' JUSTICE MIAN HAMID FAROOQ (ELECTION TRIBUNAL).--- Present single judgment shall decide the instant election petition captioned "Rana Shaukat Mehmood v. Rana Muhammad Tajammal Hussain and others" (Election Petition No,28 of 2002) and the other consolidated election petition titled "Malik Javed Awan v. Rana Muhammad Tajammal Hussain and others (Election Petition No,221 of 2002), as common questions of law and facts are involved in both the election petitions, both the petitioners have challenged the election of respondent No,1 as member of the Provincial Assembly from Constituency No,PP-157 Lahore and these petitions were consolidated by this Tribunal, vide order, dated 4-6-2003.
2. Rana Shaukat Mehmood and Malik Javed Awan, the election petitioners, through the aforenoted election petitions have called in question the election of Rana Tajammal Hussain, respondent No,1, (hereinafter referred to as the respondent) whereby he was declared the returned candidate and elected as Member Punjab Provincial Assembly from Constituency No,PP-157, Lahore. Rana Shaukat Mehmood has made the following prayer:-- "Hence prayed that by accepting the subject election petition, this learned Tribunal in the exercise of its powers may graciously declare the election of the respondent No,1 as void and in his place the petitioner is entitled to be declared as duly elected as a Member of Punjab Provincial Assembly from Constituency No,PP-157, Lahore in the Elections held on 10th October, 2002, as legal defect exists in his candidature and not in the election process."
' The other election petitioner has sought the following relief:-- "In view of the above submissions it is most respectfully prayed that the instant election petition may kindly be accepted and the poll in Constituency No,PP-157 and election of respondent No,9 be declared to be void, of no legal effect and set aside accordingly."
3. Briefly stated the facts culminating to the institution of the present petitions are that the petitioners along with the respondents contested the general elections, held on 10-10-2002, for the seat of Member Punjab Provincial Assembly from Constituency No,PP-151, Lahore. According to Rana Shaukat Mehmood the nomination papers of respondent No,1 were ab initio void, as the proposer and seconder to his nomination papers were not electors of Constituency No,PP-157. The nomination papers of respondent No,1 were accepted and he was allowed to contest the election.
According to the final results and consolidated statement of counts Rana Shaukat Mehmood secured 10982 votes and Malik Javed Awan got negligible votes, while respondent polled 14356 votes. The respondent was declared the returned candidate and elected as Member of the Provincial Assembly from Constituency No,PP-157, Lahore. Consequent thereto the Election Commission of Pakistan issued the notification thereby notifying the respondent as the returned candidate. Rana Shaukat Mehmood challenged the election of respondent No,1 by filing the Constitutional Petition (Writ Petition No,18608 of 2002) on the aforesaid ground, however, it was dismissed by the.Lahore High Court on 30-10-2002. Feeling discontented with the said results and notification, the petitioners have filed the present election petitions under section 52 of the Representation of the People Act, 1976, (hereinafter referred to as Act) before the Honourable Chief Election Commissioner, which petitions were entrusted to this Tribunal for trial and disposal in accordance with law.
4. The petitioners have challenged the election of the respondent on the following grounds:---
(i) that the proposer and the seconder, namely, Muhammad Asif and Shafqat Ali, to the nomination papers submitted by respondent were not the electors of Constituency No,PP-157, as such, the nomination/candidature of the respondent was ab initio void.
(ii) that respondent No,1 was defaulter of a sum in excess of Rs,2 millions which he owes to "Anjuman Imdad-e-Bahmi Kifayat Sha'ari and Qarza" Village Dial Janubi a Cooperative Society of the Cooperative Department, Government of Punjab.
(iii) that the respondent is not a graduate.
5. All the respondents were summoned by this Tribunal but only Rana Tajammal Hussain contested the petitions and rest of the respondents (except Malik Javed Awan who is the election petitioner) were proceeded against ex parte. Respondent filed the written statement and he besides raising legal objections and controverting the contents of the petitions pleaded that Muhammad Asif and Shafqat Ali were competent to propose and second the candidature of respondent No,1 and that he is not at all a defaulter.
