Sahibzada Tariqullah, respondent No.1 herein, is a sitting member of the Provincial Assembly of the N.-W.F.P. He was elected as such from Constituency No. PF-73 Dir-I in the General Elections held on 9th October, 1993. His election has been questioned by one of the defeated candidates. Haji Amanullah Khan, on the ground that he was disqualified from being elected as a member as he had been in the service of Afghan Refugees Organisation, a body controlled by the Government of N.-W.F.P. And had contested the election before the expiry of a period of two years since he ceased to be in such service.
2. The election giving rise to this petition was contested by four candidates of whom the returned candidate had obtained 13617 votes, the petitioner had secured 11148 votes while the remaining two candidates Muhammad Rashid and Laiq Said has secured 2430 and 203 votes respectively.
3. The election petition filed by the petitioner not only highlights the disqualification from which the respondent suffered at the time of filing his nomination papers but also encompasses the history of service rendered by him in the Afghan Refugees Organisation, N.-W.F.P. It discloses that the respondent was appointed as Village Administrator in Grade-16 in the Afghan Refugees Organisation pursuant to an order of the Governor, N.-W.F.P. Which was communicated to the Commissioner, Afghan Refugees, N.-W.F.P. By the Secretary, Home and Tribal Affairs Department. He was promoted to Grade-17 by the Governor, N.-W.F.P. On 5th September, 1982 and was appointed as Area Administrator by the Commissioner, Afghan Refugees, N.-W.F.P. Vide office order dated 27th September, 1982. Thereafter, he started making efforts for earning further promotion and in that contest his brother Sahibzada Fatahullah wrote a D.O. Letter on 19th January, 1988 to the then Chief Minister, N.--W.F.P. Who in turn directed the Secretary, Home and Tribal Affairs Department to put up a summary to him for the purpose but the then Commissioner, Afghan Refugees, .Vide letter dated 4th March, 1988, expressed his inability to recommend him for further promotion on the ground that many officers senior to him were still awaiting promotion. However, the Deputy Secretary, Chief Minister's Secretariat vide his letter dated 31st January, 1990 requested the Secretary, Home and Tribal Affairs Department to implement the orders of the Chief Minister as a result of which he was promoted to Grade-18 vide a Notification dated 18th March, 1990 issued by the Secretary, Home and Tribal Affairs Department and posted as District Administrator, Dir.
Subsequently on the recommendation of the Commissioner, Afghan Refugees he was granted 45 days' ex-Pakistan leave by .The Government of N.-W.F.P. Home and Tribal Affairs Department on 3rd June, 1991 to enable him to accompany his parents to Saudi Arbia for the performance of Hajj. He had submitted resignation which was accepted by the Government of N.-W.F.P. On 3rd May, 1993 and resultantly he had relinquished the charge of the post of District Administrator, Afghan Refugees, Dir on 31st May, 1993.
4. The relief claimed by the petitioner is short and simple. He has prayed that an order may be made declaring the election of Sahibzada Tariquallah to be void and declaring him to have been duly elected.
5. Sahibzada Tariquallh filed his written statement on 27th January, 1994 wherein he admitted having served in the Afghan Refugees Organisation as village Administrator initially and as District Administrator later up to 31 May, 1993 but strenuously resisted the petition by taking the stance that he was not disqualified from being elected as a member of the Provincial Assembly, N.-W.F.P.
As he was employed, appointed and promoted purely on temporary basis on contract terminable on one month's notice on either side or payment of one month's pay in lieu of the notice and that he had not resigned but his services were retrenched with effect from 31st May, 1993 and that the Afghan Refugees Organisation was a purely humanitarian Organisation financed by International Aid-Giving Agencies and it was neither a body controlled by the Government of N.-W.F.P. Nor its employees were civil servants. He further contended that the petition was liable to be dismissed summarily as the copy of the petition received by him was not accompanied by any Annexure and this omission constituted a clear breach of the procedure for trial of election petition laid down under section 62 of the Representation of the People Act, 1976. He also took exception to the "Annexures" to the election petition on the ground that the same had not been verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and as such the petition was liable to be dismissed under section 63 of the Representation of the People Act, 1976.
He further contended that the petitioner was stopped by his conduct to file the petition because he had neither raised any objection at the time of the scrutiny of his nomination papers nor had filed an appeal against the acceptance of his nomination papers.
