' MAULVI ANWARUL HAQ, J.--- The appellant and private respondents contested elections to the seats of Nazim and Naib Nazim in U.C.No.45 Tehsil Arifwala, District Pakpattan. The respondents Nos.4 and 5 were declared returned as Nazim and Naib Nazim. The respondents Nos.2 and 3 filed an election petition challenging the said elections on the ground that respondent No.4 is not possessed of the educational qualification prescribed by law for contesting election to the said seat. Regarding respondent No.5 it was stated that till recently he was employed in the police department. The prayer was made for declaring the election of the said respondents as void and further to declare the respondents Nos.2 and 3 as returned. The petition was contested by the said returned candidates who filed separate written statements. The learned Election Tribunal framed issues and recorded evadence of the parties. Vide judgment dated 20-2-2007 the election petition was partly allowed inasmuch as the election of respondent No.4 was set aside and he was de- seated as Nazim of U.C.45. He further directed that fresh election to be held to the said seat. The respondent Nos.2 and 3 still felt aggrieved and filed Writ Petition No.2475 of 2007. A prayer was made that the election of both the respondents Nos.4 and 5 be set aside and respondents Nos.2 and 3 be declared returned candidates. The writ petition came up before this Court on 19-3-2007 when it was admitted to hearing and notice was issued to the respondents in the writ petition for 9-4-2007. An application for interim order was dismissed as withdrawn with the observations that the said writ petitioners may repeat application after announcement of the election schedule.
C.M.No.2 of 2007 was filed which was taken up on 27-3-2007 notice was issued and it was observed that in the meanwhile election process may continue but result would be subject to the main petition (reference of course to the result of main petition). On 9-4-2007 it was pointed out that another Writ Petition No.2323 of 2007 filed by Mushtaq Ali respondent is pending and orders were sought from the Honourable Chief Justice for hearing of two cases together. On 21-5-2007 no presence is recorded but the order is that writ petition to come up along with Writ Petition No.2323 of 2007. On 6-6-2007 similar order was repeated. On 12-6-2007. The case was taken up in the presence of learned counsel for respondents Nos.2 and 3 as also for petitioner in Writ Petition No.2323 of 2007 and the case was adjourned on request. Similar is position on 3-10-2007 and 7-11- 2007. On 27-11-2007 the case came up in the presence of learned counsel for respondents Nos.2 and 3. Learned counsel for the petitioner in Writ Petition No.2323 of 2007 was directed to appear on the next date of hearing (which was not fixed). On 11-1-2008 the case was taken up in presence of learned counsel for respondents Nos.2 and 3 and Mr. Majid Karim counsel for respondents. It was again noted that learned counsel for the petitioner in Writ Petition No.2323 of 2007 is not present and no alternate arrangements have been made. The last opportunity was granted and the case was adjourned to 16-1-2008. It appears that the case could not be taken up on this date but was taken up on 12-3-2008, in presence of learned counsel for respondents Nos.2 and 3. It was noted.
That the learned counsel for the petitioner in Writ Petition No.2323 of 2007 has been elevated to the Bench and the respondents were directed to make arrangements for representation. This order was passed when none was present for respondents in writ petition and after noting the said circumstances. On 30-5-2008 none was present but the case was adjourned. On 12-9-2008 the case was taken up in the presence of learned counsel for respondents Nos.2 and 3 and a warning was issued that if the respondents did not appear on 8-10-2008 the case will be decided after hearing the learned counsel present. The service was ordered through Senior Civil Judge. On 8-10- 2008 again the case was take up in presence of learned counsel for respondents Nos.2 and 3, reference was made to the prayer made by the learned counsel, then to the said earlier orders and writ petition was allowed. The election of both respondents Nos.4 and 5 were set aside and respondents Nos.2 and 3 were declared returned.
2. This I.C.A. Has been filed by Muhammad Ilyas respondent in writ petition. According to him, after the judgment of the learned Election Tribunal an election was held which was contested, inter alia, by the appellant and respondent No.2 and he won the election with the margin of 419 votes.
3. Learned counsel for the appellant contends that there is nothing on record to show that any of the respondents including the appellant were served for any of the dates, which find reference in the impugned judgment. Further contention is that the impugned judgment does not state a single reason as to why and on what basis respondents Nos.2 and 3 have been declared as returned candidates. Learned counsel for contesting respondents Nos.2 and 3 has tried to argue that the appellant has no locus standi to file I.C.A. As he had not contested the election petition. Further contention is that since both the respondents Nos.4 and 5 have now been de-seated a fresh election to both seats ought to be held. Supports the impugned portion of the impugned judgment with reference to the case of Ch. Muhammad Azeem v. Election Tribunal/ District and Sessions Judge Hafizabad and 8 others, 2007 M LD 1717.
3-A. We have gone through the writ petition record. We have noted details of the proceedings above. According to the completion certificate appended to the writ petition the last intimation to the respondents is noted for 30-5-2008. The respondents in the case were served for 9-4-2007 but file shows that they had not engaged any counsel in this writ petition. It was counsel for the petitioner in the connected writ petition who was marked present on some dates. The only time the notice was ordered to be issued was on 12-9-2008 but there is nothing on the file to show that a notice was issued or that it was served. Be that as it may, the prayer made by the writ petitioners for being declared returned was put into issue No.3. It has been answered by the learned Election Tribunal in para-8 of his judgment with reference to the case of Sardar Tariq Javaid v. Provincial Election Commission of Punjab and 8 others 2004 SCM R 1242. The impugned judgment does not contain a single reason as to why the respondents Nos.2 and 3 have been declared returned.
Needless to state that principles governing the said prayer are by now well settled. We find that apart from the Controller of Examination Board of Intermediate and Secondary Education, Bahawalpur, A.W.I Syed Khurshid Ahmed Naqvi and Assistant Controller, Board of Secondary Education, Karachi A.W.2. The only other witness is Muhammad Asghar, who appeared as A.W.3. We have examined his statement with the assistance of the learned counsel for the contesting parties.
He has not uttered even a word that disqualification attributed to respondent No.4 was notorious and that majority of the voters of the constituency were aware of the same. There was thus, no evidence whatsoever on record to enable the learned Tribunal or the learned Single Judge in chamber to pass the said order. Having heard the learned counsel present and examining the record we do find that the impugned judgment inasmuch as it declares the election of both the respondents Nos.4 and 5 to be void is fully supported by the judgment in the cases Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCM R 1611 and Sher Zaman Sher and others v. Jehanzeb Khan and others PLD 2004 SC 505. The said judgments also laid down the rule in the matter of throwaway votes relied upon by the learned Election Tribunal with reference to the said judgment in the case of Sardar Tariq Javaid v. Provincial Election Commission of Punjab and 8 others 2004 SCM R 1242.
4. So far as the other contentions of the learned counsel for the appellant are concerned, nothing turn on the same. The election to the seat of Nazim has already been held. It was subject to the result of writ petition and consequently of this appeal which lies under the law against the judgment in the said writ, petition. Election to the other seat of Naib Nazim will, of course be held in accordance with law. I.C.A. Is accordingly partly allowed inasmuch as the impugned judgment declaring the respondents Nos.2 and 3 to be returned candidates is set aside. A fresh election to the seat of Naib Nazim will be held as noted above. A copy of this judgment be immediately sent to the Secretary, Election Commission of Pakistan, Islamabad. No order as to costs.