Sardar MUHAMMAD AMIR KHAN Versus NADEEM AKHTAR

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C.J. --- This petition has been filed against the judgment, dated 14-11-2006 passed by a Division Bench of Lahore High Court whereby the order, dated 19th July, 2006 passed by a learned Single Judge in Chambers and the order of Election Tribunal dated 15th June, 2006 were set aside.

2. Precisely stating facts of the case are that respondents Nos.1 and 2 contested election along with other candidates including Muhammad Aamir Khan (deceased) for the office of Nazim and Naib Nazim, Union Council No.66, Thatha, Tehsil Jand, District Attock. Petitioner Sardar Muhammad Amir Khan and Abdul Jabbar Dainish challenged the election of returned candidate namely Muhammad Aamir Khan (deceased) and Muhammad Ashraf who have been declared successful by the competent authority before the Election Tribunal inter alia on the ground that Muhammad Aamir Khan (deceased) had concealed his assets as well assets of his wife who was dependent upon him. Learned Election Tribunal vide order, dated 15-6-2006 allowed election petition to the extent of disqualification of Muhammad Amir Khan (deceased) and the petitioner was declared as successful returned candidate on account of having obtained second highest number of votes. Respondents Nadim Akhtar, and Ghulam Abbas preferred a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1993 inter alia with the prayer that direction be issued for holding fresh election. Learned High Court vide order, dated 19th July, 2006 dismissed the petition. Thus, being aggrieved from the said order an I.C.A. No'.100 of 2006 was filed which has been disposed of by means of impugned judgment. Relevant para therefrom is reproduced hereinbelow:--

"For what has been discussed above, we are of the considered view that the judgments of the learned Election Tribunal as well as learned Single Judge in Chamber are not sustainable in law to the extent of declaring respondent No.2 as returned candidate. Similarly, holding respondent No.4 (Naib Nazim in the panel of returned candidate) as validly elected is unlawful. The judgments to the above extent are set aside. Election of returned candidate is declared to be void as a whole.

3. Learned counsel contended that as the petitioner had secured second highest number of votes for the office of Nazim, therefore, he was rightly ordered to be declared successful in place of Amir Khan (deceased) as according to him the disqualification on the ground of concealment of the assets was notorious, therefore, principle of law laid down by this Court in the judgment relied upon by the Division Bench of High Court while deciding I.C.A. was not applicable.

4. We have heard learned counsel and examined the impugned judgment as well the judgment passed by High Court in writ petition dated 19th July, 2006 and the judgment of Election Tribunal in election petition, dated 15th June, 2006. In this behalf it may be noted that learned Election Tribunal while disposing of the matter has declared that Amir Khan (deceased) had concealed his assets. Admittedly this fact was not mentioned in the nomination papers, however, it was the duty of the petitioner to establish on record through positive evidence that disqualification was notorious and in excess of such evidence the votes secured by a successful candidate could not be thrown away and the candidates securing next highest votes could not be declared elected. Although petitioner has succeeded to bring on record that Amir Khan (deceased) concealed his assets but no evidence was brought on record about notoriety of disqualification. This fact has been highlighted in the case of Ellahi Bakhsh v. District and Sessions Judge, Rajanpur PLD 2003 SC 2268. Relevant Para. therefrom is reproduced hereinbelow: ---

"Notoriety of disqualification of the returned candidate at the time of polling must be established on record through positive evidence which is lacking in the present case. There is yet another circumstance which goes a long way to show that the disqualification of the respondent was not notorious. The material on record makes it manifest that at the time of scrutiny of the nomination papers of the respondent no objection was raised against his candidature. Consequently, the petition is dismissed and leave refused:"

5. It may be noted that above conclusion has been drawn on having taken into consideration the judgments in the cases of Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409 and Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6 with reference to parameters of notoriety of disqualification of a returned candidate highlighted in paragraph 549 of Halsbury's Laws of England, Vol. 14 and in the case of Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 689. The above principle has been reiterated by this Court in the case of Sheikh Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 and Shaukat Ali v. District Returning Officer and another PLD 2006 SC 78.

6. Thus for the foregoing reasons, we are of the opinion that learned Division Bench of High Court exercised its jurisdiction according to law leaving no scope for this Court to grant leave to appeal in the instant proceedings.

Petition is dismissed and leave to appeal declined.

M.H./M-40/SC Petition dismissed.