Through this election petition under section 34 of the Senate (Election) Act, 1975, hereinafter referred to as the Act, Mr. Khalilur Rehman, a contesting candidate, has challenged the election of the respondent Engineer lqbal Zaffar Jhagra to the Senate of Pakistan on a special seat reserved for Ulema, technocrats and other professionals from the North-West Frontier Province.
2. Put shortly, the relevant facts are these. Vide Notification No.F.3(1)/97-Cord (3) dated 23rd February, 1997 issued by the Chief Election Commissioner the members of the Provincial Assembly, N.-W.F.P. Were called upon to elect to the Senate three members against the seats reserved for Ulema, technocrats and other professionals in place of the sitting members who were due to retire on the expiration of their terms on the 20th March, 1997. Resultantly, nomination papers were filed by six candidates, namely, the petitioner, Syed Iftikhar Hussain Gilani, Qazi Muhammad Anwar, Advocate, Anwar Kamal Khan, Engineer lqbal Zaffar Jhagra and Muhammad Azam Khan, Advocate.
The nomination papers of respondent No.2 Anwar Kamal Khan was rejected by the Returning Officer for the reason that he had "utterly failed to establish himself by any stretch of imagination to be a person of distinction in his profession or to possess professional competence as is envisaged under the relevant provision of law which qualify him to contest election for Senate of Pakistan from N.-W.F.P. Against the seat, in his case, reserved for professional". However, the appeal preferred by him was accepted by the Chief Election Commissioner and the order of the Returning Officer was set aside with the observations, inter aria, that "to hold a person who has been practising for 24 years in District as a professional of no consequence would mean a very narrow interpretation of the word 'professional'. Thereafter, one of the contesting candidates Muhammad Azam Khan withdrew his candidature. The election was held on 12th March, 1997 and the respondents Engineer Iqbal Zaffar Jhagra and Anwar Kamal Khan, nominees of the Pakistan Muslim League (Nawaz Group), and Qazi Muhammad Anwar, Advocate, nominated by the Awami National Party, were declared elected. '
4. The petitioner had contested the election as an independent candidate. He has challenged the election of the respondent Engineer Iqbal Zaffar Jhagra on the ground that his nomination papers was per se and ex facie invalid and liable to be rejected as on the date of filing of the nomination papers he was not qualified to be a candidate for election and for being elected to the Senate on the special seat. He was not a 'technocrat' within the meanings of the relevant law. His educational qualification was Bachelor of Engineering but in his nomination paper he had shown his occupation or practising profession as 'farming' and there was no averment or disclosure with regard to any distinction or achievement. Besides, he had not earned recognition nationally or internationally in his field.
5. The prayer made in the petition is to the effect that the election of the respondent Engineer Iqbal Zaffar Jhagra be declared to be void and the votes cast in his favour be deemed to have been wasted and thrown away because his disqualification was well-known by virtue of the Electoral College being restricted to the members of the Provincial Assembly and the petitioner 'be declared to be duly elected against the special seat.
6. The petition was strenuously resisted by the respondent Engineer Iqbal Zaffar Jhagra. He not only controverted the assertions made in the petition but also maintained vigorously that he was a 'technocrat' by any standard having had an outstanding experience of 25 years as an Engineer and was eminently qualified to be elected on the special seat. He also annexed many documents with his written statement pertaining to his career as an Engineer to substantiate his contention that he was a 'technocrat' within the import of the relevant law. Mr. Muhammad Azam Khan Advocate, who had withdrawn his candidature, was also arrayed as a respondent in the petition: He too submitted a written statement with the prayer that in case the respondent Engineer lqbal Zaffar Jhagra is declared to be disqualified then the petitioner should not be declared to be elected because had the nomination papers of Anwar Kamal Khan not been accepted by the Chief Election Commissioner he would not have withdrawn his candidature and being a nominee of the Pakistan Muslim League (Nawaz Group) he would have definitely won the election.
7.Keeping in view the procedure for the, trial of election petition laid down by the Chief Election Commissioner vide Notification No. F. 1(6)/85-Cord. Dated 16th March, 1985 read with Notification No.F.I(6)/85-Cord dated 18th A March, 1987 that where the election petition claims as a relief a declaration that the election of the returned candidate is void on the ground that he was not on the nomination day qualified or was disqualified from being elected as a member the Tribunal may decide the question of such qualification or disqualification as l A a preliminary issue, the following preliminary issues were framed:- (1)Whether respondent No. l Engineer lqbal Zaffar Jhagra is not a professional/technocrat as defined iii explanation to Clause (1) of Article 5 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 and as such on the nomination day, was not qualified to be elected as a member of the Senate on Special Seat?
