' The petitioners on the one hand, respondents Nos.3 and 4 on the second and respondents Nos.5 and 6 on the third, filed their nomination papers to contest election to the seats of Nazim and Naib- Nazim in Union Council No,146, District Gujranwala. The papers filed by respondents Nos.3 and 4 were objected to on the ground that Ali Hassan respondent No,3 is not a Matriculate and as such is not qulaified to contest the said elections. The objections were rejected and the papers were accepted by the Returning Officer. A voter of the constituency filed an appeal against the said order, dated 3-3-2001 to the District Returning Officer, Gujranwala which appeal was dismissed on 10-3-2001. The said voter then filed a Writ Petition bearing No,4482 of 2001. It was heard on 20-3- 2001 when notice was issued and it was observed that further proceedings in the election will be subject. To result of the writ petition. Ultimately the writ petition was accepted on 20-6-2001.
Meanwhile the election had taken place and whereas the petitioners secured 2646 votes. The respondents Nos.3 and 4 polled 3400 votes while the third panel ended with 11 votes. The respondents Nos.3 and 4 were accordingly declared elected, subject of course to the observation made in the order, dated 20-3-2001. The said declaration of result of the election was challenged by the petitioners by filing an election petition. Vide an order, dated 28-6-2001, the election petition was dismissed as having become infructuous, in view of the order of this Court, dated 20-6-2001.
The learned District Returning Officer also de-notified the respondents Nos.3 and 4. Now the District Returning Officer proceeded to issue a declaration on 30-7-2001 declaring that the petitioners stand returned to the said seats. Meanwhile an application was filed before the learned Chief Election Commissioner who vide his order, dated 25-9-2001 directed the District Returning Officer to withdraw the notification, dated 30-7-2001. The Notification was accordingly withdrawn by the learned District Returning Officer on 1-10-2001.
2. The learned counsel for the petitioners argues that the respondent No,1 had acted without lawful authoirty while passing the impugned order without hearing the petitioners. Further, contends that the learned D.R.O. Had proceeded to declare the petitioners as elected as a natural corollary of the order passed by this Court in W.P. No,4482 of 2000 on 20-6-2001 and as such the notification of his clients could not have been withdrawn. The learned A.A.-G. With reference to the report and comments filed on behalf of respondent No,2 submits that the Notification, dated 30-7-2001 was found to be violative of section 18-A of the P.L.G.E.O. Of 2000 as the said provision of law mandates a bye-election in case a seat of a member falls vacant. It has further been pointed out that a prayer was made to the Election Tribunal that the petitioners be declared elected but the same was obviously refused when the petition was dismissed. The learned counsel appearing for respondents Nos.4, 5 and 6 argues that in the circumstances of the case the order passed for a bye-election in the constituency is just and proper.
3. I have gone through the copies of the several documents appended with this writ petition, with the assistance of the learned counsel for the parties. The several events had taken place in this case, in the manner already narrated by me above. Now admitted facts of the case are that respondent No,3 was not found to be qualified to contest the election and this disqualification would also re-act upon his co-candidate i,e, respondent No,4. Thus both of them were disqualified from contesting the election. However, the fact remains that first, second and the third panel contested the election and the constituency expressed its will at the hustings, the majority, voted for respondents Nos.3 and 4. ,
4. What is to be seen in this case is as to whether as a result of order passed by this Court, which, of course has the effect of rejection of the nomination papers filed by the respondents Nos.3 and 4, notwithstanding the fact that the majority has gone against the petitioners, they can be declared to be elected as a result of the said order of this Court rejecting the nomination papers of the respondents Nos.3 and 4. In my humble opinion the answer is to be in the negative. It is by now settled that some grounds have to be made out for treating the votes of majority to be thrown away votes. It has to be alleged and established that the disqualification found attributable to a candidate was notorious and despite the knowledge of the said fact the electorate proceeded to vote for the said candidate. I may here refer to the case of Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6), wherein Mr. Justice Muhammad Afzal Cheema (as his Lordship then was) in his leading opinion agreed to by the other Honourable Members of the Bench headed by the Chief Justice, Muhammad Yaqoob Ali observed as follows:-- "It may be observed with respect that on the view taken by us we hardly find any point of conflict between the aforesaid provision and the principles laid down in Halsbury's Laws of England adopted and approved by this Court in several authorities. The well-known principle in substance is that "votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so-notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of the disqualification that will cause votes to be thrown away are being an alien, in fact, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
5. The application filed by the petitioners before the D.R.O. On 13-7-2001 for the relief of declaring them as returned candidates is available as Annexure-C to Writ Petition No,16597 of 2001. (this case was to be heard along with this petition and has been decided today). I have examined the same minutely. There is not a word in this petition that the electorate was aware of the said disqualification of respondent No,3. A copy of the election petition filed by the petitioners has been placed on record by the learned counsel for the-petitioners today and I have examined the same. I do not find any suggestion in this election petition that disqualification was notorious and known to the electorate. Of course, I have examined the present writ petition with the same result.
6. No gainsaying the fact that ultimately it is the constituency who has the right to elect a person of its choice and entire machinery of law relating to election works 'Cowards that end. In the absence of any allegation against the said entity i,e, the electorate that they proceeded to cast vote for a disqualified person with knowledge of the disqualification, the said electorate cannot be denied the right to , choose a person of its choice. Neeldess to state that the petitioners have not been able to gain a majority in the election already held and it will now be a violation of law in case the petitioners are thrust upon the electorate.
7. The order passed by the learned Chief Election Commissioner cannot, therefore, be said to be either improper or against law. On the other hand, it is not only lawful but eminently just as the constituency has been given a chance to elect its representatives. This writ petition accordingly is dismissed.
8. A copy of this judgment be remitted to the learned Chief Election Commissioner for making arrangement for a bye-election in the constituency. The learned D.R.O. And the learned R.O. Be directed to remain vigilant while scrutinizing the nomination papers filed by the persons wishing to contest the said bye-election to the seat of Nazim and Naib Nazim in Union Council No,146 District Gujranwala.