' SALIM KHAN, J.---Maulvi Tajud Din and Amir Nawaz petitioners contended that they contested the election for the Office of Nazim and Naib Nazim of Union Council, Hothel Bathkool, Tehsil Allai, District Batagram in the Local Government Elections held on 25-8-2005 as a joint panel, and the petitioners were declared as returned candidates and notified as such. It was further contended that respondents Nos.4 and 5 (Shaukat Khan and Muhammad Saleem) were also contestants as a panel who filed election petition before the Election Tribunal mainly on the ground that petitioner No,2 (Amir Nawaz) did not have the requisite academic qualifications and the petitioner No,1 would also suffer, being a joint candidate. It was submitted that the Election Tribunal, without considering the application of the petitioners for summary dismissal of the election petition of respondents Nos.4 and 5 on pertinent grounds, and for violation of mandatory provisions of Local Government Ordinance, 2001, accepted the election petition and declared respondents Nos.4 and 5 as returned candidates for the mentioned Offices. Hence the writ petition on the grounds mentioned in the petition itself.
2. We have heard the learned counsel for the parties and perused the record.
3. In order to properly evaluate the factual and legal position of this case, the points involved in the case require to be discussed in details as under.
4. For the purposes of each general election to the National Assembly and to a Provincial Assembly, an Election Commission is constituted in accordance with Article 218 of the Constitution of the Islamic Republic of Pakistan (hereinafter referred to as the 'Constitution'). The duty of the Election Commission so constituted has categorically been mentioned in clause (3) of the abovementioned Article 218. In accordance with Article 213 of the Constitution, the Chief Election Commissioner is appointed by the President. The Chief Election Commissioner, in accordance with clause (2)(a) of Article 218 is the Chairman of the Commission unless Majlis-Shoora (Parliament) by law otherwise provides. The Chief Election Commissioner (hereinafter referred to as the 'Commissioner') may with the approval of the President, make rules providing for the appointment by the Commissioner of officers and servants to be employed in connection with the functions of the Commissioner or an Election Commission and for their terms and conditions of employment.
5. Article 32 of the Constitution provided that the State shall encourage Local Government Institutions composed of elected representatives of the area concerned and in such Institutions special representation will be given to peasants, workers and women. This Article is in Chapter-II Principles of Policy of the Constitution. In order to comply with the letter and spirit of Article 32 ibid, it was deemed proper to re-arrange and reorganize the structure of Governments and to devolve powers to the level of Local Government Institutions to the extent of their proper functioning in the interest of the citizens. For the said purpose, the Provincial Governments in Pakistan promulgated their respective Local Government Ordinances. The North West Frontier Province promulgated its Ordinance called the North West Frontier-Province Local Government Ordinance, 2001 (N.-W.F.P.
Ordinance No,XIV of 2001). In order to conduct the first ever elections of the Local Government Institutions under the new scheme, the North West Frontier Province Local Government Elections Ordinance, 2000 (N.-W.F.P. Ordinance No,VI of 2000) was promulgated.
6. The Election Commissioner of Pakistan, as mentioned above, was not authorized to conduct the elections of the Local Government Institutions, and it was not considered sufficient arrangement to continue with the conduct of elections through the Provincial Election Authority. It was deemed proper, in the interest of general public, to authorize the Commissioner to organize and conduct the election of such institutions. In order to authorize the Commissioner, besides his duties under Article 219 of the Constitution, the Commissioner was authorized to conduct such elections through the Chief Executive Order No,VIII of 2000. This order has attained the protection of Article 270-AA of the Constitution. As the respective Local Government Ordinances were Provincial Laws because the Institutions and their affairs were not covered by the contents of the Federal Legislative List and Concurrent Legislative List as provided in 4th Schedule of the Constitution, it was deemed necessary to authorize the Commissioner for Conduct of elections of the Local Government Institutions from Provincial side also. For this purpose, section 150 was provided in the N.-W.F.P.
