' MUHAMMAD AKHTAR SHABBIR, J.---The brief resume of the case is that the petitioners contested the election for the posts of Nazim and Naib Nazim of Union Council No,156 Dhandra, Faisalabad against respondents Nos. 2 and 3 and other candidates. The petitioners have been declared successful candidates by the Returning Officer of the Union Council No,156 by securing 2489 votes and in this regard a notification has been issued.
2. Respondents Nos. 2 and 3 did not accept their defeat at the hands of the petitioners and challenged the election of the petitioner byfiling an election petition before respondent No,1/Election Tribunal on 2-9-2005. They challenged the matriculation certificate of petitioner No,2 Muhammad Aslam candidate of Naib Nazim. The petitioners had also moved an application on 26-10-2005 under Order VII Rule 11, C.P.C. For rejection of the election petition before respondent No,l. The election petition was contested by the petitioners and from the factual controversy appearing on the pleadings of the parties the various issues were framed by the Election Tribunal.
The. Election Tribunal after recording the evidence of the parties vide judgment, dated 8-2-2007 accepted the election petition, declared the election of the petitioners as illegal being ineligible to contest the election due to disqualification of petitioner No,2 whose matriculation certificate was found in genuine.
3. Learned counsel for the petitioners contended that no objection against the matriculation certificate of petitioner No,2. Muhammad Aslam was raised at the time of scrutiny of the nomination papers and the record of the concerned Board of Secondary Education to verify the matriculation certificate issued has not been summoned by the Election Tribunal. Further contended that the application of the petitioners filed under Order VII, Rule. 11, C.P.C. For rejection of the election petition due to non-verification of the documents has not been decided by the Election Tribunal before announcing the final order on the election petition. Further contended that due to the disqualification of.Petitioner No,2, petitioner No,1 could not be non-suited as he qualifies to contest and hold the post of Nazim. He placed his reliance on the cases of Messrs Bashir Leather Int. (Pvt.) Limited and 2 others v. Muslim Commercial Bank Limited through Manager (2006 CLD 132) and Gul Muhammad through Legal Heirs v. Karachi Development Authority and another (1998 MLD 150). While on the other hand, learned counsel for the' contesting respondents Nos. 2 and 3 vehemently opposed the arguments of the learned counsel for the petitioners, supported the order of the Election Tribunal contending that the raising of objection at the time of scrutiny of the nomination papers would not entitle petitioner No,2 to retain the office despite his disqualification in education. Further contended that the application of the petitioners filed under Order VII Rule 11, C.P.C. Has also been attended by the Election Tribunal and non-verification of the documents annexed with the petition would not vitiate the 'proceedings before the Election Tribunal. Further contended that petitioner No,2 has not claimed his matriculation certificate as genuine in his reply to the election petition. He further contended that petitioner No,2 has not specifically denied the allegation of his bogus matriculation certificate. Further contended that the Election Tribunal is competent to declare the runner up candidates as successful if the fact of bogus matriculation certificate is already brought to the notice of the electorals of the area.
4. I have heard the learned counsel for the parties, and perused the record with their kind assistance.
5. Section 152 of the Punjab Local Government Ordinance, 2001 provided qualification for candidates and elected members. Subsection (1)(e) of section 152 envisaged that a candidate for the office of membership of local government should have academic qualification 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. This is one of the qualifications of the candidates for the office of the local government and if any of the qualifications contemplated in section 152 is lacking the candidate becomes disqualified to contest the election or to hold the office, or membership of a local council. If the objection at the time of scrutiny of the nomination papers is not raised by the contesting candidates, it would not entitle the elected candidate to hold the office, if he is disqualified due to lacking of his academic qualification or matriculation examination from a recognized institution. The election of the elected candidate can be challenged on the basis of his disqualification by filing an election petition by the contesting candidate or by filing a writ of "quo-warranto" by any electoral/voter of the area.
6. As to the arguments of the learned counsel for the petitioners that the election petition is not maintainable for non-verification of the documents annexed with the petition is concerned, this argument has no force. This question has already been decided by the Honourable Supreme Court in the case of S.M. Ayub v. Syed Yousaf Shah (PLD 1967 SC 486) in which it was held that mere defect in verification of documents annexed with election petition would not render the same unmaintainable and same view was further affirmed by the Honourable Supreme Court in the case of Abdul Nasir v. Election Tribunal T.T. Singh and others (2004 SCM R 602). Further followed in the case of Muhammad Zafarullah Khan and another v. Ehsan Ullah Khan and 2 others (2006 CLC 718).
7. It would be relevant to mention here that on the application filed by the petitioners under Order VII Rule 11, C.P.C. Additional issue No,1-A has been framed which reads as under:-- "Whether the election petition is not maintainable in view of non-verification of the documents annexed with the election petition? OPR"
' This issue was very much attended to by the Election Tribunal and while recording its findings observed that the respondents/petitioners have failed to prove this issue and the same has been decided against the present petitioners.
