2003 PLP 1360 (CLC)

Mr. Khalid Latif has also taken me to the order passed 10 whereby this Court had passed the following orders:-- "1.

2. Notice to 'defendants for 22-9-2000. Meanwhile, elections of Karachi Customs Agents Group for the term 2000-2001 to be held on 23-9-2000 are hereby suspended until further orders of this Court". It was therefore stated by Mr. Khalid Latif that in view of Article 12(d), which read as under :-- (d) On expiry of the fixed tenure period the President alongwith the Managing Committee will automatically cease to be in office and will automatically cease to be in office and will hand over the charge to the newly-elected President and the Managing Committee by 30th of September or to the Office Secretary if the election have not been held, who shall in such even immediately proceed to call an Emergent General Body Meeting to appoint a Care-taker Committee to manage and supervise the affairs of the Group and hold election within 90 days." The fixed tenure of the President and the Managing Committee who were present at the elections, ceased to hold office, and were liable to, and had in fact handed over the office to. Office Secretary. It has further stated that the Office Secretary acting in accordance with the 12(d) had also called an Emergent General Body Meeting on 21-10-2000 which has appointed a Caretaker Committee. By an order of this Court the Caretaker Committee was required to be present in Court. On 17-10-2000 the Committee was present in Court, as they were, thereafter not required, it was ordered that may not be present on the next date of hearing. Mr. Khalid Latif stated that in view of the position that the Caretaker Committee had been appointed, there was, a change in the situation and that it was now, the Caretaker Committee who was to hold election. In this context Mr. Khalid Latif referred to a judgment of the Supreme Court of Pakistan i.e. Sultan Mawjee and 3 others v. Federation of Pakistan Chamber of Commerce and Industry, Karachi and 3 others PLD 1982 SC 174 and said that in view of the change the order that may be passed by this Court could be in terms of the order passed in the said order of the Honourable Supreme Court which reads as under:-- "The result will be that the proceedings of the election of the President of the Federation of Pakistan, Chamber of Commerce and Industry, Karachi, for the year 1981-82 shall be continued and be completed in accordance with the law from the stage these were interrupted by the impugned directive of the Director, Trade Organizations". I pointed out to Mr. Khalid Latif that in view of the change the suit may become infructuous However, Mr. Khalid Latif said that, no doubt, as regards the defendants Nos.2 and 3 the suit can be treated as infructuous but against defendants Nos.1 and 4 the contest will have to continue. This, he stated as according to him Mr. Muhammad Younas Soomro/defendant No.4, in view of his withdrawal of the letters dated 5-9-2000 (Annexure 'F') he was also a candidate for the election and that, declaring the defendant No.4 as unopposed candidate shall not be proper. He stated that only question, therefore, to be decided by this Court would be, whether the withdrawal letter of 6-9-2000 and 8-9-2000 written by the plaintiff No.1 and plaintiff No.2 respectively could withdraw the withdrawal of nominations by letter dated 5-9-2000 (Annexure 'C' and ' E') written by the plaintiff Nos. 1 and

2. Mr. Khalid Javed stated that in paras.12 and 14 of the plaint there is an allegation of fraud, misrepresentation, inducement and coercion by the member and office-bearers of the incumbent ruling group and that, it was this fraud misrepresentation, inducement and coercion that was the ground on which the withdrawal was stated to have been written by the plaintiffs Nos. 1 and 2 Mr. Khalid Javed referred to his counter-affidavit and the annexures filed therewith. Mr. Khalid Javed stated that by the letter 5-9-2000 the plaintiff No.1 withdrew his nomination. He has referred to another letter Annexure ' D', ' D-2' his counter-affidavit which is another letter of withdrawal by the said plaintiff No. 1 from all posts. The plaintiff No. 1, it may be stated has not challenged or prayed for his name being placed as a candidate for any other post. However, Mr. Khalid Javed stated that the said letter of the plaintiff No.1 clearly showed that it was clear the intention to withdraw from the election in toto. Mr Khalid Javed took me through the minutes of meetings of the Scrutiny Committee held on 5-9-2000 under the Chairmanship of Mr. Javed Ahmed Vohra who has been cited as, the defendant No.2. He has pointed out that the nominations forms to all of candidates were declared as valid by the Scrutiny Committee, however, there were withdrawal letters received from six candidates that were placed before the Scrutiny Committee. The Scrutiny Committee accepted the withdrawals, and as consequence it was stated by Mr. Khalid Javed that instead of his name being removed from the list of valid nominations, the nomination of the plaintiff No. 1 and plaintiff No. 2 were mentioned with a mark "Nomination withdraw on 5th September, 2000 vide written request". Mr. Khalid Javed thereafter referred to a letter written by the defendant Nos.1 and 2 to the plaintiff No.1 to confirm that his name will not appear in the final list of nomination as also on the valid paper as, he had withdrawn from the election per letter dated 5-9-2000 and that, the Scrutiny Committee had accepted his withdrawal request. It was stated that thereafter, the said plaintiff No. 1 wrote a letter dated 6-9-2000 (Annexure 'D' to the plaint). Mr. Khalid Javed also referred to another letter addressed by the plaintiff No. 1 dated 12-9-2000 and pointed out that the said plaintiff No. 1 only referred to his candidature as member of the Managing Committee in the referred letter of 6-9-2000 and that, it was for the first time that the plaintiff No. 1 stated that the said withdrawal letter of 5-9-2000 was obtained under the duress and coercion and should be treated as cancelled. Mr. Javed, therefore, stated that the said letters were placed before the meeting of the Scrutiny Committee held on 13-9-2000. The said withdrawal letters were discussed, according to Mr. Javed, at length. Such is also mentioned in the minutes filed by Mr. Javed dated 13-9-2000. It was after discussion that the Scrutiny Committee unanimously decided that in the light of the Memorandum and Articles of Association and in the absence of any provision therein the request cannot tie accepted and the name of Mr. Abdullah and Rashid, the plaintiffs Nos. 1 and 2 as weir as the name of the other members who had withdrawn their names would not appear in the final list of candidates and the ballot paper as well. Mr. Khalid Javed argued that as regards the defendant No.4 he stands elected as there is not other candidate for the post of Finance Secretary and that therefore, he shall be deemed, to be elected unopposed. On being pointed out that there were three candidates Mr. Khalid Javed stated that the other candidates had also withdrawn within we time prescribed or withdrawal of nominations. It was, therefore, stated that in the final list the name of the defendant No.4 has appeared as "elected unopposed as such there can be no elections for the post of Finance Secretary Mr. Khalid Javed has referred to a judgment namely Muhammad Bakhsh Rind and another versus Government of Sindh and others reported as PLD 1984 p.334. He has read out various paragraphs from the said judgment and stated that the rules referred to in the said judgment namely rule 14 was in para. material with the rule that Article 128 F and H of the Memorandum Articles of Association of the defendant No. 1, therefore, the judgment would directly lend support to him. He referred to para.25 of the said plaint. The relevant portion, of the same reproduced as under:-- "It may be remembered that the terms 'election' and 'poll' are not synonymous and a poll and a poll under rule 18 is required to be held only in case of contest and not otherwise. Accordingly, the petitioners are deemed to have been elected." In view of the said judgment is, correct on the point that if a person is elected unopposed, there shall be no polls and therefore, no elections but the declaration of having been elected shall be in the Annual General Meeting which is provided in Article 28 of the Memorandum and Articles of Association. Now I come to the question of validity of the withdrawal of the withdrawal of nominations by the plaintiff Nos.1 and