' (2) Whether nomination papers of the respondent (sic) ?
(3)Whether the petitioner is estopped from bringing the petition?
(4)Whether the Annexures appended with the petition have not been duly verified as provided under the law, if so, to what effect?
(5)Relief.
8. At the stage of framing of the preliminary issues a consensus had emerged that the preliminary issues can be conveniently decided in the light of the material available on record. The evidence of the contesting parties was thus not recorded.
9. The disqualification of the respondent Engineer Iqbal Zafar Jhagra highlighted in the petition is to be tested on the touchstone of the definition of "technocrat" contained in the Explanation to Article 5 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977, hereinafter called P.O. No.5 of 1977, therefore, it will be beneficial to reproduce the same at the outset. It is worded thus:- "(b) "Technocrat" means a person of nationally or internationally recogised professional competence with at least fifteen years experience and expertise at a high level for administering or managing an operational or policy-making unit."
10. Mr. Hafeez Pirzada, learned counsel for the petitioner contended with vehemene that the respondent Engineer Iqbal Zaffar Jhagra was not qualified to be a candidate or to be elected as a Senator on the special seat because the term 'technocrat' had been artistically defined in P.O. No.5 of 1977 and a plain reading of his nomination papers would show that he is an ordinary mechanical engineer and not a 'technocrat'. Elaborating the contention he stated that although the educational qualification of the respondent was Bachelor of Engineering but in the nomination paper he had shown his occupation as 'Farming'. Besides, he was not a practising professional and there was nothing on the record to show that he possesses nationally or internationally recognised professional competence and had 15 years experience and expertise at a high level for administering or managing an operational or policy-making unit. Reliance was placed on PLD 1986 SC 200, PLD 1987 SC 490, PLD 1988 SC 237 and 1988 CLC 578. It was also contended P.O. No.5 of 1977 as amended by the Houses of Parliament and Provincial Assemblies (Elections) (Eighth Amendment) Order, 1985 having not been repealed was still in force, therefore, the respondent was disqualified from being elected and from being a member of the Senate under Article 63(1)(P) of the Constitution which clearly Provides that a person shall be disqualified from being elected and from being a member of the Majlis-e-Shoora (Parliament) if he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly under any law for the time being in force.
11. As against the above contentions Barrister Shahzad Jehangir, learned counsel for the respondent Engineer Iqbal Zaffar Jhagra, adopting the arguments addressed in the identical Election Petition No.EP.2 of 1997 by Raja Muhammad Ibrahim Satti, Advocate on behalf of the respondent Anwar "Kamal Khan, argued that P.O. No.5 of 1977 was a mini Constitution and a- one time law meant for the first general elections and had ceased to be a living and legal enactment after lifting of Martial Law, restoration of democracy and revival of the Constitution, therefore, it cannot be made a touchstone for examining the disqualification in question. Reliance was placed on the following observations made in Pir Shujaat Hasnain Qureshi and another v. Al-Haj Raees Ahmad Qureshi and 7 others (PLD 1988 SC 118):- "We may observe that the submission of the appellant's counsel that the above interpretation would debar the appellant from contesting an election to the Senate for ever is untenable. It is only candidates who contested elections to" the National Assembly or the Provincial Assembly under P.O. V of 1977 and were unsuccessful who stood debarred. The next general elections are admittedly to be held under the provisions of the Constitution, when Article 10(4) of P.O.V of 1977 will be no longer in the field."
