' SYED SHABBAR RAZA RIZVI, J.--- According to the learned counsel for the petitioners, the petitioners and respondents Nos.1 and 2 contested election for the post of Nazim and Naib Nazim respectively.
The petitioners were declared returned candidates. However, the respondents filed an election petition on the ground that petitioner No,2 was not a matriculate. The election petition was allowed on the above ground on 20-11-2007. Moreover,respondents Nos.1 and 2 were declared returned candidate in place of petitioners Nos.1 and 2.
2. According to the learned counsel for the petitioners, the principle of sinker is not applicable to the petitioners and in this regard he refers to PLD 2003 Lah.
138. The learned counsel further `submits that principle of notoriety is not attracted in the instant case. In this regard, he refers to PLD 2006 SC 78 and PLD 2004 SC 526. According to the learned counsel, at the most, a fresh election of the constituency could have been ordered by the Election Tribunal instead of declaring respondents Nos.1 and 2 as returned candidates.
3. According to the learned counsel for the respondents the petitioner No,2 was notorious for his disqualification before the election and at the time of filing nomination' papers. In this regard, he alludes to order of the Returning Officer dated 31-7-2005. The objection regarding disqualification of petitioner No,2 was raised before the learned Returning Officer but the same was rejected after hearing both the parties. The said order was also appealed before the District Returning Officer/District and Sessions Judge. The learned District Returning Officer, T.T. Singh dismissed the appeal as the same was barred by time vide his order, dated 9-8-2005. According to the learned counsel for the respondents, the said two orders, dated 31-7-2005 and 9-8-2005 were called in question in Writ Petition No,14463 of 2005 before this Court. Before this Court, question of disqualification, etc. Was discussed, relevant portion of the order of this Court in the above writ petition is reproduced as under:-- "In view of the non-filing of appeal in time, this writ petition is disposed of with observation that petitioner may avail remedy still available of filing an election petition under Rule 65 to be read with Rule 76 of the Punjab Local Government Elections Rules, 2Q05, on the same grounds, which will remain available to the petitioner. With the above observation, this petition is disposed of."
4. According to the learned counsel for the respondents, at every level/fora, disqualification of petitioner No,2, Muhammad Saleem was agitated and following the order of this Court in Writ Petition No,14463 of 2005, the election petition was filed before the Election Tribunal. The election petition was allowed and consequent upon the acceptance of the same, the impugned order was passed which has been challenged by the petitioners in the instant writ petition. According to the learned counsel for the respondents, in the above circumstances, it cannot be said that disqualification of petitioner No,2 was not notoriously known to the constituency. Finally, on the above grounds the learned counsel for the respondents supports the impugned order.
5. The learned counsel for the petitioners adds to his arguments already noted in paras.1 to 3, that orders referred to by the learned counsel in the preceding para. Were not sufficient to inform electors of the constituency regarding disqualification of petitioner No,2. In this regard, he relies upon section 14 of the Punjab Local Government Ordinance, 2000, PLD 2004 SC 526 and PLD 2006 SC 78.
6. Ch. Aftab Ahmad and another v. Naveed-ur-Rehman reported in PLD 2004 SC 526 is an elaborated judgment of the Honourable Supreme Court on this subject. According to the said judgment, where the disqualification of a returned candidate was not notorious at the time of polling so that the voters could have taken notice of the disqualification; the votes secured by such a candidate could not simply be thrown away for declaring the other candidate with next highest number of votes as elected in his place. Generally, in such a case, the election as a whole is set aside and a fresh election is ordered. In the said judgment previous case-law of the country and across the border has also been discussed. A particular reference is made to Syed Saeed Hassan v.
Piyar Ali and 7 others PLD 1976 SC 6 which is reproduced herein as under:-- "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 found 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 arguments 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."
