2007 PLP 1418 (YLR)

Naeem Ullah Khalid (petitioner No.1) Rana Muhammad Amjad (petitioner No.2), through the present constitutional petition, have assailed consolidated order dated 13-10-2006, whereby the learned Member Election Commission of Pakistan, Punjab (Mr. Justice Nazim Sikandar) declared that the petitioners, Nazim and Naib Nazim respectively, stand disqualified and ceased to hold the offices and simultaneously request of respondents Nos.1 and 2, for issuance of their notifications as returned candidates, was also turned down.

2. Facts leading to the present constitutional petition are that the petitioners jointly contested the Local Bodies Elections, for the seats of Nazim and Naib Nazim, respectively, in panel, from U.C. No.8, Multan, as against the panel of respondents Nos.1 and 2 and they were declared as returned candidates, however, their names were not notified in the official gazette. Feeling aggrieved from the said results, respondents Nos.1 and 2 filed the constitutional petition (W.P. No.5101 of 2005) on the ground that petitioner No.2 is not possessed of the requisite qualification to hold an elective office, within the meaning of section 152(1) of Punjab Local Government Ordinance, 2001, therefore, the election of the petitioners for the said offices is liable to be declared as without lawful authority. The said constitutional petition, along with other identical petitions, was accepted by the learned Single Judge, vide consolidated judgment dated 25-8-2005 and the matter was referred to the learned Chief Election Commissioner, in terms of section 152(2) of Punjab Local Government Ordinance, 2001, for passing appropriated order on the references. The said judgment was challenged by the petitioners through the appeal (ICA No.184 of 2005), which was allowed by the Division Bench of this Court and the case was remanded to the learned Single Judge for re-deciding the matter after hearing both the parties, vide judgment dated 21-9-2005. It appears that during the pendency of the said appeal, the Election Commission of Pakistan notified the petitioners as returned. candidates, vide notification dated 7-9-2006, which was to take effect from 23-8-2005. Thereupon, respondents Nos.1 and 2 filed the election petition before the learned Election Tribunal. The learned Single Judge in Chamber re-deciding the three constitutional petitions, including that of respondent's petition (W.P. No.5101 of 2005), again accepted respondent's said constitutional petition and the matter was referred to the learned Chief Election Commissioner to decide the references in view of section 152(2) read with section 161 of Punjab Local Government Ordinance, 2001, vide single order dated 21-10-2005. The petitioners challenged the said order through the appeal (ICA No.234 of 2005), however, it was withdrawn and the appeal was accordingly disposed of the Division Bench of this Court, vide order dated 5-4-2006. It appears that consequent to the latest order dated 21-10-2005, passed by the learned Single Judge, the learned Chief Election Commissioner entrusted the matter/reference to the learned Member Election Commission Punjab for disposal. During the pendency of the said reference, respondents Nos.1 and 2 requested for issuance of their notification, as returned Candidates, for the offices of Nazim and Naib Nazim from the said Union Council. The learned Member, after hearing the parties and while relying upon the findings of the learned Single Judge, held that "Rana Muhammad Amjad and Naeem Ullah Abbasi, Naib Nazim and Nazim, respectively stand disqualified and had ceased to hold office from the date of passing of the said order in the constitutional petition" and also declined the request of the respondents Nos.1 and 2 for issuance of their notifications as returned candidate, vide consolidated impugned order dated 13-10-2006, hence the present constitutional petition.

3. Learned counsel for the petitioners has contended that when the learned respondent No.3 decided the matter and rendered the impugned order, admittedly, election petition, filed by respondents Nos.1 and 2, was pending and during its pendency no parallel proceedings could be undertaken by respondent No.2. He has further submitted that the alleged disqualification of petitioner No.2 was neither dilated upon nor decided either by the learned Single Judge, while re-deciding the constitutional petition (W.P. No.5101 of 2005), or by the Member Election Commission. He has further submitted that during the pendency of the matter before the learned Member Election Commission, the learned Chief Election Commissioner, on 7-9-2006, issued notification, thereby declaring the petitioners as Nazim and Naib Nazim of U.C. 8, therefore, the said notification, in fact, nullified .the proceedings before the learned Member Election Commission. Ch. Saghir Ahmed, learned Standing Counsel has submitted that the proceedings under section 152(2) of the Ordinance, 2001, are independent and merely on account of pendency of election petition, the Member Election Commission is not divested from exercising his jurisdiction conferred upon him under the law. He has further submitted that petitioner's result could not be notified in the official Gazette on 23-8-2004 due to oversight and rush of work and their names were notified as returned candidates on 7-9-2006, when neither the judgment dated 25-8-2005 was in field, nor matter was pending before the learned Member Election Commission. The learned counsel for respondents Nos.1 and 2, while supporting the impugned order, has submitted that the petitioner No.2 is disqualified to hold office of Naib Nazim as he does not possess the requisite qualification in view of the principles laid down by the Honorable Supreme Court of Pakistan in the cases reported as Sanaullah Khan and others v. District Returning Officer, Mianwali and others (PLD 2005 SC 858) and Abdul Khaliq and another v. Maulvi Muhammad Noor and others (PLD 2005 SC 962). He has added that "Devi Sanad" claimed by petitioner No.2 is not recognized and no equivalence certificate was either issued or produced.

