In this Constitutional petition, the petitioner has prayed for setting aside judgment, dated 29-8- 2002 passed by respondent No,1 (Election Tribunal/District Judge, Lodhran) whereby election petition filed by Ch. Aftab Ahmad and Muhammad Akmal Bhatti (respondents Nos.2 and 3) against the petitioner and Sohail Ashraf Warraich (respondent No,4) was accepted, election of petition and respondent No,4 was declared void and respondents Nos.2 and 3 were declared to be duly elected as Nazim and Naib-Nazim of Union Council No,5, Bahawalpur.
2. The relevant facts for the disposal of this writ petition are that petitioner and respondents Nos.2 to 10 contested election for Nazim and Naib-Nazim of Union Council No,5, Bahawalpur. The petitioner and Sohail Ashraf (respondent No,4) were joint candidates for Naib-Nazim and Nazim respectively whereas Ch. Aftab Ahmad and Muhammad Akmal Bhatti (respondents Nos.2 and 3) were also joint candidates in the said election. The petitioner and respondent No,4 were declared successful. Ch. Aftab and Muhammad Akmal Bhatti (respondents Nos.2 and 3) filed election petition before respondent No,
1. They mentioned in their application that nomination papers of Sohail Ahmad Warriach and Naveed-ur-Rehman were rejected by Returning Officer on 2-3-2001 whereupon they filed appeal against the said order and the same was dismissed on 9-3-2001. The petitioners filed Writ Petition (No,1146 of 2001) and the same was dismissed on 11-3-2001. They filed Civil Petition for Leave to Appeal No,711 of 2001 before the Honourable Supreme Court of Pakistan and they were allowed to contest election provisionally. During election they secured 1824 votes, therefore, they were elected as Nazim and Naib-Nazim whereas Ch. Aftab Ahmad and Muhammad Akmal Bhatti (respondents Nos.2 and 3) were at No,2 as they secured 993 votes. A notification was accordingly issued. On 11-4-2001 Civil Petition for Leave to Appeal was dismissed by Honourable Supreme Court of Pakistan, therefore, the nomination papers stood rejected and they were not qualified to contest election. The respondents maintained that respondent No,4 and petitioners were not qualified to contest election on the day of filing of nomination papers, therefore, the result was liable to be declared void and notification, dated 28-3-2001 issued by District Returning Officer was liable to be cancelled. They also prayed that they should be declared as elected Nazim and Naib-Nazim of Union Council No,5. The petitioner and respondent No,4 mentioned in their reply that votes received by respondents could not be treated as thrown away votes on the rule of notoriety as voters were not in the knowledge of order, dated 11-4-2001 at the time of election (on 21-3-2001) and that no contesting candidate can take benefit of order of Honourable Supreme Court. After recording evidence learned Election Tribunal accepted the election petition brought by respondents Nos.2 and 3 vide order, dated 29-8-2002. Hence this writ petition.
3. I have heard the arguments and perused the record.
4. As mentioned above Sohail Ashraf Warriach (respondent No,4) and Naveed-ur-Rehman, petitioner secured 1824 votes, therefore, they were declared Nazim and Naib-Nazim. However, respondents Nos.2 and 3 (Ch. Aftab Ahmad and Muhammad Akmal Bhatti) were at No,2 because they bagged 993 votes. Admittedly Sohail Ashraf Warriach, respondent No,4 was allowed to contest election by the Honourable Supreme Court provisionally. His petition (C.P.L.A. No,711 of 2001) was latter on dismissed vide order, dated 11-4-2001. As such learned Tribunal had rightly declared their election as void. According to judgment, dated 24-6-2003 Civil Appeals Nos.583, 592, 751 and 1191 of 2002 were decided by Honourable Supreme Court.
' As per said judgment the candidates on account of their joint candidacy have to per force sink or sail together. Even if one of the two candidates lacks the requisite qualification the other despite having the required qualification will sink alongwith the other candidate on account of joint candidacy. As such learned trial Court had rightly declared the election of the petitioner and his joint candidate respondent No,4 (Nazim) as void.
