FAQIR MUHAMMAD KHOKHAR, J.---This petition for leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, is directed against judgment, dated 31-7-2003 passed by a learned Single Judge of the Lahore Court, Bahawalpur Bench, in Writ Petition No,3446 of 2002.
2. The petitioners and respondents No,1 to 8 were the contesting candidates for the election of Nazim and Naib Nazim of Union Council No,5, Model Town-B, Municipal Corporation, Bahawalpur.
They were grouped into five pairs as joint candidates for the seats of Nazim and Naqib Nazim of Union Council No.5, Model Town B, Municipal Corporation, Bhawalpur. They were grouped into five pairs as joint candidates for the seats of Nazim and Naib Nazim. On scrutiny of nomination papers, the Returning Officer found that the respondent No. 1, being a legal heir of his father late Ch. Muhammad Ashraf, the original borrower of United Bank Limited had been adjudged by the Banking Court to be a willful defaulter and was disqualified by virtue of section 14-.1 of the Punjab Local Government (Elections) Ordinance, 2000, (hereinafter referred to as the Ordinance).
Therefore, the nomination papers of the respondents No,1 and 2 were rejected. They preferred an appeal before the District and Sessions Judge/District Returning Officer, Bahawalpur, but without any success. They moved the Lahore High Court, Bahawalpur Bench through Writ Petition No,1146 of 2001 which was dismissed, by judgment, dated 13-3-2001. They filed C.P.L.A. No, 711 of 2001 along with Civil Miscellaneous Application No,611 for grant of stay order. By interim order, dated 16-3-2001, this Court suspended the operation of the orders impugned therein and directed for the acceptance of nomination papers of the respondents Nos. 1 and 2 by allowing them to participate in the elections provisionally.
3. The polling of the election took place on 21-3-2001. The respondents Nos. I and 2 secured highest number of 1824 votes as against 993 votes of the petitioners. The other three sets of respondents No,3 to 8 secured 980, 323 and 392 votes respectively. Therefore, the respondents Nos. 1 and 2 were declared, by the Returning Officer, as returned candidates for the seats of Nazim and Naib Nazim of the Union Council respectively in terms of rule 42(5) of the Punjab Local Government (Elections)
Rules, 2000 (hereinafter referred to as the Election Rules). A Notification, dated 28-3-2001 in their favour was also published by the District and Sessions Judge/District Returning Officer, Bhawalpur, as required by Rule 42(5) of the Rules. The C.P.L.A. No,711 of 2001 of the respondents No, 1 and 2 was finally dismissed and leave to appeal was refused by this Court, by judgment, dated 14-4-2001.
4. Thereafter, the petitioners filed an election petition, dated 25-4-2001 under Rule 71 of the Rules, before the District Judge, Lodhran/Election Tribunal for Bahawalpur District, for declaring them as returned candidates in place of the respondents Nos.1 and 2 who had been disqualified. Their election petition was allowed by the Election Tribunal/District and Sessions Judge, Lodharan, by order, dated 29-8-2002. The election of the respondents Nos.1 and 2 was declared to be void and the petitioners, who had secured the next highest number of votes, were declared to be duly elected as Nazim and Naib Nazim respectively of Union Council. The Election Commission of Pakistan, Regional Office, Lahore, also published a Gazette Notification, dated 7-9-2002 accordingly.
5. The respondent No,2 who had also been de-notified as Naib Nazim of the Union Council filed Writ Petition No,3446 of 2002/Bwp. Against the order of the Election Tribunal. The same was partly allowed by a learned Single Judge of the Lahore High Court, Bahalwalpur Bench, by the impugned judgment, dated 31-7-2003. The order, dated 29-8-2002 of the District Judge, Lodharan/Election Tribunal to the extent of declaring the election of respondents Nos. 1 and 2 to be void was maintained. However, the High Court did not agree with the Election Tribunal of declaring the petitioners as elected in place of respondents Nos.1 and 2 and directed a fresh election to be held for the seats of Nazim and Naib Nazim of the Union Council. Hence this petition for leave to appeal.
6. The learned counsel for the petitioners submitted that the High Court had erred in law in setting aside the order of the Election Tribunal whereby the petitioners were declared as dilly elected. It was argued that the interim order, dated 16-3-2001 passed by this Court for accepting the nomination papers of the respondents Nos.1 and 2 was provisional in nature. The C.P.L.A. No, 711 of 2001 of the respondents Nos. 1 and 2 was finally dismissed by this Court on 11-4-2001. Therefore, the respondents Nos. 1 and 2 could not be considered to be validly nominated candidates and the votes cast in their favour were thrown away. It was lastly contended that the respondent No,1 suffered from a notorious disqualification of being a long defaulter of a bank. The voters were fully aware of the same and also of the rejection of nomination papers of the respondents Nos.1 and 2 on that ground entitled to be declared as duly elected in view of Rule 83 of the Rules.
