1. ' DR. ZAFAR AHMED KHAN SHERWANI, ELECTION TRIBUNAL.---This is an election petition under section 52 of the Representation of the People Act, 1976 (the Act) challenging the election of the respondent No,1 from provincial assembly constituency No,PS-27, Nawabshah IV, held during the general elections on 11-5-2013 whereby the respondent No, 1, (the returned candidate) was declared successful on having been obtained 41458 votes, whereas the petitioner obtained 32120 votes and stood runner. The petitioner in his petition has blamed on the qualification of the returned candidate as claimed by him to be M.A in his nomination form filed before the Returning Officer within the contemplation of Article 62 of the Constitution of Pakistan read with section 99 of the Act alleging that he is not sagacious, righteous, non profligate, honest and Ameen. He then alleged that even prior to the polling day he had been requesting to all the relevant authorities mentioned therein to declare the 36 Polling Stations of the constituency as "sensitive" but none paid any heed, consequently taking advantage of the situation on the polling day the returned candidate and his agents armed with weapons with the help and connivance of the polling staff and the volunteers deployed at these polling stations took control of these ,polling stations and forcibly removed his (petitioner's) polling agents and stopped his voters to cast their votes. In this regard the petitioner has specifically nominated a number of persons with their active role in commission of illegal and corrupt practices at these 36 Polling Stations. He has also alleged connivance and collusion against the Returning Officer and alleged that the votes in favour of the petitioner received through postal ballots were not correctly counted in the consolidated statement but increased in favour of the returned candidate without any justification. He has, therefore, prayed that the election of the returned candidate be declared as void on account of his disqualification and having been procured through corrupt and illegal practices committed by him, his agents and associates as provided under section 68 of the Act and he may be declared as the returned candidate or in alternate the election may be declared as a whole to be void on account of prevalence of extensive corrupt and illegal practices within the contemplation of section 70 of the Act.
2. ' The returned candidate filed his written statement and denied all the allegations made in the petition and prayed for the dismissal of the Petition. The other respondents are ex parte.
3. ' Out of the pleadings following issues were settled:
(1) Whether the election petition is not, maintainable under the law?
(2) Whether respondent No, 1, a returned candidate has falsely claimed holding education qualification as MA?
(3) Whether respondent No, 1 committed corrupt and illegal practices at polling station by casting bogus votes at 27 polling stations (36 polling stations) mentioned in para No, 04(i), (ii) and (iii) of the petition, through the agents and associates?
(4) Whether the count of votes at 18 polling stations mentioned in Para No, 05(ii) were not held properly and excluded 3637 votes as rejected votes of these polling stations?
(5) Whether the Returning Officer illegally increased the number of votes of respondent No, 1 from 394 to 642 at Polling Station No,117?
(6) What should the order be?
4. ' On 26-11-2013 the Election Tribunal Sukkur where the petition was initially filed on such application of the petitioner had called for verification of thumb impressions on used counterfoils as well as on used electoral rolls in respect of selected 16 polling stations as requested by the petitioner from National Database and Registration Authority (NADRA) vide order dated: 26-11-2013. Such report was received on 29-4-2014 by the Tribunal which was brought on record without any exception vide Exhibit 57-B as none of the parties filed objection on it.
5. ' On the issues the petitioner has filed his affidavit in evidence vide Exhibit 5/A. The petitioner also produced several documents including copy of the nomination form filed by the returned candidate, Exhibit-3/1, copies of different applications, photographs of injured persons, Newspaper clippings, and different forms. In his support he has also filed affidavits in Evidence of Mst. Allah Bachai, Exhibit-2, and Rajab Ali, Exhibit-3, They were cross-examined by the other side. On the question of genuineness of MA degree issued by Shah Abdul Latif University, Khairpur in favour of the returned candidate, evidence of Mr. Saifuddin Tariq, Deputy Controller of Examination was recorded by the Tribunal as Exhibit-44. Whereas the returned candidate filed his affidavit in evidence as Exhibit 45 and produced copy of degree of B.A (pass), marks sheet of MA final, copy of certificate regarding M.A final, different Statements of Count and copy of the Constitution Petition filed in the Sindh High Court against him by the petitioner after the election. Statement of Mr.Noman Khan from Nadra was also recorded as court witness who produced forensic report of NADRA on examination of thumb impressions on the counterfoils.