6. The averments of the parties were embodied in the following issues:
(1) Whether the petitioner failed to comply in letter and spirit with the rules framed under section 62 of the Representation of the People Act, 1976, if so, its effect?
(2) Whether none of the Annexures to the election petition has been .Verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings and as such the petition is liable to dismissal under section 63 of the Representation of the People Act, 1976?
(3) Whether the petitioner is estopped from filing this election petition?
(4) Whether the Afghan Refugees Organisation, N.-W.F.P. Is a body controlled by the Government of N.-W.F.P.?
(5) Whether the respondent Sahibzada Tariqullah was a District Administrator in the Afghan Refugees Organsisation, N.-W.F.P. Until 31st May, 1993 and before the lapse of the requisite period of two years since he ceased to be in such service had contested election to the N.-W.F.P. Provincialst Assembly from Constituency No.PF-73 Dir-I and as such was disqualified from being elected as a member under Article 63 (K) of the Constitution of the Islamic Republic of Pakistan?
(6) Relief.
Issue No. l
7. The procedure for trial of election petitions was laid down by the Election Commission of Pakistan, in exercise of the powers conferred by subsection (1) of section 62 of the Representation of the People Act, 1976, vide Notification No. F. l (7)/85-CORD, dated 16th March, 1985. The rules relevant to the controversy incorporated in this issue are worded thus: "(1) Every election petition shall be filed with the Secretary, Election Commission of Pakistan, Secretariat Block ' S' , Islamabad, in triplicate and shall be accompanied by all such documents and affidavits of the witnesses as are desired to be produced by the petitioner alongwith the receipt indicating that the copies of the petition and the attached documents and the affidavits annexed to the petition have been supplied to the respondent.
(2) Every election petition shall be processed by the Secretary, Election Commission. In case the petition is not in accordance with the procedure laid down herein it shall not be entertained and the petitioner shall be informed accordingly.
Notice of the date published through the press, radio and television shall be deemed to be a valid notice and no personal notice shall be necessary unless the Tribunal feels necessary to do so."
8. It was contended by the learned counsel for the contesting respondent that the petition was liable to be dismissed straightaway as the petitioner had not supplied copies of its "Annexures" to the respondent. The contention has no substance inasmuch as the certificate enclosed with the petition make it manifest that the copies of the "Annexures" were sent by the petitioner to all the respondents through Registered Post Acknowledgment Due. The certificate is supported by an affidavit, therefore, the affidavit of the respondent supporting the contents of the written statement cannot make, the credentials of the petitioner doubtful. Besides, the election petition has been referred for trial to the Election Tribunal, therefore, there is a strong presumption that the procedure laid down by Rule 1 was complied with in letter and spirit. In any event the objection cannot be raised at this stage because the scope of Rule 2 is restricted to the power of the Secretary, Election Commission of Pakistan to decline to entertain an election petition when does not meet the requirements of Rule 1 and cannot be stretched so as to empower the Election Tribunal to invoke its provisions. This issue is, therefore, decided against respondent No. 1.
Issue No.2
9. The objection reflected in this issue stems from subsection (3) of section 55 of the Representation of the People Act, 1976 which provides that every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings as well as clause (a) of section 63 ibid which lays down that the Tribunal shall dismiss the election petition if the provisions of section 55 have not been complied with. It was contended by the learned counsel for the respondent that the petition was liable to be dismissed under clause (a) of section 63 of the Representation of the People Act, 1976 as the petitioner had singularly failed to comply with the provisions of subsection (3) of section 55.
10. The procedure for verification of the pleadings is contained in Order 6, Rule 15, C.P.C. Which envisages that every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is true that the petitioner has only signed and attested the accompaniments of the petition and has not verified the same in accordance with the procedure laid down by Order 6, Rule 15, C.P.C. But this omission is not fatal as it is now well-settled that omission to verify or defective verification is a mere irregularity which does not affect the merits and can be allowed to be made good at any stage of the proceedings. Besides, the objection has now become redundant as the relevant Annexures have since been admitted into evidence through statements of witnesses made on oath and the respondent in his statement has not questioned their authenticity. In any case the omission complained of cannot assume appalling proportions for the short reason that the "Annexures" attached to the petition only augment the allegations made in the petition and do not spell out any additional or independent allegation. It was held in Ibrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175) that non-verification of the annexures attached to the election petition is not fatal to the election petition if the same do not make any additional allegation of substantive character or furnish better particulars of the allegations made in the petition. This issue is, therefore, decided against respondent No. 1.
