1999 PLP 2470 (SCMR)

IRSHAD HASAN KHAN, J.--This petition for leave to appeal is directed against the order dated 2-11-1998 passed by the Lahore High Court, Lahore in Writ Petition No. 22563 of 1998, arising out of an election matter.

2. Brief facts are that election for the seats of ladies and labour for the Town Committee, Renala Khurd-, District Okara, were held on 15-10,1998. The petitioners claimed to be the candidates for the said seats. ,

3. Grievance of the petitioners is that polling time for the said election was between 9-00 a.m. to 10-00 a.m. However, when the petitioners reached the office of the Returning Officer/Assistant Commissioner, Okara, at 9-00 a. m. they were told by the Returning Officer that they should be in the office at 9-30 a.m. In consequence, petitioners reached his office accordingly but were informed by the Returning Officer that they will be apprised of the voting time shortly. The precise grievance is that the petitioners remained present in the office of the Returning Officer throughout but they were precluded from exercise of their right to vote at the behest of local M.P.A. Ch. Zia-ud-Din, who is not a party to these proceedings.

4. Learned counsel for the petitioners vehemently argued that the petitioners could not be deprived of their vested right of casting votes during the scheduled time and, therefore, the High Court, should have redressed their grievance pursuant to the Constitution petition filed by them. Similar plea was raised before the High Court which was repelled by the learned Division Bench. It would be advantageous to reproduce paragraph 4 of the impugned judgment, which reads thus: "After hearing learned counsel for the petitioners, we have observed that the submissions mad by him cannot be considered in summary jurisdiction. The petition tiled before the Election Authority raising similar allegations was dismissed on 28-10-1998 with observations that controversy raised, being of factual in nature, could not be decided without recording evidence and since the Election had been notified, the petitioners could challenged the same by filing Election Petition. It is not denied that the result of election stand., notified. According to the petitioners, they were not allowed to participate the election and they could not exercise right of vote. The report submitted by the Returning Officer to the Election Authority indicates that the election was held in due course and that the petitioners were not present and that when the Election of last candidates workers was over and the result was being announced, the petitioners entered the room and claimed that the Returning Officer should have waited for them. The question as to whether the petitioners were misled or were kept out of Election and were deprived of their right to cast vote or that no Election was ever held, cannot be decided without evidence as it is a pure factual controversy which needs some evidence. Result being notified, the factual inquiry being not possible in summary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the proper course open to petitioners will be to file an election petition where all the questions, as are being raised in this petition, can be decided after proper inquiry. This petition is, therefore, dismissed with the observations that if an Election Petition is filed by the petitioners, the same shall be decided expeditiously on its own merits and in accordance with law. "

5. The question whether the petitioners were deprived of their right of casting votes is essentially a question of fact. The High Court was, therefore, right in declining to resolve this factual controversy in the exercise of its Constitutional jurisdiction. The High Court was right in observing that the proper remedy for redressal of their grievance lay in filing the election petition. When faced with this, the learned counsel for the petitioners, invited our attention to order dated, 17-10-1998, passed by the Punjab Local Councils I Election Authority, to the following effect:-- "Report be called from the Assistant Commissioner/Returning Officer, Okara and Deputy Commissioner, Okara for 28-10-1998. In the meantime, the result of the Election of Special Interest Seats of Town Committee Renala Khurd, District Okara shall not be notified, if notified, shall have no effect. " Relying on the above order, learned counsel for the petitioners contended that the result of the election could not be notified, therefore, the impugned order of the High Court is based on erroneous assumption of fact and in disregard of the interim order dated 17-10-1998, passed by the Punjab Local Councils Election Authority, staying the issuance of notification of the result of election for the said seats.

6. The contention is devoid of any force. In the final order dated 28-10-1998 passed by the Chairman, Punjab Local Councils Election Authority, the controversial factual pleas raised by the petitioners were rightly declined to be adjudicated upon on the ground that the same could only be decided after recording evidence. The Chairman, Punjab Local Councils Election Authority, was also right in observing, "after the election had been notified, they (petitioners) have a right to challenge the same by filing election petition".

7. Clearly, the well-reasoned impugned order does not suffer from any legal flaw or infirmity warranting interference by this Court.

8. Resultantly, the petition is dismissed and leave declined. H.B.T./A-157/S Petition dismissed.