' The private parties to this writ petition contested elections to the seats of Nazim and Naib Nazim in Union Council No,62 (Urban-26), Gujranwala. The respondents Nos.2 and 3 were declared returned vide a Notification, dated 28-3-2001 to challenge the said election, the petitioners filed an Election petition on' 18-4-2001. The election was challenged primarily on td e ground that Haji Muhammad Siddique, respondent No,2 had rot passed his Matriculation Examination and as such was not qualified to contest the election or to hold the said office. The petition was resisted by respondents Nos.2 and 3. Issues were framed. Evidence of the parties was recorded. The learned Election Tribunal accepted the election petition vide judgment, dated 12-12002 and directed that a re- election be held for the said seats. :2. The learned counsel for the petition contends that since his client had made a prayer in their Election petition for being declared elected upon the quashment of the election results of respondents Nos.2 and 3, the learned Election 'Tribunal was bound to declare them elected in terms of rule 80(c) of the P.L.G.E. Rules, 2000.
3. I have examined the copies of the record appended with this writ petition, with the assistance of the learned counsel for the parties. As per consolidated statement of result 3905 ballots were cast out of which respondents N;os.2 and 3 polled 1500 while the petitioner polled 1289. It is true that the petitioners had stated in their petition that they be declared elected. However, there is not a word in the evidence including the statement of Waseem Akhtar petitioner No,1, P.W.2 that the said disqualification of the respondent No,2 was known to the electorate. In fact, I find that he himself has stated that he came to know about the factum of presentation of forged certificate by the said respondent after the elections. Now rule is that unless and until there is evidence on record that the electorate was aware of the disqualification of the candidate, the votes cast in his favour are not to be treated as thrown away votes and the electorate is to be given a chance to elect a person of their own choice in case the election of the returned candidate is declared void. Reference be made to the case of Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6). I deem it proper to reproduce here the following excerpts from the opinion of Justice Muhammad Afzal Cheema (as his Lordship then was) 'appearing at page 35 of the report:-- "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 rinciples 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 "vote given for a candidate who is disqualified could be deemed to have in 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 disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony 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."
4. As stated by me above, there is no plea and there is no evidence on record that the said disqualification of respondent No,3 was so notorious that the electorate could be presumed to be aware of this. This Writ petition is thus without any force and is accordingly dismissed in limine.