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Petitioner: Mian AHMAD SAEED and others VS Respondent: ELECTION TRIBUNAL FOR KASUR AT OKARA JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Sh. Riaz Ahmad, Muhammad Nawaz Abbasi, Mian Muhammad Ajmal Title:Mian AHMAD SAEED and others vs ELECTION TRIBUNAL FOR KASUR AT OKARA
JUDGMENT
Reported As: 2003 SCMR 1611 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---The Civil Appeals bearing Nos.583 and 592 of 2002 have been preferred against the consolidated judgment, dated 28-2-2002 in W.P. 906 of 2002 and W.P. 1714 of 2002, and Civil Appeal No,1191 of 2002 against the judgment dated 13-8-2002 in W.P. 12660 of 2002 passed by a learned Single Judge of Lahore High Court, Lahore. The Civil Appeal No,751 of 2002 has arisen out of judgment, dated 17-5-2002 passed by the High Court of Sindh at Karachi in Constitution Petition No,357 of 2002. The above four appeals involving common question of law and facts, are proposed to be disposed of through this single judgment. 2. Mian Ahmed Saeed appellant and Sardar Muhammad Shoab, respondent No,8 in Civil Appeal No,583 of 2002, hereinafter called 'the appellants', contested election as joint candidates in one panel for the seat of Naib Nazim and Nazim respectively of Tehsil Council, Chunian, District Kasur and being successful were notified as returned candidates. Malik Abdul Waheed and Mian Muhammad Rashid, respondents Nos.2 and 3 in the above appeal and appellants in C.A. 592 of 2002, hereinafter called 'the respondent', during the scrutiny of the nomination papers by the Returning Officer by challenging the genuineness of the matriculation certificate produced by Sardar Muhammad Shoab raised an objection that he was not qualified to contest the election. The objection was rejected by the Returning Officer vide order, dated 22-7-2001 and further the appeal preferred by the respondents against the order of Returning Officer was dismissed by the District Returning Officer Vide order, dated 25-7-2001. The respondents challenged the acceptance of the nomination papers of Sardar Muhammad Shoab by the Returning and District Returning Officer by way of filing a Constitution Petition bearing No,14275 of 2001 in the Lahore High Court,
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Lahore, and pending disposal of the said petition election was held. In the election the panel of appellant and respondents having secured 279 and 257 votes obtained first and second position respectively but none of the panel could get more than 50% of the total votes, therefore, the election was declared run off and in the contest in run off election, the panel of the appellants was declared successful. The respondents challenged the election of the appellants through an election petition and as a result thereof, the High Court, with the consent of parties, converted Writ Petition No,14775 of 2001 into an election petition and sent the same to the Election Tribunal for its disposal with the election petition already pending before the Tribunal. The Election Tribunal on conclusion of the proceedings, allowed the election petitions vide judgment, dated 11-12001 and held that the matriculation certificate produced by Sardar Muhammad Shoab during the scrutiny of nomination papers was forged and his nomination was invalid. The Tribunal while declaring the election of both the candidates in the panel void, directed for holding the fresh election. The appellant (Mian Ahmed Saeed) and his joint candidate namely, Sardar. Muhammad Shoab questioned the legality of the judgment of the Tribunal by way of filing the separate Writ Petitions bearing Nos.906 of 2002 and 21122 of 2001 in the Lahore High Court, Lahore and respondents Nos.2 and 3 (Malik Abdul Wahid and Mian Muhammad Rashid) filed a joint Writ Petition bearing No,174 of 2002 wherein they sought direction for declaring them as returned candidates for the seat of Nazim and Naib Nazim and a separate Writ Petition bearing No,14275 of 2001 was also filed by Mian Muhammad Rashid for the same relief. The Writ Petition No,21122 of 2001 was dismissed vide judgment, dated 30-11-2001 and the remaining three Writ Petitions bearing No,906 of 2002, Writ Petition No,174 of 2002 and Writ Petition 14275 of 2001 were disposed of by a learned Single Judge of the Lahore High Court, Lahore, through the consolidated judgment, dated 28-2-2002 impugned in C.A. 583 of 2002 and 592 of 2002. The leave was granted in these appeals vide orders, dated 3-4- 2002 and 16-4-2002 respectively but the special leave to appeal sought by Sardar Muhammad Shoab in C.P. No,1004-L of 2002 against the same judgment, was refused. The leave granting orders in the above two, appeals are reproduced hereunder:- C.A. 