IN THE HIGH COURT OF SINDH

CIRCUIT COURT LARKANA

Election Appeal S-04 of 2016

Munir Ahmed Bijarani

Versus

Ghulam Muhiyuddin and others

For the Appellant:                  Mr. Abid Hussain Qadri, Advocate.

For the Federation:               Mr. Abdul Rasheed Abro

Assistant Attorney General.

For Election Commission :   Mr. Rafique Ahmed K. Abro

of Pakistan                                      Advocate.

Date of Hearing:                    04.09.2018

Date of Announcement:       04.09.2018

O R D E R

Agha Faisal, J.     Through this Election Appeal, the appellant has challenged the order of the 1^st Additional Sessions Judge/Election Tribunal, Kandhkot dated 07.9.2016 (“Impugned Order”) which is reproduced herein below:

“I have considered arguments and perused the record which shows that the petitioner remained fail to join all the contesting candidates in his petition as mandatory requirement of the law as prescribed under Rule 61 of Sindh Local Councils (Elections) Rules 2015, and on failure to make compliance, petition shall be dismissed forthwith under rule 64 of Sindh Local Councils (Election) Rules, 2015.

In the light of reasons mentioned above I am of the humble view that the applicant has made out his case for dismissal of the petition, hence petition in hand is hereby dismissed under rule 64 of the Sindh Local Councils (Election) Rules, 2015”.

2. Mr. Abid Hussain Qadri, learned counsel for the appellant states that there were three candidates for the seat being contested by the appellant, including the appellant, and this statement is corroborated by the form VIII filed by the Assistant Attorney General of Pakistan in the present proceedings vide statement dated 18.04.2018. It is further submitted that all three contesting candidates were party to the election petition and the same is demonstrated from a copy of the election petition available at page No.13 of the Court file, wherein one candidate is the petitioner and the two remaining candidates have been joined in the array of respondents. Per learned counsel, the Impugned Order is prima facie untenable hence the same may be set aside and the matter may be remanded to be heard on its merits.

3. Mr. Rafique Ahmed K. Abro, learned counsel representing the Election Commission of Pakistan, has graciously submitted that the Form VIII, filed with the statement dated 18.04.2018, is a matter of record and does not controvert the content thereof. Per learned counsel it was apparent that all the candidates had been arrayed in the election petition then the same ought to have been considered in any order passed in such proceedings. The Learned Assistant Attorney General also supports the contention advanced by the learned counsel for the E.C.P.

4. In view of the foregoing it is apparent from the statement dated 18.04.2018, filed by Assistant Attorney General for Pakistan, that there were three candidates in the election subject matter of the present proceedings. It is also apparent from the record that all the three were joined as parties in the election petition. The Impugned Order has erroneously maintained that all the contesting candidates were not party to the petition there-before. Even otherwise the Impugned Order is silent as to which additional person/or persons were required to be made party in order to qualify the petition under rule 61-A of the Sindh Local Councils (Election) Rules 2015.

5. It is the considered view of this Court that the Impugned Order is not sustainable and for the reasons and rationale stated hereinabove the Impugned Order is hereby set aside. The matter is remanded back to the Court of 1^st Additional Sessions Judge/Election Tribunal, Kandhkot for determination in due accordance with the law.

Judge

Abid H. Qazi/**