TASSADUQ HUSSAIN JILANI, J.- This judgment shall dispose of the following Constitutional Petitions as almost similar questions of law have been raised:-
(i) W.P. No. 9834/2002 (1. Ch. Maqbool Ahmad,
2. ' Mehr Ali v. Malik Falak Sher Farooqa, AD&SJ TT Sihgh/Election Tribunal Faisalabad, etc.).
(ii) W.P. No. 9338/2002 (1. Muhammad Nauman Butt,
2. Muhammad Usman Mirza v. The D&SJ Hafizabad/Election Tribunal for District Gujranwala, etc.).
(iii) W.P. No. 8752/2002 (1. Muhammad Saood Hussain,
2. Allah Dad vs. The D&SJ Faisal Abad/Election Tribunal District Jhang, etc.) .
(iv) W.P. No. 9923/2002 (Babar Javed But v. The D&SJ/Election Tribunal Hafizabad, etc.).
(v) W.P. No. 9029/2002 (1. Muhammad Abbas Ansari,
2. Rana Mehbaob Alam v. Election Tribunal UC No. 86/40 City Gujranwala/Election Tribunal etc.).
(vi) V.P. No. 9004/2002 (1. Javed Iqbal,
2. Rana Muhammad Ashraf v. Election Tribunal Okara, etc.).
2. Facts briefly stated are as under:- . WRIT PETITION NO. 9834/2002; Petitioners Nos.. 1 and 2 contested the election of Local Bodies on 31.5.2001 and were returned against the seats of Nazim and Naib Nazim of Union Council No. 179-Faisalabad, respectively. The election of petitioner No. 1 was challenged before the Election Tribunal on the grounds that he was not matriculate. There was no allegation against petitioner No. 2. The Election Petition was allowed vide order dated 2.5.2002 by the Learned Election Tribunal TT Singh and it was held that since' the petitioner was not eligible to contest the election, candidature being joint, the entire election would be void and fresh election wee' directed to be held. This Constitutional petition, to the extent of petitioner No. 1, was dismissed in limine and qua petitioner No. 2 notice was issued.
WRIT PETITION NO. 9338/2002: The petitioners in this case contested election for the seats of Nazim and Naib Nazim of Union Council No. 45/9-Urban City Gujranwala. Respondents Nos. 2 and 3 filed Election Petition challenging election of petitioner No. 2 on the grounds that his matriculation certificate tendered at the time of submission of nomination papers was bogus. Vide judgment dated 11.5.2002 passed by the Learned Election Tribunal for District Gujranwala it was held that petitioner No. 2, namely, Muhammad Usman Mirza did not possess the requisite qualification of matriculation, the certificate was fictitious and since it was a joint candidature, the election of petitioner Nos. 1 and 2, as a whole, was declared void.
WRIT PETITION NO. 8752/2002: Petitioners contested election for the seats of Nazim and Naib Nazim of Union Council No; 72-Kot Shakir, }hang. They were returned successful. The election was challenged on the grounds that petitioner No. 2 (Allah Dad) was not matriculate. Vide the impugned judgment dated 18.5.2002 passed by the learned Election Tribunal for District ]hang allowed the Election Petition on the grounds that the matriculation certificate produced was fake and since it was a joint candidature, the entire election was declared void.
WRIT PETITION NO. 9923/2002: In this case Muhammad Arshad and petitioner Babar jameel contested for the seats of Nazim and Naib Nazim respectively Petition filed against Muhammad Arshad alleging that he suppressed his assets, was allowed and the election as a whole was declared void. Arshad filed W.P. No. 9864/2002 which was dismissed on 16.6.2002. August Supreme Court has suspended it in C.A. No. 884/2002.
Learned counsel for respondent concedes that the judgment of this Court stands suspended.
WRIT PETITION NO. 9029/2002: Petitioners contested Local Bodies Elections and were returned as Nazim and Naib Nazim of Union Council No. 86/50 Gujranwala City. Their election was challenged inter alia on the grounds that petitioner No. 2(Mehboob Alam) was less than 25 years of age at the time of filing of the nomination papers, therefore, he was not qualified to contest the election. This Election Petition was allowed vide judgment dated 14.5.2002 passed by the Learned Election Tribunal and since the candidature was joint the election, as a whole, was declared void.
WRIT PETITION NO. 9004/2002: Both the petitioners contested for the seats of Nazim and Naib Nazim of Union Council No. 24 Phoolnagar-1, they were returned, Election Petition was filed and was allowed vide judgment dated 17.5.2002 passed by the Learned Election Tribunal and was held that petitioner No. 2, namely, Muhammad Ashraf had transferred his six feet privately owned land to widen the thoroughfare, to the residents of the locality and that petitioner No. 1 was signally to the said transaction and both were thereby guilty of corrupt practice within the meaning of rule 81 of the Punjab Local Government Election Rules, 2001 as this amounted to bribing the voters.