583 of 2002 "Leave is granted to consider whether if Nazim is declared to be disqualified to contest election in an election petition, the election of the petitioner as Naib Nazim could also be declared void being a substantial question of law of public importance. (2) Subject to notice till the next date of hearing, operation of the judgments of the Tribunal, dated 11-1-2002 and the impugned judgment, dated 28-2-2002 qua Mian Ahmad Saeed, Naib Nazim, shall remain suspended. (3) Since prima facie, it will not be possible to hold election of the post of Nazim, under the existing law, therefore, this appeal shall be fixed in the second week of May, 2002. Learned Advocate- General, Punjab shall also appear to assist the Court." C.A. 592 of 2002 ' "Leave has already been granted in C.P. No,1005-L of 2002 arising from the same judgment of the Election Tribunal to consider whether where Nazim is held to be disqualified from being candidate on account of he being not matriculate, the election of Naib Nazim would also automatically be adversely affected. (2) The petitioner contested the election of the post of Nazim with Naib Nazim in panel and his case was that after the election of his opponent having been declared to be invalid on account of the above reasons, he should have been declared as elected as a. Returned candidate whereas the Election Tribunal has ordered reelection. (3) Leave is granted to consider whether the petitioner should have been considered as a returned candidate. (4) To be heard alongwith the appeal arising from C.P. No,1005-L of 2002."
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3. In Civil Appeal No,1191 of 2002 the appellant namely Hamiullah Khan and Allah Bakhsh contested election as joint candidates in a panel for the seat of Nazim and Naib Nazim, respectively, from Union Council No,57, Tehsil Kamalia, District Toba Tek Singh. The appellants were in contest with the panels of respondents Nos.2 and 3 and respondents Nos.4 and 5 respectively and in the election were declared successful. However, their election was challenged by respondents Nos.2 and 3 who secured second position in the election by way of filing an election petition before the Election Tribunal constituted under Punjab Local Government Elections Rules, 2000 for Tehsil Kamalia, District Toba Tek Singh. The sole ground urged in the election petition for declaring the election of appellants void was that Allah Bukhsh appellant No,2 in the appeal was guilty of concealment of the assets in the list of assets attached with the nomination papers and therefore, he stood disqualified to contest the election. 'The Tribunal in the light of the pleadings of the parties and evidence brought by them on record, held that Allah Bakhsh (appellant) was suffering from disqualification under section 14(1) of Punjab Local Government Elections Ordinance, 2000 read with rule 16(4) of Punjab Local Government Elections Rules, 2000 and while holding the nomination of the appellants as joint candidates invalid, de-seated them and declared the next panel (respondents Nos.2 and 3) successful. The appellants invoked the Constitutional jurisdiction of the Lahore High Court in the matter through the Constitution Petition bearing No,12660 of 2002 and a learned Single Judge of the High Court, vide judgment, dated 13-2-2002 impugned in the present appeal, dismissed the writ petition. Leave was granted in this appeal vide order, dated 30-9-2002 as under:- ' The election of the petitioner No,2 was declared to be invalid on the ground that in the schedule of assets declared by him before the election, he did not include certain piece of land which he had inherited from his forefathers and not on the ground of any malpractice or corruption. The election of both the petitioners as a panel was declared to be invalid and instead the respondents' panel was declared successful. (2) Learned counsel for the petitioners submitted that non-inclusion of certain property in the declaration made by petitioner No,2 was not such a matter on which his election could be declared invalid. Apart from this, he says that this was not such a disqualification to which principle of throw away of votes could be applied. He also maintained that even if petitioner No,2 was not validly elected, the election of petitioner No,1 who was not responsible for the personal act of petitioner No,2, his election could not be declared invalid. (3) On the question whether the election of panel of Nazim and Naib Nazim as a whole should have been declared invalid in case one was found to be guilty of malpractice is already under consideration in C.P. No,1005-L of 2002 in which leave has been granted. (4) Leave is granted in this case also. To be heard alongwith the said and other connected appeals. (5) During the pendency of the appeal, operation of the order, dated 6-7-2002 of the Election Tribunal and the impugned judgment, dated 13-8-2002 of the High Court shall remain suspended in that the petitioners shall continue to perform the functions of Nazim and Naib Nazim." 