6. This Tribunal, on 4-6-2003, after finding that both the election petitions are based on same cause of action and both the petitions proceed against election of respondent No,1 from the same constituency, consolidated both the petitions and directed that the proceedings shall be recorded in the election petition filed by Rana Shaukat Mehmood. Pursuant thereto following consolidated issues were framed:--
(1) Whether the petitioners have no right or authority to file the present Election Petitions? OPR-I
(2) Whether the petitioners were not qualified to contest and participate in the Elections? OPR-I
(3) Whether the petitioners have not come to the Court with clean hands? OPR-I
(4) Whether Rana Shaukat Mehmood petitioner had filed a constitutional petition before the Honourable Lahore High Court, Lahore and which was dismissed? If so, what is the effect of the dismissal of the said constitutional petition on the Election Petition filed by him? OPR-I
(5) Whether the proposer and seconder of respondent No,1 were not electors of PP-157, Lahore? If so, with what effect? OPP
(6) Whether respondent No,1 is a defaulter? OPP
(7) Whether respondent No,1 is not a Graduate? OPP
(8) Whether the declaration filed by respondent No,1 was false and incorrect? If so, with what effect? OPP
(9) Whether respondent No,1 was disqualified from contesting the election in question? OPP
(10) If issues Nos.5 to 9 are proved, whether nomination of respondent No,1 from the constituency in question was wholly void and against the provisions of the Representation of the People Act, 1976?
OPP
(11) Whether the election of respondent No,1 from Constituency No,PP-157, Lahore is liable to be declared as illegal and void? OPP
(12) In case Issue No,11 is proved, whether any of the two petitioners is entitled to be declared as a duly elected Member of Provincial Assembly of the Punjab in place of respondent No,1? OPP
(13) Relief.
7.(i) The election petitioners produced the following documentary evidence:
(a) Copy of application to the Returning Officer. Exh.P.1.
(b) Extracts of Electoral List relating to Exh.P.2 Muhammad Asif.
(c) Extracts of Electoral List relating of Shafaqat Exh.P.3 Ali
(d) Copy of voters list of 2002 Mark "A"
(e) Copy of Gazette of Pakistan dated 11-9-2002 regarding final list of polling stations in respect of Provincial Assembly Constituency Mark "B" No,PP-158, Lahore XXII
(ii) In support of their case, the petitioners produced following witnesses:--
(a) Khalid Rashid Election Officer (P.W.1).
(b) Ali Akhtar Khan, Legal Assistant, Law Branch, Election Commission of Pakistan (P.W.2).
(c) Muhammad Arshad Assistant Registrar Cooperatives (P.W.3).
(d) Rana Shaukat Mehmood petitioner. (P.W.4).
(e) Malik Javed Awan petitioner (P.W.5).
(iii) Learned counsel for the respondent produced the following documents:--
(a) Photo copy of B.A. Degree of Rana Mark "C" Tajammal Hussain, respondent No,1
(b) Certified copy of judgment dated 8-9-2002 passed in Election Appeal No,286-A of 2002 Exh.R/1 by the Election Tribunal/Lahore High Court.
(c) Judgment dated 18-9-2002 passed in Writ Petition No,16949 of 2002 by the Full Bench Exh.R/2 of the Lahore High Court.
(d) Judgment, dated 30-10-2002 passed by the Lahore High Court in Writ Petition Exh.R.3 No,18609 of 2002
(e) Copy of suit in COS No,33 of 2001 title "Zarai Taraqiati Bank Limited v. Messrs Exh.R.4 Punjab Polypropelene Industries (Pvt.) Ltd." filed in the Lahore High Court.
(iv) Rana Tajammal Hussain respondent No,1 produced the following witnesses:--
(a) Rana Fazal Ahmad, Assistant Controller of Examinations, Punjab University, Lahore (R.W.1).
(b) Muhammad Ilyas, Record Keeper, Punjab Provincial Cooperative Bank Ltd. (R.W.2) (The witness was not examined by the learned counsel for the respondent).
(c) Rana Tajammal Hussain, respondent No,1 (R.W.3).
