2009 PLP 807 (YLR)

SYED SHABBAR RAZA RIZVI, J.

According to the learned counsel for the petitioners, respondents Nos.2 and 3 were elected as Nazim and Naib Nazim respectively. The petitioner challenged the result of election of respondents Nos.2 and 3 under rule 65 of the Local Government Elections Rules, 2005 before the Tribunal on the ground that at the time of submission of nomination papers, respondent No.2 was not qualified as he had submitted a forged 'matriculation certificate. Before that petitioners had raised objection before the Returning Officer but their objection was rejected and respondents were allowed to contest election.

2. The petition of the petitioners was partially allowed and respondent No.2 was disqualified, whereas respondent No.3 was allowed to continue in office. According to the learned counsel, disqualification of respondent No.2 was notorious at the time of polling. By raising objection against his nomination papers, the petitioners had informed the voters of the constituency that respondent No.2 was disqualified yet they chose to elect him. The emphasis of the learned counsel for the petitioners is that doctrine "throw away votes" was required to be invoked by the learned Tribunal in provisions of Rule 14(3) of the Punjab Local Government Elections Rules, 2005. The relevant portion of the judgment of the Tribunal is reproduced as under: "Now the matter is as clear as a day that respondent No.1 does not possess/hold genuine matriculation certificate with him neither today nor at the time of submission of nomination papers. At the time of submission of nomination papers he produced a bogus marks sheet and Matric Certificate etc. before Returning Officer just to get acceptance of his nomination papers. I am of the considered view that he was not a qualified candidate for the seat of Nazim. He was also not entitled to contest the election of Nazim. This issue is decided in favour of petitioners. The learned counsel has prayed as under: "It is, therefore, most respectively prayed that the impugned judgment dated 20-2-2007 may very graciously be set aside and Election of the respondents Nos.2 and 3 be declared void subsequently the petitioners may be declared returned candidates."

3. The respondents were noticed on 9-4-2007 but they failed to appear or make arrangement for their representation as it is reflected in the order-sheet dated 11-1-2008, 12-3-2008 and 12-9-2008. Again on 12-9-2008, the following order was passed:-- "Despite the fact that respondents were issued notices and this case was fixed for a number of time, the respondents have failed to appear. This case is being adjourned for one more time lest the respondents may not be deprived of their precious right of representation. However, the cause of justice will not be allowed to be trampled by the conduct of respondents if they are deliberately avoiding to appear before this Court. If they did not appear on the next date of hearing, this writ petition would be decided after hearing the learned counsel for the petitioner as well as the record already available on the file. Adjourned to 8-10-2008. The respondents shall also be served through learned Senior Civil Judge." Despite above, no one has appeared on behalf of the respondents Nos.2 and 3.

4. In view of the above, this writ petition is allowed and success of respondents Nos. 2 and 3 is declared illegal and petitioners are declared returned in their place. The Election Commission of Pakistan is directed to take appropriate measures. A copy of the order shall be transmitted to the concerned authorities. H.B.T./M-51/L Petition allowed.