Wahid Bakhsh and others V. Balochistan Awami Party through Representative Secretary Coordination and others,

PLJ 2025 Quetta 120 Present: M UHAMMAD AAMIR NAWAZ RANA, J. WAHID BAKHSH and others --Appellants versus BALOCHISTAN AWAMI PARTY through Representative Secretary Coordination and others -- Respondents E.A.(T) No. 01 of 2024, decided on 31.5.2024. Balochistan Local Government Act, 2010 (V of 2010) -- ----Ss. 24- A(5) & 41 -A--Constitution of Pakistan, 1973, Art. 199--Disqualification --Appellants were elected on tickets of BAP party --Joining of another --Complaint --Defection --No declaration of party head--Challenge to --The Party Head before making declaration had to provide an opportunity to show -cause to member guilty of defection--N o declaration in case of appellants was made by Party Head rather complaint was filed by Secretary Coordination, whereas alleged deceleration was made by Secretary General BAP --It is trite principle of law that if law requires anything to be done in particular manner then it has to be done in same manner or not at all and no exception in this regard can be given --Since there was no declaration in that case by Party Head of BAP, therefore complaint filed by Secretary Coordination BAP allegedly on strength of letter written by Secretary General BAP was not competent being contrary to mandatory provision of Section 24- A of Act --Petition allowed. [P. 124] A & B M/s. Shabir Ahmed Sherani, Muhammad Bilal Mohsin, Khalil Ahmed Khatak and Farooq Ali Mastoi , Advocates for Appellants. M/s. Jam Saka Dashti, Syed Ayaz Zahoor and Aster Mehak, Advocates for Respondent No. 1. Mr. Muhammad Ali Rakhshani , Additional Advocate General assisted by Mr. Muhammad Raees, Assistant Director (Law), Election Commission of Pakistan (ECP) for Respondent No. 2 & 3. Date of hearing 24.5.2024. J UDGMENT The petitioners have filed Constitution Petition against the vide order dated 07.02.2024, passed by the Secretary Local Government & Rural Development Department Government of Balochistan, whereby while entertaining the complaint filed by the Balochistan Awami Party (BAP) (Respondent No. 1) through their representative namely Abdul Fateh Jamali Secretary Coordination, the declaration of defection from the party was made against the appellants and they were disqualified to hold the seat of Chairman and members of Municipal Committee Tump, as well as their seats were also declared vacant.

2. The Constitution Petition filed by the petitioner was vide order dated 04.02.2024 converted into Appeal under Section 24- A(5) of the Balochistan Local Government, Act, 2010 (Amendment, 2023) (hereinafter referred “the (Amendment) Act, 2023”) and was renumbered as Election Appeal No. 01/2024.

3. Learned counsel for the appellants mainly contended that the complaint under Section 24- A of the (Amendment) Act, 2023 allegedly filed by the General Secretary of BAP was not maintainable. Learned counsel also emphasized that the Respondent No. 2 did not conduct the proceedings in accordance with law and without providing ample opportunity to defend the case the impugned order was passed.

4. Conversely the learned counsel appearing for Respondent No. 1 submitted that the complaint was filed in accordance with law and since the appellants had committed defection within the meaning of Section 24- A of the (Amendment) Act, 2023, therefore the appellants were rightly disqualified by the Respondent No. 1; per Respondent No. 1 the General Secretary of the BAP had written the letter to the Secretary Local Government Balochistan and had sought their disqualification in accordance with law. Arguments heard and the relevant record perused.

5. The allegation against the appellants is that they were elected as Counselors on the tickets issued by the BAP but subsequently they committed defection and joined National Party. The record transpires that the representative of BAP who referred himself as Coordinator had filed a complaint under Section 24- A of the (Amendment) Act, 2023. The perusal of the Constitution of BAP reflects that the designation of Secretary Coordination is not mentioned. The Respondent No. 1 relied upon a letter dated 14.12.2023 written by Secretary General BAP to Secretary Local Government & Rural Development Government of Balochistan and maintained that the said letter by the Secretary General fulfills the requirement of Section 24 -A of the (Amendment) Act, 2023. For facility of reference Section 24- A of the (Amendment) Act, 2023 is reproduced: “24-A. Disqualification on grounds of defection, etc.” (1) If a member of a party composed of a single political party in a local council -- a) resigns from membership of his political party or joins another political party, or b) votes or abstains from voting in the local council contrary to any direction issued by the Party to which he belongs, in relation to-- (i) election of the Mayor or the Deputy Mayor, Chairman or the Vice Chairman as the case may be, or election of candidates nominated against reserved seats; or (ii) a vote of confidence or a vote of no- confidence; or (iii) approval of budget of a local council; or (iv) any legislation by the local council -he may be declared, in writing, by the Party Head to have been defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Secretary Local Government Department and shall similarly forward a copy thereof to the member concerned: Provided that a political party becomes a Party of the Council when it has party members elected to a local council: Provided further that before making the declaration, the Party Head shall provide such member with an opportunity to show -cause as to why such declaration may not be made against him. Explanation, “Party Head” means any person, by whatever name called, declared as such by the Party. (2) A member of a local council shall be deemed to be a member of a Party if he, having been elected as a candidate or nominee of a political party which constitutes the Party of the Council in the local council or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Party of the Council after such election by means of a declaration in writing. (3) Upon receipt of the declaration under clause (1), the Presiding Officer shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Secretary Local Government Department for its decision thereon confirming the declaration or otherwise within thirty days of its receipt. (4) Where the Secretary Local Government Department confirms the declaration, the member referred to in clause (1) shall cease to be a member of the local council and his seat shall become vacant. (5) Any party aggrieved by the decision of the Secretary Local Government Department may, within thirty days, prefer an appeal to the High Court which shall decide the matter accordingly. (Emphasis supplied)

6. The ibid section provides that the Party Head has to make declaration in writing in case any member has committed defection on the grounds enumerated in Section 24- A of the (Amendment) Act, 2023. The Party Head has to forward the copy of the declaration to the Presiding Officer and the Secretary Local Government and Rural Development Balochistan and in the same manner the Party Head has to forward the copy of such declaration to the member concerned. Apart from that it has also been stipulated that the Party Head before making the declaration has to provide an opportunity to show -cause to the member guilty of defection as to why such declaration may not be made against him.

7. The perusal of the record transpires that no declaration in the case of the appellants was made by the Party Head rather the complaint was filed by the Secretary Coordination, whereas the alleged deceleration was made by Secretary General BAP. It is trite principle of law that if law requires anything to be done in particular manner then it has to be done in the same manner or not at all and no exception in this regard can be given. Since there was no declaration in this case by the Party Head of the BAP, therefore the complaint filed by the Secretary Coordination BAP allegedly on the strength of letter written by Secretary General BAP was not competent being contrary to the mandatory provision of Section 24- A of the (Amendment) Act, 2023. For foregoing reasons the impugned order dated 07.02.2024, passed by the Secretary Local Government & Rural Development Department Government of Balochistan is set -aside and the complaint under Section 24- A of the (Amendment) Act, 2023 filed by the Secretary Coordination is dismissed. (Y.A.) Petition allowed