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
J U D G E
Abdul Basit