P L D 2002 Peshawar 173 (PLP)

The above principle has been reiterated by this Court repeatedly. Suffice to refer to the case of Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, the case of the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, the case of Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231, the case of Muhammad Umar v. Member, Board of Revenue and 9 others 1985 SCMR 1591, the case of Messrs Norwhich Union Fire Insurance Society Limited v. Muhammad Javed and another 1986 SCMR 1071 and the case of Zamir Ahmad and another v. Bashir Ahmad and others 1988 SCMR 516."

11. Thus we restrain to issue writ while exercising equitable jurisdiction which would perpetuate the illegal order of the Returning Office. Hence the petition stands dismissed. , (Sd.) Khalida Rachid, J. MUHAMMAD QAIM JAN KHAN, J.‑‑‑ The present Constitutional petition is directed against the order of the Chief Election Commissioner dated 16‑7‑2001 vide which respondents Nos. 4 and 5 have been declared as successful candidates for the post of Nazim and Naib Nazim from Union Council Mera Kachori, Peshawar.

2. Further facts as detailed in the petition are that the petitioner alongwith Ehsanullah Khan contested the election from Mera Kachori, Peshawar for the post of Nazim and Naib Nazim respectively held on 2‑7‑2001. Respondents Nos.4 and 5 were also candidates fair the post of Nazim and Naib Nazim from the same constituency. At the close of the polling the Presiding Officer by excluding the valid ballot; papers of the petitioner announced the result of respondents Nos. 4 and 5.

3. The petitioner submitted an application for recount of the ballot papers. The application was accepted by the District Returning Officer and Returning Officer was directed to re‑count the ballot papers, and consolidate the result after recounting of the ballot papers. That during the re‑count of the ballot papers of the Government Girls Primary School Malogo, it was found that 3 boxes of the ballot papers of the said polling station had not been counted in the initial counting by the Presiding Officer. During the re?counting of this polling station from box I, 334 ballot papers of respondents Nos.4 and 5 were found to be invalid for absence of the signature of the Presiding Officer/Polling Officer and 31 such invalid ballot papers of the petitioner were excluded This changed the initial result and brought the number of the valid ballot papers of petitioner to 2346 as against 2054 of respondents Nos. 4 and 5 Thus the petitioner got the lead of 292 ballot papers. The parties agreed that there was no fun for further re‑counting and thus the victory of the petitioner became anal. The result of the aforesaid re?counting were compiled with the initial count of the Presiding Officer and Returning Officer consolidated these results on Form XVI and declared the panel of the petitioner as returned on 8‑7‑2001. The respondents Nos. 4 and 5 then tiled the petition before the Chief Election Commissioner against the aforesaid result by pre‑dating the same as 7‑7‑2001 and after hearing the parties, on 16‑7‑2001 at Islamabad the Presiding Officer offered a verbal explanation that it was due to mistake that some of the ballot papers of Polling Station No.7 Malogo remained unsigned and the Chief Election Commissioner vide his order of the same day set aside the declared result in favour of the petitioner and declared respondents Nos. 4 and 5 elected from the Union Council Mera Kachori. Peshawar.

4. The contention of the learned counsel for the petitioner is that once the ballot papers had been re‑counted and the results are consolidated under rule 40 of N.‑W.F.P. Local Government Elections Ordinance, 2000 and Rules on Form XVI then no forum including the Chief Election Commissioner had any authority or jurisdiction to interfere in the matter and. therefore the order of the Chief Election Commissioner is in excess of lawful authority an jurisdiction. He also referred to PLD 1989 Supreme Court 396.

5. Learned counsel for the respondents mainly based his arguments on the point that the District Returning Officer and 'Returning Officer etc. are the creation of the Election Commissioner and he can invest powers to these functionaries. He can also exercise the same powers. With regard to the jurisdiction of the Court he plainly stated that this Court has ho jurisdiction to entertain such‑like petition.

6. The matter is simple and short. Under the N.‑W.F.P. Local Government Elections Ordinance and the Elections Rules as well as under the Constitution of Islamic Republic of Pakistan, 1973 the Chief Election Commissioner has no authority to sit over the result already declared by the District Returning Officer and if there is any dispute the proper forum is the I Tribunal: Neither in the N.‑W.F.P. Local Government Elections Ordinance and Elections Rules, 2000 nor in Article 219 of the Constitution of Islamic Republic of Pakistan, 1973 such powers had been given to the Chief Election Commissioner and although it is not applicable in the present case even then for arguments sake the duties of the Chief Election Commissioner under Article 219 of the Constitution are:‑‑ (a) preparing electoral rolls for election to the National Assembly and the Provincial Assemblies, and revising such rolls annually; (b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and (c) appointing Election Tribunal.

