' FAQIR MUHAMMAD KHOKHAR, J.-This petition for leave to appeal is directed against judgment, dated 4-7-2001 passed by the Lahore High Court, Lahore in Writ Petition No,11987 of 2001.
2. The petitioner and respondents Nos.2 to 13 were the contesting candidates for the peasant/worker seats of Union Council No,3 (Gondal) Tehsil and District Sialkot. The respondents Nos.2, 3, 4 and 6 were declared elected against peasant seats. The petitioner filed an election petition, inter alia, on the ground that the petitioner lacked the qualification of a peasant as defined by subsection (10) of section 2 of the Punjab Local Government Elections Ordinance, 2000 being owner of land beyond the statutory ceiling. The District Judge/Election Tribunal, Narowal, by order, dated 18-6-2001, declared the election of respondent No,2 Muhammad Shafi as void ab initio and also declared the petitioner as a returned candidate in his place. The respondent No,2 filed a Writ Petition No,11987 of 2001 against order, dated 18-6-2001 of the Tribunal. The same was partly allowed and the order of the Tribunal declaring the petitioner as a returned candidate was set aside with the direction for holding a fresh election for the said seat. Hence this petition for leave to appeal.
3. Learned counsel for the petitioner argued that once the election of respondent No,2 was declared void ab initio the Election Tribunal was perfectly justified in declaring the petitioner to be the returned candidate in terms of Rule 82 of the Punjab Local Government Elections Rules, 2000.
Therefore, the impugned judgment was not sustainable at law.
4. We have heard the learned counsel for the petitioner at length. There is nothing on record to show that the lack of qualification of respondent No,2 was notorious in nature and that the voters were conscious or made aware of the same. Even no objection was taken by the petitioner before the Returning Officer at the time of scrutiny of nomination of papers that the respondent No,2 was A not a peasant as defined by section 2(10) of the Punjab Local Government Elections Ordinance, 2000. Since there were more than two contesting candidates, therefore, it could not be said that votes polled in favor of respondent No,2 would necessarily have been cast in favor of the petitioner.
In these circumstances the votes cast in favor of respondent No,2 could not be treated as thrown away to disenfranchise the electorate. In the case of Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 following observations were made by this Court:-- "The well known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to 'the reasonable 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 of 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 for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
' No exception can be taken to the impugned judgment passed by the Lahore High Court, Lahore.
This is not a fit case for grant of leave and to deprive the electors from exercising their right of franchise.
5. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly.