2009 PLP 942 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant Constitutional petition assailed judgments/order dated 6-9-2006 and 2-2-2007 passed by the Election Tribunal/Additional District and Sessions Judge, Gojra, to be declared illegal, void and of no legal consequence, whereby election petition filed by Tariq Mahmood and Mian Abdul Ghafoor (respondents No.2 and 3) was accepted and petitioner No.1 was held ineligible for the candidature of Nazim Union Council-134, Iqbal Town, Faisalabad and in place of the petitioners, respondents No.2 and 3 were declared as unopposed returned candidates as Nazim/Naib Nazim.

2. Succinctly, relevant facts are that petitioners contested the local bodies election to the offices of Nazim and Naib Nazim of Union Council-134, Iqbal Town, Faisalabad, against respondents Nos.2 and

3. Petitioners were declared as returned candidates.

3. Nomination papers of the petitioners were not objected by anybody whereas they objected to the nomination papers of respondents Nos.2 and 3, on the ground that Tariq Mahmood respondent No.2 was dismissed from service and thus was disqualified to participate in the election under section 152(h) of the Punjab Local Government Ordinance, 2001 but their nomination papers were accepted by the Returning Officer but on appeal those were rejected by the District Returning Officer. Respondents Nos.2 and 3 filed Writ Petition No.14589/2005, which was dismissed in limine on 5-8-2005. Hon'ble Supreme Court graciously disposed of C.P.L.A. No.2129/2005 on 19-10-2006 permitting respondents Nos.2 and 3 to have decision of their election petition on merits, as they were allowed to participate in the election vide interim order dated 11-8-2005.

4. From the above resume, respondents Nos.2 and 3 after loss of their election filed an election petition before the notified Election Tribunal (respondent No.1) agitating disqualification of petitioner No.1 being under the age of 25 years, on the day of filing of nomination papers. The election petition was contested by the petitioners by filing their written reply. In light of controversial stance of the parties a preliminary issue was framed to the effect as to whether on the date of filing of nomination papers, petitioner No.1 (Saif Ullah) was not qualified/eligible to contest the election. Respondents Nos.2 and 3 concluded their evidence on 22-5-2006 and the election petition kept on adjourning for evidence of the petitioners and they were granted a number of opportunities to produce their evidence but they could not and ultimately their right to produce evidence was closed on 6-9-2006. Petitioners then filed a review petition before the Election Tribunal for recall of order dated 6-9-2006 which was dismissed on 29-11-2006 and ultimately the election petition was accepted on 2-2-2007.

5. As the facts go, petitioners after dismissal of their review application by the Election Tribunal vide order dated 29-11-2006 filed Writ Petition No.13535 of 2006, which was dismissed on account of non-prosecution on 24-1-2007. Petitioners moved for restoration but in the meanwhile, the Election Tribunal passed the impugned order dated 2-2-2007, thus this petition was maintained. Respondents Nos.2 and 3, who are the real contestants, in response to notice by this court have appeared along with their counsel. Petitioners had though strenuously challenged orders closing their evidence by invocation of Order XVII, rule 3 C.P.C. and the other by which they were held to be ineligible to participate in the local bodies election, declaring respondents No.2 and 3 as unopposed returned candidates as Nazim/Naib Nazim by placing reliance on the judgments by the apex Court in the case of Bashir Ahmed Bhanbhhan and another v. Shaukat Ali, Rajpur and others (PLD 2004 SC 570) and Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCMR 1484), yet record revealed that election petition was adjourned from 10-8-2006 to 6-9-2006 as the Presiding Officer was on summer vacations. The most crucial date for invocation of provisions of Order XVII, rule 3, C.P.C. was 10-8-2006 on which date the interim order was written by the Reader of the Tribunal, repeating last opportunity to the petitioners for producing their evidence. Respondents Nos.2 and 3 had not objected to the adjournment on any of the dates granted to the petitioners; their counsel was not present on 6-9-2006 and the petitioners were not called upon to produce whatever evidence, with them at the time of closure of their right in this behalf. Be that as it may, learned counsel for the parties after arguing their cases at considerable length, settled in presence of their respective parties that this Constitutional petition may be accepted and impugned orders may be declared as prayed and respondents Nos.2 and 3 who have already been notified as Nazim/Naib Nazim of Union Council-134, Iqbal Town, Faisalabad, may be permitted to continue with their offices till the time, the election petition is decided afresh, after granting one single opportunity of producing evidence to the petitioners.

6. In view of settlement/concurrence between the parties, instant petition is accepted and impugned judgments/orders dated 6-9-2006 and 2-2-2007 are declared to be void and non-existent in the eye of law, with the result that election petition filed by respondents Nos.2 and 3 shall be deemed to be pending before the Election Tribunal (respondent No.1) where petitioners shall be granted one single opportunity of producing their entire evidence on a date to be fixed by the Election Tribunal and the election petition shall be decided afresh in accordance with law. Parties will not be granted any adjournment and in case of non-availability of the Presiding Officer, their evidence, shall be recorded by the Duty Judge working in his place. In case of failure of the petitioners to produce their evidence instant order shall stand rescinded, automatically. The Election Tribunal is directed to decide the election petition within a period of one month from the date this order is conveyed and in the meanwhile respondents Nos.2 and 3 will continue to hold the offices of Nazim/Naib Nazim of Union Council-134, Iqbal Town, Faisalabad. Parties are directed to appear before the Election Tribunal on 18-4-2007. There will be no order to costs as far as instant petition is concerned. H.B.T./S-143/L Order accordingly.