1988 PLP 819 (CLC)

Muhammad Younis Shah and Q. Muhammad Jamil for Respondents Nos. 3 to

6. S. Ibne Ali, A.‑G. for Respondent No.

8. Dates of hearing: 31st January and 1st February, 1988. FAIZ MUHAMMAD KHAN, J.‑‑The Municipal Corporation, Peshawar has been constituted under the North‑West Frontier Province Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance). It consists of forty ‑one members elected on the basis of adult franchise. Government have, in addition, in exercise of the powers conferred by section 15 of the Ordinance, fixed two seats for women who are elected by the members of the Corporation, as specified in section 18 of the Ordinance, read with rule 45 of the North‑West Frontier Province Local Council (Election) Rules, 1979 (hereinafter referred to as the Rules) and rule 3 of the North‑West Frontier Province Local Councils (Election to Seats Reserved for Women and Minority Community) Rules, 1979 (hereinafter referred to as the Reserved Seats Rules). The procedure for election to the seats reserved for women has more particularly been specified in rules 45, 46 and 47 of the Rules read with rules 4 and 5 of the Reserved‑Seats‑Rules which further say that in all other matters not expressly provided for in these rules, the provisions of the Rules shall apply. Both the sets of these rules are therefore supplemental to each other. The procedure to be adopted on the close of poll is specified in rule 37 of the Rules which lays down that after the last person waiting to vote has voted the Presiding Officer shall, in the presence of such of the contesting candidates and polling agents as may be present, open the ballot box and count the ballot papers contained in the ballot box so opened, excluding the invalid ballot papers. Where there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Presiding Officer shall forthwith draw a lot in respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes; entitling him to be declared elected, is further specified in this rule. Rule 38 of the Rules provides that the Presiding Officer shall, if there is single polling station in the Electoral Ward, as was the case in the selection which gave rise to this Constitutional petition, declared, the contesting candidate who has or is deemed to have received the highest number of votes to be elected to the Local Council concerned, sub‑rule (2) of this rule provides for the publication, by the Returning Officer, of the name of the returned candidate in the Official Gazette.

2. Under rule 47 of the Rules duty is cast upon Government to fix a date for election and to call upon the electors to elect women representatives against the reserved seats. According to the approved, schedule, election for the two seats reserved for women in the Municipal Corporation, Peshawar was held on 3‑1‑1988 at 11.00 a.m. in the office of the Chief Officer, Municipal Corporation, Peshawar who was also Returning Officer for the purposes of this election. Eight women, who are the petitioners and the respondents Nos.2 to 7 herein, offered themselves candidates at the said election. Two of them were to be elected as councillors in accordance with the procedure mentioned in the rules already referred to. All the members constituting the electoral college, forty‑one in number participated in the election casting their votes in favour of the candidates of their choice. It is after the close of the Poll that something happened, in consequence whereof the declaration of the result by the Presiding Officer became disputed.

3. Two of the contesting candidates, namely, Begum Talat Jan and Begum Nasir Sajjad, have filed this Constitutional petition alleging that on the close of the poll the ballot box was opened by the Presiding Officer, who counted the votes received by each candidate. It is alleged by the petitioners that the total number of ballot papers found in the ballot box was forty‑one, out of which four ballot papers were found invalid, having been so declared by the Presiding Officer, and the remaining thirty‑seven were found valid. It is alleged that the petitioners got nineteen valid votes each and the respondents Nos.3 and 6 received eighteen valid votes each. It is further alleged that the Presiding Officer consolidated the result on Form‑XI, making entries therein in his own hand, copy whereof was given to each candidate, including the petitioners. It is also alleged by the petitioners that they having obtained highest number of votes were declared by the Presiding Officer elected to the seats reserved for women. Soon thereafter it is alleged, some officers mentioned in paragraph II of the petition entered the room occupied by the Presiding Officer and took him away alongwith papers and packets relating to election to a place not known to the petitioners and the protest of the petitioners and their agents in that regard ended in smoke. Later in the evening, it is alleged, the petitioners came to know that the formerly legally declared result in favour of the petitioners had been changed and the respondents Nos. 3 and 6 were wrongly shown to have each obtained nineteen votes and thus shown to have been elected to the seats reserved for women. It is alleged that the first result declared by the Presiding Officer in favour of the petitioners was the one which had legal existence and was binding on all concerned and the subsequent result shown to have been declared by the Presiding Officer was neither in his hand nor could it be called as a legally declared result, nor could the Presiding Officer, having become functus officio, declare such a result behind the back of the parties. The prayer made by the petitioners in this petition, therefore, is that the first result declared by the Presiding Officer whereat each petitioner was found having secured nineteen votes was correct and a legally declared result, binding on all concerned, and the subsequent exercise conducted against law and rules favouring the respondents Nos.3 and 6, being without lawful authority, was of no legal consequence. Consequential relief respecting the fact that the petitioners are duly elected members of the Municipal Corporation, Peshawar is also claimed.

