P L C 2004 Supreme Court 353 (PLP)

Date of hearing: 23rd February, 2004. IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Listed application has been moved alongwith appeal filed by appellant under section 67(3) of the Representation of the People Act, 1976 challenging the judgment dated 16th February, 2004 passed in Election Petition No.59 of 2002 by the Election Tribunal, Lahore whereby the notification dated 20th October, 2002 issued by the Election Commission of Pakistan declaring the appellant as returned candidate from the Constituency PP‑156, Lahore (XX) has been set aside and cancelled. Consequently respondent No. 1 has been declared to be elected from the Constituency PP‑156 (XX). In the application, interim relief has been prayed to the following effect:‑‑ "It is therefore, respectfully prayed that operation of the impugned judgment dated 16‑2‑2004 passed in Election Petition No.59/2002 by learned Election Tribunal, Punjab, Lahore, de seating the petitioner from Constituency No.PP‑156 Lahore (XX) may kindly be suspended or in any case the oath to be taken by respondent No. 1 may kindly be stayed."

2. Precisely stating the facts of the case are that appellant alongwith respondent No.1 and others contested the election from the Constituency PP‑156 Lahore (XX). Appellant was declared successful as he secured 11716 votes. Election of the appellant was challenged by respondent No.1 being the next candidate who has secured highest votes i.e. 10711, after appellant. Initially the candied true of the appellant was challenged by respondent No.1 by. instituting a writ petition on the ground that as he was not holding the degree of Graduation at the time of filing of nomination papers, he was not qualified to contest the election. Petition was dismissed in view of availability of alternate remedy of challenging the elections by filing Election Petition. Thus, respondent No. 1 filed election petition which came up for hearing before the Election Tribunal, who after recording the evidence produced by the parties, both oral and documentary, by means of impugned judgment held that the appellant was disqualified to contest the election being not Graduate, consequently, respondent No. 1 was declared as a returned candidate being the next candidate who had secured highest votes next to appellant.

3. It is informed that before filing of appeal, the Election Commission of Pakistan has de‑notified the appellant by issuing notification in favour of respondent No.1. For such reasons, learned counsel appearing on behalf of appellant stated that he would confine his request for interim relief to the extent of restraining the respondent No.1 to take oath pending decision of appeal.

4. It is urged on behalf of appellant that as his disqualification of not being holder of the degree of Graduation was not notorious therefore, the voters were not aware about it and in such situation an opportunity should have been afforded to the electors for fresh election of their representative instead of throwing away their votes, as per the consistent practice .of this Court. Reliance has been placed by him upon the judgments reported as Rashid Ahmed v. Barkat Ali PLD 1968 SC 301; Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Muhammad Afzal v. Muhammad Altaf Hussain 1986 SCMR 1736; Iqbal Zafar Jhagra v. Khalil‑ur‑Rehman 2000 SCMR 250 and Ahmed Saeed v. Election Tribunal for Kasur at Okara 2003 SCMR 1611.

5. On the other hand,, learned counsel appearing for respondent No.1 vehemently opposed the request of the appellant and stated that as respondent No.1 had secured 10711 votes, therefore, he, being the only qualified candidate, cannot be restrained from taking oath of the office of M.P.A. According to them as far as the question of notoriety is concerned, it is to be considered by making reference to the evidence, which has been produced on record before the Election Tribunal. They stated that as the appellant had been disqualified for not holding the degree of Graduation, therefore, until the appeal is decided, the constituency cannot be left un represented and if appellant succeeds in appeal, he will get relief with all consequences.

6. We have heard learned counsel for both the sides and have also considered their respective contentions. It may be noted that in view of the stand taken by the learned counsel for appellant that he would confine his request for interim relief to the extent of latter portion of the prayer clause of the application namely "the respondent No.1 be restrained from taking oath", the scope, of controversy between the parties had become narrow because now the impugned judgment is not to be suspended as a whole. The appellant's counsel has confined his request for interim relief obviously for the reason that appellant before the institution of appeal has been de notified by the Election Commission of Pakistan by issuing notification dated 17th February, 2004 declaring respondent No. 1 to be the successful candidate in his place. It is equally important to note that said notification has not been impugned in instant proceedings for the time being, however, consequences of non impugning the notification shall be considered later on at the time of hearing of main appeal but at this stage, prima facie, without prejudice to the case of appellant on merits, inference can be drawn, subject to all just exceptions, that the appellant primarily has been found disqualified to contest or represent the voters of his constituency. So long, this position prevails and appeal is not decided, the constituency cannot be left without representation particularly in view of another important fact that the respondent No.1 has lost election only with the difference of 1005 votes, therefore, while striking out the balance between the numbers of votes secured‑by appellant and respondent No.1 during the course of polling, it‑ can be safely held that if for any reason appellant had been declared disqualified then at least respondent No. 1 who had not lost the elections by a considerable margin can represent the constituency. It is important to note that before the Election Tribunal appellant had not filed any petition for recrimination nor there was any request by any of the respondents to declare the elections void as a whole, therefore, the Election Tribunal in exercise of jurisdiction conferred upon it under Article 69 of the Representation of the People Act, 1976, while declaring the election of the appellant as void, granted relief to respondent No.1 to replace him. As after the announcement of the judgment, the respondent No.1 has been notified to be a successful candidate by the Election Commission of Pakistan, therefore, this fact constitutes a strong factor in his favour and for such reasons balance of convenience also lies on his side. In case at this stage the constituency is left without representation it would amount to deny the rights of voters, guaranteed to them by the Constitution, therefore, we see no reason to accede to the request of the appellant's counsel by restraining respondent No. 1 from taking oath.

7. It may be noted that in the cases which have been relied upon by the learned counsel for appellant, the Election Tribunals had declared the election void as a whole, whereas in instant case Election Tribunal, after having taken into consideration the evidence on record, has declared the election of appellant as void only. Therefore, the judgments relied upon by the learned counsel for appellant would be considered in depth at the time of hearing of the appeal. Thus for the foregoing reasons, application for interim relief is dismissed. However, office may fix the main appeal for hearing at an early date, subject to soliciting necessary approval from Hon'ble Chief Justice. S.A.K./A‑19/S Application dismissed.