1989 PLP 1833 (CLC)

6. Haji Chargul. 15

7. Habibullah. 19

8. Haji Habib Jan. 1843

9. Haji Khudai Mir. 17

10. Haji Nabi Jan. 116

11. Khudai Nazar. 42

12. Doctor Muhammad Issa. 126

13. Abdul Hameed Khan. 5122

14. Abdul Ali s/o Haji Noor Muhammad. 375

15. Abdul Ali s/o Khuda Nazar‑. 179

16. Ali Muhammad Khan, Achakzai. 259 17. lnaitullah Khan. 297

18. Mahboob Khan. 77

19. Muhammad Hussain Bacha. 13

20. Malik Fazal Muhammad. 94

21. Maulvi Abdul Hakim 2469

22. Mir Alam. 37

23. Nasir Ahmed Bacha. 2409

24. Abdul Ghani. 74

25. Abdul Majid Khan. 13 Total number of valid votes polled. 17287 Total number of rejected votes. . ‑ 487 Total number of tendered votes. Nil. Sd/Rcturning Officer PB‑9 Pishin IV Dated 22‑11‑1988, Place: Chaman. ‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑ ‑ ‑‑‑ ‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Respondent No.1 (Election Commission of Pakistan) gave notice to petitioner and respondents. In response to the same petitioner on 29‑11‑19&8 submitted written representation explaining his stand. However the Election Commission after hearing counsel for contesting parties, by means of order dated 1‑12‑19&S declared the result of entire constituency as void, and directed holding of fresh polls in accordance with section 108 of "The Representation Act'. The order is reproduced below:‑ BEFORE THE ELECTION COMMISSION OF PAKISTAN ELECTION IN RESPECT OF CONSTITUTENCY NO,,PB‑9 PISHIN‑IV Present: Mr. Iftikhar Hussain Ch., Advocate for petitioncr. Mr. M. Zafar Advocate for the respondent. After going through the report of the District Returning Officer, the learned counsel for respondent had to concede that in relation to polling stations Nos.43 and 44 there is evidence of removal of the ballot‑boxes which constitutes malpractice and in the circumstances repoll may be ordered in respect of these polling stations only. (2). We have gone through the report of the District Returning Officer. Admittedly, three ballot boxes with all the ballot papers therein arc missing regarding which a case has been registered at Chaman Police Station. There can be no better evidence of rigging and malpractice in this constituency. (3). In the circumstances we are satisfied that it is a fit case for interference under section 103‑AA of the Representation of People Act, 1976,. Consequently, the result of the entire constituency is declared void and fresh polls are directed in the manner provided in section 108 of the Representation of People Act, 1976. Sd/‑CHIFE ELECTION COMMISSIONER. Sd/‑MEMBER ELECTION COMMISSION. Sd/‑MEMBER ELECTION COMMISSION. Islamabad. 1st December, 1988." Aggrieved from aforesaid decision, present petition was filed in this Court on 5‑2‑1989. Mr. M. Zafar, learned counsel for petitioner raised following contentions: (i) Respondent No.l illegally assumed jurisdiction for declaring polls of Constituency PB‑9 Pishin IV as void, whereas available record neither disclosed illegality nor violation of any provisions of "The Representation Act", or 'The Election Rules'; specially when ultimate result of the election has also not been materially affected. (ii) Section 27(1)(B) of `The Representation Act' expressly caters for special situation created by disgruntled elements and losing candidates in trying to remove, damage or destroy ballot‑boxes of ballot papers; therefore, assumption of jurisdiction under section 103‑AA of `The Representation Act' which is apparently a general provision was not warranted. (iii) Undisputedly total number of votes in polling stations 43 and 44 (Zaimel of PB‑9 Pishin IV are 2782 (two thousand seven hundred eighty‑two), as also reflected from Gazette Notification. Out of these evidently 997 used votes were taken into custody from two ballot‑boxes recovered by police and levies from miscreants out of which 950 votes were marked in favour of the petitioner. Thus from aforesaid two polling stations at best 1,785 votes could not be conveniently accounted for. In the circumstances even if total number of remaining votes of 1,785 are counted individually in favour of any of the respondents, the total number of votes secured by them including 1,785 shall be much less than number of votes held by petitioner. It was thus contended that conclusions arrived at by respondent No.l are arbitrary, without assigning reasons and contrary to admitted factual position. (iv) Removal of ballot‑boxes was not attributed to the petitioner, therefore, he could not be made to suffer for the deeds of any of respondents, their supporters or group of miscreants.