7. The learned Court offered/gave another example from a British case which is also reproduced as below:-- "However, in Re: Bristol South East Parliamentary Election (1961) 3 All E.R. 354, a Peer of the United Kingdom received a majority of votes recorded at the election and was returned as a duly elected member of Parliament in the House of Commons. Prior to the date of election, the election petitioner had sent out notices to all persons entitled to vote stating that the rival candidate being a peer of the United Kingdom, was disqualified from being elected a member of Parliament and that all votes given for him would, therefore, be thrown away. Similar notices were published in newspapers circulating in the constituency and were posted at the entrance of the polling stations.
A Queen's Division found, on the basis of evidence, that the facts which in law created the incapacity of the Peer to be elected a member of Parliament were known to the electors before they cast their votes. Therefore, the votes cast for the returned candidate were treated to have been thrown away which entitled the election petitioner to be declared as a duly elected member of Parliament for the constituency."
8. The impugned order as well as election petition do not show that the respondents placed any such record before the learned Election Tribunal whereby electors of the constituency were cautioned about petitioner No,2's disqualification to contest election and in case he was elected, votes cast in his favour would be thrown away. The learned counsel for the respondents has referred to, as mentioned above, the proceedings before the learned Returning Officer, learned District Returning Officer, and this Court to stress that disqualification of petitioner No,2 was notorious and in knowledge of voters of the constituency. In the above cited case also, the matter of disqualification was discussed before the same fora but it was not considered by the Honourable Supreme Court as a positive and definite information, necessary to apprise those voters disqualification of petitioner No,2; who intended to cast their votes in his favour. Of similar facts and circumstances, another case came before the Honourable Supreme Court. The Honourable Supreme Court followed the view above noted and concluded as under:-- "Thus, following the above dictum the election as a whole of the constituency i,e, U.C. No,234 is declared bad as such the Election Commission is directed to take steps to conduct fresh election for the seat of Nazim and Naib Nazim in accordance with law." (PLD 2006 SC 78).
9. Coming back to the facts of the instant petition, the record shows that question of notoriety/disqualification or doctrine of "throw away votes" was not even discussed by the learned Election Tribunal. If that was not so, how could the learned Election Tribunal pass the impugned order? For convenience, the last para. Of the impugned order is reproduced as below:-- "In view of my findings on the above issues, the election of the returned candidates i,e, the respondents Mulazim Abbas Khan and Muhammad Salim (present petitioners) is declared as void and since the election was contested by the petitioners and the respondents only and since the respondents were not even qualified to contest the election in question, therefore, the petitioners are entitled to be declared as returned candidates for the seat of Nazim and Naib Nazim respecting Union Council No,38, Tehsil Toba Tek Singh, hence, the instant election petition is accepted and the petitioners (Mudassar Hussain Khan and Gulzar Ahmad) are accordingly declared as returned candidates."
' Even no issue was framed on the subject of notoriety. The learned Tribunal framed six issues which are enumerated as under:--
(1) Whether the petitioners do not have any cause of action to file the instant petition? OPR
(2) Whether the petition is not maintainable on account of non-joinder of necessary parties and is not competently filed under Punjab Local Government Elections Rules, 2005? OPR
(3) Whether the petition is mala fide? OPR
(4) Whether the respondents were not eligible to contest the election being not matriculates or having equal or equivalent qualification as set out by law? OPP
(5) Whether Notification of the returned candidates is illegal, without lawful authority and of no legal consequence? OPP
(6) Relief.
' I may reiterate that merely judging whether petitioner No,2 was disqualified or not was not enough. It was equally important to judge whether his disqualification was notorious in the constituency at the time of polling? That was the basic point, which was not attended to by the learned Election Tribunal at all, in this case.
10. Consequent to the above detailed discussion and reasons, the election, as a whole, of Union Council No,38, Tehsil and District Toba Tek Singh held on 25-8-2005, is declared void. The Election Commission of Pakistan is directed to conduct fresh election for the seat of Nazim and Naib Nazim as required under the law. This writ petition is allowed in the above terms.