Present appellant was elected general councilor of union council No.10, Rukrani, District Bahawalpur in local bodies election held on 05.12.2015. Khadim Hussain-respondent No.3 (respondent) contesting candidate in the above election filed election petition against the appellant before learned Election Tribunal, Bahawalpur mainly on the ground that name of the appellant was not included in the electoral roll of the census block code Nc.240030105 and as such under Section 27(c) Punjab Local Government Act, 2013 he was not eligible to contest the election; He managed acceptance of his nomination papers by Returning Officer by annexing previous voters list and poling staff of the Ward committed cheating, and on the basis of manoeuvred result the appellant has been declared as returned candidate. Prayer has been made for acceptance of election petition, de-notification of present appellant as returned candidate as general councilor and declaring the respondent as successful candidate in the election.
2. The appellant contested the election petition,denying all the factual controversy. He specifically pleaded that at the time of submission of nomination papers, the factum of inclusion of name of appellant in the voters list was got verified from SMS service "8300" launched by Election Commission of Pakistan. He further pleaded that his name was also included in the voters list prepared in year 2012 for general election and he also casted vote in general election held in year 2013. The Election Tribunal framed the following issues:- ISSUES 1.Whether the respondent No.1/ Returned Candidate was disqualified/ not qualified to contest election from the ward No.6 union council No.10 Rukrani District Bahawalpur being not enrolled as voter in the said ward and his nomination papers were liable to be rejected? OPD 2.Whether the respondent No.1 in connivance with the polling staff in the said ward committed cheating, rigging and got himself declared successful on the basis of rigging. OPP 3.Whether the petitioner is debarred to raise question to the eligibility of respondent No.1/ Returned Candidate OPR-1 4.Whether the Election Petition has been filed with malafide intention to pressurize the respondent No.1 and respondent No.1 is entitled to cost? OPR-1
5. Relief After recording evidence of the parties, hearing arguments vide impugned judgment dated 10.01.2017, the election petition has been allowed, presem appellant ordered to be denotified as returned candidate and Election Commission of Pakistan has been ordered for re-election in this constituency.
3.Feeling aggrieved by impugned judgment, the appellant has assailed the same through the instant appeal mainly on the grounds of against facts, law, result of misreading and non-reading of evidence.
4. Arguments heard.
5. Respondent/PW-1 in his affidavit Exh.P1 has specifically deposed that present appellant was not registered as voter in the relevant Ward. PW-2 Abdul Hakeem in his affidavit Exh.P3 also took the similar version. During cross examination he conceded that present appellant is permanent resident of Mouza Rukrani but volunteered that he is resident of Islamabad and Bahawalpur as well. In the last lines of cross examination he deposed that on the poling day he came to know that name of appellant was not included in voters list of constituency. To rebut this testimony, the appellant as RW-1 in his affidavit Exh.R1 deposed that he was permanent resident of Mouza Rukrani and a valid vcter of that Mouza. He has never moved any application for change of vote in some other Ward. The Returning Officer has scrutinized the nomination papers on the basis of available record. During cross examination he conceded that his name is not mentioned in current electoral roll census block code No.240030105. He volunteer that at the time of submission of nomination papers he sent SMS on 8300 to Election Commission of Pakistan and Returning Officer accepted his nomination papers after checking record. He also conceded that he has annexed with his written reply (of election petition), copy of electoral roll of the above census block code wherein his name is not mentioned. He also conceded that he has not casted vote in this local body election. Exh.P4 is the current voters list but against column No.7 none is recorded as voter and in column of address it has been mentioned tha': the name of voter has been shifted to some other block under rule 118 of Electoral Rules Act, 1974. No doubt the other family members of present appellant are still mentioned as valid voters in the list but name of appellant is not shown ire this census block.
The learned Election Tribunal has rightly observed that the appellant has not made any bona fide effort to summon the record of his nomination papers submitted bCore Returning Officer to establish that in extract of voters list or original record of voters list lying with Returning Officer his name was included as voter in the above census block. Thus the appellant has withheld the best evidence to establish his eligibility as voter and under Article 129 illustration (g) of Qanoon-e-Shahadat Order, 1984 presumption is drawn against him. The appellant has not even bothered to file any complaint against election staff for any unauthorized change in voters list. His acquiescence in this regard even after filing of election petition hints that he was not voters in that electoral area at the time of filing nomination papers. For that very reason he has conceded that he has not casted vote in this election. Under Section 27(1)(C.) of Punjab Local Government Act, 2013, a perso:a shall qualify to be elected, as a member to hold an elected office of a local government, if he is enrolled as a voter in the electoral roll of the Ward from which he is contesting the election. Similar was one of the qualifications for a candidate to be elected to or hold an electve office or membership of a local government under Section 152(C) of the Punjab Local Government Ordinance, 2001 and Section 20(C) of the Punjab Local Government Ordinance, 1979 (since repealed). In PLD1968 Supreme Court 235 `Syed Aminuddin Chowdhury alias Syed Ainuddin Chowdhury Versus The Election Tribunal, Chittagong and others' it has been held that if a successful candidate's name has been entered in the electoral roll and remained there up to the time of nomination his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications. The appellant, as established from the record, is not an enrolled voter of Ward from- which he stood elected as general councilor. A person not residing in the Wart has no right/privilege to represent the residents of the area in local government, as he would be alien to them and their genuine problems.
6. No doubt, the respondent has not challenged the candidature of appellant at the time of filing and scrutiny of nomination papers. Suffice to observe that PW-2 has deposed that factum of non- incorporation of appellant's name in voters list came :o knowledge of respondent party on the polls day. Even otherwise, the respondent, under law is not precluded from taking this vital objection in election petition, which is a statutory right and the re is no estoppel against law. Reliance is placed on celebrated precedents 2006 MLD 119 Lahore `Oadeer Shahbaz and others Versus District Returning Officer and others' and 2006 YLR 680 Lahore 'Muhammad Azam Versus District and Sessions Judge, Gujrat/Appellate Authoritu and 2 others'. The appellant was not eligible to contest the election and such ineligibility can be objected by taking a specific plea in election petition. This is purely a legal objection and can be validly raised in election petition. As such this ground of attack is without any force.
7. In the given circumstances, the learned Election Tribunal for cogent and valid reasons, after fairly, rightly appreciating the oral as well as documentary evidence, accepted the petition and passed order for denotification of appellant as returned candidate and directed the Election Commission of Pakistan for re- election for the salute of general councilor. The instant appeal being devoid of merits is dismissed in limine.