3. Mr. Muhammad Yaqoob Khan Eusufzai, learned counsel for respondent No.l vehemently urged, that Election Commission under section 103‑AA of `The Representation Act' had jurisdiction .to decide question relating to validity of election which has been properly exercised on the admitted facts;. therefore, interference by invoking constitutional remedy is not available to the petitioner. He emphasised that in view of principle of law. discussed in C.P. No.96‑11/89 Haji Muhammad Ayub Khan v. Alam Zab and others; present petition is not maintainable.

4. Mr. Basharatullah learned counsel for respondent No.6 strenuously opposing the petition submitted that; (i) Impugned order was passed by the Election Commission in exercise of jurisdiction prescribed under section 103‑AA of `The Representation Act'. According to him requirements of sections 38 to 42 of `The Representation Act' and Rule 26 of 'The Election Rules' have been clearly violated. Therefore, in the absence of sound reasoning to form any different view the petition is not maintainable. Learned counsel canvassed that grievances or grounds of challenging the election of the constituency may relate to one or more polling stations, or could be even on account of the conduct of any Presiding Officer or Returning Officer whereby 'Election Commission' is satisfied about breach of relevant law and rules. lie further argued that bar of jurisdiction contained in section 105 of 'The Representation Act', directly affects, maintainability of present petition. Besides unreported judgment of Honourable Supreme Court produced by learned counsel for respondent No.l was also relied. Lastly it was contended that petitioner could not be permitted to set up a new case at the stage of invoking constitutional jurisdiction.

5. We considered all aspects urged before us and the relevant law and by short order dated 10th May 1989 had accepted the petition holding that decision dated Ist December, 1989 of respondent No.l was without lawful authority. Accordingly petitioner was declared to have been validly elected from constituency PB‑9 Pishin IV, on the following reasoning: Main question for determination therefore revolves around existence of jurisdiction and its validity in exercising by the Election Commission of Pakistan. In this behalf it would be appropriate to set out below, relevant provisions namely sections 27(1)(b) and 103‑AA of 'The Representation Act' which were discussed on behalf of the parties:‑ "

27. Stopping of the polls.‑‑(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if‑‑ (a) the poll at the polling station is at any time, so interrupted or obstructed for reasons, beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 26; or (b) any ballot‑box used at the polling station is unlawfully taken out of the custody of the Presiding Officer or is accidentally or intentionally destroyed, or is lost or is damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained. (2) Where a poll has been stopped under subsection (1) the Returning Officer shall immediately report the circumstances to the Commission and the Commission shall direct a fresh poll at that polling station, unless it is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling stations, in the same constituency. (3) Where the Commission orders a fresh poll under subsection (2), it shall, by notification in the official Gazette‑‑ (a) appoint a day for a fresh poll and fix the place at which and the hours during which such fresh poll shall be taken; and (b) the Returning Officer shall give public notice of the day so appointed and the place and hours so fixed. (4) At a fresh poll taken under subsection (3) at a polling station, all electors entitled to vote thereat shall be allowed to vote and no vote cast at the poll stopped under subsection (1) shall be counted; and the provisions of this Act and the rules and orders made thereunder shall apply to such fresh poll." `103‑AA. Power of Commission to declare a poll void.‑‑(1) Notwith standing anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108. (2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the power conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal. (3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII regulate its own procedure." It may be seen that section 27(1)(b) expressly caters for special situation wherein ballot‑boxes used at the polling station, are unlawfully taken away from the custody of the Presiding Officer and are destroyed, lost, damaged, or tampered with whereupon result of such polling station cannot be ascertained. Evidently the Returning Officer is obliged to communicate such happening to Election Commission who shall direct fresh polls, unless satisfied that result of the election in the said constituency is appropriately determinable on the basis of voting already held in the remaining polling stations. Anyhow powers of `Election Commission' for directing fresh polls in a particular polling station and procedure for counting are specified in subsections (3) and (4) of section

