P L D 1976 Lahore 302 (PLP)

(d) Since the issue : whether respondent No. 2 is debarred to be declared to have been duly elected, does not arise from the main pleadings of the parties, therefore, there being no such issues no decision was required to be made thereon. (e) Even if any such issue was framed by the learned Tribunal, it has no bearing in view of the fact that the procedure as laid down in, section 63 of the Ordinance was not followed by the appellant. (f) Unless the returned candidate secures complete majority of the votes polled the election as held cannot be set aside. Since the appellant won the election by a narrow majority and did not secure majority of the votes polled, therefore, the Tribunal was within its right to declare respondent No. 2, who got the highest number of the votes after the appellant, to have been duly elected. (g) The disqualification of the appellant to contest the election in December 1970, was fully known to the voters. It being notorious enough the votes cast in his favour cannot be given due consideration and as such respondent No. 2 was rightly declared elected.

7. We are afraid, none of the contentions raised above has any substance. According to section 51 of the Ordinance all contesting candidates are to be shown as respondents in the election petition. In addition to that if there is any allegation of corrupt or illegal practice against a candidate who did not contest the election, copy of the petition has to be sent to him by registered post. In the present case, it is not denied, the appellant did contest the election. His nomination papers were filed on 19-10-1970 and they were held to be in order after the scrutiny thereof. The order of the Returning Officer passed in this behalf was challenged by respondent No. 4, Sardar Ahmad. through a Review Petition filed under section 92 of the Ordinance before the Chief Election Commissioner but the same was dismissed. The election, as mentioned above, was held subsequently on 17-12-1970. It is also not denied that the appellant himself had challenged his disqualification, as stated earlier, before the elections were held in December 1970, through Writ Petition No. 1404 of 1970, which was disposed of on 7-10-1970 holding the apprehensions of the appellant as ill-founded. It was observed in the judgment that the fact : as to whether the petitioner suffered from any disqualification for the purposes of Legal Framework Order, 1970 would be determined by the Returning Officer at the relevant time. It is also admitted by the contesting respondent, who filed the election petition before the Election Tribunal that he himself impleaded the appellant as respondent in the said petition on the ground of his being a contesting candidate. If the appellant had not been included in the election petition then the same would have been thrown out being incompetent. He being the returned candidate was a necessary party to be impleaded therein. The contention, therefore, at this late stage, that the appellant being inherently disqualified could not be impleaded as respondent and as such cannot feel aggrieved against the order of the Tribunal and for that reason cannot file appeal against the same has no force and pales into insignificance in view of the above discussion. Whether the appellant was disqualified to contest the election at the relevant time, the fact remains that he did contest the election and having got the highest number of votes was announced as the successful candidate. The order in question has been passed against him adversely affecting his position as member of the Provincial Assembly. Therefore, under the law he is fully entitled to file appeal. Even otherwise according to section 64(3 of the Ordinance any person aggrieved by a decision of the Tribunal ca within thirty days of the announcement of the decision file appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure. The words, "any person" used in this provision do no necessarily relate to a patty in the election petition's proceeding before the Tribunal. Any person who is not a party to the proceedings can fee aggrieved against certain observations made by the Tribunal and as such would be entitled to file appeal against the order. The appellant's election has been held to be void and consequently he has been unseated. If he cannot feel aggrieved against the order of the Tribunal then, it is not known. who else will feel aggrieved. According to law, filing of an appeal is a substantive right. It has been held in number of cases that a person, though not a party to the original proceedings can file appeal ; provided he shows that his interest in a property has been adversely affected. Reliance in this respect can be placed upon H. M. Saya & Co. v. Wazir Ali Industries Ltd. P L D 1969 S C 65, Mr. Manzoor Qadir v. Mst. Amtul Hussain and 2 others P L D 1971 Lah. 537, H. M. Saya & Co. v. Wazir Ali Industries Ltd. P L D 1965 Kar. 603 and Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consolidation), Lahore and another P L D 1975 Lah.

