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Petitioner: Ch. MAQBOOL AHMAD and others VS Respondent: Malik FALAK SHER FAROOQA
Court Name: Lahore High Court Judge(s): Tasaddaq Hussain Jillani Title:Ch. MAQBOOL AHMAD and others vs Malik FALAK SHER FAROOQA,
JUDGMENT
Reported As: PLD 2003 Lahore 138 Result: Petitions allowed Judgment JUDGMENT This judgment shall dispose of the following Constitutional petitions as almost similar questions of law have been raised:-- (I) W.P. No, 9834 of 2002 (1) Ch. Maqbool Ahmad, (2) Mehr Ali v. Malik Falak Sher Farooqa, AD&SJ, Toba Tek Singh/Election Tribunal, Faisalabad etc.). (II) W.P. No, 9338 of 2002 (1) Muhammad Nauman Butt. (2) Muhammad Usman Mirza v. The D&SJ, Hafizabad/Election Tribunal for District Gujranwala etc.). (III) W.P. No, 8752 of .2002 (1) Muhammad Saood Hussain, (2) Allah Dad v. The D&SJ, Faisalabad/Election Tribunal, District Jhang etc.). (IV) W.P. No, 9923 of 2002 (Babar Javed Butt v. The D&SJ/Election Tribunal, Hafizabad etc.). (V) W.P. No, 9029 of 2002 (1) Muhammad Abbas Ansari, (2) Rana Mehboob Alam v. Election Tribunal UC No,88/40 City Gujranwala/Election Tribunal etc.), and (VI) W.P. No, 9004 of 2002. (1) Javed Iqbal, (2) Rana Muhammad Ashraf v. Election Tribunal, Okara etc.). 2. Facts briefly stated are as under:-- WRIT PETITION NO.9834 of 2002 Petitioners Nos.1 and 2 contested the election of Local Bodies on 31-5-2001 and were returned against the seats of Nazim and Naib Nazim of Union Council No,179-Faisalabad, respectively. The election of petitioner No,1 was challenged before the Election Tribunal on the grounds that he was not Matriculate. There was no allegation against petitioner No,2. The Election Petition was allowed vide order dated 2-5-2002 by the learned Election Tribunal, Toba Tek Singh and it was held that
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since the-petitioner was not eligible to contest the election, candidature being joint, the entire election would be void and fresh elections were directed to be held. This Constitutional petition, to the extent of petitioner No,1 was dismissed in limine and qua petitioner No,2 notice was issued. WRIT PETITION NO.9338 OF 2002 The petitioners in this case contested election for the seats of Nazim and Naib Nazim of Union Council No,45/9-Urban City Gujranwala. Respondents Nos.2 and 3 filed Election Petition challenging election of petitioner No,2 on the grounds that his matriculation certificate tendered atthe time of submission of nomination papers was bogus. Vide judgment dated 11-5-2002 passed by the learned Election Tribunal for District Gujranwala it was held that petitioner No,2, namely, Muhammad Usman Mirza did not possess the requisite 'qualification of Matriculation, the certificate was fictitious and since it was a joint candidature, the election of petitioners Nos.1 and 2, as a whole, was declared-void. WRIT PETITION NO.8752 OF 2002 Petitioners contested election for the seats of Nazim and Naib Nazim of Union Council No,72-Kot Shakir, Jhang. They were returned successful. This election was challenged on the grounds that petitioner No,2 (Allah Dad) was not Matriculate. Vide the impugned judgment dated 18-5-2002 passed by the learned Election Tribunal for District Jhang, allowed the Election Petition on the grounds that the Matriculation Certificate produced was fake and since it was a joint candidature, the entire election was declared void. WRIT PETITION NO.9923 OF 2002 In this case Muhammad Arshad and petitioner Babar Jameel contested for the seats of Nazim and Naib Nazim respectively. Petition filed against Muhammad Arshad alleging that he suppressed his assets, was allowed and the election, as a whole, was declared void. Arshad filed W.P. No,9860 of 2002 which was dismissed on 16-6-2002. August Supreme Court has suspended it in C.A. No,884 of 2002 learned counsel for respondent concedes that the judgment of this Court stands suspended. WRIT PETITION NO.9029 OF 2002 Petitioners contested Local Bodies Elections and were returned as Nazim and Naib Nazim of Union Council No,86/50, Gujranwala City. Their election was challenged inter alia on the grounds that petitioner No,2 (Mehoob Alam) was less than 25 years of age at the time of filing of the nomination papers, therefore, he was not qualified to contest the election. This Election Petition was allowed vide judgment dated 14-5-2002 passed by the learned Election Tribunal and since the candidature was joint the election, as a whole, was declared void. WRIT PETITION NO.9004 OF 2002 Both the petitioners contested for the seats of Nazim and Naib Nazim of Union Council No,24 Phoolnagar-1 they were returned, Election Petition was filed and was allowed vide judgment dated 17-5-2002 passed by the learned Election Tribunal and was held that petitioner No,2, namely Muhammad Ashraf had transferred his six feet privately owned land to widen the thoroughfare, to the residents of the locality and that petitioner No,1 was signatory to the said transaction and both were thereby guilty of corruptpractice within the meaning of rule 81 of the Punjab Local Government Election Rules,, 2001, as this amounted to bribing the voters. 