27. Whereas section 103‑ AA describes general supervisory and all pervading authority of 'Election Commission' for declaring election of the whole constituency as void on being satisfied about existence of grave illegalities or serious violations of the provisions of `The Representation Act' or `Election Rules' in the conduct of polls in any constituency. In the instant case report was made by the Returning Officer I to the Election Commission about unauthorised forcible removal of the ballot boxes concerning two polling stations i.e., 43 and 44 by a group of persons, admittedly other than the petitioner. There was absolutely no grievance placed by either party before the `Election Commission' about any violation in the remaining 55 polling stations. We are quite clear that when express provision concerning exercise of authority by a form providing specific mode of redress to an aggrieved party exists then it would be inexpedient to invoke general or supervisory provisions of the statute. Similarly basis object of providing variety of jurisdiction to a forum is necessarily for rectifying mischief or violation through least disturbance, inconvenience or expenses. No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103‑AA but in our view such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation. Additionally it appears imperative that preconditions contained in the general provision should be fully satisfied before making direction about extreme action for disturbing the whole electorate of the constituency. Section 103‑AA I obviously regulates jurisdiction of the Commission, only when grave illegalities are reported to have been committed in the `Constituency' as distinguished from `Polling Station' Section 2 (vii) of 'The Representation Act' defines constituency as delimited under the delimitation of Constituencies Act, 1974. Whereas `Polling Station's is a fraction unit, established by the District Returning Officer in every constituency for facilitating holding of elections as contemplated under section 8 of said enactment. Admittedly in Constituency PB‑9 Pishin IV, fifty‑seven (57) polling stations were established through Gazette Notification No.199 Quetta 22‑ 10‑1988. Therefore Election Commission while considering factum of rigging, malpractice, illegal, practices, or violation of law or rules was obliged to see whether alleged illegalities or improprieties were reported in `The Constituency' or considerable portion thereof, or merely in one or two specified polling stations. The `Election Commission' was further bound to consider whether final result of the Constituency was otherwise determinable on the basis of polls conducted in the remaining majority of the polling stations. We are inclined for observe that relevant facts. for assumption of jurisdiction have not been kept in view by Election Commission No.l while passing the impugned order, besides provisions of section 27 (1) (b) and other factual aspects were completely ignored. In this context it would be proper to mention here that Constituency PB‑9 Pishin IV comprising of 57 polling stations has 95,907 voters. Whereas voting strength of polling stations 43 and 44 combined together consists of 2,78 persons. Apparently, when matter came up for hearing before the Election Commission there was no complaint in respect of remaining 55 polling stations, consisting of approximately 93,125 votes. The result count pertaining to fifty‑five polling stations forwarded by the Returning Officer to the Election Commission, in accordance with section 42 and the rule 28 showed ~ 17,843 votes having been polled in favour of petitioner as well as rival candidates (private respondents) thus indicating almost ratio of 19.05% persons who participated in the election forum 55 polling stations of said Constituency.

6. Additionally result counts of 55 polling stations clearly reflects that petitioner obtained 5,122 votes which constitutes 1,722 votes more than respondent No.23 namely Nazir Ahmed Bacha Khan who secured second position and otherwise has not contested this petition. Similarly petitioner admittedly obtained 2,497 and 2,653 votes more than respondent No.6 Haji Behram Khan and respondent No.21 Haji Abdul Hakim who secured 3rd and 4th position respectively. It may be mentioned, that according to official report all the five ballot‑boxes pertaining to polling station 43 (primary School Zaimel; female) and No.44. (improvised Zaimel; male) were shifted to the office of Assistant Commissioner Chaman to avoid mischief of vandalism of certain miscreants. Official report placed before the Election Commission expressly indicates that unfortunately group of persons who were responsible for forcibly looting the five Ballot boxes containing cast votes of the aforesaid two polling stations from the office of Assistant Commissioner Chaman, were other than the petitioner or his supporters. It is matter of record that two of these ballot‑ boxes containing 997 cast votes were secured by the law enforcing agency in hot persuit from those persons responsible for such hooliganism. It is further evident from available record that 956 votes out of aforementioned 997 casted votes of polling stations No.43 and 44 Zaimel were found to have been marked in favour of petitioner. Thus there remain only 1,785 unexplained votes in the whole of constituency out of which certain casted votes are still untraced. It is important that in spite of election rivalry there is absolutely no imputation . against, the petitioner for snatching away or looting the ballot‑boxes. Besides jactum of 956 votes, having been casted in favour of petitioner out of aforementioned 997 recovered votes,' has hot been controverted in the counter‑af6davites filed by contesting respondents. Specific assertions in this behalf were made in the petition which have been evasively and vaguely refuted thus amounting to admission. Furthermore respondents Nos.3, 7, 9, 13, 15, 16 and 25 in their respective counter‑ affidavits have not disputed correctness of assertions made in the petition by explaining that polling was held in a peaceful atmosphere. From the above‑stated figures, it is quite evident that even if unexplained votes by treating cent per cent voting ratio, are counted in faour of any of the contesting respondents, which obviously cannot even conceived, his grand total shall be less than votes secured by petitioner. In the circumstances we have no doubt in our mind that on the available record final result of election in the constituency PB‑9 Pishin IV was conveniently determinable. It is also noteworthy that petitioner was absolutely not responsible for the forcible removal, damage or destruction of ballot‑boxes pertaining to the relevant polling stations No.43 and 44 Zaimel. Factually election provides a procedure to promote democratic process, whereby through voting, political choice of majority for representing them in a particular' constituency is displayed. The contesting candidates and their supporters are therefore expected to respect and abide by law, to facilitate holding of elections in a peaceful manner. Accordingly activities tending to thwart this process cannot be protected or encouraged. Rather such nefarious designs must be checked and controlled by adopting possibly available lawful means. Similarly in our opinion it would be extremely unjust and hazardous to penalize a contesting candidate who apparently is not responsible for the misconduct, malpractice, impropriety,' violation of Law or breach of rules in the two polling stations, grievance whereof formed basis for repoll in the constituency.

