IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Appeal No.S-19 of 2016

[Ghulam Hyder v. Province of Sindh through Home Secretary Sindh,

Karachi and 10 others]

Date of hearing : 07.05.2018

Date of Decision : _________

Appellant : Through Mr. Manzoor Hussain Larik,

Advocate.

Respondents : Through 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: Through the present Appeal, the Appellant has challenged the order dated 16.09.2016 passed in the Election Petition No.10 of 2015, preferred by present Appellant against the Respondents and particularly in respect of Election Results in which the present Appellant lost and the private Respondent No.6 (Fazal Muhammad Mari) was declared a returned candidate.

2. Admittedly both the Appellant and the private Respondents contested the Election for the seat of Member for District Council of UC Shah Bangio alias Tando Nazar Ali, Taluka and District Khairpur. The claim of present Appellant is, which is also mentioned in the present Appeal so also in the above mentioned Election Petition, that the Polling Staff and other officials resorted to illegalities and corrupt practices and the Respondent No.6 won the Elections through rigging and with the connivance of Presiding Officer.

3. The stance of Appellant has been contested by the Respondents. The learned Assistance Advocate General Mr. Mehboob Ali Wassan, supported the impugned order, whereas, the learned counsel for the Appellant Mr. Manzoor Hussain Larik, reiterated the stance mentioned hereinabove. The gist of his arguments was that the application under Order I Rule 10 of CPC, for impleading the Presiding Officer should have been decided on merits rather than technicalities.

4. Both learned counsel for the Appellant and Respondent No.6 have also submitted Written Synopsis as directed by this Court on 07.05.2018.

5. Rival submissions have been taken into the account and with the assistance of learned counsel for the parties, the record of present Appeal and the Election Petition No.10 of 2015 has been examined.

6. The afore-referred Election Petition was filed on 16.12.2015 in which serious allegations were leveled not only against the Respondent No.6, but also the Polling Staff. In paragraph-9, there is a specific allegation of rigging committed at Polling Stations GMS (Government Middle School) at Shah Bangio and GPS (Government Primary School) at Mangi. It has been alleged that the returned candidate / Respondent No.6 used his influence and resorted to corrupt practices in collusion with the Presiding Officer.

On 25.08.2016, the present Appellant moved an application under Order I Rule 10 of CPC, with the prayer that Presiding Officer, Union Council Shah Bangio may be impleaded as one of the Respondents. This application was resisted by the Respondents, primarily on the ground that this application for impleading the Presiding Officer was filed beyond the prescribed period of 45 days, which is mentioned in Rule 60 sub-Rule 2 of the Sindh Local Council Election Rules, 2015, (the said Rules), inter alia, for filing of Election Petition.

The record of Election Petition shows that the application to implead the above Presiding Officer was filed after almost seven months from the filing of the Election Petition and thus this inordinate delay on the part of present Appellant could not be justified by the latter on any plausible ground.

7. In this regard, a recent Judgment of the Hon’ble Supreme Court reported in PLD 2017 Supreme Court page-70 (Rai Hassan Nawaz Versus Haji Muhammad Ayub) is of relevance. One of the issues raised before the Hon’ble Supreme Court was that the Election Petition was not properly verified and the Respondent (in the above reported case) sought permission for the re-verification of his Election Petition from the Election Tribunal, which was granted. However, the Hon’ble Supreme Court has held that since the application was filed beyond the prescribed limitation period as mentioned in Section 52 Sub-Section 2 of the Representation of People Act, 1976, (“ROPA”), therefore, the said application for amendment was held to be time barred and was dismissed.

8. Adverting to the present Appeal. Rule 62 of the afore-referred Election Rules specifically requires a Petitioner to implead all those persons against whom allegation of corrupt or illegal practice has been leveled in an Election Petition. The Presiding Officer and other Polling Staff of the aforementioned Polling Stations against whom serious allegations were leveled, admittedly were never impleaded as Respondents. By now it is an established Rule that Election Petitions of the nature have to be regulated through the afore referred statutory Rules, which are mandatory in nature, even though applicability of Civil Procedure Code is also attracted in terms of Section 48 of the Sindh Local Government Act, 2013, (SLGA) but certain defects in the pleadings which are otherwise curable in a civil proceeding cannot be cured in election matters, inter alia, in particular, if the verification clause is not in accordance with Rules or if some other statutory Rule as mentioned in the aforementioned Election Rules is violated, which provides a consequence also. In two reported decisions of this Court, viz. 2017 YLR Note 429 (Muhammad Ameen and another v. Jawaid Ali and 5 others) and 2017 YLR 557 (Jaleel Ahmed Vs. Election Commission of Pakistan), this aspect has been clarified. In the former case (2017 YLR Note 429), the legal effect of the Rules 62 to 64 of the Election Rules have been discussed in detail and they are held to be mandatory in nature. If the impugned order is examined in the light of the above, the conclusion is that it does not suffer from illegality or material irregularity and the same was passed by correctly applying the said Election Rules; hence, the same should be maintained. Accordingly, this Election Appeal is dismissed.

9. Parties are left to bear their own costs.

JUDGE

Sukkur,

Dated: _____________

M. Javaid/PA.