' The brief facts out of which the present writ petition arises are that the 'petitioner and respondents Nos.2 to 14 contested elections as Nazim and Naib Nazim respectively from Union Council No.133, Nishtar Town, Lahore. The petitioner and respondent No.4 were declared returned candidates as Nazim and Naib Nazim from the said Union Council. Respondents Nos.2 and 3 filed election petition before respondent No.1 on the ground that the petitioner has concealed assets of his wife while filing his declaration of assets in Form No.XIX and wilfully omitted to enter the assets of his dependents as required by Rules. Thus the petitioner and respondent No.4 were not competent to contest election as their nomination papers were liable to be rejected. Consequently, respondents Nos.2 and 3 filed election petition before the Election Tribunal under Rule 70 of Punjab Local Government Elections Rules, 2000 with the prayer for declaring the election of petitioner and respondent No.4 as void. The petitioner filed written statement and controverted the allegations levelled in the election petition. Out of the pleadings of the parties following issues were framed:-- ISSUES
(1) Whether the petition is false, vexatious and is liable to be dismissed? OPR
(2) Whether the petitioners have not come to the Court with clean hands? OPR (3)
Whether the petitioners have no locus standi to bring this petition? OPR
(4) Whether the election of respondents Nos.1 and 2 is liable to be declared as illegal and void and the petitioners deserve to be declared as elected/returned candidates? OPA
(5) Relief.
Learned Election Tribunal accepted the election petition vide impugned order dated 25-3-2003.
Hence the present writ petition.
2. Learned- counsel of the petitioner submits that at the time of declaring the assets the petitioner committed a mistake by not declaring the assets of his wife Mst. Shaista Bano and this omission was not wilful. He further submits that it was a bona fide mistake which can be corrected even at this stage as there was no bad intention on the part of the petitioner. He further submits that petitioner and respondent No.4 secured very high votes and respondents Nos.2 and 3 who filed election petition secured very low votes as compared to the petitioner and respondent No.4. He further submits that wife of the petitioner is not dependent upon the petitioner and the Legislature in its wisdom has used the specific phrase "dependent" in section 14(i) of the Punjab Local Government Elections Ordinance, 2000 instead .Of female members. In the modern age female members are also competent to work independently to run their livelihood that is why the word dependent was incorporated in aforesaid section. He further submits that the property of the wife of the petitioner was gifted to her by her parents which is solely in her name so much so the whole family members have their individual properties and is not related to the petitioner whereas the petitioner has no movable and immovable property in his own name. Therefore, the petitioner has not concealed any assets in Form No.XIX with regard to Rule 16(4) of Punjab Local Government Election Rules, 2000. He summed up his arguments that Election Tribunal erred in law not to. Frame the proper issues with regard to the status of wife of the petitioner as to whether the wife of the petitioner is dependent upon the petitioner or not. Therefore, the petitioner is prejudiced by the act of the Tribunal. As such the impugned order is not sustainable in the eye of law.
3. Learned counsel of the respondents submit that the petitioner has not taken ground of attack in written statement that wife of the petitioner was not dependent upon the petitioner as is evident from written statement filed by the petitioner before the Election Tribunal. They further urged that it is admitted by the petitioner that his wife was owner of House No.318-A/1, Township, Lahore. They further urged that this fact was not denied by the petitioner while appearing before the Election Tribunal as R.W.3. They summed up their arguments that petitioner is not qualified to contest the election in terms of section 14(i) read with Rule 16(4) and the Tribunal was justified to declare the election as void by virtue of Rule 18 of Punjab Local Government Election Rules, 2000.
4. Learned counsel of the petitioner in rebuttal submits that wife of the petitioner has secured house in question from her parents, therefore, the petitioner was justified not to mention assets of his wife in his nomination papers but this fact was not considered by the Election Tribunal in its true perspective.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce the relevant provisions of the aforesaid Ordinance and Rules framed thereunder to resolve the controversy between the parties:-- Section-14 Qualification for candidates and elected members:-- A person shall qualify to be elected or to hold an elective office or membership of a local Government, if he,--
(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 persons or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the defacto control of such assets including their sale, transfer or pecuniary interest, is retained by him; ' Punjab Local Government Election Rules, 2000. 16 ' Nomination for Elections:- (0 (1 (2 (3 Every nomination paper shall be accompanied by a declaration of assets of the candidate in Form-XIX, which shall be open to inspection by every voter of the local area concerned. {{TABLE}} FORM XIX [See Rule 16(4)] Declaration of Assets s/o Candidate as of______________ do hereby solemnly (Category of seat) (name of council) declare that no movable property or Immovable property, land, shares, certificates, securities, insurance policies, jewellry and motor vehicles are held by me or any member of my family dependent upon me except as below:-- Sr. Description Name Relation Value of Date and Net No. Of property of ship with property manner yearly & location owner declarant of income acquiring from property Remarks {{TABLE}} Signature of Declarant Categories of Seats (4 Muslims (5 Muslims (Women)
(6 Peasants/Worker (7 Peasants/Worker (Women)
(8 Minority candidates (9 Nazim and Naib Nazim Election Disputes
72. (ii) Full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full as possible a statement of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(2) A petitioner may claim as relief any of the following declarations, namely:-- (10 that the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or (11 that the election as a whole is void.
