Raja Fayya z Ahmed, J.--These civil petitions for have to appeal have been directed against the judgment dated 8.11.2007 & 29.6.2007 passed by the learned Lahore High Court, Lahore, whereby, Writ Petition No, 10998 of 2007 filed by petitioner Chaudhry Muhammad Munir and Writ Petitions Nos,2165 & 2654 of 2007 filed by the petitioner and Respondent No, 8 Tassadaq Hussain against the judgments of the Election Tribunals have been dismissed.
C.P.888 OF 2007.
2. The petitioner in this case and Respondent No, 4 Raja Muhammad Aslam contested the election in the year 2005 for Nazim and Naib-Nazim respectively of Union Council No, 112, Bhagnagar, Tehsil Sarai Alamgir, District Gujrat, whereas; Respondent Nos,2 & 3 namely, Ch. Ashaq Hussain & Mazhar Iqbal also contested the election of the office of Nazim & Naib Nazim respectively of the said Union Council. The petitioner and Respondent No, 4 as a result of the election were declared and notified as returned candidates for the office of the Nazim & Naib Nazim of the said Union Council respectively.
3. Respondents Nos,2 & 3 feeling themselves dissatisfied with the election result of the petitioner and Respondent No, 4 stately being disqualified to contest the said election as validly nominated candidates, challenged the same by filing election petition before the election tribunal, Mandi Bahauddin. The petitioner and Respondent No, 4 filed separate contesting written statements. The election tribunal in the light of the pleadings of the parties framed issues. Both the parties produced oral & documentary evidence in support of their case and finally the Election Tribunal accepted the election petition of Respondents Nos, 2 & vide judgment dated 2.11.2007, thereby declared the election of the petitioner and Respondent No, 4 as void and consequently, declared the Respondents Nos,2 & 3 as returned candidates for the offices of the Nazim & Naib Nazim of the said Union Council, to have been duly elected within the purview of Rule 12(4) Punjab Local Government Election Rules, 2005. The matter was referred to the Provincial Chief Election Commissioner, Lahore for further proceedings and safe custody of the record.
4. The petitioner feeling aggrieved from the judgment of the election tribunal filed writ petition before the learned Lahore High Court, Lahore challenging the judgment of the Election Tribunal, which was dismissed as abovesaid by the learned High Court.
5. On perusal of evidence, findings of facts have been recorded by the Election Tribunal in its judgment dated 2.11.2007 that the Matriculation Certificate of the petitioner Chaudhry Muhammad Munir Exh.P3 was a fake document provided by him with his nomination papers and thereby claimed to he qualified and eligible to contest the election for the office of the Nazim of the said Union Council. The Election Tribunal further noted that the original Matriculation Certificate produced marked as Exh.R1 was issued in favour of one Muhammad Munir son of Saeed Ahmad Sheikh having altogether the different parentage and the contentions raised by him that he is in possession of the genuine Matriculation Certificate and thus was qualified to contest the election could not be substantiated before the Tribunal. Also findings of facts have been recorded by the Election Tribunal in the light of the evidence adduced by the parties that Respondent No, 4 Raja Muhammad Aslam, had not furnished full and complete particulars of assets owned and possessed by him in his declaration made at the time of submission of his nomination form and thus, both the petitioner and Respondent No, 4 were disqualified to contest the election. The learned High Court after having taken into account the material pieces of evidence relating to the petitioner & Respondent No, 4 concluded vide judgment impugned herein that in exercise of Constitutional Jurisdiction detail examination of evidence cannot be made in view of the well reasoned order passed by the Election Tribunal.
CP NO. 1270-L OF 2007.
6. The facts of this case in brief are that petitioner Chaudhry Muhammad Azeem and Respondent Nos, 3 to 8 contested the election of the Union Council No, 83/47 Khyali Shahpur, District Gujranwala. The petitioner and Respondent No, 8 Tassadaq Hussain were respectively declared and notified as returned candidates for the office of the Nazim & Naib Nazmi of the said Union Council respectively. Respondent Nos, 3 & 4 namely; Malik Muhammad Iqbal & Muhammad Iqbal Tahir filed election petition against the petitioner and Respondent Nos, 5 to 8 challenging their election results on various grounds including that they were not the validly nominated candidates for being disqualified to contest the election of the said offices of the Union Council. The petitioner and Respondent No, 8 Tassadaq Hussain filed contesting written statements. The Election Tribunal in the light of the pleadings of the parties framed necessary issues. The contesting parties adduced their evidence i,e, documentary & oral before the Election Tribunal in support of their ease. Vide judgment dated 1.3.2007, the Election Tribunal declared the election of the petitioner and Respondent No, 8 to the office of the Nazim & Naib-Nazim of the said Union Council respectively as void and thereby declared Respondents Nos,3 & 4 namely; Malik Muhammad Iqbal & Muhammad Iqbal Tahir, who having obtained the 2nd highest votes for the office of the Nazim & Naib-Nazim of the said Union Council respectively as the returned candidates for the said offices who be accordingly notified by the Election Commission of Pakistan, to which the matter was referred for compliance. The petitioner and. Respondent No, 8 namely; Tassadaq Hussain through separate writ petitions mentioned above challenged the judgment of the Election Tribunal on various grounds, which has been dismissed vide judgment sought to be impugned through the instant Petition filed by the petitioner Ch. Muhammad Azeem by imp leadingthe necessary parties as respondents in this petition including Tassadaq Hussain as Respondent No, 8.
The learned Tribunal in the light of the evidence adduced by the parties before it, on appraisal of evidence and in the light of the issues concluded that the petitioner was disqualified to contest the election of the office of the Nazim of the said Union Council for having submitted incorrect declaration in respect of his assets in the prescribed form filed before the Returning Officer in violation of Rule 12(4) Punjab Local Government Election Rules, 2005 and thus disqualified to contest the election for the said office thereby, declared the election of the returned candidates for having jointly contested the election for the office of the Nazim & Naib-Nazim of the said Union Council respectively to be void; simultaneously, the other candidates having secured the next highest number of the votes namely; Malik Muhammad Iqbal Respondent No, 3 and Muhammad Iqbal Tahir Respondent No, 4 declared as elected for the said offices.
7. The learned High Court in the light of he contentions put forth on behalf of the parties and having taken into account the evidence adduced before the Election Tribunal found favour with the findings recorded by the Election Tribunal, further concluded that the petitioner Chaudhry Muhammad Azeem could not take benefit of the plea that disqualification of the petitioner was not 'notorious' on the principle of `throw away votes' would not be applicable in the case for the reason that the said plea was not specifically agitated and taken in the written statements to the election petitions filed before the Election Tribunal nor any evidence in such behalf was adduced before the Tribunal. The learned High Court thus, applying the principle of sinker in the light of the reported judgments in the case of Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others (2003 SCM R 1611) & Sher Zaman Sher and others v, Jahanzeb Khan and others (PLJ 2004 SC 463) held that the petitioner and Respondent No, 8 since contested the election jointly for the office of the Nazim & Naib-Nazim of the said Union Council respectively will share the fate of the election equally and the disqualification of former will invalidate the election of the latter also. As a result of the above said declared position both the writ petitions were dismissed.
8. The learned counsel for the parties have been heard, Malik Muhammad Qayyum. learned Sr. ASC for the petitioner in both these petitions argued that he would not question the findings of facts recorded by the Election Tribunal nor argued the case on merits. He strenuously contended that in the given facts and circumstances of the case, the doctrine of 'throw away votes' in absence of positive evidence of the disqualification being 'notorious', the concerned respondents could not have been declared as elected respectively to the offices of Nazim & Naib-Nazim of the said Union Council for having secured next highest votes in the election. The learned counsel for the petitioner maintained that the learned High Court has dealt with the matter in a slipshod manner and failed to attend to the question involved in the case as highlighted by him, which caused serious prejudice to the voters of the area who have thereby been deprived of their rights of franchise to which they were entitled. He further contended that the learned High Court failed to exercise jurisdiction in the matter, inasmuch as; essentially the relief to have been granted by making appropriate directions for holding of the fresh election to both the offices of the Nazims & Naib- Nazims of the said Union Councils. To supplement his view point, reliance has been placed on a reported judgment i,e, Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCM R 1484).
9. Hafiz S.A Rehman, the learned Sr. ASC for Respondents Nos, 2 & 3 submitted that the judgment passed by the Election Tribunal was not assailed in the writ petition by Respondent No, 4 Raja Muhammad Aslam who jointly contested the election with the petitioner, hence; he having accepted the same cannot be a beneficiary nor the petitioner for such reason would be entitled to question the judgment sought to be impugned through the instant petition for having jointly contested the election with Respondent No, 4 from the said Union Council and they both as such; have to sail or sink together. He placed reliance on (1) Shaukat Ali and another v. District Returning Officer and another (PLD 2006 SC 78), (2) Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCMR 1484), & (3) Sardar Muhammad Amir Khan v. Nadeem Akhtar & others (2007 SCMR 1044).
