' MUHAMAMD JEHANGIR ARSHAD, J.---Petitioners were candidates of the seat of Nazim and Naib Nazim respectively of Union Council No.16, Multan (although having lost the said election) filed this constitutional petition seeking annulment of order dated 26-7-2005 passed by the learned District Returning Officer as an Appellate Authority, Multan whereby the appeal filed by respondents Nos.4 and 5 against the rejection of their nomination papers for the said election by the Returning Officer against the order 24-7-2005 was allowed their nomination papers were accepted and they were permitted to contest the election. This constitutional petition was admitted for regular hearing on 28-7-2005 and it was directed that the matter shall be fixed for hearing on 22-8-2005 although no interim order was passed on the said date yet on 8-8-2005 while disposing of C.M. No.1429 of 2005 it was made clear that the result of the seat in question shall be subject to the ultimate decision of the constitutional petition in hand. On 22-8-2005 respondents Nos.5 to 7 entered their appearance through the learned counsel and also filed written reply and the case was adjourned for today i.e. 24-8-2005 for final hearing. Today arguments on behalf of both the learned counsel have been heard and record perused with the assistance of both the learned counsel for the parties.
2. It has been vehemently argued by Mr. Muhammad Arif Alvi Advocate learned counsel for the petitioner that in fact seven following joint sets of nomination papers for the election of Nazim and Naib Nazim were filed:-- ' Wajad Hussain respondent No.6 along with Muhamamd Aslam respondent No.5.
' Amjad Ali respondent No.4 along with Muhammad Aslam respondent No .5 .
' Amjad Ali respondent No.4 along with Wajad Hussain respondent No.6.
' Saadat Ali, respondent No.7 along with Wajad Hussian respondent No .6 .
' Kashif Ali respondent No.8 along with Sajjad Hussain respondent No.9.
' Rana Muhammad Tariq respondent No.10 along with Sajjad Abid Shah respondent No.11 and lastly ' Zeeshan Shehzad petitioner No.1 along with Malik Zubair Akhtar petitioner No.2.
3. Since the dispute is between the present petitioner and respondents Nos.4 and 5 only, hence the remaining set of candidates need not be discussed in detail except the one pointed out above. The nomination papers of respondents Nos.4 and 5 at Serial No.2 above were rejected by the Returning Officer vide order dated 24-7-2005 on the ground that since the nomination papers of Muhammad Aslam respondent as a Naib Nazim along with Wajad Hussain as Nazim (respondent No.6) at Serial No.1 above were accepted earlier, hence the nomination papers of Muhammad Aslam. Naib Nazim along with Amjad Ali Nazim could be accepted. Feeling aggrieved against the order of the Returning Officer respondents Nos.4 and 5 filed appeal before the learned District Returning Officer and the learned District Returning Officer vide order dated 26-7-2005 allowed the same and they were declared to be a validly nominated candidates. The above mentioned order of the learned District Returning Officer has now been sought to be quashed through this constitutional petition.
4. The grievance of the petitioner is that in terms of rule 12 of the Punjab Local Council Rules, 2005 the respondents Nos.4 and 5 could not have been considered as a validly nominated candidate as both the said respondents had joined different other persons as Nazim and Naib Nazim with them as shown above. The argument is that in terms of rule 154(2) of the Punjab Local Government Ordinance it is mandatory that Union Nazim and Naib Nazim had to contest the election as a joint candidate and that under rule 12 of the Punjab Local Government Elections Rules, 2005 candidate for the election of Nazim and Naib Nazim had to file a joint nomination papers meaning thereby that both the said candidates, i.e. Nazim and Naib Nazim must file one nomination paper as a joint candidate although they may file jointly more than one nomination paper but in no case either of them may file nomination paper by associating another person as a joint candidate other than the one with whom the nomination paper was actually filed hence by filing different nomination papers with different persons for the election of Nazim and Naib Nazim the respondents Nos.4 and 5 could not have been considered as a validly nominated candidates and thus their nomination papers was rightly rejected by the learned Returning Officer which was erroneously and illegally set aside by the learned District Returning Officer through the impugned order. In support of this contention learned counsel has placed reliance on the case of "Sahibzada Farook Anwar Abbasi and another v. Appellate Authority/District and Sessions Judge, Bahawalpur and 9 others (2003 CLC 64).
