' The petitioners on the one hand and the private respondents on the other contested election to the seats of Nazim and NaibNazim in U.C. No,73, Daska, District Sialkot. The petitioners were declared to be returned. Respondents Nos.2 and 3 then filed an election petition to challenge the said election. The election petition was contested by the petitioners. The only ground raised was that petitioner No,2 was not of the prescribed age on the day of nomination. Evidence of the parties was recorded. The Election Tribunal concluded that the said petitioner had not attained the prescribed age and as such was not qualified on the nomination day to be elected as Naib-Nazim.
He accordingly proceeded to set aside the election of the petitioner and at the same time proceeded to declared respondents Nos.2 and 3 to be elected as Nazim and Naib-Nazim.
2. Learned counsel for the petitioners contends that evidence on record has been misread by the learned Election Tribunal. Further contends that the order of the learned Election Tribunal declaring respondents Nos.2 and 3 to have been elected it utterly without jurisdiction. Mr. Mushtaq Ahmad Mohal, Advocate, on the other hand, contends that even the witnesses produced by the petitioners were unable to support their version and as such there is no misreading of the evidence. Supports the said second part of the order as well.
3. I have gone through the copies of the records appended with this writ petition. I have gone through the evidence with the assistance of the learned counsel for the parties. Having thus examined the evidence I find myself in agreement with the learned counsel for the said contesting respondents that there has been no misreading of the evidence by the learned Election Tribunal while recording findings that the said petitioner had not attained the requisite age on the day of nomination and as such was disqualified from contesting the election .
4. Coming to the said second contention of the learned counsel for the petitioners the learned Election Tribunal has dealt with the matter as follows:--- "As the petitioners were the, runners up by securing 1560 votes, among the rest of the candidates or the panel of the candidates, such-like respondents Nos.4 and 5, who secured 1358 votes and respondents Nos.6 and 7, who got bagged 979 votes, by acceptance of this petition, are considered the returned candidates for the held elections."
' A bare look on the said observation would show that the learned Election Tribunal in all probability was not even aware of the manner he was required to exercise his jurisdiction if he intended to declare the said respondents Nos.3 and 4 to be elected. Rule 82 of the Rules framed under the PLGEO, 2000 is reproduced hereunder:-- "82. Ground for declaring a person other than a returned candidate elected.---The Tribunal shall declare the election of the 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."
It will be seen that a Tribunal has to be satisfied that the petitioner before him or such other contesting candidate was entitled to be declared elected. This the learned Tribunal has not done.
He has mentioned the votes obtained by all the panels except that of Lite petitioners. Now the petitioners had secured 2188 votes. They were thus ahead of the said runner up by 628 votes. What was required to be considered by the learned Tribunal was as to whether such large number of votes could be considered to be thrown away votes and this in turn required a finding of course based on evidence that the said members of the electorate were aware of the stated disqualification. I may state here that according to learned Tribunal itself the date of birth of petitioner No,2 was 1-4-1976. The polling had taken place on 21-3-2001. This means that on the said date the said petitioner was only 10 days short of 25 years of age. There is no plea and there is to evidence on record that the electorate was aware. Of the said fact or could have been ware of the fact that he is not exactly 25 years of age. To my mind, there are no pleadings, no evidence and of course no findings that the votes of more than 2000 persons can be treated as throwaway votes..
' In view of the above discussion this writ petition is partly allowed inasmuch as the order of the learned Tribunal declaring the said respondents Nos.2 and 3 to have been elected as a result of setting aside of the election of the petitioner, is declared to be without lawful authority and is set aside. The result would be that there will be a fresh election for the said seats of Nazim and Naib- Nazim in the Constituency i,e, U.C. No,73, Bhagat Pura, Tehsil Daska, District Sialkot. No orders as to costs. A copy of this judgment be immediately remitted to the learned Chief Election Commissioner the learned D.R.O. Sialkot and the learned R.O. For further proceedings.