P L D 2003 Lahore 12 (PLP)

Through this writ petition, the judgment dated 24‑8‑2002 handed down by the Election Tribunal, Bhakar, is questioned. Whereby, the election of both the petitioners who were declared as successful candidates vide Notification dated 6‑1‑2001 of the District Returning Officer, Mianwali, was held to be illegal. This election pertained to Union Council No.42, Shahdia, District Mianwali. Consequent upon their election having been declared illegal and unlawful, the petitioners before the Tribunal, who had challenged the election and who had secured the next higher votes, were declared as returned candidates.

2. Against Haji Alam Sher (petitioner), it was established the he had presented a Matriculation Certificate after impersonation and changed the photographs in the original record held by the Bannu Board of Intermediate and Secondary Education.

3. Whereas, Bahadur Khan, petitioner suffered because of the principle of sinker having been applied to his case, although he was found to be qualified having the degrees of B.A. LL.B.

4. Objections with respect to the qualifications of both these petitioners were raised before the Returning Officer but these were turned down and consequently after the elections, the matter was taken before the Tribunal resulting in the aforementioned judgment.

5. The Tribunal recorded the evidence and perused the record of the Board of Intermediate and Secondary Education, Bannu. Whose Controller Examinations (A.W.1) and Assistant Secretary also appeared and deposed that the Matriculation Certificate being used by the petitioner Haji Alam Sher was a bogus document.

6. It was vehemently argued before this Court that the tampering of record was an act which had taken place recently and after the election results at the instance of the respondents who were rival candidates. But having heard the arguments of both sides and having examined the record, one finds that this argument is not substantiated.

7. Besides, there is a Notification (Exh.PA/1) issued by the Controller Examinations. Board of Intermediate and Secondary Education, which reads as follows:‑ "Consequent upon the decision of the Board (empowered under. S.No.15, page No.241 of the Board Calendar) resolved in its 21st meeting dated 29‑6‑2001, the result of Mr. Alam Sher son of Janan Khan appeared in the S.S.C.(A) Examination, 1995, under Roll No.70172 is hereby quashed on account of the charge of impersonation proved against him. " Which means that the result it has already been quashed and therefore, any reliance on a quashed result is no reliance in law. Besides the factual position having been determined by the Tribunal without any misreading or non -reading of evidence through our Constitutional jurisdiction, we are not supposed to re‑open this controversy. The writ petition as far as Haji Alam Sher petitioner is concerned, has no merits and is dismissed.

8. It is an admitted position that Bahadur Khan petitioner, the successful candidate for the post of Naib‑Nazim, had the requisite qualification at the relevant time. But because he was a joint candidate with Haji Alam Sher, the principle of sinker was applied and his election was also declared illegal and void. There are two stages where academic qualification of a candidate, as prescribed by section 14 of the Punjab Local Government Ordinance, 2000, can be questioned. The first stage is before the Returning Officer at the time of scrutiny as provided by rule 18 of the Punjab Local Government Elections Rules, 2000, and secondly, thereafter, ,before a Tribunal. This was certainly a case where the petitioner had been declared qualified at the scrutiny stage and the results were challenged post election before the Tribunal according to the procedure as provided by rule 16 of the Punjab Local Government Elections Rules, 2000.

9. Reference may be once more made to rule 18 of the Punjab Local Government Elections Rules, 2000, where the proviso to clause 3 states:‑‑ "Provided that in case of rejection of the nominations of either a Nazim or a Naib‑Nazim as joint candidates, the nomination as a whole or both the joint candidates shall stand rejected."

10. Obviously, at that particular stage if the nomination of either Nazim or Naib‑Nazim who were contesting as joint candidate was rejected, the nominations as a whole stood rejected. Extending the provision of this rule to the post election period, is a question which needs an answer.

11. The rules do not provide for a joint rejection after the nomination papers have been accepted. We find an amendment to the Punjab Local Government Elections Ordinance, 2000, vide Ordinance VII of 2000 which speaks of a casual vacancy and reads as follows:‑‑ "18‑A. Casual vacancy.‑‑(1) If the seat of a member becomes vacant during the term of office of a Council, new member shall be elected through bye‑election and such member shall hold office for the remaining part of such term, provided that all bye‑elections shall be held once a year on dates fixed by the Chief Election Commissioner. (2) A vacancy in the office of a Nazim shall be filled by an officiating Nazim elected by the members of the Council concerned by a majority vote: Provided that‑‑ (a) the member so elected shall continue to hold his substantive office as member till the bye‑election to fill the vacant office is held; (b) a Naib‑Nazim will not be eligible for bye‑election or to be an officiating Nazim; and (c) in the event of temporary absence of a Nazim, the Naib‑Nazim of the Council concerned shall act in place of the Nazim."

12. Therefore, when the elections are challenged before an Election Tribunal and the Election Tribunal comes to the conclusion that a candidate was to be disbelieved, ab initio for contesting the election and declares his result to be unlawful, a casual vacancy occurs which has to be filled in as per the provisions of newly added section 18‑A and we have not to revert to the provisions of proviso to rule 18 of the Punjab Local Government Elections Rules, 2000. Even otherwise, it would be unfair to punish a joint candidate for a wrong on the part of another joint candidate after he receives the mandate from the public and there is no finger pointed out towards him with respect to his qualification. Section 18‑A, therefore, saves his position and notwithstanding the fact that the Nazim and the Naib‑Nazim contest elections' as joint candidate pursuant to section 16, the casual vacancy is to be filled in'~ singularly in accordance with the spirit of section 18‑A.

13. There was a random talk about the excessive delegation with respect to rule 18 of the Punjab Local Government. Elections Rules, 2000. But we leave this question to some other case as none of the parties were prepared on it and the learned petitioner's counsel has also not taken any objection in this connection.

14. Resultantly, this Court upholds the decision of the Tribunal with respect to Haji Alam Sher petitioner, while its decision with respect to Bahadur Khan petitioner being not supported by law is set aside. The writ petition is decided accordingly. Both sides will bear their own costs. M.B.A./A‑653/L Order accordingly.