing paragraphs, but the same was dismissed. More so, it not a disputed fact that the copy of the Election Petition was not served upon the Respondents at the time of filing the same (the said Election Petition) before the learned Election Tribunal. Both these violations of Rule 61 are fatal, as the same attracts the adverse consequence of dismissal of petition as mentioned in Rule 64 of the Election Rules; this being a rule as expounded in number of decisions of the Hon’ble Apex Court and of our Court; (i) 2014 SCMR 1477 {Inayatullah versus Syed Khursheed Ahmed Shah}; (ii) 2017 YLR 557 (Jaleel Ahmed v. Election Commission of Pakistan); (iii) 2017 YLR Note 429 (Muhammad Ameen and another v. Jawaid Ali and 5 others) and (iv) Election Appeal No. S-10 of 2016 (Muhammad Zaman v. Federation of Pakistan and others).

Similarly, in paragraphs 4 and 5 of the Election Petition it has been specifically pleaded that the Respondent No.6 / returned candidate has committed fraud and mischief as he was in Government Service as an Inspector in Sindh Building Control Authority (SBCA) and was not qualified / eligible to contest the Election. The present Appellant has also filed the afore-mentioned order of SBCA as Annexure-D with his Election Petition, to show that number of SBCA officers including the Respondent No.6 was suspended because of possessing fake / bogus diplomas / educational qualification. A correspondence/application dated 28.12.2015 is also available, which was addressed by the present Appellant to the officials of Election Commission including the present official Respondents, in which the latter were apprised of the above fact and disqualification of Respondent No.6, but no action was initiated by the official Respondents, inter alia, under sub-Section (2) of Section 36 of SLGA. A copy of this last correspondence is part of record of the present appeal and the above Election Petition and it bears the receiving of the office of the Returning Officer-present Respondent No.5. All the above documents till date has gone unchallenged and authenticity whereof is not disputed by the Respondents.

8. Under Section 36 of the Sindh Local Government Act, 2013, (SLGA), disqualification for candidates as members is mentioned in detail and it would be advantageous to reproduce the
above Section/provision herein below_

“36. Disqualification for candidates as members.- (1) A person shall be disqualified from being elected or chosen as and from being a member of the Council, if_

(a) he is of unsound mind and has been so declared by a competent Court; or

(b) he is an un-discharged insolvent;

(c) 3[***Omitted];

(d) he holds an office of profit in the service of Pakistan, or Province of Sindh or a Council;

(e) he is in the service of any statutory body or a body which is owned or controlled by the Government or the Federal Government or a Council or, in which any of such Government or Council has a controlling share or interest, except the holders of elected public office; provided that in case of a person who has resigned or retired from any such service, a period of not less than six months has elapsed since his resignation or retirement; or

(f) he has been convicted by a Court of competent jurisdiction for an offence involving moral turpitude or misuse of power or authority under any law unless a period of three years has elapsed since his release; or

(g) he has been convicted for an offence involving activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan, unless a period of three years has elapsed since his release;

(h) he has been dismissed, removed or compulsorily retired from public service on the grounds of misconduct unless a period of three years has elapsed since his dismissal, removal or compulsory retirement;

(i) He is under contract for work to be done or goods to be supplied to a council or has otherwise any direct pecuniary interest in its affairs;

(j) he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being enforce;

(k) he is certified by his Political Party to have defected from the Party.

2[(2) Whoever-

(a) is found, by the Election Commission to have contravened the provisions of sub-section (1), shall stand disqualified from being a candidate for election to any office of a Council for a period of four years;

(b) having been elected as a member of a Council or is a holder of an elective office of the Council is found by the Election Commission to have contravened the provisions of sub-section (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Council for a period of four years.]”

{Underlined to add emphasis}.

