' SYED HAMID ALI SHAH, J.---Respondents Nos. 1 and 2, through filing an election petition, called in question the return of the petitioner and respondent No,3, as Nazim and Naib Nazim of Union Council 134, Bhagtanwala District Sargodha. It was urged in the election petition that respondent No,3/the returned Nazim, was ineligible candidate. He has produced a fake and forged certificate of his education. Respondent No,3 contested the election petition, filed the reply, wherein controverted the assertions of the petition and raised various preliminary objections. As many as seven (7) issues were framed and evidence was recorded by the election tribunal. Petitioner filed his separate written reply but led no evidence in his support. Learned Tribunal on conclusion of the trial, accepted election petition and vide judgment dated 9-7-2008, declared respondent No,3 disqualified being not a matriculate and declare his matriculation certificate (Exh.R.5) as forged and fraudulent. Resultantly election of the petitioner and respondent No,3 was declared as illegal and void. Respondents Nos.1 and 2 were declared as unopposed candidates. Petitioner has now assailed the judgment and order of the Tribunal dated 9-7-2008, in this constitutional petition.
2. Learned counsel for the petitioner has contended that at the time of filing of nomination papers, none came forward to raise objection on the candidature of respondent No,3. Respondents Nos.1 and 2 are estopped by their conduct to raise objection or file election petition, once the result of the election has been declared. Learned counsel further submitted that petitioner is graduate and no allegation as to the disqualification of the petitioner was pleaded. The fakeness of the certificate of the respondent No,3, even if stands proved, will not affect the return of the petitioner. Learned counsel went on to argue that since none has raised an objection on the nomination of respondent No,3, therefore, the doctrine of sinker, will not apply to the case of the petitioner. Learned counsel added that nominated candidate, covers a step forward and acceptance of papers, turns him into a nominated candidate from a candidate. Element of "joint" is relatable to candidates in election only and not beyond that. Vacancy falling vacant subsequent to election pertains to member specific and not joint. Learned counsel supported this contention by referring to the case of"
Chaudhri Maqbool Ahmad and others v. Malik Falak Sher Farooqa Additional District Judge/Election Tribunal and others" (PLD 2003 Lah 138). It was then contended that the disqualification of the returned candidate was not notorious therefore, votes cast in favour of the petitioner cannot be treated as thrown away or wasted. The election of respondent No,3, on account of his disqualification can be declared void but his disqualification will not affect the election or return of the petitioner. Disqualification of respondent No,3 was not known to the voters of the constituency therefore respondents Nos.1 and 2 cannot be declared as returned candidate. Learned counsel supported this contention by referring to the cases of "Naveed-ur-Rehman v. Election Tribunal and others" (2004 CLC 626) and "Tahir Mahmood and another v. Election Tribunal for Rawalpindi and 6 others" (2003 CLC 1381). Learned counsel emphasized that when election of returned candidates has been notified in Gazette, the disqualification or annulment of election of one candidate, would not affect the other candidate who has contested election as a joint candidate with the former. The reliance in this respect was placed on the case of "Asim Butt and others v. Additional District Judge Ferozewala and others" (2003 MLD 1168), "Chaudhry Nazakat Ali and another v. Manzoor Hussain Malik and 10 others" (2004 YLR 421), "Muhammad Hussain Haqqani and another v. Election Tribunal Gujranwala and 3 others" (2007 YLR 1764) and "Haji Alam Sher and another v. Malik Muhammad Nawaz and 6 others" (PLD 2003 Lah.12). Learned counsel for the petitioner then went through the Punjab Local Government Elections Rules, 2005 and submitted that an election petitioner, within the meaning of Rule 67, can claim the relief that election of a return candidate is void and that petitioner or some other person is duly elected or election as a whole is void. No other relief can be claimed in an election petition. It was further submitted that grounds on which the election of a returned candidate can be declared void are mentioned in Rule 76(1) while Rule 76(2)(b) provides that election of a returned candidate cannot be declared void on the plea that other contesting candidate on the nomination day was disqualified from being elected as a member. Much stress was laid on this rule 76(2)(b) and it was submitted that in view of the above Rule, the petitioner's return as Naib Nazim cannot be declared as void.
3. Chaudhry Muhammad Ashraf Wahla and Mr. Jehanzeb Wahla, Advocates, stood behind the impugned judgment of learned Tribunal. Mr. Jehanzeb Wahla, Advocate has contended that only two sets of candidates submitted their nomination papers namely petitioner and respondent No,3 on one hand and respondents Nos.1 and 2 on the other hand. In case of disqualification of respondent No,3 and the petitioner, none else remains in the contest except for respondents Nos.1 and 2, who can be declared as unopposed returned candidates and learned Tribunal has rightly held so. Learned counsel has submitted that all the questions raised by the petitioner, in this petition, have since been determined in the case of "Mian Ahmad Saeed and others v. Election Tribunal for Kasur and 7 others" (2003 SCMR 1611). He has urged that resolved issues have been re- agitated and petition .Merits dismissal. He added that casual vacancy is not the one which has fallen vacant as a result of disqualification of a candidate by election tribunal. Learned counsel supported his contention by placing reliance on the case of "Haji Alam Sher v. Malik Muhammad Nawaz and others" (2004 SCMR 1021). Learned counsel summed up his arguments with the contention that Rule 76 speaks about "any other candidates" and not the "joint candidates" which is indicative of the fact that clause (b) of Rule 76(2) relates to other candidates. According to him the disqualification of respondent No,3, is disqualification of joint candidates as a whole.
