' NAZIM HUSSAIN SIDDIQUI, C.J.--- Appellant Sh. Amjad Aziz under section 67(3) of the Representation of the People Act, 1976 (hereinafter called the Act) has impugned the judgment dated 16-2-2004passed in Election Petition No,59 of 2002 by learned Election Tribunal, Punjab, Lahore whereby notification, dated 20-10-2002 issued by the Election Commission of Pakistan declaring the ,,appellant as returned candidate from Constituency No,PP-156 (Lahore-XX) was set aside, election of the appellant was declared null and void and respondent No,1, Haroon Akhtar Khan (hereinafter called the respondent), was declared as elected/returned candidate from said Constituency.
2. The appellant and respondents Nos.1 to 10 contested the general election held on 10-10-2002 for above seat. According to the result, the appellant and the respondent secured 11,716 and 10,711 votes respectively. The Constituency had more than one lac registered voters and only 37,087 of them exercised their right of franchise. The appellant was declared as returned candidate and necessary notification was issued on 20-10-2002.
3. The respondent, being dissatisfied with the result, filed an Election Petition under section 52 of the Act before learned Chief Election Commissioner, who entrusted it to the Tribunal, which disposed it of in above terms. The respondent challenged the election of the appellant, inter alia, on the grounds that the latter was not a graduate at the time of filing of the nomination papers and that he had a fake/forged B.Sc. Degree. It was also alleged that he even had not cleared his intermediate examination.
4. All the respondents were summoned but only respondents Nos .l, 4 and 5 entered appearance.
Respondents Nos.2, 3 and 6 to 10, though served, remained absent, as such, they were proceeded ex parte by the Tribunal vide order, dated 20-2-2003. Only respondents Nos.1, 4 and 5 resisted the Election Petition by filing their separate written statements. It appears from the impugned judgment that, in fact, the contest was between the appellant and the respondent. .Learned Tribunal, from the divergent pleadings of the parties, settled the following issues:-- "(1) Whether the election is not maintainable due to non-compliance of the provisions of section 52(2) of the Representation of People Act, 1976? OPR
(2) Whether the petition suffers from misjoinder of parties, if so, its effect? OPR
(3) Whether on the date of filing of the nomination papers for election for constituency PP-156 (Lahore-XX), the respondent No,1 was not possessed of a bachelor degree in terms of Article 8-A of the Conduct of General Election Order, 2002? OPP
(4) Whether the election of respondent No,1 is liable to be declared as null and void and the petitioner is entitled to be declared as returned candidate? OPP
(5) Whether facts and circumstances of the case warrant and justify the re-election, under the law? OPR-4 (5-A) Whether the petition is violative of section 55(3) of the Representation of People Act, 1976, since schedules to the election petition are neither signed nor verified in the manner laid down in C.P.C.? OPR
(6) Relief."
5. The appellant appeared as his witness and did not produce any other oral evidence. The respondent produced various documents, the details of which are given in the impugned judgment, and examined 8 witnesses, namely, Col. (Retd.) Masudul Haq, Registrar, University of the Punjab, Lahore, P.W.1, Dr. A. Basit, Legal Adviser, University of the Punjab, P.W.2, Makhdoom Ashraf, Assistant, R.K.J.-II Branch, Lahore High Court, Lahore, P.W.3, Abdul Ghaffar, Deputy Treasurer (Retd.)
P.W.4 Ishfaq Khalid, Superintendent Record, Marie Branch, Board of Intermediate and Secondary Education, Lahore, P.W.5, Muhammad Ayub, Deputy Secretary, Punjab Board of Technical Education, P.W.6, Abdul Rauf, Ahlmad to the Court of Mian Khadim Hussain, Returning Officer, PP-156, P.W.7 and respondent himself as P.W.B.
6. Before us only two points have been contested: Firstly, if the appellant possessed a bachelor degree in terms of Article 8-A of the Conduct of General Election Order, 2002 and secondly, if the principle of "throw away votes" could be invoked.
7. It was contended on behalf of the respondent before the Tribunal that the appellant was not a graduate and for this purpose certain documents were tendered, which were admitted in evidence and exhibited at Exh.P.1 to Exh.P.14 without any objection from the appellant. Besides, the respondent had examined 8 above named witnesses. The appellant, however, only produced three documents, Exh.R.1 to Exh.R.3.