4. In Civil Appeal No,751 of 2002, Zubair Ahmed Chandio and Muhammad Ahmed Khan appellants, contested election as joint candidates in a panel in the local bodies for the office of Nazim and Naib Nazim Union Council No,6, Gazdarabad, Karachi South and by securing 2488 votes, defeated their opponents. However, an objection to the nomination of Muhammad Ahmed Khan appellant was raised during the scrutiny of nomination papers that he being defaulter of Habib Bank Limited was disqualified to contest the election. The objection was rejected by the Returning Officer and the appeal preferred by respondent No,2 (Muhammad Zahid Qureshi) against the acceptance of the nomination papers of appellant No,2 was also dismissed by the District Returning Officer vide order, dated 13-6-2001. The respondent No,2 being not satisfied with the order of Returning and
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District Returning Officer filed a Constitution petition bearing No,D-1215 of 2001 in the High Court of Sindh at Karachi which was allowed by a Division Bench of the High Court vide judgment, dated 20- 6-2001 wherein it was held that Ahmed Khan, . Appellant having been adjudged as wilful bank defaulter was suffering from disqualification under section 14(j) of Sindh Local Government Election Ordinance, 2000. The appellant assailed the above judgment before this Court through C.P. No,438-K of 2001 and this Court vide order, dated 26-6-2001 passed in C.M.A. No,166-K of 2001 while suspending the operation of the judgment of the High Court allowed the appellants to contest the election and they by securing highest votes, succeeded in the election. The respondent No,5 (Muhamamd Zahid Qureshi) challenged the election of the appellants through air election petition and pending adjudication of the said petition before the Election Tribunal, this Court vide order, dated 5-10-2001 disposed of Civil Petition No,438-K of 2001 with the observation that the parties may raise all pleas available to them before the Tribunal. The Election Tribunal having dilated upon the question relating to the disqualification of appellant No,2 on account of his being wilful defaulter of Habib Bank, allowed the election petition vide order, dated 28-2-2002 on the ground that nomination of the appellants as joint candidates for the seat of Nazim and Naib Nazim of Union Council 6, Karachi South, was invalid. The Tribunal while declaring the election of the appellants as joint candidates void, directed the respondent No,5 (Muhammad Zahid Qureshi) and his joint candidate be notified as elected. The appellants assailed the judgment of the Election Tribunal in the High Court of Sindh at Karachi in a Constitution Petition No,357 of 2002 but the same was dismissed vide the judgment impugned in the present appeal. The leave was granted in this appeal vide order, dated 22-5-2002 as under:- ' On an identical question being raised through the instant petition, leave to appeal was granted by this Court on 3-4-2002 in C.P. 1005-L-2002 (C.A. 583-2002). The precise question raised in this petition is that if in terms of election petition, election of `Nazim' is declared to be void, what should be the fate of `Naib Nazim' because under the existing law, he also loses his seat. This undoubtedly is a question of public importance, therefore, we would grant leave to appeal in this petition for leave to appeal. Operation of the order impugned herein shall remain suspended meanwhile'." 5. The elections of the local bodies in all the four Provinces were held in the supervision of Chief Election Commissioner of Pakistan under the Local Government Election Ordinances, 2000 and the Rules framed thereunder. The elections for the seat of Zila Nazim, Naib Zila Nazim, Town Nazim, Naib Town Nazim, Tehsil Nazim and Naib Tehsil Nazim, Union Council Nazim and Naib Union Council Nazim were held on the basis of joint candidacy and the joint candidates in the panel securing highest position with more than 50% of the total votes would be declared elected. If the panel securing first position has not been able to get more than 50% of the total votes, the election would be declared run off in which the two panels securing first and second position would contest the election and the panel securing highest number of votes in the run off election would be declared elected. The election of a returned candidate could be called in question by any contesting