RAJA MUHAMMAD AFZAL KHAN Versus CH. MANZOOR ELAHI

1. MUSHTAQ HUSSAIN, J. ‑This is an appeal under section 50 of the National and Provincial Assemblies Elections Ordinance against an order passed by Mr. Muhammad Shafi, Election Tribunal, declaring the election of Raja Muhammad Afzal Khan from Constituency No. Gujrat 5, Punjab Provincial Seat No. 23 of the Punjab Provincial Assembly void and declaring Chaudhry Manzoor Elahi respondent as having been duly elected to the aforesaid seat.

2. Nomination papers for the election were filed on 19‑10‑1970 by a number of candidates and were scrutinised on 21‑10‑1970. An objection was taken by Chaudhry Manzoor Elahi to the nomination paper of Raja Muhammad Afzal Khan on the ground that he was disqualified under Article 9, clause 2(h) of the Legal Framework Order, 1970, since he was a Government Contractor. The appellant denied this accusation and filed an affidavit in support thereof before Returning Officer. Since the affidavit was not controverted by the respondent, the objection was over ruled by the Officer and the nomination paper of Raja Muhammad Afzal Khan was duly accepted.

3. The electors of the Constituency went to the Polls on 17‑12‑1970 and on 1912‑1970, the Returning Officer, declared the appellant e)ected to that seat having obtained 20637 votes as an independent candidate as against 14631 votes secured by the Pakistan Peoples Party's candidate Chaudhry Manzoor Elahi, 14310 votes secured by the Muslim League candidate Gul Nawaz, respondent and between 3000 to 1000 votes each secured by the other contesting candidates.

4. This election was duly notified by the Chief Election Commissioner on 31-12‑1970, and Raja Muhammad Afzal Khan, duly took his seat in the Provincial Assembly as a Member having been returned from the constituency referred to above.

5. An election petition was filed by Chaudhry Manzoor Elahi respondent against the appellant under section 50 of the National and Provincial Assemblies Elections Ordinance. 1970, for a declaration to the effect that the election of respondent No. 1 i.e. the present appellant is void and that the petitioner i.e. the present respondent No. 1 is entitled to be declared as duly elected. In the alternative it was prayed that the election as a whole be declared void.

6. The solitary ground on which the election of the appellant was challenged was that he was disqualified as, on the nomination day he was borne on the approved list of Contractors of D. W.. & C. E. (Army) G. H. Q., Rawalpindi, being a partner/managing partner of the firm Messrs Raja Muhammad Afzal & Co., which was executing the contracts named in paragraph 3(a) of the petition.

7. It was further alleged that since the appellant, his wives M. Balqis Begum and Mst. Salina Afzal are partners of the said Firm and as such have shares and interest in the contracts mentioned in the petition with the Government, he was hit by the provisions of clause (h) of subsection (2) of section 9 of the aforesaid Order at the time when he filed the nomination paper.

8. It was also contended that the aforesaid two wives of the present appellant were partners of the aforesaid Firm for the benefit and on account of their husband and they had interest and shares in the contracts which the said Firm had obtained for the execution of work undertaken by the Government.

9. This petition was vehemently contested by the answering respondent, who denied the aforesaid accusation, and inter alia referred to the Deed of Dissolution of Partnership between the aforesaid partners.

10. In a replication filed by the present respondent the Dissolution Deed relied upon by Raja Muhammad Afzal Khan was dubbed as a fabricated document.

11. The following issues were framed on 5‑2‑1972

(1) Whether respondent No. 1 was disqualified from being elected Member for the Punjab Provincial Assembly at the time of filing his nomination paper on the ground given in clauses (a) and (b) of para. No. 3 of the election petition?

(2) If so was the election void under the law?

(3) Is the petitioner entitled to be declared duly elected in the election in dispute?

(4) Should the election in dispute be declared wholly void?

12. Before proceeding further it would be appropriate to point out that a fresh set of issues were framed on 4‑11‑1972, by Mr. Ausaf Ali, who had succeeded the first Chairman of the Tribunal. This gentleman was found to be ineligible for appointment as Chairman of the Tribunal, wherefor, he was removed from office and all the orders passed by him beginning with 22‑9‑1972, and ending on 6‑1‑1973, were treated coram non judice and consequently void and inoperative. The issues framed by him, therefore, need not be stated as they are shorn of all legal backing.

13. As is clear from the language of the issues, and, of course, it has not been contested by the parties, that the onus to prove all of them lay on the petitioner in the election petition. The petitioner presented an application under Order XIV, rule 5, and section 151 of the Code of Civil Procedure for framing of an additional issue. It was disposed of on` 10‑9‑1973, against him. The issue unsuccessfully sought to be framed was "whether respondent No. 1 withdrew from the Firm known as Raja Muhammad Afzal & Co. and the said firm was dissolved on 16‑10‑1970? If so, with what effect?".

14. As is clear from the order the main plank of the petitioner's case for framing this additional issue was section 109 of the Evidence Act. The learned Chairman ruled that that section was 'not applicable in the present case because it is applicable inter se between that partners.' The word "that" seems to have been wrongly typed for the word "the". He was of the view that issue No. 1 was comprehensive and it was for the petitioner "to prove that respondent was a partner of a particular firm on a particular date".

15. The petitioner examined two witnesses besides himself, whereafter he closed his evidence by making a statement on 14‑1‑1975.

16. It may be borne in mind that the petitioner did not lead any evidence in support of the second part of Issue No. 1, in which it has been alleged that the two wives of the present appellant were partners of the firm for his benefit and on his account as their husband. There is not even a word in the statement of Manzoor Elabi appearing as P. W. 3 before the Election Tribunal making even an oblique reference to such a position. In these circumstances one need only refer to Sura IV Nissa, section 5, para. 32, Vol. I, page 185 of the Translation of the Holy Qur'an by A. Yusuf Ali (1964 Reprint)‑

17. "To men is allotted what they earn,

18. And to women what they earn."

19. In view of this mandate and absence of any evidence to the contrary the wives of the appellant cannot be held to be partners in Raja Muhammad Afzal & Co. for or on behalf of the appellant. This disposes of the second part of Issue No. 1.

20. I would like to take note here of the averment made in the replication that all the five partners, who are said to be close relatives and servants of Raja Muhammad Afzal Khan, though shown as partners in the documents, were mentioned merely to avoid income‑tax, and in fact they were represent ing the interest of Raja Muhammad Afzal Khan and they were doing so for his benefit and on his account. No evidence was led by the petitioner on this point and in fact it was not touched upon even in his own statement. This plea having remained completely unsubstantiated also goes by the board.

21. It has been asserted that there is a grave contradiction or incongruity in the stand taken by the appellant before the Returning Officer and the Tribunal in so far as before the former the appellant did not mention the dissolution of the firm at all and contented himself by swearing an affidavit to the effect that he was not a Government Contractor.

