' I intend to decide the following writ petitions by one consolidated judgment having similar facts and law arising out of the same impugned judgment:
(i) Writ Petition No,21363 of 2002 (ii) Writ Petition No,20969 of 2002, (iii) Writ. Petition No,1024 of 2003.
2. The brief facts out of which the aforesaid writ petitions arise are that the petitioners and the private respondents contested the elections for Nazim and Naib Nazim of the concerned Union Council. The petitioner Muhammad Asim Butt in Writ Petition No,21363 of 2002 and Muhammad Tariq petitioner in Writ Petition No,20969 of 2002 were declared as returned candidates. The petitioner Muhammad Asif Jat and Muhammad Jabbar filed election petition before the concerned election tribunal. The learned Election Tribunal accepted the aforesaid election petitions vide judgment dated 21-11-2002. The learned Election Tribunal had given finding that Muhammad Asim Butt did not have the requisite qualification of Secondary School (Matriculation) at the time of filing the nomination papers. The elections were held jointly, therefore, Nazim and Naib Nazim were found ineligible to contest the election in question. Muhammad Asim Butt and Muhammad Tariq petitioners being aggrieved filed the aforesaid writ petitions challenging the finding of the judgment of the learned Election Tribunal whereas Muhammad Asif Jatt and another filed writ petition against the impugned judgment with the prayer that the petitioners be declared as returned candidates instead of the aforesaid successful candidates.
3. The learned counsel of the first two writ petitions submits that the elections were held jointly but no disqualification was attached to Muhammad Tariq, therefore, the judgment of learned Election Tribunal to this extent to disqualify Nazim Muhammad Tariq is not sustainable in the eyes of law. He further submits that there is difference between post-election and pre-election qualification and disqualification attached to the candidates. He further submits 'that the judgment of the learned Election Tribunal is not in accordance with the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- ' Mst. Azra Israr v. I.G.P. Punjab (PLD 2003 Lahore 1). Unreported judgment in Writ Petition No,9843 of 2002.
4. The learned counsel of the respondents in the aforesaid writ petitions and learned counsel of petitioners Muhammad Asif Jatt and others submit that the elections were held jointly, therefore, the judgment of the Election Tribunal is valid in terms of the election laws. The learned Election Tribunal erred in law not to declare the petitioners in Writ Petition No,1024 of 2003 as returned candidates. They further submits that the petitioner Muhammad Asim Butt was disqualified and filed nomination papers by concealing material facts, therefore, the petitioner Muhammad Asim But was not qualified to contest the elections. In support of his contentions, they relied upon the unreported judgment passed in Writ Petition No,21363 of 2002 and Muhammad Iqbal and others v. District Returning Officer (2001 YLR 855), Awais Ahmad Dar. v. The Chief Election Commission and others (2002 YLR 1048). They summed up their arguments that the private respondents in the first two writ petitions and petitioner in the third writ petition are to be declared as returned candidates according to Rule 81(c) of the Election Rules.
5. The learned Additional Advocate-General, supported the case of Muhammad Tariq petitioner in view of the reported judgment in Haji Ali Sher and others v. Malik Muhammad Nawaz and others (PLD 2003 Lahore 12).
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
7. It is admitted fact that the petitioners contested election under the provisions of Punjab Local Government Election Ordinance, 2000 and rules framed thereunder. It is also admitted fact that petitioners submitted their nomination papers jointly under section 16 of the aforesaid Ordinance.
The petitioners were declared as returned candidates. The respondents being aggrieved filed election petition on the ground that one of them was not eligible to contest the election in question, which was accepted by the learned Election Tribunal and both the petitioners were deseated in spite of the fact that there, was no allegation against one of them qua his eligibility to contest the election under the provisions of the aforesaid Ordinance and Rules framed thereunder. Now I intend to highlight certain principles of interpretation of Statutes to resolve the present controversy between the parties:--
(i) The pith and substance of the enactment should be considered to find out its true nature and character. In arriving to this conclusion I am fortified by the following judgments:-- ' United Provinces' case (AIR 1941 Federal Court 16) Shamim-ur-Rehman's case (PLD 1983 SC 457)
(ii) Intention of Legislature is primarily gathered from language used by legislature in the contents of statute. In arriving to this conclusion, I am fortified by Iqbal Muhammad Khan's case (1992 PLC 549).