3. Learned counsel for the petitioners in Writ No. 9834/2002 C Rana Muhammad Arshad Khan, Advocate) adopted the arguments of Dr. Mohayyudin Qazi, Advocate/Learned counsel for petitioners in W.P. No. 8752/2002 while Learned counsel for the respondents (Mr. Muhammad Ahsan Bhoon, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate (Learned counsel for respondents in W.P. No. 9338/2002.
4. Learned counsel for the petitioners in Writ Petition No. 9338/2002 (Rana Mashhood Ahmad Khan, Advocate) adopted arguments of Dr. Mohayyudin Qazi, Advocate/Learned counsel for petitioners in W.P. No. 8752/2002.
Malik Saeed Hassan, Advocate/Learned counsel for respondents defended the impugned judgment by submitting that the petitioner No. 1 was not a matriculate that the Election Petition filed against him was rightly allowed an4 since they were joint candidates and it was a joint election, the election of both the petitioners has been validly annulled. Explaining the concept of joint candidacy he argued that by a legal fiction, the election of two persons has been classified as one election and if any one of the two returned candidates is declared disqualified to contest the election and the petition is allowed against him on any of the grounds enumerated in law it would hit his co-candidate who won the election alongwith him. According to him, the concept of joint candidacy would be relevant till the election process is over. An election petition, he further added, is part of the election process and the concept of joint candidacy would not only be invoked at the time of scrutiny of nomination papers but would continue to hold the field till the final termination of the election process i.e. The decision of the election petition. Referring to Webster's Twentieth Century Dictionary (second edition), with regard to the meaning of "joint" he submitted that, it is something which is shared by two, and if one sinks, the other also sinks with him. Any other interpretation he lastly contended could be violative of the legislative intent.
5. Learned counsel for the petitioners in Writ Petition No. 8752/2002 (Dr. M. Mohayuddin Qazi, Advocate) submitted as under:-
(i) That the concept of joint candidature stipulated in Section I6 of the Punjab Local Government Elections Ordinance, 2000 is relevant only for the purpose of election and the moment election is over, the returned candidates are independent entities and are liable to be adjudged independently so far as the questions of qualification and disqualification are concerned;
(ii) That in terms of section 18A of the Punjab Local Government Elections Ordinance, 2000 in the event of a seat having fallen vacant, a bye-election has to be held to the extent of the vacant seat and not on the seat which his co-candidate has been returned.-Sub-section (2) to Section 18A, referred to above, election talks of the election of a Nazim in case a seat becomes vacant and not of a Naib Nazim with it:
(iii) That after the election a vested right accrues in favour of the returned candidate and it cannot be taken away by any fault of the co-candidate;
(iv) That the Punjab Local Government Elections- Ordinance, 2000 was repealed on 2.8.2001, the new law i.e. The Punjab Local Government Elections Ordinance, 2001 (Ordinance XIII of 2001) was promulgated. Section 152(l)(e)'of the Punjab Local Government Ordinance, 2001 read with Sections 161 and 169 of the said Ordinance would indicate that an election of a returned candidate can only be challenged before the Chief Election Commissioner -and the respondent Tribunal had na power under the law to annul the election.
Learned counsel for the respondents (Mr. Anwar Akhtar, Advocate) adopted the arguments of Malik Saeed Hassan, Advocate for respondents in W.P. No. 9338/2002).
6. Learned counsel for the petitioners in Writ Petition No. 9923/2002 is not present. Learned counsel for the respondents (Syed Zameer Hussain, Advocate) adopted the arguments ,of Malik Saeed Hassan, Advocate/Learned counsel for respondents in W.P. No. 9338/2002.
7. Learned counsel for the petitioners in Writ Petition No. 9029/2002 (Dr. A. Basit, Advocate) submitted as under:-
(i) That the concept of swimming and sinking together is relatable to candidacy and after the declaration of result, this concept would not be relevant;
(ii) That a reading of various provisions of law would show that the election petition is filed on grounds relatable to individual merit or demerit of a returned candidate. The allegations are specific and there is no provision of law entailing disqualification or annulment of the entire election on the exclusive ground that a member, who got elected with him, .Incurred any disqualification or was guilty of an illegal practice; - .
(iii) That petitioner No. 2 (Mehboob Alam) was. Above twenty-five years of age on the day of filing his nomination papers as his date of birth in terms of the birth certificate was 31.3.1974 and the Learned Election Tribunal has erred in law in giving preference to the entries made in the school leaving certificate;
(iv) That even the entry made in the school leaving certificate and in the matriculation certificate was correct and the Election Tribunal had no authority in law to interfere with the finding of a Tribunal of a domestic jurisdiction.
