1983 PLP 225 (SCMR)

MUHAMMAD AFZAL ZULLAH, J: Leave to appeal has been sought from judgment dated 15‑11‑1982, whereby a constitutional petition filed by the respondent No. 1 arising out of a local election was allowed. According to the learned counsel, in the election for the chairmanship of a local council held on 20‑12‑1979, the petitioner and respondent No. 1 obtained four votes each. Accordingly lots were drawn under the rules as a result of which respondent No. 1 was declared elected. The petitioner challenged this election through an election petition which was allowed on 31‑5‑1981 on the ground that Rehmat Ali one of the voters was debarred, on account of a stay order, from participating in the election, and, because he had voted for respondent No. 1, therefore, the latter could not be held to have been duly elected. Instead the petitioner was declared to have been elected on the reasoning that if Rahmat Ali's vote which was assumed to be cast in favour of the respondent is excluded then the petitioner's votes were more than that of the said respondent. The respondent then brought the matter before the High Court in its writ jurisdiction. A division bench held in the impugned judgment that the stay order against Rehmat Ali was not such so as to prevent him from participating in the election in dispute and more over, the finding that he had voted for respondent No. 1 had violated the principle regarding the secrecy of vote. That being so, the decision of the election authority was declared as being without lawful authority with the result that the original election result by means of drawing of the lots stood restored. Learned counsel for the petitioner has contended that Muhammad Shafi one of the voters on account of a stay order similar to the one in the case of Rehmat Ali was not permitted to cast his vote but Rehmat Ali was allowed to. do so ; that Rehmat Ali could not have cast his vote because the Deputy Commissioner, acting as an Election Tribunal in connection with another election in which Rehmat Ali had .been elected, had issued a stay order which would have had the effect of preventing him from participating in the election of a Chairman ; and, lastly, that Rehmat Ali had himself sworn an affidavit with regard to the fact that he had cast his vote in favour of respondent No. 1 and further that he had seconded the proposal of respondent's candidature, therefore, a finding could be rendered regarding Rehmat Ali's vote having gone to respondent No.

1. After some preliminary discussion, learned counsel for the petitioner did not press the last point and stated that the principle regarding the secrecy of vote was ;inviolable. The remaining two arguments can be dealt with together. It depends upon the nature of the stay order issued against Rehmat Ali so as to determine whether be could or could not participate in the election in dispute. The mere fact that one Muhammad Shafi was debarred from participating in the election on account of a stay order, would not be enough to determine the nature or quality of the stay order issued against Rehmat Ali. Muhammad Shafi's case is not before us. On the crucial question regarding .the stay order against Rehmat Ali, learned counsel has relied on an order passed by the Deputy Commissioner on 9‑12‑1979, which from its photo copy appears to have been made in the margin of page 2 of the application made in that behalf. The order is for maintenance of status quo. There is nothing in that order to indicate what was the prayer made in the application. The copy of the application placed on the record of this petition is incomplete. The first two pages are on record. The remaining including the prayer paragraph have for one reason or the other been held back. In order to show that the so‑called stay order which has been indicated above was for maintenance of status quo, meant amongst other things to prevent Rehmat Ali from participating in the election in dispute, learned counsel placed before us copy of the order dated 21‑8‑1982 passed by the Deputy Commissioner as Election Tribunal wherein Rehmat Ali was convicted for contempt of Court, on the purported ground that he bad contravened the said status quo order. We have noticed in this order of the Election Tribunal that Rehmat Ali had stated in the contempt proceeding, "that the Court could not issue such an order", because the proceeding in which it was issued, "had already been disposed of due to which the present proceedings could not be initiated." The learned Election Tribunal did not at all deal with the point raised by Rehmat Ali and convicted him on the ground that he was aware of the status quo order. Nowhere in the entire l it is shown that the status quo order had been passed in any pending proceedings. When confronted with this situation, learned counsel was unable to make any definite statement with regard to the plea taken by Rehmat Ali before the Election Tribunal. He only stressed the point that there was no such treatment of facts in the High Court and the judgment impugned in this petition did not proceed on these lines. The stand taken from the petitioner's side is untenable. As the nature and the validity of the stay order would remain the subject‑matter of inquiry it was the duty of the petitioner to place the entire facts before the High Court even when appearing as a respondent. However, having failed there it was the duty of the petitioner to place the facts before this Court. Not only incomplete copy of the stay application has been furnished we have also noticed that Rehmat Ali's plea regarding absence of any proceeding has not been adequately met. We further notice that this gets support from the fact that the questioned stay order was passed on 9‑12‑1979. It is mentioned in the order dated 31‑5‑1981, that Rehmat's election was challenged in the High Court. The said Court had in those proceedings, vacated the stay, order which was issued against Rehmat Ali. Learned counsel remained unable to explain as to how and on what proceeding another stay order was issued against Rehmat Ali by the Deputy Commissioner as Election Tribunal at a far off place on the same day. After bearing the learned counsel, we are of the view that the petitioner has not come before this Court with clean bands. Grant of leave to appeal is discretionary. We accordingly do not consider it a fit case for grant no leave. This petition is dismissed. Petition dismissed.