22. Manzoor Elahi had objected before the Returning Officer on the ground that the appellant was a Government Contractor and was, therefore, not qualified for contesting the election Raia Muhammad Afzal Khan denied this allegation and filed an affidavit to controvert it. The relevant portions of the affidavit are reproduced as under

23. "(2) That neither I whether by myself or by any person or body of persons in trust for me nor for my benefit on my account had any share or interest in a contract for the supply of goods to the Govern ment ;

(3) That neither I have any share or interest in the execution of any contract nor for the performance of any services undertaken by Government;

(4) That I am not affected in any manner or way by disqualification mentioned in section 9(2) of the Legal Framework Order, 1970, P. O. 2 of 1970 from being a Member of the Provincial Assembly of the Punjab."

24. On the basis of this affidavit the Returning Officer passed the following order on 21‑10‑1970 :‑

25. "I have examined this nomination paper in accordance with the provisions of section 14 of the Ordinance and decided as follows :‑

26. Objected to by Mr. Manzoor that the candidate is a contractor‑denied by him. Accepted. Affidavit appended to the effect that his candi dature is not hit by clause (2) of the Legal Framework Order, 1970."

27. This was a complete denial of the allegation that the appellant was disqualified on the aforesaid account and in plain language it meant that on the date of nomination he was not directly or indirectly engaged in business as a Government Contractor. This affidavit has to be taken on its face value and as a substantative piece of evidence.

28. It has been argued that the stand taken before the Tribunal that the appellant was a Member of the Firm referred to above, which was admittedly a Government Contractor, but he had ceased to be its Member before the relevant date is incongruous with the statement in the affidavit presented to the Returning Officer which contains a denial simpliciter of the allegation that he was a Government Contractor.

29. I have perused the affidavit carefully and have failed to discover any latent or patent incongruity or contradiction. The allegation before the Returning Officer being that he was a contractor on the relevant date engaged in doing work relating to Governmental activity, all that the appellant was required to say was whether he was such a contractor or not. He chose to submit that he was not such a contractor. He was not required to go into the details and to further clarify that although at one time hey was a contractor he had ceased to be so on the relevant date. This was neither required by law nor was it necessary for the proper and complete rebuttal of the allegation made against him before the Returning Officer. He was not called upon to state how he had ceased to be a contractor on the relevant: date. The submissions made of this score, therefore, fall to the ground.

30. The second and equally important reason for not upholding this sub mission of respondent No. 1 is that although the petitioner entered the witness‑box he did not advert to this aspect at all in his statement.

31. More important is the fact that when the present appellant entered the witness‑box he was not confronted with this previous statement of his at all despite the mandatory provisions of section 145 of the Evidence Act.

32. Sections 145 of the Evidence Act which is a complete bar to the using of the argument sought to be pressed into service by respondent No. 1 came up for consideration before the Supreme Court in Sikandir Hayat v. Fazal Karim (P L D 1971 S C 730) and Muhammad Yusuf v. S. M. Ayub (P L D 1973 S C 160) wherein the following position of law elucidated in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1964 Lah. 65) was cited with approval

33. "It is only in cases where the party goes into the witness‑box and makes a statement inconsistent with the previous statement that a duty is cast by the provisions of section 145, Evidence Act, on his opponent to confront him with his statement Inconsistent with the statement made in Court and if he does not do it at that stage then those previous statements can no longer be used as legal evidence to contradict his evidence."

34. This principle was also enunciated in the case of Bat Gandadhar Tilak and others v. Shrinivas Pandit and others (AIR 1915 P C 7). It was held in that case as under :‑

35. "On general principles it would appear to be sound that if a witness is under cross‑examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, saluiary and intelligible rule, and where a witness's reputa tion and character are at stake the duty of enforcing this rule would appear to be singularly clear'."

36. Chaudhry Manzoor Elahi appeared as P. W.

3. There is not one wordl in his examina lion‑in‑chief about the deed of dissolution of partnership being a forgery. This deed has not only been referred to in the written statement but a photostat had in fact been filed with it. Chaudhry Manaoor Elahi could, therefore, not have been oblivious of it or under the impression that the same will not be the main plank of Raja Muhammad Afzal's defence. Chaudhry Manzoor Elahi is a practising Advocate but it may be' emphasised that it did not require the experience, knowledge or ability of an Advocate particularly when he was assisted by a counsel to have realised that if the deed had to be dubbed as a forgery and was to be thrown out on that account a specific assertion must, to that effect, be made in the statement of the petitioner.

37. In this statement he decided to rely upon Raja Muhammad Afzal Khan not having told‑ "the Returning Officer that he had withdrawn from the partnership or that the firm had been dissolved."

38. It has already been noticed that when Raja Muhammad Afzal Khan entered the witness‑box he was not confronted with the affidavit nor was he asked to explain the reason for not having mentioned his withdrawal from the partnership or the dissolution of the firm in it. This assertion in the statement of the petitioner, therefore, does not cut any ice.

39. He went on to assert that Raja Muhammad Afzal Khan was a partner of the firm of the same name even after the nomination day. The only proof that he had was that he saw Raja sitting in the office of the Firm twice or thrice fie, however, did not state even in the cross‑examination) that he had seen Raja 'Muhammad Afzal Khan sitting in the Firm's officer and performing functions relatable to the working of the Firm on the nomination day or thereafter. He only said that he had seen him a day earlier and be was signing documents but he was not in a position to state what particular document was being signed by Raja Muhammad Afzal Khan or how was that document connected with the Firm. The basis of his :assertion only was‑‑

40. "I saw him sitting in his firm's office than I assumed that he was a member of the firm."

41. He did not even take the trouble of enquiring from the Registrar of Firms whether Raja Muhammad Afzal Khan was a member of the firm on the nomination date and he said so.

42. Can it in these circumstances be said even by stretching the limits .of imagination to that of credulity that there is any evidence at all whether worth the name or otherwise which could positively point to Raja Muham mad Afzal Khan being a partner of the firm on the nomination date or .at any time thereafter? What to say of any such evidence is there even :an oblique averment in the statement made by the petitioner himself on oath before the Election Tribunal ? The only ‑ impartial and unbiased answer that .can be given to these questions is a flat `No'. On what basis the learned Chairman of the Election Tribunal came to a contrary conclusion passes my ,comprehension.

43. It has already been noted that there is not a word in the replication about the dissolution deed being forged despite the fact that para. 3‑A of the written statement specifically refers to the document. In the replication in reply to this averment in the written statement the petitioner only stated that .‑

44. "The respondent it appears had executed some ante‑dated documents concerning the firm's business and replaced his own name with those of his two wives as partners representing his interest and share in the firm."

45. Tot a word has been said in the evidence even as a repetition of this aver ment on oath what to say of leading any evidence in support of this bald :statement in the replication.

46. The plea of incongruity is thus bereft of all force and is repelled.

47. The evidence adduced by the petitioner before the Election Tribunal .comprised the statements of Nazir Ahmad U. D. C., D. W. & C. A. Office, P. W . 1, Masud‑ur‑Rehman Bhatti, Head Clerk of A. C., Kharian P. W. 2 and ,the petitioner himself as P. W.

