IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Election Appeal No.S-05 of 2017

[Wajid Hussain v. Election Commission of Pakistan through Chief Election Commissioner, Islamabad and 11 others]

Date of hearing : 07.05.2018

Date of Decision : _________

Appellant : Through Mr. Sarfraz A. Akhund, Advocate.

Respondents : Through Mr. Bakhshan Khan Mahar,

Advocate.

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: This Appeal has been preferred to challenge the order dated 02.08.2017 passed by the learned Election Tribunal (Naushero Feroz) in Election Petition No.30 of 2016, preferred by the present Appellant against the Respondents.

2. Respondent No.7 (Mujeeb-ur-Rehman Dahraj) is the Returned Candidate, whose election was challenged by the present Appellant on various grounds, inter alia, that the said Respondent won the elections with the support of official Respondents by resorting to corrupt practices. However, the Election Petition was rejected by the learned Election Tribunal by invoking Order VII, Rule 11 of C.P.C. as during the proceedings, it transpired that the Petitioner is a government employee and working in Board of Revenue.

3. Mr. Sarfaraz A. Akhund, Advocate for the Appellant, has argued that the provisions relating to Elections contained in Sindh Local Government Act, 2013 (“SLGA”) and the Sindh Local Councils (Election Rules), 2015 (“Election Rules”) are special statute and rules, respectively, and provisions of C.P.C. is not applicable in the election matters. He has further contended that once the application of Respondent No.7 (Returned Candidate) filed under Rule 64 of the said Election Rules was dismissed by the Election Tribunal vide its order dated 30.09.2016, therefore, the learned Election Tribunal was not justified in entertaining a subsequent application of the Respondent No.7 under Order VII, Rule 11 of C.P.C. and allowing the same, which resulted in grave injustice to the Petitioner as well as illegality.

4. The above arguments of the Appellant’s side have been controverted by Mr. Bakhshan Khan Mahar, Advocate for Respondent No.7. The gist of the arguments of the learned counsel for Respondent No.7 is that the Appellant is suffering from an inherent disqualification as envisaged in Section 36 of the SLGA as he is in the service of Province of Sindh and even otherwise cannot be elected.

5. Submissions of learned counsel for the parties have been taken into the consideration and with their assistance record has been perused. Both learned Advocates for Appellant and Respondent No.7 have also filed synopsis in compliance of the order dated 07.05.2018.

6. It is not disputed that the present Appellant is in employment of Board of Revenue (Sindh) and is a government employee. In his paragraph-8 of the application, filed by Respondent No.7, on which the impugned order was passed, the present Appellant had also filed objections, but never disputed the fact that he was not in government employment. As far as the arguments of learned counsel for the Appellant is concerned that once an earlier application of Respondent No.7 preferred under Rule 64 of the Election Rules was dismissed, then the subsequent application under Order VII, Rule 11 of CPC should not have been entertained, has no force; for the simple reason, that the application under Rule 64 was preferred on different grounds, which did not weigh with the Election Tribunal and the same was dismissed. Secondly, the present Appellant is suffering from an inherent disqualification, because under Section 36, and particularly, subsection (d), he is in the service of Province of Sindh and, therefore, cannot be elected as a member of the Council in terms of Subsection (1) of Section 36. The ‘Council’ has been defined in subsection (xvii) of section 3 of the SLGA, which includes Union Council. Admittedly, the Appellant contested for the seat of General Councillor of Union Council Muhabat Dero Jatoi, as per his own pleadings; therefore, in view of the above disqualification, he could not have contested the elections and even if he was successful, he could not have continued as a Councillor because of his employment with the Government of Sindh.

7. Adverting to the arguments of the Appellant’s learned counsel about non-applicability of order VII, Rule 11 of C.P.C. Even for the arguments’ sake, the submission of Appellant’s side is accepted, still his Election Petition was not maintainable and instead the learned Election Tribunal could have dismissed the same by treating the said application under Order VII, Rule 11 of C.P.C., as an application filed under Section 36 of the SLGA. Secondly, the arguments of the Appellant’s side is meritless, because Section 71 of the SLGA expressly provides that the provisions of Representation of People Act, 1976 (“ROPA”) shall be applicable to the elections and the electoral process under this Act. Section 64 of ROPA clearly speaks about the applicability of Civil Procedure Code, 1908, to the Election Petitions, which are to be decided by the Election Tribunals. Thus, in my considered view, even in such situation, in which the inherent disqualification of a candidate or a Petitioner is undisputedly existing, an application of the nature (under Order VII, Rule 11 of C.P.C.) can be entertained; even otherwise, such a disqualification can be taken note of by the Election Tribunal under express provisions of SLGA, as discussed hereinabove.

8. The upshot of the above is that no illegality exists in the impugned order of learned Election Tribunal, which has rightly rejected / dismissed the Election Petition of the present Appellant. Consequently, this Appeal is devoid of merits and is dismissed, but no order as to costs.

JUDGE

Sukkur,

Dated: _____________

Riaz / P.S.*