P L D 1966 (W (PLP)

(b) that, in any case, even if the petitioner was not a validly nominated candidate, the respondent Bahawal Bux could not be declared as duly elected for the following reasons:- (i) That the invalid nomination of the petitioner had materially affected the result of the election as a whole. (ii) that the respondent Karim Bux withdrew in favour of the petitioner, which he would not have done if he was aware of the minority of the petitioner, and in that event he would have polled a considerable number of votes, (iii) that the respondent Bahawal Bux not having obtained a majority of votes, he could not be declared as a duly elected representative of the voters of this unit, and (iv) that the petitioner now having attained the age of 25 has been deprived of his right to contest the election for this seat.

4. It is admitted in the present petition that the correct date of birth of the petitioner Sana Ullah is 9-1-1940 and therefore, he was less than 25 years of age on the date of nomination, namely, 15-10-1964. Accordingly, on that date, he was not eligible to be elected as a member of the Electoral College in view of the provisions contained in clause (1) of Article 158 of the Constitution of Pakistan which prescribes the minimum age of 25 years in this behalf. Such being the case, the question of the petitioner being given any elaborate hearing by the Election Tribunal hardly arises. The ground now urged before us that if the petitioner had been given an opportunity by the Election, Tribunal, he would have brought counter allegations against respondent Bahawal Bux, seems to be an afterthought, as it is not mentioned in the writ petition itself. We consider, therefore, that the only question which calls for determination in this case is whether after declaring the petitioner's election as void, the Election Tribunal was justified in law in giving the further declaration that the respondent Bahawal Bux was the duly elected candidate from this unit.

5. The provisions dealing with the election petitions as contained in the Electoral College Act, 1964 (hereinafter referred to as the Act) and the Electoral College Rules, 1964 (hereinafter referred to as the Rules) do not provide any direct guidance in this behalf. Section 60 of the Act, while dealing with the question of the trial of election petitions, simply lays down in subsection (1), that "a Tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates at the election to which the petition relates". Subsection (2) of the same section prescribes that "subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit". Sub-rule 1-A of rule 36, however, goes somewhat further and lays down as follows: -- "The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." But even this rule does not lay down the principles which should guide an Election Tribunal in deciding whether only the election of the returned candidate is to be declared void or the election as a whole is to be set aside. One thing, however, does emerge, namely, that the election is to be declared void when the Tribunal is satisfied that "the result of the election has been materially affected". It would appear, therefore, that while determining the nature of the declaration which an Election Tribunal is called upon to give in a particular case, it has to consider whether the illegality or irregularity or corrupt practice alleged has materially affected only the election of the returned candidate or the election as a whole.

6. Now, in the present case there were three candidates in the field, namely, the petitioner Sana Ullah and the two respondents Bahawal Bux and Karim Bux. The petitioner obtained 225 votes, the respondent Bahawal Bux obtained 221 votes, and respondent Karim Bux did not poll any vote at all as he had withdrawn in favour of the petitioner. These facts are stated in Paragraph 3 of the present petition and they are admitted as being correct by respondent Bahawal Bux in the written statement filed by him in this Court. If it were known to the voters that the petitioner Sana Ullah was not qualified, it is clear that they would not have voted for him, and similarly, if this fact had been known to the respondent Karim Bux he would not have withdrawn in favour of the petitioner. It may be mentioned here that in the Electoral Roll the petitioner's age was mentioned as 28 years, and accordingly the voters as well as the respondent Karim Bux had no notice of the disqualification attaching to the petitioner at the time he filed his nomination paper to offer himself as a candidate at this election. It cannot be said as to how the 225 voters, who voted for the petitioner, would have cast their votes in the event of the petitioner not being in the field. It is purely a matter of speculation to say that the majority of these votes would have gone to the respondent Bahawal Bux. It is thus clear that this is not a case where only the election of the returned candidate was materially affected by reason of the disqualification attaching to him on account of his being less than 25 years of age on the date of the nomination; on the contrary, it is a case where the result of the election as a whole has been materially affected and it cannot be said at all as to which of the candidates would have polled the largest number of votes, if the petitioner's nomination paper had not been illegally accepted.

7. The question whether the votes cast in favour of a candidate who was suffering from a disqualification should be treated as being simply wasted or thrown away has been considered in some decided cases and on the basis of those decisions some very useful conclusions are summarized in paragraph 549 of Halsbury's Laws of England, Third Edition, Volume

14. These conclusions are to the following effect: -- "Votes given for a candidate who is disqualified may .in certain circumstances be regarded as not given at all or throw 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 willful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest 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 legal result that such a fact entailed disqualification. Votes given without 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 be seated and there must be a fresh election."

8. In the present case, as already stated by us, the voters had no notice of the infirmity attaching to the petitioner's candidature and accordingly the question of deducting any votes from the number of votes polled by the petitioner does not arise. This is a. clear case where the 225 votes cast in favour of the petitioner cannot be treated as votes wasted or thrown away by the voters. They are accordingly entitled to have a fresh chance of choosing a representative of their choice. This view was also adopted by the Court in India in Vashist Narain Sherma v. Dev Chandra and others (A I R 1954 S C 513) and in Jagdesh Chandra Jeshi v. Parkash Narain (4 E L R 205). This last mentioned case was in fact identical with the one before us. The election of the returned candidate was set aside on the ground that he was below 25 years of age and so was disqualified, but it was held that the petitioner who got the next highest number of votes could not be declared as duly elected as votes given for the unqualified candidate were not invalid votes and the petitioner could not be said to have received a majority of the valid votes.

9. On behalf of the respondent Bahawal Bux our attention was drawn to at least two cases in which the election as a whole was not set aside and the petitioner before the Election Tribunal was declared to be duly elected. The first case is that of Aman Ullah and another v. Election Tribunal, Gujranwala (P L D 1961 Lah. 907). While considering as to what order the Election Tribunal should have passed, the learned Judges observed that under rule 61 of the West Pakistan Basic Democracies Election Rules, 1959 an Election Tribunal was empowered to pass any of the orders mentioned therein, but it could not pass any of those orders arbitrarily or capriciously. They further observed that in the particular circumstances of the case it would have been better if the Election Tribunal had declared the election as a whole to be void, but the petitioner before them was himself to blame if such an order was not made, as he had not imp leaded the other returned candidates, the constituency being a multiple one. It seems to us that this case, far from being helpful to the respondent Bahawal Bux, really goes against him as the learned Judges expressed the view that the proper order to make would have been to declare the election as a whole to be void. They did not insist on this order being made for the reason that the other returned candidates in that multiple constituency had not been imp leaded as respondents before the Election Tribunal, and it would tot have been proper to pass any order against them without hearing them.

10. The second case relied upon by the learned counsel for the respondent is Salah Muhammad v. Muhammad Roz and others (P L D 1962 Lah. 68) to which one of us (S. Anwarul Haq, J.) was a party. The judgment of the Court was delivered by Shabir Ahmad, J. That was a case where the returned candidate was found to suffer from a disqualification at the time of filing his nomination paper, and the Election Tribunal had declared the petitioner before it to be duly elected. That declaration was attacked before the High Court on the ground, inter alia, that the declaration of the applicant before the Election Tribunal to be a successful candidate had resulted in deprivation of the right given by law to the electors to choose their representative because the verdict of the voters had been against him. While dealing with this argument it was observed that "the answer is that after the election result have been declared by the returning officer the contest, if any has to be before the Election Tribunal and the matter is to be decided according to the rules applicable and considerations of a general nature like the one urged have no relevancy". Earlier on another reason was given, namely, that it was open to a contesting candidate to assert before the Tribunal that even if the disqualified candidate was excluded from the contest, the petitioner before the Election Tribunal would not be the one with the largest number of votes, but as this was not done in that case, this argument could not be entertained in the High Court. Now, it seems to us that the decision in this case is distinguishable for two reasons (a) That the case was decided under the provisions of the Basic Democracies Order, 1959 and the question was not considered whether the result of the election as a whole had been materially affected by the participation of the candidate who was disqualified from taking part in the election; and (b) that the other contesting candidates in the field had not challenged the assertion of the petitioner before the Election Tribunal to the effect that once the votes cast in favour of the disqualified candidate were excluded as invalid votes the petitioner would stand elected as having secured the largest number of votes from among the qualified contesting candidates. The returned candidate in that case was a dismissed teacher of the District Board and the presumption underlying the judgment is that this disqualification was known to the voters. This is a presumption which does not arise in the present case, for we have already stated that in the electoral roll the age of the petitioner Sana Ullah was shown as 28 years, which meant that he was qualified to stand for election. We are, therefore. of the view that no benefit accrues to the respondent Bahawal Bux from the decision in the case of Salah Muhammad v. Muhammad Roz and others.

11. For the reasons given above, we have reached the, conclusion that although the petitioner Sana Ullah was not qualified to stand for election, by virtue of his being less than 251 years of age, on the relevant date, and although his election was) correctly declared as void by the Election Tribunal, yet that part of the order of the Election Tribunal by which the respondent s Bahawal Bux has been declared to be duly elected cannot be sustained in law, as the result of the election as a whole stands vitiated in the present case, and therefore the correct and lawful order to make undo sub-rule 1-A of rule 36 of the Rules would have been to declare the election as a whole to be void. Accordingly we would accept the present petition, declare the second part of the order of the Election Tribunal to be without lawful authority and instead substitute a declaration that the election as a whole was void. It would mean that fresh elections would have to be held from the unit concerned. In view of the legal questions involved, the parties are left to bear their own costs. K. B. A. Petition accepted.