1982 PLP 2646 (CLC)

Imam Ali Kazi, Sulaiman Qureshi and Niazy A. Khaliq for Respondents. Date of bearing : 23rd February. 1982. AJMAL MIAN, J.‑This is a petition against the order dated 30th November, 1981 passed by the learned Special Judge, Anti Corruption and Election Tribunal at Karachi in Election Petition No. 695/1979. The brief facts leading to the filing of the above petition are that the petitioner along with respondents Nos. 2 to 12 contested the election held on 6th October, 1979 in respect of Union Committee No. KMC‑46 and Union Council No. 3 (Hassan Auliya Karachi) and was declared as elected having secured the highest votes. I t seems that respondent No. 2 inter alia filed a petition under section 37‑A of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the said Ordinance) which was dismissed by the learned District Judge on the ground that this point had been raised in the election petition by him and` therefore, could be adjudicated upon along with the other groun4s. It further seems that the election petition filed by respondent No. 2 was proceeded with and the following issues were framed on the basis of the pleadings of the parties :‑ (1) Whether the election suffers from alleged illegalities and irregulari ties committed before and during elections ? (2) Whether the Respondent No. 1 or any other candidate was disqu alified due to affiliation with Political party or, contested election on party basis ? (3) Whether canvassing for Respondent No, 1 Mohammad Hassan was done on party basis ? (4) What should be the relief. It also seems that the learned Election Tribunal allowed the above election petition mainly on the ground that the petitioner had allegedly contested the election on party basis as "Awami Dost" and in consequence thereof non‑seated the petitioner and declared respondent No. 2 as elected in his place. The petitioner being aggrieved by the above judg ment has filed the present petition.

2. In support of the above petition, it has been contended by Mr. Usman Ghani Rashid, learned counsel for the petitioner, that the election tribunal has no power to adjudicate upon a petition or a ground covered by section 37‑A of the Ordinance. On the other hand, it has been urged by M/s. Sulaiman Qureshi, Imam Ali Kazi that the impugned order has been passed on the ground covered by section 37‑A of the Ordinance as well as on merits and, therefore, the impugned order is to be maintained. Mr. Usman Ghani in support of his above contention has referred to an unreported judgment dated 14th October, 1981 in Constitution Petition No. 849/1981, namely, Mirza Muqeem Baig v. Election Authority Hyder abad and others to which one of us (Ajmal Mian) was a party, in which it was held that in Election Tribunal has no power to adjudicate upon the ground covered by section 37‑A of the Ordinance for the reason that through a notification a separate forum has been provided by the Government. We see no reason to take a different view from the view which found favour with the above D. B. and, therefore, hold that the impug ned order of the Election Tribunal cannot be sustained on the above ground.

3. Reverting to the contention of M/s. Sulaiman Qureshi and Imam j Ali Kazi that the impugned order is also on merits and, therefore, it is to be maintained, it may be pertinent to observe that we have perused the order, which indicates that the learned election tribunal has not discussed any evidence whatsoever on issue No. 1. quoted hereinabove i.e. on the question of merits. As a matter of fact the learned Election Tribunal has been carried away by the aforesaid ground relating to disqualification and has not adverted on the question of merits thoroughly. In our view it will be just and proper that issue No. 1 is decided afresh by the learned Election Tribunal. We accordingly allow the petition and declare the impugned order as being without lawful authority and of no legal effect. However we remand the case to the learned Election Tribunal for giving a fresh decision on issue No. 1 after hearing the parties. The parties shall be free to file application for additional evidence if they choose to file. Since respondent No. 2's ‑petition under section 37‑A was dismissed by the District Judge on the misconception of law and in view of the above judgment of the D. B. given in Const. Petition No. 84911981 D the above petition was competent. We, threfore, may observe that, it will be open to respondent No. 2 to. file a fresh petition under section

37. AI of the Ordinance before the competent forum. The petition stands disposed of in the above terms with no order as to costs. K. M. A. Order accordingly.