7. These are the duties of the Chief Election Commissioner under Article 219 of the Constitution of Islamic Republic of Pakistan, 1973. As far as the N.‑W.F.P. Local Government Elections Ordinance and Rules are concerned those are also silent with regard to the adjudication powers of the Chief Election Commissioner. A Division Bench of this Court in Writ Petition No.878 of 2001 has also held the same view.

8. As far as rule 34(2)(iii)(iv) is concerned it is mandatory upon the Presiding Officer that before issuing ballot papers to an elector, the ballot paper shall be stamped on its back with official mark and signed by the Presiding Officer and the stamp and signature means the official marts and although the purpose of this Court in such‑like petitions is to do substantial justice but it should not mean that an illegal act should be made a legal one. So in this background of the case, the writ petition is allowed and the order of the Chief Election Commissioner dated 16‑7‑2001 declaring respondents Nos. 4 and 5 as successful is ultra vires and without jurisdiction and is, therefore, set aside and the order dated 8‑7‑2001 is restored. (Sd.) Muhammad Qaim Jan Khan, J. IJAZ‑UL‑HASSAN, J.‑‑Invoking Constitutional jurisdiction of this Court, Arbab Aamir Ayub Khan and Ehsanullah Khan petitioners filed Writ Petition bearing No.903 of 2001 against Chief Election Commissioner of Pakistan, Islamabad and four other respondents, containing the following prayer:‑‑ "That on acceptance of this petition the judgment dated 16‑7‑2001 of the Chief Election Commissioner be declared to be a judgment in excess of lawful authority and jurisdiction and therefore of no legal effect and the same be set aside and the consolidation of the result by the Returning Officer dated 8‑7‑2001 be restored and appropriate orders/directions be issued that petitioner and his Naib Nazim be allowed to function on their respective offices, with such other relief as may be deemed proper in the circumstances of the case."

2. Shortly narrated the facts enumerated in this writ petition are, that petitioner No. l for the office of the Nazim alongwith Ehsanullah Khan petitioner No.2 as Naib Nazim contested the election from Union Council Maira Kachori, Peshawar held on 2‑7‑2001. Usman Alam and Shah Jehan respondents Nos. 4 and 5 were opposing candidates from the same constituency. At the close of the polling the Presiding Officer, stated to have excluded the valid ballot papers of the petitioners, announced the result declaring respondents Nos. 4 and 5 returned. The petitioner moved an application before the District Returning Officer for the re‑count of the ballot papers under Rule 40, sub‑rule (6) of the N.‑W.F.P. Local Government Elections Rules, 2000. The application was allowed and Returning Officer was directed to recount the ballot papers and consolidate the result after the re‑counting of the ballot papers. The ballot papers were re‑counted and during the re‑count while re‑counting the ballot papers of the Polling Station Government Girls Primary School Malogo, it was found that three boxes of the ballot papers of said Polling Station had not been counted in the initial counting by the Presiding Officer. During re‑counting of this Polling Station from Box-1, 334 ballot papers of respondents Nos. 4 and 5 were found to be invalid for absence of the signatures of the Presiding Officer/Polling Officer and 31 such invalid ballot papers of the petitioners were excluded. This exercise changed the initial result and brought the number of the valid ballot papers of petitioner to 2346 as against 2054 of respondents Nos. 4 and

5. Thus giving petitioners a lead of 292 ballot papers. The parties agreed not to go for further re‑counting. It may be mentioned here that during the initial count, as well as the re‑count the ballot papers polled for the petitioners which did not have the signatures of the Presiding Officer/Polling Officer were excluded from the count, and in the re‑count the same treatment in Malogo Polling Station was given to respondents Nos. 4 and

5. As a result of the aforesaid re‑counting the results were compiled with the initial count of the Presiding Officer and the Returning Officer consolidated the results on Form XVI declared the .panel of the petitioner as returned on 8‑7‑2001. Respondents Nos. 4 and 5 feeling aggrieved moved the Chief Election Commissioner in the matter who passed an order on 9‑7‑2001 to the effect that if the result has not been announced, the same should not be notified and issued the notices to the Returning Officer and the Presiding Officer. The Chief Election Commissioner on 16‑7‑2001 heard the matter at Islamabad and the Presiding Officer stated before him that per mistake he omitted to sign the ballot papers of Polling Station No.7 Malogo which were initially counted by the Presiding Officer in favour of respondents Nos. 4 and

5. Resultantly the Chief Election Commissioner, accepted the petition of respondents Nos. 4 and 5, set aside the declared results in favour of the petitioner and declared respondents Nos. 4 and 5 elected from the Union Council Maira Kachori, Peshawar.

