1992 PLP 907 (MLD)

Respondents No. 3 and 4 contested election for the membership of Zila Council, Attock. On the day of election, 4,810 votes were polled in favour of respondent No.3, whereas, 4,430 were bagged by his rival respondent No.4. Upon receiving majority mandate of the voters in his favour, respondent No.3 was found elected to the membership of Zila Council. Later, result of his election was notified and gazetted. He took oath of his office and is functioning a,, member of Zila Council. Twenty‑two female voters of Wards No.2/3 and 3/3 of Aurangabad have come in a petition under Article 199 of the Constitution of Islamic Republic of Pakistan for setting aside of the poll. It was stated that some 694 female voters from these two Wards were disenfranchised and were not allowed to cast their ballot‑papers. It was submitted that the female voters went to the Polling‑booths for exercise of their right of franchise but were denied the right by the Polling‑staff. On this ground, they claimed a fresh poll. Respondents No. l and 2 i.e. Returning Officer add Presiding Officer, in comments, denied deprivation of the petitioners. It was submitted that the female voters did not turn up during the time of poll, despite their waiting for them to exercise right of vote. It was further submitted that no complaint on this score was ever brought to their notice. Petitioners did not file rejoinder. In this state of record, it was obviously, a case of disputed factual inquiry. For a proper and satisfactory resolution of the dispute, detailed evidence was required to be taken/recorded. Ordinarily, it is not the practice of the Court to record evidence in writ jurisdiction for deciding of disputed questions of fact. Out of 694 female voters, only twenty‑two have chosen to get together and complain of disenfranchisement. Others had not joined them. They had also not been impleaded as respondents either so as to discover their version, as to whether they did or did not go to poll for exercising their right of vote by them. It was an open question, whether the female voters themselves did not leave their homes for voting, because of traditional compulsions upon them or that they did go to Polling‑booths and were denied a chance to vote. There was a margin of a little less than 400 votes between the winning and defeated candidate. Counting of twenty‑two votes would not turn the scales for converting a declared defeat into a success. It was not known, whether respondent No.4 was satisfied with the result of the election and had accepted its result or had challenged the election in an election‑petition before the Election Tribunal set up for the purpose under the law. Despite repeated questions, learned counsel was unable to satisfactorily assist on this point. He expressed his ignorance about it. That an election petition may not have been filed was unusual because acceptance of defeat without challenging it is a rare phenomenon in our country. Locus standi of the petitioners and their bona fides to challenge the result of election in a constitutional petition was, therefore, not free from doubt. That may have been put forth at the instance of the defeated candidate, who himself could have instituted an election petition before the appropriate Tribunal for getting the desired relief. There was yet another circumstance against the petitioners. They did not agitate their grievance till after the declaration and official notification of the election‑result in favour of respondent No.3. No petition was addressed to the; Provincial Election Authority in this behalf, nor to any other competent quarter. This kind of discreet silence and acquiescence spoke volumes against them Therefore, upon mere allegations of disenfranchisement of twenty‑two female voters, a chapter closed could not be reopened‑by undoing the declared result of election. It is open to the aggrieved party, defeated in the election to agitate its result in the election petition on this ground also and lead evidence to substantiate it. In view of the circumstances outlined above, it did not appear appropriate to hold a detailed factual inquiry into the alleged illegality/irregularity of the candidates or the Polling‑staff for a final decision on it, in Constitutional jurisdiction. Therefore, writ petition is dismissed summarily. A.A./K‑19/L Petition dismissed