' I intend to decide the following Constitutional petitions by one consolidated judgment having similar facts and law and arising out of the same proceedings and the impugned orders being the same:--
(1) Writ Petition No,13930 of 2003.
(2) Writ Petition No,14206 of 2003.
2. The brief facts out of which the aforesaid Constitutional petitions arise are that petitioners and respondents Nos.3 to 7 in Writ Petition No,13930 of 2003 contested the elections as Nazim and Naib Nazim respectively from Union Council No,128, Nishtar Town, Lahore.' The petitioners were declared as returned candidates. Respondents Nos.3 and 4 filed election petition before the Election Tribunal under rule 70 of the Punjab Local Government Elections Rules, 2000 on 6-82001. The petitioners filed written statement and controverted the allegations levelled in the election petition. Out of the pleadings of the parties learned Election Tribunal framed the following issues:--
(1) Whether this petition is not maintainable in its present from? OPR
(2) Whether the petitioners have not come to the Court with clean hands? OPR
(3) Whether this petition has been filed with mala fide intention and to harass the respondents who are entitled to special costs? OPR
(4) Whether the declaration of assets submitted by respondent No,1 was absolutely false and was not in accordance with the provisions of sub-rule (4) of rule 16 of the Punjab Local Government Elections Rules, 2000? OPA.
(5) Whether respondent No,1 was not qualified to contest election? OPA
(6) Whether the election of respondents Nos.1 and 2 is void and of no legal effect? OPA
(7) Whether the petitioners deserve to be declared as elected/returned candidates? OPA
(8) Relief.
3. Learned Election Tribunal accepted the election petition to the extent of Riffat Ullah Khan (petitioner in Writ Petition No,18930 of 2003) and found that his nomination papers as candidate for Nazim were invalid in terms of section 14(1) of Punjab Local Government Elections Ordinance, 2000.
Copy of the order was forwarded to the Provincial Election Commissioner, Lahore for issuance of notification. The Provincial Election Commissioner, Punjab issued a Notification on 29-9-2003 and notification of petitioners as returned candidates dated 7-7-2p01 was rescinded. Respondent No,3 filed application under section 152, C.P.C. For correction of the judgment dated 24-9-2003 and issuance of fresh notification which was accepted by the Election Tribunal vide order dated 2-10- 2003. A copy of the said order was sent to the Provincial Election Commissioner, Punjab, Lahore on 2-10-2003 to issue a notification of respondent No,3, Dr. Chaudhry Amjad Mustafa as elected Nazim of Union Council in question. The petitioners being aggrieved filed aforesaid writ petitions.
4. Learned counsel of the petitioners submits that /Election Tribunal modified the order/judgment dated 24-9-2003 vide order dated 2-10.2003 without issuance of notice to the petitioners.
Therefore, Election Tribunal erred in law to modify the judgment dated 24-9-2003. He further submits that judgment dated 24-9-2003 is result of misreading and non-reading of the record. He further submits that Election Tribunal has no power of review under the law. Therefore, impugned order dated 2-10-2003 is not sustainable in the eyes of law. He further urges that application under section 152, C.P.C. Filed by respondent No,3 was not maintainable as the Election Tribunal has decided the matter under a special law wherein powers of review has not been specifically conferred to the Election Tribunal. He further submits that Election Tribunal was constituted under the old Rules which were subsequently repealed. Therefore, judgment of the Election Tribunal is not sustainable in the eye of law.