3. Learned Counsel for the petitioners in Writ Petition No,9834 of 2002 (Rana Muhammad Arshad Khan, Advocate) adopted the arguments of Dr. Mohayyudin Qazi, Advocate/learned counsel for petitioners in W.P. No,8752 of 2002 while learned counsel for the respondents (Mr. Muhammad Ahsan Bhoon, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate (learned counsel for respondents in W.P. No,9338 of 2002. 4. Learned counsel for the petitioners in Writ Petition No,9338 of 2002 (Rana Mashhood Ahmad Khan, Advocate) adopted arguments of Dr.Mohayyudin Qazi, Advocate/learned counsel for petitioners in W.P. No,8752 of 2002.
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Malik Saeed Hassan, Advocate/learned counsel for respondents defended the impugned judgment by submitting that the petitioner No,1 was not a Matriculate, that the election petition filed against him was rightly allowed and since they were joint candidates and it was a joint election, ,the election of both the petitioners has been validly annulled. Explaining the concept of joint candidacy he argued that by a legal fiction, the election of two persons has been classified as one election and if any one of the two returned candidates is declared disqualified to contest the election and the petition is allowed against him on any of the grounds enumerated in law it would hit his co-candidate who won the election alongwith him. According to him, the concept of joint candidacy would be relevant till the election process is over. An election petition, he further added, is part of the election process and the concept of joint candidacy would not only be invoked at the time of scrutiny of nomination papers but would continue to hold the field till the final termination of the election process i,e, the decision of the election petition. Referring to Webster's Twentieth Century Dictionary (Second Edition), with regard to the meaning of "joint" he submitted that it is something which is shared by two, and if one sinks, the other also sinks with him. Any other interpretation he lastly contended would be violative of the legislative intent. 5. Learned counsel for the petitioners in Writ Petition No,8752 of 2002 (Dr.M.Mohayuddin Qazi, Advocate) submitted as under:-- (i) That the concept of joint candidature stipulated in section 16 of the Punjab Local Government Elections Ordinance, 2000 is relevant only for the purpose of election and the moment election is over, the returned candidates are independent entities and are liable to be adjudged independently so far as the questions of qualification and disqualifications are concerned. (ii) That in terms of section 18-A of the Punjab Local Government Elections Ordinance, 2000 in the event of a seat having fallen vacant, a bye-election has to be held to the extent of the vacant seat and not on the seat which his co-candidate has been returned. Subsection (2) to section 18-A referred to above, election talks of the election of a Nazim in case a seat becomes vacant and not of a Naib Nazim with it. (iii) That after the election a vested right accrues in favour of the returned candidate and it cannot be taken away be any fault of the co-candidate. (iv) That the Punjab Local Government Elections Ordinance, 2000 was repealed on 2-8-2001, the new law i,e, the Punjab Local Government Elections Ordinance, 2001 (Ordinance XIII of 2001) was promulgated section 152(1)(e) of the Punjab Local Government Ordinance, 2001 read with sections 161 and 169 of the said Ordinance would indicate that an election of a returned candidate cats only be challenged before the Chief Election Commissioner and the respondent Tribunal had no power under the law to annul the election. Learned counsel for the respondents (Mr.Anwar Akhtar, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate for respondents in' W.P. No,9338 of 2002. 6. Learned counsel for the petitioners in Writ Petition No,9923 of 2002 is not present. Learned counsel for the respondents (Syed Zameer Hussain, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate/learned counsel for respondents in W.P. No,9338 of 2002. 7. Learned counsel for the petitioners in Writ Petition No,9029 of 2002 (Dr.A.Basit, Advocate) submitted as under:-- (i) That the concept of swimming and sinking together is relatable to candidacy and after the declaration of result, this concept would not be relevant. (ii) That a reading of various provisions of law would show that the election petition is filed on grounds relatable to individual merit or demerit of a returned candidate. The allegations are specific and there is no provision of law entailing disqualification or annulment of the entire election on the exclusive ground that a member, who got elected with him, incurred any disqualification or was guilty of any illegal practice.
