SYED SHABBAR RAZA RIZVI, J. --- Present writ petition was filed on 27.9.2005 praying that nomination papers of the petitioner may be accepted enabling him to contest election against a seat reserved the 'present', in Zila Council, District Kasur.
2. The nomination papers of the petitioner were rejected by the Returning Officer/respondent. No. 2 on 16.9.2005. Appeal filed before respondent No. 1 was also dismissed vide order dated 20.9.2005.
Above orders dated 16.9.2005 and 20.9.2005 passed by Returning Officer and District Returning Officer respectively, were called in question in Constitutional jurisdiction before the Court.
3. On 28.9.2005, writ petition was admitted and respondent No. 3 was noticed for 3.10.2005. On 3.10.2005, case was adjourned of 4.10.2005. No one appeared on behalf of the respondent No. 3 on the said date. However, since the election was due on 6.10.2005, the petitioner was allowed to contest election subject to final decision of this writ petition. The learned Returning Officer was directed to accept nomination papers of the petitioner. The permission to contest election was granted on undertaking of the learned counsel for the petitioner as well as petitioner himself. The relevant portion of order dated 4.10.2005 reads as under:--- "The learned counsel and petitioner both undertake that they will not have any objection to jurisdiction of this Court even after the election."
The case was fixed on 31.10.2005 but an adjournment was sought on behalf of the 'learned counsel for the petitioner. Unfortunately, the original learned counsel for the petitioner. Mr. Saleem Sehgal, Advocate died. The petitioner engaged Ch. Fawad Hussain, Advocate. The case was fixed on 23.6.2006. An adjournment was sought on behalf of the learned counsel for the petitioner. On 26.6.2006, again similar request was made on behalf of the learned counsel for the petitioner. On the said date it was recorded by 'this Court that, "Ch. Fawad Hussain, Advocate does not appear before me, therefore, petitioner is directed to make an alternate engagement." Subsequent to that on 29.9.2006, 18.10.2006 and 20.5.2007, adjournment was sought on behalf of the petitioner. On 20.3.2007,the learned counsel for the petitioner submitted that he wanted to withdraw power-of- attorney of his counsel. On the above excuse, the petitioner sought another adjournment to engage a new counsel. Power-of-attorney was submitted by Dr. A. Basit, Advocate on behalf of the petitioner. On 26.3.2007, another request for adjournment was made on behalf of the learned counsel for the petitioner and the case was adjourned for today i.e. 27.3.2007. Thus, finally this case has been argued after 18 months and that too after putting a great effort by this Court. It may also be noted that all requests for adjournment were made on behalf of the learned counsels for the petitioner, on one excuse or another despite protest of learned counsel for respondent No. 3.
4. Dr. A. Basit, Advocate, the learned counsel for the petitioner at the very outset submitted that he had no objection to the jurisdiction of this Court to hear the present writ petition in view of the order dated 4.10.2005. He further submitted that the petitioner was elected against a seat reserve for "peasant" category in the District Council, Kasur on 6.10.2005. Notification of the petitioner was issued on 17.10:2005. Thereafter, petitioner contest election of Naib Nazim, Zila Council, Kasur. He was elected as Naib Nazim,, Zila Council, Kasur on 28.12.2005. Notification to the above effect was issued on 3.1.2006. The learned counsel further submitted that election of the petitioner against reserved seat for "peasant" as well as Naib Nazim, Zila Council were important developments to be considered while deciding the present will petition. In addition to the above, the learned counsel also contended that as application (undated) was moved by one Zulfiqar Ahmad son of Jhanda against the petitioner under Section 152(2)(b) of the Ordinance, 2001 which is still pending before the learned Chief Election Commissioner, who is a persona designate. According to him in view of the pendency of the said application this Court should refer this matter to the learned Chief Election Commissioner who is a competent authority under the present circumstances. The learned counsel further 'referred to rule 70 of the Punjab Local Councils Election Rules, 2000 and contended that election of the petitioner could not be called in question except through filing an election petition. In this regard learned counsel relied upon to PLD 2002 SC 184. According to the learned counsel, the property which is referred as basis of disqualification was not acquired by the petitioner, as a matter of fact, he inherited the same.
