P L D 2003 Peshawar 90 (PLP)

Date of hearing: 8th May, 2002. ABDUL RAUF KHAN LUGHMANI, J.‑‑‑Sher Qayum and Aziz ul‑Wahab, herein petitioners, jointly filed nomination papers for the office of Nazim and Naib‑Nazim, Union Council, Pat Baba, respectively. Mir Zaman (respondent No. 1) and Muhammad Tariq (respondent No.2), while Younis Khan (respondent No.3) and Murad Ali (respondent No.4) also filed nomination papers for the said offices with the result that all four pairs contested the election. The election for the aforesaid offices was held on 21‑3‑2001 and the petitioners having secured the highest number of votes were declared the returned candidates through Notification, dated 29‑3‑2001. Two independent petitions were tiled before the Election Tribunal, Mardan, by Mirzaman and Muhammad Tariq (respondents Nos. 1 and 2) and the other by Muhammad Younis Khan and Murad Ali (respondents Nos.3 and 4) challenging the election of the petitioners on various grounds, including that of lack of requisite educational qualification. Both the petitions were contested by the petitioners and it appears that respondents Nos. 1 and 2 tiled application for framing and disposal of the petitions on preliminary issue relating to the lack of educational qualification. After hearing the parties, the request was acceded to on 12‑5‑2001 and consequently a preliminary issue was framed to the effect that: "Whether Aziz‑ul‑Wahab son of Khan Badshah, a returned Naib Nazim of Union Council Pat Baba on the Jay of filing of his nomination papers for the said contest was Matriculate and qualified to run the post? OPP"

2. The case was adjourned to 26‑5‑2001 with the direction to petitioner Azaz‑ul‑Wahab to produce Matric Certificate. On 26‑5‑2001 he failed to produce Matric Certificate and at his request Court adjourned the case to 2‑6‑2001 making it clear that no further adjournment would be granted. Once again on 16‑6‑2001 the Certificate could not be produced and in point of fact petitioner No.2 did not appear and taking into consideration the material on record both the petitions were disposed of and Mirzaman and Muhammad Tariq (respondents Nos. 1 and 2) having secured the second highest number of votes were declared successful candidates, vide order dated 16‑6‑2001. Feeling aggrieved, the petitioners have filed this writ petition, challenging the orders of the Election Tribunal as being illegal and of no legal effect.

3. S. Masood Kausar, Bar‑at‑Law, appearing on behalf of the petitioners, assailed the verdict of the learned Election Tribunal on the following grounds:‑‑‑ "(a) No objection whatsoever was raised at the time of scrutiny of the nomination papers of the petitioners and similarly no appeal was tiled by any rival candidates questioning the acceptance of the nomination papers of the petitioners. The matter could not 'have been agitated in the election petition. The petitioner No.2 did possess equivalent qualification to that of matric and had he been given chance he would have proved that he has equivalent academic qualification from a recognized Institution. (b) The respondents were to shoulder the responsibility of proving lack of educational qualification of petitioner No.2 and without recording evidence the matter could not have been disposed of. (c) The Election Tribunal could only direct the holding of bye‑election to the post of Naib‑Nazim in terms of section 18‑A. as added by Ordinance IX of 2000."

4. Indeed, petitioner No.2 claimed to be Matriculate on the strength of a certain certificates in respect of Roll No.8220, SSC (Supplementary), 1973. Sadly, the record reveals otherwise. The Board of B.I.S.E., Peshawar confirmed in writing that the certificate relied upon by petitioner No.2, namely, Aziz‑ul‑Wahab was bogus and fake. Result‑Gazette (Supplementary), Examination of 1973 is also against the claim of petitioner No.2. Respondent No.10 (Board of Intermediate and Secondary Education, (N.‑W.F.P.) was directed by this .Court to produce the record and it confirmed that petitioner No.2 is not a Matriculate. The petitioner was to shoulder the responsibility of proving the effect that he is Matriculate. Even during the pendency of the writ petition he was unable to bring on record anything in support of his claim. Confronted with the situation, the learned counsel for the petitioner submitted that petitioner Aziz‑ul‑Wahab has equivalent educational qualification from a recognized Institution but no chance was given. We have gone through the record and find that before the Tribunal none of the petitioners claimed equivalent educational qualification to that of Matriculate: In point of fact, both the petitioners filed separate written statements and relied on Matric Certificate. Pleadings are treated as foundation in civil matter and a point having not been taken more particularly regarding factual position cannot be allowed to be taken at subsequent stage. Challenging the educational qualification of the petitioner within the prescribed period of limitation. The very nomination of the petitioners was challenged with reference to rule 22 of the Local Government Elections Rules, 2000, on the ground that petitioner No.2 was not, on the nomination day qualified for Naib‑Nazim. The law permits to challenge the nomination of a returned candidate on the ground of lack of educational qualification on the nomination day, whether or not it was taken at the earlier stage of election.

6. Section 18‑A was inserted by Ordinance IX of 2000 and it deals with casual vacancy. If the seat of a member becomes vacant during the term of offence of a Council, a new member shall be elected through bye‑election but this deals with situation where a member is validly elected of an act of omission subsequent to the election of a member which renders him disqualified. Here, petitioner No.2 was not at all qualified on the very first day of nomination and so he cannot be treated even as a member of the f concerned Union Council.

7. Finding no substance, this writ petition is accordingly dismissed. Q.M.H./671/P Petition dismissed.