2006 PLP 1158 (CLC)

MAULVI ANWARUL HAQ, J.

The petitioners and the private respondents contested elections to the seats of Nazam and Naib Nazam, in UC-37/Vehari. The petitioners were declared returned with 4586 votes, respondents Nos.2 and 3 bagged 2976 votes while respondents Nos.4 and 5 got 69 votes. The respondents Nos.2 and 3 challenged the said elections by filing an election petition on 19-9-2005. It was objected that Ishfaq Ahmad, petitioner No.1 was not qualified to contest elections on the ground that according to the Secondary School Certificate, relied upon by him, he had failed in the subject of English. The election petition was contested by the petitioners. Following issues were framed by the learned Election Tribunal:-- (1) Whether the respondent No. 1 namely ishfaq Ahmad Khan did not qualify to contest elections for the seat of Nazam pertaining to Union Council No.37, Fatehpur, Tehsil Mailsi District Vehari in view of provisions contained in Rule 152(1) of Punjab Local Government (Elections) Rules, 2005. If so, its effect? OPA (2) Whether the petitioners have no cause of action to file instant election petition? OPP 1-2. (3) Whether the petition is not maintainable and cannot proceed further legally? OPR 1-2 (4) Whether petition has not verified as required by law, if so, its effect? OPR 1-2 (5) Relief. On 17-12-2005, with agreement of the contesting parties, issue No.1 was treated as preliminary. Vide judgment and decree dated 7-1-2006, the issue was answered in affirmative and the election petition was allowed and the election was held to be void.

2. Learned counsel for the petitioner contends that the petitioner was duly qualified to contest the elections as he had qualified Secondary School Certificate Examination vide Certificate (Annexure "F"). He refers to the relevant rules which were applicable in the year 1986. Learned counsel for the contesting respondents, on the other hand, refers to the notification dated 23-7-2005 (Annexure "G/A") and relying upon judgment dated 12-8-2005 of the Honourable Supreme Court of Pakistan in C.P. No.2114 of 2005, contends that the petitioner having got an "F" in English, he stands disqualified.

3. I may note here that this case was heard at length on 27-3-2006 and for reasons recorded in my detailed order of the said date, I summoned the Secretary of B.I.S.E., Multan. He has appeared today and stated that according to the Rules applicable in the year, 1986, the A petitioner has qualified Secondary School Certificate Examiner. He has further stated that the said notification only pertains to the candidates appearing in no pass/no fail Scheme (2002-2004) and not to the petitioner No.1 who appeared in the year 1986.

4. Now according to the said certificate it has been certified that petitioner No.1 has qualified the Secondary School Certificate Examination as a regular candidate. He has been placed in "E" grade. Now according to the details in the said Certificate, the petitioner appeared in eight subjects. He passed in seven subjects but was fail in English having been able to get only 34 marks out of

150. Now according to the Rule 13, appearing in Chapter I of Part 2 of Calendar of B.I.S.E., Multan, (revised Edition 1990) in order to qualify for the grant of Secondary School Certificate, a candidate must pass in, at least, seven out of eight subjects included in components I and II of the Scheme of Studies taken together. According to Rule 14, while placing a candidate B in any of the grades i.e. A+ to E, the marks obtained by a candidate in a subject in which he has failed, shall not be included. Now I also find that total marks calculated i.e. 338/850, do not include said 34 marks, obtained by the petitioner No.1, in the subject of English.

5. Now coming to the said judgment of Honourable Supreme Court of Pakistan, being relied upon by Mian Abbas Ahmad, Advocate, I find that although it is not apparent as to in which year the petitioner, before their Lordships, appeared in the examination. However, the tenor of the contentions as noted and dealt with by the apex Court does go to show that the matter was covered by said no fail/no pass scheme in Session 2003/2004. Now the said officer of B.I.S.E., Multan has categorically stated that no fail/no pass scheme only pertains to the Session 2002/2004. There is no dispute that the petitioner appeared in Annual Examination, 1986 (General Group). Said notification (Annexure "G/a") would, therefore, be having no application.

6. For the reasons stated above, I do find that the impugned judgment of learned Election Tribunal is without lawful authority. It is accordingly declared as such. Writ petition is accepted and the impugned judgment, dated 7-1-2006 of the learned Election Tribunal is set aside. However, no orders as to costs.

7. A copy of this judgment be immediately remitted to the learned Election Tribunal as also to the learned D.R.O., Vehari. S.A.K./I-24/L????????????????????????????????????????????????????????????????????????????????????? Petition accepted.