2004 PLP 1021 (SCMR)

ABDUL HAMEED DOGAR, J. The background leading to the filing of instant petition is that petitioner Haji Alam Sher and Bahadur Khan; Malik Muhammad Nawaz and Malik Ghulam Abbas and Muhammad Waris and Muhammad Mukhtar filled in nomination papers for the office of Nazim and Naib Nazim of Union Council 42 Shadia District Mianwali under proviso to sub rule (3) of Rule 16 of the Punjab Local Government Elections Rules, 2000 (hereinafter referred to as "the Rules") framed under the Punjab Local Government Elections Ordinance, 2000, (hereinafter referred to as "the Ordinance") in pairs as joint candidates. During scrutiny of nomination papers Muhammad Mukhtar respondent No.4 raised objection against petitioner that he was not qualified to be elected as Nazim as he was not matriculate as required under the rules and was also defaulter of Rs.20,

581. However, respondents Nos.1 and 2 namely Malik Muhammad Nawaz and Malik Ghulam Abbas respectively did not raise any objection to the nomination paper of the petitioner. Learned Returning Officer vide order, dated 15 2000 overruled the objection and held that petitioner was qualified as he had produced certified copy of matric certificate issued by Board of Intermediate and Secondary Education, Bannu and also produced the deposit receipt of Rs.20,581 alongwith nomination paper. Muhammad Mukhtar respondent No.4 feeling dissatisfied filed an appeal before the District Returning Officer, who while maintaining the order of Returning Officer dismissed the appeal. Respondent No.4 still feeling dissatisfied filed Writ Petition No. 25321 of 2000 before Lahore High Court, Lahore which was also dismissed. Similarly I.C.A. No. 66 of 2001 filed by him was also dismissed on 11 2001. 1t would be pertinent to note that respondent No.4 withdrew from election and did not take part in the: election. However, election took place in between two pairs of candidates namely Haji Alam Sher and Bahadur Khan on one side whereas Malik Muhammad Nawaz and Malik Ghulam Abbas on the other side. Petitioner and pro forma respondent No.8 Bahadur Khan secured highest number of votes and were declared as returned candidate vide notification, dated 6 2001 issued by Election Commission of Pakistan.

2. It was on 3 2001 respondents Nos. 1 and 2 challenged the above said notification in election petition before Election Tribunal raising the objection that petitioner Haji Alam Sher was disqualified to contest the election as he did not fulfill requisite qualification of being a matriculate and that matric certificate filed alongwith nomination paper was fake and bogus It was also pleaded that pro forma respondent No.8 namely Bahadur Khan would also suffer on the principle of sinker though he was qualified having passed BA LLB.

3. Petitioner and Bahadur Khan filed their written statements and controverted the pleas taken in the election petition. Petitioner asserted that he was in fact matriculate and had passed the matric examination from Board of Intermediate and Secondary Education, Bannu and possesses valid matric certificate.

4. Both the parties adduced their respective evidence. Petitioner Haji Alam Sher examined himself as R.W.5 and also examined Muhammad Nawaz as R.W.1, Muhammad Khan as R.W.2, Awal Zareen, Record Keeper Secrecy Branch, Board of Intermediate and Secondary Education Bannu as R.W.3, Farhad Jan, Secretary Board of Intermediate and Secondary Education as R.W.4. He also produced copy of order, dated 26 2001 passed by Peshawar High Court, Peshawar as Exh. R.6, copy of order of Sessions Judge, Bannu and copy of inquiry report as Exh. R.7, copy of plaint and written statement as Exh. R.8, copy of order of the learned Senior Civil Judge, Bannu as Exh. R.9 and photo copy of certificate of Alain Sher as Exh. R.10.

5. On the other side respondent Muhammad Nawaz appeared as A.W.3 and also produced Abdul Qayyum. Controller of Examinations, Board of Intermediate and Secondary Education, Bannu, as A.W.1, Hamid Ullah, Assistant Secretary. Board of Intermediate and Secondary Education as A.W.2.

6. The learned Election Tribunal vide judgment, dated 24 2002 allowed the election petition and declared the election of petitioner and Bahadur Khan pro forma respondent No.8 as illegal and unlawful whereas respondents Malik Muhammad Nawaz and Malik Ghulam Abbas, the runner up, were declared as duly elected.

7. Feeling aggrieved, petitioner alongwith Bahadar Khan filed Writ Petition No. 15814 of 2002 before the learned Lahore High Court, Lahore which vide judgment, dated 16 2002 upheld the decision of the Tribunal to the extent of petitioner Haji Alain Sher only whereas set aside the order of the Tribunal in respect of Bahadur Khan pro forma respondent No.8. It is this order which has been challenged by Haji Alain Sher petitioner through instant petition in which he has sought leave to appeal.

8. We have heard Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court on behalf of petitioner Haji Alam Sher whereas Sardar Muhammad Ghazi, learned Advocate Supreme Court on behalf of respondent Malik Muhammad Nawaz at length and have gone through the record and the proceedings of the case in minute particulars.

