h1

1987 CLC 841

HAJI MUHAMMAD

V/S

ALI BAKHSH SHAH

Per Nasir Aslam Zahid, J.

(a) Constitution of Pakistan (1973), Articles 62(b) & 113 —

Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Article 11(1)(b) — Representation of the People Act (LXXXV of 1976), Sections 52 & 68(1)(b) — Provincial election — Qualifying age of candidate — Proof — Comprehensive evidence brought on record undoubtedly proved that returned candidate had not attained prescribed age of 25 years on last date for filing nomination papers — Such returned candidate being not qualified to contest election. Election Tribunal, held, rightly declared
election of returned candidate to be void on basis of evidence on record.
Articles 62(b) & 113– Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Article 11(1)(b) — Representation of the People Act (LXXXV of 1976), Sections 52 & 68(1)(b) — Qanun-e-Shahadat (10 of 1984), Articles 117 to 119 — Provincial elections — Disqualification of candidate — Burden of proof — Burden to prove disqualification of returned candidate on ground of his age would be on Petitioner — Evidence produced
in support of and against such disqualification — Question of burden of proof, held, stood relegated to back-ground and had lost importance. Qaisar Khatoon v. Abdul Khaliq PLD 1971 SC 334 and PLD 1948 PC 171. Ref.
Articles 62(b) & 113– Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Article 11(1)(b) — Representation of People Act (LXXXV of 1976), Sections 52 & 68(1)(b) — Qualifying age of candidate — Investigation of — Reliance upon age of candidate entered in electoral rolls — Insertion of name of person in electoral rolls no doubt was final in so far as his right to vote was concerned, but was not so as regards his age — Where question was raised before Election Tribunal about qualifying age of candidate for an elected office, Election Tribunal, held, could go behind entry as to age of candidate given in electoral a rolls — No reliance could be placed on entry in electoral rolls as to age of candidate in circumstances. Serajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5; Riaz Mahmood Khan Mazari v. Mureed Husain 1980 SCMR 548; Muhammad Tufail v. Muhammad Saleem PLD 1967 Karachi 104; Abdul Sattar v. Muhammad Jameel 1984 CLC 2296 and Haji Abdul Rehman v. Ghulam Hassan 1984 CLC 2296. Ref.
Articles 62(b) & 113– Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Article 11(1)(b) — Representation of the People Act (LXXXV of 1976), Sections 52 & 68(1)(b) — Election of returned candidate declared void — Prayer of rival candidate for declaring him as elected on ground that he had been polled next highest number of votes — No evidence having been adduced by petitioner/rival candidate that lack of qualification of Respondent/returned candidate whose election was declared void on ground of less age was notorious or well-known to electors in constituency — Doctrine of thrown away votes’ not applicable to facts of case — Held, although election of returned candidate had been declared void, yet petitioner even if had polled next highest number of votes, could not be declared elected particularly when no argument was addressed by counsel of petitioner in support of prayer of petitioner.

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