6. ' On an application of the petitioner the Tribunal vide order dated 14-5-2014 had directed the Returning Officer to examine the rejected/excluded from the count the used ballot papers of all the polling stations of constituency. The learned Returning Officer in compliance conducted such exercise and submitted his report vide Exhibit 62. Similarly on the direction of the tribunal vide order dated 25-3-2014 the returned candidate produced his original Degree of MA before the tribunal.
7. The tribunal kept the photo copy of the same on record vide Exh.55 returning the original to the returned candidate vide order dated 1-4-2014 as the learned counsel for the petitioner had opposed the proposal of the tribunal to get the Degree of MA verified from the Higher Education Commission (HEC) on the ground that he had never prayed for the same.
8. ' Heard the learned counsel for the parties and perused the record. Issue No, 1.
9. ' This issue relates to the maintainability of the petition within the requirements of section 55 of the Act. The learned counsel for the returned candidate has submitted that the petitioner has not complied with the requirements of section 55 of the Act as his petition discloses general allegations without any detail in terms of the said mandatory provision. He has relied upon the case of Hari Chand Rae v. Manna Ram, 1986 CLC 985 in which it has been held that the election petition having vague nature of allegations without disclosing full particulars of illegal and corrupt practices merit dismissal under section 63 of the Act.
10. ' Conversely the learned counsel for the petitioner has submitted that the petitioner has furnished all the necessary details within the contemplation of section 55 of the Act and his petition is, therefore, well maintainable.
11. ' On careful consideration of the above arguments and perusal of the record it was found that the petition clearly depicts all the possible details of the alleged corrupt and illegal practices with reference to not only the date and place but also the persons, vide paras from 4(i) to 4(iv) of the petition, as required by section 55(b) of the Act. The case of Hari Chand, supra, has no bearing on the case in hand in these circumstance of the case. It may also be relevant to observe that earlier also the returned candidate had taken the same grounds in his application under section 63 of the Act, Exh. 28, for the dismissal of the petition but the same was latter on withdrawn, as appearing in the order dated 30-12-2013, therefore, he can not re-agitate these grounds at this stage. In view of this the issue is decided in negative.
12. Issues No, 3 ' On this issue the petitioner has examined himself and his 2 witnesses as mentioned earlier to discharge his burden of proof. He has also relied upon the documents produced by him during his evidence and the report of NADRA showing out of 9545 counterfoils examined by the NADRA 2122 were either having invalid NIC numbers or no NIC number at all and 107 counterfoils bearing one NIC number on more than one counterfoil with the same thumb impressions showing multiple voting by a single voter and 108 counterfoils having no thumb impressions. Only 3006 thumb impressions out of all counterfoils were authenticate whereas 23 failed authentication test.
13. ' The learned counsel for the petitioner firstly contended that the specific allegations were made by the petitioner in respect of 36 Polling Stations in three different sets against specific persons who committed the illegal and corrupt practices during the poll with complete details but each one of them was not specifically denied as required in terms of Order VIII, Rules 3, 4, and 5 of Civil Procedure Code, 1908 (CPC), therefore, these allegations will be taken as admitted because the provisions of C.P.C. As contemplated in section 64 of the Act are fully applicable. He further contended that even otherwise the written statement has not been verified on Oath by the returned candidate, therefore, the same cannot be considered as valid written statement in accordance with the law and the evidence produced by him was the evidence without pleadings and requires to be discarded. He has relied upon the cased reported as Ghulam Hussain v.
14. Muhammad Hussain and others PLD 2011 SC 119, in which it has been held that evasive denial in the written statement, expressing lack of knowledge in that regard is no denial as per provisions of Order VIII, and Rules 3, 4, and 5 C.P.C. And such denial may be construed as admission on the part of defendant, (2) United Bank Limited v. Ali Muhammad Rajani, 1994 CLC 173 in which it has been held that denial of a fact by defendant in written statement should be specific and not to be evasive or vague which would be deemed to be no denial, (3) Tasneem Uddin v. Messers Prunditial Discount and Guaranteed House Limited, 2005 M LD 1681 in which it has been held that if an the allegation of fact in plaint was not denied specifically or by necessary implication the same would be taken to be admitted.