10.Ch. Muhammad Anwar Bhinder, the learned Sr. ASC for Respondent Nos, 3 & 4 argued that the Miscellaneous Application No, 1547 of 2008 submitted before this Court for transposition of Tasadaq Hussain Respondent No, 8 as co-petitioner in the case having not been allowed, consequently rendered the instant petition as not maintainable and incompetent because the petitioner and Respondent No, 8 have to sail and sink together on account of their joint election to the office of the Nazim & Naib-Nazim of the said Union Council respectively. Further, the learned counsel argued that Respondent No, 8 cannot be transposed as a co-petitioner as he having accepted the judgment of the High Court did not further challenge the same nor there could be any legitimate justification for such transposition. He also contended that the principle of notoriety is not applicable in the case, therefore, in view of the Rule 12(4) Punjab Local Government Election Rules, 2005 for filing incorrect statements of assets, fresh election for the seats of Nazim & Naib- Nazim of the said Union Council could not have been ordered for being a simplicity technical violation of the rule thus, the impugned judgment is unexceptionable. To supplement his view point the learned counsel has placed reliance on the judgments reported in (1) Wali Muhammad and others v. Raja Muhammad and others (1978 SCMR 415), (2) Mian Ahmad Saeed and others v.
Election Tribunal for Kasur at Okara and 7 others (2003 SCMR 1611), (3) Muhammad Sadiq and others v. Ali Asqhar Khan and others (1995 CLC 1529), (4) Ghulam Siddique v. Collector Land Acquisition and others (1996 MLD 1399), (5) Muhammad Abid Hassan and others v DRO and others (PLD 2005 Lahore 712), (6) Sheikh Muhammad Akram and another u. Sheikh Muhammad Yaqub and others (PLD 2006 Lahore 24) & (7) Sher Zaman Sher and others v. Jehanzeb Khan and others (PLJ 2004 SC 453).
11.The contentions put forth on behalf of the parties learned counsel have been considered in the light of the impugned judgments passed by the learned High Court, the Election Tribunals in both the matters and the case law cited during the course of arguments, have been gone through carefully. It is an undisputed feature of the case that in both the petitions it has not been disputed on behalf of the contesting respondents that principle of 'throw away votes' is not attracted because of the disqualification being not 'notorious' and further it is an admitted position on record that it was nobody's case before the Election Tribunals that the said disqualification of the returned candidates was known to the electors or they knew about the facts relating to the disqualification of candidates at the time of the filing and acceptance of their nomination papers by the Returning Officer. In a number of authorities consistently it has been held by this Court that where the disqualification of a returned candidate was not known to the voters, the phrase 'throw the votes' of the electors would not be applicable for the simple reason that such disqualification was not 'notorious' being not publicly or generally known to the voters hence to hold in such a case that vacant seats on account of the disqualification of the returned candidates would be given to the contesting candidates for having secured second highest number of votes in such election, rather; the appropriate course in such eventuality would be to direct the Election Commission to hold fresh election on the vacant seats. For convenience, the consistent view of this Court quoted above, to come into operation as per reported judgments, out of which for instance a few for convenience can be referred i,e, of (1) Iqbal Zafar Jhaqra v. Khalilur Rahman (2000 SCM R 250), (2) Sh. Amjad Aziz v. Haroon Akhtar Khan and 10 others (2004 SCM R 1484), (3) Muhammad Boota v, Election Tribunal and others (2005 SCM R 1139), (4) Ellahi Bakhsh v. District & Sessions Judge/Election Tribunal and others (PLD 2003 SC 268), & Shaukat Ali v. District Returning Officer (PLD 2006 SC 1978).
Hafiz S. A Rehman, the learned counsel for Respondents Nos, 2 & 3 in CP No, 888/2007 was of the view that respondent Raja Muhammad Aslam who jointly contested the election with the petitioner did not challenge the judgment passed by the Election Tribunal in writ petition, hence; he having accepted the same cannot be a beneficiary nor the petitioner for such reason would be entitled to take any benefit for having contested the election jointly, hence; they both have to sink together whereas; in the connected Petition No, 1270-L/07 the learned counsel for. Respondent Nos, 3. & 4 argued that Miscellaneous Application for transposition of Tassadaq Hussain Respondent No, 8 as co-petitioner in the case having not been allowed, rendered the instant petition as incompetent because the petitioner and Respondent No, 8 have to sail and sink together on account of their joint election. Thus, the respondent having accepted the position even did not approach to this Court, therefore, the petitioner and the Respondent No, 8 have to sink together.