5. On the other hand, the learned counsel for the respondent submitted that petitioner got extra- ordinary concession by this Court on 4.10.2005 by getting permission to the nomination papers. The petitioner was refused permission to contest election by the learned Returning Officer as well as District Returning Officer. This Court provided him conditional relief subject to final order in the present writ petition. In this regard, the learned counsel also referred to undertaking given by the petitioner as well as his counsel which was duly recorded in order dated 4.10.2005. According to the learned counsel for the respondent, the learned counsel for the petitioner could not, therefore, refer to Section 152(2)(b) at this stage. He submitted that in view of the above peculiar circumstances, Section 152(2)(b) is not attracted in the present case in addition to the above, the learned counsel for the respondent contended with full vehemence that as far as disqualification of the .Petitioner is concerned, it is conceded by the learned counsel for the petitioner as he did not utter a word to contend that petitioner was qualified to contest election against reserved seat for "peasant" on the date, the nomination papers were filed by him.
6. Section 37 of the Punjab Local Government Ordinance, 2001 provides composition of Zila Council.
According to the said section. Zilla Council consists of all Union Nazims in the district and following members elected on the reserved seats namely:- "(i)
(ii) such number of "peasants" and workers so as to represent 5% of the total number of the unions in the district subject to a minimum of one seat."
7. Under section 2(xxvi) of the Ordinance, 2001 "peasant" means a person who is a landless farm worker or one who during the period of 5 years preceding the year in which election is held, has been the owner of not more than five acres of land and depends directly on it for subsistence living. Under section 152(1)(i) of the Ordinance, 2001:--- a person shall qualify to be elected or to hold an elective office or membership of a Local Government if he does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his on name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the defacto control of such assets including their sale, transfer or pecuniary interest, is retained by him. Under sub-section (1)(i) of the same section such person shall qualify if he has not been adjudged a wilful defaulter of any tax or other financial dues owned to the federal, .a provincial. Or a local government or any financial institution, including utility bills outstanding for six months or more. The order of the learned Additional Sessions Judge/Returning Officer, Zilla Council, Kasur demonstrate that petitioner failed to fulfill the above requirements of Section 152(1)
(i) & (j). Para-5 of the order of the Returning Officer reads as under:--- "While considering the documents brought on record by the objectors and declaration of assets in Form XIX furnished by Maqsood Sabir candidate which is also incomplete, he Owns sufficient urban immovable property and is a partner of Sabir Textile Industries, and cannot be categorized as peasant as per definition provided under Section 2(xxvi) of the Punjab Local Government Ordinance, 2001. Maqsood Sabir has not produced any record i.e. Khasra girdawri on other revenue record suggesting his cultivation of the agricultural land as a 'lessee. Over and above the candidate has been adjudged defaulter and decree has been passed against him by learned Judge Banking Court No. II, Lahore and execution petition is also pending and he does not qualify as member of Local Government under Section 152(1)0) of Punjab Local Government Ordinance, 2001. For these reasons the objection petitions are hereby accepted and nomination papers of Maqsood Sabir candidate to reserved seat for peasant/worker is hereby rejected."
8. The order of the learned Returning Officer clearly reveals that the petitioner deliberately and male fidley concealed his assets and he was also an income tax payee. He was also declared defaulter in matter of Government dues etc. The above finding of the learned Returning Officer dated 16.9.2005 was challenged in appeal before the learned District Returning Officer, Kasur. The order of the learned Returning Officer was approved and upheld. The District Returning Officer, Kasur concluded that the petitioner was not a "peasant" by any stretch of interpretation of law. In the above background, the present writ petition was filed.
9. They argument of Dr. Abdul Basit, the learned Advocate of the petitioner have been incorporated in para-4.
C.L.R.
The learned counsel did not utter a single word against the findings of the learned Returning Officer and learned District Returning Officer. Therefore, for all purposes, I hold that the petitioner is not a "peasant" and he was not qualified to contest election on a seat reserved for a "peasant" in terms of provisions of Section 152 to be read with Section 2(xxvi) of the Punjab Local Government Ordinance, 2001.
