Mr. Zia Shahid, the petitioner herein, has by filing this petition under section 34 of the Senate Election Act, 1974 challenged the election of respondent, Sheikh Rafiq Ahmad to a seat in the Senate of Pakistan reserved for Ulema, Technocrats and Professionals from the Province of Punjab.
2. As a result of the retirement of Senators on the completion of their term, two seats reserved for Ulema, Technocrats and Professionals from Province of Punjab had fallen vacant. Pursuant to the notification issued by the Chief Election Commissioner on 12-2-1994 elections to these two seats were held on 2-3-1994 in which three persons namely Mr. Zia Shahid the petitioner, Sh. Rafiq Ahmad the respondent and Justice (Retd.) Dr. Javid Iqbal participated. The respondent was nominee of Pakistan Democratic Front while Justice (Retd.) Dr. Javid Iqbal was nominated by Pakistan Muslim League (Nawaz Group). The petitioner, however, contested the election as an independent candidate. In the poll the respondent secured 134 votes, Justice (Retd.) Dr. Javid Iqbal secured 98 votes while the petitioner bagged three votes. Consequently the respondent and Dr. Javid Iqbal were declared elected to the two reserved seats. The challenge in this election petition is confined to the election of the respondent as that of Justice (Retd.) Dr. Javid Iqbal has not been questioned.
3. The only basis on which this petition is grounded is that the respondent did not qualify as a "professional" and was, therefore, not eligible to contest election for the seat reserved for Ulema, Technocrats and Professionals. It has been prayed that the respondent's election be set aside and in his place the petitioner the only other candidate be declared to have been elected.
4. In his reply the respondent has reiterated that he was a professional within the meaning of Article 59 of Constitution of Islamic Republic of Pakistan, 1973 as he was a lawyer practising since 1946. Various achievements and positions held by him have been listed in the reply. It is also stated in the reply that the elections in which the respondent had been elected to the Senate were held under the Constitutior and not under Houses of Parliament and Provincial Assemblies (Election)
Order (5 of 1977) and as such the definition of the professional contained in the latter instrument cannot be made a touchstone for judging the eligibility of a candidate.
5_On 21-6-1995 this Tribunal framed the following issues:-- (1)Whether the petitioner has any cause of action? OPP (2)Whether respondent No.1 qualified to be elected as professional within the meaning of Article 59 of the Constitution of Islamic Republic of Pakistan, 1973? OPR , (3)Relief.
The parties did not examine any witness but confined themselves to appearing as their own witnesses. The statement of Mr. Zia Shahid was recorded as P.W.1 while that of Sh. Rafiq Ahmad respondent as R.W.1. The petitioner placed on record the nomination papers submitted by the three candidates. The respondent on the other hand produced a copy of the notification under which the elections were held as Exh.R.l. An extract from the register of the Lahore High Court Bar Association showing that the respondent had remained its Secretary as Exh.R.2 and a copy of the cause list of Lahore High Court as Exh.R.3. Later on, on an application made by the respondent he was permitted to place on record copies of the cause lists of Lahore High Court as Exh.R.l/1 to Exh.R.l/35 and a list of the reported cases in which the respondent had appeared as a counsel as Exh.R.l/36.
Subsequently, on another application made by the respondent he was allowed to bring on record certain documents to show that the respondent had been conferred the award of Hilal-e-Imtiaz by the President of Pakistan on 23-1-1996.
6. On behalf of the petitioner it has been argued by Mr. Muhammad Azam Soharwardi that from testimony of the respondent and the biodata annexed by him alongwith his nomination form it is evident that the respondent had remained in the profession of law only till 1971-72 and thereafter he shifted to politics and the legal profession did not remain as his principal calling or vocation. It was emphasised by Mr. Soharwardi that at no stage of his career did the respondent become a lawyer of distinction as for most part he remained as a junior to Mr. Mahmood A.I Kasuri. According to Mr. Soharwardi it stands established on the record that the respondent had never paid substantial amount. Of income-tax nor had he appeared in his own right in any noteworthy case as the principal counsel. Learned counsel went on to argue that though the respondent may be a renowned Politician he could not claim any distinction in the field of law and, therefore, he did not qualify to be a professional within the meaning of word "professional" appearing in the Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) which was an existing law governing the election to the Houses of Parliament.