8. P.W.1 Col. (Retd.) Masoodul Haq, Registrar University of the Punjab, Lahore, in his testimony, stated that he had signed the report submitted in Writ Petition No,19453 of 2002 (Exh.P.l), which bears his signature. He deposed that pursuant to Exh.P.5, the University of the Punjab did not issue any degree to the appellant and had addressed him a letter dated 4-11-2002 (Exh.P.2), but did not receive any reply from him. Dr. A. Basit, Legal Adviser of the University, who appeared asP.W.2, stated that if a candidate does not pass the examination at the intermediate level in Math A&B and Statistics, he cannot appear in B.Sc. In the same subject. He also stated that it was not possible for a candidate to apply for admission to an examination after it was over. P.W.3 Makhdoom Ashraf, Assistant, R.K.J.II Branch, Lahore High Court, Lahore, produced the record of Writ Petition No,19453 of 2002, which was filed by the respondent challenging the Notification No,F.2/362002 dated 20-10- 2002 issued under section 42(4)(3A) of the Act showing the appellant as returned candidate and the same was dismissed by a Full Bench of Lahore High Court. P.W.4 Abdul Ghaffar, a retired Deputy Treasurer of the University stated that he could not recognize his signature on the photocopy of the pass result intimation card. P-.W.5 Ishfaq Khalid, Superintendent Record, Matric Branch, Board of Intermediate and Secondary Education, Lahore, deposed that according to record the appellant never passed intermediate examination. P.W.6 Muhammad Ayub produced attested copies of Result Register of C.Com. (Exh.P.l1 and D.Com. (Exh.P.12) of the appellant. P.W.7 Abdul Rauf produced record of nomination papers of the appellant and the consolidated statement of result of count of the Constituency in question. The respondent appeared as P.W.8 and mainly called in question the graduation degree of the appellant.
9. The appellant appeared as R.W.1 in support of his case. He stated that he did his Matric in 1982 with compartment in Mathematics, which he cleared in the supplementary examination, did his C.Com. andD.Com. From the Pitman System College Anarkali securing good marks, later he appeared in B.A. Examination (General Science) with Statistics and Double Mathematics and obtained good marks. He further stated that at the time of filling of his forms/nomination papers, his bag containing everything was stolen, but he filed his papers, which were accepted. He also stated that he filed an application for obtaining degree and that the University informed him that he would get the same in two/three days. In cross-examination, he stated that he never passed F.Sc. Examination, joined the Pitman Systems but did not study Mathematics as a subject. He, however, denied that he had studied Statistics in C.Com. andD.Com., although Column 16 of Exh.P.12 showed that be had taken Statistics in D.Com. He also stated that there was no need to obtain NOC from the Board of Intermediate and Secondary Education for changing to the Board of Technical Education.
10. Having minutely scrutinized the entire evidence brought on record, learned Tribunal reached the conclusion that the appellant was not a graduate, his candidature to contest the general election suffered from a major defect and he was not qualified to be elected or chosen as a member of the Provincial Assembly. The finding of the Tribunal issupported by irrefutable material on record and no contrary view is possible. Accordingly, we uphold this finding.
11. We come to the next point, if under the circumstances the respondent could be declared as elected/returned candidate. It requires examination as to what the phrase "throw away votes" means with reference to election, it means that if an elector definitely knows as a fact that the candidate for whom he is about to vote, is disqualified, yet persists in voting for him, the vote is utterly thrown away as if he voted for a dead person or did not vote at all. With reference to a disqualified person, it is also to be seen if the disqualification not being apparent on the face of it, the votes given by the voters could not be treated as having been thrown away. In order to make the vote a nullity, there must be wilful persistence against known disqualification. The rule of "thrown away votes" was first recognized in England in the year 1868 and was considered in the cases reported as:--
(1) The Queen v. There Mayor, Alderman and Burgess of Tewkesbury (1868) Q.B.D. (sic); (2) In Re Launceston Election Petition, Drinkwater v. Deakin (1874) L.R. 9 C.P.626; (3) Beresford - Hope v. Lady Sandhurst (1889) L.R. 23 Q.B.D. 79 CA; (4) Hobbs v. Morey (1904) 1 K.B. 74; (5) Templeton V. M'Lord (1939)- S.L.T.(Sh Ct) 41; (6) In Re Parliamentary Election for Bristol South East (1964) 2 Q.B. 257; and
(7) Fitzpatrick v. Hodge 1995 S.L.T. (Sh Ch) 118.