Learned counsel for respondents (Mr. Asad Manzoor Butt, Advocate) on the other hand, defended the impugned judgment by submitting that the birth certificate did not belong to petitioner No. 2; that the finding of the Tribunal does not reflect arbitrariness or jurisdictional defect to warrant interference in the Constitutional jurisdiction of this Court. On the question of joint candidacy, Learned counsel adopted the arguments of Malik Saeed Hassan, Advocate/Learned counsel for respondents in W.P. No, 9338/2002.
8. Learned counsel for the petitioners in Writ Petition No. 9004/-2002 (Dr. A. Basit and Ch. Muhammad Afaal Wahla, Advocates) submitted that the Iqrar Nama (Exh.8/2) vide which the land was voluntarily denoted to the inhabitants of the village for widening the thoroughfare, could not be classified as a corrupt practice or bribery within the ambit of rule 81(2) of the Punjab Local Government Election Rules, 2001 and that even otherwise any finding against petitioner No. 2 could not have the effect of. Annulling the entire election.
Learned counsel for the respondents (Maj. (R) Arshad Mehmood, Advocate) submitted that the so- called voluntary donation was an inducement an offer of bribe to the voters, it was made during the election process and the said act falls within the mischief of rules 81 and 82 of the Punjab Local Government Ordinance Election Rules, 2001. He added that since it was a joint candidature, the finding of corrupt practice against petitioner No. 2 would hit petitioner No. 1 and the entire election has rightly been declared void.
9. I have heard Learned counsel for the parties, Learned Law Officer, have gone through the impugned judgments as also the precedent case-law and have given anxious consideration to the contentions raised.
10. Notwithstanding the findings given in the impugned judgments, with regard to the qualification or disqualification of the co-candidates against whom the election petitions were allowed, the common questions which cropped-up for consideration, are as under:-
(i) Whether the concept of co-candidacy stipulated in Section 16 of the Punjab Local Government Elections Ordinance, 2000 would continue to hold the field after the candidates have been returned as Nazim and Naib Nazim and can this principle be invoked to annul the election as a whole if an Election Petition is allowed against either of them on any ground stipulated in law?
(ii) Whether the Learned Tribunal fell in error in declaring petitioner No. 2 as below 25 years of age.
And thereby ignoring the Birth Certificate issued by the Municipal Corporation wherein his date of birth is entered as 31.3.1974? (In W.P. No. 9029/2002).
(iii) Whether the Learned Tribunal rightly declared the matriculation certificate of petitioner No. 2 (Allah Dad) in W.P. No.-8752/2002 and petitioner No. 2 (Muhammad Usman Mirza) in W.P.
9338/2002 to be fake?
(iv) Whether the learned Tribunal correctly interpreted the relevant statutory provisions in holding that the act of petitioner No. 2 (and his brother), in surrendering his personal land in favour of the residents to widen the village street amounted to bribery and illegal practice entailing disqualification? (In W.P. No. 9004/2002).
11. To better appreciate the afore-referred issues, it would be of relevance to quote some provisions of the Punjab Local Government Election Ordinance, 2000, Rules framed thereunder, Punjab Local Government Ordinance, 2001 and the amendments, if any, which have a bearing on the issues raised.
12. The Punjab Local Government Ordinance, 2001 was promulgated on 14th August, 2001. This Ordinance provided for repeal and savings of the old law its date of enforcement was qualified in terms of Section 1 (3) which is as follows:- "1(3). It shall come into force on the fourteen day of August, 200I, except the provisions as contained in Section 39(k), Chapter XVII and Section 196( 1 )(ii) of Chapter XIX which shall come into force on such date or dates as the Government may by notification in the official Gazette, declare."
Section 196 of the afore-referred Ordinance reads as under:- "
196. Repeal and Savings.- (1) On commencement of this Ordinance:-
(i) . The Punjab Local Government Ordinance, 1979 (VI of 1979) shall be repealed;
(ii) the Punjab Local Government Elections Ordinance, 2000 (V of 2000), shall be repealed; and
(iii) all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979) shall stand dissolved.
(2) Notwithstanding the repeal of the Punjab Local Government Ordinance, 1979 (VI of 1979) and dissolution of all Metropolitan Corporations, Municipal Corporations, District Councils, Municipal Committees, Town Committees and Union Councils created under the Punjab Local Government Ordinance, 1979 (VI of 1979), under sub-section (1) , subject to Sections 4 and 23 of Punjab General Clauses Act, 1956 (W.P. Act VI of 1956), all rules, regulations and bye-laws made under the repealed Punjab Local Government Ordinance, 1979 so far those are not inconsistent with th$ provisions of this Ordinance shall continue to be in force until amended or varied t>y the competent authority: Provided that, until otherwise decided by the Government the Local Government Boards established under the Punjab Local Government Ordinance, 1979 (VI of W79) for the administration of officers and officials of the Local Council Service shall continue to function.
