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Civil Petition for Special Leave to Appeal No, 127-B of 1980, decided on 14th October, 1980.
(On appeal from the Order of the Lahore High Court in L.C. A. 222 of 1980/W. P. 5300 of 1979, dated 19-5-1980).
--Art. 185(3) and Punjab Local Government Ordinance (VI of 1979), S. 17-Disqualification of candidate Fresh election-Disqualifi cation of candidate for election not notorious and depending upon legal argument or upon complicated facts and inferences-Candidate, even though unseated by reason of his disqualification, votes given for him will not be thrown away so as to give seat to candidate securing next highest number of votes.
Mohammad Ashraf v. Mohammad Ajaib P L D 1980 Lab. 311 ; Lal Mohammad v. Mohammad Usman 1975 S C M R 409 and Syed Saeed Hassan v. Pyar Ali and others P L D 1976 S C 6 ref.
M. A. Siddiqi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing : 14th October, 1980.
.-Lahore High Court while allowing petitioner's writ petition and setting aside the election of Subedar Barkat Ali, respondent No. 3, as a Member of the Union Council, Ward No. 3, Daryala Khaki Union Council No. 69, Jarmot Kalan, Tehsil Gujjar Khan, refused to declare the petitioner who had secured the next highest votes, as the successful candidate in the place of Subedar Barkat Ali on the principles laid down in Muhammad Ashraf v. Mohammad Ajaib (P L D 1980 Lah. 311), that the votes cast in favour of respondent No. 3 cannot be treated as thrown away votes, and consequently the election will have to be held afresh.
The facts of this case covered by the rule laid down by this Court in Lai Mohammad v. Mohammad Usman (1975 S C M R 409) and also in the case of Syed Saeed Hassan v. Pyar Ali and others (P L D 1976 S C 6) that the well-known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be found on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will caused votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprison merit 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 no be thrown away so as to give the seat to the candidate with the next highest) number of votes".
Since the judgment of the High Court is in full accord with the rule laid down by this Court, we find no merit in this petition and dismiss it in limine.
Petition dismissed.
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