(iii) The best rule of interpretation is plain reading of provision of statute as per principle laid down in Trustee of Fort of Karachi's case (1990 CLC 197).
(iv) Provisions of statute must be read as a whole as per principle laid down by the Honourable Supreme Court in the following judgments: ' Hakim Ali's case (PLD 1992 SC 595); Zia-ur-Rehman's case (PLD 1973 SC 49); Mian Nawaz Sharif's case (PLD 1993 SC 473).
' In case the impugned judgment is accepted qua the aforesaid proposition of law then section 18- A will become redundant. Therefore, principle of sinker is not applicable after issuance of Gazette notification qua returned candidates. My learned brother Tassadaq Hussain Jillani, J., after considering all the provisions of law and principles of interpretation laid down following principle in Chaudhry Maqbool Ahmad's case (PLD 2003 Lahore 138). The relevant observation is as under: "In the light of what has been discussed in the preceding paras., this Court is of considered view that "Joint Candidacy" is limited to elections only, that the principle of sinker would not be applicable and removal, disqualification or annulment of an election of a member would not affect the decision of the other returned candidate who may have contested elections as a Joint Candidate with the former".
' The reliance can also be placed to the case of Haji Alam Sher v. Malik Muhammad Nawaz (PLD 2003 Lahore 12). For the reasons recorded in the aforesaid judgments* I am also of the view that principle of sinker does not apply after issuing of Gazette notification qua the return candidates, therefore, I accept the Writ Petition No,2069 of 2002.
8. Now I intend to decide whether Asim Butt petitioner was qualified to contest the election in question under the provisions of Punjab Local Government Election Ordinance and Rules framed thereunder and whether the Election Tribunal was justified to accept the election petition filed by Muhammad Asif Jatt and Muhammad Jawwad respondents against him. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties; "It becomes crystal clear that respondent No,4 (present petitioner) is not Matriculate and so was the position at the time of election as he fraudulently obtained the certificate of Matriculation from the Board of Intermediate and Secondary Education, Lahore."
' It is settled proposition of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below as per principle laid down by the Division Bench of this Court and Honourable Supreme Court in the following judgments: ' Board of Intermediate and Secondary Education Lahore v. Musaddaq Nasim Sindhu (PLD 1973 Lahore 600); Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner (PLD 1964 SC 260).
' I am also fortified by the law laid down by the Hon'ble Supreme Court in Qaiser Shafi-ullah's case (1994 SCMR 859). The relevant observation is as follows: "It is well-settled proposition of law that Constitutional jurisdiction is not designed and intended to be used as a substitute for a regular appeal or to be equated with a regular appeal. In Constitutional petition, the High Court cannot interfere with the findings of facts merely on the ground that the reasons which, fqund favor with the authority whose order is under scrutiny were not such which would have been accepted by the High Court. The Constitutional jurisdiction can be invoked to ractify jurisdictional defects. It is to be pressed into service against an order which is without jurisdiction or tainted with malice or is violative of a provision of the Constitution/law and not to correct a finding of fact."
' Even otherwise the finding of the learned Election Tribunal is in accordance with the dictum laid down by the Honourable Supreme Court in Tariq Mahmood's case (2001 SCMR 1991) and Sardar Khan Bahadur Khan v. Returning Officer (2003 MLD 284). It is also settled principle of law that Constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands. The petitioner Asim Butt has not approached this Court with clean hands. Therefore, I am not inclined to exercise my discretion in favor of Asim Butt.
' In view of what has been discussed above, Writ Petition No,21363 of 2002 is dismissed; Writ Petition No,20969 of 2002 is accepted. It is pertinent to mention here that disqualification of Asim Butt is not notorious, therefore, Writ Petition No,1024 of 2003 is dismissed as per principle laid down in the following judgments: ' Syed Saeed Hassan's case (PLD 1976 SC 6); Karam Hussain's case (PLD 1984 SC (AJ&K) 129); Muhammad Sharif v. Rana A. Rehman (PLD 2003 Lahore 35) and Waseem Akhtar v. Returning Officer (2002 YLR 1490).