' In the case at serial No,(4) above, the following was held regarding above rule:-- "I agree, however, that there are cases in which the Court has power so to decide. Alike in Municipal and in parliamentary Elections,If a person is a candidate who is manifestly disqualified, then in such a case the votes given for him may be treated as having been thrown away, since they were perversely c and wilfully given to a candidate whom the electors knew to be disqualified. In regard to the nomination itself, as Wright J. Says in Harford v. Linskey (FN7): "If the nomination paper is on the face of it, a mere abuse of the right of nomination or an obvious unreality, as, for instance, if it purported to nominate a woman or a deceased sovereign, there can be no doubt that it ought to be rejected, and no petition could be maintained in respect of its rejection". If the election proceeds, then in such a case, for instance, as that of Lady Sandhurst (FN8), where the disqualification of the candidate was apparent -- and the fact that she was a woman must have been known to every one who voted for her -- the votes given for her might be treated as nullities.But where the disqualification does not appear on the nominationpaper and the election proceeds, and the disqualification is notknown to the electors, then, unless on a scrutiny a sufficientnumber of the votes given for the candidate who has the majoritycan be struck off to give the petitioner a majority, I think hecannot successfully claim the seat, and the votes given to hisopponent cannot ,be disregarded. That seems to me to be the trueview and in accordance with both authority and principle; and as here the disqualification was not apparent and the petition does not allege that the voters ' knew of the respondent's disqualification (the only notices (being notices) to the Mayor and to the opposing candidate), and the petitioner had only a minority of votes, I do not think that he can successfully claim the seat. All that we can do, therefore, on this petition is to declare the election of the respondent void." (Underlining for emphasis)
' In the case reported as Prakash Khandre v. Dr. Vijaya Kumar Khandre AIR 2002 SC 2345, the Supreme Court of India having taken into consideration the cases reported as:--
(1) Kanappa Rudrappa Nadgouda v. Vishwanath Reddy and another (1969(2) SCR 90); (2) Keshav Laxman Borkar v. Dr. Devrao Laxman Anande (1977(3) SCR 538); (3) Thiru John and another v.
Returning Officer and others (1977(3) SCR 538);, (4)Seshadri v. G. Vasantha Pai (1969(1) SCC 27); (5)
Lata Devi (Mali) v. Ham Rajwar (1989(4) SCC 773); (6) D.K Sharma v. Ram Sharan Yadav and others (1993 Supp. (2) SCC 117); (7) Dewan Joynal Abedin v. Abdul Wazed (1988 Supp. SCC 580); (8)
Munishamappa v. B. Venkatarayappa and others (181(3) SCC 260); (9) Smt. Aslhing @ Lhingjanong v. L.S. John and others (1984(1) SCC 205); (10) Konappa Rudrappa Nadgouda v. Vishwanath Reddy and another (1969(1) SCR 395); and (11) Chatturbhuj Vithaldas Jassani v. Moreshwar Parashram and others 1954 SCR 817 examined the question if there were more than two candidates for one seat and the elected candidate was found to be disqualified, whether under such circumstances the candidate who had secured more votes than the remaining candidates should be declared as elected or not. The question was answered by the Supreme Court of India as follows:--- "14. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next higher number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votessecured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate whohas secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has securedmore votes than other remaining candidates, would be a questionin the realm of speculation and unpredictability. In such asituation, declaring the election of the returned candidate invalidon the ground of his initial disqualification to contest theelection by itself would not entitle the election petitioner oranyother candidate to be declared elected. (Underlining foremphasis) emphasis)
12. Above rule was also examined by this Court in the following cases:--
(I) Rashid Ahmad Rahmani v. Barkat Ali PLD 1968 SC 301; (2) Lal Muhammad v. Muhammad Usman 1975 SCM R 409; (3) Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6; (4) Muhammad Ilyas v. The Returning officer 1981 SCM R 233; (5) humid Ahmad Soomro v. Mehmood Ali Bhayo PLD 1986 SC 698;
(6) Dr. Sheela B. Charles v. Qaiser Iraeem Sonya 1996 SCM R 1455; (7) Sahibzada Tariqullah v. Haji Amanullah Khan PLD 1996 SC 717; (8) lqbal Zafar Jhagra v. Khalilur Rehman 2000 SCM R 250; (9)
Mian Ahmed Saeed v. Election Tribunal 2003 SCM R 1611; (10) Elahi Bakhsh v. District judge, Rajanpur PLD 2003 SC 268; (11) Bashir Ahmed Bhanbhan v. Shanks Ali Rajpur C.A. No,1 of 2004, decided on 27- 2-2004; (12) Sher Taman Sher v. Khan Zeb Khan C.P. No,83/P of 2003, decided on 19-3-2004; (13)
Muhammad Ayub v. Ubedullah Khan C.P. No, 1164/K of 2002, decided on 24-3-2004; and (14) Haji Alam Sher v. Malik Muhammad Nawaz C.P. No,1760 of 2002, decided on 5-4-2004.
13. Ratio of above cases on this point is that if the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number o votes. In the instant appeal, it was not known to the voters that the appellant was not a graduate and lacked requisite qualification for contesting the election. No steps were taken by anybody to bring to the knowledge of the electors that the appellant was not a graduate. The nomination papers of the appellant were accepted without any objection. This unequivocally postulates that the voters were unaware of his disqualification, therefore, rule of "throw away votes" could not be invoked.
14. Above are the reasons for the short order, dated 20-5-2004, which reads as under:- "For the reasons to be recorded later on, the Election, as a whole, of Constituency PP-156, Lahore (XX), is declared void. Fresh Election be held according to law. The appeal stands disposed of in above terms."