' MUHAMMAD JEHANGIR ARSHAD, J.---This order shall dispose of titled writ petition as well as Writ Petition No.6427 of 2005 fixed today in the urgent cause list, as both these petitions challenge the order of learned Election Tribunal/ respondent No.2.
2. The facts necessary for the disposal of these matters are that petitioners contested the election for the seat of Nazim and Naib Nazim from Union Council No.78-Multan and initially were declared as Returned Candidates having secured highest number of votes in the Constituency. As the petitioners were not holding the requisite qualification meant for the seat of Nazim and Naib Nazim within the meaning of section 152(e) of the Punjab Local Government Election Rules, 2001, hence their Nomination Papers were challenged by respondent No.8 through Writ Petition No.4800 of 2005 which was allowed by this Court on 29-9-2005 and the order of acceptance of Nomination Papers of the petitioner was declared as without lawful authority. However, on a petition for leave to appeal (C.P.L.A. No.2578 of 2005), they were provisionally allowed to contest the election by the Honourable Supreme Court. After declaration of petitioners as successful/returned candidates by the Returning Officer, an Election Petition was filed by respondents Nos.4 and 5 seeking disqualification of the petitioners on the ground that they were holding Sanad from Deeni Madrisa without having passed three additional subjects of English, Urdu and Pak Studies and also without obtaining equivalence Certificate from the competent authority, they were not qualified to contest the election in the light of the judgment delivered by the Apex Court in Apex Court dated 16-8-2005 passed in "Sanaullah Khan and another v. District Returning Officer, Mianwali, and others" PLD 2005 SC 858; in C.P. No.1673-L of 2005 in Muhammad Nadim's case on 24-82005 and in the case of "Abdul Khaliq and another v. Maulvi Noor Muhammad and others" PLD 2005 SC 962 and also by this Court in "Muhammad Younas Iqbal and another v. District Returning Officer, Gujranwala and 9 others" PLD 2005 Lahore 695.
3. It appears that despite service the petitioner did not appear before the Election Tribunal/respondent No.2 with the result that they were proceeded ex parte and vide order dated 22-10-2005, the respondent No.2/Election Tribunal holding the election of the petitioners as void, declared Respondents Nos.4 and 5 as returned/successful for the seat of Nazim and Naib Nazim from Union Council No.78-,Multan, by acceptance of the election petition. It was further directed by the Election Tribunal that the order be immediately sent to the Returning Officer concerned who will in turn forward the same to the Honourable Chief Election Commissioner for formal notification.
However, petitioners moved an application before the Election Tribunal on 26-10-2005 seeking cancellation of the order of the Election Tribunal dated 22-10-2005. Along with said application, an application seeking suspension of the order dated 22-10-2005 was also filed. The respondent No.2/Election Tribunal however, on 27-10-2005 directed issuance of notice to the Election Petitioners for 19-11-2005 but refused to suspend the order declaring the respondents Nos.4 and 5 as returned/successful. This petition as well connected Writ Petition No.6427 of 2005 have been filed to challenge the order of Election Tribunal/respondent No.2 to the extent of refusal by the Election Tribunal of suspending the order dated 22-10-2005, whereby respondents Nos.4 and 5 were declared as successful/returned candidate for Nazim and Naib Nazim from Union Council No. 78- Multan.
4. It has been argued by learned counsel for the petitioners that as the question of disqualification of the petitioners was neither notorious nor finally determined at the earlier stage, hence the Election Tribunal in spite of declaring the election of the petitioners as void, could not declare the respondents Nos.4 and 5 as returned /successful on the basis of well-known principle of "Throw away votes" and also the law declared by the superior Courts from time to time. Learned counsel in support of this arguments, has placed reliance on the case reported in PLD 1976 SC 6 and also 2004 SCMR 1021.
5. On the other hand, learned counsel for the respondents relying on Rule 75(c) of Punjab Local Government Election Rules, submits that Election Tribunal rightly passed the order declaring respondents Nos.4 and 5 as duly elected after declaring the election of the petitioners as void.
6. I have considered the argument of learned counsel for the parties and perused the relevant record.
7. Without commenting upon merits of the case, I would like to confine myself only to the precise point, as to whether under any provision of law, the Election Tribunal was legally competent to declare respondents Nos.4 and 5 as successful or duly elected Nazim and Naib Nazim after declaring the election of the petitioners as void? The answer to this point is quite simple. Right from PLD 1976 SC 6 till date i.e. 2004 SCMR 1021, it has been the consistent view of the superior Courts that where the Returned Candidate is lacking very basic qualification requisite for contesting the election and in this case such qualifications are fully enumerated in section 152(e) of the Punjab Local Government Ordinance and the Election Tribunal after declaring the election of Returned Candidates as void on the sole ground of lack of requisite qualification, cannot declare the successful candidates as duly elected or successful candidates. In place of the Returned Candidates, unless it is established from the record that disqualification or lack of requisite qualification of the successful/Returned candidate was either patent or floating on the surface and despite the knowledge or such disqualification or lack of qualification, the electorate opted to elect him voting in their favour and for that matter the term of "Throw away votes" has been adopted by the superior Courts in such-like situation. In the instant case, either disqualification of the petitioners or lack of requisite qualification on their part and that despite knowledge of such disqualification or lack of requisite qualification, the electorate still opted to vote for the petitioners, has not been determined by the Tribunal while passing the impugned order dated 22-10-2005, therefore, the Election Tribunal acted without lawful authority by granting relief to respondents Nos.4 and 5 by way of declaring them as returned/successful Nazim and Naib Nazim and for this reason alone the order of the learned Election Tribunal dated 22-10-2005 to this extent is not warranted and same is struck down.
8. As regards contention of learned counsel for the respondents that in terms of Rule 75(C) of the Punjab Government Election Rules, the Election Tribunal could declare the respondents Nos.4 and 5 as duly elected candidates is concerned, the same is not applicable to the present case. Said rule would apply to a situation where the election of a Returned Candidate has been declared as void on various grounds including recounting, etc. But not on the ground of disqualification or lack of requisite qualification of the successful/ returned candidates, as is in the present case.
9. Resultantly, both these writ petitions are allowed and the order of the Election Tribunal dated 22- 10-2005 to the extent it declares respondents Nos.4 and 5 as elected/returned Nazim and Naib Nazim for Union Council No.78-Multan and for that matter subsequent order dated 27-10-2005 refusing to suspend the earlier order dated 22-10-2005 to the above extent are declared as without lawful authority. The Election Tribunal shall however be at liberty to decide the application of the petitioners for setting aside the order dated 22-10-2005 on.Merits in accordance with law.