942. In the present case the appellant was not a stranger to the proceedings before the Tribunal. He was made party in the election petition by respondent No. 2 himself as in his absence the said petition would have been dismissed being incompetent. Since his nomination papers were held to be valid and the Review Petition against the order of the Returning Officer passed in this behalf before the Chief Election Commissioner was dismissed and he contested the election and got the highest number of votes, therefore, e he being a contesting and returned candidate was a necessary party to the election petition. Moreover respondent No. 2 is estopped by his own conduct to raise this plea at this late stage, after having himself made the appellant a party in the election petition. This disposes of the contentions raised at number (a) and (b). The next contention raised at (c) is also not tenable. The provision as contained in section 63 of the Ordinance is not attracted to the circumstances of the case. It has never been the case of the appellant that the respondent was otherwise inherently disqualified to contest the election and if he had been returned his election would have been void as such. If this had been the position then the appellant being a returned candidate was obliged under the law to follow the procedure as laid down in the said provision. The learned counsel for respondent No. 2 has tried to argue at length t ha since the entitlement of his client to have been declared as elected was not challenged in accordance with the procedure as laid down in the said provision, therefore, the appellant was not competent to plead that C respondent No. 2 had been wrongly declared as elected. We are afraid, this contention does not get any support from the language of the provision as referred to above. It means that if the returned candidate considers that a candidate, other than him, is inherently disqualified to contest the election and his election as such would be otherwise void, then it is obligatory for him to raise such objection in writing after giving notice to the Tribunal within fourteen days from the commencement of the trial. Since the appellant] never challenged the entitlement of respondent No. 2 to contest the election, therefore, question of his following the procedure as laid down in the said provision does not arise. So far as the contentions raised at (d) and (e) are concerned, record of the Tribunal shows that appellant made an application before the Tribunal on 24-5-1975 praying for the framing of an issue relating to the entitlement of respondent No. 2 to be declared to have been elected. He also prayed for permission to lead evidence on this issue particularly. The record also shows, as stated earlier, that the relevant issue was framed by the Tribunal. Respondent No. 2 made statement that he did not want to produce any evidence on the said issue. The said application is admittedly a part of the pleadings and since the entitlement of respondent No. 2 to be declared to have been elected was challenged, therefore, the issue relating to his entitlement does arise out of the pleadings. It is also to be noticed that so far as the record is concerned. respondent No. 2 never questioned the maintainability of tie application filed by the appellant for framing the relevant issue. The contention that the said issue does not arise out of the pleadings is, therefore, devoid of any force. Even otherwise, according to the provision as contained in section 64 of the Ordinance the Tribunal was obliged to decide the question : as to whether respondent No. 2 was entitled to be declared to have been elected in place of the appellant, who was found to be disqualified at the time of the election. Subsection (1) of section 64 reads as follows :- "64.-(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order-- (a) dismissing the petition ; (b) declaring the election of the returned candidate to be void ; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void." 'The above provision clearly shows that the Tribunal is competent to declare the election of the returned candidate to be void and also to decide: whether the petitioner before it or any other contesting candidate can be declared to have been duly elected. We are of the view that even if there was no issue framed by the Tribunal in this behalf this aspect of the case was necessary to be decided in view of the pleadings of the parties. After the decision of the Supreme Court, as mentioned above, respondent No. 2 himself made an application before the Tribunal that in view ' of the disqualification of the appellant he may be declared to have been duly elected in his place. This application was contested and the issue arising therefrom was framed. Even if no issue had been framed the Tribunal was obliged to decide the question: whether respondent No. 2 was entitled to be declared to have been elected. In view of the discussion made above there being no force in the contentions raised at (d) and (e) they are hereby repelled. The learned counsel for the contesting respondent has vehemently argued that since the appellant did not secure absolute majority of the votes polled "In the election, therefore, he cannot pray for setting aside the election as a whole. He has contended while referring to certain judgments reported as Rashid Ahmad v. Barkat Ali P L D 1968 S C 301 and Sanaullah v. The Election Tribunal, Gujrat P L D 1969 S C 65 that election in those cases was set aside as a whole because the returned candidates had got absolute majority of the votes polled. He has also relied upon the dictionary meaning of the word 'majority'. So far as the said cases are concerned, this aspect of the case has not been decided nor argued before their Lordships. It appears to be per chance that the returned candidates in those cases had secured the absolute majority of the votes polled. In a recent case, reported as Raja Muhammad Afzal Khan v.Ch. Manzoor Elahi and 6 others (P L D 1975 Lah. 1276), the returned candidate Raja Muhammad Afzal Khan had not secured the absolute majority of the votes polled but nevertheless the election as a whole was set aside by the High Court on his appeal. According to the dictionary meaning, particularly Chambers Twentieth Century Dictionary, New Edition 1973, the word 'majority' means pre eminence; the great number; the difference between the greater and the less number . . . . Even according to Oxford Dictionary, 1933 Edition. relied upon by the learned counsel for respondent No. 2, the word, 'majority' means the greater number or the excess of the votes polled by the candidate. Moreover, the question: as to whether the returned candidate has secure absolute majority of the votes polled is not relevant for deciding: whether the election as a whole is to be set aside or not. The main question i n this regard would be that in the case of a disqualified candidate at the time of the election if he had not contested the election then how the result thereof would have been materially affected? It is true that in the present case the appellant did not secure the absolute majority; he got 14,461 as against 14,226 votes cast in favour of respondent No.

