P L D 2009 Islamabad 19 (PLP)

MUHAMMAD MUNIR PERACHA, J.

This judgment shall dispose of Writ Petitions Nos.935 of 2008 and 1184 of 2008, as both the writ petitions arise from the order of the Election Commission of Pakistan dated 5-8-2008. The petitioners in both the writ petitions along with Jehanzeb Khan, Ajab Gul Wazir, Ghalib Khan, Ghulam Haider, Ghani Khan, Muhammad Jehangir Khan, Muhammad Tariq Wasir, Muhammad Ali Wazir and Maulana Gul Nawaz contested the election for membership of National Assembly of Pakistan from NA-41 (Tribal Area-VI). The polling was, held on 18-2-2008. For the purpose of disposal of Writ Petitions Nos.935 of 2008, two polling stations, Polling Stations Nos.60 and 62, both situated in one premises namely GMS Khan Kot are relevant. The Presiding Officer of Polling Station No.60 on a hand-written Form-XIV, showed the petitioner Abdul Malik to have got 50 valid votes, Ghalib Khan 17 and Aziz-ul-Hassan

43. Similarly the Presiding Officer of Polling Station No.62 on a hand-written Form-XIV, showed the petitioner Abdul Malik having got 131 valid votes, Ghalib Khan 44 and Aziz-ul-Hassan

102. The Returning Officer while consolidating the result of the constituency showed Maulana Abdul Malik to have got 7766 valid votes, Ghalib Khan 7811 and Aziz-ul-Hassan Wazir 7190. It appears from a note given by the Returning Officer that 7766 votes shown to have got by Maulana Abdul Malik do not include 181 votes polled for him in Polling Stations Nos.60 and

62. The Note of the Returning Officer is reproduced hereunder:-- "Statements of count furnished by Presiding Officers of Polling Station No.60 GMS Khan Kot No.1 Zermillan and No.62 GMS. Khan Kot No.2 Zermillan were prepared on plain paper instead of Form-XIV by citing non-Provision of From-XIV in violation of subsection (11) of section 38 of Representation of People Act, 1976, this was objected by contesting candidates. Guidance was sought from PEC, N.-W.F.P. Peshawar and D.R.O/Political Agent, SWA, regarding inclusion/exclusion of these votes vide No.980/S dated 19-2-2008 PEC, N.-W.F.P., Peshawar ordered re-counting by Presiding Officers in the presence of Returning Officer and candidates vide No.1008/S, dated 19-2-2008, Presiding Officers and candidates were called to my office and were told to do so. Candidates refused to do so. After exclusion of these 181 votes polled for Maulana Abdul Malik, Ghalib Khan is winner by securing 7811 votes, while after inclusion of these votes Maulana Abdul Malik Wazir is winner by securing 7947 votes".

2. There is a letter on the record at page 31 of the Writ Petition No.935 of 2008 through which the Returning Officer sought advice from District Returning Officer and the Provincial Election Commission. That letter may be relevant and is reproduced as under:- "SUBJECT: GUIDANCE REGARDING ANNOUNCEMENT OF RESULTS. Memo: In NA-41 TA-VI result of almost of all Polling Stations reached by 12:00 AM except two Polling Stations No.60 GMS Khan Kot No.1 Zermillan and No.62 GMS Khan Kot No.2 Tehsil Toi Kullah, the results of these two were submitted by respective Presiding Officer at about 02:00 AM, this late arrival was objected. The Presiding Officers did not give their result on prescribed Form No.XIV. They gave result on white paper citing non-provision of prescribed forms. This was greatly objected by the contesting candidates. They said as per subsections (11), (13) of section 38, of the Representation of the People Act 1976, Presiding Officers should have given copy of statement of the count to polling agents which they did so. They demanded exclusion of these results from over all results. Some of the candidates want announcement of result immediately while others want it withheld".

3. It appears from the record that Returning Officer recorded statements of Presiding Officers of Polling Stations Nos.60 and

62. Both of them stated that Forms-XIV were not sent to them and therefore, they prepared Form-XIV on a plain paper and gave result of the respective Polling Stations on a hand-written Form-XIV. It appears from the record that the fact that the results of Polling Stations Nos.60 and 62 were recorded by the Presiding Officers of the above two Polling Stations on a hand-written Form-XIV, was reported to the Election Commission of Pakistan. The Election Commission of Pakistan without notice to any candidate and without hearing anyone of them issued Notification No.F.2(2) /2008-Cord, dated 21-2-2008. The Notification reads as under:-- "NOTIFICATION.-Islamabad, the 21st February, 2008 No.F.2(2)/2008-Crod:--Pursuant to the report dated the 20th February, 2008 received from the Political Agent/District Returning Officer, South Waziristan Agency and the Returning Officer, for Constituency NA-41 Tribal Area-VI, the Election Commission is pleased to direct that re-poll at Polling Stations No.60 GMS Khan Kot No.1 Zermillan and No.62 GMS Khan Kot No.2 Zermillan shall be held on the 25th February, 2008. The Returning Officer concerned shall personally supervise the Poll with adequate resources. By Order of the Election Commission".

4. The petitioner Maulana Abdul Malik attempted to get Notification dated 21-2-2008, reviewed by the Election Commission but the Election Commission of Pakistan vide order dated 23-2-2008, dismissed the review petition.

5. Another letter No.400-01/APA (W)-R dated Wana the 21st February, 2008 was written by the Returning Officer to the District Returning Officer and the Provincial Election Commission on 21-2-2008. That letter would be relevant for disposal of the Writ Petition No.1184 of 2008. This letter reads as under:-- From: The Returning Officer NA-41 TA-VI/ Assistant Political Agent, Wana, South Waziristan Agency. To

1. The District Returning Officer/ Political Agent, South Waziristan Agency, Tank.

2. The Provincial Election Commissioner, N.-W.F.P., Peshawar. SUBJECT: CLOSING OF POLLING STATIONS NOS.53, 54 & 64 OF TEHSIL TOI KHULLAH. Memo: In continuation of this Office Letter No.212/APA (W) -R dated 19-2-2008, on the subject cited above. (I) POLLING STATION NO.64-GGPS SPLAY PORAN (TOI KHULLAH). I have come to know through the entire notables of Polling Stations Nos.53, 54 & 64 in a written petition that the Presiding Officer of Polling Station No.64 did not go to Polling Station personally. He has substituted himself with Doctor Zain-ul-Abeddin on his own. The said Presiding Officer through Doctor seems virtually to be mental. The substitute has gone to Polling Station at 02:30 PM and come back finding no Polling Station or agent after lapse of six hours. I have personally confirmed these facts. Strict action against. The said Presiding Officer is recommended for non-compliance of orders. (II) POLLING STATION NO.53-GMS TOI KHULLAH NO.1. On this Polling Station, some scuffle took place with apparent no threat to Presiding Officer. However, the quick departure of Presiding Officer irritated the parties and made them snatch material. Since there was no deployment of FC at Polling Station, therefore the people did not let the Presiding Officer take almost all of the Election material except one Ballot Box with 99 Polled votes. The Presiding Officer had stopped the poll under section 27(i)(a)(b) and rushed to the office of undersigned. He was directed to go back which he flatly refused. He was suspended and substituted with Mr. Muhammad Hamayun, Political Naib Tehsildar, Birmal under section 9(5) of Act 1976. The newly-appointed Presiding Officer with polling staff went to the spot immediately but it was too late for polling votes due to non-availability of voters, security and required election material. Hence out of 1218 registered votes, only 99 were cast depriving 1119 voters. . (III) POLLING STATION NO.54- GMS TOI KHULLAH NO.2. On this Polling Station, scuffle between the same, party and physical attack on Mr. Qasim Khan, Assistant Presiding Officer and damage to two Ballot Boxes made Presiding Officer close the election under section 27(i)(a). Out of 1303 registered votes only 7 votes were cast and 1296 deprived due to scuffle of some miscreants and non-availability of security arrangement on our part. (IV) POLLING STATIONS NO.50-BHU ANGOOR ADDA AND NO.51-ANIMAL DISPENSARY ANGOOR ADDA. On these Polling Stations due to non-availability of proper security arrangements reportedly polling agents of three candidates left the written application in this regard. Neither statement of count were signed by the respective polling agents nor the result was given to these agents on spot, nor the Presiding Officers have recorded the reason for signing in violation of subsection 16 of section 38, Representation of the People Act, 1976. (V) POLLING STATION NO.7-GGHS NAZAR JAN KOT (FEMALE). On this Polling Station, almost all the contesting candidates and their agents submitted a written request to the Presiding Officer wherein they requested him for allowing the male relatives of Women voters to cast their women votes on production of National Identity Cards of the women voters. The Presiding Officer did not accept their cards of the women voters. The Presiding Officer did not accept their request and the Polling was stopped under section 27(i)(a). Keeping in view these, I being Returning Officer NA-41 TA-VI in exercise of powers under subsection 2 of section 27 of Representation of the People Act, 1976, report the circumstances to Commission for necessary action. RETURNING OFFICER NA-41 TA VI/ ASSISTANT POLITICAL AGENT, WANA SOUTH WAZIRISTAN AGENCY. .

6. The petitioner Abdul Malik filed a writ petition against the Notification dated 21-2-2008 before the High Court of Peshawar. The writ petition was fixed before the High Court on 25-2-2008. The learned Division Bench of the High Court vide interim order dated 25-2-2008 directed that result of re-polling should not be declared. The case of the petitioner Abdul Malik is that he did not participate in the polling held on 25-2-2008 on Polling Stations No.60 &

62. At any rate, in re-polling at Polling Station No.60, Ghalib Khan got 237 valid votes, Aziz-ul-Hassan 10 and Abdul Malik

4. In Polling Station No.62 Ghalib Khan got 80 valid votes, Abdul Malik 5 and Aziz-ul-Hassan

1. Writ petition No.211 of 2008 was dismissed by the Peshawar High Court vide judgment dated 7-3-2008 on the ground that the High Court has no jurisdiction in view of Article 225 of the Constitution of Islamic Republic of Pakistan 1973. The petitioner Abdul Malik approached the Supreme Court of Pakistan through Civil Petition No.314 of 2008. The petition was converted into appeal and allowed in the following terms:-- "This petition is converted into appeal and allowed, the order dated 7-3-2008, passed by the Peshawar High Court, Peshawar and Notification dated 21-2-2008, issued by the Election Commission of Pakistan, are set aside and the case is remanded to the Election Commission of Pakistan for decision afresh in accordance with law after providing a proper opportunity of hearing to the concerned parties".

7. It appears that in March, 2008 Aziz-ul-Hassan Wazir the petitioner in Writ Petition No.1184 of 2008 filed an application under section 103 of the Representation of the People Act, 1976 before the Election Commission praying therein:-- "Under the circumstances mentioned above, it is humbly prayed that the re-polling may be ordered at the Polling Station Nos.7, 50, 51, 53, 54 & 64 and Polling Station Nos.8, 24, 25, 26, 46, 47 of NA-41, (TA VI) S.W.A. Wana. It is further prayed that the declaration of result by the Returning Officer/APA or by the Election Commission may kindly be stayed until the re-counting of votes by the APA/R.O. and the re-polling at the aforesaid polling station".

8. The learned Election Commission took up the case remanded by the Hon'ble Supreme Court and the application filed by Aziz-ul-Hassan Wazir together on 5-8-2008, Vide judgment dated 5-8-2008, learned Commission dismissed the application filed by Aziz-ul-Hassan Wazir. Regarding the case remanded by the Hon'be Supreme Court in Para No.10 of the order, the learned Commission held as under:-- "The long and the short of what has been stated is that the order dated 21-2-2008 for re-poll at Polling Stations Nos.60 and 62 does not suffer from any legal infirmity and requires to be reiterated and restored with all concomitant".

9. Giving effect to the results of the re-polling held on 25-2-2008 in polling Stations Nos.60 and 62, the learned Election Commission recorded finding that Aziz-ul-Hassan the petitioner in Writ Petition No.1184 of 2008 got 7179 valid votes, Ghalib Khan 8177 and Maulana Abdul Malik 7785. The notification notifying Ghalib Khan as duly elected candidate was issued on 7-8-2008. The petitioner Maulana Abdul Malik approached this Court through Writ Petition No.935 of 2008 praying therein:-- "It is accordingly prayed that this Hon'ble Court may declare order dated 5-8-2008 passed by Respondent No.1 is illegal made in access of authority vested to the Respondent No.1 as such is without jurisdiction. Consequently, the same may be set aside along with any notification issued in pursuance of the same and Respondent No.1 be directed to issue the notification on the basis of result/votes secured by the parties in the election held on 18-2-2008 with any other relief and the cost of the proceeding throughout in the interest of justice".

10. The prayer of the petitioner in Writ-Petition No.1184 of 2008 is reproduced as under:- "In view of the above circumstances, it is therefore most respectfully prayed that the impugned order dated 5-8-2008 and 21-2-2008 of Election Commission be declared void, illegal, arbitrary capricious, without any lawful authority and jurisdiction based and without application of judicial mind may kindly be set aside and order dated 19-2-2008 of the Returning Officer may graciously be restored. It is further prayed that pending disposal of the petition, the operation of the impugned order dated 5-8-2008 and 21-2-2008 may kindly be suspended".

11. We have heard Mr. Kamran Murtaza Advocate, learned counsel for the petitioner in Writ Petition No.935 of 2008, Sardar Khurram Latif Khan Khosa Advocate, who appeared for Ghalib Khan and Abdul Baseer Qureshi Advocate, who represented the petitioner in Writ Petition No.1184 of 2008 and have gone through record of the case.

12. Sardar Khurram Latif Khan Khosa Advocate raised a preliminary objection and contended that both the writ petitions are incompetent in view of the Article 225 of the Constitution of Islamic Republic of Pakistan. He relied on the case reported as "Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396)". In reply to the preliminary objection, Mr. Kamran Murtaza Advocate submitted that the bar under Article 225 of the Constitution is not absolute and that the power of judicial review of the High Court is available if the aggrieved person has no other remedy. He cited the case of Ghulam Mustafa Jatoi v. Additional District Judge (1994 SCMR 1299), Ch. Muhammad Arif v. Rao Sikandar Iqbal (PLD 2008 SC 429) and Syed Nayyar Hussain Bukhari v. District Returning Officer (PLD 2008 SC 487).

13. Article 225 of the Constitution was examined by the Hon'ble Supreme Court in a recent case of Syed Nayyar Hussain Bukhari. At page 490 of the report, it was observed by the apex Court as under:-- "The general law is that the High Court should not interfere in the election disputes in its constitutional jurisdiction and this Court in Javed Hashmi's case supra has emphasized that in view of the bar contained in Article 225 of the Constitution, the High Court is not supposed to exercise its jurisdiction under Article 199 of the Constitution in election matters. The same view was expressed in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge, (1994 SCMR 1299) with the observation that in exceptional cases the jurisdiction of the High Court under Article 199 of the Constitution can be invoked and same principle was followed in Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan (PLD 2005 SC 52) but we may point out that the concept of absolute bar of jurisdiction of the High Court in election matters is based on misconception of law. The power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Article 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute". In case reported as Ghulam Mustafa Jatoi versus Additional District and Sessions Judge (1994 SCMR 1299) while dealing with the similar proposition, it was held by the Hon'ble Supreme Court of Pakistan as under: -- "Generally in an election process the High Court cannot interfere by invoking its Constitution jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is presently-illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court.

14. The determining factor whether the proceedings are barred under Article 225 of the Constitution or otherwise is the availability of alternate remedy to an aggrieved party during the process of election or after its completion against the order of Election functionary. Let us now examine whether the petitioner in both the writ petitions would have an alternate remedy against the order dated 5-8-2008 impugned in these two writ petitions. First we will examine the matter of, Abdul Malik. The election petition in our view would not be an alternate remedy for Maulana Abdul Malik petitioner. His prayer is that the order of Election Commission directing re-polling on Polling Stations Nos.60 and 62 be set aside and he be declared to have been duly elected on the basis of the results prepared by the Presiding Officers of these Polling Stations on 18-2-2008. The grounds for declaring the election of returned candidate void are mentioned in section 68 of the Representation of the People Act, 1976 which is reproduced:--

68. Ground for declaring election of returned candidate void.

(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- "(a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. (2) The election of a returned candidates shall not be declared void on the ground- (a) that any corrupt or illegal practice has been committed, if the Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precautions to prevent its commission; or (b) that any of the other contesting candidates was, on the nomination day not qualified for or was disqualified from, being elected as a member. If the election of a returned candidate is declared by the Election Tribunal to be void then, the Tribunal is empowered under section 69 of the Act to declare the election petitioner or any other contesting candidate to have been elected. If Maulana Abdul Malik files an election petition, his case would not fall under any clause of section 68(1) of the Act. Section 70 of the Act gives power to the Election Commission to declare the election as a whole void. The case of the petitioner Abdul Malik may fall in this section but under this section, the Tribunal has no jurisdiction to' declare the election petitioner or any other contesting candidate to have been duly elected. In this view of the matter, the election petition is not an alternate remedy available to the petitioner Abdul Malik. The writ petition filed by him, therefore, would not be hit by Article 225 of the Constitution.

15. So far as Aziz-ul-Hassan Wazir, the petitioner in Petition No.1184 of 2008 is concerned, the allegations contained in the petition before Election Commission and in the writ petition before this Court attract section 70 of the Act. His prayer is for repolling. His grievance, therefore, can be redressed by the Election Tribunal. We are conscious of the fact that his prayer is for repolling in some of the Polling Stations. By now it is well-settled that the Election Tribunal has the power to order re-poll on some of the Polling Stations of the constituency. One of his prayers is re-counting of the votes which too is within the jurisdiction of the Election Tribunal. He having alternate remedy of filing an election petition, his writ petition is barred under Article 225 of the Constitution. Writ Petition No.1184 of 2008 is, therefore, dismissed being incompetent in view of Article 225 of the Constitution.

16. On merits Mr. Kamran Murtaza Advocate raised, the following points:-- (a) Order dated 21-2-2008 passed by the Election Commission was set aside by the Hon'ble Supreme Cou9 vide judgment dated 20-5-2008. The Election Commission was, therefore, not competent to restore the same through an order impugned in this writ petition. (b) The polling dated 25-2-2008 was conducted in pursuance of order dated 21-2-2008 passed by the Election Commission. Order dated 21-2-2008 having been set aside by the Hon'ble Supreme Court, the results of the Polling Stations No.60 and 62 in the polling of 25-2-2008 could not have been made basis for declaring Ghalib Khan as returned candidate. (c) Merely because the results of polling station has been prepared on a paper which was not a printed paper is not a ground for directing repolling in that polling station. (d) The learned Election Commission was not competent to order repolling on two polling stations on the grounds on the basis whereof the order was passed.

17. Learned counsel for the respondent, on the other hand, supported the order of the Election Commission. He submitted that the Election Commission was fully justified in ordering re-polling in Polling Stations Nos.60 and

62. The learned counsel showed us photocopies of hand-written Form-XIV and pointed out that Form-XIV of both polling stations is in one hand-writing.

18. The Presiding Officer of Polling Station No.60, Shah Wali Khan was present in the Court. We showed him photocopies of hand written Form-XIV of Polling Stations No.60 and 62, He stated that there was no electric light in the premises wherein Polling Stations No.60 and 62 were situated and there was only one lantern available. Two Forms-XIV were copied by one Presiding Officer from the book provided by the Election Commission of Pakistan giving guidelines for the conduct of the election and each one of the Presiding Officers then wrote the number of votes on the hand written Form-XIV regarding his respective polling station.

19. The first two points urged by the learned counsel for the petitioner Mr. Kamran Murtaza did not impress us. There is no doubt that the order dated 21-2-2008 earlier passed by the Election Commission was set aside by the Hon'ble Supreme Court and a direction was made to the Election Commission to pass a fresh order after giving an opportunity of being heard to the parties. If however, after hearing the parties, the Election Commission came to the conclusion that repolling in the two polling stations would meet the ends of justice and if on the basis of the earlier order dated 21-2-2008 re-polling has already been conducted, the result of repolling dated 25-2-2008 cannot be annulled on the only ground that the order dated 21-2-2008 has been set aside by the Hon'ble Supreme Court. The observation made by the Election .Commission in impugned order that; "The long and the short of what has been stated is that the order dated 21-2-2008 for re-poll at Polling Stations No.60 and 62 does not suffer from any legal infirmity and requires to be reiterated and restored with all concomitant." Is only a way of expressing that the order directing repelling is justified.

20. Two reasons have been recorded by the Election Commission for directing repolling on the two Polling Stations No.60 and 62; one that the result has not been prepared on the printed Form-XIV and second that the Presiding Officers did not get signatures of the candidates or their polling agents on the result sheets. Section 38(9) of the Representation of the People Act provides that; "The Presiding Officer shall, immediately after the count, prepare a statement of the count in such form as may be prescribed showing therein the number of valid votes polled by each contesting candidate and the ballot papers excluded from the count." The phrase `prescribed' has been defined in clause (xix) of section 2 which means "prescribed by rules made under this Act". The Representation of the People (Conduct of Election) Rules, 1997 were framed under the Act. Rule 24 of the Rules provides that the statement of the count under subsection (9) of section 38 shall be prepared in Form-XIV. Form has been defined in rule 2 of the Rules as means; "a Form appended to these rules and includes a translation thereof into any language as may be approved by the Commission".. Reading the above provisions, it is clear that statement under section 38(9) has to be prepared by the Presiding Officer in Form-XIV appended with the Rules as Form-XIV. There is no requirement that it should be prepared on a printed form supplied by the Election Commission. We are convinced that the printed Forms-XIV were not sent to the Presiding Officers of these two polling stations, may be by mistake. Had the Forms been sent to the Presiding Officers, there would have been no reason for not using those forms and instead preparing the result on hand written Forms-XIV. This is not the case of anybody that the printed Forms-XIV were utilized by the Presiding Officers and thereafter those were destroyed and the result was prepared on hand-written Form-XIV. We have compared the hand written form with Form-XIV appended with the rules and found that hand written forms are exactly the same as is Form-XIV appended with the Rules except that the word "votes" has been wrongly spelled. In the absence of any allegations levelled by any candidate and the finding of the Election Commission that the hand written Form-XIV does not depict the correct result, the Election Commission could have not directed re-poll. Similarly the ground that the Presiding Officer did not get the signatures of the candidates or their agents on Form-XIV in the absence of the finding that results have been tampered with could not have been made basis for repolling. Neither section 103 nor 103-AA could have been invoked by the learned Election Commission to direct repolling in two polling stations in the circumstances of the case. The order of the learned Election Commission suffers from misinterpretation of the provisions of Representation of the People Act, 1976 and the rules framed thereunder. We, therefore, declare that order dated 5-8-2008 have been passed without lawful authority having no legal effect.

21. The order directing repolling by the Election Commission in the Polling Stations No.60 and 62 has been found by us to be illegal. We have come to the conclusion that statements prepared by the Presiding Officers of Polling Stations No.60 and 62 depict true results of these polling stations. The Returning Officer has already observed in his note sent to the Election Commission that in case these results are given effect, the petitioner Maulana Abdul Malik has secured 7947 votes, the highest of all the other candidates. We, therefore, declare that Maulana Abdul Malik, the petitioner in Writ Petition No.935 is duly elected candidate. No order as to costs. M.H./A-149/Isl. Order accordingl