' The brief facts out of which the present writ petition arises are that petitioners and respondents Nos.2 and 3 contested election for the posts of Nazim and Naib Nazim respectively from Union Council No,147 Jia Bagga, Nishtar Town, Lahore, which were held under the provisions of the Punjab Local Government Elections Ordinance, 2000 and rules framed thereunder on 2-7-2001. The petitioners were declared as returned candidates by respondent No,4 on 6-7-2001. Respondents Nos.2 and 3 being aggrieved filed election petition under Rule 70 of the Punjab Local Councils Elections Rules, 2000 before the Election Tribunal, Ferozewala District Sheikhupura on the ground that petitioners were the contractors of the District Council, Lahore for which the election was being held and both were contesting elections for the same District Council where they were running contracts and they received part payment of the said contract prior to the elections and after the elections they also received their bills, therefore, petitioners are not qualified to contest the elections of the posts in question by virtue of section 152(1)(o) of the Punjab Local Government Ordinance, 2001 read with section 14(o) of the Punjab Local Government Elections Ordinance, 2000.
The petitioners filed written statement, controverted the allegations levelled in the election petition.
Out of the pleadings of the parties, the learned Election Tribunal framed the following issues:--
(1) Whether this Court has got no jurisdiction to entertain and adjudicate this election petition? OPR
(2) Whether the petitioner has not served the copies of the petition prior to its institution, if so, what is the effect of non-fulfillment of mandatory requirements? OPR
(3) Whether the petition is not maintainable in its present form and the same is barred by iaw? OPR
(4) Whether the petitioners are estopped to file this petition in view of their own words and conduct? OPR
(5) Whether the petitioners have waived their right of filing election petition? OPR
(6) Whether the notification of returned candidate has not been challenged by the petitioner, as such, the instant petition is not competent? OPR
(7) Whether the contents of the election petition and Annexures are not verified on oath? OPR
(8) Whether the election of respondents Nos.1 and 2 is liable to be declared as void and the petitioners deserve to be declared as elected/returned candidates? OPA
(9) Whether the petition is based upon mala fide and ulterior motive, as such to what extent the respondents are entitled to secure compensatory cost from the petitioners? OPR
(10) Relief.
2. The learned Election Tribunal accepted the election petition vide judgment, dated 24-12-2003.
The election of the petitioners was declared void and a letter in this regard was also sent to the Provincial Election Commission, Punjab, Lahore for de-notification of the petitioners and also directed the Provincial Election Commission to issue Notification of respondents Nos.2 and 3 as Nazim and Naib Nazim respectively. The petitioners being aggrieved filed this writ petition.
3. The learned counsel of the petitioners submits that petitioners were contractors of the District Council, which was constituted under the provisions of the Punjab Local Government Ordinance.
1979, which was repealed by virtue of section 196 of the Punjab Local Government Ordinance, 2001:- - ' "All Metropolitan Corporations, Municipal Corporations. District Councils, Municipal Committees, Town Committees, and Union Councils, created under the provisions of the Punjab Local Government Ordinance, 1979 shall stand dissolved automatically by virtue of section 196 of the Punjab Local Government Ordinance, 2001."
' Therefore, Election Tribunal erred in law to accept the election petition of the respondents. He further submits that the word used by the Legislature in its wisdom in section 152 of the Punjab Local Government Ordinance, 2001 or section 14(o) of the Punjab Local Government Elections Ordinance, 2000 clearly envisaged that the petitioners do not engage in any transaction involving pecuniary interest with the Local Government of which they are members. The petitioners are not contractors of the same Local Government, therefore, finding of the Election Tribunal on Issue No,8 is result of misinterpretation of the aforesaid provision of law. He further submits that election petition rules were framed under the provisions of the Punjab Local Government Elections Ordinance, 2000 according to which it is the duty and obligation of respondents Nos.2 and 3 to send copy of the election petition through registered A.D. Post by virtue of Rule 71 of the Punjab Local Government Election Rules, which was not complied with by respondents Nos.2 and 3, therefore, Election Tribunal erred in law to decide Issue No,2 against the petitioners which is not in consonance with the evidence on record in the shape of oral or documentary evidence coupled with the fact that respondents failed to rebut the evidence of the petitioner. In support of contention, he relied upon Abdul Aziz Khan v. Abdur Rehman and others PLD 1985 Lah. 203 and Election Petition No,13 of 2002 decided by Election Tribunal vide judgment dated 8-9-2003. He further urges that Election Tribunal erred in law to declare respondents Nos.2 and 3 as returned candidates. He further urges that disqualification of the petitioners is not notorious but the learned Election Tribunal erred in law to declare respondents Nos.2 and 3 as returned candidates.