10. The learned counsel for the petitioner submitted that though he had no objection to the jurisdiction of this Court yet the suggested that the matter should be referred to the learned Chief Election Commissioner of Pakistan in view of provisions of Section 152(2)(b) of the Ordinance, 2001, for two reasons. Firstly, after obtaining permission to contest election from this Court the petitioner was elected as a member of the Zila Council, Kasur on a "peasant" seat and on the basis of same he was also elected as Naib Nazim Zila Council, Kasur. Secondly, one Zulfiqar Ahmad son of Jhanda filed an application to the learned Chief Election Commissioner of Pakistan under Section 152(2)(b) of the Ordinance, 2001 to hold an inquiry against the petitioner for having contravened the provisions of sub: section (1) of Section 152 of the Ordinance, 2001. The contention of suggestion of the learned counsel for the petitioner is neither persuasive nor convincing in the facts and circumstances of the present case, thus untenable. In context of PLD 2002 SC 184 and this contention, the learned counsel must bear in mind that it was petitioner who approached this Court in Constitutional jurisdiction when his nomination papers were rejected by the learned Returning Officer as well as by the learned District Returning Officer and not the respondent. The petitioner had no other forum available for an expeditious relief. This Court provided him relief/opportunity to contest' election on 4.10.2005 as election was due only after two days i.e. On 6.10.2005. The petitioner claimed himself qualified before this Court as a "peasant" to contest against a reserved seat for "peasant". The Court believed him and enabled him to contest election if he was so qualified. Had he been actually qualified and not allowed to contest election. Under that situation and for that consideration, this Court came to his rescue in its Constitutional jurisdiction, after taking his undertaking Order dated 4.10.2005 is reiterated as under:--- "The learned counsel and petitioner both undertake that they will not have any objection to jurisdiction of this Court even after the election."
The permission was sought by the learned counsel for the petitioner to contest election, therefore, if he has been elected, this is not an unexpected or unknown development. Whosever, contests election, either wins or lose; it was in the knowledge of the petitioner as well as this Court. Therefore, the fact of his being elected does not require this Court to overtook his disqualification which was, certainly known to the petitioner at the time of filing this petition, but not to this Court. In simple words, on 4.10.2005, the petitioner made an incorrect and fraudulent statement, with his words and acts he misled this Court. And also usurped an office which was definitely not intended to be occupied by a person like him. The office to which he has been elected is meant for a "peasant" only, as defined in Section 2(xxvi) of the Ordinance, 2001 indeed. Should this Court in its Constitutional jurisdiction, which is discretionary in nature, alone petitioner to reap benefit of his incorrect and fraudulent statement? Should this Court close its eyes or act as a spectator to the conduct of petitioner above discussed? Certainly not This cannot be allowed to happen to save the honour and majesty of the law as well as this Court. No one should consider Constitutional jurisdiction of this Court fragile to misuse the same or deviate from it to meet one's on designs or suitability. It is exercised only in favour of those who approach with clean hands and with a genuine grievance.
11. Section 152(2)(b) is applicable in the normal circumstances when it is invoked bona fidley. No law is made to be invoked for mala fide purposes and intention. This case has its on peculiar circumstances. The cognizance was taken by this Court prior to the election. The relief proved to the petitioner was contingent upon petitioner's on and his counsel's .Undertaking. It was observed by this Court on 4.10.2005 that the election result would be subject to final decision of this writ petition. Thus, -the petitioner is estopped at this stage to submit that this Court should refer the matter to the learned Chief Election Commissioner of Pakistan. In this context, a reference may be made to Abdul Haleem v. Faiz-un-Nisa Bibi (PLD 1969 Dacca 640). Even otherwise, in the present case, no inquiry is needed to ascertain truthfulness of facts of disputed facts. The only question to consider is whether the petitioner was qualified to contest election as a "peasant" on the day when he filed his nomination papers? Not a single word has been uttered by the learned counsel for the petitioner to contend that he was a "peasant" in terms of Section 2(xxvi) of the Punjab Local Government Ordinance, 2001. Likewise, nothing has been argued against both the orders of the learned Returning Officer. For further guidance, Fazlul Qadir Ch. v. Muhammad Abdul Haq (PLD 1966 SC 486) and Muhammad Sarfraz v. Sikandar Hayat (PLD 2006 Lahore 56) may be consulted.