7. We, have heard the learned counsel for the petitioners at length. We find that the petitioners and the respondents Nos.1 and 2 were not the only contesting candidates for the seats of Nazim and Naib Nazim. There were other three pairs of joint candidates who had contested the election. The nomination papers of the respondents Nos. 1 and 2 were accepted by the Returning Officer under the directions of this Court. Therefore, the voters were entitled to exercise their right of franchise in favour of one or the other set of candidates. It is difficult to predict that had the respondents Nos. 1 and 2 been out of election arena, the votes cast in their favour would certainly have been polled in favour of the petitioners. The pattern of voting in such a situation would be a matter of speculation.
However, the fact remains that the returned candidates had secured 1824 votes while the petitioners had got 993 votes. Moreover, there was a marginal difference of only 13 votes between the petitioners and the third panel of the contesting candidates. The polling of election had already taken place before the case of disqualification of the respondents Nos. 1 and 2 was decided by this Court on 11-4-2001. In these circumstances, it is difficult to assume that the disqualification of the respondents Nos. 1 was notoriously known to the electors. The loan liability had devolved on the respondent No,1, being one of the legal heirs of his father who wash the original borrower from the Bank. The petitioners could not be declared to be elected merely by reason of rejection of nomination papers of the respondents Nos.1 and 2. The petitioners did not produce any positive evidence to prove that the voters had the knowledge of disqualification of the respondents Nos. 1 and 2.
8. This Court has already taken the view in a series of cases that where the disqualification of a returned candidate was not notorious at the time of polling so that the voters could have taken notice of the disqualification; the votes secured by such a candidate could not simply be thrown away for declaring the other candidate with next highest number of votes as elected in his place.
Generally, in such a case, the election as a whole is set aside and a fresh election is ordered. In a recent case of Elahi Bakhsh v. District and Sessions Judge, Rajanpur/Election Tribunal, Dera Ghazi Khan and others (PLD 2003 SC 268), a member of a Union Council was found to be a willful defaulter of Habib Bank Limited and was disqualified under section 14-1 of the Ordinance.
Nevertheless, the other candidate securing the next highest number of votes was not declared as elected. It was further held that notoriety of disqualification of a returned candidate at the time of polling was required to be established on record through positive evidence which was lacking. In Syed Saeed Hassan v. Payer Ali and 7 others (PLD 1976 SC 6) this (sic): "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the contest of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscillation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. "Satisfactory evidence" has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum "satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince.
"Entitlement" obviously refers to the determination of a person's right to a certain position, office or status based on the correct assessment of his claims in the light of the legal requirements and prescribed qualifications. According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like 'vested' prima facie refers to the right, and not to the possession. According to the Oxford English Dictionary, "entitle" has been used in the sense of furnishing with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionary "to entitle" in its usual sense is to give a right or title."
"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 found on some positive and definite fact existing and established at the time of poll as to lead to the reasonable inference or willful 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 and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office or 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." A similar view was taken in the cases of Sahibzada Tariquallah v. Haji Ehsanullah Khan and others (PLD 1996 SC 717), Lal Muhammad v. Muhammad Usman and others (1975 SCM R 409), Rashid Ahmed Rehmani v. Mirza Barkat Ali and others (PLD 1968 SC 301), Parkash Khandre v. Dr Vijaya Kumar Khandre and others (AIR 2002 SC 2345) and Dharam Vii v. Amar Singh (AIR 1996 SC 2314).
9. However, in Re Bristol South East Parliamentary Election (1961) 3 All E.R. 354), a Peer of the United Kingdom received a majority of votes recorded at the election and was returned as a duly elected member of Parliament in the House of Commons. Prior to the date of election, the election petitioner had sent out notices to all persons entitled to vote stating that the rival candidate being a peer of the United Kingdom, was disqualified from being elected a member of Parliament and that all votes given for him would, therefore, be thrown away. Similar notices were published in newspapers circulating in the constituency and were posted at the entrance of the polling stations.
A Queen's Bench Division found, on the basis of evidence, that the facts which in law created the incapacity of the Peer to be elected a member of Parliament were known to the electors before they cast their votes. Therefore, the votes cast for the returned candidate were treated to have been thrown away which entitled the election petitioner to be declared as a duly elected member of Parliament for the constituency. In Halsbury's Law of England, 4th Edition, 1990 (Re-issue), Volume 15, para. 835 at page 617, the following statement of law appears:-- "Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away, and to decide this a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of willful 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 a peer, alien or minor. For the votes given for a candidate to be thrown away, the voters must, before voting, either have had or be deemed to have had notice of the facts creating the candidate's disqualification, and it is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification.
10. The petitioners could not place on record any material before the Election Tribunal from which it could be satisfied that they were entitled to be declared as elected under Rule 83 of the Election Rules. They even did not bother to make any averment in their election petition that, as a matter of fact, the voters of the Union Council were aware of the disqualification of the respondent No, 1 on or before the day of poll. In the facts and circumstances of the case, a fresh appeal to the electorate had become necessary. The view taken by the learned Single Judge in Chambers is plainly correct and is in conformity with the law already laid down by this Court. The impugned judgment being just and fair does not warrant any interference by this Court. This is not a fit case for grant of leave to appeal.
11. For the foregoing reasons, we do not find any, merit in this petition which is dismissed and leave to appeal is refused accordingly.