Ordinance No, XIV of 2001 (hereinafter referred to as the Ordinance). According to the said section, the Commissioner is authorized to require any person or authority to perform such functions or, render such assistance for the purpose of election, including preparation of electoral rolls under the Ordinance as deemed fit, and also to authorize any of his officers to exercise any of his powers and to perform any of his functions under the Ordinance. The Chief Election Commissioner, in exercise of his powers under Chief Executive Order No,8 of 2000 and section 150 of the Ordinance, constituted Election Tribunals for dealing with the election disputes to be submitted to them through an election petition made by a candidate for that election.
7. In exercise of the powers conferred upon him under section 191 of the Ordinance, the Governor of the North West Frontier Province has been pleased to make the North West Frontier Province Local Government (Conduct of Elections) Rules, 2005 (hereinafter referred to as Rules) notified on 11th July, 2005, which were later on duly amended from time to time.
8. Rule 61 of the Rules provided that no election shall be called in question except by an election petition made by a candidate (hereinafter referred to as the petitioner) for that election. Any other person except the candidate in the election, has no locus standi to call in question the election before the Election Tribunal Sub-rule (2) of Rule 61 mentioned above, provided that an election petition shall be presented to the Tribunal appointed by the Chief Election Commissioner within 30 days of the publication in the Official Gazette the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited in a Scheduled Bank in favour of the Chief Election Commissioner a sum of three thousand rupees as fee for the petition. Sub-rule
(1) of Rule 63 of the Rules provides that every election petition shall contain (i) a precise statement of material facts on which the petitioner relied; (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 (iii) the relief claimed by the petitioner. It was further provided in sub-rule (3) thereof that every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of the pleadings.
The use of word shall would have needed further explanation whether it was mandatory or directory in nature, if there was no rule 68 thereof as it is in its present form. The said rule 68 provides that the Tribunal may dismiss an election petition if:--
(a) the provisions of Rules 61, 62 and 63 have not been complied with;
(b) the allegations contained are vague or do not disclose the composition of any corrupt practice, material irregularity or other illegal act.
' Rule 69 of the said rules provided, that the Tribunal shall have all the powers of civil Court during a suit under the Code of Civil Procedure, 1908 (Act V of 1908).
9. The existence of rule 68 in its present form makes the provisions of Rules 61, 62 and 63 mandatory in nature as a penal clause in the shape of rule 68 is available. The word may be used in section 68, however, leaves the dismissal or otherwise of the election petition to the judicial discretion of the Presiding Officer of the Election Tribunal, which discretion shall have to be exercised judiciously. Rules 61, 62, 63, 68 and 69 of the Rules read together clearly indicate that the Election Tribunal, exercising powers of a Civil Court, may or may not dismiss an Election Petition, keeping in view the ends of justice in the circumstances of each case. The only condition attached to exercise such a discretion is, that it is exercised judiciously and for solid reason. The test is that whether any other prudent person would have come to the same conclusion in the given circumstances. If there can be more than one conclusions and any other prudent person would have come to anyone of such conclusions, but could come to any other of such conclusions for solid reasons, the conclusion arrived at by the Tribunal would be taken proper. The reason for the same is that the Election Tribunal is always in a better position to properly appreciate the existing circumstances in a case than any other authority, and the opinion of any other such authority cannot be substituted for the opinion of the Election Tribunal. The provisions of section 151, C.P.C., like its all other provisions, are applicable to the proceedings before the Election Tribunal, and the Presiding Officer of the Election Tribunal has all the powers to issue proper orders as deemed necessary in the interest of justice.
10. It has been continually declared by the Superior Courts that technicalities should never deprive the litigants of their valuable rights, except at the cost of the accrued rights of the contesting parties. It was held in the judgment reported as PLD 1967 Supreme Court 486 "The law of pleadings has never been strictly construed and rigorously applied in all its technicalities in this country as plaints and petitions drafted, specially in the Mofassil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the legislature a desire to be hyper-technical, so as to smoother genuine litigation".