7. Mr. Aitzaz Ahsan, learned counsel for the respondent on the other hand, submitted that Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) was a one time legal instrument meant for the first elections to the Houses of Parliament and Provincial Assemblies after lifting of Martial Law and restoration of democracy and it exhausted itself after those elections had been held and did remain on the statute book. Learned counsel went on to argue that as no definition of "professional" was given in the Constitution, the ordinary dictionary meaning should be applied and any person who was engaged in a recognised profession viz. Law, medicine etc. Was entitled to contest for the seats reserved for professionals. In the alternative it was maintained that the respondent was a professional within the meaning of Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) as he fulfilled all the necessary attributes of the definition given therein.
8.Before proceeding to appraise the evidence and material on record it is essential to state the criterian against which the qualification of the respondent who claims to be a professional is to be tested. As Constitution does not contain any definition of "professional" reference has to be madc to the definition A appearing in the Houses of Parliament and Provincial Assemb)ies (Election)
Order (5 of 1977) which is a law enacted specifically for the purposes of holding F election to the two Houses of Parliarnent and Provincial Assemblies. Indeed it is that touchstone which has been applied by all the Tribunals and the Courts including the Supreme Court of Pakistan in cases in which the question as to whether a candidate qualifies to be a professional or technocrat fell for consideration. (See Sh. Ehsan-ul-Haq Piracha v. Wasim Sajjad (PLD 1986 SC 200), Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), Dr. Syed Farooq Hassan and others v. Mumtaz Ahmad Khan (PLD 1988 SC 237), Muhammad Anwar v. Chief Election Commissioner. Islamabad and others (PLD 1991 Quetta 70) and Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578).
According to the explanation to Article 5(i) of President Order 5 of 1977 "professional" means: "A person of distinction with nationally or rntemationallv recognised professional qualification and practical experience at a high level in a specialised area of knowledge who has been practising in his specialisation by adopting it as principal calling. Vocation or employment. "
On proper analysis definition contemplates that before a person can claim to be a professional he must show-- (a)that he is a person of distinction; , (b)that he has a nationally or internationally recognised professional qualification; (c)he has a practical experience at a high level in a specialised area of knowledge; and (d)he has been practising his specialisation by adopting as his principal calling, vocation or employment.
9.From the biodata annexed by the petitioner alongwith his nomination papers, the various documents filed by him and his own statement inevitable conclusion which follows is that though the respondent can justly claim to be a renowned politician who has distinguished himself in the field of politics but unfortunately he cannot claim to he so in the legal profession. Without meaning to be critical or disrespectful to the respondent, he does not seem to have obtained any distinction in the field of law nor does he possess proficiency of the requisite level so as to qualify him as a professional for the purposes of election to the reserved seat in Senate. Furthermore, the evidence also shows that from the year 1972-73, onwards, legal practice ceased to remain the principal calling and vocation of the respondent.
10. In order to enable a person to contest for the reserved seat as a professional, the person concerned must show that he has by dint, of his calibre and acumen outshone his compatriots and has attained a position of eminence at the top of the profession at a padestal higher than others. He should be among those whose names come to mind immediately when one talks of the profession to which he belongs.
11. Reference may be made to the illuminating judgment delivered by Mr. Justice Nasir Aslarn Zahid as Election Tribunal in the case of Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578) in which while considering the import of expression "Person of distinction" it was observed that: "The first requirement of 'distinction' is taken up first. Reference had been made to several dictionaries both by Mr. Shahid Hamid as well as by Mr. Saqib Nisar for explaining the meaning of 'distinction'. This word has been given, inter alia, the following meanings in the recognized dictionaries:-- eminence; noticeable eminence; eminence achieved in a profession; special honour recognition; fame; repute;mark of honour; distinguished character; excellence.
The judgment of the Election Tribunal on this question was affirmed by the Supreme Court of Pakistan in Dr. Syed Farooq Hassan and another v. Mumtaz Ahmad Khan and others (PLD 1988 SC 237). Reference may also be made to Muhammad Anwar v. Chief Election Commissioner, Islamabad and others (PLD 1991 Quetta 70) which incidentaly was a case relating to a lawyer. The following observation appearing at page 75 of the report are instructive and may be reproduced with advantage: "In order to prove this requirement of law, it was incumbent upon him to show high performance of his calibre, achievement and competency in the profession of law, so he could have placed himself at a high pedestal, comparing to other members of profession. He also does not possess any other professional qualification which is recognized nationally or internationally, merely obtaining the decree of law and getting himself enrolled as an Advocate, is not sufficient to satisfy this condition; in this context, no material is available on record to prove his special qualification in the field of law, on the basis of which he was recognised nationally or internationally. Similarly no iots of evidence was produced before us to point out his practical experience at a high level in a special area of knowledge and there is also no indication on record to show that he was practising in any special field of law. It may be observed that the Constitution has created reserved seats for Professionals in the Highest Legislative Body i.e., Senate, therefore, a candidate who has just qualified an examination would not be able to represent his class of profession effectively. "
12. It may also be stated that the object for which representation had been provided to Ulema, Technocrats and Professionals in the Senate must-not be lost sight of. In the words of Shafiur Rehman, J. (as he then was) in the case of Dr. Syed Farooq Hassan which appear at page 237: "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 the conditions of competence, of qualification, of experience and of standing as prescribed in the law can be held eligible. There can be no relaxation of the requirement, no dilution, no mitigation in the requirement of law. "
13. While on subject it may also be emphasised that in order to qualify as a professional the person concerned must show that he has attained distinction in the profession to which he belongs and his practical experience must also be in C that specialised area of knowledge at a high level. The fame or distinction possessed by a person in other walks of life have no relevance. In Dr. Syed Farooq Hassan's case supra this aspect was highlighted by Shafiur Rehman, J. (as he then was) by observing that "I am quite clear in my mind that the Tribunal correctly held that Mr. Mumtaz Ahmad Khan was not a person of distinction in the field of journalism in the country and on that account could not be elected to the Senate on a seat reserved for Ulema, Professionals and Technocrats".
On this aspect, the Tribunal's judgment which has been affirmed by the Supreme Court may also be referred to with advantage which is reported as Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578). Mr. Justice Nasir Aslam Zahid held that:-- "Mr. Shahid Hamid is correct in submitting that the above achievements or attainments do not qualify the respondent to be described as a. Man of distinction according to the definition of 'professional'. It has to be observed here that 'distinction' has to be acquired in the field in which the candidate claims to be an expert or in any case there must be a nexus with the specialized field.
Mr. Saqib Nisar, learned counsel for the respondent, had argued that according to the definition of 'professional' the candidate can be a 'man of distinction" in one field and his specialization may be in another field. Interpreting the definition of 'professional' as a whole, it would follow that the intent of the Legislature is that the 'distinction' has a nexus with the specialized field of the candidate. I have not been able to accept the interpretation sought to be placed by Mr. Saqib Nisar on this provision that the candidate may have acquired 'distinction' in a different or non-allied field than the specialized field of the candidate."
The same view was taken in Muhammad Anwar v. Chief Election Commissioner, Islamabad (PLD 1991 Quetta 70) Keeping in view the above principle, now the evidence and material on the record may be analyses.
14. The first document to which the reference may be made is the nomination form submitted by the respondent at the time of election and the biodata which was submitted. In column No. 3 relating to professional experience the respondent stated "46 years' practice as a lawyer. Details given in the attached biodata" Again in column No. 10 requiring the candidate to state special qualifications and skill the only answer given is "Advocate of Supreme Court since 1958". In column No. l l which requires the candidate to give list of any publication the respondent stated "Many cases conducted in the Superior Courts reported in Law Journals". In column No. 12 the respondent wrote that he had been Minister, Advisor to Governor, Speaker, Councillor etc. Interestingly in the biodata the petitioner has himself bifurcated his professional experience and the offices held by him on the political side. So far as the professional experience is concerned the biodata recites that the respondent was enrolled as a pleader in 1946, was enrolled as an Advocate of the Lahore High Court in 1949; enrolled as an Advocate Supreme Court in 1958; was part time Law Lecturer in University Hailey College, Lahore; Secretary District Bar Association 1953-54, Secretary, High Court Bar Association 1963-64; President, Pakistan Democratic Lawyers 1965-69. Member, Executive World Peace through Law 1973-74, Chairman, Law Reforms Committee of Pakistan Peoples Party, 1993.
