2007 PLP 1717 (MLD)

SYED HAMID ALI SHAH, J.

This judgment shall dispose of Writ Petition No. 2165-2007 and Writ Petition No. 2654-2007 titled "Tassadaq Hussain v. Election Tribunal etc.".

2. Respondents Nos.3 to 9 and petitioners in these petitions, contested the election of Nazim and Naib Nazim of Union Council No.83/47-Khayali Shahpur, District Gujrat. The petitioner and respondent No. 9, (who is also petitioner in the connected petition), were declared returned candidates. Respondents Nos. 3 and 4, through filing election petition, challenged the return of the petitioners in the above-referred writ petitions. The petition was contested by the petitioners herein, who controverted the assertions of the petition and raised various preliminary objections. Learned Tribunal framed four issues and recorded evidence of the parties and on conclusion of trial, through order, dated 1-3-2007 accepted the election petition, resultantly respondents Nos. 3 and 4 were declared returned candidates under Rules, 74 of the Punjab Local Government Elections Rules, 2005; being the second highest votes getter.

3. Both the petitioners have assailed the order of learned Tribunal in two afore-referred constitutional petitions on different grounds. Tassadaq Hussain (petitioner in Writ Petition No. 2654 of 2007) has defended his return mainly on the ground that disqualification of other joint candidate is not fatal to him, once he was declared- successful. Learned counsel then submitted that the petitioner incurred no disqualification and disqualification of the petitioner (in connected petition) does not affect his position. He went on to argue that as per Rule 14(3) of Rules ibid, joint rejection of nomination papers, relate to the matters regarding scrutiny of papers. Once the nomination papers are accepted and a. candidate has been declared elected, then concept of sinker comes to an end. The candidates once declared returned, resume their respective offices separately. Rule 76 speaks of candidate instead of candidates to convey the intention of legislature that Nazim and Naib Nazim act and perform their duties in their own capacity and disqualification of one, after declaration of result, is not fatal to the other candidate.

4. Mr. Talib Haider Rizvi, Advocate, learned counsel for the petitioner in Writ Petition No. 2165 of 2007, has submitted that learned Tribunal dismissed the application for additional evidence, without any legal justification. Statement of Secretary BISE Lahore was highly essential for just disposal of the case and refusing to summon a material witness has resulted into miscarriage of .justice. Respondent No.3 was not matriculate, which fact could only be determined, after requisitioning of record from BISE Lahore; that the learned Tribunal has declared unqualified candidates, as returned candidates. Impugned order is not sustainable; that by unseating the petitioner, the respondents cannot be declared successful candidates and de-franchising the voters, without any fault on their part, is not the intent of law. Case of "Sardar Tariq Javaid v. Provincial Election Commission of Punjab and 8 others" (2004 SCMR 1242) was referred to support this contention. He has submitted further that the petitioner owned 2.1/4 marlas of land in Kotli Rustam, Gujranwala but subsequently he sold this property through an agreement to sell. The property did not vest in the ownership of the petitioner on the date of tiling of nomination papers. Learned counsel went on to argue that learned Tribunal has not given due weightage to material document namely Exhs.R/1, R/2, R/3 and R/4. Learned counsel has submitted that filing of the petition independently, without joint candidate, is not fatal and supported this contention by referring to the case of "Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa, A.D.J./Election Tribunal and others" (PLD 2003 Lahore 138). Learned counsel has contended that the impugned judgment is silent about the objection of the petitioner that election petition was not filed according to mandatory requirement of Ordinance, 2001. It has also been argued that learned Tribunal has observed in the impugned judgment that no evidence regarding transfer of Haveli, or any agreement has been produced to prove the sale. It has been added that the petitioner has deposed in his statement that he will produce agreement, dated 24-3-2006 at the time of arguments. Arguments were addressed and agreement was produced at the time of arguments, as per statement, but the impugned judgment is silent in this regard, which proves the mala fide of learned Tribunal. Learned counsel has lastly contended that the petitioner has not mentioned about Haveli measuring 2.1/4 marlas in his "asset form" under Rule 12(4) of Punjab Local Government Elections Rules, 2005, for the reason that property after its sale was not vested in the ownership of the petitioner.

