1991 PLP 197 (MLD)

NAZIR AHMAD BHATTI, J: --The petitioner and respondents Nos. 1 to 4 had contested for a seat in the District Council Kohat election held in the year 1987. Mushtaq Ahmad respondent No.1 was declared successful while the petitioner and respondents 2 to S were declared defeated. Tahoorul-ul-Islam petitioner challenged the said election by an election petition filed before the Election Tribunal Kohat in December, 1987. The said petition was contested by the respondent herein. Two grounds were taken in the election petition to challenge election of respondent No.1 herein; firstly, that respondent No.1 herein had not produced ballot-box to the Returning Officer for inspection one day before the poll as laid down under the rules; and secondly, that the polling was stopped and it could not be lawfully resumed by the Presiding Officer without an order of the Returning Officer. Parties had produced evidence pro and contra the issues involved in the election petition- but ultimately the learned Election Tribunal dismissed the election petition on 4-9-1989. Still feeling aggrieved and finding no other remedy available, the petitioner has come up to this Court with the writ petition in hand challenging the aforesaid order of the learned Election Tribunal as being illegal and without lawful authority.

2. We have heard learned counsel for the parties at length. Learned counsel for the petitioner has contended that a dispute about rigging had arisen during the polling and the Presiding Officer stopped the polling for, some time but he resumed it without any permission of the Returning officer. In this connection he has also relied upon on the provisions of rule 26 of the N: W.F.P. Local Councils Election Rules, 1979 (hereinafter referred to as the Election Rules), which provides that if at any time the poll at a Polling Station is interrupted or obstructed for reasons beyond the control of the Presiding Officer, he shall stop the poll and inform the Returning Officer that he had done so, and where a poll has been stopped the-Returning Officer shall appoint, as soon as may be, with the approval of the Election-Authority, a day for a fresh poll and fix a place at which and the hours during which such fresh poll shall be taken. We have considered this aspect of the matter very minutely.

3. It has come in evidence that there was a complaint of rigging during the polling and the Presiding Officer hail stopped polling for some time and after the matter of rigging was resolved he resumed the polling. The learned counsel for the petitioner has contended that such a resumption of polling after interruption of the same was a violation of the provisions of rule 26 of the Election Rules. However, we cannot accept this contention of the learned counsel for the reason that under the very provision of rule 26 of the Election Rules, the Presiding Officer has to report only that interruption or obstruction of poll the reasons for which are beyond his control and not otherwise. If the Presiding Officer could himself resolve the interruption or obstruction, then there was no need to entirely stop the polling and report the matter to the Returning Officer. From the evidence recorded by the learned Election Tribunal we find that polling was stopped for a very short time on the complaint of the petitioner about rigging and the matter was resolved very quickly and polling was restarted. We are of the opinion that the said matter of rigging was not such a matter as was beyond the control of the Presiding Officer or that he could not resolve it himself. As such the interruption of the poll did not tantamount to stoppage of poll as envisaged by rule 26 of the Election Rules. It was a very trivial affair which was amicably settled by the Presiding Officer and polling was resumed. It is also interesting to note that none of the contesting candidates had at the relevant time raised any objection of the nature envisaged by rule 26 of the Election Rules.

4. It was also contended by the petitioner that under the provision of rule 28 of the Election Rules, every contesting candidate had to bring his own ballot-box and produce the same before the Returning Officer one day before polling so that the Returning Officer could be satisfied that the ballot-box was of the required specifications and then to paste thereon a slip containing his initials and the date of inspection and return it to the candidate for delivery to the Presiding Officer at least one hour before the commencement of the poll and a candidate who failed to produce his ballot-box to the Returning Officer for inspection was deemed to have retired from the election. The contention of the petitioner is that respondent No.1 had not produced his ballot-box to the Returning Officer in obedience to the provision of rule 4 of the Election Rules and as such he had retired from the election. The learned counsel for the respondents conceded that respondent No.1 had riot produced the ballot-box to the Returning Officer for inspection but when an objection was raised by the Presiding Officer on the day of poll he had taken the box to the Returning officer and had obtained his approval and. signature for the ballot-box and had then reproduced the same before the Presiding Officer who had accepted it and placed it in the Polling Station. It was the contention of the learned counsel for respondent No.1 that in the circumstances respondent No.1 had neither committed any irregularity in that respect nor he had retired from the election.

5. We have given our serious thoughts to this aspect of the matter as well. No doubt the ballot-box has to be shown to the Returning Officer sufficient time before the start of the poll and his approval and signature thereon have to be obtained in order to exclude the possibility of casting any bogus vote. This exercise should be complete at least one hour before the start of the polling as laid down in rule 28 of the Election Rules. However, a minute perusal of this rule would clearly indicate that the emphasis is not on the time when the ballot-box has to be produced before the Returning Officer for his inspection but the important point is that the box should have been inspected by the Returning Officer before the commencement of polling. Although respondent No.1 had produced the ballot-box- duly inspected by the Returning Officer about an hour after the start of the polling but in our opinion no illegality or irregularity was committed because the polling had smoothly continued. It is noteworthy that although respondent No.1 produced the ballot-box in the Polling Station one hour after the start of the polling but in spite of that he received about a thousand votes more than the petitioner as also no objection in that regard. was taken by , any candidate. We do not find that any violation of rule 28 of the Election Rules was committed by respondent No.1.

6. For the aforesaid reasons we have come to the conclusion that the learned Election Tribunal had jurisdiction in the matter and he did not commit any illegality or irregularity either in the procedure or in. arriving at the conclusion mentioned in his judgment impugned in the writ petition. Finding no merit in the writ petition we would dismiss the same with no order as to costs. A.A./1142/P Petition dismissed.