11. With reference to Rule 78 of the N.-W.F.P. Local Government Elections Rules, 2000, it was held vide judgment reported as PLD 2004 SC 485 "The said contention has been made in oblivion of the fact that word "May" has been used in rule 78 which makes the provision directory/discretionary instead of mandatory".
12. As regards provisions enacted for the purposes of procedural matters, it has been held in the judgment of the case reported as 2005 CLC 686 "The provisions contained in the Code are merely rule of procedure and are subservient to the Cause of Justice, therefore, such laws do not control the power of the Court to press such order which is necessary to do the full Justice in the circumstances of the case". petition under Article 199 of the Constitution, "the High Court may:--
13. In the light of the above quoted judgments and many others on the point under consideration, it is the satisfaction of the Presiding Officer of a Court or other judicial or quasi-judicial forum which sets the direction of a decision in given circumstances of a case, and such satisfaction cannot be controverted unless it is undoubtedly found that it is based on arbitrariness or perverseness.
14. For the purposes of the election petition, only a candidate can be a petitioner. But, for the purposes of writ petition under Article 199 of the Constitution, "the High Court may:---
(a) on the application of any aggrieved party, make an' order:-- (i)
(ii) .....................
(b) on the application of any person, make an order:-- (i)
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) ..............................
' In the light of the above, any person may submit an application to the High Court for the purpose mentioned in 199(b) of the Constitution.
15. Section 157 of the Ordinance provides that a Union Nazim and Union Naib Nazim shall contest election in their respective electoral ward as joint candidates provided that, on occurrence of a casual vacancy, a candidate of the office of a Nazim or Naib Nazim shall contest the election for such office in his individual capacity. It clearly means that a person may contest election for such an office in his individual capacity only in the case of occurrence of casual vacancy, otherwise there will be joint candidacy for the offices of Union Nazim and Union Naib Nazim.
16. As an individual cannot become a candidate for the seat of Union Nazim and Union Naib Nazim, therefore, the provisions of section 152 of the Ordinance shall be applicable to their joint candidacy.
Clause (e) of section 152 provides that a person shall qualify to be elected or to hold an elective office or membership of a Local Government, if he has academic qualifications of not less than matriculation or secondary school certificate or equivalent from a recognized institution for contesting the election of a Nazim or a Naib Nazim. If anyone of the two persons, who are joint candidates for the offices of Nazim and Naib Nazim of a Union, fails to have the prescribed educational qualifications, the other joint candidate shall not be able to contest election in his individual capacity and, therefore, shall become ineligible for such election.
17. This doctrine is generally called the doctrine of sinker which means that the person having right shall lose his right if he joins or associates himself with a person who dies not have such a right.
This proposition has fully been discussed in various judgments of the superior Courts and it has been held that if one of the joint candidates for the offices of Nazim and Naib Nazim lacks the academic qualifications as prescribed, his joint candidate shall become ineligible and shall also become disqualified like his joint candidate. The following decisions are directly regarding the above-mentioned principle, which have declared that the doctrine of sinker is applicable to the joint candidates for the offices of Nazim and Naib Nazim.
18. Regarding the applicability of the doctrine of sinker to the joint candidature for the offices of Nazim and Naib Nazim, it has been held in the judgment reported as PLD 2004 SC 505.
"The election on the basis of joint candidature and rule of rejection of nomination of joint candidature as a whole is based on the doctrine of sinker. The basic concept of this doctrine is based on the principle to sail or sink together." It has been quoted there from the judgment reported as 2003 SCM R 1611 that the salient feature of the system of joint candidacy is that the candidates for the offices of Nazim and Naib Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of anyone of the candidates tantamounts to the rejection of nomination of both the candidates. Therefore, they must possess the statutory qualification individually and collectively on the day of filing of nomination papers and lack of any such qualification of anyone would invalidate their nomination jointly. The joint candidates for the offices of Nazim and Naib Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. It was further mentioned from the said judgment that the disqualification attached to the candidate on the day of filing the nomination paper would not disappear after the election, therefore, the defect of invalid nomination paper is not curable."