8. I have heard the learned counsel for the parties at length. My issuewise findings are as under:-- Issue No,1 Whether the petitioners have no right or authority to file the present Election Petitions? OPR-I
9. The onus to prove this issue was on the respondent. Learned counsel for the respondent did not press this issue.
Issue No,2 Whether the petitioners were not qualified to contest and participate in the Elections? OPR-I
10. The onus to prove this issue was on the respondent. Learned counsel for the respondent did not press this issue.
Issue No,3 Whether the petitioners have not come to the Court with clean hands? OPR-I
11. The onus to prove this issue was on the respondent. Learned counsel for the respondent did not press this issue.
Issue No,4 ' Whether Rana Shaukat Mehmood petitioner had filed a constitutional petition before the Honourable Lahore High Court, Lahore and which was dismissed? If so, what is the effect of the dismissal of the said constitutional petition on the Election Petition filed by him? OPR-I
12. Learned counsel for respondent submits that Rana Shaukat Mehmood filed the constitutional petition (Writ Petition No,18609 of 2002) which was dismissed by the High Court on 30-10-2002 (Exh.R.3), therefore, now he is estopped to take the said plea in the present election petition. He adds that valuable rights accrued to the respondent as he was elected by the majority of the electorates and cannot now be deseated after the lapse of nearly four years. He has added that even Malik Zafar Iqbal Awan did not raise the said objection. He has referred to Exh.R.1.
' Admittedly Rana Shaukat Mehmood filed the Constitutional Petition (Writ Petition No,18609 of 2002) which was dismissed by High Court on 30-10-2002 and certified copy whereof is exhibited as Exh.R.3. This fact has not been denied by the learned counsel for Rana Shaukat Mehmood. Perusal of the contents of the said judgment manifests that the learned Judge in Chamber, after holding that the petitioner did not raise the objection regarding validity of nomination papers before the Returning Officer and that he has not filed any appeal against the acceptance of nomination papers of respondent No,3, dismissed the said petition primarily on the ground that the petitioner can agitate the issue before the Election Tribunal under section 52 of the Representation of the People Act, 1976. It appears appropriate to reproduce para.7 of the said order:-- "The petitioner has not raised this objection before the Returning Officer, he has not filed any appeal against acceptance of the nomination papers of respondent No,3. He has challenged the election of respondent No,3 on 16-10-2002 after his unofficial declaration as a returned candidate.
Respondent No,3 controverted the contention of the petitioner that Muhammad Asif and Shafqat Ali his proposer and seconder are from another constituency. He has asserted that they belong to PP-157 and was validly nominated and seconded by them. The Election Tribunals have already been established on 24-10-2002, therefore, the petitioner can agitate the issue raised herein before the Election Tribunal under section 52 of the Representation of the People Act, 1976. This petition in view of Article 225 of the Constitution of Islamic Republic of Pakistan and the law laid down by the Honourable Supreme Court in PLD 1989 SC 396 and PLD 2002 Supreme Court 184 is not maintainable and is dismissed with no order as to costs. The C.M. For addition of prayer has become redundant with the dismissal of the writ petition."
' Thereafter Rana Shaukat Mehmood and Malik Javed Awan filed the present petitions.
' Another Constitutional Petition (Writ Petition No,16949 of 2002 titled "Malik Zafar Iqbal v. Returning Officer and others") was filed by one Malik Zafar Iqbal, but the same was also dismissed, along with the other constitutional petitions through a consolidated judgment rendered by the Honourable Full Bench of the Lahore High Court on 18-9-2002, concluding therein that the grievance of the petitioners could be "redressed by the Election Tribunal which in the event of declaring the election as a whole to be void could make any appropriate order as a consequential relief".
' It is true that the aforesaid constitutional petitions were dismissed by the Honourable Lahore High Court, however, it is equally true that the same were dismissed primarily on the grounds that the petitioners have got a remedy to seek redressal of their grievance through filing the election petitions. To my mind although Rana Shaukat Mehmood filed the constitutional petition which was dismissed, yet it has no bearing and adverse affect on the merits and fate of the present petitions, as it was held that after the elections all the matters can be decided by the Election Tribunal. Issue No,4 is decided accordingly.