12. The learned counsel also referred Rule 70 of the Punjab Local Government Rules, 2000, to contend that no election can be called in question except by an election petition made by a candidate for that election. As a matter of fact, presently the relevant rule is not rule 70 of Rules, 2000 instead; it is Rule 65 of the Punjab Local Government Election Rules, 2005. The learned counsel, in this context also referred to Article 225 of the Constitution of Pakistan. 1973, which provides that all elections under , the Constitution, shall not be called in question except through an election petition. In support of his contention he referred to Ch. Nazir Ahmed v. Chief Election Commissioner (PLD 2002 SC 184). The contention of the learned counsel and the precedents are not applicable to the present case as facts and circumstances are peculiar and distinguishable from the facts and circumstances of the above-mentioned case. In addition to reasons already recorded in the preceding paragraphs, it is observed that Rule 65 does not carry the same weight as Article 225 of the Constitution. Rules under a statute and an Article of the Constitution are not considered at par.
Even are argument sake., if we treat both the provisions alike, under peculiar circumstances, jurisdiction under Article is not barred. For example, in a particular case, relief awarded under Article 199 of the Constitution was approved by the Hon'ble Supreme Court of Pakistan. In Ghulam Mustafa Jatoi's case, the Hon'ble Supreme Court held as under:- "In view of the above peculiar circumstances, the above-noted case is distinguishable from the present case. In the above report, the minimum was rendered by one of us (Nasim Hussain Shah, J.), in which was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant's above-mentioned petition was competent and the High Court by declining to exercise its Constitutional jurisdiction for the reason quoted hereinabove has failed to exercise jurisdiction vested in it." (Ghula. m M-stafa Jatoi v. Additional District and Sessions Judge, 1994 SCMR 1299)."
Rule 65 allows filing of an election petition within 30 days of the publication of election results in the official Gazette. The pendency of the present writ petition has already consumed more than one year, therefore, the respondent cannot be left in lurch at this stage. Moreover, present writ petition was filed before election by petitioner himself and not by the respondent. The Hon'ble Court was not confronted with this kind of situation in the precedent case nor the same situation was discussed or considered. In a recent D.B. Judgment of this Court, wherein, the Constitutional petition was filed before the result was declared in official Gazette; objection to the maintainability was raised which was repelled by the Court. (Dr. Amjad v. Muhammad Fayyaz, 2005 YLR 419). It may be emphasized that Constitutional jurisdiction in the present case was invoked by the petitioner himself. At the time of filing present writ petition, he had no remedy available to him which was conditionally provided to him on 4.10.2005. At that time the Constitutional jurisdiction of this Court suited him, if it does not suit him now, can this Court be allowed to act according to the suitability and convenience of a period who approached this Court with sullen hands? That could never be the intention of the founders of the Constitution. Upshot of the above discussion is that contention of the learned counsel for the petitioner is not accepted.
13. Another way to look upon the present controversy is that above facts manifestly established that the petitioner was disqualified to hold the police office to which he is a present incumbents.
Under Article 199(1)(b)(ii) of the Constitution, this Court is competent to require a person within its territorial jurisdiction, holding or purporting to hold a public office, to show under what authority law he claims to hold that office. Thus, the present writ petition can also be treated a writ of quo warranto nature. According to a decision to this Court, a writ of quo warranto can be issued even against an elected person, in this regard a reference may be made to Akhtar Rehman's v.
Muhammad Latif Tahir (PLD 1981 Lahore 48). In another case, this Court observed that the writ of quo warranto owed to be encouraged to keep a check on those persons who occupy public offices without required qualifications. A reference may be made to Muhammad Shafiq Raja v.
Government of the Pakistan (1991 CLC 617).
14. As a result of the foregding discussion and grounds, this Court holds as under:---
(a) The nomination of the petitioner was invalid as he was disqualified to contest election against a seat reserved for a "peasant";
(b) That the election of the petitioner was procured on basis of filing incorrect statement of his assets, etc. And for the same reason the order of the learned Returning Officer dated 16.9.2005 and learned District Returning Officer dated 20.9.2005 are upheld; and
(c) Since the petitioner was not qualified to contest the election, result of his election both as a Member and as a Naib Nazim Zila. Council, Kasur are also declared void.
15. This writ petition is dismissed with costs of Rs.
50,000/- as the petitioner has misused the judicial process of this Court. The concerned authorities are directed to fill the vacancies in accordance with law/rules within the stipulated period contemplated under the law/rules. .