19. In order to further explain the applicability of doctrine of sinker to the joint candidacy, it may be more proper to further quote from the judgment reported as 2003 SCM R 1611.
' The leave granting order in C.A. No,583 of 2002 has been quoted in the said judgment as:-- "Leave is granted to consider whether if Nazim is declared to be disqualified to contest election in an election petition, the election of the petitioner as Naib Nazim could also be declared void being substantial question of law of public importance."
20. The leave granting order in C.A. No,592 of 2002 was quoted as follows: "Leave has already been granted in C.P. No,1005-L of 2002 arising from the same judgment of the Election Tribunal to consider whether where Nazim is held to be disqualified from being candidate on account of he being not matriculate, the election of Naib Nazim would also, automatically be adversely affected "
21. It was mentioned in the order of leave to appeal in Civil Appeal No,1191 of 2002" (3) on the question whether the election of panel of Nazim and Naib Nazim as a whole should have been declared invalid in case one was found to be guilty of malpractice is already under consideration in C.P. No,1005-L of 2002 in which leave has been granted "
22. It was ultimately held in the said judgment, "The validity of nomination of joint candidates is determined on the nomination day and if a candidate associates himself with a candidate who was suffering from a disqualification to contest the election on the nomination day or his nomination was invalid, the nomination of both would become invalid and both as joint candidates would lose the right to contest the election. The candidate by joining himself with a candidate who lacked the disqualification to contest the election could not avoid the consequences of the disqualification created for himself. The invalid nomination of anyone candidate in the panel, would make the nomination of the other candidate in the said panel invalid and the Tribunal would be competent to declare the election of both the candidates void. The invalid nomination of a candidate on the nomination day, would not subsequently be validated by mere change of his status from the candidate into returned candidate, therefore, the disqualification of a candidate on the nomination day, on the basis of which the nomination of the joint candidates as a whole could be rejected, would necessarily bring the consequences of the election of joint candidates as a whole void, therefore, the interpretation that rule of rejection of nomination as a whole of the joint candidates, would not be invocable for declaring the election of the joint candidates as a whole void in the election would be against the wisdom of law and would make the rule meaningless".
23. The validity of a Sanad from the Deeni Madrassa can be tested on the touchstones provided in the judgments reported as Sanaullah Khan and others v. District Returning Officer and others PLD 2005 SC 858 and as Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC
962. The main touchstones are:-- PLD 2005 SC 858: "28. Thus, it is concluded that:---
(i) If "Sanad" i.e, Shahadat-ul-Aalmia-fil-Uloom-Ul-Arabia-wal-Islamia obtained by a candidate from a "Deeni Madrasah" (Seminary), which is duly recognized by UGC/HEC and its holder had passed examination of additional subjects as it has been mentioned in Notification dated 17th November, 1982 (No,8-418/ Acad/82/128) issued by UGC/HEC and equivalence certificate has also been issued by Higher Education Commission under section 10(o) of the Higher Education Commission Ordinance, 2002, then it is acceptable for the purpose of employment and for any other purpose including the elections of Local Government.
And
(ii) "Sanad" of Shahadat-ul-Sanviat-ulAama (SSC) and Shahadat-ulSanviat-ul-Khasa (HSSC), if obtained by a candidate from recognized "Deeni Madrasah" by UGC/HEC and he has also passed examination of English, Urdu and Islamic Studies, from any Board of Intermediate and Secondary Education and has obtained, equivalence certificate from IBCC, in pursuance of Notification No,IBCC/ES/Misc/1219 dated 21st July, 2005 read with Notification No,F.5-5/90-JAE (CW) dated 22nd April, 1990 he shall be qualified to contest the Local Government Elections, according to the provisions of section 152(1) (c) of Punjab Local Government Ordinance, 2001.
' As a result of above discussion, impugned judgments passed by Lahore High Court are confirmed and petitions are dismissed."