candidate through an election petition before the Election Tribunal appointed under the Local Government Elections Rules, 2000 framed under Local Government Elections Ordinance, 2000 on any ground mentioned in the rules, including the invalidity of nomination of a returned candidate. The Election Tribunal in exercise of its powers under the rules may, upon the conclusion of the proceedings in the election petition, dismiss the petition, declare the election of returned candidate void or declare the petitioner in the election petition or any other contesting candidate to have been duly elected or declare the election as a whole void. The Tribunal on coming to the conclusion that the nomination of returned candidate was invalid or he was not qualified to contest the election and hold the office of Nazim or Naib Nazim or that the election of the returned candidate was procured or induced by illegal practice, could declare his election void. The law made applicable to the election of the local bodies provided that election for the seat of Nazim
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and Naib Nazim shall be held on the basis of joint candidacy and in case of rejection of nomination of either of Nazim or Naib Nazim in a panel, the nomination as a whole for both the joint candidates shall stand rejected. In the light of the Scheme of law explained above, the following essential questions involved in the present appeals would require adjudication:-- (a) Whether the provision in the , Local Government Election Ordinances, 2000 relating to the joint candidacy and the rejection of nomination papers of both the Nazim and Naib Nazim, as joint candidates, in the panel on rejection of nomination of either of them is not violative of the right of representation of an individual? (b) Whether the Tribunal while declaring the election of a returned candidate void on the ground that his nomination was invalid, can declare the election of joint candidates as a whole void and further this rule after the election would become inoperative to de-seat the joint candidates in the election? (c) Whether the Tribunal after declaring the election of the joint candidates void must declare the next panel securing highest votes in the election was elected, notwithstanding the right of franchise of the voters? (d) What is the effect of repeal of Punjab and Sindh Local Government Election Ordinances, 2000 by Punjab and Sindh Local Government Ordinances, 2001 promulgated on 14-8-2001? 6. The concept of joint candidacy was introduced in the local bodies election to educate the spirit of collective efforts and joint responsibility. The election on the basis of joint candidature and rule of rejection of nomination of joint candidates as a whole is based on the doctrine of sinker which is a rule of pre-emption law. This rule is that if a person having superior right of pre-emption joins himself with a stranger or an inferior pre-emptor, he shall lose his superior right of preemption and is not allowed even to retain his own share in the purchase if a suit for pre-emption is brought against the sale. 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 any one of the candidates, is rejection of nomination of both the joint candidates. Therefore they must possess the statutory qualifications individually and collectively on the nomination day 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. In the system of joint candidacy, the candidates file their nomination papers individually but the validity or invalidity of their nomination is essentially determined jointly and in consequence, to the rejection of nomination of any one for any disqualification, the nomination of other shall automatically stand rejected and in the light of same rule of joint responsibility their election can be declared void as a whole on the ground that on the nomination day their nomination was invalid. The disqualification attached with the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that the Election Tribunal would not be competent to declare the election of the joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy. 7. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, learned counsel for the appellants in Civil Appeal No,583 of 2002 has raised the following contentions:-- (a) The verdict given by the Election Tribunal that Sardar Muhammad Shoab was not qualified to contest the election was contrary to the record and was based on misconception of law. (b) The finding of the Tribunal that the matriculation certificate of Sardar Muhammad Shoab was forged, would not provide a valid ground to invalidate the candidature of the joint candidate in the panel and declare his election also void in the election petition.