2. This is basically a factual issue. The last date of nomination for contesting the election was 4-9-2000 upto 4-00 p.m. and the meeting of Scrutiny Committee was to be held on 5-9-2000. The last date of withdrawal was on 13-9-2000. It is the case of the plaintiffs that the withdrawal of the withdrawal of the nomination was before the 13th of September, 2000, as such within time and that therefore their names should appear in the final list. I am afraid I am unable to accept this view. The position is that the withdrawal of nomination was made by letter on 5-9-2000 and considered of the Scrutiny Committee and upon consideration accepted. The letter subsequently written for the withdrawal of the letter of 5-9-2000, in my opinion would amount to filing a fresh nomination, which may not be allowed after the last date of nomination. Mr. Khalid Latif did accept this position, but argued that because there was fraud perpetrated therefore he should have been given right to contest the election. Mr. Munir A. Malik candidly referred to the judgment Abdul Razzique Khan versus Government of Sindh PLD 1994 Supreme Court 79 in which it was held:-- "Anybody receiving the resignation has a duty to ascertain personally whether it was signed by the man resigning, whether it was voluntary and whether it was intended to act as a resignation. Unless all the three requirements of the resignation were satisfied it was dangerous in the political milieu in which people of Pakistan are living to give effect to such resignations." In the said order Honourable Supreme Court the judgment reported as Abdul Razzique Khan versus Government of Sindh, reported as PLD 1993 Karachi Page 286 was reversed. Abdul Razzique Khan restored the position of the Speaker in this context as it was held that there should be an intention and these should a voluntary resignation and in that case there was none. Therefore, Mr. Khalid Latif points out that the resignation not been made voluntarily therefore he said withdrawals should be cancelled and he would be restored as a candidate. Mr. Khalid Javed has argued that this position was never taken up in the first letter i.e. letter of 6-9-2000 and 8-9-2000 and that, the signatures on the withdrawal of nomination were the signatures of the plaintiffs Nos.1 and 2 and not disputed by the plaintiffs, and that, the said letter were therefore, voluntarily and could not be withdrawn at the subsequent stage. He states that the letter dated 12-9-2000 of the plaintiff No.1 was an afterthought, was motivated, as whilst referring to the letter of the 9-6-2000 it was stated by the plaintiff No. 1 that he had mentioned in the said letter that withdrawal of the nomination was taken under duress and coercion it was stated that the letter of 6-9-2000 did not make a mention of the withdrawal of the nomination having been taken under duress or coercion it was stated that the plaintiff No.2 .had not even written such a letter and therefore assertion in the plaint of fraud, misrepresentation and coercion being an afterthought, as such could not Mr. Munir A. Malik stated that the Domestic Tribunal namely, Scrutiny Committee looking into the matter and had passed their orders on thereon and it was beyond the scope of this Court at this stage to grant injunction unless it was perversed. However, notwithstanding the above I am of the tentative opinion, that the subsequent withdrawal letter for withdrawing the letter of 5-9-2000 by the plaintiffs Nos.1 and 2 are not valid and that, having already withdrawn, their names may not appear in the final list of candidates. In view of the above the application C.M.A. No.7810 of 2000 is dismissed. Consequent upon dismissal of the said application it is directed by consent that the elections of the defendant No.1 shall be held on 7-11-2000 on the existing final list. The Caretaker Committee shall wake all arrangements for holding the election on that date. The election shall be oversee and supervised by Mr. Abdul Latif Shakoor, Advocate, and submit his report to this Court within one week thereafter. The fees of Mr. Abdul Latif Shakoor is fixed at Rs.20,000 to be paid in advance by the defendant No.

1. C.M.A. No.8034 of 2000 has become infructuous and is dismissed as withdrawn. Ordered accordingly. The views expressed by me are tentative in nature and may not be used for the final decision, should the main suit be proceed with. S.A.K./M-459/K Application dismissed.