' Through this Constitutional petition the petitioner has prayed for the recounting of votes as respondents Nos.3 and 4 have been declared as successful candidates.
2. The brief facts of the case are that the petitioner contested the election alongwith respondents Nos.3 and 4 on the Peasant/Worker Seat of Tehsil Shakargarh, District Narowal. Respondents Nos.3 and 4 have been declared elected members for the two seats reserved for the aforesaid special seats. The petitioner has contended that Hassan Nizami, respondent No,4 being an Advocate by profession was not qualified for contesting the election for the reserved seat of Peasant/Worker. It is also stated in the writ petition that some of the votes have been wrongly counted in favour of respondents Nos.3 and 4 and the valid votes of the petitioner have not been counted being held as invalid votes and have been rejected hence it is prayed that the election held on 2-2-2001 may be declared as illegal and unlawful.
3. Learned counsel for the petitioner contends that the definition of "peasant" has been given in the Punjab Local Government Ordinance, 2000 through section 2(10) which is reproduced as under:-- "'Peasant' means a person who is a landless farm worker or, one who during the period of five years preceding the year in which the election is held, has been the owner of not more than five acres of land and depends directly on it for his subsistence."
' He further contends that a candidate should have less than five acres of land and directly depends on the income of the said land having no other source of income but respondent No,4 who is an Advocate by profession was not qualified to contest the election because he is not only depend upon the land which is less than five acres, hence his nomination papers were wrongly accepted and election to his extent is liable to be set aside on this score alone by this Court in writ jurisdiction. He relies upon judgments reported as Government of Punjab v. Hudabia Textile Mills 2001 SCM R p.209 and Rai Muhammad Hayat Khan v. Muhammad Afzal Kahloon and 2 others NLR 1980 UC 437.
4. On the other hand learned counsel appearing on behalf of respondent No,4 has opposed the petition on the ground that the factual controversies are involved in this case that whether respondent No,4 is dependent entirely upon the said land or not which can be decided by the Election Tribunal only after recording the evidence of the parties. He relies on judgments reported as Muhammad Younas Khan v. Government of N.-W.F.P. And others 1993 SCM R 618, Ilam Din v. Mst.
Hussain Bibi 1990 SCM R 632 and Federation of Pakistan v. Major (Retd.) Muhammad Sabir Khan PLD 1991 SC 476 in which it has been held that the factual controversies cannot be resolved in writ jurisdiction.
5. Mr. Taqi Ahmad Khan, Advocate, learned counsel who was asked to appear as amicus curiae has also appeared and submitted that the word used in subsection (10) of section 2 of the Ordinance is not entirely dependent upon the said land but is directly dependent on the said land.
He explains that the word "depend" entirely dependent and directly independent are two different phrases hence he can earn his livelihood even from the other sources and it cannot be said that respondent No,4 who is an Advocate is not dependent on the land and the matter requires recording of evidence in this regard which cannot be decided in writ jurisdiction. According to him now the Election Tribunals have been duly notified by the Chief Election Commissioner of Pakistan and since no election can be challenged except through an election petition as provided under rule 70 of the Punjab Local Government Elections Rules, 2000, it will be appropriate if the petitioner is directed to avail the said remedy by way of an election petition.
6. I have heard the learned counsel for the parties at length and also perused the documents attached with this petition and also the case-law cited by the learned counsel for both the parties on different issues. The main controversy in this case is that whether respondent No,4 could contest the election on the seat of Peasant/Worker as he is an Advocate by profession and whether he falls within the definition of subsection (10) of section 2 of the Punjab Local Government Ordinance, 2000 or not. The said section has already been reproduced above. The word "directly" has been used in it and I am in agreement with the learned counsel appearing as amicus curiae that the matter requires recording of evidence whether respondent No,4 directly is dependent upon the income of the land or has the other sources also as the word used in this context is not "directly dependent" upon the income of the land. Both the parties can prove their versions before the Election Tribunal which can entertain the petition under rule 70 of the said Rules and that is the only remedy for challenging the election after the notification whereas the writ petition can only be entertained in Constitutional jurisdiction when there is no need for the resolving of any factual controversies through recording of evidence. Whether respondent No,4 is entirely dependent upon the land and is a briefless lawyer or has other source of income, all these are factual controversies. Be that as it may, the matter requires the affording of opportunities to both the parties to lead their respective evidence to prove their respective versions which can be done in the election petition. As the time for the filing of election petition has already elapsed but since the petitioner had challenged the election through this writ petition in wrong forum yet in time and the same remained pending for a considerable period and notices were issued to the respondents and hearing was also given, hence it will be equitable and just if this writ petition is remitted to the Election Tribunal to treat the same as an election petition. I am fortified in my view by placing reliance on the judgment of the august Supreme Court reported as 1994 SCM R p.1299 in which the Supreme Court in such-like circumstances remitted the petition to the Election Tribunals as it was not safe to pronounce the judgment on the basis of the contentions raised by the concerned parties and recording of evidence was necessary and it was held that only the Election Tribunal will be efficacious and adequate forum to decide the same issue. The delay was condoned which occurred due to the pendency of the proceedings before the august Supreme Court. As the time fixed for the filing of election petition has already expired, hence this writ petition is remitted to the Election Tribunal which shall be treated as an election petition and it is directed that the same shall be decided on its own merits within the shortest possible time by the Election Tribunal after affording opportunity of hearing to the contesting parties.
7. .