5. Learned counsel for respondents Nos. 3 and 4 has fully supported the impugned judgment and order and contended that the petitioners in these petitions, filed their nomination papers jointly. Their proposer, seconder and the declaration was joint. Additionally they contested election with one symbol, secured votes jointly as per Rules 20 and 30 of Rules, 2005 and were declared successful jointly. Their disqualification is joint and separate writ by each petitioner is not competent. Learned counsel while referring to Rule 16(1) and the case of "Sheikh Muhammad Akram and another v. Sheikh Muhammad Yaqub and others" (PLD 2006 Lahore 24), has contended that concept of joint candidatures, has its rigid application, a joint candidate cannot withdraw his nomination papers singly, similarly the disqualification cannot be assailed singly, it has to be challenged by the joint candidates, jointly. Learned, counsel has submitted that challenge to disqualification of respondent No.3 was not urged, through filing recriminatory petition, under Rule 74 of Punjab Local Government Elections Rules, 2005. Learned counsel further submitted that request of the 'petitioners for additional evidence was rightly declined by the learned Tribunal because the petitioners had themselves closed their evidence and recorded statement before the Tribunal in that regard. It was contended that matter regarding summoning of witness and additional evidence cannot be raised now as, the earlier writ petition filed by the petitioner (Writ Petition No.10175 of 2006) on the same question was dismissed on 5-12-2006, by observing that failure to bring evidence on the record at proper time was a matter of his (petitioner's) choice. Application did not disclose good ground for bringing on the record such evidence that was already available to the petitioner before he closed his evidence. Learned counsel submitted further that sale agreement is of subsequent date, which itself proves that Ch. Muhammad Azeem, petitioner was owner of Haveli, in question. Agreement to sell, does not confer title, nor ownership is transferred on the basis of such agreement. Learned counsel has submitted that the petitioner has himself, admitted that he lives in Haveli. This fact is known to the voters of the constituency. Non-declaration of such property in the assets form, entails notorious disqualification.

6. I have heard the learned counsel for the parties and perused the material available on the record.

7. I shall take up first the question raised by the petitioner in Writ Petition No. 2654 of 2007, that disqualification of the other petitioner/ joint candidate (Writ Petition No.2165 of 2007) is not fatal to him, as doctrine of sinker is not applicable to joint candidate, after the declaration of result. Identical .issue came up for consideration before the apex Court firstly in the case of "Mian Ahmad Saeed and others v. Election Tribunal for Kasur av Okara 1 and 7 others" (2003 SCMR 1611) wherein it was observed by Hon'ble Court that joint candidates must possess the statutory qualifications individually and collectively on the nomination day and lack of such qualification of any one would invalidate their nomination jointly. They face the consequences of the disqualification of any of them and both are equally affected by result of election petition. Subsequently, same question arose before the Hon'ble Supreme Court of Pakistan in the case of "Sher Zaman Sher and others v. Jahanzeb Khan and others" PLD 2004 SC 505 and the apex Court found that:-- "....The joint candidates for the seat of Nazim and Naib Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. It was also held that the disqualification attached to the candidate on the day of the filing of nomination paper would not disappear after the election, therefore, the defect of invalid nomination paper is not curable." Provisions of Punjab Local Government Ordinance provide for election of Nazim or Naib Nazim, as the case may be, on the individual basis to fill casual vacancy. The apex Court has observed in the case of Ch. Maqbool Ahmad and others (supra) that a causal vacancy, subsequent to election occurs as in result of resignation, death or any other unforeseen reason but does not include a vacancy which occurs in consequence of declaration of election of a returned candidates, void by election Tribunal in an election petition. The dictum laid down by the Hon'ble Supreme Court in these judgments, brings me to conclude that Chaudhry Muhammad Azeem and Tasaddaq Hussain, who have contested the election as joint candidates, will share the fate of election with each other jointly. The disqualification of former will invalidate the election of latter. The disqualification, they will not share only` up to the nomination paper and scrutiny thereof but in the election petition as well. Joint candidacy is not limited to election only but the principle of sinker would be applicable even in election petition.

8. Adverting to issue of mis-declaration of assets by the petitioner (Writ Petition No. 2165 of 2007), there is no dispute that at the time of submission of nomination papers, none including the respondents raised objection regarding the "Asset Form" submitted by the petitioner. Failure to object to the asset form in respect of misdeclaration therein, does not debar a contesting candidate to challenge through election petition, the return of candidate who has declared his assets incorrectly. .There is no bar of estoppel and rightly held so by the learned Tribunal.

9. Admittedly the petitioner (Muhammad Azeem) in his asset form (Exh.P/1) has not declared property measuring 2-1/4 marlas in village Kotli Rustum. He in his cross-examination has admitted that nature and use of land as Haveli with one room and tour wall boundary, having thickness of nine inches and, height up to 6/7 feet. The petitioner has justified non-mentioning of the property in the asset form, on the ground that it was sold through agreement. Learned Tribunal found that since the petitioner has not produced any agreement in his evidence to prove the transfer of the property, therefore, he was guilty of misdeclaration and not eligible/qualified to contest election.

