2000 PLP 1678 (SCMR)

CH. MUHAMMAD ARIF, J.

In this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Mirza Hassan Mahmood has challenged the judgment, dated 25-6-1998 passed in Writ Petition No. 1138 of 1998 by the learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi allowing the same in favour of respondent No.1 Ch. Muhammad Yousaf, hereinafter referred to as the writ petitioner, with the: result that order/notification, dated 30-5-1998 issued by the Punjab Local Councils Election Authority, Lahore, hereinafter referred to as PLCEA, directing re-poll at Polling Station No.57 of village Thirjial of Electoral Unit No.62, Union Council, Badhana, Zila Council, Rawalpindi was declared to be without lawful authority and of no legal effect and the respondent-authorities were mandated to issue the appropriate notification regarding election of the writ petitioner.

2. Brief facts leading to the instant petition are that petitioner Mirza Hassan Mahmood and respondent No. l Ch. Muhammad Yousaf were the contesting candidates for election to a seat of Zila Council, Rawalpindi from Electoral Unit No.62 (Badhma). The polling was held on 20-5-1998. There were eight polling stations of the Constituency. Writ petitioner secured more votes than the petitioner in seven polling stations. Writ petitioner polled 1912 votes as against 1599 votes of the petitioner. At Polling Station No.57 of village Tharjial, there was no polling at all as the voters had boycotted the election.

3. The Presiding Officer of Polling Station No.57 sent a report, dated 20-5-1998 which was forwarded by the Returning Officer seeking the advice of PLCEA. A copy of this Report is available at page.35 of the Paper Book which reads thus:-- "It is informed that the undersigned and polling staff started polling duty at 07-00 a.m. on May 20, 1998 at the said station. Attendance sheet was signed by the polling staff: Principal bag was opened and stationery was distributed among polling staff. Polling agents, candidate, voters were awaited for till 09-00 a.m. Nobody entered in the premises of Polling Station No.57 for polling purposes. At 09-00 a.m. I and A.P.O. Naeem Ahmed went out to get information. We were told that the people has boycotted the local bodies on account of changes in the delimitation of the union councils. I informed about the polling situation to the Assistant Returning Officer i.e. Assistant Commissioner, Gujar Khan on telephone. Assistant Returning Officer accompanied by the Deputy Superintendent of Police Gujar Khan visited the said polling station at 11-00 a.m. He personally held a meeting with voters and Ex -Councillors of the electoral area. To convince them to poll their votes but in vain. People told in the meeting they were protesting against the attachment of their electoral area to Union Council Badhana instead of Union Council Ghungrilla. They have unanimously sworn not to cast a single ballot paper. However, the undersigned and the polling staff remained on the duty till 04-00 p.m. No voter came in the premises of the said polling station for polling purpose. At 04-00 p.m. undersigned issued a result statement and sent it to the relevant authorities." The PLCEA, issued Notification No.EAP-46(19)/98, dated 30th May, 1998, ordering fresh poll at Polling Station No.57, Government Boys High School, Tharjial Kalan on 15th June, 1998. This notification reads thus:-- "No.EAP-46(19)/98.-In pursuance of Rule 28 of the Punjab Local Councils (Election) Rules, 1979, the Punjab Councils Election Authority declares that poll in Electoral Unit No.62, Union- Council Bhadana, Zila Council, Rawalpindi, held on 20-5-1998 at Polling Station No.57, Government Boys High Court, Tharjial Kalan to be void and fixes 15th June, 1998, as the date of fresh poll at the aforesaid polling station."

4. Writ petitioner successfully impugned the afore-quoted Notification/Order, dated 30th May, 1998 through Writ Petition No.,1338 of 1998 which was allowed by the High Court on 25-6-1998, as under:-- 8.

Where the election had been held, the dispute in respect of the election could be called in question before the Election Tribunal. It was further held that a provision for notification should not be interpreted as a condition precedent to the holding of an office. In such a case, it was laid down that an election result could not be nullified where some voters had boycotted the election while the others remained absent. No premium was put on default or non participation of some voters in a democratic process nor who followed the law could be deprived of their rights having followed the due process.

9. Even otherwise, .no exceptional circumstances were shown so as to justify the passing of the impugned order by the learned Election Authority.

10. For the foregoing reasons, the impugned order, dated 30-5-1998 passed by the learned Election Authority is declared to be without lawful authority and of no legal effect. Consequently, the result of the election of Electoral Unit No.62 (Union Council Badhana, Zila Council, Rawalpindi) may be notified in accordance with law. The writ petition is allowed with no order as to costs."

5. Hence this petition.

6. Mr. Tanvir Bashir Ansari, learned Advocate Supreme Court appearing in support of this petition has criticized the judgment by arguing that as 1300 voters did not cast their votes and as overall margin of votes between the private parties herein is. only 313 votes, therefore, notification, dated 30-5-1998 issued by PLCEA, was in order and the same could not be set aside, as done by the High Court. According to him, Rule 28 of the Punjab Local Councils (Elections) Rules, 1979, hereinafter referred to as the Rules, does cater for taking remedial steps in relation to a stoppage of polls by the Presiding Officer concerned in situation akin to the present lis. The impugned judgment of the High Court is tantamount to denying the right of franchise to as many as 130() voters and that too at the cost of the petitioner who, it is contended, might win the election if a re-poll is gone ahead, as directed by PLCEA.

7. We are afraid the plea being raised on behalf of the petitioner is totally off the mark. The report of the .Presiding Officer concerned does neither indicate his directing stoppage of poll nor the PLCEA could take any action whatsoever under Rule 28(2) ibid as it talks of such order to be resorted to either when the Presiding Officer has stopped a poll ".. under sub-rule (1) or, if any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or accidentally or intentionally destroyed, or lost, damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained, the Returning Officer shall immediately report. the circumstances to the Deputy Commissioner and the Election Authority. The Election Authority may declare the poll at that polling station to be void and direct a fresh poll at that polling station unless the Election Authority is satisfied that the result of the election has been determined by polling that has already taken place at that polling station taken with the result of the polling at other polling station taken with the result of polling station in the same electoral unit". It is not the case of the petitioner that any one of the eventualities detailed in Rule 28 ibid was present in this case to attract the exercise of jurisdiction by PLCEA for conducting fresh poll in Polling Station No.57.

8. Moreover, the failure on the part of the respondent-authorities to issue appropriate notification after the conclusion of the election-process was duly noticed in the impugned judgment, dated 25-6-1998 and issuance of a writ/order in the nature of mandamus to act in accordance with law now, most certainly advance the cause of justice. We are not impressed with the arguments of the learned counsel to the effect that failure of the voters to A participate in the election process be equated with provision of an opportunity to the PLCEA to direct a re-poll in one of the polling station. It has already been observed in para. 7 above that the Order/Notification, dated 30-5-1998 was beyond the contemplation of Rule 28 ibid. Even the failure on the part of voters to turn up in an election cannot, by any stretch of 8 imagination, take the clock back to 'pre-election-era' for resort to section 17 of the Ordinance.

9. Before parting with the matter, we may observe that all the contesting candidates are possessed of the right to challenge the election result through election petition/s in terms of section 24 of the Ordinance read with the Punjab Local Councils (Election Petitions) Rules, 1979. As C admitted by the learned counsel, appropriate notification declaring the result of the election held on 20-5-1998, has beers issued. The petitioner may, if so, advised, challenged the same on available grounds before the appropriate Election Tribunal.

10. With the above observation, the instant petition is dismissed and leave refused. Q.M.H./M.A.K./H-15/S Petition dismissed.