(3) Notwithstanding the repeal of Punjab Local Government Elections Ordinance, 2000 (V of 2000), all Nazims, Naib Nazims, and members of the Local Governments elected under the said Ordinance shall deemed to be have been elected under this Ordinance and shall continue to hold their respective officers till the completion of their terms, unless earlier removed or recalled under this Ordinance." (underlining is mine!.
The qualifications for candidates and elected members are given in Rule 14 of the Punjab Local Governments Elections Ordinance, 2000 which stipulates as under:- "14. Qualification for candidates and elected members.- A person shall qualify to be elected or to hold an elective office of membership of a Local Government, if he:-
(a) is a citizen of Pakistan;
(b) is a least twenty-five years of age;
(c) is enrolled as a voter in the electoral roll of the ' relevant ward;
(d) is of good character and is not commonly known as one who violates Islamic Injunctions, has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as (sic) from major sins: Provided that.-these qualifications shall not apply to a perse v who vis a non-Muslim, but such a person shall have a good reputation;
(e) , has academic qualifications of not less than matriculation or secondary school certificate or equivalent from recognized institution, for contesting the election of a Nazim or Naib Nazim;
(f) has not been declared by a competent Court to be of unsound mind;
(g) is not in the service of the Federal, Provincial or a Local Government or, any statutory body or a body which is controlled by any such government or iq which any of such government has a controlling share or interest, except the holders of elected public office and part-time officials remunerated either by salary or free: Provided that in case of a person who has resigned or retired from such service, a period . Of not less than six months has elapsed since his retirement;
(h) has not been dismissed, removed or compulsorily retired from public service on grounds of moral turpitude;
(i) does not possess assets which are inconsistent with his declaration of assets or justifiable means, whether held in his on name or of the dependents or any other person or corporate body in whose name assets are held in trust or under any other formal or informal arrangement whereby the de facto control of such assets including their sale, transfer or pecuniary interest, is retained by him;
(j) has not been adjudged a wilful defaulter of any tax or other financial dues owed to the Federal or a Provincial or a Local Government or any financial institution, including utility bills outstanding for six months or more;
(k) has not been convicted by a Court of competent jurisdiction on a charge of corrupt practice involving moral turpitude or misuse of power or authority under any law for the time being in ' force;
(l) has not been sentenced to imprisonment for more than three months for an offence under any law and, a period of not less than five years has elapsed since his release; and in case of a member or a holder of a public office, has not been sentenced to imprisonment;
(m) has not failed to file the required return of election expenses or is not convicted for exceeding the limits of election expenses prescribed under the electoral laws;
(n) has not been declared an un-discharged insolvent by any Court;
(o) Does not engage in any transaction involving pecuniary interest with the Local Government of which he is a member;
(p) does not absent himself without reasonable cause from three consecutive meetings of the Local Government of which he is a member;
(q) does not fail to attend a training course when required to do so by law;
(r) has not been and is not involved, in activities prejudicial to the ideology, interest, security, unity, solidarity, peace and integrity of Pakistan and its people, and the good order and harmony of society; .
(s) has not used for this election the platform, flag, symbol, and financial or material resources or support of a political, religious, ethnic or sectarian party, formation or organization."
The concept of joint candidacy is provided in section 16 of the Punjab Local Government Election Ordinance, 2000 which is as under:- "
16. Join Candidacy and elections.-- (1) A Zila Nazim and a Naib Zila Nazim or a Town Nazim and a Naib Town Nazim or a Tehsil Nazim or a Union Nazim and a Naib Union Nazim shall contest election in their respective wards as joint candidates.
(2) The Nazim and the Naib Nazim of a District Government or a Town Government or a Tehsil Government securing as joint candidates the highest number of votes shall be declared elected.
(3) In case a Zila Nazim and a Naib Zila Nazim do not secure majority of the total votes of the members of the Union Councils in the District, there shall be held a fresh election, within one week of the first election, in which the joint candidates for such officers securing the highest and the second highest number of votes shall be contestants and the joint candidates securing the highest number of votes in the fresh election shall be declared elected."
Section 18A of the Punjab Local Government Election Ordinance, 2000 provides for election of a candidate in cease a member cases to hold office for one reason or the other. It reads as under: "18A. Casual Vacancy.- (1) If the seat of a member becomes vacant during the term of office of a Council, a new member shall be ejected through bye-election and such member shall hold office for the remaining part of such term: (underlining is mine): Provided that all bye-elections shall be held once a year on dates fixed by the Chief Election Commissioner.