PLD 2005 SC 962 "7. There are several Deeni Madrisas, which award Sanads to the students, who are taught in such Deeni Madaris. These Sandads are (i) Shahadat al Sanviya Aama; (ii) Shahadat-Al-Sanviya Khasa,
(iii) Shahadat al-Aliya; and (iv) Shahadat Al-Aalimiya, and claim them to be equivalent to Matric/Secondary School, Higher Secondary School, Graduation Degree and Masters Degree respectively. However, the Sanads and Degrees cannot be treated equivalent to Secondary School, Higher Secondary School, Graduation Degree and Masters Degree, unless they are awarded by a Madrisa recognized and approved by the UGC/HEC and has issued equivalence certificate in respect of Sanads of al-Aaliya and alAalamiya, and the Inter-Board Committee of Chairmen (hereinafter referred to as "IBCC") has issued equivalence certificate in respect of Sanads of al- Sanviya Aama and al-Sanviya Khasa. In absence of equivalence certificate from UGC/HEC, the Sanads awarded by recognized and approved Madrisa can be utilized only for teaching purposes and for pursuing higher studies in Arabic and Islamic Studies and for no Other purpose.
Equivalence Certificate by the UGC/HEC can be granted to a person holding the Sanad of Al- Aalimya-Fil-UloomUl-Arabia-Wal-Islamia provided he has passed examination in additional subjects of Elective Pakistan Studies, Islamic Studies and two additional subjects other than Arabic and Islamiat at the B.A. Level. After issuance of Equivalence Certificate, the Sanad of Shahadat-ul- Aalimiya will be acceptable for the purpose of employment and the holder will also qualify to contest the Local Government election. The Sanads of Saniviya Aama and Saniviya Khasa obtained from a recognized and approved Madrisa would be equated with Secondary/High Secondary School, if the holder thereof has passed examination in English, Urdu and Islamic Studies at the said level from a Board of Intermediate and Secondary Education in Pakistan and Equifalence Certificate is issued by Inter-Board Committee of Chairmen, and he will be qualified toe' contest Local Government Election. For the above proposition and observations reliance is placed on the judgment of this Court in Sanaullah and another v. District Returning Officer, Mianwali and others (C.P.L.A. No,1569-L of 2005) and five other civil petitions dated 16-8-2005."
24. Any Sanad from any institution which does not qualify to be valid on test on the above touchstones shall not be a valid document for the purposes of equivalence to matriculation certificate or Secondary School Certificate or, as the case may be, to Bachelor's Degree for the purposes of Elections of the Local Government Institutions.
25. The broad principles concerning notoriety of disqualification, doctrine of throwaway votes and the principles of right of franchise of voters have been fully explained in the judgments reported as PLD 2003 SC 268; 2004 SCM R 1484 (Also PLJ 2005 SC 226); PLD 2004 SC 505; PLD 2004 SC 570; 2003 SCM R 1611.
' The word "Notorious" has been interpreted in PLD 2004 SC 570 as under:-- "Word "Notorious" means the fact of being publicly or commonly or generally known forming a matter of common knowledge. It is always used for some bad practice, quality, unfavourably known, well-known on account of something which is not generally approved of or admired."
' Citation 'F' of 2004 SCM R 1484 is as under:-- "Ratio of above cases on this point is that if the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next higher number of votes. In the instant appeal, it was not known to the voters that the appellant was not a graduate and lacked requisite qualification for contesting the election. No steps were taken by anybody to bring to the knowledge of the electors that the appellant was not a graduate. The nomination papers of the appellant were accepted without any objection. This unequivocally postulates that the voters were unaware of the disqualification, therefore, rule of "throwaway votes" could not be invoked."
