' The petitioner and the private respondents contested election to general Muslim Seats of U.C.
No,53, Multan Khurd, Tehsil Talagang, District Chakwal. The petitioner was declared returned at Serial No,8. The respondent No,2 filed an election petition to challenge the election of petitioner primarily on the ground that he was disqualified on the date of nomination from contesting the said election as he was retired from Pakistan Air Force on 28-12-2000. The said statement was admitted as to its factual aspects but it was contended by the petitioner that since on the date of election six months had elapsed, his election cannot be declared to be void. The learned Election Tribunal found that on the date of nomination i,e, 28-5-2001 the said period has not elapsed.
Election petition was accordingly allowed and the election of the petitioner was declared to be void. However, at the same time the respondent No,2 who had stood at Serial No,9 was declared to be elected. This was done vide judgment dated 16-4-2002.
2. On 28-10-2002 the learned counsel for the petitioner under instructions from his client stated that the writ petition will be pressed only vis-a-vis the declaration of respondent No,2 as a returned candidate.
3. Ms. Zahida Ameen, Advocate, learned counsel for the petitioner contends that there is neither any plea nor any evidence on record that the said disqualification of her client was so notorious; that it can be deemed that the electorate had the knowledge of the same and despite the said knowledge they voted for her client. Relies on the judgment in the case of Syed Saeed Hassan v.
Pyar Ali and 7 others PLD 1976 SC 6. Learned counsel for the respondent on the other hand contends that since his client had made a prayer that he be declared returned, the learned Election Tribunal has acted within his jurisdiction by declaring his client as such.
4. I have gone through the copies of records, appended with this writ petition. I find that the learned counsel for the petitioner is right in contending that there is no plea and no evidence on record that the said disqualification of the petitioner was notorious. I find that no oral evidence was led by the respondent No,2 and he himself even did not enter the witness-box. The impugned judgment, of course, is silent as to why the learned Tribunal treated the votes cast in favour of the petitioner by a majority as against the respondent No,2 have been treated by him as thrown away votes. I also find that the criteria laid down in the said judgment of the Honourable Supreme Court of Pakistan had been consistently followed eversince by the apex Court as well as this Court. The present case does not meet the same. The writ petition accordingly is allowed partly. The impugned judgment of the learned Election Tribunal dated 16-4-2002 is declared to be without lawful authority inasmuch as it purports to declare the respondent No,2 (Abdul Majeed) as a returned candidate at 8th position in U.C. No,53, Multan Khurd,.Tehsil Talagang. The result would be that the competent authority shall hold a fresh election to the said general seat in U.C. No,53. No orders as to costs.
5. A copy of this judgment be immediately remitted to the Secretary, Election Commission of Pakistan, Islamabad and also to the learned District Returning Officer, Chakwal.