SALIM KHAN, J.---Qazi Azizul Haq and Wazir Muhammad filed this writ petition with the contention that they contested election for the seats of Nazim and Naib Nazim of Union Council, Darangal, as against Ajmal Khan and Sherullah (respondents Nos.6 and 7 as one set) and Ahmad Jan and Shah Faisal (respondents Nos.8 and 9 as other set). It was contended that the petitioners got the highest number of votes, but, on the basis of election petitions of Ajmal Khan and Sherullah on one side, and Ahmad Jan and Shah Faisal on the other side, the Deeni Sanad of petitioner No.1 was declared non-equivalent to Secondary School Certificate/Matric Certificate, and the election of petitioner was declared null and void, while the Matric Certificate of Ajmal Khan (respondent No.6) was found fake and bogus, and, therefore, respondents Nos.8 and 9 were declared as successful candidates.
2. The Deeni Sanad of petitioner No.1 was declared insufficient and the election of the petitioners was declared null and void due to lack of education qualifications for the. Office of Nazim and Naib Nazim of a Union Council, in the light of the judgment of the august Supreme Court of Pakistan in the case of Sanaullah and others v. District Returning Officer, Mianwali and others announced on 16-8-2005. During the proceedings on election petitions, it was found that Ajmal Khan had first submitted Matric Certificate under Roll No.18610, but another certificate with Roll No.18317 of Session 2000 was substituted for the same, which was found' fake and bogus. It was held .By the learned Judge of the Election Tribunal in his judgment/order, dated 19-12-2005 in election petitions of Ajmal Khan and others against Qazi Azizul Haq and other, Ahmad Jan and other against Azizul Haq and others and Qazi Azizul Haq and others against Ajmal Khan and others that the Deeni Sanad obtained A by petitioner No.1 from Darul-Uloom outside Asiya Gate, Peshawar, was not equivalent to Secondary School Certificate/Matric Certificate, and that the certificate of Ajmal Khan was fake and bogus. He, therefore, declared the election of the petitioners, null and void, but declared respondents Nos.8 and 9 as successful candidates.
3. The learned counsel for the petitioners objected to the date of institution of the election petition of Ahmad Jan on the ground that no date by the learned Tribunal was mentioned on the same, although the date by the petitioners was scribed on the same as 17-9-2005. The heading of the impugned order shows that the election petition of Ahmad Jan was instituted on 17-9-2005, which was never rebutted by the present petitioners before the learned Election Tribunal, and cannot 'be taken up at this stage, being a question of fact.
4. The learned counsel for the petitioners further contended that the Deeni Sanad in favour of petitioner No.1 issued by Darul-Uloom outside Asiya Gate, Peshawar, mentioned that three additional subjects necessary for passing the Secondary School Certificate Examination/Matric were included in the Sanad and that petitioner No.1 had passed those subjects. He further contended that he would have proved this fact, had a chance of producing evidence was provided to him. The learned counsel, however, could not produce any document to the effect that the mentioned Darul Uloom was ever affiliated with any Board of Intermediate and Secondary Education, or the additional subjects were ever prescribed by the Education Institution, to which the said Darul Uloom was affiliated. As has been properly discussed by the learned Judge of the Election Tribunal, the Deeni Sanad of the nature of Sand of petitioner No.1 was declared non- equivalent to Secondary School Certificate/Matric Certificate by the, above mentioned judgment in Sanaullah's case as well as the judgments in other related cases. This fact and legal position was very much clear and known to the general public, and, therefore, there was no need to allow the process of recording evidence to that effect.
5. The learned counsel for the petitioners further contended that the election petition could not be decided summarily without recording evidence. He referred to Rule 68 of the N.-W.F.P. Local Government (Conduct of Election) Rules, 2005, and submitted that the election petition could be dismissed during trial only on the grounds mentioned in the said rule, otherwise, the decision was to be given in accordance with Rule 71 of the said Rules. But when confronted with the contents of Rule 69. Which is to the effect that the Tribunal shall have all the powers of Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act, (V of 1908), and shall be deemed to be a Civil Court within the meanings of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898), and that a Civil Court may decide a case at any stage of the proceedings, he could not be able to rebut the said legal position.
6. The learned counsel for the petitioners referred to the judgment reported as 2004 SCM R 1242 and submitted that the disqualification must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person, and evidence had to be recorded for proving the said disqualification, and that the doctrine of throwing away the votes could not be applied without sufficient reasons and the voters' right of frenchise could not be taken from them. In that case, the person disqualified had been dismissed from service and there were criminal cases against him for which recording of evidence was considered necessary, while in the present case, petitioner No.1 was declared disqualified due to having a Deeni Sanad, which had been declared non-equivalent to Secondary School Certificate/Matric Certificate. The judgment of the august Supreme Court of Pakistan was known to the general public on 16-8-2005 whereas the election was held on 25-8-2005. The judgment of the august Supreme Court of Pakistan has binding force and ignorance about the same is never a good cause in the way of its applicability. This being a publicly known fact, did not required recording of any evidence.
7. The learned counsel for the petitioners further referred to the judgment reported as PLD 2003 SC 268, which was a case of loan defaulter. He contended that the notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence.
No other positive evidence was required, in the circumstances of the present case, when the judgment of the august Supreme Court of Pakistan on the subject was available.
8. The learned counsel for the petitioners referred to the judgment reported as 2004 CLC (Lahore)
626 and contended that the question of fact in issue of disqualification was to be converted into an issue of fact by framing it and evidence was to be recorded regarding the same. He contended that in the mentioned case the election was declared void, but none of the candidates was declared successful and fresh voting was ordered. That case was decided: on the ground of default for which -evidence was necessary, but recording of evidence was not necessary or needed in the case in hand.
9. The general public knew that petitioner No.1 had a Sanad which did not qualify him for contesting election, but, even then, they did cast their votes in his favour. They, therefore, themselves threw away their votes in favour of a candidate, who was not qualified to be elected, and wrongly exercised their rights of franchise. Those voters are bound by their own fault and cannot claim their rights of franchise for the second time, specially when their favourite unqualified candidate is declared disqualified. The learned election Tribunal was to transfer the success in Election to the other set of candidates, which was eligible for the same. It was proved on record that the Secondary School Certificate/Matric Certificate of Ajmal Khan was fake and bogus. He along with his joint candidate, due to principle of joint sail and joint sinker, had no right to be declared as successful candidate. The only remaining set of candidates was, therefore, Ahmad Jan and Shah Faisal, who could be declared successful candidates, and same was done by the learned Election Tribunal by ousting the sets of candidates, namely, Ajmal Khan and Sherullah, and also the petitioners. For the purposes of ousting Ajmal Khan and other, the petitioners are not the aggrieved persons, while the grievance of Ajmal Khan and other has not been shown before this Court.
10. In the circumstances discussed above, we do not find any merit in the present writ petition, which we dismiss in limine.