15. ' He next contended that the returned candidate has not disputed the findings of NADRA which should be read in conjunction with the evidence of Mst. Allah Bachai, Exh. 2, and of Rajab Ali, Exh. 3 which is in corroboration of the evidence the petitioner that has also remained un-shattered therefore the petitioner has proved the issue, which should be decided in affirmative. He has relied upon the cases reported as Muhammad Akhtar v. Musammat Amna 2001 SCM R 1700 in which it has been held that where a fact ascertained by a one party remains unchallenged the same amounts to admission on the part of the other party under Article 130, of the Qanun-e-Shahadat, 1984, (2) Abdul Rehman v. Abdul Samad Khan, 2012 YLR 818 in which it has been held that if any part of statement of any witness is not challenged in cross examination the same would be considered as admitted by the opposite party within the ambit of Article 133 of the Qanun-e-Shahadat Order
(3) Muhammad Nazeer Khan v. Muhammad Ameer, 2012 CLC 644 in which it has been held that cross examination of a witness was a right of a adverse party and if particular portion of a statement of the witness was not cross examined, that would be deemed to be admitted as true under Article 133 of Qanun-e-Shahadat, and (4) Bhagwan Das Chawla v. Kishan Chund Parwani, 1997 CLC 605 in which it has been held that plea not taken in the pleadings couldn'l be allowed to be raised in evidence and if such evidence is brought on record the same must simply be ignored.
16. ' He has lastly contended that in rebuttal of the evidence produced by the petitioner only the returned candidate has examined himself but none from the witnesses whose name were given by him in the list of witnesses therefore under Art. 129(G) of the Qanun-e-Shahadat Order, 1984 it will .Be presumed that they were not produced because had they been produced they would not have supported the respondent. He has relied upon the case reported as Treat Corporation v. EIMAC Limited, 2011 YLR 2825 in which it has been held that non-production of the material witnesses is sufficient to infer that the party concerned tried to hide real facts from the court within the parameter of Article 129(G) of the Qanun-e-Shahadat Order, 1984.
17. ' In reply of the above the learned counsel for the returned candidate contended with vehemence that the evidence of the petitioner is hearsay and cannot be taken into consideration whereas of Mst. Allah Bachai who was agent of Polling station 97 and of the other witness Rajab Ali who was her father has remained uncorroborated through any independent and tangible evidence therefore, not sufficient to decide the issue in favour of the petitioner. He has relied upon the case of Innayatullah Khan v. Haji Ghafoor Jadoon, 1992 M LD 2540 in which it has been held that the person who were source of information of election petition and on whose information contents of election petition were based, were withheld from evidence thus petitioner failed to prove his case.
18. He has contended that evidence of the respondent only is sufficient to shatter the evidence of the petitioner. In respect of the report of the NADRA he contended that there was huge number of counterfoils which had bad quality of thumb impressions, therefore the same is of no important significance on the issue under discussion. He lastly contended that 65% turn out of the voters on the polling day is a proof of the fact that the voters had uninterruptedly participated in the election process which cannot be declared as void either under section 68 or 70 of the Act.
19. ' Heard the learned counsel for the parties and perused the record with full care and circumspection.
20. ' On the first contention of the learned counsel for the petitioner that since the returned candidate has not denied the allegations made in the petition very specifically and coherently in his written statement, and his mere formal denial of the same would amount admission in terms of Order VII, C.P.C. By putting his reliance on the case-law, as mentioned above, it may be observed that firstly, these allegations have been fully and specifically denied by the returned candidate in his written statement as evident from its over all substance and secondly the petitioner cannot absolve himself from such legal responsibility to prove all the allegations of corrupt and illegal practices independently without taking refuge of technicalities of the law keeping in view the dictum laid down by the Supreme Court in S. M. Ayub v. Syed Yusaf Shah (PLD 1967 Supreme Court 486) in which it has been held that the law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country. The plaints and petitions drafted, specially in the mufassil, suffer from minor defects and a very strict view on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. In this regard it may also be relevant to keep in mind that the provisions of the Civil Procedure Code are not applicable in the proceedings under the Act as special procedure applicable in the proceedings under the Act has been notified by the Election Commission of Pakistan invoking such powers under section 62 of the Act vide Notification No F. 1(7)/85-Coord, dated 16-3-1985 only to keep the procedure very straight free from technical barriers of the general law. Reference may be made to the case of Jam Mashooq Ali v. Shahnawaz Junejo,1996 SCM R, 426. Similarly his contention that the written statement was not sworn in by the returned candidate before oath commissioner, therefore it cannot be consider, it was found from the record that initially the returned candidate had filed the written statement without such verification and it was rightly taken on record as it was not required to be sworn on oath either under any provision of the Act or even under Clause 3 of the Notification of ECP relating to the written statement. However, as an abundant caution the returned candidate verified the same on oath before the oath commissioner latter on after taking such permission of the tribunal as per diary of even date.