4. Heard learned counsel for the parties and record perused.
5. Findings of learned Tribunal, qua the disqualification of respondent No,3 that he did not possess requisite qualification, on the nomination day, are unchallenged. It has been held by learned Tribunal that matriculation certificate of respondent No,3 (Exh.P.5) is forged and fraudulent. This conclusion/observation of the learned Tribunal has also attained finality as the same has not been assailed. Respondent No,3 enjoyed the office of Nazim for more than three (3) years, on the basis of forged and fake documents.
6. The impugned judgment of learned Tribunal, is being challenged by the petitioner, to the extent of his office as Naib Nazim, which according to the petitioner is not liable to be declared as vacant, void due to disqualification of other joint candidate. The contention raised by learned counsel for the petitioner, in support of above stance of the petitioner, is that after declaration of the result in the gazette notification, joint candidacy comes to its logical end and one's disqualification or annulment of election, will not affect the other. Further that a disqualification of a candidate, which lacks the element of notoriety, will not justify the declaration of other joint candidate as void.
7. I will not dilate upon these questions, as the following specific question, among other questions, was adjudicated upon by apex Court in the case of Mian Ahmad Saeed (Supra):--
(b) "Whether the Tribunal while declaring the election of a returned candidate void on the ground that his nomination was invalid, can declare the election of joint candidates as a whole void and further this rule after the election would become inoperative to de-seat the joint candidates in the election?
' The specific question was dealt by the Court and it was held: " The salient feature of the system of joint candidacy is that the candidates for the seats of Nazim and Naib Nazim in the local bodies must contest the election as joint candidates and rejection of nomination of any one of the candidates, is rejection of nomination of both the joint candidates.
Therefore they must possess the statutory qualifications individually and collectively on the nomination day and lack of any such qualification of any one would invalidate their nomination jointly. The joint candidates for the seat of Nazim and Naib Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. In the system of joint candidacy, the candidates file their nomination paper individually but the validity or invalidity of their nomination is essentially determined jointly and in consequence to the rejection of nomination of any one for any disqualification, the nomination of other shall automatically stand rejected and in the light of same rule of joint responsibility their election can be declared void as a whole on the ground that on the nomination day their nomination was invalid. The disqualification attached with the candidate on the nomination day would not disappear after the election, therefore, the defect of invalid nomination being not consequently, curable, the view that the Election Tribunal would not be competent to declare the election of the joint candidates as a whole void on a ground on the basis of which their nomination as a whole could be rejected, would be based on misconception of law and being contrary to the legislative intent, would nullify the concept of joint candidacy."
' It was also held that:- " It was manifest from the statutory provisions referred above that the order of Tribunal declaring the election of a returned candidate void due to the defect of invalidity of nomination would not be confined to an individual candidate, rather the nomination of the joint candidates in the penal becoming invalid, the order would be applicable to them jointly. This is correct that subsequent to the election, a returned candidate certainly would not be responsible for the acts and deeds of, his companion not related to the election and as holder of elective office would definitely be answerable to his own acts and deeds but on the basis of rule of collective responsibility in the system A of joint candidacy, he must face the consequence of the disqualification and invalid nomination of his co-candidate in the penal before and after the election. This is well known rule of interpretation of statute that the clear intention of legislature cannot be defeated by the application of rule of construction and no provision in the statute can be held redundant in the intent of Legislature."
8. The above dictum of the august Supreme Court, leaves hardly any room to view the instant controversy from any other angle except the one in which it was been resolved by the apex Court.
9. Adverting to Rule 76(2)(b) of the Punjab Local Government Election Rules, 2005 and its scope, it has been urged that disqualification of any other contesting candidate, will not result into declaration of return candidate as void. Per learned counsel for the petitioner, the provision of law has its application to one of the two returned candidates, out of whom one was declared disqualified. The argument is not convincing. The invalid nomination of a returned candidate is valid ground for declaring the election of returned candidates void, as is envisaged in Rule 76(1)(a).
Phrase "the other contesting candidates" as referred in clause (b) of Rule 76(2), relates to those candidates who contested the election, but were not successful or returned candidates. The expression candidates, used in the clause (b) ibid is plural, which has its nexus with other candidates. Viewing the distinction between candidate, returned candidates and contesting candidates within the meaning of clauses (iv), (v) and (xxi) of Rule 2 of Rules, 2005, the scope of other contesting candidates cannot be extended too far to bring in its .Purview the returned candidates. Moreso when the election has been declared and the provisions of law pertain to a matter, subsequent to declaration of result. The system Of joint candidacy has to be examined in its own spirit. According to law and rules thereunder, the rejection of nomination of either of Nazim or of Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates, shall stand rejected. So is the case of disqualification of one of them by the election Tribunal in election petition, against the returned candidates.
The invalid nomination of a candidate on the nomination day, would not be validated by a subsequent change of the status from candidate to returned candidate. Joint candidates have to sail and sink together. The disqualification would be individual only, when there is a casual vacancy. The casual vacancy would not include a vacancy, which becomes vacant, as a result or decision of the Election Tribunal, due to disqualification of a candidate. The issue stands settled through dictum laid down by the Apex Court in the cases of Mian Ahmad Saeed (supra) and Haji Alam Sher (supra).
10. For the foregoing, the impugned judgment and order of learned Tribunal, is devoid of any illegality and legal infirmity. The petition is hands, has no merit and is accordingly dismissed with no order as to costs.