9. For better appreciation, it would be advantageous to refer the relevant evidence recorded by the Tribunal. According to A.W.1, Abdul Qayyum, Controller Examinations and A.W.2 Hamid Ullah, Assistant Secretary, Board of Intermediate and Secondary Education, Bannu, the matriculation certificate produced by petitioner Alam Sher was a bogus document. In fact he did not appear in Secondary School Certificate Examination under Roll No. 70172, as such the so called certificate was quashed on account of the charge of impersonation proved against him. The copy of F.I.R. No. 45 of 2001, Police Station, Saddar Bannu about the above charge was also produced by them in the evidence. Even certificate issued by Headmaster Government Elementary School Hazara regarding passing the middle class examination was also found illegal.

10. There is no exception to the finding that petitioner was not qualified to contest the election as the certificate filed alongwith the nomination paper was bogus. It was because of such reason, he was not qualified in terms of section 14 of the Ordinance, as such, his election was rightly declared illegal by the Courts below.

11. Similar controversy came under discussion before this Court in the case of Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and others 2003 SCMR 1611 wherein it was held that in the system of joint candidacy, the candidates for the seats of Nazim and Naib Nazim in the local bodies must contest election as joint candidates and rejection of nomination of anyone of the candidates amounts to rejection of nomination of both the candidates. In view of proviso to sub rule (3) of Rule 16 of the Rules, the election for the office of Nazim and Naib Nazim was to be contested as joint candidates, as such, they should possess the statutory qualification individually and collectively on the day of filing of nomination papers. In case any of them does not fulfill the requisite qualification the same would invalidate their nomination paper jointly. They shall share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election. It was also held that the disqualification of the candidate on the day of filing of nomination papers would not disappear after election. On the doctrine of sinker, both will have to sink or sail together.

12. On 14th August 2001, the Punjab Local Government Ordinance, 2001 was promulgated. In order to facilitate the smooth running and day to day business of the office of Nazim and Naib Nazim, a proviso was added to section 154(1) of the above mentioned Ordinance wherein it was introduced that in case a casual vacancy occurs in respect of a Nazim and Naib Nazim, a candidate for the said office was allowed to contest in individual capacity. The word casual has been defined in various dictionaries as accidental, unforeseen, occasional, due to chance, not regular or permanent, temporary. The concept of casual vacancy referred to above has thoroughly been dealt with by this Court in the case of Ahmad Saeed referred (supra). The casual vacancy includes a vacancy which becomes vacant due to removal, resignation, death or any other unforeseen reason but it does not include a vacancy which becomes, vacant as result of decision of the Tribunal. As such the vacancy occurring due to disqualification would not fall within the category of casual vacancy as the former is temporary or accidental whereas tire latter is permanent in nature. As regards question of notorious disqualification of petitioner, respondent Malik Muhammad Nawaz has failed to produce any cogent evidence on that aspect. So much so, he was not confident about the disqualification of the petitioner, even at the F initial stage of filing of nomination paper, it was Muhammad Mukhtar respondent No.4 who raised objection about disqualification of the petitioner during the scrutiny of nomination paper. The aspect of notoriety of disqualification has been elaborately dealt with by this Court in the case of Ahmad Saeed referred (supra) and judgment, dated 27 2004 delivered in the case of Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (Civil Appeals Nos.1 and 5 of 2004), wherein it has been held that disqualification should be of such a nature that it is G publicly or generally known forming a matter of common knowledge, which does not require any evidence. As a result, respondent Malik Muhammad Nawaz and Malik Ghulam Abbas should not have been declared as returned candidates by the Tribunal. Even the order of H learned High Court is not sustainable in law, as such the same is also set aside.

13. In the light of above discussion, the petition is converted into appeal and is disposed of in the above terms. However we direct the Election Commission of Pakistan to hold fresh elections for the office of both Nazim as well as Naib Nazim of Union Council No.42, Shadia District Mianwali in accordance with law. S.A.K./A 44/S Appeal accepted. ㄀ ㄀`㨀c㨀J㰀 Normal Normal Heading 2 Heading 2 Default Paragraph Font Default Paragraph Font JamrabiBC:\Documents and Settings\Administrator\My Documents\2004S1038.doc 䀃老I㠀I㠀 ́ Unknown ！ Times New Roman Times New Roman Symbol Symbol Tahoma Tahoma 2004 S C M R 1021 2004 S C M R 1021 Jamrabi Jamrabi Jamrabi Jamrabi 2004 S C M R 1021 Jamrabi Normal Jamrabi Microsoft Word 9.0 Oratier Technologies (Pvt) Ltd. 2004 S C M R 1021 Root Entry 1Table 1Table WordDocument WordDocument SummaryInformation SummaryInformation DocumentSummaryInformation DocumentSummaryInformation CompObj CompObj ObjectPool ObjectPool Microsoft Word Document MSWordDoc Word.Document.8