4. Parawise comments were called from the respondent No.l, who was Presiding Officer at the said election, who submitted the same, which form part of this record. Parawise comments submitted by the respondent No.8 Provincial Government through Secretary, Local Government Chairman, Provincial Election Authority, N.‑W.F.P.) are also part of this record. The respondents Nos. 3 and 6 submitted joint written statement before the hearing of this matter, which also forms part of this record. They have controverted all the allegations made in this petition, in so far as they relate to the election, besides raising some preliminary objections, to which we would refer later. In his parawise comments, the respondent No.8 stated that the election was properly held and the respondents Nos.3 and 6 were rightly declared as elected to the seats reserved for women, having been so notified by the Returning Officer. In his parawise comments, appended whereto is the affidavit, the Presiding Officer, has made some admissions to which we would refer later in the course of this judgment.

5. Qazi Mohammad Anwar, Advocate assisted by Mr. M. Sardar Khan, Advocate appeared on behalf of the petitioners. S. Ibne Ali, Advocate‑General appeared on behalf of the respondents No.8 and Mian Mohammad Younin Shah, Advocate assisted by Qazi Mohammad Jamil, Advocate appeared on behalf of respondents Nos. 3 and

6. They all have been heard at length.

6. The learned counsel appearing for the respondents Nos. 3 and 6 raised some preliminary objection first of which is that since in the Ordinance and the Rules machinery for redress of the wrong alleged by the petitioners has been provided for, through the machinery of the Election Tribunal, and since the petitioners have not exhausted that remedy, they cannot invoke the Constitutional jurisdiction of this Court by making this petition. Reliance in this regard is placed on Tariq Transport Co. Lahore v. Sargodha‑Bhera Bus Service PLD 1958 Supreme Court (Pak) 437). Abdullah Hussain Haroon v. Provincial Election Authority, Sind P L D 1984 Karachi 472 and Mehboob Ali Malik v. Province of West Pakistan P L D 1963 W.P. Lahore

575. The second objection raised is that since the controversy between the parties involves disputed questions of fact requiring detailed enquiry, remedy by means of writ is not available. The third such objection is that the Election Authority and the Returning Officer having not been made party in this petition, no relief in their absence can be given to the petitioners. The last objection is that joint petition by the two petitioners is not competent.

7. In reply, the learned counsel for the petitioners contends that it is wrong to say that remedy by way of election petition to the Election Tribunal was available to the petitioners and having not availed of that remedy they could not invoke the Constitutional jurisdiction of this Court. He contends that the complaint made in this petition neither relates to the conduct or the manner of the election nor to the violation of any provision of the Ordinance or the Rules, nor does it relate to any corrupt or illegal practice committed by the candidates contesting the election or their agents or any one else acting on their behalf. He submits that the only grievance of the petitioners is that the result initially declared by the Presiding Officer, being the legally declared result, held the field and could not have been replaced by another result, and having once declared the result, the Presiding Officer became functus officio and could not, therefore, declare the second result, showing the respondents Nos.3 and 6 as elected, which being in excess of jurisdiction was without lawful authority. The illegality and excess of jurisdiction being patent on the record, the learned counsel submits, could be corrected by this Court in its Constitutional jurisdiction which the petitioners have invoked. He further maintains that there is no dispute on facts between the parties hereto and the illegality and the excess of jurisdiction being patent on the record did not require any detailed enquiry into facts for granting the relief claimed by the petitioners. Reliance is placed on Murree Brewery Co. Ltd. v. Pakistan PLD 1970 Lahore 821 and Premier Cloth Mills Ltd. v. Sales Tax Officer) (1972 SCMR 257). His contention also is that since the grievance is against the Presiding Officer, the Returning Officer is not a necessary party in this case the Provincial Government having already been made respondent No.8. Both the petitioners being aggrieved by the same action taken by the Presiding Officer, could make a joint petition for their redress, as has been done here. In this regard he refers us to Abdul Malik v. Chief Settlement Commissioner PLD 1967 Lahore 520).

8. We have carefully considered the arguments advanced by the learned counsel at the Bar, in regard to preliminary objections, in the light of the law cited above. Reading the writ petition as a whole, the precise grievance of the petitioners appears to be that having first declared them elected, after counting of valid votes, to the two seats reserved for women, the Presiding Officer did not have the jurisdiction to review his previous declaration and, by way of second result, declare the respondents Nos. 3 and 6 as elected. While elaborating his arguments the learned counsel contended before us, on behalf of the petitioners, that in the event of there being a single polling station, as was the case here, rule 38 of the Rules casts duty upon the Presiding Officer to declare the contesting candidate who has received the highest number of votes elected to the seat for which he is contesting and after it is done, the Presiding Officer becomes functus officio and is left with no power, in law, to review the result already declared by him, and that also upon interference from above who in law have no power to do so. In this respect he invited our attention to the written comments, alongwith affidavit, submitted by the Presiding Officer (respondent No. 1) especially paragraph 6 thereof, wherein it is written that on initial counting the petitioners, having each obtained nineteen votes as against eighteen votes obtained by the respondents Nos. 3 and 6 each, were declared elected. Not only that, the result so declared was also incorporated in Form XI. It was upon objection raised by the other party that the heated discussion ensued. On rechecking by the 'authorities' it was found that some invalid votes had been counted, which were therefore excluded from the count and a new Form XI respecting the result was prepared and the Presiding Officer was asked to sign it, which he did, is also mentioned in the said para. While taking exception to this second declaration as admitted by the, Presiding Officer, the learned counsel for the petitioners submitted that in the law and the rules referred to above no such 'authority' ever figures and since in fact it was not the Presiding Officer who had re‑checked the ballot papers and reframed the result but it was the 'authority' having no jurisdiction at all which got this so‑called new result signed by the Presiding Officer, the error of law was patent on the record which rendered the second declaration as invalid, and being in excess of jurisdiction was without lawful authority. There is substance in these arguments. The law referred to above, though provides chance to the Presiding Officer to correct the mistake or error inadvertently committed by him in the course of counting of valid votes, does not permit any other authority to do any re‑counting for him, what to say of obtaining from him the signatures on an already prepared Form. It is true that subsequent to the process of the declaration of result the Ordinance and the Rules do contain provisions for further scrutiny of the result and for resolving the disputes between the parties by means of election petition, but that stage had not reached nor has the reaching of that stage been advocated by either party appearing before us. Further, the complaint of the petitioners, as already noticed, is confined to the performance of the functions assigned to the Presiding Officer under Rule 38 of the Rules. Where such a controversy can be resolved by the Court on the record placed before it, without requiring any further enquiry into facts, and where excess of jurisdiction or legal error is patent on the face of the record, as in this case, then Constitutional petition is maintainable. This appears to be the consensus of the authorities) cited at the Bar.

9. The Provincial Government, through Election Authority, has already been made party in this writ petition and in the circumstances referred to above, the Returning Officer does not appear to be a necessary party.

10. Since both the petitioners have common grievance and the action complained against equally affects both of them, they could legally file joint petition. The respondents Nos. 3 and 6 , who complain C of such a course, have also filed joint written statement. In the circumstances, this objection raised by the learned counsel for the respondents Nos. 3 and 6 is without substance.

11. Coming to the merits of the case, the precise grievance of the petitioners, as already noticed and to be repeated at the cost of repetition, is that after counting the valid votes cast in favour of the contesting candidates and. after declaring the result in terms of rule 38 of the Rules in ‑favour of the petitioners, on the basis of having secured as against the opposing candidates highest number of votes, further process should have been completed by the Presiding Officer in terms of that result and no outside authority could obtain from him signatures on the result prepared by that authority wrongly showing the respondents Nos. 3 and 6 to have obtained valid votes more than those secured by the petitioners. In so far as the total number of votes polled and the number of invalid votes is concerned, there is no dispute between the parties, nor has this fact been disputed by the Presiding Officer who had counted the votes. The dispute only relates to the number of votes secured by each contesting candidate. The petitioner case is that 'they obtained more valid votes than the respondent Nos. 3 and 6, but the case of the respondents Nos. 3 and 6 is that they had secured more votes than the petitioners. There are available on the record two results entered in Form XI (Annexures 'B' and 'C' to the petition), one of which (Annexure 'B') shows that each petitioner had obtained nineteen valid votes and the respondents Nos. 3 and 6 had each obtained eighteen valid votes. This result appears to have been compiled by the Presiding Officer himself under his signatures and was first in point of time, which fact has not been disputed by him. The other result (Annexure 'C') shows that the respondents Nos. 3 and 6 had each obtained nineteen votes and the petitioners had obtained eighteen votes each. This result appears to have been compiled by some other person, and on its signatures of the Presiding Officer were obtained, as mentioned in paragraph 6, read with paragraph 18, of the written comments filed by the respondent No.l. This second result is said by the petitioners to be of no legal consequence, as it was prepared by the 'authorities', the term used by the Presiding Officer in his written comments, who had no jurisdiction in law to undertake this exercise. The fact that the Presiding Officer was asked to sign this second result is admitted by him. Such a result, emanating from the 'authority' having no jurisdiction in the matter, was of no legal consequence, as it could not be regarded as the one declared or compiled by the Presiding Officer of his free consent or independent will. His signing this result being in excess of jurisdiction conferred no legal sanctity upon such a document.

