' ABDUL SHAKOOR PARACHA, J.--- Appellants Shahid Aslam son of Muhammad Aslam and Muhammad Iqbal Mirza son of Mirza Muhammad Aslam through this Intra-Court-Appeal under section 3 of the Law Reforms Ordinance, 1972 impugn the judgment dated 21-2-2007 passed by the learned Single Judge in Chambers, whereby, Writ Petition No.1555 of 2007 filed by the appellant was dismissed and order dated 17-2-2007 passed by the learned Election Tribunal accepting the Election petition filed by Chaudhry Shabbir Hussain son of Ch. Rehmat Ali and Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, respondents Nos.3 and 4 herein, respectively was upheld.
2. The brief facts of the case are that Shahid Aslam son of Muhammad Aslam along with Muhammad Iqbal Mirza son of Mirza Muhammad Aslam appellants and Chaudhry Shabbir Hussain son of Ch. Rehmat Ali and Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, respondents Nos.3 and 4 herein, contested the elections for the seats of Nazim and Naib Nazim respectively of the Union Council No.7, Wazirabad Town, District Gujranwala. The appellants were declared returned candidates and their notification was issued on 20-8-2005. Respondents Nos.3 and 4 herein, filed an Election petition on losing the election against the appellants. The election petition was filed on the ground that Shahid Aslam, appellant No.1 was disqualified to contest the elections as he was having a bogus matriculation certificate at the time of filing the nomination papers. The Election Tribunal after framing the issues and recording evidence, allowed the election petition vide order dated 17-2-2007. The finding recorded by the Election Tribunal was that:--- "Shahid Aslam respondent who is permanent resident of Wazirabad had appeared from Govt.
Christian High School Wazirabad in the Matriculation Examination vide Exh. P-2 in Arts Group but failed in the instant examination and taking the benefit of the same parentage and same year of examination he manoeuvred the matriculation certificate of Shahid Aslam son of Muhammad Aslam resident of Baghbanpura, Lahore who appeared under Roll No.32539 carrying his date of birth as 7-10-1960 in the matriculation examination under registration No. 20-S/130L-74. "
3. Consequently, through the order dated 17-2-2007, the Election Tribunal accepted the election petition filed by respondents Nos.3 and 4 and declared the appellants as disqualified owing to bogus matriculation certificate. Chaudhry Shabbir Hussain son of Ch. Rehmat Ali and Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, respondents Nos.3 and 4 herein, were declared as returned candidates for the post of Nazim and Naib Nazim, respectively for the aforesaid union council. Against the said order of the Election Tribunal, a writ petition has been filed which has been dismissed by the learned Single Judge in chambers, by observing that:-- "Under rule 77 the Tribunal can declare the election of a returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected. The prayer in the election petition clearly shows that it was prayed by respondents Nos.3 and 4 that in view of the disqualification of petitioner No.1, election be declared void and the petitioners (respondents Nos.3 and 4) be declared returned candidates. On the basis of evidence produced before the Election Tribunal, the Election Tribunal was satisfied to declared respondents Nos.3 and 4 returned candidates in place of petitioners, thus the Election Tribunal has exercised its jurisdiction under Rules 76 and 77 of the Punjab Local Councils Election Rules, 2005."
' Before us, the learned counsel for the appellants by relying upon Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 and Mian Ahmed Saeed and others v.
Election Tribunal for Kasur and Okara and 7 others 2003 SCM R 1611 contends that the principle of "Throw Away Votes" is attracted in the present case and that the Election Tribunal was not competent to declare respondents Nos.3 and 4 as returned candidates. He contends that the disqualification was not in the knowledge of the Electors of the area. It is a case for reelection.
5. Conversely, the learned counsel for the respondents contends that the appellant No.1 contested the election on the basis of a fake matriculation certificate. He was declared as a returned candidate and was disqualified from being elected as Nazim/Naib Nazim of the Union Council Bhattike No.7 Wazirabad Town, District Gujranwala therefore under rule 76 of the Punjab Local Councils Election Rules, 2005, the Election Tribunal has rightly declared the election of the returned candidate to be void. Further contends that under rule 77 of the Punjab Local Councils Election Rules, 2005 the Tribunal could have declared the election of the returned candidate to be void and the respondents and the other contesting candidates to have been duly elected, if it is so claimed by the respondents and the tribunal is satisfied that the respondents or such other contesting candidate was entitled to be declared elected. He contends that disqualification of the returned candidate was notorious at the time of the polling. The votes polled in favour of the appellants/returned candidates cannot be thrown away by giving seats to candidate with the next higher number of votes, therefore, the Election Tribunal has rightly declared the respondents as successful. The writ petition has rightly been dismissed by the learned Single Judge in chambers.
6. We have heard the arguments of the learned counsel for the parties and perused the record with their assistance.
7. To resolve the controversy, the reading of rules 76 and 77 of the Punjab Local Councils Election Rules, 2005 is necessary. According to rule 76, the Tribunal shall declare a returned candidate to be if it is satisfied that:---
(a) .......................................................
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, being elected as a member or Nazim or Naib Nazim as the case may be; or ' Under rule 77 of the Punjab Local Councils Election Rules, 2005, the Tribunal can declare the election of a returned candidate to be void and the appellant or any other contesting candidate to have been duly elected, if it is so claimed by the appellant or any of the respondents and the Tribunal is satisfied that the appellant or such other contesting candidate was entitled to be declared elected.