5. On the other hand Peer Muhammad Asif Rafi Advocate, appearing on behalf on respondents Nos.4 and 5 submits that as held by Honourable Supreme Court of Pakistan in the case of "Ch. Nazir Ahmad and others v. Chief Election Commissioner and 4 others" (PLD 2002 SC 184) this constitutional petition is no more maintainable and that the only remedy available to the petitioner is to approach the Election Tribunal in terms of section 63 of Punjab Local Government Elections Rules, 2005. His further contention is that although the respondents Nos. 4 and 5 filed different nomination papers as detailed above yet the same was not fatal and as all the remaining nomination papers had been withdrawn by the contesting respondents, therefore, their appeal was rightly allowed by the learned District Returning Officer. The learned counsel for the respondents in support of his contention has placed reliance in the case of "Muhammad Jamil Akhtar and another v. Appellate Authority, District Judge, Rawalpindi and 4 others" (2003 SCM R 400).
6. I have considered the arguments of both the learned counsel, perused the record with the assistance of the learned counsel and have also gone through the judgments referred above.
7. Prima facie the impugned order of learned District Returning Officer dated 26-7-2005 neither suffers from jurisdictional defect nor to be interfered with in view of the law declared by the Honourable Supreme Court of Pakistan in Jamil Akhtar's case referred to above. The relevant portion of the judgment of the Honourable Supreme Court of Pakistan is reproduced as below:-- "The examination of relevant rules would show that there is neither any restriction for a candidate to file more than one nomination papers in the same electoral ward in the different panels nor he is debarred to withdraw the nomination papers before the date of scrutiny and thus it would be entirely choice of the candidate to withdraw his nomination papers or not from any panel at any time before the scrutiny if he has filed more than one nomination papers and if no such withdrawal is made before the scrutiny, his candidature shall be determined on the basis of nomination papers first received by the Returning Officer and all remaining nomination papers shall be void.
The nomination papers which are withdrawn before the scrutiny would be deemed to have been not filed and therefore cannot be considered for declaring a person either to be a validly nominated candidate in the election or for rejection of this candidature. In the present case, Ansar appellant filed three sets of nomination papers in three different panels but subsequently he withdrew the nomination papers in panels of Badar Munir and Tahir Mehmood before the date of scrutiny of nomination papers therefore, the same could not be legally deemed to be pending for scrutiny and consequently the candidature of the petitioner for the purpose of election would be determinable on the basis of nomination papers available with the Returning Officer at the time of scrutiny. The District Officer and the learned Judge in Chambers in the High Court having failed to properly attend the proposition in the light of the rules on the subject, were misguided in rejecting the nomination papers of the appellants."
' However, one other aspect of the case to which much stress has been laid by the learned counsel for the petitioner. It is argued by the learned counsel for the petitioner that although Amjad Ali respondent No.4 withdrew his nomination paper filed by him along with Wajad Hussain as Naib Nazim before the scrutiny but the nomination paper of Muhammad Aslam Naib Nazim respondent No.5 along with Wajad Hussain respondent No.6 was accepted on the same day i.e. 24-7-2005 along with nomination paper of Muhammad Aslam respondent as Naib Nazim with Amjad Ali Nazim, Annexure B to this petition, hence Muhammad Aslam respondent No.5 could not be considered as a validly nominated candidate having got his nomination papers with different panel.
8. On the other hand, learned counsel for respondents Nos.4 and 5 has controverted the above contention of the learned counsel for the petitioner by arguing that in fact the nomination paper of Muhammad Aslam respondent along with Wajad Hussain was accepted by the Returning Officer erroneously and in the absence of the parties and on getting knowledge of the said mistake respondents Nos.5 and 6 immediately rushed to the Returning Officer and got the said nomination paper withdrawn which was accordingly allowed by the Returning Officer vide order dated 24-7- 2005.
9. I have also considered the above mentioned contention of the learned counsel for the petitioner and have also examined the record available on the file.
10. The nomination form filed by respondents Nos.5 and 6 Annexure-K on the file and it is clearly indicated on the said nomination form that the same was rejected as withdrawn by the learned Returning Officer on the same date i.e. 24-7-2005. The question which of the two nomination papers Annexures A and B was earlier accepted/allowed by the Returning Officer is disputed question of fact which cannot be gone into in this constitutional jurisdiction and for that matter petitioner has got an alternate remedy by way of filing election petition before the Election Tribunal appointed under rule 64 of the Punjab Local Government Elections Rules, 2005 and in terms of rule 76 of the said Rule the Election Tribunal has got ample jurisdiction to decide about the question of validity or otherwise nomination of Returned Candidate.
11. The upshot of the discussion is that this constitutional petition has got no force and the same is dismissed. The petitioners may however, if so advised, file regular petition before the Election Tribunal when constituted and if any such petition is filed the Election Tribunal would be at liberty to decide all the disputed questions of facts and law raised in the petition after holding regular trial.
No order as to costs.