2009 PLP 1140 (CLC)

SYED ASGHAR HAIDER, J.

The petitioners contested the election of Nazim and Naib Nazim for Union Council No.13 Rawal Town, Rawalpindi and were declared successful, a Notification was accordingly issued. The respondents Nos.1 and 2 challenged the validity of the said election by filing an election petition, it also was prayed therein that they be declared as returned candidates, the petitioners contested the election petition denying the assertions, of the divergent pleadings of the parties, following issues were framed:-- Issues:-- (1) Whether the election petition is liable to be dismissed in view of preliminary objection No.1? OPR. (2) Whether the election of the returned candidates (respondents Nos.1 and 2) is liable to be declared as void on the grounds mentioned in the petition? OPP. (3) Whether the petitioners are entitled to be declared as elected candidates to Union Council No.13 Rawalpindi? OPP. (4) Relief. The parties were put to trial and thereafter the Election Tribunal accepted the election petition, disqualified the petitioners and went further to declare the respondents Nos.1 and 2 as elected Nazim and Naib-Nazim of the constituency, aggrieved thereof, the present petition.

2. The learned counsel for the petitioners contended that the petitioners did not conceal any assets, they adequately discharged onus by producing evidence otherwise, thus they were qualified to hold their position, the analogy adopted by the election tribunal is incorrect and against evidence. But more importantly the relief granted to the respondents Nos.1 and 2 declaring them Nazim and Naib Nazim; respectively is against legal dictates and evidence,, there is not an iota of evidence on record to substantiate principle of notoriety and doctrine of throw away votes, the law on the subject ,was also not examined, therefore, the judgment is untenable. To substantiate his contentions, the learned counsel referred 'to the following precedents:

Shaukat Ali and another v. District Returning Officer and another PLD 2006 SC 78, Sh. Amjad Ariz v. Haroon Akhtar Khan and 10 others 2004 SCMR 1484, Ellahi Bakhsh v. District and Sessions Judge, Rajanpur and others PLD 2003 SC 268; Muhammad Saeed Awan and another v. District Returning Officer, Attock and others 2006 SCMR . 1495 and Sardar Muhammad Amir Khan v. Nadeem Akhtar and others 2007 SCMR 1044.

3. Conversely, the learned counsel for the respondents contended that the impugned judgment is in consonance with law and evidence tendered, issues were framed in presence of the parties, they led evidence and there is irrefutable evidence on record to establish doctrine of notoriety and' throw away votes to the respondents' advantage, the petitioners concealed their assets and were therefore rightly disqualified.

4. Heard.

5. There is preponderance of evidence to establish that the petitioners did not declare their correct assets, the evidence of P.W.1, record keeper Excise and Taxation Department alone is sufficient in this context, thus the election of the petitioners was rightly nullified by the Election Tribunal, therefore, the same warrants no interference. However, as far as the exercise of power as contained in rule 67(2)(i) of the Punjab Local Government Elections Rules declaring the 'respondents Nos.1 and 2 as elected Nazim and Naib-Nazim is concerned, this power has not been properly exercised.

6. The sine qua non for the declaration in terms of the provisions contained above is, that the same should be established by positive, incontrovertible and direct evidence that the disqualification is notorious, therefore, evidence of highest quality should have been produced in this context by the respondents. Perusal of evidence tendered and deposition made as contained in the contents of the impugned order do not match this benchmark. There is no credible or even tangible evidence to establish that disqualification of the petitioners was notorious. A distinction in this context has to be clearly drawn, concealment of assets and the doctrine of throw away votes are distinguishable acts, and thus are required to be proved independently, in the present matter this most important aspect was neither considered nor discussed. Reference Muhammad Amin Khan v. Nadeem Akhtar and others 2007 SCMR 1044. Thus, it is unfortunate that while deciding this question, the Tribunal did not advert either to the evidence or law on the subject. Appraisal of the impugned judgment reflects that there is no direct evidence to establish notoriety resulting into invoking doctrine of throw away votes, there also is no reference to the precedents referred to (supra), thus the 'controversy was not appreciated properly. Additionally, no witness of the respondents deposed on these lines, in these circumstances, a clear error of law was committed by the Tribunal, which cannot sustain.

7. Resultantly, this petition is partly allowed, while upholding the disqualification of the petitioners, the election of respondents Nos.1 and 2 is set aside and the election is declared void, as a whole. H.B.T./I-26/L Petition partly allowed.