12. In paragraph 18 of the written comments furnished by the Presiding Officer it has been pleaded that both the Forms containing divergent results were correct. We are, however, unable to persuade ourselves to accept this assertion, for the two opposite things in one situation could not have been so.

13. It is urged on behalf of the contesting respondents Nos. 3 and 6, which argument has been adopted by the learned Advocate General, that the first result showing the petitioners as elected had no legal existence and that the second result, which was duly notified by the Returning Officer, was the only result declared by the Presiding Officer to which legal sanctity was attached. Consequently, it is urged, the respondents Nos. 3 and 6 are the persons who have been declared elected to the seats reserved for women, and also so notified by tree Returning Officer. This argument can only be accepted if we close our eyes to what is mentioned by the Presiding Officer in paragraph 6 of his written comments: The existence of the result (Annexure 'B') in favour of the petitioners cannot, therefore, be disputed and that is the result which the Presiding Officer had himself declared, as admitted by him, as a result of initial counting. Rule 38 of the Rules, as already noticed, is also to the effect that in similar situation the Presiding Officer, after counting the votes, has to declare the candidate securing highest number of votes as elected. Having done so in this case, we are prepared to accept, the Presiding Officer could revise the result if after recounting by him in presence of the candidates or their agents, who cared to be present on the occasion, some error was detected and the result was different from the one already declared. But here what happened was that the rechecking was done not by the Presiding Officer but by the 'authorities' who in law had no such power or jurisdiction and the result was also compiled by the same 'authorities' on which were obtained the signatures of the Presiding Officer. Suchre‑counting and re‑compiling of the result, being not by the person authorized by law, was of no legal consequence, hence conferred no right on those who claim legal status through it. We have also noticed one other anomaly in the second result. The number of invalid votes remained the same on both the occasions. But the number of votes obtained by each petitioner in second counting was shown to be eighteen and the number of votes obtained by the respondents Nos. 3 and 6 was shown to be nineteen each. The reason stated by the Presiding Officer in paragraph 6 of his written comments for this change was that 'certain invalid votes were counted which were excluded from the count'. If this were so, then the number of invalid votes in second counting should have been more than four but it was not so, which by itself is sufficient to indicate that all was not fair in the game.

14. This, however, is not the end of the matter. The exercise to be deemed as legally completed so far is upto the stage of the declaration of the first result by the Presiding Officer. The notification issued by the Returning Officer notifying the names of the respondents Nos. 3 and 6 as the returned candidates is of no legal effect because of having no legal basis. The learned counsel appearing for the respondents Nos. 3 and 6 during the course of arguments expressed concern that the interference by this Court at this stage would also close the door to the parties for the Election Tribunal. This apprehension is misconceived because the matters falling for determination by the Election Tribunal have not been gone into by this court and were yet to be looked into by that forum. Each party, would have, therefore, been free to take the matter to the Election Tribunal on the grounds available to it in law after it was held by this Court that out of the two results which was the one to be deemed as legally declared by the Presiding Officer in terms of rule 38 of the Rules. However, for the reasons that ugly situation had developed at the time of counting of the votes, that the Presiding Officer had shifted, alongwith' papers relating to the election, to a place to which the contesting candidates or their agents had no access, that the result showing the respondents Nos. 3 and 6 as elected had been prepared at that place, and that also by the persons having no authority in law to do so, the petitioners were justified in entertaining the doubt, as expressed by them in this petition, that the valid votes obtained by them may have been wrongly invalidated' in that process. It is a well‑settled principle of natural justice that the justice should not only be done but it should also appear to have been done, which appears to have been violated by the Presiding Officer, voluntarily or under compulsion, in this case. The conduct of the Presiding Officer and the statement made by him, supported by affidavit, that he regards both the results as correct, which unfortunately is untrue, makes us to think whether or not we should place explicit reliance on what has been declared by the Presiding Officer in this case. In the circumstances already referred to and because the secrecy of the votes appears to have been violated, the scrutiny of the ballot‑papers in further process may reasonably be not acceptable. For all these reasons, we deem it just and proper that the results already declared be set at naught and re‑election ordered. Since under Rule 47 of the Rules it is the duty of the Government to call upon the electors to elect women representatives and since Government is party before us in these proceedings, we can safely order for re‑election.

15. The net result is that the two results already declared by the Presiding Officer, as also the notification issued by the Returning Officer in that behalf, are declared null and void. We further direct that the respondent No. 8 shall arrange to hold fresh election as early as possible, permitting only those women candidates to contest who had already contested the election (the petitioners and the respondents Nos. 2 to 7), whose nomination papers were already found valid. We may further observe that for the purpose of re‑election will it not be more appropriate to appoint senior officers, preferable from the judiciary and certainly not the Local Government Employees who have to work in the Corporation, to conduct the election. In the circumstances we shall make no orders as to costs. A.A./600/P Petition accepted.