' This judgment shall decide Writ Petition No.306 of 2005 and Writ Petition No.1500 of 2005 as these proceed against a common judgment passed by a learned Election Tribunal, District Khanewal.
2. The writ petitioners on the one hand and the contesting respondents Nos.2 and 3 on the other, while the respondents Nos.4 and 5 on the 3rd, contested election to the seats of Nazim and Naib Nazim respectively in Union Council No.84, District Khanewal. The writ petitioners were declared returned as Nazim and Naib Nazim. The respondents Nos.2 and 3 filed an election petition primarily on the ground that Zahoor Hussain petitioner (Writ Petition No.1500 of 2005) is to a matriculate and the certificate relied upon by him is bogus. The writ petitioners filed a joint written statement taking some preliminary objections, seeking a recrimination against respondent No.3 and further denying the said allegations. Following issues were framed by the learned Election Tribunal:--
(1) Whether the petitioners were not qualified to contest to Election under section 14(E) Punjab Local Government Election Ordinance/Rules 2000, as petitioner No.2 had not passed his matriculation examinations? OPR
(2) Whether the petitioners are estopped to raise any objection through the objection petition in view of preliminary objection No.2 of the written reply? OPR
(3) Whether the petitioners committed forgery and tampered with the record of Returning Officer as narrated in preliminary objection No.3? If so, its effect? OPR
(4) Whether this objection petition is false, frivolous, and fictitious? If so the amount of special costs for which the respondents are entitled? OPR
(5) Whether the petitioners/objectors have no locus-standi to file this objection petition? OPR
(6) Whether this objection petition was premature as "narrated in preliminary objection No.3? OPR
(7) Whether respondents Nos.1 and 2 were not qualified to contest the election and are still disqualified to remain Nazim and Naib Nazim respectively on account, of respondent No.2 not having passed matriculation examination and for producing forged Matriculation certificate? OPA
(8) Relief.
' The parties were called upon to lead evidence. Only the contesting respondents produced three witnesses who were not cross-examined by the petitioners. Some documents were also produced.
No evidence was led in rebuttal despite opportunities. Vide judgment dated 14-1-2005 the learned Election Tribunal (Additional District Judge, Vehari) found Iisues Nos.1 to 6 against the petitioner and Issue No.7 in favour of the contesting respondents. The Election Petition was allowed and the election of the petitioners was declared to be void and fresh elections were directed to be held.
3. In the first instance, Writ Petition No.306 of 2005' was filed. It was admitted on 18-1-2005 after noting the contention that Muhammad Ashiq petitioner having been attributed no disqualification, his election could not have been declared to be void on ground of the disqualification attributed to Zahoor Hussain petitioner. Thereafter Writ Petition No.1500 of 2005 was filed in this Court on 22-3- 2005 and was admitted to hearing with reference to admission of the said Writ Petition No.306' of 2005 vide order dated 25-3-2005.
4. So far as Writ Petition No.306 of 2005 is concerned, suffice it to say that the judgment of this Court in the case of Ch. Maqbool Ahmad and others v. Malik Falak Sher Farooqa, ADJ/Election Tribunal and others (PLD 2003 Lah. 138) stands overruled by the Hon'ble Supreme Court of Pakistan in the case of Haji Alam Sher v. Malik Muhammad Nawaz and others (2004 SCMR 1021) and Mian Ahmed Saeed and others v. Election Tribunal, for Kasur at Okara and others (2003 SCMR 1611) the dictum laid down by the Hon'ble Apex Court is that the joint candidate has to go if the election of the other is declared to be void or otherwise is set aside. Mr. Tahir Mahmood, Advocate, therefore, has not much to say in support of the said writ petition.
5. Mian Arshad Latif, learned counsel for Zahoor Hussain petitioner in Writ Petition NoA500 of 2005, although unable to say anything as to why the witnesses_ produced by the contesting respondents were not cross-examined, and as to why evidence was not led in rebuttal despite opportunity, vehemently urges that an application filed by the petitioner seeking dismissal of the election petition on the ground of being premature and further having not filed the copy of the Gazette notification declaring the election result.And challenging the same has not been decided and further the recrimination claimed by the petitioners in respect of respondent No.3 has also not been decided. According to him; the entire judgment is void because of the said omission of the learned Election Tribunal in view of judgment in the case of Messrs M.A. Chaudhry and 3 others v.
