' Through this Constitutional petition election of the respondent No,4 on the seat of Muslim General Councillor, Union Council No,50/14 Urban, Gujranwala has been challenged.
2. Brief facts of the case are that the petitioner claims that he is a voter of the above said Union Council. Respondents Nos.4 to 22 filed their nomination papers and contested the elections which were ,held on 21-3-2001. The age of the candidate according to the qualifications laid down under section 14 of the' Punjab Local Government Ordinance 2000, shall not be less than 25 years. Brief allegation against respondent No,4 alone is that he was not qualified to contest the election as he was less than 25 years as he has cancealled the true facts and has wrongly shown his date of birth as 23-10-1973 and illegally manoeuvred fate the identity card.
3. Learned counsel for the petitioner contends that the birth certificate of the respondent No,4 shows that he was born on 23-10-1977. It is further contended that respondent No,4 appeared in Matriculation Examination under Roll No,52797 in the year 1994 and the date of birth mentioned in the result card and the Gazette .Of Board of Intermediate and Secondary Education is 23-10-1977.
The parents of the respondent No,4 married with each other on 19-12-1975 hence respondent No,4 has wrongly mentioned the date of birth as 23-10-1973 and has contested the election in spite of the fact that he was not qualified for the same. Learned counsel for the petitioner has relied upon the following judgments: - ' PLD1992 Lahore 322 (Muhammad Ramzan's case.
' 1983 CLC 2479 (Utma's case).
' PLD 1981 Lahore 48 (Athar Rehman's case).
' PLD 1980 Lahore 718 (Malik Ghulam Abbas's case).
' And prays for the setting-aside of the election result of respondent No,4 in this writ petition by issuing of quo-warranto writ as according to him since the petitioner has not contested the election, he cannot file the election petition.
4. Learned counsel for the respondent No,4 has opposed this petition on the ground that the election petition has been filed by opposing candidates. Same controversy is involved in the said election petition. The factual controversy is involved hence the writ petition may be dismissed. It is further contended that the documents produced by the petitioner are incorrect and the respondent No,4 has moved applications for the correction of the record in the concerned departments. It is further contended that the date of marriage has been wrongly mentioned in the Nikahnama. Date of birth of the respondent No,4 is 23-10-1973 and he was qualified to contest the election. He relied upon number of authorities on the proposition that the factual controversy cannot be resolved through writ jurisdiction.
5. I have heard the arguments of the learned counsel for the parties and have perused the record attached with this writ petition. The first question which is to be resolved in this writ petition before the decision on merits is whether this Court can interfere and can issue writ of quo-warranto on the petition of a voter. Learned counsel for the petitioner has ,rightly contended that petitioner being a voter though is an aggrieved person yet he cannot challenge the election by any other way except by filing this petition. I have noticed that the sufficient evidence has been brought on the record to show that the date of birth mentioned by the respondent No,4 in the nomination papers showing him as more than 25 years, qualifying age for contesting the election for the seat of the General Councillor, is not correct and he was less than 25 years of age. According to the Nikahnama which is Annenxure-G of this. Petition. The parents of the respondent No,4 were married with each other on 19-12-1975. The age of the father of the petitioner and also the mother and the other facts mentioned in the Nikahnama are not denied by the respondent No,4 but he-only denies the date of marriage which is mentioned as 19-12-1975 and contends that the wrong date has been mentioned in the Nikahnama register. Respondent No,4 admittedly appeared in the Matriculation Examination held in the year 1994 under Roll No,52797. The date of birth has been shown in the gazette notification as 23-10-1977 as per Annexure-E of this petition. The birth certificate Annexure- C of this petition also proves that Muhammad Tayyab respondent No,4 was born on 23-10-1977.
