ABDUR RAHMAN FARUQ PIRZADA, J.--- This petition is directed against impugned judgment, dated 28-6-2006, passed by learned Election Tribunal for Taluka Lakhi Ghulam Shah/V-Additional Sessions Judge, Larkana, in Election Petition No,7 of 2005, filed by petitioners, thereby dismissing the petition as not maintainable.
2. The petitioners had contested the Local Government elections for the post of Nazim and Naib Nazim U.C. Chak, Taluka Lakhi Ghulam Shah, District Shikarpur. In the elections respondents Nos.1 and 2 were declared successful for the post of Nazim and Naib Nazim respectively. The petitioners had initially moved an application before the District Returning Officer, against respondents Nos.1 and 2 praying therein for declaring them as disqualified candidates, on the ground that they did not possess any academic qualification equivalent to the Matriculation/ Secondary School Certificate from a recognized institution. Thereafter, the election petition was filed before the Election Tribunal with the following prayers: --
(a) This Honourable Tribunal be pleased to declare that the academic certificate produced by the respondent No,1 is invalid, therefore, the respondents Nos.1 and 2 being joint candidates are not eligible for the seat of Nazim, therefore, the petitioners are the returned candidates as Nazim and Naib Nazim respectively from Union Council Chak.
(b) To direct the Election Commission to recall the notification if issued in favour of the respondents Nos.1 and 2, and fresh notification be issued in favour of petitioners declaring them. Nazim and Nalb Nazim from Union Council Chak.
(c) To award costs of petition.
(d) Any other relief, which the Honourable Court deems fit and proper under the circumstances may also be granted to the petitioners.
3. The learned Tribunal had framed the following issues for resolving the controversy with regard to the prayer for disqualification of respondents Nos.1 and 2.
(1) Whether the election petition is not maintainable in law?
(2) Whether the degree "Sanad-ul-Faraz" produced by the respondents Nos.1 and 2 is equivalent to the required qualification as provided under section 152(2)(e) of the Ordinance of 2001?
(3) What should the order be?
4. The petitioner Tufail Ahmed as well as his witness Ghulam Ali had filed their affidavits-in- evidence, and they were duly cross-examined by the learned counsel for respondents Nos.1 and 2.
On the other hand respondent No,1 filed his affidavit-in-evidence, and was duly cross-examined by the learned counsel for petitioner. After the evidence was led, the parties were heard and the learned Tribunal recorded its findings as under:-- Issue No,
1. Affirmative Issue No,
2. Negative Issue No,
3. Petition dismissed with no order as costs
5. The learned Tribunal vide its impugned judgment decided Issue No,1 against the petitioners, mainly on the point that the mandatory provisions of Rules 65 and 66 of the Sindh Local Government Elections Rules, 2005 were not complied with, as such the petition was not maintainable. With regard to Issue No,2 pertaining to the disqualification of respondents Nos.1 and 2 with regard to the ground that they had produced the degree "Sanda-ul-Faraz", which was not equivalent to the required degree of Matriculation/Secondary School Certificate as provided under section 152(2)(e) of the Sindh Local Government Ordinance, 2001, the learned Tribunal decided the issue in favour of the petitioners, thereby holding that the degree of "Sanad-ul-Faraz" possessed by the respondents Nos.1 and 2 was actually not equivalent to the required degree from a recognized institution.
6. Learned Standing Counsel has supported the impugned judgment.
7. We have carefully considered the submissions made by learned counsel for both the parties, respectively, as well as learned Standing Counsel. So far as the issue of disqualification of respondents Nos.1 and 2 is concerned, it may be very pertinent to respectfully refer to the judgment dated 16-8-2005, of the Honourable Supreme Court of Pakistan, in Sanaullah Khan and another v.