21. ' Now coming to the evidence produced by the petitioner in support of the issue to discharge his burden of proof, it may be observed at the out set that the quality and standard of this evidence is not such which can be safely relied upon in support of the allegations.
22. ' The allegations levelled by the petitioner in his petition vide Paragraphs Nos. 4(i) to 4(iv) regarding commission of brutalities by the returned candidate and his agents at different 36 Polling Stations of the Constituency during the polling required direct evidence fully corroborated through independent witnesses. But it is unfortunate that the personal testimony of the .Petitioner is hearsay based on the information furnished by his agents and therefore, as argued by the learned counsel for the returned candidate relying upon the case of Innayatullah Khan, supra, has no legal value because no polling agent who had furnished these information, was examined by him except Mst.
23. Allaha Bachai and Rajab, the 2 polling stations who themselves were highly interested and biased in favour of the petitioner being very closely connected with him. Both of them too had no documentary evidence in support of their claim of being polling agents such as appointment letters authenticated by the polling officials or even by the petitioner. Even if it is believed then too their testimony is not corroborated through any other tangible evidence. Both of them who have deposed in their affidavits in evidence that they had lodged their reports in respect of their illegal confinement by the returned candidate's agents in the Roznamcha of the Police Station vide entries dated 13-5-2013 and 12-5-2013, respectively but without any explanation regarding the delay, therefore, these entries lost their credibility. The 3rd Roznamcha entry, Exh. 3/7,purported to have been lodged by one Toh Khan in this regard was also not proved as the said person was not examined and even the police official who prepared the supporting memo of injury on his person, Exh.3/6 produced by the petitioner, was also not examined to prove the same after providing an opportunity to the returned candidate to cross examine him. The NADRA's report called for on thumb verification is also of no significance on account of very large no of such counterfoils (4179 out of 9545) which had bad quality of thumb impressions and therefore, could not be examined with the help of its Automated Fingerprints Identification System (AFIS).
24. ' Thus the issue is decided in negative. Issue No, 2 ' This is the most crucial issue, which the parties have vehemently contested. The case of the petitioner on this issue is that the returned candidate had falsely claimed his qualification as MA in his nomination form filed before the Returning Officer before the election on the basis of a bogus degree, therefore, he is not sagacious, righteous, non-profligate, honest and Ameen. The returned candidate who though admitted to have described such educational qualification in his nomination form, Exh.3/1, but claimed to have obtained such degree in Political Science from Shah Abdul Lateef University, Khairpur, Sindh in the year 1988, therefore, the burden of proof was on him to prove that his degree, Exh.45/C, as valid and genuine. The petitioner in his affidavit in evidence has reiterated his allegation in this regard and to support the same examined Mr.Saifuddin Tarique, the Deputy Controller of Examination, Shah Abdul University, Khairpur vide Exh.44 who produced several documents in this regard which will be discussed hereunder.
25. ' The learned counsel for the retuned candidate contended that though the petitioner had failed to file any such objection to the degree before the Returning Officer therefore, he was debarred to raise such objection but even then the said degree has been proved by the Returned candidate as genuine through the University official who produced all the relevant record of his qualification and the order of the tribunal dated 1-4-2014 clearly proves this fact therefore the petitioner opposed to forward the same to the HEC for its verification, hence, the issue may be decided in negative. He has relied upon the case of Ghulam Akbar Lang v. Deewan Ashiq Hussain Bukhari, 2012 SCM R 366, in which it has been held that the disqualification clause under section 99(cc) of the Act entails penalty which is attracted only if it is established that the degree secured by the returned candidate was forged one and doesn't extend to attract degrees which have secured validly after passing examination and passing of examination in deviation of some rules of the university like the one by appearing in both parts of examination in the same year, in no way invalidate a degree.