Issue No,5 ' Whether the proposer and seconder of respondent No,1 were not electors of PP-157, Lahore? If so, with what effect? OPP
13. The onus of proof of this issue is on the petitioners. P.W.1, Election Officer, stated that names of Muhammad Asif son of Muhammad Sadiq and Shafqat Ali son of Muhammad Boota find mention in the voters list for general elections of the year 2002 and they are residents and voters of "Dograi Khurd". Certified copy of the voters list was marked as Mark "A". P.W.2 is Legal Assistant, Law branch of Election Commission of Pakistan, who produced list of polling stations in respect of constituency of Provincial Assembly of PP-158, Lahore and deposed that village "Dograi Khurd" was attached with Polling Station No,66 and the voters belonging to village "Dograi Khurd" cast their votes at this polling station. Rana Shaukat Mehmood, the election petitioner, while appearing as P.W.4, has stated that proposer and seconder of Rana Tajammal Hussain did not belong to Constituency No,PP-157 and they belonged to some other constituency. He produced the certified copies of the extracts, which were exhibited as Exh.P.2 and Exh.P.3. He also stated in the cross-examination that he has raised the objections in respect of nomination papers now agitated in the election petition, before the Returning Officer, but the same were rejected. Malik Javed Awan the other election petitioner has stated, while appearing as P.W.5, that he objected regarding the ineligibility of proposer and seconder of Rana Tajammal Hussain before the Returning Officer but the same were not taken into consideration. Above all Rana Tajammal Hussain, while appearing as R.W.3, in cross- examination has admitted that "it is correct that both proposer and seconder of my nomination papers are the valid voters of Constituency No,PP-158".
' After examining the evidence on record, as noted above, it is concluded that the proposer and seconder of respondent No,1 were not electors of PP-157 at the time of filing of the nomination papers, by the respondent. Most importantly the respondent has himself admitted in his cross- examination, as noted above, that proposer and seconder of his nomination papers are the voters of Constituency No,PP-158. The issue is decided in favour of the petitioners. However, the effect of it will be discussed while deciding Issues Nos.9 to 11.
Issue No,6 ' Whether respondent No,1 is a defaulter? OPP
14. The onus to prove this issue was on the petitioners. Learned counsel for the petitioners did not press this issue.
Issue No,7 ' Whether respondent No,1 is not a Graduate? OPP
15. Learned counsel for the petitioners stated that the respondent is not a graduate and although no evidence was led by them to prove that the respondent is not a graduate, yet it was so stated by both the election petitioners, when they appeared as P.W.4 and P.W.S. They have added that R.W.1 in his cross-examination stated that as per the summoned record there is no proof of issuance of B.A. Degree in favour of Rana Tajammal Hussain. It was further submitted that the respondent by not producing the original graduation degree has withheld the best evidence, which leads to the presumption that respondent No,1 is not holding a graduation degree and thus was not qualified to contest the election. Conversely, the learned counsel for the respondent, while referring to the statement of R.W.1 and relying upon Mark "A" submitted that since the petitioners were to prove this issue and they did not produce any evidence to show that the respondent was not a graduate, therefore, this issue may be decided against them.
' The onus to prove this issue was on the petitioners, but they did not lead any oral or documentary evidence to discharge the onus of the said issue. The relevant record of Punjab University was not summoned, wherefrom the respondent claims to have obtained graduation degree. It is true that both the petitioners, while appearing as P.W.4 and P.W.5, stated that respondent No,1 was not a graduate, which was a precondition for contesting the general elections of 2002, but the said statements in isolation and without corroboration from any other independent quarter are of no avail to the petitioners. I feel that the petitioners failed to produce sufficient evidence to show that respondent No,1 is not a graduate and thus, they were not able to shift the onus of this issue upon the respondent. Despite that the respondent, while appearing as R.W.3, deposed that he was a graduate, at the time of filing of the nomination papers and now he has passed M.A. Examination.