District Returning Officer, Mianwali and others in Civil Petition for Leave to Appeal No,1569-L, wherein it was laid down as under:-- "Khawaja Haris Ahmed, learned counsel for the petitioner (in C.P. 1622-L of 2005) contended that under section 152(1)(e) of Ordinance, 2001, a candidate is not bound to produce a certificate of Matriculation if he has higher academic qualification than the Matriculation or Secondary School Certificate issued by a "Deeni Madrasah". According to him "Sanads" possessed by the petitioners fulfil this condition, therefore, they were not required to produce equivalence certificate. We are not inclined to entertain his arguments in view of the fact that under section 152(1)(e) of the Ordinance, 2001 a candidate can qualify to contest the elections if he has academic qualification equivalent to matriculation or Secondary School Certificate. Here the word "equivalent" is of much significance.
This word has not been defined either in the Act or any of the statutes discussed hereinabove.
Therefore, reliance is to be placed on its dictionary meanings in Black's Law Dictionary (English Edition) the word "equivalent" has been defined as follows:-- "Equivalent, adj.
1. Equal in value, force, amount, effect, or significance.
2. Corresponding in effect or function; nearly equal; virtually identical.
In "Corpus Juris Secundum" (Volume 30A) the word "equivalent" has been defined as under:-- "equivalent. As an Adjective. Alike is significance and value; as good as; equal or identical; identical in effect; equal in worth or value, force, power, effect, import, and the like; equally good; equal so far as concerns the matter under consideration; of equal value, force, import and effect; having equal or corresponding import- meaning, or significance; of the same import or meaning."
In "Words and Phrases" (Volume 15) published by West Publishing Co., the word "equivalent" has been defined as follows:-- "equivalent" to be equivalent to means to be equal in value, to be the same, corresponding to and to be worth.
The word "equivalent" has been defined to mean "equal in value, area, volume, force, meaning, or the like; synonym; alike, identical."
A perusal of above definitions of the word "equivalent" makes it abundantly clear that a "Sanad" holder should possess academic qualification having the same value as that of matriculation Certificate. A "Sanad" cannot be considered equivalent to matriculation certificate unless an equivalence certificate has been obtained from the I.B.C.C. As discussed above the I.B.C.C. Will issue equivalence certificate if a candidate has passed additional examination of English, Urdu and Pakistan Studies at S.S.C. Of H.S.S.C. Level from A.I.O.U./Boards of Pakistan. Admittedly the petitioners have not passed the examination of these subjects from any of these institutions. As such, the argument of the learned counsel has no substance."
It was further laid down: "We have examined the "Sanads" of the petitioners in each petition separately keeping in view the approved list of the recognized "Deeni Madaris" reproduced hereinabove. Except the "Sanad" possessed by Saeed Ahmad (petitioner in C.P.L.A. No,1622-L of 2005) the "Sanads" of remaining petitioners have been issued by the "Deeni Madaris" which have not been approved/recognized by U.G.C./H.E.C. But, "Sanad" possessed by petitioner Saeed Ahmed is also not acceptable because he had not qualified examination in additional subjects discussed hereinabove, from a University recognized by the Government nor equivalence certificate has been obtained by him. Thus, it is held that petitioners have failed to satisfy the requirement of section 152(1)(e) of the Ordinance, 2001 and they are not qualified to contest the Local Government Elections."
8. In the present case it is admitted position that respondents Nos.1 and 2 were in possession of the degree "Sanad-ul-Faraz" which was obtained from a Madrasah, which is not a recognized institution under the provisions of section 152 of Sindh Local Government Ordinance. Admittedly the respondents Nos.1 and 2 did not study the subjects of English, Urdu and Pakistan Studies in the Madrasah, while obtaining the degree of "Sanad-ul-Faraz". As such, while placing respectful reliance upon the above cited authority of law of the Honourable apex Court, we are of the view that the learned Tribunal rightly gave finding on Issue No,2, against the respondents Nos.1 and 2.