Issue No.3
11. The evidence available on record in regard to the presence of the petitioner at the time of scrutiny of the nomination papers is discrepent in that while the petitioner has admitted in his statement that he was present the Returning Officer said Ghafoor Shah (R.W.1) and one of the contesting candidates Muhammad Rashid Khan (R.W. 3) have struck a discordant note in their statements that he was not present. Be that as it may, the admission of the petitioner has preference over the testimony of Said Ghafoor Shah and Muhammad Rashid Khan, therefore, this fact stands established that he was present at the time of the scrutiny of the nomination papers.
The petitioner has also admitted that he had not raised any objection at the time of the scrutiny of the nomination papers and the explanation furnished by him in this respect is that he was not conversant with the antecedents of the respondents as he was not a resident of the constituency from which he had contested the election. There is no need to determine the plausibility of the explanation furnished by the petitioner because the plea of estoppel is not at all available to the respondent for the reason that the disqualification set up in the petition is contained in Article 63 of the Constitution of the Islamic Republic of Pakistan as well as section 99 of the Representation of the People Act, 1976 and it is well-settled proposition of law that there is no estoppel against the statute. As a matter of fact the question of estoppel finds no place in this petition because under clause (b) of subsection (1) of section 68 of the Representation of the People Act, 1976 the Election Tribunal is empowered to declare the election of the returned candidate to be void if it is satisfied that he was not on the nomination day, qualified for, or was disqualified from, being elected as a member, this issue is, therefore, decided against respondent No. 1.
Issues No.4
12. The importance of this issue hardly needs any emphasis because respondent No. l has admitted having served in the Afghan Refugees Organisation, N.-W.F.P. As a District Administrator uptill 31-5- 1993 and if it is held that the said Organisation is a body controlled by the Government of N.--W.F.P.
He will surely be unseated. It was contended by the learned counsel for the petitioner at the outset that the Afghan. Refugees Organisation, N.-W. F. P. Was a body controlled by the Government inasmuch as it was established by the Federal Government and` is being run by the Government of N.-W.F.P. Home and Tribal Affairs Department which not only appoints and promotes its functionaries and officials but also monitors its activities. Reference in this context was made to several undisputed letters and Notifications, available on record, concerning the appointment and promotion of respondent No.1 in the Afghan Refugees Organisation. It was further contended that the employees of the Afghan Refugees Organisation had been held to be civil servants by the Supreme Court of Pakistan and this adjudication by itself was sufficient to prove that the Afghan Refugees Organisation was a Governmental Organisation. Reliance was placed on an unreported judgment of the Supreme Court of Pakistan, dated February 7, 1994 in Civil Appeal No.574/92 titled: Mir Ahmad khan v. Secretary to Government and others, certified copy available on record, wherein it was held that the appellant, who had put in more than ten years' temporary service before the termination of his services and similarly placed other employees of the Afghan Refugees Organisation being Government civil servants were entitled to pensionary benefits if their cases were governed by Regulation No. 371-A of Civil Service Regulation.
13. The learned counsel for respondent No. l on the other hand, contended that the Afghan Refugees Organisation was a purely humanitarian Organisation which was funded by the United Nations High Commissioner for Afghan Refugees, therefore, it was neither a Governmental Organisation nor a body controlled by the Government. It was further contended that the word "control" should be given a restricted meaning as it was instrumental in disqualifying persons from being elected to public officer. It was next contended that the appointment and promotion of the employees of the Afghan Refugees Organisation by the Government of N.-W.F.P. Being a regulatory function pure and simple was not enough to place it under the control of the Government of N.- W.F.P. Reliance was placed on Ghulam Rasool v. Muhammad Hayat (PLD 1984 SC 385) wherein it was observed that the word "control" shall be given a restricted meaning and plenary, statutory and regulatory control of the Government by itself would not entail disqualification of employee of a non--statutory, non-governmental company, undertaking or enterprises. It was further contended that the employees of Aghan Refugees Organisation being contractual employees were not civil servants. Reliance was placed on Alamzab Khan. v. Commissioner Afghan Refugees, N.-W.F.P., Peshawar and 2 others (1994 SCMR 546) wherein it has been observed that the petitioner being an employee of the Afghan Refugees Organisation on contract basis was not a civil servant and as such was not entitled to maintain his appeal before the Service Tribunal.
