Ejaz Afzal Khan, J.--Haji Amir Zada, petitioner herein, has assailed the judgment dated 18.7.2007 of the Election Tribunal for Kohistan at Battagram, whereby it allowed the election petition filed by Respondent No, 6 and by declaring his election void, directed to hold fresh election of Nazim Tehsil Palis, District Kohistan.
2. Learned counsel appearing on behalf of the petitioner contended that power to disqualify a returned candidate on the ground of any disqualification exclusively lies with the Chief Election Commission in view of Section 152(2) of the Local Government Ordinance, 2001 and that the Election Tribunal overstepped its jurisdiction by passing an order on such score. The learned counsel next contended that when the question of jurisdiction was raised before the Election Tribunal, it was, required to decide it first, especially when a direction in this behalf was also given by this Court, vide its judgment dated 4.4.2007 rendered in Writ Petition No,312 of 2006. The learned counsel next contended that where the Junior Clerk, Inquiry Section, examined on behalf of the Board of Intermediate and Secondary Education, Abbottabad, testified to the correctness of the Secondary School Certificate issued in favour of Haji Amir Zada, it cannot be held fake on any count. No order muchless adverse to the petitioner could be passed, the learned counsel vehemently added, when the petition itself was liable to be dismissed for not complying with the provisions of Rules 61, 62 and 63 of the N.W.F.P. Local Government (Conduct of Election) Rules, 2005.
3. As against that, the learned counsel appearing on behalf of the respondent submitted that where the jurisdiction exercised by the Chief Election Commissioner under Section 152(2) of the Local Government Ordinance and the one exercised by the Election Tribunal under Rule 72 of the above mentioned Rules is concurrent, the latter has the power to declare the election void on the ground of disqualification. The learned counsel to support his contention placed reliance on the case of Shakeel Shahid vs. Muhammad Younis Zahid and others (PLD 2005 Lahore 357).
Responding the other argument, the learned counsel submitted, that when many of the antecedents of the petitioner do not coincide with those mentioned in the Secondary School Certificate, it would prima facie have no nexus with the petitioner, notwithstanding its genuineness is not open to any doubt. The learned counsel by concluding his arguments, submitted that if the petitioner writes the name of his counsel today in the Court, he would concede that his election cannot be declared void on the ground of disqualification.
4. We have gone through the available record carefully and considered the submissions of the learned counsel for the parties.
5. It is correct that the Chief Election Commissioner under Section 152(2) of the Local Government Ordinance, has the power to disqualify, a candidate for election to any office of Local Government or an elected Member of a Local Government, if he is found to have contravened the provisions contained in Section 152(1) of the Ordinance, but, at the same time, this power has also been delegated to the Election Tribunal by the Chief Election Commissioner himself. Rule 72 of the Local Government (Conduct of Election) Rules, 2005, listing the premises for the exercise of this jurisdiction by the Tribunal includes the ground of declaring the election of the returned candidate void on account of disqualification. It being coeval, concurrent and co-extensive with that of the Chief Election Commissioner can be exercised by the Tribunal as well. In the absence of any bar or restriction either in the-Ordinance or in the Rules, it cannot be said to be exclusive either of the former or the latter. Since it can well be exercised by both of them, we do not agree with the learned counsel for the petitioner that it being an exclusive jurisdiction of the Chief Election Commissioner could not be exercised by the Election Tribunal. Though the Statute itself is clear, all the same, the case of Shakeel Shahid Vs. Muhammad Younis Zahid and others (Supra) may well be referred in this behalf.
6. Assuming that a Junior Clerk, Inquiry Section, examined on behalf of the Board of the Intermediate and Secondary Education, Abbottabad, testified to the correctness of the Certificate issued by the Board but where its antecedents as to the date of birth etc. do not coincide with those of the petitioner, it cannot be said to have any nexus with him, notwithstanding its genuineness cannot be looked askance at. Failure on the part of the petitioner to write a sentence or so before the Tribunal further proves that the Secondary School Certificate thus relied upon by him, to show his qualification to hold the elected office, is not relating to him but to some one else.
The finding handed down by the learned Tribunal on these issues being based on proper appraisal of evidence is thus unexceptionable.
7. The argument that no order muchless adverse to the petitioner could be passed against him when the petition, filed by the respondent, itself was liable to be dismissed for not complying with the provisions contained in Rules 61, 62 and 63 of the N.W.F.P. Local Government (Conduct of Election) Rules, 2005, would do little to advance the case of the petitioner, when it is weak and vulnerable on many legal as well as factual grounds. Even otherwise such grounds cannot be given much weight, when it has not been specifically stated in the written statement filed before the Tribunal as to how the respondent failed to comply with the Rules mentioned above. Even if, it be so, such grounds cannot render the election petition un-maintainable as held by the apex Court, in the cases of S.M. Ayub Vs. Syed Yousaf Shah and others (PLD 1967 Supreme Court 486) and Abdul Nasir and another Vs. Election Tribunal Toba Tek Singh and others (2004 SCMR 602), while interpreting the provisions in para-materia with the provisions mentioned above.
8. The upshot of the above discussion is that the judgment of the learned Election Tribunal being free from any infirmity muchless jurisdictional is not open to any interference. Therefore, this petition being without substance is dismissed in limine alongwith the C.M.