There is a long list of the offices held by the respondent on the political 'side including that of General Secretary of Punjab Branch of All India Muslim Students Federation. President, Misri Shah Muslim League, Lahore; Member of Provincial Assembly, Minister for Law and Parliamentary Affairs, Punjab.
15. Two things which emerged from the biodata are firstly that no special distinction in the field of law has been listed or claimed by the respondent and secondary that the positions which may have some nexus to the legal profession are between the period 1949 to 1974.
16. In his statement as R. W.1 the respondent reiterated that he has been actively engaged in the legal profession since the year 1949 and that throughout his life legal profession has been the principal source of his livelihood. He stated that all his achievements are relatable to his being a lawyer. He claimed that he had appeared in various important cases. He denied the suggestion that he was not a lawyer of national or international repute. He, however, admitted that he has never been engaged by Pakistan People's Party to which he belongs. As its counsel. He stated that his performance had been appreciated by the Judges in some cases but no such case was cited.
He claimed that even after 1970 legal profession had been his main business and vocation. He, however, admitted that property was major source of his income. He stated that he could not recall the income which he had shown in his income-tax returns generated by him from legal profession.
He admitted that he had not written any book, article on Law.Towards the end of the case the respondent had produced copies of cause list of Lahore. High Court as EXhS.R.I. To R.3. These spread over a period of aboutwo years viz. 1992 to 1994. The total number of cases in which the name of the respondent appeared, as a counsel representing one of the parties is about 12 or 13 which have been repeated on different dates of hearing.
I7.. The respondent has also produced a list of reported cases (Exh.R.l/3) in which he appeared as a counsel. The total number of cases in the list is about 43 comprising of 19 cases of the Supreme Court of Pakistan, 17 cases of the Lahore High Court and 4 cases of the Board of Revenue. Out of these cases except for one all relate to the period prior to 1973. This list instead of helping the respondent supports the contention raised by the petitioner that after his election to the various political offices starting from the year 1973, profession of law ceased to be the principal vocation and calling of the respondent.
18. The other thing to be noted in this behalf is that except for two or three cases in all cases in the Supreme Court and the High Court the respondent had assisted Mian Mahmood A.I Kasuri. I am afraid on the basis of appearances as second counsel in cases, no one can claim to be distinguished in the legal profession.
19. It emerges from the above discussion that at no stage of his career the respondent had earned for himself the eminence and distinction as a lawyer and nor was he a top lawyer of the country.
From the list of reported cases which the respondent has placed on record, it is evident that he has been assisting the senior counsel like Mian Mahmood A.I Kasuri but he was not a lawyer of eminence in his own right. He admitted in his cross-examination that the principal source of his livelihood was property. Unfortunately the respondent did not produce his income-tax record. In his cross-examination he stated that he was not in a position to depose as to how much income from legal practice had been shown by him in the income-tax record.
20. The magnitude of the practice. And the level at which the services had been performed by a person claiming to be a professional is one of the relevant factors for determining his status. The amount of tax paid on the income is important and as it is a matter specifically within the knowledge of the respondent he should have produced some evidence in this behalf. He should have at least established that he had appeared in a substantial number of cases during the past 10 years or so.
21. There is also merit in the contention of Mr. Soharwardi that after 1970--71 the profession of law did not remain as the principal calling and vocation of the respondent. After his election as a Member of Provincial Assembly he occupied various political posts including that of Advisor, Minister and Speaker for a long period of time. Except for one all reported cases in which the respondent had appeared relate to the period prior to the period 1973-74. The respondent admitted in his cross-examination that income from property was his principal source of livelihood. , 22: I am afraid mere casual practice in profession would not qualify the respondent as a professional. The copies of the cause lists show that in a period of about two years only about twelve cases came up for hearing in the High E Court. The respondent appears to have shifted his focus from law to politics in which no doubt he has earned most laurels. Even till recent past the respondent had been the General Secretary of a major political party.