10. Learned Election Tribunal has rightly held that in the absence of any agreement on record, it cannot be concluded that a Haveli measuring 2-1/4 marlas in Kotli Rustam was sold and transferred to the vendee. The petitioner produced in his evidence Exh.Rl1 to R/5 when he recorded his statement on 13-6-2006. The alleged agreement, dated 24-3-2005 was not produced in his documentary evidence. The only witness who has entered in the witness box in this respect was the petitioner himself who appeared as R. W.1. Ch. Iftikhar Ahmad, to whom statedly the Haveli/property in question was sold by the petitioner, has not appeared as witness. Relationships of Ch. Iftikhar Ahmad with the petitioner are very cordial, which fact can be ascertained from Exh.R/4, the general power of attorney whereby the petitioner and Ch. Iftikhar Ahmad sold 7 kanals 11 marlas of land in village Ashfaqabad to Ch. Imtiaz Ahmad Bhatti and executed a general power of attorney in his favour. Failure of the petitioner to produce agreement, dated 24-3-2005, the vendee and the marginal witnesses in the witness box, is fatal to the case of petitioner. The petitioner's .request for production of the additional evidence after closing his evidence through statement recorded on 13-6-2006, was declined firstly by the Election Tribunal and thereafter by this Court in its order, dated 5-12-2006 passed in Writ Petition No. 10175 of 2006. It was observed by this Court that the application for additional evidence did not disclose good ground for bringing on record such evidence which was already available to the petitioner before he closed his evidence. The question of additional evidence attained finality, therefore, the petitioner cannot re-agitate this matter once again in this petition.

11. Respondents Nos. 3 and 4 in their election petition have specifically stated in para. 3.0 of the election petition that the petitioner (herein) has concealed the ownership of Haveli measuring 2-1/4 marlas in Kotli Rustam and failed to declare the same in his assets form. The petitioner has not denied the contents of this para., rather an evasive denial was made which is re-produced hereunder:-- The evidence of the petitioner was concluded on 13-6-2006 and thereafter an application under Order VI Rule 17, C.P.C. was moved by the petitioner, whereby he sought amendment in para.2-C of written reply seeking the permission to incorporate the sale of the property on 24-3-2006 in presence of the witnesses. The stance of the petitioner that he had sold the Haveli stands negated by his statement recorded as R.W.1., wherein he admitted in his cross-examination that he is residing there (Haveli but in the same breath he stated "I am not residing there because it is just a Haveli". This statement of the petitioner proves that the Haveli remained in his possession. In the reply to election petition, failure to bring in the witness box the vendee or the witnesses in whose presence. the Haveli was statedly sold and failure to produce agreement, dated 24-3-2005 at the time of recording of evidence speak about the fact that the petitioner has failed to prove the factum of sale of Haveli to the vendee through agreement, dated 24-3-2005. Agreement, dated 24-3-2005 cannot be considered as the sale agreement, rather it is deemed as an .agreement to sell which does not confer any title to the vendee, with the result, legal title of the property remains with the petitioner which he was bound to mention it as his asset in the declaration form. Conversely, if the agreement is considered as sale, it is unregistered and as such not admissible in evidence. The conclusion of learned Tribunal on issue No.1 is not open to any exception, for the same is devoid of any legal infirmity.

12. The petitioner's claim that respondent No.3 is not matriculate, therefore, he had neither any locus standi to file election petition nor, for such disqualification he could be declared a returned candidate under Rule 74 of the Punjab Local Government Elections Rules, 2005. These questions and counter-claim of the petitioner at this stage cannot be I considered. Respondents Nos. 3 and 4 had claimed in their election petition, for their declaration as returned candidates. The petitioner had failed to file recriminatory petition and gave no such evidence within 14 days of the commencement of the trial. Besides no notice to the Tribunal was given in terms of provisions of Rule 74(ibid) and the prescribed fee according to Rule 65, was not deposited. The requirement of Rule 74 was not complied with by the petitioner, therefore, he has no right at this 1 stage to claim the annulment of election on the ground of disqualification of respondent No.3.

13. The stance of the petitioner that disqualification, is not notorious, it was not in the knowledge of the voters at the time of election or at the time of scrutiny of the nomination papers, therefore, votes given to the petitioner cannot be thrown away, at this belated stage cannot be entertained. The petitioner in this reply to election petition, has neither raised this point nor an issue to that effect was framed. The petitioner had not produced any witness in this regard, while the petitioner in his solitary statement had not uttered a single word about his notorious disqualification. The ground which was not urged before learned Tribunal cannot be raised at this stage.

14. For the foregoing, these petitions are without any merit and are accordingly dismissed with no order as to the costs. S.A.K./M-424/L Petition dismissed.