Respondent No,1 did not produce the original graduation degree, however, a photo copy of the said degree, statedly issued in his favour by Punjab University was placed as Mark "A". The petitioners did not call upon the respondent through a notice to produce documents, to produce the original testimonials/degree in order to establish that he is a graduate. Even no oral request was made in this regard. Respondent No,1, when asked in the cross-examination, rebutted the suggestion of the learned counsel for the petitioners that he does not possess any documentary proof or degree issued by the Punjab University. Even at that stage no question was put to the respondent requiring him to produce the original documents. In view whereof, the petitioners have failed to discharge the onus of the said issue.
' Learned counsel for the petitioners has laid much emphasis on the cross-examination of R.W.1 to state that the summoned record of the Punjab University is silent about issuance of the graduation degree to respondent No,l. The said plea has little substance. As noted above, this issue was to be proved by the petitioners. R.W.1 has stated in his examination-in-chief, on the basis of the record, that Rana Tajammal Hussain passed his B.A. Examination in the Supplementary Examination held in the year 1987 under Roll No,35682 and that graduation degree was issued to him. The petitioners cannot take advantage of the fact that the summoned record does not contain the record of issuance of B.A. Degree moreso when the record was not summoned by the petitioners. It is settled law that a plaintiff should succeed on the strength IA of his own case and cannot take advantage of the weaknesses of his adversaries.
' In the above perspective I am of the view that the petitioners have not been able to prove the said issue, thus, the issue is decided against the petitioners.
Issue No,8 ' Whether the declaration filed by respondent No,1 was false and incorrect? If so, with what effect?
OPP
16. The onus to prove this issue was on the petitioners. Learned counsel for the petitioners did not press this issue.
Issues Nos.9, 10 and 11
9. Whether respondent No,1 was disqualified from contesting the election in question? OPP
10. If issues Nos.5 to 9 are proved, whether nomination of respondent No,1 from the constituency in question was wholly void and against the provisions of the Representation of the People Act, 1976?
OPP
11. Whether the election of respondent No,1 from Constituency No,PP-157, Lahore is liable to be declared as illegal and void? OPP
17. Since all these issues are interconnected, therefore, I propose them to decide together.
' Learned counsel for the petitioners have stated that the nomination papers, submitted by respondent, were proposed and seconded by the persons, who were not voters/electors of the constituency, from where the parties contested the election, therefore, in view of section 12(1) of the Representation of the People Act, 1976, the nomination papers submitted by respondent No,1 were invalid and thus, he was not eligible to contest the elections. They while referring to sections 68 and 70 of the said Act have further submitted that since the nomination papers were invalid, therefore, the candidature of respondent No,1 was also illegal and this Tribunal is competent to declare the election of the returned candidate to be void on this ground. They have relied upon Asif Khan v.
Returning Officer 2003 M LD 230 (Lahore); Mudassar Qayyum Nahra v. Election Tribunal, Punjab, Lahore and 10 others 2003 M LD 1089 (Lahore) and Sheikh Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCM R 1484. Conversely, the learned counsel for the respondent, while producing a photo copy of leave granting order, dated 20-9-2002, states that the case of Mudassar Qayyum Nahra (ibid) is no longer in field, as the Honourable Supreme Court of Pakistan has granted leave against the said order inasmuch as the petitioner in the said case was allowed to contest the elections. He has further submitted that the petitioners did not raise any such objection before the learned Returning Officer at the time of the scrutiny of the nomination papers and this objection was taken for the first time in the writ petition filed by Rana Shaukat Mehmood. He has added that had this objection been taken before the Returning Officer at the time of scrutiny, the respondent would have remedied the said minor defect and might apply to the Returning Officer for rectification of the said irregularity. He has concluded, his arguments by submitting that as the said objection was not raised by the petitioners, therefore, they are now estopped to take the said objection.
' The crucial question, which involves determination here, is as to whether the nomination papers, submitted by respondent No,1 to contest the elections for the seat of Member Provincial Assembly from Constituency No,PP-157, Lahore, which were proposed and seconded by the persons who were not the voters/electors in the constituency, from where the parties contested the elections, are valid or not. While giving findings on Issue No,5, it has been held that the proposer and seconder of respondent No,1 were not electors of PP-157, Lahore. Section 12(1) of the Act provides that any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency. Subsection (2) of section 12 of the Act states that the nomination papers shall be signed both by proposer and seconder Section 14(3)(b) and (c) of the Act, inter alia, envisages that the Returning Officer either of his own motion or upon an objection may reject nomination papers if he is satisfied that the proposer or the seconder is not qualified to subscribe to the nomination papers and any provision of section 12 or section 13 has not been complied with.