3. P. W. 1 produced Exhs. P. 1, P. 2, P. 3 and P. 4 letters dated 13‑12, 3‑2, 13‑10 and 13‑10‑69 from his department to the Firm. P. W. 2 produced Nomination paper P. 5 and affidavit P. 6 of the .appellant.

48. The only ground on which the Dissolution Deed was being dubbed as forged and anti‑dated was the absence of any reference to it in the affidavit. ,it might have been necessary to have made such a reference if the allegation made before the Returning Officer was that although Raja Muhammad Afzal ;Khan claimed to have severed all connections with the Firm, which held con tracts from the Government, he in fact continued to be a partner thereof. Such an allegation could have been controverted by production of the Dissolu tion Deed or at least by making a reference to the dissolution of the firm by ,the dissolution deed in the affidavit. In the circumstances which would ‑appear from the resume of facts given above, however, no such reference was ,called for and it can, therefore, not be taken advantage of as an omission, or ‑form the basis for the argument advanced by respondent No. 1.

49. Be that as it may I have already referred to section 145' of the Evidence Act and even if it could be used to the advantage of the petitioner only if' Raja Muhammad Afzal Khan had been confronted with it when, he appeared in the witness‑box thus giving him an opportunity to explain has position. No. such step having been taken the petitioner is completely debarred from, seek ing to take advantage of the supposed omission.

50. Order VI, rule 4 of the Code of Civil Procedure provides that in all cases, in which the particulars may be necessary beyond such as are exemplified in the forms, particulars with dates and items if necessary) shall be stated in the pleadings. Cases of misrepresentation, fraud, breach of trust, wilful default or undue influence have been specifically mentioned in the rule itself. In the' present case since forgery of the dissolution deed was being relied upon, it was a case, which fell within rule 4 and the stating of particulars wars necessary. These particulars not having been specified the petitioner would not ordinarily be allowed to prove the commission of any forgery. In the present case, however, he has miserably failed to prove any forgery as will be seen from what follows later.

51. In the written statement submitted by the present appellant, it was clearly stated that‑ "the answering respondent was not a partner or a managing partner of the firm Messrs Raja Muhammad Afzal & Company on the nomina tion day... It may be pointed out that the answering respondent was a. member of a registered firm called Messrs Raja Muhammad Afzal &. Company. . .; the answering respondent, however, withdrew from this firm after giving notice to the partners as required by law. It may be pointed out that the Firm was a partnership at will. The aforemen tioned notice was sent to the partners on the 15th of September 1970 and the answering respondent shall cease to be a partner from that date. Out of abundant caution the partners executed a deed of dissolution also on the 16th of October 1970. A new Firm was con stituted on the 17th of October 1970 to carry out the contracts, which the old firm had acquired. The change in the constitution of" the Firm was duly intimated to the Registrar of Firms, the Income‑tax. Department and the Government from whom the contracts were acquired. It was clarified that the answering respondent shall have n& concern whatever with the engagements of the new firm."

52. The petitioner in the election petition consequently became aware of the: evidence on the basis of which it was being claimed by the present appellant that he was not subject to the disqualification referred to by Chaudhry Manzoor Elahi to the Court for being answered by the present appellant. In answer to question No. 2 it was stated by the latter that the firm was, dissolved on 16‑10‑1970 and that the Registrar of Firms, Karachi was duly informed of the dissolution. In answer to question No. 6 the names of eight offices of different Banks with which the firm of which Raja Muhammad Afzal Khan had been a partner had accounts were duly stated in the reply along with the number of accounts in each case. The appellant therefore, completely and fully placed his cards on the table and did not leave anything material to the issues and the case up his sleeve so as to make it a fact "especially" within his knowledge. 1t was therefore, not open to the petitioner to have taken advantage of section 106 of the Evidence Act. Reference may, in this connec tion, be made to Woodroffe and Amir Ali on Law of Evidence, 10th Edition, by Malik and Sastry, page 26 :‑

53. "This section contemplates facts which in their nature are such as to be within the knowledge of the accused and of nobody else; for instance, his own intention in doing an act (Illust. A) or the fact that he purchased a ticket though he was subsequently found to be without one (Illust. B). It has no application to cases where the fact in ques tion, having regard to its nature, is such as to be capable of being known not only by the accused but also by‑ others if they happened to be present when it took place. It cannot be invoked to make up for the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused."

54. The word "especially" is the key to the interpretation of the section. It connotes facts that are ‑pre‑eminently of exceptionally within a particular person's knowledge. The raisen de'etre of this section is that if there be facts, which be only in the knowledge of a particular party it should naturally follow by all rules of convenience and fairness that such a person should have the duty of proving them because if the other party has no knowledge of them it can baldly be called upon to adduce evidence with regard to them. But as has already been stated above, the word "especially" determines whether section 106 is applicable to a particular state of facts or not. In the present case all the relevant facts, which could be said to be in the knowledge of the present appellant were duly disclosed by him and, therefore, no duty was cast upon him under section 106 of the Evidence Act to have led evidence to prove them, because having produced the deed of dissolution of partnership it was for the opposite side to have adduced evidence on these questions for knocking the bottom out of the present appellant's case.

55. Let us at this stage take note of a few important facts, which are dis closed by the record of the Election Tribunal. Section 52 of the National and Provincial Assemblies (Elections) Ordinance XIII of 1970 lays down the requirement with regard to the contents of the petition. It permits the filing of a schedule or annexe to the petition. The schedule attached to the' petition in this case details the names of witnesses and documents to be produced in support of the allegations made in the petition. At No. I are listed the files of the D. W. and C. E , (Army) G. H. Q., Rawalpindi alongwith the deeds and record of the firm Messrs Raja Muhammad Afzal & Co. Government contractors relating to the constitution of the above firm and the work orders, details of which are given in the paragraph; at No. 2 is the name of the Manager, Standard Bank Limited, Kharian Cantonment with all cheques issued by the M. E. S. Authorities in favour of Messrs Raja Muhammad Afzal & Co. Government Contractors alongwith cheques issued by the Firm from 1‑1‑1970 to 31‑12‑1970 ; at No. 3 one finds the name of the Manager, Standard Bank Limited, Mirpur, the cheques issued by the M. E. S. Authorities in favour of the aforesaid Company as well as cheques issued by the said Firm between the aforesaid period; at No. 4 is name of the Income tax Officers of Gujrat, Jhelum and Rawalpindi with the Income‑tax Returns filed by the aforesaid Firm for the years 1969‑70 and 1970‑71 alongwith the Income‑tax returns filed by it and lastly at No. 5 we have the Commander, M. E. S. (Army), Kharian Cantonment with files, deeds and records of the aforesaid firm relating to the execution of the contracts by the said firm.

56. This was, therefore, the evidence in the mind of the petitioner, which he wanted to produce for substantiating his case against the present appellant. Whatever information remained was duly obtained by him through the answers to the interrogatories served upon the present appellant. This evidence would have proved whether Raja Muhammad Afzal Khan continued to be a member of the firm and further whether the deed of dissolution produced by him was a genuine document or a forgery.

