2006 PLP 2250(2) (YLR)

SALIM KHAN, J.

Rashid Ahmad and Abdul Malik contended that respondents Nos.6 and .7 (Maulvi Taj-ud-Din and Amir Nawaz Khan) were declared returned candidates, on which respondents Nos.4 and 5 (Shaukat Khan and Muhammad Saleem) filed election petition and that election petition was accepted vide order dated 23-12-2005, that the election of respondents Nos.6 and 7 was declared void on the ground that respondent No.6 was not qualified, and respondents Nos.4 and 5 were declared as returned candidates. Hence this writ petition.

2. In the light of the arguments of the learned counsel for the parties and the perusal of record, and relying on our discussion included in the judgment written in Writ Petition No.9 of 2006, we proceed to decide the various points involved in this as follows.

3. It was contended by the learned counsel for the petitioners that the provisions of rule 68 in the light of rule 62 of the Rules were not properly applied and the petition should have been dismissed. It was further contended that the principle of sinker did not apply as the candidates were declared returned candidates and their names were duly notified, and that the disqualification of petitioner No.6 was not notorious before and at the time of the election and, therefore, respondents Nos.4 and 5 should not have been declared successful candidates and a fresh election could have been declared to be held.

4. The learned Presiding Officer of the Election Tribunal was the best Judge of the circumstances in the case and he has not opted to exercise his discretion to dismiss the petition under the rules. There is no cause on record for interference in the said order. As far the question of applicability of the doctrine of sinker, the respondent No.7 had to sail and sink along with his joint candidate, with whom he wanted to get the fruit of success in the election. It is not the result of election but the nomination for election which is to be taken into consideration for the purposes of applicability of the mentioned doctrine. Both the respondents Nos.6 and 7 were joint candidates which they had chosen by their own will and consent they were, therefore, jointly responsible for each other.

5. As the disqualification of respondent No.6 was not notorious among the public/voters before and at the time off election, no efforts were made by an body to make the disqualification publicly known to the voters, and; no objection was raised to the qualifications of respondent No.6 immediately after the submission of nomination papers, therefore, we hold that the disqualification of respondent No.6 due to Sanad was not notorious, and the right of franchise of the voters could not be snatched in these circumstances. The votes of the voters could not be considered as intentionally thrown away, and they were entitled to exercise their right of franchise according to their knowledge. The learned Election Tribunal, therefore, erred in declaring respondents Nos.4 and 5 as successful candidates in place of the respondents Nos.6 and 7, instead of declaring that fresh election be held. The petitioners had not submitted any election petition against the respondents Nos.6 and 7 and, prima facie, had no locus standi. But, they had a right to ask respondents Nos.4 and 5 to show the law under which they were holding, or were to hold the Offices, and, therefore, had the c locus standi for the purposes of this writ petition.

6. We, therefore, accept the present writ petition to the extent that the order of the learned Election Tribunal to the extent of declaration of respondents Nos.4 and 5 as successful candidates and non-declaring the holding of fresh elections is set aside. We accordingly, direct that the voters of the concerned Union Council be provided their right of franchise by holding fresh election, which is to be arranged by and under the directions of the Chief Election Commission of Pakistan. We order accordingly. H.B.T./133/P?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.