14. The contentions raised by the learned counsel for the petitioner have got an edge over the arguments advanced by the learned counsel for respondent No. l for reasons that are not far to seek. It is a matter of common knowledge of which one can take judicial notice also that in the wake of the influx of the Afghan Refugees the Federal Government had established the Afghan Refugees Organisation in the N.-W.F.P. Which is headed by a Commissioner who is invariably a deputationist from the Government of N.-W.F.P. Besides, there is enough material on record which clearly proves that the Afghan Refugees Organisation is a body controlled by the Government of N.-W.F.P. A perusal of Notification No.5/23-SOAr, I (HD)/82 (i), dated 5-9-1982. Exhibit P.W.1/1 would show that respondent No.1, who had admittedly joined the Afghan Refugees Orgainsation as Village Administrator initially in Grade-16, was promoted by the Governor, - N.-W.F.P. (Appointing Authority) on purely temporary basis` to Grade-17. The letter dated 16-11-1982 addressed to the Commissioner, Afghan Refugees, N.-W.F.P. By the Secretary, Government of N.-W.F.P., Home and Tribal Affairs Department, copy Exh. P.W. 1/2, would also suggest the same, resultantly, the Commissioner, Afghan Refugees N.-W.F.P., Peshawar vide Notification No. Commr. Ar/G-17 Org-I/210 dated 27-9- 1982, copy Exh.P.W. 1/4, has posted him as Area Administrator. District Dir, against the vacant post.
According to another letter dated 19-4-1982, copy Exh. P.W. 1/3, the Commissioner, Afghan Refugees N.-W.F.P., Peshawar had granted Rest and Recreation Allowance to the officers of the Afghan Refugees, Organisation including respondent No. l in persuance of the Government of N.-W.F.P., Finance Department Letter No. SO(SR)/(II FD/18-9 (P)/77, dated 10-7-1978. Vide Notification No.2/93- -SOAR-I(HD)/90, dated 18-3-1990, copy Exh. P.W.1/6 respondent No. l was promoted by the Government of N.-W.F.P. To BPS-18. Another document pointing to the administrative control of the Organisation by the Government of N.-W.F.P., Home and Tribal Affairs Department is a letter dated 25-5-1991, copy Exh. P.W. 1/8, addressed by the Additional Commissioner (G), Afghan Refugees, N.- W.F.P., Peshawar to the Secretary, Government of N.-W.F.P Home and Tribal Affairs Department, Peshawar for grant of 45 days' ex --Pakistan leave from 1-6-1991 to 16-7-1991 to respondent No. l and issuance of an N.O.C. In his favour to enable him to proceed for Haji. A perusal of the order dated 3-6-1991 of the Government of N.-W.F.P., Home and Tribal Affairs Department, copy Exh,P.W.
1/9, would reveal that the requisite N.O.C was duly issued. Similarly Notification No.2/93-SOAR. I (HD)/91. Copy Exh P.W.1/10 would show that respondent No.1 was granted 45 days' ex-Pakistan leave by the Government of N.-W.F.P. These letters and Notification command respect as their contents were not challenged by respondent No. l when he was confronted with the same during his cross- examination. It is also evident from the statement of Iltaf Gut, Establishment Superintendent, Afghan Refugees Organisation that same leave rules apply to the employees of the Afghan Refugees Organisation which are applicable to the Civil Servants, the officers of the Organisation in BPS-16 and above get their salaries from the office of the Accountant-General N.-W.F.P., Peshawar and the funds are provided by SAFRON, a Division of the Federal Government. The source of funds is immaterial as ft has no nexus with the administrative control of the Organisation which is being exercised by the Government of N.-W.F.P. Through Home and Tribal Affairs Department. It will not be out of place to mention here that in the aforementioned Civil Appeal No.574/92 decided by the Supreme Court of Pakistan on February 7, 1994 the learned Deputy Attorney-General for Pakistan had raised a preliminary objection to the effect that the appellant and other employees of the Afghan Refugees Organisation were not Government servants as their salaries were not paid from the Annual Federal Budget and even if their salaries and allowances were reflected in the Annual Budget of the Government of Pakistan, the not expenditure is later on reimbursed by the United Nations High Commissioner for Refugees, but the objection had not prevailed.