7. We are therefore, persuaded to think that even if serious violations of law or rules are established in one or two polling stations, consciously or otherwise committed by group of miscreants or loosing candidates whether same' can be deemed sufficient to affect the whole election of the constituency, specially when on the strength of casted votes in other polling stations and available record final result is clearly determinable or when in the given situation alternate measures of regulating repolling in the disputed polling stations are expressly prescribed in the same statute, be adopted or not. Carefully considering all the aspects we are of view the that when express provisions providing convenient mode of rectifying mischief to cater for particular eventuality exist resort cannot be made to general or supervisory provisions. We are accordingly inclined to hold that Election Commission acted unlawfully and in excess of jurisdiction vested in it by invoking provisions of section 103‑AA.

8. With regard to decision of honourable Supreme Court in case Haji Muhammad Ayub v. Alam Zeb and others (Constitutional Petition No.96‑R of 1989); here is no cavil to the principle of law discussed therein, because when jurisdiction under section 103‑AA is lawfully exercised by the 'Election Commission' polls in the whole constituency would be declared void causing a vacancy whereby fresh polls be held in the manner provided under section

108. Obviously in such situation re‑polling in any one or more polling stations is not conceived under said provisions of law. Whereas in the instant matter, we have already observed that `Election Commission' has illegally exercised jurisdiction and authority reported judgment would not be relevant. Next contention urged before us relates to maintainability of constitutional petition and bar of jurisdiction under section 105 of `The Representation Act' Suffice it to say, that immunity for interference applies only in the event of proper and valid exercise of jurisdiction; however when a forum acts arbitrarily, fails to consider material available for the determination of cause, L exceeds its prescribed limits in the exercise of jurisdiction, misinterprets or, ignores provisions of law, assumes authority on the grounds which are not specified by the enactment; bar of jurisdiction would not apply and interference can be legitimately sought by invoking the constitutional remedy. It may further be observed that petitioner had agitated all legal and factual points before Election Commission in the written representation dated 29‑11‑1988. Therefore objection about setting up of new case is apparently misconceived.

9. While parting we may clarify that this judgment shall merely have effect of excluding impugned order dated 1‑12‑1988 out of the file. However any of the aggrieved candidates shall be free to approach Election Tribunal, for settlement of election dispute if any on the grounds available under law. For the foregoing reasons we are inclined to accept the petition, declare order dated 1‑12‑1988 passed by respondent No. 1 to be without lawful authority and in the exercise of jurisdiction not vested in it and on the available facts hold that final result was evidently determinable on the basis of result counts of 55 polling stations which clearly shows that petitioner was validly elected from constituency PB‑9 Pishin IV. Consequently we direct the Election Commission to publish the result within the purview of section 42(4) of The Representation of The People Act, 1976. The petition is disposed of in the above terms with no order as to costs. AA./333/O Petition accepted.