57. Let us now see what steps were taken to produce this evidence. An application was made on 20‑9‑1972 praying for the summoning of the following :‑

58. "(1) Complete up‑to‑date record of firm "Raja Muhammad Afzal Khan & Co. (Particularly the record relating to its registration, constitution, alteration in the constitution, or dissolution if any and record of any other firm registered under the same name i.e. Raja Muhammad Afzal Khan & Co., after the dissolution of the earlier firm of the same name) to be summoned from Registrar of Firms, Bunder Road, Karachi.

(2) Complete and up‑to‑date record of contracts entered into by Messrs Raja Mohammad Afzal Khan & Co. with the D. W. and C. E. (Army) G. H. Q., Rawalpindi and the related correspondence exchanged mutually as well as the record of the said firm regarding its constitu tion, dissolution and re‑registration etc. available with the department to be summoned from‑ the office of D. W. and C. E. (Army) G. H. Q., Rawalpindi.

(3) Record of returning officer, P. P. 23 Kharian regarding nomination, scrutiny, objections and, replies thereto filed by the parties etc. to be summoned from A. C. (Returning Officer), Kharian or office of the Election Commissioner, Punjab, Lahore."

59. At page 42 is a letter from the D. W. and C. E. (Army) to the Tribunal submitting that Army No. 8461277 Mr. Nazir Abmad U. D. C. was sent to the Tribunal with the documents to appear before it on 17‑10‑1972. The hearing was postponed to a later date without the examination of the witness. The Tribunal was requested to state if the attendance of the aforesaid person was required on the subsequent hearing or not.

60. This application was given on 23‑10‑1972. At page 55 one finds that a sum of Rs. 150.00 was deposited by the petitioner as diet money and T. A. etc. for‑

(1) Record Clerk, Karachi ;

(2) Clerk of the office of D. W. & C. E. (Army), Rawalpindi ;

(3) Record Clerk of Returning Officer, Kharian. who were sought to be summoned. An application made on 10‑9‑1973 by the petitioner in his own hand appears at page 57 of the record. It runs as follows ;‑

61. "List of witnesses.‑(1) Record Clerk of the office of Registrar of Firms. Karachi with the complete record of firm Raja Muhammad Afzal Khan & Co. relating to the period. lst October to 31st October 1970 particularly the register containing the names of the partners of the firm with addresses for the said period, and also the record of dissolu tion of the said firm.

(2) Clerk, Office of the D. W. & C. E. (Army) G. H. Q., Rawalpindi with files, deeds and record of the firm, Messrs Raja Muhammad Afzal & Co., Government Contractors, relating to the constitution of the above firm and work order relating to the contracts mentioned below :‑

(i) C. A. No. C. E. A. 17‑70

(ii) C. A. No. C. E. A: 18‑70

(iii) C. A. No. C. E. A. 1970, and

(iv) Contract relating Additions/alterations to buildings at Mangla costing Rs. 25,00,000 approx.

62. Alongwith the record and correspondence regarding dissolution of the firm of the contractor and re‑constitution of the new firm.

(3) Record Clerk of the Returning Officer PP‑23 Kharian‑Gujrat with complete record of nomination.

63. (Note.‑The petitioner prays to supplement the list later on as and when circumstances so require.)

64. (Note 2.‑The other witnesses, the petitioner will bring with him)."

65. The names of the witnesses appearing at No. (3), (4) and (5) in type were scored off and at a fresh number 3 the following was added‑

66. "Record Clerk of the Returning Officer PP‑23 Kharian‑Gujrat with complete record of nomination."

67. The petitioner, therefore, knew what he had to prove and how to prove it and had taken steps to adduce that evidence. The notices were repeated several times to the Registrar of Firms at different addresses without being served upon him till service was at last effected towards the middle of 1974.

68. At page 71 is a telegram sent by the Registrar of Firms, Karachi regret ting inability to produce documents on 22‑8‑1974 and asking for an adjournment. Several adjournments were caused thereafter for various reasons. The case then came up on 14‑1‑1975. Notice was duly served for this date on the Record Keeper of the Registrar of Firms, Karachi as will be clear from page 79 of the Tribunal correspondence file "B". Page 84 is a letter by the Registrar of Firms, Karachi dated 11‑1‑1975 to the Assistant Registrar, Election Tribunal, Punjab saying that Mr. Abdul Wahab Siddiquee Senior Clerk was being sent to appear before the Tribunal on 14‑ 1‑1975 alongwith the requisite documents. This shows that the Senior Clerk must have handed over this letter to the Assistant Registrar of the Election Tribunal when he came to appear before the Tribunal on that date. The order dated 14‑1‑1975 page 21 shows that on that date the petitioner had his own statement recorded and closed his evidence.

69. There is a specific reference to the deed of dissolution, to the dissolution of the firm, to the constitution of new firm in the written statement with details given in the answers to the interrogatories, the best evidence for proving the case of the petitioner, if the averments made by the present appellant in this regard were wrong were the documents brought by the representative of the Registrar of Firms and he was present on 14‑1‑1975 K before the Tribunal. But the petitioner, who had summoned him alongwith the documents decided not to . produce him and on the other hand to close his evidence. The question is why did he do so. The answer is contained in section 114 (Illust. G) which requires the Court to presume :‑

70. "That evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it."

71. It is not for me to reiterate what would have been the result if the representa tive of the Registrar had produced the documents because the aforementioned section takes care of it.

72. The other piece of equally important evidence was that of the representa tive of the D. . W. & C. E. He was summoned alongwith a number of documents, which have already been mentioned above as being contained in the application at page 57 and which included‑:

73. "The record and correspondence regarding the dissolution of the firm of the contractor and re‑constitution of the new firm." '

74. ‑Mr. Nazir Ahmad U. D. C. of that office was very much present before the Tribunal and was duly examined as P. W. 2 but was asked only to produce documents a,)out the grant of the contract 1909 and was not asked to produce the documents referred to in the quotation given above, which could have, if the assertion of the petitioner was correct, given a conclusive lie to the stand taken by Raja Muhammad Afzal Khan.

75. One would like to know why were these tactics adopted. The answer is again contained in section 114 (Illust. G) and I am required by law to draw the presumption that had these documents been produced they would have spoken eloquently against the stand taken by the peti tioner.

76. Before parting with this part of the case it would be worthwhile re‑calling the application under, Order XIV, rule 5 and section 151 of the Code of Civil Procedure given by the petitioner on 20‑6‑1972 praying for the shifting of the onus of proving that the appellant was a partner in the firm on the crucial day to the shoulders of the appellant. It was dismissed on 10‑10‑1973 and the onus was not shifted. The petitioner was, therefore, fully aware, and let me repeat, he is an Advocate of this Court that as the matter stood it was for him to produce evidence on this point, but having summoned it he dezlined to produce it in Court although in one case the witness who had the documents in his possession was in the witness‑box, while in the other a public function ary, who had been summoned as a witness was present in Court but was not examined at all.

77. A further fact stands out against the petitioner that even when the representative of the Army took his stand in the witness‑box he was not given oath lest the appellant might cross‑examine him as to other documents in his possession. The finding of the learned Election Tribunal that there was no dissolution of the firm and that Raja Muhammad Afzal Khan continued to be a partner to it on the crucial date and was consequently subject to a disqualification under Article 9 (2)(h) of the Order is, therefore, not based. upon any evidence on the record.