15. The temporary employees of the Afghan Refugees Organisation have been declared as civil servants by the Supreme Court of Pakistan in the aforementioned unreported judgment and this adjudication goes a long way to suggest that the Afghan Refugees Organisation is a Governmental Organisation. The authority (1994 SCMR 546) cited by the learned counsel for respondent No.1 only lays down that contractual employees of the Afghan Refugees Organisation are not civil servants and is silent about the temporary employees or the employees on deputation from the Federal Government and the Government of N.-W.F.P., therefore, it cannot be inferred from it that the Afghan Refugees Organisation is not a Governmental Organisation. As regards the authority Ghulam Rasool v. Muhammad Hayat (PLD 1984 SC 385) cited by the learned counsel for respondent No.1 it would suffice to say that it is distinguishable because it relates to a non- Governmental Organisation whereas the Afghan Refugees Organisation is certainly a Governmental Organisation. In that case the returned candidate whose election was challenged was the employee of the Pakistan Oil Fields Limited Company and the appeal was dismissed on the ground that the Government had no proprietary control as such over the Company and its regulatory control was not sufficient to entail disqualification. The Afghan Refugees Orgainsation is not a commercial Organisation, therefore, the question of proprietary control by the Government does not arise and in this perspective the appointment and promotion etc. Of its employees by the Government of N.-W.F.P., symoblises positive and not regulatory control. This issue is, therefore, decided in favour of the petitioner.
Issue No.5
16. The disqualification from which respondent No.1 allegedly suffered at the time of fling of his nomination papers is laid down in clause (k) of Article 63(1) of the Constitution of the Islamic Republic of Pakistan which reads as under: -- "63.--(1)xxxxxxxxxx
(k) he has been in the service of Pakistan or of any statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service."
17. It was contended by the learned counsel for the petitioner that respondent No.1 was disqualified from being elected as a member of the Provincial Assembly, N.-W.F.P. As he had been in the service of the Afghan Refugees Organisation, a body controlled by the Government, and had contested election before the expiry of a period of two years since he ceased to be in such service. It was further contended that it was immaterial whether respondent No. l was a regular, temporary or contractual employee as the nature of service was not mentioned in clause (k) of Article 63 (1) of the Constitution. Reference in this context was made to Syeda Abida Hussain v. Tribunal For N.A. 69 Jhang IV and others (PLD 1994 SC 60) wherein it was observed that the definition "service of Pakistan" does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled, therefore, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act.
18. The learned counsel for the respondent No.1 on the other hand contended that respondent No. l was not disqualified because firstly; the Afghan Refugees Organisation was not a body controlled by the Government and secondly, he was a contractual employee as was evident from the statements of Iltaf Gul, Establishment Superintendent (P.W. 1), Taimoor Khan, Section Officer (R.W.2) and the documents copies Exh. P.W. 1/X to Exh. P.W. 1/X-9. He further contended that the respondent had not resigned but his services were retrenched with effect from 31st May, 1993.
19. It has already been held under Issue No.4 that the Afghan Refugees Organisation is a body controlled by the Government of N.-W.F.P., admittedly, respondent No.1 was in the service of the Afghan Refugees Organisation uptill 31st May, 1993 and had contested election before the expiry of a period of two years since he relinquished charge of the post of District Administrator, Dir.
