1987 PLP 1169 (SCMR)

‑‑‑O. XX, R. 1‑‑Stay‑‑Grant of‑‑Statutory appeal as of right‑‑Prima facie case‑‑Election dispute‑‑Appeal to Supreme Court‑‑Suspension of Order of Election Tribunal‑‑Age of returned candidate for National Assembly disputed in Election Petition‑‑Tribunal itself feeling difficulty in finding satisfactory evidence on record as to questions (i) whether alleged disqualification was known to voters and (ii) whether finding on issue of age of appellant would be gone into in light of evidence on record in statutory appeal by right‑‑There being prima facie case for interference so far as interim stay was concerned, operation of impugned order suspended. Fakhurddin G. Ebrahim, Senior Advocate Supreme Court, Mr M. Bilal Advocate Supreme Court and Manzoor Ilahi, Advocate‑on‑Record for Appellant. Bashir Ahmad Ansari, Advocate Supreme Court for Respondents. ZAFFAR HUSSAIN MIRZA, J.‑‑Appellant Nawabzada Salahuddin was declared successful and was notified as the returned candidate in the election to the National Assembly of Pakistan from Constituency No. NA‑16, Mansehra II. Begum Fakharuz Zaman Khan respondent No.1 herein challenged the election of the appellant in an election petition which was accepted by Mr. Justice Fazal Elahi Khan, Election Tribunal by the impugned order in this appeal, dated 5th March, 1987, whereby he held that on, the nomination day the appellant being of the age below 25 years by 28 days was not qualified to be a member of the National Assembly of Pakistan. The election of the appellant was accordingly set aside. The learned Tribunal further held that as the disqualification which the appellant suffered from was notorious, respondent No.1, who secured the next highest number of votes at the election was entitled to be declared as the returned candidate to the seat in question.

2. It is contended on behalf of the appellant that the decision of the learned Tribunal on both the crucial issues arising in the election petition are erroneous inasmuch as, certain documentary evidence having important bearing on the question of age has been totally ignored. It is further submitted that in any case no evidence worth the name was produced in support of the plea that the alleged disqualification of the appellant was widely known among the electorate and was notorious so as to attract the rule of 'thrown away votes'. On behalf of the respondent No.1 these contentions were controverted and the order of the Tribunal was supported.

3. After hearing the learned counsel we feel prima facie that the Tribunal itself felt difficulty in finding satisfactory evidence on the record as to the question whether the alleged disqualification of age was known to the voters. Also the question whether the finding on the issue of age of the appellant would be gone into in the light of evidence on the record, as this is a statutory appeal by right. We, therefore, find prima facie case for interference so far as interim stay is concerned.

4. In the result it is ordered that the operation of the impugned judgment of the Election Tribunal shall stand suspended until the disposal of the appeal which shall be set down for final disposal during the second week of June 1987. M.I/S‑28/S Order accordingly.