12. From the arguments put forth on behalf of the contesting respondents by their learned counsel it transpired without there being an indication of ambiguity that generally in such an eventuality where the disqualification of a candidate has been found to be not 'notorious' the principle of 'throw away votes' would not be applicable and thus appropriately, fresh election of the vacant seats can legitimately be ordered but to this an exception has been raised that besides the petitioners in both the cases, the returned candidates other than the Nazims since did not challenge the judgments passed in these cases by the learned High Court consequently, the petitioners, as well as; the respondents who held office of the Naib-Nazims of the Union Councils have to sink with the petitioners and could not be beneficiary of the non-application of the followed principle though their disqualifications being not 'notorious'. As has been held by this Court in a chain of authorities in various cases of which a few have been mentioned above, have to be taken and understood in their actual basic context that the electors/voters can not be deprived of their rights to franchise provided the disqualification of a returned candidate was found to be not notorious' thus, having examined the same in its underlying perspective, it can be safely concluded that in a case of disqualification of a returned candidate having not been found to be not 'notorious' invariably fresh election on the vacant seats to be held though the disqualification may relate to the concealment of any fact required to be correctly and truly given in the prescribed declaration filed with the nomination paper by a candidate or affect to his candidature as a validly nominated candidate or to his eligibility to contest the election, therefore, in absence of any mandate provided by the law or under the Punjab Local Government Election Rules, 2005 it cannot be claimed with inflexibility where the disqualification was not 'notorious' for any act or omission, the other candidates who contested the election having secured 2nd highest votes to be declared as elected to the vacant seats without any exception, steins to us to be not a just and correct approach to the issue without looking into the facts and circumstances of each case warranting otherwise.
In the case of petitioner Ch. Muhammad Munir, he was found to have furnished a fake Matriculation Certificate to the Returning Officer to show his eligibility for contesting the election to the office of the Nazim of the Union Council. Consequently, the Election Tribunal on appraisal of evidence adduced by the parties before it found the petitioner to have not been eligible at the time of filing of the nomination paper to contest the election, as well as; Respondent No, 4 Raja Muhammad Aslam having furnished incomplete particulars of assets owned and possessed by him in his declaration form submitted with his nomination paper and thus the petitioner & Respondent No, 2 were found to be disqualified to contest the election, thereby, the Tribunal accepted the Election Petition, declared the petitioner and the said respondent's election as void consequently, respondents Ch. Ashaq Hussain and Mazhar Iqbal for having secured the highest number of votes in the Election declared as elect candidates to the vacant seats.
In this case the High Court failed to exercise the jurisdiction by not examining the question apparent on the face of the record that the disqualification of the petitioner and Respondent No, 4, Raja Muhammad Aslam was not 'notorious' and thus the phrase 'throw away votes' was not applicable and as to whether Respondents No, 2 & 3 were entitled to have been declared as the candidates elect respectively on the seats which fell vacant on account of the disqualification of petitioner and Respondent No, 4.
13. In C.P. No, 1270-L of 2007 main thrust of the argument advanced on behalf of the contesting respondents was that since Respondent No, 8 Tassadaq Hussain has not been transposed as co- petitioner for there being no justification to do so, as the said respondent having not challenged the decision of the Tribunal before the High Court amounts to the acceptance of the same, rendered this petition as incompetent, moreover; the disqualification of the returned candidates has since been found to be though not 'notorious' but only a violation of the rules which rendered them as disqualified, therefore, no exception can be taken to the impugned judgment. It is worth while to note that these contentions revolve around and relate to the conduct of Respondent No, 8 for having not challenged the judgment of the Election Tribunal in writ jurisdiction nor even before this Court hence; the petitioner and the said respondent in view of their election being joint, have to sink together; in our opinion would amount to penalize the electors and to deprive them of their rights to vote against vacant seats of the Union Council. The arguments put forth on behalf of the respondent learned counsel in both the petitions if allowed to prevail would mean that one of the successful joint candidates by his conduct could obstruct and frustrate the legitimate course of holding fresh election on the seats which fell vacant on account of the disqualification of the returned candidates for being though not a 'notorious' disqualification which course, we find to be not permissible. Also for the added reason that no proceedings in a Court of law exercising civil jurisdiction ipso facto can be defeated because of non-imp leading of one of the necessary parties or proper party or implemented of an improper petitioner or respondent as the case be and for that matter even if a necessary party having not been transposed as a co-petitioner in such proceedings or civil suit, the Court always enjoyed ample powers to transpose any of the respondent as co-petitioner and vice versa, in as much as; depending upon the nature of the cause, if it finds that lis can effectively be adjudicated upon without the transposition, the Court will be competent to decide the cause accordingly. These petitions for the above reasons could not be treated as incompetent in view of the vested interests of the voters of the Union Councils, who by means of the impugned judgments have been deprived of their rights to vote for the candidates of their choice under the law. The default on the part of returned candidates of their acts and omissions would not impeach the voters to exercise their rights to vote nor the Court in exercise of the powers vested in it under the Constitution for doing complete justice would feel deterred to pass proper orders and to issue directions. It is pertinent to note that Civil Miscellaneous Application No, 1547 of 2008 filed in C.P. No, 1270-L of 2007 has not been rejected by this Court which remained un-disposed of.
14. Thus, in view of the above discussion and reasons, both these petitions are converted into appeals and accordingly allowed with no orders as to costs. The Election Commission of Pakistan is directed to take necessary steps to conduct fresh election of the vacant seats of the offices of Nazims & Naib-Nazims of both the Union Councils.