For facility of reference, the above provisions of law are reproduced below:-- "12. Nomination for election.--- (1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall on solemn affirmation made and signed by the candidate, accompany---
14. Security.--- (1) ..........................................................................................
(2)
(3)The Returning Officer may, either of his own motion or upon any objection, (either by an elector or) (by any person referred to in subsection (1)) conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--
(a) ..............................................
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper.
(c) any provision of section 12 or section 13 has not been complied with (or submits any false or incorrect declaration or statement in any material particular); ' The word "proposer" or/and "seconder" has neither been defined in the Act nor in any other election law nor their qualifications have been described anywhere. However, upon the examination of section 12(1) of the Act, I am of the view that it itself indicates a qualification of a "proposer" or a "seconder". The only qualification attached to them is that he/she must be elector of a constituency from where duly qualified person is contesting election. It follows therefrom that if a person is elector of that constituency only in that case he can propose and second the name of any duly qualified person to be a member for that constituency. Having said that, now coming to section 68 of the Act which inter alia, states that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the nomination of the returned candidate was invalid. Section 68(1)(a) is reproduced below:-- "68 Grounds for declaring election of returned candidate void.-- (1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that---
(a) the nomination of the returned candidate was invalid; or
(b) ...........................................
(c) ...........................................
(d) ...........................................
' By bare reading of said provision of law, it is evident that if the nomination of a returned candidate was invalid, the Election Tribunal shall declare the election of such returned candidate to be void.
' Now coming to the facts of the present case, in juxtaposition with the aforenoted provision of law.
Admittedly the nomination papers of respondent were signed by Muhammad Asif son of Muhammad Sadiq and Shafqat Ali son of Muhammad Boota as proposer and seconder respectively, whose names exist in voters list of Constituency No,PP-158 and they were not electors of Constituency No,PP-157. It has so been elaborated while giving findings on Issue No,5. The effect of signing nomination papers of respondent by the proposer and seconder, who were not electors of PP-157, is that the electors of PP-158 were not eligible and competent in law to propose or/and second respondent, who was contesting election from PP-157. Now the question arises as to whether the provisions of section 12(1) of the Act are mandatory or directory. Although word "may" has been used in that subsection, yet D examination of the subsequent provisions of law shows that it entails the penal consequences. Section 14(3)(b) of the Act provides that the Returning Officer may reject nomination papers if he is satisfied that the proposer or the seconder is not qualified to subscribe to nomination papers. Section 14(3)(c) states that Returning Officer may reject the nomination papers, if he is satisfied that any provision of sections 12 and 13 has not been complied with. Further section 68(1)(a) of the Act also provides penal consequences for not complying with the provisions of section 12(1) which, as noted above, states that the Tribunal shall declare the election of returned candidate to be void if it is satisfied that the nomination of the returned candidate was invalid. I am supported by the judgment passed by the Division Bench of the Lahore High Court in the case of Asif Khan v. Returning Officer 2003 M LD 230 (Lahore), wherein while referring to section 12(1) and 14(3)(c) of the Act it has been held that the expression "may" appearing in section 14(3)(c) of the Act is mandatory otherwise it would frustrate the very purpose of section 12 and other related sections. In the case of Mudassar Qayyum Nahra (supra) the Full Bench of the Lahore High Court with reference to section 12(1) and section 14(3)(b)(d) of the Act has held that a person not belonging to concerned constituency could not be a proposer and a seconder and nomination papers of a candidate would be liable to be rejected if proposer and seconder were not qualified to subscribe to nomination papers.
' Now adverting to the leave granting order passed by the Honourable Supreme Court of Pakistan.