80. Decision of the Tribunal The Tribunal may upon the conclusion of the trial of an election petition make an order:-- (12 dismissing the petition; (13 declaring the election of the returned candidate to be void;'
(14 declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected.
(15 Declaring the election as a whole to be void. 81: Grounds of declaring election of returned candidate void:
(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:- - (16 The nomination of the returned candidate was invalid; or (17 The returned candidate was not, on the nomination day member or Nazim or Naib Nazim, as the case may be; or (18 The election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (19 A corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent.
(2) The election of a returned candidate shall not be declared void on the ground:-- (20 That any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or (21 That any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member.
83: Ground for declaring election as a whole void.
The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of: (22 The failure of any person to comply with the provisions of the Ordinance or the Election Rules; or (23 The prevalence of extensive corrupt or illegal practice at the election.
' It is pertinent to mention here that it is the duty and obligation of a candidate to file declaration of assets in Form-XIX. It as admitted fact that the petitioner did not mention assets of his dependents including his wife in the said declaration of assets along with his nomination papers and this fact was admitted by the petitioner during cross-examination in the following words:-- "It is correct that I have written down in Exh.P.1 that neither I nor my dependents have any movable or immovable assets. It is correct that House No.318-A-I, Township belongs to my wife Mst. Shaista Bano. It is correct that above said house was purchased by my wife through me from one Abdul Hameed. It is correct that Mst. Shaista Bano has also appointed me as nominee qua the property mentioned above. I have filled and noted down my residential address bearing No.318-A-I Township, Lahore, in my nomination papers. It is correct that I am living with my wife Mst. Shaista Bano in the same house." exercising its Constitutional jurisdiction as per law laid down by the superior Courts in the following judgments:- "Board of Intermediate and Secondary Education v. M. Masaduq Nasim (PLD 1973 Lahore 600).
Syed Azmat Ali v. Chief Settlement Commissioner and others (PLD 1964 SC 260).
' Qaisar Shafi Ullah's case (1994 SCMR 859). ' Haji Alam Sher's case (PLD 2003 Lahore 12).
It is the duty of the petitioner to fill the nomination papers himself in terms of aforesaid provisions of law. Therefore, contention of the counsel of the petitioner that nomination papers were filled by his Advocate has no force. Even otherwise petitioner has admitted in his statement that he has signed and filled nomination papers himself. Therefore, contention of the counsel of the petitioner that petitioner has not filled the nomination papers himself has no force in view of the law laid down by this Court in Roshan Din Shah's case (2002 MLD 36). The nomination papers filed by the petitioner are inconsistent in view of the statement of the petitioner and evidence produced by respondent No.2 i.e. P.W.1 and 2 before Election Tribunal. Therefore, finding of the. Election Tribunal in the impugned order in accordance with law laid down by this Court in Syed Abuzar Hussain Bokhari's case (2001 PLR 1082). The contention of counsel of the petitioner qua non-framing of the issue by the Election Tribunal has no force as the petitioner had not been prejudiced in any manner by non-framing of issues by the Election Tribunal. Even otherwise the provisions of C.P.C. Are not strictly applicable and Election Tribunal can decide election petition by following principles of C.P.C.
As nearly as possible. In arriving to this conclusion, I am fortified by the following judgments:-- ' Mehmood ul Hassan Babar v. Liaqat Ali Karim (2002 YLR 2227).
' Fazal Mahmood Bhatti v. Mst. Saeeda Akhtar (1993 SCMR 2018).
Under the law it is the duty of the petitioner to prove that wife of the petitioner is not dependent upon the petitioner and the petitioner has not brought on record sufficient material to show that his wife is independent and is not dependent upon the petitioner. Coupled with the fact that in case para. 3 ground (b) of written statement, examination-in-chief and cross-examination of the petitioner while appearing before the Election Tribunal as R.W.3 and grounds of petition before this Court are at variance in each other. It is settled principle of law that parties are bound by their pleadings as the law laid down by the Honourable Supreme Court in Mst. Murad Begum v.
Muhammad Rafiq (PLD 1974 SC 322); The petitioner has not urged ground of attack in the written statement before the Election Tribunal that petitioner's wife was not dependent upon the petitioner.
Therefore, the petitioner is debarred to raise this plea in the Constitutional petition. The word 'dependent' was interpreted by the Division Bench of the Peshawar High Court in Muhammad Hayat's case (PLD 2002 Peshawar 118) and laid down following principle:-- "If we take into account the dictionary meaning of the word 'dependent' it simply means that a person who is financially "dependent" on someone and who requires financial support from a person upon whom he depends for maintenance."
The aforesaid definition bring the case of the petitioner to discharge his duty onus by producing evidence by alleging this fact in the written statement as mentioned above, this was not done, therefore, the petitioner cannot take benefit of his own misdeed/mistake/negligence. The learned Election Tribunal after proper appreciation of evidence and law has decided the election petition in accordance with the provisions of Election Laws and the law laid down by the superior Courts which is in consonance with the law laid down by the superior Courts in the following judgments:-- ' Abbas Khan and another v. Appellate Authority D&SJ Attock. (2002 SCMR 398).
' Unreported judgment of Full Bench of this Court in W.P. No.16723 of 2002 dated 14-9-2002.
' In view of what has been discussed above, this Constitutional petition has no merit and the same is dismissed with no order as to costs.