P L D 2004 Supreme Court 505 (PLP)

Ch. Muhammad Ikram, Senior Advocate Supreme Court for Respondent No.5. (in C.P. No.83‑P of 2003). Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner (in C.P. No. 399 of 2003). Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondent No.1 (in C.P. No.399 of 2003). Date of hearing: 19th March, 2004. ABDUL HAMEED DOGAR, J.‑‑‑By this order we propose to dispose of Civil Petitions No.83‑P and 399 of 2003 filed by Sher Zaman Sher and Jehanzeb Khan respectively as they arise out of common judgment, dated 6‑2‑2003 passed by a learned Division Bench of Peshawar High Court, Peshawar whereby Writ Petition No. 1291 of 2002 filed by Sher Zaman Sher was dismissed whereas Writ Petition No.1 1297 of 2002 filed by Jehanzeb Khan and Muhammad Ayaz Khan was dismissed to the extent that they were not declared as returned candidates. However, the question for annulment of election of Naib Nazim, Muhammad Jamil khan was left to be decided by the larger Bench.

2. The background leading to the filing of the instant petitions are that under proviso to sub‑rule (3) of Rule 16 of the Local Government Elections Rules, 2000 (hereinafter referred to as "the Rules") framed under N.‑W.F.P. Local Government Elections Ordinance, 2000 (hereinafter referred to as "the Ordinance") election to the office of Nazim and Naib Nazim of Zilla Council was to be contested as a joint candidate. Three pairs of candidates, namely, Sher Zaman Sher and Muhammad Jamil Khan; Jehanzeb Khan and Muhammad Ayaz; and Javed Afsar and Haji Faqir Muhammad filed nomination papers for the election of the office of Zilla Nazim and Naib Zilla Nazim, Swabi. In the first round of election, none of the pair, secured more than 50% votes polled, with the result that there was a run off election between two pairs viz. Jehanzeb Khan and Muhammad Ayaz on one side and Sher Zaman Sher and Muhammad Jamil Khan on the other side. In the run off election held on 8‑8‑2001, the pair of Sher Zaman Sher and Muhammad Jamil Khan secured highest number of votes and were declared elected.

3. Jahanzeb Khan and Muhammad Ayaz challenged the result through election petition before the Election Tribunal on 20‑8‑2001 under Rule 71 of the Rules. The main ground urged therein was that Sher Zaman Sher did not possess the requisite qualification of being a matric and was thus disqualified from contesting election under section 14(e) of the Ordinance and that the matric certificate filed by him with his nomination papers was bogus and forged.

4. In rebuttal, Sher Zaman Sher and Muhammad Jamil Khan filed a joint written statement wherein Sher Zaman Sher pleaded that he had in fact filed Certificate of Technical Education course issued in the year 1974 by the Royal Government of Afghanistan, Ministry of Education equivalent to Bachelor of Arts but was fraudulently replaced with a fate matric certificate.

5. Jehan Zeb Khan and Muhammad Ayaz, the petitioners before the Tribunal, filed rejoinder to the above version and alleged that even certificate from Afghanistan was fake and its production was an afterthought and attempt to cover up fake matric certificate filed with the nomination papers.

6. Both the parties adduced their respective evidence. Petitioner Jehan Zeb Khan examined himself as P.W.3 and also examined Saifuddin, Stenographer to Additional Sessions Judge, Swabi as P.W.1 and Noor Muhammad, Assistant Incharge, Certificate Division, Board of Intermediate, Peshawar, as P.W.2.

7. On the other side, Sher Zaman Sher examined himself and also examined (D.W.1) Muhammad Iqbal, Education Officer of the Inter Board Committee of Chairman.

8. The learned Tribunal vide judgment, dated 27‑11‑2002 declared the election of Sher Zaman Sher as void whereas did not declare the election of Naib Nazim Muhammad Jamil Khan as void. It also did not accept the prayer of Jehanzeb Khan and Muhammad Ayaz for declaring them as duly elected.

9. Feeling aggrieved, both the parties filed Writ Petitions Nos. 1291 and 1297 of 2002 before the learned Peshawar High Court which were disposed of vide impugned judgment.

10. We have heard Messrs Wasim Sajjad, learned Senior Advocate Supreme Court for petitioner Jehanzeb Khan, Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for petitioner Sher Zaman Sher at length and have gone through the record and the proceedings of the case in minute particulars.

