IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Before:

Justice Nadeem Akhtar

Justice Zafar Ahmed Rajput

1. C.P. No. D–692 of 2022: Ghulam Asghar v. Muhammad Ismail & others

2. C.P. No. D–695 of 2022: Lal Dino v. Muhammad Sharif Shaikh & others

3. C.P. No. D–708 of 2022: Ghulam Sarwar v. The Election Commission of Pakistan &others

4. C.P. No. D–719 of 2022: Kareem Bux v. Election Commission of Pakistan & others

5. C.P. No. D–721 of 2022: Ghulam Abbas v. Federation of Pakistan & others

6. C.P. No. D–749 of 2022: Mehboob Ali Rajper v. Election Commission of Pakistan & others

7. C.P. No. D–754 of 2022: Imdad Ali Bohio v. Jaffer Khan & others

M/sMuhammad Zubair Malik,Muhammad Junaid Akram, Nisar Ahmed Bhanbhro, Imdad Ali Malik, Shabbir Ali Bozdar, Kashif Hussain Shaikh, Ameenuddin Khaskheli and Shoukat Ali Bohio, Advocates for the Petitioners

M/s Mehfooz Ahmed Awan, Mukesh Kumar Karara,Advocatesfor the private Respondents

Mr. Ali Raza Pathan, D.A.G.Mr. Ali Raza Balouch, A.A.G. and Mr. Zeeshan Haider Qureshi, Law Officer, ECP for official respondents.

Dates of hearing : 14.06.2022 & 16.06.2022

Dates of order : 17.06.2022

O R D E R

ZAFAR AHMED RAJPUT, J.– Since identical facts and common question of law are involved in all aforementioned Constitutional Petitions, the same are being disposed of by this common order.

2. The Petitioners(candidates for the seats of Chairman)and the Respondents(1) Muhammad Ismail (2) Muhammad Sharif Shaikh (3) Taufique Ahmed (4) Shah Nawaz (5) Muhammad Ali (6) Fayaz Aki and (7) Jaffar Khan Chandio (candidates for the seats of Vice-Chairman in the panels of petitioners), as joint candidates,filed their nominationpapers in Form-II(A) to contest Local Council Elections-2022 for the seats of Chairman and Vice-Chairman, respectively, of their respective U.Cs, which were accepted by the Returning Officers concerned after scrutiny. Afterward, the said Respondents unilaterally submitted applications before the Returning Officers for withdrawal of their nominations as Vice-Chairman, which were allowed by them, vide orders dated 30.05.2022, 03.06.2022 and 06.06.2022. Thereafter, in some of the matters in hand, the Returning Officers issued “Return of Uncontested Election” under Rule 23 of the Sindh Local Council (Election) Rules,2015 (“Rules, 2015”). It is against that orders, the listed Constitutional Petitions have been preferred by the Petitioners under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

2. Heard, record perused.

3. The issue involved in these petitions and required our deliberation is as to whether the said Respondents who submitted their joint nominations papers in the panel along with Petitioners as joint candidature for the seats of Vice-Chairman and Chairman, respectively, can withdraw their nomination at their own without consent of the Petitioners who were candidates for Chairman in the panel with them.

4. It may be seen that sub-section (2) & (5) of Section 18 of the Sindh Local Government Act, 2013 provides election tothe Chairman and Vice-Chairman for Union Committees in urban area and Union Councils in the rural area as “joint candidates”. Under Rule16 of the Rules, 2015, the Returning Officers also invite nomination of Chairman and Vice-Chairman as “joint candidates”by a nomination paper in Form II-(A) duly signed by them as well as their proposer and seconder.The Returning Officers during scrutiny has to accept or reject their nomination papers jointly and not individually. The legislature has inserted “joint candidates” and letter (s) with the word ‘candidate’ is basing on the premises that both members of a panel have to swim or drown together as a result of the election.

5. It may be observed that if law does not allow any person to file nomination papers to contest election individually at any one seat of Chairman or the Vice-Chairman because of joint candidature, it does not appear that the legislature would intend to allow any member of a penal to withdraw his nomination papers individually from any one seat of the said joint candidature. As such, for the withdrawal of jointly submitted nomination papers, both the said candidates are required to sign the application for withdrawal of their nomination papers before the Returning Officers. In individual capacity, neither the candidate for Chairman nor candidate for Vice-Chairman can withdraw the nomination papers jointly submitted by them in the panel as joint candidature.

6. As observedin the case ofMst. Sumera Bano v. Additional District and Sessions Judge /Appellate Authority and others(2017 YLR 2135), authorizing only one member of a panel to withdraw nomination papers without consent of other member would mean to allow even an unscrupulous person, with the connivance of the opponent, to singly file an application for the withdrawal of the nomination papers to the detriment of the other member of his panel, who does not wish to withdraw from the election. This would run counter to the concept of joint candidacy and would also amount to condemn the other member of the panel unheard which is against the fundamental principle of ‘audi alteram partem’. Such an eventuality is ridiculous and does not appear to be the intention of law makers.

7. For the foregoing facts, discussion and reasons, we are of the considered view that the nomination papers filed jointly by a panel of Chairman and Vice-Chairman cannot be withdrawn unilaterally by a member of the panel and resultantly, the Returning Officers committed illegality and irregularity by allowing such withdrawal of the Respondents. Consequently, all listed Constitutional Petitions are allowed by setting aside the impugned orders allowing withdrawal of nomination papers individually on the applications of the said Respondents as candidates for the seats of Vice-Chairman of their respective U.Cs., with directions to the Returning Officers to issue revised list of contesting candidates by inserting names of the Petitioners and the said Respondents as candidates for the seats of Chairman and Vice-Chairmanof their respective U.Cs. and allot them symbols as per rules.

All the listed Constitutional Petitions stand disposed of along with pending applications, with no order as to costs.

J U D G E

Abdul Basit