1990 PLP 887 (MLD)

4. In support of the above petition, Mr. Rasheed A. Akhund, learned counsel for the petitioner, has vehemently contended that since the disqualification was not notorious, the proper order would have been to order re jection instead of declaring respondent No.l as elected in place of the petitioner.

5. On the other hand, Mr. Mumtaz Ahmed Shaikh, learned counsel for respondent No.1, has submitted that the objection as to the disqualification of the petitioner was taken at the stage of the filing of the nomination paper but the same was not accepted and, therefore, the above disqualification was known to the voters from the very inception and hence it is a case of throwing away of the votes by the voters who had cast their votes in favour of the petitioner and that the impugned order is the appropriate order.

6. Mr. A. Hafeez Lakho, learned Advocate‑General, Sindh, who is appearing for the official respondents, has also submitted that in the instant case notoriety was not such which warranted the declaration of respondent No.1 as elected instead of holding fresh election.

7. In order to appreciate the above respective contentions of the learned counsel for the parties, it may be pertinent to refer to subsection (1) and subsection (2) clause (e) of Section 37 of the Ordinance, which read as follows:‑ "37(1).‑ A person shall subject to the provisions of subsection (2) be qualified to be elected as, and to be a member if‑ (a) he has attained the age of twenty‑five years; (b) his name appears on the electoral rolls of the local area of the Council to which he proposes to contest election. (2) A person shall be disqualified from being elected as and from being a member if‑ (e) he is a salaried person in the service of Pakistan or in the service of a statutory body or two years have not elapsed since his retirement or removal from such service."

8. It may be noticed that in the above‑quoted clause (c) of subsection (2), a salaried person in the service of Pakistan or in the service of a statutory body is disqualified from contesting the election of a local council either if he is in service or two years period has not elapsed since his retirement or removal from such service. In the instant case, as observed herein above, the petitioner was an employee in Pakistan Steel Mills Corporation which is a company incorporated under the Companies Ordinance, 1984 and not a statutory corporation incorporated under some statute. However, Corporation Employees (Special Powers) Ordinance, 1978, which was gazetted on 19th March 1978 for the purposes mentioned in the said Ordinance, by virtue of Section 5 thereof declared service of the Corporation to be service of Pakistan and provided that every person in corporation service who is removed from service, or reverted to a lower post or grade, under Section 3 of the said Ordinance and not being a person who is on deputation to a corporation from any province, shall be deemed to be a civil servant for the purpose of Service Ttribunals Act, 1973 (LXX of 1973). It is by virtue of the aforesaid Ordinance, the provisions of Section 37 (2) (e) of the Ordinance are attracted to. The moot point for consideration is, as to whether the factum that the petitioner was disqualified being a candidate because of the fact that he was in service of the Pakistan Steel Mills Corporation and that at the time of the election in question, two years period had not expired from the date when he was removed which was subsequently converted into resignation, was a fact so notorious that the voters knew about it and in spite of knowing the above fact cast their votes perversely as to throw them away: Mr. Rasheed A. Akhund, learned counsel for the petitioner, has referred to the dictionary meaning of the word "notorious" given in the Shorter Oxford English Dictionary (Third Edition), which reads as follows:‑‑ "Notorious, a. 1548. (ad. med.L, notorious, f. notus known; see‑‑ORY.)1. of facts. Well known; forming a matter of common knowledge 1555. 2. of places, persons, etc. Well or widely known (now rare); famous 1555. b. Such as is generally, openly, or publicly known. Now rare. 1584.

3. Conspicuous; obvious, evident‑1770.

4. Used attrib. with designations of persons, deeds, etc., which imply condemnation: Well known, noted (as being of this kind) 1548.

5. Noted for some bad practice, quality, etc.; unfavourably known or spoken on 1579."

9. From the above‑quoted definition of the word notorious, it is evident that the notoriety should be such which should be well known, widely known and I' which generally, openly or publicly is known.

10. In the instant case, the learned Election Tribunal has not dilated upon this aspect at all but declared respondent No.1 as elected in place of the 1 petitioner instead of ordering fresh election which could not have been done unless the Election Tribunal would have recorded a finding of fact that the disqualification attached to the petitioner was so notorious that it was commonly known to the voters and in spite of the above knowledge they preferred to cast votes in favour of the petitioner and, thereby, throwing away their votes. Mr. Rasheed A. Akhund, learned counsel for the petitioner, has referred to the case of Lai Muhammad v. Usman and others, reported in 1975 S C M R 409, and paragraph 549 from Halsbury's Laws of England (Third Edition) on the question of disqualification of a candidate. Mr. Mumtaz Ahmed Sheikh, learned counsel for respondent No.l, has referred to the recent case of the Hon'ble Supreme Court, namely, Junaid Ahmed Soomro v. Haji Mehboob Ali Bhayo and others, reported in P L D 1986 S C

698. Mr. Rasheed A. Akhund has also relied upon the above recent judgment heavily, particularly on the observations contained at pages 711 and

712. In the above first case, a Division Bench of the Supreme court while declining a petition for leave against a judgment of the erstwhile High Court of Sindh and Balochistan commented upon the question of notoriety and also dilated upon the question, whether the next candidate who had obtained the second highest votes was to be declared as elected or fresh election should have been ordered. It may be pertinent to reproduce a passage from the above judgment, the above paragraph of Halsbury's Laws and a passage from the above recent judgment of the Supreme Court of Pakistan reported in P L D 1986 S C 698, which read as follows:‑ "So far as the next question whether the result of unseating Muhammad Usman is to seat Lai Muhammad who secured the next highest number of votes is concerned, support was sought in the High Court on its earlier decision in the case of Syed Seed Hassan v. Piar Ali Allana (P L D 1974 Note 73 at p.115). The High Court, however, held that in deciding the earlier case, no notice was taken of the decision of this Court in the case of Rashid Ahmed v. Barkat Ali (P L D 1968 S C 301) in which it was laid down as a general proposition of law that if the disqualification of successful candidate is not notorious, the votes given for him will not be thrown away so as to give seat to the candidate with the mext highest number of votes. According to the High Court, although Muhammad Usman had not attained the age of 25 years, the electorate had no reason to think so. His nomination paper had been accepted and his name appeared on the electoral list. There was no evidence before the Tribunal that any candidate sought to campaign on the basis that he was not qualified as to age, and it is impossible in the circumstances to hold that his disqualification was notorious:" Para. 549 from Halsbury's Laws of England: "Votes given to a disqualified candidate. Votes given for a candidate who is disqualified may in certain circumstances be regarded 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. Examples of the sort of disqualification that will cause votes to be thrown away are being an teen, 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 candidates 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(s)." P L D 1986 SC 698 relevant at 711‑712: "The Election Tribunal appears to have acted under clause (c) of clause (1) of section 67 in this case and accordingly declared the election of the returned candidate to be void and found respondent No.l to have been duly elected in his place. The question, however, which arises is whether the Tribunal was right in having acted under this clause in the facts and circumstances of this case? In this connection, I find that there is no evidence on record to indicate that the disqualification of the appellant was notorious or even known to the voters and that despite knowledge of the aforesaid disqualification they had proceeded deliberately and perversely to vote in his favour wherefor they could be held to have "thrown away their votes". On the other hand the evidence shows that the appellant had ceased all the work on the Government contracts quite some time before the nomination day and ostensibly had no interest left in them. Even respondent No‑1 did not challenge the validity of his nomination papers on the ground that he was disqualified on the basis of being a Government contractor. Thus 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 is declared elected in his place. According to the decisions of this Court in such a situation the election as a whole must be set aside and a re‑election ordered. See Rashid Ahmad Rahmani v. Mirza Barkat Ali etc. P L D 1968 SC 301, Lai Muhammad v. Muhammad Usman and others 1975 S C M R 409, and Syed Saeed Hassan v. Pyar Ali and others P L D 1976 SC

6. The dictum in these cases is fully attracted in the facts and circumstances of this case and, therefore, the Tribunal was wrong in basing itself on clause (c) of subsection (1) of section 67."

11. From the above‑quoted observations of the Supreme Court and the passage from Halsbury's Laws of England, it is evident that it is a well established principle of law that, if a successful candidate is to be unseated on the ground of his being disqualified at the relevant time the normal order would be re‑election unless the Election Tribunal or the Court finds that the disqualification was of such a nature which was known to the voters at the relevant time and in spite of having the knowledge they had cast their votes in favour of a disqualified candidate and thereby threw away their votes. In the instant case, in our view, the C disqualification was not such which was of a nature that it was known to the voters commonly at the time when they cast their votes. The disqualification is attached because of the deeming provision provided by the aforesaid Corporation Employees (Special Powers) Ordinance, 1978, otherwise, Pakistan Steel Mills Corporation was a company incorporated under the Companies Act and was not a statutory corporation.

12. We would, therefore, allow the above petition and declare the impugned order of the Election Tribunal to the extent of declaring respondent No.1 as elected, as without lawful authority and we would order respondent No.4 to hold fresh election for the Unit in accordance with law. The petition stands disposed of in the above terms with no order as to costs. M.BA./A‑726/K Petition allowed.,