(2) A vacancy in the office of a Nazim shall be filled by an officiating Nazim elected by the members of the Council concerned by a majority vote:
(a) The member so elected shall continue to hold his substantive office as member till the bye- election to fill the vacant office is held;
(b) A Naib Nazim will not be eligible for bye- election or to be an officiating Nazim; and
(c) In the event of temporary absence of a Nazim the Naib Nazim of the Council concerned shall act in place of the Nazim."
Corrupt practice, bribery, undue influence and illegal practice corresponding penal consequences, have been defined in Sections 22, 23, 25 and 26 of the Punjab Local Government Elections Ordinance, 2000 which are reproduced as under:- Section 22 of the Ordinance mandates as follows:- "22. Corrupt practice.-- A .Person is guilty of corrupt practice punishable with imprisonment for a , term Which may extend to three years, or with fine which may extend to five thousand rupees, or with both, if he is guilty of bribery, personation of undue influence.
Section 23 reads as under:- "23. Bribery.-- A person is guilty of bribery, if he, directly or indirectly, by himself or by any other person on his behalf:-
(1) receives, agrees or contracts for any gratification for voting or refraining from voting, or for being or refraining from being a candidate at, or withdrawing or retiring from an election;
(2) gives, offers or promises any gratification to any person;
(a) for the purpose of inducting:
(i) a person to be or to refrain from being a candidate at an election; or
(ii) a voter to vote, or refrain from voting at any election; or
(iii) a candidate to withdraw or retire from an election; or
(b) for the purpose of rewarding:
(i) a person for having been or for having refrained front being a candidate at an election; or
(ii) a voter for having voted or refrained fro voting at an election; or
(iii) a candidate for having withdrawn or retired from an election.
Explanation.- In this section, gratification included a gratification in money or estimable money 'and all forms of entertainment or employment for reward."
Section 25 ibid is as under:- "25. Undue influence - A person is guilty of undue influence, if he:-
(1) in order to compel any person to vote, refrain from voting, or to induce or compel any person to withdraw his candidature at an election, directly or indirectly, by himself or by any other person on his behalf:
(a) makes or threatens to make use of any force, violence or restraint;
(b) inflicts or threatens to inflict any injury, damage, harm or loss; or
(c) uses any official influence or governmental patronage.
(2) On account of any person haying voted or' refrained from voting of having withdrawn his candidature, does any of the acts specified in clause (1);
(3) By abduction, duress or any fraudulent device or contrivance:
(a) impede or prevents the free exercise of the franchise by a voter; or
(b) compels, induces or prevails upon any voter to refrain fr6m voting or compels 4 any voter to vote.
Explanation.- In this section, harms includes social ostracism or ex-communication or expulsion from any caste or community."
Section 26 mandates as under:- "26. Illegal practice.- A person is guilty of illegal practice punishable with fine which may extend to one thousand rupees, if he:
(1) obtains or procures, or attempts to obtain or procure, the assistance of any officer or official of the Federal Government, a Provincial Government or a local Government or authority to further or hinder the election of a candidate;
(2) votes, or applies for a ballot paper for voting at an election knowing that he is not qualified for 1 voting or is disqualified from voting;
(3) votes, or applies for' a ballot paper for voting more than once at any polling station;
(4) removes a ballot paper or a ballot box from a polling station or destroys, damages or tampers with the ballot-box used at a polling station;
(5) knowingly induces or procures any person to do any of the aforesaid acts;
(6) fails to provide statement of election expenses as required under this Ordinance;
(7) Makes or publishes a false statement.
(a) concerning the personal character of a candidate or his relaxation calculated to adversely affect the election of such candidate or, for the purpose of promoting or procuring the election of another candidate, unless he proves that he had reasonable ground for believing, and did believe, the statement to be true;
(b) relating to the symbol of a candidate whether or not such symbol has been - allocated to such candidate; or
(c) regarding the withdrawal of a candidate;
(8) knowingly, in order to support or oppose a candidate lets, lends, employs, hires, borrows, or uses any vehicle or vessel for the purpose of conveying voters to or from the polling station, except when a person conveys himself or any member of the household to which he belongs, to or from the polling station;
(9) causes or attempts to cause any person present . And waiting to vote at the polling station to depart without voting."
The grounds on the basis of which the election of a returned candidate can be declared void are stipulated in rule 8 of the Punjab Local Government Election Rules, 2000 which stipulate, as under:-
81. Grounds of declaring election of returned candidate void.- (1) The Tribunal shall declare the election of the returned candidate to be void if L is satisfied that:-
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day qualified for, or was disqualified from, b$ing elected as a member or Nazim or Naib Nazim, as the case may be; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of . The candidate or his authorized agent.
(1) The election of a returned candidate shall not be declared void on the grounds:-
(a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was . Not committed by or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being election as a member."
