P L D 2009 Lahore 606 (PLP)

UMAR ATA BANDIAL, J.

The petitioner is a returned candidate in the Local Government Election held in 2005 to the office of the General Councillor Male, Union Council No.240, Faisalabad. Vide judgment dated 18-10-2006 the learned Election tribunal disqualified the petitioner to hold office for his failure to have filed a return of election expenses incurred in the local government election contested by him in the year 2001 under Rule 68 of the Punjab Local Government Election Rules, 2003. This is an ex parte judgment by the learned Tribunal and has been impugned in the present writ petition on the ground of lack of hearing afforded to the petitioner.

2. To cut short the controversy, the Court has examined the substantive finding given in the impugned judgment. It is based on the disqualification contained in section 152(1)(m) of the Punjab Local Government Ordinance, 2001 ("Ordinance") which provision is reproduced as under:-- "Qualifications for candidates and elected members.

(1) A person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he-- (m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws;

3. In the case of Muhammad Abbas Gujar v. District Returning Officer/District Judge, Sheikhupura and 2 others 2004 CLC 1559 this Court held that the said disqualification also applies to the candidates who failed to file their return of election expenses incurred in a previous election. Such an interpretation is derived from the language of section 152(2)(a) of the Ordinance. Section 152(2) provides as follows:-- "(2) Whoever-- (a) is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election to any office of the Local Government for a period of four years; or (b) having been elected as a member of a Local Government or is a holder of an elective office of the Local Government is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall cease forthwith to be an elected member or to hold the office of such member and stand disqualified from being a candidate for election to a Local Government for a period of four years.

4. Any person incurring a disqualification under section 152(1) of the Ordinance cannot hold an elective office. Section 152(2) of the Ordinance confers jurisdiction upon the Chief Election Commissioner to disqualify a person upon the terms mentioned therein. The afore-noted precedent also read a pre-election disqualification in section 152(2)(a) ibid to bar candidature of a defaulting person in future elections. However, the matter was clarified by the Election Commission of Pakistan through a gazette notification dated 28-1-2004 issued in exercise of its statutory powers confining the order of the Chief Election Commissioner passed under section 152(2) of the Ordinance to the cases of elected members and office-bearers only. As a result a losing candidate in an election is not to be penalized for default in filing his return of election expenses.

5. The learned counsel for the petitioner submits that the petitioner was a losing candidate in the local government election of 2001 and therefore does not incur the disqualification under section 152(1)(m) ibid by not filing his statement of expenses for that election. Consequently, the view taken in the aforesaid precedent case based upon the power of the Chief Election Commissioner under section 152(2)(a) ibid has been excluded by the subordinate legislature In exercise of power under section 161 of the Ordinance. It may also be observed that a disqualification, if any, for a losing candidate under section 152(2) ibid runs for the term of office of four years which period too has expired in the present case.

6. The upshot of the discussion is that as the petitioner was defeated in the 2001 elections, therefore, he is not under obligation to file a statement of expenses for that election. He did not incur the disqualification under section 152(1)(m) of the Ordinance which applied to returned candidates only. The foregoing legal position is supported by the view of the Election Commission of Pakistan that the Chief election Commissioner has jurisdiction to disqualify returned candidates thereby excluding a pre-election ouster of a candidate by him. As the petitioner was not subject to disqualification under clause 152(m) ibid, therefore, the impugned judgment of the learned Election Tribunal dated 18-10-2006 takes a wrong view of the law and is declared to be so and without legal effect. Writ petition is allowed with no order as to costs. M.B.A./M-273/L Petition allowed.