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(iii) That petitioner No,2 (Mehboob Alam) was above twenty-five years of age on the day of filing his nomination papers as his date of birth in terms of the birth certificate was 31-3-1974 and the learned Election Tribunal has erred in law in giving preference to the entries made in the school leaving certificate. (iv) That even the entry made in the school leaving certificate and in the matriculation certificate was correct and the Election Tribunal had no authority in law to interfere with the finding of a Tribunal of a domestic jurisdiction. Learned counsel for respondents (Mr.Asad Manzoor Butt, Advocate), on the other hand, defended the impugned judgment by submitting that the birth certificate did not belong to petitioner No,2, that the finding of the Tribunal does not reflect arbitrariness or jurisdictional defect to warrant interference in the Constitutional jurisdiction of this Court. On the question of joint candidacy, learned counsel adopted the arguments of Malik Saeed Hassan, Advocate/learned counsel for respondents in W.P. No,9338 of 2002. 8. Learned counsel for the petitioners in Writ Petition No,9004 of 2002 (Dr.A.Basit and Ch. Muhammad Afzal Wahla, Advocates) submitted that the lqrarnama (Exh.8/2) vide which the land was voluntarily denoted to the inhabitants of the village for widening the thoroughfare, could not be classified as a corrupt practice or bribery within the ambit of rule 81(2) of the Punjab Local Government Elections Rules, 2001 and that even otherwise any finding against petitioner No,2 could not have the effect of annulling the entire election. Learned counsel for the respondents (Maj.(R) Arshad Melunood, Advocate) submitted that the so- called voluntary donation was an inducement an offer of bribe to the voters, it was made during the election process and the said act falls within the mischief of rules 81 and 82 of the Punjab Local Government Ordinance Elections Rules, 2001. He added that since it was a joint candidature, the finding of corrupt practice against petitioner No,2 would hit petitioner No,1 and the entire election has rightly been declared void. 9. I have heard learned counsel for the parties, learned Law Officer, have gone through the impugned judgments as also the precedent case-law and have given anxious consideration to the contentions raised. 10. Notwithstanding the findings given in the impugned judgments, with regard to the qualification or disqualifications of the co-candidates against whom the election petitions were allowed, the common questions which cropped up for consideration, are as under: (I) Whether the concept of co-candidacy stipulated in section 16 of the Punjab Local Government Elections Ordinance, 2000 would continue to hold the field after the candidates have been returned as Nazim and Naib Nazim and can this principle be invoked to annul the election as a whole if an election petition is allowed against either of them on any ground stipulated in law? (II) Whether the learned Tribunal fell in error in declaring petitioner No,2 as below 25 years of age and thereby ignoring the birth certificate issued by the Municipal Corporation wherein his date of birth is entered as 31-3-1974? (In W.P. No,9029 of 2002). (III) Whether the learned Tribunal rightly declared the Matriculation Certificate of petitioner No,2 (Allah Dad) in W.P. No,8752 of 2002 and petitioner No,2 (Muhammad Usman Mirza, in W.P. No,9338 of 2002 to be fake? (IV) Whether the learned Tribunal correctly interpreted the relevant statutory provisions in holding that the act of petitioner No,2 (and his brother), in surrendering his personal land in favour of the residents to widen the village street amounted to bribery and illegal practice entailing disqualification? (In W.P. No,9004 of 2002). 11. To better appreciate the afore-referred issues, it would be of relevance to quote some provisions of the Punjab Local Government Elections Ordinance, 2002, Rules framed thereunder, Punjab Local