2. The third candidate got 7,710; fourth 5,109; fifth 5,078; sixth 978; seventh 196 and eighth 128 votes. If the appellant had not been allowed to contest the election or his disqualification had become known to the voters then who knows as to what would have been the result. Majority of the votes polled in favour of the appellant might have been polled in favour of the third or the fourth candidate or any other candidate; making any one of them successful. This being the position the contention raised at (f ) has no force. It has been contended by the learned counsel for respondent No. 2 that since the disqualification of the appellant to contest the election in December 1970, was fully known to the voters and the same being notorious enough the votes cast in his favour have been wasted and they cannot be given due consideration. According to him, in the circumstances respondent No. 2 has been rightly declared to have been elected. We are afraid, there is no substance in this contention in the circum stances of the case. As mentioned above, necessary issue with regard to the entitlement of respondent No. 2 to be declared to have been elected was framed by the Tribunal, but neither evidence to that effect was led nor arguments were heard thereon. This issue could be resolved after deciding: whether the disqualification of the petitioner was notorious enough to disfranchise the voters who cast their votes in his favour. If they voted for him in spite of full knowledge that he was disqualified to contest the election then certainly their votes are to be ignored. But if the disqualifica tion was not known to them, then their votes cannot be thrown away, as it would amount to disfranchise the voters which is not otherwise allowed by law. This aspect of the case has not been considered by the Tribunal. It has merely relied upon the decision of the Supreme Court holding the appellant to be disqualified at the time of election in December 1970. The appellant has prayed that since his disqualification was n< known; rather on the contrary on account of the protracted litigation was yet to be decided that he suffered from any such disqualification therefore, the voters were justified to vote in his favour. According to hit .even the Returning Officer held him qualified to contest the election at ,the Review Petition filed against the order of the Returning Officer before the Chief Election Commissioner was also dismissed. According to hit the voters, therefore, knew that he had been declared to be a valid candidate to contest the election. The conclusions arrived at in this behalf have been summarised in paragraph 549 of Halsbury's Laws of England, 3rd Edition "Vol. 14 as under "

549. Votes given to a disqualified candidate.-Votes given for candidate who is disqualified may in certain circumstances be regard as not given at all or thrown away and for so deciding 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 wilful perverseness on the part of the electors voting for the disqualified person. Example of the sort of disqualification that will cause votes to be thro, away are being an alien, infant, or a person convicted of felony a sentenced to a term of imprisonment exceeding twelve months a still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious a depends on legal argument or upon complicated facts and inference it would appear that even though the candidate may be unseated reason of his disqualification the votes given to him will not be thro away so as to give the seat to the candidate with the next high number, of votes. 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 It is not necessary to show that the elector was aware of the le result that such a fact entailed disqualification. Votes given with such notice are good. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot seated and there must be a fresh election." The para. as reproduced above has been relied upon in Rashid Ahmad v. Barkat Ali and Sanaullah v. Election Tribunal, Gujrat. In the first case the name of the returned candidate was added to electoral roll against the provision of rule 22(3) of Electoral College Rules 1963. It was held that the voters in the constituency could have no notice of the fact that inclusion of Barkat Ali's name in the final electoral was in violation of sub-rule (3) of rule 22 and as such they could be disfranchised for no fault on their part. It was further held that votes given by them without notice of the above disqualification has, he treated as good votes; and since Barkat Ali had obtained majority of the votes, therefore, the candidate securing less number of votes co not be declared elected. In the latter case, election of the returned candidate was challenged on the ground, that he was below 25 years of age or day when his nomination papers were filed. The fact of minority was, admitted by the returned candidate before the Tribunal where his election was challenged. The Tribunal after finding the returned candidate to be disqualified at the time of the election declared the candidate securing the next highest number of votes as having been duly elected and did not set aside the election as a whole. This decision of the Tribunal was. challenged before the High Court through a writ petition. It was held that since in the electoral roll the candidate was mentioned as 28 years of age, the voters had no knowledge of the disqualification attached to him at the, time he filed his nomination papers to offer himself as a candidate at the election. It was observed that in the circumstances it could not be said how the voters would have voted if it were known to them that their candidate was not qualified. It was held, that it was, therefore, not a case where only the election of the returned candidate was materially affected, but on the contrary it was a case where the result of the