' ABDUL HAMEED DOGAR, J.--- This petitioner for leave toappeal is directed against the judgment, dated 31-7-2003 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Writ Petition No,18509 of 2002 filed by the petitioner was dismissed and order dated 7-10- 2002 of the learned Election Tribunal, Okara, (hereinafter referred to as "the Tribunal") was maintained.
2. Briefly, stated, the facts of the instant petition are that petitioner and Muhammad Ishaq Khan, on one side, whereas Mushtaq Ahmad Khan and Muhammad Yasin, Ghulam Safdar and Aas Muhammad and Shaukat Ali and Saleemuddin, on the other side, contested election in pairs as joint candidates for the seats of Nazim and Naib Nazim of Union Council No,25, Matta, Tehsil and District Kasur, which took place in the month of July, 2001. In the said election, petitioner alongwith his joint candidate, namely, Muhammad Ishaq succeeded and were declared as Nazim and Naib Nazim respectively vide notification dated 6-7-2001. Feeling aggrieved, respondents Nos.3 and 4 challenged the said Notification through an election petition before the learned Tribunal on 1-8- 2001. The notices of the said petition were issued to petitioner and Muhammad Ishaq Khan and private respondents for 21-9-2001, on which date, petitioner and Muhammad Ishaq did not appear as such an ex parte order was passed against them on the report of denial submitted by Nazar.
The learned Tribunal vide judgment dated 6-7-2001 allowed the election petition, set aside the impugned notification and declared respondents Nos.3 and 4 as returned candidates. This order was challenged by petitioner and said Muhammad Ishaq Khan in Writ Petition No,13723 of 2002 before the learned High Court which was allowed vide order, dated 9-9-2002 while treating the writ petition as an application for setting aside the ex parte order and remanded the matter for disposal afresh on or be fore15-10-2002.
3. The learned Tribunal on post-remand proceedings framed the following issues:--
(i) Whether there are sufficient grounds to set aside ex parte order, dated 12-7-2002? OPA
(ii) Whether the petitioners have not approached this Court with clean hands and petition is liable to be dismissed? OPR
(iii) Relief.
' Both parties led their respective evidence on the issues. Vide order, dated 7-10-2000, the learned Tribunal again dismissed the election petition while maintaining the ex parte order passed earlier.
4. Feeling dissatisfied, petitioner and Muhammad Ishaq Khan challenged the aforesaid order before the learned Lahore High Court, through Writ Petition No,18509 of 2002 which was dismissed through the impugned judgment, dated 31-7-2003.
5. We have heard Sahebzada Ahmad Raza Khan Qasuri, learned Senior Advocate, Supreme Court for the petitioner and Mr. Shahzad Shaukat, learned Advocate Supreme Court for respondent No,3 and have gone through the record and the proceedings of the case in minute particulars.
6. Learned counsel for the petitioner at the very outset submitted that the instant petition has been filed on behalf of petitioner Sardar Tariq Javaid only whereas Muhammad Ishaq has been arrayed as respondent No,9, as such, he will advance arguments on behalf of petitioner Sardar Tariq Javaid. According to him petitioner had secured 2873 votes, the highest number which showed the confidence of the voters in him, therefore, he should not have been knocked out on technical ground. He contended that the notice was never served upon the petitioner and ex parte order was not passed in accordance with law, thus entire proceedings took place in his absence hence liable to be set aside. He further contended that respondents Nos.3 and 4 cannot be declared as returned candidates because of the reason that they secured 1001 less votes than the petitioner which showed that the voters had no confidence in them.
7. On the other hand, Mr. Shahzad Shoukat learned counsel for respondent No,3, controverted the contentions of the learned counsel for the petitioner and while supporting the impugned judgment contended that petitioner deliberately avoided the service of the Court. The process-server showed the summon to the petitioner but he refused to receive the same which was witnessed/signed by Rana Muhammad Tufail. He was cross-examined but his evidence remained unshattered.
8. As far as the case of petitioner Sardar Tariq Javed is concerned, we are of the considered opinion that he has not been able to make out a case to set aside the ex parte order, dated 21-9- 2001. The learned Tribunal as well as the learned High Court have advanced solid and valid reasons by appreciating and examining the statements of R.W.1 Mushtaq Ahmad Khan, R.W.2 Akbar Ali, Process-Server of District Court, Kasur, R.W.3 Abdul Ghafoor, Postman, R.W.4 Muhammad Rafique, Postman, R.W.5 Muhammad Ashiq and R.W.6 Muhammad Tufail.
9. There being concurrent findings of two Courts below recorded on the above factual aspect of the matter, the same cannot be interfered with by this Court. Irrespective of above, petitioner Sardar Tariq Javaid was compulsory retired from police service on 8-24999, criminal cases under section 7/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 13/20/65 of the Arms Ordinance were registered against him at Police Station Laliani, District Kasur.
A complaint was also lodged against him by a Magistrate under section 188, P.P.C. During the days of election. Thus, in terms of section 14 of the Punjab Local Government Elections Ordinance, 2000 (Punjab Ordinance No,V of 2000), he was also not eligible to contest election.
10. As regards case of respondents Mushtaq Ahmad and Muhammad Yasin, we are of the considered opinion that learned Tribunal as well as learned High Court has seriously erred in declaring them duly elected. Admittedly, the respondents have secured 1001 votes less than the votes secured by the petitioner which, showed lack of confidence of the majority of voters in them.
Thus, the majority of the voters cannot be deprived of their right of franchise on the doctrine of throw away. This doctrine has been dealt with and elaborately discussed by this Court in the case of Rashid Ahmad Rahmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301 wherein it has been held that votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted for felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification, the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes mainly for the reason that the voters cannot be disfranchised for no fault on their part. The above principle has been followed in the cases of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 and Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698 wherein this Court while approving the above dictum has maintained that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. Even in the cases emanating from the Punjab Local Government Ordinance, 2001, this Court in the case of Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCM R 1611 while reiterating the above principle, has held that the electors cannot be said to have thrown away their votes by casting votes in favour of a disqualified person and in such a case declaring the next candidate securing highest votes would amount to defranchise the electors for no fault on their part.
Accordingly the findings recorded by both the forums below declaring respondents Mushtaq Ahmad Khan and Muhammad Yasin are set aside and election as a whole is declared void.
11. While disposing of the petition in the above terms we direct the Election Commission of Pakistan to hold fresh elections for the office of both Nazim as well as Naib Nazim of Union Council No,25, Matta, Tehsil and District Kasur in accordance with law.