5. In the aforesaid case Honourable Supreme Court directed that disqualification of returned candidate (respondent in election petition) was not notorious, therefore, votes cast in his favour cannot be treated as thrown away or wasted and ordered that. Fresh election would be held. In this case Ch. Aftab Ahmad appeared in trial Court as P.W.1. His statement reads as under:-- ' "Myself and the petitioner No,2 were candidates for Nazim and Naib-Nazim of Union Council No,5, Bahawalpur City. Respondents Nos.1 to 8 were also contesting candidates for the post of Nazim and Naib-Nazim for Union Council No,5, Bahawalpur. At the time of scrutiny voters of the electoral area Khurshid and Ch. Azhar Ahmad raised an objection on the nomination of respondent Nos.1 and 2 and the Returning Officer was pleased to allow the said objection and rejected the nomination papers of respondents Nos.1 and 2. Thereafter respondents Nos.1 and 2 filed an appeal before the Appellate. Authority against the rejection of their nomination papers, which was dismissed on 9-3- 2001. Thereafter the respondents Nos.1 and 2 invoked the writ jurisdiction of the Honourable High Court by filing Writ Petition No,1146 of 2001/BWP, which was dismissed in limine on 13-3-2001.
Thereafter, the respondents Nos.1 and 2 filed a C.P.L.A. No,711 of 2001 before the august Supreme Court of Pakistan whereupon they were provisionally allowed to participate in the election. The election was held on 21-3-2000 and respondents Nos.1 and 2 were declared returned candidates.
Notification to that effect was issued on 28-3-2001. During civil petition for leave to appeal preferred by respondents Nos.1 and 2, which was ultimately dismissed, vide order, dated 11-4-2001 passed by the august Supreme Court of Pakistan. Since, a notification declaring respondents Nos.1 and 2 as returned candidates had been issued in the meanwhile I made this election petition. The respondents, Nos.1 and 2 also challenged the order dated 11-4-2001 passed by the august Supreme Court of Pakistan and had filed a review petition which too was dismissed, vide order, dated 25-10- 2001. x x x x x by respondent No,2 ' The objector namely Khurshid and Azhar Ahmad are my real brothers. I have secured 993 votes whereas respondents Nos.1 and 2 had secured 1824 votes in the election. The objection regarding disqualification on the ground of default had been raised on respondent No,1 Sohail Ashraf Warriach. Neither me, nor anybody else had raised any such objection on respondent No,2 Naveed-ur-Rehman."
6. So, it is clear from his statement that he did not utter even a single word that disqualification of Sohail Ashraf Warriach, respondent No,4 was known to public/voters of the ward and that disqualification was notorious. The respondent did not examine any other witness in support of their version on the point of notoriety. The respondents have not given even detail as to how and why Sohail Ashraf was disqualified to contest election. During arguments learned counsel for the petitioner disclosed that respondent was found disqualified as he was declared defaulter of a bank. The perusal of impugned judgment shows that learned trial Court did not consider this aspect of the case. It seems that learned Tribunal even did not go through reply of the petitioner and respondent No,4 before deciding the election petition. They had raised this objection in their reply. Learned counsel for the respondents has referred to Exhs.A.9/1 to 4 (News clippings) according to which R.O. And D.R.O. Rejected his appeals. However, thereafter Honourable Supreme Court allowed him to contest the election provisionally. He was declared successful and also took oath. So I find that Exhs.A.9/1 to 4 are not sufficient to declare that his disqualification was notorious.
As such this writ petition is decided in the following manner:--
(i) The judgment of learned trial Court (respondent No,1) to the extent of declaring election of petitioner (Naveed-ur-Rehman) and respondent No,4 (Sohail Ashraf Warriach) as Naib-Nazim and Nazim to be void shall remain in tact.
(ii) The judgment to the extent of declaring respondents Nos.2 and 3 as duly elected as Nazim and Naib Nazim is set aside and it is directed that the vacant seats shall be filled through fresh election.
No order as to costs.