9. Even though the impugned order has considered this crucial aspect of the case but the objection of the Appellant’s side was not sustained because the Election Petition was itself instituted by not following the mandatory provisions of Election Rules, as stated herein above. The subsequent factor weighed with the learned Election Tribunal and the Election Petition was dismissed. But at the same time the undisputed factual aspect as of today is that disqualification mentioned in Section 36 of the SLGA appears to be attracted in the present case; particularly Clause (e) of Sub-section 1 of Section 36, because the private Respondent No.6 either is or was in the service of SBCA, which has been established under the Sindh Building Control Ordinance, 1979, and is a statutory body, as envisaged in the above disqualification provision (Section 36) of SLGA. Even for the argument’s sake, if he (Respondent No.6) left the service of SBCA, then it is to be seen whether a period of six months has elapsed since his leaving of service or not, as mentioned in the Clause (e) above.

10. In my considered view, the proper course that should have been adopted by the learned Election Tribunal, was to examine some senior officer from the Sindh Building Control Authority along with the record, because this inherent disqualification in the candidature of Respondent No.6 cannot be overlooked or ignored. In this regard, two reported Judgments of Hon’ble Supreme Court handed down in Rai Hassan Nawaz Versus Haji Muhammad Ayub case and Ali Muhammad Mari Versus Province of Sindh and others; reported in PLD 2017 Supreme Court 70 and PLD 2017 Supreme Court 258, respectively provides a guidance. In the first case, though it was held that the Election Petition was not maintainable, yet the Hon’ble Apex Court has ruled that the Election Tribunal should have invoked Section 76 (A) of the Representation of the People Act, 1976 (ROPA) for inquiring into the disqualification of the candidate; whereas, in the second Judgment it was held that provisions of the Constitution and the SLGA should not fall prey to the machinations of a candidate. In the second case, the issue was that the Respondent was declared a successful / returned candidate on the reserved seat for Labour, but the record produced by the Appellant (of the reported case) proved that the Respondent did not fall within that category.

11. The sole question in this Appeal is that if the Election Petition was not filed / instituted after complying the afore-mentioned provisions of Election Rules, whether the learned Election Tribunal still could have inquired into the disqualification of the present Respondent No.6.

12. Section 71 of the SLGA clearly provides that provisions of the Representation of the People Act, 1976, (ROPA) shall be applicable to the elections and the electoral process under SLGA. The Hon’ble Supreme Court in the case of Faqir Abdul Majeed Khan Versus District Returning Officer, and others, reported in 2006 SCMR 1713, inter alia, while interpreting the provisions of Punjab Local Government Rules, 2005, has held that the “principle announced in the Judgment pertaining to Election held under the Constitutional Provision shall also be applicable on the Election under Local Government Ordinance…”. Thus, in my considered view the learned Election Tribunal should have invoked the afore-mentioned Section 76 (A) of the ROPA for deciding the matter before it, for the reasons mentioned hereinabove and more particularly, that no person/member can hold an elected office in violation of Section 36 of SLGA. The Tribunal could have also directed the official Respondents to decide the above Application (of 28.12.2015) of the Appellant.

However, at this juncture it is clarified that the findings of the Tribunal to the extent of non-compliance of the mandatory requirement of Rule 61 of the Election Rule is correct and is hereby maintained.

13. The upshot of the above discussion is that the impugned order to the extent of finding given in respect of the disqualification of Respondent No.6 cannot be sustained and is set-aside. Case is remanded to the learned Election Tribunal for deciding only the issue of disqualification of Respondent No.6 afresh. The Tribunal will give its decision within four weeks from the date of receipt of this order along with the record of the case. The Tribunal may, inter alia, examine some senior official from the SBCA along with the record to verify the authenticity of the documents. If it is found that the allegations against the Respondent No.6 are correct then the learned Election Tribunal while passing an appropriate order may also consider initiating an independent proceeding against the said Respondent No.6, in the light of rule laid down in the case of Mehmood Akhtar Naqvi v. Federation of Pakistan-PLD 2012 Supreme Court page-1089.

JUDGE

Sukkur,

Dated: _____________

M.Javaid/PA