78. As against this the appellant duly filed a photostat of the deed of dissolu tion which, if genuine, is conclusive evidence in support of the averments made by the appellant. The learned Election Tribunal has found it to be ingenuine. The ground for so holding is that the stamp was not purchased in the name of ‑ the parties to the document.

79. The learned Tribunal has not quoted any law which lays down such a requirement. Learned counsel appearing before us for the opposite side has failed to point out any such thing either. On the other band Mr. Mahmood Ali Qasuri for the appellant has produced before us an extract from the Stamp Law and Procedure by Sahib Sing Bulsingh Shahani, Accountant & store‑keeper Office of the Superintendent of Stamps, Karachi, First Edition, 111.937 which occurs at page 166 of this book and runs thus :‑

80. "The writing of the name of the purchaser and other particulars on the back of a stamp is required in the case of impressed stamps by the Rules for the sale of stamps. The rules go no further than to require endorsement to be made by the Stamp Vendor and there is no provision of the Act or of any Rule made under them that a stamp .so endorsed may only be used by or on behalf of the person whose name is so‑ endorsed. The purchase of the Stamp rules requiring the .endorsement seems merely the provision of a means of ascertaining when, where and by whom a stamp has been purchased but there is nothing to prevent a impressed stamp purchased by one person being used by some other person ..Adhesive court‑fee stamps as well as impressed stamps used .under the General Stamp Act or Court Fees Act can, therefore, legally be used by persons other than whose names they bear as purchasers. (L. R. No. 1105 dated 23‑8‑1884)."

81. This elucidation is not only in accord with common sense but also the general practice not only in Karachi but also in the Punjab. It is common practice for lawyers to send their Clerks to purchase impressed stamps for use by their .clients particularly when those clients happen to be large commercial or industrial concerns and any one who has practised on the commercial or civil ,side knows that it is so. The learned Chairman of the Election Tribunal belongs to the Civil Judiciary of this Province for about two decades and should have known this on the basis of experience if not learning. This is, therefore, not a ground for holding that the deed of dissolution was not ‑genuine.

82. The deeds was sold to a person, who is the employee of the Advocate of ‑the present appellant. The name of the employee appears on the stamp of Stamp Vendor impressed on the stamp paper. The purpose for which the stamp was purchased is also written on it as "Disc" which means dissolution, .and 49 top it all we have the statement of R. W. 2 Mr. Abdul Ali Mark, Advocate, Karachi. He has stated on oath that he is a Legal Advisor for Income‑tax purposes for Raja Muhammad Afzal & Co. as well as for the appellant. He has further stated that Raja Muhammad Afzal Khan retired !from the firm on 16‑1ta‑1970. The stamp paper was purchased in his name on the 30th September 1970. The deed of dissolution of partnership was drafted on it and bears his signatures also. He has further stated that he intimated the Registrar of Firms, Karachi accordingly and that the Registrar recorded the dissolution. He also states that he informed the Income‑tax authorities and for the assessment year 1970‑71 the Income‑tax Officer duly took note of the dissolution in his assessment order, which incidentally was duly produced before the Election Tribunal. He further stated that a new firm was constituted on 17‑10‑1971 in which Raja Muhammad Afzal Khan wa3 no longer a partner. The learned Advocate was cross‑examined but nothing of any importance whatsoever was elicited although he gave very ‑straight answers to all questions put to him. Needless to say that his state ment inspires confidence. He is an Advocate of a High Court and there is mo reason for not accepting his statement at its face value.

83. In face of this testimony any conclusion to the contrary can be dubbed only as arbitrary, capricious, without any foundation and con jectural.

84. Much russ has been made in the judgment of the learned Election, Tribunal about the absence of a public notice regarding the dissolution of the partnership. There is no denying the fact that the present partnership was one at will. In such a partnership retirement of a partner can be effected by‑ "giving notice in writing to all the other partners of his intention to retire."

85. The requirement is only that it should be in writing. It does not say that it should be sent by registered post acknowledgement‑due or that a receipt should be taken for it. The only person who could, therefore, have denied such a notice could be the recipient thereof. Although the wives of the appellant were cited as witnesses they were not produced. Their non‑production could: again lead to the only inference that their evidence would have gone against. the interest of the petitioner. There is nothing on the record to show that such a notice was not given, not even a bald averment in the statement of the petitiouer. On the other hand the appellant has said in his statement that a notice was given.

86. In a case of dissolution simpliciter, section 43 provides the same procedure ; here also it has to be by a notice in writing. Notice in this case can even be presumed because all the partners are signatories to the dissolu tion deed in which the receipt of such a notice has been acknow ledged.

87. There is, therefore, no doubt that the partnership was dissolved.

88. Learned counsel for Chaudhry Manzoor Elahi has strenuously, pressed section 45(1) of the Partnership Act into service, which runs as follows‑

89. "Notwithstanding the dissolution of a firm, the partners continue to be liable as such t:; third parties for any act done by any of them which would ham been an act of the firm if done before the dissolution, until public notice is given of the dissolution ;

90. Provided that the estate of a partner who dies, or who is adjudicated an insolvent, or of a partner who, not having been known to the person dealing with the firm to be a partner, retires from the firm, is not liable under this section for acts done after the date on which he ceases to be a partner."

91. This section merely provides for the continuance of the liability of partners to third parties if public notice of dissolution is not given.

92. Section 4 of the Partnership Act gives the basis of a partnership as agreement to share the 'profits' of a business. It further requires that it should be carried on by all or any of them acting for all. The second part would not be in dispute. But it is very clear from the first part that it is the agreement to share profits, which is the basis of a partnership and not the agreement to share losses. The mere fact that two persons decide or under‑' take to share the losses of a business would not convert them into partners o their association into a firm. Conversely if they agree to share profits but not the losses the firm would nonetheless have been formed. The question of profits is a matter inter se the partners. In the present case in the dissolution deed it was categorically stated that Raja Muhammad Afzal Khan would not be entitled to any profits. The partnership, therefore, came to an end.

93. So far as the liability of Raja Muhammad Afzal Khan to third parties is concerned that also had been undertaken by the partners of the new firm. That would however not absolve Raja Muhammad Afzal Khan, i no public notice was given. The requirement of a public notice is to enable all and sundry to know of the dissolution. If a particular person, who deals with that firm, is notified of the dis solution, he cannot under the law take protection behind section 45 of the Partnership Act. In the present case there is a categorical assertion in the statement of the appellant that he had notified the agent of the other party to the contract. Such a notice would be sufficient and would absolve the appellant from all liabilities under section 45 unless the other party to the contract were to take objection to it there and then, and it is nobody's case that such an objection was ever taken. Section 45, therefore, does not succour Chaudhry Manzoor Elahi in the present case.