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(c) Notwithstanding the notoriety of disqualification of a candidate in the panel, the right of franchise of voters to the extent of joint candidate would be protected and by applying the principle of thrown away of votes, the next panel securing highest votes could not be declared elected. 8. Learned counsel argued that under the Local Government Election Ordinance and Rules, 2000, the disqualification of any one of the candidate in the panel shall definitely affect the nomination of the joint candidate in the said panel but after the election the returned candidates would be responsible in their individual capacity and would not face the consequence of the disqualification of each other and the election of the joint candidates as a whole cannot be declared void by the Election Tribunal Learned counsel while distinguishing a candidate from a returned candidate, submitted that a candidate would definitely lose the right of contesting the election due to associating himself with a candidate suffering from a statutory disqualification but after the election this rule of joint candidacy would become redundant and the candidates who contested election jointly would no more carry joint responsibility. In nutshell, it has been argued by the learned counsel that after the election, the concept of joint candidacy would come to an end and the Tribunal on the basis of disqualification or invlaid nomination of a candidate could not declare the election of joint candidates as a whole void. 9. Mr. Najamul Hassan Kazami, learned Advocate Supreme Court appearing on behalf of Malik Abdul Wahid and Mian Muhammad Rashid, respondents Nos.2 and 3 in C.A. No,583 of 2002 and appellants in C.A. No,592 of 2002, has contended that the above-named respondents being contestants in the run off election, would be entitled to be declared elected but the Tribunal without adhering to the correct legal position and exercising the jurisdiction in proper manner, directed for holding the fresh election. The learned counsel added that the disqualification of Sardar Muhammad Shoab to contest the election was not unknown and the voters despite having the knowledge of his disqualification, voted for him, therefore, their right of franchise would not be prejudiced and in any case the respondents have been wrongly denied the legitimate right of representation of the constituency. 10. Mr. Kamal Azfar, Advocate Supreme Court, learned counsel for the appellants in C.A. No,751 of 2002 has contended that the appellants being joint candidates in the election were unseated in the election petition filed by the defeated candidates on the ground that Zubair Ahmed Chandio appellant No, 1, being the bank defaulter was not qualified to contest the election and that the Tribunal while declaring the election of appellants void, declared the next panel securing second position in the election successful. Learned counsel argued that no doubt appellant No,1 was extended financial facility by the Habib Bank Limited but he was not adjudged as willful defaulter for non-payment of loan in terms of agreement rather the bank obtained an ex parte decree against him on technical ground which would not be an evidence of wilful default and in any case the appellant having discharged his liability in full and final settlement of the outstanding dues much before the nomination day obtained a clearance certificate from the bank. The learned counsel submitted that on the satisfaction of ex parte decree, the alleged disqualification if any, would automatically disappear, but the Tribunal by misconstruing the provisions of section 16 of the Sindh Local Government Election Ordinance, 2000 read with rule 16(3)(ii) and rule 18 of the Sindh Local Government Elections Rules, 2000, de-seated the appellants and further the learned Judges in the High Court by upholding the view taken by the Tribunal, in the Constitution petition committed the same illegality. The learned counsel next argued that in a case in which the disqualification of a candidate was not known by the voters cannot be defeated by throwing away their votes, therefore, the next panel securing highest votes in the election could not be declared elected. The learned counsel emphasized that after the election, the rule of rejection of nomination of the joint candidates as a whole on account of the disqualification of a candidate in the panel
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would no more be enforceable, therefore, the order of declaring the election of joint candidates as a whole void, would be illegal and without jurisdiction. 11. Allah Baksh appellant No,2 in Civil Appeal No,1191 of 2002 alongwith his joint candidate was de- seated by theTribunal in an election petition on the ground that he was guilty of concealment of certain properties owned by him in the schedule of assets attached with his nomination papers and in consequence thereto, he earned a disqualification under section 14(1) of the Punjab Local Government. Elections Ordinance, 2000 read with rule 16(4) of the Elections Rules, 2000 to contest the election and hold an elective office in the local bodies. Mr. Amir Alam Khan, Advocate Supreme Court, learned counsel for the appellant has contended that the objection relating to the concealment of the assets in the declaration of assets was not raised during the scrutiny of nomination papers or at any subsequent stage till the completion of process of election and for the first time, it was…
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