P L D 2003 Supreme Court 268 (PLP)

QAZI MUHAMMAD FAROOQ, J.

This petition for leave to appeal is directed against the judgment dated 4-12-2002 of a learned Single Judge of the Lahore High Court. Multan Bench, whereby Writ Petition No.2A6 of 2002 tiled by the respondent Hussain Bakhsh was allowed on the strength of an election-related principle enunciated in Rashid Ahmad Rehmani v. Mirza Barkat Ali and others PLD 1968 SC 301, the order dated 8-3-2002 of the Election Tribunal declaring the petitioner herein as a returned candidate was set aside and a fresh election was ordered in respect of a seat of a Muslim member in Union Council No.23 of Sakhi Sarwar.

2. Briefly, the facts of the case are that in the Local Government Election. 2000 the petitioner, the respondent Hussain Bakhsh and a few others were the contesting candidates for election to a seat of Muslim member (male) of Union Council No.23, Sakhi Sarwar. The respondent was declared elected, vide notification dated 6-1-2001, having obtained 513 votes a, against 477 votes polled by the petitioner. The notification was followed by an election petition filed by the petitioner wherein the respondent's election was challenged on the ground, inter alia, that he was a loan defaulter of Habib Bank Limited, Main Branch. Dera Ghazi Khan. The election petition was allowed by the Election Tribunal on 8-3-2002. the election of the respondent was declared as void on the said ground and the petitioner was declared elected. Feeling aggrieved, the respondent filed a writ petition which was partly allowed and while his disqualification was upheld the order declaring the petitioner as a returned candidate was set aside with the direction that the election be held afresh in accordance with law.

3. Having heard the learned counsel for the petitioner we are of the view that a case for interference is not made out. The impugned judgment is based on the principle laid down by this Court in the case of Rashid Ahmad Rehmani (supra) that where the factum of disqualification is not notorious at the time of polling, the votes secured by the successful candidate cannot be thrown away and the candidate securing next highest votes cannot be declared elected. The dictum was reiterated in several oft-quoted cases decided by this Court. In Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409 it was held that if disqualification of successful candidate is not notorious the votes polled in his favour cannot be thrown away by giving, seat to the candidate with next highest number of voters. Similar observations were made in Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 with reference to parameters of notoriety of disqualification of a returned candidate highlighted in paragraph 519 of Haisbury's Laws of England, volume

14. In Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698 the following observations were made in this context:-- "This Court has in a series of cases consistently held that where an Election Tribunal finds that a candidate who secured a majority of votes was disqualified, but the fact of his disqualification was not notorious at the time of polling so that voters could have taken notice of this disqualification; the votes secured by such a candidate cannot simply be thrown away so that the candidate securing the next highest number of votes declared elected in his place. According to the, decisions of this Court in such a situation the election as a whole must beset aside and a re-election ordered."

4. Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence which is lacking in the present case. There is yet another circumstance which goes a long way to show that the disqualification of the respondent was not notorious. The material on record makes it manifest that at the time of scrutiny of the nomination papers of the respondent no objection was raised against his candidature. Consequently, the petition is dismissed and leave refused. M.B.A./E-16/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.