Section 152 of the Punjab Local Government Ordinance, 2001 enumerates the qualifications for candidate and elected members of a local council and lays down that if it is found by the Chief Election Commissioner that any One has contravened the afore-referred provisions, the said member shall stand disqualified for being a candidate for election to any office of the Local Government for a period of four years. Section 154 of the said Ordinance reiterates the principle of joint candidacy in election as provided in Section 16 of the Punjab Local Government Elections Ordinance, 2000 but provides that in the event of the occurrence of a casual vacancy, "a candidate in the office of a Nazim or a Naib Nazim shall contest the election for such office in individual capacity". Section 161 of Ordinance 2001 lays down the procedure for the removal of a member and it reads as under:- "161. Removals.-- (1) Where proceedings of disqualification under Section 152 have been initiated on an application made by any person or by the Chief Election Commissioner on his on motion against a member, Nazim or Naib Nazim the Election Commissioner or any authority authorized by it may issue a notice to show cause to a member. Nazim or as the case may be Naib Nazim, within a specified period as to why proceedings against him may not be taken for his removal for breach of any of the Provisions of Section 152. (underlining is mine).
(2) Where the Election Commission or an authority authorised by it is not satisfied with the reply to the notice to show cause referred to in subsection (1) or any reply to the said notice is not filed within the period fixed by him, he may order for an enquiry in the matter and for that purpose appoint an enquiry officer.
(3) On the basis of enquiry held under subsection (2), the Election Commission or an authority authorised by it may order the removal of a member, Nazim or, as the case may be, Naib Nazim: Provided that before an order of removal is passed, the member Nazim or, as the case may be, Naib Nazim against whom enquiry proceedings are carried out shall be afforded a reasonable opportunity of being heard, including personal hearing if so requested."
Issue No. 1: Whether the concept of co-candidacy stipulated in Section 16 of the Punjab Local Government Elections Ordinance, 2000 would- continue to hold the field after the candidates have been returned a$ Nazim and Naib Nazim and can this principle 'be invoked to annul the election as a.
Whole if an Election Petition is allowed against either of them on any ground stipulated in law?
13. The fundamental issue in all these petitions is the question of interpretation of the expression "Joint, Candidacy". Statutory interpretation has been a subject of debate among Lawyers, Jurists and Judges down the ages. Methods of statutory interpretation have not been generally regulated by the Parliament or the law-maker. These have been evolved by the Judges. These modes have varied in time and space. The various modes ultimately culminated in what the Jurists have termed as "rules of statutory interpretation". These rules, broadly speaking, are as under:-
(i) The Mischief Rule;
(ii) The Literal Rule;
(iii) The Golden Rule;
(iv) The United Contextual Approach.
For the purpose of the instant case the united contextual approach would bp of relevance. 'This has a rather recent origin. Smith and Bailey (in The English Legal System, third edition, page 363), referred to the Following passage in Attorney General v. Prinvr Ernest Auqutus Hanover (1957 A.C.
436) to explain this approach:-- "Words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law other statutes in pari materia, and the mischief which 1 can, by those and other legitimate means, discern the statute was intended to remedy....
No one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous."
The very title of Section 16 is suggestive of its meaning and import. It is total Candidacy and elections". It shows that the element of "Joint" is relatable to candidates in elections only and not beyond that. This legislative intent is implicitly reiterated/reflected in other provisions of the same Act, the related Statutes and the rules framed thereunder. For instance if a returned candidate/member is un-seated or a seat falls vacant, then Section 18A (The Punjab Local Government Elections Ordinance, 2000) stipulates bye-election of that seat only and not that of the other member who got elected with him through joint candidacy. Section 154 and Section 156 of the Punjab Local Government Ordinance, 2001 are analogous to Sections 16 and 18A respectively of the Punjab Government Elections Ordinance, 2001. Section 196 of the Punjab Local Government Ordinance,. 2001 provides for repeal of the previous two related Ordinances (1). The Punjab Local Government Ordinance, 1976, 2). The Punjab Local Government Elections Ordinance, 2000. Yet sub- section (3) of Section 1 of- the same Ordinance (of 2001) defers its enforcement and the repeal of the earlier law to a date or dates, the Government may by notification in the official Gazette declare. Those provisions remained in vogue till 26th September, 2002 when the Local Government and Rural .Development Department, Government of the Punjab issued the requisite declaration in terms of sub-section (3) of Section 1 of the Punjab Local Government Ordinance, 2001 which was notified in the Punjab Gazette and reads as under:-'
"Notification.
No. SOV (LG)5-3/2001.-- In exercise of the powers conferred upon him under sub-section (3) of Section 1 of the Punjab Local Government Ordinance, 2001 (XIII of 2001), the Governor of the Punjab is pleased to enforce the provisions of Chapter-XIX of the said Ordinance, with immediate effect."