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Government Ordinance, 2001 and the amendments, if any, which have a bearing on the issues raised. 12. The Punjab Local Government Ordinance, 2001 was promulgated on 14th August, 2001. This Ordinance provided for repeal and savings of the old law. Its date of enforcement was qualified in terms of section 1(3) which is as follow:-- "1(3). It shall come into force on the Fourteenth day of August, 2001 except the provisions as contained in section 39(k), Chapter XVII and section 196(1)(ii) of Chapter XIX which shall come into force on such date or dates as the Government may, by notification in the official Gazette, declare." Section 196 of the afore-referred Ordinance reads as under: "196. Repeal and savings.---(1) On commencement of this Ordinance,-- (i) the Punjab Local Government Ordinance, 1979 (VI of 1979) shall be repealed; (ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000), shall be repealed; and (iii) all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979) shall stand dissolved. (2) Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979) and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees: and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under subsection (1), subject to sections 4 and 23 of Punjab General Clauses Act, 1956 (W.P. Act VI of 1956), all rules, regulations and bye-laws made under the repealed Punjab' Local Government Ordinance, 1979 so far those are not inconsistent with the provisions of this Ordinance shall continue to be in force until amended or varied by the competent Authority: Provided that, until otherwise decided by the Government the Local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of 1979), for the administration of officers and officials of the Local Council Service shall continue to function. (3) Notwithstanding the repeal of Punjab Local Government Elections Ordinance, 2000 (V of 2000), all Nazims, Naib Nazims, and members of the local Governments elected under the said Ordinance shall deemed to be have been elected under this Ordinance and shall continue to hold their respective offices till the completion of their terms, unless earlier removed or recalled under this Ordinance." (Underlining is mine). The qualification for candidates and elected members are given in section 14 of the Punjab. Local Government Elections Ordinance, 2000 which stipulates as under: "14. Qualification for candidates and elected members.--A person shall qualify to be elected or hold an elective office or membership of a Local Government, if he-- (a) is a citizen of Pakistan; (b) is at least twenty-five years of age; (c) is enrolled as a voter in the electoral roll of the relevant ward; (d) is of good character and is not commonly known as one who violates Islamic Injunctions; has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins': Provided that these qualifications shall not apply to a person who is a non-Muslim, but such a person shall have a good reputation; (e) has academic qualifications of not less than Matriculation or Secondary School Certificate or equivalent from recognized institution, for contesting the election of a Nazim or Naib Nazim; (t) has not been declared by a competent Court to be of unsound mind; (g) is not in the service of the Federal, Provincial or a Local Government, or, any statutory body or a body which is controlled by any such Government or, in which any of such Government has a
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controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or fee: Provided that in case of a person who has resigned or retired from such service, a period of not less than six months has elapsed since his retirement; (h) has not been dismissed, removed or compulsorily retired from public service on grounds of moral turpitude; (i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his own name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the de facto control of such assets including their sale, transfer or pecuniary interest, is retained by him; (j) has not been adjudged a willful defaulter of any tax or other financial dues owed to the Federal or a Provincial or a Local Government or any financial institution, including utility bills outstanding for six months or more; (k) has not been convicted by a Court of competent jurisdiction on a charge of corrupt practice involving moral turpitude or misuse of power of authority under any law for the time being in force; (1) has not been sentenced to imprisonment for more than three months for an offence under any law and, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment; (m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws; (n) has not been declared an undercharged insolvent by any Court; (o) does not engage in any transaction involving pecuniary interest with the Local Government of which he is a member; (p) does not absent himself without reasonable cause from three consecutive meetings of the Local Government of which he is a member; (q) does not fail to attend a training course when required to do so by law; (r) has not been and is not involved, in activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan and its people, and the good order and harmony of society; (s) has not used for his election the platform, flag, symbol, and financial or material resources or support of a political, religious, ethnic or sectarian party, formation or organization." The concept of joint candidacy is provided in section 16 of the Punjab Local Government Elections Ordinance, 2000 which is as under:- "16. Joint candidacy and elections.