However, his contention is that the disqualification laid down in clause (k) of Article 63 (1) of the Constitution is not applicable to him as he was a contractual employees. No doubt he was a contractual employee from 1984 onwards, as is clear from copies of Notifications dated 30th January, 1994, 20th May, 1986, 7th March, 1987, 12th June, 1988, 25th April, 1989, 29th December, 1990 and 31st March, 1992, Exh. P. W. 1 /X-3 to Exh P. W. 1 /X-9, but he cannot draw any premium from this technicality because it is nowhere mentioned in clause (k) of Article 63 (1) of the Constitution that the disqualification contained therein does not apply to contractual employees. The observations made in the authority (PLD 1994 SC 60) cited by the learned counsel for the petitioner also make it clear that the contractual employees are not entitled to any benefit of special treatment in the matter of disqualification. The language of clause (k) of Article 63 (1) of the Constitution is clear and unimbiguous, therefore, it is to be interpreted in accordance with the well-known principles of interpretation of statutes and the exemption claimed by respondent No.1 can neither be added or read into it. In this respect the following excerpt from Maxwell on the Interpretation of Statutes, Twelfth Edition, page 33 may be reproduced with advantage:-- "It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the Legislature intended something which it omitted to express. Lord Mersey said: "It is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity it is a wrong thing to do. We are not entitled', said Lord Loreburn L.C.," to read words into an Act of Parliament unless reason for it is to be found within the four corners of the Act itself."
The long and the short of whatever has been said is that respondent No. l was disqualified from being elected as a member of the Provincial Assembly p N.-W.F.P. As he suffered from the disqualification laid down in clause (k) of Article 63(1) of the Constitution of the Islamic Republic of Pakistan. This issue is therefore, decided in favour of the petitioner.
20. The question of relief now remains to be considered. The learned counsel for the parties were heard at length on this point but before taking the matter to its logical end it will be beneficial to reproduce hereunder the provisions of sub-clause (d) of subsection (1) of section 67 and sections 69 and 70 of the Representation of the People Act, 1976, which have a direct bearing on the point:-- "67. Decision of the Tribunal ---(1) The Tribunal may, upon the conclusion of the trial of. An election petition, make an order---
(a) ---------------------
(b) ------------------ --(c) --------------------
(d) declaring the election as a whole to be void.
69. Ground for declaring a person other than a returned candidate elected.---The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.
70. Ground fordeclaring election as a whole void.---The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of---
(a) the failure of any person to comply with the provisions of the Act or the rules: or
(b) the prevalence of extensive corrupt or illegal practice at the election."
21. It was contended by the learned counsel for the petitioner that the petitioner having polled next highest number of votes was entitled within the contemplation of section 69 to be declared elected and the election as a whole cannot be declared to be void because the provisions of section 70 were not attracted in that the result of the election had not been materially affected by reason of the failure of any person to comply with the provisions of the Act or the Rules or the prevalence of extensive corrupt or illegal practice at the election.
22. The learned counsel for respondent No. l was of the view that the election as a whole should be declared to be void as the petitioner was not entitled to be declared elected for the reason that the disqualification of respondent No. l was not notorious. In support of his view he cited Rashid Ahmad Rahmani v. Mirza Barkat Al: and 2 others PLD 1968 Supreme Court 301, Lal Muhammad v.
Muhammad Usman (1975 SCMR 409), Junaid Ahmad Soomro v. Haji Mehboob A.I Bhayo and others (PLD 1986 SC 698) and Rab Nawaz v. Election Tribunal etc. (PLD 1986 Karachi 46)
23. The contentions raised by the learned counsel for the petitioner cannot prevail because the result of the election was materially affected by reason of the failure of the Returning Officer to reject the nomination paper of respondent No. l of his own motion on the strength of the provisions of sub-section (3) of section 14 of the Representation of the People Act, 1976. In this behalf it will be pertinent to point out that at the time of scrutiny of the nomination papers the Returning Officer, Said Ghafoor Shah (R.W. 1), had not cared to invoke the provisions of subsection (3) of section 14 of the Representation of the People Act, 1976, which empowers the Returning Officer to reject a nomination paper of his own motion if he is satisfied that the candidate is not qualified to be elected as a member, despite the fact that he admittedly knew respondent No.1 personally and it was in his knowledge that he had been holding the office of District Administrator in the Afghan Refugees Organisation. 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. Haji Mehboob A.I 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. Election Tribunal etc. (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 inference 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. Moreover, there were two other contesting candidates also besides the petitioner and if the returned candidate had not been in the field the possibility that any one of them might have secured the votes obtained by him cannot be ruled out altogether. In this backdrop I am convinced that a case for declaring the election as a whole to be void stands made out.
24. The upshot of the above discussion is that this election petition is accepted and the election with regard to Constituency No.PF-73 Dir-I held on 9th October, 1993 as a whole is declared to be void. The seat thus having become vacant should be filed in through Bye-election. Parties to bear their own costs in view of the technical nature of the case.