94. It may be looked at from still another aspect. Article 9(2)(h) of the' Legal Framework Order is attracted only if the candidate has any share or interest in a contract. The appellant had certainly lost his share as well as his interest in the contract. If anything could have been retained had the notice aforesaid not been given to the agent, it may have been the liability for losses but that could neither be dubbed as a share nor interest in the contract.

95. The following observations from Motal Bai v. Abdul Aziz (PLD 1968 Kar. 635), may be noted :‑

96. "According to section 4 of the Partnership Act, IX of 1932, "Partner ship" is relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all, and the persons who have entered into this relationship are collectively called "a firm". This definition is taken from the repealed section 239 of the Contract Act, 1872.

97. The point which requires consideration therefore, is whether a firm is a legal person or entity distinct and separate from the partners constitut ing the firm.

98. The question was answered in the negative by Page, J, in Seodoyal Khemka and another v. Joharmull Manumull and others . (A I R 1924 Cal. 74) on the basis of the English decisions, namely, In re: Sawers ((1879) 12 Ch. D 522), Sadler v. Whiteman ((1910) 1 K B 868). This view of Page, J. was followed in Brojo Lal Saha Banikya v. Budh Nath Pyarl Lal Das (A I R 1928 Cal. 148) wherein it was held that firm is not a person or entity but is merely a collective name of the individuals who are members of the partnership.

99. The same was the view taken by Ameer Ali, J. in Kadar Bux Omer Hayat v. Buktl Behar! and others (A I R 1932 Cal. 768) and Sulatman, C. J., in Messrs Jai Daya Maddan Gopal of Benares (A I R 1933 All. 77)

100. The Judicial Committee of the Privy Council considered this question in Bhogwangi Morarji Goculdas v. Alembic Chemical Works Co. Limited (A I R 1948 P C 100). In this case, an agreement was made between a limited company and four/named individuals carrying on a business under a firm name. These four individuals ceased to be the members of the firm, either by death or by assignment, and were replaced by, new partners. The question arose whether the agreement between the company and the four original partners continued to subsist. Sir John Beaumont observed that the Partnership Act, 1932 recognized that a firm may possess a personality distinct from the persons constituting it yet this Act, like the English Act, avoids making a firm a corporate body enjoying the right of perpetual succession and accordingly, the agreement in question came to an end with the change in the Constitution of the firm, where after there could be no privity between the Company and the firm.

101. .Thus, according to the Privy Council a firm created under the Partnership Act may be a personality distinct from its members, but it does not constitute a separate legal person or entity. This latter principle is recognized in the view taken by the Privy Council that with the change in the membership of the firm, the agreement in question came to an end, and then no privity existed between the C,)mpany and the firm which had new partners with regard to this agreement.

102. The view taken in Tansukhdas Chhaganlal v. Shambai and another itself has lost validity after the decision of the Indian Supreme Court in Dulichand Laxminarayan v. Commissioner of Income‑tax, Nagpur (A I R 1956 S C 354) in which it was held that the definition of the word "person" in the General Clauses Act X of 1897, section 3(39) could not be imported into section 4 of the Partnership Act, 1932, as such a course would be repugnant to the law of partnership and that the general view of partnership is fairly established in the English as well as the Indian Law, that the firm is not an entity or a person "in law" but is merely an association of individuals and the firm‑name is only a collective name of these individuals.

103. My view, therefore, on the first question is that though a firm may possess some attributes of a personality it is only a collective name of its members, and is not a legal person or entity, distinct and separate from the partners."

104. In another case : ‑

105. "Before the Board it was argued that under the Indian Partnership Act, 1932, a firm is recognized as an entity apart from the persons consti tuting it, and that the entity continues so long as =.the firm exists and continues to carry on its business. It is true that the Indian Partner ship Act goes further than the English Partnership Act, 1890, in recognizing that a firm may possess a personality distinct from the persons constituting it ; the law in India in that respect being more in accordance with the law of Scotland, than with that of England. But the fact that a firm possesses a distinct personality does not involve that the personality continues unchanged so long as the business of the firm continues. The Indian Act, like the English Act, avoids making a firm a corporate body enjoying the right of perpetual succession. The agreement of 7th December 1907 was made between the company and four named individuals, and when all of those four individuals had ceased to be members of the firm, there was no privity between the company and the firm as it then existed." Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. and others (A I R 1948 P C 100 Para. 10).

106. And in still another:‑

107. "Admittedly in this case, no public notice of the retirement of the appellant in 1919 from the firm of the four brothers was given ; but it was strenuously maintained on his behalf that the plaintiff was apprised of that retirement before the debts sued for were contracted. If that was so, the problem submitted to the Board for decision is solved. The question whether the plaintiff had notice of the dissolution of the firm of four brothers by the retirement of the appellant from it is one of fact, and the onus of proving that fact is plainly, and indeed admittedly, on the appellant. Has he then discharged that onus. or must the verdict be one of "not proved?". The question is not free from difficulty, and the difficulty is increased by the course of the proceedings in the Courts below. The Senior Subordinate Judge does not allude to the question of notice in his judgment, while the Judicial Commissioners dismiss it in a few lines. The latter say, in the course of their judgment, that‑

108. Admittedly the Bank did not know of the dissolution until after the trans action on which the present suit is based.

109. Their Lordships cannot help thinking that this statement is based upon a misappreciation. It is true that no registered notice was given, and it may be that the Judicial Commissioners in the passage from their judgment now under survey were referring to that fact. However, that may be, the Judicial Commissioners then proceed, in effect, to hold that no such notice was given. Their Lordships find themselves unable to agree with the conclusion of the Judicial Commissioners on this matter.

110. The evidence to the effect that notice was given, in their Lordships opinion, suffices to discharge the onus of proof: In the first place, the evidence adduced by the appellant affirms a general practice of giving notice under the circumstances which existed in this case, and raises a presumption that it was given. A new loan account was opened by the firm in 1920, and it is clear from the evidence that the practice of the plainitiff was to make due enquiries regarding any applicants for a new loan. Moreover, there is substantive and convincing evidence to the effect that the notice was given by the appellant to the plaintiff. The witnesses Gurmukh, who was adduced by the appellant, states that in the application to the plaintiff for a loan, the names of the three brothers,, omitting that of the appellant, were given. There is really no cross‑examination upon this testimony, and certainly no contradiction of it, by production of the application form or otherwise. Further, there is the definite evidence of the witness Shival, who was also produced by the appellant as a witness, who was stranger for the plaintiff at the relevant period, and who was the appropriate person to make enquiry to the effect that he was informed by one Amir Chand, the Treasurer of the Bank, that the appellant had separated himself from the firm by a deed of release. Amir Chand, who was also called by the appellant, in terms confirms this evidence. Now Shival held a responsible position in the Bank, and no suggestion has been, or indeed could be made, against his probity or truthfulness. The evidence of these witnesses constitutes a formidable body of testimony." Kala Ram v. Punjab National Bank Ltd., Peshawar (A I R 1935 P C 14).

111. Support was sought from section 109, Evidence Act, for the proposition that it having been admitted by Raja Muhammad Afzal Khan that he was a partner in Raja Muhammad Afzal & Co. which was doing work listed in Article 9(2)ih) of the Order‑the Court was bound to draw the presumption that he continued to do so even on the nomination day unless he proved the contrary. It falls within the domain of presumptive or inferential evidence.

