Muhammad Saleem Khan Tareen vs Shahid Hameed

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Election Appeal No.04 of 2016

Muhammad Saleem Khan Tareen vs Shahid Hameed etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 18.04.2018 M/s. Zafarullah Khan Khakwani and Sh. Jamshaid Hayat, Advocates for appellant.

Mr. Muhammad Naeem Khan, Advocate for respondent/ Election Commission of Pakistan.

Sardar Tariq Sher Khan, Advocate for private respondents.

Through this appeal, the appellant has called in question the order dated 08.03.2016 passed by Election Tribunal, D.G. Khan, whereby election petition filed by the appellant was dismissed.

2.The brief facts of the case are that the appellant filed an election petition before the Election Tribunal challenging the elections of local bodies in Union Council No.7-H, D.G. Khan in which respondent Nos. 1 and 7 were declared as returned candidates as Chairman and Vice Chairman whereas the appellant was declared as runner up. The Election Tribunal on respondents’ objection vide order dated 08.03.2016 dismissed the

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election petition filed by the appellant as not maintainable.

The said order is under challenge through instant appeal.

3.Learned counsel for the appellant has argued that the decision of the Election Tribunal is against the law on the subject and is hyper technical; that the Election Tribunal had failed to exercise jurisdiction vested in it and at the most the Tribunal should have returned the election petition filed by the appellant instead of dismissing the same.

4.On the other hand, learned counsel for private respondents as well as Election Commission of Pakistan have supported the impugned order dated 08.03.2016 passed by the Election Tribunal.

5.Heard. Record perused.

6.The appellant alongwith private respondents was a candidate contesting for the seat of Chairman and Vice Chairman of Union Council No.7-H, Municipal Corporation, D.G. Khan and lost the Election by 56 votes.

The respondent Nos. 1 and 7 were the returned candidates.

The result of the election was declared on 21.12.2015, however, the result of the Chairman and Vice Chairman were not declared by mentioning that the result had been stopped due to order dated 08.12.2015 passed by this

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Court in Writ Petition No.18243 of 2015. The appellant filed election petition before Election Tribunal on 31.12.2015. Subsequent to the election petition, the result of the election declaring respondent Nos. 1 and 7 as elected Chairman and Vice Chairman was notified by Election Commission of Pakistan on 20.01.2016. The learned Election Tribunal vide order dated 08.03.2016 dismissed the election petition as not legally maintainable as the same had been filed on 31.12.2015 at a time when the respondent Nos. 1 and 7 had not been notified as returned candidates which notification was issued on 20.01.2016. The Election Tribunal refused to return the election petition to the appellant on the ground that even if fresh election petition is filed, the same would be barred by time. The Election Tribunal also refused to treat the petition as being properly filed by observing that limitation of 30 days to file election petition took effect from 21.01.2016 and expired on 19.02.2016, therefore, the appellant should have withdrawn the election petition and filed proper election petition as late as 19.02.2016 but he slept over his rights without being sufficiently vigilant and it was also observed that what sort of verification was

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done by the appellant when the return of contesting respondents had not yet seen the light of the day.

7.Similar situation came up for hearing before the Hon’ble Supreme Court of Pakistan in the case reported as Sheikh Qamar-ud-Din vs. District Judge/Election Court (1999 SCMR 1582) which was disposed of by passing the following order:-

“This petition for leave to appeal is directed against Order dated 14.10.1998 passed by learned Single Judge of the Lahore High Court, Multan Bench, Multan in Writ Petition No.6088 of 1998 filed by the present petitioner against the order dated 04.06.1998 of the Election Tribunal overruling the petitioner’s objections to the election petition filed by the respondent to the effect that since the result was not notified and gazetted by that time the election petition was filed and the same was not competent, dismissing the same in limine. The petitioner has, therefore, filed present petition for leave to appeal.

It seems that the respondent filed above election petition on 25.05.1998 whereas the election in question, in which the petitioner was declared successful, was not notified and gazetted. Technically petitioner may be right but since the election result has already been gazetted, the petition though filed before Gazette notification can be proceeded with. In our view it is not a fit case for grant of leave. Leave is accordingly refused.”

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8.From perusal of the afore referred order, it is observed that in the said case also the election petition had been filed before declaration of the result and same was dismissed by Election Tribunal as is the case in the present appeal, this Court set-aside the order and remanded the case to the Election Tribunal by overruling the petitioner’s objection to the election petition and the Hon’ble Supreme Court upheld the said order.

9.Learned counsel for the private respondents has tried to argue that the said order pertains to Punjab Local Councils Election Petition Rules, 1979 whereas the present election petition relates to the Punjab Local Governments (Conduct of Election) Rules, 2013 which are entirely different and thus the same judgment is not applicable to the facts of present case. However, I am not in agreement with the said argument as the principle laid down in the afore referred judgment is that even if the election petition has been filed prior to the notification, the same cannot be dismissed after issuance of the notification of result. In the present case, the result was notified on 21.06.2016 and the petition has been dismissed on 08.03.2016 as not maintainable after the issuance of notification which is against the dicta laid down by the

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Hon’ble Supreme Court in the afore referred judgment.

Thus the impugned order to that extent is not sustainable in the eye of law.

10.Learned counsel for the appellant states that only purpose of filing the election petition is to recount the votes whereas the elections have not been challenged, therefore, the petition was not maintainable. However, perusal of the prayer in the election petition shows that the appellant has mentioned therein that election of respondent Nos. 1 and 7 be declared as void. Therefore, the said objection is without any substance.

11.In this view of the matter, while relying upon the judgment of the Hon’ble Supreme Court in Sheikh Qamar-ud-Din’s case (Supra), the order dated 08.03.2016 passed by Election Tribunal is set aside and the matter is remanded to the Election Tribunal for decision of the same afresh in accordance with law.

12.This appeal is allowed in the foregoing terms.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *