2009 PLP 1214 (MLD)

MAULVI ANWARUL HAQ, J.

The appellants, on the one hand and the private respondents, on the other, contested election to the seats of Nazim and Naib Nazim in U.C. No.156 Faisalabad. The appellants were declared returned with 2489 votes while the respondents Nos. 2 and 3 followed with 1382 votes. They filed an election petition to challenge the election of the appellants primarily on the ground that Muhammad Aslam appellant No.2 is not possessed of the requisite educational qualifications and the certificate appended by him with his nomination papers is forged. The appellants contested the election petition. Issues were framed. Evidence of the parties was recorded. Vide judgment, dated 8-2-2007 the election petition was allowed holding that appellant No.2 was not qualified to contest the election. Election of both the appellants was declared to be void and set aside. At the same time the respondents Nos. 2 and 3 were declared returned as Nazim and Naib Nazim of U.C. No.156 Writ Petition No. 1308 of 2007 filed by the appellants was dismissed by a learned Single Judge, in Chamber, of this Court, on 27-2-2007.

2. Learned counsel for the appellants contends with reference to the cases of Shaukat Ali and another v. District Returning Officer and another (PLD 2006 SC 78) and Bashir Ahmad Bhanbhan and another v. Shaukat Ali Rajpur and others (PLD 2004 SC 570) that there is no evidence on the record that the disqualification attributed to appellant No.2 was so notorious as to declare the votes cast by the majority of the constituency as thrown away votes. Learned counsel for the respondents Nos. 2 and 3, on the other hand, states that since the objection filed by his clients was reported in the Press, it shall be deemed that the entire constituency was aware of the disqualification of appellant No.2. He relies on some observations in the case of Ch. Aftab Ahmed and another v. Naveed-ur-Rehman and others (PLD 2004 SC 526).

3. We have gone through the records of the writ petition. We find that in para.10 of the election petition it has been stated that the challenge thrown to the qualification of appellant No.2 was reported in the Press, therefore, the voters have thrown away their votes despite knowledge. This allegation has been categorically denied by both the appellants in their respective written replies. However, we do not find any evidence on record in support of the said allegation. Bilal Ahmad respondent No.2 appeared as AW-3 and he has not stated a word that the voters of the constituency were aware of the disqualification.

4. Coming to the said contentions noted above, the plea raised by learned counsel for the appellants is fully supported by the said judgments of the Hon'ble Supreme Court being relied upon by him. We have also examined the said case of Ch. Aftab Ahmed and another referred to by the learned counsel for respondents Nos. 2 and

3. He relies on observations made in para.9 of the said judgment at pages 531 and 532 of the report. In the said paras the Hon'ble Supreme Court referred to the case of Bristol South East Parliamentary Election (1961) 3 All E.R.354) and noted the facts thereof, it was found that in the said case prior to the date of election, the election petitioner sent notices to all the persons who were entitled to vote stating the disqualification of his opponents and warning that all the votes given to .him would be thrown away. The notices were also published in the newspapers of the constituency and were pasted at the entrance of all the Polling Stations. It was on the basis of said evidence that the votes cast for the returned candidate were treated to be thrown away. However, in the present case, as noted by us above, there is no evidence whatsoever of the notoriety of the disqualification of the appellant No.2. The mere fact that a news item was published regarding the said objection would be of no avail when admittedly the objection was not entertained and was turned down by the Returning Officer.???

5. We, therefore, allow this ICA and set aside the judgment, dated 8-2-2007 of the learned Election Tribunal whereby the respondents Nos. 2 and 3 have been declared to be returned candidates. The result would be that fresh elections in the constituency shall be conducted to the said seats. No orders as to costs.

6. A copy of this judgment be immediately remitted to the Secretary, Election Commission of Pakistan, Islamabad, as also District Returning Officer, Faisalabad. M.B.A./M-430/L???????????????????????????????????????????????????????????????????????????????? Appeal allowed.