National Bank of Pakistan Faisalabad through, General Attorney (2005 CLD 875). According to him, it is absolutely necessary to challenge the gazette notification as according to the judgment in the case of Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others (2002 SCMR 1632) an election petition can only be filed after the notification of the election result.
The other contention raised with equal vehemence is that the election petition had not been verified in the manner prescribed in the case of Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCMR 250). Also contends that the documents relied by the learned Tribunal were marked and were not exhibited and as such could not have been read into evidence in view of the judgment in the case of Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182). Rana Asif Saeed, learned counsel for the contesting respondents, contends that in the matter of recrimination, Issue No.1 was framed while in the matter of the election petition being premature Issue No.6 was framed and both the issues were answered against the petitioners. Relies on the case oflibdul Nasir and another v. Election Tribunal, T.T. Singh and others (2004 SCMR 602) to urge that the election petition had been properly verified and further that the said objection is not fatal.
' I have gone through the copies of the records, with the assistance of the learned counsel for the contesting parties. Now the precise ground on which the election of the petitioners was challenged by the contesting respondents .In the election petition was that Zahoor Hussan petitioner had filed a bogus matric certificate with his nomination paper and he was not qualified to contest the election on the day of nomination. The relevant documents were annexed 'with the election petition. The defence was that the said petitioner had not filed the said certificate and, on the other hand, he had filed a certificate issued by Government Haji Abdullah Haroon Vocational School, Karachi, in Auto Mechanics Trade which was s equivalent to. Matric. Kaleem Asghar Karmani, Deputy Secretary, Board of Secondary Education, Karachi, appeared as A.W.1 to state that the matric certificate of Zahoor Hussiin son of Chaudhry Muhammad Faazil present in record is bogus.
The signatures of the Secretary are bogus and that there was no Secretary of the said name at the relevant time whereas Shafi Ullah was the Secretary and remains so. Not to transfer the above vehicle in favour of any third party till further order.
' He has made his statement with reference to his record brought by him. Not a single question was put to him by the petitioners in cross-examination particularly when the witness had stated that the certificate produced by the said petitioner on record is bogus. A.W.2 is Mushtaq Ahmad respondent No.2. He categorically stated that the said petitioner had produced a matric certificate from Karachi Board which is bogus and the objection raised by him was rejected. The statement was not questioned at all. Similar is the case with A.W.3 Haq Nawaz respondent No.3. No evidence was led in rebuttal. Thus, the learned Election Tribunal has very rightly held that the said petitioner filed a 'bogus matric certificate with his nomination papers and he was not qualified to contest the election on the said date. Not to transfer the above vehicle in favour of any third party till further order.
6. Now coming to the said contentions of the learned counsel for the petitioners, I do find that the prayers made in the application and contents thereof are reflected respectively in Issues Nos.1 and 6 which were framed in the presence of the parties and they were called upon to lead evidence: The petitioners failed to lead any evidence in support of the said issues which were accordingly answered against them. I may further note here that the prayers to be made before a Election Tribunal and the . Relief to be granted are duly specified in the Punjab Local Government Election Rules, 2000. There is no statutory or legal requirement of questioning a notification. It is the election which is to be questioned and the allegations are to be dealt with accordingly by the learned Tribunal. So far as the said judgment being relied upon by the learned counsel is concerned, the same was delivered by the Hon'ble gupreme Court with reference to the matter of limitation and not to hold that the gazette notification is to be specifically challenged.
7.So far as matter of verification is concerned, I find that no such objection was raised before the learned Election Tribunal. In the case Engr. Iqbal Zafar Jhagra and others, the objection was taken before the learned Tribunal and was decided accordingly and the reasoning for the decision was upheld. I am not inclined to entertain the said objection in these writ petitions. Even otherwise section 139, C.P.C. Is to be read along with Order XIX, C.P.C. Pertaining to the powers of the Court to order proof of facts by an affidavit. The verification is neither evidence nor proof and simply because a pleading is verified does not convert it into proof. The judgment in the present case has been passed by the learned Election Tribunal on the basis of evidence on the record which remains unchallenged and unrebutted.
8. So far as the reliance on documents not exhibited but marked is concerned, I have already noted above that the statement was made by A.W.1 with reference to his original records brought by him.
No objections stand noted and the mere fact that instead of exhibiting documents, they were marked, would not at all derogate from the probative value of the same and the reliance thereupon by the learned Election Tribunal. Both the writ petitions are accordingly dismissed without any orders as to costs. Not to transfer the above vehicle in favour of any third party till further order.