5. Learned counsel of respondent No,3 raised a preliminary objection that service of respondents Nos.2, 4 to 7 has not been effected. Therefore, constitutinal petitions cannot be heard. He further submits that learned counsel of the petitioners failed to attach evidence of the parties alongwith the Constitutional petitions, therefore, learned counsel of the petitioners failed to point out that judgment of the Election Tribunal is result of misreading and non-reading of the record. He further submits that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution. He further submits that petitioners have no locus standi as the Election Tribunal has not decided the case against the petitioner Amir Nisar Khan and petitioner Riffat Ullah Khan has concealed the material facts in his nomination papers as is evident from the impugned judgment. Therefore, petitioner Riffat Ullah Khan has not approached this Court with clean hands. He further submits that after declaration of petitioner Riffat Ullah Khan's election as void vide impugned judgment dated 24-9-2003. Therefore, he ceases to have locus standi to assail the subsequent order of Election. Tribunal dated 2-10- 2003. He further submits that no prejudice is caused to the petitioners by their non-hearing by the Election Tribunal. He further urges that principle of natural justice is not Attracted in this case. He further submits that Election Tribunal has decided Issues Nos.6 and 7 together but the learned Election Tribunal by accidental omission did not grant the relief to respondents No,3 as returned candidate in place of the petitioner which relief is consequential in nature. Therefore, /impugned order dated 2-10-2003 is valid. He further submits that application under section 152, C.P.C. Was maintainable before the Election Tribunal in view of ingredients of section 152, C.P.C. He further urges that principles of C.P.C. Are applicable in the proceedings before the Election Tribunal in view of sections 4, 94 and 141, C.P.C. He further submits that petitioner Riffat Ullah Khan approached this Court with unclean hands and is facing allegations of corruption, forgery and misappropriation of public funds as is evident from Annexures R/1 to R/2 attached with the written statement. He further submits that petitioner Riffat Ullah Khan approached this Court with unclean hands as is evident from Annexures R/3 and R/4 attached with the written statement. He further submits that respondent No,3 was declared as returned candidate on 3-10-2001 by the Returning Officer having secured 4138 votes as is evident from the result-sheet and other anenxures attached with the written statement as R/5 to R/9. He further submits that the petitioner has not filed replication, therefore, the petitioner cannot wriggle out from the assertions and pleas taken by respondent No,3 in his written statement. He summed up his arguments that the Election Tribunal has not given any relief against petitioner Amir Nisar Khan, therefore, he has no locus standi to file Constitutional Petition. No,14206 of 2003 against the impugned orders of Election Tribunal.
6. Learned counsel of the petitioner in rebuttal submits that learned Election Tribunal has passed the judgment under rules 80 and 81, therefore, it was not justified to reverse the judgment through an application filed by respondent No,3 under section 152, C.P.C. Specially in the circumstances when the judgment of the Election Tribunal has already been implemented. The petitioner Riffat Ullah Khan is aggrieved person and is a party in the proceedings since the election petition was filed by respondents Nos.3 and 4 against the petitioners before the Election Tribunal. He further submits that Election Tribunal has not debarred Riffat Ullah Khan to contest fresh election. He summed up his arguments that Election Tribunal has no lawful authority to entertain the application under section 152, C.P.C. Specially in the circumstances when the rights of third party have accrued in view of judgment of the Election Tribunal dated 24-9-2003.
7. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
8. The Election Tribunal has given finding of fact against the petitioner Riffat Ullah Khan in its judgment dated 24-9-2003 after proper appreciation of evidence, therefore, this Court has no jurisdiction to substitute its own finding in place of the finding of 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:-- ' Musaddaq's case PLD 1973 Lahore 600.
' Syed Azmat Ali's case PLD 1964 SC 260.
' It is pertinent to mention here that Election Tribunal after proper appreciation has given finding of fact against the petitioner that petitioner concealed the assets owned by him and his wife while submitting his declaration of assets alongwith the nomination papers. Therefore, impugned judgment is in accordance with the mandate of section 14(I) of the Punjab. Local Government, Election Ordinance, 2000 which is in accordance with law laid down by the Full Bench of this Court in Writ Petition No,16723 of 2002 vide judgment dated 14-9-2002. It is appropriate to reproduce basic facts to resolve the controversy between the parties qua the order of the Election Tribunal dated 2-10-2003:--
(I) Election Tribunal accepted the election petition vide judgment dated 24-9-2003.