112. In a very recent decision the Supreme Court made the following weighty pronouncement (Muhammad Yusuf v. S. M. Ayub

113. "As I have stated at the very outset of this judgment, the law of election requires strict proof of the disqualification of a candidate as a corrupt practice and a finding with regard to disqualification must be based on positive evidence and not inferentially on mere surmises."

114. Answers to interrogatories are substantive evidence in the case and the appellant bad very clearly asserted the dissolution of the partnership, his sever ence of all connection with it and the carrying on of the work thereafter by a newly constituted firm of which his was not a partner. Even if a presumption C could have been drawn under section 109 the same bad thus been effectively rebutted shifting the onus of proof, back to the shoulders of Chaudhry Manzoor Elahi. Chaudhry Manzoor Elahi was conscious of that and that is why he summoned the representative of Registrar of Firms, Karachi with all documents concerning the dissolution of the firm, the representative of the D. W. and C. E. (Army) with all documents bearing upon this particular matter and then decided not to make them testify to it presumably because he found that the evidence far from supporting him would demolish his case.

115. The following observation in the Law of Evidence by Lawson at page 577 may also be of some value :‑

116. "It has been said that the presumptions of law derive their force from jurisprudence and not from logic, and that such presumptions are arbitrary in their application. This is true of irrebuttable presump tions, and, primarily, of such as are rebuttable. It is true of the latter until the presumption has been overcome by proofs and the burden shifted ; but when this has been done, then the conflicting evidence on the question of fact is to be weighed and the verdict rendered, in civil cases, in favour of the party whose proof has most weight, and in this latter process the presumption of law loses all that it had of mere arbitrary power, and must necessarily be regarded only from the stand‑point of logic and reason, and valued and given effect only as it has evidential character." (Law of Presumptive Evidence by Lawson, page 577).

117. Strictly speaking, therefore, section 109 of the Evidence Act does not play any part in this case and could not help in tilting the scales one way or the other. And even if it were attracted the appellant has successfully and com pletely rebutted it by evidence produced.

118. This appeal has been filed under section 64(3) of Ordinance XIII of 1970, which entitles any person aggrieved by a decision of the Tribunal to appeal to this Court on‑ "any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908."

119. Learned counsel for respondent No. 1 has pressed this provision into service and submitted that the jurisdiction of this Court is inhibited and circumscribed by the scope of the aforesaid section 100 and it cannot scrutinise the judgment of the Tribunal except for determining whether‑

(a) the decision is contrary to law or to some usage having the force of law ;

(b) the decision has failed to determine some material issue on law or usage having the force of law ; and

(c) a substantial error or defect in the procedure provided by the Code or by any other law for the time being in force has occurred which may possibly have produced the error or defect in the decision of the‑ case upon the merits.

120. Who can cavil with this submission? I have purposely chosen to deal with this part of the argument towards the end of this judgment because by now a clear picture has emerged as to the line that I have taken and it is now easier to say whether what has preceded impinges upon the restrictions placed by section 100 on the powers of the Court. The grounds on which I have disagreed with the findings of the learned Election Tribunal are that

(a) His findings are based on no evidence. In other words there is nothing on the record from which the conclusion that he maintains, could have been drawn ;

(b) The conclusions are in any case arbitrary, capricious, without foundation and against the law.

(c) Important evidence has been excluded from consideration.

121. Let me now see if this could be done in an appeal under section 100 of the Code of Civil Prccedure.

122. There is a plethora of decided cases amplifying and elucidating the scope of this section. Learned counsel for the respondent has chosen to rely upon a string of precedents, which include Sikandar Hayat and 4 others v.

123. Master Fazal Karim (P L D 1971 S C 730) ; Karamat Ali and another v. Muhammad Yunus Haji and others (P L D 1963 S C 191) ; Muhammad Bashir v. Mst. Rehmat Bibi and S others (1970 S C M R 478). All these cases unfortunately deal with situations in which a second appellate Court had disturbed concurrent findings of fact arrived at by two Courts below. These rulings are not attracted to the circumstances of the case before me because‑although it is an appeal under section 103, no Court intervened between the Tribunal exercising original jurisdiction and this Court. There is, therefore, no concurrent finding of two Courts in the case before me and the principles expounded in these judicial decisions do neither apply nor help in determining the points involved.

124. Muhammad Yaqub Ali, J., as he then was, scanned all the relevant case law on the question in Mst. Fatima v. Khuda Bakhsh . and others (P L D 1959 Lah. 826), and observed as follows

125. "31. A case of finding without evidence or of misrepresentation of evidence covered by the third exception, however, stands on a different footing. If the Judge believes that there is some evidence on the record from which he has drawn conclusions of fact and in fact there is no such evidence, it must follow that there is no proper finding which may be binding on a Court of second appeal. Such an error will clearly fall within the scope of clause (c) of section 100, C. P. C , viz., a substantial error or defect in procedure which may possibly have produced an error or defect in the decision of the case upon merits.

126. Order, XX, rule 4, C. P. C. provides that judgments of Courts other than a Court of Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Similarly Order XLI, rule 31, C. P. C. provides that a judgment of the Appellate Court shall state‑

(a) the points for determination ;

(b) the decision thereon ; and

(c) reasons for the decision."

127. The reasons for the decision on the points involved in the determination of an appeal must of course be based on the evidence on the record and the provisions of law applicable to them. If there be no evidence in support of a decision or the evidence is misrepresented, it could be said that there were no reasons for decision within the scope of clause (c) of Order XLI, rule 30, and Order XX, rule 4, C. P. C. and & will warrant interference with findings of fact in a second appeal, ..

128. It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it, But this is the only exception which is tenable under law and all other exceptions referred to above are clearly unwarranted by the provisions of sections 100 and 101, C. P. C.."

129. It will be seen that these observations are on all fours with the position in the case before me and I am, therefore, fortified by them as well as their approval in Nazar Muhammad v. Mst Shahzada Begum etc. (P L D 1974 S C 22) and Mst: Bibi Jan v. Habib Khan and another (P L D 1975 S C 295).

130. I may also in passing mention the observation in Abdul khalid and another v. Khalil Ahmad (P L D 1955 F C 38), wherein it was held that a fallacy in appraising the evidence as to a fact, which amount; to a material mistaken assumption is questionable in a second appeal, and reference was also made to Nadir Shah v. Lal Shah and others (P L D 1954 Lah. 447), to support the view. I have respectfully adopted this view, which has the backing of a consensus of legal opinion.

131. The last question is whether Chaudhry Manzoor Elahi was entitled to b;, declared elected. It would be appropriate to quote the following for a correct appreciation of the legal position in this regard :‑

132. "The rule of law incorporate or other elections is, that where an elector,, before voting, receives due notice that a particular candidate is disqualified, yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise, and therefore,. however, strongly he may in fact dissent, and in however strong terms he may express his dissent, he must be taken to assent to the election of the opposing and qualified candidate, for he will not take the only course by which it can be resisted, that is, the helping of the election of some other person. (2) If the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice ; but (3) if the disqualification be of the sort whereof notice is to be presumed, none need expressly be given."‑

133. Gosling v. Veley (1847) 7 Q B 406=115 E R 542 (Paragraph 888, page 107, the English and Empire Digest (Blue Band) Vol. 20).