8. So far as the disqualification of, petitioner No,2 Muhammad Aslam is concerned, the election petition was filed against the petitioners for the disqualification of one of the petitioners, candidate of Naib Nazim, challenging the matriculation certificate before the Election Tribunal and full opportunity was provided to them to establish their case. No evidence was produced by the petitioners on the record, which could prove that the matriculation certificate claimed by petitioner No,2 was a genuine one. Petitioner No,2 is son of Muhammad Tufail and during the proceedings before the Election Tribunal, he placed on record photocopy of his matriculation certificate bearing Roll No,24225, wherein paternity of one Muhammad Aslam is written as Shah Muhammad whereas petitioner No,2 is admittedly the son of Muhammad Tufail. This factual position available on the record has not been rebutted by the petitioners. It was his legal duty to produce the original matriculation certificate issued in his name by the concerned institution. The onus to prove the genuineness of the matriculation certificate was legally upon petitioner No,2 who based his qualification to hold the post of Naib Nazim on the basis of the said certificate. Petitioner No,2 miserably failed to prove that the matriculation certificate based upon by him is a genuine document. Learned Election Tribunal after recording the evidence has rightly gave findings in favor of the election petitioners/respondents Nos. 2 and 3 and against the present petitioners. Petitioner No,2 was legally and validly declared disqualified to hold the post of Naib Nazim.
9. The Election Tribunal may upon the conclusion of the trial of the election petition would pass the following order as provided in Rule 75 of the Punjab Local Government Elections Rules, 2005:-
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
10. From the plain reading of the above rules it is manifestly cleared that the Election Tribunal is empowered and competent to declare any other contesting candidate to have been duly elected as in the present case. The application of the petitioners for summoning the record of the Board of Secondary Education, Sargodha has been rightly dismissed by the Election Tribunal being belated and mala fide, because it was not filed within three days following the date on which the parties were called upon to produce their evidence as envisaged in Rule 71(1)(e).
11. In the election petition the election petitioners/respondents Nos.2 and 3 had prayed for declaring them to be elected candidates as Nazim and Naib Nazim of the constituency. Section 77 of the Rules contemplated that the Election Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared as elected. As the petitioners were not even qualified to file the nomination papers and to contest the election, so in exercise of the powers under Rules 75, 76 and 77 of the Punjab Local Government Elections Rules, 2005, the Election Tribunal has rightly exercised the jurisdiction granting relief to the election petitioners/respondents Nos. 2 and 3 This argument is further supported by an unreported judgment passed in Writ Petition No,1555 of 2007 titled as Shahid Aslam etc. v. Election Tribunal etc. Dated 21-2-2007.
12. As to the objection of the counsel for the petitioners that the disqualification of the petitioner Muhammad Aslam was not notorious the Doctrine of 'throw away votes' would not be applicable to the present case. The objection was raised by the contesting respondents Nos. 2 and 3 with regard to the disqualification of petitioner No,2 before the Returning Officer which was rejected on the ground that it was not raised within the stipulated period on 17-8-2005 and this news was splashed in the National Newspaper daily "Express" on 20-8-2005. The appeal was also filed by respondents Nos. 2 and 3 before the District Returning Officer for rejection of the joint candidature of the petitioners but the said appeal was also dismissed being barred by time on 19-8-2005. Paragraph No,3 of the election petition showing splashing of the news in the National Newspaper daily "Express" with regard to the disqualification of petitioner Muhammad Aslam has not been denied by the present petitioners so it is established that the electorals/voters of the area were having the knowledge of disqualification of petitioner No,2. This fact has also been admitted by R.W.2 that the news of forged certificate of Muhammad Aslam-petitioner No,2 was published in newspaper "Daily Express".
13. In Mian Ahmed Saeed's Case reported as (2003 SCM R 1611) the Hon'ble Judges of the Supreme Court of Pakistan in paragraph 30 have observed that the principle of notoriety cannot be invoked in a case in which the disqualification of a candidate was not notorious at the time of polling or escaped notice of the Returning Officer during the process of scrutiny of the nomination papers and the electors, despite being aware of such disqualification in the light of decision of acceptance of nomination papers of the candidate formed opinion that he was qualified to contest the election, were justified in exercising their right of vote inhis favor. The essential requirement for the application of this rule is that disqualification must be established on record to be notorious through the positive evidence and it must be known to the electors or it must be of the nature which may give rise to the presumption of notoriety but if the above elements are not satisfied, the electors cannot be said to have 'Thrown away' their votes by casting votes in favor of a disqualified person and in such a case declaring the next candidate securing highest votes would amount to defranchise the electors for no fault on their part, but in the case in hand the disqualification of petitioner No,2 Muhammad Aslam was published in the newspaper as admitted by R.W.2 as well as petitioners in their reply to the election petition, thus, in this case the Election Tribunal has rightly declared the respondents Nos. 2 and 3 as returned candidate. It has further been observed in Bashir Ahinad Bhanbhan's case reported as (PLD 2004 SC 570) wherein it has been stated that the notorious means the fact of being publicly or commonly or generally known forming a matter or common knowledge.
14. It is settled proposition of law that rejection of nomination papers of any of the joint candidates shall be rejection of the nomination papers of both the candidates because both the petitioners filed the joint nomination papers. The vacancy occurring in consequence of the declaration of the election as void by the Election Tribunal shall be filled in on the basis of the joint vacancy and the seat vacated by the joint candidates as a result of declaring the election void shall be excluded from the purview of the rules relating to the filling of the casual vacancy in the individual capacity.
Reference in this context can be made to the case of Mian Ahmed Saeed v. Election Tribunal (2003 SCM R 1611).
15. For the foregoing reasons and particularly as observed in para. 8 above, this writ petition being devoid of force is dismissed.