He further argued that the definition of the expression "technocrat" was purposely not inserted in the Constitution at the time of its revival or thereafter and also cannot be read into it in view of the doctrine of 'casus omissus', therefore, the ordinary dictionary meaning should be taken or what is generally understood. Reference was made to two authorities on the subject of 'casus Omissus' reported as AIR 1928 Lahore 337 and AIR 1943 Lahore 48. He also argued that the definition of 'technocrat' given in P.O. No.5 of 1977 should be construed liberally because a stringent view can create a vacuum in the Senate. It was next argued that the entry 'farming' against the column of present occupation was immaterial because it was clearly indicated in column No. 10 at page No.3 of the bio-data annexed with the nomination paper that the respondent was a Mechanical Engineer. Another argument advanced by him was that most of the provisions of P.O. No.5 of 1977 are inconsistent with the Constitution, therefore, it cannot be used as a criterion for. Testing the qualification of the respondent. He further argued that the respondent was a 'technocrat' within the purview of the definition of 'technocrat' given in P.O. No.5 of 1977. He also recounted at length the bio-data and achievements of the respondent in the field .Of Engineering. According to him the respondent had started his career as an Assistant Engineer in May 1970 and had worked in different capacities in Pakistan as well as Saudi Arabia and had ultimately become Managing Director of his own construction company based at Peshawar called Contech (Pvt.) Limited and resigned as Chief Executive/Director with effect from 7-12-1996. It was lastly contended that the petitioner was estopped from bringing the petition and questioning the qualification of the respondent as he had not challenged his candidature before the Returning Officer.
12. Now the question for determination is whether P.O. No.5 of 1977 is a living or a dead enactment or to put it in other words whether it is for the time be in"g in force. Admittedly, P.O No:5 of 1977, which deals with a particular subject, has not been repealed so far and it also cannot be deemed to have been repealed by implication because the Constitution is altogether silent about the definitions of the words ulema", "technocrats" and "other -professionals" used in Article 59(L)(d) and the repeal does not flow from it. As a matter of fact being in the . Field at the tithe of promulgation of the Constitution (Eighth Amendment) Act, 1985, it enjoys the protection of Article 270-A of the Constitution and shall continue in force until altered, repealed or amended by Article 270-A (3) of the Constitution. Besides, it is one of the principles of interpretation of statutes that repeal by implication of an earlier enactment is not to be favoured.Reference in this respect may be made to Maxwell's "Interpretation of Statutes" 12th Edition page, 199 and "Understanding Statutes" by S.M.
Zafar First Edition page 170.
13. The excerpt from Pir Shujaat Hasnain Qureshi and another v. Al-Haj Raees AIImad Qureshi and 7 others (PLD 1988 SC 118) quoted by the learned counsel for the respondent relates to Article 10(4) of P.O. No.5 of 1977, which is not involved in the present petition, and the observations in respect thereof appear to have been made in this perspective that clause (4) was added to Article 10 by Houses of Parliament and Provincial Assemblies (Elections Ninth Amendment) Order, 1985 with an explicit provision that it will apply to [he person who~was a candidate for election to the National or Provincial Assembly at the election held under P.O. No.1/4 of 1977. The said provision is contained in clause (4) itself which reads as under:- "(4). A person shall be. Disqualified from being elected or chosen as, and from being, a member of the Senate if having been a candidate for election to the National Assembly or Provincial Assembly at the elections held under this Order he has not been elected to such Assembly. "
An identical provision is not contained in the' Houses of Parliament and Provincial Assemblies (Elections) (Eighth Amendment) Order, 1985 whereby the 'Explanation' in question was added to Article 5 of P.O. No.5 of 1977, therefore, there can be no cavil with the proposition that the same is still in force. As a matter of fact the ratio of the authority cited by the learned counsel is that P.O.
No.5 of 1977 shall hold the field as long as it is not altered, repealed or amended by the competent authority. The observations made in this context at page 122 read as under:- "P.O. V of 1977 has been amended from time to time. It was in force before the Constitution was revived and by virtue of Article 270-A as well as Sub-Article (3), thereof, it continues to be in force until it is altered, repealed or amended by the competent authority".
It would thus follow that P.O. No.5 of 1977 is for the time being in force within the contemplation of Article 63 (1) (p) of the Constitution and disqualification of a candidate for election to Senate on a special seat is to be determined in view-of the definition of Ulema, technocrats and other professionals contained in the Explanation to clause (1) of Article 5 thereof. The doctrine of "casuomissus" is not attracted at all.
14. The question as to whether a candidate qualifies to be a 'technocrat' is not res integra. It was examined at length in, a few instructive and oft-quoted, authorities of the Supreme Court of Pakistan and Election Tribunals. The parametres of the definition of 'technocrat' have been given in Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578) which are as under:- (1)The candidate must possess nationally or internationally recognized professional competence; (2)The candidate must have experience and expertise of 15 years for administering or managing an operational or policy-making unit; and (3)Such experience and expertise should be at a high level.
The judgment of the learned election Tribunal was examined by the Supreme Court of Pakistan in Dr. Syed Farooq Hassan and another v. Mumtaz Ahmad Khan and others (PLD 1988 SC 237). The following observations made therein may be reproduced advantageously:- "The reservation made for distinct professional or occupational group in the highest legislative body of the country is an exception and a special provision which has to be interpreted strictly and only those who satisfy F the conditions of competence, of qualification, of experience and of standing as prescribed in the law can be held eligible. There can be no relaxtion of the requirement, no dilution,- no mitigation in the requirements of the law. "
200) while examining the requirements of a technocrat the following law as laid down by the Supreme Court:- "The scheme of the explanation under consideration appears to be to emphasize in Explanation (c) professional qualification, its recognition and experience in a specialized area of knowledge, and practice in that particular specialization. In contra-distinction to it there is no mention of qualification in Explanation (b). It talks of professional competence and experience and expertise for administering or managing a unit. Expert has been defined in Black's Law Dictionary as 'one who is knowledgeable in specialised field that knowledge being obtained from either education or personal experience... One who by habits of life and business has particular skill in forming opinion on subject in dispute'. Experience and expertise and absence of use of the word qualification in Explanation (b) emphasises 'the practical side rather than the academic. We, therefore, agree with the finding that' a person without professional qualification but who is otherwise professionally competent, which professional competence is nationally or internationally recognized, can become a 'technocrat' if he fulfils the other conditions in the definition of. Technocrat. The word 'recognized' has been defined in Black's Law Dictionary as 'Actual and publicly known'. ,The national or international recognition of professional competence of an individual may come about in various forms--- direct and indirect. Instances of direct recognition have been noted by the Election .Tribunal in the words that follows:- 'Recognition is a formal or official act by a university, seat of learning or professional body and I would add to these bodies the Government'. Undoubtedly, instances of direct recognition noted by the Election Tribunal will certainly ex facie establish the competence of the individual. There, however, appears no, particular reason to restrict the recognition only to such direct and formal acts. The indirect recognition at the national level may come about in diverse forms---in associating! The professionally competent individuals in framing of the policies at the national level, in administering institutions 'and projects and in representations abroad in a particular speciality. The 'high level' should not be restricted to the highest level because it implies a level lower than the highest and higher than the intermediate. The degree o independence and the absence of accountability are tests extraneous to the requirement. We would, therefore, endorse the view taken by the Election Tribunal that 'high level has reference to experience and expertise' and it need not be in the capacity of head of ministries, statutory corporations' etc."
PLD 1988 SC 237) the following observations were made with regard to 'nationally recognised professional competence:- "The professional qualifications possessed may be nationally recognized but, as noted by the Tribunal itself, in its earlier judgment in Ihsanul 'Haq Piracha's case and the law laid down by this Court, there had to be a further examination of the question whether recognition of cmpetence in the field of journalism was forthcoming in the form laid down. To be managing A.P.P. Unit which was private company in its nascent stages or serving as a Pakistan correspondent of reputed Reuter's or as a co-Editor of Iqdam or to be on the Editorial Board oflG Concept did not and could not satisfy the requirement of the Law, of national or international recognition of competence. It is significant that Mian Muhammad Shafi a close associate of Mr. Mumtaz Ahmad Khan and having known him since 1940 or so could not tell what was the exact job description on which he remained in Iran.
Such a deficiency in job description got accentuated by the statement of Mr. Mumtaz .Amad Khan and the absence of any reference to a letter of appointment or description of it in a civil list or in contemporary record of Government. It cannot be said that his competence was nationally or internationally recognized. "
15. Keeping .'n view the aforementioned facets of the definition of 'technocrat' and the acid tests I will now proceed to examine the question as to whether the respondent Engineer Iqbal- Zaffar Jhagra qualifies to be a 'technocrat' or not. His bio-data incorporated in and annexed with the nomination paper contains the following particulars:-
(1) Date and place of birth: 17-5-1947 Peshawar.
(2) Education/Professional Qualification:--- Bechelors Degree in Mechanical Engineering from Engineering College, University of Peshawar (1969)
(3) Professional Experience 17 years.
May 1970 to May 1974- (Islamabad/Lahore)
Assistant Engineer/Site Engineer Conforce Ltd. Remained mainly in the field and was responsible for execution of Electrical Mechanical works associated with the under construction buildings. In the Head Office of Conforce Ltd. I was responsible for preparation of BIDS, Rate Analysis and Budget Control.
May 1974 to December 1976: (Islamabad).
Senior Engineer National Construction Company of Pakistan Limited reporting directly to the Deputy Managing Director. Responsibility mainly included Liaison of under Execution Construction Projects in the North Zone and the Zonal Office (North). In addition to this Purchase and Movements of construction Plan and Equipment was also under my control.
Dec. 1976 to July 1981: (Jeddah Saudi Arabia).
Senior Engineer Saudi Research and Development Corporation (REDEC) Contracting Div. Saudi Arabia being directly responsible to Senior" Vice-President of Cotttrticting Div. Responsibility included preparation of feasibility reports, Tendering and evaluation of various construction projects, coordination of under execution construction projects with the Head Office Planning and scheduling of various construction activities, rate analysis and progress reports.
Aug. 1981 to present (1987): Owner/Managing Director of Contech Ltd. A construction company based at Peshawar. The particulars furnished at page No.2 of the nomination paper against lumns Nos.4 and 5 are as under:-
(4) My educational qualification is: Bachelor of Engineering. ,{,
(5) My present occupation is: Farming (Agriculture).
It was also mentioned in the nomination paper that the respondent was a candidate for a seat reserved for 'technocrat' and that he was Vice-President PML (N) N.-W.F.P.
16. Having scrutinized the bio-data of the respondent in the light of the definition of the expression 'technocrat' I have come to the inescapable conclusion that he is not a 'technocrat'. As mentioned earlier the first requirement of the definition of "technocrat "is that he must possess nationally or internationally recognized professional competence. The mere fact that the respondent holds a degree of Bachelor of Mechanical Engineering, which is a nationally recognised professional qualification, does not mean that he possesses nationally recognised professional competence. It was held in Ihsanul Haq Piracha-v. Wasim Sajjad (PLD 1986 SC 200) as well as Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490) that it is not necessary to have academic or professional qualifications for being a technocrat. This would mean that it is not the professional qualification but recognition of competence in the relevant field at the national or international level which determines professional competence. In the case of Dr. Syed Farooq Hassan it was held by the learned Election Tribunal that the respondent. Mumtaz Ahmad Khan possessed professional competence because he was the holder of a diploma in Journalism, which was recognized nationally, and had experience in Me field of journalism. The findings were set aside by the Supreme Court of Pakistan with the observations that recognition of competence in the field of journalism was lacking inasmuch as to be managing A.P.P. Unit which was private company or serving as a Pakistan Correspondent of reputed Reuter's or as co-Editor of Iqdam etc. Did not and could not satisfy the requirement of the l law, of national or international recognition of competence. 1n the present case l the respondent has been serving as an ordinary Field Engineer in private companies and the Contech (Pvt.) Limited of which he was the Managing Director also appears to be a common place local private construction company, therefore, it goes without saying that the element of recognithon of professional competence in the field of Engineering is altogether missing. It will thus follow l that the respondent does not fulfil the first requiremenF
17. The second requirement pertains to experience and exercise of 15 years for administering or managing an operational or policy-making unit. The respondent singularly lacks the requisite experience and expertise because it is evident from his bio-data that he never administered or managed any operational unit i.e. a factory or manufacturing or assembling unit or a policy- making unit namely a unit charged with the duty of taking-policy decisions. His own private K construction company namely M/s Contech Limited is too insignificant and local to be called a policy-making unit. Even if it is presumed to be so the experience and expertise of the respondent falls short of 15 years because according to the certificate of-incorporation the said construction company was incorporated on 17-4-1983 and he had resigned as its Chief Executive/Director with effect from 7-12-1996. The second requirement is thus not satisfied.
18. The third requirement encompasses the level at which experience and expertise is to be acquired. In Ihsanul Haq Piracha v. Wasim Sajjad (PLD 1986 SC 200) the following observations were made in this context:- "The "high level" should not be restricted to the highest level because it implies a level lower than the highest and higher than the intermediate. The degree of independence and the absence of accountability are tests extraneous to the requirement. We would, therefore. Endorse the view taken by the Election Tribunal that "high level has reference to experience and expertise" and it need not be in the capacity of "head of ministries, statutory corporations" etc. The view of the Election Tribunal referred to in the above excerpt is mentioned in, Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578) at page 217. It reads as under:- "In my view "high level" has reference to experience and expertise and not .To operational or policy- making unit. The words used are that the candidate must have 15 years' experience and expertise at a high level, and not that he must have 15 years' experience and expertise of administering or managing a high level unit. The policy-making unit or operational unit need not be a big or large organization as the law does not require it to be so. It can be any medium or small sized unit also.