26. ' In rebuttal of the above arguments the learned counsel for the petitioner contended that it was not the duty of the tribunal or the petitioner to get the degree in respect of his qualification verified by sending the same to HEC which could ultimately refer the same to the same University which issued it as there is no separate mechanism of HEC for the said verification and therefore he has rightly objected on sending it to the HEC by the Tribunal as appearing in the order dated 1-4-2014 as referred to above under Article 72 of the Qanun-e-Shahadat Order, 1984. He has relied upon the cases of Mohiuddin Ansari v. Muhammad Arif Siddiqui, 1991 CLC 72 in which it has been held that the Qanun-e-Shahadat Order prescribes a method for proving a particular document or fact. If a party objects to the admissibility and proof of a document filed by the other party, it is the duty of the party producing it to prove that document as provided by the Qanun-e-Shahadat and it would not be sufficient to file the document with the affidavit and then contend that the document has been proved. If such procedure is allowed then it will provide an open platform for producing forged and fictitious documents without any challenge. He has also relied upon the case of Muhammad Khan Junejo v. Federation of Pakistan 2013 SCM R 1328 in which it has been held that once there is a disqualification in term of sections 14 and 99 of the Act and under Article 63 of the Constitution of Pakistan it is always disqualification. He has also referred the cases of Jam Mashooq Ali v. Shahnawaz Junejo, 1996 SCM R 426 in which it has been held that keeping in view number of deleted and added votes apart from electors who were prohibited though having authorized identity cards and non-issuing of postal ballot to other, such act of omission and commission vitiated the process of election as a whole, and the case of Sardar Abdul Hafeez Khan v. Sardar Muhammad Tahir Khan Looni, 1999 SCM R 284, in which basic essentials required to be fulfilled by the election staff in the conduct of the election under section 33 of the Act have been elaborated and effects of their violation have been laid down.
27. ' I have carefully considered the above arguments in the light of the record.
28. ' To decide whether the returned candidate has objectively discharged his burden of proof of this issue let the evidence of the Dep. Controller produced by the petitioner be examined. In his evidence he has verified from the record of the University only the fact that the returned candidate has passed MA (Previous) examination in the year 1986 by producing the record of his Marks Sheet of this examination as Exh.44-A but failed to verify the marks sheet of M.A final on the ground that such record of the University has been damaged during its shifting from one building to the other.
29. However, it remained unexplained by him that why the damage of this top secret register mentioning the marks of MA final examination of the candidates was only to the extent of the page on which the roll No, of the returned candidate i,e, 1174 was mentioned whereas the other pages of this register remained intact. Similarly as per witness the other record in respect of his enrollment in MA final admission form, admission slips and certificate of MA final and marks certificate of MA final has been disposed of after expiry of 5 years though the record of MA previous which was earlier in time was available. This witness appears to be biased in favour of the returned candidate as to support him he voluntarily produced an unofficial and unauthenticated record of his admission in M.A final showing the name of the returned candidate but since this register, as observed by the tribunal, was neither paginated nor having any certificate about the contents of the total pages nor official signature thereon on any page has no legal value. His bias floats on the surface of the record which is evident from the fact that during his cross by the tribunal he deposed in favour of the returned candidate that the marks sheet produced by the returned candidate with his affidavit in evidence in respect of his M.A final examination and Certificate of M.A final are genuine without verifying from such record of the University. This officer though had only 2 years of service in his credit and had no personal knowledge about these documents and even did not recognize the signatures of the officials of the University appearing thereon but deposed in support of these documents. Anyhow, no effort was made by the returned candidate to get his disputed degree of MA verified through any other witness from the University, which issued the same. The documents produced by the returned candidate in support of his claim are totally irrelevant, for example, the certificate issued by the Principal of the college in which he was registered as a candidate for M.A final exam, Newspaper clipping of the result of successful candidates of M.A final published in the daily Jang dated 10th July, 1988 showing Roll No, 1374 and his purported admit card, because firstly, these documents were not confronted with the witness appeared from the University and secondly none of the document is a legal proof of the fact that he had passed the MA examination because this could only and only be proved -through the record of the University and until and unless these documents are legally proved accordingly the same can be of no help, secondly, the officials who have issued these documents were not examined by the returned candidate to provide an opportunity to cross-examine these witnesses.