The leave was granted only after recording the contentions of the learned counsel for the petitioners. The said order neither decided a question of law nor is based upon a principle of law nor enunciates a principle of law. To my mind the said order although suspended the operation of the orders concerning the petitioner, yet it does not fall within the scope of Article 189 of the Constitution. It may be noted that a leave granting order does not necessarily mean that the appeal would ultimately be accepted and it cannot be ruled out that in the final hearing subsequently the appeal may be dismissed or leave granting order may be rescinded/withdrawn.
Honourable Supreme Court in a case reported Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191 has held that "because a leave granting order passed by Supreme Court does not lay down law to be followed".
' In view whereof as the case of Mudassar Qayyum Nahra has not finally been decided by the Honourable Supreme Court and only the leave was granted, therefore, the question of law decided by the Full Bench of the Lahore High Court is the "decision" within the contemplation of Article 201 of the Constitution of Pakistan thus, is binding on all the Courts subordinate to it.
' Now coming to the case of Ishaq Dar, (ibid) relied upon by the learned counsel for the respondent, Full Bench of the Lahore High Court in the case. Of Mudassar Qayyum Nahra (ibid) While referring to the case of Ishaq Dar and in view of sections 12(1), 13 and 14(3)(b)(d) has decided the matter while in the case of Ishaq Dar the said provisions of law were not taken into consideration. The facts of that case and the law laid down therein is not applicable to the present case. Question of law decided in that case is not at all attracted in the present case and thus case of Ishaq Dar is of no avail to Respondent No, 1.
' The learned counsel for the respondent has tried to make out a case from the statement of respondent No,1 wherein he stated that before filing the nomination papers Mauza "Dograi Khurd" was within Constituency No,PP-157, however, as a result of delimitations the said Mauza was included in Constituency No,PP-158 and that he was not aware about the delimitations and that Mauza was carved out from PP-157. The said plea on the face of it cannot be entertained and is a clear afterthought. Examination of the contents of the written statements filed by the respondent to both the election petitions show that the respondent did not raise the said plea in his written statements. Rather, he in reply to ground 6(1) of the election petition has stated that "Messrs Muhammad Asif and Shafqat Ali were lawfully competent to propose and second the candidature of the answering respondent No,1". It is settled law that a person cannot be allowed to lead evidence on the pleas which were not raised in the written statement. Even otherwise the said plea is not plausible and reasonable, as a person who is contesting as a Member of the Provincial Assembly ought to know about his constituency and the delimitations. There cannot be any cavil to the proposition that ignorance of law is no excuse. Furthermore, the respondent has not produced any evidence on record to show as to when the delimitations were carried out. The respondent even himself did not state about the date of delimitations with reference to date of nomination.
Mere a bald assertion that after the filing of the nomination papers delimitations were carried out does not help the respondent at all.
' It is thus, concluded that the nomination of respondent as a candidate for the Provincial Assembly in PP-157 was in violation of section 12(1) of the Act and nomination papers were liable to be rejected under section 14(3)(b) and (c) of the Act, as the same were invalid. As noted above, in view of section 68(1)(a) of the Act, this Tribunal is empowered to declare the election of returned candidate to be void if it is satisfied that the nomination of the returned candidate was invalid.
' In the above perspective, it is held that the nomination papers submitted by respondent No,1 suffered from grave legal infirmity; his nomination papers were invalid and against the provisions of the Representation of the People Act; respondent was disqualified from contesting the elections; this Tribunal under section 68(1)(a) of the Act is competent to declare the election of respondent as void on the ground that the nomination of the returned candidate was invalid thus, the election of respondent No,1 from Constituency No,PP-157, Lahore is declared void. All the issues are decided in favour of the petitioners.
Issue No,12 In case Issue No,11 is proved, whether any of the two petitioners is entitled to be declared as a duly elected Member of Provincial Assembly of the Punjab in place of respondent No,1? OPP
18. Learned counsel for the petitioners, while relying upon the doctrine of notoriety have submitted that the respondent's disqualification was notorious within the constituency at the time of the elections, therefore, after declaring respondent No,1's election as void Rana Shaukat Mehmood is entitled to be declared as a returned candidate. He relied upon the cases of Sheikh Amjad Aziz v.
Haroon Akhtar Khan and 10 others 2004 SCM R 1484 and Bashir Ahmed Bhanbhan and another v.
