1989 PLP 1627 (SCMR)

USMAN ALI SHAH, J.‑‑This petition for leave to appeal is directed against the judgment of Peshawar High Court, Peshawar, dated 6‑3‑1989, whereby, writ petition of Niaz Gul petitioner was dismissed. Briefly the facts are that the petitioner and respondent No.1 along with respondents No.4‑11 were the contesting candidates for the membership of District Council Karkak, Ward No.14, Chowkara, in which the petitioner was declared by the Returning Officer as elected to the said seat vide Notification dated, 2‑12‑1987. Muhammad Rahman respondent No.l herein challenged the election of the petitioner to the said seat on the ground that the polling station No.42 G.H.S. Chowkara both of male and female was interrupted at 3.45 p.m. due to which the polling ryas stopped by the Presiding Officer. Report to this effect was given to the Returning Officer, but no action for fresh election in the said polling station was taken by him. Respondent No.l challenged the said election before the Election Tribunal. On the pleadings of the parties the learned Tribunal framed contesting issues and after recording evidence of both the parties in this regard, declared the result of the disputed polling station as void, the petitioner was deseated and re‑election on the disputed polling station was immediately ordered. It was also directed by the learned Tribunal that out of the two candidates i.e. Niaz Gul and Muhammad Rahman, any one who secures majority of votes on all the four polling stations after re‑polling in the disputed polling station, is to be declared as elected candidate for the said seat. Niaz Gul petitioner challenged this order in a writ petition before the Peshawar High Court, Peshawar. A learned Division Bench of the High Court which heard the writ petition concluded as under:‑‑ "Not that, the petitioner herein had not challenged the jurisdiction of the Election Tribunal in his written statement and has in fact raised objection to the competency of the Election petition by not making all contesting candidates as party. Petitioner has succumbed to the jurisdiction of the Election Tribunal and the impugned order has been passed on factual plane after his full participation. Resultantly we found no merit in the writ petition. There can be taken no exception to the orders of the Election Tribunal except that all the candidates would be allowed to contest the electron at the re‑poll and the re‑election would not stand confined to the petitioner and respondent No.l. With the direction as above we order the dismissal of the writ petition, leaving the `~ parties to bear their own costs." The learned counsel for the petitioner argued before us that the petitioner was not liable for the disturbances in the disputed polling station and the male voters were about to finish at 3.30 p.m. to cast their votes and the results of the election were not affected at all. The Returning Officer instead of making order for re‑polling should have issued Notification declaring the petitioner as returned candidate in the said election. A perusal of the record shows that there is documentary evidence that the poll at the said polling station had been interrupted by firing which was beyond the powers of the Presiding Officer to control and continue the polling uptil the specified time. We have carefully considered the arguments of the learned counsel for the petitioner, But in our considered opinion the view taken and the conclusion arrived at by the learned Judges of the Division Bench of the High Court is based on sound reasoning and proper appreciation of material evidence on the record. The learned counsel for the petitioner was unable to establish any legal defect on account of which interference by the High Court in its writ jurisdiction would have been justified. Under the circumstances we do not find any justification for interference in the impugned judgment. Leave to appeal is therefore, refused. M.A.K./N‑171/S Leave refused.