4. The learned counsel of the respondents submits that petitioners are contractors of the same Local Government as is evident from Exh.P.2 to Exh.P.11 attached with the Constitutional petition at pages 42 to 62. The Election Tribunal after proper appreciation of evidence has given finding of fact against the petitioners that petitioners are contractors of the same Local Government which is in consonance with section 2(6) and section 2(12) of the Punjab Local Councils Elections Ordinance, 2000 read with section 196 of the Punjab Local Government Ordinance, 2001. He further submits that petitioners have not taken a ground before the Election Tribunal in their written statement as well as in the contents of the Constitutional petition that disqualification of the petitioners is not notorious, therefore, petitioners should not be allowed to raise this plea during the arguments. He further submits that jurisdictional defect was not pointed out by the learned counsel of the petitioners in the judgment of the Election Tribunal. In support of his contention, he relied upon the following judgments:-- ' Muhammad Rafique alias Titai v. The State PLD 1974 SC 65 and Muller and Phipps (Pakistan) Ltd. v.
District Magistrate, Karachi and 4 others PLD 1974 Kar.
261.
' He further submits that sufficient material is available on the record in the portion of the cross- examination of R.W.1 Muhammad Younas petitioner No,1, which clearly reveals "that the disqualification is notorious, therefore, law laid down by the Honourable Supreme Court in the following judgments is not attracted:-- ' Rashid Ahmad Rehmani v. Mirza Barkat Ali and others PLD 1968 SC 301 and Syed Saeed Hassan v.
Pyar Ali and 7 others PLD 1976 SC 6.
' He further submits that this Court has no jurisdiction to substitute its own findings in, place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution. In support of his contention, he relied upon Akbar Ali v. Razi-ur-Rehman Khawaja and others PLD 1966 SC 492.
5. The learned counsel of the petitioners in rebuttal submits that learned Election Tribunal closed the right of cross-examination vide order, dated 31-7-2003. In spite of the fact that the learned counsel of the petitioners had already secured general adjournment from the Honourable Senior Puisne Judge of this Court for the purpose to perform Hajj. He further submits that Election Tribunal erred in law not to allow the petitioners to produce their evidence vide interim order, dated 24-9- 2003. He further submits that this Court has ample jurisdiction to do justice between the parties while exercising powers under Article 199 of the Constitution. The learned Election Tribunal did not give single reasoning in the last concluding para. Under the heading relief and declared respondents Nos.2 and 3 as returned candidates, which is not in consonance with the law laid down by the superior Courts, therefore, this Court has ample power to grant relief to the petitioners even if the ground was not taken by the petitioners in the contents of the Constitutional petition. He further submits that petitioners have taken a specific ground (a) which is to the following effect:-- "(a) The impugned judgment has been rendered in complete oblivion of the facts and circumstances of the case. The same is, therefore, not sustainable."
' Read with ground (1) which is as under:- ' "The impugned judgment is manifestly unjust and improper. The same is, therefore, liable to be set aside in exercise of Constitutional jurisdiction of this Honourable Court."
6. I have given my anxious consideration to the contentions Of the learned counsel of the parties and perused the record.
7. It is admitted fact that Election Tribunal has given finding of fact after proper appreciation of evidence on Issue No,9. I have also examined the record specially Exhs.P.2 to P.11 which are at pages 42 to 62 of the writ petition read with evidence of R.W.1 Muhammad Younas petitioner No,1, which is in consonance with the evidence on record, therefore, I am not inclined to interfere in the finding of fact arrived by the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:-- ' M. Massadaq Naseem Sindhoo's case PLD 1973 Lah. 600; Syed Azmat Ali's case PLD 1964 SC 260; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572 and Export Promotion Bureau v.
Qaiser Shafiullah 1994 SCMR 859.
' Similarly, I am not inclined to interfere qua the finding of the Tribunal below on Issue No,2. The learned Election Tribunal granted the relief to respondents Nos.2 and 3 in the impugned judgment in para. 15 in the following terms:-- ' "As a result of the above discussion, the titled petition is accepted. The election of respondent No,1 Muhammad Younis son of Sardar Muhammad as Nazim and respondent No,2 Muhammad Salem son of Chao Khan as Naib Nazim is declared void. A letter in this regard be written to the Provincial Election Commission, Punjab, Lahore, for de-notification of above said Nazim and Naib Nazim of Union Council No,147 Jia Bagga, Nishtar Town, Lahore. This issue is also decided in favour of the petitioners who claim their election as Nazim and Naib Nazim and the Provincial Election Commission, Punjab, Lahore is directed to issue notification as required by law."