23. Much emphasis has been laid by Mr. Aitzaz Ahsan on the fact that the respondent has been awarded Hilal-e-Imtiaz by the President of Pakistan on 23-3-1996. Learned counsel for the petitioner has, however, pointed out that the citation shows that the said award was conferred in the field of public service and. Not profession of law. This contention of the respondent's learned counsel is fully supported by the citation itself which forms part of a booklet placed on record by the respondent The first thing to he noticed in this behalf is that the respondent has been acknowledged as a renowned politician but as a veteran counsel. The various offices held by him which except for two are all political offices have also been listed and the struggle for restoration of democracy has been recognized. Towards the end it has been stated that it was in the recognition of his long and meritorious public service that he was awarded Hilal--e-Imtiaz. Consequently, the award of Hilal-e-Imtiaz for services rendered by the petitioner in field other than law does not in any manner advance his case.
24. To reiterate, there is nothing on the record on the basis of which it can legitimately be held that the respondent is a person of- distinction in the profession of law. To borrow the words of Nasim Hassan Shah, J. (as he then was) in the case of Dr. Syed Farooq Hussain's case (supra). The respondent "can hardly boast of any practical experience of the practice of law at a high level, muchless be described as person who is among the top people of his profession which according to the Tribunal is a necessary ingredient for anyone claiming to be a person of distinction". Again the evidence shows that after 1972-73 profession of law ceased to remain principal calling and vocation of the respondent. He should have, by leading positive evidence, established his continuous appearance in a large number of cases before the Courts, substantial income from profession and continuous and serious devotion to profession of law which unfortunately is lacking iii the present case.
25. Faced with this situation,. Mr. Aitzaz Ahsan, learned counsel for the respondent argued that the definition given in the Houses of Parliament and Provincial Assemblies (Election) -Order (5 of 1977) should not be made a touchstone for determining the status of the petitioner as that law was applicable only to the first election to the Senate and not to any subsequent election. This contention of the learned counsel, though attractive, cannot prevail especially in view of the clear pronouncement of the Supreme Court in the case of Pir Shujjat Hussain Qureshi and another v Alhaj Races Ahmad Qureshi and others (PLD 1988 SC 1'18). In that case the appellant had been elected to a general seat of the Senate in the bye-election held in 1986. One of the questions before the Supreme Court was as to whether the Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) was an existing law. The answer to this question was given in affirmative by the Supreme Court in the following words: "President Order 5 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. The present appellant contested in the National Assembly Elections held under President Order 5 of 1977 in 1985 and lost. Thereafter, under section 77 of the Senate (Election) Act, 1975 read with Article 224(5) of the Constitution, by-election to the general seat of the Senate vacated by Makhdum Sajjad Hussain Qureshi was held in 1986. President Order 5 of 1977 was existing law when the said bye --election was held. Consequently the words used in clause (p) of Article 63(1) of the Constitution to the effect 'for the time being in .Force' meant the time when President Order 5 of 1977 was in force and the amendment introduced thereto or any other law in force for the general, election would affect the result so far as the appellant was concerned. "
It may be clarified that so far as the amendment brought about in the Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) by President Order No. 17 of 1985 whereby clause
(4) of Article 10 was added is concerned, the Supreme Court in view of the language of the amending provision came to the conclusion that Article 10(4) would not apply to the subsequent general elections. In the present case, however, we are not concerned with Article 10(4).
26. It is also to be seen that there is nothing expressed in Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) to show that its applicability was limited only to the first elections to the . Houses of Parliament after restoration of democracy. As President Order 5 of 1977 was alive when Article 270-A of the Constitution was enacted it continues to be a part of the corpus legal of this country till such time it is repealed or altered by F the competent Legislature as ordained by Article 270-A (3) of the Constitution. If the law-giver intended that President Order 5 of 1977 shall cease to be operative after the first elections had been held it would have been so provided in the instrument itself as was done in the .Case of amendment of Article 10(4). It is also a settled principle of interpretation of statutes that no implied repeal of any law should be readily accepted. See Crawford's "Statutory Constructions Sections 308 and 309", Bindra's "Interpretation of Statutes, 7th Edition, page 908" and Maxwell's "Interpretation of Statutes, 12th Edition, page 199".
