1990 PLP 1727 (SCMR)

Haji Bashir Ahmad, Advocate‑on‑Record(absent) for Respondent No.8. Date of hearing: 11th March, 1990. ABDUL QADEER CHAUDHRY, J.‑‑Leave to appeal was granted to consider the decision of the High Court whereby it set aside the finding of facts arrived at by the Election Tribunal in the following words:‑‑ "It is abundantly clear from the record of the case file and the statements of Presiding Officer and ASI and also from the statements of petitioner as well as respondent that no 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. It is also clear that the election staff (including police party) was in no way involved in any breach of official duty in connection with the election. It appears that due to the ignorance of law on the part of the Presiding Officer as well as the Returning Officer, re‑election at the polling station was not ordered in compliance of Rule 26."

2. The facts, in brief, are that the appellant and respondents Nos. 5 to 8 contested the election for a seat of the Peshawar Municipal Corporation from Ward No.

13. The appellant was declared elected. The respondent No.5 Haji Rehman and Respondent No.8 Zaiwar Shah riled election petitions which were disposed of by the Election Tribunal by a common order. The Election Tribunal recorded the evidence adduced by the parties and by its order dated 25‑9‑1988 dismissed the election petitions. The respondent No.5 riled a Writ Petition in the Peshawar High Court which was allowed by the impugned order dated 15‑5‑1989 and after declaring the election of the appellant as a whole void re‑election was ordered.

3. Learned counsel for the appellant has submitted that the polling went on smoothly and there was no such situation which could not be controlled by the election authorities Therefore, there was no justification in law for directing the holding of fresh election.

4. The High Court has in the impugned order observed that the ballot boxes were taken into custody by the police; that the polling was interrupted and stopped for the reasons beyond the control of the Presiding Officer. The Presiding Officer as well as the Returning Officer failed to comply with the provisions of Rule 26 of North‑West Frontier Province Local Councils Election Rules, 1979. The facts of the case clearly indicate that at about 2 P.M. a large number of persons crashed the main gate and entered the polling station. There was disorder in the election booth. The ballot papers and ballot boxes could not be protected. The polling was stopped as it could not be held in the peaceful manner. There were disturbing circumstances prevailing at the polling station. , The Presiding Officer could not control the situation and hold the election. No ballot paper was issued after 2 P.M. and no voter could cast his/her vote after the police took away the ballot boxes at 2 P.M. Sufficient number of voters could not exercise their right of franchise in view of the disturbing state of affairs prevailing at the polling station.

5. The ballot boxes remained in the custody of the police from 2 p.m. to 5 p.m. The police delivered the ballot boxes back at 5 p.m. Only the appellant was present but the other contesting candidates were not present at the time of count. The aforesaid facts clearly demonstrate the violation of provisions of Election Laws and procedure.

6. Another feature of the case is that the appellant and the other contesting candidates signed an application which was addressed to the Returning Officer for re‑election. The appellant has now turned somersault and submitted that he had only signed a plain paper. The learned counsel for the appellant admitted that the appellant is a Science Graduate it, therefore; cannot be imagined that the appellant without applying his mind to the facts of the case in the prevailing circumstances had signed a plain paper.

7. In the result, the order passed by the High Court in exercise of its extraordinary jurisdiction is not open to exception on any legal plane. There is no force in this appeal. The same is dismissed, leaving the parties to bear their own costs. A.A./N‑247/S Appeal dismissed.