P L D 1991 Peshawar 107 (PLP)

WALI MUHAMMAD KHAN, J.‑‑‑ Through the instant writ petition Mudassar Shah, an elector, recorded in the Electoral roll of village Devli, at Serial No. 1837, has called in question the order dated 8‑11‑1990 passed by the Election Commission, respondent No.8 herein, whereby respondent No.2 was declared elected and the earlier order of the same day whereby re‑polling in polling stations Nos.10 Jabbar and 12 Devli had been ordered, was reviewed.

2. The facts of the case briefly stated are that election to the Provincial Assembly of PF‑45 Mansehra IV was held on 28‑10‑1990 in which respondents 1 to 7 were the contesting candidates; that on the day of polling there were armed clashes between rival groups in the area of polling stations 10 Jabbar and 12 Devli of PF‑45 Mansehra IV resulting in the murder of 6 persons and injuries to others; that the polling staff in view of the occurrence had to stop the polls and refer the matter to the Election Commission under section 27 of the Representation of People Act, 1976 (Act LXXXV of 1976); that the Commission after necessary inquiry into the dispute and giving a chance of hearing to the contesting candidates came to the conclusion that the polling at the above‑mentioned two polling stations was disturbed due to the criminal case and ordered re‑polling in the said two polling stations vide a written order dated 8‑11‑1990 signed by their Lordships all the three members of the Election Commission. Just at the time of announcement thereof the Commission was informed by Malik Fazal Hussain Advocate for respondent No.l and Mohammad Zaman polling agent of respondent No.2 that they had mutually settled the dispute between them and have recorded their statements on 6‑11‑1990 already on the file. The learned Commission passed a fresh order on the same day in terms of the statements of respondents Nos.l and

2. The petitioner feels aggrieved of the subsequent order and wants the same to be declared as illegal, without lawful authority and of no legal effect.

3. The learned counsel for the petitioner strenuously argued that the impugned order amounts to review of the earlier order passed on the same day and that since the learned Commission was not invested with any power of review under the provisions of the Act ibid, the earlier order whereby re‑polling had to take place in polling stations Nos.10 and 12, under section 27 of the Act ibid had attained finality and that the subsequent order impugned herein is illegal and coram non judice.

4. When questioned by one of us (Mr.Justice Mahbub Ali Khan) as to how the petitioner feels aggrieved from the impugned order to entitle him to institute the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, he submitted that under section 33 (5) (b), the petitioner is entitled to cast vote in favour of the contesting candidate for whom he wishes to vote and that this right of his is going to be defeated if there is increase or decrease in the number of contestants who were already in the arena of previous contest. In support of his arguments he cited the judgment of august Supreme Court in case of Mian Fazal Din v. Lahore Improvement Trust, and another reported in PLD 1969 SC 223.

5. We have anxiously considered the arguments of the learned counsel for the petitioner and have carefully gone through the cited judgment. According to the Scheme of the Act ibid, the elections of the Assemblies are held and candidates are proposed and seconded by the electors for contest. Once they are declared as contesting candidates the right and duty of the electors is only to cast vote in favour of one or other candidate and thereafter they (contesting candidates) have the right to challenge the election on any grounds available in the Act before the Election Tribunal or Election Commission. All the contesting candidates were before the Election Commission at the time of passing of the impugned order and it was at their instance that the impugned order was passed. They still feel satisfied with the same inasmuch as none of the contestants has challenged the same. The petitioner who is an elector in one of the polling stations has no vested right to call in question the order of the Election Commission respondent No.8 who has the exclusive jurisdiction to ensure that the election is conducted honestly, justly and fairly and in accordance with the provisions of the Act and the Rules. The Commission is also invested with unfettered powers under section 104 of the Act ibid which provides that any thing required to be done for carrying out the purpose of the Act for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct. A bar of jurisdiction is also contained in section 105 of the Act and protection is also given to the action taken in good faith by the Commission under section 106 both of which are reproduced for ready reference. "

105. Jurisdiction of Courts barred.‑‑No Court shall question the legality of any action taken in good faith by or under the authority of the Commission, the Commissioner, a Returning Officer, Presiding Officer or an Assistant Presiding Officer or any decision given by any of them or any other officer or authority appointed under this Act or the rules.

106. Protection of action taken in good faith.‑‑‑No suit, prosecution or other legal proceeding shall lie against the Commission, the Commissioner, or any officer or other person in respect of anything which is in good faith done or intended to be done under or in pursuance of this Act or of any rule or order made or any direction given thereunder." We are therefore convinced that the petitioner does not fall within the category of aggrieved persons within the meanings of Article 199 (1) (a) of the Islamic Republic of Pakistan.

6. The authority of august Supreme Court cited above is distinguishable from the facts of the present case inasmuch as in the cited case the petitioner had purchased a piece of land just opposite the place where the proposed market had to be constructed according to the plan of the Corporation and the abandonment of the construction of the market, according to the conclusion of the Supreme Court, was bound .to deprive the petitioner before them of facility. But in the instant case the petitioner has not been deprived of the right of exercise of franchise and it would be open to him to exercise the same in favour of a candidate of his liking.

7. Since respondent No.2 had already been elected as member of the National Assembly he preferred to retain the same and resigned his membership from the Provincial Assembly. Schedule for re‑election has already been announced and on this score too we do not feel inclined to disturb the same.

8. The net result of the above discussion is that we do not rind any merit in the instant writ petition and dismiss the same in limine. AA/1205/P Petition dismissed.