Sub-section (2) of Section 196 (of the Punjab Local Government Ordinance, 2001) provides that notwithstanding the repeal of the Punjab Local Government Ordinance, 1979, ail ruies, regulations and bye-laws framed under the repealed Ordinance shall continue to be in force provided those are not inconsistent with the other provisions of this Ordinance (of the repealing Ordinance). Sub- section (3) of Section 196 contemplates the continuity and mode of removal of those elected under the repealed Ordinance. The operative part whereof reads as "shall continue to hold their respective offices till-the completion of their terms, unless earlier removed or retired under this Ordinance.
Section 161 (of the Punjab Local Government Ordinance, 2001) lays down procedure of removal of a Nazim or Naib Nazim if he lacks any of the qualifications in terms of Section 152 and it does not talk of any joint remove/liability. And finally under Section 164 of the same Ordinance, the Chief Election Commissioner, who is to notify "every election, bye- election, and result of such elections and resignation, removal or recall of a member, Nazim or Naib Nazim as the case may be" (the underlining is mine). Under Section 38 of the Punjab Local Government Elections Ordinance, 2000, the Punjab Local Government Elections Rules, 2000 were framed which by virtue of Section 1, sub- section (3) were still in force at the relevant time as admittedly the Punjab Local Government Elections Ordinance, 2000 had not, by then, been notified by the Government to have been repealed. Rule 81 lays down the grounds on the basis of which the Tribunal shall declare the election of "the returned candidate" and not of candidates as void. Those grounds are also relatable to a returned candidate. Those are as under:--
(a) the nomination of the returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day qualified for or was disqualified from, being elected as a member or Nazim or Naib Nazim, as the case may be; or
(c) the election of the returned candidate has been procuredor induced by any corrupt or illegal practice; or
(d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his authorized agent."
The above-mentioned scheme of law clearly shows that the post election procedure for (i) removal of a member, (ii) the bye-election to a vacant seat and the subsequent (iii) notification of its result is member specific and not joint.
Besides looking at the statutory context to interpret the "joint Candidacy" the well-known rules of language can also be made use of for the same purpose. One such rule is EJUSDEM GENERIS, It means general words which follow particular ones normally apply only to such persons or things as are ejusdem generis (i.e. Of the same genus or class) as of the particular ones (Smith and Bailey on the Modern English Legal System third edition page 378). In the present context the word "joint" is ejusdem generis to the word which follows i.e. "candidacy".
Yet another Latin tag i.e. NOSCITUR A SOCHS would also be very instructive, It means that words derive colour from those words which surround them, It is a fundamental rule in the construction of statutes that associated words explain and limit each other. The meaning of a word may be ascertained by a consideration of the company in which it is found and t[ie meaning of the words which are associated with it. (Brown v. Chicago N.W.Ry. Co., 78 NW 771).
The distinction between the two Latin tags was graphically explained in State of Bombay v. Hospital Mazdoor Saba (AIR 1960 SC 610 and 613) as under:-- "Associated words take their meaning from another under the doctrine of Noscitur a SOCHS, the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it. Such doctrine is broader than the maxim ejusdem generis. In fact the latter maxim is only an illustration of specific application of the broader maxim noscitur a Sociis."
This is in line with the law laid down in Zamiruddin Ahmad v. Havas Khan (PLD 1969 S.C. 57) and Messrs Kashmir Pottery Works v. Commissioner of Sales Tax (PLD f973 Lah. 837).
In the light of what has been discussed in the preceding paras, this Court is of the 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 election of the other returned candidate who may have contested elections as a joint Candidate with the former.
Issue No. II: Whether the Learned Tribunal fell in error in declaring petitioner No. 2 as below 25 years of age and thereby ignoring the Birth Certificate issued by the Municipal Corporation wherein his date of birth is entered as 31.3.1974? (In W.P. No. 9029/2002).
14. In the above-mentioned case petitioner No. 2nd date of birth, as per the entires made in the Municipal Register, was 31.3.1974. However, in the original Matriculation Certificate his date of birth was mentioned as 10.8.1976 but subsequently it was changed, as per the evidence, on 1.3.2001. In those circumstances, the Tribunal was of the Issue No. III: Whether the Learned Tribunals rightly declared the matriculation certificate of petitioner No. 2 (Allah Dad) in W.P. No. 8752/2002 and petitioner No. 2 (Muhammad Usman Mirza) in W.P. No. 9338/2002 to be fake)?
15. In W.P. No. 8752/2002 petitioner No. 2nd matriculation certificate was declared by the Tribunal to be fake. The Teamed Election Tribunal based its finding on a letter received from the Secretary Punjab Board of Technical Education, Lahore bearing No. 821, dated 24.4.2002 to the following effect:-- "The certificate of Mr. Allah Dad son of Ata Muhammad bearing Roll No. 53 certificate No. 001253 Secondary School Certificate (Matric Tech.) Session 1981 is fake/bogus."