The only question remains to be decided in view of the aforesaid circumstances between the parties whether the Election Tribunal was justified to declare respondents Nos.2 and 3 as returned candidates or not in terms of the provisions of the Punjab Local Government Election Ordinance, 2001 and election petition rules framed thereunder. It is better and appropriate to mention that petitioners secured 5225 votes while respondents Nos.2 and 3 secured 486 votes. In order to answer this question, the Tribunal had to be satisfied that the disqualification of the petitioners was no notorious that it was known to every voter in the Constituency in question. The Courts in England have laid down remarkable tests for applying the principle of throwing away of votes. These tests were summerised in paragraph 549 of the Halsbury's Laws of England, Vol. 14 which reads as under:-- "549. Votes given to a disqualified candidate.--- Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away or being in alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an pffice of profit under the Crown. If, however, the disqualification is not notorious and depends on legal arguments or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election.
' This question has also been fully discussed in Re: Bristol South East Parliamentary Election (1961) 3 All ELR 354.
' The aforestated views were approved by the Supreme Court in Rashid Ahmad v. Barkat Ali PLD 1968 SC 301 and was reiterated in Saeed Hassan v. Pyar Ali PLD 1976 SC 6. Speaking for the Bench his Lordship Muhammad Afzal Cheema, J. Said:-- ' "The well-known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
' The aforesaid principle was reaffirmed by the Honourable Supreme Court in Elahi Bukhsh's case PLD 2003 SC 268. The relevant observation is as under:-, ' "Having heard the learned counsel for the petitioner we are of the view that a case for interference is not made out. The impugned judgment is based on the principle laid down by this Court in the case of Rashid Ahmad Rehmani (supra) that where the factum of disqualification is not notorious at the time of polling, the votes secured by the successful candidate cannot be thrown away and the candidate securing next highest votes cannot be declared elected. The dictum was reiterated in several oft-quoted cases decided by this Court. In Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409 it was held that if disqualification of successful candidate is not notorious the votes polled in his favour cannot be thrown away by giving seat to the candidate with next highest number of voters. Similar observations were made in Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 with reference to parameters of notoriety of disqualification of a returned candidate highlighted in paragraph 549 of Halsbury's Laws of England, Volume 14. In Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698 the following observations were made in this context:-- ' "This Court has, in a series of cases, consistently held that where an Election Tribunal finds that a candidate who secured a Majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of this disqualification; the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the decisions of this Court in such a situation the election as a whole must be set aside and a re-election ordered."
' Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence which is lacking in the present case. There is yet another circumstance which goes a long way to show that the disqualification of the respondent was not notorious. The material on record makes it manifest that at the time of scrutiny of the nomination papers of the respondent no objection was raised against his candidature. Consequently, the petition is dismissed and leave refused."
' It is pertinent to mention here that learned Election Tribunal while granting relief to respondents Nos.2 and 3 to the extent of declaring them as returned candidates did not give any reason as is evident from the aforesaid paragraph 15 of the impugned judgment. After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the statutory authorities to give reasons at the time of deciding the controversy between the parties as the law laid down by the Honourable Supreme Court while interpreting section 24-A in the General Clauses Act in Messrs Airport Support Service's case 1998 SCMR 2268 and 'Zain Yar Khan's case 1998 SCMR '2419. It is duty and obligation of the Election Tribunal to grant relief to the respondents qua declaring them as returned candidates in accordance with law as the law laid down by the Honourable Supreme Court in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447. The word "law" is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts as the word "law" in the aforesaid term is interpreted by the Superior Courts in the following judgments:-- ' Ch. Manzoor Elahi v. Federation of Pakistan PLD 1-975 SC 66, Government of West Pakistan v.
Begum Agha Abdul Karim Sorish PLD 1969 SC 14 and Ch. Zahoor Elahi v. Secretary to - Government PLD 1975 Lah.
499.
' The learned Election Tribunal granted the relief to respondents Nos.2 and 3 to the extent of declaring them as returned candidates in violation of the law laid down by the superior Courts in the aforesaid judgments. It is settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution whereas the judgment of this Court is binding on each and every organ of the State by virtue of Article 201 of the Constitution. The contentions of the learned counsel of the respondents that petitioners have not taken a specific ground, has no force in view of ground (a) and (1) which have already been reproduced, above in the narration, of the arguments of the learned counsel of the petitioners.
8. Guided by the above principle, I have no hesitation in coming to the conclusion that the principle of throwing away votes cannot be applied in the circumstances of the instant case and respondents Nos.2 and 3 cannot be declared as successful candidate in place of the petitioners, therefore, to this extent, election petition is accepted. The Provincial Election Commission, Punjab, Lahore, is directed to hold fresh election qua the post of Nazim and Naib Nazim in the Union Council No,147 Jia Bagga, Nishtar Town, Lahore.