' With the concurrence of the learned counsel for the parties, this case is being treated as pacca case.
2. Through this single judgment, I propose to dispose of Writ Petition Nos.1293 and 1612 of 2002 as common questions of law and facts are involved in both these petitions.
3'. Brief facts of the case are that the petitioners in both these cases contested the election of Nazim and Naib Nazim jointly against Muhammad Murtaza and Abdul Rauf candidates for Nazim and Naib Nazim respectively and also against two other couples for Union Council No,58 of Sahiwal.
At the time of scrutiny of nomination papers an objection was raised that Muhammad Irshad petitioner is not matriculate, therefore, not qualified to be a candidate for Nazim. As a result of this objection nomination papers of Muhammad Irshad petitioner candidate for Nazim alongwith his Naib-Nazim were rejected. Both filed Writ Petition No,4038 of 2001 in this Court, which was disposed of on 14-5-2001. The petitioners were allowed to contest the election. However, the question of qualification/disqualification of Muhammad Irshad petitioner was left open by this Court to be determined by the Tribunal after the election. As a result of the election, the petitioners were declared as returned Nazim' and Naib Nazim. Therefore, election was called in question through an election petition by Muhammad Murtaza and Abdul Rauf their closest rivals.
4. During the pendency of the election petition a miscellaneous application was filed by one Muhammad Arshad an elected Councillor 'of Union Council No,58 before the Chief Election Commissioner taking the same objection that Muhammad Irshad petitioner is not matriculate, therefore, not qualified to hold the office of Nazim. The learned Chief Election Commissioner vide order dated 2-11-2001 declared that under section 14(e) of the Local Government Elections Ordinance, 2000, Muhammad Irshad petitioner is not qualified, therefore, he shall cease to hold office of Nazim and shall stand disqualified from being a candidate for election to a Local Government for a period of 4 years.
5. The learned Election Tribunal vide order, dated 16-2-2002 on the basis of order, dated 2-11-2001 passed by the Chief Elections Commissioner without training issues and recording any evidence in the case accepted the election petition and declared the election. Of the petitioners as void and held the respondents namely Muhammad Murtaza and Abdul Rauf as returned candidates as Nazim and Naib-Nazim respectively for Union Council No,58. This ord is being assailed by both the petitioners, who were candidates for Nazim and Naib Nazim jointly.
6. Learned counsel for the petitioners contends. That. Muhammad Irshad petitioner was declared to be disqualified by the Chief Election Commissioner vide his order, dated 2-11-2001, therefore, the seat of Nazim only fell vacant, which should be filled under section 18-A of the Punjab Local Government Ordinance, 2000 through a bye-election as such Muhammad Jahangir Qamar petitioner (Naib Nazim) could not have been non-seated by the Election Tribunal. Apart from this tact, Muhammad Irshad petitioner has also challenged the order of the Chief Election Commissioner dated 2-11-2002 before this Court through Writ Petition No,9358 of 2001. It is further explained with reference to section 2(8) that the Member includes the Nazim and Naib Nazim, therefore, even if the seat of Nazim had fallen vacant still the seat of Naib Nazim was protected. It is further submitted with reference to rule 18(3)(i) of the Punjab Local Government Elections Rules, 2000 that this rule is only applicable to pre-election proceedings and if after the election any vacancy occurs, the same is to be governed under section 18-A of the Punjab Local Government Ordinance, 2000. It is next submitted that by any means, in view of the order dated 2-11-2001 passed by the Chief Election Commissioner the election petition had become infructuous, therefore, the Election Tribunal should not have passed any order. It is finally submitted with reference to rules 80 to 83 of the Punjab Local Government Election Rules, 2000 that respondents Muhammad Murtaza and Abdul Rauf could, by no means, have been declared as returned candidates. Apart from these contesting parties, there were two other couples also contesting the election.
7. As against this, learned counsel for contesting respondents contends that under section 16 of the Punjab Local Government Ordinance, 2000 the candidacy of Nazim and Naib Nazim is joint. Both will swim and sink together. If either of the two is held to be disqualified, the other will also follow the same route. It is next submitted that the petitioner has not come to this Court with clean hands, as is evident from the findings of the learned Chief Election Commissioner because they had tried to use a forged certificate to show that Muhammad Irshad petitioner is matriculate, therefore, they do not deserve exercise of discretionary powers in their favour.
8. I have considered the arguments of the learned counsel for the parties.
9. Through a separate order passed in Writ Petition No,9358 of 2001, I have held that the order passed by the learned Chief Election Commissioner dated 2-11-2001 is a legal and valid order and the said writ petition filed by Muhammad Irshad petitioner has been dismissed.
10: Now the only question left to be . Resolved is whether by disqualification of Muhammad Irshad petitioner the seat of Nazim only has fallen vacant or because of his disqualification Muhammad Jahangir Qamar petitioner has also lost his seat.
11. It is to be noted that the seat of Nazim has not fallen vacant because of a fact surfacing after the election, rather this objection was raised at the very "preliminary stage i,e, at the time of scrutiny. It means that Muhammad Irshad petitioner was disqualified from day one, therefore, in view of the proviso to rule 18 of the Punjab Local Government Election Rules, 2000 the nomination of both the petitioners stood rejected and as such their election as Nazim and Naib-Nazim was rightly declared to be IA void.
12. Coming to the question that respondents Muhammad Murtaza and Abdul Rauf have been declared as returned Nazim and Naib-Nazim, suffice it to say, that in the presence of other contestants. It could not be said that the .Voters who had chosen the petitioners as their representatives must have made a second option for Muhammad Murtaza and Abdul Rauf necessarily. In the absence of the petitioners their voters might have opted to vote for the other contestants, who were also in the run, therefore, it would have been in the fitness of things and scheme of the law provided in rules 80 to 83 of the Punjab Local Government Elections Rules, 2000 that a re-election for Nazim and NaibNazim of Union Council No,58 of District Sahiwal was ordered.
13. For what has been stated above, both these writ petitions are partly allowed in the above terms, no order as to costs. #EndJudgment