27This argument cannot be accepted for another reason which is that in all cases in which a similar dispute has arisen the superior Courts and the Election Tribunals have applied the definition of professional and technocrats as given in Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977) to test the eligibility of a candidate. Some of these cases are Sh. Ehsan- ul-Haq Piracha v. Wasim Sajjad and others (PLD 1986 SC 200), Dr. Aon Muhammad Khan v. Lt.-Gen. (Retd.) Saeed Qadir and others (PLD 1987 SC 490), Dr. Syed Farooq Hassan and others v. Mumtaz Ahmad Khan and others (PLD 1988 SC 237), Muhammad Anwar v. Chief Election Commissioner, Islamabad and others (PLD 1991 Quetta 70) and Dr. Syed Farooq Hassan v. Mumtaz Ahmad Khan (1988 CLC 578) decided by Mr. Justice Nasir Aslam Zahid as Election Tribunal. It is pertinent to mention that though last three cases were in respect of the subsequent and not the first elections, yet the Courts applied the definition contained in Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977). I am not in a position to hold that these judgments were delivered per in curiam.
28. It is a matter of some regret to mention that keeping in view, the importance of this legal question this Tribunal had given notice to the learned Attorney-General for Pakistan to appear and state the position of the Federal Government. It is a matter of regret that the two Deputy Attorneys- General who appeared on two different occasions took up diametrically opposite positions. On 31- 10-1996 the learned Deputy Attorney-General stated that President Order 5 of 1977 was applicable only to first elections held after lifting of Martial Law while another Deputy Attorney-General had appeared on 23-12-1996 on behalf of learned Attorney-General and submitted that President Order 5 of 1977 was an existing law and was as such applicable to all elections.
29. Be that as it may, even if the definition as given in President Order 5 of 1977 be not applied, I cannot subscribe to the view of Mr. Aitzaz Ahsan that every person in the profession of law will qualify to be professional for the purpose of election to the Senate. It is not difficult to see the purpose behind the reservation of seats in the apex legislative body like Senate. Reference has already been made to the judgment of Shafiur Rehman, J. In the case of Dr. Syed Farooq Hassan and others v. Mumtaz Ahmad Khan and others (PLD 1988 SC 237) in this behalf. The reservation of seats is obviously meant not only to give representation to the professionals and technocrats in the Senate but also to make available their acumen, high knowledge and experience to the Senate itself. This purpose can -only be achieved if only those persons who are at apex of their profession and can es'ablish their qualification and experience at a high level, be allowed to contest the elections.
30. In view of the above, I have no option but to hold that the respondent was not a person of distinction in the field of law in the country nor was at the time of his election practising law at a high level as his principal vocation and G calling. He, therefore, could not be elected to the Senate on a seat reserved for Ulema, professionals and technocrats.
31. Having held that the respondent did not qualify to be a professional, the next question is as to what relief can be granted in the present proceedings, the learned counsel for the petitioner has emphasized that on the disqualification of the respondent, the only other candidate left in the field was the petitioner who should therefore be declared to have been elected in place of the respondent. I regret my inability to agree with the learned counsel. Admittedly, the respondent contested the election as a nominee of a major political party and the persons who voted to him can safely be assumed to have done so due to party discipline. There is no warrant for the assumption that if the respondent had not been in the field votes secured by him as nominee of PDF would have gone to the petitioner who was an independent candidate. Furthermore, there is nothing on the record to show that the lack of qualification of the respondent was notorious and known G to all the voters who had cast their votes in his favour with the object of throwing away their votes. It is pertinent to mention that at the time of scrutiny of the nomination papers no objection was raised to the candidature of the respondent. In Junaid Ahmad Soomro v.
Haji,Mehboob A.I Bhayo and others (PLD 1986 SC 698), it was ruled at page 712: "This Court has, in a series of cases, consistently 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 this disqualification; the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the decisions of this Court in such a situation the election as a whole must be set aside and a re-election ordered. "
The reliance was placed by the Supreme Court in its earlier decision in the cases of Rashid Ahmad Rahmani v. Mirza Barkat A.I etc. (PLD 1968 SC 301), Lal Muhammad v. Muhammad Usman and others (1975 SCMR 409) and Syed Saeed Hassan v. Pyar A.I and others (PLD 1976 SC 6). _As a consequence of the above discussion, the election of respondent to the seat reserved for Ulema,. Technocrats and Professionals in the Senate of H Pakistan is declared to be void. And hereby set aside. The Election Commission of Pakistan shall proceed to fill in the seat by holding re- election in accordance with law.
No order as to costs.