Shaukat Ali Rajpur and others PLD 2004 SC 353. Learned counsel for respondent, in answer, has referred to the evidence produced by the petitioners to contend that not even an iota of evidence has been adduced to prove that the alleged disqualification of the respondent was notorious and thus even if the election of respondent No,1 is held to be void, Rana Shaukat Mehmood is not entitled to be declared as returned candidate.
19. Onus of Issue No,12 is on the petitioners and they have to prove that any of them is entitled to be declared as duly elected member. Although Rana Shaukat Mehmood has prayed in his election petition that he is entitled to be declared as duly elected, yet Malik Javed Awan has not sought any such relief. Now the next question is as to whether Rana Shaukat Mehmood is entitled to be declared as returned candidate. In order to decide this controversy, the concept of "throw away votes" and the question as to whether the rule of "throw away votes" could be invoked in the instant case, are to be examined. The Honourable Supreme Court of Pakistan in the case reported as Sh.
Amjad Aziz v. Haroon Akhtar Khan and 10 others 2004 SCM R 1484 has thoroughly examined the concept and rule of "throw away votes" and after considering enormous case-law on the subject, both from Pakistani and foreign jurisdiction, has held 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 highest number of votes. It appears appropriate to reproduce concluding portion of the said judgement, which reads as follows:-- "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 highest 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 his disqualification, therefore, rule of "throw away votes" could not be invoked."
' In view of the aforesaid law declared and the guidelines provided by the Honourable Supreme Court, one has to examine in the present case as to whether the petitioner in view of evidence on record, has been able to establish and prove that it was known to the voters/ electors of the constituency that at the time of polling the respondent was not a graduate, lacked requisite qualification for contesting the election and his nomination papers were invalid and the respondent's such disqualifications were notorious and known at the time of polling votes in favour of the respondent.
' In order to resolve the said issue, I have examined both the election petitions and find that Malik Javed Awan, Advocate has not even stated in the election petition that the disqualification of respondent was notorious, however, Rana Shaukat Mehmood in his election petition has pleaded that the disqualification of respondent No,1 was notorious and was fully known to the voters of the area. It is a matter of record that the petitioners did not lead any evidence to establish that the disqualification of the respondent was notorious at the time of elections within the constituency.
Interestingly, both the petitioners, while appearing as P.W.4 and P.W.5, have not stated that the disqualification of the respondent was notorious. P.W.4 has only stated that election may be declared void and as he has obtained second highest votes, therefore, he be declared as elected in place of respondent No,
1. P.W.5 has not at all said anything about his declaration as a returned candidate. As noted above, the petitioners did not produce any documentary or/and oral evidence to prove that the disqualification of the respondent was notorious within the electors of the constituency at the time of polling. Even no such suggestion was put to the respondent by the learned counsel for the petitioners, when he appeared as R.W.3 that his disqualification was notorious within the constituency.
' In view of the above, the petitioners have not been able to establish that before the elections and at the time of the polling it was known to the voters of Constituency No,PP-157 that the nomination of the respondent was invalid and his said disqualification was notorious thus, I am constrained to conclude that the disqualification of respondent No,1 was not notoriously known in the voters/electors of constituency.
' Placing the parameters laid down in the case of Sh. Amjad Aziz (ibid) in juxtaposition with the facts of the case and aforesaid evidence on record, I am of the view that the rule "throw away votes" laid down in the said case is not applicable in the present case and thus, Rana Shaukat Mehmood cannot be declared as returned candidate.
IssueNo,13 Relief.
20. Upshot of the above discussion is that in view of the findings rendered and reasons given on Issues Nos.5 and 9 to l1 Election Petition No,28 of 2002 is partially allowed, Election Petition No,221 of 2002 is allowed, the election of respondent No,1, as Member of the Provincial Assembly is declared to be null and void and the notification issued by the Chief Election Commissioner of Pakistan thereby declaring. Rana Muhammad Tajammal Hussain, respondent No,1, as returned candidate from Constituency No,PP-157 is set aside. Resultantly fresh elections be held in the said constituency according to law.