Nawabzada SALA HUDDIN vs Begum FAKHARUZ ZAMAN KHAN And Other
This matter concerns an appeal against an order of an Election Tribunal which set aside the election of the appellant, Nawabzada Salahuddin, to the National Assembly of Pakistan from Constituency No. NA-16, Mansehra II. The Tribunal had declared the appellant disqualified on the basis that he was under the age of 25 years on the nomination day and further ruled that the respondent, having secured the next highest number of votes, should be declared the returned candidate under the doctrine of 'thrown away votes'. The appellant challenged this decision, arguing that the Tribunal ignored crucial documentary evidence regarding his age and that there was insufficient evidence to prove the disqualification was notorious among the electorate. Upon preliminary review, the Supreme Court found that the Tribunal faced difficulties regarding evidence on the notoriety of the disqualification and the determination of age. Consequently, the Court held that a prima facie case for interference existed and ordered the suspension of the impugned judgment pending the final disposal of the appeal.
- Does the doctrine of 'thrown away votes' require proof that a candidate's disqualification was notorious among the electorate?
- Can an appellate court suspend the operation of an Election Tribunal's judgment pending the final disposal of an election appeal?
ORDER
ZAFFAR HUSSAIN MIRZA, J.--Appellant Nawabzada Salahuddin was declared successful and was notified as the returned candidate in the election to the National Assembly of Pakistan from Constituency No. NA-16, Mansehra II. Begum Fakharuz Zaman Khan respondent No.1 herein challenged the election of the appellant in an election petition which was accepted by Mr. Justice Fazal Elahi Khan, Election Tribunal by the impugned order in this appeal, dated 5th March, 1987, whereby he held that on, the nomination day the appellant being of the age below 25 years by 28 days was not qualified to be a member of the National Assembly of Pakistan. The election of the appellant was accordingly set aside. The learned Tribunal further held that as the disqualification which the appellant suffered from was notorious, respondent No.1, who secured the next highest number of votes at the election was entitled to be declared as the returned candidate to the seat in question.
2. It is contended on behalf of the appellant that the decision of the learned Tribunal on both the crucial issues arising in the election petition are erroneous inasmuch as, certain documentary evidence having important bearing on the question of age has been totally ignored. It is further submitted that in any case no evidence worth the name was produced in support of the plea that the alleged disqualification of the appellant was widely known among the electorate and was notorious so as to attract the rule of 'thrown away votes'. On behalf of the respondent No.1 these contentions were controverted and the order of the Tribunal was supported.
3. After hearing the learned counsel we feel prima facie that the Tribunal itself felt difficulty in finding satisfactory evidence on the record as to the question whether the alleged disqualification of age was known to the voters. Also the question whether the finding on the issue of age of the appellant would be gone into in the light of evidence on the record, as this is a statutory appeal by right. We, therefore, find prima facie case for interference so far as interim stay is concerned.
4. In the result it is ordered that the operation of the impugned judgment of the Election Tribunal shall stand suspended until the disposal of the appeal which shall be set down for final disposal during the second week of June 1987.