No tenable evidence was led by the petitioner in rebuttal to the afore-referred letter. The afore- referred letter was duly proved before the Learned Tribunal by the official of the Board and there is nothing to indicate that the petitioners ever challenged the afore-referred finding before the competent forum in the hierarchy of the Punjab Board of Technical Education.
Similarly in W.P. No. 9338/2002 the Learned Tribunal found that the matriculation certificate produced by Muhammad Usman Mirza (petitioner No. 2 in the said petition) was fictitious. This finding is based on (i) statement of PW1 Abdullah an official of the concerned Board to the effect that Roll No. 10573 on which the said petitioner claimed to have appeared and cleared Matriculation was that of a girl named Rukhsana daughter of Muhammad Anwar, (ii) statement of PW2 (Mushtaq Ahmad) of the Registration Office. He said that in Form-Alf, the said petitioner is shown to have "middle" qualification; (iii) Exh.PI was placed on record which is the enquiry report of the Board wherein it was held that petitioner No. 2nd matriculation certificate was fake.
Petitioner could not lead any tenable evidence in rebuttal.
This afore-referred finding of fact arrived at by the Learned Tribunals of competent jurisdiction cannot be interfered in the Constitutional petitions. The findings, therefore, to the extent of petitioners No. 2 In both the petitions merit no interference.
Issue No. IV: Whether the Learned Tribunal correctly interpreted the relevant statutory provisions in holding that the act of petitioner No. 2 (and his brother), in surrendering his personal land in favour of the residents to widen the village street amounted to bribery and illegal practice entailing disqualification? (In W.P. No. 9004/2002).
16. The allegation against petitioner No. 2 in the afore-referred petition was that he provided electric polls to the residents of the locality during the election campaign and that he was signatory to an Iqrar Nama (Exh. A2) entered into between himself, his brothers and residents of the locality to the effect , that to widen the street tc the extent of six feet he and his brothers, in the Name of God Almighty would, surrender a certain part of the land/property owned by them and that they had no objection if the residents of the locality got the said land mutated in the revenue record for the said purpose.
There is no cavil to the proposition that if a candidate offers or gives or promises any gratification for the purpose of inducting a voter to vote or a candidate to withdraw or to influence the course of election, it would constitute a corrupt practice within the meaning of Sections 165 and 166 of the Punjab Local Government Ordinance, 2001 and the election of a returned candidate could be annulled if his charge is proved. These provisions of election laws are meant to ensure the sanctity of the election process. However, while interpreting these provisions care has to be taken in distinguishing a voluntary expression of goodwill in favour of the residents of the locality and the offer made to a potential voter in lieu of the premise held by the latter of support in the election. In the former Act, there is no element of bargain whereas in the latter Act the bargain could be overt or covert or could be subtle or implied. To declare an act to be a, corrupt practice or the transaction to be bribery in the context under consideration, the element of bargain is a condition precedent. Two elements are essential in order to constitute a bargain. Firstly, there must be a gift, an offer or a promise or a gratification and, secondly, there should be an element of solicitation for votes in lieu of gift or promise or gratification. In the instant case, the wording of AW2 (Iqrar Nama) indicates that the surrendered land to widen- the street was made voluntarily in the Name of God Almighty and there was no element of soliciting the vote in the said Iqrar Nama. The allegation that the petitioner promised and provided electric polls in the locality with a view to influence the course of election is not borne out from the record. Only AW3 Rao Muhammad stated so and that too to the extent that four cemented elected polls were brought by petitioner No. 2 three/four days prior to the election day and were kept in his house. This allegation is not corroborated by any other material on record. The three witnesses produced by the respondent objectors belonged to the loosing party and no implicit reliance can be placed on their testimony. The view that bargaining with voters is an essential ingredient to prove corrupt practice or bribery is fortified by two judgments of the Indian Supreme Court reported in Harjit Singh v. S. Umrao Singh (AIR 1980 SC 701) and lqbal Singh v. Gurdas Singh (AIR 1976 SC 27).
For what has been disused above it is declared and held as under:-
(i) That the concept of Joint Candidacy stipulated in Section I6 of the Punjab Local Government Ordinance, 2000 is relatable to election or bye- election only and would not affect the election of a returned candidate if an election petition is allowed against a, co-retuned candidate. All the Constitutional Petitions to the afore-referred extent are allowed;
(ii) Writ Petition No. 9029/2002 is allowed. For reasons given in para 14, the findings qua petitioner No. 2 are not sustainable;
(iii) -For what has been discussed in para 15, Writ Petition No. 8752/2002 and Writ Petition No. 9338/2002 are dismissed with regard to petitioner No. 2 in both the petitions;
(iv) Writ Petition No. 9004/2002 is also allowed to the extent of petitioner No. 2 as well. (Reasons are in para I6 above).