MUHAMMAD FARRUKH IRFAN KHAN, J.---The petitioner along with respondent No,3 jointly filed nomination papers for the seat of Chairman and Vice Chairman from Union Council No,5 Pakka Garha Sialkot. Subsequently, on 06.11.2015 respondent No,3 filed an application for withdrawal of his candidature which was accepted by the Returning Officer vide impugned order dated 06.11.2015 and consequently name of the petitioner was not entered in the final list prepared by the Returning Officer in Form VII.
2. Learned counsel for the petitioner submits that respondent No,3, who was contesting the election of Vice Chairman along with the petitioner jointly filed nomination papers which were processed, scrutinized and accepted by the Returning Officer; that after acceptance of nomination papers respondent No,3 under intense pressure and fear of life single handedly moved the application for withdrawal of nomination papers which was illegally accepted by the Returning Officer. Learned counsel in respect of his assertion has relied upon the cases reported as Ch. Muhammad Azeem v.
Election Tribunal/ District and Sessions Judge and 8 others (2007 MLD 1717) and Sheikh Muhammad Akram and another v. Sheikh Muhammad Yaqub and others (PLD 2006 Lahore 24).
3. Conversely, learned counsel for respondent No,3 contends that his client without any coercion and with his free consent moved the application for withdrawal of nomination papers on the date fixed by the Election Commission for this purpose which has rightly been accepted by the Returning Officer and no exception can be drawn therefrom.
4. Arguments heard. Record perused.
5. According to the schedule given by the Election Commission of Pakistan last date for withdrawal of nomination was 06.11.2015. Admittedly, respondent No,3 moved an application of his own accord on 06.11.2015 for withdrawal of his candidature as Vice Chairman of Union Council No,5 Pakka Garha Sialkot which was entertained and allowed by the Returning Officer through the impugned order.
Now the question which requires determination is that as to whether in a joint candidacy, one of the candidates can move an application for withdrawal of nomination papers for his candidature.
Sub-rule (1) of Rule 16 of the Punjab Local Government (Conduct of Elections) Rules, 2013 is very much relevant which provides as under:- "Any validly nominated candidate, or as the case may be, joint candidates may, by notice in writing signed by the candidate (s) and delivered to the Returning Officer on or before the withdrawal day, either by the candidate in person or by an agent, duly authorized in this behalf in writing by such candidate (s) withdraw his candidature, as the case may be, and such notice shall not be open to recall or cancellation". (emphasis supplied)
6. The word "candidate(s)" as used in the above rule is of very much significance which shows the intention of the legislature. By separating the alphabet 's' by parenthesis/brackets the legislature has Stressed here that the term 'candidate(s)1 can be used in a 'singular' as well as 'plural' form as per the requirement of the action to be taken by the sole candidate or the joint (two) candidates as the case may be. Thus in case of a joint candidature any one of the two candidates singularly or both of them can jointly withdraw his/her/their candidature. The effect whereof obviously would be similar to that envisaged in Rule 14(6) of the rules ibid which has been discussed in detail in the later part of this judgment. Had it not been so the legislature would not have used the letter 'S in ( ) i,e, parenthesis/brackets in the aforesaid current rule.
7. In the previous legislation on the subject, sub-rule (1) of Rule 16 of the Punjab Local Government Elections Rules, 2005 read as under:-- "16. Withdrawal and retirement.--(1) Any validly nominated candidate may, by notice in writing signed by him and delivered to the Returning Officer on or before the withdrawal day, either by the candidate in person or by an agent authorized in this behalf in writing by such candidate, withdraw. His candidature.
' Provided that in case of joint candidates for the office of Nazim and Naib Nazim, both shall sign the applications, for withdrawal. "
8. It can thus be seen that no such provision equivalent to the aforesaid proviso has been given in the Punjab Local Government (Conduct of Elections) Rules, 2013. Therefore, intention of the legislature that in case of joint candidature even a single candidate could withdraw nomination papers is manifest in the current legislation whereas in the previous rules i,e, Punjab Local Government Elections Rules, 2005 the proviso to sub-rule (1) of Rule 16 ibid specifically provided that in case of a joint candidature the two candidates 'shall' sign such application for withdrawal.
9. Now coming to the effect of withdrawal of nomination papers by a single candidate. In this regard sub-rule (6) of Rule 14 of the Punjab Local Government (Conduct of Elections) Rules, 2013 is also of much importance which provides as under:-- "In case of joint candidacy, the rejection of the nomination of either a Chairman or a Vice Chairman or a Mayor or a Deputy Mayor shall be construed as rejection of nomination of all those joint candidates. "
10. It is thus abundantly clear that the joint candidates for the seat of Chairman and Vice Chairman have to share the fate of the acceptance/ rejection of nomination papers with each other. In the event of rejection of nomination of one of the candidates, the nomination papers of the joint candidates would be rejected and that the other candidate shall automatically be deemed to be ineligible for elections. Therefore, there appears to be no legislative restraint in a joint candidature, uptil the stage of voluntary withdrawal of the nomination papers, so that any one of the joint candidates can withdraw his/her nomination papers from the joint candidature. If it were the case that the Chairman, in the case of the joint candidature, were to proceed to withdraw his nomination papers then the co-candidate i,e, Vice Chairman could not proceed without him or conversely could not force him to remain in contention. In a contest for elections, initially, a number of candidates file their nomination papers and the procedure of voluntary retirement/ withdrawal is provided, ostensibly for the purpose that if in the meanwhile any one of them has changed its mind to contest the elections, he/she could withdraw from the contest. The plea of the learned counsel that it will open up a pandora's box where a co-candidate in a joint candidacy would be coerced, lured, bribed or in any manner won over by the opponent candidate has no force in the light of permission of voluntary retirement / withdrawal of candidature given by the legislature in the enactment.
In case of a joint candidacy it is to be assumed that both the candidates have an inseparable bond in terms of their ideology, common goals, purpose of public service etc. Therefore, while selecting a co-candidate due caution is exercised so that the co-candidate is not so weak that it could be won over by the opponents. Therefore, this Court cannot take away the fundamental right of a potential candidate, albeit a candidate of a joint candidacy, to exercise his/her right of withdrawing from an election contest during the process of finalization of candidacy when he/she has been provided a right to do so, as per the scheme of the election procedure.
11. Resultantly, in the above circumstances, the contention of the petitioner that respondent No,3 withdrew his nomination papers on coercion is nothing but a bald assertion which has been categorically denied by respondent No,3 which aspect raised disputed questions before this Court.
Respondent No,3 does not wish to contest the elections, therefore, the Returning Officer has rightly accepted his withdrawal application and no exception can be drawn therefrom. Case law relied upon by the learned counsel for the petitioner relates to Punjab Local Government Elections Rules, 2005, whereas, the present elections are going to be held in accordance with the Punjab Local Government (Conduct of Elections) Rules, 2013 as such the same has no bearing on the instant case.
12. Resultantly, this petition being without any force is dismissed.