---(1) A Zila Nazim and a Naib Zila Nazim or a Town Nazim and a Naib Town Nazim or a Tehsil Nazim and a Naib Tehsil Nazim or a Union Nazim and a Naib Union Nazim shall contest election in their respective wards as joint candidates. (2) The Nazim and the Naib Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates the highest number of votes shall be declared elected. (3) In case a Zila Nazim and a Naib Zila Nazim do not secure majority of the total votes of the members of the Union Councils in the District, there shall be held a fresh election, within one week or the first election, in which the joint candidates for such offices securing the highest and the second highest number of votes shall be contestants, and the joint candidates securing the highest number of votes in the fresh election shall be declared elected." Section 18-A of the Punjab Local Government Elections Ordinance, 2000 provides for election of a candidate in case a member ceases to hold office for one reason or the other. It reads as under:-- "18-A. Causal vacancy.--(1) If the seat of a member becomes vacant during the term of office of a Council, a new member shall be elected through bye-election and such member shall hold office
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for the remaining part of such term. (Underlining is mine): 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: (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." Corrupt practice, bribery, undue influence and illegal practice corresponding penal consequences, have been defined in sections 22, 23, 25 and 26 of the Punjab Local Government Elections Ordinance, 2000 which are reproduced as under:-- Section 22 of the Ordinance mandates as follow:-- "22 Corrupt practice.---A person is guilty of corrupt practice punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both, if he is guilty of bribery, personation of undue influence. Section 23 reads as under:-- "23 Bribery.---A person is guilty of bribery, if he, directly or indirectly, by himself or by any other person on his behalf-- (1) receives, agrees or contracts for any gratification for voting or refraining from voting, or for being or refraining from being a candidate at, or withdrawing or retiring from an election; (2) gives, offers or promises any gratification to any person-- (a) for the purpose of inducting--. (i) a person to be or to refrain from being a candidate at an election; or (ii) a voter to vote, or refrain from voting at any election; or (iii) a candidate to withdraw or retire from an election, or (b) for the purpose of rewarding-- (i) a person for having been or for having refrained from being a candidate at an election; or (ii) a voter for having voted or refrained from voting at an election; or (iii) a candidate for having withdrawn or retired from an election. Explanation.---In this section, gratification included a gratification in money or estimable money and all forms of entertainment or employment for reward." Section 25 ibid is as under:-- "25. Undue influence.--- A. Person is guilty of undue influence, if he-- (1) in order to compel any person to vote, refrain from voting,- or to induce or compel any person to withdraw his candidature at an election, directly or indirectly, by himself or by any other person on his behalf-- (a) makes or threatens to make use of any force, violence or restraint; (b) inflicts or threatens to inflict any injury, damage, harm or loss: or (c) uses any official influence or Governmental patronage.. (2) On account of any person having voted or refrained from voting, or having withdrawn his candidature, does any of the acts specified in clause (1). (3) By abduction, duress or any fraudulent device or contrivance-- (a) impedes or prevents the free exercise of the franchise by a voter; or (b) compels, induces -or prevails upon any voter to refrain from voting or compels any voter to vote.
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Explanation.---In this section, harms includes social ostracism or ex-communication or expulsion from any caste or community." Section 26…
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