' Copy of the said judgment was sent by him to the Provincial Election Commissioner, Punjab, Lahore.
(iii) Provincial Election Commissioner, Punjab, Lahore issued notification dated 29-9-2003 in obedience of the judgment of the Election Tribunal dated 24-9-2003.
(iv) Respondent No,3 alone filed application under section 152, C.P.C. For correction of judgment dated 24-9-2003 which was allowed vide impugned order dated 2-10-2003.
(v) Election Tribunal sent a copy of the order to the Provincial Election Commissioner, Punjab, Lahore vide letter dated 2-10-2003 under the heading "Amended request of issuarce of notification regarding Nazim of Union Council. No,128, Lahore vide my judgment dated 24-9-2003 rectified vide order dated 2-10-2003.
(vi) The Election Commission issued revised notification on 3-10-2003.
(vii) Respondent No,3 submitted joining report on 4-10-2003. In case the aforesaid facts are put in a juxtaposition then it brings the case in the area that Election Tribunal exercised discretion while accepting the application of respondent No,3 without application of mind and without issuance of notice to the parties in the election petition and the impugned order does not contain any reason.
It is the duty and obligation of the public functionaries to decide the controversy between the parties with reasons in view of section 24-A newly-added in General Clauses Act. As the impugned order does not contain reasons therefor, the same is not sustainable in the eye of law as the law laid own by the Honourable Supreme Court in Maula Ejahar Ali v. Government of East Pakistan PLD 1970 SC 173. The impugned order is also passed by the Election Tribunal in violation of the principle of natural justice. Therefore, the same is not in accordance with the law laid down by the superior Courts as the vested right has accrued to the voters of the area and the parties in the proceedings.
Therefore, impugned order is not sustainable in the eye of law keeping in view the special circumstances of this case as the judgment of the Election Tribunal was implemented by the Provincial Election Commissioner, Punjab, Lahore vide notification dated 29-9-2003.
9. In view of the "aforesaid circumstances the writ petitions to the extent of judgment of the Election Tribunal dated 24-9-2003 are dismissed. However, impugned order dated 2-10-2003, as mentioned above, has been passed by the learned Election Tribunal in violation of principle of natural justice and without application of mind, therefore, Constitutional petitions to the extent of order dated 2-10-2003 are accepted and the said order dated 2-10-2003 is set aside. Meaning thereby that the application filed by respondent No,3 shall be deemed to be pending adjudication before the Election Tribunal. The parties are directed to appear before the Election Tribunal on 18- 12-2003 who is directed to decide the application of respondent No,3 as early as possible without being influenced by the observations of this Court, strictly in accordance with law. The parties are directed to cooperate with the Election Tribunal so that the application may be finalized by the learned Election Tribunal as expeditiously as possible. In case the parties fail to cooperate with the learned Election Tribunal then learned Election Tribunal is directed to invoke the penal provisions qua the inaction of the parties which would be hindrance to decide the application of respondent No,3.
10. Now I would like to decide the preliminary objections raised by the learned counsel of respondent No,3 that Constitutional petition cannot be heard in absence of the service of the remaining respondents. This objection has no force; firstly that respondents Nos.4 to 7 are pro forma respondents and secondly that no relief has been claimed against them by the petitioners.
The second objection qua the locus standi of the petitioners has also no force as the petitioners are already parties in the proceedings since the filing of the election petition by respondents Nos.3 to 4 before the Election Tribunal against the petitioners coupled with the fact that learned Election Tribunal has not debarred the petitioner Riffat Ullah Khan to participate in the fresh election qua the office in question. Therefore, the petitioners have locus standi to file Constitutional petitions as per principle laid down by the Honourable Supreme Court in Fazal Din's case PLD 1969 SC 223.
' With these observations, the writ petitions are disposed of.