2006 PLP 2767 (YLR)

SYED SHABBAR RAZA RIZVI, J.

The petitioners along with respondents Nos.2 to 10 contested election for the post of Nazim and Naib Nazim. One Muhammad Aamir Khan son of Amir Khan was also a candidate for the post of Nazim. The said Muhammad Aamir Khan (deceased) was declared returned after the election and he had also taken oath of the office. However, the respondents Nos.2 and 3 filed an election petition before the Election Tribunal. One of the allegations against the deceased, Muhammad Aamir Khan was that he concealed his, as well as, his family members assets in the nomination papers.

2. During the pendency of the election petition, Muhammad Aamir Khan son of Amir Khan died. Nevertheless, the trial of the election petition continued in view of provisions of rule 82 of the Punjab Local Government Elections Rules, 2005.

3. The learned Tribunal, respondent No.1 allowed the election petition on the ground that deceased, Muhammad Aamir Khan son of Amir Khan had concealed his assets, therefore, was disqualified to participate in the election. The respondent No.1 also declared respondent No.2 returned since he had secured second highest votes after the deceased Muhammad Aamir Khan son of Amir Khan. In the instant writ petition, the above order dated 15-6-2006 has been impugned, with a prayer that a fresh election should be ordered and the electorate of the constituency be provided another chance to elect their representatives.

4. The learned counsel for the petitioners contended that suppression of assets was not in knowledge of the voters of the constituency; therefore, they should be given another chance to elect their representative. The impugned order is not against the deceased only who committed the offence of hiding his assets, it is punishment to the electorates that a person (respondent No.2) has been imposed upon them who was never elected by them. He further submitted that impugned order is meant as throwing away votes of the electorates. The learned counsel referred to PLD 1968 SC 301; PLD 1996 SC 717; 2004 SCMR 1242 and 2004 SCMR 1021. The learned counsel further submitted that in election matters not only the parties are concerned and relevant but constituency as a whole is involved and in some cases all electorates are aggrieved. In this regard, the learned counsel refers to 1986 CLC 2082.

5. On the other hand, the learned counsel representing the respondent No.2 submitted that in election dispute proper remedy is provided under the Punjab Local Government Elections Rules, 2005 in form of election petition. If the petitioner was so keen and concerned, he should have participated in the proceedings which took place before the Election Tribunal. According to him, the petitioner was arrayed as respondent No.8 in the election petition yet he did not raise any objection or participate in the arguments. The learned counsel also submitted that point of non-disclosure of assets by the deceased was raised at all stages i.e. at the stage of scrutiny of nomination papers, appeal before the District Returning Officer and also before the Election Tribunal but the petitioners never availed the opportunities. The learned counsel also referred to Rules 12, 75 and 77 of the Punjab Local Government Elections Rules, 2005.

6. I have heard the arguments of the learned counsel. I have also considered and examined the impugned order and all other documents referred to by the parties. In addition to above, I have considered and read the judgments referred by the learned counsel for the petitioners. The learned counsel for the petitioners has riot disputed the finding of the learned Election Tribunal that said Muhammad Aamir Khan, deceased had concealed his true assets and if he had declared his assets, he would have been disqualified to contest the election. His grievance is that re-election should have been ordered by the Election Tribunal instead of declaring respondent No.2, Sardar Muhammad Amir Khan son of Fazaldad Khan a returned candidate in place of deceased, Muhammad Aamir Khan son of Amir Khan. Therefore, for the purpose of decision of this writ petition all other issues discussed in this writ petition as well as election petition are irrelevant. To give any finding on the grievance of the petitioner, it would be apt to examine the relevant Punjab Local Government Elections Rules, 2005.

7. The election petition is filed under rule 65 and the Tribunal is appointed by the Chief Election Commission of Pakistan under rule

68. The Tribunal is empowered to make a final order at the conclusion of the trial under rule 75 which reads as under:-- ,, The Tribunal may upon the conclusion of the trial of an election petition make an order:-- (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void." Under this rule, the learned Election Tribunal (respondent No.1) may decide in either way mentioned above considering the evidence and facts of a petition. The learned Election Tribunal, using his discretion, opted to decide as mentioned in rule 75(c) i.e. declaring the election of the deceased Muhammad Aamir Khan son of Amir Khan to be void and declaring the respondent No.2, Sardar Muhammad Amir Khan son of Fazaldad Khan duly elected. For a decision or declaration mentioned in rule 75(c) further guidance and jurisdiction vested under Rule

77. For convenience Rule 77 is reproduced as under:-- "The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected." The discretion conferred upon the Election Tribunal under this rule has been exercised by the Election Tribunal on basis of evidence produced before him by the parties. The parties appeared before the Election Tribunal at several dates of hearing. The Election Tribunal was in advantageous position than this Court to judge the parties and their evidence. Therefore, under the constitutional jurisdiction, this Court cannot declare whether the learned Tribunal exercised his discretion judiciously or not. There is nothing on record to show that the Election Tribunal acted malafidely, without jurisdiction or passed impugned order in disregard of any law or rule. It may be spotlighted at this juncture that the petitioners had secured the minimum votes in the election and no other contesting candidate challenged the impugned order.

8. As noted above, the case-law cited by the learned counsel for the petitioners has been examined but in my humble opinion is not applicable to the facts and circumstances of this writ petition. Consequently, for the reasons discussed above, this writ petition is dismissed. H.B.T./N-70/L Petition dismissed.