134. "By the common law the principle seems to be firmly established that where a candidate is in point of fact disqualified at the time of an election, all votes given for him with knowledge of the fact upon' which such qualification is founded must be considered as thrown away. This knowledge may be established either by distinct notice or by notoriety, and it will in all cases be inferred that where the voter is aware of the facts he is aware of the legal deduction from those facts, however, intricate and doubtful such deduction may be."‑

135. Clitheroe Borough (2nd Case) (18531 2 Pow. R & D 276. (Paragraph 8h9 of the English and Empire Digest (Blue Band) Vol. 20).

136. It may be sufficient to refer to four of the most important cases, either for r, . the arguments, or the judgments; Oldknow v. Wainwright Or Rex v. Faxcraft (2 Burr. 1017=1 W Bl. 229), Rex v. Monday (2 Cowp. 530), Rex v. Hawkins (10 East 211) and Rex v. Parry (14 East 549). The result of the decisions appears to be this. "Where the majority of electors vote for a disqualified person in ignorance of the fact of disqualifica tion, the election may be capable of being made good, according to the nature of the disqualification; the objection may' require ulterior proceedings to be taken before some competent tribunal, in order to be made available;. or it may be such as to place the elected candidate on the same footing as if he never, had existed and the votes for him were a nullity. But in no such case are the electors who vote for him deprived of their votes if the fact becomes, known and is declared while the election is still incomplete. 7 hey may instantly proceed to another nomination, and vote for another candidate. If it be disclosed afterwards, the party elected may be ousted and the election declared void; but the candidate in the minority will not be deemed ipso facto elected."

137. But, where an elector before voting receives due notice that a particular‑ candidate is disqualified, and yet will do nothing but tender his vote for him,.‑. he must be taken voluntarily to abstain from exercising his franchise; and therefore, however strongly he may in fact dissent, and in however strong= terms he may disclose his dissent, he must be taken in law to assent to the election of the opposing and qualified candidate; for he will not take the only course by which it can be resisted, that is, the helping to the election of some other person. He is present as an elector; his presence counts as such to make up the requisite number of electors, where a certain number is necessary; but he attends only as an elector to perform the duty which is cast on him by the franchise he enjoys as elector; be can speak only in a particular language;. he can do only certain acts; any other language means nothing; any other act is merely null; his duty is to assist in making an election. If he dissents from the choice of A. who is qualified, be must say so by voting for some other also qualified; he has no right to employ his franchise merely in preventing an election and so defeating the object for which he is empowered g and bound to attend. And this is a wise and just rule in the law. It is necessary that an election should be duly made, and at the lawful time; the electoral meeting is held for that purpose only; and, but for this rule, the interest of the public and the purpose of the meeting might both be defeated by the perverseness or the corruption of electors who may seek some unfair, advantage by postponement. If then the elector will not oppose the election of A in ‑the only legal way, he throws away his vote by directing it where it has no legal force; and, in so doing, he voluntarily leaves un opposed, i.e., assents to, the voices of the other electors.

138. Where the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice; for, without that, the inference of assent could not be fairly drawn, nor would the consequence as to the vote 'be just. But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given; no one can doubt that, if an elector would nominate and vote only for a woman to fill the office of mayor or burgess in Parliament, his vote would be thrown away; there the fact would be notorious; and every man would be presumed to know the law upon that fact."

139. "Votes given for a candidate who is disqualified may in certain circum stances be regarded as not given at all or thrown away and for so deciding .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 part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment 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 not he thrown away so as to give the seat to the candidate with the next highest number. of votes. 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" .

140. . . Votes given without such notice are good. (Halsbury's Laws of England, III Edition, Vol. 14, page 395, paragraph 549).

141. After having quoted paragraph 549 of Halsbury's Laws of England. III Edition, Vol, 14 and Re : Bristol South‑East Parliamentary Election ((1961)3AELR 354) their Lordships observed in Rashid Ahmad Rahmani v. Mirza Barket Ali etc. (PLD 1968 SC 301) at p. 309

142. "In the instant case the voters could have had no notice of the fact that inclusion of Barket 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 Barket Ali had majority votes, the minority candidate cannot be declared elected.

143. 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."

144. Following this ruling it was held by a Division Bench presided over by the late Tufail Ali A. Rahman, a Chief Justice for whose erudite learning and grasp over the principles of law we have the highest respect, observed in Muhammad Usman v. Lal Muhammad and 12 others (P L D 1975 Kar. 352) at p. 369 (para. 28) :‑

145. "I am of course bound by this case, which I think is clearly applicable for the language of the rule is, as I have stated, identical with the language of the section which is relevant for my present purpose. Moreover clearly their Lordships were also laying it down as a general principle of the law of elections that `the voters could have had no notice of the fact that there was a disqualification and, therefore, cannot be disfranchised for no fault on their' parts. The situation in the present case is identical. Although Usman Kennedy had not attained the age of 25 years, the electorate had no reason to think so. His nomi nation 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, therefore, to hold that his disqualification was notorious. In these circumstances to award the seat to Lal Muhammad would be in the language of the Supreme Court, to disfranchise the voters. I have, therefore, come to the conclusion, disagreeing with my own previous view that upon this question also the Tribunal was right and the petitioner's appeal cannot succeed."

146. I may, therefore, conclude that voters casting their votes for a candidate' ,who is disqualified under the law, the disqualification being founded on some positive and definite fact existing and established at the time of the poll they same being sufficiently notorious as to saddle the electors with knowledge thereof are deemed to throw away their vote and to mean not to vote for any; one for that office as well as to assent to the election of the opposing and qualified candidate. If, however, the disqualification is not notorious ands depends on legal argument or upon complicated facts and inferences, then: even though the candidate may be unseated the seat cannot be given to the candidate with the next highest number of votes and the election has to be declared void as a whole.

147. Whether the disqualification was notorious that is to say was so widely known that the electors can be said to be aware of it is a question of fact and mast be proved as such.

148. In the present case the petitioner cannot be declared elected to the seat because

(a) The alleged disqualification had been held by the Returning Office not to exist and tae electors, even if they were cognisant of it, had every right to act upon this decision;

(b) The alleged disqualification was not, and in any case has not been proved to be, notorious or known to the electors;

(c) The alleged disqualification was not of such a nature as to give rise to presumption of notoriety.

149. Where for the electors who voted for the appellant cannot be said to have thrown away their votes and to declare the petitioner elected would amount to disenfranchising them for no fault of theirs.

150. We have already by a short order dated 9‑7‑1975 accepted the appeal and set aside the order of the Election Tribunal and the foregoing are the reasons for it.

151. A. R. SHEIKH, J.‑I concur.

152. Appeal accepted.