' This judgment shall decide Writ Petitions Nos.2622 of 2002 and 2637 of 2002 as both the writ petitions proceed against a common judgment of learned Election Tribunal, and were ordered to be heard together.
2. The private parties to these writ petitions contested election to the seat of Naib-Nazim and Nazim in Union Council No,12, Rawalpindi The petitioner in Writ Petition No,2622 of 2002 namely Ch. Shabbir Hussain was returned as Nazin while the petitioner Ilyas Khan in Writ Petition No,2637 of 2002 was returned as Naib-Nazim. Respondents Nos.10 and 11 tiled an election petition to challenge the said election primarily on the ground that the petitioner in this case is not a person of good character as he had been convicted in several smuggling cases and is a proclaimed offender and some other cases were also registered against him under the anti-smuggling laws.
3. The petitioner denied the said allegations inter alia, the following issue No,4 was framed:-- "Whether respondent No,3 is a man of bad character and not eligible to contest the election? OPP"
4. The evidence of the parties was recorded. The learned Election Tribunal found the said issue against the petitioner and resultantly held that he was not qualified to contest the election. He accordingly declared the election of both the writ petitioners to be null and void and further proceeded to declare respondents Nos.10 and 11 as returned candidates for the office of Nazim and Naib-Nazim of Union Council No,12. This was done vide judgment dated 4-9-2002.
5. Writ Petition No,2622 of 2002 has been filed by the said Ch Shabbir Hussain (Nazim Seat) while Writ Petition No,2637 has been filed by the said Ilyas Khan (Naib-Nazim Seat).
6. Ch. Sultan Mansoor and Mr. Mahmood-ul-Hassan Awan, Advocate, for Ch. Shabbir Hussain petitioner argue that barring a single case where the said petitioner was convicted till rising of the Court and to fine of Rs,1,000 no other case relateable to the petitioner stands proved. Learned counsel contend that the said conviction neither falls within the mischief of section 14(k) nor under section 14(1) of the Punjab Local Government Elections Ordinance, 2000.
7. Mr. Muhammad Ilyas Sheikh, learned counsel for the said contesting respondents with reference to the evidence available on record states that in the election petition, the petitioner was described as Shabbir Hussain alias Sher Khan son of Muhammad Siddique, Caste Arain, resident of B-352, Sector IV/A, Khayaban-e-Sirsyed, Rawalpindi. Learned counsel says that this description has not been challenged anywhere in the written statement filed by the said petitioner or in the course of evidence. Proceedings further draws my attention to documents Exh.A.1 to Exh.A.18 to demonstrate that all these documents pertained to the said petitioner. Relies on the cases of Tariq Mahmood v.
District Returning Officer. District Faisalabad and 3 others 2001 SCM R 1991. Ghulam Mustafa and another v. Returning Officer, Union Council No,71-78/Assistant Commissioner, Daska 2001 CLC 924 and Liaquat Ali Ranjha and another v. District Judge. Mandi Bahauddin 2001 M LD 864 to urge that the term "moral turpitude" as also character has to be given a wider meaning with reference to overall qualities or defects in the personality of a person.
8. Mr. Muhammad Asif Chaudhry. Advocate, while pressing Writ Petition No,2637 of 2002 for Ilyas Khan petitioner vehemently contends that there is not even a single word against his client in the entire election petition or in the course of evidence and no disqualification stands attributed to him. According to the learned counsel upon being elected to the seat of Nazim or Naib-Nazim, a person is no longer a candidate and provisions of rule 16 of the Rules framed under the Punjab Local Government Elections Ordinance, 2000, cannot be stretched to the later situation for non- suiting a co-candidate. Learned counsel vehemently stresses that under no rule of law or morality at the said stage, an innocent person can he made to loose the seat to which he has been elected by the majority of electorate. Mr. Muhammad llyas Sheikh, Advocate, with reference to Muhammad Iqbal v. D.R.O. And others NLR 2002 Civil 59 argues that it was for the petitioner to take care in the matter of joining his co-candidate.
9. I have gone through the copies of the record appended with both these writ petitions with the assistance of the learned counsel for the parties. The petitioner Shabbir Hussain appeared as R.W.1 and proceeded to state that he did not undergo any punishment and that no criminal case is pending against him. In the course of cross-examination, he was duly confronted with documents Exh.A.1 to Exh.A.19. He proceeded to state that these documents are incorrect and he insisted that he has never been convicted or punished in any criminal case. He even denied that any criminal case was even registered against him. He was confronted with his description mentioned in the election petition and in a round about manner, he has admitted the same as correct.
10. Exh.1 is the copy of the challan under section 173, Cr.P.C., with reference to a case registered against him under section 156(8)(9) of the Customs Act, 1969, and Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. According to this report, a large quantity of illicit liquor was recovered from Shabbir Ahmad alias Sher Khan son of Muhammad Siddique, Caste Arain, resident of Sector 4/A, Khayaban-eSirsyed, Rawalpindi. It is further reported that the said Shabbir Ahmad alias Sher Khan had absconded and proceedings under section 87, Cr.P.C. Have been taken against him. Exh.A.3 is the copy of warrants of arrest of said Shabbir Ahmad while Exh.A.4, is a warrant in terms of sections 87 and 88, Cr.P.C. Whereby proclamation was issued and he was declared a proclaimed offender vide Exh.A.5.