3. Qazi Muhammad Anwar, Advocate learned counsel for the petitioner contended inter alia that once the ballot papers had been recounted by the Returning Officer and results consolidated under Rule 40 of N.W.F.P. Local Government Elections Rules on Form XVI, no forum including the Chief Election Commissioner had any authority or jurisdiction to interfere in the matter. He added that under Rule 34 of the Election Rules the voting procedure is prescribed and under Rule 34(2)(iii) a valid ballot paper shall be a ballot paper which had been stamped with the official mark and signed by the Presiding Officer. The omission of the Presiding Officer to sign the ballot paper at the time of the issuing of the ballot papers, would raise a strong presumption that the ballot papers have not been issued by the Presiding Officer. The learned counsel reiterated that under the N.‑W.F.P. Local Government Elections Ordinance, 2000 and Rules made under section 39 of the said Ordinance, known as N.‑W.F.P. Local Government Elections Rules, 2000, the Chief Election Commissioner, does not possess the powers/jurisdiction to interfere in result, once the result has been consolidated under Rule 40 of the Election Rules. Concluding the arguments the learned counsel submitted that the judgment of the Chief Election Commissioner is, on face of it, in excess of lawful authority and jurisdiction and thus cannot be allowed to remain intact. In support of the contentions, reliance was placed on Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others PLD 1989 SC 396.

4. Mr. Abdul Latif Afridi, Advocate for respondents Nos.4 and 5 on the contrary, supported the impugned order and judgment and maintained, that keeping in view the facts and circumstances of the case, the Chief Election Commissioner of Pakistan had valid .reasons to intervene and pass the order in question. He relied on Muhammad Nazir Hakim v. Bakhtiar Said Muhammad and the .Controlling Authority, Montgomery PLO 1962 (W.P.) Lahore 421, Amirzada Khan, M.N.A. v. The Chief Election Commissioner and 2 others PLO 1974 Lahore 178, Haji Muhammad Afzal and others v. Mian Miraj Din and others PLD 1967 Lahore 689, Lt.‑Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Lahore PLD 1970 SC 98, Niaz Ahmad Khan v. Province of Sindh and others PLO 1977 Karachi 604 and Mian Jamal Shah v. The Member Election Commission, Government of Pakistan, Lahore and others PLO 1966 SC 1.

5. It may be pertinently mentioned here that the writ petition came up for hearing before a Division Bench, comprising of Hon'ble Justice Mrs. Khalida Rachid and Hon'ble Mr. Justice Muhammad Qaim Jan Khan. Hon'ble Mrs. Justices Khalida Rachid restrained to issue writ and dismissed the petition with the observations:‑‑, "That the Chief Election Commissioner did not possess the powers under the Ordinance as well as the Rules whereunder to suggest that the Chief Election Commissioner had adjudicating powers to interfere with the orders of the Presiding 'Officer. With the able assistance of the learned counsel for the parties, we have thoroughly examined the relevant election law but failed to find any provision suggesting that Chief Election Commissioner was vested with the powers of sitting over the orders of the Returning Officer. We have no intention to take cudgel with the principle that the Delegator after delegating his authority is not divested and deprived of his powers under the law. It is a well‑settled rule that the delegator and delegatee both can exercise powers concurrently but the powers could only be exercised where the delegator possessed of the powers which he had delegated under the law. We may not forget to mention that powers exercised by the Presiding Officer, Returning Officer, Election Tribunal for adjudicating election disputes are drawn from the Statute itself and not conferred by the Chief Election Commissioner. These powers can rightly be termed as inherent powers of the Presiding Officer, Returning Officer etc. thus we have no hesitation to hold that Chief Election Commissioner has the administrative responsibilities and not adjudicating powers." The Hon'ble Judge on the strength of Syed Ali Shah v. Abdul Saghir Khan Sherwani PLO 1990 SC 504 further observed: "While exercising Constitutional jurisdiction, which is equitable jurisdiction, the Court can always take into consideration that naked injustice may not be done to any party. The contesting respondents cannot be made to suffer for the oversight or negligence of the functionaries. Firstly, the Presiding Officer failed to comply with the provision of rule 34 by not signing the ballot paper before handing over the same to the voter which was required to have been signed and stamped with official mark and secondly, the Returning Officer misinterpreted the law under rule 39 of the rules (ibid) ignoring the stamp of official mark on the ballot paper which was the only requirement at that stage. Article 199 of the Constitution grants extraordinary remedy which is essentially discretionary. It is therefore, open to the Court to foster the cause of justice and not to extend the scope of Constitutional jurisdiction in aid of injustice."

6. Hon'ble Mr. Justice Muhammad Qaim Jan Khan accepted the petition, set aside the order of the Chief Election Commissioner dated 16‑7‑2001 declaring respondents Nos. 4 and 5 as successful and resorted the order dated 8‑7‑2001 with the observations:‑‑ "Under the N.‑W.F.P. Local Government Elections Ordinance and the Election Rules as well as under the Constitution of Islamic Republic of Pakistan, 1973 the Chief Election Commissioner has no authority to sit over the result already declared by the District Returning Officer and if there is any dispute the proper forum is the Tribunal." The Hon'ble Judge further pointed out:‑‑ "As far as rule 34(2)(iii)(iv) it is mandatory upon the Presiding Officer that before issuing ballot paper to an elector, the ballot paper shall be stamped on its back with official mark and signed by the Presiding Officer and the stamp and signature means the official mark and although the purpose of this Court in such‑like petitions is to do substantial justice but it should not mean that an illegal act should be made a legal one."

7. In view of the difference of opinion between the Hon'ble Judges comprising the Bench, the matter has been referred to me by his Lordship the Chief Justice for third opinion. The questions formulated by the said Division Bench are as under:‑‑ ? Justice Khalida Rachid "Whether the High Court while exercising Constitutional/equitable jurisdiction, can take into consideration that naked injustice may not be done to any party and that any party cannot be made to suffer for the ever-sight or negligence of the Government functionaries. Justice Muhammad Qaim Jan Khan "Whether the Chief Election Commissioner has got any authority to sit over the result already declared by the District .Returning Officer or not because the proper forum is the Tribunal and not the Election Commissioner. Neither in the N.‑W.F.P. Local Government Elections Ordinance and Elections Rules, 2000, not in Article 219 of the Constitution of Islamic Republic of Pakistan, 1973, such powers had been given to the Chief Election Commissioner (although the Article of the Constitution is not applicable in the present case) even then for arguments sake the duties of the Election Commissioner under Article 219 of the Constitution had been given which are as under:‑‑ (a) prepare electoral rolls for election to the National Assembly and the Provincial Assemblies and revising such rolls annually. (b) organizing and conducting election to the Senate or to fill vacancy in a house of Provincial Assembly and ? (c) appointing Election Tribunal.? These duties are under Article 219 of the Constitution of Islamic Republic of Pakistan, 1973. The present case is under the N.?W.F.P. Local Government Elections Ordinance and Rules which are quite silent with regard to the adjudication powers of the Chief Election Commissioner and in this behalf I am supported by the judgment of a Division Bench of this Court in Writ Petition No.876 of 2001, holding the same view.? As far as Rule 34(2)(iii)(iv), it is mandatory upon the Presiding Officer before issuing ballot papers to an elector that it shall be stamped on its back with official mark and signed by the Presiding Officer and the stamp and signature means the "official mark". The object of this Court is to do substantial justice but it should not mean that an illegal act of a Government functionary should be made legal one by flimsy arguments. So the only question for determination in the instant writ petition is the jurisdiction and authority of Chief Election Commissioner in the present circumstances of the case whether he has got any authority to sit, over the result already; declared by the District Returning Officer or not'. "

8. I have heard at length the arguments of Qazi Muhammad Anwar, Advocate for the petitioners and Mr. Abdul Latif Afridi, Advocate for the contesting respondents in the light of the law on the subject and the documents annexed with the petition.

9. In the instant case both the Hon'ble Judges of this Court have arrived to the conclusion that in view of the relevant provisions contained in the N.‑W.F.P. Local Government Elections Ordinance and the Elections Rules as well as under the Constitution of the Islamic Republic of Pakistan, 1973. the Chief Election Commissioner has no authority to intervene and the dispute should have been referred to the quarter concerned i.e. Election Tribunal for adjudication which has exclusive jurisdiction to deal with such‑like matters. ?

10. Having heard the arguments address from both the sides I find myself in agreement with the finding of Hon'ble Justice Mrs. Khalida Rachid that while exercising Constitutional jurisdiction, which is equitable jurisdiction, the Court can always take into consideration that naked injustice may not be done to any party and the contesting respondents cannot be penalized for lapse or oversight on the part of the Presiding Officer. Election is a continuous process as rightly urged on behalf of the answering respondents, consisting of a series of acts required to be done in different stages in accordance with law. Absence of signature due to oversight or negligence of the Presiding Officer does not by any means justify rejection of a valid ballot paper bearing the official mark in the shape of official stamp which the Presiding/Polling Officer has admitted in his statement to be genuine and valid. The beneficiary in whose favour the vote has been balloted should not suffer on account of any lapse or mistake for negligence on the part of the Government functionary.

11. Article 199 of the Constitution provides‑inter alia for a declaration, a‑prohibitory order, a mandatory order and an order in the nature of quo warranto and it is long settled that the jurisdiction possessed by the High Court in such matters is discretionary. This is clear from the use of the word 'may' in the opening part of the Article. The object of such orders is to foster justice and to right a wrong.

12. In the wake of above discussion, while concurring with the opinion of Hon'ble Justice Mrs. Khalida Rachid I decline to issue writ and dismiss the petition with no order as to costs. M.B.A./553/P ???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.