30. It was neither the responsibility of the petitioner nor of the tribunal to get his MA degree verified directly from the University or through the HEC The case-law relied upon by the learned counsel for the returned candidate have no bearing on the case in hand which can be differentiated on facts.
31. The contention of the learned counsel for the returned candidate that that since the petitioner had not taken this objection at the time of scrutiny of the nomination papers by the Returning Officer, therefore, he is debarred from taking the same in this petition is of no force because there is no estoppel against an statute and since section 99 of the Act provides that a person shall not be qualified to be elected as a member of an Assembly unless he is, inter alia, righteous and honest, therefore the petitioner can agitate the same in his Petition and this tribunal can decide same.
32. ' The issue is therefore decided accordingly.
33. Issue No, 4.
34. ' This issue relates to recounting of rejected votes. As per record on the direction of the tribunal the same were re-checked by the Returning Officer in presence of the parties who vide his report dated 21-5-2014 has informed that 10 and 7 votes were found out of 3419 rejected ballot papers as valid votes in favour of the petitioner and the returned candidate respectively. The learned counsel for the petitioner has filed his certain objections to the report but he did not highlight the same during the course of argument. The issue is, therefore, decided accordingly.
35. Issue No, 5.
36. ' Not pressed by the learned counsel for the petitioner.
37. Issue No, 6.
38. The upshot of the discussion and findings on issue No,2 is that since the returned candidate has failed to prove his degree of qualification as MA to be genuine as claimed by him in his Nomination Form verified by him on oath, therefore he cannot be termed as honest and righteous on account of his forged degree and false oath.
39. ' Section 99(') of the Act directs that a person shall not be qualified to be elected or chosen as a member of Assembly unless he is sagacious, righteous, and non profligate and honest and ameen, therefore, the returned candidate was not qualified to be elected as member of the assembly for which the election was held on 11-5-2013 as he lacked the qualification of being righteous and honest. Hence his election on 11-5-2013 was void. Consequently, the same is declared to bevoid as provided in section 68(b) of the Act.
40. ' Now the question is whether the petitioner who has secured the second highest votes should be declared as the returned candidate under section 69 of the Act or the election is to be declared as a whole void. In this regard the thumb rule of throwaway of votes is to be applied. In that case if the disqualification was notorious and the electors were knowing about the said disqualification of the returned candidate then the votes secured by him are to be thrown away and the petitioner being the runner up is to be declared as the returned candidate under section 69 of the Act. But as apparent from the record there is no evidence that the disqualification of the returned candidate was notorious to his voters, therefore, the votes obtained by him cannot be thrown away and the petitioner cannot be declared as the returned candidate. Hence the result of the election having been materially affected within the ambit of section 70(a) of the Act and is therefore to be declared as whole to be void. In support of this view reference may be made to the case of Haji Amanullah Khan v. Sahibzada Tariqullah, 1995 CLC 158 wherein a number of cases decided by the Supreme Court and High Court on this point have been referred to reach the following similar conclusion:-- "Besides, the petitioner is not entitled to be declared elected within the purview of section 69 of the Representation of the People Act, 1976 because the disqualification of respondent No,1 was not notorious and as such the votes cast in his favour cannot be thrown away. In PLD 1968 SC 301 it was held that if the factum of disqualification, of a successful candidate is not notorious at time of polling so that voters could have no notice of his disqualification, votes secured by such candidate cannot simply be thrown away and the candidate securing next highest number of votes cannot be declared elected. In 1975 SCMR 409 it was held that if the disqualification of successful candidate is not notorious the votes polled in his favour will not be thrown away so as to give seat to the candidate with the next highest number of votes. In Junaid Ahmad Soomro v.
41. Haji Mehboob Ali Bhayo and others (PLD 1986 Supreme Court 698) it was held that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of such disqualification; votes secured by such candidate, cannot simply be thrown away so that the candidate securing next highest number of votes be declared elected in his place and election in such case as a whole must be set aside and re-election ordered. In Rab Nawaz v.
42. Election Tribunal and others (PLD 1986 Karachi 46) it was held that if the disqualification of the returned candidate 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".
43. The petition is, therefore, allowed on the above ground with costs consequently the election of the returned candidate is declared as a whole to be void under section 70(a) of the Act. The Election Commission of Pakistan may be informed accordingly.