2007 PLP 957 (CLC)

SYED SHABBAR RAZA RIZVI, J.

Petitioners contested election of Nazim and Naib Nazim respectively to the Union Council No.7, Wazirabad Town, District Gujranwala. Petitioners were declared returned candidates and their Notification was issued on 20-8-2005. The respondents Nos.3 and 4 filed an election petition who had lost election against the petitioners. The election petition was filed on the ground that petitioner No.1 was disqualified to contest the election as he was not in possession of a genuine matriculation certificate at the time of filing nomination papers. The election petition was allowed by the learned Election Tribunal vide its order dated 17-2-2007. Learned Election Tribunal framed issue "Whether matriculation certificate filed by respondent No.2 (present petitioner) Shahid Aslam along with his nomination papers is valid or not?"

2. According to the finding of the learned Election Tribunal petitioner manoeuvred to obtain matriculation certificate of his namesake and used the same to file his nomination papers. According to the impugned judgment documents Exh.P.1 and Exh.P.2 very clearly indicate that both Shahid Aslams have the same parentage. Petitioner Shahid Aslam is permanent resident of Wazirabad and appeared from Government Christian High School Wazirabad in the matriculation examination in Arts Group vide Exh.P.2 but failed in the examination. However, taking the benefit of the similar parentage and examination in the same year he manoeuvred a matriculation certificate of Shahid Aslam son of Muhammad Aslam resident of Baghbanpura, Lahore who appeared under Roll No.32539. The date of birth of the said Shahid Aslam son of Muhammad Aslam is 7-10-1960 whereas Shahid Aslam (petitioner) appeared from Government Christian High School Wazirabad under Roll No.26050 and his date of birth is 4-4-1959. On the basis of the above material and record produced before the Election Tribunal by Imtiaz Ahmad Superintendent of Record, Board of Intermediate and Secondary Education, Lahore. Sakhi Muhammad, Assistant Controller Board of Intermediate and Secondary Education, Lahore also appeared as P.W.3 before Election Tribunal. On the basis of above evidence, the election petition was allowed vide impugned order, dated 17-2-2007.

3. The learned Election Tribunal, in view of its finding on Issue No.1, accepted the election petition and also declared petitioners i.e. Shahid Aslam and Mirza Muhammad Iqbal disqualified owing to bogus matriculation certificate. The learned Election Tribunal also declared respondents Nos.3 and 4 as returned candidates for the post of Nazim and Naib Nazim respectively.

4. The learned counsel for the petitioners submits that respondents Nos.3 and 4 failed to produce sufficient evidence on basis of which impugned order could be passed. Without repeating whatever has been discussed above, the contention of the learned counsel for the petitioner is not acceptable. The learned counsel for the petitioners also submits that declaration of respondents Nos.3 and 4 as returned candidates is also against law and relevant rules on the subject. However, in this context rules 76 and 77 of the Punjab Local Councils Election Rules, 2005 are alluded to. According to rule 76, the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:-- (a)

(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim as the case may be; or..."

5. The above discussion is sufficient to hold that petitioners were rightly found disqualified at the time of filing of nomination papers as petitioner No.1 was not in possession of a genuine matriculation certificate.

6. Under rule 77 the Tribunal can declare the election of a returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents acid the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. The prayer in the election petition clearly shows that it was prayed by the respondents Nos.3 and 4 that in view of disqualification of petitioner No.1, election be declared void and the petitioners (respondents Nos.3 and 4) be declared returned candidates. On the basis of evidence produced before the Election Tribunal, the Election Tribunal was satisfied to declare respondents Nos.3 and 4 returned candidates in place of petitioners, thus, the Election Tribunal has exercised its jurisdiction under Rules 76 and 77 of the Punjab Local Councils Election Rules, 2005.

7. In view of the above discussion and reasons, this Court does not consider appropriate to interfere with the impugned order. It is also observed that the learned Election Tribunal was in a position to pass the impugned order after recording evidence produced by the parties before him which exercise cannot be undertaken under constitutional jurisdiction. Hence, this writ petition is dismissed. S.A.K./S-35/L Petition dismissed.