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Writ Petition No. 1651 of 1965, decided on 17th April 1967.

Arts. 98 & 158 read with Electoral College Rules, 1964, rr. 35 (6), (b), (c) & 36‑Election to Electoral College‑Successful candidate less than 25 years Successfully challenged in election petition‑Contesting candidates only two in number‑Other candidate declared elected by Election Tribunal‑Finding of Tribunal, held, not to be "without lawful authority"‑Declaring election void as a whole not necessary [Sanaullah v. Election Tribunal, Gujrat P L D 1966 Lah.97 distinguished].

S. Ali Raza for Petitioner.

Iqbal Ahmad Qureshi for Respondent No. 1.

K. M. Pasha for Respondent No. 2.

Date of hearing: 17th April 1967.

This is a petition under Article 98 of the Constitution. The facts are these. The petitioner Allahyar Khan and respondent No. 1 Sardar Shah were candidates for election to the electoral college from Unit No. 896, District Lyallpur. The election was held on 5‑11‑64. Allahyar Khan received 262 votes and Sardar Shah polled 158 votes. Sardar Shah filed an election petition on the ground that Allahyar Khan was less than 25 years of age at the time of his nomination.

2. The learned Advocate for the petitioner raised two points before the learned Judge at the time of the admission of this petition. He contended, in the first place, that the finding as to the age of the petitioner was based on misreading of evidence. Secondly, it was contended that the election should have been set aside as a whole and that it was not a case in which the respon dent Sardar Shah should have been declared to have been duly elected. The learned Judge ruled out the first contention but admitted the petition for consideration of the second point.

3. The learned Advocate for the petitioner confined his argument to the second point, namely, that the election tribunal, in the circumstances of this case, should not have declared Sardar Shah to have been duly elected to the electoral college from the unit in question. In support of his contention he relied on Sanaullah v. Election Tribunal, Gujrat (P L D 1966 Lah. 97). On a proper analysis of this case, the principles deducible are: (1) that if the voters had no knowledge of the disqualification attaching to the candidate for whom they voted, their votes will not be thrown away so as to give the seat to the candidate with the next highest number of votes, and (2) that where the voters voted for a successful candidate in ignorance of his disqualification it is not a case where only the election of the returned candidate was materially affected but the result of the election as a whole was materially affected, and, therefore, the election tribunal should not have declared the candidate receiving the next highest votes to have been duly elected. We respectfully agree with the principle laid down by Anwar‑ul‑Haq, J. in the circumstances of that case.

4. In Sanaullah's case, there were three candidates in the field, namely, Sanaullah, Bahawal Bakhsh and Karim Bakhsh. Sanaullah obtained 225 votes, Bahawal Bakhsh 221 votes and Karim Bakhsh did not poll any vote as he had withdrawn in favour of Sanaullah. Anwar‑ul‑Haq, J. observed as under:‑-

"If it were known to the voters that the petitioner Sanaullah 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 Bakhsh 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 Bakhsh 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."

In the above circumstances, the learned Judge came to the conclusion that it was 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, but it was a case where the result of the election as a whole had been materially affected as it could not be said as to which of the other candidates would have polled the largest number of votes, if the petitioner's nomination paper had not been illegally accepted.

5. The circumstances of the present case are quite different. In the present case, admittedly there were only two candidates, namely, Allahyar Khan and Sardar Shah, for election to the electoral college from the electoral unit in question. It is true the voters voted in favour of the petitioner in ignorance of his disqualification that he was less than 25 years of age at the date of his nomination. If the fact of the disqualification of Allahyar Khan was challenged at the time of the nomination and it was held that he was less than 25 years of age, Sardar Shah would have been declared elected unopposed. On the other hand, if the objection did not prevail and the voters voted for Allahyar Khan, it cannot be said that they voted in ignorance of his disqualifica tion. At any rate, where there are only two candidates, it cannot be said that had the voters known the disqualification. of Allahyar Khan they would have voted for someone else, thee being only two candidates. The only candidate for whom, if they so liked, would have voted was Sardar Shah. We have come to the conclusion that the principle laid down in the case of Sanaullab would be generally applicable only in cases where there are more than two candidates.

6. For the reasons given above, we have no reason to hold that the election tribunal has acted without lawful authority in giving the declaration that the respondent had been duly elected to the electoral college from the unit in question. We, therefore, dismiss the petition with no order as to costs.

A.H. Petition dismissed.

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