8. It is the admitted position that, after examining the entire evidence, the learned Tribunal has recorded a finding of fact that appellant No.1 namely Shahid Aslam manoeuvred the matriculation certificate of Shahid Aslam son of Muhammad Aslam resident of Baghbanpura, Lahore who appeared under Roll No.32539 carrying his date of birth. As 7-10-1960 in the matriculation examination under registration No.20-S/130L-74. In this view of the matter, it has been rightly concluded by the learned Tribunal that the appellants Nos.1 and 2 namely Shahid Aslam and Mirza Muhammad Aslam to have been declared disqualified on the basis of possessing a bogus matriculation certificate.
9. Now coming to the other issue that whether respondents can be declared as a-returned candidate for the seat of Naib and Naib Nazim of the union council. On the basis of pleadings of the parties and the evidence on the record, we are not satisfied that the respondents were entitled to be declared elected. We have surveyed the law on the subject and the number of judgments of the Honourable Supreme Court regarding the concept of throw away votes". The disqualification of the returned candidate was not notorious at the time of the polling. The votes polled in favour of the appellants/returned candidates cannot be thrown away by giving seats to candidates with the next higher number of votes, therefore the election Tribunal has not rightly declaied the respondents as successful. Reliance can be placed on the case reported as Sh. Amjad Aziz v. Haron Akhtar Khan and 10 others, 2004 SCM R 1484. In the case of Mian Ahmed Saeed and others v.
Election Tribunal for Kasur and Okara and 7 others, 2003 SCM R 1611, it has been ruled that, "the verdict given by the Tribunal against the appellant of his being wilful defaulter was upheld by the High Court in the constitutional petition and the Supreme Court took no exception to the said declaration. However, the disqualification of the appellant being depending upon the legal verdict given by the Tribunal and the High Court and the same would neither be in the knowledge of voters nor was found notorious at the time of polling so as to justify the claim of the next candidate to be declared elected. The above disqualification of the appellant was not found to have been in existence during the scrutiny of the nomination papers and thus the essential requirement for the application of the principle of thrown away votes being missing in the present case, the declaration in favour of next candidate securing the highest votes to be elected would definitely defeat the right of franchise of electors."
10. In the case reported as Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others, PLD 2004 SC 570 the Honourable Supreme Court had ruled that, "when read in conjunction with disqualification there is no hesitation to hold that disqualification should be so significant as it does not require any proof."
11. In the case in hand, the appellants own case is that Chaudhry Shabbir Hussain son of Ch. Rehmat Ali and Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, respondents Nos.3 and 4 while filing the election petition under relevant rule of the Punjab Local Councils Election Rules, 2005 stated that:- {{URDU TEXT}}
12. Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, appeared as A.W.1 and made his statement before the Tribunal stating that after the election respondents Nos.2 and 3 (appellants) were declared as Returned candidate as Nazim and Naib Nazim of the council.
Thereafter we came to know that the returned candidate namely Shahid Aslam, respondent No.2, has a bogus certificate of matriculation. In cross-examination he admitted that they did not raise any objection before the Returning Officer. On the basis of the above statement made by respondents in their election petition and the evidence available on the record, we conclude that the disqualification of the returned candidate was not notorious at the time of filing of the votes polled in favour of the successful candidate.
13. The votes polled in favour of the appellants/returned candidates cannot be thrown away by giving seats to candidates with the next higher number of votes, therefore, the election Tribunal has wrongly and illegally declared the respondents .Nos.3 and 4 as successful. In the present case it was not known to the voters that the candidate/appellants who are going to be elected as Nazim and Naib Nazim were not having the requisite qualification and no steps were taken to bring to the knowledge of the electors that the candidate was not matriculate. The nomination papers were accepted without any objection which clearly indicates that the voters were unaware of his disqualification. The case reported as Mian Ahmed Saeed and others v. Election Tribunal for Kasur and Okara and 7 others 2003 SCM R 1611 supra is not applicable. We by relying upon the case of Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 are persuaded to hold that, the rule of "throw away votes" could not be invoked in this case.
14. For what has been discussed above this ICA is partly allowed. The acceptance by the Election Tribunal of the election petition filed by respondents and disqualifying the appellants namely Shahid Aslam and Muhammad Iqbal Mirza owing to the bogus matriculation certificate is hereby declared as intact. Whereas, the order to the extent of declaring Chaudhry Shabbir Hussain son of Ch. Rehmat Ali and Muhammad Akhtar Cheema son of Muhammad Afzal Cheema, respondents Nos.3 and 4 as returned candidates as Nazim and Naib Nazim of the union council Bhattikey No.7, Wazirabad District Gujranwala is set aside. With this modification in the order of the Election Tribunal, dated 17-2-2007, the ICA stands disposed of.
15. A copy of this petition be sent to the Election Commission of Pakistan, Islamabad, the Provincial Election Commission Punjab, Lahore, to the District Returning Officer Gujranwala, Returning Officer concerned and District Coordination Officer, Gujranwala for making arrangements for the fresh election in Bhattike, U.C.7, Wazirabad, Gujranwala.