11. P.W.1 Saifuddin, produced the matric certificate filed by Sher Zaman Sher with his nomination papers bearing Roll No.2860 issued by Board of Intermediate and Secondary Education, Peshawar. P.W.2 Noor Muhammad, in his evidence, confirmed that Sher Zman Sher did appear in matric examination under Roll No. 2860 in the year 1967 but failed. In support, he produced the copy of Gazette notification as well as copy of mark sheet showing him fail in English and General Science. According to him, the said certificate was bogus. It is pertinent to note that Sher Zaman Sher did not dispute this fact which went un rebutted and burden to prove shifted upon him which he miserably failed.

12. There is no exemption to the findings, of Tribunal that the Certificate of Technical Education from Afghanistan was relevant only for evaluation of education and it does not, in any way, lend to its genuineness. The ground that the original certificate was not produced by Sher Zaman Sher in the Court was another valid ground to reject its authenticity. The said equivalence certificate was issued on 29‑9‑2001 whereas the election petition was filed on 20‑8‑2001 which shows that it was not filed with the nomination papers, therefore, was rightly excluded from consideration. It was because of such reason, he was not qualified in terms of section 14 of the Ordinance, as such, his election was rightly declared void.

13. As regard the case of Muhammad Jamil Khan his Naib Zilla Nazim, there is no dispute to the fact that they both contested election as stipulated in section 16 of the Ordinance. It would be relevant to refer to the proviso to sub‑rule (3) of Rule 18 which provides that in case of rejection of nomination of either a Nazim or a Naib Nazim as joint candidate, the nomination as a whole for both joint candidates shall stand rejected. The election on the basis of joint candidature and rule, of rejection of nomination of joint candidate as a whole is based on the doctrine of sinker. The basic concept of this doctrine is based on the principle to sail or sink together.

14. Similar controversy came under discussion before this Court in the case of Mian Ahmad Saeed and others v Election Tribunal for Kasur at Okara and others (2003 SCMR 1611) wherein it has been held that the salient feature of the system of joint candidacy is that the candidates for the seats of Nazim and Naib Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of anyone of the candidates tantamounts to the rejection of nomination of both the candidates. Therefore, they must possess the statutory qualifications individually and collectively on the day of filing of nomination paper and lack of any such qualification of any one would invalidate their nomination jointly. 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.

15. On 13th August, 2001, N.W.F.P. Local Government Ordinance, 2001 was promulgated. Section 154 of the above Ordinance prescribes that election of Zilla Nazim and Naib Zilla Nazim, a Tehsil Nazim and Naib Tehsil Nazim, a Town Nazim and Naib Town Nazim and a Union Nazim and Naib Union Nazim shall contest election in their respective electoral wards as joint candidates.

16. In order to facilitate the smooth running and day to day business of the office of Nazim and Naib Nazim, a proviso was added to section 154(1) of the above‑mentioned Ordinance, wherein it was introduced that in case a casual vacancy occurs in respect of office of a Nazim or Naib Nazim, a candidate for the said office was allowed to contest election in individual capacity.

17. The word `casual' has been defined in various dictionaries as accidental, unforeseen, occasional, due to chance, not regular or permanent, temporary. The concept of casual vacancy referred to above is thoroughly dealt with by this Court in the case of Ahmad Saeed referred (supra) and has been equated as a vacancy which becomes vacant subsequent to the election as a result of removal, resignation death or any other unforeseen reason but it does not include a vacancy which occurs in consequence of declaring election of a returned candidate void by Election Tribunal in an election petition. It has been held that the vacancy occurring due to disqualification would not fall within the category of casual vacancy.

18. Jehanzeb Khan has also failed to produce cogent evidence about notorious disqualification of Sher Zaman Sher. This question has also been discussed in the case of Ahmed Saeed referred (supra) wherein it has been held that it is essential to prove the notoriety of disqualification by the party claiming it. The aspect of notorious disqualification came under discussion in Civil Appeals No. 1 and 5 2004 (Bashir Ahmad Bhanbhan v. Shaukat Ali Rajput) decided on 27‑2‑2004 (PLD 2004 SC 570), and it was categorically held by this Court that the disqualification should be of such a nature that it is publicly or commonly or generally I known forming a matter of common knowledge. It would be so significant as it does not require any evidence.

19. When examined the case of Jehanzeb Khan on the above touchstone, it becomes manifest that he has miserably failed to prove notorious disqualification of Sher Zaman Sher, thus cannot be declared as returned candidate.

20. Resultantly, both the petitions being devoid of force are dismissed and leave to appeal refused. S.A.K./S‑23/S Leave refused.