What is required is that it must be a policy-making unit i.e. Where policy decisions are taken, or an operation unit for example any factory, manufacturing or assembling unit.
But the experience and expertise must be at a high level for administering or managing any such unit. A mere foreman or supervisor in factory would . Not apparently satisfy this condition.
Experience and expertise as Manager or General Manager incharge'of factory would apparently satisfy the condition. As regards the policy--making unit, if it is company, the Managing Director or Chief Executive or even full-time working director would be a person at a high level administering or managing the unit. In the case of partnership firm, the managing partner and all full-time working partners and in case of a proprietary concern, the proprietor, would be person at high level administering or managing a policy-making unit. I have not accepted the contention of the petitioner and Mr. Shahid Hamid that only heads of ministries, statutory corporations, Pakistan Banking Council and huge complexes come within such definitions. The contention that even Managing Director of a policy-making or operational company is excluded as he is subject to the supervision of the Board of Directors has not appealed to me. A Managing Director, even though subject to supervision by Board of Directors, of a policy--making or operational unit is in my view a person at high level administering or managing such unit. "
The position which emerges from the observations of the Supreme Court and the view of the Election Tribunal is that the Unit must be a policy--making or operational unit, the size of the unit is immaterial and if the unit is a company the Managing Director or Chief Executive or a full-time working Director would be a person administering or managing it at a high level. The respondent never remained associated with a policy-making or operational unit in any capacity, therefore, there is no difficulty in holding that the third requirement is also not satisfied. The conclusion arrived at will not change even if the private construction company of the respondent is assumed to be a policy--making unit because he has remained on its Board of Directors for about 13 years and not 15 years. Another insurmountable hurdle in his way is that he has adopted farming as his occupation. In the changed scenario he is obliged to establish his claim of being a "technocrat" in the light of the experience and national and international recognition in the field of agriculture instead of Engineering. It will not be out of place to mention here, that the respondent in his nomination paper as well as the written statement had taken a firm stance that he was a "technocrat". However, during the course of arguments it was submitted by his learned counsel that he also fell in the category of other 'professionals'. I feel no hesitation in holding that he does not qualify to -be a 'professional' for the short reason that apart from other shortcomings arising from the definition of 'professional' he is not a person of distinction. Preliminary Issue No. 1 is, therefore, decided in favour of the petitioner and against the respondent Engineer Iqbal Zaffar Jhagra.
Issue No.2:
19. This issue was framed in view of the averment made in the petition that the nomination papers of the respondent Engineer lqbal Zaffar Jhagra was null and void and section 49 (1) (a) of the Act which provides that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that his nomination was invalid. It was contended by the learned counsel for the petitioner that the respondent's nomination was invalid owing to his disqualification, therefore, on the nomination day only four nomination papers were valid and after the withdrawal of his candidature by Muhammad Azam Khan three candidates including the petitioner stood validly nominated and elected. The contention has not impressed me because invalid nomination) alluded to in section 49(1)(a) pertains to technical and procedural invalidity with regard to the nomination of the returned candidate and has no nexus with his disqualification which is separately and distinctly covered by clause (b). The N nomination of the returned candidate would be invalid if his proposer or seconder was not qualified to subscribe to the nomination papers, the proposal was not signed by the proposer and the seconder, the declaration was not signed by the candidate or the declaration was false or incorrect and the signature of the proposer or secondor is not genuine. The nomination of the respondent does not suffer from any technical defect or procedural infirmity, therefore, this issue is decided against the petitioner.
Issues Nos.3 and 4:
20. Both the issues are liable to be struck off as they do not arise from the written statement of the respondent Engineer lqbal Zaffar Jhagra and were framed in the light of the written statement of the respondent Anwar Kamal Khan against whom no relief has been claimed in this petition. Be that as it may, the question of estoppel finds no place in this petition for the simple reason that there can be no estoppel against statute. The petition has been duly verified on oath in terms of Order VI, Rule 15, C.P.C. And the oath has been attested by the Commissioner who was empowered to do so in view of Rule 5(i) Chapter 12-B of the High Court Rules and Orders Vol.IV: However, the Annexures have admittedly not been verified on oath but the omission is not fatal as the Annexures neither go to the root of the allegations nor disclose any additional allegation of substantive character or furnish better particulars of allegations made in the petition. Reference in this connection may be made to Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175). Both the issues are, therefore, decided against the respondent.