4. We have heard the learned counsel and examined the available record. The question, as to whether the Member Election Commission is empowered to exercise his powers under section 152(2) of the Ordinance, 2001, during the' pendency of constitutional petition or election petition, was decided by the Division Bench of this Court in another constitutional petition (W.P. No.5582 of 2006) titled "Mian Ghulam Yasin v. Election Commission etc". This Court has held that powers of the learned Chief Election Commissioner, under the provision of section 152(2), are independent of any other remedy or law and mere pendency of election petition or constitutional petition does not debar the learned Chief Election Commissioner to exercise his powers. It appears appropriate to reproduce a portion of the said judgment, which, in fact, decides the first contention raised by the learned, counsel for the petitioners and reads as follows: "We have heard the learned counsel and examined the available record. Section 152(2) of the Ordinance, provides that whoever is found by the Chief Election Commissioner to have contravened the provisions of subsection (1) shall stand disqualified from being a candidate for election and whoever having been elected as a member of local government shall cease forthwith to be an elected member or to hold the office. It appears appropriate to reproduce section 152(2) of the Ordinance, which reads as follows: "Section 152(1) (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."

5. It is evident from bare perusal of the aforementioned provisions of law that the learned Chief Election Commissioner is empowered to disqualify a person who is found guilty of violating and contravening the provision of section 152(1) Of the Ordinance. To our mind, the powers of the learned Chief Election Commissioner, under the said provisions of law, appear to be independent of any other remedy or law provided for disqualification of any person. Mere pendency of election petition or constitutional petition does not debar the learned Chief 'Election Commissioner to exercise his powers conferred by the aforenoted provisions of law, unless valid injunctive order is in field and operative. It is not the case of petitioner that this Court in the constitutional petition (W.P. No.3279 of 2006) issued any prohibitory order restraining the Chief Election Commissioner/Commission from proceedings with the application filed by respondent No.3. In view of the pendency of constitutional petition, it cannot be argued that the Chief Election Commissioner/Commission lacks juris diction to exercise powers conferred under the law. It is settled law that merely by filing the appeal against a decree or order would not operate as stay of proceedings I unless the appellate Court specifically stays the proceedings or grants injunction." (Underlining is ours) In view of the above, first contention of the learned counsel has no substance, thus repelled.

6. Now coming to the next contention. We have thoroughly examined the judgment dated 21-10-2005, whereby the respondent's constitutional petition (W.P. No.5101 of 2005) was decided along with other petitions. The learned Single Judge in Chamber, after discussing all the aspects of the case and adverting to the case law on the subject, including the judgments reported as Muhammad Yonnis Iqbal and another v. District Returning Officer, Gujranwala and 9 others (PLD 2005 Lahore 695) and Sanaullah Khan and others v. District Returning Officer,' Mianwali and others (PLD 2005 SC 858) and Abdul Khaliq and another v. Maulvi Muhammad Noor and others (PLD 2005 SC 962), with reference to the disqualification of petitioner No.2, has held that the petitioner contested the election on the basis of "Sanad", issued by the Institution and not recognized by U.G.C./H.E.C. without having passed additional subjects of English, Urdu and Pak Studies. In view of the clear findings recorded by the learned Single Judge in Chamber in para.12 of the judgment dated 21-10-2005, regarding disqualification of the petitioner No.2, it can neither be urged nor held that the learned Single Judge has not adverted or decided qua the disqualification of petitioner No.2. It appears appropriate to reproduce para.12 of the judgment dated 21-10-2005, which has rightly been reproduced by the learned Member in the impugned order and reads as follows:- "Respectfully following the law c declared by the apex Court as well as this Court in the above referred judgments, I have no hesitation to hold that since either of the two contesting respondents in each. of these writ petitions, contested the election of Nazim or Naib Nazim of their respective Union Councils on the basis of Sanad known as Shahabat ul Sanvia issued by institutions not recognized by U.G.C./H.E.C., without having passed additional subjects English, Urdu and Pak Studies and further without obtaining an equivalence Certificate from Inter Board Committee of Chairman, thus they were disqualified from contesting the said election and are also not entitled to hold the said elective offices. Resultantly, all these constitutional petitions (W.P. No.5114 of 2005, W.P. No.5101 of 2005 as well as W.P. No.5115 of 2005) are accepted and the Nomination papers of contesting respondents in each petition, for the election of Nazim and Naib Nazim of their respective Union Councils are rejected as such their election for the said offices is declared as without lawful authority and of no legal effect." (Underlining is ours) It may be noted that in view of the withdrawal of the appeal (I.C.A. No.234 of 2005) order dated 21-10-2005 and findings rendered in the said judgment have attained finality. The second contention of the learned counsel is equally devoid of any force.

6. Now adverting to the last contention of the learned counsel. Petitioner's constitutional petition (W.P. No.5101 of 2005) was disposed of on 25-8-2005 and the matter was referred to the learned Chief Election Commissioner, however, in the meantime, the respondents challenged the said decision through' the appeal. It appears that during the pendency of the appeal, the learned Chief Election Commissioner, after finding that. judgment dated 25-8-2005 is under appeal and the matter is not pending before the Member Election Commission, issued notification dated 7-9-2006. We feel that if the Election Commission issued the said notification, the petitioners cannot take advantage of the notification as merely issuance of notification could not nullify or undo either the judgment dated 21-10-2005, rendered by the learned Single Judge or affect the subsequent proceedings of the Election Commission.

7. In the above perspective, we have examined the impugned order and find that the same does not ,suffer from any jurisdictional defect and it is not only in accordance with the record of the case but the same is also in consonance with the law on the subject and we are not inclined to exercise constitutional jurisdiction in the matter, which is discretionary and equitable.

8. In view of the above, the present petition stands dismissed with no order as to costs. S.A.K./N-20/L Petition dismissed.