election as a whole, had been materially affected and, therefore, although the Election Tribunal was justified in declaring the election of the returned candidate as void further declaration by the Tribunal that the candidate securing the next highest number of votes as duly elected could not be sustained in law. It was further held that the correct and lawful order to make would have been to declare the election as a whole to be void. In the case of Raja Muhammad Afzal Khan, cited above, a similar view has been taken. In that case the allegation against the appellant (the returned candidate) was that he was a contractor on the relevant date engaged in doing work relating to Government activity and as such was not qualified to contest the election. It may be mentioned here that his entitle ment to contest the election was challenged before the Returning Officer, but the objection was not accepted and the appellant before the High Court. was held to be qualified to contest the election. The relevant part of the judgment is reproduced below for benefit : "I may therefore conclude that voters casting their votes for a candidate who is disqualified under the law, the disqualification being founded, on some positive and definite fact existing and established at the time of the poll the same being sufficiently notorious as to saddle the electors with knowledge thereof are deemed to throw away their votes and to mean not to vote for any one for that office as well, as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences, then even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election has to be declared void as a whole. Whether the disqualification was notorious that is to say was so widely known that the electors can be said to be aware of it is a question of fact and must be proved as such. In the present case the petitioner cannot be declared elected to the seat because- (a) The alleged disqualification had been held by the Returning Officer, not to exist and the electors, even if they were cognisant of it, had every right to act upon this decision. (b) The alleged disqualification was not, and in any case has not beers proved to be, notorious or known to the electors. (c) The alleged disqualification was not of such a nature as to give rise to presumption of notoriety. Where for the electors who voted for the appellant cannot be said to have thrown away their votes and to declare the petitioner elected would amount to disfranchising them for no fault of theirs." As held in the judgment cited above, whether the disqualification was notorious, that is to say, was so widely known that the elector can be said to be aware of it, is a question of fact and must be proved as such. In the present case, as mentioned above and admitted by respondent No. 2, no evidence was produced by him on the issue onus of which was to be discharged by him. He was obliged to show before the Tribunal that since the disqualification of the appellant was so notorious that the votes case in his favour were to be disregarded and consequently he was liable to b declared to have been elected. He has not brought anything on record to show that the disqualification on the part of the appellant was notorious: This fact alone can be sufficient to set aside the impugned order of the Election Tribunal. We may have remanded the case to the Tribunal to decide this aspect of the case, but since there is sufficient material on record to show that the disqualification was not notorious enough to disfranchise the voters who cast their votes in favour of the appellant, therefore, we have decided this issue ourselves. It is true that the disqualification period of two years. so far as the appellant was concerned, had not elapsed when he submitted his nomination papers. Objection was raised before the Returning Officer that since the appellant was not qualified to contest the election, therefore, his nomination papers may be rejected. This objection was not accepted. Even the Review Petition filed against this order before the Chief Election Commissioner was dismissed. It is also not denied, as mentioned above, that] the appellant himself challenged the factum of his disqualification before the High Court by filing a writ petition, but the same was rejected on the ground that the apprehension of the appellant prima facie was ill-founded; and the question : whether he suffered from disqualification would be determined by the Returning Officer at the relevant time. This being the position how it can be said that the disqualification of the appellant was notorious or otherwise known to the voters. As held in Raja Muhammad Afzal Khan's case, since the alleged disqualification had been held by the, Returning Officer not to be existing, be was exonerated of it and had every right to act upon his decision. The voters in the relevant constituency, after the decision of the Returning Officer as well as the Chief Election Commissioner dismissing the review petition, also had every right to vote in favour of the appellant in accordance with the above decisions. In the circumstances it cannot, therefore, be said that the disqualification on the part of the appellant was notorious. It cannot also be said that the electors who voted for the appellant threw away their votes and they cannot be held to have disfranchised themselves by voting in his favour. For the aforesaid reasons, respondent No. 2 cannot be declared to have been elected from Constituency No. P. P. 46, Jhang III to the Provincial Assembly of Punjab. The appeal is accepted and the impugned order passed by the Election Tribunal is hereby set aside. The result would be that the election from the said constituency stands set aside as a whole and fresh election would have to be held in the constituency. The parties are,. however, left to bear their own costs. S. A. H. Appeal accepted: