1988 PLP 546 (SCMR)

SAAD SAOOD JAN,J.--The petitioner and Mirza Khalid Beg, respondent No.5, were the only candidates in the election to the Union Council, Kahna Kohna from Ward No.16. The election was held on 30-11-87. At the end of the polls the Presiding Officer rejected sixteen ballot papers. He then found that each candidate had received 239 votes. Under the relevant rule he was required to draw lots to determine the result of the election. It appears that both candidates were upset over the final count and they were not prepared to get the lots drawn. The feelings among their supporters ran high anti there was a likelihood of their coming to blows. While the parties were quarrelling, the electricity supply to the polling station was cut off. Faced with this situation the Presiding Officer referred the matter to the Returning Officer with the request that he should himself settle the dispute between the parties. Both candidates appeared before the Returing Officer on 1-12-87. He proceeded to decide the result of the election through the spin of a coin. The toss went iri favour of Mirza Khalid Beg who was then declared elected. Later, he, was also elected as Chairman of the Union Council.

2. Being dissatisfied with the result of the election, the petitioner filed an application before the Provincial Election Authority. His grievance before the Election Authority was that the Presiding Officer had declared certain valid votes as invalid and vice versa. The Election Authority called a report from the Returning Officer. The petitioner wanted the Election Authority to hold up the publication of the result of the election. Apparently, his request was not granted. Primarily to seek this relief he filed a writ petition in the High Court. Later he also filed a petition before the Election Tribunal. The High Court dismissed the writ petition. He now seeks leave to appeal from this Court.

3. Notice of this petition was given to Mirza Khalid Beg who is being represented by his counsel Mr. Khalilur Rahman. It is common; ground before us that the questions whether the Presiding Officer was right in rejecting or accepting certain ballot papers and whether in the peculiar circumstances of the case the Returning Officer was justified in himself deciding the result of the election by spin of the coin are primarily for an Election Tribunal to decide. The petitioner already has moved the relevant, Election Tribunal in this regard. The learned counsel for the petitioner concedes that the petitioner was not properly advised in rushing to the High Court to writ jurisdiction when he did not get interim relief from the Election Authority. The petitioner has unnecessarily wasted the time of this Court and the High Court and involved respondent No.5 in fruitless litigation. In the circumstances eve dismiss this petition. The petitioner shall pay Rs.5,000 by way of costs to respondent No.5. S.Q. /A-163/5 Petition dismissed.