26. Similarly, the word 'notorious' has elaborately been discussed in PLD 2003 SC 270, the relevant paras 3 and 4 are reproduced below:-- "3. Having heard the learned counsel for the petitioner we are of the view that a case for interference is not made out. The impugned judgment is based on the principle laid down by this Court in the case of Rashid Ahmad Rehmani's case PLD 1968 SC 301 that where the factum of disqualification is not notorious at the time of polling, the votes secured by the successful candidate cannot be thrown away and the candidate securing next highest votes cannot be declared elected. The dictum was reiterated in several oft-quoted cases decided by this Court. In Lal Muhammad v. Muhammad Usman and others 1975 SCM R 409 it was held that if disqualification of successful candidate is not notorious the votes polled in his favour cannot be thrown away by giving seat to the candidate with next highest number of voters. Similar observations were made in Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 with reference to parameters of notoriety of disqualification of a returned candidate highlighted in paragraph 549 of Halsbury's Laws of England, Volume 14. In Junaid Ahmad Soomro v. Haji Mehboob Ali Ghayo and others PLD 1986 SC 698 the following observations were made in this context:-- "This Court has, in a series of cases, consistently held that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of this disqualification, the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the decisions of this Court in such a situation the election as a whole must be set aside and a re-election ordered.
4. Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence which is lacking in the present case. There is yet another circumstance which goes a long way to show that the disqualification of the respondent was not notorious. The material on record makes it manifest that at the time of scrutiny of the nomination papers of the respondent no objection was raised against his candidature. Consequently, the petition is dismissed and leave refused."
' Detailed discussion qua notoriety is also available in 2003 SCM R 1611.
27. This Court had already held in Writ Petition No,80 of 2006, Writ Petitions Nos.1738, 1767 and 1768 of 2005 and Writ Petition No,2075 of 2006 at the principal seat of this Court that due to wide publication of the judgment of Sanaullah Khan and others case PLD 2005 SC 858, the qualification on the basis of a Sanad not qualifying on the standard laid down in the said judgment was not equal to Matriculation or S.S.C. And was notorious as being publicly known. But the judgment reported as PLD 2006 SC 78 has settled the issue by declaring that disqualification on the basis of an insufficient Sanad was not notorious.
28. It was contended by the learned counsel for the petitioners that the provisions of rule 68 in the light of rule 62 of the Rules were not properly applied and the petition should have been dismissed.
It was further contended that the principle of sinker did not apply as the candidates were declared returned candidates and their names were duly notified, and that the qualification of petitioner No,2 was not notorious before and at the time of the election and, therefore, respondents Nos.4 and 5 could not have been declared successful candidates and a fresh election should have been declared to be held.
29. The learned Presiding Officer of the Election Tribunal was the best Judge of the circumstances in the case and he has not opted to exercise his discretion to dismiss the petition under the rules.
There is no cause on record for interference in the said order. As far the question of applicability of the doctrine of sinker, the petitioner No,1 had to sail and sink along with his joint candidate, with whom he wanted to get the fruit of success in the election. It is not the result of election but the nomination for election which is to be taken into consideration for the purposes of applicability of the mentioned doctrine. Both the petitioners were joint candidates which they had chosen by their own will and consent. They were, therefore, jointly responsible for each other.
30. As the disqualification of petitioner No,2 was not notorious among the public/voters before and at the time of election, no efforts were made by anybody to make the disqualification publicly known to the voters, and no objection was raised to the qualifications of petitioner No,2 immediately after the submission of nomination papers, therefore, we hold that the Sanad of petitioner No,2, disentitled him for becoming a candidate as it did not qualify on the touchstone of the abovementioned two judgments, and disqualification due to that Sanad was not notorious, and the right of franchise of the voters could not be snatched in these circumstances. The votes of the voters could not be considered as intentionally thrown away an they were entitled to exercise their right of franchise according to their knowledge. The learned Election Tribunal, therefore, erred in declaring respondents Nos.4 and 5 as successful candidates in place of the petitioners, instead of declaring that fresh election be held.
31. We, therefore, accept the present writ petition to the extent that the order of the learned Election Tribunal to the extent of declaration of respondents Nos.4 and 5 as successful candidates and non-declaring the holding of fresh elections is set aside. We, accordingly, direct that the voters of the concerned Union council be provided their right of franchise by holding fresh election, which is to be arranged by and under the directions of the Chief Election Commissioner of Pakistan. We order accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.