1999SCMR152 (PLP)

CH. MUHAMMAD ARIF, J.

Leave to appeal is sought in this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, against the judgment of a Division Bench of the Lahore High Court, Lahore, dated 8-9-1998, passed in Writ Petition No.10497 of 1998, whereby the election of the petitioner as Councilor from Ward No.23, Muzaffarpur Janubi, Tehsil and District Mianwali, was declared without lawful authority and of no legal effect, with the consequence that the notification declaring the petitioner as successful candidate was set aside and respondent No.2/Punjab Local Council Election Authority was allowed "to hold fresh election to the constituency in question and petitioner (now respondent Malik Ahmad Khan) may participate therein as a validly nominated candidate".

2. Dr. M. Mohyud Din Qazi, learned Advocate Supreme Court has specifically objected to the assumption of jurisdiction by the High Court in its Constitutional jurisdiction in an election matter wherein the petitioner having been declared as ' elected' could only be unseated through an election petition under the Punjab Local Government Ordinance, 1979, read with the Punjab Local Councils (Election) Rules, 1979. According to him, respondent No.1, Malik Ahmad Khan, was a candidate in the disputed election and the election having been resolved by the electorate in favour of the petitioner, which was duly reflected in Notification No.LG&RD-98/Elee/2445, dated 2-6-1998, issued by the Deputy Commissioner, Mianwali, and Malik Ahmad Khan/writ petitioner in the High Court, possessing the requisite locus in terms of sub-rule (2) of Rule 2 of the (Election Petition) Rules (ibid) could only resort to an election petition in that it provides as under: "(2) An election petition shall be presented to the Tribunal by a candidate (hereinafter called a petitioner) and shall be deemed to have been presented. " The definition of the term 'candidate' is contained in clause (a) of sub-rule (1) of Rule 2 of the Punjab Local Councils (Election) Rules, 1979, which is couched the following words:-- "(a) candidate' means a person who has been nominated for election as member of a local council from an electoral unit He has also referred to this Court's order in C.P.S.L.A. No.1112-L of 1998, dated 31-7-1998 directing Ghulam Rabbani petitioner to object to the interim order of the High Court in W.P. No.10479/1998 suspending the operation of notification dated 2-6-1998 as an interim measure as he had been put under notice by the High Court in that regard. Copy of this order is available at pages 27 to

29. According to him, the resolution of the objections of the petitioner that the Constitutional petition was not maintainable before the High Court in the impugned judgment, by relying on the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCMR 1299) is of no help to Malik Ahmad Khan, respondent No.1, in that the afore-referred provisions of the (Election) and (Election Petition) Rules (ibid) have not been noticed by the learned Judges of the High Court.

3. Mr. Maqbool Elahi Malik, Senior Advocate Supreme Court appearing on behalf of respondent No.1/Caveator, did controvert the pleas raised by learned counsel for the petitioner and submitted that rule 13 of the (Election Petition) Rules-(ibid) was rightly held by the learned Division Bench of the High Court as not ' envisaging any challenge by his client to the rejection of his nomination papers-through an election petition against a returned candidate and, therefore, the further observation of the High Court that election petition was not even maintainable on the ground that the petitioner's own nomination papers had been rejected illegally or unjustifiably", with the result that the dicta in Ghulam Mustafa Jatoi (supra) was applicable. Learned counsel also pressed into service the case of Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others (1984 SCMR 537) for the proposition that the entry of the name of a 'candidate' for an election in more than one electoral units is not a disqualification and the adoption of the course to the contrary by the Local Bodies Election Authority/Authorities could be set aside in the exercise of its Constitutional jurisdiction by the High Court.

4. After hearing the learned counsel for the parties and after going through the available material as also the reports of the precedent cases, we are inclined to grant leave in this case to consider the effect of the ratio decidendi in the cases. Election Commission of Pakistan v. Javaid Hashmi and others (PLD 1989 SC 396), Ghulam Mustafa Jatoi (supra) and Dr. Bashir Hameed Chohan (supra) on the facts and circumstances of the instant case, as prima facie, it appears that the issuance of notification of the petitioner's election on 2-6-1998 had the effect of taking the case out of the discipline regarding the acceptance or otherwise of the nomination papers of one of the contestants and the new disciplined dealing with the challenge to an election by a 'candidate', had taken over the earlier Order, accordingly. Operation of the impugned judgment is suspended.

5. Being an election matter, the appeal may be listed for hearing at an early date after obtaining the requisite orders from the learned Chief Justice. H.B.T./G-23/S Order accordingly