' The petitioners filed an election petition to challenge the election of respondents Nos.2 and 3 to the seats of Nazim and Naib-Nazim in Union Council No,45, Rawalpindi. Vide a judgment dated 29- 1-2003 learned Election Tribunal allowed the said election petition and declared the election of respondent No,2 to be void. The petition to the extent of respondent No,3 was dismissed.
2. Learned counsel for the petitioner contends that learned Election Tribunal ought to have declared his client to be elected instead of the respondent No,2 as Nazim and further that the dismissal of the election petition to the extent of respondent No,3 is void inasmuch as per Rule XVI of the PLGE Rules, 2000, he was liable to be deseated alongwith the Nazim.
3. So far as the said first contention of the learned counsel is concerned, it has been consistently laid down by the Honourable Supreme Court of Pakistan that the votes cast by majority can be considered to be thrown away votes only if the disqualification suffered by the winning candidate was so notorious that it could be safely assumed that the majority being fully aware of the said disqualification proceeded to return him. Reference be made to the case of Syed Saeed Hassan v.
Pyar Ali PLD 1976 SC 6, Lal Muhammad v. Muhammad Usman 1975 SCM R 409, Muhammad Ilyas v.
The Returning Officer and others 1981 SCM R 233. Applying the said tests prescribed by the Honourable Supreme Court, I may suffice by referring to the Para. No,10 of the election petition signed and verified on oath by both the petitioners,. "that the petitioner came to know about the forged education certificate mentioned above after the election were over". Now if the petitioners who were in direct contest with the said respondent No,2 were not aware of the said disqualification, how can it be assumed that the majority who returned him was so aware.
Needless to state that apart from the said state of pleadings, there is nothing on record to suggest that the majority was aware of the said disqualification.
4. As to the said second contention learned counsel cites judgment in the cases of Nazim, Union Council No,6, Karachi South v. Election Tribunal, Sadar Town, Karachi 2003 M LD 382, Ch. Maqbool Ahmed v. Malik Falik Sher Farooqa, Additional District Judge/Election Tribunal PLD 2003 Lah.
138. Now I find that the learned Election Tribunal has opted to follow a judgment given by this Court in the case of Ch. Maqbool Ahmad v. Malik Falak Sher Farooqa, Additional District Judge/Election Tribunal PLD 2003 Lah.
138. To my mind learned Election Tribunal has not acted in an irregular manner by following the judgment of the Court which he is subordinate to.
5. I may humbly state here that Rule XVI pertains to a point of time when the persons who filed the joint nomination forms are not even candidates. The provision is only restricted to the rejection of the nomination form as a whole. Once a nomination paper is accepted the said persons became candidates and their names are mentioned in the list which is published by the Returning Officer.
These candidates then go to the constituencies and call upon the electorate to return them. It is the decision of the said electorates which is reflected in the result of the elections whereby the said persons are declared returned. To my mind once this process is completed and the majority expresses confidence in the said candidates then unless and until a disqualification is to be attributed to the said returned candidates or such other grounds as are prescribed by law are made out, the election of the said returned candidate cannot be declared to be void.
6. This writ petition is accordingly dismissed in liming.