' Exh.A.6 is a copy of the report pertaining to a case registered under section 156(8)(9)C of the Customs Act, 1969. According to this report, the aforesaid Shabbir Hussain with the said particulars was apprehended and a large quantity of contraband cloth was recovered. He was challenged and sent up before the learned Special Judge, Customs, Islamabad, wherein charge was framed.
He along with his co-accused pleaded guilty and prayed for mercy. He was convicted under the said provisions of law to imprisonment till rising of the Court and a fine of Rs,1,000 vide order dated 8-5-1991.
' Exh.A.8 is another similar report regarding the case under the said offences. Vide Exh.A.10 and Exh.A.11, he pleaded guilty along with his co-accused and they were convicted under the said provisions of Customs Act, 1969, and sentenced to imprisonment till rising of the Court and a fine of Rs,1,000 vide order dated 11-3-1991.
' Exh.A.12 is again a similar report filed in Court by the police under the said offences. This time, contraband cloth and tyros were recovered. Vide Exh.A.13 similar allegations were made so is the case of Exh.A.14, but in this case the accused persons were acquitted under section 265-K, Cr.P.C.
Vide Exh.A.18, the petitioner was acquitted of a similar offence vide F.I.R. No,56 of 1998 dated 7-4- 1998 by the learned Special Judge, Customs, on 30-9-1999.
11. Having gone through the aforesaid evidence available on record IA and the persistent denial of the petitioner when confronted with the said evidence, I do find myself in agreement with the learned Election Tribunal when he concludes that the said petitioner cannot be said to be a man of good character within the meaning of section 14(d) of the Punjab Local Government Elections Ordinance, 2000. The petitioner aspired for the office of Nazim of Union Council, which is the basic structure of the local/District Government, said to be set up under the said Ordinance. By virtue of the said office, a Nazim is automatically a member of District Assembly and so on. This being so, the facts emanating from the said documents and the conduct of the petitioner during the course of the election petition, does not at all qualify him to hold the said office. The judgment rendered by the Division Bench and cited by the learned counsel for the respondents in the aforesaid case of Muhammad Iqbal v. D.R.O. Etc. Contains observation with reference to an earlier Division Bench's judgment of this Court in the case of Muhammad Shabbir Abbasi v. Abdur Rashid Mughal 1984 CLC
27. While interpreting Article 10(2)(aaa) of the Houses of Parliament and Provincial Assembly (Election Order (P.O. 5 of 1977), it was observed that the word "morality" in the context of Election Laws is not to be used in any narrow sense but in a general sense such as the law of conscience, the aggregate of those rules and principles of ethics which relates to upright behavior and right of elected representatives. I am, therefore, not inclined to interfere with the findings recorded by the learned Election Tribunal on the said issue in the exercise of Constitutional jurisdiction.
12. Now coming to the matter of the said Naib-Nazim. Everybody agrees that there is no allegation against him and no disqualification' stands attributed to him. The case of Muhammad Iqbal (supra) being relied upon by the learned counsel for the respondents was decided at a point of time when the nomination papers were being scrutinized and was decided with reference to the rule 16 of the Punjab Local Government Elections Rules, 2000. There is no doubt that the said rule 16(1)(2) read with rule 18(3) (proviso) of the said Rules do provide that in case of rejection of nomination of either a Nazim .Or Naib-Nazim as joint candidates, the nomination as a whole of both the candidates shall stand rejected. As against the said rules 16 and 18, when one examines Chapter 10 of the Punjab Local Government Elections Rules, 2000. One finds that the election is to be called in question by an election petition made by a candidate for that election but no mandate or directive is to he found in the said Chapter that in the matter of challenging the election of Nazim or Naib-Nazim, both Nazim and Naib-Nazim are to be the petitioners or that the election of both the persons is to he challenged compulsorily. Rule 81 lays down the ground for declaring the election of a returned candidate to be void. One does not gather any such impression that in the matter of Nazim or Naib-Nazim, the grounds as mentioned in rule 81 of the Punjab Local Government Election Rules, 2000, are to be alleged against both the said office-holde Rs,
13. I may here particularly noted the provisions of rule 90 vis-a-vis the provisions of rule 20 of the said Rules. Rule 20 provides in mandatory term that the application for withdrawal of candidature in case of joint candidate for the office of Naib-Nazim and Nazim, the application for withdrawal shall be signed by both of them. However, no such requirement is that in rule 90 which provides for withdrawal of election petition by leave of the Tribunal. Learned counsel for the respondents then argues that there is no provisions in the main Ordinance that in case of a vacancy in the office of either Nazim or Naib-Nazim, it shall have to be deemed that whenever for any reason one of the two has to leave the office, the other has to follow. The contention is misconceived. Vide Punjab Local Government Election (Second Amendment) Ordinance, 2000, section 18-A was added.
Subsection (2) of section 18-A provides that 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. This is subject to the provision that the member so elected is to hold his substantive office as member till the bye-election to fill the vacant office is held and a Naib-Nazim stands prohibited from contesting the election to a by-election or to be an officiating Nazim. At the same time, it has been provided that in the event of temporary absence of a Nazim, the Naib-Nazim of the concerned Council shall act in place of the Nazim. Now this provisions made in the parent law i,e, the main Ordinance itself, shall have to take precedence over the said rules 16 and 18 even if they were to be stretched as suggested by the learned counsel.
14. In the light of the above discussion Writ Petition No,2622 of 2002 is dismissed while Writ Petition No,2637 of 2002 is allowed. The result would be that Ilyas Khan writ petitioner shall continue to hold the office and perform the functions of Naib-Nazim in the said Union Council. There is no order as to costs.