The original register of the bit entry was summoned by this Court. No interpolation is found on the said register. The entry has been made about the date of birth as 23-10-1977 in the said register. No cutting is found on the said register, duly attested copy of which has been placed on the record of this petition and register has been returned back to the official who had brought the same. Birth entry of Muhammad Tayyab shows that he was born on 23-10-1977 and the number of the I.D. Card has been mentioned therein and age of the mother is also given. The correctness of the details of the birth entry has not been disputed by the learned counsel for respondent No,4. From the bare perusal of the record and certified copies of other documents, it has become crystal clear that the petitioner's date of birth has been entered as 23-10-1977. Only relying upon the I.D.Card which has been got prepared by respondent No,4 before the election, learned counsel for respondent No,4 has tried to argue that the entries, regarding date of birth in the birth register and Matriculation Certificate and date of the Nikahnama have been wrongly mentioned and the application has been moved for the correction of the entries in the relevant registers which has not been so far rectified by the concerned authorities and thus the writ petition was filed which has been disposed of with the direction to dispose .Of the applications of the petitioner hence entries at this stage according to the learned counsel for the respondent No,4 are disputed one hence case may be sent to the Election Tribunal who has already taken cognizance of the same matter and will decide the case after recording the evidence as this case is fit for the decision on merits after recording of evidence only. I am not in agreement with the arguments of the learned counsel for respondent No,4 as the applications for corrections have been moved in July, 2001 after filing of the nomination papers by respondent No,4 for the seat of the General Councillor. Respondent No,4 is trying to get entered the wrong entries so that he may not disqualified from the seat of General Councilor which he is presently occupying. It is very strange that why he kept quiet for years and years and for such a long period of more than 20 years for the correction of the entries which according to him were wrong. The true facts seems to be that the entries are correct and the respondent No,4 is trying to create false evidence to save him from the consequences of disqualification. The documents attached with this petition are sufficient to hold that the respondent No,4 was not qualified to contest the election as he was not 25 years of age and his correct date of birth is 25-10-1977. In the circumstances, this Court can interfere in the writ jurisdiction even on the application of any person against the person who otherwise is not qualified for holding a public office and when this Court has come to the definite conclusion that he was a usurper of public office, this Court cannot lay off its hands from exercising the powers under Article 199 of the Constitution of Islamic Republic of Pakistan. I am fortified in my this view by placing reliance on the following judgments.
' In Athar Rehman's case reported as (PLD 1981 Lahore 48), it is held as under:- "S.21(f) and Constitution of Pakistan (1973), Art. 199---Writ jurisdiction---Any resident of local area to which public office relates, held, in law, possessed of locus standi to move High Court for proceedings in quo warranto."
' This view laid down in Utma's case (1983 CLC 2479) is as under "Quo Warranto---Writ of Competency of---Held, High Court to be competent to make order on application of any person requiring holder of any public office within its territorial jurisdiction to show under what authority of law such person claims to hold that office---Appellant, a, voter in constituency, praying for issuance of writ of quo warranto against Chairman of Union Council--- Held: Appellant not to be debarred from challenging election of Chairman of his constituency by invoking writ jurisdiction of High Court---"
' The view laid down in Muhammad Ramzan's case (PLD 1992 Lahore 322) is as under:- "Whenever Court's attention was drawn that a person who was not qualified was holding public office, Court was duly bound to declare that such person was not entitled to that office and to prevent him from acting as such ---Usurper of public office could not be perpetuated in it---When once Court was satisfied of usurpation of public office by its holder, it would be unwise and also improper exercise of discretion to refrain from interference, notwithstanding compromise between parties."
From the bare perusal of the said case law this Court can interfere in writ jurisdiction and can set aside the election of a person who was not qualified to contest the election. This Court has held that such type of a person cannot be allowed to function as a public representative hence this writ petition is accepted and the election to the extent of respondent No,4 is declared as illegal and unlawful and his election result is set aside. The notification of the success of respondent No,4 to his extent is set aside. The next candidate who has secured higher votes can be notified by the District Returning Officer in place of respondent No,4.