9. While holding that respondents Nos.1 and 2 were admittedly disqualified from contesting the elections, we come to the issue as to whether the election petition of petitioner was maintainable, since the provisions of Rules 65 and 66 were not complied with. According to Rule 66, the petitioners were required to join all the contesting candidates to his election petition, whereas in present case Bashir Ahmed and Javed Ahmed the contesters for the posts of Nazim and Naib Nazim, respectively, were not joined as party. Learned counsel for petitioners had drawn our attention to the fact that Javed Ahmed a candidate for the post of Naib Nazim (running along with Bashir Ahmed candidate for the post of Nazim), is son of respondent No,1 Abdul Qadir Sethar. It has been contended by the learned counsel for petitioner that the said Bashir Ahmed and Javed Ahmed were not the real candidates, but they were simply covering candidates for respondents Nos.1 and 2, and this fact is corroborated by the Form-XV, viz. Consolidated statement of the results of the counts furnished by the Presiding Officers, which shows that said Bashir Ahmed and Javed Ahmed did not .Secure a single vote, which would prima facie show that the said candidates did not even cast their own votes for themselves. We are of the view that While making interpretation of the provisions of law, the spirit of law has to be given prime importance. It is to be seen as to whether the other candidates viz. Bashir Ahmed and Javed Ahmed were the real candidates and secondly as to whether any material difference could be made, even if they were joined as the respondents in petition. While considering as to what would be the fate of non-compliance of the provisions of Rules 65 and 66 of the Elections Rules, it may be relevant to refer Rule 72 of the Elections Rules, which may be reproduced as under:- "72. Dismissal of petition during trial.-- The Tribunal may dismiss an election petition if---
(a) the provisions of rules 67 and 70 have not been complied with: or
(b) the allegations contained therein are vague or do not disclose the commission of any corrupt practice, material irregularity, or other illegal act".
10. According to Rule 72 as cited above, this point is clearly resolved, since it has been categorically provided that Tribunal may dismiss election petition, if the provisions of Rules 67 and 70 have not been complied with. It is understandable that in case the effect of noncompliance of Rules 65 and 66, would have been drastic for the election petition, then the said rules would have been included within the ambit of Rule 72 of the Election Rules. Since Rules 65 and 66 are not included within the framework of Rule 72, we may interpret the provisions of law to the effect that non-compliance of Rules 65 and 66 would not be fatal to the election petition itself.
11. Another aspect of the case has also drawn our attention. When admittedly respondents Nos.1 and 2 were disqualified from contesting the elections, then by merely throwing out the petition on technical C grounds, would give way to perpetuation of illegality, in the sense that respondents Nos,1 and 2 being basically disqualified from contesting the elections would be allowed to occupy seats of Nazim and Naib Nazim, respectively.
12. The point was raised by learned counsel for respondents Nos.1 and 2, that the petition before the Election Tribunal had been filed prior to notification issued by Election Commission, and by that way the petition was not maintainable. However, the case of Muhammad Ashique v. Additional District Judge, Vehari/Election Tribunal, Khanewal Camp at Vehari and others as reported in 2005 M LD 1577 (Lahore), may be referred to, wherein it was laid down that when the objection was raised to election petition that the notification was not questioned by the petitioner, then it was held that there was no statutory or legal requirement of questioning the notification and that the election was to be questioned and the allegations were to be dealt with accordingly by the Election Tribunal, and that the said objection was repelled in circumstances.
13. In view of the foregoing discussion, we modify the impugned judgment to the extent that respondents Nos.1 and 2 were disqualified to contest for the posts of Nazim and Naib Nazim respectively, so also they are disqualified from holding the posts of Nazim and Naib Nazim of Union Council, respectively. With the above modification, the impugned judgment is set aside, as well as this petition is allowed to the above extent. This order shall be communicated to the Chief Election Commissioner and the Government, for the purpose of holding fresh elections for the posts of Nazim and Naib Nazim, Union Council Chak,Taluka Lakhi Ghulam Shah, District Shikarpur. This petition is disposed ID of in the above terms.