21. The question of relief now remains to be considered. It was contended by the learned counsel for the petitioner that on the disqualification of the respondent the petitioner should be declared to have been elected in his place because; firstly, the nomination papers of the respondents Anwar Kamal Khan and Engineer Iqbal Zaffar Jhagra being invalid only three candidates including the petitioner had remained in the field after the withdrawal of the candidature by Mr. Muhammad Azam Khan and, secondly, the disqualification of the respondent was well-known by virtue of the electoral College being restricted to the members of the Provincial Assembly, therefore, the votes cast in his favour should be deemed to have been wasted and thrown away. I am not persuaded by the contentions. The petitioner had contested the election as an independent candidate and had the appeal of the~respondent Anwar Kamal Khan against the rejection of his nomination papers not been accepted by the Chief Election Commissioner, Mr. Muhammad Azam Khan, who too was a nominee of the Pakistan Muslim League (N), would not have withdrawn his candidature and would have scored an easy victory. The election was held in accordance with the system of proportional representation by means of the single transferable vote. An attested copy of the Return of Election (Form-VI) signed by the Returning Officer is available on record. It discloses that the number of valid votes was 80, the number of members to be elected was 3 and the quota sufficient to secure the return of a candidate was determined as 2001. At the end of the first count the arrangement of valid ballot papers according to first preference recorded for each candidate was as under:- 1Engineer Iqbal Zaffar Jhagra;17 x 100 = 1700 2Anwar Kamal Khan20 x 100 = 2000 3Khalilur Rehman:11 x 100 = 1100 4Syed Iftikhar Hussain Gilani09 x 100 = 900 5.Qazi Muhammad Anwar:23 x 100 = 2300 Qazi Muhammad Anwar, nominee of the Awami National Party, was declared elected. During the second count his surplus to the extent of 286 was transferred, keeping in view the next preference, in favour of Engineer lqbal Zaffar Jhagra but at the end of the count no candidate could be declared elected. During the third count there was no candidate with surplus, therefore, Syed Iftikhar Hussain Gilani being lowest on the count was excluded and in view of the next preference his seven transferbale ballot. Papers were transferred to the petitioner but even then no candidate could be declared elected. During the fourth Count .Out of three continuing candidates the petitioner being lowest on the count was excluded and Engineer lqbal. Zaffar Jhagra and Anwar Kamal Khan were declared elected against the remaining two seats. The final 'result was as under:- (I)Qazi Muhammad Anwar2001 (2)Anwar Kamal Khan2000 (3)Engineer lqbal Zaffar Jhagra1986 (4)Khalilur Rehman1800 (5)Syed Iftikhar Hussain Gilani900.
22. The election was held on party basis and the respondent Engineer Iqbal Zaffar Jhagra was a nominee of a major political party, therefore, the votes cast in his favour pursuant to party discipline cannot be deemed to have been thrown (away. Besides, no objection was raised with regard to his disqualification at the time of scrutiny of the nomination papers, therefore, his disqualification cannot be called notorious which is a condition precedent for declaring the candidate securing the next highest number of votes elected in place of the returned candidate.
There is no dearth of case-law on the point. In Rashid Ahmad Rahmani v. Miraa Barkat A.I and 2 others (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 then votes R secured by such candidate cannot simply be thrown away and the candidate securing next highest number of votes cannot be declared elected. In Lal Muhammad v. Muhammad Usman (1975 SCM R 409) it was observed that if the[ disqualification of successful candidate is not notorious the votes polled in his S 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 Mahboob A.I Bhayo (PLD 1986 SC 698) it was ruled 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 T 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 on election in such case as a whole must be 1 set aside and re-election ordered.
For the foregoing reasons this election petition is decided in this manner .That the election of the respondent Engineer Iqbal Zaffar Jhagra to the Senate on the special seat reserved for Ulema, technocrats acid other professionals is declared to be void. The seat having become vacant shall be filled through bye-election. Parties to bear their own costs.