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Election Petition, decided on 9th June, 1987.

--S.34--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Art.10(4) [as amended by President's Order 17 of 1985]--Constitution of Pakistan (1973), Art. 63 (1) (p)--Election of Senate--Disqualification from being elected or chosen as a member of Senate--Where a person had been a candidate for election to the National Assembly or a Provincial Assembly at the election and had not been elected to such Assembly such person, held, would be disqualified from being elected or chosen as, and from being a member of the Senate.

---Art.10(4) [as amended by President's Order 17 of 1975]--Senate (Election) Act (LI of 1975), S.34--Representation of the People Act (LXXXV of 1976), Preamble--Constitution of Pakistan (1973), Art. 270-A--Houses of Parliament and Provincial Assemblies Election Order (5 of 1977), whether existing law--Effect of Art.270-A of Constitution on Order 5 of 1977--Plea of returned candidate that President's Order 5 of 1977 was only meant for elections to Parliament and Provincial Assemblies to be held on 17th October 1977 and not for subsequent elections repelled--Words "in the month of October, 1977" were omitted by Art.2 of Houses of Parliament and Provincial Assemblies (Election) (Fourth Amendment) Order, 1977 on 3-10-1977- Apart from such legal position, by Art.270-A(1) & (3) of the Constitution, 1973, Order 5 of 1977 has been kept in force until altered, repealed or amended by competent authority.

---Art.63(p)--Words "under any law for the time being in force"- Meaning and scope--Words "for the time being in force" used in Art.63(p) do not connote period when last general elections were held, but also relate to period when such provisions were subsequently enforced--Provision of cl.(p) of Art.63 of the Constitution envisages a person who for the time being was disqualified from being elected or chosen as a member of Parliament or of Provincial Assembly "under any law for the time being in force"--Such disqualification would be imposed by law made by Parliament when Statute directly enacted disqualification or imposed prohibition upon certain persons to stand for election--Words "under the law" would signify those cases where disqualification was not to be found in Art.63(p) of the Constitution itself but must have been committed under law other than the law contained in Art.63(p) of the Constitution.

Mian Iftikharuddin and another v. Muhammad Sarfraz, Administrator, Progressive Papers Ltd. and another P L D 1961 S C 585; Amrao Jan v. Amin Muhammad 1972 S C M R 639; Malik Chulam Abbas v. Malik Mumtaz Khan P L D 1980 Lah. 718; Arif Iftikhar v. Lahore Improvement Trust P L D 1969 Lah. 1087 and Abdul Haleem v. Muhammad Amin Khan and another 1982 S C M R 418 ref.

---S.52--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Art. 10(4)--Senate (Election) Act (LI of 1975), S.34--Constitution of Pakistan (1973), Art. 63 (p)--Election petition against elected member of Senate--Such candidate, having already contested election as National Assembly candidate had lost the election--Plea of petitioner that disqualification of candidate being notorious, petitioner should be declared as elected to Senate seat, repelled--There being no evidence before Tribunal that any candidate including petitioner sought to campaign on basis that returned candidate was not qualified to contest election; it would be impossible, to hold that disqualification of returned candidate was notorious In absence of disqualification of elected candidate being notorious, to award seat to petitioner, held, would amount to disfranchise the voters--While ordering unsung of returned candidate, Election Tribunal ordered re-election.

Halsbury's Laws of England, 4th Edn. , Vol. 15, para. 930; Rashid Ahmed v. Barkat Ali P L D 1968 S C 302; (1961) 3 All E R 354; Sanaullah v. Election Tribunal, Gujrat and others P L D 1966 Lah. 97; Lal Muhammad v. Muhammad Usman 1975 S C M R 409; Syed Saeed Hassan v. Piar Ali Allana P L D 1974 Note 73 at p.115; Rashid Ahmed v. Barkat Ali P L D 1968 S C 301; Syed Saeed Hasan v. Piar Ali P L D 1976 S C 6; Muhammad Ilyas v. The Returning Officer 1981 S C M R 233 and Abdul Ghani v. Mumtaz Hussain and others 1986 S C M R 1701 ref.

This petition under Section 34 of the Senate (Election) Act, 1975 has been filed by the petitioner against the returned candidate Pir Shujaat Hasnain Qureshi, respondent No.1 and five other candidates. The petitioner and the respondents 1 to 6 were the candidates in the bye-election to a general seat of Senate from the Province of Punjab. The nomination papers were filed on 20-1-1986 and scrutiny took place on 21-1-1986. The polling to the bye-election of the Senate was held on 27-1-1986 whereby the respondent No.1 was declared to have been elected on .27-1-1986. The result of the election was notified in the Gazette of Pakistan on 28-1-1986. The respondent No.1 secured 202 votes while the petitioner secured 12 votes which is the next highest number of votes. The respondents Nos.2 and 3 secured 4 votes each while respondents 5 and 6 secured 1 vote each. The present petition has been filed on 9-2-1986 for declaring the respondent's election to be void on the ground that the respondent No.1 was a disqualified candidate under Article 10(4) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 read with Article 63(1)(p) of the Constitution of Islamic Republic of Pakistan. The brief facts are stated hereafter.

The respondent No.1 was a contesting candidate to the National Assembly seat from Constituency No.NA--113 Multan--III held on 25-2-1985 but he lost the same and from this Constituency Pir Muhammad Sanaullah Bodla was declared to be an elected member.

The respondent No.1 filed written statement. He admitted that he contested the general election held on 25-2-1985 but he lost the same. The allegation that he was disqualified to contest bye-election for Senate from the Province of Punjab was denied. The allegation that votes were thrown away is incorrect as there was no disqualifica tion at all. The respondent No.1 prayed for dismissal of the petition.

There are only three questions arising for decision in this petition. These issues are as under:-

(1) Whether respondent No.1 is qualified to contest the election to the Senate

(2) Whether the petitioner is entitled to be declared as elected to the Senate

(3) Whether petitioner was/is qualified to contest the election to the Senate on the day of nomination If so, what is its effect

In support of his allegation that the respondent No.1 was disqualified to contest bye-election to a general seat of Senate from the Province of Punjab, adduced some oral evidence, examined himself and Abdul Aziz, the Returning Officer and produced the following documents: -

The respondent did not produce any evidence in rebuttal.

The relevant statutory provisions may now be referred. Article 63(1) of the Constitution of the Islamic Republic of Pakistan lays down the disqualifications for membership of Majilis e-Shoora (Parliament). The relevant part of Article 63(1)(p) reads as under:-

"he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. "

Article 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 was promulgated by President's (Post -Proclamation) Order No.5 of 1977. The President's Order No.17 of 1985 was published in the Gazette of Pakistan, Extraordinary, dated 7th March, 1985 by amending Article 10 of President's Order No.5 of 1977 by addition of Clause (4) after Clause (3). The relevant provisions of President's Order No.5 of 1977 are as under:-

"10. Qualifications and disqualifications for membership of Parliament.

(1) ............. .

(2) ............. .

(3) ............. .

(4) A person shall be disqualified from being elected or chosen as and from being, a member of the Senate if, having, been a candidate for election to the National Assembly or a Provincial Assembly at the election held under this order, he has not been elected to such Assembly".

Article 63(1)(p) of the Constitution provides that a person shall be disqualified from being elected or chosen as, and from being a member, of Majlis-e-Shoora or of a Provincial Assembly under any law for the time being in force. Article 10(4) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977 provides that any person shall be disqualified from being elected or chosen as, and from being, a member of the Senate if, having been a candidate for election to the National Assembly or a Provincial Assembly at the elections held under this Order, he has not been elected to such Assembly.

The case as set up by the petitioner in his petition is that he raised objections before the Returning Officer that the respondent No.1 was disqualified to contest election as he was not elected in the general elections held in February, 1985. The Returning Officer appeared before me and stated that no one raised any such objection. In view of his categorical statement, I held that no objection was raised before the Returning Officer.

It may also be mentioned that there is no controversy between the parties that the respondent No.1 was a contesting candidate to the National Assembly from Constituency No.NA-113 Multan-III which was held on 25-2-1985. The respondent No.1 secured 49,357 votes while the returned candidate Pir Muhammad Sanaullah secured 60,874 votes. It is also not in dispute that Pir Muhammad Sanaullah won the election to National Assembly seat from NA-113 Multan-III and the respondent No.1 lost the election.

I agree with the learned counsel for the petitioner that the intention of the law-makers, which is clear from bare reading of the above provisions, is to disqualify a candidate to be elected or chosen as a member of the Senate who in the general elections has not been favoured with highest number of the votes polled in the constituency from which he contested the election to the National Provincial Assembly.

The submission of the learned counsel for the respondent No.1 is that P.O.5 of 1977 is not existing law as Presidential Order was only meant for the forthcoming elections to the Parliament and the Provincial Assemblies to be held on 17th October, 1977. This contention is devoid of force. President's Order No.5 of 1977 is still a good existing law and would hold the field till it is repealed.

The House of Parliament and Provincial Assemblies (Order), 1977 was promulgated by Presidential Order on 28-7-1977. Article 3 lays down that the elections to the two Houses and the Provincial Assemblies shall be held in the month of October, 1977, on the dates to be notified by the Commission under the Representation of the People Act, 1976 (Act No.LXXXV of 1976) as the case may be, under the Senate (Election) Act, 1975, with the prior approval of the Presi dent. The words "in the month of October, 1977" were omitted by Article 2 of the Houses of Parliament and Provincial Assemblies (Elec tions) (Fourth Amendment) Order, 1977 on 3-10-1977. The President's Order No.5 of 1977 was amended from time to time. By President's Order No.7 of 1984, Article 1, Clause (2) of the President's Order No.5 of 1977 was omitted. The legislature being aware of the position re-enacted some of the Articles of President's Order No.5 of 1977.

Apart from this legal position by virtue of Article 270-A (1) and sub-Article (3) of Article 270-A of the Constitution of Islamic Republic of Pakistan, the Order 5 of 1977 has been kept in force until altered, repealed or amended by competent authority. The relevant provision of sub-Article 270-A read:-

"All President's Orders Ordinances, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws in force immediately before the date on which this Article comes into force shall continue in force until altered, repealed or amended by competent authority."--

The President's Order 5 of 1977 was in force before the insertion of Article 270-A in the Constitution of Pakistan and therefore by virtue of Article 270-A and sub-Article (3) thereof it continues in force until it is altered, repealed or amended by the competent authority. Therefore, in my view, this Order is still in force and will remain in force unless altered, repealed or amended by a competent authority.

Mr. Qureshi has further submitted that the President's Order No.5 of 1977 has ceased to exist after the general elections held in February, 1985. This submission is devoid of force. It will be sufficient to say that President's Order No.5 is still good existing law and will hold the field till it is altered, replaced, or amended by appropriate legislature. The disqualifications under Article 10 of the President's Order No.5 of 1977 will be given full effect as President's Order No.5 of 1977 is still existing law.

Article 63(1) of the Constitution provides disqualifications for the candidates to the elections of Majlis-e-Shoora. Article 113 of the Constitution tends to bring candidates for the Provincial Assemblies on the same footing to these enumerated in Article 63.

Some of the disqualifications as provided by Article 10 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, were already in force when the general elections were held in February, 1985. However, sub-Article (4) was added on 7-3-1985 by President's Order 17 of 1985.

Mr. Khalid Qureshi has contended that the President's Order 5 of 1977 was not in existence when the bye-election was held. According to the learned counsel the words as used in Clause (p) of Article 63 "for the time being in force" mean the time when President's Order 5 of 1977 was in force and the amendment introduced in any other law in force after the general elections will not affect the result of the respondent No.1.

In Mian Iftikharuddin and another v. Muhammad Sarfraz, Administrator Progressive Paper:, Ltd, and another P L D 1961 S C 585, the phrase "for the time being in force" appearing in Martial Law Regulation (C. M.L.A s) No.72 came :gyp for consideration and it was held that the expression "for the time being in force" does not necessarily refer to the past and may will have a reference to what is to happen in future. It has been further opined that according to Stroud's Judicial Dictionary, Volume IV, the phrase "for the time being" may, according to its context, mean the time present or denote a single period of the time but its general sense is that of time indefinite and refers to an indefinite state of facts which will arise in the future and which may (and probably will) very from time to time. The facts of the case were that applicability of M.L.R. No.72 was questioned on the ground that it covered orders pawed between 10-10-1958 and 29-7- 1959, the date on which the Regulation came into force and that it did not apply to the impugned order dated 8-5-1961. It was held that the words "for the time being" do not necessarily refer to the past and may will have reference to what is to happen in future.

In the case of Amrao Jan v, Amin Muhammad (1972 S C M R 639) it was held that the words "for the time being" may mean "the time present or denote a single period of time, but it can also refer to an indefinite state of fact which may arise in future and which may vary from time to time".

In Malik Ghulam Abbas v. Malik Mumtaz Khan (P L D 1980 Lahore 718) it has been held that the phrase "for the time being' may, according to its context; mean the time present, or denote single period of time but it mare also refer to an indefinite state of facts, which may arise in future and which may vary from time to time. There may be no hard and fast rule and the legislatures intent in each statute has to be discovered. In that case the tenor of Section 21(f) of the Punjab Local Government Election Ordinance. 1979, was subject of interpretation and it was held that the candidates for the membership of the Local Council were placed on the same footing as the candidate or the membership of the Parliament or the Provincial Assemblies by subjecting them to the same qualifications in addition to those enumerated in Section 21. It was held that it could not be said that the phrase "for the time being in force" denotes only a single period time i.e., the qualification which exerted at the time of the enforcement of the Ordinance and not the subsequent disqualification which was the result of the Federal Legislature with regard to the members of the Parliament and Provincial Assemblies.

The submission of the learned counsel for the respondent No.1 is that Clause (p) of Article 63 has adopted disqualification under any law and not by any law, therefore, any other law prescribing such disqualifications cannot be read into the provisions as contained in Clause (p). This submission has no force. In the case of Arif Iftikhar v. Lahore Improvement Trust (P L D 1969 Lahore 1087) it was held that "there is no difference between the words "under the Constitution" and the phrase "by virtue of the Constitution". It means that both the sets of words are interchangeable". In this view of the matter the last words as used in Clause (p) of Article 63 of the Constitution, "under any law for the time being in force" as discussed above, the words "for the time being in force" do not connote the period when the last general elections held but also relate to the period when the relevant law was subsequently enforced. If this had not been the legislative intent then the language as used in Clause (p) of Article 63 would have been different, providing for being disqualified under any law in force at the time of enforcement of President's Order 5 of 1977 for being a candidate in election to the Houses of Parliament or Provincial Assemblies. The purpose of the aforesaid Clause is that a person who is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in force. The disqualification would be imposed "by" a law made by Parliament when the Statute directly enacts the disqualification or imposes a prohibition upon certain persons to stand for election. The words "under the law" would signify those cases where the disqualification is not to be found in Article 63(p) itself but must have been committed under law other than the law contained in Article 63(p) referred to above.

In the case of Abdul Haleem v. Muhammad Amin Khan another (1982 S C M R 418) the main contention of the learned counsel for the petitioner before the. Supreme Court was that the disqualification under the Presidential Order was regarding the then "forthcoming elections" which were to be held in October, 197 7 and because of the relevant time in 1979, the expression "forthcoming elections" could not be invoked, therefore, the disqualification in the Presidential Order could not be read by reference under Clause (g) of Section 28 of the Ordinance. The Hon'ble Supreme Court held as follows:-

"Similar questions came up for consideration before this Court in Umar Draz Cheema v. Nazar Muhammad and others (1980 SCMR 156) it was observed by one of us (Muhammad Haleem, Actg, C.J.) that the relevant provisions of law itself incorpo rates disqualification as provided by the President's Order No.5 of 1977 as also those provided in other similar laws'. It was further observed that 'the principle of interpretation is that what is enacted has to be given full effect and extraneous consideration cannot be employed to make it redundant or to detract it from the meaning which it conveys'. Whether looked at the language or underlying intention, the disqualification relied upon from the respondent's side stood incorporated by reference in Clause (g) of Section 28 of the Ordinance, 1979. No other discussion is necessary in this behalf. The argument of the learned counsel is thus without any force."

I have given my due consideration to the arguments advance by the learned counsel for the parties and I am in respectful agreement with the view expressed in the authorities cited by the learned counsel for the petitioner. The expression "for the time being in force would cover the disqualification in the present case.

Reverting to the last contention of the learned counsel for the respondent No.1, that there are inconsistencies between the disqualifi cations enumerated in Article 63 and enumerated in Article 10 of the Presidential Order. The perusal of the disqualifications as enumerated in Article 63 as well as contained in the Order 5 of 1977 do not indicate any inconsistency.

In the present petition, it has not been denied by the learned counsel for the respondent No.1 that the respondent No.1 had contested general elections and he lost the election sub-Article (4) of Article 10 was introduced on 7-3-1985. It means that the respondent No.1 had become ineligible to contest bye-election to a general seat of Senate from the Province of Punjab. As such the respondent No.1 who had contested the general elections having lost the same, was not eligible to contest for the general seat to the Senate and even if elected was disqualified to continue as Senator. The disqualification, as such, to contest such election is established.

On issue No.1 my finding is that the respondent No.1 was disqualified to contest the election.

Respondent No.1 did not press issue No.3, Respondent No.1 also did not press his Recriminatory Petition. As such it is dismissed as not pressed.

Having decided issue, the other issue relating to relief remains to be decided The petitioner had prayed that he be declared elected to the general seat of Senate. Mr. Khalid Farooq Qureshi has submitted that the disqualification of the respondent No.1 was not notorious and as such the doctrine of "thrown-away votes" did not apply. His submission is that on the facts and circumstances of the present case, the entire bye-election would be deemed to have materially affected if any returned candidate was disqualified, and as such the only proper order that can be passed is re-election for the bye- election, that is the election of the respondent-No.1 be set aside. Mr.Qureshi has submitted that at the time of filing nomination papers and their scrutiny by the Returning Officer, no objection had been raised by the petitioner or any other contesting candidate in respect of the nomination papers filed by the respondent No.1 and this clearly indicated that the disqualification of respondent No.1 was not notorious. The issue raised is whether the petitioner having obtained 12 votes against the 202 votes cast in favour of the respondent No.1 is entitled to be declared elected.

In this context it would be advantageous to reproduce relevant provision of Section 50 of the Senate (Election) Act, 1975 which reads as under:-

"Ground for declaring a person other than a returned candidate elected. --The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."

In this context paragraph 930 of Halsbury's Laws of England, Volume 15, (Fourth Edition), which has been repeatedly referred to in all the leading judgments on the subject, may be reproduced:-

"930. 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 to decide this 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 elector voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being a peer, alien or miner, or a person convicted of an offence and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence. 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 candidate's disqualification, and 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 take the seat and there must be a fresh election."

Reference may be made to judgment of Supreme Court in the case of Rashid Ahmed v. Barkat Ali (P L D 1968 S C 302). In this Barkat Ali respondent had been declared to be elected as a member of the Electoral College, but his election was set aside on the ground that he was not qualified to contest, as his name had been inserted in the electoral roll after the expiry of period prescribed for the same. Rashid Ahmed the candidate who secured the next highest votes was declared by the Election Tribunal to be duly elected in the vacancy. The Supreme Court after noting the statement of lash as contained in para 549 of Halsbury's Laws of England, Volume 14 (Third Edition), para 930 of Halsbury's Laws of England, Volume 15 (Fourth Edition) and the judgment in Re: Bristol South East Parliamentary Election (1961) 3 All E. R. 354 observed that:-

"In the instant case the votes could have had no notice of the fact that inclusion of Barkat Ali's name in the final electoral roll was in violation of sub-Rule (3) of Rule 22. hence, they cannot be disfranchised for no fault on their part. Votes given by them without notice of the above disqualification ought to be treated as good votes. As Barkat Ali had majority votes, the minority candidate cannot be declared elected.

For the reasons stated above, we must hold that by reason of failure of the Registration Officer to act in accordance with the provisions of the Rules, the result of the election has been materially affected and hence the election should be declared as a whole void. A similar question arose in the case of Sanaullah v. Election Tribunal, Gujrat and others (P L D 1966 Lahore 97) and the Court rightly ordered a fresh election."

In the case of Lal Muhammad v. Muhammad Usman (1975 SCMR 409), it was held as under:-

"So far as the next question whether the result of unseating Muhammad Usman is to seat Lal Muhammad who secured the next highest number of votes, support was sought in the High Court on its earlier decision in the case of Syed Saeed 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 given seat to the candidate with the next 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."

In another Judgment in the case of Syed Saeed Hasan v. Piar Ali (P L D 1976 S C 6) the facts were that appellant Syed Saeed Hasan had been declared elected as a member of the Sind Provincial Assembly, having passed 9860 votes as against 6965 votes polled by Piar Ali and Mr.Lutufullah respondents. The election was challenged by means of an Election Petition. The election of Syed Saeed Hasan was declared as void and Piar Ali was held to be entitled to be duly elected. Dealing with the issue, the Supreme Court had occasion to examine the provisions of Section 66 of the National and Provincial Assemblies (Election) Ordinance, 1970, which provides that where the election of a returned candidate is declared void, the Election Tribunal if satisfied that the candidate who secured the next highest votes is so satisfied, may declare him 'to be elected. The Supreme Court examined the meanings of the terms "satisfied" and "entitled". Section 50 of the Senate (Election) Act is in its term pari material with Section 66 above referred. According to the Supreme Court the term "entitled" refers to the right to be declared elected. It rejected the contention that once the Tribunal holds that the returned candidate has not been validly elected, then it must award the seat to the person having polled the next highest numbers of votes. In this context it was observed as follows:

"Having regard to the level of legal knowledge and awareness of the average voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast away their votes. The disqualification was certainly based on 'complicated facts and legal arguments' and as such did not justify the disenfranchisement of about 10,000 voters. The same view was taken by this Court in a recent judgment delivered whereby Petitions for Special Leave to Appeal Nos. K-138 (Lal Muhammad v. Usman Kennedy etc.)., K-143 of 1974 (Muhammad Usman Kennedy v. Lal Muhammad etc.) arising out of the same election to the Sind Provincial Assembly and directed against the appellate order of the High Court were dismissed vide judgment dated 17-12-1974 wherein a reference was also made to the High Court's judgment in the instant case. It appears, however that in its judgment in the latter case which was upheld by this Court, the High Court did appreciate that it had not taken note of this Court's decision in Rashid Ahmed v. Barkat Ali P L D 1968 S C 301 wherein the general principles contained in paragraph 542 of Halsbury's Laws of England Volume 14 were approved."

In the case of Muhammad Ilyas v. The Returning Officer (1981 S C. M R 233) it has been held 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. It has been further held that "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".

The abovenoted principle was followed by the Hon'ble Supreme Court in the case of Abdul Ghani v. Mumtaz Hussain and others (i986 S C M R 1701). What is to be seen by me in the present petition is whether the fact constituting the disqualification, namely, that the respondent No.1 had contested election for the National Assembly seat from Multan and lost the election was well-known and whether at the time of polling, the votes considered him to be candidate who lost in the general elections. The question would turn upon the knowledge that the voters can be deemed to have had as to the respondent No.1 who had lost the election, it will then be fair to infer that the votes were wilfully perversing in casting their votes in his favour despite this knowledge, even if it cannot be shown that they were aware of the legal result that such fact entitled disqualification.

There was no evidence before me that any candidate including the petitioner sought to campaign on the basis that the respondent No.1 was not qualified to contest the election and it is impossible in the circumstances, therefore, to hold that his disqualification was notorious. In the circumstances to award the seat to the petitioner, in the language of the Supreme Court, to disenfranchise the voters.

The respondent No.1 secured 202 votes and the petitioner secured 12 votes. It is impossible to foresee what the result would have been if respondent No.1 had not been in the field. There were also other candidates and it would not be possible to anticipate whether some or all the cast votes would not have gone to him. Hence such a question cannot be answered on speculation or conjectural basis. In the present case the contestants who actually fought the bye-election were 7 in number and not two which would have attracted any legal provision like Section 48(c) or 50.

In this view of the matter, there is no merit in this point canvassed by the learned counsel for the petitioner and the same is, therefore, repelled.

The result is that while ordering the unseating of the respondent No.1, I cannot declare the petitioner to be elected but will have to order re-election. The parties are left to bear their own costs.

Given under my hand land the Seal of this Tribunal, this 9th day of June, 1987 at Lahore.

A.A. /14/E Petition accepted

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